in the Supreme Court on 11 April 2017.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
786 S.E.2d 85 (2016), finding prejudicial error in a judgment
entered on 29 April 2015 by Judge Benjamin G. Alford in
Superior Court, New Hanover County, and awarding defendant a
H. Stein, Attorney General, by Daniel P. O'Brien, Special
Deputy Attorney General, for the State-appellant.
Kimberly P. Hoppin for defendant-appellee.
case is about whether the Confrontation Clause prohibits the
use at trial of information received from an anonymous 911
caller who informed law enforcement of a possible incident
involving a firearm and described the suspect. Because the
circumstances surrounding the 911 caller's statements
objectively indicate that their primary purpose was to enable
law enforcement to meet an ongoing emergency, the statements
were nontestimonial in nature, thus not implicating the
Confrontation Clause. Accordingly, we reverse the decision of
the Court of Appeals and reinstate the trial court's
evidentiary ruling and the resulting judgment upon
p.m. on 12 April 2014, an anonymous 911 caller reported a
possible dispute involving a black man with a gun in his hand
who was standing outside on Penn Street in the Long Leaf Park
subdivision of Wilmington, North Carolina. In response to the
dispatch, Officer Scott Bramley of the Wilmington Police
Department activated his patrol car's blue lights and
siren on the way to the scene. Officer Bramley characterized
the dispatch as "a pretty serious call" that is
"always dispatched with backup." After stopping a
few blocks away to retrieve his patrol rifle from his
vehicle's trunk, he proceeded to Penn Street, where he
parked on the side of the roadway. Penn Street was "very
dark" with "very sporadic" street lighting,
and Officer Bramley turned on his high-beam headlights
"to try and light-up the area."
exiting his vehicle, Officer Bramley noticed two people
standing near a black, unoccupied Mercedes, which was still
running and parked beside a vacant lot. Officer Bramley heard
music "blaring" from the car radio. Lacking a
detailed description of the suspect, Officer Bramley
approached the two individuals. One of the individuals, a
black male wearing a red and white plaid shirt and jeans,
walked towards Officer Bramley. Officer Bramley
"confronted him about possibly having [a firearm], at
which point he lifted his shirt to show [Officer Bramley] he
did not have a gun." Officer Bramley conducted a
pat-down to confirm the man was unarmed and then, having no
description or location for the suspect, continued to
investigate down the block.
time other officers had arrived on the scene, and Officer
Bramley observed a number of onlookers watching from nearby
residences and the vacant lot. Officer Bramley asked for a
more detailed description of the suspect, but the dispatcher
informed him that the anonymous 911 caller had already
disconnected. Officer Bramley requested that the dispatcher
initiate a reverse call. After reconnecting with the caller,
the dispatcher informed Officer Bramley that the caller
"said it was in the field in a black car and someone
said he might have thrown the gun."
response to Officer Bramley's request for a more detailed
description from the caller, the dispatcher replied:
"Black Male light plaid shirt. He was last seen by the
car with a gun in his hand and then they all went in the
house because they were afraid." Officer Bramley
testified that, upon receiving this information, he
"immediately knew [the suspect] was the first gentleman
that [he] had come into contact with because no one else in
that area was wearing anything remotely similar to that
clothing description." Officer Bramley relayed the
suspect's description "to other officers still en
route to help search the area in an attempt to locate
him." Officers searched the nearby vacant lot and
discovered a Sig Sauer P320 .45 caliber handgun located about
ten feet away from the Mercedes. The officers identified
defendant as the suspect based on the caller's
description, and defendant was arrested.
was indicted, inter alia, on one count of possession
of a firearm by a felon. Before trial defendant moved to
exclude evidence of the initial 911 call and the
dispatcher's reverse call, contending that admitting
statements made during either call without requiring the
anonymous caller to testify would allow the jury to hear
inadmissible testimonial statements in violation of his Sixth
Amendment right to confront the witnesses against him. The
State successfully argued, however, that the statements
primarily served to enable law enforcement to meet an ongoing
emergency and were therefore nontestimonial in nature.
See Davis v. Washington, 547 U.S. 813, 126 S.Ct.
2266, 165 L.Ed.2d 224 (2006). Along with the calls, the State
introduced other evidence from the scene, including the
firearm, and documentation verifying defendant's prior
felony conviction. The jury convicted defendant of possessing
a firearm as a convicted felon, and the trial court sentenced
defendant to fourteen to twenty-six months of imprisonment,
suspended for thirty-six months of supervised probation after
completion of a six-month term. Defendant appealed.
appeal the Court of Appeals concluded, inter alia,
that the anonymous 911 call and the dispatcher's reverse
call were inadmissible testimonial statements. State v.
McKiver, __ N.C.App. __, ___, 786 S.E.2d 85, 94 (2016).
According to the Court of Appeals, the 911 call was not
placed in response to an "ongoing emergency" and
admitting the statements without requiring the anonymous
caller to testify violated defendant's constitutional
right to confront the witnesses against him. Id.
at___, 786 S.E.2d at 93-94 (citing Davis, 547 U.S.
at 828, 126 S.Ct. at 2277, 165 L.Ed.2d at 240-41). Noting the
anonymous 911 caller's "position of relative
safety" in her home and away from her window, the Court
of Appeals determined that the record did not objectively
indicate that an ongoing emergency existed. Id.
at___, 786 S.E.2d at 93. Even though "the identity and
location of the man with the gun were not yet known to the
officers, " according to the Court of Appeals, "
'this fact [alone] does not in and of itself create an
ongoing emergency.' " Id. at___, 786 S.E.2d
at 93 (quoting State v. Lewis, 361 N.C. 541, 549,
648 S.E.2d 824, 829 (2007)). Moreover, the court concluded
that receiving evidence of the calls could not be harmless
because defendant's identification as the suspect rested
almost entirely on these statements. Id. at___, 786
S.E.2d at 94. While it emphasized that its conclusion should
not be read to condemn the officers "who reacted
professionally and selflessly to a potentially dangerous
situation, " the Court of Appeals ultimately held that
the trial court erred by failing to exclude evidence
concerning both the initial 911 call and the dispatcher's
reverse call from evidence, and awarded defendant a new
trial. Id. at___, 786 S.E.2d at 94. This Court
allowed discretionary review.
review a trial court's decisions regarding a
defendant's allegations of constitutional violations de
novo. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d
874, 878 (2011). The Confrontation Clause of the Sixth
Amendment to the Federal Constitution declares: "In all
criminal prosecutions, the accused shall enjoy the right . .
. to be confronted with the witnesses against him . . .
." U.S. Const. amend VI. The Confrontation Clause
prohibits the "admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for
cross-examination." Crawford v. Washington, 541
U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177, 194
(2004). The Confrontation Clause does not, however, apply to
nontestimonial statements. Whorton v. Bockting, 549
U.S. 406, 420, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1, 13
Davis v. Washington the United States Supreme Court
defined "nontestimonial statements" and compared
them to ...