State v. Davis, 154 Wash. 2d 291

Summary

The Washington Supreme Court considered whether admitting a domestic-violence victim’s 911 call violated the defendant’s Sixth Amendment confrontation right under Crawford v. Washington. The court held that emergency 911 calls must be evaluated case by case and that any error in admitting testimonial portions of the call was harmless beyond a reasonable doubt. The court also held that placing the assault element, which elevated the offense from a misdemeanor to a felony, in a special verdict form was constitutionally permissible, and affirmed the Court of Appeals.

Holdings

1. Emergency 911 calls must be assessed case by case, and individual statements within a call must be separately evaluated to determine whether they are testimonial. A call seeking help from an ongoing emergency generally does not resemble testimonial police interrogation, although particular statements may be testimonial depending on the circumstances and purpose of the questioning.
2. Any error in admitting testimonial portions of the 911 call without cross-examination was harmless beyond a reasonable doubt because the untainted evidence was overwhelming.
3. When the legislature creates a statutory framework establishing a base crime and an elevated penalty upon proof of an additional fact, the additional elevating fact may constitutionally be submitted in a special verdict rather than included in the to-convict instruction, provided the jury unanimously finds it beyond a reasonable doubt.
4. Failure to object at trial did not bar review because omission of an element from a to-convict instruction is an error of sufficient constitutional magnitude to qualify for review as a manifest constitutional error.

Questions Presented

1. Whether admission of McCottry’s 911 call violated Davis’s Sixth Amendment confrontation right under Crawford v. Washington.
2. Whether the trial court constitutionally could place the assault element that elevated violation of a no-contact order from a misdemeanor to a felony in a special verdict form rather than in the to-convict instruction.
3. Whether Davis waived appellate review of the instructional challenge by failing to object at trial.

Disposition

affirmed