State v. Froelich, 2017 ND 154

On Feb. 10, 2016, Darrell Froelich was charged with simple assault (domestic violence) for allegedly assaulting his girlfriend’s son-in-law, a household member.
At trial the State called the victim, the victim’s wife, the responding officer, and a 911 operator; the victim testified Froelich scratched him and he never struck Froelich.
The State intended to call the 911 caller (Froelich’s former girlfriend) but she did not appear; the prosecutor played a portion of the 911 recording after the 911 operator laid foundation.
The State stopped the recording before the caller made statements about prior alleged abuse, explaining those portions might be prejudicial.
Froelich testified and gave a conflicting account, claiming the victim was the aggressor.
The jury convicted Froelich; he appealed arguing the partial 911-playback violated his Sixth Amendment Confrontation Clause rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether playing part of the 911 call violated the Confrontation Clause	The 911 portions played were nontestimonial and thus admissible; if testimonial, any error was harmless	Admission violated Froelich’s Sixth Amendment right because the caller was unavailable and Froelich could not cross-examine her	The portion played was nontestimonial (made to address an ongoing emergency), so no Confrontation Clause violation

Crawford v. Washington, 541 U.S. 36 (2004) (establishes that out-of-court testimonial statements are barred absent unavailability and prior opportunity for cross-examination)
Davis v. Washington, 547 U.S. 813 (2006) (distinguishes testimonial from nontestimonial statements; statements made during an ongoing emergency to obtain police assistance are nontestimonial)
State v. Blue, 717 N.W.2d 558 (N.D. 2006) (discusses Crawford framework and testimonial formulations)