Andrew WILLS, Appellant, v. UNITED STATES, Appellee.
No. 14-CM-208
District of Columbia Court of Appeals.
Submitted January 7, 2015. Decided October 13, 2016
147 A.3d 761
Paul H. Vishny, Paul E. Freehling (admitted pro hac vice), and Rhett E. Petcher for appellant Telecommunications Industry Association; Michael Scoville and Mary Rose Hughes for appellant T-Mobile USA, Inc.; and Eugene A. Schoon (admitted pro hac vice) and Tamar B. Kelber for appellant United States Cellular Corporation.
James F. Green and Jeffrey B. Morganroth argued for appellees. The following were on the brief: James F. Green and Michelle A. Parfitt co-counsel for appellees Prischman, Kidd, Solomon, Brown, and Noroski; Jeffrey B. Morganroth, Mayer Morganroth, and Jill A. Gurfinkel lead counsel for appellees Murray, Cochran, Agro, Keller, Schwamb, Schofield, and Bocook, and co-counsel for Marks; Hunter Lundy, Rudie R. Soileau Jr., and Kristie Hightower lead counsel for appellees Prischman, Kidd, Solomon, and Brown, and co-counsel for Marks; Victor H. Pribanic and Matthew Doebler lead counsel for appellee Noroski; Jeffrey S. Grand co-counsel for appellee Solomon; Laura Bishop Knoll, Jerold Edward Knoll, Jerold Edward Knoll, Jr., and Edmond H. Knoll co-counsel for appellees; and Steven R. Hickman co-counsel for appellees.
Brief of amicus curiae Business and Medical Coalition in support of appellants was filed by Steven P. Lehotsky and Sheldon Gilbert for Chamber of Commerce of the United States of America, Amar D. Sarwal for Association of Corporate Counsel, and Joe G. Hollingsworth and Eric G. Lasker for all amici.
Brief of amici curiae D.C. Defense Lawyers’ Association and DRI in support of appellants, reversal, and the adoption of Rule 702 and Daubert to modernize the standard for admission of expert opinions was filed by Kelly Hughes Iverson, Kamil Ismail, Craig S. Brodsky, Erin Christen Miller, and Meghan Hatfield Yanacek for D.C. Defense Lawyers’ Association; and John Parker Sweeney for DRI-The Voice of the Defense Bar.
Brief of amicus curiae Product Liability Advisory Council, Inc., in support of appellants’ request for reversal of order admitting expert testimony was filed by Terri S. Reiskin, Marilyn S. Chappell, L. Michael Brooks, Jr., Mary A. Wells, and Hugh F. Young, Jr.
Brief of amicus curiae Public Defender Service in support of appellants was filed by James Klein, Alice Wang, Jason Tulley, and Emily Voshell, Public Defender Service.
Brief of amicus curiae Trial Lawyers Association of Metropolitan Washington, D.C., in support of appellees and affirmance was filed by John Vail.
Joint Brief of amici curiae United States of America and the District of Columbia in support of appellants was filed by Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and John P. Mannarino, Assistant United States Attorneys; and Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and James A. Ewing, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH and McLEESE, Associate Judges, and REID, Senior Judge.
BECKWITH, Associate Judge:
After a bench trial, the trial judge in this case convicted appellant Andrew Wills of simple assault1 and attempted second-degree theft2 stemming from an altercation between Mr. Wills and his wife in a gas station parking lot. Mr. Wills contends that his wife‘s on-the-scene statement that Mr. Wills “snatched” her keys from her - uttered in response to a police officer‘s question about “how he got the keys” - was admitted in violation of the Confrontation Clause of the Sixth Amendment of the U.S. Constitution.
I.
Ndya Silas testified that she was coming out of a gas station convenience store in Northeast Washington, D.C., one evening when she heard a scream. She turned and saw a man on top of a woman inside a yellow Ford Mustang that was parked near the station‘s air pump.3 The man, whom she described as wearing a black jacket and jeans, struck the woman at least once with his fists and pulled her out of the car by her hair. Ms. Silas called 911 and reported the assault to the police, who arrived about two minutes later. She testified that she did not hang up the phone until she saw the police arriving at the gas station with their lights on, that she left the scene when the police arrived, and that the man she saw striking the woman did not leave the scene. A recording of Ms.
Over defense counsel‘s objection on both hearsay and Confrontation Clause grounds, the government introduced a recording of another 911 call - this one placed by an unidentified caller who stated that he was at a gas station watching a man and a woman “physically arguing” near a yellow Mustang. The caller also stated that the man, whom he (like Ndya Silas) described as wearing a black jacket and jeans, had thrown a set of car keys “over onto the highway.”
Metropolitan Police Department Sergeant Brett Parson testified that he responded to “a radio assignment for an assault in progress.” When he arrived at the gas station, he saw two people next to a yellow Mustang - a woman seated on a step and a man standing above her. The woman was crying and “breathing a little heavily.” The officer exited his police car and “motioned to the female to come to [him].” According to Sergeant Parson, she got up “very quickly” and walked over to him, looking over her shoulder toward the man as she approached the officer. The officer asked if she was okay and she “answered in the affirmative.” Pointing to Kenilworth Avenue, she then told him, “You need to get my phone. He threw my phone into the street. . . . And he‘s got my keys. You need to get my keys.” The officer then asked “how he got the keys,” to which she responded, “He snatched them from me.” Sergeant Parson then called another officer over to conduct a “more thorough interview.” A third officer later recovered keys from the man at the scene, whom Sergeant Parson identified at trial as the appellant, Andrew Wills. According to Sergeant Parson, the woman at the scene described herself as Mr. Wills‘s wife, though her name was never introduced into evidence.
The trial court found Mr. Wills guilty of attempted second-degree theft and assault.4 The court first determined that Mr. Wills was the person who committed the assaults described by Ms. Silas and the anonymous 911 caller. The court then also found, based on Sergeant Parson‘s recounting of the complainant‘s statements, that Mr. Wills took his wife‘s keys with the intent to deprive her of those keys. Mr. Wills timely appealed.
II.
Mr. Wills contends that the admission of his wife‘s statement that he “snatched” her keys violated his constitutional right to confrontation.5 The Confrontation Clause “guarantees a defendant‘s right to confront those who bear testimony against him,” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (internal citations and quotation marks omitted), and ensures that he has a “full and fair opportunity” to challenge the evidence against him through adversarial cross-examination of the government‘s witnesses. Delaware v. Fensterer, 474 U.S. 15, 22 (1985). It is not enough for the government to present reliable evidence; the Confrontation Clause requires that “reliability be assessed in a particular manner: by testing in the crucible of cross- examination.” Crawford v. Washington, 541 U.S. 36, 61 (2004). The protection is thus procedural, reflecting the Framers’ judgment “about how reliability can best be determined” to ensure fairness in the criminal justice system. Id.
As the U.S. Supreme Court has interpreted it, the Confrontation Clause bars admission of “testimonial” out-of-court statements unless the witness testifies at trial or the witness is unavailable and the defendant has had prior opportunity for cross-examination. Id. at 68. In the consolidated cases Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), which both involved the admissibility of the complainant‘s out-of-court statements about a domestic dispute, the Supreme Court held that statements are nontestimonial “when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Statements are testimonial, however, “when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822.
Mr. Wills‘s trial counsel never argued to the trial court that the complainant‘s statements were testimonial and that they should be excluded on Confrontation Clause grounds. He objected to the statements’ admission, but only on hearsay grounds, prompting a discussion about whether they were admissible as excited utterances and ultimately a ruling by the trial court that they were. Because Mr. Wills‘s trial counsel argued only that the complainant‘s statements were inadmissible hearsay, we apply a plain-error standard of review to his constitutional claim. Long v. United States, 940 A.2d 87, 91 (D.C. 2007); Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006). Under that standard, Mr. Wills must show error that is plain, that affected his substantial rights, and that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Guevara v. United States, 77 A.3d 412, 418 (D.C. 2013).
A. Error
Here, the complainant did not testify at trial and Mr. Wills did not have prior opportunity to cross-examine her, so Mr. Wills‘s Confrontation Clause claim turns on whether the complainant‘s statement that he “snatched” her keys was “testimonial” under Crawford. In assessing the testimonial nature of statements made when police respond to an emergency call for help, we “objectively evaluate” the circumstances and “the statements and actions of both the declarant and [the] interrogators,” and we consider these circumstances from the perspectives of both parties to the interrogation. Michigan v. Bryant, 562 U.S. 344, 359, 367 (2011).
Turning first to Sergeant Parson‘s actions and the events from his viewpoint, the record is silent as to whether the officer knew what the 911 callers had reported as he drove to the gas station within minutes of receiving a call about an assault in progress. When he arrived, by all indications the incident was over, and the evidence did not suggest that the scene he arrived to was volatile or chaotic. Sergeant Parson had the support of at least two other officers who arrived in marked cruisers at the same time he did, he testified that there were “people coming and going from the gas station that didn‘t pay much of a mind,” and he immediately sepa-
Sergeant Parson‘s first question to the complainant - was she okay? - was the sort that in some circumstances might be directed at a possible emergency. Andrade v. United States, 106 A.3d 386, 390 (D.C. 2015) (noting that questions “such as ‘Are you hurt?‘; ‘Do you need medical attention?‘; ‘Was a weapon involved?‘; or ‘Did he say anything about coming back or about harming anyone else?‘” are “questions specifically directed at possible emergencies“). Yet any prospect that Sergeant Parson would need to act to protect the complainant or seek medical treatment on her behalf faded when she said - and he saw - she was okay. The officer‘s next question - how did the man get the keys? - seems a straightforward investigative inquiry, a “natural way[] for an investigating officer to try to ‘establish or prove past events potentially relevant to later criminal prosecution.‘” Id. (quoting Davis, 547 U.S. at 822).
The government contends that Sergeant Parson‘s question about how Mr. Wills got his wife‘s keys evinced an attempt to assess “whether or not appellant was lawfully in possession of the keys or whether appellant had some sort of weapon that he used to take possession of the keys - rather than preparation for a future criminal prosecution.” Setting aside that Sergeant Parson never described the purpose of his questioning that way,7 this observation actually bolsters Mr. Wills‘s position given the absence of any reason to think Mr. Wills was armed. See Andrade, 106 A.3d at 389 (rejecting the government‘s unsubstantiated argument that the officer did not know “whether weapons had been involved” and thus “needed to get an account
Considering the complainant‘s actions and statements and the situation from her perspective, her matter-of-fact answers to the officer‘s questions - that yes she was okay, that Sergeant Parson “need[ed] to get [her] phone” and “need[ed] to get [her] keys,” and that Mr. Wills had snatched her keys - do not suggest an emergency was under way. On the contrary, the complainant‘s statement that Mr. Wills had taken her property was a straightforward reporting of a past event that police had a duty to investigate. See Hammon, 547 U.S. at 830 (“[I]nvestigat[ing] a possible crime . . . is, of course, precisely what the officer should have done.“). The government argues that the fact that the complainant said nothing to the police about the assault against her shows that she was “merely attempting to gain the police‘s assistance to leave a volatile situation,” not “attempting to make a record for a future trial.” The more objective (and less speculative) relevance of that omission to the Confrontation Clause analysis, however, is that it tends to show that the complainant was not specifically seeking physical protection or medical assistance when she was responding to the officer‘s questions. See Andrade, 106 A.3d at 391 (“[The complainant] did not request medical assistance, ask the police to take any other emergency steps, or communicate any other information indicating that there was an ongoing emergency. Rather, [she] simply described the circumstances of the earlier incident.” (citations omitted)). As Sergeant Parson pointed out, another officer promptly conducted “a more thorough interview” - an interview that was not introduced at trial and that the government in its brief concedes “potentially would have been closer to the ‘testimonial’ line.” The government is not contending, therefore, that Mr. Wills‘s wife never mentioned the assault to police on the scene, only that she did not mention it at the outset to Sergeant Parson. Moreover, the government‘s acknowledgement that the second officer‘s interview may have produced testimonial statements is telling given that it was conducted in the immediate wake of the statement at issue in this appeal and inevitably shared most if not all of the hallmarks of the initial questioning.
The circumstances of this case most relevant to the Confrontation Clause analysis replicate those in the Supreme Court‘s decision in Hammon. In Hammon, when police arrived at the home of Hershel and Amy Hammon after a report of a “domestic disturbance,” they found Amy on the front porch - appearing “somewhat frightened” but telling police that “nothing was the matter” - and Hershel in the kitchen. 547 U.S. at 819. They also saw, in the corner of the living room, a gas heating unit with pieces of glass on the floor in front of it and flames coming out of the front of the unit. Id. Hershel told police that he and Amy had been in an argument but that “everything was fine now” and that it “never became physical.” Id. When another officer went to the living room to talk to Amy, Hershel “made several attempts to participate in Amy‘s con- versation
The Supreme Court held that it was “entirely clear” from these circumstances “that the interrogation was part of an investigation into possibly criminal past conduct.” Id. at 829. In reaching that conclusion, the Court emphasized several circumstances that are also present here: though Hershel Hammon was present, there was “no emergency in progress,” there was “no immediate threat to [the complainant‘s] person,” and the complainant told police she was all right. Id. at 829-30. The officer‘s questions - like Sergeant Parson‘s question here about how Mr. Wills got the keys - sought to determine “what happened” rather than “what is happening.” Id. at 830. Here, as in Hammon, the complainant‘s statement “took place some time after the events described were over” and “deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed.” Id. “Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” Id. (emphasis omitted).
The government contends that Hammon is distinguishable because the police there saw no emergency in progress or immediate threat to the complainant. But we have already concluded the same is true here. Noting that Amy Hammon had assured police that everything was fine, id. at 819, the government also suggests that Amy‘s statements were more deliberate and that more time passed before she uttered them. The cases are factually more alike than the government allows, however. Mr. Wills‘s wife also told police that she was okay. And the interrogation in both cases took place on the scene not long after the offense each complainant was describing. When the Supreme Court noted that “Amy‘s narrative of past events was delivered at some remove in time from the danger she described,” its focus was more on the fact that the incident was over than that it was long over. Id. at 832; see id. at 830 (noting that Amy Hammon‘s statement “took place some time after the events described were over“); see also, e.g., id. at 829 (noting that when police arrived, they “heard no arguments or crashing and saw no one throw or break anything“). Several factual differences only paint the situation in Hammon as more potentially volatile than that here. Unlike in Hammon, for example, where Hershel Hammon was angry and trying to interfere with the officer‘s questioning of his wife, the record here is devoid of evidence that Mr. Wills was disruptive or dangerous. And Amy Hammon‘s statements that “nothing was the matter” and that “things were fine” were less than reassuring when there were flames coming out of the broken heating unit and pieces of glass strewn about the living room floor. Id. at 819, 830.
And finally, the statements that the Supreme Court found to be testimonial in Hammon were not more deliberate than
“Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial.” Bryant, 562 U.S. at 358. In our recent decision in Andrade v. United States, that constitutional objective was evaded where the police, having arrived at the scene less than five minutes after receiving a 911 call about a domestic assault, promptly asked a crying and still upset complainant what had happened. 106 A.3d at 387-88. The “relatively informal” nature of the police questioning in Andrade did not preclude the complainant‘s statements in response to that questioning from being deemed testimonial, id. at 389, 391, 393, and it does not preclude us from reaching the same conclusion based on the comparable interrogation of the complainant here. Sergeant Parson‘s on-the-scene question about “how [Mr. Wills] got the keys” may not have been especially formal, but the complainant‘s response, that Mr. Wills “snatched” her keys from her, shares with Hammon and Andrade the critical characteristic that it deliberately reported - in response to a police officer‘s question - how a “potentially criminal past event[]” occurred.
The government contends that this court‘s decision in Frye v. United States, 86 A.3d 568 (D.C. 2014), establishes that the complainant‘s statement was not, in fact, testimonial. But as the Supreme Court has made clear, whether a statement is nontestimonial - that is, made in response to an ongoing emergency - is a “highly context-dependent inquiry,” Bryant, 562 U.S. at 363, and the context in which the complainant in Frye made her statements differs markedly from that in this case.8 After receiving a call from a child about an assault involving the child‘s parents, the police in Frye arrived at the house to find five children downstairs and a man and a woman a foot apart at the top of the stairs shouting at each other as the woman backed away nervously and the man paced back and forth with his fist clenched up. 86 A.3d at 569. Though the police separated the pair, they were still close to each other when an officer asked the complainant what hap-
Most of the facts the court in Frye deemed critical to its determination that the complainant‘s statements to police were not testimonial are not present here - specifically, that the officers arrived to find a “heated dispute” still in progress, that the situation was “fluid and somewhat confused,” id. at 571-72 (quoting Bryant, 562 U.S. at 377), that there were five children in the house who were possibly in danger or in need of “assistance from a social services agency,” and that the complainant had visible injuries that required medical treatment, id. at 572-73. Although the court in Frye also relied upon the complainant‘s distraught condition, Frye, 86 A.3d at 572; see also Davis, 547 U.S. at 818, and here, Mr. Wills‘s wife was likewise crying and upset, the complainant‘s demeanor took on more significance in Frye where a still active quarrel required officers to “clarify what exigencies . . . existed requiring immediate action,” and where officers had not “completely subdued” the suspect even by the time they led him out of the house, 86 A.3d at 572-73 (noting that the man “kicked luggage and other items on the way out“). In cases lacking such confusion, evidence that a complainant was distressed has not defeated a Confrontation Clause claim. In Andrade, for example, the complainant‘s visible distress was insufficient to render her statements nontestimonial when “a number of considerations point[ed] in the opposite direction.” 106 A.3d at 389. Here, as in Andrade, “[t]he conclusion that the questioning in Frye had the primary purpose of addressing an ongoing emergency thus does not support the same conclusion in the present case.” Id. at 393; see also Hammon, 547 U.S. at 819, 832 (holding that the “somewhat frightened” complainant‘s on-the-scene statements were testimonial).
Considering the totality of the circumstances in this case, we are persuaded that Sergeant Parson did not ask his question about “how [Mr. Wills] got the keys” for the primary purpose of enabling police to deal with an ongoing emergency, and Mr. Wills has therefore satisfied the first prong of the plain error test by demonstrating that the complainant‘s statement in response to that question was testimonial for purposes of the Confrontation Clause.
B. Plainness
We next address whether this error was plain. An error is plain when it is “clear or obvious, rather than subject to reasonable dispute” under current law. In re Taylor, 73 A.3d 85, 99 (D.C. 2013) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). We assess plainness in light of the state of the law at the time of appellate review, not the state of the law at the time of trial. Muir v. District of Columbia, 129 A.3d 265, 267 (D.C. 2016); Taylor, 73 A.3d at 99; see also Henderson v. United States, 568 U.S. 266 (2013) (“[P]lain-error review is not a grading system for trial judges.“).
The government makes no separate and specific argument in its brief about the plainness of the error, but there is no reasonable dispute that the Supreme Court‘s case law - most notably Hammon - compels
No subsequent cases in the Supreme Court or this court have complicated or cast doubt upon the Hammon Court‘s conclusion that the testimonial nature of statements provided in circumstances closely akin to those here is clear-cut. Though the government relies more on our decision in Frye than on the Supreme Court‘s fairly recent decision in Michigan v. Bryant, it is important to note, in assessing plainness, that nothing in the Supreme Court‘s decision in Bryant - which rejected Mr. Bryant‘s claim that the statements of a dying victim of a gunshot wound to a responding police officer were testimonial - purported to change or narrow the Court‘s holding in Hammon. The Court instead took pains to distinguish Hammon on the grounds that the case involved “a neutralized threat,” “a known and identified perpetrator” who was unarmed and had not caused serious injury, and a domestic-violence situation, which often meant “a narrower zone of potential victims than cases involving threats to public safety.” 562 U.S. at 363-64. In each respect, the same is true here.
Our own precedent reinforces Hammon‘s continued bearing on domestic abuse cases where the police had separated the unarmed suspect from the complainant, there was no sign of injury, and the complainant responded to informal on-the-scene police questioning by describing aspects of an incident that had just occurred. Andrade, this court‘s most recent case addressing a Crawford ongoing-emergency question, confirmed the view that Bryant did not change the constitutional landscape in domestic abuse cases such as Andrade and the present case. Andrade, 106 A.3d at 392 (noting that Bryant “distinguished its earlier holding in Hammon” by “explaining that the statements deemed testimonial in Hammon arose in the context of a domestic-violence assault that involved neither a weapon nor serious injury“) (citing Bryant, 562 U.S. at 364). And Andrade‘s distinguishing of Frye, this court‘s other recent ongoing-emergency decision, makes clear that Frye did not signal a more expansive view of what constitutes an ongoing emergency after Bryant, and that its holding stemmed instead from its unique and “very different circumstances.” Id. at 392-93. And while Andrade involved a suspect who had left the scene, Andrade‘s own holding that a complainant‘s statements to police were testimonial under circumstances that were otherwise very similar to this case independently supports Mr. Wills‘s argument that the error here was plain.9 Factually similar cases in other jurisdictions further bolster that conten- tion.
That the ongoing-emergency inquiry is “highly context-dependent” does not preclude a determination that the Confrontation Clause error here is beyond reasonable dispute, as “the ‘plainness’ of the error can depend on well-settled legal principles as much as well-settled legal precedents.” Conley v. United States, 79 A.3d 270, 290 (D.C. 2013); see also Arthur v. United States, 986 A.2d 398, 412 (D.C. 2009) (“[T]rial judges are presumed to know and apply the legal principles enunciated in appellate decisions, and not simply to match factual scenarios, as few cases present the same facts.“); cf. Wiggins v. Smith, 539 U.S. 510, 520 (2003) (explaining, in the federal habeas corpus context, that a court‘s “misappli[cation] [of] a ‘governing legal principle‘” can be grounds for a finding that the court unreasonably applied clearly established law, even where the case involves “a set of facts different from those of the case in which the principle was announced“) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). In this case, the principles and the precedents align. If it was “entirely clear” to the Hammon Court that Amy Hammon‘s statements were testimonial, Hammon, 547 U.S. at 829, it is also clear that the statement at issue here was testimonial. Cf. id. (calling it a “much easier task” to evaluate the testimonial character of Amy Hammon‘s statements “since they were not much different from the statements [the Court] found to be testimonial in Crawford“).
C. Substantial Rights
To establish that this error affected Mr. Wills‘s substantial rights, Mr. Wills must show “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome of his trial.” Thomas v. United States, 914 A.2d 1, 21-22 (D.C. 2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004)). Here, the complainant‘s statement “was the main, if indeed not the only, proof offered by the prosecution,” id. at 22, to establish that Mr. Wills took the property of another with intent to deprive the other of the property, see
The trial evidence included two other references to the complainant‘s keys not mentioned by the judge in her verdict. The anonymous 911 caller who witnessed the incident stated that the perpetrator threw a set of car keys “over onto the highway,” and on cross-examination Ndya Silas disagreed with defense counsel‘s statement that she “didn‘t see keys get taken.”11 Such evidence is far from compelling. Assuming the person the anonymous caller mentioned was Mr. Wills, his statement does not say whose keys they were, how Mr. Wills came to possess them, or to what extent the keys’ owner (if not Mr. Wills) was actually deprived of possession when keys landed in the street. Nor did Ms. Silas‘s testimony add much to this picture, as she did not suggest who took the keys from whom or how they were taken, and she admitted she did not know whose keys they were. Given the government‘s otherwise thin case on theft, we cannot conclude that the erroneous admission of the complainant‘s statement about Mr. Wills “snatch[ing]” her keys was harmless. In re Ty.B., 878 A.2d 1255, 1266 & n.18 (D.C. 2005) (citing Fox v. United States, 421 A.2d 9, 14 (D.C. 1980)). There is at least “a reasonable probability that the Confrontation Clause violation had a prejudicial effect on the outcome” of Mr. Wills‘s trial on the attempted theft charge, Otts v. United States, 952 A.2d 156, 161 (D.C. 2008), and therefore Mr. Wills‘s substantial rights were affected by the constitutional error.12
D. The Fairness, Integrity, or Public Reputation of the Trial
If the first three parts of the plain error test are satisfied, we “exercise [our] discretion to correct the error” when the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Thomas, 914 A.2d at 22 (quoting Johnson v. United States, 520 U.S. 461, 470 (1997)). The government makes no fourth-prong argument in its brief.
In Thomas v. United States and Otts v. United States, this court held that a Confrontation Clause violation did not satisfy the fourth prong of the plain-error test when the trial court erroneously admitted a DEA chemist‘s report that a particular substance was cocaine and there was “no reason whatsoever to believe that the chemist‘s report was unreliable.” Thomas, 914 A.2d at 22-24; Otts, 952 A.2d at 162-63. In contrast, this court has held that when a trial court bases its verdict entirely on officers’ testimony regarding a complainant‘s out-of-court statements, a Confrontation Clause violation “would seriously affect the fairness and integrity of the proceedings.” Drayton v. United States, 877 A.2d 145, 148-49 (D.C. 2005).
Although this is a case-by-case inquiry, Thomas, 914 A.2d at 23, the principle in Drayton informs our analysis here. This is not a case like Thomas, in which the evidence of guilt was “essentially uncontroverted” and “overwhelming.” Thomas, 914 A.2d at 22 (quoting Johnson, 520 U.S. at 470). Without the complainant‘s testimonial statement, the evidence of attempted theft was meager, if not legally insufficient, and to allow a conviction to stand in such circumstances “would seriously call into question the fairness and integrity of these proceedings.” United States v. Bruno, 383 F.3d 65, 80-81 (2d Cir. 2004); United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004). The unfairness of leaving the Confrontation Clause violation without a remedy is more pronounced still where the government‘s proof that Mr. Wills committed the
III.
Having determined that Mr. Wills has satisfied the requirements for plain error, we reverse his conviction for attempted theft and remand to the Superior Court for further proceedings.14 Mr. Wills‘s assault conviction is affirmed.
So ordered.15