Alton Nelson Wilder (“Wilder”) appeals his conviction for grand larceny, in violation of Code § 18.2-95. On appeal, Wilder contends that the trial court erred in admitting a 911 tape recording into evidence, claiming that (1) the tape recording was inadmissible hearsay and (2) its admission violated his Sixth Amendment right to confrontation. Wilder further contends that the evidence adduced at trial was insufficient to sustain his conviction. For the following reasons, we disagree with Wilder’s first contention but agree with his second contention, and we, therefore, reverse his conviction.
BACKGROUND
“ ‘On appeal, we construe the evidence in the light most favorable to the Commonwealth,
Around 7:20 p.m. on November 12, 2007, the Norfolk police received a 911 call from Joe Madison (“Madison”), a homeless man who slept in the woods behind a stockyard owned by B&H Sales Corporation. The stockyard was located on Hampton Boulevard in the City of Norfolk. The exchange between Madison and the dispatch operator was as follows:
[Operator]: Norfolk 911, what is your emergency?
[Madison]: I saw two guys break into this company, B&H Concrete, over here on 24th and Hampton Boulevard. They are pushing a—what do you call it—dumpster things full of material which they stole when they broke inside the fence over here, so I’m going to have—they are en route to Lambert’s Point down 25th Street. If the police was to come right now, they would—because that can’s mighty heavy. They struggling [sic] with it.
[Operator]: Okay. You’re talking to—what is that?
[Madison]: That’s D&H—
[Operator]: D&H Concrete?
[Madison]: Right. Uh-huh.
[Operator]: And they are trying to push a bin away?
[Madison]: Yeah. Un-huh. They came up here with a been [sic] from somewhere.
[Operator]: Uh-huh.
[Madison]: They broke in—they got this gate back here in the very back.
[Operator]: Two black males?
[Madison]: Huh?
[Operator]: Is it two males?
[Madison]: Yes, it’s two males. One is wearing yellow— like, a, yellow shirt, blue jeans. The other one looks like he’s wearing a checkered—a black, like, checkered, and he might have had blue jeans. They looked, didn’t see me, because I sleep back here in the woods.
[Operator]: All right. The second one is wearing the checkered shirt?
[Madison]: Looks like a checkered wooly-like type.
[Operator]: Oh, a checkered, like, a flannel jacket?
[Madison]: Yeah. Yeah, black, and, like, his pants might have been black or blue jeans. And if they respond now, they will probably catch them because, like I said, that cart has to be mighty heavy. Because I mean, they were just going any—
[Operator]: Which way are they walking?
[Madison]: They are walking, like, towards Lambert’s Point itself. After, like, you turn off on 27th Street over there by the storage unit.
[Operator]: Um-hmm.
[Madison]: Okay.
[Operator]: All right. Would you care to leave your name or anything?
[Madison]: Well, my name is Joe Madison. I called the company and left my name with them also, but, you know, it’s an answering service.
[Operator]: Okay. Mr. Madison, we have police responding.
[Madison]: Okay. Thank you.
[Operator]: Uh-huh. Bye bye.
Shortly thereafter, Officer J.L. Matthews (“Matthews”) and Detective Eddie Rodriguez (“Rodriguez”) of the Norfolk Po lice Department received a dispatch regarding a theft at a business in the 2400 block of Hampton Boulevard. The dispatch gave a description of the two individuals who were suspected in the theft: “one of the individuals was wearing a yellow shirt with jeans, and the other individual was wearing a checkered-like flannel shirt with jeans.” Matthews and Rodriguez were in the area at the time of the dispatch and responded. Just a few blocks from the stockyard, Matthews and Rodriguez observed two men matching the description given in the dispatch. One of the men was Wilder.
Earl Coleman (“Coleman”), the owner of B & H Sales Corporation, was able to identify the objects found in the container pushed by Wilder and Brooks. Coleman testified that the objects belonged to his tenant, General Dynamics, and that prior to November 12, those objects were sitting beside the office building on Coleman’s property. Coleman also testified that, on November 12, a gate on the property, in close proximity to the stolen objects, was broken and “swung outward.” Coleman estimated that there was “400 pounds worth of stuff in the [container].”
Bruce Johnson (“Johnson”), a facilities manager for General Dynamics, also testified on behalf of the Commonwealth. Johnson identified the stolen objects found in the container as a spotlight from a navy ship, an L-shaped cooling coil, an electric motor, and a sump pump. Johnson testified that General Dynamics was in the process of refurbishing these items so that they could be reinstalled on Navy ships. Johnson testified that the combined value of these objects was approximately $3,900.
Wilder testified on his own behalf. 2 He claimed that, on November 12, 2007, he was on his way home from the pharmacy when he ran into Brooks pushing a large container. According to Wilder, Brooks offered to pay him $20 if Wilder would present his I.D. at the junkyard once they got there. Wilder agreed. However, the junkyard was closed, and they were unable to sell the objects in the container. Wilder testified that he did not know Brooks had stolen the objects and that he never touched the container.
Prior to trial, Wilder made a motion to suppress the 911 tape recording. Wilder argued that the recording was inadmissible hearsay, and, in the alternative, that its admission violated his Sixth Amendment right to confrontation under
Crawford v. Washington,
ANALYSIS
I. Hearsay 4
Wilder argues that the trial court abused its discretion in admitting the 911 tape recording into evidence because the statements contained in the recording constituted inadmissible hearsay that did not fall within any recognized exception to the hearsay rule. We disagree.
We hold that the statements contained in the 911 tape recording satisfy all three requirements of the present sense impression exception to the hearsay rule. In the tape record ing, Madison stated that “they are pushing a—what do you call it—dumpster things full of material.... They struggling [sic] with it.” (Emphasis added). Madison also stated that “they are en route to Lambert’s Point down 25th Street.” (Emphasis added). In addition, Madison described what Wilder and Brooks were wearing at the time: “One is wearing yellow—like, a, yellow shirt, blue jeans. The other one looks like he’s wearing a checkered—a black, like, checkered, and he might have had blue jeans.” (Emphasis added). Because they were made in the present tense, it is clear that these statements accompanied the acts they described, satisfying the contemporaneous requirement of the present sense impression exception.
Nevertheless, Wilder argues that Madison “was describing a past crime” and that “[h]is comments did not have the indicia of truth to get past [his] hearsay objection.” While it is true that some of Madison’s statements described past events, that fact, by itself, does not render the present sense impression exception inapplicable. “The ‘circumstantial guarantee of trustworthiness’ of this exception is found in the contemporaneousness and spontaneousness of such statements.” Friend,
supra,
§ 18-20, at 798. “ ‘The trustworthiness of the assertion arises from its timing. The requirement of contemporaneousness,
or near contemporaneousness,
reduces the chance of premeditated prevarication or loss of memory.’ ”
Foley v. Commonwealth,
The remaining requirements of the present sense impression exception are also satisfied. First, it is clear from the record that Madison’s statements in the tape recording explained the act he was observing. Madison was able to describe, in detail, what Wilder and Brooks were doing, what they were wearing at the time, and in what direction they were headed. The record also demonstrates that Madison’s statements in the 911 tape recording were made spontaneously. A spontaneous declaration is “[a] statement that is made without time to reflect or fabricate and is related to the circumstances of the perceived occurrence.” Black’s Law Dictionary 1438 (8th ed. 2004). Here Madison called the Norfolk emergency dispatch to report a crime in progress. His statements described the actions of the perpetrators as they were happening, without time for reflection or fabrication. Thus, we hold the statements contained in the 911 tape recording satisfy the requirements of the present sense impression exception to the hearsay rule and the trial court did not err in admitting them on that basis.
In the alternative, Wilder contends that the 911 tape recording constituted “testimonial hearsay,” and thus violated his Sixth Amendment right to confrontation under the United States Supreme Court’s analysis in
Crawford v. Washington,
“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ”
Davis,
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. They are testimonial 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.
Davis,
Using this definition, the Supreme Court concluded that the 911 call was nontestimonial “[bjecause the caller was not acting as a witness, but rather, was ‘enabl[ing] police assistance to meet an ongoing emergency.’ ”
Caison,
That said, the case before us requires us to discern what the Supreme Court meant when it used the words “ongoing emergency.” To answer that question, we look to the factors the Supreme Court considered in reaching its conclusion in Davis, which can be summarized as follows:
(1) Was the declarant speaking about current events as they were actually happening, “requiring police assistance” rather than describing past events?
(2) Would a “reasonable listener” conclude that the declarant was facing an ongoing emergency that called for [immediate] help?
(3) Was the nature of what was asked and answered during the course of a 911 call such that, “viewed objectively, the elicited statements were necessary to be able to resolve the present emergency” rather than “simply to learn ... what had happened in the past?”
(4) What was the “level of formality” of the interview? For example, was the caller frantic, in an environment that was neither tranquil nor safe?
United States v. Cadieux,
Viewing the facts of this case in light of the framework provided by
Davis,
we agree with Wilder that the statements contained in the 911 tape recording were testimonial in nature. Unlike the caller in
Davis,
Madison was not “calling] for help against a bona fide physical threat.”
For example, in
Caison,
the defendant stabbed the victim in the presence of a witness. After the defendant fled the scene, the witness called 911. At trial, a recording of the call was admitted into evidence over the defendant’s objection. This Court held that the recording was nontestimonial and affirmed the trial court. We stated that the ongoing emergency in that case was “manifested by two sources of distress: [the victim’s] life-threatening condition and the present and proximate danger that appellant, a potentially armed assailant who had stabbed [the victim] and fled into the neighborhood, would return to the scene.... ”
Caison,
Similarly, in
Proctor,
the defendant’s brother, Yogi, called 911 to report that the defendant had taken a gun from his car, fired it into the ground, and then fled into a nearby nightclub. During the call, Yogi indicated that the defendant was a convicted felon, who was possibly high on cocaine. At trial, a recording of the 911 call was admitted into evidence over the defendant’s objection. The Court of Appeals for the Fifth Circuit held that the 911 recording was nontestimonial and affirmed the defendant’s convictions. The court found that an armed, potentially dangerous felon, possibly high on cocaine, who ran into a nightclub constituted an ongoing emergency that required police assistance.
Proctor,
In
Cadieux,
the defendant, who was extremely intoxicated, brandished a shotgun during an argument with his girlfriend. When the girlfriend’s daughter returned home, she became concerned and called 911. Eventually, the police arrived and apprehended the defendant, who happened to be a convicted
felon. At trial, a recording of the 911 call was admitted into evidence over the defendant’s objection. On appeal, the Court of Appeals for the First Circuit held that the recording was nontestimonial. The court recognized that “[t]he emergency did not end until Cadieux was apprehended.... ”
Cadieux,
Unlike
Caison,
Proctor, or
Cadieux
the record in this case lacks any evidence to suggest that Wilder posed such a danger to Madison or anyone else.
6
Nor does the recording
Because Madison was not facing an “ongoing emergency,” but was instead merely providing a narrative report of a larceny in progress, we hold that the tape recording of his 911 call was “testimonial” within the meaning of the Confrontation Clause. Thus, its admission violated Wilder’s rights under the Sixth Amendment.
III. Sufficiency of the Evidence
Although we reverse his conviction on constitutional grounds, we address Wilder’s sufficiency argument in order to ensure that a retrial on remand will not violate double jeopardy principles: “If the evidence adduced at trial was insufficient to convict [Wilder], he is entitled to an acquittal; if he is so entitled, a remand for retrial would violate the Constitution’s prohibition against double jeopardy.”
Parsons v. Commonwealth,
At the close of the Commonwealth’s case-in-chief, Wilder made a motion to strike the evidence as insufficient to prove, beyond a reasonable doubt, that Wilder took the stolen property and that the value of the stolen property exceeded $200, the statutory threshold for grand larceny. However, Wilder did not renew this motion at the close of all the evidence. Later, after the jury found Wilder guilty, he made a motion to set aside the verdict, “against the weight of the evidence.” The trial court overruled Wilder’s motion.
We have previously stated that “ ‘a defendant is barred on appeal from challenging the sufficiency of the evidence when he fails to renew his motion to strike the evidence after presenting his case.’ ”
McQuinn v. Commonwealth,
“When considering a challenge to the sufficiency of the evidence on appeal, a reviewing court does not ‘ask itself whether
it
believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ”
Clanton v. Commonwealth,
In this case, the evidence established that Madison observed two men break into a stockyard owned by B&H Sales Corpo
ration and steal a large container of metal, “machinery type” objects. Madison then called 911 and described to the dispatch operator what he observed. Matthews and Rodriguez received this information and located two individuals matching the description given in the dispatch. The individuals, later identified as Wilder and Brooks, were pushing a large bin, containing the stolen machinery. Coleman, the owner of B&H Sales Corporation, was able to identify the stolen property, and Johnson, a tenant of Coleman, testified that the value of the stolen property was around $3,900, well above the statutory threshold. Wilder, a convicted perjurer, testified that he was on his way home from the pharmacy when he encountered Brooks pushing a cart and agreed to help Brooks sell the cart’s contents for scrap at the junkyard. Though Wilder’s testimony provided an alternative account of his involvement, the jury was free to reject Wilder’s testimony and find him guilty.
As
fact finder, the jury “is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.”
Marable v. Commonwealth,
CONCLUSION
Although the 911 tape recording was admissible under the present sense impression exception to the hearsay rule, we hold that the recording was testimonial under the United States Supreme Court’s analysis in Davis, and its admission violated Wilder’s Sixth Amendment right to confrontation. Therefore, we reverse Wilder’s conviction and remand for a new trial should the Commonwealth be so advised. 7
Reversed and remanded.
Notes
. Wilder had his arm in a sling due to a recent shoulder injury. However, Matthews testified that Wilder was pushing the container with his free arm.
. Wilder acknowledged during direct examination that he had previously been convicted of perjury.
. The trial court never explained its rationale for admitting the 911 tape recording. Following the arguments of both counsel, the trial court simply stated: "I think the evidence is proper. I overrule your motion.”
. We first address the evidentiary issue raised regarding the admissibility of the out-of-court statement because of the principle that appellate courts "do not reach constitutional issues in the absence of the necessity of deciding them.”
Three Affiliated Tribes v. Wold Engineering,
. It is important to note that while the Supreme Court relied on these factors in assessing whether the 911 call in Davis was testimonial, the Court did not assign them any individual weight. Therefore, the presence or absence of one or more factors is not necessarily dispositive.
. Courts from other jurisdictions have held that dangers to the public constitute an "ongoing emergency” for purposes of the
Davis
analysis.
See Key v. State,
. The issue this Court must resolve in a case such as this is whether the evidence
actually presented
is sufficient as a matter of law, not whether the evidence that should have been presented is sufficient. As the
United States Supreme Court explained in
Lockhart v. Nelson,