738939MAJ
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                    Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       73893-9
Title of Case:       State of Washington V Adrian Martell Davis
File Date:           05/12/2005
Oral Argument Date:  09/14/2004


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court,
            County
            Honorable Jay V White


                                    JUSTICES
                                    --------
Authored by Faith Ireland
Concurring: Barbara A. Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Gerry L Alexander
            Susan Owens
            Tom Chambers
            Mary Fairhurst
Dissenting: Richard B. Sanders


                                COUNSEL OF RECORD
                                -----------------
Counsel for Petitioner(s)
            Nancy P Collins
            Washington Appellate Project
            1511 3rd Ave Ste 701
            Seattle, WA  98101-3635

Counsel for Respondent(s)
            Julie Dee Cook
            Attorney at Law
            W 554 King Co Cthse
            516 3rd Ave
            Seattle, WA  98104-2385

            Prosecuting Atty King County
            King Co Pros/App Unit Supervisor
            W554 King County Courthouse
            516 Third Avenue
            Seattle, WA  98104

            James Morrissey Whisman
            King County Prosecutor's Office
            516 3rd Ave Ste W554
            Seattle, WA  98104-2362

Amicus Curiae on behalf of WASHINGTON ASSOCIATION OF CRIMINAL DEFENSE ATTORNEYS
            Scott Carter-Eldred
            Attorney at Law
            2600 Century Sq
            1501 4th Ave
            Seattle, WA  98101-3225

            Suzanne Lee Elliott
            Attorney at Law
            Ste 1300 Hoge Bldg
            705 2nd Ave
            Seattle, WA  98104-1741

            Jeffrey L Fisher
            Attorney at Law
            1501 4th Ave Ste 2600
            Seattle, WA  98101-1664

Counsel for Other Parties
            Jason Brett Saunders
            Washington Appellate Project
            1511 3rd Ave Ste 701
            Seattle, WA  98101-3635


IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             )
                                                 )
               Respondent,                       ) No. 73893-9
                                                 )
          v.                                     ) En Banc
                                                 )
ADRIAN MARTELL DAVIS,                            ) Filed May 12, 2005
                                                 )
Appellant.                                       )
                                                 )

     IRELAND, J.*-This case requires us to determine whether the admission
of a 911 call violated the defendant's Sixth Amendment right to
confrontation under the United States Supreme Court's recent decision in
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).  We hold that emergency 911 calls should be assessed on a case-by-
case basis and that the statements made should be individually evaluated
for admissibility in light of the confrontation clause.  We hold that
overwhelming untainted evidence supports Adrian Davis's conviction and that
any error in admitting "testimonial" statements without cross-examination
was harmless beyond a reasonable doubt.
The defendant also claims that the jury instructions were fatally flawed
because the element that raises the crime of domestic violence violation of
a court order from a misdemeanor to a felony was not included in the "to
convict" instruction, but rather was placed in a special interrogatory.  We
hold that such bifurcation is constitutionally permissible where the
legislature has created a statutory framework that establishes a base crime
and provides for elevated penalties upon proof of an additional fact as
determined by a unanimous jury.  We therefore affirm the Court of Appeals.
FACTS
 On February 1, 2001, Michelle McCottry called 911.  McCottry hung up
before speaking to anyone.  The 911 operator called McCottry back and asked
her what was happening.  McCottry was hysterical and crying as she
responded, "He's here jumpin' on me again." Ex. 2 (911 audiotape).  The 911
operator asked who McCottry was referring to, what his relationship to her
was, and whether he had been drinking.  McCottry identified her assailant
as Adrian Davis.  She told the operator that Davis had used his fists to
beat her and that he had left the residence moments earlier.  McCottry
indicated that she had a protective order against Davis.
Police officers Mark Jones and Steve Tamanaha responded within four minutes
of McCottry's call to 911.  They noted that McCottry was still very upset
and had what appeared to be fresh injuries on her forearm and her face.
The officers observed McCottry's frantic efforts to gather her belongings
and her children so that they could leave the residence.
     Davis was charged with one count of felony violation of the provisions
of a domestic no-contact order under RCW 26.50.110(1), (4).  The State's
only witnesses were the two police officers who responded to the 911 call.
Both officers testified that McCottry exhibited injuries that appeared to
be recent, but neither officer could testify as to the cause of the
injuries.  A certified copy of the no-contact order was admitted into
evidence.
     McCottry did not testify.  Although she initially cooperated with the
prosecutor's office, the State was unable to locate McCottry at the time of
trial.  The only evidence linking Davis to her injuries was the tape
recording of the 911 call.1  The defense argued that admission of the 911
tape would violate Davis's right of confrontation, but the court admitted
the tape under the excited utterance exception to the hearsay rule.  At
trial, the court denied the request of Davis's counsel for a missing
witness instruction concerning McCottry.
The "to convict" instruction told the jury to convict Davis of domestic
violence violation of a court order if the State proved each of the
following elements beyond a reasonable doubt:
(1) That on or about February 1, 2001 the defendant willfully had contact
with Michelle McCottry;

(2) That such contact was prohibited by a no-contact order;

(3) That the defendant knew of the existence of the no-contact order;

(4) That the acts occurred in the County of King.

Clerk's Papers at 21 (Instruction 9).

Instruction 12 directed the jurors to use the special verdict form only if
they found the defendant guilty of the crime of violation of a no-contact
order.  The special verdict form asked if Davis's conduct that constituted
a violation of the no-contact order was an assault.  In order to answer the
special verdict form in the affirmative, the jury was instructed to be
unanimously satisfied beyond a reasonable doubt that "yes" was the correct
answer.  These instructions followed the Washington Pattern Jury
Instructions.  See 11 Washington Pattern Jury Instructions:  Criminal
36.51, 36.54-36.55 at 182-83, 187-89 (2d ed. Supp. 1998) (WPIC).
Davis did not object to the jury instructions, but he did take exception to
the court's refusal to give his proposed missing witness instruction.  The
jury rendered a general verdict of guilty and answered "yes" to the special
verdict form.
On appeal, the Court of Appeals rejected Davis's confrontation clause
argument.  Relying on Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L.
Ed. 2d 597 (1980), the Court of Appeals held that the trial court properly
classified the 911 call as an excited utterance, which is a firmly rooted
exception to the hearsay rule and thus satisfies the requirements of
reliability.  The court also rejected Davis's arguments that the trial
court erred in refusing the missing witness instruction and in placing the
assault element in a special interrogatory rather than placing it in the
"to convict" instruction.  State v. Davis, 116 Wn. App. 81, 64 P.3d 661
(2003).
     This court granted review and initially consolidated the case with
State v. Mills, No. 73894-7 (Wash. Apr. 28, 2003), because the primary
issue in each case was the propriety of the "to convict" jury instruction.
The cases were argued on November 19, 2003.
     Before this court issued an opinion in this case and the Mills case,
the United States Supreme Court issued its opinion in Crawford, which
altered confrontation clause analysis.  The Crawford court held that an out-
of-court "testimonial statement" of a witness is inadmissible unless the
witness is unavailable and the defendant has had a prior opportunity to
cross-examine him or her.  On April 30, 2004, Davis filed a motion for oral
argument in light of Crawford.  The State also requested oral argument.
     We granted the parties' requests for additional briefing and argument
on the issues raised by Crawford.  After rehearing, we deconsolidated the
Davis and Mills cases and treated them as companion cases, issuing a
separate opinion in each case.
ISSUES

1.  Did the trial court err in admitting Michelle McCottry's conversation
with the 911 operator?

2.  Did the trial court err in placing the element that raises the crime
from a misdemeanor to a felony in a special verdict form rather than in the
"to convict" instruction?

ANALYSIS
Confrontation Clause
The Sixth Amendment confrontation clause provides:  "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him."  U.S. Const. amend. VI.  The Crawford court
held that the confrontation clause "does not bar admission of an
unavailable witness's statement against a criminal defendant if the
statement bears 'adequate "indicia of reliability."'"  541 U.S. at 40
(quoting Roberts, 448 U.S. at 66).  Under Roberts, adequate reliability
could be inferred when the statement either (1) falls within a firmly
rooted hearsay exception or (2) contains particularized guaranties of
trustworthiness.  448 U.S. at 66.
In Crawford, the Supreme Court overturned the Roberts' rule that an out-of-
court statement was admissible as evidence without confrontation as long as
it fell within a firmly rooted hearsay exception or carried other indicia
of trustworthiness and reliability, stating that "the {Roberts'} framework
is so unpredictable that it fails to provide meaningful protection from
even core confrontation violations."  541 U.S. at 63.
The Crawford court began by examining the historical background of the
confrontation clause:
The common-law tradition is one of live testimony in court subject to
adversarial testing, while the civil law condones examination in private by
judicial officers.

Nonetheless, England at times adopted elements of the civil-law practice.
Justices of the peace or other officials examined suspects and witnesses
before trial. These examinations were sometimes read in court in lieu of
live testimony . . . .

Id. at 43 (citation omitted).
From its examination of the history of the confrontation clause, the Court
gleaned two overriding principles: (1) the primary purpose of the
confrontation clause was preventing the civil law mode of criminal
procedure, particularly the use of ex parte examinations as evidence
against the accused; and (2) the Framers would not have allowed the
admission of the testimonial statements of a witness who did not appear at
trial unless he or she was unavailable to testify and the defendant had a
prior opportunity for cross-examination.  Id. at 47-48, 53-54.
The Court declined to spell out a comprehensive definition of
"testimonial."  But it did give several examples of the types of statements
at the core of the definition, including prior testimony at a preliminary
hearing, before a grand jury or at a former trial, and police
interrogations.  "These are the modern practices with closest kinship to
the abuses at which the Confrontation Clause was directed."  Id. at 68.
The Court also explained that "testimony," is typically defined as "'{a}
solemn declaration or affirmation made for the purpose of establishing or
proving some fact.'"  Id. at 51 (quoting 1 Noah Webster, An American
Dictionary of the English Language (1828)).  "An accuser who makes a formal
statement to government officers bears testimony in a sense that a person
who makes a casual remark to an acquaintance does not."  Id.  The text of
the Sixth Amendment and the history underlying the common-law right of
confrontation reflect "an especially acute concern with a specific type of
out-of-court statement."  Id.
In the Crawford case, Michael Crawford was charged with assault and
attempted murder.  Id. at 40.  After his wife, Sylvia, was given Miranda2
warnings, she was questioned.  Id.  "Sylvia Crawford made her statement
while in police custody, herself a potential suspect in the case. . . .  In
response to often leading questions from police detectives, she implicated
her husband in {the} stabbing and at least arguably undermined his self-
defense claim."  Id. at 65.  She did not testify at trial because of the
marital privilege.  Id. at 38.  Instead, a tape recording of her statement
was played to the jury at the defendant's trial.  Id. at 40.  The Supreme
Court held that Sylvia's recorded statement was testimonial and thus
inadmissible because it had not been subject to cross-examination.
A statement may be testimonial by virtue of the manner or mode of its
making.  For example, Sylvia Crawford's in-custody, tape-recorded statement
taken by police officers was deemed "testimonial under even a narrow
standard."  Id. at 52.  Police interrogations are very similar to
examinations by justices of the peace, who had essentially investigative
and prosecutorial functions.  Interrogations by law enforcement officers
fall squarely within the classification of testimonial statements.  Id. at
53.
     On the other hand, Crawford allows that "not all hearsay implicates
the Sixth Amendment's core concerns."  Id. at 51.  An offhand, overheard
remark, although perhaps objectionable under hearsay rules, "bears little
resemblance to the civil-law abuses the Confrontation Clause targeted."
Id.  Further, even testimonial statements may be admitted if offered for
purposes other than to prove the truth of the matter asserted.  Id. at 60
n.9.
The primary issue in the present case is whether McCottry's 911 call
constitutes a "testimonial" statement under the Crawford analysis.  The
context of a 911 call presents a more complex scenario than the in-custody,
Miranda-warned interrogation by police officers at issue in Crawford.
Sylvia Crawford's statement was given during a custodial examination, which
the Crawford court indicated fell within even a narrow definition of
testimonial.
Generally, an emergency 911 call is not of the same nature as an in-custody
interrogation by police.  Such an emergency call is not the functional
equivalent of uncross-examined, in-court testimony.  Even though a call to
911 involves personnel associated with the police, the 911 operator is not
a police officer.  Moreover, the purpose of the call is generally not to
"bear witness."  The call must be scrutinized to determine whether it is a
call for help to be rescued from peril or is generated by a desire to bear
witness.
A 911 call is typically initiated by the victim, not the police.  Even
though an emergency 911 call may assist police in investigation or assist
the State in prosecution, where the call is not undertaken for those
purposes, it does not resemble the specific type of out-of-court statement
with which the Sixth Amendment is concerned.
In People v. Corella, 122 Cal. App. 4th 461, 18 Cal. Rptr. 3d 770 (2004),
the court held that admission of a 911 call did not violate the defendant's
right to confrontation, and his conviction for corporal injury to his
spouse was affirmed.  The Corella court determined that the statements made
to the 911 operator were not "'knowingly given in response to structured
police questioning'" and did not have the formal and official quality of
the statements deemed testimonial by Crawford.  18 Cal. Rptr. 3d at 776
(quoting Crawford, 541 U.S. at 53 n.4).
The Corella court further stated that it is difficult to perceive any
circumstances under which a statement qualifying as an excited utterance
would be testimonial.  Id.  The rationale behind the excited utterance
exception to the hearsay rule is that the statement is "made without
reflection or deliberation due to the stress of excitement."  Id.
"{S}tatements made without reflection or deliberation are not made in
contemplation of their 'testimonial' use in a future trial."  Id.  See also
State v. Wright, 686 N.W.2d 295, 302 (Minn. Ct. App. 2004) (victims'
statements to 911 operator seeking help immediately after assault not
testimonial); Beach v. State, 816 N.E.2d 57, 59 (Ind. Ct. App. 2004)
(victim's statement to responding police at scene after assault not
testimonial); State v. Forrest, 164 N.C. App. 272, 596 S.E.2d 22, 27 (2004)
(victim's statements to police upon rescue from defendant nontestimonial).
In most cases, one who calls 911 for emergency help is not "bearing
witness," whereas calls made to the police simply to report a crime may
conceivably be considered testimonial.  It is necessary to look at the
circumstances of the 911 call in each case to determine whether the
declarant knowingly provided the functional equivalent of testimony to a
government agent.  See Richard D. Friedman, Adjusting to Crawford: High
Court Decision Restores Confrontation Clause Protection, 19 Crim. Just.,
Summer 2004, at 4, 10 (whether statements made in calls to 911 operators
are testimonial requires case-by-case assessment).
Amicus Curiae Washington Association of Criminal Defense Lawyers (WACDL)
argues it is common knowledge that 911 calls may be used at subsequent
trials and that McCottry reasonably knew her 911 call would later be used
to prosecute Davis.  Thus, McCottry's call would fit within one of the core
classifications of testimonial hearsay listed in Crawford.  WACDL Br. at 14
(citing Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U.
Pa. L. Rev. 1171, 1196 (2002)).  However, there is no evidence that
McCottry had such knowledge or that it influenced her decision to call 911.
The WACDL further argues that if a 911 call involves a completed event, no
matter how recent, the caller's remarks will be testimonial.  But this
argument fails because it focuses on the reliability traditionally accorded
excited utterances under hearsay rules by virtue of their spontaneity.
Crawford rejected the use of evidentiary rules and "amorphous notions of
'reliability'" in assessing whether the protections of the confrontation
clause have been satisfied.  541 U.S. at 61.  Crawford instructs that for
purposes of Sixth Amendment confrontation, the inquiry is whether the
"witness" was testifying.  As the Crawford court explained, the "principal
evil at which the Confrontation Clause was directed was the civil-law mode
of criminal procedure, and particularly its use of ex parte examinations as
evidence against the accused."  541 U.S. at 50.  McCottry's 911 call cannot
accurately be described as an ex parte examination or its functional
equivalent.
Nor is it accurate to describe the events that occurred during McCottry's
call as "completed."  The fact that the operator determined McCottry did
not need an aid car does not necessarily mean McCottry was out of danger or
that her subsequent responses were then testimonial.  Her 911 call was part
of an ongoing emergency situation.  When the operator called McCottry back,
McCottry was crying and hysterical.  Only in hindsight was it known that
Davis would not reappear and that the assault had ended when he left the
residence.
Davis also contends that this call was not a typical 911 call because
McCottry hung up and the 911 operator called McCottry back.  But the fact
that McCottry hung up does not render the phone call testimonial.  On the
contrary, a hang-up call often signals that the caller is in grave danger,
and the 911 operator must return the call to ensure the caller's safety.
It would be unwise to label 911 hang-up calls as testimonial simply because
the operator must call the victim back to determine the seriousness of the
situation.  Rather, the circumstances and content of the call should be
examined in each case.
     Davis points to the prosecutor's closing argument where McCottry's
call was described as her "testimony."  Report of Proceedings (Sept. 5,
2001) at 55.  According to Davis, in using the word "testimony," the State
essentially admitted that the 911 call was testimonial.  However, the
statement was made before the Crawford decision focused confrontation
clause analysis on the word "testimonial."  Since Crawford, "testimony" has
acquired a specific meaning that should not be attributed to the State pre-
Crawford.
     An emergency 911 call may contain both statements which are
nontestimonial and statements which are testimonial.  In Williamson v.
United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994), the
Court rejected the "whole statement" approach and held that federal courts
should examine proffered hearsay narrative by separating inculpatory
portions from portions which are self-serving and require redaction.  512
U.S. at 603.  We adopted the Williamson holding in State v. Roberts, 142
Wn.2d 471, 494, 14 P.3d 713 (2000).  The Roberts court held that erroneous
admission or exclusion based upon a "whole statement" approach is subject
to harmless error analysis.
     A violation of the confrontation clause is also subject to harmless
error analysis where the error was harmless beyond a reasonable doubt.
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d
674 (1986); State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002).
Under the facts of the present case, McCottry called 911 because of an
immediate danger.  There is no evidence McCottry sought to "bear witness"
in contemplation of legal proceedings.  Nonetheless, certain statements in
the call could be deemed to be testimonial to the extent they were not
concerned with seeking assistance and protection from peril.  However, the
information essential to the prosecution of this case was McCottry's
initial identification of Davis as her assailant.
     To determine whether error is harmless, this court utilizes "the
'overwhelming untainted evidence' test."  Smith, 148 Wn.2d at 139.  Under
that test, where the untainted evidence admitted is so overwhelming as to
necessarily lead to a finding of guilt, the error is harmless.  Id. (citing
State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
     In this case, the officers arrived four minutes after McCottry's 911
call and observed and documented her fresh injuries with photographs that
were introduced into evidence.  The portion of McCottry's 911 call that
identified Davis as her assailant was nontestimonial and properly admitted.
The certified copy of the prior no-contact order was also admitted into
evidence.  Thus, the untainted evidence was overwhelming, and any error in
admitting testimonial statements from the 911 call was harmless beyond a
reasonable doubt.
Preservation of Error
Before addressing the adequacy of the "to convict" instruction, it is
necessary to address the State's argument that Davis waived his right to
challenge the "to convict" jury instruction because he did not take
exception to the instruction at trial.
Although recognizing this court's power to review constitutional errors,
the State argues the alleged error lacked the "manifest" requirement of RAP
2.5(a)(3), which permits a party to raise for the first time on appeal a
"manifest error affecting a constitutional right."  The Court of Appeals
properly rejected this argument.
     The State argues that Davis cannot show practical and identifiable
consequences as a result of the bifurcated element.  But, as we recently
held in State v. Mills,     Wn.2d    , 109 P.3d 415 (2005), the "to
convict" instruction carries special weight because the jury relies on it
as a "yardstick" by which to determine a defendant's guilt or innocence.
Id. at 417.  The issue of omission of an element from a "to convict"
instruction is of sufficient constitutional magnitude to warrant review of
a challenge to the instruction raised for the first time on appeal.
Accordingly, we address the merits of Davis's challenge.
"To Convict" Jury Instruction
Davis argues the bifurcation from the "to convict" instruction of the
assault element, which elevates his base misdemeanor crime to a felony,
unconstitutionally relieved the State of proving the element of assault,
thereby violating his constitutional rights to due process3 and to a jury
trial.4   The State responds by asserting that the jury did find every
element of the crime beyond a reasonable doubt, and that appearance of the
elevating fact in a special verdict form does not deny a defendant due
process, as the practice has been traditionally utilized and approved in
other crimes where an elevating fact increases the statutory penalty.
We recently discussed this issue at length in Mills.  There we held that
where the legislature has established a statutory framework which defines a
base crime that may be elevated to a greater crime if a certain fact is
present, a trial court may, consistent with the guaranties of due process
and trial by jury, bifurcate the elevating fact into a special verdict
form.  As long as the jury is instructed it must unanimously agree beyond a
reasonable doubt before it may affirmatively answer the special verdict,
the constitution is not offended.5  Because the jury unanimously found all
elements necessary to convict Davis, the instructions were sufficient here.
CONCLUSION
     Finding that any error in admitting testimonial statements from
McCottry's emergency 911 call was harmless beyond a reasonable doubt, and
that there was no error in the "to convict" instruction, we affirm the
Court of Appeals.

* Justice Faith Ireland is serving as a justice pro tempore of the Supreme
Court pursuant to Washington Constitution article IV, section 2(a).
1 The tape had been redacted to remove references to a police visit to the
residence two days earlier for a domestic disturbance between Davis and
McCottry.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
3 See U.S. Const. amend. XIV ('{N}or shall any state deprive any person of
life, liberty, or property, without due process of law.'); Wash. Const.
art. I sec. 3 ('No person shall be deprived of life, liberty, or property,
without due process of law.').
4 See U.S. Const. art. III sec. 2 ('The trial of all crimes, except in
cases of impeachment, shall be by jury.'); U.S. Const. amend. VI ('In all
criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury.'); Wash. Const. art. I sec. 21 ('The
right of trial by jury shall remain inviolate.'); Wash. Const. art. I sec.
22 ('In criminal prosecutions the accused shall have the right   to have a
speedy public trial by an impartial jury.').
5 In Mills, however, we emphasized that while such bifurcation is
constitutionally permissible, it is not constitutionally required.  There
would have been no constitutional violation had the trial court in the case
before us provided a single "to convict" instruction that included the
assault element without using the special verdict approach from WPIC 36.54-
36.55.
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