from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
K. Steiner (on brief), Assistant State's Attorney,
Burleigh County State's Attorney's Office, Bismarck,
ND, for plaintiff and appellee.
J. Glass (on brief), Bismarck, ND, for defendant and
1] Darrel Froelich appeals from a criminal judgment entered
after a jury found him guilty of simple assault domestic
violence. We affirm the criminal judgment.
2] On February 10, 2016, Froelich was charged with simple
assault domestic violence in violation of N.D.C.C. §
12.1-17-01(1). The State alleged Froelich assaulted his
girlfriend's son-in-law, a household member. The case
proceeded to trial. At trial, the State called the alleged
victim, the alleged victim's wife, the responding
officer, and a 911 operator to testify. According to the
victim's wife, Froelich had been drinking throughout the
day and began acting angry and shouting in the home. The
victim testified Froelich became aggressive and punched a
door as the victim's wife left the home with the
victim's child. The victim testified Froelich came at him
and caused scratches and redness on his face. The victim
testified he raised his arms defensively, but never struck
3] The State planned to call Froelich's former
girlfriend, who made the 911 call, but she did not appear on
the day of trial. The State sought to introduce a recording
of the 911 call, and Froelich objected because the caller was
not in court to testify. After some discussion, the district
court permitted the State to play a recording of the 911 call
after using the 911 operator to lay foundation for the
recording. The State played only a portion of the 911 call
for the jury. In a discussion outside the jury's
presence, the State noted it stopped the recording early so
the jury would not hear the entire call. The State explained,
"the 911 caller does allude to previous acts of Mr.
Froelich beating her at that point and she makes further
comments which we believe may prejudice the defendant in this
matter...." Froelich presented his case after the State
rested. Froelich testified and gave a conflicting account of
events. Froelich testified the victim had been the aggressor,
and the confrontation lasted only ten seconds before the
victim left the home.
4] The jury found Froelich guilty of simple assault domestic
violence. The district court entered a judgment of conviction
on September 16, 2016. Froelich filed a notice of appeal on
October 12, 2016.
5] On appeal, Froelich argues the admission of a portion of
the 911 call violated his Sixth Amendment right to confront
witnesses. The State argues admission of the 911 call did not
violate Froelich's constitutional rights because the
statements were not testimonial. The State asserts that if
this Court concludes admission of the call violated
Froelich's rights under the Confrontation Clause of the
Sixth Amendment, it amounted to harmless error.
6] The Confrontation Clause of the Sixth Amendment to the
United States Constitution, applicable to the States through
the Fourteenth Amendment, states: "In all criminal
prosecutions, the accused shall enjoy the right... to be
confronted with the witnesses against him." U.S. Const.
amend. VI. "Our standard of review for a claimed
violation of a constitutional right, including the right to
confront an accuser, is de novo." State v.
Blue, 2006 ND 134, ¶ 6, 717 N.W.2d 558.
7] Although caselaw had previously focused on the reliability
of statements made by the unavailable declarant, the right to
confront witnesses guaranteed under the Sixth Amendment was
redefined in Crawford v. Washington, 541 U.S. 36
(2004). Blue, 2006 ND 134, ¶ 7, 717 N.W.2d 558.
"Under Crawford, the admission of out-of-court
testimonial statements in criminal cases is precluded, unless
the witness is unavailable to testify and the accused has had
an opportunity to cross-examine the declarant."
Id. at ¶ 8 (citing Crawford, 541 U.S.
at 59). Under N.D.R.Ev. 804(a)(5), a declarant can be
considered unavailable as a witness if the declarant is
"absent from the trial or hearing and the
statement's proponent has not been able, by process or
other reasonable means, to procure" his or her
attendance at trial. The record indicates the State intended
to call the declarant, but she simply refused to testify. The
State did not attempt to qualify the declarant as
"unavailable" under the North Dakota Rules of
Evidence at trial. The record also indicates Froelich did not
have an opportunity to cross-examine the declarant. Thus, the
central inquiry is whether the portion of the 911 call played
for the jury was testimonial.
8] This Court discussed what the United States Supreme Court