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State v. Froelich

Supreme Court of North Dakota

June 29, 2017

State of North Dakota, Plaintiff and Appellee
v.
Darrell Frank Froelich, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Derek K. Steiner (on brief), Assistant State's Attorney, Burleigh County State's Attorney's Office, Bismarck, ND, for plaintiff and appellee.

          Thomas J. Glass (on brief), Bismarck, ND, for defendant and appellant.

          OPINION

          Kapsner, Justice.

         [¶ 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.

         I

         [¶ 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 Froelich.

         [¶ 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.

         II

         [¶ 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 had ...


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