IN SUPREME COURT
Court of Appeals
Concurring in part, dissenting in part, Page, J.
vs. Filed: July 26, 2007
Office of Appellate Courts
Farah Abshir Warsame,
S Y L L A B U S
A domestic assault victim’s statement concerning an ongoing emergency located outside of the victim’s immediate geographic proximity is nontestimonial for purposes of the Confrontation Clause.
The Minnesota Court of Appeals correctly concluded that three ongoing emergencies existed during a police officer’s interrogation of an alleged domestic assault victim, but the court erred by concluding that all of the victim’s statements were nontestimonial, absent further development of the record.
Affirmed in part, reversed in part, and remanded.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Paul H., Justice.
The state charged Farah Abshir Warsame with one count of domestic assault and one count of making terroristic threats. The charges related to an incident with Warsame’s girlfriend, N.A. At a Rasmussen hearing, the district court concluded that most of N.A.’s statements to the police were inadmissible at trial. The state appealed, and the Minnesota Court of Appeals reversed, concluding that all of the statements were admissible. We denied Warsame’s petition for review. The United States Supreme Court granted Warsame’s writ of certiorari and vacated the court of appeals decision, remanding the case for reconsideration in light of Davis v. Washington, 547 U.S. __, 126 S. Ct. 2266 (2006). Upon remand, the court of appeals again reversed the district court’s ruling. We granted Warsame’s petition for review and affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.
after midnight on October 24, 2004, the Eden Prairie Police Department received
a 911 call from an individual concerning an incident at a neighboring home,
located less than two blocks from the police department. Officer John Wilson responded to the call,
and as he approached the address where the 911 call originated, he encountered
a woman walking in the middle of the street.
She told me that her boyfriend came home. She wanted to talk. He was tired and did not want to talk. They began to argue. And he had gone into the kitchen and grabbed a cooking pot and had struck her in the head with it. And after * * * he hit her, she fell on to the bed, and he then got on top of her and was choking her, and her sisters came up and attempted to get her boyfriend off the top of her. At that time her boyfriend went into the kitchen, got a knife and came back after her and threatened to kill her, chased her from room to room. She affirmed that she was very frightened and believed he was going to kill her.
Sergeant Robert Olson arrived at the scene one to three minutes after
testified that Warsame was not in police custody during the time he was
listening to the exchange between Wilson and N.A. But Olson had learned that another
Olson testified that he remained near Wilson and N.A. for three to five minutes and then went to the home where the assault allegedly occurred. After entering the home, he spoke with one of N.A.’s sisters, I.A., who was apparently present during the alleged assault. Olson stated that he observed a cut on I.A.’s finger, which was not bleeding.
the paramedics arrived to assist N.A.,
N.A. and I.A. failed to respond to subpoenas from the state to testify at
Warsame’s trial, so the state moved to admit their statements to Officer Wilson
and Sergeant Olson. After conducting a Rasmussen hearing where Wilson and Olson
both testified, the district court concluded that N.A.’s initial statement to
Wilson, that her boyfriend beat her up, was not testimonial under Crawford v. Washington, 541 U.S. 36
(2004), but all subsequent statements by N.A. and I.A. were testimonial and
therefore inadmissible because they violated Warsame’s rights under the Confrontation
Clause. With the exception of the
initial statement, the court concluded that the statements N.A. made to
state appealed the district court’s ruling to the court of appeals, arguing
that all of N.A.’s statements were admissible under Crawford. State v. Warsame (Warsame I), 701 N.W.2d 305, 307 (
then filed a writ of certiorari to the U.S. Supreme Court. The Court granted the writ, vacated the court
of appeals decision, and remanded the case to the court of appeals for
reconsideration in light of the Court’s intervening decision in Davis, 126 S. Ct. 2266. Warsame
reconsideration, the court of appeals again concluded that all of N.A.’s
A. Standard of Review
argues that all of N.A.’s statements were testimonial and should therefore be
ruled inadmissible at trial. We generally
will not reverse a district court’s evidentiary rulings absent a clear abuse of
discretion. State v. Caulfield, 722 N.W.2d 304, 308 (
Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right
* * * to be confronted with the witnesses against him.” In Crawford,
the Supreme Court concluded that this clause prohibits “admission of
testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for
B. Recent Case Law
years after its decision in Crawford,
the Supreme Court in two companion cases—Davis/Hammon—was
asked to determine “precisely which police interrogations produce
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.
the Davis case, the Supreme Court
cited four objective factors that indicated the victim’s statements were made
to meet an ongoing emergency: (1) the victim described events as they actually
happened and not past events; (2) any “reasonable listener” would conclude that
the victim was facing an ongoing emergency; (3) the questions asked and answers
given were necessary to resolve a present emergency, rather than only to learn
what had happened in the past; and (4) there was a low level of formality in
the interview because the victim’s answers were frantic and her environment was
not tranquil or safe.
Hammon, the Supreme Court concluded
that all of a domestic assault victim’s statements to the police were
the Supreme Court also observed that during the officer’s questioning of the
victim, the officer was determining what happened,
not what was happening.
2. State v. Wright
a remand from the Supreme Court, we applied the Davis/Hammon principles in State
v. Wright, 726 N.W.2d 464 (
concluded in Wright that the police
interviews were testimonial but that the entire 911 call was nontestimonial.
C. Were N.A.’s Statements Testimonial or Nontestimonial?
is within the context of the foregoing case law that we must determine whether
N.A.’s statements to
1. N.A.’s Initial Statement to the Police
argues that the district court incorrectly concluded that N.A.’s initial,
volunteered statement that her boyfriend beat her up was nontestimonial because
N.A.’s primary concern in making the statement was to supply information
relevant to criminal prosecution.
statements may be testimonial. See Davis/Hammon, 126
2. N.A.’s Subsequent Statements—Was There an Ongoing Emergency?
next consider the statements N.A. made to
Warsame asserts that there was no ongoing emergency during the interrogation because, similar to the facts in Hammon, N.A. was separated from her alleged assailant and had police protection. The state responds by arguing that there were three ongoing emergencies during the interrogation: (1) N.A.’s medical condition; (2) Warsame’s flight; and (3) I.A.’s potential medical condition inside the home. We consider each of these potential ongoing emergencies.
N.A.’s Medical Condition
N.A.’s medical condition, we first note that neither Davis/Hammon nor Wright involved
a victim with potential medical concerns.
But applying the principles articulated in Davis/Hammon, if “the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency,” then N.A.’s statements
are nontestimonial. 126
the objective circumstances of the interrogation indicate that the primary
purpose of at least the initial part of the interrogation was to enable
Warsame’s Flight and I.A.’s Medical Condition
The state also argues that Warsame’s flight from the scene of the alleged assault and I.A.’s potential medical condition inside the house constituted ongoing emergencies. Warsame argues that there were no ongoing emergencies because N.A. was under police protection and Warsame was being pursued as soon as the interrogation began. Warsame further argues that any emergency cannot be expanded beyond N.A.’s situation because Davis/Hammon defines emergency narrowly to include only “an immediate and continuing threat,” not “[p]ossible concerns and emergencies.” We conclude that the Davis/Hammon test should not be interpreted so narrowly.
In effect, Warsame interprets the Davis/Hammon test to circumscribe what may constitute an ongoing emergency to a narrow geographic proximity, based on the declarant’s location. We acknowledge such an interpretation comports with the facts in Davis, Hammon, and Wright, but we conclude that the Supreme Court did not intend to restrict what may constitute an ongoing emergency to such a limited area. For example, in Davis/Hammon, the Court observed that in response to domestic disputes, officers “‘need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’” 126 S. Ct. at 2279 (quoting Hiibel, 542 U.S. at 186); see also 126 S. Ct. at 2276 (stating that in order to resolve a present emergency, law enforcement may have to establish an assailant’s identity “so that the dispatched officers might know whether they would be encountering a violent felon” (citing Hiibel, 542 U.S. at 186)). Although the police in the Hammon case were encountering the alleged assailant at the scene of the crime, where the victim remained, the necessity to assess the assailant and any threat to personal safety is equally applicable when the police are pursuing that assailant outside of the victim’s proximity.
in other jurisdictions have concluded that ongoing emergencies may exist beyond
the declarant’s geographic proximity, even when police are with the declarant
and particularly when a dangerous suspect remains at large.
Court concluded that a witness’s statements were nontestimonial when the interrogating officer did not know where the perpetrator was, whether he was armed, whether the perpetrator might have other targets, and whether the violence might continue elsewhere. 917 A.2d 214, 224-25 (N.H. 2006). The court concluded that such information was necessary for the officer to “address an existing threat to his safety and the safety of others.”
We conclude that extending an emergency beyond the declarant’s geographic proximity comports with the fundamental concern the Supreme Court considered in Davis/Hammon, which was distinguishing between interrogations by the police for the purpose of addressing ongoing emergencies and interrogations for the purpose of gathering evidence for trial. We conclude that if the objective circumstances of the interrogation indicate that the primary purpose is to address an ongoing emergency, regardless of where that emergency is occurring, a declarant’s statements are nontestimonial. In order to meet this standard, the interrogation must relate directly to addressing the emergency. If the interrogator is not eliciting information that may be useful in addressing the ongoing emergency, then it cannot be maintained that the interrogation’s primary purpose is to address that emergency.
Applying the foregoing rules to the facts in this case, we conclude that Warsame’s flight and I.A.’s potential medical condition both constitute ongoing emergencies. Viewed objectively, N.A.’s statements caused the police to address the two other exigencies created by the alleged assault. First, N.A.’s identification of Warsame and her description of the assault enabled Olson to report the suspect’s name and possible weapon to the officers in pursuit, which, as in Kemp and Ayer, provided those officers with more information to better address that situation.
Second, N.A.’s statement revealed that a third party—I.A.—had been cut by a knife during the assault, which information, when viewed objectively, may have caused Olson to enter the house earlier than he would have without that information. N.A.’s statement apparently did not provide insight into the severity of I.A.’s condition, so further investigation was necessary to ensure there was no ongoing medical emergency inside the house. It is objectively reasonable to conclude that an emergency existed in that location until Olson was able to conclude that emergency medical assistance was unnecessary.
objective circumstances under which the interrogation was conducted further
buttress our conclusion that the primary purpose of the interrogation was to
address ongoing emergencies. While
Based on the foregoing analysis, we conclude that the court of appeals correctly concluded that there were three ongoing emergencies while N.A. was being interrogated: (1) N.A.’s medical condition; (2) Warsame’s flight; and (3) I.A.’s medical condition.
3. Did the Ongoing Emergencies End at Some Point?
argues that even if there were ongoing emergencies for purposes of our
Confrontation Clause analysis, those emergencies ended in a short time and did
not last the entire 15- to 20-minute interrogation. As previously noted, an interrogation that
begins for the purpose of determining the need for emergency assistance can
evolve into testimonial statements once that purpose has been achieved. Davis/Hammon,
state has the burden of proving that a particular statement does not violate a
defendant’s Sixth Amendment rights. State v. Burrell, 697 N.W.2d 579, 600 (
on Olson’s testimony, Warsame was not apprehended and I.A.’s condition was
uncertain until just after Olson left Wilson and N.A. But the chronology of facts that N.A. had
given at that point is not clear. The
court of appeals concluded that N.A.’s “narrative account” of the assault
conclude that under the Davis/Hammon primary
purpose test, N.A. made nontestimonial statements up to the point Warsame was
apprehended and Olson verified I.A.’s medical status. The record reflects that Olson’s testimony
about what N.A. said was all nontestimonial, but because
Affirmed in part, reversed in part, and remanded
C O N C U R R E N C E & D I S S E N T
PAGE, Justice (concurring in part, dissenting in part).
While I do not disagree with the court’s remand, I cannot on this record conclude that the state met its burden of showing that there were any ongoing emergencies or that the primary purpose of Officer Wilson’s questioning was to address an emergency and not to establish facts relevant to the future prosecution of Warsame. Therefore, I dissent in part.
Unlike the victims
in State v. Wright, 726 N.W.2d 464 (
It is also
important to point out that, in order for a statement to qualify as
nontestimonial under Davis, the state
must show both that there was an ongoing emergency and that the questions asked
related to that emergency and not to establishing facts necessary for future
Finally, I would note that, unlike Wright, a case in which the victims feared that the defendant would return to the apartment to harm them, 726 N.W.2d at 473-75, there is nothing in the record here that suggests that when N.A. made the statements at issue in response to Officer Wilson’s questions she believed Warsame was still a potential threat to her. Furthermore, once again, there is nothing in the record indicating what specific questions the officers asked with regard to Warsame and thus there is no way to conclude that the primary purpose of their questions was to resolve some ongoing emergency with respect to Warsame.
For these reasons, I concur in the remand, but, unlike the court, am unable on this record to conclude that any of the questions asked by the police had the primary purpose of addressing any ongoing emergencies.
 In State v. Wright, we referred to the Davis v. Washington opinion as Davis/Hammon, and then referred to the
individual cases as Davis and Hammon, for the purpose of avoiding
confusion. 726 N.W.2d 464, 472 n.2 (
 In Davis/Hammon, the Supreme Court defined
“interrogation” broadly, to encompass police questioning in a colloquial
 To the extent that the dissent believes the state failed to demonstrate its burden under Davis/Hammon, we note that the state presented its evidence at the Rasmussen hearing approximately 15 months before the Supreme Court articulated the primary purpose test in Davis/Hammon.
parties argue about whether it is proper to infer that N.A.’s other sister, the
passenger in Warsame’s vehicle, was kidnapped, but the inference is
unnecessary. A high speed pursuit and
apprehension of a potentially dangerous suspect qualifies as an emergency,
regardless of whether a kidnapping is involved.
To the extent that the court of appeals inferred that the car passenger
was in danger, Warsame II, 723 N.W.2d
at 642, we conclude that there must be an objectively reasonable basis in the
record to make such an inference. Here,
the record does not objectively support such an inference because, based on
More generally, Warsame argues that it was improper for the court of appeals to make any inferences that there were other ongoing emergencies based on Wilson’s and Olson’s testimony without explicit evidence. But such a rule would ignore the principle holding of Davis/Hammon, that declarant statements during the course of a police interview are nontestimonial if the primary purpose is to address an ongoing emergency. In the normal course of operation, law enforcement officials must make inferences from witness and victim interrogations to determine whether there are other exigencies that must be addressed. Courts cannot determine whether the primary purpose of an interrogation was to address an ongoing emergency unless the court similarly infers, based on objectively reasonable circumstances in the record, whether the police had an emergency to address.
addition, we note that the state must ordinarily demonstrate that each of the
declarant’s statements pertains to the applicable ongoing emergencies in each
case, and any testimonial statements should be redacted. See
notes that the district court concluded that N.A.’s statements qualified as an
excited utterance, an exception to hearsay.
Warsame argues that this has no impact on the analysis before this
court. We agree. The Supreme Court stated that testimonial
statements are not admissible in court because
they meet a hearsay exception, except dying declarations. Crawford,
The state argues that under the rule of forfeiture,
Warsame waived his right to argue that admission of N.A.’s statements violate
the Confrontation Clause because he cut the phone line, preventing N.A. from
calling 911. First, there is no evidence
in the record to suggest that it was Warsame who cut the phone line. Second, the rule of forfeiture pertains to a
defendant procuring the absence of a witness at trial. Davis/Hammon, 126