June 12, 2009 – State of New Mexico v. Joseph Soliz, No. 28,018

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: June 12, 2009
NO. 28,018
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JOSEPH SOLIZ,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Joel Jacobsen, Assistant Attorney General
Albuquerque, NM
for Appellant
Hugh Dangler, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM
for Appellee

OPINION
VANZI, Judge.
{1} 	This interlocutory appeal follows from the district court’s pre-trial ruling that
Celina Gallegos’s (Gallegos) statements to a 911 operator that Joseph Soliz
(Defendant) had just violently attacked her were inadmissible under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. The district court
appears to have concluded that Gallegos’s statements during the 911 call were
testimonial in nature, pursuant to Davis v. Washington, 547 U.S. 813 (2006), and thus
the transcript of Gallegos’s 911 call is inadmissible under Crawford v. Washington,
541 U.S. 36 (2004). 	We reverse and, without ruling on any other facet of the
admissibility of Gallegos’s statements, hold that her statements during the 911 call are
nontestimonial in nature and thus do not violate Defendant’s rights under the Sixth
Amendment.
BACKGROUND
{2} 	Defendant was indicted by a grand jury in the Third Judicial District Court on
the following four counts: 	one count of aggravated battery against a household
member with a deadly weapon; two counts of aggravated assault against a household
member with a deadly weapon; and one count of battery against a household member.
Defendant was subsequently arraigned and entered a plea of not guilty.

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{3} 	The charges against Defendant stemmed from events occurring on June 25,
2006. On that date, Gallegos (Defendant’s girlfriend and cohabitant) initiated a 911
call from a neighbor’s house and, in the course of that call, reported that Defendant
had just violently attacked her with a heavy metal pole. The seven-page transcript of
that call, which Defendant agreed was authenticated and accurate, is attached as an
appendix to this opinion.
{4} 	Defendant was successfully indicted and scheduled for trial. 	However,
repeated attempts by both the State and counsel for Defendant to contact Gallegos and
secure her participation as a witness in the criminal prosecution of Defendant failed.
As a result, the district court excluded Gallegos as a witness. 	The parties do not
contest this ruling and do not dispute that Gallegos was unavailable.
{5} 	In light of Gallegos’s unavailability, Defendant submitted two separate motions
in limine. 	The motions are premised on a single underlying legal assertion: 	that
Gallegos’s statements during the 911 call are testimonial, as defined in Davis, and thus
the transcript in its entirety is inadmissible pursuant to Crawford. During the hearing
on the first motion, the State maintained that the transcript was admissible up to page
five, up to the point at which Gallegos provides the 911 operator a call-back number.
Up to that point, the State claimed that Gallegos’s statements concerned an ongoing
emergency and thus were nontestimonial and posed no Confrontation Clause problem.

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The State was unconcerned with the portions of the transcript following page five as,
the State contends, it contains mere “repetition.” The district court ruled that it would
“allow the admission of the [911] tape up to page five” and set a hearing for argument
concerning further redaction of the content of those five pages.
{6} 	During the second hearing, Defendant reasserted his objection, citing Crawford
and Davis, that the transcript is inadmissible in its entirety. In the alternative, and in
light of the district court’s ruling that the first five pages of the transcript of the 911
call were admissible, Defendant sought redaction of certain statements recorded in
those five pages. 	Pursuant to Defendant’s argument in the alternative, the district
court began evaluating the transcript line-by-line and found certain statements made
by Gallegos inadmissible. However, the parties’ disagreement over the meaning of
Davis and the application of the principles announced therein soon became intractable.
Accordingly, the district court discontinued its line-by-line examination and,
presumably persuaded by Defendant’s arguments, reversed its previous ruling and
summarily concluded—without explanation—that the transcript was inadmissible in
its entirety. 	In response to this ruling, the State requested certification for
interlocutory appeal. That request was granted and forms the basis of this appeal.
DISCUSSION
Standard of Review

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{7} 	The State’s interlocutory appeal requires us to review the admissibility of
Gallegos’s statements, as recorded in the 911 transcript, in light of Defendant’s
objections that admission of those statements would violate the Confrontation Clause
of the Sixth Amendment to the United States Constitution. 	“We apply a de novo
standard of review as to the constitutional issues related to [the d]efendant’s rights
under the Confrontation Clause.” 	State v. Massengill, 2003-NMCA-024, ¶ 5, 133
N.M. 263, 62 P.3d 354.
The Sixth Amendment and Crawford
{8} 	The Confrontation Clause of the Sixth Amendment to the United States
Constitution 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
United 	States 	Supreme 	Court’s 	Sixth 	Amendment 	jurisprudence 	was 	altered
fundamentally following the issuance of Crawford. There, after a lengthy discussion
of the history of the Sixth Amendment, the Court concluded that “where testimonial
evidence is at issue, . . . the Sixth Amendment demands . . . unavailability and a prior
opportunity for cross-examination.” Crawford, 541 U.S. at 68. Thus, the Crawford
Court held that when the declarant is unavailable, out-of-court statements that are
testimonial are inadmissible even if they meet an exception to the hearsay rules. Id.
at 54. 	In the present matter, it was undisputed that Gallegos is unavailable and

5
Defendant had not had an opportunity to cross examine her. The question we must
resolve, then, is whether Gallegos’s statements during the 911 call (as recorded in the
transcript of that call) are testimonial in nature.
{9} 	In 	Crawford, 	the 	United 	States 	Supreme 	Court 	did 	not 	establish 	a
comprehensive definition for the term “testimonial,” 541 U.S. at 68, a necessary
prerequisite to provide courts adequate guidance in identifying a testimonial
statement. Rather, it left “for another day any effort to spell out” such a definition and
concluded that “[w]hatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.” 	Id. 	The issue presented in Davis—“whether . . . [an]
interrogation that took place in the course of [a] 911 call produced testimonial
statements,” Davis, 547 U.S. at 826—required the Court to “more precisely” define
the term testimonial and the qualities that render a statement testimonial in nature. Id.
at 822.
{10} 	This Court and our Supreme Court have previously adopted and discussed the
principles established in Davis. See, e.g., State v. Lopez, 2007-NMSC-037, ¶¶ 20-21,
142 N.M. 138, 164 P.3d 19 (discussing the admissibility of non-testifying co-
defendants’ custodial statements); State v. Romero, 2007-NMSC-013, ¶¶ 4-17, 141
N.M. 403, 156 P.3d 694 (evaluating an unavailable witness’s statements to a sexual

6
assault nurse examiner in light of Davis and concluding that the statements in question
were testimonial in nature). The present matter, however, requires us, as a matter of
first impression, to evaluate the principles announced in Davis in the context of
statements elicited during a 911 call. As it is from Davis that we derive analytical
guidance to resolve the current matter, it is to Davis we turn.
Davis and the Definition of Testimonial
{11} 	Davis consolidated two appeals: Davis v. Washington, a case from the Supreme
Court of Washington, and Hammon v. Indiana, a case from the Indiana Supreme
Court. 	Davis, 547 U.S. at 817-21. In both cases, the state supreme courts allowed
incriminating statements of unavailable victims into evidence over the defendants’
objections that admission of such evidence violated the Confrontation Clause of the
Sixth Amendment to the United States Constitution. 	Id. at 819, 821. The facts of
Davis, the Washington case, are similar to the present matter: a victim of domestic
violence (Michelle McCottry) called 911 after she was attacked by the defendant (her
former boyfriend). Id. at 817-18. During the call, McCottry informed the operator of
the identity of the defendant and described the attack. 	Id. 	McCottry did not
participate in the subsequent criminal trial and, in her absence, the state submitted a
recording of the 911 call. Id. at 819. In Hammon, the Indiana case, the victim (Amy
Hammon) was violently attacked by the defendant (her husband) at their home. Id.

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at 819-20. After receiving a domestic disturbance report, the police arrived on the
scene shortly after the incident. Id. at 819. Hammon described the violence that the
defendant committed to one of the police officers. 	Id. at 819-820. Like McCottry,
Hammon also did not participate in the criminal trial that ensued. Id. at 820. In light
of this fact, the court permitted the officer who spoke to Hammon to recount what she
told him during the defendant’s trial. Id. After setting forth additional clarification
regarding what constitutes a testimonial statement, the United States Supreme Court
highlighted the factual distinctions between the two cases and concluded that
McCottry’s statements were nontestimonial in nature, 	id. 	at 828-29, whereas
Hammon’s were testimonial in nature. Id. at 829-30. That additional clarification is
the key to resolving the present matter and is discussed below.
{12} 	The Court in Davis recognized the futility of attempting to comprehensively
classify what is, and is not, a testimonial statement. 	Id. at 822 (acknowledging the
infinite variety of statements a person might make in response to police interrogation).
Rather, the Court concluded that the following distinction sufficed:
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.

8
Id. 	Having 	established 	this 	definitional 	distinction 	between 	testimonial 	and
nontestimonial statements, the Court explained that the determination of the
admissibility of McCottry’s and Hammon’s statements was based on whether their
statements were given primarily to permit the police to respond to an emergency, or
were given for purposes of establishing past acts for purposes of a subsequent criminal
prosecution. Id. at 826-28. The former category of statements, the Court instructed,
is nontestimonial and thus presents no Confrontation Clause problem. See id. at 821,
828. The latter category is testimonial and is thus inadmissible pursuant to Crawford.
See Davis, 547 U.S. at 821, 829.
{13} 	In addition to providing a definitional distinction between nontestimonial and
testimonial statements, the Court in Davis identified four factors to guide courts in
their assessment of the category into which a statement falls. Id. at 827. The Court
observed that a statement is likely nontestimonial if (1) the individual is describing
events as they are actually happening rather than describing past events; (2) the
individual is facing an ongoing emergency; (3) when viewed objectively, the elicited
statements are necessary to resolve a present emergency rather than simply to learn
what had happened in the past; and (4) the individual’s statements were not made in
the safety of a station house or in response to a series of questions with an
officer-interrogator taping and making notes but were provided over the phone in an

9
environment that was neither tranquil nor safe. 	Id. 	In a footnote preceding the
Court’s discussion of these four factors, the Court stressed that “it is in the final
analysis 	the 	declarant’s 	statements, 	not the 	interrogator’s 	questions, 	that 	the
Confrontation Clause requires us to evaluate.” Id. at 822 n.1.
{14} 	The Court also observed that, given the nature of 911 calls, a 911 call or
transcript of that call may contain both testimonial and nontestimonial statements.
“This presents no great problem,” the Court explained. 	Id. at 829. 	“[C]ourts will
recognize the point at which, for Sixth Amendment purposes, statements in response
to interrogations become testimonial. Through in limine procedure, they should redact
or exclude the portions of any statement that have become testimonial.” Id. (emphasis
omitted). In other words, and as applied in the present matter, the district court was
acting appropriately when it initiated a line-by-line review of the transcript of
Gallegos’s 911 call. 	Davis 	specifically charged the district court with this
responsibility. The district court erred when it abandoned that task and summarily
concluded that the entire transcript was inadmissible.
{15} 	Having laid out the governing law, we turn now to an application of those legal
principles to the case before us. To review, Davis makes clear that our primary task
is to evaluate Gallegos’s statements in light of the core definitional distinction
between nontestimonial and testimonial statements. The four factors laid out in Davis

10
serve as a guide in that determination.
911 Operator as a Law Enforcement Officer
{16} 	Because both parties raise this issue, we briefly discuss whether the 911
operator in this case was acting as a law enforcement officer. Citing the fact that in
Davis the United States Supreme Court left unresolved “whether and when statements
made to someone other than law enforcement personnel are ‘testimonial,’” id. at 823
n.2, the State argues that statements made to non-law enforcement personnel (such as
emergency medical responders) are always nontestimonial. Defendant, on the other
hand, contends that under Davis, the 911 operator in this case was acting as an agent
of law enforcement and the statements are therefore testimonial. We are unpersuaded
that this distinction is pertinent in the context of this case. Instead, as in Davis, we
assume without deciding that the inquiries of the 911 operator amount to “acts of the
police.” Id.
Analysis of the Facts in the Present Matter in Light of Davis
{17} 	Defendant first argues that Gallegos’s statements were testimonial because there
was no ongoing emergency in this case. We disagree. A review of the 911 transcript
persuades us that Gallegos’s statements in that transcript are entirely nontestimonial
in nature, as that term is defined in Davis. 	Gallegos initiated the 911 call only
moments after she was attacked; she told the 911 operator that Defendant had just

11
attacked her. She informed the 911 operator that she had just fled from him and that
Defendant had initially pursued her while continuing to brandish the instrument with
which he had attacked her. She informed the operator that it appeared Defendant was
under the influence of alcohol or drugs. 	Gallegos was crying throughout the call,
which reflects her frightened and panicked state and further demonstrates that
Gallegos initiated the call at a moment filled with exigency. 	She informed the
operator that she was, at that very moment, experiencing significant pain and
described the violent episode which was the source of that pain. When she fled her
house, Gallegos left her two small children behind. Contrary to Defendant’s assertion,
Gallegos did not tell the operator that Defendant “would not harm the children.”
Rather, she stated that she was uncertain whether he might harm them. Given the
events that had just transpired, Gallegos was clearly expressing concern for the
children’s safety. 	She provided the 911 operator the identity of her attacker, a
description of him, whether he had a proclivity for violence, whether he was likely to
flee the area, and whether he was armed with dangerous weapons. These facts were
essential to assist the police in safely apprehending Defendant, an immediate and
ongoing concern.
{18} 	These circumstances manifestly indicate that the United States Supreme Court’s
conclusion in Davis is equally applicable in this matter. “[T]he circumstances of [the

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911] interrogation objectively indicate its primary purpose was to enable police
assistance to meet an ongoing emergency.” 547 U.S. at 828. Gallegos “simply was
not acting as a witness; she was not testifying. 	What she said was not a weaker
substitute for live testimony at trial. . . . No witness goes into court to proclaim an
emergency and seek help.” 	Id. (internal quotation marks and citations omitted).
Based on our evaluation of the objective circumstances surrounding Gallegos’s phone
call, and in light of the four factors set forth in Davis, we are persuaded that any
reasonable listener would conclude that Gallegos was facing an ongoing emergency
and was describing events as they unfolded.
Gallegos Was Describing Events as They Were Happening
{19} 	Applying the first Davis factor, we observe that, although Gallegos told the 911
operator of events that had just occurred, those occurrences served to establish
whether Defendant posed a present danger. 	The facts here plainly contradict
Defendant’s assertion that Gallegos was reporting past events. Gallegos’s statements
that she was experiencing pain, the cause of that pain, her emotive responses
conveying fear, and her uncertainty about the safety of her children are all statements
concerning an immediate and existing state of events. 	Gallegos’s description of
Defendant, his present whereabouts, his proclivity for violent behavior including
whether he had harmed Gallegos in the past, whether he was armed, whether he would

13
flee, what he had been doing in the hours preceding the attack, and her observation
that Defendant appeared to be under the influence of drugs and/or alcohol all served
to establish not only whether Defendant posed continuing danger to Gallegos, but also
to provide the police officers dispatched to apprehend Defendant with the information
they needed to ensure their safety while carrying out that task. 	See id. (stating that
“[o]fficers called to investigate . . . 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” (alterations in original) (internal quotation marks and citation
omitted)). 	See, e.g., Collins v. State, 873 N.E.2d 149, 154-55 (Ind. Ct. App. 2007)
(discussing Davis and observing that information elicited from a 911 caller permitting
the swift and safe apprehension of 911 caller’s assailant constitutes nontestimonial
statements); State v. Bennett, 218 S.W.3d 604, 612-13 (Mo. Ct. App. 2007) (same);
Santacruz v. State, 237 S.W.3d 822, 828-30 (Tex. Ct. App. 2007) (same); State v.
Williams, 150 P.3d 111, 120 (Wash. Ct. App. 2007) (same).
{20} 	Defendant seems to argue that under Davis, a 911 caller must be describing a
criminal offense as it is happening, with the perpetrator present, for the caller’s
statements to be nontestimonial. We disagree and note first that Davis does not so
hold; rather it considers this as only one factor to be considered in determining
whether statements were made under circumstances objectively indicating that the

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primary purpose of the interrogation was to enable police assistance to meet an
ongoing emergency. 547 U.S. at 827. Further, with respect to Gallegos’s description
of the attack itself, the fact that Gallegos initiated the 911 call after the attack—and
was thus describing an event that had already occurred—does not, in and of itself,
render those statements a description of past events. In State v. Camarena, 176 P.3d
380, 387 (Or. 2008) (en banc), the Supreme Court of Oregon found that a 911 call
made moments after a woman was attacked by the defendant (her boyfriend) had
sufficient “temporal proximity” to the attack itself to permit the court to conclude that
the call described an immediate event rather than a past incident. 	We are equally
persuaded that the temporal proximity between the attack and Gallegos’s statements
to the 911 operator describing Defendant and how he attacked her—the record reflects
that Gallegos made the call as soon as she was able—establishes that she was similarly
reporting an occurring event rather than a past incident. To conclude otherwise would
ignore, in our view, what is likely a common feature of 911 calls initiated by victims
of 	violence. 	The 	call 	almost 	universally 	occurs 	after 	the 	violent 	incident.
Accordingly, the circumstances surrounding the 911 operator’s questioning of
Gallegos objectively indicates that the primary purpose was to assist police in meeting
an ongoing emergency.
Gallegos Faced an Ongoing Emergency

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{21} 	As to the second Davis factor, a review of the 911 call shows that any
reasonable listener would recognize that Gallegos was facing an ongoing emergency.
She had just fled her home, partially dressed, after having been violently attacked.
Defendant pursued her with the instrument with which he attacked her. 	She was
forced to seek refuge in the home of a stranger and was frightened, injured, and in
pain.
{22} 	Defendant contends that Gallegos was not facing an ongoing emergency
because having successfully fled from Defendant, she was not in imminent risk of
further injury. Defendant focuses on Gallegos’s statement to the 911 operator that she
was in a neighbor’s home and did not anticipate any further violence from Defendant.
We find Defendant’s assertions unpersuasive for three reasons. 	First, Defendant
punched Gallegos in the head and back and swung the pole at her elbow. When she
ran out of the house, he was running after her with the pole indicating that he might
follow her. 	Second, as previously noted, both the United States and New Mexico
Supreme Courts have stressed that we must examine the statements made during the
interrogation from an objective perspective. Davis, 547 U.S. at 822; State v. Ortega,
2008-NMCA-001, ¶ 29, 143 N.M. 261, 175 P.3d 929 (filed 2007), cert. denied, 2007-
NMCERT-012, 143 N.M. 213, 175 P.3d 307 (“At the core of the [Davis] analysis is
the objective purpose of the interrogation.”). As such, we find Defendant’s emphatic

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reliance on Gallegos’s statements that she subjectively believed she was no longer in
danger misplaced. Objectively, Gallegos’s statement that she was not at risk of further
harm is nothing more than speculation. There is nothing in the record to refute that
Gallegos had no objective way of knowing whether Defendant was still a threat to her
safety, the safety of her children, the safety of the neighbors who were protecting her,
or the safety of other residents in their community.
{23} 	Our 	third 	reason 	for 	rejecting 	Defendant’s 	argument 	that 	the 	ongoing
emergency had ended concerns the scope of the definition of ongoing emergency.
Defendant’s assertion that Gallegos’s separation from Defendant neutralized the
ongoing emergency is premised on a constrained definition of that term. According
to Defendant, the ongoing emergency ended when Gallegos’s physical proximity to
Defendant prevented him from further injuring her. This assertion ignores the facts
that Gallegos was injured, needed medical attention, was terrified, and was crying;
that a criminal offense had just occurred; and that the perpetrator of that offense
remained at large. As demonstrated by the following authorities, we conclude that
Defendant’s narrow definition of the term ongoing emergency is erroneous.
{24} 	In Smith v. United States, 947 A.2d 1131, 1134 (D.C. 2008), the defendant (the
victim’s estranged husband) objected to the admission of the victims’s 911 call
arguing that under Davis, his departure from the crime scene after he had attacked the

17
victim indicated that the emergency, and any imminent threat to the victim, had
subsided. The District of Columbia Court of Appeals responded that the defendant’s
assertion was premised on an “unduly restrictive” definition of the term ongoing
emergency. Id. The Court explained that “to make the actual physical presence of the
alleged wrongdoer a dominant factor in determining whether there is an ongoing
emergency, narrows and distorts the guiding principle to be applied to a wide range
of circumstances.” 	Id. 	In a similar case, but in far more colorful language, the
California Court of Appeals in its analysis of the ongoing emergency factor of Davis
rejected a nearly identical argument. See People v. Brenn, 60 Cal. Rptr. 3d 830, 838
(Ct. App. 2007). The defendant in that case asserted that the statements recorded in
a 911 call initiated by the victim he had stabbed did not occur during an ongoing
emergency because the victim fled the scene of the stabbing and found refuge in a
neighbor’s home where he called 911. Id. The court’s response to this argument is
as well reasoned as it is piquant:
[The defendant] questions whether [the victim] was facing an
emergency at all, given that [the victim] had gone next door to call the
police. This is an argument much easier to make from a law office than
from 100 feet from someone who has just stabbed you. At the time of
the call, [the victim] was suffering from a fresh stab wound, [the
defendant] was still at large, and it was unclear whether [the defendant]
still had any weapons or was searching for [the victim]. . . . It is hard to
construct a definition of the word ‘emergency’ that this scenario does not
fit.

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Id.; accord United States v. Arnold, 486 F.3d 177, 190 (6th Cir. 2007). In light of
these authorities, as well as our review of the circumstances surrounding Gallegos’s
911 call, we are persuaded that the call was made during an ongoing emergency.
The Statements Elicited From Gallegos by the 911 Operator Were Necessary to
Resolve a Present Emergency
{25} 	Under the third Davis factor, our review of the questions posed to Gallegos by
the 911 operator and the statements those questions elicited, when viewed objectively,
reveals that the questions were clearly directed at resolving the present emergency and
not to learn what had happened in the past. The 911 operator elicited from Gallegos
the following information: 	what had happened to Gallegos, when the attack had
happened, who had attacked her, whether Gallegos was under any imminent threat,
where her attacker might be located, whether her attacker was intoxicated, whether her
attacker was armed, and whether her attacker had a proclivity for violence and posed
a threat to the officers dispatched to apprehend him. These are precisely the types of
questions a 911 operator would need answered in order to orchestrate an adequate and
safe response to a present emergency. See People v. Dominguez, 888 N.E.2d 1205,
1212-13 (Ill. App. Ct. 2008) (discussing the third factor of Davis and concluding that
the 911 operator’s questions—“why [the victim] was fleeing [the] defendant, what
[the victim’s] injuries were, where [the victim] was located, and where [the victim]
left [the] defendant,”—were clearly designed to resolve a present emergency).

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{26} 	We are not persuaded that the operator’s question regarding whether Defendant
had harmed Gallegos previously, and her response that he had, is “obviously . . . [a
statement regarding] prior bad acts” and constitutes a testimonial statement. 	To
conclude that this question and Gallegos’s response was directed at unearthing
information about Defendant’s prior conduct for purposes of a subsequent criminal
prosecution assumes a great deal. 	Our review of the transcript suggests that this
question had a number of possible purposes, most prominently, to calm Gallegos
down in a tense and anxiety-filled moment and to ascertain whether Defendant has a
penchant for violence and was likely to pose a threat to the responding officers.
Furthermore, after asking this question and receiving Gallegos’s response that
Defendant had acted violently towards her in the past, the operator asked no follow-up
questions. Such questions would be anticipated if the operator’s initial inquiry was
for purposes of criminal prosecution. Accordingly, as we have previously stated, we
see no reason to exclude the statements derived from Gallegos during this particular
exchange on Confrontation Clause grounds.
Gallegos’s Statements Were Provided Over the Phone in an Environment That
Was Neither Tranquil nor Safe
{27} 	Finally, under the fourth Davis factor, despite the fact that Gallegos called 911
from a neighbor’s house and stated that she did not believe she was under any
immediate threat from Defendant, we conclude that the circumstances of Gallegos’s

20
call indicate that she was neither safe nor in a tranquil environment during that call.
She was in a stranger’s home, facing an uncertain but very real threat, she was injured
and frightened, and she was anxiously awaiting the arrival of the police and medical
assistance. Our conclusion that these circumstances demonstrate that Gallegos was
not in a safe or tranquil environment is supported by the court’s discussion in Davis
as to what constitutes a safe and tranquil environment. As used in Davis, the phrase
“safe” and “tranquil” environment do not refer to the absence of an immediate threat
but to an environment akin to formal police interrogation. See Davis, 547 U.S. at 827.
{28} 	The court reached the conclusion in Davis that McCottry was not in a safe or
tranquil environment by contrasting her circumstances and the circumstances
surrounding the statements given by Hammon with the statements of the declarant in
Crawford, which the court held were clearly testimonial in nature. 	The Court
observed that “[t]he questioning that generated the [declarant’s] statement in
Crawford . . . was made and recorded while [the declarant] was in police custody,
after having been given Miranda warnings.” 	Davis, 547 U.S. at 822 (discussing
Crawford). Based on this distinction, between McCottry’s statements and those in
Crawford, the Court concluded that McCottry’s statements were not provided in an
environment that was safe or tranquil:
[T]he difference in the level of formality between the two interviews is
striking. 	[The declarant in Crawford] was responding calmly, at the

21
station house, to a series of questions, with the officer-interrogator taping
and making notes of her answers; McCottry’s frantic answers were
provided over the phone, in an environment that was not tranquil, or
even (as far as any reasonable 911 operator could make out) safe.
Davis, 547 U.S. at 827.
{29} 	Turning to the Court’s discussion in Davis of the circumstances surrounding the
in-person police questioning of Hammon, the Court observed that Hammon’s
“interrogation was conducted in a separate room, away from her husband (who tried
to intervene), with the officer receiving her replies.” 	Id. at 830. 	This type of
interrogation, according to the Court, had a “striking resemblance” to the Crawford
interrogation. Davis, 547 U.S. at 830. Highlighting the similarities between them, the
Court noted that “[b]oth declarants were actively separated from the defendant[s] . .
. Both statements deliberately recounted, in response to police questioning, how
potentially criminal past events began and progressed. And both took place some time
after the events described were over.” Id.
{30} 	In this case, unlike the formal police interviews in Crawford and with Hammon
in Davis, Gallegos’ conversation with the 911 operator was not calm, formal, or
controlled but was more akin to McCottrey’s call in Davis. Indeed, the tape shows
Gallegos was crying and frantically answering the 911 operator’s questions in an
environment that was neither safe nor tranquil. As with the first three Davis factors,
we find that the fourth Davis factor also supports the conclusion that Gallegos’s

22
statements are nontestimonial.
Limitations on Our Holding
{31} 	We emphasize that our decision that Gallegos’s statements to the 911 operator
are admissible is limited to the facts in this case. District courts should conduct an
independent analysis of 911 calls applying the four Davis factors to the facts before
it. We also emphasize that our opinion addresses only the precise issue of whether the
statements are admissible under the Confrontation Clause. At trial, it is possible that
some other issue regarding the admissibility of those statements could arise.
CONCLUSION
{32} 	For the foregoing reasons, we conclude that Gallegos’s statements to the 911
operator were not testimonial and therefore do not violate Defendant’s Sixth
Amendment rights under the Confrontation Clause. 	Accordingly, we reverse the
district court’s ruling and remand for further proceedings in accordance with the
foregoing opinion.
{33} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge

23
WE CONCUR:
___________________________________
JAMES J. WECHSLER, Judge
___________________________________
ROBERT E. ROBLES, Judge
Appendix
Operator: 	911 emergency what is the city please?
Woman: 	I ahh, I need a police officer to come to my house.
Operator: 	What is your address?
Woman: 	Um, 320 Lopez in Chamberino
Operator: 	320 Lopez?
Woman: 	Yes sir. (Crying)
Operator: 	In Chamberino? Okay, what’s going on?
Woman: 	My boyfriend just hit me across the arm with a, with a with
a pole.
Operator: 	What’s your name?
Woman: 	Celina (crying)

24
Operator: 	What’s your phone number Celina?
Woman: 	I don’t have, I don’t have a phone, I’m at a neighbor’s
house.
Operator: 	You’re at a neighbor’s house?
Woman: 	Yes (crying)
Operator: 	Okay, 	where 	is 	Lopez 	off 	of 	San 	Luis 	Avenue on
Francisco?
Woman: 	I’m not sure, we barely moved over here, I just--
Operator: 	Okay
Woman: 	I was just, we live in front, in back of the um fire depart,
the fire department in Chamberino
Operator: 	Okay, I (inaudible) think I got it.
Operator: 	Okay, what’s your name?
Woman: 	Celina
Operator: 	Okay, what’s his name?
Woman: 	Joseph (crying)
Operator: 	Do you need an ambulance?
Woman: 	I . . . I don’t know. I just know my elbow hurts like, like
really really bad.
Operator: 	Okay. We’ll get you some help over there. Okay, ahh, oh
Jesus. Okay, where is he at?
Woman: 	He’s at the house with my daughters.

25
Operator: 	And you’re at a neighbor’s house?
Woman: 	Yes.
Operator: 	Are there any weapons?
Woman: 	Uhm, no, I don’t think so.
Operator: 	Okay. And his name is Joseph, you said?
Woman: 	Yes.
Operator: 	How old is he?
Woman: 	I’m sorry?
Operator: 	How old is he?
Woman: 	He’s 21.
Operator: 	Okay, and he’s there with the daughter?
Woman: 	Yeah, he . . . yeah, my two daughters.
Operator: 	Is anybody else hurt over there?
Woman: 	No.
Operator: 	How many kids are there at the house?
Woman: 	Two
Operator: 	How old are they?
Woman: 	Ahh, one’s 4 and one’s 1.
Operator: 	Okay, uhm, has he been drinking or anything?

26
Woman: 	No
Operator: 	Uhm, is he on any drugs?
Woman: 	No, I don’t think so. He barely came home last night.
Operator: 	From where?
Woman: 	From out with some guys.
Operator: 	Okay. 	And you don’t know if there’s any weapons or
anything?
Woman: 	No.
Operator: 	Okay. I want you to calm down, I want you to stay on the
phone with me. 	Would he hurt the girls, do you know?
(inaudible)
Woman: 	I don’t think so.
Operator: 	Okay. Where else are you hurt at?
Woman: 	Just my elbow, he just swung the pole at my elbow
(inaudible). He was punching me a couple of times on my
head and my back, that’s it.
Operator: 	Okay. 	Hold on, stay on the line. 	(Inaudible) . . . I’m
talking to her. Okay. Is he in the living room or where?
Woman: 	I think so.
Operator: 	Okay. Um, what is he wearing right now?
Woman: 	A grey shirt with the blue pants.
Operator: 	Hang on okay. 	Don’t hang up. 	Paul? 	Paul? 	Ask . . .
(inaudible) It’s aah 320 South Lopez, so I can make a copy.

27
Hang on okay . . . (inaudible) . . . Did he follow you out
there or anything?
Woman: 	He was, he was running after me with the pole but I ran
over here.
Operator: 	Okay. Try to calm down okay. We are going to get you
some help out there. Did it copy to him? No, okay. Okay.
Take a deep breath okay.
Woman: 	Yes.
Operator: 	Okay, they’re on their way over there. Okay, what would
he be driving if he decided to leave?
Woman: 	Uhm, he doesn’t have a car. He would just walk.
Operator: 	No, negative on all that, negative on all of that now.
Woman: 	(crying) ouh
Operator: 	What neighbor’s house are you at?
Woman: 	I’m sorry
Operator: 	What neighbor’s house are you at? 	Is it across the street
or?
Woman: 	No, it’s across the way (inaudible), next to the church.
(crying)
Operator: 	What color, what, do you know the address there?
Woman: 	What’s your address? 702 Convent.
Operator: 	Convent?
Woman: 	Yes Ma’am.

28
Operator: 	Okay, let me know if anything changes[.] What’s going on
with your arm, is it swelling, is it uh?
Woman: 	I’m not sure, I can’t even move it, it hurts, like really bad.
Operator: 	We’re getting help over there okay?
Woman: 	Okay
Operator: 	Are you in a trailer or is it that house?
Woman: 	No, it’s a house.
Operator: 	Okay, what kind of pole did he hit you with?
Woman: 	Um, it’s, it’s a gold metal rod kind of pole for, I’m not sure
for what it’s for.
Operator: 	And you don’t know, and you don’t know what it is used
for?
Woman: 	No, it’s a, it’s very thick, I don’t know. (crying)
Operator: 	Ma’am, I am getting you help okay?
Woman: 	Okay
Operator: 	What, so you don’t know your neighbor’s phone number?
Woman: 	Uh, no they have a cell phone, its [sic] one of their
boyfriend’s cell phone.
Operator: 	Okay, can I have, ask them if I can have that number just in
case we, I lose you, I can call you right back.
Woman: 	The police said if he can have the number so that if
anything happens he can call back. 	[Telephone number

1 The district court concluded that the telephone number Gallegos provided to	21
the operator should be omitted from the record for purposes of privacy. As a matter	22
of prudence, we adopt that conclusion.	23
29
provided by the woman omitted.1]
Operator: 	Okay, try to (inaudible) they are on their way okay. Is he
still in the house?
Woman: 	I’m not sure.
Operator: 	And the girls, where are they at? 	Are they still in the
house?
Woman: 	Their [sic] inside, their [sic] inside the house.
Operator: 	Can he see you from where you are at?
Woman: 	Yeah, he can see?
Operator: 	Okay, and he wouldn’t go over there to the neighbor’s
house.
Woman: 	Nah, he wouldn’t come over here.
Operator: 	What are you wearing?
Woman: 	(Inaudible) with baby blue on them with just a tank top,
like a sports bra.
Operator: 	Has he done this to you before?
Woman: 	Ah, yeah, we’ve, I’ve called the cops before and oh.
Operator: 	Okay, (inaudible) they are on their way.
Woman: 	(moaning)

30
Operator: 	And, they said, you said he came home last night from
being with his friends. Can you tell if he was drinking or
anything?
Woman: 	Uh no, I don’t know. 	It looked like he was, he was on
something though.
Operator: 	But there’s no guns or anything in the house?
Woman: 	No, not that I seen
Operator: 	He doesn’t carry a knife with him or anything?
Woman: 	No (crying)
Operator: 	How is your arm doing?
Woman: 	It like really hurts really bad.
Operator: 	(Inaudible)
Woman: 	My elbow.
Operator: 	(Inaudible)
Woman: 	Huh.
Operator: 	Is it swelling up?
Woman: 	I’m, I’m not sure, I can’t see cause it’s on it’s on my elbow.
Operator: 	On your elbow. Can you hear them coming towards you?
Woman: 	Um yeah, I can hear somebody.
Operator: 	Okay
Woman: 	But like really far.

31
Operator: 	I think they’re by the church. More close by. What color’s
their house?
Woman: 	I’m sorry
Operator: 	What color is their house?
Woman: 	My house is brown. Okay, I see a police going towards my
house.
Operator: 	Okay, I’m gonna go ahead and let you go so you can go
speak with them okay?
Woman: 	Okay
Operator: 	All right, bye bye.
Woman: 	Bye