Court: Anonymous 911 Callers Can Be Cross-Examined | Eastern North Carolina Now

    Publisher's note: The author of this post is Michael Lowrey, who is a contributor for the Carolina Journal, John Hood Publisher.

Court of Appeals says anonymity cannot shield caller's identity when content is considered testimony

    RALEIGH     Among the basic guarantees of liberty provided by the Bill of Rights is the right to confront one's accusers during a criminal trial. A recent ruling by the state's second-highest court highlights how this right can extend even to those accused by callers to 911 emergency networks.

    On the evening of April 12, 2014, Wilmington Police Department officers responded to an anonymous 911 call in the Long Leaf Park subdivision reporting a possible dispute involving a man with a gun. Officer Scott Bramley was among those responding to the call. When he arrived in the area, he noticed two men standing next to a black Mercedes-Benz parked beside a vacant lot. One of the men, in a red and white plaid shirt, walked toward the officer. Bramley did not have a description of the suspect, but he decided to confront the man and ask if he had a gun. The man said no, submitted to a pat down, and after Bramley did not find a gun, he let the man go.

    Bramley the contacted the New Hanover County 911 dispatcher for a description of the suspect. The dispatcher replied that the caller, who wished to remain anonymous, "said [the suspect] was in a field in a black car," and that "someone said he might have thrown the gun." The man with the gun was described as wearing a light plaid shirt.

    Police searched the area around the Mercedes and found a Sig Sauer P320 handgun. Bramley was convinced that the man he encountered was the suspect. Soon after that, the man - Christopher Allen McKiver - returned and asked what the police were doing to his car. Bramley then arrested McKiver.

    The Mercedes was registered to McKiver's brother in Elizabethtown. No fingerprint or DNA evidence was found on the gun, which had been reported as stolen from an address in Elizabethtown.

    At trial, McKiver was convicted of possession of a firearm by a felon; Superior Court Judge Benjamin Alford refused to suppress the information from the anonymous 911 caller. Alford sentenced McKiver to six months in prison and three years of supervised probation.

    On appeal, McKiver renewed his argument that using the 911 caller's statements violated his rights under the 6th Amendment of the U.S. Constitution, which provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."

    In the 2004 case of Crawford v. Washington, the U.S. Supreme Court held that the Confrontation Clause forbids "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 cross-examination." Two years later, in Davis v. Washington, it provided additional guidance:

• 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.
• A unanimous three-judge panel of the N.C. Court of Appeals held that the 911 caller's statements were testimonial in nature and thus inadmissible since McKiver had no opportunity to cross-examine the caller.

    In the court's opinion, Judge Linda Stephens wrote the record suggested there was no emergency, and that " the anonymous caller's statements during her initial 911 call - that she did not know whether the man with the gun was pointing his weapon at or even arguing with anyone; that she was inside and had moved away from the window to a position of relative safety; and that she did not feel the need to remain on the line with authorities until help could arrive - make clear that she was not facing any bona fide physical threat."

    Given that there was little to tie McKiver to the gun besides the anonymous call, the Appeals Court held that admitting it was not a harmless error and that McKiver was entitled to a new trial.

    The case is State v. McKiver (15-1070).