State v. Williams

               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                            Appellee,
                               v.
                     JUSTIN DAVID WILLIAMS,
                            Appellant.

                             Opinion
                        No. 20180649-CA
                       Filed April 23, 2020

         Third District Court, West Jordan Department
              The Honorable William K. Kendall
                         No. 181400273

         Wendy Brown and Kimberly A. Clark, Attorneys
                       for Appellant
           Sean D. Reyes and Marian Decker, Attorneys
                          for Appellee

  JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
     MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
                        concurred.

HAGEN, Judge:

¶1      A jury convicted Justin David Williams of aggravated
burglary, criminal mischief, and assault after he broke down the
door to his father’s motor home, entered, and attacked his father
and brother. Williams appeals his conviction, arguing that the
district court erred in admitting a nine-minute 911 call his father
made after the assault. We conclude that the admission of the
911 call did not violate Williams’s Sixth Amendment right under
the Confrontation Clause because the call was not testimonial in
nature. We further conclude that the district court properly
relied on the excited utterance exception to the hearsay rule in
admitting the statements made by the father at the outset of the
                         State v. Williams


call and that Williams waived any error when he abandoned his
request to redact the remainder of the recording. Accordingly,
we affirm.


                         BACKGROUND 1

¶2     On the night of January 10, 2018, Williams spotted his
father’s motor home parked outside a business in Midvale, Utah.
He broke down the door, entered, and assaulted his father and
brother. After Williams fled, the father called 911 and reported
the assault.

¶3    At the outset of the call, the father’s tone was distressed
and his breathing labored:

      Q. This is 911. What is [inaudible]

      A. All right. Like, 72 South State, in a motor home
      parked in a parking lot.

      Q. In what city?

      A. Uh, Magna. I mean, not -- Midvale.

      Q. Okay. I’m sorry. Did you say this was a house,
      apartment or business?




1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Ramirez, 

,

 (cleaned up), petition for cert. filed, Jan. 16, 2020
(No. 20200055).




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                        State v. Williams


     A. No, it’s -- it’s a -- it’s a motor home that’s parked
     on State Street. We just got assaulted --

     Q. Okay.

     A. -- by my son. I mean, we’re -- we’re hurting
     man. He tore the door down. He -- he’s a fucking
     danger. Wow, fuck.

     Q. And it’s the parking lot of -- of what, sorry?

     A. Po Boyz Karpet. It’s right across from
     [inaudible] State Street and 70 -- 76 [inaudible]
     right by Pablo’s Auto.

     Q. [inaudible] phone number you’re calling from?

     A. Uh, [redacted]. Fuck. Oh, man.

     Q. [inaudible] what’s your name?

     A. [redacted]. Oh, man.

     Q. Did you say it was -- you said it was Pablo’s
     Auto Loan that you’re in the parking lot of?

     A. No, no, no. I’m in the parking lot at Po Boyz
     Karpet. Okay? I’m in a motor home parked in the
     parking lot. [inaudible] the landlord said I could
     stay here for a couple more days. And the motor
     home is parked on the side in a parking lot. We’ve
     just been assaulted. Oh, fuck.

     Q. [redacted], tell me exactly what happened.

     A. He just -- he broke down the door and broke in.
     I guess he must have seen our motor home on the



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                          State v. Williams


       side of the road. He got in the door [inaudible] tore
       the door right off. Fuck.

       Q. Do you need medical attention?

       A. Yes, I do. I got injuries. He kicked the shit out of
       both of us. Man [inaudible] is there somebody on
       their way?

       Q. [inaudible] stay on the line while I update the
       officers.

¶4     At this point, a Unified Police dispatcher (the second
dispatcher) joined the call and the first dispatcher explained the
nature of the emergency. When the father spoke again, his voice
had calmed. The second dispatcher asked the father a series of
questions about the father’s age and injuries, details of the
assault, Williams’s name and birthdate, Williams’s physical
description, the direction Williams was going when he left the
scene, and whether drugs or alcohol were involved. By the end
of the nearly nine-minute call, officers had arrived at the scene.

¶5     At trial, the State presented limited evidence. The State
relied primarily on the 911 call to establish the course of events
and the elements of the crimes charged. Neither the father nor
the brother was available to testify at trial. In addition to the 911
recording, the State presented three witnesses: the second
dispatcher, a dispatch records custodian, and a responding
police officer. The State also presented photographs taken at the
scene that showed the motor home and the father’s injuries,
along with the birth certificates of the father, brother, and
Williams, which were used to establish their identities.

¶6     Before trial, the State filed a motion to admit the 911
phone call. Williams opposed the motion, arguing first, that it
was inadmissible hearsay and second, that its admission would
violate the Sixth Amendment’s Confrontation Clause if the


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                          State v. Williams


father did not testify at trial. The State responded that the
statements made during the phone call were nontestimonial, and
that the call’s admission therefore did not violate the
Confrontation Clause. Further, it argued that although the call
was hearsay, it fell under the excited utterance exception found
in rule 803(2) of the Utah Rules of Evidence.

¶7      Before the start of trial, the district court heard arguments
on the 911 call’s admissibility. The court ruled that the entirety
of the call was nontestimonial because the statements were
elicited for the purpose of ending an emergency situation, and
therefore its admission did not violate Williams’s Sixth
Amendment confrontation right. The court appeared less certain,
however, as to whether the entirety of the call qualified as an
excited utterance. During the court’s discussion of the
Confrontation Clause issue, it acknowledged that there was a
point in the call where the father’s breathing slowed down and
the type of information being relayed was not “of the nature and
character of the initial information.” When defense counsel
argued that parts of the call should be redacted because of
this, the court responded, “I think we can cross that bridge if we
get there.”

¶8     And the district court did eventually get there, ruling that
the call was admissible as an excited utterance under rule 803(2)
of the Utah Rules of Evidence. At that point, defense counsel
stated, “Your Honor, the redaction portions.” The court
responded, asking, “[S]o you’re . . . asking to stop the call, I
guess, at the further questioning, in terms of the description of
the son and where he went?” But defense counsel replied, “No,
more [that] he’s . . . dangerous when he’s on drugs.” The court
noted that the father never made this statement during the
phone call, and moved on.

¶9    At trial, the State played the entire phone call for the jury.
The jury convicted Williams of aggravated burglary, a first



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                        State v. Williams


degree felony; criminal mischief, a class B misdemeanor; and
assault, a class B misdemeanor. Williams appeals.


           ISSUES AND STANDARDS OF REVIEW

¶10 Williams argues that the admission of the 911 call
constitutes reversible error for two reasons. First, he contends
that its admission violated his right to confrontation under the
Sixth Amendment. “Whether a defendant’s confrontation rights
have been violated is a question of law, reviewed for
correctness.” State v. Garrido, 

, 

. Second, he contends that the 911 call was not admissible
under the excited utterance exception to the hearsay rule. “In
reviewing the admissibility of hearsay, legal conclusions are
reviewed for correctness, factual determinations are reviewed
for clear error, and the ultimate question of admissibility is
reviewed for abuse of discretion.” State v. C.D.L., 

, 

.


                          ANALYSIS

¶11 For a hearsay statement to be admissible in a criminal
trial, it must clear two hurdles. First, its admission must not
violate the defendant’s Sixth Amendment right to confrontation.
Second, it must be admissible under an exception to the rule
against hearsay. We address both points, beginning with the
Confrontation Clause.

                  I. The Confrontation Clause

¶12 The Sixth Amendment states that “the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. “When out-of-court testimonial
statements . . . are offered against a defendant at trial, the
Confrontation Clause demands what the common law required:



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                         State v. Williams


unavailability and a prior opportunity for cross-examination.”
West Valley City v. Kent, 

, 

(quoting Crawford v. Washington, 

 (2004) (cleaned
up)). On the other hand, hearsay statements that are
nontestimonial do not implicate the Confrontation Clause. See
State v. Griffin, 

, ¶ 35, 

.

¶13 The United States Supreme Court in Davis v. Washington,

 (2006), described the difference between testimonial
and nontestimonial statements in the context of questioning by
police officers:

       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.

.

¶14 In Davis, a victim of domestic violence called 911 to report
that her former boyfriend had assaulted her and then fled from
her house. 

 at 817–18. The conversation between the
emergency operator and the victim included the following
statements:

       911 Operator: What’s going on?

       Complainant: He’s here jumpin’ on me again.

       911 Operator: Okay . . . Are you in a house or an
       apartment?


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                         State v. Williams


       Complainant: I’m in a house.

       911 Operator: Are there any weapons?

       Complainant: No. He’s usin’ his fists.

       911 Operator: Okay. Has he been drinking?

       Complainant: No.

       ....

       911 Operator: Listen to me carefully. Do you know
       his last name?

       Complainant: It’s Davis.

       911 Operator: Davis? Okay, what’s his first name?

       Complainant: Adrian.

       ....

       911 Operator: Okay. What’s his middle initial?

       Complainant: Martell. He’s runnin’ now.”

 at 817–18.

¶15 The Court held that the victim’s statements on the 911
recording were nontestimonial and therefore their admission did
not violate the Sixth Amendment even though the defendant
was unable to confront the victim declarant. Id. at 828.
Specifically, the Court noted that the questions and answers
heard in the call were “necessary to be able to resolve the present
emergency, rather than simply to learn . . . what had happened
in the past.” Id. at 827. The Court held that even the statements
identifying the assailant were nontestimonial because the


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                        State v. Williams


dispatcher asked for the assailant’s full name “so that the
dispatched officers might know whether they would be
encountering a violent felon.” 

¶16 Here, the district court correctly held that the primary
purpose of the father’s phone call was to enable police assistance
to meet the ongoing emergency and that the questions from
dispatch were “designed to resolve the ongoing situation, to
allow police and paramedics to respond.” The father called to
report that he and the brother had “been assaulted,” and were
“hurting.” Other information provided to the dispatchers, such
as Williams’s birthdate, his description, the direction he was
heading, and whether he had a weapon, all provided the police
with information necessary to provide assistance to the father
and to locate the suspected assailant. As the district court
recognized, “in order to end the threatening situation, police
need to know who they’re looking for.” These statements are
precisely the type of statements the Davis Court held were
nontestimonial.

¶17 The father’s statements are distinguishable from
testimonial statements given to police for the primary purpose of
investigating a crime. For example, in Hammon v. Indiana, 

 (2006) (the companion case to Davis v. Washington),
where the victim declarant’s statements were made during a
police interview after the violent situation had subsided and the
attacker had been located, the Court held that the interview’s
primary purpose was gathering information, rather than
responding to an ongoing situation. 

 at 829–30. The declarant
in Hammon “deliberately recounted, in response to police
questioning, how potentially criminal past events began and
progressed,” and the questioning “took place some time after the
events described were over.” 

. Further, the officer
questioned the declarant in a separate room, away from her
attacker. 

 Under these circumstances, the Court held that the
statements were testimonial because their primary purpose was



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                        State v. Williams


to provide information relevant to the investigation, rather
than information needed to respond to an ongoing situation.

 at 829–30.

¶18 In contrast, the father’s statements in this case were not
made for the primary purpose of facilitating an investigation of a
crime, but instead to enable the police to adequately respond to
the scene. The father did not call 911 to report information about
a completed crime after the situation was resolved. Rather, he
was in an unsafe environment and seeking medical attention
and protection. Unlike in Hammon, nothing separated the father
from Williams. According to the father, Williams was still at
large and potentially carrying a weapon, and the injured father
remained in a public parking lot at night in a motor home
without a door.

¶19 For these reasons, we agree with the district court that the
primary purpose of the 911 call was to enable police assistance to
meet an ongoing emergency. Therefore, Williams’s Sixth
Amendment right to confrontation was not violated when the
call was admitted into evidence.

                      II. Excited Utterance

¶20 Although the statements in the 911 call did not implicate
Williams’s Sixth Amendment right to confrontation, the
recording must still be admissible under the Utah Rules of
Evidence. See Salt Lake City v. Williams, 

, ¶¶ 25–
26, 

. Williams raised a hearsay objection below, but
the district court ruled that the call was admissible under the
excited utterance exception in rule 803(2) of the Utah Rules of
Evidence. We agree that at least some of the statements during
the call were admissible as excited utterances.

¶21 Rule 803(2) defines an excited utterance as a “statement
relating to a startling event or condition, made while the



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                          State v. Williams


declarant was under the stress of excitement that it caused.”
Utah R. Evid. 803(2). To be admissible under the excited
utterance exception, three factors must be met: “(1) a startling
event or condition occurred, (2) the statement was made while
the declarant was under the stress of excitement caused by the
event or condition, and (3) the statement relates to the startling
event or condition.” West Valley City v. Hutto, 

, 

 (cleaned up).

¶22 The district court found that all three factors were met. As
to the first and third factors, the court explained that Williams
appearing at his father’s motor home unexpectedly, breaking
down the door, and assaulting the father and brother constituted
“a startling event or condition” and that “all the information
given related to the startling event or condition.” Because we
review the district court’s factual findings for clear error, we will
set aside those findings only if they are “against the clear weight
of the evidence, or if we otherwise reach a definite and firm
conviction that a mistake has been made.” Brown v. State, 

, 

 (cleaned up).

¶23 The district court’s factual findings on the first factor—
that a startling event occurred—were fully supported by the
evidence. In the phone call, the father explained that Williams
must have spotted his parked motor home from the road.
Williams then “got in the door . . . tore the door right off,”
“kicked the shit out of” the father and brother, and that they
were “just trying to survive.” The father stated he was injured
and bleeding. Photographs admitted into evidence, along with
testimony from one of the responding officers, confirm that the
father was bleeding from injuries on his face and head. This
evidence also supports the court’s finding that the father’s
statements related to the startling event or condition, satisfying
the third factor. All the information relayed during the phone
call related to the reported assault, including the location and
nature of the assault and the description of the fleeing assailant.



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                           State v. Williams


Given these supported factual findings, the district court did
not exceed its discretion in ruling that the first and third
factors were met.

¶24 The second factor, however, is typically “the most
difficult issue in determining the admissibility of an excited
utterance.” State v. Smith, 

 (Utah 1995). This
factor requires that the declarant be under the stress of the
startling event when the statement is made. Hutto, 

. “The generally accepted rationale for the exception is
that declarations made during a state of excitement temporarily
still a declarant’s capacity to reflect and thereby produce
utterances free of conscious fabrication.” State v. Fahina, 

, 

. For this factor to be met, the
statement “must be a spontaneous reaction to the event or
condition, not the result of reflective thought.” Smith, 

. The ultimate determination is “whether the state of the
declarant’s mind was such that because of a high degree of
emotional arousal, the declaration was spontaneous in the sense
that the declarant’s emotional arousal or excitement at the time
of the statement strongly suggested that the statement came
purely from the declarant’s memory, unchanged or distorted by
a consideration of the consequences of the statement.” 

.

¶25 The district court found that “based upon the statements,
the specific words that were given, as well as the tone of the
declarant’s voice . . . the declarant was still under the stress . . . or
excitement caused by the event or condition.” However, “not
every statement made by an excited person is an excited
utterance for purposes of the hearsay rule.” Hutto, 

. The court appears to have considered the phone call as
a whole instead of examining the admissibility of “particularized
utterances.” Id. ¶ 14. The court focused on the tone of the father’s
voice and the words he used to determine that the father
remained under the stress of the event during the entire call,
instead of considering each statement individually.



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                          State v. Williams


¶26 Looking at each discrete statement in the call, we agree
that the father’s statements to the first dispatcher at the outset of
the call were a “spontaneous reaction to the event or condition,
not the result of reflective thought.” See Smith, 

. In
making this assessment, we look to a variety of factors,
including:

       the declarant’s age, elapse of time between event
       and statement, the nature of the event, the
       apparent emotional state and intensity of
       emotional reaction, hospitalization, whether the
       statement was spontaneous or in response to a
       question, and the declarant’s familiarity with his or
       her surroundings.

Hutto, 

.

¶27 Although the declarant’s age is not relevant in this case,
each of the remaining factors supports the conclusion that each
of the father’s statements at the outset of the call were made
under the stress of the startling event. First, minimal time had
elapsed between the startling event and the statements made at
the beginning of the call. The father reported that they had “just”
been assaulted and the responding officer observed fresh injuries
when he arrived at the scene minutes later. The record fully
supported the district court’s factual finding that the assault was
“clearly a fresh event.”

¶28 Next, the nature of the event was unexpected and
traumatic. Based on the father’s statements to dispatch, Williams
arrived uninvited, having spotted his father’s motor home
parked outside a business on a busy street. Williams “tore the
door right off” the motor home to get to his father and brother
and “kicked the shit” out of both of them. According to the
father, Williams “wrecked the place” and had been “kicking,
slapping, [and] hitting [him] with stuff.” The father reported that



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                          State v. Williams


he was “just trying to survive” and that he had injuries requiring
medical attention. The responding officers documented the
father’s injuries and the father was later treated at the hospital.

¶29 In addition, the father’s tone of voice, labored breathing,
and spontaneous exclamations such as “we’re hurting man” and
“he’s a fucking danger” reflect his “apparent emotional state and
intensity of emotional reaction.” 

 Many of the father’s
statements were spontaneous and not responsive to the
dispatcher’s questions. Even those that were responsive were
“spontaneous in the sense that the declarant’s emotional arousal
or excitement at the time of the statement strongly suggested
that the statement came purely from the declarant’s memory,
unchanged or distorted by a consideration of the consequences
of the statement.” Smith, 

.

¶30 Finally, although the father was in familiar surroundings,
Williams had “wrecked” the place, he was still at large, and the
father and brother had no protection from Williams if he had
chosen to return. All of these factors support the conclusion that
the father’s statements at the outset of the call were a
spontaneous reaction to the event or condition, rather than the
result of reflective thought processes.

¶31 But once the second dispatcher joined the call, the father’s
voice calmed, his breathing slowed, and his answers to the
dispatcher’s questions became less spontaneous. He was able to
respond appropriately to the dispatcher’s questions and provide
Williams’s name, birthdate, ethnicity, and build, along with the
direction Williams was heading and what he was wearing,
evidencing reflective thought. Indeed, the district court
recognized as much. While discussing the Confrontation Clause,
the court stated that it thought “once they start giving some
more information, you know, he left on foot. He left east. . . what
was he wearing, what were his clothes, what’s his . . . height,
weight, those kinds of things . . . it certainly seems that . . . the



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                          State v. Williams


alleged victim’s voice has calmed down at that point, and that’s
additional information that . . . maybe isn’t of the nature and
character of the initial information.” Because the father’s
statements during the second part of the call do not qualify as
excited utterances, those statements should have been excluded.
However, we conclude that Williams waived his right to appeal
this issue by deliberately abandoning any request to stop the call
at that point.

¶32 Although “the terms ‘waiver’ and ‘forfeiture’ ‘are often
used interchangeably’” in Utah case law, “the two concepts are
fundamentally different.” State v. Fuller, 

 ¶ 28 n.21,

 (quoting In re Adoption of Baby E.Z., 

, ¶ 51
n.1, 

 (Lee, J., concurring)). “Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.”
United States v. Olano, 

 (1993) (cleaned up). “This
distinction is important because a defendant is generally
precluded from obtaining appellate review when he waives a
right, but he may still obtain review for plain error when the
right has only been forfeited.” Fuller, 

, ¶ 28 n.21.

¶33 Invited error is “a species of waiver because it requires
intentional relinquishment of a right.” United States v. Thornton,

, 1117 n.3 (10th Cir. 2017) (cleaned up); see also
Vaught v. State, 

 (Wyo. 2016). Under wellestablished Utah case law, when a party invites an error in the
district court, “we will not review it even for plain error.” State v.
Popp, 

, 

 (cleaned up); see also
State v. Winfield, 

, 

 (noting that
“under the doctrine of invited error, we have declined to engage
in even plain error review when counsel, either by statement or
act, affirmatively represented to the trial court that he or she had
no objection to the proceedings” (cleaned up)). The “invited
error doctrine arises from the principle that a party cannot take
advantage of an error committed at trial when that party led the



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                          State v. Williams


trial court into committing the error.” Pratt v. Nelson, 

, 

 (cleaned up). It “discourages parties from
intentionally misleading the trial court so as to preserve a hidden
ground for reversal on appeal and gives the trial court the first
opportunity to address the claim of error.” State v. McNeil, 

, 

 (cleaned up).

¶34 Here, the State argues that any error in admitting the
entire phone call was invited because defense counsel
encouraged the court to make the erroneous ruling. The court
specifically asked whether the defense was “asking to stop the
call . . . at the further questioning, in terms of the description of
the son and where he went?” But defense counsel replied, “No,
more [that] he’s . . . dangerous when he’s on drugs.” (Emphasis
added.) The court found that it could not make that redaction
because the father never made such a statement during the call.
Williams contends that, at most, he failed to properly preserve
this issue by not asking for further redactions at that time and
that we should still review this forfeited issue for plain error.

¶35 Unlike a typical case involving invited error, the record
does not demonstrate “that counsel independently made a clear
affirmative representation of the erroneous principle.” Id. ¶ 18.
That is, defense counsel never affirmatively proposed that the
entire call be played for the jury. Nor did defense counsel
suggest that if some of the statements constituted excited
utterances the entire call was admissible. Instead, defense
counsel originally objected to the admission of the entire call and
argued, in the alternative, that parts of the call needed to be
redacted. But when the district court asked if Williams wanted to
“stop the call . . . at the further questioning,” defense counsel
responded, “No.”

¶36 Even if Williams’s response does not qualify as invited
error, it constitutes something more than “mere silence,” which
would render the issue merely unpreserved and subject to plain



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                         State v. Williams


error review. See 

 ¶ 21 n.2. Nor can it be characterized as
“affirmative acquiescence” to the district court’s ruling, as the
court was inviting the very argument that Williams disavowed.
See id. ¶ 21. In fact, the court appeared inclined to agree that the
statements made after the second dispatcher joined the call were
not admissible as excited utterances, but Williams repudiated
the court’s suggestion that he was asking to “stop the call . . . at
the further questioning.” At minimum, Williams intentionally
relinquished or abandoned any request to redact the statements
made after the second dispatcher joined the call. See United States
v. Carrasco-Salazar, 

, 1272–73 (10th Cir. 2007)
(joining other courts that “have uniformly held that an
abandoned objection is waived”).

¶37 Although Williams initially objected to the admission of
the entire call, when the court gave him the opportunity to argue
for redaction, he abandoned that objection. Because Williams
waived this error, he is now precluded from challenging it on
appeal. See Fuller, 

, ¶ 28 n.21.


                         CONCLUSION

¶38 We conclude that the admission of the 911 call did not
violate Williams’s Sixth Amendment right to confrontation
because the call was nontestimonial in nature. We also conclude
that the first part of the call was properly admitted as an excited
utterance and that Williams waived any error in admitting the
entire call. Accordingly, we affirm.




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