Whether a 911 call describing a past domestic violence incident constitutes a 'testimonial statement' under the Confrontation Clause when the caller is no longer in immediate danger

No question identified. : APPLICATION To the Honorable Brett Kavanaugh, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Sixth Circuit: Pursuant to Rule 13.5 of the Rules of this Court and 28 U.S.C. § 2101(c), applicant State of Ohio requests an extension not to exceed 60-days, to and including January 26, 2024, within which to file a petition of a writ of certiorari to review the judgment of the Ohio Court of Appeals in this case. The opinion of the Ohio Court of Appeals (App. 1a) is reported at 208 N.E.3d 949 (Ohio Ct. App. 2023). The Ohio Court of Appeals denied motions to certify a conflict (App. 63a), a motion for reconsideration (App. 64a), and an application for en banc consideration (App. 66a). The Supreme Court of Ohio denied a timely discretionary appeal on August 29, 2023. (App. 72a). Absent an extension of time, the Petition for a Writ of Certiorari would be due on November 27, 2023. Petitioners are filing this Application more than ten days before that date. See S. Ct. R. 13.5. This Court would have jurisdiction over the judgment under 28 U.S.C. §1257(a). Background The judgment at issue involves a decision on a properly raised substantial federal question. The State of Ohio once again finds itself in a position where it will petition the Court to consider a question involving the Confrontation Clause of the United States Constitution, this time in the context of a domestic violence prosecution. The State of Ohio intends to file a petition for a writ of certiorari because an intermediate state court of appeals has decided an important question of federal law that should be settled by this Court, and because the state court has decided an important federal question in a way that conflicts with relevant decisions of this Court, namely Davis v. Washington, 547 U.S. 813 (2006), Michigan v. Bryant, 562 U.S. 344 (2011), and most recently Ohio v. Clark, 576 U.S. 237 (2015). On March 27, 2024, the victim called 911 to report an assault. The call began with the operator asking, “Where is your emergency?” (App. 29a). The court went on define emergency using the dictionary. (App. 29a). Based upon the dictionary definition, the court went on to find no emergency existed because there was, “no urgent need for immediate action and no need for assistance to remedy harm or avoid imminent danger to person or property.” (App. 29a-30a). The court emphasized the fact that the assault did not occur in the location where the 911 call was made as the victim was “safe” at her parents’ home. (App. 30a-31a). A Cuyahoga County Grand Jury indicted Mr. Johnson with two counts of felony domestic violence and one count of misdemeanor endangering children. (App. 2a). Over Mr. Johnson’s objection, the 911 dispatcher testified and the 911 recording was admitted at trial. (App. 13a). Mr. Johnson was convicted. The complete 911 recording was admitted into evidence, over Mr. Johnson’s objection, as State’s Exhibit 2. Within the first 30 seconds of the recording, after the dispatcher asked, “Where’s your emergency?” The caller, in a frantic state, told the dispatcher, “In Parma, at um, I just left. I don’t have my phone [...] I was at my house in Parma, at um [...] 1150 O’Malley.” The dispatcher asked, “What’s going on there?” (App. 5a6a). The caller began explaining by the 30 second mark that her child’s father woke her up by yelling that she owed him money. (App. 5a) The caller explained to the operator that she tried to calm him down since their baby was sleeping. (App. 5a). By the one minute mark, she explained that he threatened to kill her and she had blacked out with her baby in her arms. (App. 6a). By the 1 minute and 10 second mark, the 911 dispatcher tried to obtain additional information to assist in addressing the ongoing emergency by asking the apartment where this occurred and asked the location of the father of the caller's child. (App. 6a). The caller said that he was still there when she left a