State v. Orndorff
In State v. Orndorff, 122 Wn. App. 781, 95 P.3d 406 (Wash. Ct. App. 2004), two masked men forced their way into Nordby's house.
Nordby, who was upstairs at the time with Lorina Coble and several others, heard his minor son screaming and went downstairs to investigate. Norby engaged in a struggle with the two men, both of whom were armed.
The intruders eventually subdued Nordby, but they fled after a 911 dispatch operator returned Coble's call which had been aborted. Coble did not testify at trial, but the trial court allowed Nordby to testify that "Coble told him she saw a man with a pistol downstairs, saw both men leave, she tried to call 911, and was panic-stricken." Id. at 408.
The court found Coble's statement nontestimonial: "It was not a declaration or affirmation made to establish or prove some fact; it was not prior testimony or a statement given in response to police questioning; and coble had no reason to expect that her statement would be used prosecutorially." Id.