Opinion
No. 53655-9-I
Filed: April 18, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of San Juan County. Docket No. 03-8-05019-1. Judgment or order under review. Date filed: 12/15/2003. Judge signing: Hon. Alan R. Hancock.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Charles Zachery Silverman, San Juan County Prosc Atty, PO Box 760, Friday Harbor, WA 98250-0760.
Testimonial evidence is inadmissible at trial unless the defendant has had an opportunity to cross-examine the declarant. Because the accomplice's note of apology to the victim in this case was not testimonial, the juvenile court did not err in admitting it in J.A.'s fact-finding hearing. We therefore affirm.
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004).
FACTS
Only a few facts are relevant to the issue on appeal. The day after J.A. and T.C. allegedly raped their friend C.B., T.C. left flowers and a note of apology in her car. The note said in part:
[C.B.] hope you like the flowers. I just want to let you know how sorry I really am, not only did I hurt you I put you through something that no girl should face. I feel awful, I feel well, dirty, perferted [sic], sick to my stomach. I fell [sic] like I let someone down so important to me it feels like I hurt myself. [C.B.] I'm not trying to win you back I'm trying to show you its not your faut [sic], because sometimes its [sic] easy to be tricked by someone you trust. I don't expect you to forgive and forget what happened but you should know your [sic] a one of a kind awesome, beautiful girl and don't let anyone tell your otherwise. Sincerely sorry Travis.
Findings of Fact, Conclusions of Law at 18.
One week later, C.B. reported the incident to a school counselor. The State subsequently charged J.A. with second degree rape of C.B. and third degree rape of two other victims.
At the fact-finding hearing, the court admitted the note of apology under the hearsay exception for statements against penal interest. The court found J.A. guilty of raping C.B. and one of the other victims, and not guilty of raping the third victim. J.A. only appeals the disposition involving C.B.
ER 804(b)(3).
DECISION
Relying on Crawford v. Washington, J.A. contends the juvenile court's admission of the note of apology violated his right to confrontation under the federal and state constitutions. Crawford held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." The Court noted that the Sixth Amendment applies to those who "bear testimony," and that testimony "`is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that person who makes a casual remark to an acquaintance does not."
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004).
Id. at 1374.
Id. at 1364 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)).
The Court described three "formulations of [the] core class" of testimonial statements. These included "ex parte in-court testimony or its functional equivalent," "extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Id.
Id. (citations omitted).
The note of apology in this case does not fall within any of Crawford's proposed formulations. The first two formulations have no application here because the note was neither a statement made in court proceedings nor a statement contained in formalized testimonial materials. The third formulation — i.e., whether the statements were made under circumstances that would lead an objective witness to believe they would be available for use at a later trial — is also inapplicable. The note was a private communication and was made before a crime had been reported to police. It was therefore not made in contemplation of legal proceedings. In these circumstances, neither the declarant nor an objective witness would have anticipated the note being used at a trial.
Contrary to J.A.'s assertions, the note was not testimonial simply because it was a statement against penal interest. It is the context surrounding the note, rather than its content, that determines whether it is testimonial. Because the note was not testimonial, Crawford is inapplicable and J.A.'s argument fails.
See People v. Shepherd, 263 Mich. App. 665, 689 N.W.2d 721, 729 (2004) (statements against penal interest made to relatives and overheard by jail guards were not testimonial under Crawford).
Affirmed.