Opinion
No. 53985-0-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No. 02-1-00607-7. Judgment or order under review. Date filed: 01/20/2004. Judge signing: Hon. Susan K Cook.
Counsel for Appellant(s), Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA 98273-3867.
Thomas Edward Seguine, Skagit Co Prosecutor, 605 S 3rd, Mount Vernon, WA 98273-3867.
Steven Lee Bartholomew was convicted of second degree kidnapping and second degree attempted murder. The victim did not testify at his trial, but the superior court allowed the victim's hearsay statements, which assigned guilt to Bartholomew, into evidence through four witnesses. Citing Crawford v. Washington, Bartholomew argues that he was deprived of his Sixth Amendment right to confront his accuser because the hearsay statements were testimonial in nature and not subject to cross-examination. Although testimonial hearsay statements were improperly admitted through two witnesses, the error was harmless. Therefore, we affirm.
541 U.S. 36, 124 S. Ct. 1354 (2004).
I.
On November 17, 2002, sometime just after 9:00 p.m., Joan and Gary Ensley were driving through Walker Valley when they saw a woman on the side of the road. Because the area was extremely rural, the Ensleys turned the car around and went to see whether the woman needed help. Mrs. Ensley got out of the car and saw the woman, Colleen Annyas, shaking from the cold. She put her coat around Annyas and helped her into their car. Both Mr. and Mrs. Ensley noticed that Annyas's hair was matted and dirty and she appeared to be in shock. She was gripping a set of jumper cables. Annyas told the Ensleys that her daughter and her daughter's boyfriend beat her up, put her in a vehicle, tied her up with jumper cables, and left her in the woods in a puddle of water.
The Ensleys urged Annyas to go to the emergency room, but she refused. Instead, they dropped her off at a hotel in Burlington. On November 19, Isle Lindall, an emergency medical technician, was dispatched to the hotel room where Annyas was staying. Lindall noticed bruising on Annyas's face, particularly around her right eye. Annyas told Lindall that she had been tied up with jumper cables and assaulted by her daughter and her daughter's boyfriend.
The response team brought Annyas to the hospital, where Dr. Donald Slack examined her. He found bruising on her face, right buttocks, forearms, leg, and chest wall. Dr. Slack asked Annyas how she received her injuries, and she responded that she had been taken by force out to Walker Valley and struck in the face with fists by her daughter and her daughter's boyfriend. While at the hospital, Annyas filled out a police report.
Christine Annyas, Annyas's daughter, and her boyfriend, Steven Bartholomew, were charged with first degree kidnapping and first degree attempted murder. They were tried as co-defendants.
While awaiting trial, Bartholomew was jailed and the court issued an order prohibiting him from having contact with Christine. Bartholomew continually violated that order. In October, jail officials searched Bartholomew's jail cell and recovered his "blue tub" containing his personal property. Bartholomew's tub contained thousands of pages of paper, some of which were letters to and from Christine, and others were legal documents pertaining to his defense. Deputies sorted through the papers, pulled out the documents that appeared to be letters, and returned the rest of the papers to Bartholomew.
Annyas did not testify at trial, despite numerous efforts by the State to secure her presence. The superior court found that the State exercised due diligence in its efforts to procure Annyas for trial and allowed the Ensleys, Lindall, and Dr. Slack to testify to Annyas's statements. The Ensleys' testimony was admitted under the excited utterance exception to the evidence rule excluding hearsay. They testified that Annyas said that she was beaten up by her daughter and daughter's boyfriend, tied with jumper cables, and left in a remote area in the woods. Lindall and Dr. Slack also testified that Annyas said her daughter and daughter's boyfriend assaulted her. Their testimony was allowed through the medical diagnosis exception.
ER 803(a)(2).
ER 803(a)(4).
Bartholomew was found guilty by a jury of second degree kidnapping and second degree attempted murder.
II.
Bartholomew argues that, by allowing the Ensleys, Lindall, and Dr. Slack to testify to Annyas's statements, he was denied the right to confront his accuser, in violation of the Sixth Amendment of the United States Constitution and article I, section 22 of our state constitution.
A. Confrontation Clause
We review whether Bartholomew was unconstitutionally deprived of the right to confront his accuser de novo. In Crawford, the United States Supreme Court revisited the issue of when the admission of hearsay statements contravenes the Sixth Amendment. It held that, regardless of reliability, courts may not admit testimonial statements unless the defendant has an opportunity, either during or prior to trial, to cross-examine the accuser. The Court refused to provide a comprehensive definition of "testimonial," claiming that it would leave that for another day. But it did give examples of testimonial statements. Ex parte in court testimony, and its functional equivalents, such as affidavits, custodial examinations, prior testimony that the defendant has not had the opportunity to cross-examine, and all "`pretrial statements that declarants would reasonably expect to be used prosecutorially'" are testimonial. Additionally, the Court broadly announced that "`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,'" are testimonial. These include statements made to police officers during interrogations.
State v. Medina, 112 Wn. App. 40, 48, 48 P.3d 1005 (2002).
Crawford, 124 S. Ct. at 1365-66. In doing so, the Court strayed from its earlier ruling in Ohio v. Roberts, that hearsay evidence does not violate the Sixth Amendment so long as it falls under a firmly rooted hearsay exception, or bears some other guarantees of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
Crawford, 124 S. Ct. at 1374.
Crawford, 124 S. Ct. at 1364 (quoting Brief of Petitioner, at 23).
Crawford, 124 S. Ct. at 1364 (quoting Brief of the National Association of Criminal Defense Lawyers et al. as Amici Curiae, at 3).
In Crawford, an unavailable witness made the disputed hearsay statements while she was in police custody, so the Court held that the statements were testimonial and not admissible. Crawford, 124 S. Ct. at 1374.
The Supreme Court also gave examples of nontestimonial statements: "off-hand, overheard" remarks and "business records or statements in furtherance of a conspiracy." The Court also suggested that "statements made unwittingly" to a government officer may not be testimonial. The Court defined "testimony" as "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'"
Crawford, 124 S. Ct. at 1364, 1367.
Crawford, 124 S. Ct. at 1368.
Crawford, 124 S. Ct. at 1364 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)).
We must apply an objective test of reasonableness to determine if a statement is testimonial in nature. We first consider the statements admitted through the Ensleys' testimony. Courts in other jurisdictions have held that statements made by a person calling for help, or wanting immediate protection, are not testimonial in nature. For example, the Ninth Circuit held that statements made by a victim to the police when she called to report that the defendant was attempting to break into her home were properly admitted. Additionally, Division Two has held that a spontaneous declaration made in response to a stressful incident is not a testimonial statement.
E.g., Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir. 2004); State v. Wright, 686 N.W. 2d 295, 302 (Minn.App.Ct. 2004), rev. granted; People v. Moscat, 3 Misc.3d 739, 745, 777 N.Y.S.2d 875 (2004); Hammon v. State, 809 N.E.2d 945, 952 (Ind.Ct.App. 2004).
Leavitt, 383 F.3d at 830.
State v. Orndorff, 122 Wn. App. 781, 787, 95 P.3d 406 (2004).
Although Annyas did not seek out the Ensleys for help, she was in need of immediate protection. When the Ensleys stopped to help Annyas, she had just emerged from the woods after being assaulted. She was dirty, bruised, damp, cold, and still in shock. Annyas spontaneously accounted the tragic assault against her, while still under the shock of the offense. It is unreasonable to conclude that Annyas's objective under those circumstances was to produce statements for use at a later trial. In fact, Annyas refused to go to the emergency room that night, which suggests that she was not interested in gathering evidence for a future prosecution. We hold that the trial court properly admitted Annyas's statements into evidence through the Ensleys' testimony.
We next consider the hearsay statements admitted through Lindall and Dr. Slack. Several courts have considered whether hearsay statements admitted under the medical diagnosis exception were testimonial in nature. An Illinois court recently held that statements made by a rape victim to medical personnel regarding "how she was penetrated, the pain, and the offender's use of a lubricant" were not testimonial in nature because they were made for medical treatment, but her statements regarding the identity of the defendant as her assailant were testimonial. In contrast, a Nebraska court held that statements made by a child during a medical examination, which identified the defendant as her abuser, were not testimonial.
In re T.T., 815 N.E. 2nd 789, 804 (Ill.App. 1 Dist. 2004). See also People v. West, 823 N.E. 2d. 82, 89 (Ill.App. 1 Dist. 2005) (applying the holding in In re T.T.).
State v. Vaught, 682 N.W.2d 284, 292 (Neb. 2004).
Annyas's statements to Lindall and Dr. Slack assigned guilt. The State presented no evidence that suggests that the identity of Annyas's assailants was pertinent to her medical treatment, and we do not perceive any reason why their identities would be relevant. Although it is unclear whether Annyas's subjective intentions were to identify her offenders for use during prosecution, or if she unintentionally identified them while relaying the cause of her injuries, the test is an objective one.
Annyas should have reasonably known that her statements would lead to the identity and prosecution of her assailants. She spoke with Lindall and Dr. Slack two days after the offense, when the initial shock would have faded. Police officers were present when Lindall treated Annyas in the hotel room. Additionally, Annyas filled out a police report and spoke with a police officer while in the hospital. Although there are some circumstances in which statements made to medical personnel are not testimonial, this is not such a case. Because Bartholomew was not afforded the opportunity to cross-examine Annyas, the trial court should not have admitted the statements that she made to Lindall and Dr. Slack.
Bartholomew also claims that the statements conveyed to Lindall and Dr. Slack were improperly admitted under ER 803(a)(4). Because we conclude that the statements were testimonial, we do not decide this issue.
The error was harmless, however. Washington courts apply the "overwhelming untainted evidence test" as the standard for harmless error. We look to the properly admitted evidence to determine whether it necessarily points to Bartholomew's guilt. "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt."
State v. Palomo, 113 Wn.2d 789, 798-99, 783 P.2d 575 (1989).
Palomo, 113 Wn.2d at 799.
State v. DeSantiago, 149 Wn.2d 402, 430, 68 P.3d 1065 (2003) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)).
The improperly admitted statements were not unique. Both of the Ensleys testified that Annyas said that her daughter and her daughter's boyfriend assaulted her. The Ensleys' testimony was more detailed than Lindall's and Dr. Slack's. The only detail added by Dr. Slack's testimony was that Annyas said she was struck in the face. This evidence added little, if anything, to the State's case, because the witnesses' own observations of bruising on Annyas's face established this point. The error was harmless beyond a reasonable doubt.
B. Statement of Additional Grounds for Review
Bartholomew has alleged numerous additional grounds for review, none of which have merit. Bartholomew argues that the State deliberately concealed Annyas's mailing address, but there is no evidence that it did so. Even if it had, Bartholomew was not prejudiced because Annyas never collected her mail from her post office box.
Bartholomew also challenges the trial court's conclusion that the State exercised due diligence in its attempts to procure Annyas. He alleges that Mount Vernon Police gave Annyas a citation for drinking in public and therefore had contact with her. There is no evidence in the record of this incident and, regardless, the alleged event occurred after closing arguments. The State's efforts to procure Annyas for trial were more than reasonable.
Detective Thomas Wenzl testified that he made numerous attempts to locate Annyas. Among other things, he: issued "attempts to locate;" handed her a subpoena in person; mailed a letter to her post office box; repeatedly checked to see if she had picked up her mail; sent police to the campsite where she was last known to reside; checked the countrywide computer for any police contact with her; and contacted other agencies for assistance.
Bartholomew claims that Skagit County Deputies interfered with his attorney-client confidentiality and violated his right to effective assistance of counsel when they confiscated his tub of personal papers and sorted through his legal documents. But Bartholomew did not show that the State violated his attorney-client confidentiality. Deputies testified that they sorted through Bartholomew's blue tub and separated what they believed to be contraband letters from legal documents. The defense presented no evidence to suggest that deputies read, photocopied, or failed to return any of Bartholomew's legal documents, or that the prosecutor's office was given any of the documents.
Bartholomew argues that his Fourth Amendment right against unreasonable search and seizure was violated when deputies searched the content of his papers in order to identify the letters. Prisoners do not have a reasonable expectation of privacy in their prison cells. Therefore Bartholomew's cell and the letters within it were lawfully searched. Additionally, because the letters were addressed either to or from Christine, they "clearly announced" to deputies that they were contraband. There is no expectation of privacy in contraband.
Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S. Ct. 3194 (1984); Personal Restraint of Benn, 134 Wn.2d 868, 909, 952 P.2d 116 (1998) (citing Palmer, 468 U.S. at 530); State v. Garza, 99 Wn. App. 291, 295, 994 P.2d 868 (2000) (citing Palmer, 468 U.S. at 525-26).
See U.S. v. Carrozza, 2 F.Supp.2d 126, 127 (D. Mass 1998) (holding that prisoners have no expectation of privacy in the content of their letters).
See State v. Courcy, 48 Wn. App. 326, 331-32, 739 P.2d 98 (1987) ("Because the container clearly announced it contained contraband, any reasonable expectation of privacy as to its contents was lost.").
Bartholomew next argues that his Fifth Amendment right against self-incrimination was violated when the State confiscated letters from his jail cell and used them against him in court. The search of Bartholomew's jail cell was lawful, so the evidence was properly obtained. Bartholomew voluntarily wrote the letters before deputies searched his cell, so he was not compelled to incriminate himself.
See U.S. v. Moody, 977 F.2d 1425, 1432 (11th Cir. 1992) ("Because in this case all evidence seized was obtained pursuant to a valid search warrant and any statements made by [the defendant] were voluntarily put to paper before the search, [he] cannot successfully challenge the searches under the Self-Incrimination Clause.").
Finally, Bartholomew argues that his right to due process was violated by an erroneous "to convict" jury instruction. The standard jury instructions were clear, and not erroneous.
AFFIRMED.
KENNEDY, AGID, JJ., Concur.