Opinion
No. 58410-3-I.
February 4, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 04-1-01316-2, Steven J. Mura, J., entered June 19, 2006.
Affirmed by unpublished per curiam opinion.
A statement not offered for the truth of the matter asserted is not hearsay, and cannot fall afoul of the rule that testimonial hearsay must be subject to cross-examination in order to be admitted at trial. The statements of the confidential police informant in this case were not hearsay, and the trial court did not err in admitting them. We affirm.
FACTS
On September 16, 2004 police outfitted confidential informant CH with a wire transmitter and digital mini disk recorder and CH made a controlled purchase of methamphetamine at a house in Bellingham. During her time in the house, CH and Gerardo Garza-lribe discussed the quality of the drugs and the prices of various amounts of drugs. During Garza-lribe's trial on two counts of delivery of a controlled substance (methamphetamine) and one count of possession of a controlled substance with intent to deliver (methamphetamine), the trial court admitted the tape of the recorded conversation. CH did not testify, as she had moved out of state and the police could not locate her. Detective April Mitchelson, who arranged the drug buy, identified Garza-lribe's voice on the tape from prior conversations the detective had with him.
The jury found Garza-lribe guilty as charged, and the trial court imposed a standard range sentence. Garza-lribe appeals.
ANALYSIS
Garza-lribe contends that the trial court violated his right to confront adverse witnesses by admitting the tape of CH's conversation with him. He argues that the State was involved in obtaining the statements, the purpose of the controlled buy was to obtain evidence against him, and CH knew that the statements would be used as evidence against him at trial. Thus, he argues that the statements were testimonial, and that the trial court violated his Sixth Amendment right of confrontation in admitting them even though CH was not present for cross-examination. We review the trial court's evidentiary rulings for abuse of discretion.
State v. Swan. 114 Wn.2d 613, 667, 790 P.2d 610 (1990).
At trial, defense counsel objected to the tape of CH's conversation with Garza-lribe because it was hearsay and violated the confrontation clause. The prosecutor argued that the tape was not offered for the truth of the matters asserted in it, and was not hearsay. The trial court overruled the objection and admitted the tape, finding that it was neither hearsay nor testimonial within the meaning of Crawford. We agree.
Under Crawford v. Washington, where testimonial hearsay is offered at trial, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."
541 U.S. 36, 69, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
"The Crawford Court specifically retained the preexisting rule of Tennessee v. Street, that `[t]he [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.'" In fact, the Crawford Court cited with approval Bourjaily v. United States, where the Court rejected a confrontation clause objection to evidence of a conversation between a confidential police informant and a co-defendant. The Crawford Court cited Bourjaily as an example of a case where nontestimonial statements were correctly admitted despite the lack of a prior opportunity for cross-examination.
471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985).
Crawford. 541 U.S. at 60 n. 9 (citing Street. 471 U.S. at 414).
483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144(1987).
Crawford. 541 U.S. at 58.
In order to violate the Crawford rule, evidence must be both testimonial and hearsay. During the conversation, CH and Garza-lribe discussed amounts and quality of drugs, and different prices for different amounts. Although it would be reasonable to assume that CH knew the tape would be offered as evidence at trial, the conversation memorialized on the tape did not contain the elements of formality cited by the Crawford Court. In any event, we do not have to decide whether her statements to Garza-lribe were testimonial. Because the State did not offer the tape of this conversation to prove that these prices or the quality of the drugs were accurate, CH's statements were not hearsay. As Washington courts have concluded following Crawford, "[w]hen out-of-court assertions are not introduced to prove the truth of the matter asserted, they are not hearsay and no confrontation clause concerns arise." The trial court did not abuse its discretion in admitting the tape.
State v. Mason, 127 Wn. App. 554, 566 n. 26, 126 P.3d 34 (2005), affirmed, 160 Wn.2d 910, 162 P.3d 396 (2007).
Affirmed.