Opinion
No. 53338-0-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-01415-6. Judgment or order under review. Date filed: 10/31/2003. Judge signing: Hon. Michael J Heavey.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Testimonial hearsay evidence is inadmissible at trial unless the defendant had the opportunity to cross-examine the declarant. Distraught by an altercation with her ex-husband, Stanley Harris, Jewel Washington made statements to their pastor. After a second altercation, Washington made statements to a police officer. Harris was charged with two counts of domestic violence felony violation of a court order. Washington did not testify at trial. The State introduced testimony from the pastor and the police officer regarding her statements to them. Washington's statements to the pastor were not testimonial and admissible as excited utterances. The State concedes that many of the statements to the police officer were testimonial and inadmissible. We affirm Harris's conviction on Count I, reverse his conviction on Count II and remand for a new trial.
FACTS
Stanley Harris and Jewel Washington were married but are now divorced. At all times pertinent to this appeal, a no contact order prohibited Harris from having contact with Washington. Prior to the events discussed below, Harris had twice been convicted of violating the no contact order. In April or May, 2003, Steven Anderson, a pastor from Harris's church, met with Harris and Washington in an effort to help them reconcile. Another counseling session was scheduled with Anderson at a Denny's restaurant on May 3, 2003 at 2:30 p.m.
At approximately 1:00 or 1:30 p.m., Washington called Anderson. Anderson testified that "[S]he sounded panicky and distressed and she was to the point of me needing to direct the conversation to understand what she was saying to me" because she was talking so fast Anderson couldn't make sense of what she was saying. Anderson also stated that it sounded like Washington was crying. Washington told Anderson that Harris had followed her to a mall, "jumped out from behind a truck" and wrestled her to the ground. Washington said she was in a safe place and did not need a ride home. She and Anderson agreed that Anderson would pick her up and they would go together to the meeting at Denny's. Anderson testified that when he picked Washington up for the counseling session, "[s]he seemed distressed. She was wearing a coat and blue jeans. She had some dirt and grass on her clothing. She had a red mark on the left side of her neck and her coat sleeve was torn on the left side at the top."
Report of Proceedings (RP) (9/11/03) at 68-69.
RP (9/11/03) RP at 68.
Id.
RP (9/11/03) at 71.
About a week later, Washington reported this incident to the police. Detective Derek Burney interviewed Harris, who admitted he had seen Washington at the mall but denied that there was an altercation. Harris admitted he knew he should not be seeing Washington because of the no contact order.
On June 7, 2003, Timothy Sorenson and his wife were following a rust colored van. The van was swerving, and they saw the driver lean over toward the passenger and pound on the steering wheel in an apparent argument. The van stopped and the passenger, later identified as Washington, started to get out. Before Washington was out of the van, it began to drive away and Washington fell to the ground. Scared, disheveled and frantic, Washington ran toward the Sorenson's car. The Sorensons drove her to the hospital. Officer Anthony Clapp arrived at the hospital within a few minutes. Washington gave a statement to Officer Clapp. Washington identified Harris as the man who had been driving the van.
Harris was charged with two counts of domestic violence felony violation of a court order: Count I resulting from the May incident, and Count II resulting from the June incident. A jury found him guilty on both counts. Harris appeals, contending that Washington's statements to Pastor Anderson and Officer Clapp were improperly admitted in violation of his Sixth Amendment right to cross-examine witnesses against him.
DISCUSSION
Relying on Crawford v. Washington, Harris contends that the trial court erred in admitting Washington's statements to Pastor Anderson and to Officer Clapp. The United States Supreme Court in 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 stated: the [Sixth Amendment confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.
U.S., 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Id. at 1374.
Id. at 1370.
The Court noted that the Sixth Amendment applies to `witnesses,' or "those who `bear testimony,' and further that `[t]estimony,' in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" While the Court noted that "testimonial" hearsay included "at a minimum . . . prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations," it also stated that "[w]here non-testimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law . ."
Id. at 1364.
Id. at 1374.
Id.
Washington's statements to Pastor Anderson were properly admitted as excited utterances under ER 803(a)(2) and do not fall within Crawford's definition of "testimonial." Pastor Anderson was not a government officer, nor were Washington's statements to him made in contemplation of formal legal proceedings. Washington did not report the May incident to the police until about a week later. The statements were not made specifically to prove that the incident had occurred or what exactly had transpired.
The trial court admitted the statements as excited utterances because they resulted from a startling event, were made while still under the stress of that event, and related to the event. The evidence clearly supports the court's decision. Washington sounded panicky and distressed, was talking fast, and sounded as though she was crying. Pastor Anderson stated that he needed to direct the conversation in order to get Washington to speak coherently. As a result of the conversation, Pastor Anderson agreed to pick Washington up for their counseling session rather than have her arrive alone. And Harris does not argue that Washington's statements are not reliable. As we stated above, these statements were not testimonial, the Crawford rule requiring cross-examination does not apply to them. The trial court did not err in admitting Washington's statements to Pastor Anderson.
State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).
See State v. Orndorff, Wn. App., 95 P.3d 406 (2004).
Regarding Count II, the June incident, the State concedes that many of Washington's statements to Officer Clapp were testimonial under Crawford and were not admissible. We agree and accept the State's concession. We also agree that the error was not harmless. "A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." We reverse and remand for a new trial on Count II.
State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
In a pro se brief, Harris appears to challenge Washington's credibility, which was a question for the jury. Harris also challenges the sufficiency of the evidence and contends the jury was prejudiced. Because Harris presents no argument or citation to authority on jury prejudice, we decline to address that issue. We conclude the evidence supports the verdict of guilt on Count I.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
CONCLUSION
We affirm Harris's conviction on Count I. We reverse his conviction on Count II and remand for a new trial.
SCHINDLER, J., COLEMAN, J. and ELLINGTON, A.C.J.