Opinion
No. 52959-5-I
Filed: February 28, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-06347-5. Judgment or order under review. Date filed: 09/03/2003. Judge signing: Hon. Palmer Robinson.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Harlan R Dorfman, Attorney at Law, PO Box 75505, Seattle, WA 98175-0505.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Testimonial evidence is inadmissible at trial unless the defendant has had an opportunity to cross-examine the declarant. In this case, while describing their investigation of the crime, police officers testified about information furnished by two witnesses who did not testify at trial. The State concedes that at least some of this testimony violated the defendant's right to confront witnesses against him. Assuming the testimony was inadmissible and violated the defendant's constitutional rights, because of the overwhelming untainted evidence against the defendant, any error was harmless.
Facts
At approximately five in the morning on February 18, 2003, Peter Nguyen was delivering newspapers along his paper route in a Seattle neighborhood near Children's Hospital. He was driving slowly on a dead-end street when he thought he heard someone coming out of a house where he had noticed frequent activity in the past. He drove by the house and stopped a few houses away. He left his keys in the car with the engine running while he delivered two newspapers.
When he returned to his car, a man was sitting in the driver's seat. Nguyen told the man to `get out' of his car. Through the open window, the man sitting in the car pushed Nguyen back with one hand and punched him in the chest with the other hand. Nguyen tried to get in the car, but the man put the car in gear and began to move forward. Not able to hold onto the car, Nguyen pulled the man's glasses off his face and threw them onto the street. The man sped up and drove away.
5RP 31.
Nguyen went to nearby Children's Hospital and called the police. Two police officers arrived and drove Nguyen back to the scene. They recovered the glasses Nguyen had thrown out of the car. Nguyen directed the police to the house where he had heard someone leave just before he got out of his car. At the house, the police encountered Justin Stoltman. Stoltman said Martin Bailey had been at the house earlier that morning, but left after an argument. Stoltman told the officers that after Bailey left, he heard a car screech. Stoltman also said that Bailey was staying at Seal's Motel. The police officers searched the local area, but were unable to find Nguyen's car.
Detective Magan was assigned to the case a couple of days later and received the incident report written by the officers who responded to Ngyuen's call. Detective Magan went to Seal's Motel, but the manager told him Bailey was no longer staying there. The manager gave the officer a photocopy of Bailey's identification card.
Six days after the incident, Detective Magan showed Nguyen a photomontage and Nguyen identified Bailey as the man who had taken his car.
The State charged Bailey with second degree robbery. Bailey waived his right to counsel and represented himself at trial. A jury convicted him and the trial court imposed a mid-range sentence. Bailey appeals.
Analysis
In his testimony, Detective Magan recounted Stoltman's and the motel manager's statements. The court also admitted the photocopy of Bailey's identification card the motel manager gave to Detective Magan. Bailey objected to Detective Magan's testimony and the admission of the photograph on the ground that the evidence was unsubstantiated since neither Stoltman nor the motel manager testified at trial. The State argued that the testimony was not offered to prove the truth of the matter asserted, but was offered for the non-hearsay purpose of explaining why Detective Magan showed Nguyen a photomontage containing Bailey's photograph. The trial court overruled Bailey's objection.
The State also obtained a color copy of the same photograph from the Department of Licensing and introduced it into evidence.
Detective Magan was unable to locate Stoltman. The State obtained a material witness warrant for Stoltman, but was not able to secure his presence for trial.
Relying on the Supreme Court's recent decision in Crawford v. Washington, Bailey argues that his Sixth Amendment confrontation rights were violated by the admission of hearsay statements made by nontestifying witnesses.
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The confrontation clause of the Sixth Amendment gives an accused the fundamental right to confront the witnesses against him. The central function of this right is to protect individuals from the use of ex parte statements as evidence against them in a criminal trial. The confrontation clause bars the admission of testimonial statements made by witnesses outside of court, unless the witnesses are unavailable and the defendant had a previous opportunity to cross-examine them. The Crawford Court expressly declined to provide a comprehensive definition of `testimonial statements.' However, the Court stated that `[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.' The Court noted that formal `[s]tatements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard.'
Crawford, 124 S. Ct. at 1359.
Crawford, 124 S. Ct. at 1363.
Crawford, 124 S. Ct. at 1369.
Crawford, 124 S. Ct. at 1374.
Crawford, 124 S. Ct. at 1374.
Crawford, 124 S. Ct. at 1364. In contrast, casual statements to an acquaintance are not testimonial. Crawford, 124 S. Ct. at 1364. Nor are statements to a coconspirator or business records testimonial. Crawford, 124 S. Ct. at 1367.
The statements of Stoltman and the motel manager were taken by police officers while investigating the robbery. The State concedes that, at least with respect to the statements made by Stoltman and the motel manager, the statements were testimonial and inadmissible. Even if we assume all the evidence Bailey challenges Stoltman's statements, the motel manager's statements and the photocopy of Bailey's photograph was inadmissible under Crawford, the admission of the evidence was harmless in this case.
The State contends that the photograph provided by the motel manager was not an `assertion' and was not hearsay. ER 801(a).
Confrontation clause violations are subject to harmless error analysis. To determine whether a constitutional error is harmless, this court applies the "overwhelming untainted evidence test." Under this test, "if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt", then the error is harmless.
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); U.S. v. Nielsen, 371 F.3d 574 (9th Cir. 2004) (applying harmless error analysis to a Crawford violation); State v. Portnoy, 43 Wn. App. 455, 462, 718 P.2d 805 (1986).
State v. Palomo, 113 Wn.2d 789, 798, 783 P.2d 575 (1989) (quoting State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
Palomo, 113 Wn.2d at 799 (quoting Guloy, 104 Wn.2d at 426).
Here, the untainted evidence was overwhelming. At trial, which occurred five months after the robbery, Nguyen testified that he had an excellent opportunity to see Bailey at the time of the robbery. Nguyen said the internal car light was on, his face was only about ten inches from Bailey's, and Bailey looked directly at him. At trial, Nguyen said he was `100 percent' sure Bailey was the person who drove away in his car. Within a week of the robbery, Nguyen identified Bailey in a photomontage `without hesitation.'
5RP 48-49.
4RP 112.
The crux of the State's case was the victim's testimony and his photomontage identification of Bailey. During closing argument, the State did not refer to Stoltman or any of the out-of-court statements. The State focused on the certainty of Nguyen's identification of Bailey in the photomontage and at trial. The prosecutor also pointed out that Nguyen remembered Bailey well enough to recognize him in the photomontage even though Bailey was not wearing glasses in the photograph. The State suggested that the glasses were important evidence too, because they were found in the location Nguyen described and therefore corroborated his testimony and also because the glasses were similar color and shape to the glasses worn by Bailey in his photo identification. The State pointed out that Nguyen did not know Bailey and had no motive to falsely identify him.
The challenged testimony did not directly implicate Bailey in any crime and was not significant in the context of the case. There is no doubt that the jury would have reached the same result in the absence of this evidence.
Pro se, Bailey contends that before allowing him to represent himself at trial, the trial court failed to ensure that he made a voluntary, knowing, and intelligent waiver of counsel.
The other issue raised in Bailey's pro se supplemental brief, the hearsay statements of Stoltman and the motel manager, is adequately addressed by his appellate counsel.
A defendant wishing to proceed pro se must make an unequivocal request to do so and the trial court must ensure that the waiver of counsel is knowing, voluntary, and intelligent. The preferred method of determining whether a defendant's waiver of counsel is knowing, intelligent, and voluntary is for the trial court to conduct an on-the-record colloquy `detailing at a minimum the seriousness of the charge, the possible maximum penalty involved, and the existence of technical, procedural rules governing the presentation of the accused's defense.'
State v. DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991).
State v. Silva, 108 Wn. App. 536, 539, 31 P.3d 729 (2001).
Bailey claims that the trial court's colloquy was inadequate because the court did not inform him of the elements of the charged crime, the defenses available to him, or various potential consequences of conviction such as loss of the right to possess a firearm. But review of the record of the colloquy between Bailey and the trial court reveals that Bailey chose to represent himself because he and his counsel disagreed about strategy and Bailey felt he could do a better job because he had more time to devote to his case. The record also demonstrates that Bailey was aware of the nature of the charge he faced, the maximum penalty, and the potential risks and challenges of representing himself. Although the court's colloquy did not include potential defenses or specific elements the State would have to prove, contrary to Bailey's argument, there is no exact formula for the required colloquy. Here, we are able to ascertain from the record that the colloquy enabled Bailey to make his decision to proceed pro se `with his eyes open.' The court did not abuse its discretion in finding that Bailey made a knowing, voluntary and intelligent waiver of counsel.
Silva, 108 Wn. App. at 540.
We affirm.
BAKER, KENNEDY and AGID, JJ.