Opinion
No. 18101-4-III.
Filed: June 22, 2000. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Grant County, No. 98-1-00210-0, Hon. Kenneth L. Jorgensen, 10/02/1998, Judgment or order under review.
John L. McKean, Attorney At Law, for appellant(s).
Carolyn J. Fair, Deputy Prosecutor, for respondent(s).
The jury convicted Robert F. West of attempted second degree burglary and malicious mischief. He appeals, challenging the admission of a co-defendant's statement and the jury's use of a recorded statement during deliberations. Because no abuse of discretion occurred, we affirm.
FACTS
At approximately 2:30 A.M. one morning in April 1998, a security alarm went off at Superior TV in Moses Lake. Deputy Matt Messer responded. He noticed Mr. West popping his head up from behind a recycle bin next to the business. The deputy ordered Mr. West to come out two or three times before he did. Deputy Messer observed a cut cable and padlock near where Mr. West was found. Another officer saw markings on the back door, indicative of an attempted break-in. No burglary tools were found.
Mr. West claimed he was merely looking for boxes. He told the police his roommate, Jason Walters, drove him to the business, but had left when officers arrived. Mr. Walter was soon pulled over nearby, but was mistakenly released. Mr. Walter was picked up again just after 4:00 A.M. and taken to the station. There, Mr. Walter provided a recorded statement just before 5:00 A.M. implicating both himself and Mr. West. Mr. Walter admitted he was at Superior TV earlier with Mr. West, contrary to the information given to the first officer who stopped him. Mr. Walter said the men went to the business so Mr. West could 'try to break into the store and get the . . . get what he saw.' Mr. Walter said Mr. West got out of Mr. Walter's truck and grabbed a backpack from the bed of the truck that contained tools. Mr. Walter admitted he fled the scene when the police arrived after first attempting to warn Mr. West.
Both men were charged with attempted second degree burglary and second degree malicious mischief. The cases were severed. During Mr. West's trial, Mr. Walter was called as a witness. Mr. Walter became unavailable to testify when he claimed his Fifth Amendment right against self-incrimination. Over Mr. West's confrontation objection, the State played Mr. Walter's recorded statement as a statement against Mr. Walter's interest.
During closing arguments, the prosecutor stated without objection, 'I want you to listen to that tape when you go back to the jury room, and listen very carefully.' After the jury left for deliberations, the judge stated, 'There was a suggestion that they could play the tape. I don't let them play the tape.' When the prosecutor asked why, the judge stated, 'Because it's considered testimony like every other bit of evidence, and to allow them to play the tape gives undue emphasis on the tape. But I'm going to wait and see what they do.' The jury soon asked for the tape.
After the judge called the jury in to clarify the need for the tape, the jury made a second inquiry, reporting three jurors could not hear the tape during trial. Due to the poor quality of the courtroom's sound system and the three jurors' inability to hear Mr. Walter's statement, the judge allowed the jury to listen to the tape one time again while in the jury room.
After guilty verdicts on both counts, Mr. West filed this appeal.
ANALYSIS A. Admission of Co-Defendant's Statement
The issue is whether the trial court erred in admitting Mr. Walter's recorded inculpatory statement and concluding it was reliable, admissible hearsay that did not violate confrontation principles.
We review evidence for an abuse of discretion. State v. Ellis, 136 Wn.2d 498, 504, 963 P.2d 843 (1998). The court's discretion in a criminal case is limited by a defendant's confrontation constitutional rights. See U.S. Const. amend. VI; Wash. Const. art. I, sec. 22. The Sixth Amendment's Confrontation Clause 'guarantees the right of a criminal defendant 'to be confronted with the witnesses against him.'' Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); see U.S. Const. amend. VI. 'The Sixth Amendment applies to state courts through the Fourteenth Amendment.' State v. Palomo, 113 Wn.2d 789, 794, 783 P.2d 575 (1989). The Washington Constitution likewise provides the right of confrontation. Wash. Const. art. I, sec. 22. 'The right of confrontation includes the right to cross-examine witnesses.' Richardson, 481 U.S. at 206.
This court engages in a three-part test to determine whether admission of an out-of-court inculpatory statement constitutes reversible error. State v. Rice, 120 Wn.2d 549, 564, 844 P.2d 416 (1993).
First we must determine whether the statements are admissible under our Rules of Evidence. Second, we consider whether additional indicia of reliability satisfy the requirements of the confrontation clause. Finally, even if a statement fails to meet these requirements, we consider whether or not the error was harmless.
Id. (citing State v. Whelchel, 115 Wn.2d 708, 714-15, 801 P.2d 948 (1990)).
Here, the State argues Mr. Walter's hearsay statement is admissible as a statement against interest under ER 804(b)(3). A declarant's statement implicating himself and another defendant is not always considered against interest. 'A statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest.' Rice, 120 Wn.2d at 565 (quoting Fed.R.Evid. 804(b)(3), advisory committee note exception 3)). The surrounding circumstances need investigation. Rice, 120 Wn.2d at 565. In Mr. Walter's statement, he contradicts his prior response to the police that denied being at the scene of the crime.
He admits he was in the store earlier in the day with Mr. West. Mr. Walter states that he knew he was taking Mr. West back to the business to steal stereo equipment. He admits acting as a lookout and attempting to warn Mr. West of the approaching police. Thus, Mr. Walter admitted his participation in the burglary of Superior TV as an accomplice. Therefore, Mr. Walter's statement is admissible under the Rules of Evidence.
Even so, additional indicia of reliability are required to establish the declarant's perception, memory, and credibility. Rice, 120 Wn.2d at 565-66. There are nine criteria that test the reliability of out-of-court statements:
(1) whether the declarant had an apparent motive to lie; (2) whether the general character of the declarant suggests trustworthiness; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) whether the timing of the statements and the relationship between the declarant and the witness suggest trustworthiness; (6) whether the statements contained express assertions of past fact; (7) whether cross-examination could not help to show the declarant's lack of knowledge; (8) whether the possibility of the declarant's recollection being faulty is remote; and (9) whether the circumstances surrounding the statements give no reason to suppose that the declarant misrepresented the defendant's involvement.
Rice, 120 Wn.2d at 566 (citing Whelchel, 115 Wn.2d at 722-25). It is not necessary that all of the indicia of reliability be present; rather, the court must be satisfied after weighing the various factors that the balance weighs in favor of reliability. State v. Anderson, 107 Wn.2d 745, 753, 733 P.2d 517 (1987).
On balance, these factors support the court's exercise of discretion to admit Mr. Walter's statement. Nothing in this record suggests he had a reason for misrepresenting Mr. West's involvement. Giving the statement did not lessen Mr. Walter's culpability, nor did it support any lesser charge, favor, or plea bargain. No reasonable person in Mr. Walter's position would say he or she was at Superior TV to commit a burglary if the statement was not true. The statement was taped obviating the need for others to hear it. Whelchel, 115 Wn.2d at 722. While statements to police officers generally are less reliable than statements to friends, statements to a police officer soon after an event may be considered reliable. Whelchel, 115 Wn.2d at 723. Mr. Walter's interview took place merely two and one-half hours after the incident. The statement contained express assertions of past facts, giving detailed knowledge of the crime scene and circumstances, thus making it unlikely that cross-examination would reveal a lack of first-hand knowledge. The possibility that Mr. Walter's memory was faulty is remote because very little time had passed. Nothing in the record suggests that Mr. Walter would falsify Mr. West's involvement; indeed, they were close friends and roommates.
We conclude that not only did Mr. Walter's statements fall within the ER 804(b)(3) exception, it met the additional reliability standards.
Accordingly, we hold the trial court did not abuse its discretion in admitting the statement. Therefore, we need not address harmless error.
B. Jury Misconduct
The issue is whether the trial court erred by abusing its discretion when allowing the jury to listen to Mr. Walter's recorded statement in the jury room during deliberations.
Mr. West does not present any legal authority to support his claim that the trial court erred in allowing the jury to listen to the tape. In general, arguments not supported by citation to legal authority are not reviewable.
See RAP 10.3(a)(5). Nevertheless, the argument would fail. The jury requested the tape because three of its members said they had not heard it clearly when first played. The judge set a reasonable limit by allowing the jury to hear the tape one time before withdrawing it. Both the reason given and the procedure appear reasonable. Thus, this exercise of discretion was tenable and not error.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, A.C.J.
We concur: SWEENEY, J., KATO, J.