345 P.3d 36
Wash. Ct. App.2015Background
- Victim Philana McComas went to the sheriff’s office after an incident with her husband Michael on Nov. 15, 2012; deputies observed visible injuries consistent with assault.
- Deputy Cotte took an audio-recorded statement from Philana at the home; at its close he asked if she declared under penalty of perjury that the statement was true, and she said yes; the transcription was not signed by her.
- Philana later recanted in a second (unrecorded) interview and testified at trial minimizing the choking allegation; she also testified she did not recall being advised of or understanding "perjury." Trial court found her recantation testimony not credible.
- The trial court admitted Philana’s recorded police statement as substantive prior inconsistent statement under ER 801(d)(1)(i) applying the Washington Supreme Court’s reliability test from State v. Smith.
- Jury acquitted Michael of second-degree strangulation but convicted him of fourth-degree domestic assault; Michael appealed arguing the recorded statement was inadmissible because it was not sworn and police interview is not a qualifying "other proceeding."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility: whether a prior inconsistent police interview can qualify as a “trial, hearing, or other proceeding” under ER 801(d)(1)(i) | State: Smith’s reliability-based test allows police interviews to qualify when minimal guarantees of truthfulness exist | McComas: police interviews are not "proceedings"—Smith improperly expands the rule; prefer a bright-line exclusion | Court: Bound by Smith; reliability is the controlling test; police interviews can qualify under Smith’s factors |
| Oath requirement: whether the recorded statement satisfied ER 801(d)(1)(i)’s oath/penalty-of-perjury requirement | State: the statement carried minimal guarantees of truthfulness under Smith | McComas: statement was not sworn, not signed, and therefore fails ER 801(d)(1)(i) and Smith’s guarantees | Court: Statement did not meet statutory/oath formalities (no signed transcription) and thus admission under ER 801(d)(1)(i) was erroneous |
| Confrontation/constitutional issue from admitting prior statement | State: no Confrontation Clause problem because declarant testified and was cross-examined at trial | McComas: admission of unsworn out-of-court statement implicates confrontation concerns | Court: No confrontation problem where witness testifies and is cross-examined (Owens); Crawford does not change ER 801(d)(1)(i) analysis here |
| Prejudice/harmlessness: whether admission of the statement requires reversal | State: any error was harmless given other evidence | McComas: erroneous admission was prejudicial | Court: Error was harmless — substantial independent evidence supported fourth-degree assault conviction |
Key Cases Cited
- State v. Smith, 97 Wn.2d 856 (reliability-based test for admitting sworn or reliable prior inconsistent statements as "other proceeding")
- State v. Sua, 115 Wn. App. 29 (prior inconsistent statements not satisfying oath formalities are inadmissible under ER 801(d)(1)(i))
- Crawford v. Washington, 541 U.S. 36 (limits on admitting testimonial hearsay under the Confrontation Clause; court explains limited relevance here)
- United States v. Owens, 484 U.S. 554 (no confrontation violation where witness testifies and is cross-examined about prior statements)
- State v. Nelson, 74 Wn. App. 380 (example of prior statement satisfying statutory oath guarantees)
- State v. Thomas, 150 Wn.2d 821 (harmless-evidence standard for non-constitutional evidentiary error)