127 Wash. App. 554 | Wash. Ct. App. | 2005
¶1 Kim Mason was convicted of first degree aggravated murder after his friend, Hartanto Santoso, disappeared. Mason appeals, arguing the trial court violated his confrontation clause rights by permitting witnesses to testify about statements Santoso made before he disappeared. We hold that out-of-court statements made by
¶2 Kim Mason met Hartanto Santoso while the two worked in the same retirement home. Mason was in his early twenties and was a kickboxing instructor and competitor. Santoso, in his early thirties, was an immigrant from Indonesia. The two were friends for approximately two years. Toward the end of 2000, Mason began running into financial difficulties, and his friends suspected that he was addicted to drugs. At that time, Santoso gave money to Mason and helped him find additional jobs.
¶3 On the afternoon of January 23, 2001, Mason invited Santoso to his home. While Santoso’s back was turned, Mason strangled him into unconsciousness then bound and gagged him with duct tape. When Santoso awoke, Mason threatened him with a loaded gun and forced him to write his roommate a letter saying that he was leaving town. Mason then forced Santoso to write him a check for the balance of his bank account. At that point, Mason attempted to fill a syringe with drain cleaner and threatened to inject Santoso. Santoso calmed him down and ultimately convinced Mason to release him. Santoso promised not to contact the police.
¶4 The next day, Santoso’s friend talked Santoso into going to the police department to report the crime. Santoso first went to the Kirkland police, but later that day he spoke with the Redmond police because they had jurisdiction. Police searched Mason’s home and found items that corroborated Santoso’s description of the events. After he was arrested, Mason told the police that he strangled and bound Santoso and threatened him with a gun, but asserted he did so in self-defense because Santoso had attempted to grab Mason’s genitals. Mason claimed the gun was unloaded and
¶5 Mason was charged with first degree kidnapping and first degree attempted robbery, but on January 31, 2001, he was released pending trial. When Santoso learned that Mason had been released, he called his King County victim’s advocate and expressed his profound fear that Mason would kill him. The victim’s advocate helped Santoso obtain a no-contact order.
¶6 At approximately 10:45 p.m. on February 19, 2001, Santoso’s neighbors heard glass breaking and muffled noises coming from Santoso’s apartment. They saw San-toso’s car leave the parking lot about 10 minutes later. The next day, neighbors noticed that Santoso’s front door was open and a trail of blood led from the door to the parking lot. Police found massive amounts of blood in Santoso’s bedroom. The bedroom window was broken, and a cement cinder block was on the floor. On February 21, police found Santoso’s car in the Sea-Tac airport parking lot. The parking stub found in the car indicated that it entered the lot on February 19 at 11:51 p.m. There was a large quantity of blood inside the car, and some was on the car’s exterior. The blood in the apartment, parking lot, and automobile all belonged to Santoso. His body was never found, but police presumed he was dead. Since February 19, 2001, Santoso has not collected any paychecks, established a public record of any kind, or contacted any friends or relatives.
¶7 When questioned, Mason told the police that he was at his girl friend Marina Madrid’s home on February 19, and Madrid corroborated that alibi. Police later learned that Mason had a significant cut on his upper right thigh that was likely inflicted on February 19 by a knife. In early April, police learned that Mason changed his name and put a false address on his driver’s license. Also in April, Marina Madrid admitted to police that on the evening of February 19, Mason called her and asked her to pick him up at the
¶8 Madrid later told the police that Mason had thrown a knife out of the car window while they drove along 1-405. Police found the knife in bushes along the highway, and Santoso’s blood was on the knife. Police also found San-toso’s blood on the passenger side floorboard of Madrid’s car, and they found Mason’s blood on the passenger seat of Madrid’s car. There was a mixed blood sample on the driver’s seat of Santoso’s car, near where the driver’s right thigh would be.
¶9 Mason was charged with first degree aggravated murder. After a 10-week jury trial, Mason was convicted and sentenced to life imprisonment without possibility of parole.
DISCUSSION
I. Mason’s Right to Confront Witnesses
A. The Sixth Amendment and Crawford v. Washington
¶10 Mason challenges the trial court’s decision to allow police officers and a victim’s advocate to testify about statements Santoso made to them. He argues that admitting the out-of-court statements violated his right to confront witnesses against him, as guaranteed by the sixth amendment of the United States Constitution and article I,
¶11 Before Crawford, an out-of-court statement made by an unavailable witness was admissible if the statement had adequate indicia of reliability.
¶12 But in Crawford, the Supreme Court stated that “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”
¶13 In this case, the trial court admitted statements Santoso made to four police officers and a victim’s advocate. These statements involved Santoso’s description of the
¶14 The Supreme Court declined to provide a comprehensive definition of “testimonial,”
¶15 Crawford addresses statements made to government officials during examinations or interrogations initi
¶16 But central to each of these factors, and most important in determining whether a statement is testimonial in this context, is the witness’s purpose in initiating police contact and making the statement.
¶17 If a declarant makes a statement while seeking protection, it is unlikely that he or she intends to make a formal statement, is aware that he or she is bearing witness, or is aware that his or her utterances might ultimately be used in a prosecution. The witness’s focus is on getting help, not establishing or proving a fact to further a prosecution. Therefore, statements seeking help made by someone in immediate peril are not testimonial. We hold that, in determining whether a statement is testimonial for Sixth Amendment purposes, courts must perform a fact-specific analysis to ascertain: (1) whether the declarant initiated the statement, (2) the formality of the setting, and (3) the declarant’s purpose in making the statement. We further hold that statements made while in peril for the purpose of seeking protection, rather than for the purpose of bearing witness, are not testimonial and thus not subject to Crawford's cross-examination requirement.
1. John Haslip’s Testimony
¶[18 First, Mason challenges the trial court’s decision to admit certain aspects of John Haslip’s testimony. Haslip, a corporal with the Kirkland police department, testified that on January 24, Santoso and a friend came to the police station and spoke with him. According to Haslip, Santoso’s eyes were bloody, his face was swollen, and his neck was bruised. Santoso appeared to be extremely frightened. Haslip asked Santoso questions to figure out what had happened to him, and Santoso was reluctant to answer at first. Eventually, Santoso told Haslip about what happened at Mason’s home the day before. After speaking with
¶19 The court admitted this testimony as an excited utterance under ER 803(a)(2). But, assuming this was error under Crawford, the error was harmless. A constitutional error is harmless if, beyond a reasonable doubt, a jury would have reached the same result without the error.
2. John Berberich’s Testimony
¶20 Mason next disputes the admissibility of certain portions of John Berberich’s testimony. Berberich is a detective with the Redmond police department who responded to Haslip’s call and met with Santoso on January 24. He described Santoso’s visible injuries and testified that while he spoke, Santoso periodically cried, and his tears were blood-red. Santoso told Berberich that he was afraid for his life.
¶21 While Mason does not challenge the admission of Santoso’s statement about being afraid, he does challenge Berberich’s frequent references to Santoso’s out-of-court statements while testifying about items he found in Mason’s home, as these items corroborated Santoso’s descrip
¶22 The trial court did not err by permitting this testimony because the testimony was clearly not admitted for the truth of the matter asserted.
3. Kristy Roze’s Testimony
¶23 Mason also contests the admission of certain portions of Kristy Roze’s testimony. Like Berberich, Roze is a detective with the Redmond police department. She testified that Santoso expressed fear about his safety, and the court admitted the statement to establish Santoso’s state of mind at that time. Roze also testified that Santoso asked
¶24 Roze’s testimony does not implicate Crawford concerns. First, the court did not admit Santoso’s statements to prove the truth of the matter asserted. Second, these statements do not implicate Mason, nor do they prove some fact helpful to the prosecution. Nor would Santoso have any reason to expect these statements to be used for prosecution purposes. Instead, Santoso was expressing his fear and asking for Roze’s help to ensure his safety. The trial court did not err.
4. Anne Malins’ Testimony
¶25 Detective Anne Malins, also with the Redmond police department, testified that she took Santoso’s checkbook records into evidence. She explained that she did so because Santoso stated that he had previously written one check to Mason and had begun to write a check during the January 23 incident. The court admitted the statement only to establish why Malins took the checkbook records, and it instructed the jury about the limited reason for admitting the testimony. For the same reasons discussed in the context of Berberich’s testimony, the trial court did not err here. The court clearly limited the admissibility of this testimony, and in this context, Santoso’s statement was not introduced to implicate Mason. Crawford is inapplicable.
5. Linda Webb’s Testimony
¶26 Finally, Mason challenges the admission of Linda Webb’s testimony about certain statements Santoso made to her. Webb, a domestic violence victim’s advocate, testified that she assisted Santoso with “safety planning” on January 29, six days after the assault. She testified that Santoso’s eyes were bright red, he was visibly shaking, and he was crying. She also testified that he was reluctant to get a protective order because he was afraid. Webb testified that Santoso phoned her because Mason had recently been released from jail, and Santoso was hysterical and fright
¶27 Mason argues that a reasonable person in Santoso’s position would expect these statements to be used to further the investigation and prosecution against Mason. We disagree. Every statement Webb testified to involved Santoso’s profound fear and his pleas for help. Santoso was seeking protection, not bearing witness to a crime. And because Webb was acting as a victim’s advocate charged with helping Santoso find safety, Santoso had little reason to expect that his statements to her would ultimately be used to prosecute Mason. We conclude that these statements were not testimonial and that the trial court properly admitted them.
B. Washington’s Confrontation Clause: Article One, Section 22
¶28 Mason also argues that the trial court’s decision to admit the testimony discussed above violated his confrontation rights guaranteed by article I, section 22 of the Washington Constitution because that clause is more protective of confrontation rights than is the Sixth Amendment. We reject Mason’s argument.
¶29 In State v. Gunwall, the Washington Supreme Court held that a court must consider certain factors when determining whether Washington’s constitution should be interpreted as extending broader rights than the federal constitution.
¶30 In this case, Mason argues that he did not need to provide a Gunwall analysis because the Washington Supreme Court already recognized that the state constitution’s confrontation right is broader than the federal constitution’s. Mason cites State v. Foster
C. Forfeiture by Wrongdoing
¶32 The State also argues that Mason’s confrontation claim fails on alternative grounds. According to the State, Mason forfeited his confrontation rights by causing the witness to be unavailable in the first place. The doctrine of forfeiture by wrongdoing
¶33 Mason also argues the court erred by (1) excluding an opinion of the defense’s DNA (deoxyribonucleic acid) expert, (2) permitting certain witnesses to testify that Santoso was dead and Mason had murdered him, (3) admitting evidence of Mason’s prior bad acts, (4) failing to include aggravating factors in the “to convict” jury instruction, (5) permitting the jury to convict of aggravated murder
II. Informing the Jury About the Death Penalty
¶34 During voir dire, the judge instructed the jury venire members about their obligation to apply the law as directed by the court. The court then asked whether any of the jurors would be unable to enforce or apply the law as instructed. One particular juror responded, “If it were the death penalty. I don’t support the death penalty. I would have a hard time with that.” The judge responded:
You should not concern yourselves with what penalty may be administered in the event the jury reaches a finding of guilty, except that the fact a penalty may follow conviction should make you careful.
In response to [the juror’s] statement, I will respond by informing you that this is not a capital case. In other words, this case does not involve a request for the death penalty. The jury will not be involved in any way in determining any sentence which may be imposed, in the event that a jury reaches a verdict of guilty.
Aside from that consideration, would anybody find themselves in a position where they might not be able to apply the law as instructed, if you found yourself thinking that it might be changed somewhat?
[No response.] All right. Thank you. . . .
¶35 Mason now argues that the court committed reversible error by informing the jurors that the State was not seeking the death penalty, in violation of State v. Townsend
“Thank you ... I had intended to let the jury know that I’d forgotten to indicate because when you do hear the term first degree murder, a lot of people think automatically about a*572 death penalty. This is not a case in which the death penalty is involved and will not be a consideration for the jury.“[40 ]
In response to this statement, the Supreme Court held, that “it is error to inform the jury during voir dire in a noncapital case that the case is not a death penalty case.”
¶36 Despite its clear holding, the Townsend court found that the trial court’s error was harmless.
¶37 After research and discussion, the judge composed the answer he would use if a juror were to ask about the death penalty. Defense counsel objected to the language. In response, the judge asked defense counsel how his proposed
this is not a seat-of-the-pants decision. We have had discussions about this issue going back four or five months.
It was my belief when we first started to have these discussions, and it’s even more firmly my belief now, that to not inform the jury that this is not a death penalty case, in my view, would be prejudicial to the defense.
The judge opined that people who would opt off a jury panel because they oppose the death penalty would be naturally pro-defense. Therefore, he concluded that failing to inform the jury, if someone "inquired, about the death penalty would prejudice Mason.
¶38 The trial court did not err by responding to the potential juror’s statement as it did. This case is distinguishable from Townsend because the judge in this case had no intention of discussing the death penalty with the jury unless a juror made it clear he needed to do so. The court’s discussion of the death penalty was short and succinct, and did not emphasize sentencing considerations. The court instructed the jury, both during voir dire and at the close of the case, that the jury was not to consider sentencing in making its decision. The judge was extraordinarily thoughtful about the issue and specifically consulted with defense counsel about it ahead of time. And finally, after he informed the jury that the death penalty was not involved, the judge again asked the jurors if they could apply the law as instructed. When he received no response, he proceeded with the voir dire. The trial court did not violate the
¶39 The remainder of this opinion has no precedential value. Therefore, it will not be published but has been filed for public record. See RCW 2.06.040; CAR 14.
¶40 We affirm.
Baker and Kennedy, JJ., concur.
Reconsideration denied June 10, 2005.
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Mason’s defense focused on the possibility that Santoso staged his own disappearance.
State v. Thomas, 150 Wn.2d 821, 855-56, 83 P.3d 970 (2004) (citing State v. Strauss, 119 Wn.2d 401, 415, 832 P.2d 78 (1992)).
Id. at 856 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled by Crawford, 541 U.S. 36).
Id. at 853 (citing State v. Woods, 143 Wn.2d 561, 595, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001)).
Id. at 59.
Id. at 68 (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.”).
id.
Id. at 51 (alteration in original) (quoting 1 Noah Webster, An American Dictionary of the English Language (1828)).
Id.
This includes prior testimony from a preliminary hearing, before a grand jury, or at a former trial. Id. at 68.
Id.
Id. at 52 (quoting Br. for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3).
Id.
See, e.g., id. at 38-41 (the Crawford Court examined the admissibility of a tape-recorded statement made during a police interrogation); id. at 42-50 (examining the historical background of the confrontation clause and discussing controversial examination practices); id. at 50 (“the principal evil at which the confrontation clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused”).
See, e.g., State v. Powers, 124 Wn. App. 92, 99 P.3d 1262 (2004) (citingPeople v. Moscat, 3 Misc. 3d 739, 777 N.Y.S.2d 875 (2004); People v. Cortes, 4 Misc. 3d 575, 781 N.Y.S.2d 401 (2004); Leavitt v. Arave, 371 F.3d 663, opinion amended and superseded, 383 F.3d 809 (9th Cir. 2004)); State v. Wright, 686 N.W.2d 295 (Minn. Ct. App. 2004), review granted Nov. 23, 2004.
See, e.g., State v. Forrest, 164 N.C. App. 272, 596 S.E.2d 22, 27, review on add’l issues denied, 359 N.C. 193, 607 S.E.2d 653 (2004); People v. Mackey, 5 Misc. 3d 709, 785 N.Y.S.2d 870, 873-74 (2004) (citing People v. Newland, 6 A.D.3d 330, 775 N.Y.S.2d 308, leave to appeal denied, 3 N.Y.3d 679, 817 N.E.2d 835 (2004)).
See, e.g., Powers, 124 Wn. App. at 101 (citing Moscat, 777 N.Y.S.2d at 880).
See, e.g., Forrest, 596 S.E.2d at 27; Moscat, 777 N.Y.S.2d at 878.
See, e.g., Powers, 124 Wn. App. at 101; Mackey, 785 N.Y.S.2d at 874; Moscat, 777 N.Y.S.2d at 879; Wright, 686 N.W.2d at 302.
Crawford, 541 U.S. at 51-52.
See, e.g., Powers, 124 Wn. App. at 101; Mackey, 785 N.Y.S.2d at 874; Moscat, 777 N.Y.S.2d at 879; Wright, 686 N.W.2d at 302.
State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990) (citing State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Bergman, 44 Wn. App. 271, 275, 721 P.2d 522 (1986)).
Crawford indicates that government officials must somehow be involved in the creation of a statement if the statement is to be deemed testimonial. In re T.T., 35 Ill. App. 3d 976, 988, 815 N.E.2d 789 (2004).
When 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. Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985)).
Mason challenges the relevance of the non-hearsay purpose for which the court admitted these statements. But the evidence seized from Mason’s home is relevant to show what took place on January 23. That incident is, in turn, relevant and admissible for reasons discussed below.
106 Wn.2d 54, 61-63, 720 P.2d 808 (1986).
Id., at 62 (citing In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986)).
State v. Reichenbach, 153 Wn.2d 126, 131 n.1, 101 P.3d 80 (2004) (citing State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998)).
White, 135 Wn.2d at 769.
Reichenbach, 153 Wn.2d at 131 n.1 (citing State v. O’Neill, 148 Wn.2d 564, 582, 62 P.3d 489 (2003)).
135 Wn.2d 441, 957 P.2d 712 (1998) (plurality opinion).
148 Wn.2d 122, 59 P.3d 74 (2002).
135 Wn.2d at 466.
Id. at 473-74 (Alexander, J., concurring in part, dissenting in part), 481-94 (Johnson, J., dissenting).
148 Wn.2d at 131.
The doctrine is also known as forfeiture by misconduct or waiver by misconduct.
142 Wn.2d 838, 15 P.3d 145 (2001).
Id. at 842 (quoting Suppl. Partial Report of Proceedings at 2).
Id. at 840.
Id. at 846.
Id. at 847.
Id. at 840.