Archive for the ‘Confrontation Clause’ Category

WA Court of Appeals – Div. I: Confrontation Clause Requires the Witness, Not a Piece of Paper for DOL Testimony

September 25, 2010

State v. Jasper

I apologize for the link to the Washington Courts site. Google Scholar is slacking with its polling, even though this opinion was entered almost a week ago.

Anyhow. Jasper was driving. He didn’t have a license. Because the Prof is cheap and lazy and doesn’t know how to add youtube to this properly, I will instead just give you a link to the kid from the Charlie Bit Me Video….his name is Jasper and he’s pushing Charlie around in a car. Its the first thing that came up, and its super cute!

http://www.youtube.com/watch?v=hbe1ZqMJ210

Anyhow, you can imagine what Jasper was charged with…not the cute Jasper in the video, the abstract one in the opinion.

So the State, to prove that there was no license came up with an affidavit from the DOL saying they did a search and found no valid license. Unfortunately, it’s hard to cross-examine an affidavit. This tends to violate the confrontation clause, which requires an opportunity to cross-examine. The supreme court analyzed our law in relation to the recent United States Supreme Court Case of Melendez-Diaz:

The affidavit is not merely a certification that the agency records attached to the affidavit were true and correct copies of records possessed by the DOL. Without question, such a statement would be of the type approved by Melendez-Diaz. 129 S. Ct. at 2539; see, e.g., United States v. Mallory, __ F. Supp. 2d __, 2010 WL 1286038, *3 (E.D. Va. 2010) (“[T]he FedEx custodian’s certification in this case does not comment on the content or meaning of the record. . . . [and] does not attempt to describe or decipher the content of the business record” but merely certified that the attached documents were true copies of records kept in the regular course of business).

Instead, the affidavit herein contains ex parte statements made for the purpose of establishing the fact that Jasper was driving with a suspended license on the day of the collision. The affidavit first asserts that the affiant performed a diligent search, implying that the person searching the records knew what records to search for, knew how to find them in the database, and conducted the search correctly. The affidavit next states that Jasper’s license was suspended on a particular day. This statement explains what the results of the records search revealed and what the witness concluded from the records searched. These statements are testimonial because they constitute factual assertions, intended to prove an element of a crime charged. They are not mere statements of the authenticity of the attached records themselves. The affidavit also contains an indirect assertion regarding the non-existence of a record, impliedly asserting that no agency records exist indicating either that Jasper avoided suspension of his license by properly attending to the prior citations referenced in the two letters or that his license was ever reinstated following such a suspension. A statement asserting that a particular record does not exist, when offered to establish that fact, is testimonial.

Let’s hope Jasper remembers to get his license…and hopefully some insurance…before his next crash.

 

 

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Posted in Confrontation Clause, Criminal Law, Division I, Judge Stephen J. Dwyer - Draft Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Victim Turns to Defendant for Hindering Investigation

June 13, 2010

State v. Budik

This is an unusual case in that a victim of a crime ends up being the defendant. Budik left a party with Walton who was a gang member. Walton was driving and Budik was in the passenger seat as they began to leave the party. Eyewitnesses stated that three individuals (Miller, Davis, and Nave) were standing at the passenger window of the vehicle when there were shots fired. Walton was killed and Budik was injured. Witnesses stated that Davis was the shooter and Miller transported him away from the scene. Budik said he did not know who shot him and refused to cooperate with the police. The police found a single shell casing inside the vehicle and determined that the shooter must have shot inside the vehicle and thus Budik must have been able to identify the shooter. Budik stated that he was bent over getting his drink went the shots were fired and thus didn’t see who it was.

Gangmember with gun

However, two days later, Budik told Walton’s mother that Nave was the shooter. Ms. Walton related this to the police and they then charged Budik with First Degree Rendering Criminal Assistance.

"A person is guilty of rendering criminal assistance in the first degree if he . . . renders criminal assistance to a person who has committed or is being sought for murder in the first degree or any class A felony or equivalent juvenile offense." RCW 9A.76.070(1). "Rendering criminal assistance" is defined in relevant part as,

with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime . . . or is being sought by law enforcement officials for the commission of a crime . . . he: . . . .(4) Prevents or obstructs, by use of force, deception, or threat, anyone from performing an act that might aid in the discovery or apprehension of such person.

Davis and Miller were charged with murder, but Nave was never charged because there was no direct evidence against him. At Budik’s trial, he stated that he never told Ms. Walton that Nave was the shooter and that he never attempted to mislead authorities or send them in the wrong direction. Detectives in the case attributed difficulties in the investigation to the general fear in the community of gang members. The jury convicted Budik as charged.

Budik appealed claiming that there was no evidence that he intended to prevent the apprehension of the assailants and there was no evidence that the officers relied on his statement or that it actually hindered the investigation. He argued that the evidence only showed that he feared retaliation and that his actions were meant to prevent that retaliation. However, the Court held that based on this motive the jury could infer that his intent was to prevent, hinder, or delay the apprehension and prosecution of the murderers. In addition there is nothing in the statute that requires that the police rely upon the deception. A detective testified that Budik’s testimony would have been key as to Nave’s involvement in the shooting.

Budik then argued that he had a constitutional right to not answer police questions. However, the right to remain silent is a right to not self incriminate. Budik was not a suspect; he was a witness. In addition, Budik was prosecuted for lying, not remaining silent.

Budik made one last argument that he had ineffective assistance of counsel because his attorney did not submit a jury instruction for duress. However, Budik’s argument at trial was not that he was under duress and that was why he refused to cooperate. His argument was that he simply didn’t know who the shooter was. Thus the ineffective assistance of counsel argument failed as well.

So the victim of a shooting goes off to jail. But I’m hoping I will never know the kind of fear that some communities have of cooperating with the police and pointing out criminals. It must be a very lost feeling.

Posted in Confrontation Clause, Criminal Law, Division III, Fifth Amendment, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, WA Court of Appeals | Leave a Comment »

Div II- nicknames admitted were hearsay and violated the confrontation clause.

May 4, 2010

 

State v. McDaniel and Marlow (consolidated)

McDaniel appeals convictions of first degree attempted murder, first degree robbery and unlawful possession of a firearm. His accomplice, Marlow, appeals his convictions of first degree robbery and first degree unlawful possession of a firearm. They argue that the the court erred in admitting hearsay evidence of their nicknames, violating their sixth amendment right to confrontation, the court erred by refusing to sever the unlawful possession of firearms, and that their counsel was ineffective.

McDaniel: The court analyzed the hearsay testimony of the nicknames admitted under Crawford, asking whether the evidence was testimonial.  Here, the court found that the out of court statements made under police questioning are testimonial.  (The dissent argued that the nicknames were admissible under ER 804 (b)(4)).  The court also found that the court abused its discretion when they admitted evidence of his resisting arrest and flight.  The court held that these errors were not harmless and remanded for a new trial. 

The appeals court affirmed Marlow’s convictions.

The court held that the defendants failed to renew their severance motions during trial and held the issue was waived.

The court held that McDaniel’s and Marlow’s argument regarding ineffective assistance of counsel fail.

Posted in Confrontation Clause, Constitutional Law, Criminal Law, Division II, Evidence, Hearsay, Ineffective Assistance of Counsel, Judge Chris Quinn-Brintall- Draft Dissent, Judge David H. Armstrong - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Sixth Amendment, WA Court of Appeals | Leave a Comment »

WA Legal Roundup: Division II

February 2, 2010

State of WA v. Alvarez-abrego

Alverez-abrego was caring for his girlfriend’s children.  When the children’s mother returned and noticed that one of the children had a swollen head she took the child to the hospital and the child was diagnosed with a skull fracture.  The mother told the doctor that one of her children had stated that Alverez-abrego had thrown the injured child against a wall.  The trial court allowed this double hearsay to come in through the doctor who was not allowed to state who allegedly threw the child but just that he sustained the injury from being thrown against a wall.  Alverez-Abrego was convicted.  He appeals his conviction, arguing that the court erred in allowing the hearsay within hearsay thereby violating the confrontation clause. 

The appeals court held that the trial court erred in admitting the double hearsay because there was no exception for the child’s statement to the mother since the child was an uninjured declarant.  The appeals court, however, held that the error was harmless because the State had established “overwhelming untainted evidence of Alvarez-Abrego’s guilt.” 

Affirmed.

Posted in Confrontation Clause, Constitutional Law, Criminal Law, Division II, Judge Chris Quinn-Brintall- Draft concur in result, Judge David H. Armstrong - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Sixth Amendment, WA Court of Appeals | Leave a Comment »

Excited Utterance Still Exciting: No Violation of Confrontation Clause

December 31, 2009

State v. Pugh

Pugh beat up Mrs. Pugh. She immediately called 911 while he was within eyesight. Her statements that Pugh was beating her up were an excited utterance and the jury hearing the statements was no violation of the confrontation clause.

To determine if a statement is in fact an excited utterance, the courts look to four factors:

(1) whether the speaker is speaking of events as they are actually occurring or instead describing past events; (2) whether a reasonable listener would recognize that the speaker is facing an ongoing emergency; (3) whether the questions and answers show that the statements were necessary to resolve the present emergency or instead to learn what had happened in the past; and (4) the level of formality of the interrogation.

The court went on to explain that the statement to the 911 operator was an excited utterance:

     Here, read out of context, some of Bridgette Pugh’s statements appear to describe past events. For example, she said that “[m]y husband was beating me up really bad.” She also said that he was walking toward the street and that she could not see him, indicating that she was no longer threatened by him. On the other hand, many of her statements during the call show that her overriding purpose in calling 911 was to obtain police assistance to ensure her safety and medical assistance for her injuries. Although she could not see Mr. Pugh, she expressed concerns about being beaten again if she went outside. She obviously thought he was still close by and remained a danger, and in fact he was arrested outside the apartment in the parking lot just as Officer Meissner was leaving the building.

      A number of the 911 operator’s questions and Mrs. Pugh’s responses also indicate that responses were sought to resolve a present emergency, including questions about whether Pugh was armed, whether he had been drinking, and questions about his identity. The Court in Davis indicated that statements might be nontestimonial if police interrogation, objectively viewed, was an effort to establish an assailant’s identity so that dispatched officers might know whether they would be encountering a violent felon. That appears to be the case here.

The court then continues into an interesting discussion on the development of the excited utterance hearsay exception, its applicability given the confrontation clause, and the development of the hearsay rule as arising from res gestae (and its pre-constitutional development). Its an interesting read if you’re a legal history buff.

Conviction affirmed.

Posted in Chief Justice Barbara Madsen - Draft Majority, Confrontation Clause, Criminal Law, Excited Utterance, Hearsay, Justice Charles Johnson - Concur in Majority, Justice Debra Stephens - Signed Concurrence, Justice Gerry Alexander - Concur in Majority, Justice Jim Johnson - Concur in Majority, Justice Mary Fairhurst - Concur in Majority, Justice Richard Sanders - Draft Dissent, Justice Sue Owens - Concur in Majority, Justice Tom Chambers - Draft Concurrence, WA Supreme Court | Leave a Comment »

Washington Legal Roundup – Division I

November 24, 2009

State v. Lui

Sione Lui was convicted of second degree murder for the strangulation death of his fiancée, Elaina Boussiacos.  He argued on appeal that his Sixth Amendment right to confrontation was violated because the medical examiner that performed the autopsy was not called as a witness.  Instead, the medical examiner’s supervisor, who had overseen all of the investigation and signed off on the medical examiner’s report was called. 

The case hinged on whether the report itself was “testimonial” under Crawford v. Washington and the more recently decided Melendez-Diaz v. Washington.  The Court of Appeals determined that Melendez-Diaz was distinguishable.  In Melendez-Diaz the U.S. Supreme Court held that admission of chemical drug test report that was submitted at trial without the testimony of the scientist violated the Sixth Amendment.

Unlike in Melendez-Diaz, however, a medical examiner who had signed off in the report in Lui was called to testify and subjected to “the crucible of cross examination.”

Look for the Washington Supreme Court and perhaps the U.S. Supreme Court to take a look at this case.

Posted in Confrontation Clause, Constitutional Law, Criminal Law, Division I, Judge J. Robert Leach - Concur in Majority, Judge Linda Lau - Draft Majority, Judge Mary Kay Becker - Concur in Majority, Sixth Amendment, WA Court of Appeals | Leave a Comment »

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