111 P.3d 844 (Wash. 2005), 73893-9, State v. Davis

Docket Nº:73893-9.
Citation:111 P.3d 844, 154 Wn.2d 291
Opinion Judge:IRELAND
Party Name:STATE of Washington, Respondent, v. Adrian Martell DAVIS, Appellant.
Attorney:Washington Appellate Project, Nancy Collins, Jason Saunders, Seattle, for Appellant., Norm Maleng, King County Prosecutor, Julie Cook, Deputy, James Whisman, Deputy, Seattle, for Respondent., Suzanne Lee Elliott, Jeffrey L. Fisher, Scott Carter-Eldred, Seattle, for Amicus Curiae Wash. Ass'n of Cr...
Case Date:May 12, 2005
Court:Supreme Court of Washington

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111 P.3d 844 (Wash. 2005)

154 Wn.2d 291

STATE of Washington, Respondent,


Adrian Martell DAVIS, Appellant.

No. 73893-9.

Supreme Court of Washington, En Banc.

May 12, 2005.

Argued Sept. 14, 2004.

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[Copyrighted Material Omitted]

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[154 Wn.2d 294] Washington Appellate Project, Nancy Collins, Jason Saunders, Seattle, for Appellant.

Norm Maleng, King County Prosecutor, Julie Cook, Deputy, James Whisman, Deputy, Seattle, for Respondent.

Suzanne Lee Elliott, Jeffrey L. Fisher, Scott Carter-Eldred, Seattle, for Amicus Curiae Wash. Ass'n of Criminal Defense Attorneys.


[154 Wn.2d 295] ¶ 1 This case requires us to determine whether the admission of a 911 call violated the defendant's Sixth Amendment right to confrontation under the United States Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We hold that emergency 911 calls should be assessed on a case by-case basis and that the statements made should be individually evaluated for admissibility in light of the confrontation clause. We hold that overwhelming untainted evidence supports Adrian Davis's conviction and that any error in admitting "testimonial" statements without cross-examination was harmless beyond a reasonable doubt.

¶ 2 The defendant also claims that the jury instructions were fatally flawed because the element that raises the crime of domestic violence violation of a court order from a misdemeanor to a felony was not included in the "to convict" instruction, but rather was placed in a special interrogatory. We hold that such bifurcation is constitutionally permissible where the legislature has created a statutory framework that establishes a base crime and provides for elevated penalties upon proof of an additional fact as determined by a unanimous jury. We therefore affirm the Court of Appeals.


¶ 3 On February 1, 2001, Michelle McCottry called 911. McCottry hung up Before speaking to anyone. The 911 operator called McCottry back and asked her what was happening. McCottry was hysterical and crying as she responded, "He's here jumpin' on me again." Ex. 2 (911 audiotape). The 911 operator asked who McCottry was referring to, what his relationship to her was, and whether he had been drinking. McCottry identified her assailant as Adrian Davis. She told the operator that Davis had used his [154 Wn.2d 296] fists to beat her and that he had left the residence moments earlier. McCottry indicated

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that she had a protective order against Davis.

¶ 4 Police officers Mark Jones and Steve Tamanaha responded within four minutes of McCottry's call to 911. They noted that McCottry was still very upset and had what appeared to be fresh injuries on her forearm and her face. The officers observed McCottry's frantic efforts to gather her belongings and her children so that they could leave the residence.

¶ 5 Davis was charged with one count of felony violation of the provisions of a domestic no-contact order under RCW 26.50.110(1), (4). The State's only witnesses were the two police officers who responded to the 911 call. Both officers testified that McCottry exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries. A certified copy of the no-contact order was admitted into evidence.

¶ 6 McCottry did not testify. Although she initially cooperated with the prosecutor's office, the State was unable to locate McCottry at the time of trial. The only evidence linking Davis to her injuries was the tape recording of the 911 call. 1 The defense argued that admission of the 911 tape would violate Davis's right of confrontation, but the court admitted the tape under the excited utterance exception to the hearsay rule. At trial, the court denied the request of Davis's counsel for a missing witness instruction concerning McCottry.

¶ 7 The "to convict" instruction told the jury to convict Davis of domestic violence violation of a court order if the State proved each of the following elements beyond a reasonable doubt:

(1) That on or about February 1, 2001 the defendant willfully had contact with Michelle McCottry;

[154 Wn.2d 297] (2) That such contact was prohibited by a no-contact order;

(3) That the defendant knew of the existence of the no-contact order;

(4) That the acts occurred in the County of King.

Clerk's Papers at 21 (Instruction 9).

¶ 8 Instruction 12 directed the jurors to use the special verdict form only if they found the defendant guilty of the crime of violation of a no-contact order. The special verdict form asked if Davis's conduct that constituted a violation of the no-contact order was an assault. In order to answer the special verdict form in the affirmative, the jury was instructed to be unanimously satisfied beyond a reasonable doubt that "yes" was the correct answer. These instructions followed the Washington Pattern Jury Instructions. See 11 Washington Pattern Jury Instructions: Criminal 36.51, 36.54-36.55 at 182-83, 187-89 (2d ed. Supp.1998) (WPIC).

¶ 9 Davis did not object to the jury instructions, but he did take exception to the court's refusal to give his proposed missing witness instruction. The jury rendered a general verdict of guilty and answered "yes" to the special verdict form.

¶ 10 On appeal, the Court of Appeals rejected Davis's confrontation clause argument. Relying on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court of Appeals held that the trial court properly classified the 911 call as an excited utterance, which is a firmly rooted exception to the hearsay rule and thus satisfies the requirements of reliability. The court also rejected Davis's arguments that the trial court erred in refusing the missing witness instruction and in placing the assault element in a special interrogatory rather than placing it in the "to convict" instruction. State v. Davis, 116 Wash.App. 81, 64 P.3d 661 (2003).

¶ 11 This court granted review and initially consolidated the case with State v. Mills, No. 73894-7 (Wash. Apr. 28, 2003), because the primary issue in each case was the [154 Wn.2d 298] propriety of the "to convict" jury instruction. The cases were argued on November 19, 2003.

¶ 12 Before this court issued an opinion in this case and the Mills case, the United States Supreme Court issued its opinion in Crawford, which altered confrontation

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clause analysis. The Crawford court held that an out-of-court "testimonial statement" of a witness is inadmissible unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine him or her. On April 30, 2004, Davis filed a motion for oral argument in light of Crawford. The State also requested oral argument.

¶ 13 We granted the parties' requests for additional briefing and argument on the issues raised by Crawford. After rehearing, we deconsolidated the Davis and Mills cases and treated them as companion cases, issuing a separate opinion in each case.


¶ 14 1. Did the trial court err in admitting Michelle McCottry's conversation with the 911 operator?

¶ 15 2. Did the trial court err in placing the element that raises the crime from a misdemeanor to a felony in a special verdict form rather than in the "to convict" instruction?


Confrontation Clause

¶ 16 The Sixth Amendment confrontation clause provides: In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. U.S. Const. amend. VI. The Crawford court held that the confrontation clause does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears 'adequate indicia of reliability.' 541 U.S. at 40, 124 S.Ct. 1354 (quoting Roberts, 448 U.S. at 66, 100 S.Ct. 2531). Under Roberts, adequate reliability could be inferred when the statement either (1) falls within a firmly rooted [154 Wn.2d 299] hearsay exception or (2) contains particularized guaranties of trustworthiness. 448 U.S. at 66, 100 S.Ct. 2531.

¶ 17 In Crawford, the Supreme Court overturned the Roberts' rule that an out-of-court statement was admissible as evidence without confrontation as long as it fell within a firmly rooted hearsay exception or carried other indicia of trustworthiness and reliability, stating that the "[Roberts'] framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations." 541 U.S. at 63, 124 S.Ct. 1354.

¶ 18 The Crawford court began by examining the historical background of the confrontation clause:

The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers.

Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other officials examined suspects and witnesses Before trial. These examinations were sometimes read in court in lieu of live testimony....

Id. at 43, 124 S.Ct. 1354 (citation omitted).

¶ 19 From its examination of the history of the confrontation clause, the Court gleaned two overriding principles: (1) the primary purpose of the confrontation clause was preventing the civil law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused; and (2) the Framers would not have allowed the admission of the testimonial statements of a witness who did not appear at trial unless he or she was unavailable to testify and the defendant had a prior opportunity for cross-examination. Id. at 47-48, 53-54, 124 S.Ct. 1354.

¶ 20 The Court declined to spell out a...

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