State v. Jasper
| Decision Date | 15 March 2012 |
| Docket Number | Nos. 85227–8,85557–9,85558–7.,s. 85227–8 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Douglas Scott JASPER, Petitioner. State of Washington, Respondent, v. Laki Moimoi, Petitioner. State of Washington, Petitioner, v. Cesar Valadez Cienfuegos, Respondent. |
Nancy P. Collins, Washington Appellate Project, Christine Anne Jackson, Kristen V. Murray, The Defender Association, Jerry Lincoln Taylor Jr., James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Petitioners.
Eric Broman, Nielsen Broman & Koch PLLC, James Morrissey Whisman, Jerry Lincoln Taylor Jr., Jennifer H.S. Atchison, Peter David Lewicki, King County Prosecutor's Office, Seattle, WA, for Respondents.
Suzanne Lee Elliott, Attorney at Law, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.
Travis Stearns, Washington Defender Association, amicus counsel for Washington Defender Association.
¶ 1 The principal issue in these consolidated cases is whether certifications attesting to the existence or nonexistence of public records are testimonial statements subject to the demands of the confrontation clause of the Sixth Amendment to the United States Constitution. Prior to the United States Supreme Court's decision in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), we held the confrontation clause does not forbid the admission of such evidence. State v. Kirkpatrick, 160 Wash.2d 873, 161 P.3d 990 (2007) ; State v. Kronich, 160 Wash.2d 893, 161 P.3d 982 (2007). The teaching of Melendez–Diaz, however, is that certifications declaring the existence or nonexistence of public records are in fact testimonial statements, which may not be introduced into evidence absent confrontation. Accordingly, we now overrule our prior decisions to the extent they are contrary to United States Supreme Court precedent.
¶ 2 In each case before us, the defendants' confrontation rights were violated by admission of testimonial certifications.
Excepting the hit and run conviction at issue in State v. Jasper, admission of the certifications was not harmless. We affirm the Court of Appeals in State v. Jasper, affirm the superior court in State v. Cienfuegos, and reverse the superior court in State v. Moimoi . The appropriate remedy is reversal of the affected convictions and remand for new trials.
¶ 3 On February 14, 2008, Douglas Jasper's vehicle crossed the centerline of a roadway and crashed into a car traveling in the opposite direction. Jasper left the scene of the accident and was arrested a short time later. The State charged Jasper with felony hit-and-run and driving while license suspended or revoked (DWLS) in the third degree.
¶ 4 The arresting officer testified at trial that Jasper admitted his license was suspended. Over Jasper's objection, the State introduced into evidence an affidavit from a legal custodian of driving records. The affidavit states, "After a diligent search, our official record indicates that the status on February 14, 2005, was: ... Suspended in the third degree." Ex. 16 (Jasper). Attached to the affidavit were two records from the Department of Licensing (DOL). The records are copies of letters mailed to Jasper, dated May 14, 2007. The letters state that Jasper's driving privilege would be suspended on June 28, 2007 if Jasper did not provide proof he had satisfied court requirements regarding citations he had received for driving without liability insurance and failing to comply with vehicle registration laws.
¶ 5 Jasper testified he had hit his head in the crash and was "really dazed" and "confused" as a result. Verbatim Report of Proceedings (VRP) (Jasper—Mar.11, 2009) at 28. He explained he was not trying to leave the scene of the crash but was just "walking around." Id. at 28–33. On cross-examination, Jasper admitted he knew his license was suspended at the time of the crash.
¶ 6 During its deliberations, the jury submitted two questions to the court. The first asked whether a person's obligation to fulfill certain duties after being involved in a motor vehicle collision was "dependent on their mental, emotional, or physical condition." Clerk's Papers (CP) (Jasper) at 49. The second question asked for a definition of "the spirit of the law," a phrase repeatedly used by defense counsel in closing argument. CP (Jasper) at 51; VRP (Jasper—Mar.12, 2009) at 13, 18. The trial court provided the same written response to each inquiry: CP (Jasper) at 50, 52. The court's response was written on a form that stated it was given "AFTER AFFORDING ALL COUNSEL/PARTIES OPPORTUNITY TO BE HEARD." Id. Jasper did not object to the trial court's response.
¶ 7 The jury convicted Jasper on both counts. On appeal, he argued the admission of the affidavit authored by the DOL records custodian violated his Sixth Amendment right to confrontation. Jasper also claimed that because the trial court responded to the jury's questions in his absence, his rights under the Sixth Amendment, the Fourteenth Amendment, and article I, section 22 of the Washington State Constitution were abridged.
¶ 8 The Court of Appeals, Division One, held the affidavit constituted testimonial hearsay and its introduction into evidence violated Jasper's right to confront witnesses against him. State v. Jasper, 158 Wash.App. 518, 523, 245 P.3d 228 (2010). In so ruling, the court concluded the United States Supreme Court's opinion in Melendez–Diaz effectively overruled our earlier decisions in Kirkpatrick and Kronich. Id. at 530, 245 P.3d 228. Because the error was not harmless beyond a reasonable doubt as to Jasper's conviction for third degree DWLS, the court reversed that conviction. Id. at 538, 245 P.3d 228. However, it held the evidence did not taint Jasper's hit-and-run conviction. Id. n. 9.
¶ 9 The Court of Appeals also held the trial court did not contravene Jasper's constitutional rights in responding to the deliberating jury's inquiries, reasoning that because the questions raised only issues of law, Jasper's right to be present was not implicated. Id. at 538, 245 P.3d 228. However, the appellate court concluded the trial court failed to comply with CrR 6.15(f)(2), accepting Jasper's contention that the judge did not consult with the parties or counsel before responding to the jury's questions. Id. at 543, 245 P.3d 228. Ultimately, the Court of Appeals found the error harmless given the nature of the questions and the trial court's response. Id. Noting this was the only alleged error affecting Jasper's conviction for hit-and-run, the Court of Appeals affirmed that conviction. Id. at 544, 245 P.3d 228.
¶ 10 Jasper petitioned this court for review of the issue whether the trial court violated his constitutional rights when it responded to the jury's inquiries. The State cross-petitioned for review of the issue whether admission of the affidavit from the records custodian violated Jasper's right to confrontation. We granted both petitions at 170 Wash.2d 1025, –––P.3d –––– (2011).
¶ 11 On April 15, 2005, Cesar Cienfuegos was stopped for speeding by Corporal Monica Matthews of the Washington State Patrol. Corporal Matthews determined that Cienfuegos's driving privilege was revoked and that Cienfuegos did not have an ignition interlock device installed in his vehicle, in violation of a previously entered court order. Cienfuegos was arrested.
¶ 12 The State charged Cienfuegos with DWLS in the first degree.1 Cienfuegos was tried by jury in King County District Court. Corporal Matthews testified at trial and described the above events. To prove the charge, the State presented a certified copy of driving record (CCDR) from DOL. The CCDR is comprised of three documents. The first document, exhibit 9, is a certified copy of an order of revocation, mailed to Cienfuegos and dated February 28, 2003. CP (Cienfuegos) at 459. The order notified Cienfuegos that he must stop driving on March 30, 2003 and that his driving privilege had been revoked for seven years due to his status as an habitual offender. The order also notified Cienfuegos that he could request a hearing on the matter and alerted him to procedures by which he could reinstate his driving privilege.
¶ 13 The second document, exhibit 10, is a certified cover letter signed under penalty of perjury by Denise Bausch, a DOL records custodian. CP (Cienfuegos) at 460. The letter asserts that attached "document(s) is/are a true and accurate copy of the document(s) maintained" by DOL regarding Cienfuegos's driving record. Id. It further states:
¶ 14 The third document, exhibit 11, is a certified copy of an unredacted abstract of driving record (ADR), listing Cienfuegos's prior driving offenses. CP (Cienfuegos) at 461. Over Cienfuegos's objection, each exhibit was introduced into evidence and the jury found Cienfuegos guilty of first degree DWLS.
¶ 15 On appeal to the superior court, Cienfuegos argued the district court erred by admitting exhibit 10 in violation of his right to confront witnesses. He contended the United States Supreme Court's decision in Melendez–Diaz overruled our cases...
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