54 P.3d 656 (Wash. 2002), 71683-8, State v. Crawford

Docket Nº:71683-8.
Citation:54 P.3d 656, 147 Wn.2d 424
Opinion Judge:BRIDGE
Party Name:STATE of Washington, Petitioner, v. Michael D. CRAWFORD, Respondent.
Attorney:Edward Holm, Thurston County Prosecutor, Steven Sherman, Deputy, Olympia, for Petitioner., Thomas Doyle, Hansville, Patricia Pethick, Tacoma, for Respondent.
Case Date:September 26, 2002
Court:Supreme Court of Washington

Page 656

54 P.3d 656 (Wash. 2002)

147 Wn.2d 424

STATE of Washington, Petitioner,


Michael D. CRAWFORD, Respondent.

No. 71683-8.

Supreme Court of Washington, En Banc.

September 26, 2002.

Argued March 5, 2002.

Page 657

[147 Wn.2d 426] Edward Holm, Thurston County Prosecutor, Steven Sherman, Deputy, Olympia, for Petitioner.

Thomas Doyle, Hansville, Patricia Pethick, Tacoma, for Respondent.

Page 658


This case presents two issues: (1) whether a defendant waives an objection under the confrontation [147 Wn.2d 427]clause to the admission of his wife's hearsay statements by exercising his marital privilege to prevent his spouse from testifying; and (2) whether the wife's statements are otherwise admissible as an exception to the hearsay rule or as an interlocking confession. We hold that a defendant does not waive his confrontation rights when he invokes the marital privilege. We also conclude that the statements here are admissible because the wife's statements interlock with those of her husband and hence provide adequate indicia of reliability to satisfy confrontation clause concerns.


On August 5, 1999, Michael Crawford stabbed Richard Rubin Kenneth Lee at Lee's apartment. State v. Crawford, noted at 107 Wash.App. 1025, 2001 WL 850119, at *1 (2001). Police arrested Crawford that evening and they collected two taped statements from both Crawford and his wife, Sylvia, who had been present at the time of the assault. Id. The first statements contained roughly the same account of the attack: the three had collected at Lee's house; Crawford left to buy alcohol; when he returned, Lee was making sexual advances toward Sylvia; Crawford stabbed Lee twice. Id.

Several hours after police taped the first statements, they again questioned the Crawfords independently regarding the events of August 5. Id. Their stories were again similar to each other, but distinctly different from the earlier version of the encounter. Id. This time the Crawfords each revealed that the alleged sexual assault had actually occurred several weeks earlier. Id. On the night in question, both Crawfords contended, Michael became angry when Lee was mentioned and he and his wife left to find Lee. Id. Sylvia directed her husband to Lee's apartment and after talking with him for a short period, Crawford stabbed Lee twice. Id. Although unclear, the main distinguishing factor in these second statements was that Crawford alluded that Lee may have had something in his hand when Crawford [147 Wn.2d 428] stabbed Lee, while Sylvia implied that Lee may have grabbed for something after Crawford stabbed Lee. Id.

Crawford was charged with attempted first degree murder while armed with a deadly weapon and first degree assault while armed with a deadly weapon. Clerk's Papers (CP) at 2. At trial, Crawford claimed that he acted in self-defense and he invoked the marital privilege to prevent his wife from testifying against him. Report of Proceedings (RP) at 7-8. The trial court admitted both of Sylvia's statements on the grounds that the statements would not violate the marital privilege and because the court determined that the statements were sufficiently reliable to alleviate confrontation clause concerns. RP at 45, 53; RP at 219-21, Exs. 37, 38; RP at 231, Exs. 41-42. A jury subsequently convicted Crawford of first degree assault while armed with a deadly weapon. CP at 2. In an unpublished opinion, a divided Court of Appeals concluded that Crawford did not waive his right to confrontation when he invoked the marital privilege. Crawford, 2001 WL 850119, at *1. It then held that admitting Sylvia's second statement was reversible error because her statement did not possess adequate indicia of reliability, nor did it interlock with Michael's second statement. Id. at *5-7. Accordingly, the Court of Appeals reversed Crawford's conviction. Id. at *1. We granted review.


Crawford invoked the marital privilege, RCW 5.60.060, to keep his wife from testifying against him at trial. RP at 7. The marital privilege in Washington states in relevant part:

A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage.

[147 Wn.2d 429]RCW 5.60.060(1). Neither Crawford nor the State called Sylvia to testify. See RP at 7-14.

Page 659

Crawford claims, however, that his confrontation right under the Sixth Amendment, as applied to the states through the due process clause of the Fourteenth Amendment, was violated when Sylvia's hearsay statements to the police were admitted at trial.

The State contends that Crawford waived his right to confrontation when he neglected to call Sylvia at trial, relying on State v. Salazar, 59 Wash.App. 202, 796 P.2d 773 (1990) and In re Personal Restraint of Sauve, 103 Wash.2d 322, 692 P.2d 818 (1985), to support its position. While instructive, both Salazar and Sauve contain a key distinction from the case Before us, making them distinguishable. In those cases the witness was "available"; Sylvia Crawford was not an available witness.

In Salazar, the defense counsel did not call an informant suggesting that defense was unable to locate him. 59 Wash.App. at 216, 796 P.2d 773. Rejecting the assertion that the witness was unavailable, the court stated, "We have held that a defendant who fails to call an available hearsay declarant waives an objection under the confrontation clause to admission of the hearsay." Salazar, 59 Wash.App. at 217, 796 P.2d 773 (citing State v. Borland, 57 Wash.App. 7, 12, 786 P.2d 810 (1990)). "Similarly, defense counsel's failure to call [the informant], who we assume was available absent persuasive evidence to the contrary, waived any confrontation clause objection." Id.

In Sauve, the defendant claimed that his confrontation right was violated when the police officer who received an informant's tip, failed to testify at the suppression hearing. 103 Wash.2d at 329, 692 P.2d 818. Although the court did not directly hold that Sauve had waived his confrontation right, it did note that the defendant's failure to exercise his rights at trial did not constitute a denial of such rights by the court. Sauve, 103 Wash.2d at 330, 692 P.2d 818 (citing State v. Murphy, 35 Wash.App. 658, 669 P.2d 891 (1983); State v. Whittington, 27 Wash.App. 422, 618 P.2d 121 (1980)). Accordingly, the court stated,

There is no evidence that petitioner asked the State for the testimony of the officer who received the tip, nor did petitioner [147 Wn.2d 430] himself attempt to call the officer to the stand. The State was not given a chance at trial to either present the officer's testimony or prove his unavailability. The failure of petitioner to exercise his rights at trial does not constitute a denial of such rights.


In both Salazar and Sauve the witnesses were available, but the defense failed to call them at trial. In the case presented, in contrast, the witness, Sylvia Crawford, was unavailable to testify because Michael Crawford had invoked his marital privilege. The marital privilege explicitly states that "[a] husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband." RCW 5.60.060(1). This language specifically denies Sylvia the ability to testify either for or against her husband, rendering her unavailable as a witness. Although Michael, not Sylvia, invoked the privilege, the result is the same--Sylvia was unavailable to testify, unlike the witnesses in Salazar and Sauve. Therefore, the situation Before us is distinct from Salazar and Sauve and it does not logically follow that Crawford waived his confrontation rights by not calling his wife to testify.

The conclusion that Crawford did not waive his confrontation rights is supported by a decision from this court that directly addressed the issue of marital privilege and extrajudicial statements by a third party. See State v. Burden, 120 Wash.2d 371, 374, 841 P.2d 758 (1992). In Burden, this court stated, "Here, the defendant asserts admission of Mary Burden's extrajudicial statements by third persons would indirectly violate the testimonial privilege and place [the defendant] in the position of having to waive the privilege to refute the testimony or allow the testimony without cross examination. We have previously rejected this argument." Id. (citing State v. Kosanke, 23 Wash.2d 211, 160 P.2d 541 (1945)). By recognizing the rejection of this argument, this court implied that the testimonial privilege is not violated by admissible hearsay statements and, furthermore, that the defendant does not [147 Wn.2d 431] have

Page 660

to waive the marital privilege to refute the testimony. Therefore, the defendant cannot be said to have waived his right to cross examination. 1

Further, courts are hesitant to accept waiver of a defendant's Sixth Amendment rights because of their significance in the trial process. See generally John R. Kroger, The Confrontation Waiver Rule, 76 B.U. L.REV. 835 (1996). " 'There are few subjects, perhaps, upon which [the Supreme Court] and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' " Id. at 840 (quoting Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). Where a waiver has been recognized, the waiver usually occurs when the defendant has inappropriately caused the witness's unavailability. Id. at 844. Thus, " 'a defendant may waive the right to confront witnesses against...

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