In re Theders

• Decision Date: 22 February 2006
• Docket Number: No. 78150-8.,78150-8.
• Citation: 137 P.3d 7
• Parties: In re the Personal Restraint Petition of William H. THEDERS, Jr., Petitioner.
• Court: Washington Supreme Court

Page 7

137 P.3d 7

In re the Personal Restraint Petition of William H. THEDERS, Jr., Petitioner.

No. 78150-8.

Supreme Court of Washington.

February 22, 2006

RULING DENYING REVIEW

¶1 William Theders seeks discretionary review of a published decision of Division One of the Court of Appeals denying his personal restraint petition. In re Pers. Restraint of Theders, 130 Wash.App. 422, 123 P.3d 489 (2005).

¶2 In November 2000, Larry and Angela Graves were living with Mr. Theders at his home in Monroe. Angela wanted a divorce, which her friend, Valerie Anderson, supported. One afternoon that month, Larry and Mr. Theders left in a pickup, saying they were going to a pet store in Everett to buy a dog bed. Shortly thereafter, Larry called Angela on his cell phone and said that the store was closed and they were coming home. Angela could hear Mr. Theders talking in the background. Around 6 p.m., Larry called again and said that he and Mr. Theders were going to try to find a dog bed at another store. Valerie Anderson arrived at her Woodinville home soon thereafter. As she walked to her front door, a man wearing dark clothes and a ski mask grabbed her from behind and held a knife to her throat. Ms. Anderson struggled and screamed for help. Her attacker told her to be quiet, and she recognized the voice as Larry's. When a neighbor responded to Ms. Anderson's screams, the attacker fled and left in a pickup that was slowly driving by ¶3 At the hospital, Ms. Anderson told the police that Larry had attacked her. The police then went to Mr. Theders's house and arrested Larry. He gave a written statement saying that he and Mr. Theders had been out shopping for a dog bed. After backing up Larry's alibi, Mr. Theders gave a written statement nearly identical to the one Larry had given. But when told that witnesses had said that one of the men in the pickup wore glasses (as did Mr. Theders), Mr. Theders asked whether his statement could expose him to a perjury charge if it was untrue. The officer said that it could. Mr. Theders then gave another statement admitting that he drove Larry to Ms. Anderson's house, but denying that he knew that Larry intended to attack Ms. Anderson.

¶4 The State charged both Larry and Mr. Theders with attempted first degree murder, alleging specifically that Mr. Theders was an accomplice. Larry did not testify at Mr. Theders's trial. To show that Mr. Theders participated in the creation of an alibi and thus knew that Larry planned to attack Ms. Anderson, the State introduced into evidence Larry's phone calls to Angela the night of the attack and Larry's written alibi statement, which was consistent with Mr. Theders's initial statement. Over an objection based on the right of confrontation, the trial court admitted this evidence. The State also presented the testimony and notes of a jailhouse informant stating that Mr. Theders admitted to him that he had aided Larry in attacking Ms. Anderson.

¶5 A jury found Mr. Theders guilty. Larry subsequently pleaded guilty. The Court of Appeals affirmed Mr. Theders's conviction in an unpublished opinion, and this court denied review. The Court of Appeals issued its mandate on October 29, 2003.

¶6 Mr. Theders filed a personal restraint petition in the Court of Appeals in December 2003, arguing that the admission of Larry's out-of-court statements violated his right of confrontation and that his appellate counsel was ineffective in not raising this issue on direct appeal. After the Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court of Appeals requested supplemental briefing. Following that briefing, a panel of judges of the court issued a published opinion denying the petition. Mr. Theders filed a motion for discretionary review.

¶7 Initially, I note that, in arguing for review, Mr. Theders mistakenly cites the criteria listed in RAP 13.4(b). Those criteria apply to petitions for review. Decisions denying personal restraint petitions are reviewable only by motion for discretionary review. RAP 16.14(c). Therefore, I may consider only whether the Court of Appeals obviously or probably erred or so far departed from the usual course of proceedings as to call for this court's review. RAP 13.5(b).

¶8 Mr. Theders argues that admission of Larry's cell phone calls and written alibi statement violated his right of confrontation. But he does not show that the Court of Appeals obviously or probably erred in rejecting this argument. Out-of-court statements not introduced to prove the truth of the matters asserted are not hearsay and thus raise no confrontation concerns. State v. Rice, 120 Wash.2d 549, 564, 844 P.2d 416 (1993); State v. Mason, 127 Wash.App. 554, 566 n. 26, 110 P.3d 245 (2005); see also Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). As the Court of Appeals observed, the evidence in question did not constitute hearsay because the state did not offer it to prove the truth of the matters asserted. ER 801(c). Rather, the state offered the evidence to prove Mr. Theders's participation in the creation of an alibi and thus his knowledge that Larry planned to attack the victim. The link was made by other evidence indicating that Mr. Theders was present when Larry made the phone calls to his wife, and by the near identity between Larry's and Mr. Theders's alibi statements. Larry's statements made no assertion of fact implicating Mr. Theders, and they were not introduced to prove any asserted facts.

¶9 I am aware that the United States Court of Appeals for the Sixth Circuit has taken a seemingly different view, treating as the equivalent of hearsay the statements of a co-defendant that, though not offered to prove the truth of the matters asserted, impliedly implicate the defendant. See Lyle v. Koehler, 720 F.2d 426 (6th Cir.1983) (holding it error to admit letters from a non-testifying co-defendant urging the defendant...