State Of Wash. v. Jasper

• Decision Date: 20 September 2010
• Docket Number: No. 63442-9-I,63442-9-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DOUGLAS SCOTT JASPER, Appellant.

STATE OF WASHINGTON, Respondent,

v.DOUGLAS SCOTT JASPER, Appellant.

No. 63442-9-I

Court Of Appeals Of The State Of Washington Division One

FILED: September 20, 2010

Dwyer, C.J.

The confrontation clause of the Sixth Amendment prohibits the admission of an affidavit containing testimonial statements absent an opportunity for the defendant to cross-examine the witness. An affidavit attesting that the affiant performed a diligent search of records and that the records revealed that the defendant's license to drive was suspended or revoked on a particular day contains testimonial assertions. Thus, such an affidavit is inadmissible where the defendant is not provided an opportunity to crossexamine the witness. An affidavit containing such statements was admitted into evidence in the trial of Douglas Jasper. Accordingly, we reverse Jasper's conviction for driving while license suspended or revoked in the third degree.

Also at issue is whether the trial court erred by responding to juryinquiries without notifying the attorneys or Jasper. Pursuant to CrR 6.15, the trial court is obligated to notify the parties about a jury inquiry and allow the parties to suggest an appropriate response. However, contrary to Jasper's contention, the trial court's failure to notify the parties in this instance did not violate Jasper's constitutional right to be present during trial proceedings because the jury's inquiries involved only legal, rather than factual, matters. The trial court's error was solely in not following the dictates of the court rule. This error, however, was harmless. Thus, we affirm Jasper's conviction for felony hitand-run driving.

I

On February 14, 2008, Jasper's vehicle crossed the centerline of a roadway and collided with a car travelling in the opposite direction. After Jasper's vehicle came to a stop against an embankment, he exited his vehicle, checked on the occupants of the other car, and then began walking away from the scene of the collision. The driver of the other vehicle was pinned inside the car and was subsequently treated for a broken arm. Jasper was arrested a few blocks from the scene of the collision.

Jasper was charged with felony hit-and-run, a violation of RCW 46.52.020, and with driving while license suspended or revoked in the third degree, a violation of RCW 46.20.342(1)(c).

At trial, a police officer testified that, at the time of Jasper's arrest, Jasperadmitted that his license was suspended. The State offered as an exhibit an affidavit from a legal custodian of driving records and two Department of Licensing (DOL) records. The two records indicate that DOL mailed Jasper two notices stating that his license would be suspended if he did not appropriately respond to citations (1) for driving without liability insurance and (2) for a registration violation. The affidavit states: "After a diligent search, our official record indicates that the status on February 14, 2005, was:... Suspended in the third degree."¹ Jasper objected to the admission of the affidavit onconfrontation clause grounds. The trial court admitted all of the documents.

Jasper testified. He explained that he had hit his head in the collision and, as a result, he was dazed and confused. He testified that he knew his license was suspended on the day of the collision.

During its deliberations, the jury submitted two inquiries to the trial court. The first requested clarification of one of the jury instructions; specifically, the jury inquired whether a person's obligation to fulfill certain duties after being involved in a motor vehicle collision was "dependent on [the individual's] mental, emotional, or physical condition." The second inquiry requested a definition of the "spirit of the law," a phrase which had been used numerous times by defense counsel in closing argument. Without notifying the prosecutor or Jasper's counsel of the jury's questions and without the prosecutor, Jasper, or his counsel being present, the trial court promptly responded identically to both of the jury's questions in writing: "Please re-read your instructions and continue deliberating. No further instructions will be given to this question."

The jury subsequently convicted Jasper as charged. Jasper appeals.

II

Jasper first contends that the admission of the affidavit of the DOL record custodian violated his Sixth Amendment right to confrontation. We agree.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses againsthim." U.S. Const. amend. VI. "[T]he 'principal evil' at which the clause was directed was the civil-law system's use of ex parte examinations and ex parte affidavits as substitutes for live witnesses in criminal cases." State v. Lui, 153 Wn. App. 304, 314, 221 P.3d 948 (2009) (citing Crawford v. Washington. 541 U.S. 36, 50, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), review granted, 168 Wn.2d 1018, 228 P.3d 17 (2010). Such a practice denies the defendant a chance to test accusers' assertions "in the crucible of cross-examination." Crawford. 541 U.S. at 61.

Not every out-of-court statement used at trial implicates the core concerns of the confrontation clause. Rather, the scope of the clause is limited to "'witnesses' against the accused—in other words, those who 'bear testimony.' 'Testimony, ' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Crawford. 541 U.S. at 51 (quoting 2 N. Webster, An American Dictionary of the English language (1828)). Thus, the confrontation clause gives defendants the right to confront those who make testimonial statements against them.² Crawford. 541 U.S. at 53-54.

The Court declined to offer a comprehensive explanation of what makes a statement "testimonial," but it listed three possible formulations for the "core class" of testimonial statements covered by the confrontation clause:

[1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; [2] extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Crawford, 541 U.S. at 51-52 (internal quotation marks and citations omitted).

Last year, in Melendez-Diaz v. Massachusetts, _U.S._, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), the United States Supreme Court further honed the analysis of evidence's testimonial character. The defendant therein was charged with distributing and trafficking in cocaine. Melendez-Diaz, 129 S. Ct. at 2530. The trial court admitted into evidence three "certificates of analysis," sworn to by laboratory analysts before a notary public, which stated that the seized bags were "examined with the following results: The substance was found to contain: Cocaine." Melendez-Diaz, 129 S. Ct. at 2531.

A five-member majority held, in a "rather straightforward application of [the] holding in Crawford," that the certificates were inadmissible. MelendezDiaz, 129 S. Ct. at 2533. The Court determined that the certificates were "quite plainly affidavits: 'declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.'" Melendez-Diaz, 129 S. Ct. at 2532 (quoting Black's Law Dictionary 62 (8th ed. 2004)). The affidavits constituted testimonial statements because they were "functionally identical tolive, in-court testimony, doing 'precisely what a witness does on direct examination.'" Melendez-Diaz, 129 S. Ct. at 2532 (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S. Ct. 2266, 165 L. Ed. 2d. 224 (2006)). Moreover, the statements were "'made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.'" Melendez-Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541 U.S. at 52). Consequently, the analysts were 'witnesses' for Sixth Amendment purposes, and "[a]bsent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to 'be confronted with' the analysts at trial." Melendez-Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541 U.S. at 54). The Court concluded, "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against [the defendant] was error." Melendez-Diaz, 129 S. Ct. at 2542.

In so holding, the Court rejected a claim that the analysts' affidavits were "'akin to the types of official and business records admissible at common law.'" Melendez-Diaz, 129 S. Ct. at 2533-40.³ This was not so, the Court explained, because the class of official and business records admissible at commonlaw—and, thus, admissible without violating the confrontation clause—bore the hallmark of "having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial." Melendez-Diaz, 129 S. Ct. at 2539-40. Thus, "[a] clerk could by affidavit authenticate or provide a copy of an otherwise admissible record." Melendez-Diaz, 129 S. Ct. at 2539. Conversely, what a clerk could not do, without an opportunity for confrontation by the defendant, was "what the analysts did here: create a record for the sole purpose of providing evidence against a defendant." Melendez-Diaz, 129 S. Ct. at 2539. In that regard,

[f]ar more probative here are those cases in which the prosecution sought to [introduce] into evidence a clerk's certificate attesting to the fact that the

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