State v. O'Cain

• Decision Date: 02 July 2012
• Docket Number: No. 65735–6–I.,65735–6–I.
• Citation: 169 Wash.App. 228,279 P.3d 926
• Parties: STATE of Washington, Respondent, v. James Master O'CAIN, Appellant.
• Court: Washington Court of Appeals

169 Wash.App. 228

279 P.3d 926

STATE of Washington, Respondent,

v.James Master O'CAIN, Appellant.

No. 65735–6–I.

Court of Appeals of Washington, Division 1.

July 2, 2012.

Oliver R. Davis, Washington Appellate Project, Seattle, WA, for Appellant.

Ann M. Summers, King County Prosecutor's Office, Seattle, WA, for Respondent.

DWYER, J.

[169 Wash.App. 232]¶ 1 United States Supreme Court precedent establishes that it is a defendant's obligation to raise at or before trial a Sixth Amendment confrontation clause objection to the admission of statements made by an absent witness. A failure to assert the right at or before trial results in the right being forgone. Here, James O'Cain was convicted of one count of assault in the second degree, one count of assault in the fourth degree, and one count of felony harassment, based in part upon out-of-court statements uttered by the victim, Sheila Robinson, to various medical personnel who treated Robinson for her injuries. O'Cain contends that his convictions must be reversed because the admission of Robinson's statements violated his right to confrontation under both the state and federal constitutions. He also claims that the trial record contains insufficient evidence of a communicated threat to kill to support the conviction of felony harassment.

¶ 2 Because O'Cain did not assert his confrontation clause objection at or before trial, he cannot obtain appellate relief on that claim. Furthermore, Robinson's statements were made for the purpose of obtaining medical treatment. Therefore, the statements are both nontestimonial and inherently reliable, thus implicating neither the federal constitution's Sixth Amendment nor article I, section 22 of our state constitution. However, because the evidence adduced at trial was insufficient to support O'Cain's felony harassment conviction, that conviction must be vacated.

I

¶ 3 On December 13, 2009, just before 11:00 p.m., Sheila Robinson placed a 911 call to the police. Robinson told the operator that she had been in a fight with her boyfriend, “Master James O'Cain.” She stated that O'Cain had “ tried to kill” her, and that she had suffered cuts on her back as well as other unspecified injuries. She told the operator that there was glass stuck in her back from “a little decorative thing on the table.” Robinson repeatedly told the operator that O'Cain was still outside her apartment and attempting to regain entry. Near the end of the call, Robinson reported that O'Cain had left the area on foot.

¶ 4 Upon arriving at the scene, officers found O'Cain walking along the road near Robinson's apartment. O'Cain had minor scratches on his face and neck. O'Cain was taken into custody and charged with two counts of assault in the second degree and one count of felony harassment.

¶ 5 While in custody awaiting trial, O'Cain wrote several letters to Robinson in which he encouraged her not to appear as a witness at his trial.¹ O'Cain wrote that, “[a]t trial, if no one shows up, I go home.” He explained that “no one can show up to that court date at trial, period. I mean, absolutely they cannot show at all. No show.” He wrote that “the person cannot get in any real trouble behind [ sic ] not showing. Trust me.” Based upon the existence of these letters, O'Cain was also charged with one count of tampering with a witness.

¶ 6 Robinson did not testify at O'Cain's trial. In lieu of live testimony from Robinson, the prosecution played a recording of the 911 call and introduced the testimony of several of the medical providers who treated Robinson following the attack. The physician's assistant who removed glass from Robinson's back testified that Robinson told him that she was thrown onto a glass table, that she had been “knocked out,” and that she had been “choked.” The emergency medical technician who transported Robinson to the hospital testified that Robinson told him that she had been “struck with a glass object.” A nurse who treated Robinson at the hospital told jurors that Robinson stated to her that Robinson had been pushed, kicked, and choked by her boyfriend.

¶ 7 O'Cain did not object to the testimony of the medical personnel on confrontation clause grounds.² Indeed, defense counsel conceded that “Washington state courts have carved out an exception to Crawford[[[³ ... that allows medical personnel to testify for purposes of treatment.” However, counsel did object to these statements on the basis that, because O'Cain was not identified as the attacker in any of Robinson's statements to the medical providers, the statements were not relevant. This objection was overruled.

¶ 8 The jury convicted O'Cain of one count of assault in the second degree, one count of felony harassment, and one count of tampering with a witness. As to the second assault charge, the jury found O'Cain guilty of the lesser included offense of assault in the fourth degree. O'Cain was sentenced to 70 months of confinement.

¶ 9 O'Cain appeals.

II

¶ 10 In this appeal, O'Cain first seeks to challenge the admission of the statements made by Robinson to her various medical providers on federal confrontation clause grounds.⁴ He did not raise such an objection at trial. Nevertheless, he asserts that he may do so for the first time on appeal. Our analysis of the controlling authority leads us to the conclusion that he is wrong.

¶ 11 If it is possible for jurisprudence to be in an uproar, the case law development of the Sixth Amendment confrontationclause has been in the juristic version of such a state for the past eight years. In 2004, the United States Supreme Court issued its Crawford opinion, rendering much of what judges and lawyers thought they knew about the confrontation clause obsolete and opening for reexamination virtually everything else.

¶ 12 Over the intervening eight years, the Court has repeatedly revisited the confrontation clause. In the course of so doing, it has made clear that the right to confrontation must be asserted at or before trial or be lost.

¶ 13 To begin at the beginning, the confrontation clause provides that: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. The confrontation clause bars the admission of “testimonial” hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53–54, 124 S.Ct. 1354. The prosecution has the burden of establishing that statements are nontestimonial. State v. Koslowski, 166 Wash.2d 409, 417 n. 3, 209 P.3d 479 (2009).

¶ 14 How does a defendant properly put the government to its burden? The defendant does so by asserting the right at trial.

¶ 15 Justice Scalia's opinion for the Court in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), makes this clear. In the Melendez–Diaz decision, the Court reviewed the introduction into evidence at trial of three “certificates of analysis,” signed under oath by analysts employed by the Massachusetts Department of Public Health and stating that the substances tested by the analysts were “cocaine.” 129 S.Ct. at 2531. The Court held that the statements in these certificates were testimonial and that their admission violated the confrontation clause. In reaching this decision, the Court also made clear that a claim of error premised upon the confrontation clause must be asserted at or before trial or be lost. References to the defendant's obligation in this regard are made repeatedly throughout the opinion. Indeed, the defendant's obligation in this regard is a key component of the Court's analysis.

¶ 16 Early in the opinion, in responding to an assertion made by a dissenting justice, the opinion states: “It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.” Melendez–Diaz, 129 S.Ct. at 2532 n. 1. Discussion later in the opinion makes clear that the Court's emphasis on the defendant's burden—“if the defense objects”—was not mere surplusage but, instead, was crucial to its reasoning.

¶ 17 One of the key passages in the Melendez–Diaz opinion is its restatement of the law of confrontation, post-Crawford, and its interplay with its Sixth Amendment corollary, the compulsory process clause.

The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses “against him,” the Compulsory Process Clause guarantees a defendant the right to call witnesses “in his favor.” U.S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former; ³ the defendant may call the latter. Contrary to respondent's assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.

Melendez–Diaz, 129 S.Ct. at 2533–34.

¶ 18 The Court's statement, quoted above, is clear, direct, and almost without qualification. It sets forth what the prosecution must do and contrasts it with that which the defendant may do. Its sole qualification is contained in footnote 3, which qualifies the prosecution's otherwise-mandatory obligation as follows:

The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.

Melendez–Diaz, 129 S.Ct. at 2534 n. 3.

¶ 19 Justice Scalia's decision to include this statement as the sole qualification on the prosecution's obligation should not be ignored or dismissed by lower courts. His placement of this statement—by means of a footnote—in the midst of a key sentence setting forth ...