State v. Fisher

• Decision Date: 02 December 2014
• Docket Number: No. 43870–4–II.,43870–4–II.
• Citation: 184 Wash.App. 766,338 P.3d 897
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kisha Lashawn FISHER, Appellant. State of Washington, Respondent, v. Corey Trosclair, Appellant.

184 Wash.App. 766

338 P.3d 897

STATE of Washington, Respondent

v.Kisha Lashawn FISHER, Appellant.

State of Washington, Respondent

v.Corey Trosclair, Appellant.

No. 43870–4–II.

Court of Appeals of Washington, Division 2.

Dec. 2, 2014.

As Amended on Denial of Reconsideration March 17, 2015.

Stephanie C. Cunningham, Attorney at Law, Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.

Kimberley Ann Demarco, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

Opinion

JOHANSON, C.J.

¶ 1 A jury found Kisha Fisher and Corey Trosclair guilty of first degree murder.¹ Trosclair and Fisher appeal their convictions. In the published portion of the opinion, we hold that Trosclair's rights under the confrontation clause of the Sixth Amendment were violated because the redactions in a nontestifying codefendant's statements were insufficient under current confrontation clause jurisprudence. But we hold further that the error was harmless beyond a reasonable doubt. Therefore, although the trial court should have severed Trosclair's case from Fisher's, the court's refusal to do so does not require reversal. In the unpublished portion of the opinion, we address Trosclair's and Fisher's remaining claims and affirm their convictions.

FACTS

I. The Shooting Investigation

¶ 2 In January 2011, Lenard Masten received a fatal gunshot wound at an apartment complex in Lakewood.

Several apartment residents heard the gunshot. Michelle Davis,² Masten's girlfriend, said that Masten had received a telephone call regarding a drug sale. After he left, Michelle³ heard a loud noise and saw one man standing over Masten while another man ran up the stairs towards Masten's apartment. Nadise Davis described a similar scene. Nadise heard the gunshot, looked out the window, and saw a man standing over Masten cursing loudly and digging through Masten's pockets. Nadise also saw a second man with a gun coming down a stairwell. Aaron Howell heard the gunfire and saw a man in a dark-colored sport utility vehicle leave the area. Howell subsequently identified Trosclair from a photomontage as the man he had seen the night Masten was murdered.

¶ 3 Masten's cell phone records revealed pertinent information. The records showed numerous calls between Mario Steele and Masten on the day Masten was killed, including a three-way phone call between Steele, Masten, and Trosclair three minutes before Masten was shot. Cell phone records also placed Trosclair in the same Lakewood neighborhood as Steele and Masten during the three-way call.

¶ 4 Investigator Jeff Martin interviewed Fisher, Steele's girlfriend and Trosclair's sister, who admitted that she called Masten to set up a drug deal for Steele. Fisher acknowledged that Steele and “two guys” went to purchase cocaine from Masten around 3:00 PM and that they were supposed to meet with Masten again later. 14 Report of Proceedings (RP) at 1610. Fisher also admitted to calling Masten and connecting him on the three-way call with Steele.⁴ She initially denied knowing of a robbery plan, but she later admitted that she knew “they talked about [robbing Masten].” 14 RP at 1619.

II. Motion to Sever

¶ 5 The State charged Fisher and Trosclair each with one count of first degree felony murder and one count of second degree felony murder. Before trial, Fisher and Trosclair moved under CrR.4.4(c)(1) to sever their cases because the State planned to introduce Fisher's interview transcript that referred to Trosclair by name throughout. The State proposed to substitute the phrase “the first guy” in place of Trosclair's name. But Trosclair believed that the use of “the first guy” was an insufficient redaction. The trial court allowed the proposed redactions and denied the motion to sever.

III. Trial

¶ 6 Witnesses testified consistently with the facts as set forth above. In addition, Joseph Adams, who was incarcerated in the Pierce County Jail on an unrelated crime, testified at trial in exchange for a considerable reduction of his own prison term. Coincidentally, Trosclair had been placed in the same jail unit as Adams, who was Masten's close friend.

¶ 7 According to Adams, Trosclair told him that he and Steele planned to rob Masten because they believed Masten had tried to “cheat” them earlier that day by selling them poor quality cocaine. 12 RP at 1338. Trosclair told Adams that someone called Masten to “set up a deal” while Trosclair and Steele waited in the parking lot. 12 RP at 1339. Trosclair explained that they “ran up on [Masten]” as he was getting into his car and that he shot Masten when Masten got “loud” and reached for the gun. 12 RP at 1339. Trosclair then described his attempt to gain access to Masten's apartment and his search of Masten's person “to see what [Masten] had,” before running from the scene when someone noticed him. 12 RP at 1339.

¶ 8 Neither Fisher nor Trosclair testified. The jury found Fisher and Trosclair guilty of first degree and second degree murder. The trial court dismissed the second degree murder convictions to circumvent double jeopardy concerns. Fisher and Trosclair appeal.

ANALYSIS

Severance and the Confrontation Clause

¶ 9 Trosclair argues that the trial court should have severed his trial from Fisher's because the redactions to Fisher's interview transcript were insufficient and, therefore, violated Trosclair's Sixth Amendment right to cross-examination. We hold that the redactions were insufficient under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny. We conclude, however, that any error was harmless.

A. Standard of Review and Rules of Law

¶ 10 We review alleged violations of the state and federal confrontation clauses de novo. State v. Medina, 112 Wash.App. 40, 48, 48 P.3d 1005, review denied, 147 Wash.2d 1025, 60 P.3d 93 (2002). The confrontation clause guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” U.S. CONST. amend. VI. A criminal defendant is denied the right of confrontation when a nontestifying codefendant's confession that names the defendant as a participant in the crime is admitted at a joint trial, even where the court instructs the jury to consider the confession only against the codefendant. Bruton, 391 U.S. at 135–36, 88 S.Ct. 1620. But no violation of the confrontation clause occurs by the admission of a nontestifying codefendant's confession with a proper limiting instruction and where the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

Any such redaction must be more than an obvious blank space or other similarly obvious indications of alteration. Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998).

¶ 11 To comply with the Bruton rule, our Supreme Court adopted CrR 4.4(c), which provides,

(1) A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him is inadmissible against him shall be granted unless:

(i) the prosecuting attorney elects not to offer the statement in the case in chief; or

(ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.

Under this rule, the issue is whether the proposed redactions to a codefendant's statement are sufficient to eliminate any prejudice to the defendant.

B. Admission of Redacted Transcript

¶ 12 Trosclair alleges that the transcript contained several statements that allowed the jury to conclude that “first guy” could not have been anyone other than Trosclair. These included Fisher's statements that (1) “first guy” did not have a car, (2) “first guy” lived in Kent, (3) “Mario,” the “first guy,” and an unknown man from California went to purchase drugs from Masten, (4) Fisher knew that the case was serious because “first guy” and Steele were already in jail as suspects, and (5) a statement that implied that “first guy” was related to Fisher because when she was asked whether a third party was related to “first guy” she answered, “No relation to my family” when the jury had already heard that Fisher and Trosclair were brother and sister. Br. of Appellant (Trosclair) at 23.

¶ 13 In some cases, we have upheld the use of properly redacted statements. For example, in State v. Cotten, Bryan Cotten contended that the trial court erroneously allowed witnesses to testify regarding various out-of- court statements made by Cotten's codefendant which implicated Cotten in the crimes. 75 Wash.App. 669, 690, 879 P.2d 971 (1994), review denied, 126 Wash.2d 1004, 891 P.2d 38 (1995). We disagreed, holding that evidence of statements made by Cotten's nontestifying codefendant were admissible because they did not implicate, name, or even acknowledge the existence of Cotten as an accomplice. Cotten, 75 Wash.App. at 691, 879 P.2d 971. Similarly, in Medina, Division One of this court held that admission of incriminating statements made by a codefendant did not deprive Raul Medina of his right of confrontation when the statements were redacted to refer to the other participants in the crime as “ other guys,” “the guy,” “a guy,” “one guy,” and “they.” 112 Wash.App. at 51, 48 P.3d 1005. Notwithstanding the fact that only three persons were charged, the testimony established that there were as many as six individuals involved. Medina, 112 Wash.App. at 51, 48 P.3d 1005. The Medina court concluded that no Bruton violation occurred because the statements were redacted in such a way that it became impossible to track the activities of any particular “guy” among the several involved. 112 Wash.App. at 51, 48 P.3d 1005. Therefore, the references to “the guys” and “a guy” did not create the inference of identification of Medina or the third codefendant. Medina, 112 Wash.App. at 51, 48 P.3d 1005.

¶ 14 In contrast, we have found violations of the Bruton rule when a trial court admitted...