State v. Fisher, 91438–9
| Court | United States State Supreme Court of Washington |
| Citation | 185 Wash.2d 836,374 P.3d 1185 |
| Docket Number | No. 91438–9,91438–9 |
| Parties | State of Washington, Respondent/Cross Petitioner, v. Kisha Lashawn Fisher, Petitioner, and Corey Trosclair, Cross Respondent. |
| Decision Date | 07 July 2016 |
185 Wash.2d 836
374 P.3d 1185
State of Washington, Respondent/Cross Petitioner
v.
Kisha Lashawn Fisher, Petitioner
and
Corey Trosclair, Cross Respondent.
No. 91438–9
Supreme Court of Washington, En Banc.
Filed July 07, 2016
Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St., Seattle, WA, 98115–6655, Stephanie C. Cunningham, Attorney at Law, 4616 25th Avenue NE # 552, Seattle, WA, 98105–4183, Counsel for Petitioner.
James S. Schacht, Kathleen Proctor, Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402, Counsel for Respondent.
MADSEN, C.J.
Kisha Fisher and Corey Trosclair were tried as codefendants for the felony murder of Leonard Masten. Prior to trial, Fisher made out-of-court statements that incriminated both herself and Trosclair. After denying both defendants' motions to sever, the State offered Fisher's statement at trial as evidence against her. Trosclair challenges the sufficiency of the redactions in protecting his confrontation clause rights under the Sixth Amendment to the federal constitution. Fisher challenges the trial court's refusal to provide the jury with her requested affirmative defense jury instruction. We hold that the redactions violated Trosclair's confrontation clause rights, but that the error was harmless. We also hold that the trial court erred in not giving the affirmative defense jury instruction.
FACTS
¶ 2 On the evening of January 16, 2011, Masten was shot and killed at his apartment complex, Earlier that day, Masten sold cocaine to Trosclair and Mario Steele. Steele lived with his girlfriend, Fisher, who was also Trosclair's sister. Trosclair and Steele did not like the quality of Masten's cocaine, and they decided they would rob Masten to get their money back. Fisher overheard the men discussing the robbery and assumed they might rob Masten later that evening. Fisher then called Masten to set up a second drug deal for Steele and Trosclair. Trosclair and Steele went to Masten's apartment complex and, after a confrontation, shot him.
¶ 3 The police investigation led them to Trosclair, Fisher, and Steele. The police obtained Trosclair's cell phone records, which showed he made calls to Masten while near Masten's apartment, There was also cell phone evidence showing that Fisher placed a three-way call between Trosclair and Masten minutes before Masten was shot. And two eyewitnesses at the scene identified Trosclair as the perpetrator.
¶ 4 Both Fisher and Trosclair spoke with police about Masten's death. In her first interview, Fisher admitted she called Masten to set up a drug deal. In her second interview, Fisher admitted she overheard Steele discuss robbing Masten with someone else, Trosclair told police that he was not in Lakewood on the day of Masten's death. After police arrested Trosclair, he confessed his involvement in Masten's death to his jail cellmate.
¶ 5 Fisher and Trosclair were both charged with first and second degree felony
murder with firearm enhancements,1 They were tried together as codefendants after the trial court denied their motion to sever under CrR 4.4(c), The State agreed to redact portions of Fisher's statement to police to remove references to Trosclair. The court approved redactions that replaced Trosclair's name with “the first guy.”
¶ 6 At trial, one of the State's witnesses read Fisher's redacted statement to the jury.2 This redacted statement was accompanied by a limiting instruction for the jury to use the statement as evidence only against the speaker, Fisher, and not as evidence against codefendant Trosclair, Neither Trosclair nor Fisher testified.
¶ 7 At the close of evidence, Fisher sought to have an affirmative defense to felony murder included in the jury instructions, on the grounds that she was unarmed and unaware that the other participants were armed and intended to engage in conduct likely to cause serious injury. She had not called any witnesses in her defense. The trial court denied this request. The jury found Fisher and Trosclair guilty of all charges. The trial court dismissed the second degree murder charges and sentenced Fisher to 350 months in custody and Trosclair to 553 months in custody.
¶ 8 Fisher and Trosclair appealed their convictions. The Court of Appeals affirmed. State v. Fisher , 184 Wash.App. 766, 338 P.3d 897 (2014). The court found that the State's redactions to Fisher's statement violated Trosclair's Sixth Amendment confrontation rights but the error was harmless. Id. at 776, 338 P.3d 897. In the unpublished part of its opinion, the Court of Appeals held that Fisher did not present sufficient evidence to support her requested affirmative defense. State v. Fisher , 184 Wash.App. 766, ––––, 338 P.3d 897 (2014), The State petitioned for review of the court's holding on Trosclair's confrontation rights. Fisher petitioned for review of the court's affirmative defense holding. We granted review of both. State v. Fisher , 183 Wash.2d 1024, 355 P.3d 1153 (2015) ; State v. Fisher , 183 Wash.2d 1024, 355 P.3d 1154 (2015).
ANALYSIS
Trosclair
¶ 9 The State challenges the Court of Appeals' holding that the redactions to Fisher's statement were insufficient and therefore violated Trosclair's confrontation rights under the Sixth Amendment. Fisher , 184 Wash.App. at 776, 338 P.3d 897. We review alleged confrontation clause violations de novo. State v. Koslowski , 166 Wash.2d 409, 417, 209 P.3d 479 (2009). The confrontation clause of the Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. Confrontation typically occurs through cross-examination of the speaker regarding the out-of-court statement. However, when the speaker is a codefendant, a conflict may arise between the defendant's Sixth Amendment rights and a codefendant's Fifth Amendment right not to testify. U.S. Const. amend. V.
¶ 10 The United States Supreme Court addressed this conflict in
Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968). The Court held that when a nontestifying codefendant's out-of-court statement implicating the defendant is admitted in a joint trial, the defendant's confrontation clause rights are violated.3
Id. at 128, 88 S.Ct. 1620. However, in Richardson v. Marsh, the Court clarified that the protections of Bruton do not apply unless the codefendant's statements facially incriminate the defendant. 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Therefore, we must answer the question of whether Fisher's references to Trosclair, redacted by the State to read “the first guy,” facially incriminate him. If they do not, then no Bruton violation has occurred.
¶ 11 Marsh and Gray v. Maryland , 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), guide our analysis. Marsh involved a joint trial of respondent Marsh and her codefendant, Williams. 481 U.S. at 203, 107 S.Ct. 1702. The State introduced Williams' redacted confession against Williams, and the judge gave the jury a limiting instruction not to use Williams' confession against Marsh. Id. at 204, 107 S.Ct. 1702. The issue was whether Bruton 's protections apply when a “codefendant's confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial,” Id. at 202, 107 S.Ct. 1702. The Court held Bruton's protections did not apply because the “confession was redacted to omit all reference to respondent—indeed, to omit all indication that anyone other than [a named third person] and Williams
participated in the crime.” Id. at 203, 107 S.Ct. 1702. The defendant was linked to the crime only through inferences the jury made as evidence was presented. Id. at 208, 107 S.Ct. 1702. Following Marsh, “admission of a nontestifying codefendant's confession with a proper limiting instruction” must be “redacted to eliminate not only the defendant's name, but any reference to her existence.” Id. at 211, 107 S.Ct. 1702.
¶ 12 The Court returned to the issue of redactions in Gray and further refined the parameters of Bruton. In Gray, the redactions at issue substituted blank spaces or the word “ ‘deleted’ ” for defendant Gray's name, 523 U.S. at 188, 118 S.Ct. 1151. The Court held that this “so closely resemble[d] Bruton 's unredacted statements” so as to fall within Bruton 's protective rule. Id. at 192, 118 S.Ct. 1151. Central to the Court's holding was the fact that the jury will “often realize that the confession refers specifically to the defendant.” Id. at 193, 118 S.Ct. 1151. The Court explained:
A juror somewhat familiar with criminal law would know immediately that the blank, in the phrase “I, Bob Smith, along with, robbed the bank,” refers to defendant Jones, A juror who does not know the...
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