State v. Kirkpatrick

• Decision Date: 12 July 2007
• Docket Number: No. 77719-5.,77719-5.
• Citation: 161 P.3d 990,160 Wn.2d 873
• Parties: STATE of Washington, Respondent, v. Nathan Michael KIRKPATRICK, Petitioner.
• Court: Washington Supreme Court

161 P.3d 990

160 Wn.2d 873

STATE of Washington, Respondent, v. Nathan Michael KIRKPATRICK, Petitioner.

No. 77719-5.

Supreme Court of Washington, En Banc.

Argued October 17, 2006.

Decided July 12, 2007.

Dana M. Lind, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Carla Barbieri Carlstrom, Catherine Marie McDowall, James Morrissey Whisman, King Co Prosecutor's Office, Seattle, WA, for Respondent.

Jerald R. Anderson, Attorney at Law, Atty General S Ofc., Olympia, WA, for Amicus Curiae on behalf of Washington State.

J.M. JOHNSON, J.

¶ 1 The Sixth Amendment to the United States Constitution provides defendant the right "to be confronted with the witnesses against him . . . ."¹ Under this "Confrontation Clause," testimonial evidence may not be admitted at trial absent proof of the declarant's unavailability and prior opportunity for cross-examination of the declarant by the accused.² Not all evidence is testimonial, of course, but the United States Supreme Court has not provided a comprehensive definition of "testimonial" in this context.³ However, the court's express recognition that business records are not "testimonial" provides a basis for concluding that public records, as well as certifications of the absence thereof, are also not testimonial evidence. Accordingly, we agree with Division One of the Court of Appeals that Mr. Kirkpatrick's rights under the Confrontation Clause were not violated when the trial court below admitted a Department of Licensing (DOL) certification as to his lack of a driver's license.⁴ Because we also decline to reach the merits of Kirkpatrick's claim under the Washington Constitution (article I, section 7), we affirm the Court of Appeals decision upholding Kirkpatrick's convictions for reckless driving and operating a motor vehicle without a valid operator's license (NVOL).⁵

FACTS

¶ 2 On September 8, 2003, Mr. Rocky Johnson observed a black Honda "traveling in excessive speeds" on Jewell Street in Enumclaw, Washington. Clerk's Papers (CP) at 6. As the Honda drove past his home, Johnson called out to the driver. The car stopped about 50 yards past Johnson's residence, allowing Johnson to approach the vehicle and observe the driver. Later that day, and again at trial, Johnson identified Kirkpatrick as the driver. Another resident, Mr. Rodger Miller, also observed the black Honda "driving across a neighbor's lawn and the sidewalk . . . in front of it" on September 8, 2003. CP at 22, 111-12.

¶ 3 After speaking with witnesses, including Johnson and Miller, Enumclaw police officer Doug Osterdahl located the suspect Honda at a nearby McDonald's and parked his patrol car behind but not blocking the vehicle. Approaching the vehicle on foot, Officer Osterdahl observed Kirkpatrick in the front passenger seat. There was another young man in the rear, right passenger seat, as well as two young men standing outside the vehicle. Officer Osterdahl asked all four men for their names and birthdates, but none of the men were placed under arrest at this time. After obtaining their names and birthdates, Officer Osterdahl asked the young men some questions about the incident observed by Johnson and Miller. No Miranda⁶ warnings were provided at this time. Kirkpatrick admitted to Officer Osterdahl that he had driven the Honda on Jewell Street and that he did not have a driver's license. Kirkpatrick was subsequently arrested and charged with reckless driving and NVOL.

¶ 4 A hearing was held by the trial court pursuant to CrR 3.5 to determine the admissibility of Kirkpatrick's statements to Officer Osterdahl given the lack of Miranda warnings. The trial court determined that no Miranda warnings were required and, thus, the statements need not be suppressed. No unlawful seizure claim was raised at this time.

¶ 5 During trial, the State offered into evidence a certification from DOL attesting that Kirkpatrick did not have a license as of September 8, 2003. Kirkpatrick's counsel objected on hearsay grounds. The trial court found that the document was admissible pursuant to ER 803(a)(10)⁷ and ER 902(d).⁸ Ultimately, the court found Kirkpatrick guilty of reckless driving and NVOL.

¶ 6 Kirkpatrick timely appealed to Division One of the Court of Appeals, raising claims of unlawful seizure under article I, section 7 and violation of his rights under the federal Confrontation Clause. State v. N.M.K., 129 Wash.App. 155, 158-59, 118 P.3d 368 (2005), review granted sub. nom. State v. Kirkpatrick, 157 Wash.2d 1001, 136 P.3d 758 (2006). Although Kirkpatrick had not raised an unlawful seizure claim at trial, the Court of Appeals reached the merits of his claim without performing a threshold RAP 2.5(a) analysis. The Court of Appeals concluded that "there was no seizure" when Kirkpatrick was contacted by Officer Osterdahl and, accordingly, suppression of Kirkpatrick's statements was not required on these grounds. N.M.K., 129 Wash.App. at 159, 118 P.3d 368. The Court of Appeals also found no Confrontation Clause violation. Id. at 163-64, 118 P.3d 368. Kirkpatrick next filed a petition for review with this court, raising both his unlawful seizure and Confrontation Clause claims. His petition was granted. State v. Kirkpatrick, 157 Wash.2d 1001, 136 P.3d 758 (2006).

ANALYSIS

I. Constitutional Issues Raised for the First Time on Appeal

¶ 7 Under RAP 2.5(a), a party may not raise a claim of error on appeal that was not raised at trial unless the claim involves (1) trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, or (3) manifest error affecting a constitutional right. Specifically regarding RAP 2.5(a)(3), this court has indicated that "[c]onstitutional errors are treated specially because they often result in serious injustice to the accused." State v. Scott, 110 Wash.2d 682, 686, 757 P.2d 492 (1988). However, this court has also stated that "the constitutional error exception is not intended to afford criminal defendants a means for obtaining new trials whenever they can `identify a constitutional issue not litigated below.'" Id. at 687, 757 P.2d 492 (quoting State v. Valladares, 31 Wash.App. 63, 76, 639 P.2d 813 (1982), aff'd in part, rev'd in part, 99 Wash.2d 663, 664 P.2d 508 (1983)).

¶ 8 Whether RAP 2.5(a)(3) should allow the new argument on appeal is determined after a two-part analysis. State v. Lynn, 67 Wash.App. 339, 345, 835 P.2d 251 (1992). First, the court determines whether the alleged error is truly constitutional. Lynn, 67 Wash.App. at 345, 835 P.2d 251. Second, the court determines whether the alleged error is "manifest," i.e., whether the error had "practical and identifiable consequences in the trial of the case." State v. Stein, 144 Wash.2d 236, 240, 27 P.3d 184 (2001); Lynn, 67 Wash.App. at 345, 835 P.2d 251. A purely formalistic error is insufficient to justify appellate consideration of a belated claim. Lynn, 67 Wash.App. at 345, 835 P.2d 251.

A. Kirkpatrick's motion to strike State's RAP 2.5 argument is denied

¶ 9 Just prior to oral argument before this court, Kirkpatrick moved to strike a portion of the State's supplemental brief which asked this court to decline to reach the merits of Kirkpatrick's article I, section 7 claim in accordance with RAP 2.5(a). The State did not address the applicability of RAP 2.5(a) in an answer to Kirkpatrick's petition for review or in its brief submitted to the Court of Appeals. However, because Kirkpatrick himself raised the same issue in his petition here,⁹ it was appropriate for the State to address this issue in its supplemental brief. Therefore, Kirkpatrick's motion to strike is denied.¹⁰

B. Kirkpatrick's unlawful seizure claim was not properly preserved at trial

¶ 10 At trial, Kirkpatrick's counsel contended that Kirkpatrick's statements to Officer Osterdahl should be excluded due to lack of Miranda warnings not that Kirkpatrick was improperly seized. A suppression hearing was held and the trial court found that, under the circumstances, no Miranda warnings were required. No findings were requested or made regarding whether Kirkpatrick was improperly seized under article I, section 7. Yet, it is this latter issue which Kirkpatrick now asks this court to review.

¶ 11 This court declines to reach the merits of Kirkpatrick's unlawful seizure claim. While Kirkpatrick's claim is constitutional in nature, any alleged error in admitting his statements cannot be deemed manifest here. The record is insufficient to determine any practical consequences of the admission of his statements on the outcome of Kirkpatrick's trial given other, unchallenged evidence of his guilt. Moreover, Kirkpatrick's claim calls for a fact-specific analysis which this court is ill equipped to perform given the lack of trial court fact-findings. This court will not reach the merits of Kirkpatrick's belated article I, section 7 claim.

II. Confrontation Clause Violation

¶ 12 The Sixth Amendment Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This right is made binding on the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). An alleged violation of the Confrontation Clause is subject to de novo review. Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999).

¶ 13 The admission of hearsay where the witness is unavailable to testify often raises the specter of a Confrontation Clause violation. State v. Monson, 113 Wash.2d 833, 840, 784 P.2d 485 (1989) (citing State v. Parris, 98 Wash.2d 140, 144, 654 P.2d 77 (1982)). As an initial matter, hearsay is inadmissible unless it comes within an exemption or exception established by statute or common law. In Washington, RCW 5.44.040 provides one exception to the hearsay rule for "[c]opies of all records and documents on record or on file in the offices of the various...