State v. Kronich
| Citation | 160 Wn.2d 893,161 P.3d 982 |
| Decision Date | 12 July 2007 |
| Docket Number | No. 78428-1.,78428-1. |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Kyle Keith KRONICH, Petitioner. |
Tracy Arlene Staab, Federal Public Defenders, Spokane, for Petitioner.
Brian Clayton O'Brien, Kevin Michael Korsmo, Spokane County Prosecuting Attorney, for Respondent.
Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, for Amicus Curiae-Washington Association of Criminal Defense Lawyers.
Magda Rona Baker, Washington Defender Association, Seattle, for Amicus Curiae-Washington Defender Association.
Jerald R. Anderson, Attorney General's Office, Olympia, for Amicus Curiae-Washington State.
¶ 1 The Sixth Amendment to the United States Constitution provides every criminal defendant the right "to be confronted with the witnesses against him ...."1 Under this 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 The United States Supreme Court has yet to provide a comprehensive definition for "testimonial" evidence.3 However, the Court's explicit acknowledgment that business records are not "testimonial" evidence provides a basis for concluding that public records are also not "testimonial."4 Thus, we agree with Division One of the Court of Appeals that Mr. Kronich's rights under the Confrontation Clause were not violated when the trial court admitted a Department of Licensing (DOL) certification of his driving record describing the status as "suspended/revoked."5 Accordingly, we affirm the Court of Appeals decision.
¶ 2 Spokane County sheriff's deputies Jenkins and Mitchell encountered Mr. Kronich on November 15, 2000, at approximately 10:30 p.m. Specifically, while the deputies' vehicle was stopped at a railroad crossing behind a gray van, Deputy Jenkins ran a radio check on the van license. The check established that the driving privilege of the registered owner, Kronich, was currently suspended. Deputy Jenkins then pulled the van over and contacted the driver, who was subsequently identified as Kronich. Kronich was placed under arrest for third degree driving while license suspended (DWLS).
¶ 3 Deputy Jenkins noted an odor of alcohol and that Kronich appeared "lethargic." Clerk's Papers at 47. Kronich also declined to perform any field sobriety tests. A search of Kronich's vehicle, subsequent to his arrest, revealed several open containers of beer. Kronich was then placed under arrest for driving under the influence (DUI). After being transported to the Public Safety Building in Spokane, Kronich was asked to submit to a BAC breath test; he refused.
¶ 4 Kronich was charged with one count DUI and one count DWLS in the third degree. He was tried before a jury in the District Court for Spokane County. At trial, Kronich's counsel sought to exclude any evidence regarding Kronich's refusal to submit to a BAC breath test, claiming that Kronich requested and was denied counsel. The motion to suppress was denied.
¶ 5 Additionally, the State sought to admit as evidence two records from DOL: (1) an order of revocation of his driver's license and (2) a certified statement regarding the status of Kronich's driving privilege as of November 15, 2000. Kronich's counsel objected to the admission of the latter document on grounds of lack of foundation. Once the presence of a seal on the certified statement was established,6 both the order of revocation and the certified statement were admitted without further objection.
¶ 6 Following convictions on both counts, Kronich appealed to Spokane County Superior Court. On appeal, Kronich again argued that his refusal to take a BAC breath test should have been suppressed. However, the superior court determined that the ultimate decision of the trial court not to suppress was correct. Additionally, Kronich raised, for the first time, the issue of a Confrontation Clause violation as a result of the admission of the certified statement from DOL regarding his suspended license. The superior court found no Confrontation Clause violation.
¶ 7 Kronich sought discretionary review before Division Three of the Court of Appeals, where he again raised the issue of suppression of his refusal to take a BAC breath test, as well as the violation of his rights under the Confrontation Clause. State v. Kronich, 131 Wash.App. 537, 541-42, 128 P.3d 119 (2006). The Court of Appeals determined that the lower court did not err in denying Kronich's motion to suppress. Kronich, 131 Wash.App. at 542-44, 128 P.3d 119. The Court of Appeals also concluded that the DOL documents were properly admitted under the Confrontation Clause. Id. at 545-47, 128 P.3d 119.
¶ 8 Next, Kronich filed a petition for review with this court in which he raised both the BAC breath test refusal and Confrontation Clause issues decided below. This court granted review on the Confrontation Clause issue only. State v. Kronich, 157 Wash.2d 1008, 139 P.3d 349 (2006).
¶ 9 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. RAP 2.5(a). Regarding the latter type of claims, this court has noted that "`[c]onstitutional errors are treated specially because they often result in serious injustice to the accused.'" Kirkpatrick, ___ Wash. ___, ___, 161 P.3d at 993, 2007 WL 2003401 (quoting State v. Scott, 110 Wash.2d 682, 686, 757 P.2d 492 (1988)). However, "`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. (internal quotation marks omitted) (quoting Scott, 110 Wash.2d at 687, 757 P.2d 492).
¶ 10 The applicability of RAP 2.5(a)(3) is determined according to a two-part test. Id. (citing 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 will not be deemed manifest. Id., ___ Wash. at ___, 161 P.3d at 993, 2007 WL 2003401 (citing Lynn, 67 Wash.App. at 345, 835 P.2d 251).
Kronich's Confrontation Clause claim was not properly preserved at trial; however, his claim involves a manifest error affecting a constitutional right
¶ 11 As noted by the Court of Appeals, Kronich, 131 Wash.App. at 545, 128 P.3d 119. Even so, the Court of Appeals decided to reach the merits of Kronich's Confrontation Clause claim because "this issue is likely to arise again." Id. at 546, 128 P.3d 119. This is not the correct standard for analyzing whether an appellate court will exercise its discretion under RAP 2.5(a). Rather, the Court of Appeals should have addressed whether Kronich's claim involves a manifest error affecting a constitutional right.
¶ 12 This court recently declined to reach the merits of a similar claim regarding DOL records because the defendant failed to properly preserve the issue. See State v. Smith, 155 Wash.2d 496, 501, 120 P.3d 559 (2005) (). However, Smith's claim appears to have been limited to a rules-based, as opposed to a constitutional, challenge to the admission of the evidence. Id. Accordingly, in declining to reach the merits of Smith's claim, this court did not decide whether his claim fit within the RAP 2.5(a)(3) exception. In contrast, Kronich's Confrontation Clause claim squarely presents the issue of the applicability of RAP 2.5(a)(3).
¶ 13 Kronich's claim regarding the admission of the DOL certification at his trial is unquestionably constitutional in nature, as it is grounded in his rights under the Confrontation Clause. His claim of error may also be deemed manifest in that, had he successfully raised his Confrontation Clause challenge at trial, the DOL certification would have been excluded. Consequently, the State's case against Kronich for DWLS would have been fatally undermined. Kronich, 131 Wash.App. at 548, 128 P.3d 119 (Baker, J. Pro Tem., concurring in part and dissenting in part). In other words, assuming there was an error, it clearly had "practical and identifiable consequences in the trial of the case." State v. Stein, 144 Wash.2d 236, 240, 27 P.3d 184 (2001). In accordance with the above analysis, we hold that Kronich's Confrontation Clause claim involves a manifest error affecting a constitutional right and is, thus, subject to review despite his failure to properly preserve the issue at trial. RAP 2.5(a)(3).
¶ 14 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).
¶ 15 The admission of hearsay frequently raises concerns under the...
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