State v. Mason

• Decision Date: 19 July 2007
• Docket Number: No. 77507-9.,77507-9.
• Citation: 162 P.3d 396,160 Wn.2d 910
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Kim Heichel MASON, Petitioner.

162 P.3d 396

160 Wn.2d 910

STATE of Washington, Respondent, v. Kim Heichel MASON, Petitioner.

No. 77507-9.

Supreme Court of Washington, En Banc.

Argued October 26, 2006.

Decided July 19, 2007.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.

Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

CHAMBERS, J.

¶ 1 Kim Heichel Mason appeals his conviction for murder, claiming prejudice from multiple errors at the trial court. He argues he was denied his constitutional right to confront a witness against him, and he argues the jury was improperly informed that the State was not seeking the death penalty. He claims a variety of evidence was admitted in violation of the rules of evidence, that his expert witnesses' testimony was improperly excluded, that there was insufficient evidence he murdered the victim in the course of a robbery, and finally that the trial court improperly separated the aggravating factors from the base murder charge in the verdict form. We affirm his conviction.

FACTS

¶ 2 Mason was convicted of the murder of his one-time friend Hartanto Santoso. Mason and Santoso became friends while they worked together at a retirement home. As Mason's life became more difficult, his friendship with Santoso deteriorated. Friends suspected Mason was addicted to drugs. On January 23, 2001, Mason invited Santoso to his home. While Santoso's back was turned, Mason choked him into unconsciousness and bound and gagged him. When Santoso awoke, Mason threatened him with a gun and forced him to write his roommate a letter saying he was leaving town. Mason then forced Santoso to write him a check for the balance of his bank account. He also threatened to inject Santoso with drain cleaner. Santoso ultimately calmed Mason down and convinced Mason to release him with the promise not to call the police.

¶ 3 But the next day, at a friend's urging, Santoso did call the police. Santoso reported his story to several police officers. Based on what Santoso reported, the police searched Mason's home, finding items that corroborated Santoso's story. They arrested Mason who admitted he strangled and bound Santoso, but claimed he did so in self-defense. He denied demanding money or threatening to inject Santoso with drain cleaner.

¶ 4 The State charged Mason with first degree kidnapping and first degree attempted robbery, but he was released pending trial. After Mason's release, Santoso arranged with county-employed, victim's advocate Linda Webb for a civil protective order barring Mason from visiting Santoso. Despite this order, Santoso called Webb upon Mason's release, expressing fear for his life and begging to sleep in jail for safety. Shortly thereafter Santoso disappeared. All that remained was a blood trail from his apartment to his car. The blood loss was so severe the King County Medical Examiner issued a presumptive death certificate.

¶ 5 The State alleged that Mason murdered Santoso to eliminate Santoso as the only witness supporting the charges of kidnapping and attempted murder. Relying upon an alibi provided by his girl friend, Marina Madrid, Mason claimed he could not have committed the crime. But, Madrid later recanted and provided police with the details of Santoso's murder. Mason, she claimed, murdered Santoso. Madrid testified that on February 19, 2001, Mason called Madrid, telling her to meet him at the airport with a change of clothes. Later that night Madrid met Mason at the airport; Mason's hands were covered with blood and he told Madrid, "Santoso won't be a problem anymore." Report of Proceedings (RP) (Apr. 29, 2003) at 98. Mason had been cut on his right thigh and asked Madrid to sew the wound shut. On their way home, Mason threw out a bloody knife and bloody clothes. Police later recovered the knife. Deoxyribonucleic acid (DNA) evidence established the blood on the clothes and in the car belonged to Santoso. DNA evidence further established that blood found in Santoso's vehicle belonged to Mason, and was located where the driver's right thigh would be.

¶ 6 The State charged Mason with aggravated first degree murder. The State introduced evidence from police officers and the victim's advocate who testified about what Santoso told them before he disappeared. Needless to say, Santoso was never interviewed by Mason's defense team. After a 10-week trial, a jury found Mason guilty. The trial court imposed a sentence of life without possibility of parole. The Court of Appeals affirmed and we granted review. State v. Mason, 127 Wash.App. 554, 126 P.3d 34 (2005); State v. Mason, 157 Wash.2d 1007, 139 P.3d 349 (2006).

THE CONFRONTATION CLAUSE

¶ 7 Mason contends his Sixth Amendment confrontation rights were violated by the introduction of statements purportedly made by Santoso.¹ Statements made to police by Santoso before he disappeared were admitted at Mason's trial. Mason only challenges the testimony of witnesses associated with the police.² Mason contends that the admission of these statements violated his Sixth Amendment right to confront witnesses against him. The Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. 6.

¶ 8 Mason relies on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a watershed decision reformulating the conception of the confrontation clause. Before Crawford, the leading case on the confrontation clause was Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which allowed a trial court to admit the out-of-court statement of an unavailable witness even without prior opportunity for confrontation if it bore an "adequate `indicia of reliability.'" Id. We followed this approach in State v. Crawford, 147 Wash.2d 424, 54 P.3d 656 (2002), and decided the statements at issue were reliable and thus admissible, despite the defendant's lack of opportunity to confront the witness. The United States Supreme Court reversed, holding that the statements in question were subject to the right of confrontation. Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

¶ 9 Under Crawford, 541 U.S. 36, 124 S.Ct. 1354, "testimonial" statements must be subject to confrontation to be admissible. Such statements, the Supreme Court observed, cause the declarant to be a "witness" within the meaning of the confrontation clause, triggering its protections. The Court did not give a comprehensive definition of "testimonial" but observed that the "core" class of "testimonial" statements included those "pretrial statements that declarants would reasonable expect to be used prosecutorially." Id. at 51, 124 S.Ct. 1354 (quoting Br. for Pet'r at 23). The Court also seemed to quote with approval a brief that described testimonial statements as "`statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Id. at 52, 124 S.Ct. 1354 (quoting Br. for Nat'l Ass'n of Criminal Defense Lawyers et al. as Amici Curiae at 3).

¶ 10 In Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court again addressed the confrontation clause. The cases involved statements made to law enforcement personnel during an emergency call and a crime scene investigation. The court carefully limited its discussion of "testimonial" to the facts at hand but restated that statements "are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 2273-74. Thus the objective test seemed to shift from the declarant in Crawford to the interrogator in Davis leading Justice Clarence Thomas to complain that district courts were now "charged with divining the `primary purpose' of police interrogations." Id. at 2280 (Thomas, J., dissenting). In may be more accurate to say that until the Supreme Court more fully develops precisely what is "testimonial" under the confrontation clause, all courts will be divining the intent of our nation's highest court. With this background in mind, we will examine the statements Mason challenges.

THE STATEMENTS

Corporal Haslip

¶ 11 First, Mason challenges the testimony of Corporal John Haslip, Santoso's first police contact. At trial, Corporal Haslip repeated the details of Santoso's story about being choked, gagged, threatened with a gun and drain cleaner, and being forced to write a note and a check. The testimony survived a hearsay objection on the theory it was, despite the fact that 24 hours had elapsed from the attack to the report, an excited utterance. The Court of Appeals concluded that the admission of Corporal Haslip's testimony may have violated Mason's right to confront witnesses against him but that the error was harmless. Mason, 127 Wash.App. at 565, 126 P.3d 34.

¶ 12 After the Supreme Court's decision in Crawford but before Davis, the Court of Appeals assumed for sake of argument that Santoso's statement to Corporal Haslip was testimonial. Id. In light of Davis we agree. An emergency occurred — Santoso was assaulted and kidnapped by Mason. The emergency ended, Santoso went to sleep, awoke the next day, and then reported the crime. It is surely true that Santoso was afraid and wanted protection from a very real threat. Almost every person reporting a crime, in some sense, seeks the protection of the police. But the test announced by the Supreme Court in Davis looks to the "primary purpose" of the interrogation. Davis, 126 S.Ct. at 2274. A prerequisite, the court announced, is that an emergency is "ongoing." Id. The reason is that a statement made when there is no ongoing emergency does not "objectively indicat[e] that the primary purpose . . . is to enable police assistance...