State v. Orn

• Decision Date: 18 March 2021
• Docket Number: NO. 98056-0,98056-0
• Citation: 482 P.3d 913
• Parties: STATE of Washington, Respondent, v. Nicholas Conan ORN, Petitioner.
• Court: Washington Supreme Court

482 P.3d 913

STATE of Washington, Respondent,

v.Nicholas Conan ORN, Petitioner.

NO. 98056-0

Supreme Court of Washington, EN BANC.

Argued September 24, 2020

Filed: March 18, 2021

Gregory Charles Link, Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Petitioner(s).

Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent(s).

GORDON MCCLOUD, J.

¶ 1 Both the federal and state constitutions protect the rights of criminal defendants to present a complete defense and to confront adverse witnesses. U.S. CONST. amend. VI ; WASH. CONST. art. I, § 22 ; Davis v. Alaska , 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) ; Chambers v. Mississippi , 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) ; State v. Jones , 168 Wash.2d 713, 720, 230 P.3d 576 (2010) ; State v. Darden , 145 Wash.2d 612, 620, 41 P.3d 1189 (2002) (citing Washington v. Texas , 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) ). "The primary and most important component" of the confrontation right "is the right to conduct a meaningful cross-examination of adverse witnesses." Darden , 145 Wash.2d at 620, 41 P.3d 1189 (citing State v. Foster , 135 Wash.2d 441, 455-56, 957 P.2d 712 (1998) (plurality opinion)). Cross-examination designed to expose a witness's bias has long been recognized as particularly important because it reveals a "witness’ motivation in testifying." Davis , 415 U.S. at 316, 94 S.Ct. 1105.

¶ 2 In this case, we are asked whether the trial court violated petitioner Nicholas Conan Orn's rights to confrontation and to present a complete defense when it barred him from cross-examining the State's key witness to expose the witness's bias. Orn was charged with attempted first-degree murder after he shot and wounded Thomas Seamans in Kent, Washington in 2016. At trial, Orn sought to cross-examine Seamans on the nature and extent of Seamans's work as a confidential informant for the Kent Police Department (KPD). But the trial court limited Orn's proposed line of cross-examination to a single, misleading question: "[I]sn't it true that ... you have actually worked with the Kent Police?" 8 Verbatim Report of Proceedings (VRP) (Jan. 16, 2018) at 875. The Court of Appeals affirmed in an unpublished opinion, and we granted review. State v. Orn , No. 78089-1-I, 2019 WL 6483111 (Wash. Ct. App. Nov. 18, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/780891.pdf, review granted , 195 Wash.2d 1018, 461 P.3d 1218 (2020).

¶ 3 We reiterate our prior decisions holding that highly relevant bias evidence, such as the defense-proffered evidence of Seamans's agreement to work as a confidential informant, is admissible unless the State articulates a compelling interest for excluding it. We further hold that the single question the trial court allowed the defense to ask in this case tended to obfuscate, rather than highlight, any potential bias. As a result, the trial court's decision to exclude all other evidence related to that informant agreement violated constitutional protections and constituted an abuse of discretion. The State, however, has carried its burden of proving beyond a reasonable doubt that this constitutional error was harmless. Orn's challenge to the trial court's jury instruction on the elements of the offense also fails. We therefore affirm.

FACTS

¶ 4 In 2016, Orn lived with his girlfriend, Kimberly Boals, in an apartment complex in Kent. 5 VRP (Jan. 9, 2018) at 360. They were both acquainted with Seamans, who was living in a nearby garage unit in the same complex. 7 VRP (Jan. 11, 2018) at 762, 769. Orn moved out of the apartment after he and Boals broke up in July 2016, but he left some personal property behind. 5 VRP (Jan. 9, 2018) at 367-68. Some of that property ended up in Seamans's garage. Id. at 369-71.

¶ 5 Orn was upset about this, and over the next few weeks there was conflict between the three individuals as Orn attempted to get his belongings back. Id. at 372, 384-85, 449. Boals warned Seamans that Orn was "highly upset," "unstable," and had access to a gun. Id. at 448. She testified that the two men conveyed threats to one another through her. Id. at 449. Seamans, however, denied having been threatened by Orn directly or through Boals and said that he'd never made any threats, either. 7 VRP (Jan. 11, 2018) at 783.

¶ 6 In any case, around 7:30 p.m. on August 2, 2016, Orn sent a barrage of angry text messages to Boals. 8 VRP (Jan. 16, 2018) at 1025-27. Around 8:30, he arrived at Boals's apartment with a .22 rifle. 5 VRP (Jan. 9, 2018) at 389-90. Orn appeared "angry, irrational, not in a good state of mind," and Orn told Boals that he was going to "go confront Thomas." Id. at 390. Orn loaded his gun in the kitchen, and a frightened Boals told Orn she'd call the police if he didn't stop making threats. Id. at 390-92. Orn then said "something to the effect of ... I don't want to hurt you as well ... don't do that." Id. at 392.

¶ 7 Orn left the apartment, went to Seamans's nearby garage, and "yanked open" the garage door. Id. ; 7 VRP (Jan. 11, 2018) at 784. Inside, Seamans was lying on the couch. 7 VRP (Jan. 11, 2018) at 784. According to Seamans, Orn then opened fire, shooting Seamans in the face, chest, arm, hand, back, and buttock as Seamans ran toward the back of the garage for cover. Id. at 787-89; 8 VRP (Jan. 16, 2018) at 982-88. Orn fired 11 rounds in all. 8 VRP (Jan. 16, 2018) at 943. Orn returned to Boals's apartment and told her, "I just shot Thomas like 20 times." 5 VRP (Jan. 9, 2018) at 393. Boals ran outside, found the injured Seamans, and had a neighbor call 911. Id. at 395. Officers from the KPD arrived shortly after, and Orn was arrested at the scene. Id. at 329-34, 497. At trial, his lawyer acknowledged that Orn fired the shots but argued that they were fired in self-defense.

¶ 8 Fortunately, Seamans survived the shooting. Several months later, in December 2016, Seamans was investigated by the Kirkland Police Department for felony theft and identity theft. Supplemental Clerk's Papers (Suppl. CP) at 5. Soon after, the KPD contacted Seamans and made him an offer: if Seamans worked as a confidential informant on two controlled buys of drugs, stolen property, or firearms, his Kirkland felony charges would not be forwarded to the King County Prosecuting Attorney's Office. 2 VRP (Jan. 3, 2018) at 16-17; Suppl. CP at 2-4. Seamans accepted and signed a written agreement. Suppl. CP at 2-4.

PROCEDURAL HISTORY

¶ 9 At Orn's trial, the court granted the State's motion in limine to exclude Seamans's informant agreement and to bar Orn from asking Seamans any questions about the nature and extent of the agreement. Clerk's Papers (CP) at 184; 2 VRP (Jan. 3, 2018) at 21. Ultimately, the only question defense counsel was permitted to ask Seamans about the agreement at trial was "[I]sn't it true that since this incident, you have actually worked with Kent Police Department?", to which Seamans responded, "Yes." 8 VRP (Jan. 16, 2018) at 875.

¶ 10 Orn was convicted of attempted murder in the first degree with a firearm enhancement. CP at 135-36. On appeal, he argued that the exclusion of any evidence related to the informant agreement violated his Sixth Amendment rights to present a defense and to cross-examine adverse witnesses, requiring reversal. Orn , No. 78089-1-I, slip op. at 13. He also assigned error to the trial court's instruction to the jury on the elements of attempted first-degree murder. Id. at 7.

¶ 11 The Court of Appeals affirmed. Id . at 1. It rejected Orn's jury instruction argument. Id. at 10. And it rejected Orn's Sixth Amendment claims using deferential abuse-of-discretion review. Id . at 20-21. The appellate court characterized the issue as solely a question of admissibility of bad character evidence; hence it failed to separately analyze whether the evidence was relevant or admissible, under the constitution, to show bias. Id . Orn petitioned for review, which we granted without limitation.

STANDARD OF REVIEW

¶ 12 We review de novo whether the trial court's evidentiary rulings abridged a defendant's Sixth Amendment rights. State v. Arndt , 194 Wash.2d 784, 797, 453 P.3d 696 (2019) (citing Jones , 168 Wash.2d at 719, 230 P.3d 576 ); State v. Clark , 187 Wash.2d 641, 648-49, 389 P.3d 462 (2017) ; State v. Iniguez , 167 Wash.2d 273, 280-81, 217 P.3d 768 (2009). If a claim is raised under the Evidence Rules (ER), we review that for abuse of discretion. Arndt , 194 Wash.2d at 797, 453 P.3d 696 (citing State v. Yates , 161 Wash.2d 714, 762, 168 P.3d 359 (2007) ). No such ER claim was raised in this case; even if one had been, "An abuse of discretion is found if the trial court ... applies the wrong legal standard[ ] or bases its ruling on an erroneous view of the law,"¹ so a court " ‘necessarily abuses its discretion by denying a criminal defendant's constitutional rights.’ "²

¶ 13 We review de novo a challenged jury instruction. State v. DeRyke , 149 Wash.2d 906, 910, 73 P.3d 1000 (2003) (citing State v. Pirtle , 127 Wash.2d 628, 656, 904 P.2d 245 (1995) ).

ANALYSIS

I. A trial court violates a defendant's Sixth Amendment rights when it effectively hides the fact that the prosecution's key witness worked as a confidential informant for the same police department that investigated the case

¶ 14 Seamans was the State's key witness and the only testifying eyewitness to the shooting. Orn sought to cross-examine Seamans to expose the clear possibility that Seamans was motivated to testify in order to curry favor with the police department and the prosecutor's office holding the power to prosecute him—the same police department and prosecutor's office that were involved in Orn's case. The trial court acknowledged the relevance of this evidence but excluded nearly all of it by implied reference to ER 403, determining that the evidence's probative value was substantially outweighed by...