State v. Parris

• Decision Date: 24 November 1982
• Docket Number: No. 48180-6,48180-6
• Citation: 98 Wn.2d 140,654 P.2d 77
• Parties: The STATE of Washington, Respondent, v. John PARRIS, Petitioner.
• Court: Washington Supreme Court

Page 140

98 Wn.2d 140

654 P.2d 77

The STATE of Washington, Respondent, v. John PARRIS, Petitioner.

No. 48180-6.

Supreme Court of Washington En Banc.

Nov. 24, 1982.

Jarrett & Kaeding, Susan Dubuisson, Olympia, for petitioner.

Patrick D. Sutherland, Thurston County Prosecutor, Chris Pomeroy, Deputy Prosecutor, Olympia, for respondent.

ROSELLINI, Justice.

The petitioner was charged as an accomplice in the unlawful delivery of a controlled substance. The trial court denied his motions to exclude statements made during the criminal transaction by the principal, who claimed his Fifth Amendment privilege and was therefore unavailable as a witness. The jury found the petitioner guilty and the Court of Appeals affirmed. State v. Parris, 30 Wash.App. 268, 633 P.2d 914 (1981).

The evidence shows that on May 14, 1979, one Milliron, an informant, contacted police officer Hurley and advised him that he had arranged a "buy" of heroin. Milliron telephoned William DeHart and was told that DeHart could obtain a half gram of heroin through his "source" and that they were to meet at the Taco Time in Olympia at 10 p.m. Hurley and Milliron drove together in a car to that address where DeHart joined them within a minute or two, arriving in his own vehicle. The Taco Time was closed or closing at that time. DeHart told Milliron and Hurley that his source would arrive in a few minutes and DeHart would arrange to go with him to get the drugs. He was given $100 in currency for this purpose. Very shortly a third car, a late model silver Oldsmobile stationwagon, drove up and DeHart got into the front seat next to the driver. After a brief conversation DeHart got out of the car and advised Hurley and Milliron that "they" would return in about a half hour. He then got back in the car and it started to move away, but stopped after a few yards. The courtesy light came on, and the inside of the vehicle was lighted up. Milliron was able to see and recognize the petitioner in the driver's seat. He saw DeHart take something from the pocket where he had put the money and hand it to the petitioner, but could not see the object itself. DeHart then got out of the car and the petitioner drove away. DeHart explained that the defendant did not want him in the car because his supplier would be made uneasy.

DeHart told Hurley and Milliron that the drugs were being gotten. Milliron testified that he asked DeHart: "Do you mean that John's going to get them?" Milliron could not recall how DeHart responded to that question. Milliron then asked: "Will it be more than a half hour?" and DeHart said that he did not think so. Milliron then asked: "Well, do you think he'll return with the drugs, or the money, and the quantity and quality would be accurate?" and DeHart replied: "Yes. I think so. There won't be any problem." When Milliron asked DeHart from whom the petitioner was going to get the drugs, DeHart said that he did not know.

They arranged to meet at the Taco Time a half hour later. DeHart drove off, but Hurley and Milliron remained at the scene. A half hour later DeHart returned, coming from behind the Taco Time. He parked his car, got out and brought the heroin to Hurley and Milliron on foot. At the same time, Hurley observed a silver Oldsmobile station wagon driving away from the other side of the Boulevard Tavern, located next door to the Taco Time.

A woman friend of the petitioner, with whom he was living at the time, testified that he had no automobile of his own and that she allowed him to use her silver Oldsmobile station wagon occasionally. She also testified that they frequented the Boulevard Tavern. She did not recall whether either had been at the tavern on the night of May 14, 1979. She said that Parris had no source of income known to her, other than money which she gave him.

The petitioner objected to the testimony of Milliron and Hurley describing their conversations with DeHart at the scene of the crime. The objection was based on the theory that this testimony made DeHart a witness against the petitioner, one who could not be cross-examined because DeHart was claiming his Fifth Amendment privilege against self-incrimination; and thus the petitioner was deprived of his right to confront the witnesses against him.

The superior court found the testimony admissible, and this ruling was affirmed by the Court of Appeals, Division Two, which held that the trustworthiness of DeHart's statements was established in that they qualified as exceptions to the hearsay rule under ER 804(b)(3), as statements against his penal interests; that they bore other adequate "indicia of reliability," and accordingly satisfied Sixth Amendment requirements pursuant to the holding of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). We granted a petition for review limited to this issue.

The sixth amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to confront witnesses against him. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974). The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. Davis, at 315, 94 S.Ct., at 1109, quoting from 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940). The purpose of such confrontation is to test the perception, memory and credibility of witnesses. Davis, at 316, 94 S.Ct., at 1110. Also, it serves the purpose of testing the witnesses' narrative powers. E. Cleary, McCormick on Evidence § 245 (2d ed. 1972). Where the witness is unavailable to testify, this right of confrontation may be violated if other witnesses testify to the substance of his statements. See generally Ohio v. Roberts, supra. On the other hand, the constitutional right to confrontation does not invariably exclude hearsay implicating the accused. Ohio v. Roberts, supra.

The Supreme Court of the United States has recently laid down the following criteria for constitutionally admissible hearsay statements:

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. [Footnote omitted.]

Roberts, at 66, 100 S.Ct., at 2539.

The phrase "indicia of reliability" appears to have had its genesis in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court delineated these indicia, after first observing that the confrontation clause does not prohibit a witness from testifying as to what he has heard as well as what he has seen. It is only when the out-of-court statement is offered for the truth of its content that confrontation problems arise. In Dutton, Evans had objected to testimony concerning a statement by an alleged accomplice, made to a fellow inmate after he was in custody, that had it not been for Evans "we wouldn't be in this now". Dutton, at 77, 91 S.Ct., at 213.

The court said:

The confrontation issue arises because the jury was being invited to infer that Williams had implicitly identified Evans as the perpetrator of the murder when he blamed Evans for his predicament. But we conclude that there was no denial of the right of confrontation as to this question of identity. First, the statement contained no express assertion about past fact, and consequently it carried on its face a warning to the jury against giving the statement undue weight. Second, Williams' personal knowledge of the identity and role of the other participants in the triple murder is abundantly established by Truett's testimony and by Williams' prior conviction. It is inconceivable that cross-examination could have shown that Williams was not in a position to know whether or not Evans was involved in the murder. Third, the possibility that Williams' statement was founded on faulty recollection is remote in the extreme. Fourth, the circumstances under which Williams made the statement were such as to give reason to suppose that Williams did not misrepresent Evans' involvement in the crime. These circumstances go beyond a showing that Williams had no apparent reason to lie to Shaw. His statement was spontaneous, and it was against his penal interest to make it. These are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.

Dutton, at 88-89, 91 S.Ct., at 219-20.

The Dutton court said:

The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that "the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement." California v. Green, 399 U.S., at 161, 90 S.Ct., at 1936.

Dutton, at 89, 91 S.Ct., at 219. This court has recognized this fundamental principle. State v. Boast, 87 Wash.2d 447, 453, 553 P.2d 1322 (1976); State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975).

Five attendant circumstances were set forth in the case of United States v. Alvarez, 584 F.2d 694 (5th Cir.1978) for use as guidelines in determining the trustworthiness of extra-judicial statements. These are: (1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness. These are not exclusive, of course, and...