State v. Powers

• Decision Date: 02 November 2004
• Docket Number: No. 30364-7-II.,30364-7-II.
• Citation: 99 P.3d 1262,124 Wash. App. 92
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jeffrey Wayne POWERS, Appellant.

99 P.3d 1262

124 Wash. App. 92

STATE of Washington, Respondent, v. Jeffrey Wayne POWERS, Appellant.

No. 30364-7-II.

Court of Appeals of Washington, Division 2.

November 2, 2004.

As Amended November 16, 2004.

Rachel Brooks Mitchell, Vancouver City Attorney's Office, Vancouver, WA, for Respondent.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

VAN DEREN, J.

Jeffrey Wayne Powers appeals his conviction of violating a domestic violence protection order.¹ He claims that the trial court erred in (1) admitting a 911 recording in light of Crawford v. Washington;² (2) admitting his statements before the State had established the corpus delicti of the offense; (3) denying his motion to dismiss for violation of the speedy trial rule; and (4) finding him guilty of a felony violation because the underlying judgments do not indicate on their face which statute he violated. He also claims that trial counsel failed to provide effective assistance. We hold that the 911 tape in this case was inadmissible because its purpose was to report Powers so authorities would apprehend him; it was not made under the stress of an immediate threat of harm, nor was Powers still present. Without the tape, the State did not establish the corpus delicti of the offense; therefore Powers' statements to the police were inadmissible under the corpus delicti rule. We reverse and remand and do not address the remaining issues.

FACTS

At 7:08 p.m. on January 14, 2003, T.P. called 911 to report that Powers had been in her home in violation of a no-contact order against him. Vancouver Police Officer Brian Schaffer located Powers in a parking lot two-and-one-half to three blocks away. He handcuffed Powers, gave him Miranda³ warnings, which Powers waived and discussed the allegations. He testified that Powers admitted visiting T.P., that he went there to talk about their relationship, that she did not know he was coming over, that he used to own the house and thought a no-contact order was unfair, that the judge should have ordered counseling instead of a no-contact order, and that some day he and T.P. would get married.

Powers was arrested for a gross misdemeanor violation of a no-contact order. Subsequently, the prosecutor learned that Powers had two previous no-contact-violation convictions, dismissed the district court charges and filed felony charges. The jury found him guilty as charged. The court imposed a standard range, 14-month sentence.

I. DISCUSSION

A. Admission of 911 Tape

Powers argues that the trial court's admission of the 911 tape of T.P's call violated his right of confrontation.

At the time of trial, Washington evidence law allowed the admission of excited utterances under an exception to the hearsay rule. ER 803(a)(2). Federal Sixth Amendment law allowed the admission of hearsay, even if the declarant was not subject to cross-examination, if the hearsay fell within a firmly rooted hearsay exception or was accompanied by particularized guaranties of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); see also White v. Illinois, 502 U.S. 346, 356-57, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)

; Idaho v. Wright, 497 U.S. 805, 820-21, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); United States v. Inadi, 475 U.S. 387, 395-96, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).

Following trial, the United States Supreme Court decided Crawford v. Washington, holding that a judge's ruling on the reliability and trustworthiness of a statement by an unavailable witness cannot substitute for the defendant's constitutional right to confront the witness. Crawford holds that the Sixth Amendment prohibits the admission of testimonial evidence that is not subject to defense examination at trial. The only exception is when the witness is unavailable at trial and the defendant had a prior opportunity to examine the witness. Crawford, ___ U.S. at ___, 124 S.Ct. at 1365.

The question here is whether T.P.'s 911 call was "testimonial." If it was, it was inadmissible because T.P. did not testify at trial and had not previously been examined.

The supreme court in Crawford did not define "testimonial," expressly leaving that task for another day. ___ U.S. at ___, 124 S.Ct. at 1374. It did, however, provide some guidance. It held:

Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," Brief for Petitioner 23; "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (THOMAS, J., joined by SCALIA, J., concurring in part and concurring in judgment); "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," Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition — for example, ex parte testimony at a preliminary hearing.

Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.

Crawford, ___ U.S. at ___, 124 S.Ct. at 1364.

Powers argues that T.P.'s statement to the 911 operator "falls squarely within the `pretrial statements that declarants would reasonably expect to be used prosecutorially.'" Appellant's Supp. Brief at 10. He reasons that T.P. knew, as do most people, that a 911 operator is an immediate conduit to the police. And he reasons that T.P. "was aware of the no-contact order, as she was named in it, spoke of it on the telephone, and surely received a copy. Based on her experience, [T.P.] knew that her statements would result in Mr. Powers' arrest." Appellant's Supp. Brief at 12 (citing Richard Friedman, Bridget McCormack, Dial-In Testimony, 150 U. PA. L.REV. 1171, 1199 (2002)) ("[callers] know that by making the call they are practically ensuring that the other person will be arrested, and that a criminal prosecution will probably follow.")

Several recent cases provide guidance. People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875 (2004), involved a domestic violence victim's call to 911. The court found that the call was not testimonial. The court explained that (1) a victim, not the police, typically initiates such a call; (2) the call is not generated by the desire of the police to seek evidence but by the urgent desire of a citizen to be rescued from immediate peril; (3) the call can be seen as part of the criminal incident itself, rather than as part of the prosecution, because the calls are often made while an assault or homicide is still in progress; and (4) because there is no time for contemplation ("Typically, a woman who calls 911 for help because she has just been stabbed or shot is not contemplating being a `witness' in future legal proceedings; she is usually trying simply to save her own life.") Moscat, 777 N.Y.S.2d at 878.

People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401 (2004), involved a 911 recording of a call related to an attempted murder. On the 911 tape, the caller yells, "He's killing him, he's killing him, he's shooting him again," and hangs up with the comment, "I gotta hang up because people, people are gonna think I'm out calling the cops." Cortes, 781 N.Y.S.2d at 404. The caller was never identified and, thus, not available to testify.

The Cortes court held that the 911 recording was testimonial because (1) it was made to civilian police department employees; (2) the caller is questioned; and (3) the calls are routinely recorded. The court explained, "When a 911 call is made to report a crime and supply information about the circumstances and the people involved, the purpose of the information is for investigation, prosecution, and potential use at a judicial proceeding; it makes no difference what the caller believes." Cortes, 781 N.Y.S.2d at 415. "The 911 call in this case was for the purpose of invoking police action and the prosecutorial process. The only use of the statements was for government intervention including judicial proceedings." Cortes, 781 N.Y.S.2d at 416.

And in Leavitt v. Arave, 371 F.3d 663 (9th Cir.2004), the reviewing court assessed the admission of a victim's statements to police the night before her murder. She had called dispatchers and talked to police while severely frightened by a prowler trying to break into her home. She was severely agitated and she named the defendant as the likely prowler because he had come to the home earlier in the day and she had refused him entry. The defendant claimed a violation of his rights under the confrontation clause of the Sixth Amendment. The court concluded that the statements on the tape were not affected by the confrontation clause because she sought help from the police to end a frightening intrusion into her home and were therefore not testimonial. They were admissible, even though hearsay, because the statements were excited utterances. Leavitt, 371 F.3d at 683; see also State v. Wright, 686 N.W.2d 295 (Minn.App.2004)

(victim's excited utterances to 911 operator were nontestimonial.)

The dichotomy between a plea for help and testimonial statements in 911 calls was the subject of a law review article that foreshadowed the rule adopted in Crawford. In it, the authors concluded:

Now consider statements made in 911 calls and to responding police officers. A reasonable person knows she is speaking to officialdom — either police officers or

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