State v. Watt

• Decision Date: 14 June 2007
• Docket Number: No. 77281-9.,77281-9.
• Citation: 160 Wn.2d 626,160 P.3d 640
• Parties: STATE of Washington, Respondent, v. Kendra Lynn WATT, Petitioner.
• Court: Washington Supreme Court

160 P.3d 640

160 Wn.2d 626

STATE of Washington, Respondent, v. Kendra Lynn WATT, Petitioner.

No. 77281-9.

Supreme Court of Washington, En Banc.

Argued October 19, 2006.

Decided June 14, 2007.

Terry Jay Bloor, Benton County Prosecutors Office, Kennewick, WA, for Respondent.

Douglas Dwight Phelps, Phelps & Associates, Spokane, WA, for Petitioner.

MADSEN, J.

¶ 1 Kendra L. Watt challenges the Court of Appeals ruling affirming her conviction for manufacture of methamphetamine, possession of methamphetamine, and second degree criminal mistreatment. On direct appeal, the Court of Appeals affirmed the convictions, and this court denied review, but the United States Supreme Court vacated the judgment and remanded for reconsideration in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).¹ On remand, the Court of Appeals again affirmed, holding that the admission of hearsay statements violated Watt's constitutional right to confrontation, but that the error was harmless. Watt argues that post-Crawford, such violations are not subject to harmless error analysis and, alternatively, that the error in this case was not harmless. We disagree and affirm the Court of Appeals.

FACTS

¶ 2 Based on an informant's tip about a methamphetamine lab, police obtained a warrant to search the property of Kendra and James Watt. On the strength of evidence obtained during execution of the warrant, both Kendra and James were charged with manufacture of methamphetamine with notice of a child present,² possession of methamphetamine,³ and second degree criminal mistreatment.⁴ The criminal mistreatment charge alleged that the Watts recklessly endangered three children in their custody, R.J., M.J., and K.W., by exposing them to the hazards of a methamphetamine lab. James pleaded guilty to manufacture of methamphetamine and second degree criminal mistreatment but Kendra went to trial.

¶ 3 At trial, Kendra stated that she would invoke the marital privilege to preclude James from testifying. Over her objection, the trial court admitted two of James's hearsay statements: (1) his redacted guilty plea, including the handwritten statement, "I admit to making a small amount of meth.[⁵] I did so in a detached garage on the premises. The children lived on the premises but were not present when I made the drugs," and (2) his statement to a police investigator that he made his own anhydrous ammonia. Ex. 83.

¶ 4 The jury convicted Kendra and the Court of Appeals affirmed in an unpublished opinion. State v. Watt, noted at 117 Wash. App. 1089, 2003 WL 21761506, 2003 Wash. App. LEXIS 1725. This court denied review. State v. Watt, 151 Wash.2d 1013, 88 P.3d 965 (2004). The United States Supreme Court vacated the judgment and remanded for further consideration in light of Crawford. Watt v. Washington, 543 U.S. 976, 125 S.Ct. 477, 160 L.Ed.2d 354 (2004). On remand, the Court of Appeals again affirmed, holding that the admission of James's out-of-court statements violated Kendra's constitutional right of confrontation but that the error was harmless. State v. Watt, noted at 127 Wash.App. 1042, 2005 WL 1300118, 2005 Wash.App. LEXIS 1178. Kendra subsequently petitioned for review in this court.

ANALYSIS

¶ 5 The confrontation clause of the Sixth Amendment reads, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Prior to Crawford, an unavailable witness's hearsay statement was deemed admissible under the confrontation clause if the statement bore adequate "indicia of reliability" as determined by the trial court judge. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled by Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. In Crawford the Supreme Court held that "adequate indicia of reliability" is not a constitutionally adequate proxy for cross-examination. Crawford, 541 U.S. at 42, 124 S.Ct. 1354. Rather, the confrontation clause requires that the reliability of testimonial evidence be tested in a particular manner, i.e., through cross-examination by the defendant. Id. at 61, 124 S.Ct. 1354. Thus, a hearsay statement that is "testimonial" is inadmissible unless the defendant has an opportunity to cross-examine the witness either before or at trial. Id. at 68, 124 S.Ct. 1354.

¶ 6 Here, it is undisputed that the admission of James's hearsay statements violated the confrontation clause under the rule announced in Crawford. Both statements fall within the "core class" of testimonial statements. Id. at 51, 124 S.Ct. 1354. James was unavailable to testify and Kendra had no prior opportunity to cross-examine him. The only question is whether the error requires reversal.

¶ 7 Kendra contends that under Crawford, a violation of the right of confrontation requires automatic reversal. She argues that Crawford established a "watershed rule of criminal procedure," the violation of which requires automatic reversal. In support, she relies on Bockting v. Bayer, 399 F.3d 1010 (9th Cir.2005), rev'd by Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007),⁶ in which the Ninth Circuit Court of Appeals held that Crawford applies retroactively because it is a new "bedrock rule of criminal procedure," the absence of which seriously diminishes the reliability of a criminal conviction. Bockting, 399 F.3d at 1016.

¶ 8 Kendra's argument is not well taken. Even before the United States Supreme Court reversed Bockting, this court expressly declined to follow it in In re Personal Restraint of Markel, 154 Wash.2d 262, 111 P.3d 249 (2005), joining the overwhelming majority of courts that had concluded Crawford did not announce a watershed rule of criminal procedure. In Markel, this court reasoned that the accuracy of a conviction is not seriously diminished in the absence of the Crawford rule because a defendant could challenge the use of hearsay evidence within the previously recognized contours of the confrontation clause. Id. at 273, ¶ 18, 111 P.3d 249. In reversing Bockting, the Supreme Court similarly reasoned that any incremental improvement in the reliability of testimonial evidence resulting from the Crawford rule is not of such "magnitude" as to cast doubt on the accuracy of convictions obtained under the Roberts rule. Whorton, 127 S.Ct. at 1183.

¶ 9 Although the Supreme Court recently held that Crawford does not apply retroactively, whether a violation of the right of confrontation requires automatic reversal presents a distinct issue. Retroactivity depends on whether a new rule of constitutional law affects the reliability of the proceedings. Teague v. Lane, 489 U.S. 288, 313, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In contrast, whether a constitutional error requires automatic reversal depends on whether its effect on the trial can be assessed. These are different issues that require separate analysis.⁷ Tyler v. Cain, 533 U.S. 656, 666, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ("The standard for determining whether an error [requires automatic reversal] is not coextensive" with a determination that the error involves a watershed rule of criminal procedure (citation omitted)). A constitutional error may require automatic reversal even though it does not apply retroactively. Tyler, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (defective reasonable doubt instruction, although structural error, does not apply retroactively).

¶ 10 Automatic reversal is required only when a constitutional error can be characterized as a "structural defect." "Structural defects" defy harmless error analysis because they undermine the framework of the trial process itself, their effect cannot be ascertained without resort to speculation, or the question of harmlessness is irrelevant based on the nature of the right involved. United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S.Ct. 2557, 2564, 165 L.Ed.2d 409 (2006) (denial of right to counsel of choice). See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable doubt instruction); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of the right to self-representation); Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of right to public trial); Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (discrimination in the selection of a jury); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (failure to determine that a defendant is competent to stand trial); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (denial of the right to appointed counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (denial of the right to an unbiased adjudicator).

¶ 11 Many claimed constitutional errors occur during the presentation of the case to the jury. Generally, these "trial errors" are reviewable because their effect may be evaluated in the context of the other evidence presented to determine whether the error was harmless beyond a reasonable doubt. See, e.g., Washington v. Recuenco, ___ U.S. ___ 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (judicial fact-finding in violation of Sixth Amendment right to jury trial is a trial error) (citing Arizona v. Fulminante, 499 U.S. 279, 306-07, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (cataloguing trial errors subject to harmless error review)).

¶ 12 The admission of a hearsay statement in violation of the confrontation clause is a classic trial error. This is so because a reviewing court may evaluate the possible effect of the hearsay statement in the context of all the evidence presented at trial. See State v. Guloy, 104 Wash.2d 412, 432, 705 P.2d 1182 (1985) (Brachtenbach, J., concurring). Indeed, it is well-established under federal and state law that a violation of the confrontation clause is subject to harmless error analysis. Delaware...