State v. Whisler

• Decision Date: 06 May 1991
• Docket Number: No. 24573-2-I,24573-2-I
• Citation: 61 Wn.App. 126,810 P.2d 540
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Lenard Douglas WHISLER, Appellant.

Page 126

61 Wn.App. 126

810 P.2d 540

STATE of Washington, Respondent, v. Lenard Douglas WHISLER, Appellant.

No. 24573-2-I.

Court of Appeals, of Washington Division 1.

May 6, 1991.

Scott G. Busby, Appellate Defender, Seattle, for appellant.

Betty Brinson, Sp. Deputy Pros. Atty., Bellingham, for respondent.

AGID, Judge.

Defendant Lenard Whisler appeals his judgment and sentence for forgery and first degree theft. Whisler argues that the trial court erred in admitting the deposition testimony of Virga Adams, the 94-year-old woman whose check Whisler allegedly forged.

Whisler raises two issues on appeal. First, did the trial court make the requisite findings that Adams was an "unavailable" witness under ER 804 and that admission of her deposition testimony would not violate Whisler's constitutional right of confrontation? Second, assuming the trial court in fact made the requisite findings concerning unavailability and Whisler's confrontation clause rights, are those findings supported by the evidence? We conclude that the trial court made the requisite findings and that the findings are supported by the evidence. Accordingly, we affirm.

Whisler was charged by information with one count of first degree theft in violation of RCW 9A.56.030(1)(a) and RCW 9A.56.020(1)(b) and one count of forgery in violation of RCW 9A.60.020(1)(a) and (b). On March 1, 1989, Judge Byron L. Swedberg granted Whisler's motion to proceed pro se at trial. ¹ The trial was held on May 4 and 5, 1989, before Judge David A. Nichols.

The circumstances surrounding admission of Adams' deposition at trial are as follows. On April 10, 1988, a few days before the original trial date, the State informed Whisler and Judge Swedberg that the State would not be calling Adams to testify because she was not well enough to travel. Whisler did not comment on the State's decision. Two days later, at a pretrial conference the day before the original trial date, the State filed an amended witness list substituting Arloween Dailey, Adams' daughter, for Adams. Dailey had not previously been on the State's witness list. Whisler moved for a continuance based on his inability to contact several witnesses. Judge Swedberg granted the motion and set the case for trial on May 4 and 5, 1989. After the continuance was granted, Whisler raised an objection to Dailey testifying in place of Adams, stating that Dailey should not be permitted to speak for Adams. Judge Swedberg assured Whisler that he could object to Dailey's testimony at trial if she attempted to testify for Adams.

On April 25, 1989, at a hearing on several pretrial motions before Judge Michael Moynihan, Whisler informed the court that he wished to call Adams as a witness at trial. The State replied that it would resist issuing a subpoena because Adams' physician had advised her not to travel to Bellingham to testify. Judge Moynihan agreed that Whisler should be permitted to call Adams as a witness and directed Whisler to prepare a subpoena.

On May 2, 1989, at a hearing before Judge Swedberg on additional pretrial motions, the State moved to quash the subpoena to Adams. In support of its motion, the State submitted an affidavit summarizing the prosecutor's telephone conversation with Dr. Zrinko Petrak, Adams' physician. According to the affidavit, the prosecutor spoke to Dr. Petrak on April 28, 1989. Dr. Petrak told the prosecutor that Adams was 94 years old, suffers from chronic cardiovascular disease and chronic congestive heart failure, wears a pacemaker and was at risk for blood clots. Adams' condition was not expected to change in the future. Dr. Petrak had discussed with Dailey the possibility of Adams traveling to Bellingham to testify at trial and had advised against it because of Adams' age and serious physical problems. In Dr. Petrak's opinion, Adams could not safely travel from Kennewick to Bellingham to testify because of her heart condition.

After reviewing the affidavit, Judge Swedberg stated that whether he would issue the subpoena requiring Adams to testify would depend on Dr. Petrak's recommendation as confirmed by Whisler. He arranged for Whisler to talk directly to Dr. Petrak. Whisler reported to Judge Swedberg that Dr. Petrak had confirmed the substance of the State's affidavit. Whisler argued that Adams should nonetheless be required to testify because Adams had traveled to Eugene, Oregon the year before to visit her son. Because Whisler confirmed that the State's affidavit accurately stated Dr. Petrak's opinion, Judge Swedberg refused to issue a subpoena but agreed to arrange for a telephonic deposition of Adams. The deposition was taken the same day, 2 days before trial.

At trial, Whisler would not commit to introducing Adams' deposition. Before resting its case, the State moved to admit Adams' deposition, arguing to Judge Nichols that Judge Swedberg had already found Adams to be "unavailable" and that the "confrontation issues were met" because the deposition had been taken at Whisler's request. Whisler objected. Judge Nichols agreed with the State, finding that Judge Swedberg, having authorized the deposition, had necessarily found that Adams was "unavailable" and that the deposition could thus be admitted by the State under ER 804. Judge Nichols also rejected Whisler's argument that admitting the deposition testimony would violate his confrontation clause rights. The trial court therefore overruled Whisler's objection and allowed the State to read Adams' deposition to the jury.

THE UNAVAILABILITY DETERMINATION

Whisler contends that the trial court failed to make a proper finding that Adams was "unavailable" for purposes of ER 804(a)(4) and the confrontation clauses of the state and federal constitutions. He argues that while Judge Swedberg properly authorized the taking of Adams' deposition before trial under CrR 4.6(a), ² neither Judge Swedberg nor Judge Nichols, the trial judge, made a ruling on whether the deposition testimony was admissible as evidence under ER 804.

Under ER 804(a)(4) there is an exception to the hearsay rule pursuant to which a court may admit prior testimony into evidence when the declarant "[i]s unable to be present or to testify at the hearing". ³ If the witness' unavailability is due to illness or infirmity, the illness or infirmity must be so severe as to render the witness' attendance "relatively impossible and not merely inconvenient." (Emphasis omitted.) People v. Stritzinger, 34 Cal.3d 505, 668 P.2d 738, 746, 194 Cal.Rptr. 431, 439-40 (1983) (quoting People v. Gomez, 26 Cal.App.3d 225, 230, 103 Cal.Rptr. 80 (1972)). Moreover, prior testimony is only admissible against a criminal defendant if the defendant "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." ER 804(b)(1).

Although an out-of-court statement may meet the requirements for a hearsay exception under ER 804, it is only admissible against an accused if it satisfies confrontation clause concerns. State v. Palomo, 113 Wash.2d 789, 794, 783 P.2d 575 (1989), cert. denied, --- U.S. ----, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990). The sixth amendment to the Federal Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him". ⁴ Similarly, article 1, section 22 of the Washington State Constitution states that "[i]n criminal prosecutions the accused shall have the right to ... meet the witnesses against him face to face". Const. art. 1, § 22 (amend. 10). Although the state constitutional provision arguably gives broader protection than its federal counterpart, our courts have not so interpreted it. Palomo, 113 Wash.2d at 794, 783 P.2d 575. Our analysis is therefore the same under both clauses, and we will refer to them collectively as "the confrontation clause."

While ER 804 and the confrontation clause have similar requirements and are designed to protect similar values, the overlap is not complete. California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970). The confrontation clause right is not absolute, ⁵ and an out-of-court declaration may be admitted under that clause if it satisfies two requirements. First, the declarant must be "unavailable" at the time of trial. ⁶ Second, the prior testimony must be marked with adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980). Whisler does not argue that Adams' testimony was unreliable. Indeed, he could not do so under the circumstances of this case where he took the deposition himself 2 days before and in preparation for his trial. Thus, we address only the "unavailability" prong of the confrontation clause test.

Whisler contends that Judge Swedberg merely ruled that Adams might "be unable to attend" the trial for purposes of ordering that her deposition be taken under CrR 4.6(a), not that Adams was unavailable for purposes of ER 804(a)(4) or the confrontation clause. Whisler continues that when the State moved to admit Adams' deposition at trial, Judge Nichols also never made a finding as to Adams' unavailability, but merely assumed that Judge Swedberg had necessarily done so.

Whisler is correct in arguing that a finding that a witness "may be unable to attend ... trial" under CrR 4.6(a) does not necessarily incorporate a finding that a witness is unavailable for purposes of ER 804. (Emphasis added.) See Scott, 48 Wash.App. at 564, 739 P.2d 742. The court's determinations of "unavailability" under CrR 4.6(a) and ER 804 are clearly different. A finding that a witness "may" be unavailable is not the same as a finding that the witness "is" unavailable. Hearsay is only admissible under ER 804 if the court finds the declarant is unable to testify at trial and the "opportunity and similar motive" requirements of ER 804(b)(1) are met.

This analysis does not, however, dispose of the issue before us. Based on...