State v. Wilcoxon

• Decision Date: 31 March 2016
• Docket Number: No. 91331–5.,91331–5.
• Citation: 185 Wash.2d 324,373 P.3d 224
• Parties: STATE of Washington, Respondent, v. Troy J. WILCOXON, Petitioner.
• Court: Washington Supreme Court

185 Wash.2d 324

373 P.3d 224

STATE of Washington, Respondent,

v.Troy J. WILCOXON, Petitioner.

No. 91331–5.

Supreme Court of Washington, En Banc.

Argued Sept. 10, 2015.

Decided March 31, 2016.

Andrea Burkhart, Burkhart & Burkhart PLLC, Walla Walla, WA, for Petitioner.

Benjamin Curler Nichols, Asotin County Prosecutors Office, Curtis Lane Liedkie, Attorney at Law, Asotin, WA, Jennifer Paige Joseph, King County Prosecutor's Office, Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Seattle, WA, for Respondent.

OWENS

, J.

¶ 1 The United States Constitution affords criminal defendants the right to confront witnesses presented against them, usually by means of cross-examination at trial. U.S. Const. amend. VI

. This confrontation right is often implicated when statements made outside of court are later presented at trial by someone other than the original speaker because the defendant cannot cross-examine the original speaker about the statements. However, the United States Supreme Court has held that not all out-of-court statements give rise to the protections of the confrontation right because not all speakers are acting as a “witness” against the accused as described in the Sixth Amendment. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As the Court explained, only those who “ ‘bear testimony’ ” against the accused are “ ‘witnesses' ” within the meaning of the Sixth Amendment. Id. (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)). That United States Supreme Court precedent is controlling in this case. Today, petitioner Troy Wilcoxon asks us to find that his confrontation right was violated when his codefendant's out-of-court statement was admitted at trial and Wilcoxon did not have the opportunity to cross-examine his codefendant. However, since the out-of-court statements were not testimonial, they are not subject to the confrontation right. Consequently, we find that Wilcoxon's confrontation right was not violated and affirm his conviction.

FACTS

¶ 2 Someone attempted to burglarize Lancer Lanes and Casino around 2:00 a.m. on May 14, 2013. Video surveillance showed that the burglar wore a large black plastic garbage bag. The burglar cut the surveillance feed. However, the burglar's activities awoke Eric Glasson, an individual who occasionally slept overnight at Lancer Lanes, and Glasson's presence apparently spooked the burglar into leaving without taking anything.

¶ 3 On May 23, Wilcoxon, a card dealer at Lancer Lanes, invited Glasson, James Nollette, and two other casino employees to a “strip club” called the Candy Store. Verbatim Report of Proceedings (VRP) (Jan. 7, 2014) at 118 (Volume A). The State's theory of the case was that the purpose of inviting Glasson and the other casino employees to the Candy Store was to get them out of Lancer Lanes so the burglary could occur without any interference. The group arrived around midnight, but Wilcoxon left by himself less than an hour later after talking privately with Nollette. Shortly after 2:00 a.m., the Candy Store's surveillance footage showed Nollette talking on his cell phone with someone—the conversation lasted roughly 15 minutes. Cell phone records showed several calls between Nollette and Wilcoxon around 2:00 a.m. Wilcoxon's phone's signal relied on a cell tower near Lancer Lanes. Soon after Nollette's conversation ended, Nollette, Glasson, and the two casino employees left the Candy Store.

¶ 4 That same night, surveillance footage from Lancer Lanes showed the same garbage-bag-wearing burglar enter the building just before 2:00 a.m. The burglar again cut the surveillance feed, but this time, the cameras were backed up by batteries and recorded the burglary. Surveillance footage showed the burglar take $29,074 from Lancer Lanes's money drawer.

¶ 5 Sometime after 2:00 a.m., Wilcoxon and Nollette went to their friend Eric Bomar's house. Wilcoxon and Nollette both appeared “excited.” VRP (Jan. 9, 2014) at 503 (Volume C). Bomar testified that Wilcoxon discussed going to Lancer Lanes and “getting away with it,” referring to the Lancer Lanes burglary. Id. at 504–05. Bomar testified that Wilcoxon described to him how he had burglarized Lancer Lanes, including that he had entered through the back door, disabled the security cameras, and used keys to access the money drawer. Bomar also testified that in the past he had heard both Wilcoxon and Nollette discuss how easy it would be to break in and steal money from Lancer Lanes.

¶ 6 In June, Nollette confided in his friend Gary Solem. Nollette told Solem that he had been “at a friend's house” and that his “friend asked him, ... if you were going to rob a place or hold a place up in town, ... what [place] would you do?” VRP (Jan. 8, 2014) at 301 (Volume B). Nollette responded to his friend that “if it was me, ... I would ... rob ... Lancer's Lane.” Id. Additionally, Nollette told Solem that “his friend had ... broken into ... Lancer's and that ... in the middle of the burglary, [Nollette] was over at the Candy Store,” and that “while they were over there, [Nollette] received a phone call and he went outside to talk to his friend in the middle of the burglary.” Id. at 304. Nollette did not directly identify Wilcoxon as the “friend” to Solem. See id. at 304–11.

¶ 7 Later in June, the State charged Wilcoxon with second degree burglary, first degree theft, and second degree conspiracy to commit burglary. Wilcoxon's case was joined for trial with Nollette's case.¹ Prior to trial, Wilcoxon moved to sever his trial from Nollette's trial pursuant to CrR 4.4(c)(2)

, arguing that since Nollette would likely not testify, Wilcoxon would be unable to cross-examine him regarding the statements Nollette made to Solem. The trial court denied Wilcoxon's motion. Wilcoxon did not renew his motion to sever before or at the close of all the evidence. Wilcoxon did not object to Solem's testimony regarding Nollette's statements, and Wilcoxon did not request a limiting instruction.

¶ 8 The jury convicted Wilcoxon of all three charges. It returned a special verdict that his theft and burglary convictions were “major economic offense [s]” and that Wilcoxon abused a position of trust to commit those crimes. Clerk's Papers (CP) at 86–87. Wilcoxon appealed, arguing that the trial court violated his confrontation right by denying his severance motion and failing to provide a limiting instruction sua sponte.² The Court of Appeals affirmed Wilcoxon's convictions, finding no confrontation right violation or requirement to provide a limiting instruction sua sponte. State v. Wilcoxon, 185 Wash.App. 534, 540, 542, 341 P.3d 1019 (2015)

. We granted discretionary review. State v. Wilcoxon, 183 Wash.2d 1002, 349 P.3d 856 (2015).

ISSUES

¶ 9 1. Was Wilcoxon's confrontation right violated?

¶ 10 2. If the trial court erred, was the error harmless beyond a reasonable doubt?

ANALYSIS

1. The Trial Court Did Not Violate Wilcoxon's Confrontation Right

¶ 11 Wilcoxon asks us to find that his confrontation right was violated when the court admitted out-of-court statements by his codefendant, who did not testify at trial. However, as explained in detail below, the United States Supreme Court has held that nontestimonial statements do not fall within the scope of the confrontation clause, and in this case, the statements at issue were not testimonial. Therefore, the statements did not fall within the scope of the confrontation clause and Wilcoxon's confrontation right was not violated.

A. The Confrontation Clause, Out–of–Court Statements by Nontestifying Codefendants, and the Bruton Doctrine

¶ 12 The confrontation clause of the Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI

. It ensures protection of the right of criminal defendants to confront witnesses testifying against him or her at trial. Defendants generally exercise the confrontation right by cross-examining these witnesses. We review alleged violations of the confrontation clause de novo. State v. Jasper, 174 Wash.2d 96, 108, 271 P.3d 876 (2012).

¶ 13 Separately, the Fifth Amendment provides criminal defendants the right against self-incrimination. U.S. Const. amend. V

. This affords defendants the right to refuse to testify. Sometimes this right and the confrontation right can create tension when two defendants are tried together as codefendants for the same offense. Specifically, a conflict can arise when one defendant makes a statement outside of court that implicates a codefendant and then that statement is related in the joint trial by a third party who heard the statement. This can be problematic where the speaker of the statement chooses to invoke his Fifth Amendment right not to testify in court because the codefendant does not have the opportunity to cross-examine the actual speaker of the out-of-court statement.

¶ 14 The United States Supreme Court addressed this conflict in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)

. The Court found that the admission of an out-of-court statement by a nontestifying codefendant violated the defendant's confrontation right.

Id. at 128, 88 S.Ct. 1620

. There, Bruton and a man named Evans were prosecuted jointly for an armed postal robbery. Id. at 124, 88 S.Ct. 1620. Before trial, a postal inspector interrogated Evans in jail. Id. Evans confessed to the crime and implicated Bruton. Id. At trial, Evans did not take the stand but the postal inspector testified that Evans confessed to committing the crime with Bruton. Id. The trial court instructed the jury to disregard the confession as to Bruton's guilt or innocence. Id. Ultimately, the jury convicted Bruton. Id. The Court reversed, holding that the use of Evans's confession violated Bruton's confrontation right, even with the limiting instruction. Id. at 128, 88 S.Ct. 1620. It reasoned that Evans's...