State v. Kronich

131 Wash. App. 537

• Court: Court of Appeals of Washington
• Decided: February 7, 2006
• Docket: No. 23427-4-III
• Status: Published

Opinions

¶1

Brown, J.

— Kyle K. Kronich appeals his convictions for driving while under the influence (DUI) and third degree driving while license suspended. He contends (1) his breath test refusal should have been suppressed because he was denied an attorney and (2) a Department of Licensing (DOL) record violated Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We affirm.

FACTS

¶2 Deputy Sheriff Jeff Jenkins was behind Mr. Kronich’s vehicle at a train crossing waiting for a train to pass. While waiting, Deputy Jenkins checked Mr. Kronich’s license plate by radio and learned Mr. Kronich’s license was suspended. Deputy Jenkins verified Mr. Kronich’s description and then stopped the vehicle. Mr. Kronich exited the vehicle and appeared “lethargic.” Clerk’s Papers (CP) at 47. His eyes were half-closed and he appeared sleepy and very slow moving.

¶3 Deputy Jenkins smelled a strong odor of intoxicants on Mr. Kronich’s breath. Mr. Kronich was arrested for driving with a suspended license. Deputy Jenkins saw numerous open beer containers in the car. Mr. Kronich refused a breath test, blood test, and field sobriety tests. Deputy Jenkins completed a DUI arrest report box showing, “Attorney Requested?” DUI Arrest Report at 2. Deputy Jenkins checked “Yes.” Id. Then, the Deputy filled in “No” in the box, “Attorney Contacted?” Id. Within the “Attorney’s Name” box, the deputy noted, “Did not want to call.” Id.

¶4 Mr. Kronich was charged with driving under the influence of intoxicating liquor and/or drugs and third degree driving while license suspended. Before trial, Mr. Kronich unsuccessfully sought suppression of his breath test refusal, arguing denial of access to counsel. The court reasoned Mr. Kronich accepted the deputy’s offer to contact an attorney, but “for some reason Mr. Kronich decided that he didn’t want to call anybody.” CP at 30. The court concluded he waived his right to access to counsel, noting, “All the State has to do or the law enforcement agency has to do is help provide access.” CP at 30. Further, the court reasoned the defense failed to make “the case that total access to an attorney was denied.” CP at 31.

¶5 During trial, the State admitted a DOL order of revocation of Mr. Kronich’s driving privileges and a cover letter from the DOL custodian of records, certifying that DOL records indicated Mr. Kronich: “Had not reinstated his/her driving privilege. Was suspended/revoked.” Ex. 2.

¶6 Mr. Kronich was convicted as charged. On RALJ review, the superior court affirmed Mr. Kronich’s convictions, finding the district court “applied the wrong standard regarding who has the burden of producing evidence in the suppression hearing.” CP at 98. But, the superior court concluded, the error was harmless because even without the evidence of Mr. Kronich’s refusal to submit to the breath test, substantial evidence existed to show intoxication. Additionally, the superior court concluded admission of the DOL document falls under the public record exception and, therefore, does not violate Crawford. This court granted discretionary review.

ANALYSIS

A. Access to Counsel

f 7 The issue is whether the trial court erred in denying Mr. Kronich’s suppression motion to exclude evidence of his refusal to perform the breath test on the grounds he was denied access to counsel.

¶8 In a RALJ review, our focus is error in the district court, not the superior court. State v. Brokman, 84 Wn. App. 848, 850, 930 P.2d 354 (1997). We review legal issues de novo and factual issues for substantial evidence. City of Bellevue v. Jacke, 96 Wn. App. 209, 211, 978 P.2d 1116 (1999).

¶9 An arrested driver subject to a breath test must be advised of the Miranda1 rights and right to access counsel under CrRLJ 3.1. State v. Staeheli, 102 Wn.2d 305, 309, 685 P.2d 591 (1984). “If the defendant requests the assistance of counsel, access to counsel must be provided before administering the test.” State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 831, 675 P.2d 599 (1984). According to CrRLJ 3.1(c)(2): “At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number of the public defender or official responsible for assigning a lawyer, and any other means necessary to place him or her in communication with a lawyer.” The remedy for denying the right to counsel is suppression of the evidence acquired after the violation. City of Spokane v. Kruger, 116 Wn.2d 135, 803 P.2d 305 (1991).

¶10 In denying Mr. Kronich’s motion to suppress, the trial court reasoned that under the facts Mr. Kronich accepted the deputy’s offer to contact an attorney, but “for some reason Mr. Kronich decided that he didn’t want to call anybody.” CP at 30. Although the trial court did not make explicit written findings to this effect, this court may look to the trial court’s oral decision for interpretation. State v. Motherwell, 114 Wn.2d 353, 358 n.2, 788 P.2d 1066 (1990). In reviewing a suppression motion denial, we examine whether substantial evidence supports the trial court’s findings of fact. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).

¶11 Here, Deputy Jenkins completed a DUI arrest report. On the report, it asks, “Attorney Requested?” DUI Arrest Report at 2. Deputy Jenkins checked the box “Yes.” Id. Then, the report asks, “Attorney Contacted?” Id. The deputy checked, “No.” Id. Within the “Attorney’s Name” box, the deputy noted, “Did not want to call.” Id. The DUI report provides substantial evidence that Deputy Jenkins offered access to counsel and Mr. Kronich accepted but then changed his mind. Mr. Kronich’s indecisiveness is not a surprise given the deputy’s observation that Mr. Kronich had been drinking, was lethargic, and very slow moving.

¶12 Accordingly, substantial evidence shows Mr. Kro-nich changed his mind about his desire for counsel. While CrRLJ 3.1 requires the State to offer access to counsel, it is not required to force the defendant to accept. See State v. Halbakken, 30 Wn. App. 834, 837, 638 P.2d 584 (1981) (in DUI cases, the State has no duty to provide counsel in the absence of a request). The rule was not violated.

¶13 However, assuming Mr. Kronich was denied his CrRLJ 3.1 right of access to counsel, Mr. Kronich would still have to prove prejudicial error. “Because the asserted error is a violation of a court rule (rather than a constitutional violation), it is governed by the harmless error test.” State v. Robinson 153 Wn.2d 689, 697, 107 P.3d 90 (2005) (citing State v. Templeton, 148 Wn.2d 193, 220, 59 P.3d 632 (2002)). When a court rule is involved, this court determines whether the error was prejudicial in that “ ‘within reasonable probabilities, [if] the error [had] not occurred, the outcome... would have been materially affected.’ ” Robinson, 153 Wn.2d at 697 (first and second alteration in original) (quoting State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001)).

¶14 Other DUI evidence exists beyond the refusal. Deputy Jenkins testified he observed Mr. Kronich driving. Upon stopping him for a suspended driver’s license, Deputy Jenkins noticed Mr. Kronich appeared lethargic with his eyes half-closed and moving very slowly. As the deputy approached, he smelled a strong odor of intoxicants on Mr. Kronich’s breath. Upon searching his vehicle, Deputy Jenkins observed numerous open containers of beer. Within reasonable probabilities, even if the jury did not learn of Mr. Kronich’s refusal to perform the breath test, it would have still convicted him of DUI.

B. Public Record Admissibility

¶15 The next issue is whether Mr. Kronich was denied his Sixth Amendment confrontation rights under Crawford when the court allowed admission of a DOL record custodian’s certification regarding the status of Mr. Kronich’s driving privileges.

¶16 We review evidence rulings for abuse of discretion. State v. Chapman, 98 Wn. App. 888, 890, 991 P.2d 126 (2000). Discretion is abused when it is exercised without tenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

¶17 Mr. Kronich did not object to the DOL document at trial based on Crawford, even though Crawford was decided before his trial. Rather, he objected based on “foundation.” CP at 60. The State explained the document was under seal. It was then admitted without further objection. This is unsurprising given ER 902 (document under seal is self-authenticating).

¶18 Our Supreme Court recently addressed a similar situation. In State v. Smith, 155 Wn.2d 496, 120 P.3d 559 (2005), Mr. Smith objected at his first degree driving while license suspended or revoked trial to a letter from a DOL custodian of records based on foundation. On appeal, he argued the letter should have been excluded as hearsay. The Court of Appeals held a DOL letter certifying information in DOL’s database regarding an individual’s driving status is a public record. See State v. Smith, 122 Wn. App. 699, 704, 94 P.3d 1014 (2004) (driving record is “ ‘a classic example of a public record’ ” (quoting State v. Monson, 53 Wn. App. 854, 858, 771 P.2d 359 (1989))). The Supreme Court held the Court of Appeals should not have reached this issue because Mr. Smith objected at trial to foundation, not hearsay. Smith, 155 Wn.2d at 501 n.4. The court also declined to reach Mr. Smith’s unidentified “constitutional questions.” Smith, 155 Wn.2d at 501.

¶19 Here, Mr. Kronich raises a constitutional objection. Under RAP 2.5(a), this court declines to address new constitutional issues raised for the first time on appeal unless the claim reflects a manifest error affecting a constitutional right. RAP 2.5(a) was not designed to allow parties a means for obtaining new trials whenever they can identify a constitutional issue not litigated below. State v. WWJ Corp., 138 Wn.2d 595, 602, 980 P.2d 1257 (1999). While our Supreme Court in Smith declined to address Mr. Smith’s constitutional issues, we acknowledge Mr. Kronich’s confrontation clause issue and consider it in passing because this issue is likely to arise again.

|20 The Sixth Amendment’s confrontation clause guarantees a criminal defendant’s right to be confronted with the witnesses against him or her. Crawford, 541 U.S. at 42-43. The Crawford Court rejected the reliability test for testimonial statements derived from Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).

¶21 Now, a testimonial statement of a declarant who does not testify at trial is inadmissible unless (1) the declarant is unavailable and (2) the defendant had a previous opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59-60. Generally, testimonial statements are declarations or affirmations made for the purpose of establishing some fact. Id. at 51-52. Examples of testimonial statements include pretrial statements the declarants would reasonably expect to be used by the prosecutor, such as affidavits, depositions, confessions, and statements taken by police officers in the course of interrogations. Id. “Business records” are not included in this category. Crawford, 541 U.S. at 56 n.6; see also 541 U.S. at 75-76 (Rehnquist, C.J., noting in his concurrence that “the Court’s analysis of ‘testimony’ excludes at least some hearsay exceptions, such as business records and official records”).

¶22 Other jurisdictions have found public records to be analogous to business records. People v. Shreck, 107 P.3d 1048 (Colo. 2004); People v. Selassie, 140 Misc. 2d 616, 532 N.Y.S.2d 326, 328 (Sup. Ct. 1988). Adopting this finding, public records, like business records, should not be considered “testimonial” statements for purposes of applying Crawford.

¶23 Recently, Division One of this court reached the same conclusion under quite similar facts. State v. N.M.K., 129 Wn. App. 155, 118 P.3d 368 (2005). The N.M.K. court additionally approved the application of ER 803-(a)(10) related to admission of evidence in the absence of a public record. Considering the similarity between business records and public records and the Crawford reasoning, the trial court did not err in denying suppression. We reach the same conclusion as did the N.M.K. court.

¶24 In sum, because Crawford did not change the law pertinent to admission of nontestimonial hearsay that falls within a hearsay exception, the DOL document here was properly admitted. “To hold otherwise would require numerous additional witnesses without any apparent gain in the truth-seeking process.” Crawford, 541 U.S. at 76 (Rehnquist, C.J., concurring). Considering all, we hold the trial court did not err in denying suppression. ²

¶25 Affirmed.

Sweeney, A.C.J., concurs.

1 Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The parties’ motions to supplement the record are granted.