State v. Wilcoxon

373 P.3d 224, 185 Wash. 2d 324

Opinions

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 Wil-coxon’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 (Vol. 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 (Vol. 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 Wil-coxon 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 (Vol. 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 Nol-lette’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 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 Wn. App. 534, 540, 542, 341 P.3d 1019 (2015). We granted discretionary review. State v. Wilcoxon, 183 Wn.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 Wn.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 state ment 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. There, Bruton and a man named Evans were prosecuted jointly for an armed postal robbery. Id. at 124. 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. It reasoned that Evans’s confession added “critical” weight to the case against Bruton, in a form that was not subject to cross-examination. Id. at 127-28.

¶15 Following Bruton, the Supreme Court explored the Bruton doctrine by fleshing out how a Bruton violation should be handled and what curative measures could be implemented to avoid the effect a codefendant’s confession could have on the nonconfessing defendant’s defense. See, e.g., Harrington v. California, 395 U.S. 250, 252-55, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969) (holding that erroneous admission of a statement at a joint trial does not necessarily require reversal, as such an error is subject to harmless error analysis); Parker v. Randolph, 442 U.S. 62, 75, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979) (holding that a proper limiting instruction can allow admission of interlocking confessions to comport with the Sixth and Fourteenth Amendments to the federal constitution).

¶16 Wilcoxon argues that his case is similar to Bruton and, therefore, his confrontation right was likewise violated. However, as explained below, the United States Supreme Court has since refined its confrontation clause jurisprudence, limiting its scope to testimonial statements.

B. Limitation of the Confrontation Clause to Testimonial Statements

¶17 In 2004, the Supreme Court effectively changed the landscape of its confrontation clause analysis in Crawford, 541 U.S. at 42. In Crawford, the Court considered the admission of an out-of-court recorded statement made to police against Crawford and held that the confrontation clause barred its admission because the statement was “testimonial.” Id. at 40, 68. The Court examined the historical lineage of the defendant’s right to prior cross-examination of an unavailable witness presented against him. Id. at 43-50. Using a textual approach, it found that the confrontation clause “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Id. at 51 (quoting 2 Webster, supra). Thus, it found that the confrontation clause was primarily concerned with testimonial statements. Id.

¶18 While it was clear under Crawford that the confrontation clause certainly applied to testimonial out-of-court statements, it was unclear how nontestimonial statements should be handled. The Court answered that question in Davis v. Washington, finding that nontestimonial statements are outside of the scope of the confrontation clause. 547 U.S. 813, 821-24, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Only testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Id. at 821 (quoting Crawford, 541 U.S. at 51). The Court thus found that “[u]nder Crawford, . . . the Confrontation Clause has no application to [nontestimonial] state- merits and therefore permits their admission even if they lack indicia of reliability.” Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). Therefore, if the statement is nontestimonial, it is not subject to the confrontation clause.

¶19 Crawford and Davis advised on how to answer the threshold question of whether a statement is testimonial. In general, where the statement is functionally trial testimony, it is testimonial; where it is just a casual statement made to a friend, it is nontestimonial. Crawford, 541 U.S. at 51. Only after a court concluded that a given statement is testimonial would it proceed to analyze the confrontation clause.

¶20 Wilcoxon asks us to disregard Crawford’s and Davis’s limitation on the confrontation clause to testimonial statements and apply the Bruton doctrine without considering whether the statements were testimonial. The next section will examine whether Crawford’s limitation applies to situations covered by the Bruton doctrine.

C. Harmonizing the Bruton Doctrine and Crawford

¶21 Post-Crawford, the question we must answer is whether the Bruton doctrine must be viewed through the lens of Crawford, or whether Wilcoxon’s case must be analyzed only under Bruton. Given the scope and reasoning of Crawford, we conclude that it applies in situations that, like Bruton, involve out-of-court statements by nontesti-fying codefendants. Crawford reimagined the scope of the confrontation clause. As the United States Supreme Court later explained, the core of the confrontation clause is to protect defendants from testimony against himself or herself. Davis, 547 U.S. at 823-34. Thus, it follows that the scope of the confrontation right encompasses only testimonial statements. Its protections simply do not apply to nontes-timonial statements, whether in the context of a single defendant like in Crawford or codefendants like in Bruton.

¶22 As support for the limitation, the Court pointed out in Davis that the great majority of confrontation cases throughout American jurisprudence involved testimonial statements. Id. at 824-26. Indeed, Bruton itself involved a testimonial statement—Evans’s confession to the postal inspector was received during interrogation, which he could reasonably expect would be used prosecutorially. 391 U.S. at 124. Although Bruton did not contemplate a distinction between testimonial and nontestimonial statements, if decided today it would meet the threshold question and further confrontation analysis would follow. Thus, limiting the Bruton doctrine to testimonial hearsay is the natural conclusion under Crawford.

¶23 The majority of federal appellate courts that have considered this issue have come to the same conclusion. They have held that under Crawford and Davis, the confrontation clause applies only to situations that involve out-of-court statements made by nontestifying codefen-dants when such statements are testimonial. See, e.g., United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) (“It is . . . necessary to view Bruton through the lens of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause ‘has no application.’ ” (quoting Whorton, 549 U.S. at 420)); United States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012) (“[Because Bruton is no more than a by-product of the Confrontation Clause, the Court’s holdings in Davis and Crawford likewise limit Bruton to testimonial statements.”); United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013) (“Bruton is simply irrelevant in the context of nontestimonial statements.”); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (“Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements.”); United States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008) (“It is now clear that the Confrontation Clause does not apply to non-testimonial statements by an out-of-court declarant.”); United States v. Clark, 717 F.3d 790, 816 (10th Cir. 2013) (concluding that because a coconspirator’s out-of-court statements were nontestimonial, “they [fell] outside the protective ambit of the Confrontation Clause and, by extension, Bruton”); Thomas v. United States, 978 A.2d 1211, 1224-25 (D.C. 2009) (concluding that where “a defendant’s extrajudicial statement inculpating a co-defendant is not testimonial, Bruton does not apply, because admission ... would not infringe the co-defendant’s Sixth Amendment rights”).

¶24 We join these courts and hold that when an out-of-court statement made by a nontestifying codefendant is nontestimonial, Bruton is inapplicable because such statements are outside the scope of the confrontation clause.

D. Nollette’s Statement Is Nontestimonial and Therefore outside the Scope of the Confrontation Clause

¶25 Applying this harmonized rule in this case, we first determine whether the out-of-court statements were testimonial. If they were, we proceed to a confrontation clause analysis. If not, the confrontation clause does not apply. As the United States Supreme Court has explained, a statement is “testimonial” if it is the functional equivalent of in-court testimony. See Crawford, 541 U.S. at 51-52. A testimonial statement is designed to establish or prove some past fact, or is essentially a weaker substitute for live testimony at trial. Davis, 547 U.S. at 827-28. Where the statement is effectively a substitute for live trial testimony, the statement is testimonial. Id. at 828. Crawford listed some examples such as “ ‘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.’ ” 541 U.S. at 51. “Statements taken by police officers in the course of interrogations,” which was the case in Crawford, are also testimonial. Id. at 52. However, a “casual remark to an acquaintance” is not testimonial. Id. at 51.

¶26 Here, Nollette’s statements to Solem were nontes-timonial. Nollette’s statements were that he and a friend had discussed burgling Lancer Lanes and that his friend had called him while burgling Lancer Lanes. The statements were not designed to establish or prove some past fact, nor were they a weaker substitute for live testimony at trial; rather, Nollette was casually confiding in a friend. Nollette would not have reasonably expected that statement to his friend to be used prosecutorially. Those statements were merely “casual remark [s] to an acquaintance.” Id. Therefore, the statements were nontestimonial. Since they were nontestimonial, they were outside the scope of the confrontation clause. Therefore, Wilcoxon suffered no confrontation violation.³

2. Even If Wilcoxon’s Confrontation Right Had Been Violated, It Would Have Been Harmless Error

¶27 Although we conclude that Wilcoxon’s confrontation right was not violated and no error occurred by admitting Nollette’s statement, we note that even if his right had been violated, the outcome would remain the same because in the context of all of the evidence presented at trial, the admitted statements did not contribute to Wilcoxon’s conviction.

¶28 Confrontation clause errors are subject to a harmless-error analysis as laid out in Chapman v. California, 386 U.S. 18, 22-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Under Chapman, before a consti tutional error can be harmless, the State must show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24.

Whether such an error is harmless in a particular case depends upon a host of factors, . . . including] the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Van Arsdall, 475 U.S. at 684.

¶29 Here, Nollette’s statements were unimportant to the State’s case when compared with Wilcoxon’s own admissions. Wilcoxon bragged to his friend Eric Bomar that he burgled Lancer Lanes, and Bomar testified as to Wilcoxon’s description of the burglary at trial. This description was corroborated by the surveillance video of the burglary.

¶30 The nontestimonial statements at issue merely corroborated the cell phone calls that Wilcoxon made to Nollette during the time of the burglary. However, these calls were already circumstantially corroborated by the surveillance video and the cell phone records. Therefore, the statements were unimportant to the State’s overall case. It is clear from the record that the admission of Nollette’s statements did not alter the outcome of the State’s case against Wilcoxon. Therefore, any feared error was harmless beyond a reasonable doubt.

CONCLUSION

¶31 In accordance with the United States Supreme Court’s holdings in Crawford and Davis, we conclude that the confrontation clause is limited to testimonial statements, even in the context of nontestifying codefendants. Since the statements in this case were not testimonial, the confrontation clause did not apply and thus was not violated. Consequently, we affirm Wilcoxon’s conviction.

Johnson and Yu, JJ., concur.

Footnotes

1

The State charged Nollette with second degree burglary, first degree theft, and second degree conspiracy to commit burglary. See Clerk’s Papers at 31, 54.

2

Since Wilcoxon did not renew his motion to sever during trial and CrR 4.4(a)(2) provides that “[s]everance is waived by failure to renew the motion,” Wilcoxon does not rely on his right to severance pursuant to CrR 4.4 on this appeal.

3

Wilcoxon also argues that the trial court committed reversible error by failing to provide the jury a limiting instruction regarding the out-of-court statement sua sponte. Wilcoxon contends that such an instruction was necessary to avoid harming his confrontation right. However, because we hold that the statement was outside the scope of the confrontation clause, no limiting instruction was necessary.