Opinion
No. 64909-4-I.
Filed: September 19, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Whatcom County, No. 09-1-01245-1, Steven J. Mura, J., entered January 28, 2010.
Reversed by unpublished opinion per Leach, A.C.J., concurred in by Grosse and Appelwick, JJ.
Under ER 801(d)(1)(iii), out-of-court statements identifying a person are not hearsay if the declarant testifies at trial and is subject to cross-examination. In this prosecution for violation of a no-contact order, the trial court admitted out-of-court statements identifying the declarant as the person protected by the order. Because the declarant did not testify, the trial court abused its discretion in admitting her statements under ER 801(d)(1)(iii). And because admission of the statements was not harmless error, we reverse Keith Rawlins's conviction for felony violation of a court order.
FACTS
On October 16, 2009, Lummi police and Whatcom County sheriff's deputies responded to a landlord-tenant dispute on the Lummi Reservation. Based on information gathered at the scene, the State charged Rawlins with felony violation of an order prohibiting him from being within 1,000 feet of Jan Sellers.
At trial, Lummi Police Officer Faustino Perez and Deputy Sheriff Mark Jilk testified that they asked a number of people at the scene to identify themselves. One of them was identified as Keith Rawlins. Another was a woman who identified herself as "Jan Sellers." Because the woman did not testify at trial, the defense objected to admission of her out-of-court statements on the grounds that they were hearsay and violated Rawlins's right to confrontation. Defense counsel specifically argued that the statements were not admissible under ER 801(d)(1)(iii) unless the woman testified and was subject to cross-examination. The trial court disagreed, admitted the statements under the rule, and granted the defense a continuing objection to testimony concerning the statements.
The officers then testified that in addition to saying she was "Jan Sellers," the woman referred to herself as "Tina" and "Jantina." The woman also said her birth date was February 25, 1963. Police later verified that date.
On cross-examination, Deputy Jilk conceded he did not ask the woman for a driver's license or other identification and had no physical description of Jan Sellers to consult in confirming the woman's identity. He also conceded that individuals sometimes give false information when asked to identify themselves.
The officers eventually received information indicating that a valid no-contact order prohibited Rawlins from coming within 1,000 feet of "Jan Sellers." When they told Rawlins and the woman claiming to be Sellers that they were arresting Rawlins for violating the order, neither of them claimed the officers were making a mistake. The officers testified that the woman was emotional, that she asked "if she could give her husband a kiss before he was taken to jail," and that Rawlins "asked if his wife could take custody of his backpack and his other belongings." The two embraced, and the woman collected Rawlins's belongings. Evidence admitted at trial showed that Rawlins had referred to Sellers as his "wife" in a guilty plea on another matter roughly nine months before his arrest on the current offense.
In closing arguments, both counsel focused on the sufficiency of the evidence identifying the woman at the scene as Jan Sellers. Defense counsel noted that the jury heard no physical description of Jan Sellers, had not seen her photo or signature, and had no official identification evidence corroborating the woman's self-identification. Counsel also noted that police had arrested another person on an outstanding warrant before contacting the woman claiming to be Sellers and suggested that the woman could have lied about her identity to avoid a similar fate. In rebuttal, the prosecutor argued in part,
We know who Ms. Sellers is, because she told the officer who she was, because the Defendant's actions told the officer who she was, and because they're interacting together . . . and because the documents that track their life over this period of time tell us who she was.
(Emphasis added.)
The jury convicted Rawlins as charged. He appeals.
DECISION
Rawlins contends the trial court abused its discretion in admitting the statements of the woman who claimed to be Jan Sellers. He argues, as he did below, that the statements were inadmissible hearsay and that their admission violated his right to confrontation. We need not reach the confrontation issue because we conclude the statements were erroneously admitted for the truth of the matter asserted and that the error was not harmless.
State v. Hochhalter, 131 Wn. App. 506, 516 n. 28, 128 P.3d 104 (2006) (declining to reach confrontation issue where reversal was required on other grounds); City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 (1995) (appellate court should decline to reach constitutional issues when they are not necessary to resolve the case). Although we do not reach the confrontation issue, we note that the four-part test for determining whether hearsay statements are testimonial — that is, (1) whether the speaker is speaking of events as they are actually occurring or instead describing past events, (2) whether a reasonable listener would recognize that the speaker is facing an ongoing emergency, (3) whether the questions and answers show that the statements were necessary to resolve an emergency or to learn what happened in the past, and (4) the level of formality of the interrogation — arguably favors a conclusion that the statements in this case were testimonial and that their admission violated Rawlins's right to confrontation. See State v. Koslowski, 166 Wn.2d 409, 418-19, 421, 209 P.3d 479 (2009) (where initial statements taken at scene were neither a cry for help nor information enabling police to end a threatening situation, statements were testimonial). Such error is subject to the more stringent constitutional harmless error test — that is, the State must demonstrate that the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt beyond a reasonable doubt. State v. Watt, 160 Wn.2d 626, 635-41, 160 P.3d 640 (2007).
We review decisions admitting or excluding evidence for abuse of discretion. In this case, the trial court concluded the challenged statements were admissible under ER 801(d)(1)(iii). That rule provides that a statement is not hearsay if "[t]he declarant testifies at the trial . . . and is subject to cross examination concerning the statement, and the statement is . . . (iii) one of identification of a person made after perceiving the person." The parties agree, and we concur, that the statements were not admissible under this rule because the declarant did not testify at trial.
State v. Athan, 160 Wn.2d 354, 382, 158 P.3d 27 (2007).
The State argues, however, that the trial court's decision may be sustained on any ground supported by the record and that the statements were admissible to show why the officers investigated further. But even assuming some of the statements were admissible for this limited purpose, they were still not admissible for the truth of the matter asserted — that is, that the woman at the scene was Jan Sellers. Because the trial court allowed the jury to consider the statements for the truth of the matter asserted, it erred.
State v. Kennealy, 151 Wn. App. 861, 879, 214 P.3d 200 (2009) ("We may uphold a trial court's evidentiary ruling on the grounds the trial court used or on other proper grounds that the record supports."), review denied, 168 Wn.2d 1012, 227 P.3d 852 (2010).
State v. Iverson, 126 Wn. App. 329, 336-37, 108 P.3d 799 (2005) (self-identification evidence was admissible because it was not offered for truth of the matter asserted but instead to explain why officers investigated further).
Iverson, 126 Wn. App. at 336-37.
Contrary to the State's assertions, the court's error was not harmless. Evidentiary error is harmless only if there is no reasonable probability the error affected the outcome of the trial. Here, the challenged statements were the only evidence directly identifying the woman at the scene as Jan Sellers; the remaining evidence was circumstantial. Considering the evidence and arguments presented below, we conclude there is a reasonable probability that the outcome would have been different had the jury been told it could not consider the woman's hearsay statements, including her self-identifiication, date of birth, and reference to her "husband," for the truth of the matter asserted.
State v. Templeton, 148 Wn.2d 193, 220, 59 P.3d 632 (2002).
The prosecutor told the court, "This is a circumstantial case in terms of identification."
Cf. State v. McDaniel, 155 Wn. App. 829, 852, 230 P.3d 245 (2010) (erroneous admission of identification evidence that "significantly strengthened the State's case" was not harmless beyond a reasonable doubt), review denied, 169 Wn.2d 1027, 241 P.3d 413 (2010).
Reversed.
WE CONCUR: