Opinion
No. 51912-3-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-04251-0. Judgment or order under review. Date filed: 02/24/2003. Judge signing: Hon. Cheryl B Carey.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Andrian Da Sherman Doc#828293 (Appearing Pro Se), Washington State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362-1065.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave, Seattle, WA 98104-2390.
Former trial testimony of an unavailable witness is admissible at a subsequent trial only if the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by cross-examination. Under the facts of this case, Andrian Sherman had both similar motive and the opportunity to develop the testimony of Jerome Barber, who testified at the first trial and was unavailable for the second. Although this court reversed Sherman's prior conviction because he did not validly waive the assistance of counsel in his first trial, that does not obviate our conclusion that the admission of Barber's testimony fully complied with the provisions of the Confrontation Clause of the federal constitution. Thus, the trial court did not abuse its discretion in admitting the testimony. We affirm.
Crawford v. Washington, U.S., 124, S.Ct. 1354, L. Ed.3d (2004); State v. DeSantiago, 149 Wn.2d 402, 411, 68 P.3d 1065 (2003).
Sherman was at the Blue Moon Tavern in Seattle attempting to purchase marijuana. Steven Schmidt, the victim, told Sherman that he could purchase some for him and left the tavern with Sherman's twenty dollars. Schmidt had Sherman hold his backpack as collateral for the twenty dollars. Some time later, Schmidt returned to the Blue Moon Tavern. When Sherman confronted him, Schmidt denied he had Sherman's money or any marijuana. After further disagreement and a scuffle, Sherman took Schmidt's backpack and left. Schmidt and other Blue Moon Tavern patrons followed Sherman outside where Schmidt confronted him about the backpack. They fought and Sherman stabbed Schmidt and fled the scene. He was apprehended, and the State charged him with first-degree robbery and first-degree assault. During his first trial, Sherman represented himself. He claimed he acted in self-defense. The jury convicted him of first-degree assault. The jury could not reach a verdict on the robbery charge, which was subsequently dropped. This court reversed Sherman's conviction on appeal because the trial judge failed to advise him of the maximum possible penalty, which rendered his waiver of counsel unknowing.
During the second trial, the State moved to introduce the eyewitness testimony of Barber from the first trial under ER 804(b)(1). Barber is a transient and the State was unable to locate him for the second trial. The trial court allowed the State to read to the jury the testimony of this witness from the first trial. Sherman again claimed self-defense. The jury convicted Sherman of first degree assault with a deadly weapon enhancement.
Sherman appeals.
CONFRONTATION
Sherman contends that his right to confrontation was violated by the admission, under ER 804(b)(1), of Barber's testimony from his first trial. We disagree.
The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment, provides `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' The Clause envisions:
Pointer v. Texas, 380 U.S. 400, 403-05, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Davis v. Alaska, 415 U.S. 308, 315, 94 So. Ct. 1105, 39 L.Ed.2d 347 (1974).
a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (citation omitted).
Testimonial statements of witnesses who are absent from trial can be admitted only if the State shows that the declarant is unavailable at the time of trial and the defendant had a prior opportunity to cross-examine. The confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is necessarily effective in whatever way, and to whatever extent, the defense might wish.
Crawford, 124 S.Ct. at 1369 (overruling the `indicia of reliability' test in Roberts, 448 U.S. at 63-64).
State v. Jenkins, 53 Wn. App. 228, 235, 766 P.2d 499, review denied, 112 Wn.2d 1016 (1989) (citing U.S. v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988)).
Under ER 804(b)(1), the former testimony of an unavailable witness is not excludable as hearsay if the other party had a full opportunity to cross-examine the witness at the time the witness testified. We review a trial court's decision on the admissibility of evidence for abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.
ER 804(b) states:
The following [is] not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, . . . if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Sherman does not contend that he did not have similar motive to develop the testimony. Nor does he dispute the fact that Barber was unavailable at the second trial. He argues only that he did not have the opportunity to develop Barber's testimony by cross-examination because he was denied the assistance of counsel during the first trial. But our inquiry here is whether Sherman had a sufficient opportunity to cross-examine Barber at the first trial such that his right to confrontation was not violated by the admission of Barber's testimony at the second trial.
Mancusi v. Stubbs is instructive. There, the United States Supreme Court held that there was no constitutional error in permitting prior-recorded testimony from the first trial to be read to the jury at the second trial despite the fact that an appellate court concluded that counsel in the first trial was ineffective. The Court reasoned that the introduction of former testimony was proper because there was adequate opportunity to cross-examine the witness at the first trial, there was no evidence that the cross-examination in the first trial was constitutionally deficient, and there was no indication that counsel in the second trial would have touched on any new material line of questioning not addressed at the first trial. People v. Jones, a California case, is also on point. In Jones, the court wrongfully denied the defendant his right to represent himself at his first trial. At the second trial, the State sought to introduce the testimony of witnesses who were by then unavailable. Jones argued that this violated his right to confrontation because the wrongful denial of his right to defend himself in the first trial robbed him of his ability to cross-examine the witnesses effectively. The court disagreed and, relying in part on Mancusi, held that `to demonstrate that admission of the former testimony violated either the Evidence Code or the confrontation clause, it is not enough to show some violation of some constitutional right at the first trial; it must be shown the violation actually interfered with an effective cross-examination.'
408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).
Mancusi, 408 U.S. at 216.
Mancusi, 408 U.S. at 215-16.
66 Cal.App.4th 760, 78 Cal.Rptr.2d 265 (1998), cert. denied, 526 U.S. 1093, 119 S.Ct. 1509, 143 L.Ed.2d 661 (1999).
Jones, 78 Cal.Rptr.2d at 270.
These cases guide our analysis here. Sherman fails completely to argue why the cross-examination from the first trial is constitutionally deficient. And we see no such deficiency. He also fails to indicate how the cross-examination at the second trial would have addressed any new material line of questioning not already addressed in the first trial. Under Mancusi and Jones, these failures are fatal to Sherman's claim.
Mancusi, 408 U.S. at 215 (`No one defense counsel will ever develop precisely the same lines of inquiry or frame his questions in exactly the words of another, but from this record counsel at the retrial did not in his proffer show any new and significantly material line of cross-examination that was not at least touched upon in the first trial.').
Sherman's cross-examination of Barber during the first trial was thorough and fully addressed Barber's direct testimony. Barber testified that he saw Schmidt at the Blue Moon on the day of the incident and that he was tipsy, but not drunk. He witnessed Sherman and Schmidt in an argument over money in the Blue Moon, he heard someone say, `he's got my bag' or `he's got your bag,' and then saw everyone run out of the Blue Moon where he saw Sherman and Schmidt `kind of struggling with a backpack.' Barber heard Schmidt say `he's got a knife' and did not see the knife go into Schmidt's back, but saw it as it came out.
During cross-examination, Sherman used Barber's prior statement to the police to point out inconsistencies in his testimony before the court. Sherman questioned Barber about his inconsistent testimony concerning what time the incident took place, and the distance from Barber to Schmidt and Sherman as they fought. Sherman also questioned whether Barber had been drinking the day of the incident. Sherman elicited testimony from Barber that the force used during the stabbing was `like trying to stick the knife to the hilt.' Barber concluded, `I can't tell if that was the person's full strength or not, whether they were trying to save themselves or trying to hurt the other person, kill them. I don't know.' Under cross-examination, Barber admitted that he did not see the whole scene outside but that by the time he got there, Sherman and Schmidt were already struggling over the bag.
On re-cross, Sherman confronted Barber about inconsistent statements concerning the manner in which Sherman stabbed Schmidt. In a prior statement, Barber stated that Sherman reached over Schmidt's shoulder to stab him. In his testimony before the court, Barber testified that Schmidt was turned away when Sherman stabbed him in the back.
Nevertheless, Sherman relies on Pointer to support his contention that the trial court denied him his right of confrontation. Pointer was charged with robbery and at a preliminary hearing, without the benefit of appointed counsel, Pointer's victim testified that Pointer committed the robbery. Pointer did not attempt to cross-examine the victim. Prior to the full trial, the victim moved to California and the State offered the victim's testimony from the preliminary hearing into evidence. The United States Supreme Court held that Pointer's constitutional right to confrontation was violated because the testimony from the preliminary hearing was not subject to cross-examination by Pointer or his counsel.
Pointer, 380 U.S. at 407.
Pointer is distinguishable and does not compel the result Sherman seeks here. In Pointer, there was a preliminary hearing with no cross-examination of the accuser and no benefit of appointed counsel. Pointer is not helpful in resolving the question presented here when extensive cross-examination of the now unavailable witness did occur.
There is no bright line rule to determine whether under circumstances like those before us a violation of the Confrontation Clause may occur and thus support the view that admission of prior testimony in a second trial is an abuse of discretion. But under the circumstances of this case there was no abuse of discretion by the trial court in admitting the former testimony of the unavailable witness.
We conclude that Sherman was not denied his right of confrontation. He had sufficient opportunity and motive to cross-examine Barber at the first trial, during which he `test[ed] the recollection and sift[ed] the conscience of the witness.'
Roberts, 448 U.S. at 63-64.
We affirm the judgment and sentence.
APPELWICK and AGID, JJ., concur.