Opinion
No. 56652-1-I.
January 8, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-02327-5, James H. Allendoerfer, J., entered July 27, 2005.
Eric J. Nielsen, Nielsen Broman Koch PLLC, Counsel for Appellant(s).
Charles Franklin Blackman, Counsel for Respondent(s).
Affirmed by unpublished opinion per Agid, J., concurred in by Coleman and Baker, JJ.
Erik Shreffner challenges his conviction for first degree manslaughter in the death of Russell Walden. He asserts the trial court impaired his Sixth Amendment right to compel the testimony of Cory Decker, a witness who made statements exculpating Shreffner. Decker was charged with rendering criminal assistance in Walden's killing when he told prosecutors during plea negotiations that he saw someone other than Shreffner assault Walden. Shreffner sought to compel this testimony at his trial. Decker and the State objected, and the trial court denied his motion.
The power to grant immunity is vested in the State, and criminal defendants cannot compel a trial court to grant immunity to defense witnesses absent prosecutorial misconduct. The trial court properly denied Shreffner's motion because there was no prosecutorial misconduct before or at trial, Decker's testimony would have been cumulative, and Decker was entitled to exercise his Fifth Amendment privilege against self-incrimination. Further, although statements made during plea negotiations are inadmissible under ER 410, the rule does not automatically confer immunity on criminal defendants who make statements during plea negotiations. We affirm.
FACTS
In August 2004, Erik Shreffner was with a group of friends at Turner's, a downtown Everett bar. Russell Walden and a group of his friends were at the same bar. Both groups independently moved to another bar, Petosa's, located two and one-half blocks south on Broadway. Shreffner, his friends, and Walden were all drunk.
At 1:41 a.m., police arrived to break up a fight between Walden's companion and an unidentified person. Meanwhile, Walden and another friend, Robert Gobat, left the restaurant and walked north on Broadway to a gas station to buy cigarettes. They encountered Shreffner and his friend, Michael Kyzar, at a Union 76 Gas Station near Petosa's. According to Gobat, Shreffner yelled something, lunged at him, and fell on the ground. Shreffner sustained a cut above his eye. Gobat recognized Shreffner by his distinctively bleached blond hair. Gobat and Kyzar then fought, and police broke up the fight around 1:52 a.m. At that time, the police arrested Walden for an outstanding misdemeanor warrant but released him shortly afterwards because the warrant was an error. After he was released, Walden walked north by himself along Broadway towards Turner's. His friends were no longer in the area.
At 2:17 a.m., police saw Shreffner and Walden arguing at the corner of Hewitt and Broadway, across the street from Turner's. Decker and Kyzar were standing nearby. Shreffner was yelling "who did it?" and Walden was shaking his head. When Officer John DeRousse pulled alongside them, Shreffner said he had been jumped and Walden knew who had done it. Officer DeRousse noticed that Shreffner had an injury to his eye and a scratch on his nose. Walden waved to the officer indicating that he was fine. Officer DeRousse left the scene at 2:19 a.m.
Three minutes later, Office DeRousse learned there was a "man down" at the intersection of Hewitt and Broadway and arrived on the scene at 2:26 a.m. He found Walden lying face down in a pool of blood. He was unconscious and appeared to have difficulty breathing. Eyewitness Ronald Craig told officers he saw Shreffner, who he recognized from Petosa's, punching and kicking Walden in the upper body and head while Walden was lying on the ground. He also heard Shreffner's friends calling "Erik, let's go" from across the street. Craig noticed the attacker had spiked blond hair.
A second eye-witness, Michael Beckwith, saw four men in a close group at the intersection of Hewitt and Broadway. He told police that one of the men, later identified as Walden, took two rapid stumbling steps away from the group and fell face down without moving. He then saw three men cross the street and one man, with bright blond hair, run back and stomp on Walden's head and shoulder. After the same attacker crossed the street, he returned to Walden and kicked him in the head and shoulders again while he lay on the ground. Beckwith heard men call "Erik, come on, and let's go" and saw Shreffner join his friends. While both witnesses were filling out statements at the scene, Craig saw Shreffner and pointed him out to police. Both witnesses identified Shreffner as the assailant. At the scene, Shreffner told police Walden had attacked him and injured his face. Officer DeRousse reminded Shreffner that he had many of the injuries earlier in the evening. Shreffner then told Officer DeRousse he had been hit by an unknown person, Walden had simply fallen down, and that his friends, Decker and Kyzar, had not seen anything.
The attending neurosurgeon at Providence Hospital testified that Walden sustained severe and irreversible brain injury from the beating that left him without brain-stem reflexes. He died five days after the assault, shortly after life support systems were removed. The medical examiner ruled the death a homicide. Walden sustained multiple blunt force impacts which caused a skull fracture, brain swelling and oxygen deprivation. Shreffner was charged with one count of second degree felony murder, predicated on second degree assault, and one count of first degree manslaughter.
DNA (deoxyribonucleic acid) analysis failed to find Walden's blood on Shreffner's or his companions' clothes or shoes, or any of Shreffner or his companions' blood on Walden's shirt.
Before trial, Decker gave three statements to police. On the day of the killing, he gave a one page handwritten statement that merely said he saw a man on the ground when he was walking across Hewitt Avenue. Two weeks later, in a tape-recorded statement, Decker told police he saw Kyzar, Shreffner and Walden standing in a group and that he pushed Kyzar away from Walden. He said Walden somehow fell backwards into the street on his hands and knees, and he heard Shreffner ask Walden "`where are your friends at now.'" Shreffner also fell onto the street. Shreffner got up, but Walden did not. Decker told police he did not see Kyzar or Shreffner strike Walden.
Decker gave his third statement shortly before Shreffner's trial. He made the statement under an ER 410 agreement, but the parties did not reach a plea agreement.He said Shreffner and Walden were not arguing at the Union 76 Gas Station but that Shreffner came to help Kyzar who was planning to fight someone else there. Decker tried to pull Kyzar away because Kyzar was hostile and saw Walden fall and stand up again in a group with Kyzar and Shreffner. He heard Shreffner yell "Where are your friends at now?" Decker said Kyzar jumped up, hit Walden on the head, Walden's head snapped forward and hit Shreffner's head, knocking both men down. He said Shreffner did not kick or hit Walden or any other person, but Kyzar stomped on Walden's head. Decker admitted his earlier statements were untruthful. He took a polygraph test given after he made his third statement and failed it. The State gave Decker's third statement to Shreffner's counsel. Neither Kyzar nor Decker was offered immunity or called as a State's witnesses at Shreffner's trial.
Shreffner tried to call Decker as a witness, but Decker asserted his Fifth Amendment privilege. Shreffner asked the court to grant Decker immunity over Decker's and the State's objections. At the hearing on Shreffner's motion to compel Decker's testimony, Decker argued the court had no authority to order immunity and granting it would impair his defense at his own trial. He also argued that his statements were made in good-faith reliance that they would be inadmissible under ER 410. Relying on State v. Carlisle, the State argued the court had no authority to compel a grant of use immunity under these circumstances. Shreffner argued his constitutional right to a fair trial would be impaired if he could not compel Decker's testimony. The trial court denied the motion. It ruled that while Decker's testimony would be exculpatory, both use and derivative use immunity would be necessary to protect Decker's Fifth Amendment rights. It concluded that such a broad grant of immunity would harm the State's case against two other suspects in Walden's murder.
73 Wn. App. 678, 871 P.2d 174 (1994).
At trial, Jessica Smith, Shreffner's then-girlfriend, testified she saw Kyzar run up behind Walden and hit him. Walden fell to the ground and Kyzar began kicking him and rolling him over. She saw Decker trying to keep Kyzar away from Walden, someone knocking Walden to the ground, and Kyzar swinging his arms in the air. She said she did not see Shreffner attack anyone on the night of Walden's death. Rather she saw Kyzar kick Walden, who was lying on the ground, while Shreffner was standing in the middle of the road. The court told the jury that Kyzar and Decker had been charged in separate proceedings, Kyzar with second degree murder and Decker with rendering criminal assistance.
The jury found Shreffner guilty of fourth degree assault and first degree manslaughter. He was sentenced to 96 months.
Fourth degree assault was given as a lesser degree crime for count I.
DISCUSSION
Motion to Compel Immunity
Shreffner argues the trial court violated his Sixth Amendment right to compulsory process and impaired his ability to present a defense by failing to grant Decker immunity and allowing him to assert his Fifth Amendment privilege. He contends that Decker's testimony was exculpatory, and the court failed to exercise its inherent authority to protect his right to a fair trial. He also argues immunity would not have weakened the State's case against Decker because it could not use Decker's statements under ER 410 anyway.
The State argues Shreffner lacked the power to compel immunity for a defense witness, and a court-initiated grant of immunity would have been improper in this case because there was no prosecutorial misconduct. It also contends a grant of immunity would have harmed its case against Decker and impaired Decker's right to assert his Fifth Amendment privilege.
Criminal defendants have a constitutional right to the compulsory attendance of material witnesses. It is a fundamental element of due process and the right to present a defense. But the right to present defense witnesses is not absolute. A defendant has no power to compel the court to grant witness immunity. While courts in other jurisdictions have recognized that a court's refusal to grant a defense request to immunize witnesses may violate a defendant's right to due process and a fair trial, these cases required a showing of extreme prosecutorial misconduct or vital necessity in obtaining exculpatory, noncumulative testimony.
U.S. Const. amend. VI; Wash. Const. art. I § 22; State v. Smith, 101 Wn.2d 36, 41, 677 P.2d 100 (1984); State v. Burri, 87 Wn.2d 175, 180-81, 550 P.2d 507 (1976) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 1019 (1967)).
State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996).
State v. Fish, 99 Wn. App. 86, 93, 992 P.2d 505 (1999) ("The decision to grant immunity is vested with the prosecution, and a defendant has no right to demand immunity for a defense witness in order to obtain exculpatory testimony unless the court finds the prosecutor's misconduct intimidated the witness to the point the witness declined to testify."), review denied, 140 Wn.2d 1019 (2000).
State v. Mannhalt, 33 Wn. App. 696, 703, 658 P.2d 15, review denied, 100 Wn.2d 1024 (1983).
The court did not violate Shreffner's Sixth Amendment right to compel witnesses. Generally, the discretion to grant immunity is vested with the State. A court may have limited discretion to grant immunity to a defense witness when, for example, a prosecutor intimidates a witness such that a witness declines to testify. But Shreffner does not claim prosecutorial misconduct. Rather, he asks us to adopt the "effective defense theory" outlined in Government of Virgin Islands v. Smith, which held that a court has inherent power to grant immunity when a potential defense witness can offer clearly exculpatory testimony. Shreffner acknowledges that this theory has been rejected by most courts. While it may be persuasive under other circumstances, the facts presented here do not require us to consider the theory, particularly because the testimony Shreffner sought to compel was presented by another witness for the defense.
See State v. Fish, 99 Wn. App. at 93.
State v. Carlisle, 73 Wn. App. 678, 681, 871 P.2d 174 (1994).
615 F.2d 964, 966 (3d Cir. 1980) ("[W]here government actions denying use immunity to defense witnesses were undertaken with `deliberate intention of distorting the judicial fact finding process,' the court has remedial power to order acquittal unless on retrial the government grants statutory immunity . . . [and] in certain cases a court may have `inherent authority to effectuate the defendant's compulsory process right by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense.'") (citation and emphasis omitted) (quoting United States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979)).
Shreffner also relies on State v. Decker to argue that trial courts have inherent authority to grant use or derivative use immunity. In Decker, the trial court issued a protective order that immunized communications between an adjudicated juvenile and a presentence evaluator for the juvenile's statements about unadjudicated matters. Decker does not apply here because the Decker court held that CrR 6.14 did not apply to the protective order at issue there. Criminal Rule 6.14 allows the court to grant immunity on motion of the prosecuting attorney, but does not permit the court to do so sua sponte.
68 Wn. App. 246, 252, 842 P.2d 500 (1992), review denied, 121 Wn.2d 1016 (1993).
Decker, 68 Wn. App. at 252-53.
Id. at 252.
CrR 6.14 provides:
In any case the court on motion of the prosecuting attorney may order that a witness shall not be excused from giving testimony or producing any papers, documents or things, on the ground that such testimony may tend to incriminate or subject the witness to a penalty or forfeiture; but the witness shall not be prosecuted or subjected to criminal penalty or forfeiture for or on account of any transaction, matter, or fact concerning which the witness has been ordered to testify pursuant to this rule. The witness may nevertheless be prosecuted for failing to comply with the order to answer, or for perjury or the giving of false evidence.
Further, we expressly declined to extend Decker in State v. Diaz-Cardona, holding that Decker was a "narrow exception to the normal rule that granting immunity is a prosecutorial executive function." No statute or court rule empowers the court to grant immunity under the circumstances present in Shreffner's case. The cases which recognize the court's inherent authority to grant immunity are limited to circumstances in which prosecutorial misconduct intimidated a potential witness into silence. There was no misconduct here and, as we discussed above, Decker's statement would have been cumulative of Smith's testimony that Kyzar was Walden's assailant. It was not vital to Shreffner's defense.
123 Wn. App. 477, 488-89, 98 P.3d 136 (2004).
State v. Diaz-Cardona, 123 Wn. App. 477, 488-89, 98 P.3d 136 (2004).
See Fish, 99 Wn. App. at 93.
ER 410
Shreffner asserts we should interpret ER 410 as conferring use or derivative use immunity in the plea bargaining context. He cites a case interpreting a similarly-worded rule from the Military Code of Evidence. But nothing in Washington case law or the rule itself suggests that it confers immunity. Given the potential problems such an interpretation could create in the plea bargaining process, we decline to read it that way.
ER 410 provides:
Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connections with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under other and in the presence of counsel. This rule does not govern the admissibility of evidence of a deferred sentence imposed under RCW 3.66.067 or RCW 9.95.200-.240.
See United States v. Ankeny, 30 M.J. 10, 14-15 (C.M.A. 1990).
Decker was charged with a crime when he entered into the ER 410 agreement, and he was entitled to invoke his Fifth Amendment privilege if his testimony furnished a link in the chain of evidence needed to prosecute him. The court was required to protect both men's due process rights. Decker's testimony was not vital to Shreffner's defense, and the trial court struck the proper balance when it denied Shreffner's motion and protected Decker's Fifth Amendment rights.
Id. at 92-93.
We affirm.
William Baker, and H Joseph Coleman, concur.
WE CONCUR: