State v. Hacheney , 160 Wash. 2d 503 ( 2007 )

¶1

Bkidge, J.

Dawn Hacheney’s body was found badly

burned after a fire destroyed part of the Hacheney home. The State eventually charged her husband, Nicholas Hacheney, with her murder. At trial, the State’s experts presented evidence that Dawn was suffocated to death before the fire began. The jury found Nicholas Hacheney guilty of premeditated first degree murder. By special verdict, the jury also found that he committed the murder “in the course of” first degree arson, an aggravating factor subjecting him to a life sentence without the possibility of release. Clerk’s Papers (CP) at 1362; RCW 10.95.020(ll)(e). Hacheney now argues that the jury was improperly instructed on the aggravating factor and that there was insufficient evidence to show that he committed the murder in the course of arson because Dawn was dead before the fire was set. This court has held that in order for a death to have occurred in the course of a felony, there must be a causal connection such that the death was a probable consequence of that felony. State v. Golladay, 78 Wn.2d 121, 131, 470 P.2d 191 (1970), overruled on other grounds by State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976); State v. Diebold, 152 Wash. 68, 72, 277 P. 394 (1929). In this case, the murder was not a probable consequence of the arson. We conclude that, as a matter of law, Hacheney did not murder his wife in the course of arson.

¶2 Hacheney also argues that the trial judge violated his Sixth Amendment right to confrontation by allowing the jury to view videotaped depositions of three witnesses who were out of the country at the time of trial. We conclude that Hacheney did not suffer a confrontation clause violation because those witnesses were unavailable for confrontation clause purposes. We affirm in part, reverse in part, and remand for resentencing absent the aggravating factor.

I

Facts and Procedural History

¶3 Nicholas Hacheney was one of several pastors at a large church in Bremerton, Washington. On December 25, 1997, Nicholas and Dawn Hacheney attended a Christmas party, and they returned home late in the evening. Dawn’s mother reported that Dawn had not been feeling well that day and she was taking Benadryl.

¶4 Early the next morning, Nicholas Hacheney left to meet friends for a hunting trip. Soon after, the Hacheney s’ neighbors noticed that a fire had erupted in the Hacheney home. Fire fighters responded and put out the blaze, which had destroyed the bedroom. The fire fighters discovered Dawn’s badly burned body on the bed. They also discovered several propane canisters and an electric space heater in the bedroom.

¶5 When interviewed by investigators, Nicholas Hacheney reported that he and his wife had opened Christmas presents late on Christmas night, and they had left wrapping paper in front of the heater. He said that he had turned the space heater on before he left that morning. He reported that Dawn had gotten up in the middle of the night to take Benadryl and suggested that her sensitivity to the drug might have explained her failure to escape the fire. He also explained that the case of propane had been a Christmas present that he opened the night before, and he had not yet removed it from the bedroom.

¶6 The autopsy, completed by a forensic pathologist, revealed that Dawn did not have soot in her trachea or lungs. Tests submitted to the state toxicology lab and other labs revealed that Dawn had no carbon monoxide or cyanide in her blood, all of which suggested that she did not inhale after the fire began. She did have an elevated level of Benadryl in her blood. The autopsy report stated that Dawn suffered from pulmonary edema or fluid in her lungs, which can occur as a result of asphyxiation, suffocation, or a long list of other causes. The forensic pathologist concluded that Dawn was asphyxiated when her larynx reflexively closed as the result of a flash fire. The pathologist based his flash fire conclusion in part on the fact that there was no suspicion of foul play at the time. The original police and insurance investigations concluded that the fire and Dawn’s death were accidental, though at least one investigator reported being uncomfortable with that conclusion.

¶7 Then in 2001, several facts came to light that caused authorities to take a second look. Sandra Glass approached investigators and reported that she had an affair with Nicholas Hacheney during the summer and fall of 1997. A couple of weeks after Dawn’s death, Hacheney confessed to Glass that on Christmas night, he had given Dawn some Benadryl and then lain awake until God told him to “ ‘Take the land,’ ” a biblical phrase interpreted by members of his church to be an admonition to act. Report of Proceedings (RP) at 2333-34. Glass told authorities that Hacheney confessed to having held a plastic bag over Dawn’s head until she stopped breathing; he then set the fire. Hacheney also told Glass that Dawn knew what was happening to her.¹ Further investigation revealed that in the few months after Dawn’s death, Nicholas Hacheney developed ongoing sexual relationships with at least three additional church members.

¶8 In September 2001, the Kitsap County prosecutor charged Nicholas Hacheney with first degree premeditated murder and/or first degree felony murder committed in the course of, in furtherance of, or in flight from first degree arson. The prosecutor then filed an amended information elevating the premeditated murder charge to aggravated first degree murder based on two alternative aggravating circumstances. The State alleged that Hacheney committed the murder to conceal the commission of a crime and/or he committed the murder in the course of, in furtherance of, or in immediate flight from arson in the first degree.

¶9 Hacheney challenged whether there was probable cause to support the amended charges. The trial court agreed that there was not probable cause to charge him with felony murder, with committing the murder to conceal a crime, or with committing the murder “in furtherance of” or “in immediate flight from” arson. However, the court concluded that there was probable cause to charge Hacheney with aggravated premeditated first degree murder committed “in the course” of first degree arson. CP at 349; CP at 919 (Third Am. Information).

¶10 Before trial, it became apparent that three witnesses were going to be out of the country at the time of trial. Two were parishioners at Hacheney’s church and the third was an electrical engineer who had consulted with Safeco Insurance as a fire investigator. All three witnesses were subpoenaed and all three notified prosecutors that they would be out of the country and unable to return for trial. All three were deposed and videotapes of their deposition testimony were shown at trial over defense objection. The videotaped depositions were redacted to delete deposition objections and testimony that had been ruled inadmissible.

¶11 After a lengthy trial involving several expert witnesses, the jury was instructed that it had to first determine whether Hacheney was guilty of first degree premeditated murder. If the jury found Hacheney guilty, it then had to consider the aggravating circumstance, whether the murder was committed “in the course of” arson in the first degree. CP at 1352. At the State’s request and over the defendant’s objection, the jury was further instructed:

To establish that the killing occurred “in the course of” another crime, there must be an intimate connection between the killing and the other crime. The killing and the other crime must be in close proximity in terms of time and distance. However, more than a mere coincidence of time and place is necessary: A causal connection must clearly be established between the two crimes.

CP at 1353.² During deliberations, the jury submitted the following question:

Would arson be an aggravating circumstance if Dawn Hacheney was [already] dead but other people were injured by the fire. For instance the insurance company, Dawn’s parents and Dawn’s body.

CP at 1358. The court responded, “[t]he court will not provide further instructions in response to this inquiry. Please review the instructions provided.” CP at 1358. The jury also inquired:

For arson to be an aggravating circumstance did the fire have to result in the injury to a living person or only related to the murder, assuming Dawn Hacheney was [already] dead.

CP at 1360. The court responded identically to this question.

|12 On December 26, 2002, the jury found Nicholas Hacheney guilty of first degree premeditated murder. By special verdict, it also found that he committed the murder in the course of arson in the first degree. Having been convicted of aggravated first degree murder, Hacheney was sentenced to life in prison without the possibility of release.

¶13 Hacheney appealed, raising numerous issues. State v. Hacheney, noted at 128 Wn. App. 1061, 2005 Wash. App. LEXIS 1940, at *1. He argued, in part, that the evidence was insufficient to support the jury’s finding that he committed murder “ ‘in the course of’ ” first degree arson. Id. at *8. In an unpublished opinion, the Court of Appeals held that the murder was sufficiently connected to the arson to be part of the res gestae³ of the crime and, thus, the evidence was sufficient to show that Dawn’s murder was committed in the course of arson. Id. at *11 (citing State v. Brown, 132 Wn.2d 529, 610, 940 P.2d 546 (1997), death sentence rev’d on other grounds sub nom. Brown v. Lambert, 451 F.3d 946 (9th Cir. 2006), cert. granted, 127 S. Ct. 1055 (2007)). The Court of Appeals also concluded that the jury instruction on the aggravating factor was not improper. Id. at *12.

¶14 In addition, Hacheney argued that the trial court violated his Sixth Amendment right to confrontation when it admitted the three witnesses’ videotaped depositions in lieu of their live testimony. Id. at *17-18. The Court of Appeals concluded that the State had made a good faith effort to procure the witnesses’ attendance sufficient to satisfy the Sixth Amendment. Id. at *23.

¶ 15 Hacheney petitioned for review in this court. We granted review only “as to the issue of arson as an aggravating factor and the issue of whether the admission of depositions violated the defendant’s right of confrontation.” Wash. State Supreme Court Order, State v. Hacheney, noted at 157 Wn.2d 1008 (July 6, 2006).

II

Analysis

Sufficiency of the Evidence/Jury Instruction

¶16 RCW 10.95.020 provides that a person is guilty of aggravated first degree murder if he or she commits premeditated first degree murder and the jury finds one of a statutory list of aggravating circumstances. Aggravating circumstances can be found where the person committed the premeditated murder to conceal the commission of a crime or where the murder was committed “in the course of, in furtherance of, or in immediate flight from” robbery, rape, or burglary in the first or second degree, residential burglary, kidnapping in the first degree, or arson in the first degree. RCW 10.95.020(9), (11). A verdict of aggravated first degree murder can subject the defendant to the death penalty, but where the prosecutor has chosen not to seek the death penalty, the sentence must be life without the possibility of release. RCW 10.95.030(1).

¶17 The trial court in this case found that the evidence presented in the certification for probable cause could support a factual finding that Dawn Hacheney “was dead before her body was burned by a fire started in the bedroom.” CP at 349 (emphasis added). As a result, the trial court concluded that there was not probable cause for the prosecution to proceed on a charge of aggravated first degree murder “ ‘in furtherance of’ ” or “ ‘in immediate flight from’ ” first degree arson. CP at 350. The trial court also concluded that there was not probable cause for the prosecution to proceed on a charge of aggravated first degree murder to conceal another crime because the State’s theory was that Hacheney committed the arson to conceal the murder, not that he committed the murder to conceal the arson. Id.; cf. State v. Bartholomew, 98 Wn.2d 173, 213, 654 P.2d 1170 (1982) (finding murder was committed to conceal robbery for long enough to allow defendant to escape), vacated on other grounds, Washington v. Bartholomew, 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983). However, the trial court concluded that there was probable cause to support the charge that Hacheney committed the murder “ ‘in the course of’ ” arson in the first degree. CP at 349. Hacheney now argues that the murder could not have occurred “in the course of” the arson because, according to the State’s evidence, the murder was complete before the arson began and the murder did not further the arson.

¶18 The State correctly explains that where a defendant challenges the sufficiency of the evidence supporting his conviction, we must consider the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the presence of the aggravating factor beyond a reasonable doubt. See Brown, 132 Wn.2d at 608. However, Hacheney’s argument also depends upon how broadly we interpret the statutory language “in the course of. . . [a]rson in the first degree.” RCW 10.95.020(ll)(e). Statutory interpretation is a question of law subject to de novo review. E.g., Cerrillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006).

¶ 19 Both the trial court and the Court of Appeals relied primarily on Brown, 132 Wn.2d at 607-11, to conclude that there was a sufficiently intimate connection between the arson and the murder in this case for the murder to have occurred “in the course of” the arson. CP at 349; Hacheney, 2005 Wash. App. LEXIS 1940, at *10-11. In Brown, the defendant kidnapped his victim because he needed money to make a trip to California. Brown, 132 Wn.2d at 610. Brown robbed his victim, and then held her for two days, during which he raped, tortured, and eventually killed her. Id. Brown argued that because the murder occurred hours after the other felonies were committed or completed, these facts did not provide sufficient evidence to prove that he killed his victim in the course of or in furtherance of robbery, rape, or kidnapping. Id. at 609.⁴

¶20 The Brown court explained that to establish that a killing occurred in the course of, in furtherance of, or in the immediate flight from a felony,

there must be an intimate connection between the killing and the felony. The killing must be part of the res gestae of the felony, that is, in close proximity in terms of time and distance. A causal connection must clearly be established between the two. In other words, more than a mere coincidence of time and place is necessary.

Id. at 608 (internal quotation marks and footnotes omitted). The Brown court later explained that

[w]e have also recognized the need for a “causal” or “intimate” connection between a killing and a related felony to establish the killing was committed in the course of, in furtherance of, or in immediate flight from the felony.

Id. at 610. The Court of Appeals in this case seems to have inferred from the Brown court’s use of the words “ ‘causal’ or ‘intimate’ connection” that the felony need not cause the killing, so long as there is a sufficiently intimate connection between the killing and the felony that they are part of the same res gestae. See Hacheney, 2005 Wash. App. LEXIS 1940, at *11. However, the Court of Appeals’ reliance on the word “or” is questionable, given the Brown court’s earlier explanation that a causal connection must clearly be established. Brown, 132 Wn.2d at 608.

¶21 When discussing the necessary causal connection, the Brown court relied on Golladay, 78 Wn.2d 121. Brown, 132 Wn.2d at 608. Golladay allegedly killed the victim, a female hitchhiker, and then drove away from the scene. Golladay, 78 Wn.2d at 123-24. A short time later, he ran his car into an embankment. Id. at 124. After the accident, the defendant disposed of the victim’s purse and shoes in a nearby field in an attempt to conceal the fact that the victim had been in his car. Id. at 125. The State charged Golladay with first degree felony murder, citing larceny of the purse and shoes as the predicate crime. Id. at 128-29.

¶22 The Golladay court concluded that there was not a sufficient causal connection between the murder and the larceny, pointing to the fact that the larceny occurred after the killing. Id. at 130. The court explained:

“As to when a homicide may be said to have been committed in the course of the perpetration of another crime, the rule is ... :

“ ‘It may be stated generally that a homicide is committed in the perpetration of another crime, when the accused, intending to commit some crime other than the homicide, is engaged in the performance of any one of the acts which such intent requires for its full execution, and, while so engaged, and within the res gestae of the intended crime, and in consequence thereof, the killing results. It must appear that there was such actual legal relation between the killing and the crime committed or attempted, that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it. In the usual terse legal phraseology, death must have been the probable consequence of the unlawful actX] ”

Id. at 131 (emphasis added) (quoting State v. Diebold, 152 Wash. 68, 72, 277 P. 394 (1929) (quoting 13 Ruling Case Law 845));⁵ see also State v. Dudrey, 30 Wn. App. 447, 450, 635 P.2d 750 (1981) (holding the State must prove that at the time of the homicide the defendant was engaged in the commission of the felony). The Golladay court reasoned that for a homicide to have been committed in the course of a felony, the causal connection had to run such that the death was the probable consequence of the felony, but not the other way around. See Golladay, 78 Wn.2d at 131; cf. State v. Leech, 114 Wn.2d 700, 705, 709, 790 P.2d 160 (1990) (holding where the defendant’s conduct in setting a fire was a proximate cause of a fire fighter’s death, the death occurred in course of and in furtherance of the arson).

¶23 The trial court here attempted to distinguish this case from Golladay because Golladay was a felony murder case, not an aggravated murder case. Arguably, the purpose of the felony murder statute is to establish that once a person decides to commit an enumerated felony, he or she is responsible for all of the fatal consequences, intended or not. E.g., Leech, 114 Wn.2d at 708. In contrast, the aggravated first degree murder statute punishes premeditated murder that is also committed in the course of an enumerated felony. RCW 10.95.020(11). In this sense, the two are different. But in both circumstances the defendant’s culpability for the killing is enhanced because the killing occurred “in the course of” an enumerated felony. RCW 10.95.020(11); RCW 9A.32.030(l)(c). For purposes of the current analysis, this court has not distinguished between the two. See Brown, 132 Wn.2d at 608-09 (relying on felony murder cases in an aggravated murder case). Thus, consideration of both Brown and Golladay is appropriate here.

¶24 It is true that in several pre-Golladay cases, this court reasoned that where there was sufficient connection between the murder and the felony, the fact finder did not have to pinpoint the exact time of death, so long as the killing was part of the res gestae of the felony. See State v. Anderson, 10 Wn.2d 167, 178, 116 P.2d 346 (1941) (quoting State v. Whitfield, 129 Wash. 134, 138-39, 224 P. 559 (1924)). In Anderson, the defendant had been trying to steal the victim’s eggs when the victim discovered the defendant, prompting the defendant to shoot the victim. Id. at 170. In Whitfield, it was impossible to tell whether the child victim died from blows inflicted by the defendant before or after he committed rape. Anderson, 10 Wn.2d at 177-78 (discussing Whitfield, 129 Wash. 134); see also State v. White, 60 Wn.2d 551, 558-59, 563, 374 P.2d 942 (1962) (defendant inflicted severe head injuries upon a woman, walked away for a moment, and then returned to rape her). Similarly, in State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973), a post -Golladay case, the defendants killed a cab driver and then took the victim’s wallet and car. But they claimed that they had killed in a drug induced rage and did not develop an intent to rob until after the killing was complete. Id. at 779. This court recognized that the killing was done in connection with a robbery as part of “ ‘the same transaction.’ ” Id. at 782-83 (quoting State v. Coe, 34 Wn.2d 336, 341, 208 P.2d 863 (1949)). It was not incumbent on the State to prove that the defendant intended robbery when he committed the murder. Id. at 782; see also State v. Temple, 5 Wn. App. 1, 6-7,485 P.2d 93 (1971) (death immediately preceded theft of victim’s shoes, watch, and wallet). While some language in these cases suggests a broader rule than was articulated in Golladay, they are all distinguishable in that the deaths clearly occurred either during, in the furtherance of, or in flight from the commission of the underlying felonies. In contrast, in both Golladay and in this case, the evidence showed the felonies were committed to cover up or facilitate escape from already completed murders.

¶25 Even so, in cases similar to this one, other states have opted for a broader reading of their aggravated first degree murder statutes. For example, in People v. Thomas, 137 Ill. 2d 500, 561 N.E.2d 57, 148 Ill. Dec. 751 (1990), the victim caught the defendant trying to0 steal items from her garage. 561 N.E.2d at 61. There was a struggle and the defendant stabbed the victim, killing her. Id. He then set the garage on fire in order to conceal the murder. Id. The jury found the defendant guilty and then found that he was eligible for the death penalty because he committed murder in the course of arson or burglary. Id. at 61, 70. Thomas argued that he could not have committed the murder in the course of arson because the victim was dead when he started the fire. Id. at 70. The Thomas court held that a murder occurs in the course of another felony where the murder and the accompanying felonies were part of the “same criminal episode.” Id. at 71. The court distinguished contrary holdings from other states by noting that the Illinois statute’s “ ‘in the course of’ ” language should be interpreted more broadly than “ ‘during the commission or attempted commission of’ ” language:

we think that the Illinois statute recognizes that the crime of murder is not necessarily complete when the victim’s heart stops beating, but rather the crime continues throughout the time that the perpetrator conceals the crime and flees the scene.

Id.; see also Ex parte Roberts, 735 So. 2d 1270, 1278 (Ala. 1999) (finding it sufficient that arson and murder were part of continuous chain of events); Way v. State, 496 So. 2d 126, 128 (Fla. 1986) (holding prosecution need not prove victims were killed by fire, so long as deaths occurred during same criminal episode as arson).

¶26 However, the California Supreme Court reasoned differently in People v. Green, 27 Cal. 3d 1, 609 P.2d 468, 505, 164 Cal. Rptr. 1 (1980), overruled on other grounds by People v. Dominguez, 39 Cal. 4th 1141, 140 P.3d 866, 47 Cal. Rptr. 3d 575 (2006). In Green, the defendant shot his wife in the face and then took her clothing, her jewelry, and her purse for the purpose of concealing her identity. 609 P.2d at 475-76, 500. The court concluded that the robbery did not occur during the commission of the murder, explaining that the aggravated first degree murder statute was intended to narrow the defendants eligible for the death penalty. Id. at 505. The court reasoned that when the legislature characterized murders committed “ ‘during the commission’ ” of an enumerated felony as aggravated, it intended to allow the death penalty for those “who killed in cold blood in order to advance an independent felonious purpose, e.g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnapping, or a rape.” Id. at 505. Thus, where murder was the primary crime and the felony was incidental because it was intended only to conceal the murder, imposition of aggravating circumstances was inappropriate. Id. at 505-06.

¶27 Here, we must decide whether to continue to apply the rule articulated in Golladay and Green or instead adopt a broader rule like that set forth by the Illinois Supreme Court in Thomas. We believe the Golladay articulation of the connection necessary to establish that a murder occurred “in the course of” a felony is supported by the plain language of the aggravated first degree murder statute. The “course” of something is its “ordered continuing process, succession, sequence, or series.” Webster’s Third International Dictionary 522 (2002); State v. Watson, 146 Wn.2d 947, 954-56, 51 P.3d 66 (2002) (looking to dictionary definition where term not defined by statute). A person is guilty of aggravated first degree murder if the murder was committed “in the course of” an enumerated felony, RCW 10.95.020(11), not if the enumerated felony is committed in the course of the murder. The legislature adopted the “in the course of” language after this court had, in Golladay, defined “in the course of” as requiring a causal connection such that the death was a probable consequence of the felony. Golladay, 78 Wn.2d at 131; Laws of 1981, ch. 138, § 2(9). Moreover, for a killing to have occurred “in the course of” arson, logic dictates that the arson must have begun before the killing.⁶

¶28 Even if we were to conclude that the term “in the course of” is ambiguous, the rule of lenity dictates that we construe aggravating circumstances narrowly, especially where their application determines the imposition of our most severe penalties, death or life without possibility of release. See In re Pers. Restraint of Cruz, 157 Wn.2d 83, 88, 134 P.3d 1166 (2006). Aggravated circumstances are used, theoretically, to select from the larger set of first degree murders those deserving of our most severe penalties. Dana K. Cole, Expanding Felony-Murder in Ohio: Felony-Murder or Murder-Felony?, 63 Ohio St. L.J. 15, 23 (2002). While arson to conceal an already completed murder is reprehensible, it does not necessarily have the same impact upon the severity of the actual murder as the other statutory aggravators. Cf RCW 10.95.020(1)-(14) (listing various characteristics of the victim, the defendant, or the nature of the killing itself that the legislature deemed particularly deserving of the death penalty or mandatory life imprisonment). Concealment of a murder, even by partial or total destruction of the body, is not an aggravating circumstance under our statute. Id.

¶29 In addition, there were other appropriate ways for the prosecutor to seek punishment for both the murder and the arson. The State could have charged the felony independent of the murder, potentially increasing the offender score for the murder. See RCW 9.94A.589(1), .525(1). In addition, the State could have attempted to procure a sentence enhancement or consecutive sentences based on the arson. See RCW 9.94A.535(3), .589; e.g., Medina v. Artuz, 872 F. Supp. 1258, 1260-61 (S.D.N.Y. 1995) (upholding consecutive sentences based on the fact that arson was committed to conceal murder). Our resolution of this case does not suggest that a felony committed to conceal murder should go unpunished.

¶30 In sum, this court in Golladay insisted that for a death to have occurred in the course of an enumerated felony there must be a causal connection between the two such that the death must have been a probable consequence of tine felony, not the other way around. Golladay, 78 Wn.2d at 131. In Brown, we did not disapprove this test. See Brown, 132 Wn.2d at 608 (citing Golladay, 78 Wn.2d at 130). The plain language of the aggravated first degree murder statute does not provide that the aggravating circumstance applies if the felony occurred in the course of the murder. Even if we were to find the term “in the course of” to be ambiguous, the rule of lenity dictates narrow construction of aggravating circumstances. We conclude that, as a matter of law, the evidence does not support a charge that Hacheney killed Dawn in the course of the arson. We reverse the Court of Appeals, vacate the aggravating circumstance, and remand to the trial court for resentencing. Because the facts, as a matter of law, do not support an aggravating circumstance, there is no need to address the jury instruction challenge.

Deposition Testimony

¶31 The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”⁷ Pursuant to the Sixth Amendment, a prosecutor must show that a witness is unavailable to testify before he or she can resort to presenting the witness’s prior testimony. See, e.g., Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In this case, Hacheney contends that the State did not establish the unavailability of three witnesses sufficiently to support admission of their videotaped depositions at trial.

¶32 Prior to trial it became clear that three of the State’s witnesses would be out of the country at the time of trial, despite the fact that all three were under subpoena. CP at 617-19; RP at 3829-30. Two witnesses, a husband and wife, planned to move to Scotland in early September 2002 so that the husband could begin a graduate program there. CP at 618. They did not plan to return to the United States for at least three years. CP at 912. A third witness, an electrical engineer, planned to be in a remote area of Bolivia for six to nine months to assist in construction of a radio network. CP at 619, 1022. The project involved complex scheduling with a construction team. CP at 619.

¶33 The State moved to conduct videotaped perpetuation depositions of these witnesses. CP at 617. In part, the State argued that it would be burdensome for the witnesses and financially burdensome for the State to bring these witnesses back for trial. CP at 617-18. The trial judge granted the motions, and videotaped depositions were taken. CP at 623, 630,633. Hacheney was present at each deposition and his attorney cross-examined each witness with the knowledge that the witnesses would be out of the country when the trial occurred. CP at 1018, 1089, 1199, 1264.

¶34 At the time of trial, the State submitted letters from all three witnesses confirming that they were indeed out of the country. CP at 912-13. The State sought to show the video depositions in lieu of their live testimony. The defense objected, arguing that the State had not taken adequate steps to show that the witnesses were truly unavailable and the State had done nothing to secure the witnesses’ presence at trial. CP at 999-1002. The trial court ruled that the videotaped depositions would be shown to the jury but that they would be redacted to exclude objections and testimony that the court had ruled inadmissible. CP at 1007-13.

¶35 A witness’s absence from the jurisdiction, without more, is not enough to satisfy the confrontation clause’s unavailability requirement. Barber v. Page, 390 U.S. 719, 723, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968). “[A] witness is not ‘unavailable’ . . . unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Id. at 724-25. The length to which the prosecution must go to procure a witness’s presence is a question of reasonableness. Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled on other grounds by Crawford, 541 U.S. 36. The question of unavailability is “one of fact to be determined by the trial judge,” State v. Allen, 94 Wn.2d 860, 866, 621 P.2d 143 (1980). Because the trial court is in the best position to evaluate witness unavailability, we do not easily overturn a trial court’s factual unavailability determination. State v. DeSantiago, 149 Wn.2d 402, 411, 68 P.3d 1065 (2003) (reviewing unavailability determination for abuse of discretion).⁸

¶36 In this case, all three witnesses were subpoenaed and they made themselves available until they had to leave the country. There is nothing in the record to suggest that the prosecutor indicated to any witness that he or she need not appear to testify in person. Hacheney, 2005 Wash. App. LEXIS 1940, at *23. No witness was released from his or her subpoena. Two witnesses stated in their letter to the court that they would not be leaving Scotland anytime during the remainder of 2002. CP at 912. Similarly, the third explained that his work in Bolivia involved complex scheduling with a construction team, so his trip could not be rescheduled. CP at 619. The trial court could have legitimately concluded that it would have been a hardship for any of the three to return to Washington to testify at trial. Hacheney argues that the State should have had to show that it offered to pay travel expenses for the witnesses to return, but as the Court of Appeals explained, the trial court could have reasonably inferred from the record that, even then, the witnesses would have remained in Scotland and Bolivia. Hacheney, 2005 Wash. App. LEXIS 1940, at *22.

¶37 Hacheney was present at the depositions, and because they were videotaped, the jury was able to observe each witness’s demeanor. See State v. Hewett, 86 Wn.2d 487, 492-93, 545 P.2d 1201 (1976). Hacheney’s attorneys were aware at the time of the depositions that the witnesses would be out of the country at the time of trial. See State v. Hobson, 61 Wn. App. 330, 335, 810 P.2d 70 (1991). This trial lasted almost two months and the State presented numerous witnesses, including several experts. A second fire investigator was able to testify about the joint examination of the possible electrical causes of the fire. RP at 3482. The two parishioners of Hacheney’s church spoke to Hacheney’s proclivity for extramarital sex, but this fact was also established by other witnesses, including the church women with whom he had sexual relationships. RP at 606, 642, 2897-98, 3734. Hacheney’s conviction did not rest entirely on the testimony of any of the three deposed witnesses. Cf. State v. Rivera, 51 Wn. App. 556, 559-60, 754 P.2d 701 (1988). In light of the hardship involved and the testimony supplied by other witnesses, it was reasonable for the trial court to admit the videotaped depositions.

¶38 Hacheney relies primarily on State v. Aaron, 49 Wn. App. 735, 745 P.2d 1316 (1987), a case discussing unavailability under ER 804, where the Court of Appeals reversed a burglary conviction because the State’s primary witness was teaching in England at the time of trial. But in that case, the witness was not subpoenaed, there was no evidence in the record as to whether she had ever been asked to return voluntarily for trial, and the absent witness was crucial. Id. at 743. The Aaron court emphasized that the State made “no effort” to procure the witness’s testimony at trial. Id. at 745. Aaron is easily distinguishable and does not undermine the unavailability finding in this case.⁹ We conclude that the trial court reasonably found that all three witnesses were unavailable at the time of trial. We find no violation of Hacheney’s confrontation clause rights.

III

Conclusion

¶39 While other states have interpreted their aggravated first degree murder statutes more broadly, this court has held that for a murder to have occurred “in the course of” a felony, the murder must have been a probable consequence of the felony. Golladay, 78 Wn.2d at 131; Diebold, 152 Wash, at 72. The Golladay reading of the “in the course of” language remains true to the plain meaning of the statutory language, and it does not create an unwarranted expansion of the set of cases eligible for the death penalty or life without the possibility of release. We conclude that, while he may have committed arson in the course of covering up a murder, as a matter of law, Hacheney did not murder his wife in the course of arson. We also conclude that Hacheney did not suffer a confrontation clause violation because the witnesses whose videotaped depositions were admitted at trial were indeed unavailable. We affirm in part, reverse in part, and remand for resentencing without consideration of the improper aggravating circumstance.

Alexander, C.J., and Sanders, Chambers, Owens, and Fairhurst, JJ., concur.

1 Glass also explained that the congregants of Hacheney’s church believed that God shared prophecies with various members. Glass testified that in 1992 (well before the events in this case), she had a prophecy that her husband was going to die, but his death never occurred. Then in the fall of 1997, she had a prophecy that Dawn Hacheney would die and that she would become Nicholas Hacheney’s wife.

2 Other trial court conclusions are not in dispute here.

3 “[Latin ‘things done’] The events at issue, or other events contemporaneous with them.” Black’s Law Dictionary 1335 (8th ed. 2004) (alteration in original).

4 Brown admitted that he killed his victim so that he would not leave a witness alive. Brown, 132 Wn.2d at 610. He also conceded that the murder was committed in the immediate flight from the kidnapping. Id. at 610 n.234.

5 At that time, ROW 9.48.030(3) provided that a killing was murder in the first degree, subjecting the defendant to the possibility of a death sentence, where it was committed “ ‘[wjithout design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of... larceny.’ ” Golladay, 78 Wn.2d at 128 (alteration in original) (quoting former RCW 9.48.030(3) (1919), repealed by Laws of 1975-76, 2d Ex. Sess., ch. 38, § 19). Yet, the Golladay/Diebold test specifically discussed when a killing occurs “in the course of” another crime. Id. at 131. After Golladay, the legislature adopted the current “in the course of” language. Laws of 1981, eh. 138, § 2(9).

6 This is not to say that a robber, for example, who kills his victim before committing the taking can necessarily avoid conviction for aggravated first degree murder. A killing to facilitate a robbery would clearly be “in the furtherance of” the robbery. RCW 10.95.020(11). And where the killing itself is the force used to obtain or retain the property, then the death can be said to be the probable consequence of the felony. See State v. Allen, 159 Wn.2d 1, 9, 147 P.3d 581 (2006) (finding considerable circumstantial evidence that murder defendant used force, at least in part, to obtain stolen cashbox).

7 While Hacheney cites to our comparable state constitutional provision, article I, section 22, in his petition for review, he does not argue that the state constitutional provision might require a different result from the federal analysis in this case. Pet. for Review at 11-12.

8 Both this court and the United States Supreme Court have drawn a distinction between unavailability for Sixth Amendment confrontation clause purposes and unavailability for purposes of the rules of evidence. Crawford, 541 U.S. at 51; State v. Price, 158 Wn.2d 630, 639 n.5, 146 P.3d 1183 (2006). Here, we review only whether Hacheney’s right to confrontation was violated. Pet. for Review at 10-12.

9 Hacheney also seems to argue, for the first time in his supplemental brief, that the redaction of the depositions was erroneous. Pet’r’s Suppl. Br. at 2, 7. The depositions were redacted to delete objections and testimony that was ruled inadmissible. CP at 1007-13. Hacheney does not challenge any specific evidentiary ruling, and he does not show that any redacted portion would have been admissible had the witnesses presented live testimony at trial.