State v. Levy , 156 Wash. 2d 709 ( 2006 )

¶61 (concurring) — The majority finds the

Sanders, J.

trial court violated Percy Levy’s Sixth Amendment right to compulsory process by permitting Breena Martin to assert her Fifth Amendment privilege against self-incrimination through counsel. But it holds the error harmless in the face of “such clear evidence” and affirms Levy’s conviction. Majority at 732-33. I concur in the result. But the trial court’s violation of Levy’s right to compulsory process was harmless only because Martin could have asserted her Fifth Amendment privilege in response to any relevant question, not because of the volume of evidence against Levy.

¶62 We may excuse as “harmless error” only an “error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.” State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947). In other words, an error is harmless only if it does not affect the evidence properly presented to the jury.

¶63 Thus, we cannot excuse a violation of the right to compulsory process resulting in the suppression of relevant evidence. “[I]t is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors.” State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946). The assumption a court “can determine what evidence or instruction influenced the jury’s decision” is “a tacit admission that an appellate court is necessarily engaging in fact-finding.” Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277, 279 (1995-96). And we “have no right to trench upon the province of the jury upon questions of fact.” Jensen v. Shaw Show Case Co., 76 Wash. 419, 421, 136 P. 698 (1913). See Wash. Const, art. I, § 21 and U.S. Const. amend. VI (guaranteeing trial by jury). Failure to investigate an illegitimate or overbroad assertion of privilege is grounds for reversal.

¶64 But here, the trial court’s error was harmless for a different reason: Proper inquiry could not have produced evidence of assistance to the defense. Martin was Levy’s codefendant. Levy’s counsel accepted her assertion of privilege. Levy fails to tender any line of inquiry avoiding Martin’s assertion of privilege. And none is readily apparent. An independent investigation of Martin’s assertion of privilege could only have confirmed its legitimacy.

¶65 Accordingly, I concur.