State Of Washington, V. Matthew Nicholas Mcgowan ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 81076-6-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
MATTHEW NICHOLAS MCGOWAN,
Appellant.
APPELWICK, J. — McGowan appeals his conviction for first degree murder.
He argues the trial court erred in admitting out-of-court statements of a non-
testifying declarant in violation of the confrontation clause. We affirm his conviction
but remand for resentencing in light of State v. Blake, 197 Wn.2d. 170, 195, 481
P.3d 521, 534 (2021).
FACTS
On January 4, 2019, police responded to a report that Michael Boone’s body
had been found at the Evergreen Cemetery, in Everett. He had been tied to a tree
with most of his clothes removed. He died of hypothermia.
The police investigation led them to three persons of interest: Darron
Wiedman, Donita Burkley, and Matt McGowan. Wiedman eventually agreed to
testify, and relayed the following series of events leading to Boone’s death.
On December 31, 2018 to January 1, 2019, Wiedman and Burkley were
homeless and sharing an encampment in Everett. That night, the pair were
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“hanging out” with some acquaintances, including McGowan. The group
discussed a plan to rob someone in order to get a room for the night because it
was cold outside.
At some point, Boone approached Wiedman hoping to purchase sex with
Burkley. Wiedman, Burkley, and McGowan then discussed a plan to have Boone
purchase a room under the guise of having sex with Burkley, without actually
allowing him to have sex with her. They believed that Boone would be unable to
do anything once he had purchased the room because he would be outnumbered
by Wiedman and McGowan.
The group then met back up with Boone in order to get him to an automated
teller machine (ATM) to make sure he had enough money for the room. But, they
discovered that Boone had only six dollars in his account. Burkley and McGowan
indicated that they had seen Boone with a roll of money earlier. So, the group
discussed bringing Boone to a “spot”—somewhere out of the way where police or
passersby would not be able to see what they were doing. The three agreed that
they would not hurt Boone, and that the robbery could be accomplished through
intimidation.
At that time, Wiedman remembered some electronics that he had left
plugged in to the back of a building. He told the rest of the group that he would
meet them at a gazebo in the Evergreen cemetery in 20 minutes, after he collected
the devices and dropped them off at his camp.
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He then broke off from the group, collected his electronics, and went back
to his camp. But, he did not proceed to the gazebo as promised. Instead, he
stayed at his camp to talk on the phone with a girlfriend.
About fifteen minutes later, Burkley returned to the campsite. Wiedman
described her as “hysterical . . . like she’d seen a ghost.” He asked her what
happened. He claims that she told him that McGowan had hit Boone over the
head with a stick or board, and was strangling him so hard that by the time she
got him to stop, she believed Boone was dead. He claims that she told him that
she and McGowan then tied Boone to a tree, and he (Boone) said, “‘I don’t want
to die tonight.’”
McGowan then returned to the tent carrying Boone’s clothes. The three
searched through the pockets for valuables and divided them amongst
themselves. They did not find the roll of cash. Wiedman and McGowan then left
together. Neither apparently returned to the cemetery to help Boone.
The State charged McGowan with first degree felony murder. In
exchange for the testimony above, Wiedman was allowed to plead guilty to first
degree robbery.
McGowan testified in his own defense. He admitted to being with
Wiedman, Burkley, and Boone on the night of December 31 to January 1, 2019.
He denied being part of a plan to rob Boone and claims that he left the group
shortly after Weidman did because he felt uncomfortable.
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McGowan moved pretrial to exclude Burkley’s statements to Wiedman
under the confrontation clause. The trial court denied the motion, finding the
statements admissible because they were nontestimonial.
A jury found McGowan guilty as charged. McGowan then moved for a
new trial. He again argued that the trial court had erred in admitting Burkley’s
statements to Wiedman. He argued that neither he nor the State had cited the
correct legal standard, so the court had used an incorrect standard to determine
whether Burkley’s statements were testimonial. The trial court denied the motion
for a new trial, finding it would have ruled to admit the statements under either
standard.
McGowan appeals.
DISCUSSION
McGowan argues that the trial court erred in admitting Burkley’s out-of-court
statements in violation of the confrontation clause.1 He also argues that Blake,
197 Wn.2d. at 195, renders one of his prior convictions moot, such that he must
be resentenced.
The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the right to confront witnesses against them. Whether the
1
McGowan also assigns error to the trial court’s determination that the
statements constituted admissible hearsay. But, he does not provide any
argument on the hearsay issue. Appellants are required to provide argument in
support of the issues presented for review. RAP 10.3(a)(6). Failure to provide
argument renders the issue undeserving of judicial consideration. See Holland v.
City of Tacoma, 90 Wn. App. 533, 537-38, 954 P.2d 290 (1998) (“Passing
treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.”). We do not consider the hearsay issue.
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admission of an out-of-court statement by a nontestifying declarant violates this
clause depends on whether the statement is testimonial. State v. Scanlan, 193
Wn.2d 753, 761, 445 P.3d 960 (2019), cert. denied, 140 S. Ct. 834, 205 L. Ed. 2d
(2020). Only statements that are testimonial implicate the confrontation clause.
State v. Burke, 196 Wn.2d 712, 725, 478 P.3d 1096 (2021).
A statement is testimonial if the primary purpose of the statement is to
create an out-of-court substitute for trial testimony. Scanlan, 193 Wn.2d at 767.
In determining whether a statement is testimonial, courts objectively evaluate the
statements and actions of the parties to an encounter in light of the circumstances
where the encounter occurred. See Burke, 196 Wn.2d at 726. The role of the
person the declarant is speaking to is significant to determining the primary
purpose of a statement. Id. at 727. Statements to police officers are significantly
more likely to be testimonial than to others because police are principally charged
with investigating crime. See Scanlan, 193 Wn.2d at 767; Burke, 196 Wn.2d at
728.
The State has the burden of showing a statement was not testimonial. State
v. Koslowski, 166 Wn.2d 409, 417 n.3, 209 P.3d 479 (2009). We review
confrontation clause challenges de novo. Burke, 196 Wn.2d at 725.
The statements here were not testimonial because Burkley’s primary
purpose was not to create an out-of-court substitute for trial testimony. It was to
report to Wiedman that the robbery had gone awry. The statements happened
shortly after a robbery that Burkley, McGowan, and Wiedman had planned.
Nobody was supposed to be hurt during the robbery. Instead, McGowan had
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severely injured their victim, and then he and Burkley left him tied to a tree. Burkley
appeared “hysterical” and “like she had seen a ghost” when she arrived at
Weidman’s encampment. This prompted Wiedman to ask what had happened,
prompting her statement in response.
McGowan argues that Burkley’s statements to Wiedman were testimonial
because their primary purpose was to blame McGowan for the assault and
eventual death of Boone. He claims that Burkley and Wiedman conspired together
to fabricate the statement and Burkley’s version of events to absolve themselves
of responsibility for Boone’s death.2
McGowan’s theory is speculative at best. First, Wiedman was a
coconspirator, not a police officer, and was not principally charged with
investigating crime. See Scanlan, 193 Wn.2d at 767 (statements to persons other
than police officer less likely to be testimonial); see also State v. Whitaker, 133
Wn. App. 199, 226, 135 P.3d 923 (2006) (statements in furtherance of a conspiracy
are not testimonial). And, the crime was still in progress, as evidenced by the fact
that McGowan arrived shortly after with Boone’s belongings and the three together
went through them and took Boone’s valuables. Nothing in the record suggests
that anyone went to Boone’s aid to untie him or sought medical assistance.
McGowan’s theory relies on Burkley believing that there would be a subsequent
investigation and that Wiedman would cooperate with her attempted cover-up.
2
A part of McGowan’s theory is that Wiedman fabricated that Burkley made
the statement at all. Whether a witness has testified truthfully is entirely for the
jury to determine. State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010).
McGowan was free to challenge Weidman’s credibility on cross-examination to aid
the jury in that determination.
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And, the plan would have been ultimately unsuccessful. Burkley’s own statements
implicated her because she admitted to helping to tie Boone up, which eventually
caused his death. Nothing in the purported conversation addressed what anyone
would say to police if an investigation did occur.
The primary purpose of Burkley’s statement was not to create an out-of-
court substitute for trial testimony and the statements are not testimonial. See
Scanlan, 193 Wn.2d at 766. The statements do not implicate the confrontation
clause. Burke, 196 Wn.2d at 725 (only testimonial statements implicate the
confrontation clause). The trial court did not err in admitting the statements.
McGowan also argues that Blake, 197 Wn.2d. at 195, renders one of his
prior convictions moot, such that he must be resentenced. The State does not
object to remand for resentencing.
We affirm McGowan’s conviction and remand for resentencing.
WE CONCUR:
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