State Of Washington v. Gerald Locket Hatfield, Jr. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 77512-0-1
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
GERALD LOCKET HATFIELD JR., )
)
Appellant. )
) FILED: December 2, 2019
HAZELRIGG-HERNANDEZ, J. — Gerald Locket Hatfield Jr. seeks reversal of
his convictions for burglary in the first degree and robbery in the first degree,
alleging that numerous errors by the trial court individually and collectively denied
him the right to a fair trial. Because we conclude beyond a reasonable doubt that
the errors were individually and cumulatively harmless in light of the overwhelming
evidence of his guilt, we affirm.
FACTS
On March 12, 2015, Stephen Dillenburg approached Charles Brown at the
home of a mutual friend and asked if he would be interested in making some
money. Dillenburg said he planned to rob some acquaintances of drugs and
money and wanted Brown to be a lookout. Brown agreed, and the two men were
joined by Gerald Hatfield as they left the apartment. The three men got into a light-
colored sport utility vehicle (SUV), and Hatfield drove them to Lake City.
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Kevin Boggs was renting a house in Lake City from his parents and
subletting the basement to Adrien Diaz. Diaz sold drugs, primarily heroin, out of
the house and paid rent to Boggs in the form of drugs. Boggs would occasionally
act as a go-between when buyers come to the house because the basement was
off-limits to guests.
When the men arrived at Boggs' house, Boggs recognized Dillenburg
because they had previously met through a mutual friend and invited the men in
despite the late hour. They told Boggs they wanted to buy heroin and gave him
cash. Brown testified that Boggs told them to follow him downstairs, so he and
Hatfield went downstairs while Dillenburg stayed upstairs. However, Boggs
testified that he told them all to wait upstairs and went to the basement to get the
drugs from Diaz. When Boggs heard footsteps and turned to tell them to return to
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the main level, he saw Hatfield descending the stairs holding a semi-automatic
handgun. Boggs shouted to Diaz that they were being robbed. Diaz handed
Hatfield a small quantity of money and drugs, which was all they had on hand.
Boggs said that Brown demanded their hidden stash of drugs and money, but they
denied having a stash. Brown started gathering laptops and phones from the
basement and putting them in a pillow case. Boggs testified that, at one point,
Hatfield grabbed a pillow off the floor and covered the muzzle of the gun as if to
silence a shot with it.
A security camera downstairs captured a portion of the incident. The video
showed Hatfield holding a gun, shoving Boggs three times, hitting or threatening
to hit Boggs with the gun, and covering the muzzle of the gun with a pillow and
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pointing it at Boggs. The recording ended when Haffield appeared to notice the
camera and reached for it.
After the men had been downstairs for a few minutes, Boggs said he heard
Brown ask Diaz what he was doing, and the two began grappling. Boggs saw a
second gun and heard a loud click. Brown ran out of the room, and Boggs saw
Diaz level a silver revolver at Hatfield. Diaz may have fired a shot; Boggs was
unsure whether he had heard one or two shots. Haffield fired a shot, which hit
Diaz in the right upper thigh.
Brown denied getting into a scuffle with anyone and said that he was in the
downstairs bedroom when he heard gunshots and fled. Brown thought there were
two guns fired because the shots sounded like they came from two different
locations. Brown and Hatfield ran up the stairs, and the three men ran back to the
vehicle. As they drove away, Hatfield said that Diaz had shot at him, so he shot
back. The men pulled into a parking lot, divided the stolen items, and parted ways.
Boggs called 911. Diaz was taken to the hospital and treated for the
gunshot wound to his leg and a second graze wound on his inner thigh. Diaz
admitted to emergency personnel that he used heroin and cocaine. Police found
a spent nine millimeter bullet on the floor on the basement and a hole in the
basement ceiling that appeared to be from a bullet.
Five days later, officers returned to the house to collect the digital video
recorder(DVR)containing the video footage from the downstairs security camera.
When they arrived, Diaz gave them a spent nine millimeter shell casing. Diaz was
reluctant to turn over the DVR to police because he believed the video would also
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show him using drugs and having sex with his girlfriend. He asked the officers to
constrain their review of the video to the time frame of the incident. After they
agreed, Diaz turned over the DVR. The lead detective asked a Seattle Police
Department video technician to download a portion of the video in a one-hour time
frame surrounding the incident.
During the course of the investigation, Boggs gave police Dillenburg's name
and later identified him as one of the robbers in a photo montage. Officers
determined that Hatfield was a person of interest in the case. When presented
with a photo montage including Hatfield's picture, Boggs also identified Hatfield as
one of the men who robbed him.
Hatfield was apprehended in his vehicle, which was impounded and
searched. The vehicle contained a nine millimeter semi-automatic SIG Sauer
pistol and nine millimeter ammunition. Arresting officers also found nine millimeter
ammunition on Hatfield's person. When Hatfield was interviewed by detectives,
he admitted that the man in the video recording looked like him but denied that he
had committed the robbery. Hatfield was charged with burglary in the first degree,
robbery of Diaz in the first degree, robbery of Boggs in the first degree, and
unlawful possession of a firearm in the first degree.
Hatfield made a general motion in his trial brief to exclude all out-of-court
statements under the evidentiary rule prohibiting hearsay and the confrontation
clause. In his oral argument on the motion, he specified that he was seeking
exclusion of hearsay statements from Diaz and the three other residents of the
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Lake City house, none of whom were expected to testify at trial. The court
indicated that the ruling would be reserved for trial testimony.
Hatfield's trial brief included a separate "Motion to Exclude Hearsay by
Police Officers," which argued that "[a]ll statements by police officers regarding
why they did what they did" were irrelevant at trial. Hatfield argued orally that this
motion was "specifically geared toward law enforcement as to information they
may [have] receive[d] from . . . dispatch." He argued that the police officers'
responses to "[i]nformation they receive[d]from other witnesses that does not fall
within the hearsay exception, any information from in-car computers, from other
officers or from anybody else" were "no longer relevant" and were "hearsay, and
potentially [raised] confrontation issues as well." The remainder of the discussion
focused on the statements that the dispatcher had relayed to the responding police
officers on the night of the incident. The court denied the motion in part and
granted it in part as to statements provided by the dispatcher, noting that
"statements are not offered to prove the truth of the matter asserted, but
responding officers may testify to what was said to them to explain how and why
they acted in the manner they did," but reserved ruling as to information provided
by other witnesses.
Hatfield also moved in his trial brief to exclude the shell casing that Diaz
had turned over to investigating officers on the grounds that chain of custody had
not been established. In the concluding paragraph of his written argument, he
wrote:
In this case, the shell casing is not readily identifiable as [the]
shell casing from the alleged incident. Police did not recover the shell
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casing from the scene despite several officers being present. The
casing was not turned over the same date as the alleged incident but
four to five days later. Only Diaz can say the item is the same item
that he recovered at the house from the date of the incident.
Uncertainty of the shell casing's origin is a major issue. At the time
of this writing, the Defense has not interviewed Diaz and does not
expect him to testify at the trial. Any statements that Diaz recovered
the shell casing from the house and that the shell casing was
involved in the alleged charged offenses is hearsay and violates the
Defendant's Sixth Amendment Right to confront Diaz about these
statements.
During oral argument on the pretrial motions, Hatfield argued that the State
could not establish the chain of custody for the shell casing before it was delivered
to law enforcement. He made a brief reference to Diaz's statements, saying "[a]ny
statements that he made with regard to the shell casing I think would not be
admissible absent his testimony." The State's response and Hatfield's rebuttal
focused entirely on the chain of custody argument. The court denied the motion
to exclude the shell casing on the grounds that any uncertainty about the origin of
the shell casing went to the weight of the evidence rather than its admissibility.
The court did not mention any hearsay or confrontation grounds in its ruling.
At trial, Boggs identified Hatfield as the man who shot Diaz. Brown, who
had plead guilty to robbery in the first degree and burglary in the first degree, also
testified at Hatfield's trial and identified Hatfield as the gunman. The State called
Dillenburg as a witness but he took the stand and refused to testify. Diaz and the
other occupants of the house could not be located at the time of trial and so did
not testify.
Officer Jeffrey Mitchell testified that he and Detective Michael Magan had
met with Diaz five days after the incident at the house in Lake City to collect the
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DVR. He testified that Diaz gave them a shell casing that he said he had found
after the investigating officers left. Hatfield objected on hearsay grounds. The
State responded that the statement was not offered for the truth of the matter
asserted but to explain the officers' investigative actions. The court allowed the
evidence for that limited purpose and informed the jury that Diaz's statement was
not offered for the truth of the matter.
During Detective Magan's testimony, the State asked him if Diaz had turned
over anything other than the DVR on March 17. He responded that Diaz had given
them "a shell casing that he found in his bedroom." Hatfield did not object to this
testimony. When Detective Magan testified that officers found nine millimeter
bullets on Hatfield's person when they arrested him,the State asked whether there
was other nine millimeter ammunition associated with the investigation. Detective
Magan responded that the bullet recovered from the scene and the shell casing
that Diaz had "found in his room" were both nine millimeter ammunition. Hatfield
did not object to that testimony.
Dijana Coric, a forensic scientist in the Washington State Patrol Crime Lab's
firearm and toolmark section, testified that she performed a forensic analysis of a
firearm and shell casing associated with this case. On direct examination, she
testified at length to her training, education, and experience; to the theory offirearm
toolmark comparison; and to the method she employed in analyzing the evidence
in this case. She testified that she performed a side-by-side microscopic
comparison of the recovered shell casing and a test-fired casing from the SIG
Sauer pistol found in Hatfield's vehicle. She was able to match breechface marks,
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No. 77512-0-1/8
firing pin impression marks, and chamber marks. Coric concluded that the
recovered shell casing had been fired by the pistol from Hatfield's vehicle.
On cross-examination, Hatheld asked Coric whether she agreed that the
theory of identification that she utilized in her analysis of the shell casings "lacks
an objective standard." She responded, "It is subjective based on one's training
and experience." He continued to question her about the subjectivity of the
analysis and scholarly criticism to the theory of identification, resulting in the
following exchange:
Q: All right. And you get to decide whether or not two samples match
based upon a visual comparison; is that right?
A: Based on my training and experience, yes.
Q: Okay. And a match is determined if you decide there is significant
agreement between the two—two items, right?
A: Based on a theory of identification, yes.
Q: Right, but significant agreement is also not defined in the field?
A: Percentage-wise, no. Not with pattern matching.
Q: There are no set number of objective criteria that must be met in
order to form significant agreement.
A: Are you referring to how many points you're looking for before
you make a match?
Q: Well, I'll get to that in a second, but there are no set number of
objective criteria that you need to meet before you say that there's
significant agreement.
A: Well, the class have to be similar, and then there has to be
sufficient agreement between the individual.
Q: Again, that's a determination only you get to make, correct?
A: And my peer-reviewer.
Q: All right. There are no protocols or standards, and no set criteria
exists for declaring what a match is.
A: Well, there's the AFTE theory of identification.
Q: Other than the theory itself.
A: And significant research, yes, behind the validity—
Q: Okay.
A: —of it, yes.
Q: You would agree with me that the conclusion, whether or not
something matches, is based upon your competence and your
experience, correct?
A: Yes.
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No. 77512-0-1/9
Hatfield did not object to Coric's statement about her peer reviewer or move to
strike the testimony.
After Hatfield finished his cross-examination, the State noted outside the
presence of the jury that it had not inquired about the peer review process at the
Washington State Patrol Crime Lab on direct examination because it "could
potentially be a violation of[the] confrontation clause." However, the State argued
that Hatfield had opened the door to evidence about the peer review process with
his questioning. Hatfield disagreed, arguing that he was questioning Coric about
her conclusions alone, "not about whether or not any other individual did any
additional—reached the same conclusions based upon their independent
evaluation of that." He argued that he did not ask the witness whether anyone else
had evaluated the evidence, and she had simply volunteered the information that
a peer reviewer was involved. He contended that further testimony about the peer
reviewer would be hearsay and would violate the confrontation clause. The State
responded that the thrust of the cross-examination was that Coric "all on her own
just decides to call out a match or not. That is simply not true."
Coric provided an offer of proof that her work is subject to a technical peer
review process in which another trained firearm and toolmark examiner reviews
the same evidence and comes to an independent conclusion. Coric's report would
not issue unless she and the peer reviewer reached the same conclusion. The
court ruled that it would allow the State to inquire into peer review, but Hatfield
would also be allowed a fair amount of cross-examination as to the meaning of
that peer review. Hatfield noted a standing objection to any line of questioning
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No. 77512-0-1/10
related to peer review on the grounds that it was beyond the scope of cross-
examination and violated the confrontation clause.
On redirect examination, the State elicited testimony from Coric about the
technical peer review process. Coric identified the colleague who had performed
the technical review in this case and stated that he agreed with her conclusion. On
re-cross examination, Hatfield asked Coric whether her peer reviewer used the
same theory of identification that she relied on, and she responded that he did. He
elicited testimony that the reviewer was Coric's coworker and not a supervisor.
The jury found Hatfield guilty of burglary in the first degree and robbery in
the first degree. The jury also found by special verdict that Hatfield was armed
with a firearm at the time he committed both crimes. The State elected to dismiss
the charge of unlawful possession of a firearm in the first degree in light of the
jury's verdiots and in the administration of justice. The court found that the
evidence was insufficient for a rational trier of fact to find Hatfield guilty of count
three, the first degree robbery charge naming Boggs as the victim, and dismissed
the charge. The court found that Hatfield was a persistent offender as defined by
RCW 9.94A.030 and sentenced him to life in prison without the possibility of parole.
ANALYSIS
I. Preservation of Evidence
Hatfield contends that the trial court erred in denying his motion to dismiss
or, in the alternative, to exclude the video evidence because the police failed to
preserve the portion of the video from the basement security camera that depicted
Diaz using drugs. He argues that the failure to preserve the rest of the video
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No. 77512-0-1/11
violated his essential due process rights to fundamental fairness and a meaningful
opportunity to present a complete defense under the Fourteenth Amendment.1
We review a claimed violation of a defendant's constitutional right to due
process de novo. State v. Johnston, 143 Wash. App. 1, 11, 177 P.3d 1127 (2007).
To comply with the Fourteenth Amendment's guarantee of due process, the State
"has a duty to disclose material exculpatory evidence to the defense and a related
duty to preserve such evidence for use by the defense." State v. Wittenbarger, 124
Wash. 2d 467, 475, 880 P.2d 517 (1994)(citing Brady v. Maryland, 373 U.S. 83, 10
S. Ct. 1194, 10 L. Ed. 2d 215 (1963); California v. Trombetta, 467 U.S. 479, 104
S. Ct. 2528, 81 L. Ed. 2d 413 (1984)). If the State fails to preserve material
exculpatory evidence, the criminal charges must be dismissed. Id. "In order to be
considered 'material exculpatory evidence', the evidence must both possess an
exculpatory value that was apparent before it was destroyed and be of such a
nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means." Id. (citing Trombetta, 467 U.S. at 489).
If unpreserved evidence is not "material exculpatory evidence" but is
"potentially useful" to the defense, the failure to preserve constitutes a denial of
due process only if the defendant can show bad faith on the part of law
enforcement. Arizona v. Younciblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed.
2d 281 (1988). "The presence or absence of bad faith by the police for purposes
of the Due Process Clause must necessarily turn on the police's knowledge of the
1 Although Hatfield advanced several theories in support of his motion below, he assigns
error only to the denial of the motion to dismiss based on an alleged violation of his right to due
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No. 77512-0-1/12
exculpatory value of the evidence at the time it was lost or destroyed." Id. at 57,
n.*. The United States Supreme Court has been unwilling "to read the
'fundamental fairness' requirement of the Due Process Clause... as imposing on
the police an undifferentiated and absolute duty to retain and to preserve all
material that might be of conceivable evidentiary significance in a particular
prosecution." Id. at 58.
Diaz admitted to the police that the recording contained video of him using
narcotics. The officers who heard Diaz make this statement were available to
testify at trial and did in fact testify as to Diaz's admission. Hatfield argues that
Diaz's admission to police about what the video would show was not comparable
evidence "because visual evidence can be more persuasive than testimony."
Although video evidence may be more persuasive than testimony in many
instances, in this case,the statements of two police officers to whom Diaz admitted
using drugs were comparable to the unpreserved video evidence.
Hatfield also argues that the exculpatory value of the unpreserved video
evidence was apparent because it constituted impeachment evidence. Evidence
of drug use by a witness is admissible for impeachment purposes if there is "a
reasonable inference that the witness was under the influence of drugs either at
the time of the events in question, or at the time of testifying at trial." State v.
Tigano, 63 Wash. App. 336, 344, 818 P.2d 1369 (1991). Statements of a non-
testifying witness are subject to impeachment. ER 806. Hatfield does not provide
a citation to any authority stating that potential impeachment evidence possesses
apparent exculpatory value. "Where no authorities are cited in support of a
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proposition, the court is not required to search out authorities, but may assume
that counsel, after diligent search, has found none." DeHeer v. Seattle Post-
Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193 (1962). Hatfield has not shown
that the exculpatory value of the potential impeachment evidence was apparent to
law enforcement. Because he has not met either prong of the Wittenbarger test,
the unpreserved video evidence was not material exculpatory evidence.
Although the evidence was not materially exculpatory, it was potentially
useful to Hatfield as impeachment evidence. In response to the State's inquiry as
to whether the court was making a finding that the detective did not act in bad faith,
the court responded, "I do not find that the Detective acted in bad faith." This
statement is not unambiguously equivalent to a finding that the detective did not
act in bad faith, and written findings of fact on the motion to dismiss are not of
record with this court. However, the denial of the motion to dismiss implies a
finding that law enforcement did not act in bad faith, which we review for substantial
evidence. See State v. Ortiz, 119 Wash. 2d 294, 301-02, 831 P.2d 1060 (1992),
overruled on other grounds by State v. Condon, 182 Wash. 2d 307, 343 P.3d 357
(2015).
At the time the trial court considered the motion to dismiss, the court had
already heard testimony from the detective assigned to the case during a CrR 3.5
and 3.6 hearing. He testified that Diaz had been reluctant to turn over the DVR
containing the video of the incident to police because "there was surveillance video
on that DVR of him having sex with his girlfriend ... as well as narcotics use." The
detective testified that Diaz asked him to constrain his review of the video to the
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time frame of the incident. After he agreed, Diaz turned over the DVR and the
detective asked a Seattle Police Department video technician to download the
portion of the video in a one-hour time frame surrounding the incident.
Hatfield argued below that the detective's knowledge that the remainder of
the video contained evidence of Diaz's drug use was sufficient to establish bad
faith. He does not argue bad faith at all in his appellate briefing. Because Hatfield
has not established that the police knew of any exculpatory value of the evidence
when they failed to preserve the remainder of the video, he has not shown that
they acted in bad faith. The trial court did not err in denying the motion to dismiss.
II. Ineffective Assistance of Counsel
Next, Hatfield argues that his trial counsel provided him with ineffective
assistance by failing to argue that additional portions of Hatfield's interrogation
should be admitted under the rule of completeness.
Every criminal defendant is guaranteed the constitutional right to effective
assistance of counsel. Strickland v. Washington,466 U.S. 668,685-86, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wash. 2d 17, 32, 246 P.3d 1260
(2011). To establish a claim of ineffective assistance, the defendant must show
that his counsel's performance was deficient and that the deficient was prejudicial.
Strickland, 466 U.S. at 687. If either prong of the test is not satisfied, our inquiry
ends. State v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563(1996).
Deficient performance is that which falls below an objective standard of
reasonableness based on consideration of all the circumstances. State v.
McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). "Courts engage in a
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strong presumption counsel's representation was effective." Id. at 335. Matters
that can be characterized as legitimate trial strategy or tactics do not constitute
deficient performance. State v. KvIlo, 166 Wash. 2d 856, 863, 215 P.3d 177 (2009).
To satisfy the second portion of the Strickland test, a defendant must show
that there is a reasonable probability that the result of the trial would have been
different but for counsel's alleged error. 466 U.S. at 694. Although this standard
does not require a defendant to show that the action more likely than not altered
the outcome, "[t]he likelihood of a different result must be substantial, not just
conceivable." Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed.
2d 624 (2011).
The State offered a redacted version of Hatfield's recorded interview with
police that omitted references to prior convictions, prior police contact, and another
ongoing robbery investigation. The jury saw sections of Hatfield's interview with
police in which he admitted that the gunman in the security footage looked like him
and asked if they could work out a deal for reduced charges. The segments of the
video that were not shown to the jury included five more statements from Hatfield
that the robber in the video looked like him, accompanied by explicit statements
that he was not the man in the video.
Hatfield contends that his counsel was deficient in failing to argue for the
inclusion of these additional statements. However, Hatfield's trial counsel may
reasonably have concluded that Hatfield's repeated admissions that the man
looked like him would be more damaging than his explicit denial of identity would
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be helpful. Because this calculus could be characterized as a legitimate trial
strategy or tactic, counsel's performance was not deficient.
Hatfield argues that his trial counsel's alleged error was prejudicial because
allowing the statement that the perpetrator looked like him without the clarification
that it was not him undermined his defense of identity. He contends that the other
evidence of his guilt was not so overwhelming as to render this error trivial because
there were challenges to Boggs' and Brown's credibility and the expert's
conclusion tying the gun to the shell casing was subject to debate.
The State acknowledged in its closing argument that the major issue was
the identity of the shooter. The State argued that Hatfield's statement that the
person in the video looked like him and subsequent attempt to bargain with police
indicated that "[h]e knew he was caught." The State characterized this as an
"acknowledgement of his resemblance." In Hatfield's closing, his counsel agreed
that the primary issue was identification. He argued that the implication when
Hatfield said the person in the video looked like him was that "it's not him, but it
looks like him." Defense counsel argued that Hatfield offered to cut a deal with
police because he knew he would begin experiencing heroin withdrawal symptoms
soon.
It was clear throughout the trial that Hatfield's defense was based on
identity. The State did not argue that Hatfield's statement that the man in the video
looked like him amounted to a confession. Two witnesses identified Hatfield as
the shooter at trial. The jury viewed the video of the man wielding a gun during the
robbery and were able to decide for themselves whether that man in the video was
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Hatfield. Admission of Hatfield's clarifying statement in the recorded interrogation
that the man looked like him but was not him was not likely to have changed the
outcome of the trial. Because he cannot show deficient performance or prejudice,
Hatfield's claim of ineffective assistance of counsel fails.
Motion for Frye Hearing
Hatfield contends that the trial court erred in denying his request for a Frve2
hearing on ballistic identification because there is "significant dispute among
qualified experts in the scientific community about" the validity of the method used
to establish comparison.3 Hatfield devotes a significant portion of his briefing to
this issue, arguing that the 2008 and 2009 reports of the National Research
Council of the National Academy of Sciences (NAS) and the 2016 President's
Council of Advisors on Science and Technology(PCAST)report call the validity of
the science into question.
When ruling on Hatfield's motion for a Frye hearing, the trial court
recognized that Washington appellate courts had continued to approve of ballistics
identification evidence after the 2008 and 2009 NAS reports were published. The
court framed the relevant question as whether the 2016 PCAST report raised a
significant enough dispute as to the general acceptance of the evidence to
necessitate a Frye hearing for ballistics. The court found that it did not.
2 Frye v. United States, 293 F. 1013(D.C. Cir. 1923).
3 Although Hatfield's assignment of error includes both the trial court's denial of the motion
for a Frye hearing and admission of the evidence, Hatfield does not argue that the evidence should
not have been admitted even if a Frye hearing was not required. We decline to address this issue
in the absence of argument. See Palmer v. Jensen, 81 Wash. App. 148, 153, 913 P.2d 413(1996)
("Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.").
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Washington courts use the Frye test to evaluate scientific evidence. State
v. Gregory, 158 Wash. 2d 759, 829, 147 P.3d 1201 (2006), overruled on other
grounds by State v. W.R., Jr., 181 Wash. 2d 757, 336 P.3d 1134(2014). Under Frye,
scientific evidence is not admissible unless "[b]oth the scientific theory underlying
the evidence and the technique or methodology used to implement it" are generally
accepted in the relevant scientific community. Id. Although scientific opinion need
not be unanimous,the evidence may not be admitted if there is a significant dispute
among qualified scientists in the relevant community. Id. Once a particular
methodology has been generally accepted in the community, "application of the
science to a particular case is a matter of weight and admissibility under ER 702."
Id.
We review the trial court's determination of whether to hold a Frye hearing
de novo. Id. at 830. The Washington Supreme Court has remarked that:
Once this court has made a determination that the Frye test is
met as to a specific novel scientific theory or principle, trial courts can
generally rely upon that determination as settling such theory's
admissibility in future cases. However, trial courts must still
undertake the Frye analysis if one party produces new evidence
which seriously questions the continued general acceptance or lack
of acceptance as to that theory within the relevant scientific
community.
State v. Cauthron, 120 Wash. 2d 879, 888 n.3, 846 P.2d 502 (1993), overruled on
other grounds by State v. Buckner, 133 Wash. 2d 63, 941 P.2d 667(1997).
Haffield argues that "[t]here is no Washington precedent on whether ballistic
identification evidence is admissible under the Frye standard" and "no appellate
court anywhere in the country has addressed ballistic evidence under the Frye
standard in light of the newly minted PCAST report." However, after Hatfield
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No. 77512-0-1/19
submitted his briefing, we considered a nearly identical challenge to the validity of
ballistic identification methodology in State v. DeJesus. 7 Wash. App. 2d 849, 436
P.3d 834 (2019). In DeJesus, the challenged scientific evidence stemmed from a
Washington State Patrol Crime Laboratory analysts comparison of two spent shell
casings and conclusion that they were fired from the same gun. Id. at 858.
DeJesus argued that there was a "significant dispute among qualified scientists in
the relevant scientific community about the validity of ballistic identification
methodology." Id. at 860. He cited the 2008 and 2009 NAS reports and the 2016
PCAST report in support of his argument. Id. at 861. We rejected his contention,
finding that:
[T]he reports on which DeJesus relies do not affect the
general scientific acceptance of ballistic identification. Instead, the
problems they espouse bear on the question of reliability of the
individual test and tester at issue. These questions are then
considered by the trier of fact in assessing the weight to be given the
evidence.
Id. at 863-64. We also looked to other jurisdictions and concluded that [c]ourts
from around the country have universally held that toolmark analysis is generally
accepted." Id. at 865.
Because DeJesus considered the same challenges to the validity of the
evidence, we may rely on the previous judicial determination that this method of
ballistics identification satisfies the Frye test. The trial court did not err in denying
Hatfield's request for a Frye hearing on this evidence.
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No. 77512-0-1/20
IV. Admission of Out-of-Court Statements
Hatfield contends that the court violated his Sixth Amendment right to
confront witnesses against him by admitting statements of two non-testifying
witnesses at trial. He also contends that these statements constituted inadmissible
hearsay. We conclude that these constitutional errors were harmless beyond a
reasonable doubt.
A. Diaz Statement
Hatfield first argues that the court erred in admitting Diaz's out-of-court
statement to police officers that he had found the shell casing in the basement.
1. Hearsay
Hatfield contends that Diaz's statement regarding the shell casing was
inadmissible hearsay. "Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." ER 801(c). Hearsay evidence is not admissible
unless an exception or exclusion applies. ER 802. "A statement is not hearsay if
it is used only to show the effect on the listener, without regard to the truth of the
statement." State v. Edwards, 131 Wash. App. 611, 614, 128 P.3d 631 (2006). We
review de novo a trial court's legal determination of whether a statement is
hearsay. State v. Gonzalez-Gonzalez, 193 Wash. App. 683, 688-89, 370 P.3d 989
(2016).
The State argues that the statement was not hearsay because it was not
offered for its truth but to prove "why police accepted the casing from [Diaz] and
had it analyzed." "Out-of-court declarations made to a law enforcement officer may
- 20 -
No. 77512-0-1/21
be admitted to demonstrate the officer's or the declarant's state of mind only if their
state of mind is relevant to a material issue in the case; otherwise, such
declarations are hearsay." State v. Johnson, 61 Wash. App. 539, 545, 811 P.2d 687
(1991). "[1]f necessary at trial for the officer to relate historical facts about the case,
it would be sufficient for him to report he acted upon 'information received." State
v. Aaron, 57 Wash. App. 277, 281, 787 P.2d 949 (1990) (quoting E. Cleary,
McCormick on Evidence § 249, at 733(3d ed. 1984)).
The State does not specifically explain why the officers' state of mind was
relevant to a material issue in the case, nor is the reason evident from the record.
The State argues that the officers would have had no clear reason to analyze the
shell casing given to them by Diaz without his statement explaining where he had
found the object. This is not persuasive. Even if a person who had recently been
shot in his home wordlessly handed a shell casing to officers investigating the
shooting, it strains credulity to suggest that the officers would disregard the object.
Because the investigating officers' state of mind was not relevant to a material
issue in this case, Diaz's statement that he found the shell casing in the basement
was hearsay.
2. Confrontation Clause
Hatfield also contends that the court violated his Sixth Amendment right to
confront witnesses against him by admitting Diaz's statement about the origin of
the shell casing at trial. The State responds that Hatfield failed to object to the
testimony on confrontation clause grounds and therefore has waived review of this
issue. Hatfield argues that his pretrial motions and hearsay objection at trial were
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No. 77512-0-1/22
sufficient to preserve the alleged confrontation error for review or, in the alternative,
that this is a manifest constitutional error that may be raised for the first time on
appeal.
As a preliminary note, since the completion of the briefing in this case, the
Washington Supreme Court has held that a defendant must assert his right to
confrontation at trial to preserve the challenge for appeal. State v. Burns, 193
Wash. 2d 190, 210-11, 438 P.3d 1183 (2019). "Where a defendant does not object
at trial, 'nothing the trial court does or fails to do is a denial of the right, and if there
is no denial of a right, there is no error by the trial court, manifest or otherwise, that
an appellate court can review." Id. at 211 (quoting State v. Fraser, 170 Wash. App.
13, 25-26, 282 P.3d 152 (2012)). Therefore, the alleged confrontation error may
not be raised for the first time on appeal.
Generally, if a judge makes a definite, final ruling on a motion in limine, then
the losing party is deemed to have a standing objection, and further objection is
not required to preserve the error. State v. Powell, 126 Wash. 2d 244, 256-57, 893
P.2d 615(1995). When a trial judge reserves the ruling, "'any error in admitting or
excluding evidence is waived unless the trial court is given an opportunity to
reconsider its ruling." Id. at 257 (quoting State v. Carlson, 61 Wash. App. 865, 875,
812 P.2d 536 (1991)). In that instance, the party is required to object again during
trial to preserve the issue for appeal. Id. The Washington Supreme Court has
found that a hearsay objection was preserved for appeal when the appellant
"clearly raised the hearsay argument" in a pretrial motion to exclude evidence "and
- 22 -
No. 77512-0-1/23
gave the trial court an opportunity to address it." In re Det. of Coe, 175 Wash. 2d 482,
504, 286 P.3d 29(2012).
Haffield included a confrontation objection in his motion to exclude the shell
casing, which was denied. The denial was a final ruling, so Hatfield is deemed to
have a standing objection to the evidence of the shell casing and was not required
to object further to preserve the issue for appeal. Because Hatfield raised the
confrontation issue in his pretrial motions, we will address the merits of his
argument.
The confrontation clause of the Sixth Amendment bars admission of
testimonial statements of a witness who does not appear at trial, unless the witness
is unavailable to testify and the defendant had a prior opportunity for cross-
examination. Crawford v. Washington, 541 U.S. 36, 54-55, 124 S. Ct. 1354, 158
L. Ed. 2d 177(2004). Testimonial statements include those that are the functional
equivalent of in-court testimony or that "were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial." Id. at 52.
When the out-of-court statements were made to police, the primary purpose
of the contact determines whether or not the statements were testimonial. Davis v.
Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
Statements are nontestimonial if the "primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency" but testimonial if "the
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution." Id. This primary purpose test applies equally
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No. 77512-0-1/24
to statements made during formal interrogation and to spontaneous statements,
"volunteered testimony[,] or answers to open-ended questions." State v. Reed, 168
Wash. App. 553, 569 n.9, 278 P.3d 203(2012)(quoting Davis, 547 U.S. at 822 n.1).
Diaz did not appear at trial and was not cross-examined by Hatfield at any
point. Although there was no formal interrogation in progress, Diaz volunteered
the statement that he had found the shell casing in the basement to officers
investigating the robbery and shooting days after it occurred. There was no
ongoing emergency at that time, and the statement was testimonial. The trial
court's admission of Diaz's out-of-court statement violated Hatfield's constitutional
right to confrontation. However, as discussed below, this error was harmless
beyond a reasonable doubt.
B. Expert Statement
Hatfield also contends that the court's admission of a non-testifying expert's
conclusion that the shell casing was fired from the gun found in Hatfield's vehicle
constituted inadmissible hearsay and violated his Sixth Amendment right to
confrontation. The State argues that Hatfield elicited the evidence that the
testifying expert's conclusion was peer-reviewed during cross-examination, which
opened the door to the witness's explanation of the peer review process during
redirect examination.
1. Open Door Doctrine
Appellate courts review a trial court's decision to allow evidence under the
open door doctrine for abuse of discretion. State v. Fisher, 165 Wash. 2d 727, 750,
202 P.3d 937 (2009). A trial court abuses its discretion when "no reasonable
-24 -
No. 77512-0-1/25
person would have decided the issue as the trial court did." State v. Russell, 125
Wash. 2d 24, 78, 882 P.2d 747(1994).
The State first argues that "[a]ny error in the witness's explanation of [the
evidence elicited during cross-examination that the expert's conclusion was peer-
reviewed] during re-direct examination was invited by Hatfield when he introduced
the topic." The State cites State v. Henderson for the proposition that a party may
not set up error at trial and then claim to be entitled to reversal based on that error
on appeal. 114 Wash. 2d 867, 870, 792 P.2d 514 (1990)(quoting State v. Pam, 101
Wash. 2d 507, 511, 680 P.2d 762 (1984), overruled by State v. Olson, 126 Wash. 2d
315, 893 P.2d 629 (1995). In Henderson, the defendant sought reversal for
instructional error after the court gave jury instructions that the defendant himself
had proposed. Id. at 868. If Hatfield were challenging the admission of Coric's first
statement about peer review that he elicited on cross-examination, then the invited
error doctrine might bar such a challenge. However, because he is challenging
the later admission of the peer reviewer's conclusion, the invited error doctrine
does not squarely apply.
The State also argues that Hatfield opened the door to the challenged
evidence because he first raised the subject on cross-examination. Haffield
argues that the elicited testimony did not support the introduction of hearsay
evidence that violated his right to confrontation and that "[t]he open door doctrine
is not a free pass to get anything into evidence."
When a party opens up a subject of inquiry on direct or cross-examination,
the rules permit cross-examination or redirect examination within the scope of the
- 25 -
No. 77512-0-1/26
new subject matter. State v. Gefeller, 76 Wn.2d 449,455,458 P.2d 17(1969). "To
close the door after receiving only a part of the evidence not only leaves the matter
suspended in air at a point markedly advantageous to the party who opened the
door, but might well limit the proof to half-truths." Id. Evidence offered to explain,
clarify, or contradict other evidence is subject to exclusion if it is irrelevant or if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. ER 402; ER 403; Fisher, 165 Wash. 2d
at 750.
If a party elicits testimony that would otherwise be inadmissible, the party
opens the door to relevant rebuttal evidence that would also otherwise be
inadmissible, "even if constitutionally protected." State v. Hartzell, 156 Wash. App.
918, 934, 237 P.3d 928 (2010). However, the introduction of admissible evidence
does not open the door to rebuttal by way of inadmissible evidence. In this
instance, the open door doctrine "must give way to constitutional concerns such
as the right to a fair trial." State v. Jones, 144 Wash. App. 284, 298, 183 P.3d 307
(2008). Even if a defendant opens the door "to evidence or examination of a
particular subject at trial, the prosecutor is not absolved of her ethical duty to
ensure a fair trial by presenting only competent evidence on this subject." Id.
(emphasis omitted).
The simple fact elicited by Hatfield that Coric's colleague also analyzed the
evidence does not appear to be inadmissible. This detail may have raised a
question in the minds of the jury requiring explanation of the Washington State
Patrol Crime Lab's peer review policy. Because Haffield raised this new subject
'
- 26 -
No. 77512-0-1/27
for the first time on cross-examination, the trial court's decision to allow the State
to present evidence about the peer review process in rebuttal does not appear to
be an abuse of discretion.
2. Scope of Examination
We next consider the scope of permissible evidence to which this statement
opened the door.4 Because the elicited statement appears to be admissible, the
State was only permitted to elicit otherwise admissible evidence to explain or clarify
this testimony on rebuttal.
The peer review policy itself was likely admissible as rebuttal. However,
Hatfield argues that the peer reviewer's conclusion was inadmissible hearsay. The
peer reviewer's conclusion was an out-of-court statement admitted for its truth, and
therefore constituted hearsay. The State did not argue below, nor does it argue
on appeal, that this evidence would have been admissible if Hatfield had not
opened the door. Although the elicited testimony opened the door to rebuttal
regarding the admissible evidence of the peer review policy, it did not open the
door to the inadmissible testimony of the peer reviewer's conclusion. Because the
State exceeded the scope of permissible redirect examination, the court abused
its discretion in allowing testimony as to the peer reviewer's out-of-court statement
4 The State argues in passing that Hatfield has not preserved his objection to the scope of
the State's redirect examination. Because Hatfield lodged a standing objection to the peer review
evidence on the grounds that it was beyond the scope of cross-examination, he was not required
to object again when the testimony was offered to preserve the issue for appeal. See Powell, 126
Wash. 2d at 256-5
-27 -
No. 77512-0-1/28
3. Confrontation Clause
Hatfield also argues that Coric's testimony about the peer reviewer's
conclusion violated his constitutional right to confront witnesses against him. An
expert comes within the scope of the confrontation clause when he makes a
statement of fact that tends to inculpate the accused. State v. Lui, 179 Wash. 2d 457,
462, 315 P.3d 493 (2014). A testifying expert may express an opinion based on
the technical, nontestimonial work of non-testifying laboratory technicians, but
"may not parrot the conclusions" of another non-testifying expert. Id. at 484.
Here, the peer reviewer performed the same analysis as Coric and reached
an independent conclusion. This was not a laboratory technician performing a
purely technical task. His conclusion that the shell casing was fired by the gun
found in Hatfield's vehicle was a statement of fact that tended to inculpate Hatfield.
Because he did not testify at trial and was not subject to cross-examination,
admitting his conclusion violated Hatfield's right to confrontation.
C. Harmless Error
The State contends that any error in admitting the out-of-court statements
was harmless because "the other evidence that Hatfield was the robber who shot
Diaz was overwhelming." Confrontation errors require reversal unless the State
demonstrates beyond a reasonable doubt that the error did not contribute to the
verdict. State v. Jasper, 174 Wash. 2d 96, 117, 271 P.3d 876 (2012). An error in
admission of evidence is not of constitutional magnitude and is "not prejudicial
unless, within reasonable probabilities, the outcome of the trial would have been
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No. 77512-0-1/29
materially affected had the error not occurred." State v. Tharp, 96 Wash. 2d 591, 599,
637 P.2d 961 (1981).
In light of the other evidence, especially the video evidence, these errors
were harmless beyond a reasonable doubt. The video from the basement security
camera shows the gunman's face from multiple angles, including directly facing
the camera and in profile. The jury was able to compare these images to the
videos of Hatfield during his interview with detectives and during the search of his
person after his arrest three weeks later, as well as his appearance in the
courtroom. At trial, Brown, another participant in the robbery, identified Hatfield as
the gunman during the robbery. Although he had not met the gunman before that
night, Brown had substantial opportunity to observe him when driving to the house,
in the basement as the robbery occurred, when driving away from the scene, and
when dividing up the stolen property. His identification was not challenged on
cross-examination.
Boggs, one of the victims of the robbery, also identified Hatheld as the
gunman at trial. He had also identified Hatfield's photograph in a photo montage
twelve days after the robbery. On the night of the robbery, Boggs had the
opportunity to observe the gunman when discussing the drug transaction upstairs
and when the robbery was occurring in the basement. Boggs is looking at the
gunman for the majority of the video showing a portion of the robbery.
Even if Diaz's statement that he had found the shell casing in the basement
and the peer reviewer's conclusion that the shell casing was fired by the gun found
in Hatfield's vehicle had been properly excluded, the other evidence of Hatheld's
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No. 77512-0-1/30
guilt was overwhelming. The confrontation errors were harmless beyond a
reasonable doubt.
V. Unanimity
Hatfield contends that his right to a unanimous jury verdict was violated in
two ways. First, he argues that the State produced insufficient evidence to support
one of the alternative means of committing burglary. Second, he argues that the
State failed to specify the victim assaulted during the burglary, and the jury should
have received a unanimity instruction.
Criminal defendants have the right to a unanimous jury verdict in
Washington. Const. art. I, § 21. Because this issue affects a defendant's
fundamental constitutional rights, it may be raised for the first time on appeal. State
v. Armstrong, 188 Wash. 2d 333, 339, 394 P.3d 373(2017). We review constitutional
issues de novo. Id.
A. Means for Committing Burglary
Hatfield contends that the State did not elect to rely on one of the two
alternative means for committing burglary, and he was therefore denied his right
to a unanimous jury verdict. The State responds that entering and remaining are
not alternative means of committing burglary and, even if they were, that there was
substantial evidence of both means.
"An alternative means crime is one where the legislature has provided that
the State may prove the proscribed criminal conduct in a variety of ways." Id. at
340. Contrary to the State's position, we have consistently treated entering
unlawfully and remaining unlawfully as alternative means of committing burglary.
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No. 77512-0-1/31
See, e.g., State v. Allen, 127 Wash. App. 125, 110 P.3d 849 (2005); State v.
Gonzalez, 133 Wash. App. 236, 148 P.3d 1046 (2006); State v. Sony, 184 Wash. App.
496, 337 P.3d 397 (2014).
Where alternative means of committing a charged crime are alleged and
substantial evidence supports both alternative means submitted to the jury,
unanimity as to the means is not required. Armstrong, 188 Wash. 2d at 340. When
"constitutionally sufficient evidence supports both charged alternatives, the lack of
jury unanimity does not entail the danger. . . that any of the jury members may
have based their finding of guilt on an invalid ground." State v. Whitney, 108 Wash. 2d
506, 511, 739 P.2d 1150 (1987). The evidence is constitutionally sufficient if,
viewed in the light most favorable to the State, a rational trier of fact would be
justified in finding guilt beyond a reasonable doubt. Armstrong, 188 Wash. 2d at 341.
However, "[w]hen one alternative means of committing a crime has evidentiary
support and another does not, courts may not assume the jury relied unanimously
on the supported means." State v. Woodlyn, 188 Wash. 2d 157, 162, 392 P.3d 1062
(2017).
Although there is no dispute that the State produced sufficient evidence of
unlawful remaining, Hatfield contends that the State did not produce sufficient
evidence to show that he entered a building unlawfully. The jury was instructed
that:
A person commits the crime of burglary in the first degree
when he or she enters or remains unlawfully in a building with intent
to commit a crime against a person or property therein, and if, in
entering or while in the building or in immediate flight therefrom, that
person is armed with a deadly weapon or assaults any person.
- 31 -
No. 77512-0-1/32
The jury was also instructed that "[b]ui!ding, in addition to its ordinary meaning,
includes any dwelling." "[E]ach unit of a building consisting of two or more units
separately secured or occupied is a separate building." RCW 9A.04.110(5). "In
the situation involving the multi-unit structure, each tenant has a privacy interest in
his or her room or apartment, and that interest is separate from the interests of
other tenants. Thus, it makes sense to characterize the burglarized rooms as
separate 'buildings." State v. Thompson, 71 Wash. App. 634, 645, 861 P.2d 492
(1993).
Viewed in the light most favorable to the State, a rational finder of fact could
find that Hatfield unlawfully entered a building beyond a reasonable doubt. Boggs
testified that he sublet the entire basement of the house to Diaz and his girlfriend.
The basement was a separately-occupied dwelling from the upstairs and therefore
a separate building. Boggs also testified that guests were not allowed in the
basement as a rule, especially when there was a drug transaction going on. On
the night of the incident, Boggs testified that he told the three men to wait upstairs
while he retrieved the drugs. Because Hatfield did not have permission to enter the
basement and the basement was a separate dwelling from the upstairs, sufficient
evidence supports the alternative means of unlawful entry. Hatfield's right to a
unanimous jury verdict was not violated.
B. Identity of Victim
Hatfield also contends that his right to jury unanimity was violated because
the prosecutor did not specify which victim was assaulted during the burglary and
the jury did not receive a unanimity instruction as required by State v. Petrich. 101
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No. 77512-0-1/33
Wn.2d 566, 572, 683 P.2d 173 (1984), overruled on other grounds by State v.
Kitchen, 110 Wash. 2d 403, 756 P.2d 105(1988). The State responds that unanimity
was not required as to the person assaulted because there was sufficient evidence
that both men were assaulted.
The information charged Hatfield with burglary in the first degree, alleging
that "the defendant and another participant in the crime were armed with a deadly
weapon and did assault a person, to-wit; Adrien William Diaz and Kevin Dale
Boggs." The jury was instructed that, to convict Hatfield of burglary, it must find
"[ghat in so entering or while in the building or in immediate flight from the building
the defendant was armed with a deadly weapon or assaulted a person." The State
concedes that it did not elect to rely on the assault of only one victim. The court
did not instruct the jury that it needed to agree unanimously on which person was
assaulted.
Hatfield argues that this is a multiple acts case, while the State contends
that this is another alternative means situation. "When the prosecutor presents
evidence of several acts which could form the basis of one count charged, either
the State must tell the jury which act to rely on in its deliberations or the court must
instruct the jury to agree on a specified criminal act." State v. Crane, 116 Wash. 2d
315, 325, 804 P.2d 10(1991), overruled on other grounds by In re Pers. Restraint
of Andress, 147 Wash. 2d 602, 56 P.3d 981 (2002).
Our decision in State v. Williams is factually similar. 136 Wash. App. 486, 150
P.3d 111 (2007). In Williams, the defendant was charged with burglary in the first
degree, and the information alleged that "in the course of the burglary, Williams
- 33 -
No. 77512-0-1/34
assaulted 'a person, to wit: Makeba Otis and Leslie Johnson.'" Id. at 491. The jury
was instructed that, to convict Williams of burglary in the first degree, it must find
beyond a reasonable doubt "[t]hat in so entering or while in the building or in
immediate flight from the building the defendant or an accomplice in the crime
charged assaulted a person." Id. at 492 (emphasis omitted). The court did not
instruct the jury that it must unanimously agree on the person who Williams
assaulted to convict him of the charged crime. Id.
In Williams, we reasoned that "two distinct criminal acts were alleged: the
assault against Johnson and the assault against Otis. Either criminal act was
sufficient to satisfy the assault element of first degree burglary." Id. at 496-97. We
explicitly rejected the State's contention that the two assaults were alternative
means of committing the charged crime:
Under the statute, burglary in the first degree may be
committed in two different ways, either by being armed with a deadly
weapon, or by assaulting any person. Accordingly, these two modes
of commission constitute alternative means by which the crime of
burglary may be proved. In contrast, the two assaults alleged in this
case constitute only one mode of commission under the statute, i.e.
assault.
Id. at 498. Because the State had not specifically elected to rely on one assault,
we found that a unanimity instruction was required. Id.
The State argues that Armstrong implicitly abrogates the analysis in
Williams. In Armstrong, the defendant was charged with violation of a court order
by either assault or two prior convictions for violation of a court order. 188 Wash. 2d
at 338. Only one victim was alleged. Id. at 336. Although the dissent argued that
an "alternative acts" or "alternative crimes" analysis would have been more
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No. 77512-0-1/35
appropriate, the majority considered the case to be "a straightforward application"
of the alternative means analysis. Id. at 347,349(Gordon McCloud, J., dissenting).
Therefore, Armstrong does not appear to affect the analysis in Williams.
Under Williams, Hatfield was entitled to a unanimity instruction because the
State alleged two distinct criminal acts to support one means of committing first
degree burglary.
C. Harmless Error
The Washington Supreme Court clarified the harmless error analysis for
lack of unanimity in multiple acts cases in Kitchen:
[I]n multiple acts cases, when the State fails to elect which
incident it relies upon for the conviction or the trial court fails to
instruct the jury that all jurors must agree that the same underlying
criminal act has been proved beyond a reasonable doubt, the error
will be deemed harmless only if no rational trier of fact could have
entertained a reasonable doubt that each incident established the
crime beyond a reasonable doubt.
110 Wash. 2d at 405-06. Because this is constitutional error, the error is presumed
prejudicial and the conviction will not be upheld unless it is harmless beyond a
reasonable doubt. Id. at 411-12.
The jury was instructed that:
An assault is an intentional touching or striking or shooting of
another person that is harmful or offensive regardless of whether any
physical injury is done to the person. .
An assault is also an act done with the intent to create in
another apprehension and fear of bodily injury, and which in fact
creates in another a reasonable apprehension and imminent fear of
bodily injury even though the actor did not actually intend to inflict
bodily injury.
Hatfield concedes that there was no reasonable doubt that Diaz was assaulted
because he was shot. However, he argues that the evidence does not show that
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No. 77512-0-1/36
Boggs was assaulted beyond a reasonable doubt. Hatfield concedes that "[t]he
video shows the man with the gun made brief physical contact with Boggs" and
"pick[ed] up a pillow and put the gun in it at one point" but argues that this is
insufficient to show that Boggs was assaulted. The evidence does not support this
characterization of the encounter. The video showed that the gunman made
intentional physical contact with Boggs, shoving him three times. This contact was
offensive in its own right, but particularly so because the assailant was holding a
gun at the time.
The video also shows the gunman intentionally putting a pillow over the
muzzle of the gun, presumably to convey an intent to silence a shot. Boggs
testified that he believed he was going to be shot when the gunman covered the
muzzle of the gun with the pillow and that he was panicking. This fear was
reasonable given the fact that he was being robbed. The evidence established
that Boggs was assaulted beyond a reasonable doubt, and no rational tier of fact
could have concluded otherwise. The error was harmless.
VI. Eighth Amendment
In a supplemental assignment of error, Hatfield contends that his sentence
constituted cruel and unusual punishment in violation of the Eighth Amendment of
the United States Constitution and Article 1, Section 14 of the Washington State
Constitution because his life sentence under the Persistent Offender
Accountability Act(POAA)5 was based in part on a strike offense committed when
he was a youthful adult. Hatfield argues that the sentencing court should have
5 Chapter 9.94A.570 RCW.
- 36 -
No. 77512-0-1/37
been given discretion to consider the characteristics of youth that persist when a
defendant is 24 years old, as Hatfield was at the time he committed his first strike
offense, when deciding whether to impose a life sentence. Appellate courts
consider constitutional challenges to sentencing de novo. State v. Cubias, 155
Wash. 2d 549, 552, 120 P.3d 929 (2005).
The Washington State Supreme Court considered this precise issue very
recently in State v. Moretti. 193 Wash. 2d 809, 446 P.3d 609, 613(2019). The three
consolidated cases "each ask[ed] whether it is constitutional to apply the POAA to
people who were in their 30s or 40s when they committed their third strike but were
young adults when they committed their first strike." Id. at 814. The defendants in
Moretti were 19 to 20 years old when they committed their first strike offenses. Id.
at 814-15, 817. The court held that Article I, Section 14 of the Washington
Constitution did not forbid mandatory sentences of life without the possibility of
parole under the POAA in this circumstance. Id. at 818-19. Because Article I,
Section 14 offers greater protection to recidivists and juveniles than the federal
constitution, the court did not reach the petitioners' argument that the punishment
was cruel and unusual under the Eighth Amendment to the United States
Constitution. Id. at 819.
Hatfield committed his first strike offense when he was 24 years old and
committed the offenses at issue in this case when he was in his 50s. Although
Hatfield was a youthful adult when he committed his first strike offense, Moretti
makes clear that the imposition of a life sentence under the POAA was
constitutional.
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No. 77512-0-1/38
VII. Cumulative Error
Hatfield contends that the cumulative effect of the errors alleged above
deprived him of his constitutional right to a fair trial. "The accumulation of errors
may deny the defendant a fair trial and therefore warrant reversal even where each
error standing alone would not." State v. Davis, 175 Wash. 2d 287, 345, 290 P.3d 43
(2012), abrogated on other grounds by State v. Gregory, 192 Wash. 2d 1,427 P.3d
621 (2018). However, when there is overwhelming evidence of the defendant's
guilt, cumulative errors do not require reversal. In re Pers. Restraint of Cross, 180
Wash. 2d 664, 691, 327 P.3d 660 (2014), abrogated on other grounds by Gregory,
192 Wash. 2d 1 (2018). A defendant has the right to a fair trial, not a perfect one. In
re Pers. Restraint of Elmore, 162 Wash. 2d 236, 267, 172 P.3d 335 (2007).
Although a number of errors occurred in this case, Hatfield was not denied
his right to a fair trial. The evidence of Hatfield's guilt was overwhelming, as
described above, and reversal is not required.
VIII. Statement of Additional Grounds
Hatfield assigns error to a number of evidentiary rulings in his statements
of additional grounds for review. He also contends that his trial counsel's failure
to object to certain challenged statements constituted ineffective assistance and
that the circumstances surrounding Dillenburg's testimony infringed on his rights.
A. Admission of 911 Call
Hatfield contends that the statements made to the dispatcher in the 911 call
constituted inadmissible hearsay and violated his right to confrontation.
- 38 -
No. 77512-0-1/39
Hatfield lodged a general pretrial objection to exclude out-of-court
statements on hearsay and confrontation grounds. The State identified the 911
call as evidence that it intended to offer on the theory that the statements fell into
the exceptions to the hearsay rule for excited utterances and present sense
impressions. At that point, Haffield moved to exclude Diaz and the other residents
of the house as witnesses. The court reserved ruling on both the motion to exclude
the witnesses and the objection to out-of-court statements. During Boggs'
testimony, the State moved to admit the recording of the 911 call. Hatheld stated
that he had no objection. The court granted the State's motion to publish the
exhibit to the jury, and the State played the recording in open court.
As stated above, when a trial judge rules that further objections at trial are
required or makes a tentative ruling on a motion in limine, such as reserving the
ruling, "any error in admitting or excluding evidence is waived unless the trial court
is given an opportunity to reconsider its ruling." Powell, 126 Wash. 2d at 256-57
(quoting Carlson, 61 Wash. App. at 875). In that instance, the party is required to
object again during trial to preserve the issue for appeal. Id. at 257. Because the
court reserved ruling on this issue and Hatfield voiced no objection when the
evidence was offered, he has not preserved his objection for review. Also, Haffield
may not assert a confrontation challenge to these statements for the first time on
appeal. See Burns, 193 Wash. 2d at 210-11.
B. Ineffective Assistance of Counsel
Hatfield also contends that his trial counsel provided ineffective assistance
when he failed to object to the 911 call on hearsay and confrontation grounds.
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Again, as explained above, matters that can be characterized as legitimate
trial strategy or tactics do not constitute deficient performance. KvIlo, 166 Wash. 2d
at 863. "The decision of when or whether to object is a classic example of trial
tactics. Only in egregious circumstances, on testimony central to the State's case,
will the failure to object constitute incompetence of counsel justifying reversal."
State v. Madison,53 Wn. App. 754, 763,770 P.2d 662(1989). The failure to object
was not an egregious error and the challenged statements were not central to the
State's case. Because Hatfield cannot show that his counsel's performance was
deficient, his claim of ineffective assistance fails.
C. Dillenburg Statements
Hatfield contends that the court erred in admitting Brown's testimony
regarding Dillenburg's out-of-court statements under the co-conspirator exception
to the rule against hearsay. He argues that this rule "specifically applies only to
conspiracy[cases] and [co-conspirators], not[cases] prosecuted under a theory of
accomplice liability where a co-defendant classified as an accomplice [refuses] to
testify."
At trial, the State asked Brown about Dillenburg's statements made while
the three men were driving to the house before the robbery and away from the
house afterward. Hatfield objected on hearsay grounds, and the State responded
that the co-conspirator exception applied because they were statements made in
furtherance of a conspiracy. The court overruled the objections.
A statement by a co-conspirator of a party during the course and in
furtherance of a conspiracy is not hearsay if offered against the party. ER
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801(d)(2)(v). The co-conspirator exception to the hearsay rule applies even if the
crime of conspiracy is not charged. State v. Dictado, 102 Wash. 2d 277, 282-83,687
P.2d 172(1984).
On this issue, Hatfield's argument is clear: the co-conspirator exception did
not apply because he was not charged with conspiracy. Washington case law
indicates otherwise. The court did not err in admitting the evidence.
D. Dillenburg Testimony
Finally, Hatfield contends that "[i]t is reversible error to permit the
prosecution to ask suggestive question[s] to the defendant's accomplice to
provoke the accomplice to claim his privilege against self-incrimination in the
presence of the jury." Although Hatfield clearly takes exception to the
circumstances surrounding Dillenburg's refusal to testify, the grounds for his
objection are unclear. He mentions misconduct, the right to confrontation, the right
to due process, and ER 613 as possible bases for reversal.
Hatfield's contention that "the prosecutor knew that Dillenburg probably was
not going to testify [because] Dillenburg wanted to renegotiate the deal that he
struck with the State" and called him as a witness to provoke him to claim his
privilege against self-incrimination in the presence of the jury is not supported by
the record before this court. If Hatfield "wishes a reviewing court to consider
matters outside the record, a personal restraint petition is the appropriate vehicle
for bringing those matters before the court." McFarland, 127 Wash. 2d at 338.
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No. 77512-0-1/42
Because Hatfield does not adequately inform the court of the alleged errors
stemming from Dillenburg's refusal to testify, we decline to consider this issue. See
RAP 10.10(c).
Affirmed.
WE CONCUR:
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