State Of Washington v. Adem Gerzic ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73242-1-1
Respondent,
DIVISION ONE
v.
ADEM GERZIC, UNPUBLISHED OPINION
Appellant. FILED: March 7, 2016
Becker, J. — On the night of March 4, 2014, CC called 911 and reported
that her boyfriend, appellant Adem Gerzic, was threatening to shoot and kill her if
she ended their relationship. When police responded, CC told Officer Colin
Cufley that Gerzic had previously sent her threatening text messages. She
showed him these messages on her cell phone. Gerzic was arrested and
charged with one count of felony harassment-domestic violence.
CC failed to appear at Gerzic's trial despite the fact that the court issued a
material witness warrant. The State entered into evidence a redacted transcript
of CC's 911 call and photographs of the text messages that CC showed Officer
Cufley. Gerzic was convicted as charged. He appeals.
CONFRONTATION CLAUSE
Gerzic first argues that his right to confrontation was denied when a
redacted recording and transcript of CC's 911 call were admitted into evidence.
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He contends that some of CC's statements during the 911 call are testimonial
and should have been excluded. Our review is de novo. State v. Mason. 160
Wn.2d 910, 922, 162 P.3d 396 (2007). cert, denied. 553 U.S. 1035 (2008).
Under the Sixth Amendment, a criminal defendant "shall enjoy the right. . .
to be confronted with the witnesses against him." U.S. Const, amend. VI. The
confrontation clause bars the admission of testimonial statements, with certain
exceptions not relevant here. Crawford v. Washington. 541 U.S. 36, 53-54, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The United States Supreme Court has adopted the "primary purpose" test
to determine whether a statement is testimonial. Under this test:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primarypurpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Davis v. Washington. 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224(2006) (emphasis added).
The Washington Supreme Court has drawn from Davis four factors to
determine whether the "primary purpose" of police interrogation is to enable
assistance to meet an ongoing emergency:
(1) Was the speaker speaking about current events as they were
actually occurring, requiring police assistance, or was he or she
describing past events? The amount of time that has elapsed (if
any) is relevant. (2) Would a "reasonable listener" conclude that
the speaker was facing an ongoing emergency that required help?
A plain call for help against a bona fide physical threat is a clear
example where a reasonable listener would recognize that the
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speaker was facing such an emergency. (3) What was the nature
of what was asked and answered? Do the questions and answers
show, when viewed objectively, that the elicited statements were
necessary to resolve the present emergency or do they show,
instead, what had happened in the past? For example, a 911
operator's effort to establish the identity of an assailant's name so
that officers might know whether they would be encountering a
violent felon would indicate the elicited statements were
nontestimonial. (4) What was the level of formality of the
interrogation? The greater the formality, the more likely the
statement was testimonial. For example, was the caller frantic and
in an environment that was not tranquil or safe?
State v. Koslowski. 166 Wn.2d 409, 418-19, 209 P.3d 479 (2009) (footnote
omitted).
Because this is a domestic violence case, we focus on the threat to the
victim and assess the ongoing emergency from the perspective of whether there
was a continuing threat to her. See Michigan v. Bryant. 562 U.S. 344, 363-64,
131 S. Ct. 1143, 179 L Ed. 2d 93 (2011) (explaining the Court's ongoing
emergency analysis in Davis). The duration and scope of an emergency may
also depend in part on the type of weapon employed. Bryant. 562 U.S. at 364.
CC told the 911 operator that Gerzic threatened to kill her and told her he was
going to get a gun from his car. She was calling for help against a bona fide
physical threat, just as the caller in Davis. See Davis. 547 U.S. at 827.
Gerzic argues that the emergency ended when CC told the 911 operator:
"I think he just went back to his car. I think he heard me calling you. So probably
he's gonna leave. I don't know. But I'm so scared." We disagree. CC was
speculating that Gerzic might not return because he heard her call the police.
This does not mean the emergency was at an end. CC also heard Gerzic say he
was going to his car to get a gun. We have specifically rejected the argument
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that an emergency necessarily ends when an assailant leaves the scene of a
domestic assault. State v. Reed. 168 Wn. App. 553, 567-68, 278 P.3d 203,
review denied. 176 Wn.2d 1009 (2012). Here, as in Reed. CC was without police
protection and her assailant was still at large. There was every reason to believe
that he would return with a gun, as that was his stated intention. Any reasonable
listener would recognize that CC was facing an ongoing emergency. See also
State v. Ohlson. 162 Wn.2d 1, 18, 168 P.3d 1273 (2007) (ongoing emergency
where assailant had fled scene because, objectively viewing the course of
events, there was every reason to believe that assailant might return again and
perhaps escalate his behavior). Cf Koslowski. 166 Wn.2d at 432 (no ongoing
emergency where assailants fled the scene in a car before police arrived and no
evidence suggested they might return or pose further danger to any identifiable
person).
The operator's questions during this portion of the call were generally
designed to ascertain the identity of CC's assailant, his location, and whether he
posed a threat to police—indicating, under Koslowski. that CC's answers were
nontestimonial. For example, the operator asked CC for Gerzic's full name and
date of birth, if CC heard him at the door still or knew where he went, and how he
would react to police officers contacting him. Viewed objectively, these elicited
statements were necessary to resolve the ongoing emergency. See Davis. 547
U.S. at 827 (even the operator's effort to establish the identity of the assailant
was necessary to resolve the present emergency, "so that the dispatched officers
might know whether they would be encountering a violent felon").
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As to the level of formality, the conversation the 911 operator had with CC
was not a formal investigation. As in Davis. CC's statements were provided over
the phone to a 911 operator "in an environment that was not tranquil, or even (as
far as any reasonable 911 operator could make out) safe." Davis, 547 U.S. at
827 (contrasting this to the formality of the interrogation in Crawford, where the
witness gave calm responses to interrogation at the police station with the officer-
interrogator taping and making notes of her answers).
Finally, CC was describing "current events as they were actually occurring,
requiring police assistance. Koslowski. 116 Wn.2d at 418. She was reporting
that Gerzic told her she would not make it to work the next day and that he was
going to kill her, his ex-wife, and himself. She was seeking police assistance, not
establishing past events for the sake of later prosecution.
We conclude that the primary purpose of CC's 911 call was to enable
police assistance to meet an ongoing emergency. CC's statements were
nontestimonial, and their admission did not violate Gerzic's Sixth Amendment
right to confrontation.
AUTHENTICATION OF TEXT MESSAGES
At trial, Officer Cufley testified that CC told him she had received
threatening text messages from Gerzic in the past. She showed him the text
messages on her phone. He further testified that the photographs offered by the
State fairly and accurately depicted the messages that CC showed him. The
State then moved to admit the photographs of the text messages into evidence.
Gerzic objected on the basis of lack of foundation, but the trial court admitted the
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photographs. Gerzic argues that the trial court erred in admitting the
photographs of these text messages. We review a trial court's admission of
evidence for abuse of discretion. State v. Magers. 164Wn.2d 174, 181, 189P.3d
126 (2008).
Gerzic first contends that the text messages were not properly
authenticated because the State did not prove that he sent the messages.
Authentication is a threshold requirement designed to assure that evidence is
what it purports to be. State v. Payne. 117 Wn. App. 99, 106, 69 P3d 889 (2003),
review denied. 150 Wn.2d 1028 (2004). The requirement of authentication as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims. ER 901(a).
Because the proponent must make only a prima facie showing of authenticity for
purposes of establishing admissibility, ER 901 is met "'if the proponent shows
enough proof for a reasonable fact finder to find in favor of authenticity.'" In re
Detention of H.N.. 188 Wn. App. 744, 355 P.3d 294 (2015), quoting Payne. 117
Wn.App. at 108.
We have recently considered the issue of text message authentication in
H.N., 188 Wn. App. 744, and in State v. Bradford. 175 Wn. App. 912, 308 P.3d
736 (2013). review denied. 179Wn.2d 1010(2014). Bradford is especially
analogous to Gerzic's case. Bradford would not accept repeated attempts by his
girlfriend, Vilayphone, to end their affair, and she eventually obtained an
antiharassment protection order against him. Bradford. 175 Wn. App. at 917. In
the month after she obtained this order, January 2011, Bradford tried to contact
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Vilayphone by sending text messages to her friend, who would forward the
messages to Vilayphone. Bradford. 175 Wn. App. at 917. After receiving each of
these forwarded messages, Vilayphone would call 911 and show the responding
officer the forwarded text messages displayed on her cell phone. Bradford. 175
Wn. App. at 917-18. The responding officer would then record each text
message verbatim in his notebook, and later copy them verbatim into his police
report. Bradford. 175 Wn. App. at 918. At trial, the responding officer read these
text messages aloud, quoting directly from his police reports. Bradford. 175 Wn.
App. at 918.
We held that there was sufficient evidence introduced to support a finding
that the text messages that were read to the jury were written and sent by
Bradford, despite the fact that he did not acknowledge sending them. Bradford.
175 Wn. App. at 928-29. The messages were consistent with his other
"obsessive behavior" reflecting a "desperate desire" to communicate with
Vilayphone; the content of the messages themselves indicated that Bradford was
the individual who sent them; and Vilayphone and her friend who received the
messages testified to their belief that the text messages were from Bradford.
Bradford. 175 Wn. App. at 929-30.
In this case, as in Bradford. CC showed the text messages on her cell
phone to the responding officer and told him that they had been sent by Gerzic.
These messages include a photograph of Gerzic holding a shotgun to his throat
with the caption "This You want?" Other messages include "I Love You
Christine!," "Are you with me or no?," "I am happy with You don't do this to me
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please," and "You want me dead?" These messages were consistent with
Gerzic's other obsessive behavior reported by CC in her 911 call, including
threats to put a bullet in her head and to kill her, himself, and his ex-wife when
she tried to break up with him. They reflect his "desperate desire" to be with CC
and his rejection of any attempt to end the relationship. The photograph that
Gerzic sent of himself also identifies him as the sender. In addition, CC received
these text messages from a contact listed in her phone as "Adem," which is
Gerzic's first name.
Significantly, in Bradford, the State did not even offer photographs of the
text messages to authenticate them, as the State has here. Instead, the officer
read the text messages from his police report, which had been copied from his
notebook, which had been copied from Vilayphone's cell phone. By providing
photographs of the text messages, the State here has offered better proof to
authenticate than in Bradford.
Gerzic emphasizes that neither the sender nor the receiver, CC,
corroborated or acknowledged the text messages. Although CC did not testify at
trial, the responding officer testified that CC told him she received the text
messages from Gerzic. The trial court is not bound by the rules of evidence
when making a determination as to authenticity. State v. Williams. 136 Wn. App.
486, 500, 150 P.3d 111 (2007), citing ER 104(a). For this reason, the trial court
could consider CC's out-of-court statement that Gerzic sent the text messages
when determining the authenticity of the text messages. Gerzic does not
acknowledge sending the text messages, but neither did Bradford, and we
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No. 73242-1-1/9
nevertheless held in Bradford that there was sufficient evidence for
authentication.
Gerzic also highlights the fact that there was no forensic evidence that he
sent the text messages. He points to the fact that in Bradford, the police did a
"phone dump" to generate a report itemizing each text message the phone had
received during a specific time period. But the part of this report that was
admitted into evidence did not include the January 2011 text messages that the
responding officer read from his police report. There was no forensic evidence
corroborating Bradford's January 2011 text messages, just as there is none here.
We conclude the trial court did not abuse its discretion in finding that the
State made a prima facie showing of authenticity. Gerzic failed to prove that no
reasonable fact finder would have taken the position adopted by the trial court.
Next, Gerzic contends that his right to confrontation was violated when the
responding officer testified that CC told him the text messages were from Gerzic.
But Gerzic did not object to this testimony. Therefore, to have this claim
reviewed for the first time on appeal, Gerzic must demonstrate that it is manifest
constitutional error. RAP 2.5. A manifest error is an error that is unmistakable,
evident, or indisputable, and that has practical and identifiable consequences in
the trial of the case. State v. Haves. 165 Wn. App. 507, 514-15, 265 P.3d 982(2011), review denied. 176 Wn.2d 1020 (2013). Even if CC's out-of-court
statement had been excluded, the photographs of the text messages would still
have been admissible and, as detailed above, they provided sufficient evidence
that the messages were from Gerzic. In addition, the jury would still have heard
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Officer Cufley's testimony that CC showed him the messages on her phone.
Gerzic has not demonstrated that any constitutional error is manifest.
Affirmed.
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WE CONCUR:
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