State Of Washington, V. D. K. ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 82596-8-I
Respondent,
ORDER GRANTING MOTION
v. TO PUBLISH
D.K.,
Appellant.
The respondent, State of Washington, has filed a motion to publish. The
appellant, D.K., has not filed an answer. The court has considered the motion, and a
majority of the panel has reconsidered its prior determination not to publish the opinion
filed for the above entitled matter on March 14, 2022 finding that it is of precedential
value and should be published. Now, therefore, it is
ORDERED that the motion to publish is granted; it is further
ORDERED that the written opinion filed March 14, 2022 shall be published and
printed in the Washington Appellate Reports.
Judge Pro Tempore
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 82596-8-I
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
D.K.,
Appellant.
APPELWICK, J. — D.K. appeals from his conviction for attempted child
molestation in the first degree. He argues that allowing witnesses to testify
remotely violated his constitutional rights to confrontation under both state and
federal constitutions. He also argues that the testimony of S.W. and S.M. by
remote video was not necessary and was unreliable. We affirm.
FACTS
S.M. is the mother of seven children, including D.K. and S.W. In July 2019,
10 year old S.W. lived with her mom, but 16 year old D.K. lived with his father in
Pasco, Washington. On July 16, 2019, D.K. arrived at S.M.’s house to spend a
few weeks with his mother. S.W. testified that one night during his stay, D.K.
sexually assaulted her. In the morning, S.W. told her mom what happened. D.K.
left the house, and S.M took S.W. to the police station and the doctor’s office.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82596-8-I/2
D.K. was charged with child molestation in the first degree. The juvenile
court trial began in March 2021, during the COVID-19 pandemic. Because S.W.
is immunocompromised and S.M. is her caretaker and a critical witness, the State
moved to permit them to testify remotely. D.K. objected to this motion, stating that
it would violate his fundamental right to confront witnesses under the Sixth
Amendment.
The State submitted medical evidence in support of the motion. S.W.’s
doctor submitted multiple declarations stating that S.W. is under her care for two
medical conditions that leave her immunocompromised. According to the
physician, the unknown ramifications of COVID-19 on the nervous system meant
that, “S.W. should not be out in public.” The physician also stated that S.W. was
not eligible for the COVID-19 vaccine at that time. S.M. and her medical provider
submitted separate declarations that she is similarly immunocompromised. She
too was not yet eligible for the vaccine. She also said that if she contracted COVID-
19, “it is almost certain that [S.W.] would also contract COVID-19.”
On February 19, 2021, the Supreme Court of Washington issued its fifth
revised and extended order regarding court operations. In re Statewide Response
by Washington State Courts to the COVID-19 Public Health Emergency, No.
25700-B-658, at 1 (Wash. Feb. 19, 2021), https://www.courts.wa.gov/content
/publicUpload/Supreme%20Court%20Orders/25700-B-658.pdf. It states, “In all
court operations, courts should follow the most protective public health guidance
applicable in their jurisdiction, and should continue using remote proceedings for
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public health and safety whenever appropriate.” Id. at 3. As to criminal trials, the
order states,
7. The previous order suspending all criminal jury trials until at least
July 6, 2020 is lifted. Trials already in session where a jury has
been sworn and social distancing and other public health
measures are strictly observed may proceed or be continued if
the defendant agrees to a continuance. Courts have authority to
conduct nonjury trials by remote means or in person, with strict
observance of social distancing and other public health
measures.
8 Courts should continue to hear out of custody criminal and
juvenile offender matters by telephone, video or other means
that do not require in person attendance when appropriate. In
addition, courts may hear matters that require in person
attendance if those hearings strictly comply with social
distancing and other public health measures.
Id. at 6-7 (emphasis omitted).
At trial, the court reviewed whether S.W.’s and S.M.’s testimony could be
conducted remotely through the Zoom videoconference platform. In making its
determination, the court considered the risk of COVID-19, the medical evidence
relating to S.W.’s and S.M.’s health, the emergency order of the Washington
Supreme Court, and case law. The court found, “The facts established are
sufficient to establish the need for remote testimony in this kind of a case,” and
granted the motion to permit video testimony.
S.W. and S.M. testified remotely at trial. At the end of direct examination,
S.W. identified D.K. by describing the clothing he was wearing at that time.
However, defense counsel stated later in the trial that during the course of S.W.’s
testimony, the camera had shifted and S.W. was unable to see D.K. during most
of her testimony on direct examination.
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The court found D.K. to be guilty of attempted child molestation in the first
degree. D.K. appeals.
DISCUSSION
I. Applicable Law
D.K. claims that the trial court violated his Sixth Amendment right to
confrontation by allowing remote testimony. The confrontation clause of the Sixth
Amendment states, “In all criminal prosecutions, the accused shall enjoy the right
to . . . be confronted with the witnesses against him.” U.S. CONST. amend. VI. This
amendment applies to state prosecutions under the due process clause of the
Fourteenth Amendment. State v. Sweidan, 13 Wn. App. 2d 53, 62, 461 P.3d 378(2020). The confrontation clause guarantees a defendant a face-to-face meeting
with witnesses during trial, although this right is not absolute. Maryland v. Craig,
497 U.S. 836, 844, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).
“The central concern of the Confrontation Clause is to ensure the reliability
of the evidence against a criminal defendant by subjecting it to rigorous testing in
the context of an adversary proceeding before the trier of fact.” Id. at 845. The
right guaranteed by the confrontation clause ensures the witness will give
statements under oath, forces the witness to be cross-examined, and permits the
jury, or fact finder, to observe the witness giving its statement. Id.Two Supreme Court cases have explored the limitations of the confrontation
clause: Craig, and Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004). Craig examined the constitutionality of one-way video
testimony in child abuse cases. Craig, 497 U.S. at 854-56. The court held that
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No. 82596-8-I/5
video testimony was necessary for children to testify, when those children would
be traumatized by seeing the defendant in court. Id. at 856-57. According to the
Court, “[The] State’s interest in the physical and psychological well-being of child
abuse victims may be sufficiently important to outweigh, at least in some cases, a
defendant’s right to face his or her accusers in court.” Id. at 837. In Crawford, the
court prohibited tape-recorded statements offered as evidence under a hearsay
analysis, and held that the inability to cross-examine the witness violated the Sixth
Amendment. 541 U.S. at 40, 68-69.
D.K. argues that because of the decision in Crawford, Craig must be read
narrowly, allowing video testimony in cases only where children would suffer
trauma from seeing the defendant. He argues that Crawford limits exceptions to
the confrontation clause to those established at the time the Constitution was
founded. Under this interpretation, the exceptions occur only when the witness is
unavailable and the defendant had a prior opportunity to cross-examine. If that
were true, Craig would not have been constitutionally correct and should have
been overruled by Crawford.
However, Crawford did not purport to overrule Craig. The United States
Supreme Court “does not normally overturn, or so dramatically limit, earlier
authority sub silentio.” Shalala v. Illinois Council on Long Term Care, Inc., 529
U.S. 1, 18, 120 S. Ct. 1084, 146 L. Ed. 2d 1 (2000). Rather than reject Craig,
Crawford mentions that opinion only once to support that cross-examination is “not
an empty procedure.” Crawford, 541 U.S. at 74 (Rehnquist, J., concurring).
Because Crawford did not explicitly overrule Craig, the two cases must be
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reconciled. Additionally, Washington cases have followed Craig since Crawford
has been decided.1 See Sweidan, 13 Wn. App. 2d at 63. Here, because Craig
refers to live, remote, video testimony, we apply the rule in Craig.
II. Confrontation Clause
For the court to allow a confrontation of witnesses to occur via video, there
must be a finding that the substitute procedure (1) necessarily furthers an
important public policy and (2) is reliable. Craig, 497 U.S. at 850; State v. Foster,
135 Wn.2d 441, 457, 957 P.2d 712 (1998). A confrontation clause challenge is
reviewed de novo. State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009).
D.K. argues that neither element of the Craig test has been met.
A. Necessity
First, D.K. argues that the State failed to show that S.W.’s video testimony
was necessary. The necessity analysis initially focused on child witnesses that
would be traumatized by the presence of the defendant while testifying. Craig, 497
U.S. at 856. In Craig, the Court analyzed a Maryland statute that as a matter of
public policy allowed video testimony upon a determination that a child who
suffered emotional distress so much that they could not reasonably communicate
during testimony. Id. at840-41, 856. In addition to the court finding necessity for
1The vast majority of courts outside of Washington agree that Crawford did
not overrule or limit the holding in Craig. State v. Tate, 969 N.W.2d 378, 385 n.8
(Minn. Ct. App. Jan. 3, 2022). D.K. argues that we should follow an approach
taken by the Supreme Court of Michigan in People v. Jemison, 505 Mich. 352, 952
N.W.2d 394 (2020). However, Jemison concedes that Crawford did not overrule
Craig, and that case-specific necessity can allow for video testimony. Jemison,
505 Mich. at 365.
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No. 82596-8-I/7
the video testimony, the witness must testify under oath, be subjected to full cross-
examination, and must be in view of the fact-finders while doing so. Id. at 857.
Washington courts have applied a necessity analysis for the same issue
using RCW 9A.44.150(1), which had substantially similar language as the
Maryland statute. Foster, 135 Wn.2d at 469 (plurality opinion). In Foster, the court
held that RCW 9A.44.150(1) was constitutional in allowing one-way video
testimony, and therefore did not violate the confrontation clause. Id. at 469-70.
Unlike Foster, this case involves two-way video testimony and the state did
not rely on RCW 9A.44.150(1) for its finding of necessity. Washington has already
noted that allowing video testimony upon a finding of necessity is not limited to
cases of child abuse. Sweidan, 13 Wn. App. 2d at 71. In Sweidan, the court stated
“we conclude that the important policy of alleviating physical pain and suffering can
extend to the circumstances when the witness would attend to another’s needs
resulting from such suffering.” Id.Here, the trial court found that allowing S.W. and S.M. to testify remotely
was necessary. To determine this, the court looked to three factors: (1) the severity
of the COVID-19 epidemic and precautions being taken at trial; (2) the risk to the
particular person; and (3) if a presumption of in-person testimony had been
overcome. For the first factor, the court noted that the court is being very careful,
that the vaccination rate at the time was low, and that a new variant to COVID-19
was becoming more prevalent. The court then looked to S.W.’s and S.M.’s risk,
finding that respiratory disease and lack of vaccine creates a high-risk category.
Third, the court found that the presumption for in-person testimony had been
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No. 82596-8-I/8
overcome, as S.W. would not qualify for a vaccine in the near future, and the case
is too old to continue.
The court looked to the Supreme Court of Washington order regarding court
operations as evidence of an important public policy. The order states that courts
should continue remote proceedings “for public health and safety whenever
appropriate.” In re Statewide Response, No. 25700-B-658 at 3. The order granted
the court authority to conduct nonjury trials remotely, and that juvenile offender
matters can be conducted by video when appropriate. Id. 6-7. The Washington
Supreme Court’s order established a public policy allowing for remote proceedings
for health and safety during COVID-19. The trial court concluded that there was a
public policy reason that S.W. and S.M. should be allowed to testify remotely. We
agree.
However, that is not the end of the analysis. The trial court in Sweidan
found an important policy reason to allow video testimony, but it failed to make a
clear finding about necessity.2 Sweidan, 13 Wn. App. 2d at 71-72. D.K. urges the
court to follow the analysis in Sweidan to determine that S.W.’s video testimony
was not necessary.3 He argues that Sweidan holds that necessity needs to show
2
Sweidan would have remanded for an evidentiary hearing on the necessity
of the videoconference testimony, but found the constitutional error to be harmless.
Sweidan, 13 Wn. App. 2d at 56, 72.
3 D.K. also argues that “the record was bereft of data about COVID-19
spread in the community.” He also argues that there was no evidence about
whether the courtroom was well-ventilated, whether spectators could have been
kept out, or whether everyone could have been required to obtain a COVID-19
test. He also argues that the court did not evaluate whether a video deposition
would be feasible. These arguments go to minimizing the risk to the witnesses.
They were not explicitly raised with the trial court, though we can reasonably
expect the trial court was aware of these factors. Given the medical information
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that “other alternatives that would preserve traditional confrontation had not been
ruled out.”
Sweidan relied in part on United States v. Carter, 907 F.3d 1199, 1208 (9th
Cir. 2018). Sweidan, 13 Wn. App. 2d at 73. In Carter, the court found there was
no necessity for video testimony when a pregnant woman could not travel to the
courtroom to testify, because her disability was temporary, and the case could be
continued. Id. Additionally, in Carter, the witness could have been deposed while
allowing in-person confrontation. Id. at 1209.
However, D.K. moved to compel in-person pretrial interviews. The trial
court denied the motion, and stated that “medical best practice” would be to not
expose S.W. to any member of the public. The trial court broadly considered
alternatives for out-of-court deposition, such as counsel interviewing S.W. and
S.M. at their house. However, that alternative might have decreased the risks to
the witnesses, but it would not have eliminated them. The safety concerns
expressed by the court would have been equally applicable. The gravity of the risk
militates against the alternative, and the result would have been the same.
Additionally, regarding continuation, the trial court stated that “this case is getting
too old just to let us kick it around for another year.” The trial court considered
reasonable alternatives. D.K. has not shown that S.W.’s and S.M.’s remote
testimony was unnecessary.
about the witnesses, the analysis and conclusion reached would be no different
than that for the option of a video deposition.
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No. 82596-8-I/10
B. Reliability
D.K. argues that the video testimony is not reliable, because the virtual
testimony in this case had issues with the sound, and did not show D.K. on the
screen during S.W.’s testimony on direct. .
Under Craig, reliability requires that video testimony of witnesses occur
under oath, within view of the fact-finders, and with opportunity for cross-
examination. Craig, 497 U.S. at 857. Here, both S.W. and S.M. were under oath,
cross-examined, and viewed by the judge during the bench trial.
A condition of allowing video testimony is that the witness was able to be
viewed by the defendant and the fact-finders of the court during testimony. Id. In
both Craig and Foster, the courts allowed one-way video where the witness could
not see the defendant. Craig, 497 U.S. at 840-41; Foster, 135 Wn.2d at 446. D.K.
does not argue that he or the finder of fact was not able to observe S.W. while she
testified.
D.K. argues that S.W. could not view him during her testimony on direct.
This is not one of the factors courts look to when doing a reliability analysis. 4 In
4To the extent the witness could not see D.K., the record indicates that the
camera had shifted in some way so that D.K. was out of frame. He does not argue
the State or the court was responsible for the movement. The issue was fixed prior
to cross-examination of the witness.
D.K. also argues that there were problems with the audio during trial. He
cites to one section of the report of proceedings, where the judge says to S.W.,
“You cut out just right at the end. You said, that’s why he stopped staying there
with you guys.” S.W. replied, “Yeah.” However, D.K. cites to no authority that
states an error of this type is unreliable. Under RAP 10.3(a)(6), the argument must
have citations to legal authority, and a contention without authority need not be
considered on appeal. Rhinehart v. Seattle Times, 59 Wn. App. 332, 336, 798
P.2d 1155 (1990). We do not review this issue.
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Sweidan this court stated, “The record should confirm that the jury and the
defendant see the witness and the witness’s body language, and that they hear
the witness. The record should also verify that the witness sees the jury and the
defendant.” Sweidan, 13 Wn. App. 2d at 75. “We do not hold, however, that any
of these suggestions must necessarily be followed to fulfill the strictures of the
confrontation clause.” Id.Therefore, D.K.’s argument fails to establish that S.W.’s and S.M.’s video
testimony was unreliable for the purposes of the confrontation clause.
We affirm.
WE CONCUR:
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