State Of Washington v. J.k.t.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 78413-7-I
V.
PUBLISHED OPINION
J.K.T.,
Appellant. FILED: December 30, 2019
DWYER, J. — Juvenile J.K.T. was convicted of multiple counts of murder in
the first degree for his participation, allegedly with his older brothers James and
Jerome, in a 2016 shooting in the homeless encampment known as “The
Jungle.” J.K.T. appeals, contending that the trial court erred by ruling admissible
a one-party consent recording of J.K.T. and his brothers discussing the shooting
and by excluding hearsay statements that J.K.T. sought to admit in his defense.
J.K.T. asserts that the recording of him and his brothers was obtained in violation
of Washington’s privacy act, chapter 9.73 RCW, and that it should have been
excluded. He further asserts that the trial court improperly excluded exculpatory
hearsay statements made against penal interest, thereby denying him the right to
present a defense. There being no error in the trial court rulings, we affirm.
No. 78413-7-1/2
On January 26, 2016, five males wearing masks and dark clothing entered
a section of the homeless encampment known as “The Jungle,” located beneath
a freeway in Seattle near the intersection of Interstates 5 and 90. The section of
encampment they entered was occupied at the time by many people, including
Phat Nguyen, Amy Jo Shinault, Tracy Bauer, Jeanine Brooks, and James Tran.
Two of the masked individuals had guns and began shooting the occupants of
the encampment, killing both Tran and Brooks. The masked attackers also shot
Nguyen, Shinault, and Bauer. They survived.
The next day, Foa’l Tautolo, known as “Lucky,” contacted the police,
claiming to have information about the shootings. Lucky and his cousin, known
as “Reno,” went to the Seattle Police Department’s headquarters to be
interviewed. Lucky informed the police that his nephew, James, had called him
and admitted to participating in the shooting because he needed money. Lucky
also informed the police that he had, in the previous few days, seen his nephew
with a .45 caliber handgun.2 Lucky believed that James would be willing to
discuss the shootings with him and Reno again in person.
The lead detective in the case, James Cooper, then prepared an
application for a judicial authorization to make a one-party consent recording of
James. In the application, Detective Cooper included the information he had
received from Lucky regarding James admitting to the shooting and sought
authorization to record him speaking about the shootings with Lucky. The
2 The police had found matching caliber bullet shell casings at the scene of the shooting.
2
No.78413-7-1/3
application also noted that James and his family were known to have been
“staying near/under 4th Ave South and Edgar Martinez Way.”3 The application
further stated that the conversations it sought authorization to record were
“expected to occur somewhere in or around Seattle in one of the many homeless
camps in the area. Because James, his brothers and their families are homeless
and move around, it is impossible to predict where the conversation may take
place[.] Investigators do believe they will remain in the area, and within King
County.”
The authorization order was signed by a King County superior court judge.
The order stated that there was probable cause to believe that James had
committed murder in the second degree and assault in the first degree.
The next day, Lucky and Reno were wired and dropped off near James’s
encampment on 4th Avenue South in Seattle. Lucky had arranged, over the
telephone, to meet James at James’s encampment near “the stadium.”4 The
recording occurred near an underpass across the street from what Lucky referred
to as “like a Goodwill, but it’s not a Goodwill.”5 James, Jerome, and J.K.T. were
present during the conversation and made statements leading officers to believe
that they all actively participated in the shooting.
J.K.T. was subsequently charged with felony murder in the first degree
predicated on robbery and assault. J.K.T. moved to suppress the one-party
~ The cross street in the application contained a typographical error. There is no Edgar
Martinez Way that intersects with 4th Avenue South; instead, the name of the street is Edgar
Martinez Drive South.
~ There are actually two stadiums located adjacent to one another on 4th Avenue South.
It is unclear from the record to which stadium Lucky was referring.
~ It appears that Lucky was referencing the Salvation Army Family Store, as it is the only
store on 4th Avenue South across the street from the stadiums that matches Lucky’s description.
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No. 78413-7-1/4
consent recording in which he and his brothers discussed the shooting, arguing
that it was obtained in violation of Washington’s privacy act. The trial court
denied the motion. J.K.T. subsequently and unsuccessfully sought to exclude
James’s and Jerome’s statements in the recording on the grounds that they were
inadmissible hearsay and violated his right, guaranteed by the Sixth Amendment
to the United States Constitution, to confront the witnesses against him.6
During his bench trial, J.K.T. sought to offer into evidence that which he
asserted constituted exculpatory hearsay statements made by others against
their penal interest. Specifically, he sought to admit the hearsay statements of
two individuals, known as Ace and Francis, who had purportedly informed one of
the shooting victims, Bauer, that they, and not J.K.T. and his brothers, were
active participants in the shooting. The trial court concluded that these
statements were insufficiently reliable to warrant their admission into evidence.
The juvenile court found J.K.T. guilty of two counts of murder in the first
degree and three counts of assault in the first degree. The court imposed a
manifest injustice disposition that rendered J.K.T. into the custody of the juvenile
rehabilitation authority until he is 20 years old. Treatment-related supervision is
to follow his release.
J.K.T. appeals.
6J.K.T. does not appeal from the ruling that his right to confront the witnesses against
him, as guaranteed by the United States Constitution, did not bar the admission of his brothers’
statements in the recording.
4
No. 78413-7-1/5
II
J.K.T. primarily contends that his conviction must be reversed because the
trial court erroneously admitted into evidence the one-party consent recording of
him and his brothers discussing the shooting. This is so, J.K.T. asserts, because
(1) the recording was obtained in violation of Washington’s privacy act, and (2)
admission of the recorded statements of J.K.T.’s brothers violated J.K.T.’s right
to confront the witnesses against him as guaranteed by article I, section 22 of the
Washington Constitution, a contention raised for the first time on appeal. We
disagree.
A
J.K.T. contends that the one-party consent recording showing J.K.T. and
his brothers discussing the shooting was obtained in violation of the privacy act
because (1) the application for the authorization to record without the consent of
all parties to the conversation does not establish probable cause that J.K.T. had
committed a crime, and (2) the application for the order authorizing the recording
and the order authorizing the recording did not set forth a specific enough place
as to where the recording would occur so as to satisfy the requirements of the
privacy act.
We review the meaning of a statute de novo. State v. Breazeale, 144
Wash. 2d 829, 837, 31 P.3d 1155 (2001). Our “fundamental objective is to
ascertain and carry out the Legislature’s intent, and if the statute’s meaning is
plain on its face, then [we] must give effect to that plain meaning as an
expression of legislative intent.” Dep’t of Ecolociy v. Campbell & Gwinn, LLC,
5
No. 78413-7-1/6
146 Wash. 2d 1, 9-10,43 P.3d 4 (2002). When interpreting a provision of our
state’s code, the provision is to “be liberally construed, and shall not be limited by
any rule of strict construction.” RCW 1.12.010. Where a statute does not define
a term, we may look to dictionary definitions to assist in determining the plain
meaning of a statute. LaCoursiere v. Camwest Dev., Inc., 181 Wash. 2d 734, 741-
42, 339 P.3d 963 (2014).
Washington’s privacy act protects the privacy rights of individuals and is
one of the most restrictive electronic surveillance laws in the country. State v.
Roden, 179 Wash. 2d 893, 898, 321 P.3d 1183(2014). The act generally prohibits
the admission at trial of recorded conversations or communications obtained
without the consent of all parties to the conversation. RCW 9.73.030; Roden,
179 Wash. 2d at 898. “Failure to suppress evidence obtained in violation of the act
is prejudicial unless, within reasonable probability, the erroneous admission of
the evidence did not materially affect the outcome of the trial. State v.
Christensen, 153 Wash. 2d 186, 200, 102 P.3d 789 (2004) (citing State v. Porter, 98
Wash. App. 631, 638, 990 P.2d 460 (1999)).
RCW 9.73.090, however, sets forth exceptions to the general rule
prohibiting the recording of conversations or communications without the consent
of all parties. One such exception is that
[ut shall not be unlawful for a law enforcement officer acting in the
performance of the officer’s official duties to intercept, record, or
disclose an oral communication or conversation where the officer is
a party to the communication or conversation or one of the parties
to the communication or conversation has given prior consent to
the interception, recording, or disclosure: PROVIDED, That prior to
the interception, transmission, or recording the officer shall obtain
written or telephonic authorization from a judge or magistrate, who
6
No. 78413-7-1/7
shall approve the interception, recording, or disclosure of
communications or conversations with a nonconsenting party for a
reasonable and specified period of time, if there is probable cause
to believe that the nonconsenting party has committed, is engaged
in, or is about to commit a felony.
RCW 9.73.090(2).
RCW 9.73.090(2) further states that “[a]ny recording or interception of a
communication or conversation incident to a lawfully recorded or intercepted
communication or conversation pursuant to this subsection shall be lawful and
may be divulged.”
An application for an order authorizing a one-party consent recording must
comply with the requirements set forth in RCW 9.73.130. State v. D.J.W., 76
Wash. App. 135, 144-45, 882 P.2d 1199 (1994), aff’d, 129 Wn.2d 211,916 P.2d
384 (1996). These statutory safeguards protect against “unfettered discretion in
the hands of the recording party and against the issuance of authorizations to
record in the absence of proper circumstances.” D.J.W., 76 Wash. App. at 145. An
order based on a faulty application, not in compliance with RCW 9.73.130, is
unlawful, and any recording authorized by such an order is inadmissible as
evidence. State v. Kichinko, 26 Wash. App. 304, 310-11, 613 P.2d 792 (1980).
The following information must be included in an application for an order
authorizing a one-party consent recording:
(1) The authority of the applicant to make such application;
(2) The identity and qualifications of the investigative or law
enforcement officers or agency for whom the authority to record a
communication or conversation is sought and the identity of
whoever authorized the application;
(3) A particular statement of the facts relied upon by the
applicant to justify his or her belief that an authorization should be
issued, including:
7
No. 78413-7-1/8
(a) The identity of the particular person, if known, committing
the offense and whose communications or conversations are to be
recorded;
(b) The details as to the particular offense that has been, is
being, or is about to be committed;
(c) The particular type of communication or conversation to
be recorded and a showing that there is probable cause to believe
such communication will be communicated on the wire
communication facility involved or at the particular place where the
oral communication is to be recorded;
(d) The character and location of the particular wire
communication facilities involved or the particular place where the
oral communication is to be recorded;
(e) A statement of the period of time for which the recording
is required to be maintained, if the character of the investigation is
such that the authorization for recording should not automatically
terminate when the described type of communication or
conversation has been first obtained, a particular statement of facts
establishing probable cause to believe that additional
communications of the same type will occur thereafter;
(f) A particular statement of facts showing that other normal
investigative procedures with respect to the offense have been tried
and have failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous to employ;
(4) Where the application is for the renewal or extension of
an authorization, a particular statement of facts showing the results
thus far obtained from the recording, or a reasonable explanation of
the failure to obtain such results;
(5) A complete statement of the facts concerning all previous
applications, known to the individual authorizing and to the
individual making the application, made to any court for
authorization to record a wire or oral communication involving any
of the same facilities or places specified in the application or
involving any person whose communication is to be intercepted,
and the action taken by the court on each application; and
(6) Such additional testimony or documentary evidence in
support of the application as the judge may require.
RCW 9.73.130.
“A judge issuing an intercept order has considerable discretion to
determine whether the statutory safeguards [of the privacy act] have been
satisfied.” Porter, 98 Wash. App. at 634. Thus, when reviewing an application for
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No. 7841 3-7-1/9
an order authorizing a one-party consent recording, we “‘decide if the facts set
forth in the application were minimally adequate to support the determination that
was made.” State v. Manning, 81 Wash. App. 714, 718, 915 P.2d 1162 (1996)
(internal quotation marks omitted) (quoting State v. Knight, 54 Wash. App. 143,
150-51, 772 P.2d 1042 (1989)).
1
J.K.T. asserts that the application filed herein for an order authorizing a
one-party consent recording did not establish probable cause as to J.K.T., as
required by RCW 9.73.090(2), and that it is therefore inadmissible against him.
However, J.K.T. also concedes that the application established probable cause
sufficient to authorize the recording of J.K.T.’s brother, James. We agree with
the parties that probable cause as to James was established. Accordingly, under
the circumstances herein, no such finding as to J.K.T. was required.
The recording of utterances made by James was plainly supported by a
finding of probable cause. In addition, ROW 9.73.090(2) is clear that
conversations or communications recorded “incident to a lawfully recorded or
intercepted communication or conversation pursuant to this subsection shall be
lawful and may be divulged.” The parties dispute whether this language applies
to J.K.T. and (impliedly) Jerome, disagreeing as to the meaning of the word
“incident.” The State essentially contends that “incident” means “ancillary” or “as
part of,” and that the admission of the recording of J.K.T. was proper because it
was obtained as part of a lawful recording of James. In contrast, J.K.T. asserts
that “incident” means, essentially, “accidentally,” and that because Detective
9
No. 78413-7-1/10
Cooper planned or hoped to record James and his brothers together, the
recording of J.K.T. was not accidental, thus rendering the contents of the
recording inadmissible against J.K.T. The State has the better argument.
Because there is no statutory definition of “incident,” we look to dictionary
definitions to determine the meaning of the word. LaCoursiere, 181 Wash. 2d at
741-42. Webster’s Third New International Dictionary defines “incident” as
“something dependent upon, appertaining or subordinate to, or accompanying
something else of greater or principal importance.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1142 (2002). Similarly, Black’s Law Dictionary defines
“incident” as “[d]ependent on, subordinate to, arising out of, or otherwise
connected with (something else, usu. of greater importance).” BLACK’S LAW
DICTIONARY 911 (11th ed. 2019).
It is apparent from these definitions that the State’s view of the statutory
language is correct. Here, “incident” does not mean “accidental.” Thus, so long
as the authorization to record James was supported by probable cause, which it
was, the incidental recording of J.K.T. need not be independently supported by
probable cause as to him in order to be admissible at trial against him.7
‘ J.K.T. also asserts that three material misrepresentations in the application “form no
basis for establishing any probable cause to surreptitiously record [J.K.T.].” Because probable
cause was not required to be established as to J.K.T., this argument fails. Furthermore, J.K.T.’s
asserted material misrepresentations were not, in fact, material to the court’s finding of probable
cause as to James.
First, J.K.T. asserts that the application’s description of James and his family as being
“involved” in previous unsolved crimes was a material misrepresentation because it painted
James’s family as the kind of people who would commit crimes. Given that the application stated
that James confessed to the shooting, was known to possess a gun with bullets matching those
removed from one of the victims of the shooting, and resembled the, admittedly vague, physical
description of the shooters given by witnesses, it is clear that probable cause was not dependent
on any previous potential involvement in or association with criminal activity.
Second, J.K.T. asserts that the application omitted material information regarding Lucky’s
and Reno’s criminal history and that they were compensated for the information they provided.
10
No. 78413-7-I/li
2
J.K.T. next asserts that both the application for the order authorizing a
one-party consent recording and the order itself did not set forth a sufficiently
specific location for the place where the recording would occur to satisfy the
requirements of the privacy act. Although he did not clearly articulate that which
he would consider a sufficiently specific location, it appears that J.K.T. believes
that something approximating the specificity of a street address is required to be
included in both the application and the order authorizing a recording, and that
the application’s inclusion of a cross street and a description of the location as
being a homeless encampment was insufficient. In response, the State asserts
that (1) the application sufficiently informed the authorizing judge of the character
and location of the place where the recording would occur by informing the judge
that the recording would take place at a homeless encampment and identifying
the cross street near the encampment in which James was last known to be
staying, and (2) the order did not need to set forth a specific location where
recording was authorized. We conclude that the authorization and the
However, J.K.T. also acknowledges that the application stated that Lucky and Reno have criminal
histories. Additionally, the fact that Lucky and Reno could benefit from providing assistance in an
active homicide investigation would lead to an inference that their evidence would be credible—
providing inaccurate information would not help them receive favorable treatment. The probable
cause analysis was plainly not affected by the omission of the specifics of Lucky’s and Reno’s
criminal histories or speculation about how much time off of potential sentences they stood to
gain. In addition, it is plainly wrong to suggest that the judge authorizing the recording was
unaware that criminal informants generally want to receive some form of favor in exchange for
their assistance.
Third, J.K.T. asserts that one line in the application, stating that witnesses to the shooting
could not identify the shooters, materially misinformed the authorizing court because one of the
victims did identify her shooter as a man known as Juice. However, the application expressly
states that “one of the males involved in the shooting was possibly a Samoan male known only by
the street name of ‘Juice.” Plainly, the application did not misinform the court on this point.
11
No. 78413-7-1/12
application for authorization herein complied with the requirements of the privacy
act regarding inclusion of the place where the recording would occur.
Under the privacy act, an order authorizing a one-party consent recording
must (1) be obtained prior to making the recording, (2) be limited to a
“reasonable and specified period of time,” and (3) be supported by probable
cause to believe that the nonconsenting party has committed, is committing, or is
about to commit a felony. RCW 9.73.090(2). There is no requirement that an
order authorizing a one-party consent recording delineate the place where
recording is authorized.8 Knight, 54 Wash. App. at 149.
Under RCW 9.73.130(3)(d), however, applications for an order authorizing
a one-party consent recording must include a particular statement of “the facts
relied upon by the applicant to justify his or her belief that an authorization should
be issued,, including: . . . (d) The character and location of the particular wire
communication facilities involved or the particular place where the oral
communication is to be recorded.”9 J.K.T. appears to assert that this statutory
8 J.K.T. contends, without citation to authority, that an order authorizing a one-party
consent recording must include a particular location of the place where recording is authorized
because a particular place is required, under RCW 9.73.130, to be included in the application for
an order. This is wrong. RCW 9.73.130 plainly does not set forth any requirements for an order
authorizing a one-party consent recording; it sets forth only requirements for the application.
~ This requirement applies to all applications seeking authorization under RCW 9.73.090
except in cases where there is probable cause “to believe that the communication or conversation
concerns the unlawful manufacture, delivery, sale, or possession with intent to manufacture,
deliver, or sell, controlled substances. or legend drugs. or imitation controlled substances.”
. . . .
RCW 9.73.090(5). In such cases a judge may authorize a one-party consent recording
even though the true name of the nonconsenting party, or the particular time and
place for the interception, transmission, recording, or disclosure, is not known at
the time of the request, if the authorization describes the nonconsenting party
and subject matter of the communication or conversation with reasonable
certainty under the circumstances.
RCW 9.73.090(5).
J.K.T. asserts that this subsection and RCW 9.73.210(2) and RCW 9.73.230(2)(e) show
that the legislature relaxed a particularity requirement in RCW 9.73.130 for specific crimes,
allowing a judge to authorize recordings with only an imprecise location for specific crimes
12
No. 78413-7-1/13
language requires that an application include either the character and location of
the particular wire communication facilities involved, or, the particular place
where the oral communication is to be recorded. This misreads the statute.
Under the series qualifier canon, “[w]hen there is a straightforward, parallel
construction that involves all nouns or verbs in a series, a prepositive or
postpositive modifier normally applies to the entire series.” ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, at 147
(2012). Thus, the prepositive modifier in RCW 9.73.130(3)(d), “character and
location,” applies to both the wireless communication facilities and to the
particular place where the oral communication is to be recorded.1°
In determining whether an application has sufficiently identified the
character and location of the place where the recording of an oral communication
relating to commercial sexual abuse of a minor and drug trafficking and manufacture. J.K.T. is
wrong. These statutes do not change the level of detail about a place required in an application
for a judicial order authorizing recording. First, RCW 9.73.210 and RCW 9.73.230 have nothing
to do with judicial authorizations to make one-party consent recordings. Rather, they address the
requirements for a chief law enforcement officer to authorize a one-party consent recording and
have no bearing on RCW 9.73.130. Second, ROW 9.73.090(5) does not change the level of
specificity required to be included in an application regarding the intended place for a one-party
consent recording. Instead, it eliminates the requirement that a place be included at all. No place
is necessary so long as “the authorization describes the nonconsenting party and subject matter
of the communication or conversation with reasonable certainty under the circumstances.” ROW
9.73.090(5). There is no requirement that a less specific or imprecise place be included. Thus,
ROW 9.73.090(5) does not provide any insight into the degree of specificity the legislature
intended to be required under ROW 9.73.130(3)(d).
10 If, as J.K.T. suggests, the statute required an application to include only a specific
street address for where recording is expected to occur, a judge considering whether to grant
authorization to record would be unable to properly consider the risk of recording innocent
conversations or to require appropriate safeguards when granting authorization. For example,
there is a different level of risk between recording at a therapist’s office, a church, a closed door
legislative session, a baseball game, or a private home or office, but a street address would not
properly inform the judge of these differences. Furthermore, even some locations with street
addresses, such as state parks, cover many square miles of area quite distant from the location
of their official street address. A street address, while sometimes useful for assisting a judge in
determining whether to grant authorization, is merely one possible means of informing the judge
of the location of the particular place where a recording is expected to occur.
13
No. 78413-7-1/14
will occur, we are conscious of our decision in D.J.W., stating that the
requirements set forth in RCW 9.73.130 provide protection against “unfettered
discretion in the hands of the recording party.” 76 Wash. App. at 145. Thus, our
inquiry is to determine whether the application sufficiently identified the character
and location of the particular place where recording of the oral communication
was expected to occur such that it was not seeking unfettered discretion to
record.11
However, the privacy act does not set forth definitions for “character and
location” nor for “particular place.” Thus, we again look to dictionary definitions to
assist in ascertaining the meaning of the statutory language. LaCoursiere, 181
Wash. 2d at 741-42. Webster’s Third New International Dictionary defines
“character” as “one of the essentials of structure, form, materials, or function that
together make up and usu. distinguish the individual,” and as the “main or
essential nature esp. as strongly marked and serving to distinguish.” WEBSTER’S,
supra, at 376. “Location” is defined as “a position or site occupied or available
for occupancy (as by a building) or marked by some distinguishing feature” and
as “an area or tract of land.” WEBSTER’S, supra, at 1327. “Particular” is defined
as “of, relating to, or being a single definite person or thing as distinguished from
some or all others.” WEBSTER’S, supra, at 1646. And “place” is defined as “an
indefinite region or expanse” and as “a particular portion of a surface.”
1~ We therefore reject the State’s assertion at oral argument that it was sufficient for the
application to describe the recording equipment used to make the recording and to state that the
equipment was placed on Lucky and Reno. Such a description clearly does not place any actual
limits on recording because Lucky and Reno could carry the equipment attached to their persons
almost anywhere.
14
No. 78413-7-1/15
WEBSTER’S, supra, at 1727. Thus, RCW 9.73.130(3)(d) requires an application to
include a description of the nature and position of a region, or area, such that it
can be identified and distinguished from other areas.
Although of limited help, two cases provide some insight into that which
constitutes a sufficient description of the character and location of the particular
place where an oral communication is to be recorded. See Porter, 98 Wash. App.
631; Knicjht, 54 Wash. App. 143. However, neither of these cases determined that
which constitutes a sufficient description of the “character and location” of the
“particular place where the oral communication is to be recorded.”
In Kni9ht, the defendant, having been charged and convicted of two
counts of delivery of a controlled substance, asserted on appeal that the
application for the authorization to record him, on multiple occasions, delivering
cocaine to an undercover officer did not include a sufficient description of the
location of all the places at which the police anticipated the recordings would
occur. 54 Wash. App. at 149. Division Three rejected this argument, noting that
“[t]he application specifically identified two locations, one of which was the
address where the recorded communications actually occurred.”12 Kniciht, 54
Wash. App. at 149. Thus, it is clear that an application satisfies the location
requirements of RCW 9.73.130(3)(d) if it included the location of the place where
the recording actually occurs, regardless of whether it included the locations of
12 The legislature had not yet added subsection (5) to ROW 9.73.090 at the time the
police applied for and obtained an order authorizing the recording of Knight. See former ROW
9.73.090, LAWS OF 1986, ch. 38, § 2. Thus, even though Knight was being recorded as part of an
investigation into the crime of delivery of a controlled substance, the application was still required
to include the character and location of the particular place where the communication was to be
recorded under ROW 9.73.130.
15
No. 78413-7-1/16
other places the police may have anticipated recording.
In Porter, the defendant was charged and convicted with possession of
methamphetamine, but asserted on appeal that the application for authorization
to record him discussing obtaining methamphetamines did not sufficiently
describe the particular place where his communications would be recorded. 98
Wash. App. at 634, 637. The application stated that recordings would occur in
unknown locations in Yakima County or adjacent counties.13 Porter, 98 Wash. App.
at 633. In response, the State asserted that no location was required to be
included in the application at all because of RCW 9.73.090(5). Porter, 98 Wn.
App. at 637.
The court rejected the State’s argument, noting that Porter was charged
only with possession, not with any intent to manufacture, deliver, or sell
controlled substances, and that, therefore, ROW 9.73.090(5) was inapplicable.
Porter, 98 Wash. App. at 637. It appears that the State did not present any
argument that its application satisfied the requirements of ROW 9.73.130(3)(d),
as the court did not discuss any such contention. Ultimately, the court concluded
that the application failed to satisfy several of the requirements set forth in RCW
9.73.130, including the requirement in subsection (3)(d). Porter, 98 Wash. App. at
632. Thus, Porter stands for the unremarkable proposition that an application
that provides only that the recording may occur in any “unknown location” within
any one of nine different counties is insufficient to satisfy the requirements of
ROW 9.73.130(3)(d).
13Yakima County is adjacent to eight counties: Benton, Grant, King, Kittitas, Klickitat,
Lewis, Pierce, and Skamania.
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No. 7841 3-7-1/17
We now consider the application for an authorization to record submitted
herein. The application stated that James and his brothers had been “staying
near/under 4th Ave South and Edgar Martinez Way” in Seattle.14 It further stated
that the recordings were “expected to occur somewhere in or around Seattle in
one of the many homeless camps in the area.” The application noted that
because James and his family were homeless “and move around, it is impossible
to predict where the conversation may take place[.] Investigators do believe they
will remain in the area, and within King County.” After receiving authorization,
Lucky and Reno met with James and his brothers at the homeless encampment
the brothers were staying in at the time. Although Lucky was unable to identify a
street address for the encampment, he explained that it was near the stadium
and across the street from a clothing donation store similar to a Goodwill. This
location is approximately a block and a half north of the intersection of 4th
Avenue South and Edgar Martinez Drive South.15
We conclude that this information was minimally adequate to satisfy the
requirement of RCW 9.73.130(3)(d) that the application set forth the character
and location of the particular place where recording is expected to occur. The
application accurately stated that recording was expected to occur in a homeless
encampment in Seattle. Additionally, the recording actually took place only a
14 Again, there is no Edgar Martinez Way that intersects with 4th Avenue South in
Seattle. Instead, there is an Edgar Martinez Drive South that intersects with 4th Avenue South.
15 Location of Salvation Army Family Store & Donation Center, GOOGLE MAPS,
htt~s://www.qoog le.com/maps/placelThe+Salvation+Army+Family+Store+%26+Donation+Center/
@47.592941,-
122.3322453,1 6z/data=!4m8! 1 m2!2m 1! 1 sSalvation+army+family+store+4th+ave+s!3m4! 1 sOxO:O
x623e820aa957ec22! 8m2!3d47.594304! 4d-1 22.3284534 [https://perma.cc/CEG9-C2PQ].
17
No. 78413-7-1/18
block and a half away from the cross street identified in the application.16 Even
read at its broadest, the application herein specified that the recording was
expected to occur in a homeless encampment in Seattle, and certainly within
King County. This is far more specific than the language—describing unknown
locations in one of nine counties—rejected as insufficient in Porter. Contrary to
J.K.T.’s assertions, this application plainly did not seek “unfettered discretion” to
record anywhere in King County but, rather, sought authorization to record
James at his homeless encampment in Seattle, likely located near the
intersection of 4th Avenue South and Edgar Martinez Drive South. This is
exactly what occurred. The application satisfied the requirements of RCW
9.73.1 30(3)(d). The trial court properly ruled that this was so.
B
J.K.T. next contends that the admission of the recording of his brothers
discussing the shooting violated his right to confront the witnesses against him,
guaranteed by article I, section 22 of the Washington Constitution.17 In response,
the State notes that J.K.T. did not raise this argument before the trial court and
asserts that J.K.T. has therefore forfeited any right to raise this argument on
appeal. The State is correct.
16 Given the close proximity and the nebulous nature of homeless encampments, in that
they do not typically have set street addresses or boundaries, it is possible that James was living
in the same homeless encampment at the time of the recording as when he was observed at the
cross streets identified in the application. Even were this not so, it is clear that the recording took
place in close proximity to the cross streets identified in the application.
17 To reiterate, J.K.T. does not challenge the trial court’s ruling that admission of the
recording did not violate J.K.T.’s right to confront the witnesses against him as guaranteed by the
Sixth Amendment to the United States Constitution. His contention on appeal is solely that his
right to confront witnesses, as guaranteed by the Washington Constitution, was violated. He did
not raise this argument in the trial court.
18
No. 78413-7-1/19
As our Supreme Court noted in State v. Burns, 193 Wash. 2d 190, 207, 438
P.3d 1183 (2019), both the Sixth Amendment to the United States Constitution
and article I, section 22 of the Washington Constitution afford the accused the
right to be confronted with the witnesses against him or her. However, approving
of our ruling in State v. O’Cain, 169 Wash. App. 228, 279 P.3d 926 (2012), the
Supreme Court adopted “a requirement that a defendant raise an objection at
trial or waive the right of confrontation.” Burns, 193 Wash. 2d at 210-11. The court
explained that “[w]here 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.” Burns, 193 Wash. 2d at 211 (quoting State v. Fraser, 170 Wash. App. 13,
25-26, 282 P.3d 152 (2012)).
J.K.T. concedes that he did not raise his state constitutional confrontation
clause claim in the trial court, but asserts that we should nevertheless consider
his argument on appeal because it satisfies the requirements of RAP 2.5(a)(3).18
This is contrary to Burns. 19 Burns, citing to both the federal and state
confrontation clauses, is clear that a defendant forfeits the right to confront the
witnesses against him or her if the defendant does not assert such a right at trial
by raising an objection. 193 Wash. 2d at 210-11. Furthermore, as Burns notes,
without an objection, there simply is no denial of the defendant’s right to confront
witnesses and there can be no error. Thus, there was no denial of J.K.T.’s right
18 This rule permits review of errors raised for the first time on appeal when the error is a
“manifest error affecting a constitutional right.” RAP 2.5(a)(3).
19 J.K.T. does not even cite to Burns in his briefing and makes no effort to argue that it is
inapplicable herein. We follow Burns.
19
No. 78413-7-1/20
to confront the witnesses against him as guaranteed by the Washington
Constitution.
III
J.K.T. next contends that the trial court erred when it prohibited him from
eliciting testimony from Bauer as to hearsay statements uttered by Ace and
Francis regarding the shooting. According to J.K.T., the trial court’s application
of a nine-factor test promulgated by our Supreme Court for determining the
reliability of hearsay statements made against penal interest—used to determine
whether they are admissible under ER 804(b)(3)—was improper because the test
is premised on a now overruled United States Supreme Court decision setting
forth reliability requirements for inculpatory statements from witnesses. J.K.T.
further asserts that the hearsay statements made against penal interest that he
sought to admit satisfied the requirements of ER 804(b)(3), and, therefore, that
exclusion of the statements violated J.K.T.’s constitutional right to present a
defense. In response, the State asserts that J.K.T. is mistaken that the nine-
factor reliability test is premised on now overruled United States Supreme Court
precedent, that J.K.T.’s proffered hearsay statements are unreliable under the
test, and that exclusion of the statements was therefore proper and not a
violation of J.K.T.’s right to present a defense. The State has the better
arguments.
“Decisions involving evidentiary issues lie largely within the sound
discretion of the trial court and will not be reversed on appeal absent a showing
of abuse of discretion.” State v. Castellanos, 132 Wash. 2d 94, 97, 935 P.2d 1353
20
No. 78413-7-1/21
(1997). Thus, a trial court’s decision on the reliability of a hearsay statement
made against penal interest, under ER 804(b)(3), is reviewed for an abuse of
discretion. State v. McDonald, 138 Wash. 2d 680, 693, 981 P.2d 443 (1999).
Hearsay statements are generally not admissible, but there are
exceptions. ER 802. One such exception is set forth by ER 804(b)(3):
(b) Hearsay Exceptions. The following are not excluded by
the hearsay rule if the declarant is unavailable as a witness:
(3) Statement AgaInst Interest. A statement which was at
the time of its making so far contrary to the declarant’s pecuniary or
proprietary interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the declarant’s
position would not have made the statement unless the person
believed it to be true. In a criminal case, a statement tending to
expose the declarant to criminal liability is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of
the statement.
A hearsay statement made against penal interest is admissible when three
requirements are met: (1) the declarant is unavailable to testify, (2) the
declarant’s statement must tend to subject him or her to criminal liability, and (3)
the statement must be corroborated by circumstances indicating its
trustworthiness. State v. Valladares, 99 Wash. 2d 663, 668, 664 P.2d 508 (1983).
Our Supreme Court long ago established that to determine whether a hearsay
statement against interest satisfies the requirement of trustworthiness, courts
should assess a statement’s reliability using a nine-factor reliability test. State v.
Roberts, 142 Wash. 2d 471, 497-98, 14 P.3d 713 (2000); State v. Welchel, 115
Wash. 2d 708, 722, 801 P.2d 948 (1990); State v. Anderson, 107 Wash. 2d 745, 750,
733 P.2d 517 (1987); see also State v. Parris, 98Wn.2d 140, 151, 654 P.2d 77
21
No. 78413-7-1/22
(1982). The nine factors are:
1. Was there an apparent motive for declarant to lie?
2. What was the declarant’s general character?
3. Did more than one witness hear declarant’s statement?
4. Was the statement made spontaneously?
5. Did the timing of the statements and the relationship between
declarant and witness suggest trustworthiness?
6. Does the statement contain an express assertion of past facts?
7. Did the declarant have personal knowledge of the identity and
role of the crime’s other participants?
8. Was the declarant’s statement based upon faulty recollection?
9. Was the statement made under circumstances that provide
reason to believe the declarant misrepresented defendant’s
involvement in the crime?
Roberts, 142 Wash. 2d at 497-98 (citing McDonald, 138 Wash. 2d at 694).
The trial court herein ruled that consideration of each of these nine factors
weighed against concluding that the hearsay statements of Ace and Francis were
reliable. J.K.T. asserts that the trial court abused its discretion when it concluded
that (1) Ace and Francis had a motive to lie because they wanted to dissuade
Bauer from testifying, (2) Ace’s and Francis’s statements were not spontaneous
because Ace and Francis visited Bauer expressly to discuss the shooting, (3) the
timing of the statements, being three months after the shooting, did not support a
finding of credibility, (4) forensic evidence contradicted Ace’s and Francis’s
retelling of the shooting, and (5) reason existed to suspect Ace and Francis were
trying to assist J.K.T. and his brothers. We disagree.
First, J.K.T. asserts that Ace and Francis did not have a motive to lie
because they told Bauer that her memory of the shooting was accurate. This has
nothing to do with Ace’s and Francis’s motives and does not establish that the
trial court erred when it found that Ace and Francis had a motive to lie.
22
No. 78413-7-1/23
Second, J.K.T. asserts that the trial court’s finding that the statements
were not spontaneous was based on an improper interpretation of controlling law
because Ace and Francis were not questioned about the shooting and
statements are spontaneous unless made in response to direct questioning.
J.K.T. cites to State v. Ryan, 103 Wash. 2d 165, 691 P.2d 197 (1984) and Parris, 98
Wash. 2d 140, to support his position, but neither of these cases holds that only
statements elicited by direct questioning are not spontaneous. Although those
cases involved hearsay statements elicited by direct questioning, their results do
not dictate that statements not resulting from direct questioning are necessarily
spontaneous. See Ryan, 103 Wash. 2d at 176; Parris, 98 Wash. 2d at 163. J.K.T.
does not establish that the trial court’s conclusion—that Ace and Francis sought
out Bauer to tell her about the shooting, that their statements were planned, and
that this indicated that the statements were less reliable—was an abuse of
discretion.
Third, J.K.T. asserts that the trial court abused its discretion when it
determined that the fact that Ace and Francis only came to discuss the shooting
with Bauer three months after it occurred made the statements less reliable. This
is a mischaracterization of the trial court’s ruling. The trial court explicitly stated
that “[t]hree months is not so long a time that memory would be faulty.”
However, the trial court concluded that the two year gap between Bauer’s
conversation with Ace and Francis and the time when Bauer would be testifying
to their hearsay statements, was long enough to potentially cast doubt on her
ability to accurately recall their statements. Thus, the trial court simply did not
23
No. 78413-7-1/24
conclude that the three-month gap made the statements less reliable and J.K.T.
has not established an abuse of discretion.
Fourth, J.K.T. asserts that the evidence does not support the trial court’s
conclusion that other evidence, particularly forensic evidence, contradicts Ace’s
and Francis’s statements of past fact. Specifically, J.K.T. asserts that the trial
court misstated that Ace and Francis told Bauer that Juice shot Bauer and
Shinault when Bauer really claimed they told her that Juice shot Bauer and
Brooks. Although the trial court did misstate who, according to Bauer, shot
whom, the evidence still supports the trial court’s conclusion. For example, the
forensic evidence conflicted with Ace’s and Francis’s statements because
forensic evidence showed that there were two shooters who used the .45 and .22
caliber firearms possessed by James and his brothers. However, Ace and
Francis had told Bauer that there were three shooters and that the brothers were
not involved in the shooting. J.K.T. does not establish that the trial court abused
its discretion by concluding that forensic evidence conflicted with Ace’s and
Francis’s hearsay statements.
Fifth, J.K.T. asserts that the trial court abused its discretion when it
inferred that Ace and Francis may have been trying to assist James and his
brothers by creating doubt for Bauer’s testimony because they were part of
James’s community. J.K.T. essentially asserts that such an inference is
unreasonable. But, while additional evidence of a closer relationship between
Ace, Francis, and James and his brothers would have been stronger supporting
evidence for such an inference, it was not unreasonable for the trial court to
24
No. 78413-7-1/25
conclude that Ace and Francis may have sought to assist James and his brothers
as members of their community.
J.K.T. does not establish that the trial court abused its discretion when it
applied the nine-factor reliability test and determined that Ace’s and Francis’s
hearsay statements were not sufficiently reliable to permit their admission into
evidence under ER 804(b)(3).
J.K.T. also attempts to frame this issue as a violation of his right, under
the Sixth Amendment to the United States Constitution, to present a defense,
which would require de novo review.20 State v. Jones, 168 Wash. 2d 713, 719, 230
P.3d 576 (2010). In so doing, he urges us to disregard binding Supreme Court
precedent authorizing the exclusion of evidence under ER 804(b)(3). He
contends that the nine-factor test required by our Supreme Court is obsolete and
unconstitutional because it is premised on an analysis of the federal
confrontation clause that the United States Supreme Court rejected in Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). J.K.T. is
wrong.
J.K.T.’s assertion is clearly rebutted by Roberts. See 142 Wash. 2d at 496-
97. Therein, the defendant sought to present hearsay statements made by
others against their penal interests that he asserted were exculpatory, but the
statements were excluded by the trial court. Roberts, 142 Wash. 2d at 481-83. On
20The Sixth Amendment guarantees a criminal defendant a meaningful opportunity to
present a complete defense, including the right to offer testimony and compel witnesses to testify.
State v. Lizarraga, 191 Wash. App. 530, 551-52, 364 P.3d 810 (2015) (citing Holmes v. South
Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)). A defendant, however,
does not have the right to offer incompetent, privileged, or otherwise inadmissible evidence.
Tavlorv. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646,98 L. Ed. 2d 798 (1988).
25
No. 78413-7-1/26
review, our Supreme Court noted that the confrontation clause was not at issue
because the statements were offered by the defendant. Roberts, 142 Wash. 2d at
497. The court explained that this created a presumption in favor of the
admissibility of the statements, but did not guarantee they would be admitted.
Roberts, 142 Wash. 2d at 496. Before being admitted, the court stated, the
statements must be determined to be reliable through application of the nine-
factor reliability test.21 Roberts, 142 Wash. 2d at 496-98. Thus, it is clear that the
nine-factor reliability test remains the law regarding the application of ER
804(b)(3) to statements made against penal interest offered by a defendant—
regardless of any changes to the United States Supreme Court’s interpretation of
the federal constitution’s confrontation clause.
The trial court was bound to apply the nine-factor reliability test set forth in
numerous Supreme Court decisions. J.K.T. does not cite to any authority
supporting his position that he has a constitutional right to present unreliable
hearsay evidence. The trial court did not err by applying the nine-factor reliability
test, and did not abuse its discretion when it concluded that the hearsay
statements were unreliable and, therefore, inadmissible.22
21 Indeed, other cases confirm that the reliability requirement was originally imposed to
prevent the admission of unreliable exculpatory statements. ~ Whelchel, 115 Wash. 2d at 716
(“The rule itself expressly requires corroboration only of statements exculpating the accused.
Case law, however has imposed this requirement for inculpatoty statements as well.” (footnote
omitted)); State v. Nq, 104 Wash. 2d 763, 774, 713 P.2d 63 (1985) (“‘[S]tatements . . tending to
.
exculpate the accused are more suspect and so should have their admissibility conditioned upon
some further provision insuring trustworthiness.” (alterations in original) (quoting FED. R. EvID.
804(b)(3))).
22 Because we conclude that the trial court’s ruling excluding Ace’s and Francis’s hearsay
statements was not erroneous, we need not consider the State’s arguments that the exclusion of
the statements was, if erroneous, harmless.
26
No. 7841 3-7-1/27
Iv
Finally, J.K.T. contends that article I, sections 3 and 21 of the Washington
Constitution guaranteed him a right to a jury trial and that the trial court denied
him this right. This is well-trod ground. The state legislature has mandated that
“[c}ases in the juvenile court shall be tried without a jury.” RCW 13.04.021(2).
Our Supreme Court has consistently held that this statute does not violate a
juvenile’s constitutional rights. See State v. Weber, 159 Wash. 2d 252, 149 P.3d
646 (2006); Monroe v. 50hz, 132 Wash. 2d 414, 939 P.2d 205 (1997); State v.
Schaaf, 109 Wash. 2d 1, 743 P.2d 240 (1987); State v. Lawley, 91 Wash. 2d 654, 591
P.2d 772 (1979); Estes v. Ho~, 73 Wash. 2d 263, 438 P.2d 205 (1968). We follow
this longstanding binding precedent in rejecting J.K.T.’s contention.
Affirmed.
WE CONCUR: /
27