State v. D.K.

507 P.3d 859

STATE of Washington, Respondent,

v.D.K., Appellant.

No. 82596-8-I

Court of Appeals of Washington, Division 1.

FILED March 14, 2022

Ordered Published Date April 6, 2022

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Appelwick, J.

¶ 1 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

¶ 2 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.

¶ 3 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.

¶ 4 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."

¶ 5 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 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).

¶ 6 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.

¶ 7 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.

¶ 8 The court found D.K. to be guilty of attempted child molestation in the first degree. D.K. appeals.

DISCUSSION

I. Applicable Law

¶ 9 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 Wash. 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).

¶ 10 "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, 110 S. Ct. 3157. 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. ¶ 11 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, 110 S.Ct. 3157. The court held that video testimony was necessary for children to testify, when those children would be traumatized by seeing the defendant in court. Id. at 856-57, 110 S. Ct. 3157. 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, 110 S. Ct. 3157. 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, 124 S.Ct. 1354.

¶ 12 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.

¶ 13 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, 124 S.Ct. 1354 (Rehnquist, J., concurring). Because Crawford did not explicitly overrule Craig, the two cases must be reconciled. Additionally, Washington cases have followed Craig since Crawford has been decided.¹ See Sweidan, 13 Wash. App. 2d at 63, 461 P.3d 378. Here, because Craig refers to live, remote, video testimony, we apply the rule in Craig.

II. Confrontation Clause

¶ 14 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, 110 S.Ct. 3157 ; State v. Foster, 135 Wash.2d 441, 457, 957 P.2d 712 (1998). A confrontation clause challenge is reviewed de novo. State v. Koslowski, 166 Wash.2d 409, 417, 209 P.3d 479 (2009). D.K. argues that neither element of the Craig test has been met.

A. Necessity

¶ 15 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, 110 S.Ct. 3157. 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. at 840-41, 856, 110 S. Ct. 3157. In addition to the court finding necessity for 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, 110 S. Ct. 3157.

¶ 16 Washington courts have applied a necessity analysis for the same issue using RCW 9A.44.150(1), which had substantially ...