State v. Donato

STATE OF WASHINGTON, Respondent, v. SERGIO AGUSTIN DONATO, Appellant.

No. 75690-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 20, 2018

UNPUBLISHED OPINION

TRICKEY, J. — The State charged Sergio Donato with second degree assault by strangulation, felony harassment, and witness tampering, all with domestic violence aggravating factors. At trial, the State introduced a translated transcript of a jail telephone call between Donato and the victim, Flor Elise Rosas-Sosa. The trial court admitted the evidence as Donato's adoptive admissions despite his confrontation clause and hearsay objections. Although Rosas-Sosa's statements were nontestimonial and do not implicate Donato's Sixth Amendment right to confrontation, they were improperly admitted as adoptive admissions. Because the error was not harmless, we reverse and remand for a new trial.

FACTS

Very early on the morning of May 6, 2016, several Renton police officers responded to Flor Elise Rosas-Sosa's 911 call. One of the officers met Rosas-Sosa in a vehicle outside of her residence. Rosas-Sosa was sobbing, shaking, and visibly distressed. She was wet and disheveled and her left knee was scratched and bloody.

Rosas-Sosa spoke Spanish and very little English, and none of the responding officers spoke Spanish. An officer was able to obtain information through a conversation of limited English and hand gestures. The officer concluded that Rosas-Sosa's boyfriend had hit her on the back of her head and dragged her by her hair. The officer also learned that Rosas-Sosa was pregnant.

Rosas-Sosa indicated that the argument had occurred at her nearby residence. When an officer knocked on the door to the residence, Donato opened the door wearing shorts and no shoes. He told the officer that he had just awoken. The officer arrested Donato. He denied hitting Rosas-Sosa. He said she had come home drunk, woken him up, and begun arguing with him.

Donato went to trial on charges of second degree assault by strangulation, felony harassment, and tampering with a witness, all with domestic violence aggravating factors. Neither Donato nor the State expected Rosas-Sosa to testify because she had been unresponsive to both parties and was near the due date for her pregnancy.

At trial, the State offered a translated transcript of a jail telephone call between Rosas-Sosa and Donato.¹ Donato had called Rosas-Sosa from jail soon after his arrest. The jail telephone call began with a warning that such calls are recorded and may be monitored.

The transcript included the following exchanges that detail Rosas-Sosa's description of the alleged assault:

[Rosas-Sosa:] "Baby, but [crying] why do you hurt me?

[Donato:] Look, I'm not going to . . .

[Rosas-Sosa:] There's no need to hit me as if I were a dog.

[Donato:] Sweetie . . . we can't talk about that here, okay?

. . . .

[Rosas-Sosa:] I was really scared, Sergio. I thought you wanted to kill me, and I was afraid. You had never done that before, to try to cut off my breathing. [crying] Never. And that really frightened me. I don't want to die. And you just didn't care, even though you know I'm pregnant. [sobbing]

[Donato:] Anyway, though, sweetie, I'm not going to be able to talk to you anymore. Okay? Because tomorrow they're going to issue a no contact order.

. . . .

[Rosas-Sosa:] I was frightened, Sergio. [crying] I mean, jeez, you wanted to kill me.

[Donato:] No. And let's not talk about that anymore here, okay?

. . . .

[Rosas-Sosa:] But since I'm soft, your hands don't hurt—that's why you prefer to hit me instead.

[Donato:] I can't talk to you here, okay?

. . . .

[Donato:] I can't . . . I can't talk about that. I can't be talking about that here anymore, my love.²

Donato objected to admission of Rosas-Sosa's statements on both confrontation clause and hearsay grounds.³ In the alternative, he requested a limiting instruction to inform the jury that these portions of the transcript were notcompetent evidence to prove his harassment and assault charges. The trial court denied Donato's objection and request for a limiting instruction.

The trial court found that Donato had adopted the statements, "not necessarily by silence, but by failure to object."⁴ Therefore, the statements were admissible as Donato's own statements. This portion of the transcript was admitted as a nonhearsay adoptive admission and was not subject to the confrontation clause. The trial court noted that the decision to admit these portions of the transcript was a threshold determination and that the jury would decide the ultimate issue of whether Donato adopted the statements.

Rosas-Sosa did not testify at trial. The State played a redacted version of the original jail telephone call recording in Spanish. The trial court admitted the redacted and translated transcript into evidence.

The jury acquitted Donato of second degree assault by strangulation and convicted him of the lesser degree offense of fourth degree assault. The jury also convicted Donato of felony harassment and witness tampering and found domestic violence aggravating factors on all three convictions.

Donato appeals.

ANALYSIS

Confrontation Clause

Donato claims that admission of the challenged portions of the transcript violated his Sixth Amendment right to confrontation. Specifically, he argues that Rosas-Sosa's statements were the functional equivalent of testimony to agovernment agent because of the automated voice notification that the telephone call was recorded. We disagree.

The Sixth Amendment of the United States Constitution provides criminal defendants the right "to be confronted with the witnesses against him." U.S. CONST. amend VI. To protect this right, the confrontation clause bars out-of-court testimonial statements unless the witness is unavailable to testify and the defendant had prior opportunity for cross-examination. State v. Beadle, 173 Wn.2d 97, 107, 265 P.3d 863 (2011) (citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). But "not all out-of-court statements give rise to the protections of the confrontation right because not all speakers are acting as a 'witness' against the accused as described in the Sixth Amendment." State v. Wilcoxon, 185 Wn.2d 324, 325, 373 P.3d 224 (2016) (citing Crawford, 541 U.S. at 51). The confrontation clause applies only to "testimonial" statements. Wilcoxon, 185 Wn.2d at 331.

A testimonial statement "is designed to establish or prove some past fact, or is essentially a weaker substitute for live testimony at trial." Wilcoxon, 185 Wn.2d at 334. Such a statement is "the functional equivalent of in-court testimony." Wilcoxon, 185 Wn.2d at 334. A statement is testimonial when, "in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony." Ohio v. Clark, ___U.S.___, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306 (2015) (alteration in original) (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)); see State v. Streepy, 199 Wn. App. 487, 494, 400 P.3d 339, review denied, 189Wn.2d 1025, 406 P.3d 283 (2017). "[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." Bryant, 562 U.S. at 360: see Streepy, 199 Wn. App. at 494.

In addition, the recipient of the statements is highly relevant. State v. Scanlan, 2 Wn. App.2d 715, 728, 413 P.3d 82 (2018), petition for review filed, No. 95971-4 (Wash. June 18, 2018). "Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers." Clark, 135 S. Ct. at 2182; see Scanlan, 2 Wn. App.2d at 728.

The appellate court only examines whether a defendant's right to confrontation was violated if the given statement is testimonial. Wilcoxon, 185 Wn.2d at 331-32. Appellate courts review alleged violations of the confrontation clause de novo. State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012).

In this case, Rosas-Sosa statements were not an effort to create out-of-court substitute testimony. Rather, they reflect her attempt to have Donato account for his abusive behavior. She expressed her fear of Donato's actions and asked why he had hurt her. From the circumstances and content of the conversation, Rosas-Sosa's purpose was to voice her fear and attempt to understand Donato's behavior. Rosas-Sosa was discussing her relationship with her boyfriend, not establishing Donato's guilt for prosecution.

Further, additional topics of the conversation underscore that Rosas-Sosa's purpose was not to create substitute testimony for use in prosecution. During the telephone call, Rosas-Sosa and Donato discussed ways to minimize the criminal charges and circumvent the impending no contact order. Thus, Rosas-Sosa was helping to undermine, not to assist, the prosecution.

We conclude that Rosas-Sosa's statements were not testimonial and, therefore, did not implicate Donato's rights under the confrontation clause.

Adoptive Admission

Donato claims that the trial court erred by admitting portions of the transcript containing Rosas-Sosa's description of the events as nonhearsay adoptive admissions. We agree. Rather than adopt Rosas-Sosa's statements, Donato repeatedly objected to discussing her accusations.

Admissions by party-opponents are excluded from the definition of "hearsay." ER 801(d)(2). This includes adoptive admissions which are "statement[s] of which the party has manifested an adoption or belief in its truth." ER 801(d)(2)(ii).

"[W]hen a statement is made in the presence and hearing of an accused that is accusatory or incriminating in character, and such statement is not denied,...