State v. Milko

21 Wash.App.2d 279

505 P.3d 1251

STATE of Washington, Respondent,

v.Navin Avery MILKO, Appellant.

No. 55267-1-II

Court of Appeals of Washington, Division 2.

Filed March 15, 2022

Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave., Ne # 552, Seattle, WA, 98105-4183, for Appellant.

Anne Elizabeth Egeler, Prosecuting Attorney Pierce County, Pierce County Prosecutor's Office, 930 Tacoma Ave., S. Rm. 946, Tacoma, WA, 98402-2171, for Respondent.

PART PUBLISHED OPINION

Maxa, P.J. ¶ 1 Navin Milko appeals his multiple convictions arising from five incidents in which he accosted paid escorts he had arranged to meet. Specifically, he challenges on confrontation clause grounds the trial court's ruling allowing two out-of-state witnesses to testify by video because of COVID-19 concerns. In a statement of additional grounds (SAG), Milko challenges his convictions and his exceptional sentence.

¶ 2 A criminal defendant's right to have witnesses physically present at trial is meaningful and important. But it is not an indispensable element of the constitutional right of confrontation, and may be overridden when (1) "excusing the physical presence of the particular witness is necessary to further an important public policy" and (2) "the reliability of the testimony is otherwise assured." State v. Foster , 135 Wash.2d 441, 466, 957 P.2d 712 (1998). The trial court entered findings supporting both prongs of this test with regard to the two witnesses.

¶ 3 We hold that the trial court did not err when it allowed the two out-of-state witnesses to testify by video based on necessity for public policy reasons because they both had significant health-related concerns about contracting COVID-19 if forced to travel to Washington by air. In the unpublished portion of this opinion, we reject Milko's SAG claims. Accordingly, we affirm Milko's convictions and sentence.

FACTS

Background

¶ 4 In 2018, Milko on five separate occasions contacted women who worked as paid escorts and arranged to meet them at houses in Puyallup that he did not live in or own. When each woman arrived, Milko displayed a knife in an attempt to take their money or to rape them.

¶ 5 Milko raped one woman, BP. BP was examined at the hospital by Jenny Biddulph, a sexual assault nurse examiner, who completed a rape kit. A forensic scientist later confirmed that the samples from the rape kit matched Milko's DNA. The police eventually detained Milko, who admitted during a police interview that he had sex with BP.

¶ 6 The State charged Milko with 12 felony offenses related to the five incidents and five victims: one count of first degree rape of BP, two counts of second degree burglary of BP and a woman named AQ, two counts of attempted first degree rape of AQ and a woman named CD, one count of first degree burglary of a woman named AB, two counts of attempted first degree kidnapping of AB and a woman named KT, two counts of attempted first degree robbery of AB and CD, one count of attempted first degree burglary of KT, and one count of felony harassment of AB. The State also alleged three aggravating factors.

¶ 7 In 2009 and 2010, Milko had engaged in two similar incidents in Florida involving paid escorts. There, Milko had contacted a woman named JA and another woman on separate occasions and asked them to meet him at a house that he did not live in or own. Milko raped both women at knifepoint. Milko pled guilty to charges related to both incidents.

Request to Allow Video Testimony

¶ 8 Milko's trial was set for July 2020, after COVID-19 had been declared a global pandemic and a national emergency in the United States. In February 2020, Governor Jay Inslee had proclaimed a state of emergency in Washington. He issued a number of proclamations designed to help curb the spread of COVID-19. The Supreme Court ordered all courts to follow the most protective public health guidance applicable in their jurisdiction and to use remote proceedings for public health and safety whenever appropriate.

¶ 9 During this state of emergency, the Center for Disease Control and Prevention (CDC) and the Washington Department of Health recommended social distancing measures of at least six feet between people and encouraged vulnerable individuals to avoid public spaces. The CDC encouraged people to avoid traveling because travel increased a person's chance of getting infected and spreading COVID-19. The CDC noted that older adults and people of any age with serious underlying medical conditions, such as diabetes and asthma, were at a higher risk for severe illness from COVID-19.

¶ 10 Before trial, Biddulph and JA informed the State that they were not able to fly to Washington to give their trial testimony in person because of significant health concerns related to COVID-19. Biddulph had moved to Virginia since examining BP and JA now lived in North Carolina. The State requested that the trial court allow Biddulph and JA to testify remotely by two-way video. In its request for video testimony, the State included several exhibits related to the pandemic, declarations from Biddulph and JA, and a letter from Biddulph's nurse practitioner. The court tentatively granted the motion, subject to an offer of proof as to why Biddulph and JA could not testify in person and a test run of the video and audio set-up.

¶ 11 The trial court held a hearing where it tested the video and audio equipment for remote testimony. Biddulph and JA both provided testimony about their concerns about flying to Washington, and the State and Milko questioned them about why they could not testify in person.

¶ 12 Biddulph stated in her declaration and at the hearing that she was concerned about flying because it would place her and her family at a significantly higher risk of exposure to COVID-19. Biddulph explained that she had three children and a husband who was attending school. She stated that she had stopped working as a nurse for her family's safety and to take care of her children, including a one-year-old baby who required specialized care due to feeding and weight gain issues. Biddulph's health care provider stated in a letter that it was not safe for Biddulph to travel because she had an infant at home.

¶ 13 Biddulph also stated that she and her husband had no local support system because their families lived abroad and that there would be no one available to take care of their children if either of them contracted COVID-19 or if she was to comply with the Virginia Department of Health's recommendation to self-quarantine for two weeks after returning home.

¶ 14 JA stated in her declaration and at the hearing that she was concerned about flying from South Carolina to Washington while wearing a mask because she had asthma, which made her a high-risk individual who was vulnerable to suffering severe health complications if she contracted COVID-19. She also explained that she could not wear a mask for a long period of time because wearing a mask constricted her breathing. She stated that her doctor had suggested that she avoid traveling or comingling around other people because of her status as a high-risk person. JA explained that she also had hypertension and diabetes, which were two additional medical conditions that made her a high-risk person.

¶ 15 The trial court granted the State's request to allow Biddulph and JA to testify remotely and entered detailed findings of fact and conclusions of law.

¶ 16 The court made the following finding regarding Biddulph:

15. The court finds that Ms. Biddulph's testimony is necessary and that she cannot travel to Washington to testify because travel will place her at a significantly higher risk of exposure to the virus and that, in turn, will require her to quarantine, which she lacks the wherewithal to do while maintaining custody of her dependent children. Live testimony by Ms. Biddulph will place her and her children at an unreasonable risk of family separation and financial hardship.

Clerk's Papers (CP) at 512.

¶ 17 The court made the following finding regarding JA:

18. The court finds that J.A.’s testimony is necessary. The court finds that J.A.’s health concerns are warranted given the current circumstances with COVID-19. The court also finds that J.A.’s health is currently compromised, and she is at a higher risk of serious medical complications should she contract COVID-19. The court also finds that the witness cannot travel to Washington to testify because her health does not permit her to abide by airline mask requirements.

CP at 512.

¶ 18 The court entered the following conclusions of law:

1. There is a compelling interest that has demonstrated that due to the COVID-19 pandemic, there is a need to maintain appropriate social distancing in the courtroom.

2. This compelling interest has been recognized by the emergency proclamations made by Governor Jay Inslee and the Washington Supreme Court.

....

4. As a result, there is a compelling interest requiring the court to conduct trial in a manner that will protect the health and safety of the parties, jurors, counsel, court staff, witnesses, and the public.

5. This compelling interest in health and safety in the midst of a global pandemic is an important public policy that requires the court to utilize remote testimony to ensure the safety of witnesses.

6. The utilization of remote testimony necessarily furthers this important public policy of ensuring the health and safety of the parties, jurors, counsel, court staff, witnesses, and the public.

CP 514-15.

¶ 19 The court also entered the following findings of fact regarding the technology used to present the remote testimony:

22. Using an enhanced audio system in trial, the audio presentation of witnesses during trial was sufficient to allow the parties and the jurors to hear and understand what was being said by the witnesses, and it allowed the court reporter to make an adequate record of the language being used. The audio presentation allowed parties and the jurors to understand the words, emotions,

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