State v. Sweidan

13 Wash.App.2d 53

461 P.3d 378

STATE of Washington, Respondent,

v.Abdul Rahman SWEIDAN, Appellant.

No. 36060-1-III

Court of Appeals of Washington, Division 3.

FILED APRIL 21, 2020

Jennifer M. Winkler, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.

Andrew Kelvin Miller, Terry Jay Bloor, Benton County Prosecutors Office, 7122 W. Okanogan Pl. Bldg. A, Kennewick, WA, 99336-2359, for Respondent.

PUBLISHED IN PART OPINION

FEARING, J.

Now when some days had passed, Agrippa the king and Bernice arrived at Caesarea to welcome Festus. And as they stayed there many days, Festus laid Paul’s case before the king, saying, "There is a man left prisoner by Felix; and when I was at Jerusalem, the chief priests and the elders of the Jews gave information about him, asking for sentence against him. I answered them that it was not the custom of the Romans to give up any one before the accused met the accusers face to face, and had opportunity to make his defense concerning the charge laid against him . ACTS 25:16 (Revised Standard Version) (emphasis added).

¶ 1 This appeal raises important constitutional questions that Washington trial courts may increasingly face with the increased use of courtroom technology. Appellant Abdul Sweidan claims the trial court denied his right to face-to-face confrontation by allowing an Arabic interpreter, who overheard Sweidan mutter incriminating statements while Sweidan received medical treatment at a hospital emergency room, to testify by video conference. The interpreter resided in Michigan, where she attended to her critically ill mother.

¶ 2 In the published section of our opinion, we hold that the trial court failed to adequately conduct a hearing and explain its ruling when authorizing video conference testimony. From experience, we recognize the difficulty encountered by superior courts when confronting unique questions of law during the course of a trial with the lack of time and resources to study the questions. Because we find any constitutional error to be harmless, we would otherwise not discuss the underlying merits of Abdul Sweidan’s challenge to the video testimony, but we do so in this instance to provide guidance for trial courts asked to permit remote testimony in criminal prosecutions. In the unpublished portion of our opinion, we explain our ruling of harmless error.

¶ 3 Abdul Sweidan also assigns error to his daughter’s testifying to his guilt, his exceptional sentence, the length of a no-contact order with his children, and the extent of his legal financial obligations. In the unpublished segment of our opinion, we affirm Sweidan’s conviction for attempted second degree murder and his exceptional sentence. We remand for further consideration of the no-contact order and for the striking of a criminal filing fee as a financial obligation.

FACTS

¶ 4 The State of Washington prosecuted appellant Abdul Sweidan for repeatedly stabbing his wife, Dania Alhafeth, on August 30, 2017. We borrow the facts from trial testimony. We reserve most of the facts for the unpublished section of the opinion.

¶ 5 Abdul Sweidan and Daniah Alhafeth resided in a Kennewick apartment with their four children. The couple often quarreled. Sweidan sometimes accused Alhafeth of other romantic interests. Some arguments ended with Sweidan striking or pushing Alhafeth. Occasionally, Alhafeth hit back. When Alhafeth suggested divorce, Sweidan responded that he would rather kill Alhafeth than divorce.

¶ 6 On the night of August 29, 2017, Abdul Sweidan and Daniah Alhafeth bickered, after which Sweidan asked Alhafeth to reconcile. Alhafeth responded that reconciliation meant nothing, because the two would squabble again.

¶ 7 On August 30, 2017, according to the State’s evidence, Abdul Sweidan returned home early from work and brutally stabbed Daniah Alhafeth numerous times with a kitchen knife. During the attack, Sweidan also cut his hand. As she lay bleeding on the living room floor, Alhafeth called a neighbor, who called 911. An ambulance ferried Alhafeth to Kennewick’s Trios Hospital.

¶ 8 Abdul Sweidan drove himself to Trios Hospital for treatment to his hand and arrived at 1:37 p.m. Abdul Sweidan spoke primarily Arabic. During the course of his treatment, Trios Hospital called an Arabic interpreter, who assisted Sweidan in communicating with staff.

¶ 9 Maisa Haddad serves as a certified medical interpreter who works from her home in Michigan, where she also cares for her mother. Haddad provided the Arabic-to-English interpretation, through an iPad, for Abdul Sweidan at Kennewick’s Trios Hospital. Haddad saw Sweidan and the attending physician on her screen while interpreting. Haddad observed Sweidan’s cut fingers and heard him tell the treating physician the injuries occurred while cutting meat. According to Haddad, when medical staff left the room, she sat silently while Sweidan remained on her screen for fifteen minutes. Under company practices, Haddad could not ask the patient any questions. During Haddad’s silence, Sweidan volunteered that his wife had pestered him. Sweidan cursed his wife and uttered: "may God not bless her." Report of Proceedings (RP) (April 5, 2018) at 767. Haddad did not respond to the comments.

PROCEDURE

¶ 10 The State of Washington charged Abdul Sweidan with attempted second degree murder and first degree assault. We outline now only the procedural background relevant to the video conference testimony. Before trial, the State presented a motion that asked permission for Arabic interpreter Maisa Haddad to testify at trial by two-way video conference. In support of the motion, the State submitted a letter from Haddad sent to the prosecuting attorney:

I am writing with regard to the request for me to appear in-person for a testimony on the State [v]. Abdul Sweidan - Trios Hospital Medical Treatment Interpretation case. I need to highlight that I would be unavailable to appear in-person before the court due to inability to travel for the following reason:

I live in Michigan and I am the sole in home care-giver for my senior seriously ill mother who is suffering from serious medical conditions that require continuous medical care and I have to be available by her side at all times attending to her medical and other needs. My mother suffers from esophageal cancer and serious heart disease and has recently undergone an open heart surgery. This makes it impossible for me to travel and leave my mother, to whom I am the sole care provider and support.

I have attached herein a letter from her doctor testifying to her medical condition.

Clerk’s Papers (CP) at 166 (emphasis in original). The physician, Fawaz M. Hasso, M.D., wrote:

RE: Heida Yousef Haddad

To Whom it May Concern:

This is to certify that Heida Yousef Haddad[,] the mother of Maisa Haddad[,] is suffering from Esophageal cancer and heart disease and needs continuous medical care for which Maisa[,] her daughter[,] need[s] to be with her[,] and she [Maisa] is unable to travel.

Please feel free to contact my office if you have any questions or concerns. Thank you for your assistance in this matter.

CP at 167. Neither Haddad nor Fawaz wrote their respective statements under oath or under penalty of perjury.

¶ 11 During oral argument in support of the motion for video testimony, the State noted that Maisa Haddad was only one of the State’s twenty-five witnesses. The State characterized Haddad as having no attachment to the case. Thus, according to the State, her demeanor lacked importance.

¶ 12 Abdul Sweidan objected to the motion for remote testimony. He argued that the State failed to show Maisa Haddad’s unavailability. Haddad had no physical impediment to traveling from Michigan to Washington State. Sweidan emphasized that the State presented no evidence that Haddad’s mother faced imminent death. Other caregivers could provide for the mother. Haddad would not be absent from her mother for more than a few days. Thus, Sweidan contended that any video testimony would violate his right to confront witnesses under the state and federal constitutions.

¶ 13 The trial court granted the State’s motion for testimony by video conference. The court commented that, based on a review of the testimony anticipated from Maisa Haddad and after balancing the concerns of the confrontation clause and the right of the parties to cross-examine the witness in court, Skype was an effective way for the witness to testify. The trial court did not enter any findings related to the granting of remote testimony.

¶ 14 At trial, Maisa Haddad testified via Skype with both video and audio. The prosecution examined Haddad, and defense counsel cross-examined her. The trial record does not describe the setup used for the video conference testimony, including what screens the State employed and whether the jury and Abdul Sweidan could see the demeanor of the witness.

¶ 15 In its closing, the State mentioned interpreter Maisa Haddad’s testimony:

And while she’s sitting there with him, he starts cursing his wife. What do we mean by cursing? May God not bless her.

So think about this. This is a woman who is a thousand miles away from Dania, no connection to her other than they both speak Arabic, and she hears him say something just like what Dania heard him say. To Dania he said, "May God not bring you back."

RP (April 13, 2018) at 1344-45.

¶ 16 The jury convicted Abdul Sweidan of attempted second degree murder and first degree assault.

LAW AND ANALYSIS

Video Conference Testimony

¶ 17 Issue 1: Should we apply a de novo standard of review or an abuse of discretion standard of review when assessing whether the trial court erred when permitting Maisa Haddad to testify by video conference?

¶ 18 Answer 1: We decline to address this question.

¶ 19 Abdul Sweidan assigns error to the trial court’s permission for Maisa Haddad testifying by remote video.

He argues that the ruling violated his constitutional right to confront face-to-face a witness presenting evidence against him.

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