State v. Ta'Afulisia

508 P.3d 1059

STATE of Washington, Respondent,

v.Jerome K. TA'AFULISIA, Appellant.

No. 81723-0-I

Court of Appeals of Washington, Division 1.

FILED May 9, 2022

Jennifer J. Sweigert, Nielsen Koch & Grannis, PLLC, Seattle, WA, 98121-1820, for Appellant.

James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

OPINION PUBLISHED IN PART

Dwyer, J.

¶1 Over the past two decades, as the United States Supreme Court has announced and refined new principles applicable to the scope of the Sixth Amendment's confrontation clause, several things have been made clear. The admissibility of a challenged statement no longer is evaluated by resort to its judicially-perceived reliability. The confrontation right applies to out-of-court statements by witnesses who have not been subject to previous cross-examination. The right to confront applies only when the challenged statements are testimonial in nature. A statement is testimonial when its primary purpose is to create an out-of-court substitute for trial testimony. And the primary purpose of the encounter in which the challenged statement was made is discerned by objectively evaluating all of the pertinent circumstances, including not only the motivations of the speaker but also of other participants. These principles are clear.

¶2 Less clear—because the High Court has never allowed itself to be confronted by the thorny question—is what analytical process a court should employ to objectively discern the primary purpose of a conversation in which the participants (speaker and interrogator) have competing purposes (primary or otherwise). It may be that Justice Scalia was correct when he accused the Court of not providing an answer to this "glaringly obvious problem, probably because it does not have one."¹

¶3 The United States Supreme Court gets to pick and choose the cases and issues it will address. We are afforded no such luxury. Thus, we must discern an appropriate answer from that which is available to us—hints in the High Court's opinions, the decisions of federal circuit courts, and similar decisions from state supreme courts.

¶4 Today, at the end of this analytical exploration, we hold that the challenged out-of-court utterances of Jerome Ta'afulisia’s brothers, admitted into evidence against him at his trial, fell outside the ambit of the protections of the confrontation clause and, accordingly, the trial judge did well to allow their placement before the jury. Because appellant establishes no entitlement to appellate relief on any of his remaining claims, we affirm the judgment and sentence from which this appeal was taken.

I

¶5 On January 26, 2016, a group of young Samoan males wearing masks and dark clothing entered a section of a homeless encampment known as the "Jungle," located beneath a freeway in Seattle near the intersection of Interstates 5 and 90 and, after asking to purchase heroin, began shooting occupants of the encampment. This section of the encampment, known as the "Cave," was occupied by a group of people involved in selling and using crack cocaine and heroin. Two of the masked individuals fired shots, killing two encampment occupants: James Tran and Jeanine Brooks. The masked attackers also shot three occupants who survived:

Phat Nguyen, Amy Jo Shinault, and Tracy Bauer.

¶6 The next day, Foa'l Tautolo, known as "Lucky," contacted the police, claiming that his 17-year-old nephew² James Ta'afulisia³ had admitted to being the shooter. Lucky and his relative,⁴ Reno Vaitlui, went to the Seattle Police Department's headquarters to be interviewed by Detective James Cooper. Lucky agreed to attempt to obtain a secret video recording of a conversation with James. Detective Cooper applied for authorization to make a one-party consent recording, which was granted by a superior court judge.

¶7 On January 30, 2016, Lucky was wired and made a recording of his visit with James and James's younger brothers, 16-year-old Jerome and 13-year-old J.K.T.⁵ in the encampment. The video recording obtained by Lucky is approximately one hour long. During the encounter, Lucky told the Ta'afulisia brothers that they "gotta sit down and talk, man." James discussed going to the "Cave" and shooting at people there. J.K.T., laughing and miming a shooting, exclaimed that "[i]t was like this: Tap, tap, tap, tap, tap." Lucky told the boys that Phat Nguyen survived the attack, to which James responded that "Jerome shot him two times in the neck. And then the other guy, popped him in his chest."

¶8 The conversation took place outdoors, in a loud and chaotic environment. The discussion meandered, and participants—including the Ta'afulisia brothers—physically walked in and out of the conversation. During much of the discussion, Lucky lectured the brothers, telling them that they "need to change" and that they are his "blood." He referred to them as his "little nephews."

¶9 Ultimately, James and Jerome were charged with two counts of felony murder in the first degree predicated on robbery and three counts of assault in the first degree.

¶10 Prior to trial, Jerome moved to exclude the video from evidence, arguing that his brothers’ recorded statements were testimonial and, given that neither would testify at trial, admission of the video violated his confrontation clause rights. The trial court ruled that given the casual environment, the brothers’ relationship with their uncle, and the nature of the conversation, the statements were not testimonial and thus did not fall within the scope of the confrontation clause.

¶11 Jury trials were held for both James and Jerome in 2018 and again in 2019. Both juries proved unable to reach unanimous decisions. After a third jury trial, beginning in September 2019, James and Jerome were convicted as charged.

¶12 Jerome appeals.

II

¶13 Jerome contends that the admission of the recording of his brothers discussing the shootings violated his right to confront the witnesses against him, guaranteed to him by the Sixth Amendment to the United States Constitution.⁶

¶14 The confrontation clause guarantees an accused the right to confront the witnesses against him. U.S. CONST. amend. VI ; Crawford v. Washington, 541 U.S. 36, 42, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). "[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford, 541 U.S. at 50, 124 S.Ct. 1354. Such a practice denies the defendant a chance to test accusers’ assertions "in the crucible of cross-examination." Crawford, 541 U.S. at 61, 124 S.Ct. 1354.

¶15 Jerome asserts that his brothers’ utterances, as recorded on the video, implicated the confrontation clause, and that, as he had no opportunity to cross-examine his brothers,⁷ the admission of the recording violated his confrontation clause rights.

A

¶16 The State first responds by asserting that James's and J.K.T.’s utterances did not implicate the confrontation clause because they became Jerome's adoptive admissions, and Jerome does not have a right to confront himself or his own statements. We disagree.

¶17 After ruling that the challenged statements were nontestimonial and thus did not implicate the confrontation clause, the trial court ruled that the statements were admissible exceptions to the rule against hearsay as they constituted adoptive admissions, explaining that "[t]his was a joint conversation where they did not contradict each other, therefore, I find that it would be reliable."

¶18 Adoptive admissions are excluded from the definition of hearsay. State v. Neslund, 50 Wash. App. 531, 550, 749 P.2d 725 (1988). An adoptive admission is "a statement of which the party has manifested an adoption or belief in its truth." ER 801(d)(2)(ii). A party can manifest the adoption of a statement by silence. Neslund, 50 Wash. App. at 550, 749 P.2d 725 ; State v. Pisauro, 14 Wash. App. 217, 221, 540 P.2d 447 (1975). Silence constitutes the adoptive admission of a statement when (1) the party heard an accusatory or incriminating statement and was mentally and physically able to respond, and (2) the statement and circumstances were such that it is reasonable to conclude that the party-opponent would have responded had there been no intention to acquiesce. Neslund, 50 Wash. App. at 551, 749 P.2d 725. To admit an adoptive admission by silence, the trial court must make a preliminary determination that "there are sufficient foundational facts from which the jury reasonably could conclude that the defendant actually heard, understood, and acquiesced in the statement." Neslund, 50 Wash. App. at 551, 749 P.2d 725. The trial court must also instruct the jury that it may consider the statements at issue to be adoptive admissions if it finds that the circumstances establish that the party heard, understood, and acceded to the statements. Neslund, 50 Wash. App. at 551, 749 P.2d 725.

¶19 Prior to Crawford, there was "general agreement that adoptive admissions of the defendant do not implicate the right of confrontation." Neslund, 50 Wash. App. at 554, 749 P.2d 725. But Crawford requires a new analysis. As will be explained, infra, Crawford counsels that the confrontation clause is directed to those who "bear witness against" the accused. Crawford also rejects judicially-determined reliability as the linchpin of admissibility.

¶20 Here, insofar as resolving the adoptive admission question was concerned, James and J.K.T. plainly were "bearing witness" against Jerome. Indeed, Jerome's silence, by itself, proved nothing. Only if meaning was legally imputed to Jerome's silence did his silence matter. This meaning was provided by the admission into evidence of his brothers’ challenged utterances. Only the combination of the utterances and Jerome's silence in the face of them tended to prove a fact in issue in the case against Jerome.

¶21 Had Jerome adopted his brothers’...