State v. Wade

534 P.3d 1221

STATE of Washington, Respondent,

v.Cody Terrell WADE, Appellant.

No. 82910-6-I

Court of Appeals of Washington, Division 1.

Filed September 5, 2023

Tiffinie Bie Ha Ma, Washington Appellate Project, Suzanne Lee Elliott, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

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

PUBLISHED OPINION

Chung, J.

¶ 1 After a trial that commenced in March 2021, Cody Wade was convicted of first degree burglary, first degree robbery, and second degree assault. The court imposed an exceptional downward sentence plus a mandatory firearm enhancement for each crime. Wade argues the court violated his constitutional right to confrontation by allowing two witnesses to testify remotely using Zoom¹ videoconferencing. Wade also challenges the use of remote videoconferencing technology for jury selection pursuant to court orders authorizing its use to reduce risk of COVID-19 exposure. He claims this method of jury selection violated his right to a jury drawn from a fair cross section of the community because it excluded people based on their race and economic status, as well as his right to a fair trial. He also argues that sentencing him to three mandatory firearms enhancements based on a single firearm violates double jeopardy. Finding no error, we affirm.

FACTS

¶2 Kim Nguyen and her husband Le Tran arrived home from grocery shopping just as their grandson Loc Tran,² who lived with them, also arrived home from work. As Le and Loc carried the groceries into their house, two people approached them and asked for directions and money. Le explained which bus they should take but did not give them any money, and the two people left.

¶3 Loc carried a tank of water into the house and went to his bedroom, which was off the kitchen, leaving the door to his bedroom slightly ajar. Loc heard his grandmother, Nguyen, in the kitchen asking "who is there," then he heard her scream. Loc heard a sound "like glass was broken" and a gunshot, and through the gap in the doorway from his bedroom, he saw one person run past his door. A second person, whom Loc later tentatively identified as Wade, pointed a gun at Loc. Wade did not say anything to Loc, and the other person pulled Wade away.

¶4 Le, who was in the garden, heard his wife scream. He observed one person leaving the house, and saw another person in the hallway. He found Nguyen lying in a pool of blood in the kitchen and called 911. Nguyen's purse was taken, and she had been beaten over the head with a gun, pushed to the ground, stomped on, and shot. She spent five days at Harborview Medical Center but survived the attack.

¶5 The State initially charged Wade with burglary in the first degree, assault in the first degree, and assault in the second degree, each while armed with a firearm, and later amended the charges to include robbery in the first degree with a firearm. Before Wade's trial, the State moved to allow Nguyen and Le to testify remotely using videoconferencing due to their vulnerability to COVID-19. Both were 77 years old and unvaccinated against COVID-19. Then-current Centers for Disease Control and Prevention (CDC) guidelines stated that people over the age of 65 were at "extreme risk" from COVID-19. Nguyen and Le were scheduled to receive their first dose of vaccine in a few days. The State had initially moved for a four-week continuance in order to allow the two to receive both their first and second vaccinations and then testify in person. Wade, however, would not agree to a continuance, as he had been in jail awaiting trial for approximately three years at that point. Following a hearing on the State's motion, the court decided Nguyen and Le could testify remotely and issued a six-page written order to that effect.

¶6 Wade's trial began in March 2021, when King County Superior Court had just reopened for in-person criminal jury trials pursuant to its Emergency Order # 27.³ Wade objected to electronic or virtual jury selection on various grounds, including that remote voir dire violated his constitutional right to a jury drawn from a fair cross section of the community. The trial court denied his motion.

¶7 The jury returned a guilty verdict on four counts.⁴ The court sentenced Wade to an exceptional downward sentence of 41 months due to his youth and immaturity but imposed an additional 156 months for three mandatory firearms enhancements, each to be served consecutively. Wade filed this timely appeal.⁵

DISCUSSION

I. Remote Witness Testimony and the Confrontation Clause

¶8 Wade argues the trial court erred by allowing Nguyen and Le to testify remotely during COVID-19, thus violating his constitutional right to confrontation. Specifically, he contends the State failed to present sufficient evidence to excuse face-to-face confrontation, the court erred by not holding a full evidentiary hearing with testimony under oath on the State's motion to allow remote testimony, and the court erred by not reexamining its order before Nguyen and Le testified remotely a month later. We disagree.

¶9 The federal constitution guarantees a person accused of a crime the right "to be confronted with the witnesses against" them. U.S. CONST. amend. VI. The Washington Constitution similarly provides that an "accused shall have the right ... to meet the witnesses against him face to face." WASH. CONST. art. I, § 22.⁶ The right is a procedural guaranty of "face-to-face" cross-examination.

Coy v. Iowa, 487 U.S. 1012, 1019, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) (confrontation right violated by a screen placed between testifying teenaged sexual assault victims and the defendant).

¶10 However, this right to face-to-face confrontation is only a "preference" that "must occasionally give way to considerations of public policy and the necessities of the case." Maryland v. Craig, 497 U.S. 836, 847-49, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) (internal quotation mark omitted), quoted in State v. Milko, 21 Wash. App. 2d 279, 287-88, 505 P.3d 1251, review denied, 199 Wash.2d 1024, 512 P.3d 890 (2022). "[A] defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Craig, 497 U.S. at 850, 110 S.Ct. 3157.⁷ The Craig two-pronged test of necessity and reliability applies to two-way video testimony. Milko, 21 Wash. App. 2d at 289-90, 505 P.3d 1251.

¶11 In general, we review de novo alleged violations of the confrontation clause. Id. at 289. Necessity is a mixed question of law and fact. Id. We review the trial court's factual findings related to necessity for substantial evidence, and we review de novo the trial court's legal conclusion that video testimony was necessary. Id. at 289-90. Violations of a defendant's right to confrontation are subject to harmless error analysis. Coy, 487 U.S. at 1021, 108 S.Ct. 2798 ; State v. Sweidan, 13 Wash. App. 2d 53, 56, 461 P.3d 378 (2020).

¶12 Wade does not dispute the court's identification of the relevant public policies: the court's role in the community, the court's interest in reducing case backlog, the defendant's desire to proceed to trial, and Nguyen and Le's health and safety. Instead, Wade challenges the court's legal conclusion of necessity.⁸

¶13 Necessity is case specific, Craig, 497 U.S. at 855, 110 S.Ct. 3157, and "means something more than ‘convenient,’ although something less than ‘absolute physical necessity.’ " Sweidan, 13 Wash. App. 2d at 73, 461 P.3d 378. Here, substantial evidence supports the case-specific facts found by the trial court, including the ages of Nguyen and Le, their vaccination statuses, and the medical information provided by their doctor's note. Yet Wade argues that "[i]t is not enough that a witness ... might be exposed to the COVID-19 virus."

¶14 Division Two of this court specifically rejected that argument in Milko. In Milko, the court affirmed the use of two-way video conferencing for two out-of-state witnesses due to the risks posed by COVID-19, reasoning that the risk of contracting COVID-19, as opposed to actually suffering from the virus, "was sufficient to establish necessity." 21 Wash. App. 2d at 294, 505 P.3d 1251. We agree with this reasoning. Like the witnesses in Milko, Nguyen and Le demonstrated a higher risk of contracting COVID-19—here, due to their age.

¶15 Wade also argues a court "cannot simply rely on a general, unsworn letter from a doctor who provides no underlying information on his patients." But the doctor's note here provides information about the specific risks to Nguyen and Le. Other courts have relied on similar information about specific individuals’ risks to determine the necessity prong for remote testimony. See State v. D.K., 21 Wash. App. 2d 342, 345, 507 P.3d 859, review denied, 200 Wash.2d 1003, 516 P.3d 376 (2022) (relying on doctor's declarations that witnesses had medical conditions that rendered them immunocompromised and they were not yet eligible for the vaccine); Milko, 21 Wash. App. 2d at 284, 505 P.3d 1251 (finding necessity based on witnesses’ declarations and testimony about their medical conditions and risk from exposure to COVID-19 unsupported by doctors’ notes). And sworn testimony, while encouraged, is not required. See Sweidan, 13 Wash. App. 2d at 78, 461 P.3d 378 (noting that neither physician nor witness signed the letters in support of witness's remote testimony and stating, "[W]e encourage trial courts to require affidavits or even testimony on the phone under oath" before ruling on necessity).

¶16 Thus, substantial evidence supports the court's findings of case-specific facts relating to the necessity of allowing Nguyen and Le to testify remotely through Zoom. We determine the court did not err in...