Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 85227-8
Title of Case: State v. Jasper
File Date: 03/15/2012
Oral Argument Date: 11/08/2011


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
08-1-04310-6
Honorable Deborah Fleck


JUSTICES
--------
Barbara A. Madsen Signed Majority
Charles W. Johnson Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Signed Majority
Debra L. Stephens Majority Author
Charles K. Wiggins Signed Majority
Steven C. González Did Not Participate
Gerry L. Alexander,
Justice Pro Tem. Signed Majority


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Jerry Lincoln Taylor Jr.
King County Prosecuting Attorney Office
516 3rd Ave Ste W554
Seattle, WA, 98104-2362


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


Christine Anne Jackson
Attorney at Law
The Public Defender
810 3rd Ave Fl 8
Seattle, WA, 98104-1655


Kristen vs Murray
The Defender Association
810 3rd Ave Ste 800
Seattle, WA, 98104-1695

Counsel for Respondent(s)
James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362


Jerry Lincoln Taylor Jr.
King County Prosecuting Attorney Office
516 3rd Ave Ste W554
Seattle, WA, 98104-2362


Jennifer H.s. Atchison
King County Prosecuting Atty
516 3rd Ave Ste W554
Seattle, WA, 98104-2362


Peter David Lewicki
King County Prosecuting Attorney
King County Courthouse
516 3rd Ave Rm W554
Seattle, WA, 98104-2362


Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


Eric Broman
Nielsen Broman & Koch PLLC
1908 E Madison St
Seattle, WA, 98122-2842

Amicus Curiae on behalf of Washington Defender Association
Travis Stearns
Washington Defender Association
110 Prefontaine Pl S Ste 610
Seattle, WA, 98104-2626

Amicus Curiae on behalf of the Washington Association of Cr
Suzanne Lee Elliott
Attorney at Law
Hoge Building
705 2nd Ave Ste 1300
Seattle, WA, 98104-1797

Counsel for Other Parties
Christine Anne Jackson
Attorney at Law
The Public Defender
810 3rd Ave Fl 8
Seattle, WA, 98104-1655






IN THE SUPREME COURT OF THE STATE OF WASHINGTON

State v. Jasper (Douglas Scott), et al., 85227-8

state of washington,

Respondent,
v.

douglas scott jasper,
Petitioner. NO. 85227-8
(consolidated with
- - - - - - - - - NOs. 85557-9, 85558-7)

STATE OF WASHINGTON,

Respondent,
EN BANC

v.

LAKI MOIMOI,
Filed March 15, 2012

Petitioner.

- - - - - - - - -

STATE OF WASHINGTON,

Petitioner,
v.

CESAR VALADEZ CIENFUEGOS,

Respondent.
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State v. Jasper (Douglas Scott), et al., 85227-8

STEPHENS, J. -- The principal issue in these consolidated cases is whether

certifications attesting to the existence or nonexistence of public records are

testimonial statements subject to the demands of the confrontation clause of the

Sixth Amendment to the United States Constitution. Prior to the United States

Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129

S. Ct. 2527, 174 L. Ed. 2d 314 (2009), we held the confrontation clause does not

forbid the admission of such evidence. State v. Kirkpatrick, 160 Wn.2d 873, 161

P.3d 990 (2007); State v. Kronich, 160 Wn.2d 893, 161 P.3d 982 (2007). The

teaching of Melendez-Diaz, however, is that certifications declaring the existence or

nonexistence of public records are in fact testimonial statements, which may not be

introduced into evidence absent confrontation. Accordingly, we now overrule our

prior decisions to the extent they are contrary to United States Supreme Court

precedent.

In each case before us, the defendants' confrontation rights were violated by

admission of testimonial certifications. Excepting the hit and run conviction at issue

in State v. Jasper, admission of the certifications was not harmless. We affirm the

Court of Appeals in State v. Jasper, affirm the superior court in State v. Cienfuegos,

and reverse the superior court in State v. Moimoi. The appropriate remedy is

reversal of the affected convictions and remand for new trials.

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State v. Jasper (Douglas Scott), et al., 85227-8

FACTS AND PROCEDURAL HISTORY

State v. Jasper

On February 14, 2008, Douglas Jasper's vehicle crossed the centerline of a

roadway and crashed into a car traveling in the opposite direction. Jasper left the

scene of the accident and was arrested a short time later. The State charged Jasper

with felony hit-and-run and driving while license suspended or revoked (DWLS) in

the third degree.

The arresting officer testified at trial that Jasper admitted his license was

suspended. Over Jasper's objection, the State introduced into evidence an affidavit

from a legal custodian of driving records. The affidavit states: "After a diligent

search, our official record indicates that the status on February 14, 2005, was: . . .

Suspended in the third degree." Ex. 16 (Jasper). Attached to the affidavit were two

records from the Department of Licensing (DOL). The records are copies of letters

mailed to Jasper, dated May 14, 2007. The letters state that Jasper's driving

privilege would be suspended on June 28, 2007 if Jasper did not provide proof he

had satisfied court requirements regarding citations he had received for driving

without liability insurance and failing to comply with vehicle registration laws.

Jasper testified he had hit his head in the crash and was "really dazed" and

"confused" as a result. Verbatim Report of Proceedings (VRP) (Jasper -- Mar. 11,

2009) at 28. He explained he was not trying to leave the scene of the crash but was

just "walking around." Id. at 28-33. On cross-examination, Jasper admitted he

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State v. Jasper (Douglas Scott), et al., 85227-8

knew his license was suspended at the time of the crash.

During its deliberations, the jury submitted two questions to the court. The

first asked whether a person's obligation to fulfill certain duties after being involved

in a motor vehicle collision was "dependent on their mental, emotional, or physical

condition." Clerk's Papers (CP) (Jasper) at 49. The second question asked for a

definition of "the spirit of the law," a phrase repeatedly used by defense counsel in

closing argument. CP (Jasper) at 51; VRP (Jasper -- Mar. 12, 2009) at 13, 18. The

trial court provided the same written response to each inquiry: "Please re-read your

instructions and continue deliberating. No further instructions will be given to this

question." CP (Jasper) at 50, 52. The court's response was written on a form that

stated it was given "AFTER AFFORDING ALL COUNSEL/PARTIES

OPPORTUNITY TO BE HEARD." Id. Jasper did not object to the trial court's

response.

The jury convicted Jasper on both counts. On appeal, he argued the

admission of the affidavit authored by the DOL records custodian violated his Sixth

Amendment right to confrontation. Jasper also claimed that because the trial court

responded to the jury's questions in his absence, his rights under the Sixth

Amendment, the Fourteenth Amendment, and article I, section 22 of the Washington

State Constitution were abridged.

The Court of Appeals, Division One, held the affidavit constituted testimonial

hearsay and its introduction into evidence violated Jasper's right to confront

witnesses against him. State v. Jasper, 158 Wn. App. 518, 523, 245 P.3d 228

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State v. Jasper (Douglas Scott), et al., 85227-8

(2010). In so ruling, the court concluded the United States Supreme Court's opinion

in Melendez-Diaz effectively overruled our earlier decisions in Kirkpatrick and

Kronich. Id. at 530. Because the error was not harmless beyond a reasonable

doubt as to Jasper's conviction for third degree DWLS, the court reversed that

conviction. Id. at 538. However, it held the evidence did not taint Jasper's hit-and-

run conviction. Id. n.9.

The Court of Appeals also held the trial court did not contravene Jasper's

constitutional rights in responding to the deliberating jury's inquiries, reasoning that

because the questions raised only issues of law, Jasper's right to be present was not

implicated. Id. at 538. However, the appellate court concluded the trial court failed

to comply with CrR 6.15(f)(2), accepting Jasper's contention that the judge did not

consult with the parties or counsel before responding to the jury's questions. Id. at

543. Ultimately, the Court of Appeals found the error harmless given the nature of

the questions and the trial court's response. Id. Noting this was the only alleged

error affecting Jasper's conviction for hit-and-run, the Court of Appeals affirmed

that conviction. Id. at 544.

Jasper petitioned this court for review of the issue whether the trial court

violated his constitutional rights when it responded to the jury's inquiries. The State

cross-petitioned for review of the issue whether admission of the affidavit from the

records custodian violated Jasper's right to confrontation. We granted both

petitions at 170 Wn.2d 1025 (2011).

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State v. Jasper (Douglas Scott), et al., 85227-8

State v. Cienfuegos

On April 15, 2005, Cesar Cienfuegos was stopped for speeding by Corporal

Monica Matthews of the Washington State Patrol. Corporal Matthews determined

that Cienfuegos's driving privilege was revoked and that Cienfuegos did not have an

ignition interlock device installed in his vehicle, in violation of a previously entered

court order. Cienfuegos was arrested.
The State charged Cienfuegos with DWLS in the first degree.1 Cienfuegos

was tried by jury in King County District Court. Corporal Matthews testified at trial

and described the above events. To prove the charge, the State presented a certified

copy of driving record (CCDR) from DOL. The CCDR is comprised of three

documents. The first document, exhibit 9, is a certified copy of an order of

revocation, mailed to Cienfuegos and dated February 28, 2003. CP (Cienfuegos) at

459. The order notified Cienfuegos that he must stop driving on March 30, 2003

and that his driving privilege had been revoked for seven years due to his status as

an habitual offender. The order also notified Cienfuegos that he could request a

hearing on the matter and alerted him to procedures by which he could reinstate his

driving privilege.

The second document, exhibit 10, is a certified cover letter signed under

penalty of perjury by Denise Bausch, a DOL records custodian. CP (Cienfuegos) at

1 The State also charged Cienfuegos with failure to equip his vehicle with an
interlock device, but this conviction was reversed due to a charging defect and is not
before us.

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State v. Jasper (Douglas Scott), et al., 85227-8

460. The letter asserts that attached "document(s) is/are a true and accurate copy of

the document(s) maintained" by DOL regarding Cienfuegos's driving record. Id. It

further states:

After a diligent search of the computer files, the official record indicates on
April 15, 2005, the following statements apply to the status of the above
named person:
Had not reinstated his/her driving privilege. Was suspended/revoked in the
first degree. Subject was not eligible to reinstate his/her driving privilege
on the above date of arrest.
Had not been issued a valid Washington license.
A notation has been placed on the driving record under RCW 46.20.720
stating that the person may operate only a motor vehicle equipped with an
ignition interlock or other biological or technical device from 10/20/2002 to
10/20/2005.

Id.

The third document, exhibit 11, is a certified copy of an unredacted abstract

of driving record (ADR), listing Cienfuegos's prior driving offenses. CP

(Cienfuegos) at 461. Over Cienfuegos's objection, each exhibit was introduced into

evidence and the jury found Cienfuegos guilty of first degree DWLS.

On appeal to the superior court, Cienfuegos argued the district court erred by

admitting exhibit 10 in violation of his right to confront witnesses. He contended

the United States Supreme Court's decision in Melendez-Diaz overruled our cases

regarding the admissibility of CCDRs. The State responded that Cienfuegos's right

to confrontation had not been infringed, as our decision in Kronich survived

Melendez-Diaz and is consistent with Crawford v. Washington, 541 U.S. 36, 124

S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The superior court disagreed, stating:

While the Washington Supreme Court previously held, pursuant to
Crawford, that the admission of a CCDR does not violate the confrontation

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State v. Jasper (Douglas Scott), et al., 85227-8

clause, the United States Supreme Court's decision in Melendez-Diaz
effectively overrules Kirkpatrick and is binding on all Washington courts
on this point of federal constitutional law. Under the Court's analysis in
Melendez-Diaz, the CCDR is a testimonial affidavit, and the DOL official is
a "witness" for purposes of the Sixth Amendment. Therefore, the CCDR
was inadmissible without corresponding testimony from the DOL official
who performed the diligent search, interpreted what was found, and opined
as to its effect. Even particularized guarantees of trustworthiness do not get
the CCDR past the Sixth Amendment.

CP (Cienfuegos) at 498 (citations omitted). Noting that exhibit 10 was the only

direct evidence that Cienfuegos's revocation was still in effect on April 15, 2005,

the superior court concluded there was insufficient evidence to support the

conviction. Id. The court vacated the conviction and remanded the case for

dismissal. Id. at 498, 500.

The superior court also ruled on a number of evidentiary issues. The court

concluded that exhibit 11 -- the ADR -- was inadmissible because it "contained no

relevant information and contained a full recitation of Cienfuegos' criminal driving

offenses." CP (Cienfuegos) at 499. The court also ruled that exhibit 11 was

inadmissible under ER 404(b) and highly prejudicial. According to the court, "[t]he

jury could well have taken this as propensity evidence as the document clearly lists

DOL's actions and convictions for 'DWLS/R 1st DG.'" CP (Cienfuegos) at 499-

500. Citing State v. Smith, 155 Wn.2d 496, 503-04, 120 P.3d 559 (2005), the court

held that "[t]he phrase 'suspended or revoked in the first degree' appearing in the

exhibits is a legal and factual fiction which was improperly admitted." CP

(Cienfuegos) at 500. The court reasoned the phrase was "irrelevant and confusing

to the jury" and its use "was not harmless error because of the similarity of the

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State v. Jasper (Douglas Scott), et al., 85227-8

language with the offense charged, DWLS First Degree." Id. (emphasis omitted).

Also, the court ruled that evidence showing that Cienfuegos was speeding at the

time of the stop and that he was arrested and jailed, was improper as irrelevant and

prejudicial. The court concluded the admission of such evidence was not harmless

error because it had no probative value and carried the prejudicial effect of

describing Cienfuegos as a bad or dangerous driver. In light of the confrontation

clause and evidentiary violations, the court vacated the conviction and remanded for

dismissal.

The State filed a notice for discretionary review with the Court of Appeals.

Id. at 493. The Court of Appeals, Division One, granted the motion. Because the

case of Moimoi was already before the court and presented a similar issue on the

scope of the confrontation clause, the Court of Appeals linked Cienfuegos with

Moimoi. Meanwhile, Jasper's petition for review had been granted by this court.

Recognizing this, the State moved to transfer Cienfuegos and Moimoi from Division

One to this court and to consolidate the cases with Jasper. We granted the State's

motion to transfer and consolidated the cases.
State v. Moimoi

Laki Moimoi was charged in King County District Court with unregistered

contracting, in violation of RCW 18.27.010 and RCW 18.27.020. A construction

compliance inspector with the Department of Labor and Industries (DLI), Mathew

Jackson, testified for the State. Jackson testified he was charged with investigating

a citizen's complaint regarding Moimoi. He testified he had access to a DLI

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State v. Jasper (Douglas Scott), et al., 85227-8

database of contractors that he could search to determine whether a particular

contractor was registered. He further testified he checked the database and

determined whether Moimoi was a registered contractor. He never revealed the

results of the search to the jury.

During Jackson's testimony, the State admitted into evidence a certification

authored by Pamela Bergman, the clerical supervisor for the contractor registration

section of DLI. The following exchange took place:

[State]: Again, Mr. Jackson, how -- how did you determine whether
or not Mr. Moimoi was a registered contractor?
[Jackson]: Well, any time that we issue a civil infraction or a
complaint with the King County Prosecutor's Office we obtain a search of
the records letter, which is a sealed letter from the supervisor or the keeper
of the records of -- of the contractor file section. That person will type the
letter out, basically stating the individual person's registration status and
seal that letter as a -- a authenticated document of that's [sic] person's status
as a registered contractor.
[State]: Mr. Jackson, I'm handing you what's been marked as
State's Exhibit No. 1, do you recognize that?
[Jackson]: Yes, I do.
[State]: How do you recognize that?
[Jackson]: This is the letter that I just explained to you about. It's
from Pamela Bergman (phonetic) and Pamela is the keeper of the -- the
supervisor of the records -- the files for the contractors in Olympia.

CP (Moimoi) at 51-52.

Bergman's certification states as follows:

[W]e have searched our records from January 1980, to the present and are
unable to locate a previous or current registration for Laki Moi Moi [sic]
under that specific name located at 10118 Des Moines Memorial Drive,
Seattle WA 98168 doing business as L & L Concrete, Seattle Concrete and
Landscape as being registered with this section as a specialty or general
contractor.

Mot. for Discretionary Review (App. C); CP (Moimoi) at 55.

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State v. Jasper (Douglas Scott), et al., 85227-8

Moimoi objected to the introduction of the certification on the ground it was

made for purposes of litigation and was not routinely kept in the course of the

agency's business. The district court overruled the objection, concluding it was a

self-authenticating business record. The jury found Moimoi guilty.

Moimoi appealed to the superior court. There, Moimoi argued the

certification is a testimonial statement, as described in Melendez-Diaz. The State

argued to the contrary. The superior court ruled in favor of the State, stating, "This

case, like Kirkpatrick, deals with records which are routinely maintained by a

governmental agency, and is distinguishable from Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527, which deals with results of a test which was performed specifically

for that litigation." CP (Moimoi) at 150. Moimoi filed a notice for discretionary

review with the Court of Appeals, Division One. As described above, the case was

transferred to this court for our review and consolidated with Jasper and

Cienfuegos.

Analysis

I. Confrontation Clause Violation

The principal issue in these cases is whether certifications as to the existence

or nonexistence of records are testimonial for purposes of the confrontation clause.

An alleged violation of the confrontation clause is reviewed de novo. Lilly v.

Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999). When a

violation has occurred, we then review for harmless error. Chapman v. California,
386 U.S. 18, 21-22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).2

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State v. Jasper (Douglas Scott), et al., 85227-8

A. The Admission of Certifications into Evidence Violated the
Defendants' Rights under the Confrontation Clause

The Sixth Amendment's confrontation clause confers upon the accused the

right "to be confronted with the witnesses against him." U.S. Const. amend. VI. As

reflected in the constitutional text, the right "applies to 'witnesses' against the

accused -- in other words, those who 'bear testimony.' . . . 'Testimony,' in turn, is

typically '[a] solemn declaration or affirmation made for the purpose of establishing

or proving some fact.'" Crawford, 541 U.S. at 51 (second alteration in original)

(citation omitted). In Crawford, the United States Supreme Court announced the

rule that testimonial statements may not be introduced into evidence unless the

witness is unavailable and the defendant had prior opportunity to cross-examine the

witness. 541 U.S. at 68. The Crawford Court noted, however, that certain

statements "by their nature [are] not testimonial -- for example, business records or

statements in furtherance of a conspiracy." Id. at 56. But, the Court declined to

provide "a comprehensive definition of 'testimonial,'" id. at 68, leaving courts to

"develop[] their own interpretation of what is a 'testimonial statement' for Sixth

2 In Moimoi, the State contends the constitutional argument was not adequately
raised at trial and should therefore not be reviewed. We disagree. Though Moimoi did
not directly reference the confrontation clause in objecting to the admission of the
certification, we conclude his objection sufficiently preserved the issue for appeal. The
constitutional ground was readily apparent from his claim that the certification was a
record prepared solely for use at trial, which does not qualify as a business or public
record under RCW 5.45.020 or RCW 5.44.040. Such records are plainly subject to
confrontation clause analysis. See Crawford, 541 U.S. 36. That Moimoi's objection was
sufficient to apprise the court and counsel of the confrontation clause issue is supported
by the fact that the State litigated the issue in the superior court without protest and
supported Moimoi's motion for discretionary review on the sole issue of the alleged
confrontation clause violation.

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State v. Jasper (Douglas Scott), et al., 85227-8

Amendment purposes." United States v. Martinez-Rios, 595 F.3d 581, 585 (5th

Cir. 2010).

In the companion cases of Kirkpatrick, 160 Wn.2d 873, and Kronich, 160

Wn.2d 893, we considered whether affidavits certifying the status of a defendant's

driving privilege are testimonial statements covered by the Sixth Amendment. In

Kirkpatrick, we addressed the specific issue "whether a DOL certification as to the

absence of a driver's license is testimonial for purposes of the Crawford analysis."

160 Wn.2d at 884. We held "that neither certification of DOL drivers' records nor

certifications as to the absence of such records are testimonial for purposes of

Crawford." Id.

In assessing the character of the DOL certification, we adopted the rationale

set forth by the Court of Appeals for the Ninth Circuit in United States v. Cervantes-

Flores, 421 F.3d 825 (9th Cir. 2005) and the Court of Appeals for the Fifth Circuit

in United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005). Kirkpatrick, 160

Wn.2d at 884-86. Those cases held that similar certifications were not testimonial

statements, reasoning that although the certifications were prepared for litigation,

the documents such certifications addressed were "'part of a class of documents that

were not prepared for litigation.'" Id. at 885 (quoting Cervantes-Flores, 421 F.3d

at 832-33). Recognizing this distinction, we analogized the DOL certification to

nontestimonial business records, which exist prior to litigation. Id. at 885-86. We

noted that, like business records, driving records have long been held admissible.

Id. at 886. And we refused to recognize a basis for treating a document certifying

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State v. Jasper (Douglas Scott), et al., 85227-8

the nonexistence of a driver's record any differently than the driving record itself.

Id. Both documents are "prepared by DOL records custodians for trial purposes"

and are "produced according to the same process, based on identical requests from

the relevant prosecutorial authorities." Id. at 887.

A slightly different certification was presented in Kronich. The defendant

there was charged with DWLS in the third degree. Kronich, 160 Wn.2d at 898. To

prove the charge, the State admitted into evidence a certified statement from DOL

regarding the status of the defendant's driving privilege on the date of arrest. Id.

The certification described the defendant's driving status as "'suspended/revoked.'"

Id. at 897. We adhered to our reasoning in Kirkpatrick and held "such a record is

not testimonial for purposes of the Crawford analysis." Id. at 902. We stated that

"[t]he admissibility of such documents under the confrontation clause should not

'turn on the content thereof when that content includes only verifiable facts,

adduced by a government official in the regular course of his or her duties according

to standardized procedure.'" Id. at 903 (quoting Kirkpatrick, 160 Wn.2d at 887).

The United States Supreme Court's decision in Melendez-Diaz casts doubt on

Kirkpatrick and Kronich. In Melendez-Diaz, the Court considered whether

"'certificates of analysis'" introduced in a criminal prosecution were testimonial

statements. 129 S. Ct. at 2531. The certificates reported the results of a forensic

analysis establishing that a seized substance was cocaine. Id. The Court held the

certificates were "quite plainly affidavits," falling squarely within the "'core class of

testimonial statements'" described in Crawford. Id. at 2532. The Court

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State v. Jasper (Douglas Scott), et al., 85227-8

emphasized that the certificates were used for the purpose of establishing a fact at

trial and thus were "functionally identical to live, in-court testimony, doing

'precisely what a witness does on direct examination.'" Id. (quoting Davis v.

Washington, 547 U.S. 813, 830, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)). The

Court also underscored the fact that "not only were the affidavits '"made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial,"' Crawford, [541 U.S. at 52

(internal quotation marks omitted)], but under Massachusetts law the sole purpose

of the affidavits was to provide 'prima facie evidence of the composition, quality,

and the net weight' of the analyzed substance, Mass. Gen Laws, ch. 111, § 13." Id.

In its discussion, the Melendez-Diaz Court rejected the government's attempt

to distinguish the certificates from other statements that were more clearly

testimonial. The government averred, for example, "that the analysts are not subject

to confrontation because they are not 'accusatory' witnesses, in that they do not

directly accuse petitioner of wrongdoing." Id. at 2533. The Court dismissed the

argument as unsupported by either the constitutional text or the Court's case law.

Id. It reasoned that "[t]o the extent the analysts were witnesses (a question resolved

above), they certainly provided testimony against petitioner, proving one fact

necessary for his conviction -- that the substance he possessed was cocaine." Id.

The government also argued the certificate was akin to a business or public

record and thus not testimonial. Id. at 2538. In rejecting this argument, the Court

explained that even if the certificates qualified as business records, they were

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State v. Jasper (Douglas Scott), et al., 85227-8

nonetheless testimonial because they were created for use in court. Id. The Court

made plain that "[d]ocuments kept in the regular course of business may ordinarily

be admitted at trial despite their hearsay status. But this is not the case if the

regularly conducted business activity is the production of evidence for use at trial."

Id. (citation omitted).

In sum, the Court considered any document prepared for use in a criminal

proceeding to be testimonial. It observed one exception: "a clerk's certificate

authenticating an official record -- or copy thereof -- for use as evidence." Id. Yet,

the Court stressed that at common law, "a clerk's authority in that regard was

narrowly circumscribed. He was permitted 'to certify to the correctness of a copy

of a record kept in his office,' but had 'no authority to furnish, as evidence for the

trial of a lawsuit, his interpretation of what the record contains or shows, or to

certify to its substance or effect.'" Id. at 2538-39 (quoting State v. Wilson, 141 La.

404, 409, 75 So. 95 (1917)). Thus, "[a] clerk could by affidavit authenticate or

provide a copy of an otherwise admissible record, but could not do what the

analysts did here: create a record for the sole purpose of providing evidence against

the defendant." Id. at 2539.

Though not strictly necessary to resolve the case, the Court opined that a

clerk's certification used to prove the absence of a public record is testimonial in

nature and thus demands confrontation at trial:

Far more probative here are those cases in which the prosecution
sought to admit into evidence a clerk's certificate attesting to the fact that
the clerk had searched for a particular relevant record and failed to find it.

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State v. Jasper (Douglas Scott), et al., 85227-8

Like the testimony of the analysts in this case, the clerk's statement would
serve as substantive evidence against the defendant whose guilt depended
on the nonexistence of the record for which the clerk searched. Although
the clerk's certificate would qualify as an official record under respondent's
definition -- it was prepared by a public officer in the regular course of his
official duties -- and although the clerk was certainly not a 'conventional
witness' under the dissent's approach, the clerk was nonetheless subject to
confrontation.

Id.

Shortly after issuing Melendez-Diaz, the Court signaled its intent to follow

this dicta. In United States v. Norwood, the Court vacated a Ninth Circuit judgment

that had declared that a clerk's affidavit, certifying that a diligent search was

performed and that no record existed, was not testimonial. 555 F.3d 1061 (9th Cir.

2009), vacated, 130 S. Ct. 491, 175 L. Ed. 2d 339 (2009). The Court remanded

"for further consideration in the light of Melendez-Diaz." Norwood, 130 S. Ct. at

491-92. On remand, the government conceded the admission of the certification

violated the defendant's right to confrontation. United States v. Norwood, 595 F.3d

1025, 1030 (9th Cir. 2010).

A substantial majority of courts have held since Melendez-Diaz that clerk

certifications attesting to the nonexistence of a public record are testimonial

statements subject to confrontation. See, e.g., Martinez-Rios, 595 F.3d at 586

(overruling Rueda-Rivera and holding admission of a certificate regarding the

nonexistence of immigration records violated the defendant's Sixth Amendment

confrontation right); United States v. Orozco-Acosta, 607 F.3d 1156, 1161 n.3 (9th

Cir. 2010) (overruling Cervantes-Flores and holding admission of a certificate

regarding the nonexistence of immigration records violated the defendant's Sixth

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State v. Jasper (Douglas Scott), et al., 85227-8

Amendment confrontation right); United States v. Villacana-Ochoa, No. CR-10-

0013-WFN-1, 2010 WL 3584013, at *2 (E.D. Wash. 2010) (holding certificate of

nonexistence of a record was testimonial and prepared for use at trial but the

confrontation clause was not violated because the defendant had the opportunity to

cross-examine the official who signed the certificate); United States v. Montalvo-

Rangel, No. SA-10-CR-64, 2010 WL 1484708, at *2 (W.D. Tex. 2010) (concluding

certificate as to the nonexistence of a record was testimonial but the confrontation

clause was not violated because the defendant was able to cross-examine an

immigration official who worked alongside the official who actually signed the

record); Gov't of Virgin Islands v. Gumbs, 426 F. App'x 90, 93-94 (3d Cir. 2011)

(unpublished) (holding certificate as to nonexistence of a firearms license is

testimonial); United States v. Madarikan, 356 F. App'x 532, 534-35 (2d Cir. 2009)

(unpublished) (holding the trial court erred in admitting a certificate of nonexistence

of record regarding the defendant's ability to reenter the United States); Tabaka v.

District of Columbia, 976 A.2d 173, 175-76 (D.C. 2009) (holding a certificate from

a motor vehicles official, which certified to the absence of any records showing that

defendant was issued an operator's permit, was testimonial); Washington v. State,

18 So. 3d 1221, 1223-24 (Fla. Dist. Ct. App. 2009) (holding a certificate of

nonlicensure is testimonial); Commonwealth v. Parenteau, 460 Mass. 1, 8-9, 11,

948 N.E.2d 883 (2011) (holding a certificate from the department of motor vehicles,

attesting to the fact that a notice of license suspension or revocation was mailed to

defendant, was testimonial, violated the confrontation clause, and was not harmless

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State v. Jasper (Douglas Scott), et al., 85227-8

beyond a reasonable doubt (citing Jasper, 158 Wn. App. at 531 -- 32)).

We now follow suit. The federal opinions relied upon in Kirkpatrick and

Kronich have been expressly overruled. Orozco-Acosta, 607 F.3d at 1161 n.3

(Cervantes-Flores and its progeny are "clearly inconsistent with Melendez-Diaz"

and must be overruled to the extent they are irreconcilable with that case); Martinez-

Rios, 595 F.3d at 585-86 ("The government concedes that Melendez-Diaz implicitly

overruled Rueda-Rivera, and we agree."). The certificates used in each case before

us are plainly affidavits, falling within the "core class of testimonial statements"

described in Crawford and Melendez-Diaz. Melendez-Diaz, 129 S. Ct. at 2532.

They were created, and in fact used, for the sole purpose of establishing critical

facts at trial. Because each certificate was "'made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial,'" id. (internal quotation marks omitted) (quoting

Crawford, 541 U.S. at 52), they are testimonial and require confrontation to

comport with the Sixth Amendment.

Further, the certificates go beyond mere authentication of otherwise

admissible public records. They "'furnish, as evidence for the trial of a lawsuit, [the

clerk's] interpretation of what the record contains or shows, [and] certify to its

substance or effect.'" Id. at 2539 (quoting Wilson, 141 La. at 409). They also

"serve as substantive evidence against the defendant whose guilt depended on the

nonexistence of the record for which the clerk searched." Id.

The State urges us to stand by our decisions in Kirkpatrick and Kronich,

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State v. Jasper (Douglas Scott), et al., 85227-8

arguing that the Supreme Court appears poised to retreat from its expansive view of

Crawford. It notes that, after Melendez-Diaz, the Court in Michigan v. Bryant, 562

U.S. ___, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), seemed again interested in

reliability as part of the confrontation clause analysis. See Suppl. Br. of Resp't at

14. And, the State suggests the retirement of Justices Stevens and Souter may lead

the Court to re-examine the term "witnesses against" in the Sixth

Amendment -- language we found significant in Kirkpatrick. Suppl. Br. of Resp't at

20-21; see Kirkpatrick, 160 Wn.2d at 883. The State even goes so far as to suggest

that based on his questions at oral argument in Bryant, Justice Breyer may have

second thoughts about his vote in Crawford. Suppl. Br. of Resp't at 21. While the

State's musings provide for interesting speculation, we must decide this case based

upon United States Supreme Court precedent to date.

The Court in Melendez-Diaz rejected the rationale underlying our opinions in

Kirkpatrick and Kronich, emphasizing that confrontation clause analysis does not

focus on the nature of the particular records addressed by the certification, but on

the nature of the certification itself. Melendez-Diaz, 129 S. Ct. at 2538. Most

recently, in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed.

2d 610 (2011), the Court signaled it remains focused on the testimonial nature of

certifications and the need to cross-examine the government agents who prepare

them. See 131 S. Ct. at 2715 ("This Court settled in Crawford that the 'obviou[s]

reliab[ility]' of a testimonial statement does not dispense with the Confrontation

Clause." (Alterations in original.)); id. n.7 ("Even so, [the analyst's] testimony

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State v. Jasper (Douglas Scott), et al., 85227-8

under oath would have enabled Bullcoming's counsel to raise before a jury

questions concerning [his] proficiency, the care he took in performing his work, and

his veracity."). After Melendez-Diaz, it is difficult to regard certifications of the

type here (especially those attesting to the nonexistence of official records) as akin

to business records, which may be admitted into evidence without confrontation.

Instead, as other courts have recognized since Melendez-Diaz, they are best

understood as testimonial statements falling within the ambit of the Sixth

Amendment. Accordingly, we hold the clerk's affidavits involved in these three

cases are testimonial statements and we overrule Kirkpatrick and Kronich to the

extent those opinions are contrary to United States Supreme Court precedent.

Because the defendants were not given the opportunity to cross-examine the official

who authored the certifications, the admission of the certifications into evidence

violated the defendants' rights under the confrontation clause.

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State v. Jasper (Douglas Scott), et al., 85227-8

B. The Unconstitutional Admission of Certifications Was Not Harmless
beyond a Reasonable Doubt

"Confrontation Clause errors [are] subject to Chapman harmless-error

analysis." Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed.

2d 674 (1986). Under this standard, the State must show "beyond a reasonable

doubt that the error complained of did not contribute to the verdict obtained."

Chapman, 386 U.S. at 24; State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304

(1980).

Whether such an error is harmless in a particular case depends upon a host
of factors . . . includ[ing] the importance of the witness' testimony in the
prosecution's case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution's case.

Van Arsdall, 475 U.S. at 684.
State v. Jasper

We hold the constitutional error in admitting the affidavit was not harmless

beyond a reasonable doubt as to Jasper's DWLS conviction. There is a reasonable

probability the use of the inadmissible evidence was necessary to find Jasper guilty

of the crime charged. To convict Jasper of DWLS in the third degree, the State was

required to prove that Jasper's license was suspended or revoked because he failed

to "furnish proof of financial responsibility for the future," RCW

46.20.342(1)(c)(ii), or he "failed to respond to a notice of traffic infraction, failed to

appear at a requested hearing, violated a written promise to appear in court, or has

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State v. Jasper (Douglas Scott), et al., 85227-8

failed to comply with the terms of a notice of traffic infraction or citation," RCW

46.20.342(1)(c)(iv).

Although Jasper admitted his license was suspended, both at trial and at the

time of arrest, there was no testimony bearing on the reason Jasper's license was

suspended. Such evidence came solely from the unconstitutionally admitted

affidavit. The two DOL records indicate Jasper's license was to be suspended on

June 28, 2007 if he failed to provide proof he had satisfied court requirements

regarding citations he received for driving without insurance and for violating

vehicle registration laws. The letters do not show Jasper's license was actually

suspended for these reasons, nor do the letters demonstrate Jasper's license was

suspended on the date of arrest and for reasons that support a conviction for DWLS

in the third degree. Because we cannot say "beyond a reasonable doubt that any

reasonable jury would have reached the same result in the absence of the error,"

State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), the error was not

harmless. We affirm the Court of Appeals' reversal of his conviction.

As for Jasper's hit-and-run conviction, the Court of Appeals correctly

concluded it was not tainted by the confrontation clause violation, and ample

evidence supported that conviction. Jasper, 158 Wn. App. at 538 n.9.
State v. Cienfuegos

In Cienfuegos, the State argues that even if exhibit 10 is testimonial and was

therefore improperly placed into evidence, any error was harmless in light of other

evidence presented at trial. It points to exhibit 9, contending this document

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State v. Jasper (Douglas Scott), et al., 85227-8

establishes that Cienfuegos's license was revoked for seven years beginning in

2003. Contrary to the State's assertion, however, exhibit 9 does not establish the

crime charged. It does not prove Cienfuegos's driving privilege was revoked on the

date he allegedly committed the offense, April 15, 2005. Nor does the document

establish Cienfuegos's license was revoked on April 15, 2005 because he was an

"habitual offender," as required to establish the crime of DWLS in the first degree.

See RCW 46.20.342(1)(a).

The State also contends the admission of exhibit 10 was not harmful in light

of exhibit 11 -- the abstract of Cienfuegos's driving record. This argument cannot be

sustained. During closing, the prosecutor placed heavy reliance on exhibit 10. CP

(Cienfuegos) at 399, 402, 405. The prosecutor went so far as to proclaim that

exhibit 11 was "admittedly . . . difficult to read" and explicitly encouraged the jury

to instead rely on the summary provided in exhibit 10. CP (Cienfuegos) at 400.

Because exhibit 10 was a key piece of evidence in the case against Cienfuegos, the

State has not carried its burden of showing the error was harmless beyond a

reasonable doubt. We affirm the superior court's reversal of Cienfuegos's

conviction.
State v. Moimoi

In arguing that any constitutional error was harmless, the State points to

Moimoi's testimony, stating he had "no idea" whether he had a contractor's license

with DLI. CP (Moimoi) at 116. The State views this as a concession that Moimoi

never applied for or received licensing from the department. The State also calls

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State v. Jasper (Douglas Scott), et al., 85227-8

attention to Mr. Jackson's testimony. Mr. Jackson testified he was assigned to

investigate a complaint against Moimoi. He testified he checked to see whether

Moimoi was registered as a contractor and then requested a certified letter from the

custodian of records, Ms. Bergman, stating that Moimoi was not registered.

The problem with the State's argument is the certification was the only

evidence presented by the prosecution that Moimoi was in fact not registered with

DLI. That Moimoi had "no idea" whether he was registered is not dispositive of

guilt, nor is Jackson's testimony. Importantly, Jackson never revealed the results of

his own search of the contractor database. Instead, he testified only that he made a

determination of Moimoi's contractor status, without saying what that status was.

Thus, the certification was critical to the State's case. We reverse the superior court

and hold the constitutional error was not harmless beyond a reasonable doubt.

C. Retrial (Not Dismissal) is the Appropriate Remedy

After holding the admission of exhibit 10 violated Cienfuegos's right to

confrontation, the superior court ordered that the conviction be vacated and the case

remanded for dismissal. CP (Cienfuegos) at 498. The court stated that "[w]ithout

this improperly admitted exhibit, the evidence is likely insufficient to support his

conviction." Id. The superior court erroneously applied the remedy for insufficient

evidence rather than the remedy for constitutional error occurring at trial.

Generally, when evidence is admitted at trial and later held to violate the

confrontation clause, the proper remedy is to remand for retrial. See State v.

Darden, 145 Wn.2d 612, 628, 41 P.3d 1189 (2002); see also State v. Hendrickson,

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State v. Jasper (Douglas Scott), et al., 85227-8

138 Wn. App. 827, 833, 158 P.3d 1257 (2007). The superior court erred by

examining the sufficiency of the evidence after excluding the unconstitutionally

admitted exhibit. As made plain by the United States Supreme Court, "the Double

Jeopardy Clause allows retrial when a reviewing court determines that a defendant's

conviction must be reversed because evidence was erroneously admitted against

him, and also concludes that without the inadmissible evidence there was

insufficient evidence to support a conviction." Lockhart v. Nelson, 488 U.S. 33, 40,

109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). The appropriate remedy here is to

reverse the defendants' convictions (except for Jasper's hit-and-run conviction) and
to remand for new trials.3

II. Jasper Has Not Shown the Trial Court Violated His Rights by Responding to
Questions from the Jury During Deliberations

Jasper claims the trial court violated his rights under the Sixth Amendment to

the United States Constitution, the due process clause of the Fourteenth

Amendment, and article I, section 22 of the Washington State Constitution by

responding to jury inquiries without consulting his counsel and without allowing

Jasper to be present. His Court of Appeals briefing offers an extensive Gunwall
analysis to advance an independent interpretation of article I, section 22.4

3 The State also argues the superior court erred in reversing Cienfuegos's
conviction based on certain evidentiary rulings made by the district court. Given our
resolution of the confrontation clause issue, we do not address these evidentiary rulings
because Cienfuegos is entitled to a new trial as a result of the unconstitutional admission
of the testimonial certification.
4 In State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986), this court set forth
six nonexclusive criteria to be considered when determining whether a provision of our
state constitution should be interpreted independently from its federal analogue: (1) the
textual language, (2) differences in the texts, (3) constitutional history, (4) preexisting

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State v. Jasper (Douglas Scott), et al., 85227-8

The Court of Appeals rejected Jasper's claim. It reasoned that because the

jury's inquiries raised no factual issues, but instead only matters of law, the court's

response to the jury questions did not involve a critical stage of the proceedings to

which Jasper's right to be present attached. Jasper, 158 Wn. App. at 539-40. In

the course of its analysis, the appeals court rejected Jasper's contention that article

I, section 22 provides greater protection than the Sixth Amendment. Id. at 539 n.12.

However, the court concluded the trial court failed to comply with CrR 6.15(f)(2),

accepting Jasper's contention that the judge did not consult with the parties or
counsel before responding to the jury's questions.5 Id. at 540-41. Ultimately, the

Court of Appeals concluded the violation of the rule was harmless and affirmed

Jasper's hit-and-run conviction. Id. at 544.

Jasper then moved for reconsideration, which the Court of Appeals denied.

But, in response to the motion for reconsideration, the Court of Appeals changed its

opinion by adding footnote 13. The footnote sheds light on the parties' dispute as to

whether Jasper and his counsel were in fact not consulted before the trial court

responded to the jury's inquiries:

state law, (5) structural differences, and (6) matters of particular state or local concern.
5 CrR 6.15(f)(1) states:
The jury shall be instructed that any question it wishes to ask the court
about the instructions or evidence should be signed, dated and submitted in
writing to the bailiff. The court shall notify the parties of the contents of
the questions and provide them an opportunity to comment upon an
appropriate response. Written questions from the jury, the court's response
and any objections thereto shall be made a part of the record. The court
shall respond to all questions from a deliberating jury in open court or in
writing. . . . Any additional instruction upon any point of law shall be
given in writing.

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State v. Jasper (Douglas Scott), et al., 85227-8

Jasper affirmatively contends that both he an[d] counsel were absent during
the trial court's resolution of the jury's questions. "The jury gave both
questions to the court at 1:42 p.m., and the court returned both answers to
the jury at 1:50 p.m. The clerk's minutes otherwise detail the presence and
involvement of the parties in matters conducted both on and off the record
and yet the minutes contain no indication that the court discussed the jury's
questions with counsel or Jasper." Br. of Appellant at 20 -- 21.
The State agrees that the only indication that Jasper or his counsel
were consulted is the trial court's standard, preprinted response form, which
states: "COURT'S RESPONSE: (AFTER AFFORDING ALL
COUNSEL/PARTIES OPPORTUNITY TO BE HEARD)." The State
concedes that, "[t]he record is silent as to whether Jasper and/or his counsel
were informed of the jury inquiry, except for the notation on the preprinted
form, which stated that all parties had been afforded the opportunity to be
heard." Br. of Resp't at 27.
In the event that contact with counsel was made by the trial court,
the record is silent as to Jasper's counsel's suggested response, if any, to
the jury inquiries. Similarly absent is any indication as to Jasper's
counsel's response, if any, to the trial court's suggested answers to the
jury's inquiries.
Faced with this record, the State does not urge affirmance based on
compliance with the court rule. Rather, the State contends that,
"[a]ssuming, arguendo, that the trial court's failure to consult Jasper or his
counsel before answering the jury's question was error, the error is
harmless." Br. of Resp't at 32.
Accordingly, we assume the facts as urged by Jasper in resolving
this issue.
Following the initial filing of this opinion, the State filed a pleading
that we categorized as a motion for reconsideration. Appended to the
pleading was a copy of a letter from the trial court to counsel. The gist of
the letter is the trial judge's assertion that telephone contact with trial
counsel was made upon receipt of the jury's inquiry. Jasper filed a
response to the motion, correctly citing to applicable rules which preclude
supplementation of the appellate record in this fashion.
To the extent that the State's purpose was to afford readers of this
opinion with the trial court's recollection of circumstances, this mention
should accomplish that purpose. Jasper is correct, however, in noting that
our rules preclude any grant of relief to the State as a result of the motion or
its attachment.
This all points to a greater issue. We are sympathetic to trial judges
who receive a copy of the appellate opinion in a matter over which they
presided and who believe that the factual recitation therein is incomplete.
In this regard, however, we are subservient to the trial court. Only those
matters about which the trial court allows or causes a record to be made are
available for us to review. As has often been observed, for purposes of
appellate review, there is virtually no difference between a trial event that
did not take place and a trial event that took place but about which no

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State v. Jasper (Douglas Scott), et al., 85227-8

record was made.

Id. at 540 n.13 (last emphasis added).

The footnote makes clear the Court of Appeals assumed -- based on the

nonexistence of facts -- that the trial court did not contact counsel and that Jasper

was not present when the trial court considered and responded to the jury inquiries.

See id. ("we assume the facts as urged by Jasper in resolving this issue").

Despite the Court of Appeals' extended explanation, its assumptions about

what happened at trial are unwarranted. It is a well established principle that

"[o]n a partial or incomplete record, the appellate court will presume any
conceivable state of facts within the scope of the pleadings and not
inconsistent with the record which will sustain and support the ruling or
decision complained of; but it will not, for the purpose of finding reversible
error, presume the existence of facts as to which the record is silent."

Barker v. Weeks, 182 Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4 C.J. 736); see

State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) ("If a defendant

wishes to raise issues on appeal that require evidence or facts not in the existing trial

record, the appropriate means of doing so is through a personal restraint petition,

which may be filed concurrently with the direct appeal.").

To the extent the Court of Appeals intimates the State has conceded that

neither counsel nor Jasper was contacted or present, the Court of Appeals misstates

the State's position. The State has not conceded this point. See Br. of Resp't at 26-

27; see also Suppl. Br. of Resp't at 25-26.

The only fact in the record supporting Jasper's claim that he was not present

during the trial court's consideration of the jury inquiries was that eight minutes

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State v. Jasper (Douglas Scott), et al., 85227-8

elapsed between receipt of the questions and the court's response to the jury.

Jasper also relies on the absence of a minute entry. Such evidence does not

establish that Jasper and his lawyer were not contacted or, for that matter, were not

present when the trial court considered the inquiries. The record reflects that the

trial court judge pressed the lawyers two times to provide their telephone numbers

so they could be contacted. VRP (Jasper -- Mar. 12, 2009) at 28, 33. The record

also reflects that Jasper was not in custody during the trial. CP (Jasper) at 2-4, 115.

Importantly, the written response itself states that the trial court contacted the

parties before responding. CP (Jasper) at 50, 52. While Jasper complains that this

language was part of a preprinted form, we do not lightly assume that a judge falsely

attaches a signature to a court form.

Given the state of the record, Jasper failed to shoulder his burden to

demonstrate a constitutional violation. Accordingly, we decline to entertain his

claim on the merits.

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State v. Jasper (Douglas Scott), et al., 85227-8

CONCLUSION

Under the United States Supreme Court's decision in Melendez-Diaz, the

certifications at issue in these cases are testimonial statements To the extent our

opinions in Kirkpatrick and Kronich hold otherwise, they are overruled. Because

the defendants did not have the opportunity to cross-examine the individuals who

prepared the certifications, the admission of the certifications into evidence violated

the defendants' rights under the confrontation clause. And, except with respect to

Jasper's hit-and-run conviction, the unconstitutional admission of the certifications

was not harmless beyond a reasonable doubt.

We decline to address the issue whether the trial court in Jasper violated the

defendant's constitutional rights in responding to questions from the jury during

deliberations. Jasper has not factually supported his claim. Accordingly, we affirm

the Court of Appeals in Jasper, affirm the superior court in Cienfuegos, and reverse

the superior court in Moimoi. We reverse the affected convictions and remand for

further proceedings consistent with this opinion.

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State v. Jasper (Douglas Scott), et al., 85227-8

AUTHOR:
Justice Debra L. Stephens

WE CONCUR:
Chief Justice Barbara A. Madsen Justice James M. Johnson

Justice Charles W. Johnson

Justice Tom Chambers Justice Charles K. Wiggins

Justice Susan Owens Gerry L. Alexander, Justice Pro Tem.

Justice Mary E. Fairhurst

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