Docket Number: 24526-8 

Title of Case: State of Washington v. Gregaline Tyler
File Date: 04/19/2007


SOURCE OF APPEAL
----------------
Appeal from Spokane Superior Court
Docket No: 05-1-01762-8
Judgment or order under review
Date filed: 10/07/2005
Judge signing: Honorable Gregory David Sypolt


JUDGES
------
Authored by Teresa C. Kulik
Concurring: John A. Schultheis
Kenneth H. Kato


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

Counsel for Appellant(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Oliver Ross Davis
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
Kevin Michael Korsmo
Attorney at Law
1100 W Mallon Ave
Spokane, WA, 99260-2043


Andrew J. Metts III
Spokane County Pros Offc
1100 W Mallon Ave
Spokane, WA, 99260-0270



IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 24526-8-III
)
Respondent, )
)
v. ) Division Three
)
GREGALINE TYLER, )
) PUBLISHED OPINION
Appellant. )

Kulik, J. -- Gregaline Tyler was convicted for the crimes of intimidating a witness

and fourth degree assault. On appeal, he claims that alleged statements made by the

victim to law enforcement officers were testimonial and should not have been admitted
under Crawford v. Washington.1 Statements taken by law enforcement are almost always

testimonial. Here, an officer initiated contact with the victim when it appeared Mr. Tyler

was assaulting her. Police then questioned her about Mr. Tyler's actions. We conclude

that the trial court erred in finding the victim's statements nontestimonial. And we

conclude that the doctrine of forfeiture does not apply because this issue was not raised at

1 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).

No. 24526-8-III
State v. Tyler

trial. We affirm the conviction for fourth degree assault and reverse the

conviction for intimidating a witness.

FACTS

On May 8, 2005, Officer Derek Bishop saw a man and woman who appeared to be

fighting. The woman, identified as Linda Greer, was crying and visibly upset. She was

being followed by Gregaline Tyler, who looked as if he was trying to get Ms. Greer's

attention by grabbing her back. Ms. Greer appeared to resist and later told police that it

was unwanted contact. Officer Bishop slowly followed the couple in his vehicle and

eventually stopped to talk to them.

Officer Bishop asked Mr. Tyler to sit down on the steps of a nearby house while

the officer spoke to Ms. Greer, who was crying and hyperventilating. She responded in a

whisper to the officer's questions and kept her back to Mr. Tyler. Officer Bishop

believed that she was doing this to prevent Mr. Tyler from overhearing the conversation.

Ms. Greer repeatedly requested help from the officer during his questioning. She

also stated that Mr. Tyler would kill her if she told police about what was going on. Ms.

Greer eventually revealed that she and Mr. Tyler were in a domestic relationship and that

Mr. Tyler had been violent with her on more than one occasion. At one point during the

questioning, Mr. Tyler shouted something at Officer Bishop and Ms. Greer.

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No. 24526-8-III
State v. Tyler

Ms. Greer told Officer Bishop that she was attempting to end her relationship with

Mr. Tyler. She also told the officer that, while the two were arguing on the street, Mr.

Tyler had slapped her twice and hit her on the knee with a flashlight. Later, Officer

Bishop testified that Ms. Greer appeared to believe that Mr. Tyler would kill her if she

testified against him at trial.

Officer Bishop called in another officer as backup. He told the other officer that

he needed backup because he was investigating a potential domestic violence situation.

The officer described Officer Bishop's actions with Mr. Tyler as an attempt to

"investigate [what was] going on." Report of Proceedings (RP) (Aug. 16-18, 2005) at 99.

Mr. Tyler was arrested based on Ms. Greer's statements. Mr. Tyler continued to

shout at Ms. Greer while he was being placed in the patrol car. In particular, he yelled

that Ms. Greer would have to show up in court for them to charge Mr. Tyler with assault.

Police found a flashlight on Mr. Tyler that matched the one described by Ms. Greer. But

no marks were found on Ms. Greer's body. The State characterized Ms. Greer as a

"prospective witness" at the time Mr. Tyler allegedly made threats against her. RP

(Aug. 16-18, 2005) at 120.

Mr. Tyler was charged with intimidating a witness and fourth degree assault. Mr.

Tyler sought to suppress Ms. Greer's statements to police officers based on her absence

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No. 24526-8-III
State v. Tyler

at trial. He argued that Ms. Greer's statements were testimonial and should be excluded

under Crawford if Ms. Greer did not testify at trial. Mr. Tyler also requested that he be

allowed to present evidence that Ms. Greer had an arrest warrant and that this was the

actual reason for her absence from trial. This evidence was intended to rebut the

inference that her absence was caused by any threats from Mr. Tyler.

The trial court found that Ms. Greer's statements to police were excited utterances

and, therefore, were exceptions to the prohibition against hearsay. The court further

concluded that the court in Crawford limited testimonial evidence to situations of police

interrogation, and that "preliminary investigative questions at the scene of a crime shortly
after it has occurred" are not testimonial.2 RP (Aug. 17, 2005) at 1020-21. The court

deemed Ms. Greer's statements to police to be admissible. The court also ruled that it

was barring both Mr. Tyler and the State from speculating on the reasons for Ms. Greer's

absence.

Mr. Tyler testified at trial. He denied threatening Ms. Greer. He also asserted that

Ms. Greer fell down while the two were walking down the road. Ms. Greer did not

testify at trial. But there was testimony from police about the statements she made to the

2 We note that the trial court did not have the benefit of the recent decision in
Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), at the
time the court found that Ms. Greer's statements were nontestimonial.

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No. 24526-8-III
State v. Tyler

officers.

During closing arguments, Mr. Tyler brought up Ms. Greer's absence from

court several times. He limited his statements to the context of the inability of the

jury to weigh Ms. Greer's credibility due to her absence. The State responded by

asserting that Ms. Greer was not in court because she was intimidated by Mr. Tyler. Mr.

Tyler objected to these statements, but was overruled by the trial court.

Mr. Tyler was convicted of intimidating a witness and was sentenced to 36

months' confinement. He was also convicted of fourth degree assault and was sentenced

to 365 days, to be served concurrently with his other conviction. This appeal followed.

ANALYSIS

1. Did the admission of Ms. Greer's statements violate Mr. Tyler's Sixth

Amendment right to confront adverse witnesses?

This court reviews alleged violations of the confrontation clause de novo. State v.

Larry, 108 Wn. App. 894, 901, 34 P.3d 241 (2001). Whether to adopt the doctrine of

forfeiture by wrongdoing is a question of law that this court also reviews de novo. See

Massachusetts v. Edwards, 444 Mass. 526, 532, 830 N.E.2d 158 (2005).

Confrontation Clause and Testimonial Statements.

The sixth amendment of the United States Constitution guarantees a criminal

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No. 24526-8-III
State v. Tyler

defendant the right to confront adverse witnesses at trial. Based on this constitutional

guarantee, any statement that is testimonial in nature is inadmissible in court unless the

maker is available for cross-examination at trial. Crawford, 541 U.S. at 68. This court

must determine whether the statements are testimonial when taken from an alleged assault

victim during a police-initiated contact moments after the alleged assault.

There is no comprehensive definition of a testimonial statement. State v. Shafer,

156 Wn.2d 381, 388, 128 P.3d 87, cert. denied, 127 S. Ct. 553 (2006). Statements taken

by officers in the course of interrogations are almost always testimonial. Davis, 126 S.

Ct. at 2273. So are statements that are the product of police-initiated contact. State v.

Mason, 127 Wn. App. 554, 562-63, 126 P.3d 34 (2005). Other types of statements

generally require a case-by-case analysis. Id.

If statements are taken when there is no ongoing emergency, and the statements

are for the primary purpose of establishing past events that are potentially relevant to a

future prosecution, the statements are testimonial. Davis, 126 S. Ct. at 2273-74. If the

statements are taken during the course of an ongoing emergency, such as statements made

during a 911 call, the statements are nontestimonial. Id. at 2273, 2276-77.

The key difference, according to the court in Davis, is whether the statements are

taken to establish a past fact or whether they describe current circumstances requiring

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No. 24526-8-III
State v. Tyler

police assistance. Id. at 2276. Moreover, statements that begin as nontestimonial

statements in response to a current emergency may evolve into testimonial statements if

the interrogation continues when the "exigency of the moment" has passed. Id. at 2277.

Initially, Ms. Greer appears to have been hesitant to speak with police. It is

uncontested that Ms. Greer and Mr. Tyler were stopped so that police could investigate

the interaction between them, given the fight observed by the officers. The officers may

have thought there was some initial exigency, but that exigency was terminated as soon as

law enforcement separated Ms. Greer and Mr. Tyler.

The officers asked Ms. Greer questions about what had previously transpired.

Police described this encounter as an investigation, and the State characterized Ms. Greer

as a "prospective witness." RP (Aug. 16-18, 2005) at 120. Taken as a whole, the

evidence in this case indicates that Ms. Greer's statements were testimonial. The trial

court erred in admitting these statements.

Doctrine of Forfeiture.

The State urges that, even if Ms. Greer's statements were testimonial, the common

law doctrine of forfeiture applies and the statements were admissible at trial.

The doctrine of forfeiture by wrongdoing extinguishes a defendant's confrontation

rights based on equitable grounds. Crawford, 541 U.S. at 62; Davis, 126 S. Ct. at 2280.

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No. 24526-8-III
State v. Tyler

The rule basically requires that "one who obtains the absence of a witness by wrongdoing

forfeits the constitutional right to confrontation." Davis, 126 S. Ct. at 2280.

The application of the forfeiture doctrine requires a finding that (1) the defendant

engaged in wrongdoing; (2) the wrongdoing was intended to render the absent witness

unavailable at trial, and (3) the wrongdoing did, in fact, render the witness unavailable at

trial. United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005).

The doctrine of forfeiture has been accepted by the Supreme Court and was

codified in Federal Rule of Evidence 804(b)(6). This doctrine has also been adopted by
numerous state courts.3 But the doctrine of forfeiture has not yet been adopted in

Washington. See Mason, 127 Wn. App. at 570.

3 Almost 20 states have adopted the doctrine of forfeiture by wrongdoing.
See, e.g., Arizona v. Valencia, 186 Ariz. 493, 498, 924 P.2d 497 (1996); Colorado v.
Moore, 117 P.3d 1, 5 (Colo. Ct. App. 2004); Connecticut v. Henry, 76 Conn. App. 515,
525-26, 820 A.2d 1076 (2003); Illinois v. Hampton, 363 Ill. App. 3d 293, 300-01, 842
N.E.2d 1124 (2006); Iowa v. Hallum, 606 N.W.2d 351, 354-55 (Iowa 2000); Kansas v.
Meeks, 277 Kan. 609, 613-14, 88 P.3d 789 (2004); Edwards, 444 Mass. at 532-33;
Michigan v. Harrington, 472 Mich. 854, 855-56, 691 N.W.2d 436 (2005); Minnesota v.
Black, 291 N.W.2d 208, 213-14 (Minn. 1980); New Jersey v. Sheppard, 197 N.J. Super.
Ct. Law Div. 411, 436, 484 A.2d 1330 (1984); New Mexico v. Alvarez-Lopez, 2004-
NMSC-30, 136 N.M. 309, 313-14, 98 P.3d 699; New York v. Geraci, 85 N.Y.2d 359,
366, 625 N.Y.S.2d 469, 649 N.E.2d 817 (1995); Ohio v. Hand, 107 Ohio St. 3d 378, 391-
92, 840 N.E.2d 151 (2006); Pennsylvania v. Paddy, 569 Pa. 47, 73 n.10, 800 A.2d 294
(2002); Tennessee v. Ivy, 188 S.W.3d 132, cert. denied, 127 S. Ct. 258 (Tenn. 2006);
Gonzalez v. Texas, 195 S.W.3d 114, 117, cert. denied, 127 S. Ct. 564 (Tex. Crim. App.
2006); Virginia v. Morgan, 69 Va. Cir. 228, 231 (2005); West Virginia v. Mechling, 633
S.E.2d 311, 325-26 (W. Va. 2006).

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No. 24526-8-III
State v. Tyler

Many jurisdictions that have considered the issue have adopted the doctrine of

forfeiture by wrongdoing. And there are sound policy reasons to do so. Basic principles

of equity require that a person should not be allowed to profit from his or her own

wrongdoing. Gray, 405 F.3d at 242. Also, the rule protects the overall integrity of the

criminal justice system by deterring litigants from wrongfully preventing the testimony of

adverse witnesses. See Geraci, 85 N.Y.2d at 366.

But an issue may not be raised for the first time on appeal unless it is a manifest

error affecting a constitutional right. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d

1251 (1995). The doctrine of forfeiture has its roots in principles of equity, not the

constitution. Crawford, 541 U.S. at 62; Davis, 126 S. Ct. at 2280. The State was

required to invoke this doctrine at trial to have preserved this issue for review on appeal.

There is an insufficient record for this court to review whether this doctrine should be

applied in Mr. Tyler's case, and the issue has not been preserved for appeal. On this

basis, we decline to apply the doctrine of forfeiture to the facts of this case.

Harmless Error Analysis.

A violation of the confrontation clause is subject to a constitutional harmless error

analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674

(1986). Under this rule, Mr. Tyler's convictions can be upheld only if this court finds

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No. 24526-8-III
State v. Tyler

beyond a reasonable doubt that any reasonable jury would have reached the same result

without having heard Ms. Greer's alleged statements to the police. See State v. Smith,

148 Wn.2d 122, 139, 59 P.3d 74 (2002). This court applies the overwhelming untainted

evidence test to determine whether the admission of the statements was harmless. Id.

Under this test, this court must determine whether the remaining untainted evidence

admitted at trial was so overwhelming that it would necessarily lead to a finding of guilt.

Id.

Here, Mr. Tyler was charged with fourth degree assault. Assault is an intentional

touching or striking of another person that is harmful or offensive, regardless of whether

it results in physical injury. See State v. Shelley, 85 Wn. App. 24, 28-29, 929 P.2d 489

(1997). Officer Bishop observed Mr. Tyler repeatedly grab at Ms. Greer's back. Ms.

Greer resisted Mr. Tyler's contact and appeared to be visibly upset. Based on this

evidence, we conclude beyond a reasonable doubt that any reasonable jury would have

found Mr. Tyler guilty of fourth degree assault.

But the same cannot be said for Mr. Tyler's conviction for intimidating a witness.

A person is guilty of intimidating a witness if that individual, by use of a threat against a

current or prospective witness, attempts to influence the testimony of another, induce the

other person to elude legal process or otherwise absent himself or herself from the

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No. 24526-8-III
State v. Tyler

proceedings, or induce the other person not to report information relevant to a criminal

investigation. RCW 9A.72.110.

Here, there was one statement made by Mr. Tyler that could support a finding that

Mr. Tyler was guilty of intimidating a witness. Mr. Tyler stated that Ms. Greer would

have to "show up in court" for them to charge Mr. Tyler. RP (Aug. 16-18, 2005) at 40.

Mr. Tyler also stated that he would "tell everyone what [Ms. Greer] did." RP

(Aug. 16-18, 2005) at 40.

This was not, however, the remark relied upon by the State to establish that Mr.

Tyler had intimidated a witness. Instead, the focus of the evidence was on the alleged

threat that Mr. Tyler made against Ms. Greer that he would kill her if she testified. And

this remark was part of the testimonial evidence improperly admitted against Mr. Tyler.

Based on these facts, it cannot be established beyond a reasonable doubt that the jury

would have found Mr. Tyler guilty of intimidating a witness based solely on the untainted

evidence presented at trial.

There is insufficient untainted evidence to conclude that a reasonable jury would

have found Mr. Tyler guilty of intimidating a witness. Mr. Tyler's conviction for

intimidating a witness is reversed.

Given our reversal of Mr. Tyler's conviction, we need not reach the issue of

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No. 24526-8-III
State v. Tyler

prosecutorial misconduct. See, e.g., State v. Eckblad, 152 Wn.2d 515, 522, 98 P.3d 1184

(2004).

We affirm Mr. Tyler's conviction of fourth degree assault and reverse his

conviction for intimidating a witness.

_________________________________
Kulik, J.

WE CONCUR:

_________________________________
Schultheis, A.C.J.

_________________________________
Kato, J. Pro Tem.

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