IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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Respondent, DIVISION ONE
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TOMMIE BERNARD LEWIS,
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UNPUBLISHED
Appellant. FILED: November 6, 2017
Cox, J. — Tommie Lewis appeals his judgment and sentence for two
counts of domestic violence felony violation of a court order. Lewis contends that
his Sixth Amendment right to confrontation was violated by the admission into
evidence of two hearsay statements of identification. Because admission of
these statements was harmless beyond a reasonable doubt, we affirm.
Lewis and Wendy Hynd were involved in a romantic relationship and have
one child. In April 2014, Lewis was charged with assaulting Hynd. The trial court
entered a no contact order, and Lewis was later convicted of witness tampering
and two counts of domestic violence misdemeanor violation of a court order.
During a bench trial on those charges, Lewis admitted that he had called Hynd
from the King County jail on May 7, 2014.
No. 75662-1-1/2
On November 13, 2015, Hynd called 911 to report that Lewis had
assaulted her in the couple's apartment while Hynd was holding their daughter.
Lewis was booked in the King County jail, arraigned, and served with a no
contact order protecting Hynd.
On January 27 and 28, 2016, while Lewis was in the King County jail, he
made two calls to a phone number later identified as belonging to Hynd. Based
upon these two recorded phone calls, Lewis was charged with two counts of
domestic violence felony violation of a court order.'
Hynd did not testify at the ensuing bench trial. As part of its proof that
Lewis was speaking to Hynd during the phone calls, the State sought to
introduce testimony from Detective Daljit Gill. Detective Gill had investigated the
2014 incident, and telephoned Hynd to interview her as part of that investigation.
Detective Gill testified that when she called the telephone number listed in the
police report, she asked to speak with Wendy and "[s]he said it was her."2
Detective Gill also testified regarding a second phone call that she received later •
the same day. She testified that she "recognized the voice to be the same
person. . . I had spoken to earlier in the morning regarding this case, and the
same person on the in-car video."3 Detective Gill told the caller that she was on
a police-recorded line and then asked,"[Mho is this?" The caller "identified
herself as Wendy Hynd."5
See RCW 26.50.110(5).
2 Report of Proceedings(RP)(July 7, 2016) at 192.
3 Id. at 195.
4 id.
5 Id.
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Lewis objected to admission of Hynd's statements based on hearsay and
his Sixth Amendment confrontation rights. The trial court overruled the hearsay
objection because the two statements were "statement[s] of identity."6 The trial
court also concluded that admission of Hynd's statements did not violate the
Confrontation Clause because they were nontestimonial.
After considering all of the evidence, the trial court convicted Lewis of two
counts of domestic violence felony violation of a court order. It sentenced Lewis
accordingly.
Lewis appeals.
HEARSAY
Lewis argues that the trial court abused its discretion in admitting Hynd's
statements of self-identification because they were hearsay. We agree.
"Hearsay is 'a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.'"7 In general, hearsay is not admissible.8 But if a statement is
offered for a purpose other than its truth, the statement is not hearsay and it is
admissible.6 We review the trial court's hearsay ruling for abuse of discretion.1°
Hynd's statements of self-identification were being introduced to prove her
identity, the truth of her assertions. Thus, those statements were hearsay and
6 Id. at 192, 379.
7 State v. Iverson, 126 Wn. App. 329, 336, 108 P.3d 799(2005)(quoting
ER 801(c)).
8 Id.
9 Id. at 337.
16 Id. at 336.
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inadmissible absent some exception set forth in the Washington Rules of
Evidence.11 No exception applies to a hearsay statement of self-identification
made by a witness, so the trial court erred in admitting these statements.12 The
State properly concedes this point in its briefing on appeal.
CONFRONTATION CLAUSE
Lewis argues that the trial court violated his confrontation clause rights
secured by the Sixth Amendment by admitting Hynd's statements of self-
identification. Assuming without deciding that Lewis is correct, that error was
harmless beyond a reasonable doubt.
The Sixth Amendment confrontation clause provides that in all criminal
prosecutions "the accused shall enjoy the right. .. to be confronted with the
witnesses against him."13 "When a violation has occurred, we then review for
harmless error."14
We review de novo confrontation clause challenges.15
The confrontation clause only applies to testimonial statements.16 A
testimonial statement is "typically a 'solemn declaration or affirmation made for
11 See id.; ER 802.
12 See generally, ER 803 and 804.
"U.S. CONST. amend. VI.
14 State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012)(citing
Chapman v. California, 386 U.S. 18, 21-22, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967)).
15 Id.
16 Id.
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the purpose of establishing or proving some fact."17 The State has the burden of
establishing that a statement is nontestimonia1.18
The United States Supreme Court has stated that, at a minimum,
testimonial statements include "prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and police interrogations."18 In deciding whether
statements are testimonial, the Washington supreme court adopted the "primary
purpose" test.2° Under this test:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.E211
Testimonial statements include those that were "made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial."22
The State argues that Hynd's statements are nontestimonial because
"they were basic, present-tense acknowledgements of[Hynd's] identity at the
17 Id. at 109 (quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct.
1354, 158 L. Ed. 2d 177(2004).
18 State v. Koslowski, 166 Wn.2d 409, 417 n.3, 209 P.3d 479 (2009).
19 Crawford, 541 U.S. at 68.
29 Koslowski, 166 Wn.2d at 418.
21 Id. (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006)).
22 State v. Lui, 179 Wn.2d 457, 506, 315 P.3d 493(2014)(quoting
Crawford, 541 U.S. at 52).
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initiation of phone conversations."23 It further argues that Hynd "was not formally
bearing testimony by simply acknowledging who she was" and she was not
chronicling past events or leveling an accusation.24 Moreover, it contends that
she would not have anticipated that her statements would be used in court two
years later to establish her identity in a completely different case. The State
provides no authority in support of its contentions, and we are unpersuaded by
these arguments.25
Hynd's statements were made to a police officer during the investigation of
a crime. In addition, they were not given to enable law enforcement to assist with
an ongoing emergency.26 Instead, Detective Gill's primary purpose in speaking
with Hynd was "to establish or prove past events potentially relevant" to a later
criminal prosecution for domestic violence.27 These circumstances are such as
would lead an objective witness to reasonably believe that the statements would
be later used at tria1.28
Assuming, without deciding, that Hynd's statements were testimonial and
their admission violated Lewis's Sixth Amendment confrontation rights, we review
their admission for constitutional harmless error.29
23Respondent's Supplemental Brief at 15.
24Id.
25 See State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171, cert. denied,
439 U.S. 870, 99 S. Ct. 200, 58 L. Ed. 2d 182(1978).
26 Koslowski, 166 Wn.2d at 418 (quoting Davis, 547 U.S. at 822).
27 Id.
25 Lui, 179 Wn.2d at 506 (quoting Crawford, 541 U.S. at 52).
29 Jasper, 174 Wn.2d at
108.
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HARMLESS ERROR
Lewis argues that admission of Hynd's hearsay statements was not
harmless for purposes of the confrontation clause. We disagree.
A constitutional error is only harmless if the State shows "beyond a
reasonable doubt that the error. . . did not contribute to the verdict."33 The State
bears the burden of proving beyond a reasonable doubt that the error was
harmless.31
In applying the harmless error analysis when considering a confrontation
clause violation, "[t]his court employs the 'overwhelming untainted evidence' test
and looks to the untainted evidence to determine if it is so overwhelming that it
necessarily leads to a finding of guilt."32
Here, admission of Hynd's statements was harmless in light of the
overwhelming evidence in support of Lewis's conviction and, more specifically, in
support of the finding that Lewis called Hynd, the person protected by the no
contact order, from the King County jail.
Lewis challenges admission of Hynd's two statements of identification, but
does not challenge the remainder of the trial court's findings and thus they are
verities on appea1.33
30 Id. at 117.
31 Id.
32 State v. Anderson, 171 Wn.2d 764, 770, 254 P.3d 815(2011)(quoting
State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
33 State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182(2014).
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On January 27 and 28, 2016, two calls were placed from the unit where
Lewis was held. Although the calls were placed using the account of another
inmate, it is common for inmates to use each other's phone accounts to avoid
detection and the male voice on the phone belonged to Lewis.
A Child Protective Services caseworker testified that he had spoken with
Hynd twice at the phone number Lewis called on January 27 and 28, 2016, and
CPS records listed that number as belonging to Hynd.
The jail phone call recorded May 7, 2014, was offered in evidence and
played at trial. Lewis had previously admitted under oath that the voices on the
May 7, 2014 call belonged to him and Hynd.
Detective Gill testified that the female voice in the January 27 and 28,
2016 calls was the same voice in the 911 call and the in-car video of the 2014
incident, the voice on the May 7, 2014 tape, and the voice of the person she had
spoken with on the phone in April 2014. She noted that, in all the recordings she
reviewed, Hynd had the same distinctive "gravelly" voice. She also noted that
the person she spoke with on the phone in 2014 had knowledge of case-specific
facts, knew what Detective Gill was investigating, and knew the people involved.
The audiotapes from the jail telephone conversations on May 7, 2014, and
January 27 and 28, 2016, were played at trial. The trial court listened to all three •
recordings and could compare the voices for itself.
In addition, the content of the December 7, 2014 and January 27 and 28,
2016 calls supports a finding that Hynd was the recipient of all three calls. In all
three calls, the man and woman discussed personal details of their lives
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No. 75662-1-1/9
including discussions about Lewis' father, the couple's child, Lewis's violent
behavior towards Hynd, and the ongoing legal proceedings against Lewis.
The properly admitted evidence overwhelming established that Lewis
violated the no contract orders by phoning Hynd from jail.
Lewis further contends that the "trial court's findings confirm that the court
relied on [the] constitutionally infirm evidence."34 Lewis is wrong.
After hearing all the evidence, the trial court stated that it was persuaded
by the testimony of a witness who had identified Lewis's voice, the circumstantial
evidence, and "the court's own voice recognition that these same two people had
the conversations."35 The trial court noted that "[i]t would take a real stretch of
the imagination to consider that. .. anything but the obvious [] happen[ed]
here."36
In its written findings, the trial court did not rely upon Hynd's statements of
identification. It found that Detective Gill recognized Wendy Hynd's voice from
her telephone conversations with Hynd, the 911 call and the in-car video from the
2014 case, and the female voice on the May 7, 2014 jail phone call. After
comparing the phone calls from May 7, 2014, and January 27 and 28, 2016, the
trial court found that "the male and female on the January 27 and 28, 2016 phone
calls were Tommie Lewis and Wendy Hynd."37
34 Appellant's Opening Brief(Amended) at 16.
35 RP (July 8,
2016) at 429.
36 id.
37 Clerk's Papers at 62.
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Because the untainted evidence is "so overwhelming that it necessarily
leads to a finding of guilt," any error in the admission of Hynd's statements of
self-identification was harmless beyond a reasonable doubt.38
We affirm the judgment and sentence.
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WE CONCUR:
38 Anderson, 171 Wn.2d at 770.
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