State v. Burns

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IN CLERKS OEPICE
This opinion was
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iusanL. Carlson
Supreme Court Clerk
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CHIEF JUSTICE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 95528-0
Respondent,

En Banc

MICHAEL 1. BURNS,

Petitioner.
Filed APR 1 8 2019

JOHNSON,J.—This case involves, first, whether Michael Bums was

improperly denied his right to waive counsel and represent himself at trial and,

second, whether he may assert a violation of the confrontation clause for the first

time on appeal. The trial court judge denied Bums's request to proceed pro se

based on a lack of understanding ofthe nature of the charges against him where he

indicated that the criminal charges did not pertain to him and that he had not

entered into a contract such that the State could bring charges against him. Burns

claimed on appeal that his right to confrontation was violated when statements of

his victim came in as evidence through testimony of her neighbor and the
State V. Burns, No. 95528-0

responding police officer, although she herself did not testify. Bums did not object

to the testimony on confrontation grounds at trial. The Court of Appeals held that

the trial court Judge did not abuse her discretion in denying Burns's request to

proceed pro se and that Burns waived his right to assert a confrontation violation

when he did not object at trial. We affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

The State charged Michael Burns with assault in the second degree—

domestic violence, and felony violation of a no contact order—domestic violence,

for strangling Christina Jackson while a no contact order was in effect.' Clerk's

Papers(CP)at 25-27.

At one of his first court appearances. Bums said,"I just want to request new

legal representation" because "I haven't been represented the way I see fit."

Verbatim Report ofProceedings(VRP)(Dec. 10, 2015) at 17. The trial court

informed Bums that he was not entitled to a public defender of his choosing.

After numerous requests to proceed pro se, the court held a hearing on

January 13, 2016 regarding Burns's request to represent himself. At the hearing

Bums stated.

'Bums also had two other felony cases with multiple charges pending against him that
the court referenced at his hearing on self-representation.
State V. Burns, No. 95528-0

I would like to go pro se for reasons other than just becoming aware
of certain things. And furthermore, I just, you know,I'd rather handle
my own business considering certain matters especially when I've
gotten lied to, threatened, and coerced into certain things that I wasn't
aware of at the time but I am aware of now. So I would like to go pro
se because of those certain aspects of things so.

VRP (Jan. 13, 2016) at 2-3. The court then began to explain the nature ofthe

charges in all three ofBums's pending cases. Interrupting this explanation. Bums

stated,"These matters being spoken of do not pertain to me, okay?" and the

following exchange occurred:

THE COURT: You say these charges don't pertain to you. It
looks to me like they do. You've been charged and we're here in
court, why don't they pertain to you in your view?
MR. BURNS: Because they don't. I'm not a corporate entity,
I'm a human being, and I'm not contracted into your place of
business. Furthermore, I will not be contracted in your place of
business, okay.
THE COURT: Well, the law doesn't require any contract if a
person is accused of a crime, the person is tried in a court whether
they agree to that or not. And so you've been charged with some
serious crimes and if there is a trial and you're convicted ofthose
crimes you'll be serving sentences for those crimes. It's my job to
make sure that you understand exactly how serious those sentences
could be and that's why I'm going through all of the crimes and all of
the potential sentences.
MR. BURNS: Ma'am,I understand completely what you're
talking about. I understand that there is some, I, you know, somebody
could be charged and sentenced to a serious amount of time for those
matters, but like I said, they do not pertain to me and I'm not going to
allow this. I would like to relieve counsel of their duties so I can
become pro se.
State V. Burns, No. 95528-0

VRP (Jan. 13, 2016) at 6-7.

The court continued explaining the pending charges against Burns and the

potential sentences and fines associated with all three cases. When asked about his
/

education, Bums stated,"I don't think that really matters." VRP (Jan. 13, 2016) at

11. When the court inquired further. Bums said, "I think I'm highly educated

enough to represent myself because other than maybe a little looking into a few

things about the law I think I can handle it because it's mostly just keeping your

composure and acting." VRP (Jan. 13, 2016) at 11. The court explained that Bums

would be held to the same standards as the prosecution and would have to abide by

the mles of procedure and evidence. Bums replied,

I completely understand everything that I'm up against, okay. Your
Honor? I completely understand what is up, what sentencing may
occur, all of that stuff. I completely understand all of that and it
doesn't phase [sic] me a bit. And, you know,I just, I made a mistake
on asking for a public defender because I, I have a right to be
represented as I see fit and the only person that's going to represent
me as I see fit is me so that's why I'm here today. Your Honor.

VRP (Jan. 13, 2016) at 13.

The court then inquired into the alleged threats and coercion that Bums

referred to at the beginning of the hearing, and the following exchange occurred:
State V. Burns, No. 95528-0

MR.BURNS: My lawyer. . . . [S]he has tried to get me to sign
this contract that I'm not going to, I'm not going to sign. I'm not
going to - and furthermore, her and [the prosecutor] have coerced me
into opening a contract without my knowledge or consent and I shot
that down.
THE COURT: I don't know what you are referring to as a
contract.
MR. BURNS: Well, it is a contract.
THE COURT: Well, what is it? What are you talking about?
MR. BURNS: It's a contracts [sic] in the corporation and I'm
not buying.
THE COURT: What's the corporation that you're referring to?
MR. BURNS: It's, the corporation is the United States, Your
Honor, and I am not a citizen of that corporation. So I am not, I'm
here to stand here today and tell you that I want to represent myself as
pro se and I'm not buying into the company, okay? And I demand ~
THE COURT: Mr. Burns, do you believe there's a corporation
involved in the prosecution of these charges?
MR. BURNS: Yes, there always is.

VRP (Jan. 13, 2016) at 14-15.

At this point, the court and the attorneys had a discussion regarding Bums's

competency to stand trial. Bums's attomey indicated she did not see a reason to get

a competency evaluation. The prosecutor described Bums's past requests to

proceed pro se and indicated, while he was not asking for a competency evaluation,

he was concemed as to whether Burns could make a knowing, voluntary, and

intelligent waiver of counsel based on Bums's representations to the court.

Bums again indicated,"I would love to waive counsel period." VRP

(Jan. 13, 2016) at 19. Then the following exchange occurred:
State V. Bums, No. 95528-0

THE COURT: I understand that. The question for me, as [the
prosecutor] pointed out, is whether you're able to do that with full
understanding of the situation that you're in. And,frankly, I am
concerned that you don't seem to have a full understanding of the
situation you're in because just observing you you've not, you've
been very impatient for me to finish describing the charges and
potential penalty to you, you've indicated that doesn't matter to you.
MR.BURNS: Oh, it matters.
THE COURT: You also indicated a belief that there is a
corporation involved here that you were required to be involved with
and that your not being involved with the corporation has something
to do with your, with the fact that you're going to have to go to trial.
And you've said that you don't believe the charges against you apply
to you. I've tried to explain that they very much apply to you.
MR.BURNS: It's not a case. Your Honor.
THE COURT: You have trial in those cases because you've
been charged with these crimes. So all in all I'm concerned about
whether you understand how the criminal system works and what the
consequences of criminal charges can be. And if you don't understand
how that legal system works and what the results of being charged
with a crime can be, you're going to need legal help.
MR.BURNS: Your Honor, from what I just said I, my
understanding is that Mr. Bums is contracted into two cases that have
been globalized into one matter, okay. There is a matter at your
fingertips that is not a case yet, I have rejected the contract for it to
become a case and ~

VRP(Jan. 13, 2016) at 19-21.

At this point, the court cut Burns off and again attempted to explain the three

separate cases against Bums. The judge then denied Bums's motion to proceed pro

se explaining,"I don't think that Mr. Bums understands the nature of the charges

and the seriousness of the situation" and "Mr. Bums, is not in my view competent
State V. Burns, No. 95528-0

to represent himself." VRP (Jan. 13, 2016) at 22. The judge further indicated she

would leave any competency concerns to counsel.

After a brief recess off the record, Bums was removed from the courtroom

because of his dismptive behavior in reaction to the denial of the motion. The

parties then discussed a written order, and the judge indicated she could not find

that Bums knew enough about the charges against him to make a knowing waiver

of his right to counsel. The court then filed a written order, which stated that the

court was concerned Bums did not appreciate the nature of the charges against him

and that the court was unable to find he could knowingly and voluntarily waive his

right to counsel.

The trial court held another motion hearing on the issue of representation on

May 3, 2016. The court again denied the motion, again based on Bums not

knowingly and intelligently waiving his right to counsel as he did not understand

the nature ofthe charges against him.

With counsel. Burns proceeded to trial on June 13, 2016. At trial, the State

called two witnesses who repeated out-of-court statements Jackson (the victim)

had made the night of the assault: Jackson's neighbor Carol Donovan and

Bellingham Police Officer Kent Poortinga.
State V. Burns^ No. 95528-0

During direct examination, Donovan testified that on November 14, 2015,

she was at home about to eat dinner when she heard "yelling and crashing around

downstairs." VRP (June 14, 2016) at 253. She then heard yelling outside and

people coming up the stairs, so she opened her door and saw Jackson running away

from Burns, who was reaching out and trying to grab her. Over defense's hearsay

objection, the court allowed Donovan to testify that Jackson said,'"[Hje's trying to

kill me,'" admitting the statement as an excited utterance and present sense

impression. VRP (June 14, 2016) at 254. Donovan then testified she grabbed

Jackson by the arm and pulled her into the condominium, closed and locked the

door, and called the police. Jackson was "extremely upset," looked like she had

been crying, and was having trouble breathing. VRP (June 14, 2016) at 254.

Jackson told Donovan,"'[H]e choked me,"' and Donovan observed red marks on

Jackson's neck. VRP (June 14, 2016) at 254-55. Donovan inquired if Jackson was

okay, and she said she was calming down and felt safe there.

Over another hearsay objection, the court allowed limited testimony as to

what Jackson told Donovan had happened with Bums. Donovan testified they had

had a fight and Bums "choked her, she blacked out, she came to, she kicked him

and she ran out of there and that's when I saw her on the stairway." VRP (June 14,

2016) at 260.
State V. Burns, No. 95528-0

The State next called Officer Poortinga, who was a responding officer the

night of the incident. He testified that when he made contact with Jackson at

Donovan's condominium, Jackson was "obviously distraught,. . . crying and very

disturbed." VRP (June 14, 2016) at 280. Jackson told Officer Poortinga that her

"head, neck and chest were very sore." VRP (June 14, 2016)at 281. During direct

examination, the prosecutor elicited minimal other testimony regarding Jackson's

statements to police. Defense made no objections to the State eliciting Jackson's

statements to Officer Poortinga.

On cross-examination, defense counsel asked,"[D]id Ms. Jackson tell you

that she had been choked to unconsciousness three separate times that night?" VRP

(June 14, 2016) at 296. Officer Poortinga responded,"I believe so." VRP (June 14,

2016) at 296. On redirect, the State's first question was "Counsel asked about the

statement that Ms. Jackson made. Let's give the jury a full understanding of those

statements. What did she tell you what [sic] happened?" VRP (June 14, 2016) at

298. Officer Poortinga testified Jackson told him that she and Bums had dated and

lived together and that he had been staying with her for the last two weeks. Jackson

told the officer she was trying to get Bums to leave and he refused, and then Bums

got "agitated" and "'snapped.'" VRP (June 14, 2016) at 299, 300. Officer

Poortinga testified she told him.
State V. Burns, No. 95528-0

He then got on top of her and with one knee on her chest began to
cover her nose with one hand gripping her neck with the other hand.
Then [Ms. Jackson] said that she couldn't breath[e] and she said
"at all" as it felt like he was, again quoting, "pushing with all his body
weight on her neck". She said that she tried to squeak out and plead
with him.

VRP (June 14, 2016) at 300."She was pleading with Michael before she again

quote 'blacked out'." VRP (June 14, 2016) at 300. The officer then testified that

Jackson told him that when she regained consciousness. Bums attacked her again,

and she blacked out again; this also happened a third time. She told the officer,

"Michael had said he was already going to prison so he was going to make it quote

'worth it and kill [me]."' VRP (June 14, 2016) at 301. She then kicked Bums off

and ran away, and she went into Donovan's condominium. Defense counsel did

not object to any of this testimony.

Toward the close of the first day of trial, the prosecutor indicated that he was

not sure Jackson was going to respond to her subpoena and testify at the trial the

following day. The next morning, the parties discussed Jackson's absence from the

trial. The prosecutor expressed the State's efforts to communicate with Jackson

and sought to put on witnesses to explain the absence to the jury. Defense counsel

indicated she objected only to any speculation as to Jackson's reasons for not

testifying. Defense counsel also sought to impeach Jackson as a hearsay witness

10
State V. Bums, No. 95528-0

through her alleged prior inconsistent statements made at the defense investigation

interview. The court allowed the impeachment after an offer of proof. Defense

counsel did not object on confrontation clause grounds to Jackson's previous

statements that had come in through Donovan and Officer Poortinga, even after

learning she would not testify. The jury convicted Bums as charged.

Bums appealed his conviction, arguing that the trial court abused its

discretion when it denied him his right to represent himself at trial and asserting,

for the first time on appeal, that the admission of Jackson's statements at trial

violated his constitutional right to confrontation. The Court of Appeals affirmed

the conviction, holding that the trial court did not abuse its discretion in denying

Bums's request to proceed pro se and holding that Burns waived his confrontation

clause claim when he did not assert it at trial. State v. Burns, No. 75537-4-1, slip

op. at 12-13 (Wash. Ct. App. Jan. 16, 2018)(unpublished),

https://www.courts.wa.gov/opinions/pdf/755374.pdf. Bums petitioned this court

for review, which we granted as to the issues of self-representation and the

confrontation clause.^ State v. Burns, 191 Wn.2d 1004, 428 P.3d 123 (2018).

^ Bums also argued on appeal that the convictions were the same criminal conduct, but
we denied review of that issue.

11
State V. Bums, No. 95528-0

ISSUES

1. Whether the trial court abused its discretion in denying Bums's

requests to proceed pro sc.

2. Whether a party who did not object at trial may raise an alleged

violation of the confrontation clause for the first time on appeal.

ANALYSIS

1. Self-representation

"Criminal defendants have an explicit right to self-representation under the

Washington Constitution and an implicit right under the Sixth Amendment to the

United States Constitution." State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714

(2010)(citing Wash. Const, art. I, § 22("the accused shall have the right to

appear and defend in person"); Faretta v. California, 422 U.S. 806, 819, 95 S. Ct.

2525, 45 L. Ed. 2d 562(1975))."The unjustified denial ofthis [fundamental] right

requires reversal." State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997).

We review the denial of a defendant's request to proceed pro se for abuse of

discretion. A trial court abuses its discretion if the decision is manifestly

unreasonable such that no reasonable mind could come to that decision, if the

decision is not supported by the facts, or if the judge applied an incorrect legal

standard. Madsen, 168 Wn.2d at 504. Absent an abuse of discretion, we will not

12
State V. Burns, No. 95528-0

reverse a trial court's decision,"even if we may have reached a different

conclusion on de novo review." State v. Curry, 191 Wn.2d 475, 486, 423 P.3d 179

(2018).

We give great deference to the trial court's discretion because the trial court

is in a favorable position to the appellate courts in evaluating a request to proceed

pro se. Trial judges have more experience with evaluating requests to proceed pro

se and have the benefit of observing the behavior, intonation, and characteristics of

the defendant during a request. Curry, 191 Wn.2d at 485.

A tension exists between the constitutional right to self-representation and

the constitutional right to proceed with adequate counsel. State v. DeWeese, 117

Wn.2d 369, 376, 816 P.2d 1 (1991). Both the United States Supreme Court and this

court have directed courts to indulge in '"every reasonable presumption'' against a

defendant's waiver of his or her right to counsel." In re Det. ofTuray, 139 Wn.2d

379, 396, 986 P.2d 790(1999)(emphasis added)(quoting .Sreiver v. Williams, 430

U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424(1977)). Therefore, in reviewing

the denial of a defendant's request to proceed pro se, the presumption is against the

waiver of counsel. However, even with this presumption, a trial court may deny a

request to proceed pro se only if the request is "equivocal, untimely, involuntary.

13
State V. Burns, No. 95528-0

or made without a general understanding ofthe consequences.'''' Madsen, 168

Wn.2d at 505 (emphasis added).

In evaluating a defendant's request to go pro se, the trial court is faced with

a multistep process. The first step is a combined determination of whether the

request is unequivocal and timely. The parties in this case do not dispute that Bums

made multiple unequivocal and timely requests to proceed pro se. Burns made

several requests, and the trial court held two separate hearings on whether to allow

Bums to waive his right to counsel.

Where a request is unequivocal and timely, a trial court must then determine

if the request is knowing, voluntary, and intelligent. Madsen, 168 Wn.2d at 504

(citing Faretta, 422 U.S. at 835). The method for determining whether a defendant

understands the risks of self-representation is a colloquy on the record. The

colloquy should generally include a discussion of the nature of the charges against

the defendant, the maximum penalty, and the fact that the defendant will be subject

to the technical and procedural rules ofthe court in the presentation of his case.

City ofBellevue v. Acrey, 103 Wn.2d 203, 211, 691 P.2d 957(1984). In order to

give direction to trial courts and create an adequate record for an appeal, our cases

have suggested several additional, nonexhaustive factors to consider in the

colloquy including education, experience with the justice system, mental health,

14
State V. Burns, No. 95528-0

and competency. See Madsen, 168 Wn.2d at 505; Acrey, 103 Wn.2d at 211-12. The

trial court may also look to the defendant's behavior, intonation, and willingness to

cooperate with the court. See Curry, 191 Wn.2d at 484-85. While the suggested

factors are not exhaustive or sufficient individually, the trial court must evaluate all

of the information in front of it and use its discretion to determine whether the

waiver is knowing, voluntary, and intelligent, and to ensure a waiver is made with

an understanding of the consequences and the seriousness of the charges, keeping

in mind the presumption against the waiver of the right to counsel. So long as a

trial court conducted an adequate inquiry into a defendant's request and there is a

factual basis for the court's finding that the waiver of counsel was not knowing,

intelligent, and voluntary, the trial court's discretionary decision will not be

disturbed on appeal.

Where no colloquy occurs, we have found the record insufficient to review

the basis for the trial court's ruling. For example, in Madsen, we reversed the trial

court's denial ofthe defendant's multiple requests to proceed pro se. 168 Wn.2d at

510. As to one request, we reasoned because the court did not engage in a full

colloquy and "there is no evidence to the contrary, the only permissible conclusion

is that Madsen's request was voluntary, knowing, and intelligent." Madsen, 168

Wn.2d at 506. Then Justice Fairhurst reiterated the reasoning in DeWeese, that foi

ls
State V. Bums, No. 95528-0

a waiver to be knowing, intelligent, and voluntary, a defendant must be aware of

and understand the nature ofthe charges against him, which the record did not

reflect. Madsen, 168 Wn.2d at 511-12 (Fairhurst, J., concurring).

The present case presents the converse of Madsen because the trial court

engaged in a comprehensive colloquy, inquiring into the factors our cases have

established. While it may be true that Bums indicated,"I understand completely

what you're talking about" and "I completely understand everything that I'm up

against," his other remarks indicate the exact opposite. VRP (Jan. 13, 2016) at 7,

13. At the hearing. Burns indicated the criminal charges did not pertain to him, he

did not enter into a contract with the State, the multiple felonies he faced did not

faze him, conducting a trial is just about acting, the United States is a corporation

of which he is not a citizen, he had only two cases that had been "globalized into

one matter," and he rejected any contract that created the case against him. The

record establishes that the trial court judge expressed concerns about whether

Bums could knowingly and intelligently waive his right to counsel based on

Bums's statements and behavior at the hearing. The colloquy in this case was

extensive and comprehensive and supports the conclusion that Burns did not

understand the nature or seriousness of the charges against him.

16
State V. Burns, No. 95528-0

In concluding that Burns was not denied his constitutional right to represent

himself, the Court of Appeals analyzed the "extensive colloquy" between Bums

and the trial court. Burns, slip op. at 9. The Court of Appeals noted that the record

showed that Bums did not understand the charges against him and that he was

facing significant prison time; he also did not understand the importance of

courtroom procedure and the "technicalities" of self-representation. Burns, slip op.

at 10. Further,"Burns's interactions with the trial court revealed a lack of

understanding of the gravity of his situation." Burns, slip op. at 10.

Bums argues that "the court denied [his] request to represent himself based

solely upon his competency." Suppl. Br. of Pet'r at 17. While the trial court judge

did once say she did not find Burns "competent" to represent himself, this is

somewhat a mischaracterization ofthe record and disregards the entirety of the

record, the judge's formal oral ruling, the discussion of the proposed order, the text

of the proposed order, and the mling in the subsequent motion hearing. All ofthis

supports the trial court's ruling that the request was denied because Bums did hot

understand the nature of the charges against him and, thus, could not knowingly,

intelligently, and voluntarily waive his right to counsel.

17
State V. Bums, No. 95528-0

Relying on In re Personal Restraint ofRhome, 172 Wn.2d 654, 260 P.3d

874(2011), and Madsen, Bums further argues that a trial court's concem over a

defendant's competency to stand trial is only one factor in considering whether a

waiver is knowing, voluntary, and intelligent. Suppl. Br. of Pet'r at 17. While this

may be true. Burns appears to conflate a question of competency with an outright

denial of his request because of competency.

In Godinez v. Moran, the United States Supreme Court held that competency

to stand trial is not all that is necessary to be able to waive the right to counsel; "a

trial court must [also] satisfy itself that the waiver of his constitutional rights is

knowing and voluntary."" 509 U.S. 389, 400, 113 S. Ct. 2680, 125 L. Ed. 2d 321

(1993)(emphasis added)(citing Faretta, 422 U.S. at 835). "In this sense there is a

'heightened' standard ... for waiving the right to counsel, but it is not a heightened

standard of competence."''' Godinez, 509 U.S. at 400-01. That same reasoning

applies here.

Even without the benefit of seeing Burns's demeanor and hearing his

intonation as the judge did, we agree his statements are not consistent with a

defendant who understands the nature and seriousness of the charges against him.

We hold that the trial court did not abuse its discretion when it denied

Bums's request to represent himself because the trial court record is sufficient to

18
State V. Burns, No. 95528-0

support the conclusion that Bums did not understand the nature and seriousness of

the charges against him and could not loiowingly, voluntarily, and intelligently

waive his right to counsel. We affirm the Court of Appeals on this issue.

2. Confrontation Clause

Raised for the first time on appeal, Burns argues that the admission of

Jackson's out-of-court statements to the neighbor and the officer violated his right

to confrontation as she herself did not testify at trial. The Court of Appeals held

that because no objection was made at trial, the issue was waived. Bums argues

that we should apply RAP 2.5(a)(3) and find violation of the confrontation clause

is a "manifest error affecting a constitutional right" such that he can raise this

claim for the first time on appeal. Suppl. Br. of Pet'r at 7. We reject this argument,

agree with the Court of Appeals, and hold that Bums waived any challenge to the

testimony by not objecting at trial.^

The Sixth Amendment affords the accused the right "to be confronted with

the witnesses against him." U.S. Const, amend. VI. This right is also established

by article I, section 22 ofthe Washington State Constitution.

^ Puzzlingly, the concurrence comes to this same conclusion under a convoluted test that
conflates ineffective assistance of counsel and RAP 2.5(a)(3); because counsel did not object at
trial and there was a plausible tactical reason to not object, Burns is not entitled to relief.

19 ■
State'v. Burns, No. 95528-0

Under RAP 2.5(a)(3), a defendant may raise for the first time on appeal a

"manifest error affecting a constitutional right." In State v. Kronich, 160 Wn.2d

893, 161 P.3d 982(2007), we reviewed an alleged confrontation clause violation,

applying RAP 2.5(a)(3) where no objection was made at trial. In Kronich, the

defendant alleged, for the first time on appeal, that the admission of his certified

statement of his driving record violated his right to confrontation. We held that a

violation of the confrontation clause could be raised for the first time on appeal

subject to a RAP 2.5(a)(3) manifest constitutional error analysis. Given that the

alleged error was a violation of the confrontation clause and the State's case was

"fatally undermined" without the driving record, we held this was a manifest

constitutional error and reached the merits of the confrontation clause violation,

although we ultimately found no violation and affirmed the conviction. Kronich,

160 Wn.2dat900.

In light of the United States Supreme Court cases of Crawford v.

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

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314

(2009), among others, we have reevaluated our cases to align with the minimum

requirements of the Sixth Amendment established by the Supreme Court. In

Melendez-Diaz, the United States Supreme Court examined the confrontation

20
State V. Burns, No. 95528-0

clause in conjunction with notice-and-demand statutes and state laboratory analyst

affidavits, holding the admission ofthe affidavits violated the confrontation clause.

In that opinion, the Supreme Court also held that "[t]he defendant always has the

burden of raising his Confrontation Clause objection." Melendez-Diaz, 557 U.S. at

327. The Supreme Court further emphasized,"The right to confrontation may, of

course, be waived, including byfailure to object to the offending evidence.'"

Melendez-Diaz, 557 U.S. at 314 n.3 (emphasis added).

In Jasper, we overruled Kronich in light of the United States Supreme Court

holding m Melendez-Diaz. See State v. Jasper, 174 Wn.2d 96, 100, 271 P.3d 876

:(2012)("[W]e now overrule [Kronich] to the extent [it is] contrary to United States

Supreme Court precedent."). The State here argues that Melendez-Diaz and Jasper

have undermined the approach taken in Kronich and where a defendant does not

object to testimony at trial on confrontation grounds, he or she waives his or her

right to confrontation. Aligning our analysis in this context with that employed by

the United States Supreme Court furthers consistency between cases. Therefore,

we abrogate Kronich to the extent its analysis is inconsistent with the waiver

approach set forth in this opinion.

21
State V. Burns, No. 95528-0

In our Courts of Appeals, the divisions have employed two different

approaches in reviewing unpreserved confrontation clause claimed errors: waiver

by failure to object and manifest constitutional eiTor under RAP 2.5(a)(3) analysis.

Division One in this case, relying on its analysis and reasoning from State v.

O'Cain, 169 Wn. App. 228, 279 P.3d 926 (2012), concluded that where the

defendant does not object on confrontation grounds, any claimed error is waived.

In O'Cain, the Court of Appeals engaged in a comprehensive analysis of when a

confrontation clause claim can be reviewed on appeal in light of Melendez-Diaz,

referring to the many instances in which the United States Supreme Court in that

case emphasized the burden of the defense to object to evidence in violation of the

confrontation clause. The O'Cain opinion highlighted two principles that are

recognized and significant in Melendez-Diaz:(1) a defendant loses the right to

confrontation if he or she does not object at trial and (2) states have the power to

create their own rules that govern how a defendant may assert a confrontation

clause violation.'^ See O'Cain, 169 Wn. App. at 236-40.

The concurrence disputes this reading of Melendez-Diaz and asserts that the only
proposition is that states may create their own procedural rules that govern confrontation clause
claims. ConcuiTcnce at 4. Even if this were a correct reading of Melendez-Diaz, that would mean
that we are free to interpret our rules to require a defendant to object on confrontation clause
grounds at trial or waive that right on appeal, as we do in this opinion.

22
State V. Burns, No. 95528-0

In O'Cain, the court identified the applicable procedural rule in Washington

to be ER 103. Under BR 103(a)(1),"[e]rror may not be predicated upon a ruling

which admits or excludes evidence unless .. . a timely objection or motion to strike

is made, stating the specific ground of objection." Applying ER 103 and requiring

a defendant to object at trial "protects the integrity ofjudicial proceedings by

denying a defendant the opportunity to sit on his rights, bet on the verdict, and

then, if the verdict is adverse, gain a retrial by asserting his rights for the first time

on appeal." O'Cain, 169 Wn. App. at 243. Requiring an objection under ER 103 is

also consistent with the discovery and disclosure process of criminal procedure.

The O'Cain court further reasoned that allowing a defendant to assert a

confrontation claim for the first time on appeal is problematic because it would

place the trial judge in a compromising position. The judge would be faced with

the decision to sua sponte identify and rule on a confrontation clause violation,

which may disrupt trial or defense tactics, or risk presiding over a trial that could

be reversed on appeal. Whether defense counsel will object on confrontation

grounds can unquestionably be a trial tactic. When the defense has the choice to

object or not, where no objection or motion to strike is made, appellate courts are

left speculating as to whether it was a trial tactic or an error by the defense.

Requiring an objection also has a practicable aspect; the trial court judge will rule

23
State V. Burns, No. 95528-0

on the objection, giving the appellate courts an actual trial court decision to review.

See O'Cain, 169 Wn. App. at 243-44.

Divisions Two and Three^ seem to apply RAP 2.5(a)(3), analyzing whether

the alleged error amounts to a manifest error affecting a constitutional right. See,

e.g.. State v. Hart, 195 Wn. App. 449,458 n.3, 381 P.3d 142(2016)

(acknowledging that although the O'Cain analysis ofMelendez-Diaz and

Bullcoming^ requiring a defendant to assert the right at trial is "sound," it will

follow the RAP 2.5(a)(3) analysis from Hieb^ until and unless this court overrules

it). Under this analysis, we first determine if an alleged error is constitutional in

nature and, then, whether the alleged error had '"practical and identifiable

consequences in the trial.'" Kronich, 160 Wn.2d at 899 (quoting State v.

Kirkpatrick, 160 Wn.2d 873, 880, 161 P.3d 990(2007), overruled in part by

^ While recent cases from Division Three apply a RAP 2.5(a)(3) analysis on whether one
can bring a confrontation clause claim for the first time of appeal, in a recent unpublished
decision on this issue, Division Three adopted the O'Cain analysis of waiver in State v. Kuneki,
No. 34174-7-III, slip op. at 14(Wash. Ct. App. Feb. 13, 2018)(unpublished),
https://www.courts.wa.gov/opinions/pdfr341747_unp.pdf. Division Three also previously held
that failure to object constitutes waiver. See State v. Schroeder, 164 Wn. App. 164, 168, 262 P.3d
1237(2011)(failure to object to admission of crime laboratory certificate constitutes waiver of
right to confrontation).

^ Bullcoming v. New Mexico,564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610(2011).

^ State V. Hieb, 107 Wn.2d 97, 104-12, 727 P.2d 239(1986)(engaging in a harmless error
analysis of a confrontation clause violation that the Court of Appeals allowed under RAP 2.5, but
not engaging in a RAP 2.5 analysis).

24
State V. Burns, No. 95528-0

Jasper, 174 Wn.2d 96,(quoting State v. Stein, 144 Wn.2d 236, 240,27 P.3d 184

(2001))).

In the present case, the Court of Appeals followed the O'Cain analysis and

held that a defendant must assert his right to confrontation at trial or the right is

waived. We agree with the O'Cain analysis of Melendez-Diaz. Thus, we affirm the

Court of Appeals and explicitly adopt a requirement that a defendant raise an

objection at trial or waive the right of confrontation. Requiring an objection brings

this claim to align with what we employ in other cases where we have held that

some constitutional rights may be waived by a failure to object.^ See, e.g.. State v.

Slert, 186 Wn.2d 869, 383 P.3d 466(2016)(Sixth Amendment right to be present

during in chambers discussion of potential jury bias waived when defendant did

not object at trial); In re Adoption ofM.S.M.-P., 184 Wn.2d 496, 358 P.3d 1163

(2015)(counsel's affirmative consent to closure of proceedings waived parent's

right to open proceedings); see also State v. Sublett, 176 Wn.2d 58, 124-25, 292

P.3d 715 (2012)(Madsen, C.J., concurring)(discussing constitutional rights the

United States Supreme Court has listed can be waived by failure to object.

^ The concurrence claims that a waiver analysis is "confusing" because it is "varied and
unpredictable." Concurrence at 11. However, our analysis states that without an objection there
is no ruling to review on appeal, and so we do not review it. It does not get more straightforward
and consistent. Further, if the concept of waiver were so confusing, varied, and unpredictable, we
would not use it for any constitutional rights. As discussed in text, this is certainly not the case.

25
State V. Burns, No. 95528-0

including the right to be present, Fourth Amendment right against unlawful search

and seizure, unlawful postarrest delay, double jeopardy defense. Fifth Amendment

claims, and the right ofconfrontation). Further, requiring an objection is in the

interests ofjudicial efficiency and clarity, and provides a basis for appellate courts

to review a trial judge's decision. Where a defendant does not object at trial,

"nothing the trial court does or fails to do is a denial of the right, and if there is no

denial of a right, there is no error by the trial court, manifest or otherwise, that an

appellate court can review." State v. Eraser, 170 Wn. App. 13, 25-26, 282 P.3d

152(2012).

CONCLUSION

We affirm the Court of Appeals. The trial court did not abuse its discretion

in denying Burns's request to proceed pro se. Further, Burns waived his right to

26
State V. Burns, No. 95528-0

raise a confrontation clause violation on appeal when he did not object on that

ground at trial.

WE CONCUR:

(at.
t

27
State V. Burns (Michael /.)
(Stephens, J., concurring)

No. 95528-0

STEPHENS,J,(concurring)—agree with the majority's holding on the right

to self-representation and I concur fully in its analysis of that claim. While I also

agree that Michael Bums's unpreserved confrontation clause claim is not reviewable

on its merits, I strongly disagree with the majority's decision to adopt the analysis

from State v. O'Cain, 169 Wn. App. 228, 279 P.3d 926 (2012), in rejecting that

claim.

O'Cain articulated the novel theory, not advanced in any ofthe briefing before

that court, that 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), overrides

our standard for reviewing unpreserved constitutional claims under RAP 2.5(a)(3)

with respect to confrontation clause claims. O'Cain, 169 Wn. App. at 235-48.^ As

^ See Br. ofResp't at 11,State v. O'Cain,No.65735-6-1(Wash. Ct. App.),reprinted
in 2 Briefs 169 Wn.App.(2011)(conceding that a confrontation clause claim may be raised
State V. Burns (Michael L), 95528-0 (Stephens, J., concurring)

explained below, this theory misunderstands Melendez-Diaz and violates core

principles offederalism. Instead ofrejecting O'Cain's flawed analysis, the majority

embraces it and carves out a confrontation clause exception to RAP 2.5(a)(3) based

on a confusing notion of "waiver" that is contrary to the rule's very purpose. It

claims this approach furthers judicial efficiency and finality, but our established

RAP 2.5(a)(3) analysis already addresses these prudential concerns by limiting

review of new claims on appeal to manifest error affecting a constitutional right. I

would adhere to that sound analysis.

I. O'Cain's Analysis, Which the Majority Affirms, Fundamentally
Misunderstands the United States Supreme Court's Decision in
Melendez-Diaz and Violates Core Principles ofFederalism

The Court of Appeals in O'Cain refused to apply RAP 2.5(a)(3) because it

wrongly believed Melendez-Diaz eclipsed our state scope of review rule. The

question presented in Melendez-Diaz was whether forensic analyst affidavits(in that

case, certifying the results of a lab test indicating the presence of cocaine) were

'"testimonial"' for purposes of the Sixth Amendment right of confrontation,

triggering the defendant's right to cross-examine the affiant. 557 U.S. at 307; U.S.

Const, amend. VI. A majority concluded the answer was yes, id. at 329, and also

for the first time on appeal if the requirements of RAP 2.5(a)(3) are met). The State cited
Melendez-Diaz only once in its briefing in O'Cain and then solely for the point that
statements to medical treatment providers are nontestimonial. Id. at 12.

-2-
State V. Burns (Michael!.), 95528-0 (Stephens, J., concurring)

responded to a lengthy dissent that argued the criminal justice system would grind

to a halt under the weight of so much confrontation, id. at 341 (Kennedy, J.,

dissenting). The dissent predicted a cumbersome and expensive new reality where

expert witnesses would need to present in-court testimony about undisputed facts:

As matters stood before today's opinion, analysts already spent
considerable time appearing as witnesses in those few cases where the
defendant, unlike petitioner... contested the analyst's result and subpoenaed
the analyst By requiring analysts also to appear in the far greater number
of cases where defendants do not dispute the analyst's result, the Court
imposes enormous costs on the administration ofjustice.

Id. Addressing this practical concern, the Melendez-Diaz majority explained that its

holding was not likely to clog trial court proceedings with undisputed expert

testimony. It noted that states often, for scheduling purposes, require defendants to

raise confrontation clause objections to expert affidavits well before trial and that,

in any event, defendants often deliberately "waive" such objections for strategic

reasons (e.g., to avoid highlighting damaging facts). Id. at 327-28.

This portion of Melendez-Diaz did not announce any new holding. It simply

recognized that states may,consistent with what today's majority properly calls "the

minimum requirements ofthe Sixth Amendment," majority at 20(emphasis added),

adopt procedural notice-and-demand rules requiring defendants to preserve

confrontation clause error. See Melendez-Diaz, 557 U.S. at 327("States are free to

adopt procedural rules governing objections."). That uncontroversial principle was

-3-
State V. Burns (Michael I.), 95528-0 (Stephens, J., concurring)

not disputed in Melendez-Diaz, was not disputed in O'Cain, and is not disputed here.

See majority at 23-24("Applying ER 103 and requiring a defendant to object at trial

... is .,. consistent with the discovery and disclosure process ofcriminal procedure

...[and] giv[es] the appellate courts an actual trial court decision to review.").

The Court of Appeals' mistake in O'Cain—embraced by the majority today—

was to take these undisputed background principles and misconstrue them as a

federal constitutional restriction on the scope of state appellate review:

The interpretation ofthe Sixth Amendment is an interpretation offederal law.
In Melendez-Diaz ... the United States Supreme Court made clear that the
confrontation right is lost if it is not timely asserted at or before trial.... [A]
state appellate rule may not be utilized so as to undermine—even partially—
a United States Supreme Court holding as to the scope or extent of a federal
constitutional right.

169 Wn.App. at 247-48.

This analysis reflects two fundamental errors.

First, it reads into Melendez-Diaz a holding that the Sixth Amendment right

of confrontation is forever "lost" if it is not asserted "at or before trial." O'Cain,

169 Wn. App. at 248. But Melendez-Diaz says only that states may adopt procedural

rules regulating the preservation of confrontation clause error. 557 U.S. at 327. It

does not hold that, unless such procedural rules are strictly observed, the Sixth

Amendment right of confrontation somehow evaporates or fails to attach at all.

Indeed, if that were the case, then unpreserved confrontation clause claims would

-4-
State V. Burns (Michael L), 95528-0(Stephens, J., concurring)

never be reviewable in federal appellate courts post-Melendez-Diaz. But, ofcourse,

they are. E.g., United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013)

(unpreserved confrontation clause claim reviewed on appeal for plain error); United

States V. Martinez,588 F.3d 301,313(6th Cir. 2009)(same); United States v. Matus-

Zayas, 655 F.3d 1092, 1101-03 (9th Cir. 2011)(trial court committed "plain error"

in violation of confrontation clause protections, even absent objection by defendant,

when it admitted depositions by witnesses government had not shown to be

"unavailable" for live testimony); see also United States v. Roach, 896 F.3d 1185,

1194 (10th Cir. 2018), cert, denied, 139 S. Ct. 845 (2019) (appellant waived

confrontation clause arguments on appeal because alleged error was unpreserved

and appellant failed to argue plain error).^ Such claims remain subject to Federal

Rule of Criminal Procedure (FRCrP) 52(b), which, similar to RAP 2.5(a)(3),

^ The majority makes no attempt at all to reconcile O'Cain's reading of Melendez-
Diaz—according to which the Sixth Amendment prohibits appellate review ofunpreserved
confrontation clause claims—^with these cases. Instead, it shrugs off the discrepancy and
concludes that, even if O'Cain got this wrong,this means only that"we are free to interpret
our rules to require a defendant to object... at trial or waive [the confrontation] right on
appeal, as we do in this opinion." Majority at 22 n.4. But the majority is not merely
interpreting our rules, it is crafting a brand new,confrontation-clause-specific rule in direct
contradiction to RAP 2.5(a)(3)'s plain language. A judicial opinion should not be used to
bypass normal rule making procedure, as that deprives us of the benefit of valuable
perspectives. In re Pers. Restraint of Carlstad, 150 Wn.2d 583, 592 n.4, 80 P.3d 587
(2003)(even ifnonexistent rule is desirable,"the rule should be adopted through the normal
rule-making process[, which]... enables all interested and affected parties to participate").

-5-
State V. Burns (Michael!.), 95528-0(Stephens, J., concurring)

facilitates relief for certain unpreserved yet obvious errors. Nothing in Melendez-

Diaz calls into question these procedural rules allowing for limited appellate review

of unpreserved errors.^

O'Cain's second error, closely related to the first, is its conclusion that

because states may require defendants to preserve confrontation clause error by

making contemporaneous objections at trial, they therefore must enforce that

procedural requirement on appeal without exception for manifest error. 169 Wn.

App. at 248 ("a state appellate rule may not be utilized so as to undermine ... a

United States Supreme Court holding as to the scope or extent of a federal

constitutional right"). This conclusion violates basic tenets of federalism and sells

short the power of states to govern their own court proceedings. Contrary to

O'Cain's reasoning, states may always afford more protections for criminal

defendants than the Fourteenth Amendment requires. E.g., California v. Ramos,463

3 United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508
(1993)("[FRCrP] 52(b), which govems on appeal from criminal proceedings, provides a
court of appeals a limited power to correct errors that were forfeited because not timely
raised in district court."). FRCrP 52(b) and RAP 2.5(a)(3) are not identical in the scope of
relief they afford. For example, under FRCrP 52(b) the appellate court may review only
those unpreserved errors that meet the mle's criteria (plain error affecting substantial
rights), Olano, 507 U.S. at 732-35, while under RAP 2.5(a)(3) an appellate court must
review any error that meets the mle's criteria (manifest error affecting a constitutional
right). But, distinctions aside, FRCrP 52(b) and RAP 2.5(a)(3) are similar in that they
provide a mechanism for appellate review of unpreserved error—including unpreserved
confrontation clause error.

-6-
State V. Burns (Michael I), 95528-0(Stephens, J., concurring)

U.S. 992, 1013-14, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983)("[i]t is elementaiy

that States are free to provide greater protections in their criminaljustice system than

the Federal Constitution requires"). O'Cain ignores this fundamental constitutional

principle and misreads Melendez-Diaz as holding that the Sixth Amendment

somehow prohibits Washington courts from applying RAP 2.5(a)(3) to

confrontation clause claims.

This holding is so deeply flawed that Division One walked it backjust a month

after O'Cain was published, observing that RAP 2.5(a) is "[ajrguably" the kind of

procedural rule contemplated in Melendez-Diaz, through which states may address

preservation of confrontation clause error. State v. Eraser, 170 Wn.App. 13,26-27,

282 P.3d 152(2012). In fact, this is more than arguable, it is indisputable. Nothing

in the federal constitution prohibits Washington courts from addressing "manifest"

confrontation clause error under RAP 2.5(a)(3)just like any other type of manifest

constitutional error. Division Two has recognized as much and expressly rejected

O'Cain's misguided "waiver" analysis. State v. Hart, 195 Wn. App. 449, 458 n.3,

381 P.3d 142(2016)(acknowledging "OUaz«['s]... sound reasoning for imposing

[strict preservation of confrontation clause error] requirement" but holding

Melendez-Diaz does not preclude application of RAP 2.5(a)(3) to confrontation

clause claims). As evidenced by this case, however, the O'Cain analysis has

-7-
State V. Bums(Michael!.), 95528-0 (Stephens, J., concurring)

persisted in Division One. State v. Burns, No. 75537-4-1, slip op. at 13(Wash. Ct.

App. Jan. 16, 2018) (unpublished) ("Because Bums did not raise the issue of

confrontation below, he may not now seek appellate relief on this claim." (citing

O'Cain, 169 Wn. App. at 252)), http://www.courts.wa.gov/opinions/pdfr

755374.pdf; see also, e.g.. State v. Sage, 1 Wn. App. 2d 685, 702-03,407 P.3d 359

(2017), review denied, 191 Wn.2d 1007 (2018)(unpreserved confrontation clause

objection per se unreviewable under O'Cain).

We should take this opportunity to explicitly reject O'Cain's flawed analysis.

Unfortunately, the majority champions it. Majority at 25 ("We agree with the

O'Cain analysis of Melendez-Diaz . . . and explicitly adopt a requirement that a

defendant raise an objection at trial or waive the right of confrontation."). As

discussed below, this misstep sows significant confusion and inconsistency into our

RAP 2.5(a)(3)jurispmdence.

II. By Endorsing O'Cain's Confusing Concept of"Waiver," the Majority
Carves Out a Confrontation Clause Exception to RAP 2.5(a) That
Disregards the Rule's Logic and Furthers No Legitimate Policy

Noting the ^ost-O'Cain split in the Court of Appeals, the majority misframes

the question presented here as involving a choice between "waiver by failure to

object" {O'Cain's approach) and "manifest constitutional error under RAP

2.5(a)(3)." Majority at 22-25. But,there is no choice to be made. O'Cain's ironclad

-8-
State V. Burns (Michael!.), 95528-0 (Stephens, J., concurring)

concept of"waiver" depends entirely on the misreading ofMelendez-Diaz discussed

above, when in fact RAP 2.5(a)(3) exists for the very purpose of assessing whether

an appellate court will review a claim that was unpreserved below.

In cases discussing RAP 2.5(a)(3), we have sometimes said that, by failing to

lodge a contemporaneous objection at trial, a defendant "waives" the right to raise

the alleged error on appeal. But we have never held that a defendant waives the right

to a RAP 2.5(a)(3) analysis altogether. On the contrary, we have always made clear

that a party waives an issue for appeal only because that party fails to satisfy RAP

2.5(a)(3)'s requirements. E.g., State v. Robinson, 171 Wn.2d 292, 304,253 P.3d 84

(2011)("The general rule in Washington is that a party's failure to raise an issue at

trial waives the issue on appeal unless the party can show the presence of a

'"manifest error affecting a constitutional right.'"" (quoting State v. Kirwin, 165

Wn.2d 818, 823, 203 P.3d 1044 (2009)(quoting State v. McFarland, 127 Wn.2d

322, 333, 899 P.2d 1251 (1995)))); State v. McNeal, 145 Wn.2d 352, 361-62, 37

P.3d 280(2002)("it cannot be said that the apparent inconsistency ofthe verdicts is

a manifest error affecting a constitutional right . . .[;] therefore, [the defendant]

waived his right to challenge the verdict by failing to raise the issue before the jury

-9-
State V. Burns (Michael!.), 95528-0 (Stephens, J., concurring)

was discharged"). While this use of the term "waiver" may be imprecise,'^ it is

longstanding and consistent: in the context ofRAP 2.5(a)(3), saying that a defendant

"waived" the right to appeal is simply another way of saying the defendant did not

meet the rule's prerequisites to review of unpreserved error.

The majority's novel conclusion drawn from O'Cain—^that by failing to

preserve an alleged confrontation clause error a defendant forever "waives" any

possibility of appellate review under RAP 2.5(a)(3)—cancels out the very purpose

of the rule. By design, RAP 2.5(a)(3) applies specifically and only to unpreserved

trial error. RAP 2.5(a)(governing "Errors Raised for First Time on Review"); see

also State v. Lamar, 180 Wn.2d 576,583,327 P.3d 46(2014)(RAP 2.5(a)(3)"serves

a gatekeeping function that will bar review of[most] claimed constitutional errors

to which no exception was made"); State v. WWJ Corp., 138 Wn.2d 595, 602, 980

P.2d 1257 (1999)("RAP 2.5(a)(3) is an exception to the general rule that parties

cannot raise new arguments on appeal"). It defies the logic of the rule to refuse to

apply it on the basis of nothing more than the defendant's failure to object, i.e.,

"waiver," below.

See State v. Sublett, 176 Wn.2d 58, 154 & n.49, 292 P.3d 715(2012)(Wiggins, J.,
concurring)(preferring the term "forfeiture" to describe a party's failure to timely assert a
right, and arguing that "waiver" denotes '"the "intentional relinquishment or abandonment
of a known right'"")(quoting Olano, 507 U.S. at 733-34 (quoting Johnson v. Zerbst, 304
U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)))).

-10-
State V. Burns (Michael!.), 95528-0(Stephens, J., concurring)

Perhaps recognizing that its holding is at odds with RAP 2.5(a)'s plain

language, the majority attempts to justify it with policy reasoning. However, none

ofthis reasoning withstands scrutiny.

First, the majority claims that its approach "furthers consistency between

cases." Majority at 21. I fail to see how. Before today's holding we articulated a

consistent RAP 2.5(a)(3) analysis applicable to unpreserved constitutional claims of

all kinds, including claims of confrontation clause error, e.g.. State v. Kronich, 160

Wn.2d 893, 900-01, 161 P.3d 982 (2007), overruled on other grounds by State v.

Jasper, 174 Wn.2d 96, 271 P.3d 876 (2012). The majority now introduces a

confusing new concept of "waiver" into this analysis and adopts a special,

confrontation-clause-specific exception to RAP 2.5(a)(3). This makes our scope of

review jurisprudence more varied and unpredictable, not more consistent.

Second, the majority appeals generally to the value of enforcing

contemporaneous objection requirements such as ER 103: timely objections create

a record sufficient for appellate review and relieve trial courts from the burden of

raising issues sua sponte. Majority at 23. Of course these are important concerns,

but the majority's reliance on them proves too much. ER 103 applies to all

evidentiary objections. See State v. Blake, 172 Wn. App. 515, 529, 298 P.3d 769

(2012). And timely objections are valuable in all contexts—^there is no reason to

-11-
State V. Burns (Michael!.), 95528-0 (Stephens, J., concurring)

enforce preservation of error rules more strictly where the confrontation clause is

concerned. Besides, our RAP 2.5(a)(3) analysis already addresses these policy

concerns through its "manifest error" requirement. As is evident from the analysis

of Bums's claim below, that analysis imposes significant limitations on appellate

review, assuring that parties fully appreciate the importance ofraising contemporary

objections, including those based on the confrontation clause. Thus, there is no

policy justification for carving out a confrontation clause exception to RAP

2.5(a)(3); it needlessly limits an appellate court's ability to do justice under the mle.

Finally, the majority implies that Melendez-Diaz and this court's decision in

Jasper, 174 Wn.2d 96, "undermined" our application of RAP 2.5(a)(3) to an

unpreserved confrontation clause claim in Kronich, 160 Wn.2d 893. See majority at

21. Not so. In Kronich, we held that affidavits certifying the status ofa defendant's

driving privilege were nontestimonial for purposes of confrontation clause

protections. 160 Wn.2d at 902-04. We also held that the appellant could raise his

confrontation clause claim for the first time on appeal because he had satisfied RAP

2.5(a)(3)'s requirements ("manifest error affecting a constitutional right"). Id. at

901. In Jasper, we recognized that Melendez-Diaz had abrogated Kronich's holding

on the testimonial nature of affidavit certifications, but we did not question its

holding on RAP 2.5(a)(3). 174 Wn.2d at 111-16. There is no discussion in either

-12-
State V. Burns (Michael!.), 95528-0(Stephens, J., concurring)

Melendez-Diaz or Jasper about RAP 2.5(a)(3) specifically, or appellate review of

unpreserved error generally, because in each ofthose cases the appellants preserved

their claims through objections at trial. Melendez-Diaz,557 U.S. at 309; Jasper, 174

Wn.2datl08 n.2.

In sum, the majority's new concept of "waiver"—^which creates a unique

confrontation clause exception to our standard RAP 2.5(a)(3) analysis—introduces

significant confusion into our scope ofreview jurisprudence. None ofthe majority's

policy arguments justify this outcome. In determining whether to review Bums's

unpreserved confrontation clause claim, we should adhere to our long-standing RAP

2.5(a)(3) analysis.

III. Bums Does Not Demonstrate the Manifest Error Required for Review
of His Confrontation Clause Claim under RAP 2.5(a)(3)

RAP 2.5(a)(3) provides that "a party may raise ... for the first time in the

appellate court... manifest error affecting a constitutional right." Therefore, before

we will reach the merits of any unpreserved claim under that mle, we must be

satisfied both that the claim is "tmly of a constitutional magnitude" and that the

alleged trial court error is "manifest" in the record. State v. Kalebaugh, 183 Wn.2d

578, 583,355 P.3d 253(2015)(citing State v. O'Hara, 167 Wn.2d 91, 98,217 P.3d

756 (2009)). The purpose of this mle is to encourage timely objections while also

-13-
State V. Burns (Michael L), 95528-0(Stephens, J., coneurring)

providing a remedy for unpreserved, yet obvious errors that "result in serious

injustice to an accused." Id. at 583.

Under our long-standing precedent, an error is not "manifest," for purposes of

RAP 2.5(a)(3), unless there is '"a plausible showing by the [appellant] that the

asserted error had practical and identifiable consequences in the trial of the case.'"

WWJCorp., 138 Wn.2d at 603 (quoting State v. Lynn, 67 Wn. App. 339, 345, 835

P.2d 251 (1992)). Kronich acknowledged this standard, and,as noted above,nothing

in Jasper or Melendez-Diaz undermines Kronich's application of RAP 2.5(a)(3) to

unpreserved confrontation clause error. However, one aspect of Kronich''^ RAP

2.5(a)(3) analysis—specifically, its definition of the "manifest error" necessary to

trigger review—^has been undermined by subsequent cases applying that rule in other

contexts. The court in Kronich concluded that the unpreserved error was "manifest"

because,"had [the appellant] successfully raised his confrontation clause challenge

at trial, the [evidence at issue] would have been excluded." 160 Wn.2d at 900

(emphasis added). In other words, the Kronich court concluded that ifindeed the

confrontation clause claim had merit, then the unpreserved error was "manifest"

under RAP 2.5(a)(3). But this analysis is inconsistent with our more recent cases on

"manifest error."

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State V. Burns (Michael!.), 95528-0 (Stephens, J., concurring)

In recent cases we have explained that, '"to determine whether an error is

practical and identifiable, [i.e., manifest,] the appellate court must place itself in the

shoes of the trial court to ascertain whether, given what the trial court knew at that

time, the court could have corrected the error.'" Kalebaugh, 183 Wn.2d at 584

(quoting O'Hara, 167 Wn.2d at 100). And we have said that "[i]t is not the role of

an appellate court on direct appeal to address claims where the trial court could not

have foreseen the potential error or where the prosecutor or trial counsel could have

been justified in their actions or failure to object." O'Hara, 167 Wn.2d at 100.

Therefore, to demonstrate that an unpreserved error is "manifest" for purposes of

RAP 2.5(a)(3), the appellant must show that the trial court could have prevented the

error, notwithstanding counsel's failure to object. See Kalebaugh, 183 Wn.2d at 584

(unobjected jury instruction on "reasonable doubt" standard was "manifest error"

because trial court should have known it misstated the law). At a minimum, this

standard ensures that there is an adequate record for determining the merits of the

unpreserved claim on appeal. See O'Hara, 167 Wn.2d at 99-100 ("manifest error"

inquiry must focus on "whether the error is so obvious on the record that the error

warrants appellate review"); State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125

(2007)("Ifthe trial record is insufficient to determine the merits ofthe constitutional

claim, the error is not manifest and review is not warranted.").

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State V. Burns (Michael I.), 95528-0 (Stephens, J., concurring)

Bums makes no attempt to meet this standard. Instead, he relies solely on

Kronich to conclude that an unpreserved confrontation clause error is always

"manifest" under RAP 2.5(a)(3). Suppl. Br. of Pet'r at 10 (omitting any discussion

ofthe trial record relevant to his confrontation clause claim and arguing instead only

that''Kronich demonstrates ... the issue raised by Mr.Bums was constitutional and

manifest"). However, unpreserved confrontation clause claims are not per se

"manifest" under RAP 2.5(a)(3). Here, for example, the State argues that trial

counsel had tactical reasons to forgo a confrontation clause objection to Officer Kent

Poortinga's hearsay testimony. Indeed, counsel elicited some of that testimony on

cross-examination. A tactical failure to object is not a "manifest error" under RAP

2.5(a)(3), Kirkman, 159 Wn.2d at 937, and yet Bums makes no attempt to answer

the State's argument. Instead, he asserts without analysis that, "had an objection

been lodged, the trial court could have excluded the statements, thus avoiding the

constitutional error." Pet. for Review at 14-15 (emphasis added). But that

misapprehends our RAP 2.5(a)(3) manifest error analysis. An objection was not

lodged, and thus, under a proper analysis, we ask whether the trial court could have

corrected the error sua sponte, given what it knew at the time. Kalebaugh, 183

Wn.2d at 584(quoting O'Hara, 167 Wn.2d at 100).

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State V. Bums(Michael L), 95528-0 (Stephens, J., concurring)

Under the RAP 2.5(a)(3) analysis that has evolved ^ost-Kronich, Bums does

not demonstrate the "manifest error" required for review. On this basis, I concur in

the majority's decision not to address the merits of Bums's unpreserved

confrontation clause claim.

CONCLUSION

Applying RAP 2.5(a)(3), I would hold that Bums has not demonstrated

grounds to reach the merits of his unpreserved claim. That narrow holding is all that

is needed to resolve this case.

Unfortunately, the majority goes much further. Embracing the flawed

analysis in O'Cain, it holds that no defendant raising an unpreserved confrontation

clause claim can ever demonstrate manifest error sufficient to sustain appellate

review. Indeed, the majority suggests no error even exists in the absence of a

contemporaneous trial objection. This holding misreads Melendez-Diaz and sows

needless confusion into our jurispmdence by making unpreserved confrontation

clause error uniquely unreviewable, even when it results in "serious injustice to an

accused." Kalebaugh, 183 Wn.2d at 583. I would adhere to RAP 2.5(a)(3)and retain

the appellate courts' ability to address situations of serious injustice.

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State V. Burns (Michael I.), 95528-0 (Stephens, J., concurring)

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