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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
o
STATE OF WASHINGTON,
No. 72390-1-1
CO
Respondent, ;
DIVISION ONE
v.
S?
UNPUBLISHED OPINION o-
BASHIR ABDIRASHID MOHAMED,
Defendant, ]
MOHAMED A. AHMED,
Appellant. FILED: November 23, 2015
Trickey, J. — Mohamed Ahmed appeals his judgment and sentence for
his conviction of robbery in the first degree. He claims that the admission of
statements made by his non-testifying codefendant violated his right to
confrontation. Because the challenged statements are not testimonial, we
disagree and affirm.
FACTS
One night in December 2013, Abdirisak Hashi went to Waid's, a bar in
Seattle's Central District. While at Waid's, Hashi saw Bashir Mohamed and
Mohamed Ahmed.1 Hashi knew Bashir, because Hashi had dated Bashir's sister
for a period of several years. Hashi recognized Ahmed but did not know his
name. Over the course of the night, Hashi consumed several drinks. He
became intoxicated.
1 The court record reflects alternative spellings for the defendants' names, e.g.,
Mohamed Ahmed, Mohamud Ahmed, Bashir Mohamed, and Basher Mohamed. To
avoid confusion, we adopt the following spellings in this opinion: Mohamed Ahmed and
Bashir Mohamed. Further, due to the similarity in names, we refer to Bashir Mohamed
by his first name. We mean no disrespect to the parties.
No. 72390-1-1/2
Later that night, Hashi left Waid's and went to his car, which was parked
outside. He got into his car and tried to start the ignition. At that moment,
Ahmed entered Hashi's car, grabbed the keys from Hashi's hand, and threw the
keys to Bashir. Hashi ran over to Bashir and demanded his keys. The men
refused to return Hashi's keys, and Bashir punched Hashi in the mouth. Bashir
and Ahmed then got into Hashi's car and drove away. Two hours later, Tukwila
police found Hashi's severely damaged car.
Based on these events, the State jointly charged Bashir and Ahmed with
robbery in the first degree. The case proceeded to a joint jury trial, where the
State sought to admit portions of jail telephone calls made by Bashir. Ahmed
argued that Bashir's statements in the telephone calls implicated him, and he
moved to sever his case from Bashir's several times during the trial. The court
denied these requests. It admitted the telephone calls into evidence but
instructed the jury that the calls were to be used solely against Bashir. Bashir did
not testify at trial. The jury convicted Ahmed as charged.
Ahmed appeals.
ANALYSIS
Ahmed argues that the admission of Bashir's out-of-court statements
made during the jail telephone calls violated his right to confrontation under
Bruton v. United States. 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968),
because the statements directly implicated him and because Bashir did not
testify.2 We disagree.
2 Br. of Appellant at 1,6-11.
No. 72390-1-1/3
The Sixth Amendment of the United States Constitution and article I,
section 22 of the Washington Constitution guarantee a criminal defendant the
right to be confronted with the witnesses against him. U.S. Const, amend. VI;
Const, art. I, § 22. In Bruton. the United States Supreme Court held that a
criminal defendant was deprived of his confrontation rights under the Sixth
Amendment when he was incriminated by a pretrial statement of a codefendant
who did not take the stand at trial. 391 U.S. at 135-36.
In recent years, however, the United States Supreme Court has clarified
the contours of the confrontation clause. Beginning with Crawford v.
Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Court
has explained that the confrontation clause applies only to "testimonial"
statements made by an out-of-court declarant. State v. DeLeon. 185 Wn. App.
171,208,341 P.3d 315 (2014).
Both Washington and federal courts have recognized that because Bruton
is based on the protections afforded by the confrontation clause, "'[l]t is . . .
necessary to view Bruton through the lens of Crawford.'" DeLeon. 185 Wn. App.
at 208 (alterations in original) (quoting United States v. Fiqueroa-Cartagena. 612
F.3d 69, 85 (1st Cir. 2010)). Thus, the Bruton rule similarly applies only to
testimonial statements. Accordingly, the "threshold question" in every case is
whether the challenged statement is testimonial. Figueroa-Cartagena. 612 F.3d
at 85. If it is not, the confrontation clause has no application. Figueroa-
Cartagena, 612 F.3d at 85.
No. 72390-1-1/4
With regard to what constitutes a "testimonial" statement, the Crawford
court indicated that '"statements 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'" are testimonial. 541 U.S. at 52. The
Crawford court also stated, "An accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a
casual remark to an acquaintance does not." 541 U.S. at 51.
We review de novo alleged violations of the state and federal
confrontation clauses. State v. Jasper. 174 Wn.2d 96, 108, 271 P.3d 876 (2012).
Here, the court admitted statements made by Bashir to Hashi during jail
telephone calls. Ahmed challenges several of these statements, arguing that
Bashir's references to the "other guy" implicated him.3 In one of these calls,
Bashir stated as follows:
I will be in jail 20 years if you show up the court. Don't show up at
the court. . . . I will go [to] trial and it will be dismissed. Of
(inaudible) of God, I did not take your car. The other guy is in jail.
He was in jail, but this guy was outside. Uh, uh, the other guy who
is in jail, he's—he's motherf[***]er. Uh, I can work with you to find
him and to prove (phonetic) him. Uh, don't come to court otherwise
I will be in jail 20 years.141
In another call, Ahmed asserts that Bashir stated, "Tell him the other guy
did it. And he was high and crashed the car."5 It is unclear on this record
whether this statement was also admitted at trial. For purposes of our analysis,
we assume that it was.
3 Br. of Appellant at 4, 5, 8-10.
4 5 Report of Proceedings (RP) at 68.
5 Br. of Appellant at 5.
No. 72390-1-1/5
We conclude, and Ahmed does not assert otherwise, that Bashir's
remarks were not made under circumstances that would lead an objective
witness to understand that the statements would later be used in criminal
proceedings. The telephone calls did not involve any active participation by a
government official. In short, Bashir's out-of-court statements are not testimonial,
and their admission at trial did not violate Ahmed's right to confrontation.
Ahmed relies on State v. Vincent. 131 Wn. App. 147, 120 P.3d 120
(2005), and State v. Fisher. 184 Wn. App. 766, 338 P.3d 897 (2014), review
granted in part. 183 Wn.2d 1024, 355 P.3d 1154 (2015). But neither of those
cases considered whether the challenged statements were testimonial. Thus,
they are not helpful to the threshold inquiry before this court, and we do not
address them any further.
Given our resolution of this issue, we need not address the State's
argument that the admission of Bashir's statements was harmless beyond a
reasonable doubt.
We affirm the judgment and sentence.
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WE CONCUR: