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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 66022-5-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
       v.                                   )       UNPUBLISHED OPINION
                                            )
WILLIAM FRANKLIN BROWN II,                  )
                                            )
                      Appellant.            )       FILED:  April 16, 2012
                                            )

       Leach, C.J.  --  William Brown appeals his conviction for possession of 

stolen property in the third degree.  He contends that the trial court admitted his 

codefendant's out-of-court inculpatory statement in violation of Brown's 

constitutional right to confront witnesses and admitted evidence of Brown's prior 

bad acts in violation of ER 404(b).  But because his codefendant's statement 

was not testimonial, its admission did not implicate Brown's constitutional rights.  

Brown failed to preserve for review his claim about evidence of his alleged prior 

bad acts.  We affirm.  

                                        FACTS

       In June 2009, Frank Harris had just moved into an apartment in Shoreline.  

Several others were staying at Harris's apartment, including Barbara Brittain, 

who was in a romantic relationship with Harris, William Brown, who had been 

Harris's friend for almost twenty years, and Christina Lux.   

NO. 66022-5-I / 2

       In the early morning hours on June 20, Brittain was moving some of her 

belongings into the apartment.  She stacked some bags, including her handbag, 

by the elevator.  She left the items unattended while she returned to the car. 

The contents of Brittain's purse included her identification card, a Money Tree 
ATM (automated teller machine) card, and her dentures.1  

       While Brittain was transporting her belongings to the apartment, some 

noise in the kitchen awakened Harris.  He got up and found Lux making a 

sandwich.  Lux told Harris that she found a purse by the elevator and took it but 

then discovered it belonged to Brittain.  Lux asked Harris what she should do 

with it.  Harris told Lux she should put the purse back where she found it.  

       Brown entered the room during this conversation.  Brown took the purse 

and rummaged through it.  He commented on some of the items and said, "[O]oh 

teeth," while he was doing this.  Brown told Harris he would return the bag to 

Brittain but wanted her to "sweat" a bit first.  

       When Brittain discovered her purse was missing, she became hysterical, 

especially at the loss of her dentures, which her father had recently purchased 

for her.  Brittain returned to the grocery store where she had been a few hours 

earlier to make sure she had not left the purse there.  Over the next few days, 

Brittain put posters up around the apartment complex and, at Lux's suggestion, 

checked the dumpsters several times but did not find the purse.  Harris did not 

       1 Brittain testified that there were no funds in the Money Tree account at 
the time. 
                                           -2- 

NO. 66022-5-I / 3

tell Brittain that Lux took her purse and Brown had it because he believed that 

Brown would return Brittain's property to her as he said he would.  But later, 

when Harris asked Brown whether he had given Brittain her purse back, Brown 

said he "threw it away."  

       A few nights after the incident, Harris, Lux, and Brittain were at the 

apartment.  Lux appeared to be intoxicated.  She told Brittain she had a 

"confession to make" and admitted that she took the purse, gave it to Brown, and 

he "threw it."   Immediately afterward, Lux said she had taken 150 pills, then 

stumbled to the stove, turned on the burners, and began vomiting over the stove.  

When she became incoherent, Harris called 911.  An ambulance arrived, and 

paramedics transported Lux to the hospital.  Brittain filed a police report about 

her purse.

       The State charged Brown with first degree possession of stolen property 

for possessing Brittain's dentures and second degree possession of stolen 

property for possessing her ATM card.  The State also charged Lux with two 

counts of theft.  Brown and Lux were tried together before a jury.

       The jury acquitted Brown of the charge based on possession of the ATM 

card but found him guilty of the lesser           included charge of third degree 

possession of stolen property on the count based on possession of Brittain's 
dentures.2 Brown appeals. 

       2 Lux was found not guilty of one count of theft, and the jury could not 
agree on a verdict as to the other count.
                                           -3- 

NO. 66022-5-I / 4

                       Admission of Codefendant's Statement
       Relying on Bruton v. United States,3              Brown contends that his 

constitutional right to confront witnesses against him was violated by the 

admission of Harris's testimony that during the drug overdose episode, Lux 
admitted that she took the purse and gave it to Brown.4

       The confrontation clause guarantees a criminal defendant the right "to be 
confronted with the witnesses against him."5   In  Bruton, the Court held the 

admission at a joint trial of an out-of-court confession of a nontestifying 

codefendant that implicates the defendant violates that defendant's rights under 
the confrontation clause.6  

       The State argues that the admission of Lux's out-of-court statement did 
not violate Brown's confrontation rights because it was not "testimonial."7       Brown 

does not dispute the State's characterization of the statement as nontestimonial.  

Instead, he contends his confrontation rights are not  determined by whether 

Lux's statement was testimonial; his rights are violated if the statement 

implicated Brown and it was made by a nontestifying codefendant.  

       In recent years, the Supreme Court has clarified the contours of the 

       3 391 U.S. 123, 135-36, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
       4 Brittain testified about the same incident but did not say that Lux 
mentioned Brown's involvement.  
       5 U.S. Const. amend. VI.
       6 Bruton, 391 U.S. at 137.  
       7 See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 
L. Ed. 2d 177 (2004).
                                           -4- 

NO. 66022-5-I / 5

confrontation clause in Crawford v. Washington8 and Davis v. Washington.9  It is 

now evident that the confrontation clause does not apply to nontestimonial 
statements made by an out-of-court declarant.10            As recognized by several 

federal and state courts, because  Bruton and its progeny are based on the 

protections afforded by the confrontation clause, after Crawford,  Bruton's 

restriction on the admission of inculpatory statements by a jointly tried 
codefendant is limited to testimonial hearsay.11      As aptly explained by the First 

Circuit:

       The    Bruton   /  Richardson     framework presupposes that the 
       aggrieved co-defendant has a Sixth Amendment right to confront 
       the declarant in the first place.   If none of the co-defendants has a 
       constitutional right to confront the declarant, none can complain 
       that his right has been denied.     It is thus necessary to view Bruton
       through the lens of Crawford and Davis.       The threshold question in 
       every case is whether the challenged statement is testimonial.  If it 

       8 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
       9 547 U.S. 813, 821-22, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
       10 Davis, 547 U.S. at 823-26; Whorton v. Bockting, 549 U.S. 406, 420, 127 
S. Ct. 1173, 167 L. Ed.       2d 1 (2007) ("[T]he Confrontation Clause has no 
application to [nontestimonial out-of-court] statements.").
       11 See, e.g., United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 
2010) ("[T]he Bruton rule, like the Confrontation Clause upon which it is 
premised, does not apply to nontestimonial hearsay statements.");  United States 
v. Figueroa -- Cartagena, 612 F.3d 69, 85 (1st Cir. 2010); United States v. 
Johnson, 581 F.3d 320, 325-26 (6th Cir. 2009), cert. denied, 130 S. Ct. 3409 
(2010); United States v. Avila Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009); 
People v. Arceo, 195 Cal. App. 4th 556, 574-75, 125 Cal. Rptr. 3d 436, cert. 
denied, 132 S. Ct. 851 (2011).  Brown does not acknowledge or address this 
authority.  He relies on cases decided before Crawford and upon one post-
Crawford district court decision, in which the court concluded, contrary to the 
weight of authority, that "Crawford did not limit the Confrontation Clause to 
testimonial statements."  See United States v. Williams, No. 1:09CR414 JCC, 
2010 WL 3909480, at 4. (E. D. Va. Sept. 23, 2010).
                                           -5- 

NO. 66022-5-I / 6
       is not, the Confrontation Clause "has no application."[12]  

       Therefore, the threshold question is whether Lux's statement to Brittain 

that she took the purse and gave it to Brown is testimonial or nontestimonial 

hearsay.    The  Crawford Court included "'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'" as an example of a 
"core class of 'testimonial' statements."13    The Court further explained that "[a]n 

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."14  In Davis, the Court described statements from one prisoner to another as 

"clearly nontestimonial."15   We conclude, and Brown does not assert otherwise, 

that Lux's remarks to Brittain were not made under circumstances that would 

lead an objective witness to understand that the statements would later be used 

in criminal proceedings.  Because Lux's out-of-court statements were not 

testimonial, their admission did not violate the protections of the confrontation 

clause.

       In addition, the admission of Lux's statement would not be grounds for 

reversal even if the admission violated Brown's constitutional rights.  Lux's 

statement implicating Brown was insignificant in light of the evidence that Harris 

       12 Figueroa-Cartagena, 612 F.3d at 85 (quoting Whorton, 549 U.S. at 
420).  
       13 Crawford, 541 U.S. at 51-52.
       14 Crawford, 541 U.S. at 51.
       15 Davis, 547 U.S. at 825.
                                           -6- 

NO. 66022-5-I / 7

saw Brown holding the purse and going through its contents and the evidence of 

Brown's admissions to Harris that he had control over the stolen item and finally 

disposed of it.  We are assured beyond a reasonable doubt that Brown's 

conviction is not attributable to the admission of Lux's statement insofar as it 

implicated him.  

                             Admission of Prior Bad Acts

       On cross-examination, Brittain testified that her relationship with Brown 

had been difficult and strained in the weeks before her purse was taken.  

Apparently surprised by this disclosure, defense counsel elicited the fact that 

before trial, Brittain told the investigator there were "no problems at all" between 

her and Brown.  On redirect, the prosecutor allowed Brittain to explain that she 

was not getting along with Brown because she had purchased some crack 

cocaine from him, but he "shorted" her on the amount of drugs and refused to 

refund her.  Brittain went on to explain that she did not press Brown too far on 

the issue because she was intimidated by him and had heard him make 

comments indicating that he would not hesitate to harm someone who owed him 

money. 

       Brown claims this was evidence of prior bad acts governed by ER 404(b) 

and that the trial court erroneously admitted the evidence without properly 

balancing the relative probative value of the evidence against its prejudicial 

effect as required by the rule.  

                                           -7- 

NO. 66022-5-I / 8

       But the court did not admit the testimony under ER 404(b).  Brittain's 

testimony about her relationship with Brown and the source of conflict between 

the two was elicited by the questioning of both counsel and was unanticipated by 

either counsel.  The defense did not object to the testimony, and the court did 

not rule on its admissibility under ER 404(b).  

       Brown objected only after Brittain testified that she feared Brown because 

of "things that he would say, what he would do to other people if he didn't get his 

money."   Brown continued to object when Brittain testified that she "personally"

heard Brown mention kicking a specific woman "in the crotch" and beating her 

up when she didn't pay him.  This testimony was about Brown's prior statements, 
not his acts.  And Brown did not state any basis for his objections.16        While the 

court overruled all of Brown's objections but one, it also called a sidebar and 

curtailed the prosecutor's inquiry at that point.  Although Brown's counsel made 

a motion to strike, which the court denied, counsel expressly declined to seek a 

mistrial and did not accept the court's invitation to craft a limiting instruction.  

       Because the testimony about the drug sale and resulting animosity 

between Brittain and Brown was not objected to, any claim of error with respect 

to this testimony was waived.  Brown's nonspecific objections to Brittain's 

testimony about his statements and           the basis for her intimidation were 
insufficient to preserve the error.17     And even if the trial court should have 

       16 At a later sidebar, counsel indicated that the evidence was inadmissible 
under ER 404(b), irrelevant, and prejudicial.
                                           -8- 

NO. 66022-5-I / 9

sustained Brown's objections to the arguably irrelevant testimony and granted a 

motion to strike that testimony, evidentiary error is harmless if there is no 
reasonable probability that the error affected the trial's outcome.18      Considering 

counsel's decision not to move for a mistrial, it is apparent that the evidence did 
not appear to be critically prejudicial at the time.19  And given the jury's acquittal 

on one charge and its conviction on only the lesser included misdemeanor 

charge on the other count, the challenged evidence did not, within reasonable 

probabilities, affect the verdict. 

       Affirmed.

WE CONCUR:

       17 State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
       18 State v. Templeton, 148 Wn.2d 193, 220, 59 P.3d 632 (2002).  
       19 See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990) ("The 
absence of a motion for mistrial at the time of the argument strongly suggests to 
a court that the argument or event in question did not appear critically prejudicial 
to an appellant in the context of the trial.").
                                           -9-