State v. Valladares

Williams, C.J.

(concurring specially) — I concur in the result reached by the majority. However, on the issue of admission of hearsay testimony, I believe the case should be decided on the basis of my dissenting opinion in State v. *673 Parris, 98 Wn.2d 140 , 654 P.2d 77 (1982). Apart from my belief that inculpatory hearsay statements are not admissible under Rule of Evidence 804(b)(3), see Parris, at 155-64 (Williams, J., dissenting), I believe we are required to independently analyze such statements for compatibility with defendant's separate and distinct right of confrontation. Though the confrontation clause and hearsay rules are intended to protect the same values, the two are not coextensive. It is possible to find a violation , of the confrontation clause even though certain out-of-court statements are admissible under a recognized hearsay exception. California v. Green, 399 U.S. 149, 155-56 , 26 L. Ed. 2d 489 , 90 S. Ct. 1930 (1970) (citing Barber v. Page, 390 U.S. 719 , 20 L. Ed. 2d 255 , 88 S. Ct. 1318 (1968); Pointer v. Texas, 380 U.S. 400 , 13 L. Ed. 2d 923 , 85 S. Ct. 1065 (1965)).

The majority seems to recognize the necessity of independent analysis of the confrontation clause but fulfills this obligation by only looking to the Sixth Amendment. In so doing, it quite rightly concludes that the questioned evidence was imbued with a particular guaranty of trustworthiness as required by Ohio v. Roberts, 448 U.S. 56 , 65 L. Ed. 2d 597 , 100 S. Ct. 2531 (1980). Despite the accuracy of this conclusion as it applies to federal guaranties such a determination is wholly insufficient to protect those interests guaranteed by our own constitution.

It is now firmly established that this court may interpret the Washington Constitution as more protective of individual rights than parallel provisions of the United States Constitution. State v. White, 97 Wn.2d 92, 108 , 640 P.2d 1061 (1982); see also Prune Yard Shopping. Ctr. v. Robins, 447 U.S. 74, 81 , 64 L. Ed. 2d 741 , 100 S. Ct. 2035 (1980) (citing Cooper v. California, 386 U.S. 58 , 17 L. Ed. 2d 730 , 87 S. Ct. 788 (1967)). Independent analysis becomes even more imperative when, as here, the language of the state provision substantially differs from the federal. State v. Simpson, 95 Wn.2d 170, 177-82 , 622 P.2d 1199 (1980).

The sixth amendment to- the United States Constitution simply gives the accused the right to be confronted with *674 witnesses.

By contrast, Const. art. 1, § 22 provides:

In criminal prosecutions the accused shall have the right... to meet the witnesses against him face to face

(Italics mine.)

As I stated in the Parris dissent, the "face-to-face" language of Const. art. 1, § 22 seems to require actual physical confrontation between the accused and any adverse witnesses. And while the impracticality of actual physical confrontation is not disputed, it also cannot be disputed that this language at least provides greater protection than is afforded under both hearsay rules and the Sixth Amendment. Though I by no means believe that the right of confrontation is absolute, I do believe that under the Washington Constitution, this right must be more jealously guarded than similar rights under the Sixth Amendment. To this end, any examination of the extent of this protection must include a careful balancing of the competing interests of the State and the accused with added weight being placed upon the accused's side of the scale.

Even using more generalized concepts of balancing, the defendant's interest in avoiding the cumulative effects of the statements outweighed the State's need for admission. Campbell's statements identified the defendant as a former drug dealer and formed the initial basis for the State's charge of continuing drug dealings. Despite the importance of these facts to the State's case, there still existed overwhelming evidence tending to prove these very same facts. Thus, exclusion of Campbell's statement presented no danger to the State. Under these circumstances, the balance should have been struck in the defendant's favor. The trial court thus committed error in admitting Campbell's out-of-court testimony.

Despite what I consider to be a clear violation of the defendant's rights, I would still affirm the defendant's conviction. Under the doctrine of harmless error not every constitutional infirmity at trial requires reversal. This doc *675 trine may be applied even when a right of confrontation is asserted. State v. Braun, 82 Wn.2d 157, 165 , 509 P.2d 742 (1973); see also Harrington v. California, 395 U.S. 250 , 23 L. Ed. 2d 284 , 89 S. Ct. 1726 (1969). In State v. Evans, 96 Wn.2d 1, 5 , 633 P.2d 83 (1981), this court found an error harmless beyond a reasonable doubt where the record revealed that there was "overwhelming evidence supporting the jury's verdict." In this case, the defendant's own statements and the testimony from the various police officers provided what can only be considered overwhelming evidence to support the conviction. The evidence admitted via the Campbell statements, though constitutionally improper, was thus harmless. I therefore must concur in the result reached by the majority.

Utter, J., and Cunningham, J. Pro Tern., concur with Williams, C.J.

Reconsideration denied August 2, 1983.