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State v. Williams

Supreme Court of Kansas

April 21, 2017

State of Kansas, Appellee,
David Darrel Williams, Appellant.


         1. An appellate court employs an unlimited standard of review when addressing whether a defendant's right to confront witnesses under the Sixth Amendment to the United States Constitution has been violated.

         2. The Confrontation Clause applies to testimonial statements and prohibits the admission of such statements by a witness who does not appear at trial, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination.

         3. Two statements of an informant during a controlled law enforcement drug buy supporting the prosecution of the defendant in this case, recorded and played for the jury, were testimonial. Their content reinforced evidence of the identity of the seller and the substance purchased; it was not limited to context. The circumstances surrounding the statements also supported their testimonial nature.

         4. Admission of two testimonial statements by an informant without providing the defendant an opportunity to cross-examine the informant was error in this case, but it was harmless.

         Review of the judgment of the Court of Appeals in an unpublished

Appeal from Ellis District Court; Edward E. Bouker, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Johnathan M. Grube, of the same office, was on the brief for appellant.

          Amanda G. Voth, assistant solicitor general, argued the cause, and Thomas J. Drees, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.


          BEIER, J.

         This appeal requires this court to decide whether an audio recording of a nontestifying informant's statements can be admitted into evidence in a criminal trial without violating the defendant's right to confront witnesses under the Sixth Amendment to the United States Constitution and Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Court of Appeals rejected the defense argument against admission and affirmed defendant David Darrel Williams' conviction for distribution of methamphetamine. We accepted Williams' petition for review to address the Confrontation Clause issue.

         Williams also raises a challenge to his sentence, arguing that his prior convictions could not be used to enhance his sentence without those convictions being proved to a jury beyond a reasonable doubt, relying on Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that we have consistently rejected this argument, see, e.g., State v. Ivory, 273 Kan. 44, 47, 41 P.3d 781 (2002). We do so again today, and no further discussion of this challenge is necessary.

         As detailed below, we affirm the decision of the Court of Appeals and the judgment of the district court because the error in admitting the informant's statements was harmless.

         Factual and Procedural Background

         About dusk on September 13, 2012, KBI Special Agent Michael Lind met with a confidential informant to set up a purchase of methamphetamine from Williams. The informant arranged a meeting with Williams during a telephone call in which Williams gave the informant directions to his location. After the call, Lind drove with the informant to meet Williams.

         As Lind and the informant reached the meeting place, Williams walked out to the sidewalk. Lind stopped the car, and Williams got into the back passenger seat. Williams asked if Lind and the informant "wanted a line." At trial, Lind would testify that this "could mean a line of methamphetamine, as a way of ingesting the drugs."

         At that point, Williams asked Lind to drive to another location. Lind did so. Williams then removed a small plastic baggie from his pocket and placed it on the center console. Lind picked the bag up and examined it, attempting to determine whether it contained drugs and, if so, in the correct quantity. Satisfied that the bag contained what he was looking for, Lind paid Williams $120 of "Drug Enforcement Unit buy money."

         Lind drove Williams back to where he had picked him up. After dropping Williams off, Lind drove to another location and conducted a field test on the substance in the baggie. The test confirmed that the substance was methamphetamine.

         Williams would eventually be arrested and charged with distribution of methamphetamine in violation of K.S.A. 2015 Supp. 21-5705(a)(1).

         At trial, Lind testified about the details of the buy. Lind identified Williams at trial as the person who had sold him the methamphetamine. Lind also described wearing a "body wire" to create an audio recording of the drug deal.

         Although Lind's informant had been subpoenaed to testify at trial, she did not appear. Williams objected to the State playing the 4-minute audio recording of the deal for the jury, arguing that the statements of the informant that could be heard on the recording were testimonial and that playing them for the jury would violate his rights under the Sixth Amendment Confrontation Clause. Moreover, Williams argued at the time, the informant's statements did not satisfy any hearsay exception in Kansas statutes.

         Williams specifically complained about two statements from the informant, which, he argued, identified him and the content of the baggie. Although it is difficult to hear on the recording included in the record on appeal, the parties seem to agree on the content of the first statement. It occurred when Williams got into the car, and the informant acknowledged him by saying, "'Say hi to Dave, " or something similar. The second statement, which can be heard clearly on the recording in the record on appeal, was the informant's response to Williams' request about whether Lind and the informant wanted "a line." The informant responded with one word: "meth."

         The district court judge overruled the defense objection and allowed the entire recording to be played to the jury. The judge had concluded that there was no Confrontation Clause problem because the informant's statements did not qualify as testimonial. The judge said that the informant "had no idea that the tape was being made. She was not being questioned by law enforcement. She was not in the custody of law enforcement." The judge also had concluded that the statements satisfied Kansas' hearsay exception for vicarious admissions. See K.S.A. 2015 Supp. 60-460(i)(2) (vicarious admissions admissible when party, declarant participating in plan to commit crime).

         In addition to Lind, Harold Riddle, a forensic chemist for the KBI, and Scott Braun, a detective with the Ellis County Sheriff's Department, testified at trial. Riddle had tested the substance Lind purchased from Williams and had confirmed that the substance was methamphetamine. Braun had provided security for Lind during the drug buy by monitoring the audio through Lind's body wire. Braun testified that he had identified Williams from hearing his voice during the drug transaction; he had previously heard Williams' voice on multiple occasions. After recognizing Williams from his voice, Braun requested that a photo of Williams be sent to his cell phone. After the controlled buy had concluded, Braun showed the photo of Williams to Lind. Braun testified that Lind confirmed Williams' identity from the photo.

         A version of the first of the informant's two challenged statements was featured in the State's closing argument, when the prosecutor argued that the State had proved the distribution of drugs beyond a reasonable doubt:

"[W]e do have the evidence. We have the recording and you hear it.
"'Hi, Dave' at the beginning; 'Thanks, Dave' at the end. Talking about other distribution of drugs, 14 grams. This was not an accident. This was an intentional act on his part to distribute."

         The jury found Williams guilty, and the district judge sentenced Williams to 49 months in prison, followed by 24 months' postrelease supervision.

         Williams appealed to the Court of Appeals, arguing that application of four factors from State v. Brown, 285 Kan. 261, 291, 173 P.3d 612 (2007), demonstrated that the challenged informant's statements should be classified as testimonial: (1) an objective witness in the informant's position would reasonably believe his or her statements would later be available for use in the prosecution of a crime; (2) the statements were made in a car with an undercover law enforcement agent, in other words, to that agent; (3) the statements proved facts relevant to a later drug prosecution that was the primary purpose of the encounter, when the totality of the circumstances are viewed objectively; and (4) although the statements may have appeared to be informal to the defendant, they were, in fact, part of a planned scenario sufficiently formal to make them inherently testimonial. Williams also relied upon precedents from the United States Courts of Appeals for the Sixth and Seventh Circuits that held informants' statements to be testimonial and on an earlier Court of Appeals decision with a similar holding. See United States v. Cromer, 389 F.3d 662 (6th Cir. 2004); United States v. Silva, 380 F.3d 1018 (7th Cir. 2004); State v. Adams, 35 Kan.App.2d 439, 131 P.3d 556 (2006), rev'd on other grounds 283 Kan. 365, 153 P.3d 512 (2007).

         For its part, the State's Court of Appeals argument on whether the informant's challenged statements were testimonial was focused primarily on the Brown factors. It did not address the Sixth and Seventh Circuit cases and attempted to distinguish the earlier Court of Appeals decision in Adams.

         The panel in this case determined that the informant's statements were not testimonial "in nature under the circumstances presented. . . . [T]here is no evidence that the informant knew the drug transaction was being recorded. Likewise, the informant was not responding to questions from Agent Lind nor was she in custody at the time." State v. Williams, No. 111, 046, 2015 WL 5458672, at *3 (Kan. App. 2015) (unpublished opinion). The panel observed that the informant apparently had not been granted immunity from prosecution, making her a coconspirator in the drug transaction; and it relied on this court's recognition that statements made in furtherance of a conspiracy are, categorically, nontestimonial. 2015 WL 5458672, at *3 (citing State v. Betancourt, 301 Kan. 282, 300-01, 342 P.3d 916 [2015]).

         The panel also applied the multifactor Brown test. It regarded the result on the first factor as "unclear" because "the informant's statements were not made during a custodial interrogation, were not made to Agent Lind, and were not made in response to Agent Lind's questions, " but "an objective person who is helping an undercover officer buy drugs might reasonably expect that any statements made during the transaction would be used in a later prosecution." Williams, 2015 WL 5458672, at *4. In the panel's view, the remaining Brown factors pointed to a conclusion that the two challenged informant statements were nontestimonial. 2015 WL 5458672, at *4.

         The panel also believed the informant's statements in this case were comparable to informant statements considered in United State v. Hendricks, 395 F.3d 173 (3d Cir. 2005), which were held to be nontestimonial. The prosecution had asserted in Hendricks that the recorded statements were not admitted for the truth of the matter asserted. Rather, they provided "context" for statements of various defendants who could also be heard on recorded conversations about illegal drug trade. 395 F.3d at 184.

         The panel did not independently assess whether the informant's statements challenged in this case met any Kansas hearsay exception. It did hold in the alternative that any Confrontation Clause error in admitting the informant's statements into evidence was harmless. Williams, 2015 WL 5458672, at *6 (citing State v. Ward, 292 Kan. 541, 565, 569, 256 P.3d 801');">256 P.3d 801');">256 P.3d 801');">256 P.3d 801 [2011]).

         In his petition for review, Williams specifically takes issue with the Court of Appeals' observation that the informants' statements "were not made to a law enforcement officer or to another government official, " 2015 WL 5458672, at *4, arguing that such a rationale for holding a statement nontestimonial could entirely undermine the Confrontation Clause. Williams also singles out the panel's statement that the informant's single word "meth" was not "offered to . . . [identify] the substance [the defendant] was selling" for particular criticism:

"[T]he district court did not limit the use of the statements at all. It [would be] an unusually prescient jury that would know that a statement identifying the subject of a controlled [buy] as 'meth' couldn't be used to help prove that the subject was methamphetamine."

         Williams also attacks the panel's alternative harmless error holding by arguing that, absent the confidential informant's recorded greeting of him, the State's evidence could not have carried the day. Specifically, he says that the law enforcement testimony about recognizing Williams' cell-phone photo likeness and recorded voice was not "so overwhelming and undisputed that a jury might not have formed a reasonable doubt regarding the identity of the person allegedly selling drugs."

         The State did not file a written response to Williams' petition for review or a supplemental brief after the petition was granted by this court. It did, however, submit a letter of additional authority under Rule 6.09 (2017 Kan. S.Ct. R. 39). The letter asserted that the district court judgment could be affirmed if it reached the right result, even if it did so for the wrong reason, citing Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005). Previewing the prosecutor's focus at oral argument before us, the letter cited decisions from the Second, Fifth, Seventh, Ninth, and Eleventh Circuits for the proposition that a nontestifying informant's or other person's statements could be admitted in a criminal trial to provide context rather than for the truth of the matter asserted. See United States v. Paulino, 445 F.3d 211, 216 (2d Cir. 2006); United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006); United ...

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