IN RE: the Personal Restraint Petition of William H. THEDERS (2006)

RULING DENYING REVIEW

¶ 1 William Theders seeks discretionary review of a published decision of Division One of the Court of Appeals denying his personal restraint petition.  In re Pers. Restraint of Theders, 130 Wash.App. 422, 123 P.3d 489 (2005).

¶ 2 In November 2000, Larry and Angela Graves were living with Mr. Theders at his home in Monroe.   Angela wanted a divorce, which her friend, Valerie Anderson, supported.   One afternoon that month, Larry and Mr. Theders left in a pickup, saying they were going to a pet store in Everett to buy a dog bed.   Shortly thereafter, Larry called Angela on his cell phone and said that the store was closed and they were coming home.   Angela could hear Mr. Theders talking in the background.   Around 6 p.m., Larry called again and said that he and Mr. Theders were going to try to find a dog bed at another store.   Valerie Anderson arrived at her Woodinville home soon thereafter.   As she walked to her front door, a man wearing dark clothes and a ski mask grabbed her from behind and held a knife to her throat.   Ms. Anderson struggled and screamed for help.   Her attacker told her to be quiet, and she recognized the voice as Larry's.   When a neighbor responded to Ms. Anderson's screams, the attacker fled and left in a pickup that was slowly driving by.

¶ 3 At the hospital, Ms. Anderson told the police that Larry had attacked her.   The police then went to Mr. Theders's house and arrested Larry.   He gave a written statement saying that he and Mr. Theders had been out shopping for a dog bed.   After backing up Larry's alibi, Mr. Theders gave a written statement nearly identical to the one Larry had given.   But when told that witnesses had said that one of the men in the pickup wore glasses (as did Mr. Theders), Mr. Theders asked whether his statement could expose him to a perjury charge if it was untrue.   The officer said that it could.   Mr. Theders then gave another statement admitting that he drove Larry to Ms. Anderson's house, but denying that he knew that Larry intended to attack Ms. Anderson.

¶ 4 The State charged both Larry and Mr. Theders with attempted first degree murder, alleging specifically that Mr. Theders was an accomplice.   Larry did not testify at Mr. Theders's trial.   To show that Mr. Theders participated in the creation of an alibi and thus knew that Larry planned to attack Ms. Anderson, the State introduced into evidence Larry's phone calls to Angela the night of the attack and Larry's written alibi statement, which was consistent with Mr. Theders's initial statement.   Over an objection based on the right of confrontation, the trial court admitted this evidence.   The State also presented the testimony and notes of a jailhouse informant stating that Mr. Theders admitted to him that he had aided Larry in attacking Ms. Anderson.

¶ 5 A jury found Mr. Theders guilty.   Larry subsequently pleaded guilty.   The Court of Appeals affirmed Mr. Theders's conviction in an unpublished opinion, and this court denied review.   The Court of Appeals issued its mandate on October 29, 2003.

¶ 6 Mr. Theders filed a personal restraint petition in the Court of Appeals in December 2003, arguing that the admission of Larry's out-of-court statements violated his right of confrontation and that his appellate counsel was ineffective in not raising this issue on direct appeal.   After the Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court of Appeals requested supplemental briefing.   Following that briefing, a panel of judges of the court issued a published opinion denying the petition.   Mr. Theders filed a motion for discretionary review.

 ¶ 7 Initially, I note that, in arguing for review, Mr. Theders mistakenly cites the criteria listed in RAP 13.4(b).  Those criteria apply to petitions for review.   Decisions denying personal restraint petitions are reviewable only by motion for discretionary review.  RAP 16.14(c).  Therefore, I may consider only whether the Court of Appeals obviously or probably erred or so far departed from the usual course of proceedings as to call for this court's review.  RAP 13.5(b).

 ¶ 8 Mr. Theders argues that admission of Larry's cell phone calls and written alibi statement violated his right of confrontation.   But he does not show that the Court of Appeals obviously or probably erred in rejecting this argument.   Out-of-court statements not introduced to prove the truth of the matters asserted are not hearsay and thus raise no confrontation concerns.  State v. Rice, 120 Wash.2d 549, 564, 844 P.2d 416 (1993);  State v. Mason, 127 Wash.App. 554, 566 n. 26, 110 P.3d 245 (2005);  see also Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).   As the Court of Appeals observed, the evidence in question did not constitute hearsay because the state did not offer it to prove the truth of the matters asserted.  ER 801(c).  Rather, the state offered the evidence to prove Mr. Theders's participation in the creation of an alibi and thus his knowledge that Larry planned to attack the victim.   The link was made by other evidence indicating that Mr. Theders was present when Larry made the phone calls to his wife, and by the near identity between Larry's and Mr. Theders's alibi statements.   Larry's statements made no assertion of fact implicating Mr. Theders, and they were not introduced to prove any asserted facts.

¶ 9 I am aware that the United States Court of Appeals for the Sixth Circuit has taken a seemingly different view, treating as the equivalent of hearsay the statements of a co-defendant that, though not offered to prove the truth of the matters asserted, impliedly implicate the defendant.   See Lyle v. Koehler, 720 F.2d 426 (6th Cir.1983) (holding it error to admit letters from a non-testifying co-defendant urging the defendant to support or adopt a false alibi).   But the Court of Appeals here was aware of this position, and it rightly noted that a majority of other courts do not follow it, adhering instead to the definition of “hearsay” as consisting only of out-of-court statements offered to prove the truth of the matters asserted.   It thus cannot be said that the Court of Appeals obviously or probably erred.

¶ 10 Contrary to Mr. Theders's argument, this case does not call for the application of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).   That decision prohibits the admission in a joint trial of a non-testifying co-defendant's statement implicating the defendant if the statement is not otherwise admissible against the defendant.   Mr. Theders and Larry were not jointly tried.   In this circumstance, the admissibility of hearsay statements of a co-defendant depends on whether the statements are admissible in the defendant's trial under the rules of evidence and bear sufficient indicia of reliability.  Rice, 120 Wash.2d at 564-65, 844 P.2d 416;  but see Crawford, 541 U.S. at 68, 124 S.Ct. 1354 (testimonial hearsay statements now inadmissible even if they fall within a hearsay exception or bear indicia of reliability).   But even that inquiry is not reached here because Larry's statements were not hearsay.

¶ 11 Nor does this case involve the notion of “interlocking confessions.”   That notion rests on the principle that one “indicia of reliability” is a close “interlock” between the co-defendant's confession and the defendant's own confession.   See State v. St. Pierre, 111 Wash.2d 105, 113-14, 759 P.2d 383 (1988);  Rice, 120 Wash.2d at 570, 844 P.2d 416.   Mr. Theders argues that, because he did not confess while Larry did, their statements did not “interlock.”   But the statements at issue are Larry's and Mr. Theders's initial alibi statements, which closely paralleled on another.   These were not “confessions,” and no confession on Larry's part was admitted at Mr. Theders's trial.   And again, Larry's statements were not hearsay and thus did not trigger confrontation concerns.

 ¶ 12 As for Crawford, that decision does not apply retroactively to this case.  In re Pers. Restraint of Markel, 154 Wash.2d 262, 268-73, 111 P.3d 249 (2005).   And even if it did, it is inapplicable to non-hearsay statements.  Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354;  State v. Davis, 154 Wash.2d 291, 301, 111 P.3d 844 (2005).

 ¶ 13 Mr. Theders finally claims that he was denied effective assistance of appellate counsel.   But the merit of that claim depends on the merit of the confrontation argument addressed above.   See In re Pers. Restraint of Lord, 123 Wash.2d 296, 314, 868 P.2d 835 (1994) (defendant claiming ineffective assistance of appellate counsel must demonstrate merits of issues counsel failed to argue or argued inadequately).   Since that argument is meritless, counsel was not ineffective in failing to raise it on direct appeal.

¶ 14 In sum, Mr. Theders demonstrates no obvious or probable error calling for this court's review.   Accordingly, the motion for discretionary review is denied.

/s/ Geoffrey Crooks

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