The State of Washington, Respondent, v. Kyle Keith Kronich, Petitioner, 160 Wash. 2d 893

¶1 The Sixth Amendment to the United States Constitution provides every criminal defendant the right “to be confronted with the witnesses against him ... ,” Under this clause, “testimonial evidence may not be admitted at trial absent proof of the declarant’s unavailability and prior opportunity for cross-examination of the declarant by the accused.” The United States Supreme Court has yet to provide a comprehensive definition for “testimonial” evidence.

However, the Court’s explicit acknowledgment that business records are not “testimonial” evidence provides a basis for concluding that public records are also not “testimonial.” Thus, we agree with Division Three of the Court of Appeals that Kyle Kronich’s rights under the confrontation clause were not violated when the trial court admitted a Department of Licensing (DOL) certification of his driving record describing the status as “suspended/revoked.” Accordingly, we affirm the Court of Appeals decision. J.M. Johnson, J. Facts ¶2 Spokane County sheriff’s deputies Jenkins and Mitchell encountered Mr.

Kronich on November 15,2000, at approximately 10:30 pm. Specifically, while the deputies’ vehicle was stopped at a railroad crossing behind a gray van, Deputy Jenkins ran a radio check on the van license. The check established that the driving privilege of the registered owner, Kronich, was currently suspended. Deputy Jenkins then pulled the van over and contacted the driver, who was subsequently identified as Kronich. Kronich was placed under arrest for third degree driving while license suspended (DWLS). ¶3 Deputy Jenkins noted an odor of alcohol and that Kronich appeared “lethargic.” Clerk’s Papers at 47.

Kronich also declined to perform any field sobriety tests. A search of Kronich’s vehicle, subsequent to his arrest, revealed several open containers of beer. Kronich was then placed under arrest for driving under the influence (DUI). After being transported to the Public Safety Building in Spokane, Kronich was asked to submit to a BAC (blood alcohol content) breath test; he refused. ¶4 Kronich was charged with one count DUI and one count DWLS in the third degree. He was tried before a jury in the District Court for Spokane County.

At trial, Kronich’s counsel sought to exclude any evidence regarding Kronich’s refusal to submit to a BAC breath test, claiming that Kronich requested and was denied counsel. The motion to suppress was denied. ¶5 Additionally, the State sought to admit as evidence two records from DOL: (1) an order of revocation of his driver’s license and (2) a certified statement regarding the status of Kronich’s driving privilege as of November 15, 2000. Kronich’s counsel objected to the admission of the latter document on grounds of lack of foundation.

Once the presence of a seal on the certified statement was established, both the order of revocation and the certified statement were admitted without further objection. ¶6 Following convictions on both counts, Kronich appealed to Spokane County Superior Court. On appeal, Kronich again argued that his refusal to take a BAC breath test should have been suppressed. However, the superior court determined that the ultimate decision of the trial court not to suppress was correct.

Additionally, Kronich raised, for the first time, the issue of a confrontation clause violation as a result of the admission of the certified statement from DOL regarding his suspended license. The superior court found no confrontation clause violation. ¶7 Kronich sought discretionary review before Division Three of the Court of Appeals, where he again raised the issue of suppression of his refusal to take a BAC breath test, as well as the violation of his rights under the confrontation clause. State v. Kronich, 131 Wn. App. 537, 541-42, 128 P.3d 119 (2006).

The Court of Appeals determined that the lower court did not err in denying Kronich’s motion to suppress. Id. at 542-44. The Court of Appeals also concluded that the DOL documents were properly admitted under the confrontation clause. Id. at 545-47. ¶8 Next, Kronich filed a petition for review with this court in which he raised both the BAC breath test refusal and confrontation clause issues decided below. This court granted review on the confrontation clause issue only. State v. Kronich, 157 Wn.2d 1008, 139 P.3d 349 (2006). Analysis I.

Constitutional Issues Raised for the First Time on Appeal ¶9 A party may not raise a claim of error on appeal that was not raised at trial unless the claim involves (1) trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, or (3) manifest error affecting a constitutional right. RAP 2.5(a). Regarding the latter type of claims, this court has noted that “ ‘ [c] onstitutional errors are treated specially because they often result in serious injustice to the accused.’ ” State v. Kirkpatrick, 160 Wn.2d 879, 893, 161 P.3d 990 (2007) (alteration in original) (quoting State v.

Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988)). However, “ ‘the constitutional error exception is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify a constitutional issue not litigated below.’ ” Id. at 879 (internal quotation marks omitted) (quoting Scott, 110 Wn.2d at 687). ¶10 The applicability of RAP 2.5(a)(3) is determined according to a two-part test: First, the court determines whether the alleged error is truly constitutional. Lynn, 67 Wn. App. at 345.

Second, the court determines whether the alleged error is “manifest,” i.e., whether the error had “practical and identifiable consequences in the trial of the case.” State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001); Lynn, 67 Wn. App. at 345. Id. at 879-80 (citing State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). A purely formalistic error will not be deemed manifest. Id. at 880 (citing Lynn, 67 Wn. App. at 345). II.

Kronich’s Confrontation Clause Claim Was Not Properly Preserved at Trial; However, His Claim Involves a Manifest Error Affecting a Constitutional Right ¶11 As noted by the Court of Appeals, “Mr. Kronich did not object to the DOL document at trial based on [State v.] Crawford, [541 U.S. 36, 124 S. Ct. 1354, 158 L. E. 2d 177 (2004),] even though Crawford was decided before his trial. Rather, he objected based on ‘foundation.’ ” Kronich, 131 Wn. App. at 545. Even so, the Court of Appeals decided to reach the merits of Kronich’s confrontation clause claim because “this issue is likely to arise again.” Id. at 546.

This is not the correct standard for analyzing whether an appellate court will exercise its discretion under RAP 2.5(a). Rather, the Court of Appeals should have addressed whether Kronich’s claim involves a manifest error affecting a constitutional right. ¶12 This court recently declined to reach the merits of a similar claim regarding DOL records because the defendant failed to properly preserve the issue. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005) (declining to reach Smith’s hearsay challenge to admission of DOL records because trial counsel objected on grounds of foundation, not hearsay).

However, Smith’s claim appears to have been limited to a rules-based, as opposed to a constitutional, challenge to the admission of the evidence. Id. Accordingly, in declining to reach the merits of Smith’s claim, this court did not decide whether his claim fit within the RAP 2.5(a)(3) exception. In contrast, Kronich’s confrontation clause claim squarely presents the issue of the applicability of RAP 2.5(a)(3). f 13 Kronich’s claim regarding the admission of the DOL certification at his trial is unquestionably constitutional in nature, as it is grounded in his rights under the confrontation clause.

His claim of error may also be deemed manifest in that, had he successfully raised his confrontation clause challenge at trial, the DOL certification would have been excluded. Consequently, the State’s case against Kronich for DWLS would have been fatally undermined. Kronich, 131 Wn. App. at 548 (Baker, J. Pro Tem., concurring in part and dissenting in part). In other words, assuming there was an error, it clearly had “practical and identifiable consequences in the trial of the case.” Stein, 144 Wn.2d at 240.

In accordance with the above analysis, we hold that Kronich’s confrontation clause claim involves a manifest error affecting a constitutional right and is, thus, subject to review despite his failure to properly preserve the issue at trial. RAP 2.5(a)(3). III. Confrontation Clause Violation ¶14 The Sixth Amendment confrontation clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” U.S. Const, amend. VI. This right is made binding on the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.

Ct. 1065, 13 L. Ed. 2d 923 (1965). An alleged violation of the confrontation clause is subject to de novo review. Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999). ¶15 The admission of hearsay frequently raises concerns under the confrontation clause. State v. Monson, 113 Wn.2d 833, 840, 784 P.2d 485 (1989) (citing State v. Parris, 98 Wn.2d 140, 144, 654 P.2d 77 (1982)).

The relevant rules of law in this area were summarized by this court in its recent decision of an analogous case, Kirkpatrick, 160 Wn.2d at 881-82: As an initial matter, hearsay is inadmissible unless it comes within an exemption or exception established by statute or common law. . . . However, the existence of an applicable hearsay exception is not dispositive as to the issue of admissibility at trial. Rather, the Confrontation Clause requires another layer of analysis. Crawford, 541 U.S. at 36; see also Davis v. Washington, 547 U.S. 813, 821-22, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

This second layer of analysis, articulated by the United States Supreme Court in Crawford, 541 U.S. at 68, may be summarized as follows: If the hearsay evidence is “testimonial,” the proponent must show that the declarant is unavailable and that the accused had a prior opportunity to cross-examine the declarant. If the hearsay evidence is not “testimonial,” then such a showing is not required. Id. at 53-54, 68; Davis, 547 U.S. at 821.

Also as noted in Kirkpatrick, 160 Wn.2d at 882, “[t]he Supreme Court has not provided a comprehensive definition of ‘testimonial’ ” (citing Crawford, 541 U.S. at 68; Davis, 547 U.S. at 822). However, the Court has indicated that business records are not “testimonial.” Id. (citing Crawford, 541 U.S. at 56; id. at 76 (Rehnquist, C.J., concurring in judgment)). ¶16 As to public records, the Supreme Court has yet to directly address whether they are generally testimonial or nontestimonial.

However, several of the circuit courts of appeals, as well as other state courts, have reached this issue and concluded that such records are also not testimonial. See Kirkpatrick, 160 Wn.2d at 883 nn.12, 13 (listing circuit courts of appeals and state court decisions on this issue). The present case requires this court to resolve the question of the testimonial nature of a particular type of extant public record, namely, a DOL certification describing the status of a person’s driving privilege. We hold that such a record is not testimonial for purposes of the Crawford analysis. IV.

A DOL Certification Describing the Status of a Person’s Driving Privilege Is Not Testimonial Evidence for Purposes of the Crawford Analysis ¶17 Adopting the approach of Division One of the Court of Appeals in State v. N.M.K, 129 Wn. App. 155, 118 P.3d 368 (2005), the Court of Appeals below analogized the public record at issue to a nontestimonial business record. Kronich, 131 Wn. App. at 546-47. Accordingly, the Court of Appeals determined that there was no confrontation clause violation. Id.

However, the dissent below argued that N.M.K. and similar cases are distinguishable due to the particular language in Kronich’s record describing the status of his license as “not reinstated . . . suspended/ revoked.” Kronich, 131 Wn. App. at 550 (Baker, J. Pro Tern., concurring in part and dissenting in part) (emphasis omitted). ¶[18 We conclude that there is no legal or logical reason to treat a certification indicating that a person’s driving privilege is suspended differently from a record indicating such privilege is not suspended. Cf.

Kirkpatrick, 160 Wn.2d at 886-87 (finding no reason to treat certification of the absence of a driver’s license differently from certification of the existence of a license). The admissibility of such documents under the confrontation clause should not “turn on the content thereof when that content includes only verifiable facts, adduced by a government official in the regular course of his or her duties according to a standardized procedure.” Kirkpatrick, 160 Wn.2d at 887; see also United States v.

Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005) (concluding that a “warrant of deportation is non-testimonial . . . because it is simply a routine, objective, cataloging of an unambiguous factual matter”), cert. denied, 547 U.S. 1056 (2006). ¶19 As noted in Kirkpatrick, 160 Wn.2d at 886, “Washington courts have long recognized the inherent reliability and admissibility of driving records from DOL.” See Monson, 113 Wn.2d 833 (upholding admission of a certified copy of a driver’s record (CCDR) as a public record); State v. Chapman, 98 Wn. App. 888, 892, 991 P.2d 126 (2000) (same); see also State v.

Gaddy, 152 Wn.2d 64, 93 P.3d 872 (2004) (impliedly reaffirming admissibility of DOL records post-Crawford). Particularly relevant here is State v. Smith, 122 Wn.

App. 699, 94 P.3d 1014 (2004), rev’d on other grounds, 155 Wn.2d 496 (2005), wherein the defendant challenged the admissibility of a DOL record virtually identical to the one at issue in the present case, i.e., a document certifying that after diligent search, Smith’s driving privileged appeared to be revoked/suspended. ¶20 In Smith, Division One determined that although not the same as a regular CCDR, the certification was properly admitted by the trial court. Smith, 122 Wn. App. at 704-05. Division One rejected Smith’s argument that the certification contained an impermissible opinion on his guilt. Id.

The Court of Appeals found that the declaration that Smith’s driving privilege “ ‘[w]as suspended/revoked in the first degree’ ” was not an expression of opinion. Id. at 705 (alteration in original). Rather, the records custodian “simply communicated [Smith’s] driving status as reflected in DOL’s computer records.” Id. Similarly, in Chapman, Division Three concluded that a DOL certification indicating the defendant’s driving privilege had been revoked “contain [ed] neither expressions of opinion nor conclusions requiring the exercise of discretion.” 98 Wn. App. at 891 (citing State v. Monson, 53 Wn.

App. 854, 858, 771 P.2d 359, aff’d, 113 Wn.2d 833 (1989)). ¶21 In sum, the jurisprudence of Washington’s appellate courts makes clear that a certified statement as to the status of a defendant’s driving privilege is not an accusatory statement or testimony; it is not testimonial evidence. See Crawford, 541 U.S. at 51 (explaining that the proper focus of confrontation clause is on “ ‘witnesses against the accused ... those who bear testimony... [a]n accuser’ ” (quoting 2 Noah Webster, An American Dictionary of the English Language (1828))).

Furthermore, as noted by this court in Kirkpatrick, 160 Wn.2d at 887-88, to require records custodians to appear at trial whenever the State seeks to admit such documents would not further the underlying purpose of the confrontation clause. Thus, the trial court did not err in admitting the DOL certification at Kronich’s trial. Accordingly, we affirm the decision of the Court of Appeals upholding Kronich’s conviction for third degree DWLS.

Conclusion ¶22 Kronich’s claim that the trial court violated his rights under the confrontation clause by admitting a DOL certification qualifies as a claim of manifest error affecting a constitutional right. Therefore, we reach the merits of his claim, despite his failure to properly preserve the issue below. As to the merits, we hold that the trial court did not err in admitting the DOL certification describing the status of Kronich’s driving privilege because it is not testimonial evidence for purposes of the Crawford analysis.

Accordingly, we affirm the decision of the Court of Appeals upholding Kronich’s conviction for third degree DWLS. Alexander, C.J., and C. Johnson, Madsen, Bridge, Chambers, Owens, and Fairhurst, JJ., concur. U.S. Const, amend. VI. State v. Kirkpatrick, 160 Wn.2d 873, 876, 161 P.3d 990 (2007) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). Id. (citing Crawford, 541 U.S. at 68; Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)). Id. See State v. Kronich, 131 Wn. App. 537, 545-47, 128 P.3d 119 (2006). See ER 902(d).

While Smith was subsequently overruled by this court on other grounds, 155 Wn.2d 496, nothing in this court’s opinion suggests that the Court of Appeals decision on this particular point was erroneous.