 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                       )
                                                )       No. 75626-5-1
                          Respondent,           )
                                                )       DIVISION ONE
        v.                                      )
                                                )       UNPUBLISHED OPINION
 PETER GERALD PICOLET,                          )
                                                )
                          Appellant.            )       FILED: January 16, 2018
                                                )
       APPELWICK, J. — Picolet seeks a new trial on burglary charges based on
violation of his right confront witnesses against him. We affirm.

                                       FACTS

       On the evening of February 26, 2015, police were called by a silent alarm

at a business in Tukwila. When police arrived, they were approached by a man

who claimed to be a live-in security officer. He told police that the warehouse had

been burglarized, that he had been in a physical struggle with the burglar, and he

identified the direction that the suspect had fled.

       The police tracked and apprehended Peter Picolet using a police dog.

While being apprehended, Picolet wrestled the dog to the ground and began

kicking him. The dog was injured and limping after the confrontation.
No. 75626-5-1/2


       Police learned that the man claiming to be a security officer was Michael

Howie, and that Howie was not in any way associated with the business. The State

charged Picolet and Howie with burglary in the second degree, and also charged

Picolet with attempted harming of a police dog.

       The trial court admitted testimony of officers of what they were told by Howie

when they arrived at the scene: that a black or Hispanic burglarl assaulted him

during the burglary, and then fled to the train tracks. The State was not able to

produce Howie for trial, and therefore he was not subject to cross-examination.

       The State argued that its only purpose for offering the evidence was to show

the state of mind of the police officers relative to their decision to use a police dog.

Picolet objected, but the trial court allowed the statement into evidence, because

there was a possibility that Picolet would argue self-defense with respect to the

attempted harming a police dog.

       However, midtrial the trial court clarified its ruling. The trial court agreed

with Picolet that Howie should not be identified as the source of that statement,

because it would prejudice Picolet if the jury learned that a potential accomplice

had implicated him. The State indicated that it was happy to comply with this

limitation, and told the court that it intended to elicit only the facts that the police

were relying on.

       But, one of the business's employees accidentally identified Howie during

direct examination: "the one that I first saw with the police officers was a man

named Michael Howie." Picolet immediately objected and moved for a mistrial.

       1 The trial court took judicial notice that Picolet was not black or Hispanic.

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No. 75626-5-1/3


The trial court denied this motion. But, it granted Picolet's request to redact

references to Howie from the recordings of Picolet's phone calls in the jail that were

to be presented to the jury, because identification of Howie by name would suggest

that the two were working together.

       The jury found Picolet guilty of burglary in the second degree. But, it was

unable to reach a verdict on the charge of attempted harming a police dog. The

State then dismissed this charge. Picolet appeals.

                                   DISCUSSION

       Picolet assigns error to the denial of his motion for a mistrial after a witness

mentioned Howie's name. He claims that this identification of the codefendant as

the maker of the statement telling the police where to locate the burglar, together

with the absence of the codefendant, resulted in a violation of his constitutional

right to confront witnesses against him. We review a trial court's denial of a motion

for a mistrial for abuse of discretion. State v. Hopson, 113 Wn.2d 273, 284, 778

P.2d 1014 (1989).

       However, we review alleged confrontation clause violations de novo. State

v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876(2012). The confrontation clause bars

admission of testimonial statements of a witness who does not appear at trial

unless he or she is unavailable to testify, and the defendant had a prior opportunity

for cross-examination. U.S. CONST., amend. VI; Davis v. Washington, 547 U.S.

813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224(2006).




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No. 75626-5-1/4


       The State argues that the confrontation clause is not implicated, because

the statement was not offered for the truth of the matter asserted. The State

argued that it sought to introduce the evidence solely to show the information that

officers were relying on regarding the use of the police dog:

      [Alt the time they were under the impression -- the police were --
      were operating [under] the impression that there was a burglary in
      the first degree. They had been told that there was a, um -- an attack
      on somebody who was operating as security. Urn, now, that -- that
      ends up being, urn, Mr., uh -- Mr. Picolet's co-defendant, urn, who --
      who police later determined was not in any way associated with the
      business once the key holder arrived. . ..



               So what I would be seeking to admit is the information that
       Officer Frank was relying on in order to make his decisions as an
       officer on how to go about doing his investigation. I.E. [sic] in this
       case, whether or not to use the K-9, urn, Ace. Whether or not Ace
       should be released into the area.
Thus, the State had a clear and proper purpose for offering the evidence from

Howie: countering Picolet's narrative that police were overreacting to the situation.

And, in closing argument, Picolet stated multiple times that police were

overreacting in their response to the false information conveyed by Howie.2

Regardless of whether what Howie said was true or false, the purpose of the



       2 Picolet nevertheless argues that there was no reason to offer the
statement other than for its truth, because there was no self-defense jury
instruction given. But, he cites no authority suggesting that a party is entitled to
counter a claim of self-defense only when a self-defense jury instruction is given.
He cites State v. Edwards, 131 Wn. App.611,614-15, 128 P.3d 631 (2006), where
evidence of why police began an investigation was excluded, because it did not
bear on the elements of the offense, and the only purpose it could have served
was to prove the defendant's guilt. But, here Picolet's theory of the case was that
officers overreacted. It provided a basis for him to claim he acted in self-defense.
The State was entitled to rebut this theory.

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No. 75626-5-1/5


statement was to show what the officers were relying on when deciding to use the

police dog. The evidence was admitted for a proper purpose, and not offered for

the truth of the matter asserted.3

       Picolet argues that even if the statements were not offered for the truth of

the matter asserted, they should nevertheless be subject to exclusion under the

confrontation clause.     In Crawford v. Washington, citing three-decade old

precedent, the United States Supreme Court reiterated that "[t]he [Confrontation]

Clause also does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted." 541 U.S. 36,59 n.9, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004).

       Eight years later—in plurality, concurring, and dissenting opinions—all nine

Justices continued to adhere to this view. In a four justice plurality opinion, Justice

Alito repeatedly discusses this limitation on the confrontation right, first observing

that "this statement was not admitted for the truth of the matter asserted, and it is

settled that the Confrontation Clause does not bar the admission of such

statements." Williams v. Illinois, 567 U.S. 50, 57, 132 S. Ct. 2221, 183 L. Ed. 2d

89(2012)(plurality opinion). The plurality repeats this principle:"We now conclude

that this form of expert testimony does not violate the Confrontation Clause

because that provision has no application to out-of-court statements that are not

offered to prove the truth of the matter asserted." Id. at 57-58. This was later again

       3 The police report indicated that in a separate statement Howie admitted to
being in the building and identified a second offender, Picolet, as being the second
subject. This statement, by contrast, is clearly testimonial. However, the record
does not suggest that the jury heard evidence that Howie confessed and this
statement is not at issue in this appeal.

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No. 75626-5-1/6


repeated. Crawford, Justice Alito wrote,"took pains to reaffirm the proposition that

the Confrontation Clause 'does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted." Id. at 70

(alterations in original)(quoting Crawford, 541 U.S. at 59-60 n.9).

       Justice Thomas, who possesses a singular view of the confrontation clause,

concurred in the judgment but agreed with the foregoing limitation: "As the Court

has explained, g[t]he [Confrontation] Clause. . . does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted."

Williams, 567 U.S. at 104(Thomas, J., concurring)(alterations in original)(quoting

Crawford, 541 U.S. at 60 n.9). That makes five justices who shared this view.

       The other four justices, although in dissent, did also. Id. at 125(Kagan, J.,

dissenting). There is, the dissenters noted, "a limit to the Confrontation Clause

recognized in Crawford. The clause,' we cautioned there, 'does not bar the use

of testimonial statements for purposes other than establishing the truth of the

matter asserted." Id. (Kagan, J., dissenting)(quoting Crawford, 541 U.S. at 59-

60, n.9).

       Thus, a unanimous United States Supreme Court opined that the

confrontation clause applies only to statements offered to prove the truth of the

matter asserted. Following binding United States Supreme Court precedent, we

hold the challenged testimony was not offered to prove its truth and, therefore, is

not subject to a Confrontation Clause challenge.

       Initially, citing Crawford, the Washington Supreme Court recognized this

authority: "[E]ven testimonial statements may be admitted if offered for purposes


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No. 75626-5-1/7


other than to prove the truth of the matter asserted." State v. Davis, 154 Wn.2d

291, 301, 111 P.3d 844 (2005), aff'd by Davis v. Washington 547 U.S. 813, 126 S.

Ct. 2266, 165 L. Ed. 2d 224 (2006).

       However, two years later, our Supreme Court took a contrary view: "[W]e

are not convinced a trial court's ruling that a statement is offered for a purpose

other than to prove the truth of the matter asserted immunizes the statement from

confrontation clause analysis. To survive a hearsay challenge is not, per se, to

survive a confrontation clause challenge." State v. Mason, 160 Wn.2d 910, 922,

162 P.3d 396 (2007). In the six years since the United States Supreme Court

decided the Williams case, the Washington Supreme Court has not disavowed its

contrary holding in Mason. Thus, we must decide this case on alternative bases.

       Picolet argues that the evidence violated the confrontation clause and the

prejudice from the evidence was so overwhelming it could not have been cured by

a limiting instruction. He contends that a mistrial therefore should have been

granted on confrontation clause grounds under Bruton v. United States, 391 U.S.

123, 126, 88 S. Ct. 1620,20 L. Ed. 2d 476 (1968).

       Bruton's codefendant's confession was admitted in a joint trial. Id. at 124-

25. But, the trial court explicitly instructed the jury to use that confession against

only the codefendant who gave the confession. Id. It was not to consider the

confession in determining Bruton's guilt. Id. The Supreme Court held that this

instruction was insufficient, and that the statements violated the confrontation

clause:




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No. 75626-5-1/8

       [T]here are some contexts in which the risk that the jury will not, or
       cannot, follow instructions is so great, and the consequences of
       failure so vital to the defendant, that the practical and human
       limitations of the jury system cannot be ignored. . . . Such a context
       is presented here, where the powerfully incriminating extrajudicial
       statements of a codefendant, who stands side-by-side with the
       defendant, are deliberately spread before the jury in a joint trial. Not
       only are the incriminations devastating to the defendant but their
       credibility is inevitably suspect, a fact recognized when accomplices
       do take the stand and the jury is instructed to weigh their testimony
       carefully given the recognized motivation to shift blame onto others.
Id. at 135-36.

       But, Bruton is distinguishable. First, the statement by Howie was not a

confession and it did not implicate Picolet when it was made. It required additional

later inferences to even associate the statement with Picolet. Second, unlike

Bruton, Picolet was not tried jointly with Howie. Id. at 124. The statement by Howie

at issue here was not as powerful as that in Bruton, and the maker of the statement

did not stand side-by-side with the defendant. Bruton does not compel us to

conclude that Howie's statement should have been excluded. We agree with the

State that here, unlike Bruton, a limiting instruction, if requested, would have been

sufficient.

       Picolet also argues that State v. Berniard, 182 Wn. App. 106, 129-30, 327

P.3d 1290 (2014) requires reversal. There, the trial court admitted a detective's

testimony recalling statements of codefendants that identified Berniard as a

participant in the crime. Id. at 130. The State argued that the testimony's purpose

was explaining the officers' state of mind, and specifically why they were

investigating a man named YG, who was later identified as Berniard. Id. at 127-

28. The statements at issue were taken in the course of interrogations, and the



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No. 75626-5-1/9


State therefore conceded that they were testimonial under Crawford v.

Washington,541 U.S. 36,52, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004). Berniard,

182 Wn. App. at 127.

       In the statements, the codefendants conceded that four participants were

involved in the crime at issue, and indirectly identified Berniard as the fourth

participant. Id. The officer testified that two codefendants "both explicitly identified

the other people involved in the crimes." jçj. at 130. Shortly thereafter, the officer

"testified that he began trying to identify a black male known as YG, whom he later

discovered was Berniard."        Id.   This testimony "Incorporate[d] out-of-court

statements' and was tantamount to telling the jury that. . .[the codefendants]

identified Berniard as one of the participants." Id. (first alteration in original)

(quoting State v. O'Hara, 141 Wn. App. 900, 910, 174 P.3d 114 (2007). reversed

on other grounds, 167 Wn.2d 91, 217 P.3d 756 (2009)). The Court of Appeals

observed that "only the most inattentive juror could have missed the implication

that [the codefendants] had identified Berniard . . . as the fourth participant." Id. at

127. The court reversed, holding that, even though the statements were offered

to show the officers' state of mind (i.e., not for the truth of the matter asserted),

they also directly implicated Berniard as a perpetrator, and were therefore subject

to exclusion under the confrontation clause. Id. at 129-30, 132.

       The circumstances and identification in Berniard are critically different. The

statements by Howie were not taken during interrogation. Howie identified himself

as a victim, gave a faulty racial description of his assailant, and gave the direction

the assailant fled. Howie did not identify Picolet by name, nor by any other


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No. 75626-5-1/10


descriptors that led to his identification. The State was not attempting to prove

Picolet assaulted Howie, was Black or Hispanic, or fled toward the railroad tracks.

Howie did not admit guilt in this statement. Howie was not at trial with Picolet.

Berniard does not require reversal here.

       And, even if any confrontation clause error occurred, it is subject to

harmless error analysis. State v. Watt, 160 Wn.2d 626,633, 160 P.3d 640(2007).

An error is harmless if we are convinced beyond a reasonable doubt that any

reasonable jury would have reached the same result without any error. State v.

Smith, 148 Wn.2d 122, 139,59 P.3d 74(2002). Here, two individuals were visible

on security footage from inside the business. A silent alarm was triggered. Picolet

was located by a police dog that tracked the suspect from the burglary location.

Picolet was located lying down in stagnant swamp water, half-submerged, while it

was raining heavily, at night, in late February. Picolet was in possession of a tool

subsequently identified as missing from the business. Even if Howie's statement

had been excluded for confrontation clause reasons, any reasonable jury would

have found Picolet guilty beyond a reasonable doubt without it.

      We affirm.

                                                                               Cr.

                                                                               Cm.*

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                                                                               •••••••

WE CONCUR:                                                                     C




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