[No. 55167-1-I. Division One. January 9, 2006.]
MICHAEL L. OLVER , as Special Administrator , Respondent , v. JULIE K. FOWLER , as Special Administrator , et AL ., Appellants .
 Parties - Intervention - Timeliness - After Judgment - Factors. A trial court may permit postjudgment intervention in an action under CR 24(a) if intervention is justified by a strong showing considering (1) all of the circumstances, including prior notice; (2) prejudice to the other parties; and (3) the length of and reasons for the delay.
 Parties - Intervention - Matter of Right - Court Rule - Construction - Liberal Construction. CR 24(a), which provides for intervention in an action as a matter of right, is liberally construed to favor intervention.
 Parties - Intervention - Matter of Right - Timeliness - Review - Standard of Review. A trial court's determination that a motion to intervene under CR 24(a) is timely is reviewed for an abuse of discretion. Discretion is not abused if the decision is based on tenable grounds.
 Wills - Probate - Parties - Intervention - Timeliness - After Judgment. A tenable basis exists for granting a postjudgment motion to intervene in a probate proceeding under CR 24(a) where the movant attributes the delay to the fact that his or her interests were being adequately represented by the personal representative until the personal representative's nonintervention powers were revoked and that the movant was not alerted that his or her interests diverged from those of the estate until the trial court had entered its findings of fact and conclusions of law.
 Husband and Wife - Equivalent Family Relationship - Property Rights - In General. The meretricious relationship doctrine operates to recognize property ownership rights acquired by parties to committed intimate relationships. Under the doctrine, all property acquired during the relationship is presumed to be owned by both parties. When the parties separate, the jointly owned property is subject to a just and equitable division by a court. Only property that would have been community property had the parties been married is subject to division. The doctrine seeks to accomplish a fair result between the parties and to avoid the unjust enrichment of either party. Husband and Wife - Equivalent Family Relationship - Property Rights - Division - Separation by Death. Where unmarried, committed intimate partners are separated by death, any property acquired during the relationship that would have been community property had they been married is jointly owned and is
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subject to a just and equitable division by a court. Each partner owns an undivided interest in the joint property. After one partner dies, that partner's share is the estate upon which the inheritance rules apply. Where all of the parties' property is joint property, all such property is subject to equitable division between the parties' estates. The entitlement precedes death. If both parties die in the same accident, a division of property still occurs.
Nature of Action: The administrator of the estate of a decedent who was killed in an automobile accident sought a partition of property between the decedent's estate and the estate of the man with whom the decedent had a committed intimate relationship and who was killed in the same accident.
Superior Court: The Superior Court for King County, No. 04-2-02867-1, Mary Yu, J., on September 8 and October 28, 2004, entered a summary judgment in favor of the plaintiff, ruling that the decedent and her intimate partner had shared a meretricious relationship and that an equitable property division would be determined at trial. The question of what property to inventory to the decedent's estate was submitted to mediation. The mediation resulted in the entry of agreed findings of fact, conclusions of law, and a judgment of disbursement transferring half of the inventoried property to the decedent's estate. An adult survivor of the accident, who had filed a claim against the decedent's partner's estate on behalf of his daughter who also had been injured in the accident, was allowed to intervene in the probate of the decedent's estate and moved to amend the judgment to prevent the transfer of property. The motion was denied.
Court of Appeals: Holding that equity applied to permit a division of property between the estates of the decedent and her intimate partner, the court affirms the judgment of disbursement.
Stanley J. Rumbaugh and Terry J. Barnett (of Rumbaugh, Rideout & Barnett ), for appellants.
Michael L. Olver , for respondent.
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¶1 ELLINGTON, J. - Washington common law applies equitable principles to determine ownership of property acquired during a meretricious relationship. Until they were killed in a car accident, the parties here shared such a relationship, raising a family, running a business, and owning property. The question here is whether equity applies to allocate the division of their property. Washington cases already apply the doctrine after death of one party. We hold it applies where both have died and affirm the probate court's equitable division of property.
¶2 This case arises out of a tragic car accident that left all but three members of two families dead.«1»On July 4, 2003, the Ho and Nguyen families were vacationing together, traveling in a single sport utility vehicle. The driver, Cung Ho, swerved to avoid a rear-end collision with a car ahead of him and collided head on with a truck traveling in the opposite direction. The crash killed six of the vehicle's eight occupants on impact, including Cung, his life partner, Thuy Ho, and their daughter Rebecca. Survivors included the Hos' son Harry, Vu Nguyen, and Nguyen's daughter Dianna.
¶3 Cung and Thuy Ho had lived together for nearly 15 years, since 1988. They had a religious wedding ceremony in 1990, but never legally married. They built a business together, raised their children together, and were jointly
«1»In one family were the father and driver, Cung Van Ho, the mother, Thuy Thi Thanh Nguyen Ho, and two children, Rebecca and Harry. Only Harry survived. In the second family, mother Kathy Nguyen and daughter Dalena were killed. The father, Vu Nguyen and one daughter, Dianna, survived. For the sake of clarity, we refer to each individual in the Ho family by his or her first name and to Vu Nguyen by his last name.
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listed on their automobile insurance policy. Neither owned substantial property before their relationship began, but by 2003 they owned their business, their home, three rental properties, and held assets in several bank accounts. All the property was held solely in Cung's name, and all of the property was initially inventoried in Cung Ho's estate.
¶4 Thuy was the sole beneficiary under Cung's will. Under the Simultaneous Death Act, chapter 11.05 RCW, Thuy is considered to have predeceased Cung, so Cung effectively died intestate.«2»
¶5 The only adult survivor of the accident, Vu Nguyen, filed a claim against Cung's estate on behalf of his surviving daughter Dianna, seeking damages arising from the accident.«3»He also intervened in Cung's probate.
¶6 Michael Olver, as administrator of Thuy Ho's estate, filed this action seeking partition of the property between Cung's and Thuy's estates, apparently to ensure some financial security for the Hos' only surviving child, Harry. In May 2004, the trial court ruled on summary judgment that Cung and Thuy had shared a meretricious relationship and that an equitable property division would be determined at trial.
¶7 Representatives of both estates then participated in a mediation on the question of what property should be inventoried in Thuy's estate. The parties agreed the mediated outcome would be binding. Intervenor Nguyen did not participate, ostensibly because only the inventory itself was at issue. The mediation resulted in entry of agreed findings of fact, conclusions of law, and a judgment of disbursement transferring half the inventory to Thuy's estate.
¶8 Nguyen immediately moved to amend the judgment to prevent the transfer. Though he was permitted to inter
«2» In re Estates of Donnelly , 81 Wn.2d 430 , 433, 502 P.2d 1163 (1972).
«3»Nguyen also filed suit on his own behalf against Thuy's estate, contending that because Thuy and Cung had been partners in a meretricious relationship, her property should be subject to Cung's creditors' claims. The matter remains pending.
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vene in Thuy's probate, his motion to amend the judgment was denied.
¶9 Nguyen appeals the denial of the motion to amend the judgment. Olver cross-appeals the order permitting intervention. Disbursement to Thuy's estate was stayed pending this appeal.
[1-3]¶10 Intervention . Under CR 24(a), an intervenor must make "timely application."«4»After a judgment is entered, intervention requires a strong showing considering all circumstances, including prior notice, prejudice to the other parties, and the length of and reasons for delay.«5»The rule, however, is liberally construed to favor intervention.«6»A trial court's determination of timeliness is reviewed for abuse of discretion.«7»
¶11 Nguyen did not seek to intervene in Thuy's probate until after his motion to amend the judgment drew an objection that he lacked standing to participate. He contended his status as intervenor in Cung's probate gave him standing in any action involving that estate, but he nonetheless moved to intervene in Thuy's estate. He attributed his delay to the fact that the personal representative of Cung's estate had adequately represented his interests until her nonintervention powers were revoked and asserted that he was not alerted that his interests diverged from those of Cung's estate until entry of the findings and conclusions derived from the mediation.
«4»"Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." CR 24(a); Columbia Gorge Audubon Soc'y v. Klickitat County , 98 Wn. App. 618 , 623, 989 P.2d 1260 (1999).
«5» Kreidler v. Eikenberry , 111 Wn.2d 828 , 833, 766 P.2d 438 (1989).
«6» Columbia Gorge , 98 Wn. App. at 623 .
«7» Kreidler , 111 Wn.2d at 832 .
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¶12 After extensive colloquy about the timing of the motion, the court found Nguyen's assertions both credible and adequate and permitted intervention. The decision was based on tenable grounds and was not an abuse of discretion.
[5, 6]¶13 Recognition of Thuy's Property Rights . Because Washington does not recognize common law marriage, the common law has developed a means of equitable distribution of property acquired by unmarried partners in committed intimate relationships«8»(often referred to as meretricious relationships«9»). Courts make a " 'just and equitable' " division of such property,«10»applying community property laws by analogy.«11»All property acquired during the relationship is "presumed to be owned by both parties."«12»
¶14 Equity goes only so far, however. Unlike the division of property upon dissolution of a marriage, when both community and separate property are before the court for equitable division, a court dividing property acquired during a committed intimate relationship may exercise its discretion only as to property that would have been community property had the parties been married.«13»
«8» See, e.g. , Vasquez v. Hawthorne , 145 Wn.2d 103 , 33 P.3d 735 (2001); Pennington v. Pennington , 142 Wn.2d 592 , 14 P.3d 764 (2000); Connell v. Francisco , 127 Wn.2d 339 , 898 P.2d 831 (1995); In re Marriage of Lindsey , 101 Wn.2d 299 , 678 P.2d 328 (1984); In re Meretricious Relationship of Sutton , 85 Wn. App. 487 , 933 P.2d 1069 (1997).
«9»Various courts have sought an alternative to the phrase "meretricious relationships" to describe relationships which meet the legal standards for equitable property distribution. See Peffley-Warner v. Bowen , 113 Wn.2d 243 , 246 n.5, 778 P.2d 1022 (1989); In re Relationship of Eggers , 30 Wn. App. 867 , 871 n.2, 638 P.2d 1267 (1982). We share earlier courts' distaste for the antiquated term with its negative connotations, and substitute the phrase "committed intimate relationship."
«10» In re Marriage of Lindsey , 101 Wn.2d 299 , 304, 678 P.2d 328 (1984) (quoting Latham v. Hennessey , 87 Wn.2d 550 , 554, 554 P.2d 1057 (1976)).
«11» Connell , 127 Wn.2d at 351 ; Lindsey , 101 Wn.2d at 306 -07; Latham , 87 Wn.2d at 554 .
«12» Connell , 127 Wn.2d at 350 -51.
«13» Id. at 349-50.
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¶15 The trial court found that Cung and Thuy Ho shared a meretricious relationship from 1988 or 1989 until their deaths in 2003. Nguyen does not challenge this finding. Rather, Nguyen asserts the doctrine permitting equitable division of property has never been applied where the relationship ends with death and that the rationale underlying the doctrine does not apply in such circumstances. A review of the cases, however, reveals that Nguyen is mistaken on both counts.
¶16 No Washington court has refused to apply the doctrine on grounds that one or both partners has died. The most recent Supreme Court ruling on this subject, Vasquez v. Hawthorne ,«14»involved a claim by a surviving partner against the estate of the man with whom he lived and shared an intimate romantic relationship for many years. The Washington Supreme Court remanded for trial to determine whether their relationship constituted a meretricious relationship, a partnership, or an equitable trust.«15»Although two justices argued that the meretricious relationship doctrine should not apply after death of a partner, the majority drew no such distinction.«16»The court's ruling allowed the trial court on remand to award an equitable division of property to the surviving partner if a committed intimate relationship was found to have existed. Several other cases have involved determinations made after the death of one partner.«17»
«14»145 Wn.2d 103 , 33 P.3d 735 (2001).
«15» Id. at 107.
«16» Id. at 108-09, 114 (Alexander, C.J. and Sanders, J., concurring). The justices relied upon Peffley-Warner for the proposition that the doctrine does not apply after death. Id. at 109, 114. We observe that in Peffley-Warner , the doctrine was applied in the probate proceedings. The question before the Supreme Court involved only eligibility for statutory benefits reserved to widows, not the equitable doctrine governing property ownership by committed intimate partners. Peffley-Warner , 113 Wn.2d at 245 . We discuss Peffley-Warner later in this opinion.
«17» See Creasman v. Boyle , 31 Wn.2d 345 , 196 P.2d 835 (1948), overruled by In re Marriage of Lindsey , 101 Wn.2d 299 , 678 P.2d 328 (1984) and Vasquez v. Hawthorne , 99 Wn. App. 363 , 994 P.2d 240 (2000). See also Latham , 87 Wn.2d at 551 ; Peffley-Warner , 113 Wn.2d at 244 .
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¶17 None of these courts showed any reluctance to apply the doctrine after death, and a review of the development of the doctrine demonstrates there is no such limitation.«18»
¶18 Washington first recognized a nontitleholder's rights in property accumulated by joint efforts in the "innocent spouse" cases, involving partners who believed they were married.«19»Initially, the doctrine applied only where the parties chose to end their relationship.
¶19 In In re Brenchley's Estate ,«20»the Washington Supreme Court announced that an equitable doctrine available to living partners should also be available where one party has died. The Brenchley court held that a woman who believed she was married to her deceased long-time domestic partner was entitled to an equitable property division, reasoning that since the property would have been divided equitably had the deceased man still lived, the man's heirs could not have "better rights" simply because of his death.«21»
¶20 In time, a similar equitable doctrine emerged to recognize property entitlements of partners fully aware of their unmarried status.«22»When first presented with the question, our Supreme Court ruled that in the absence of evidence to the contrary, whichever partner held title to the property would be presumed its rightful owner.«23»This rule,
«18»The parties debate the import of In re Estate of Thornton , 81 Wn.2d 72 , 499 P.2d 864 (1972) and Humphries v. Riveland , 67 Wn.2d 376 , 407 P.2d 967 (1965). Both cases involved unmarried committed partners and a surviving partner who advanced alternative equitable theories, including implied contract, implied trust, partnership, and joint venture, as the basis for equitable property distribution. Since neither court relied upon the theory of meretricious relationship equity, the cases do not assist us in answering whether the doctrine applies here. Thornton , 81 Wn.2d at 79 (implied partnership); Humphries , 67 Wn.2d at 382 (contract).
«19» Buckley v. Buckley , 50 Wash. 213 , 216, 96 P.1079 (1908); see also Knoll v. Knoll , 104 Wash. 110 , 114, 176 P. 22 (1918).
«20»96 Wash. 223 , 226, 164 P. 913 (1917).
«22» Lindsey , 101 Wn.2d at 304 .
«23» Creasman , 31 Wn.2d at 357 .
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labeled the " Creasman presumption," was often cited, rarely applied, and roundly criticized.«24»
¶21 In In re Lindsey , the court recognized that "[i]n application, the Creasman presumption has been restricted to its own particular facts - one party dead and the other silenced by the deadman's statute,"«25»with the result that the presumption "made the law unpredictable and at times onerous."«26»The court formally overruled the Creasman presumption and adopted a general equitable theory of joint ownership of property acquired during the relationship, regardless of titleholder.«27»
¶22 The most direct effect of removing the Creasman presumption was to permit equity to divide property after death of one partner without reference to title.
¶23 The two justices who concurred in Vasquez relied on Peffley-Warner v. Bowen «28»for the proposition that the doctrine does not apply after death. As indicated above, the majority in Vasquez was unmoved by this argument. It is useful, however, to review Peffley-Warner to see whether it has any different force here.
¶24 After the death of Sylvan Warner, a Spokane probate court made an equitable distribution of the parties' joint property to his meretricious relationship partner. But the court denied her claim for statutory surviving spouse benefits under RCW 11.52.010 .«29»
«24» See, e.g ., Latham , 87 Wn.2d at 555 (" ' Creasman should be overruled and its archaic presumption invalidated.' " (quoting In re Estate of Thornton , 81 Wn.2d 72 , 79, 499 P.2d 864 (1972))).
«25» Lindsey , 101 Wn.2d at 302 ; see also Poole v. Schrichte , 39 Wn.2d 558 , 563, 236 P.2d 1044 (1951) ("We have on but three occasions actually left the parties to a relationship known by both parties to be meretricious, in the position in which they had placed themselves. In each instance one of the parties . . . was dead, which . . . suggests that the difficulty of producing evidence of contrary intent is the reason [for that result]." (citations omitted)).
«26» Lindsey , 101 Wn.2d at 304 .
«28»113 Wn.2d 243 , 253, 778 P.2d 1022 (1989).
«29» Id. at 252.
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¶25 Peffley-Warner then filed a claim for social security widow's benefits, contending that she qualified as the widow of Warner under the Social Security Act " because she would be entitled to a wife's share of Mr. Warner's personal property under Washington laws of intestate devolution ."«30»Her claim was denied, and ultimately the Ninth Circuit certified this question to the Washington Supreme Court: "Would Washington law afford a person in Ms. Warner's situation the same status as that of a wife with respect to the intestate devolution of Sylvan Warner's personal property?"«31»Our court held that "a surviving partner in a 'meretricious' relationship does not have the status of a widow with respect to intestate devolution of the deceased partner's personal property."«32»
¶26 The court made clear that a meretricious relationship partner does not take under the intestacy statutes:
[B]ecause appellant is not a "spouse," she cannot receive a share of the estate of Sylvan F. Warner under the intestate succession laws of the state of Washington.
. . . The division of property following termination of an unmarried cohabiting relationship is based on equity, contract or trust, and not on inheritance.
Appellant Marilyn E. Peffley-Warner is neither a surviving spouse nor an heir to decedent Sylvan F. Warner. She is therefore not entitled to share in the decedent's estate under Washington laws of intestate succession, RCW 11.04.015 .«33»
The court's ruling adhered to the statutory scheme and to the limits of the meretricious relationship doctrine, which has never conferred spousal status.«34»
¶27 But we do not look to the intestacy statutes to determine what the decedent owned. Thuy's estate does not
«30» Id. at 245 n.3 (emphasis added).
«31» Id. at 244 (footnote omitted).
«32» Id. at 253.
«33» Id. (footnote and citation omitted).
«34» See Connell , 127 Wn.2d at 349 -50 (only joint property, not personal property, available for equitable distribution).
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seek a widow's share, nor assert any claim on her behalf. It seeks only recognition that at the time of her death, Thuy owned certain property. The court identified that property by analogy to community property principles. This is the property upon which the statutes will ultimately operate.
¶28 Each spouse in a marriage has a present, vested, undivided, one-half interest in the community property.«35»The death of one spouse does not generate a new right or interest in the surviving spouse; rather, the survivor already owns half the property, and that interest is neither created nor extinguished by the other spouse's death.«36»At the moment of death, the community ends and the property becomes the separate property of each.«37»Thus, when a married person dies, the surviving spouse immediately owns half the community property as his or her separate property. This is true whether or not the decedent dies intestate.«38»
¶29 Applying community property principles by analogy, each partner in a meretricious relationship owns an undivided interest in the joint property.«39»After a partner dies, that partner's share is the estate upon which inheritance rules will operate. Because all the Hos' property was joint property, all their property is equitably divided between their estates.
¶30 Nguyen contends the result should be different here because both partners died. He argues that the doctrine's purpose is personal to the partners, and its benefits must be claimed by them personally. But the doctrine does not operate to alter property ownership at the moment the relationship ends; rather, it operates to recognize ownership
«35» Lyon v. Lyon , 100 Wn.2d 409 , 413, 670 P.2d 272 (1983).
«36» Id. ; In re Estate of Coffey , 195 Wash. 379 , 382, 81 P.2d 283 (1938).
«37» In re Estate of Politoff , 36 Wn. App. 424 , 426-27, 674 P.2d 687 (1984).
«38» See id. (decedent spouse owned only one-half of the community funds at the moment of her death); RCW 26.16.030 (1) ("Neither spouse shall devise or bequeath by will more than one-half of the community property.").
«39» See Vasquez , 145 Wn.2d at 107 .
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rights acquired during the relationship. Thuy's entitlement preceded her death and is not overcome or diminished by the mere circumstance that she did not survive the accident. Death does not divest her of her property just because her ownership was not judicially recognized during her life.
¶31 It is certainly the case that the doctrine seeks to accomplish a fair result between the parties and to avoid unjust enrichment of one partner.«40»We reject Nguyen's theory that any need for such fairness ends with death. The right to devise one's property and thereby transfer accumulated wealth is one of our society's most firmly guarded individual rights. There is no equitable reason, as between the parties, to cause a different result where a party no longer has personal need of the property. Unjust enrichment does not become more fair because one or both of the parties dies.
¶32 Nor does the interest of third parties affect the analysis. Nguyen alleges that Thuy Ho's estate sought partition in an attempt to place half of the Hos' joint assets beyond the reach of Cung Ho's creditors. This argument is not germane. The only question here is whether the property is subject to equitable division.«41»
¶33 We hold that where unmarried, committed intimate partners are separated by death, as when they separate during life, any property acquired during the relationship that would have been community property is jointly owned and subject to a just and equitable division. The trial court
«40» See Connell , 127 Wn.2d at 349 ("property acquired during the relationship should be before the trial court so that one party is not unjustly enriched at the end of such a relationship") (citing Peffley-Warner , 113 Wn.2d at 252 )); Peffley-Warner , 113 Wn.2d at 252 ( Lindsey "recognized the contributions made by both parties to the purchase and maintenance of the property and, through an equitable division of the property . . . sought to avoid unjust enrichment of one partner at the expense of the other").
«41»Whether tort claims against one unmarried partner (Cung) may be made against the estate of the other partner (Thuy) on a theory of joint tort liability is an issue raised tangentially in Nguyen's brief and oral argument. The trial court did not rule on this question, and we do not address it. RAP 2.2(a)(1). As indicated in note 3 above, the issue is pending in Nguyen's suit against Thuy's estate.
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correctly applied this rule in its judgment of disbursement. We affirm.\
COX , C.J., and APPELWICK , J., concur. No. 53914-1-I. Division One. September 16, 2005.]
THE STATE OF WASHINGTON , Respondent , v. VIDAL LEE VINCENT , Appellant .
 Criminal Law - Evidence - Hearsay - Right of Confrontation - Statement of Codefendant - Redaction - Sufficiency - Determination. Whether an incriminating out-of-court statement made by a nontestifying defendant in a joint trial that is redacted to eliminate reference to the other defendant may be admitted without violating the other defendant's Sixth Amendment right to confront adverse witnesses depends on whether the redaction is sufficient to protect the other defendant from being prejudiced by a statement that cannot be tested by cross-examination; i.e., the redaction must be sufficient to prevent the jury from concluding that the redacted reference is obviously to the other defendant. Otherwise, it would be impossible for the jury to comply with the court's limiting instruction to consider the evidence only against the defendant who made the statement.
 Criminal Law - Evidence - Hearsay - Right of Confrontation - Statement of Codefendant - Redaction - Sufficiency - Name Replaced With Pronoun or "The Other Guy". An incriminating out-of-court statement made by a nontestifying defendant in a joint trial that is redacted in a manner that replaces references to the other defendant with a pronoun or "the other guy" violates the other defendant's Sixth Amendment right to confront adverse witnesses if there were only two participants in the crime and the only reasonable inference the jury could draw from the statement is that the other defendant was "the other guy." Criminal Law - Right To Confront Witnesses - Review - Harmless Error - In General. The erroneous admission of hearsay testimony in a criminal trial in violation of a defendant's Sixth Amendment right to confront adverse witnesses is subject to constitutional harmless error analysis. The error is harmless if the evidence of the defendant's guilt is overwhelming and the violation is so insignificant by comparison that a court is persuaded, beyond a
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reasonable doubt, that the violation did not affect the verdict. Factors bearing on this inquiry include (1) the importance of the testimony to the State's case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the State's case.
 Criminal Law - Trial - Misconduct of Prosecutor - Argument - Waiver - Failure To Object - Test. A prosecutor's improper remark to which the defendant did not object does not require reversal unless the remark was so flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.
Nature of Action: Prosecution of two codefendants for one count of attempted first degree murder, one count of first degree assault, two counts of second degree assault, one count of drive-by shooting, and one count of unlawful possession of a firearm.
Superior Court: The Superior Court for King County, No. 03-1-08082-5, Steven C. Gonzalez, J., on February 27, 2004, entered a judgment on a verdict finding both defendants guilty after vacating the first degree assault convictions on double jeopardy grounds.
Court of Appeals: Holding that an out-of-court statement made by the nonappealing codefendant who did not testify at trial that was admitted into evidence with references to the appealing codefendant redacted and replaced with a pronoun or "the other guy" violated the appealing codefendant's Sixth Amendment right to confront adverse witnesses, but that the error was harmless, the court affirms the judgment in the appealing defendant's case.
Vidal Lee Vincent , pro se .
Gregory C. Link (of Washington Appellate Project ), for appellant .
Norm Maleng , Prosecuting Attorney, and Lee D. Yates , Deputy, for respondent .
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¶1 ELLINGTON,J. - Two drive-by shootings led two brothers to a joint trial and multiple convictions. Vidal Vincent argues the admission of his nontestifying brother's statements violated his rights under the confrontation clause. He also argues that the court erred in denying his motions to sever, that there was insufficient evidence to support the verdict on the charge of drive-by shooting, that admission of the nontestifying victim's statements violated his federal and state confrontation clause rights under Crawford v. Washington ,«1»and that his convictions for drive-by shooting and assault in the second degree violate double jeopardy. Finally, in a statement of additional grounds, Vincent argues a photomontage was impermissibly suggestive.
¶2 We hold that Vincent's confrontation clause rights were violated by admission of his brother's statements. This violation, however, was harmless beyond a reasonable doubt because other evidence against Vincent was overwhelming. Vincent's confrontation clause rights were also violated by admission of the nontestifying victim's statements, but this error too was harmless, for the same reason. We reject Vincent's other contentions and affirm.
¶3 On August 9, 2003 at approximately 7 P.M ., 9-year-old Jared Hester and 12-year-old Francisco Gutierrez were riding their bikes in south Seattle after a "read and play" session at their church. A green Cadillac approached and slowed down, and the passenger fired a handgun in the direction of the two boys. The bullet hit the sidewalk next to their feet.
¶4 Later that evening, 16-year-old Shannon Thomas was standing on a corner on Rainier Avenue South. A green
«1»541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
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Cadillac drove up with its passenger lying fully reclined. The driver reached across and fired one shot at Thomas, hitting him in the chest. Jerome Robinson was standing behind Thomas, and the bullet grazed his hand.
¶5 Thomas was taken to Harborview Medical Center. He had lost 40 percent of his blood and was in shock. Surgery was required to stem the bleeding into Thomas's chest. Part of his lung was removed. In the recovery room, he told his mother that Vinson Carter-Vincent was the shooter. Thomas recovered, but disappeared during the trial and did not testify.
¶6 Three days after the shooting, Detective Bergmann visited Thomas in the hospital. Although Thomas was initially uncooperative, he identified the driver of the car by pointing at a montage photo and provided the name of the passenger. Bergmann testified at trial that after his interview with Thomas, Vidal Vincent became the second suspect in the shooting.
¶7 Jared and Francisco each identified Vidal Vincent as the person who fired at them. They also described the gun and the green Cadillac, which had a damaged trunk. In Vinson Carter-Vincent's apartment, police found a manual for a Glock semi-automatic handgun matching the boys' description. Multiple witnesses identified the green Cadillac as Vinson Carter-Vincent's car and identified Vinson Carter-Vincent as the driver and Vidal Vincent«2»as the passenger before and during the shooting of Thomas.
¶8 The State charged Vidal and Vinson with first degree attempted murder and first degree assault in the shooting of Thomas; two counts of second degree assault, arising out of the shot fired at the boys; drive-by shooting; and unlawful possession of a firearm.
¶9 While being held in the King County jail before trial, Vinson occupied a cell near Jason Speek and talked to Speek about shooting Thomas. The State sought to intro
«2»Because it is necessary to refer to Vidal's brother, we use their first names hereafter, for the sake of clarity.
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duce Vinson's statements to Speek. Vidal objected and sought severance, arguing that Speek's testimony would incriminate him. The court denied the motion to sever and entered a detailed ruling permitting Speek's testimony but requiring that Speek omit all reference to Vidal and refer only to "another person."«3»
¶10 Neither Vidal nor Vinson testified at trial. Vinson's girl friend and her mother both testified the brothers had been with them the entire evening. Speek testified in detail about Vinson's account of the shooting of Thomas and the surrounding events, including repeated references to another occupant of the Cadillac, referred to as "the other guy." The court instructed the jury that it could not consider an incriminating out-of-court statement made by one defendant as evidence against the other defendant.
¶11 The jury convicted both defendants on all charges. The trial court vacated the first degree assault convictions on double jeopardy grounds.
¶12 Admission of Codefendant's Statement . Citing Bruton v. United States ,«4»Vidal argues that his Sixth Amendment right to confront the witnesses against him was violated by the introduction of Vinson's statements to Speek. He also argues there was insufficient evidence to support his conviction as an accomplice to the attempted murder of Thomas. We agree with Vidal that the statements were improperly admitted, and we discuss these two issues together because the prejudice to Vidal, if any, occurred in the jury's consideration of the shooting of Thomas.
¶13 Bruton involved a joint trial in which the confession of one defendant incriminated both.«5»The defendant who
«3»Clerk's Papers at 89.
«4»391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
«5» Id . at 124.
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had made the statement did not testify. The trial court admitted the statement without redaction and instructed the jury to consider the statement only against the defendant who made it. The United States Supreme Court held that, despite the limiting instruction, introduction of such evidence at a joint trial violates the nonconfessing defendant's Sixth Amendment right to cross-examination:
[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 accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.«6»
¶14 Since Bruton , the United States Supreme Court has twice addressed the admission of such statements where an attempt has been made to redact the statement to eliminate reference to the other defendant. In Richardson v. Marsh ,«7»the confession of the nontestifying codefendant was redacted to omit all indication that the defendant was present during an incriminating conversation between two people in a car. The defendant then testified she had been in the car at the time. The Supreme Court held that admission of one defendant's confession, redacted to omit all reference to another defendant, does not, on its face, violate the other defendant's Sixth Amendment confrontation rights, even where the statement later becomes incriminating when linked with other evidence.«8»The Court left for another day the admissibility of a confession where the second defendant's name is replaced by a pronoun.«9»
«6» Id . at 135-36 (citation omitted).
«7»481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987).
«8» Id . at 208.
«9» Id . at 211 n.5.
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¶15 In Gray v. Maryland ,«10»six men participated in beating a man to death. One participant, Bell, confessed, detailing his participation and that of Gray (as well as another man who later died). At the trial of Bell and Gray, Bell's statement was admitted with Gray's name replaced by the word "deleted" or a blank space. The Supreme Court held these redactions insufficient to comply with Bruton , because the word "deleted" or a blank "obviously refer[s] directly to someone, often obviously the defendant, and . . . involve[s] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial."«11»The court noted that the redacted statement could have used the phrase "other guys," which would not have pointed to Gray because there were multiple participants.«12»
[1, 2]¶16 Washington cases have also addressed this issue. In State v. Vannoy ,«13»the codefendants' statements described participants driving around in a car after the crime. The statements were redacted so that names were replaced by "we." Police had observed all the defendants in the car, however, and the court held the redaction violated Bruton , because the jury "could readily conclude that defendant Thomas Vannoy was included in the 'we's' of the codefendants' statements."«14»But in State v. Medina ,«15»a redaction replacing two codefendants' names with "other
«10»523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998).
«11» Id . at 196.
«12» Id . at 196-97.
«13»25 Wn. App. 464 , 610 P.2d 380 (1980).
«14» Id . at 474. In similar circumstances, the Supreme Court of Arkansas recently concluded that admission of a nontestifying codefendant's statement violated Bruton even though the statement was redacted to use "him" and "he." State v. Jefferson , ___ S.W. 3d ___, 2004 WL 2609803, 2004 Ark. LEXIS 726 (Ark. 2004). The robbery involved three participants. One pleaded guilty and was named in the confession, as was the confessor; the codefendant was referred to as "he" or "him." The court concluded that the redacted statement violated Bruton because the jury could easily infer from the fact there were three participants, two of which were identified, that "he" or "him" was the codefendant.
«15»112 Wn. App. 40 , 48 P.3d 1005 (2002).
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guys," "the guy," and "one guy" was upheld because, as redacted, the statement did not incriminate any individual:
The statement was altered in such a way that it became so ambiguous that it is impossible to track the activities of any particular "guy" referenced in the statement. . . . Although three persons were charged, the testimony established that there were approximately six individuals involved. Therefore, the references to "the guys" and "a guy" did not create the inference of identification of [the codefendants].«16»
¶17 The State contends that under Gray and Medina , replacing a defendant's name with a pronoun or a phrase such as "the other guy" satisfies Bruton under any circumstances. We disagree with this reading of the cases. The question is not the precise words used in a redaction, but whether the redaction is sufficient to protect the codefendant from the prejudice of a statement he cannot cross-examine - that is, to prevent the jury from concluding the redacted reference is obviously to the codefendant, making it impossible for the jury to comply with the court's instruction to consider the evidence only against the defendant who made the statements.
¶18 Here, there were only two participants in the crimes and only two defendants. On direct examination, Speek testified repeatedly that there was only one "other guy" with Vinson before, during, and after the shooting of Thomas. As in Vannoy , the only reasonable inference the jury could have drawn from Speek's references to the "other guy" was that the other guy was Vidal. The redaction thus failed in its purpose, and admission of Speek's testimony in the joint trial violated Vidal's rights under Bruton .
¶19 A confrontation clause error is harmless if the evidence is overwhelming and the violation so insignificant by comparison that we are persuaded, beyond a reasonable
«16» Id . at 51. See also State v. Herd , 14 Wn. App. 959 , 964, 546 P.2d 1222 (1976) (codefendant's statement redacted to refer to "another" did not violate Bruton where there were two codefendants but four participants in the crime); State v. Ferguson , 3 Wn. App. 898 , 905-06, 479 P.2d 114 (1970) (no violation of Bruton where codefendant's statement did not name codefendant as an accomplice or reasonably suggest that there was an accomplice).
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doubt, that the violation did not affect the verdict.«17»Considerations include the importance of the witness's testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case.«18»
¶20 Speek's testimony contributed evidence of Vinson's premeditated intent in the shooting of Thomas and offered the most complete explanation for the brothers' activities on the day of the crimes. Speek testified that earlier in the day, Vinson and "the other guy" had been involved in a gang fight, "the other guy" had been fist-fighting with "D-Dub" gang members near the QFC, and Vinson had tried to shoot a D-Dub member but "the other guy" had been in the line of fire. Speek testified that Vinson and "the other guy" then left the scene to go to a barbeque to get more people and guns, and when they returned to the area of the QFC, Vinson shot Thomas because he was a D-Dub.
¶21 There was, however, ample other evidence that Vidal facilitated Vinson's shooting of Thomas. One witness saw Vidal in the passenger seat of the green Cadillac an hour or two before the shooting of Thomas. Another saw him in the Cadillac just a few minutes before the shooting. The Cadillac was described as driving around the QFC parking lot with the passenger hanging out of the window, looking around. A further witness, Kevin Williams, was standing on a curb near the QFC. Williams knew the brothers, although he could not always tell them apart. He saw them in the green Cadillac as it left the QFC parking lot and stopped at a light. At the light, the Cadillac was in the curb lane near Williams. The passenger seat was "laid
«17» See Schneble v. Florida , 405 U.S. 427, 430, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972) ("In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error."); Harrington v. California , 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).
«18» Schneble , 405 U.S. at 432.
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all the way back."«19»The Cadillac then crossed the intersection and stopped at the far corner. The driver sat looking at everybody on the corner with his arm draped over the passenger, pointing the gun out the passenger side window. The Cadillac had been fully stopped for about five seconds when the shot was fired.
¶22 Witnesses also testified about a gang-related motive for the shooting, about rivalries between Seattle gangs, and about Vidal's association with members of the Low Profile gang. One witness testified that Thomas looked like his brother, Nate, who was a Hoover Crip, and that either Vinson or Vidal had previously fought with Nate. A bus driver saw the Cadillac leave the scene of the shooting at a high rate of speed, prompting him to call 911.
¶23 The question is whether this is such overwhelming evidence that the introduction of Speek's statements in the joint trial can be deemed harmless to Vidal.«20»The State suggests this question is answered by In re Personal Restraint of Sarausad ,«21»in which we held that evidence sufficient to convict a defendant as an accomplice to a drive-by shooting is sufficient to convict him as an accomplice to intentional murder.«22»But Sarausad is inapposite. There, on collateral review, we held the evidence was
«19»Report of Proceedings (Jan. 21, 2004) at 68. Vidal contends that this was "no more an act of complicity than an act of self preservation, an instinctive response to the discharge of a firearm inches away." App. Br at 16. But Vidal had adopted his reclined position before Vinson leaned across him, and his position required moving the seat, not just his body. Moments before, Vidal was seen leaning out the car window looking around. His reclined posture could have no likely purpose except to facilitate Vinson's shot out the window.
«20»Vidal argues that the harmless error doctrine does not apply because the right to confrontation under the Washington Constitution is absolute. However, Vidal does not provide an analysis under State v. Gunwall , 106 Wn.2d 54 , 720 P.2d 808 (1986), contending that State v. Foster , 135 Wn.2d 441 , 957 P.2d 712 (1998) addresses all confrontation clause issues under the state constitution. We rejected this argument in State v. Mason , 127 Wn. App. 554 , ¶¶ 30-31, 110 P.3d 245 (2005). Therefore, in the absence of a Gunwall analysis, we reject Vidal's state constitutional argument.
«21»109 Wn. App. 824 , 39 P.3d 308 (2001).
«22»Vidal argues that Sarausad was wrongly decided. Because our disposition of this case does not require it, we do not revisit Sarausad .
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sufficient if it showed defendant's knowledge that his actions would facilitate shooting a gun from a car window towards people.«23»Here the question is whether admission of Speek's testimony was "too damaging and prejudicial" to be deemed harmless beyond a reasonable doubt.«24»
¶24 The principle effect of Speek's testimony was to show Vinson's premeditated intent and evidence of Vidal's ("the other guy's") complicity. Vidal, however, did not have to share Vinson's premeditated intent; he needed only to know his conduct would facilitate Vinson's shooting of Thomas.«25»As to that question, and as to Vidal's complicity, Speek's testimony was merely cumulative of other, overwhelming evidence - multiple witnesses provided the same context evidence and established Vidal's participation. We are therefore persuaded that Speek's testimony was harmless beyond a reasonable doubt.
¶25 Vidal next contends that in questioning Speek and in closing argument, the prosecutor improperly encouraged the jury to use Vinson's statements against Vidal, in direct violation of his Sixth Amendment right to confrontation under Richardson , 481 U.S. 200. Vidal argues that the prosecutor improperly asked Speek whether Vinson said he returned to a barbeque with the same person he had been with earlier. But this question and answer were not the subject of any objection and cannot be said to be flagrant and ill intentioned misconduct.«26»
¶26 As to closing, Vidal contends the prosecutor drew a direct link from Speek's testimony to Vidal when he said, "We also have the actions of the other people in the car, the
«23» Sarausad , 109 Wn. App. at 836 .
«24» Vannoy , 25 Wn. App. at 475 ; Schneble , 405 U.S. at 430.
«25» See State v. Roberts , 142 Wn.2d 471 , 512, 14 P.3d 713 (2000); State v. Cronin , 142 Wn.2d 568 , 579, 14 P.3d 752 (2000).
«26» See State v. Russell , 125 Wn.2d 24 , 86, 882 P.2d 747 (1994) (failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury).
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other person, Vidal."«27»Again, Vidal made no objection. In context, these remarks have no clear link to Speek's testimony. Rather, the prosecutor argued the inferences to be drawn from eyewitness testimony describing Vidal's presence and behavior in the car. There was no misconduct.
¶28 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040 .\
COX , C.J., and KENNEDY , J., concur.Reconsideration denied January 19, 2006.
«27»RP (Jan. 29, 2004) at 34.