Blair Russ
Just last month, Division One of the Court of Appeals curbed the “manifest injustice” doctrine by its decision in State v. Hayes. The manifest injustice doctrine is the quintessential Constitutional life ring for the accused. This doctrine allows the appellate Court to review unchallenged issues at trial where the unchallenged issue is both obvious and based on our State or Federal Constitutions. This common sense rule precludes the government from trampling on the Constitutional rights of those helpless defendants who have retained counsel unfamiliar with basic Constitutional Law. However, this doctrine is not applied where counsel clearly recognizes the Constitutional issue, but consciously declines to assert the client’s Constitutional rights for tactical or strategic reasons.
State v. Hayes involved the use of hearsay and the Confrontation Clause. Hayes’ girlfriend accused him of beating her up and strangling her outside a club. She reported this allegation to the police and then subsequently to various medical personal who treated her injuries. Hardly uncommon to the domestic violence world, Hayes’ girlfriend later told the prosecutor that she made the story up to get back at Hayes for an incident of infidelity. Hayes’ girlfriend did not come to trial and the prosecution tried to offer her statements made the treatment providers. Hayes’ trial counsel did not object to this testimony; and did not raise Hayes’ Sixth Amendment right to confront his accuser.
Following his conviction, Hayes’ appellate attorney argued that Hayes was denied an opportunity to confront his girlfriend, despite her statements being used as evidence against him. Although this argument was not raised at the trial level, the Court of Appeals applied the manifest injustice doctrine reasoning that the basis for the appropriate objection was significant and implicated an obvious Constitutional principle. However, the Court of Appeals declined to apply the doctrine because Hayes’ counsel both recognized and consciously decided not to raise the issue. The Court of Appeals reasoned that Hayes gained a tactical advantage from permitting the hearsay statements of medical providers, as he was able to elicit inconsistencies in her accounts given to various medical personal and a police officer. Therefore, the Court did not review the issue and Hayes’ conviction was affirmed.
State of Washington v. Cordarrel Robert-Louis Hayes, Court of Appeals of Washington, Division I, No. 65622-8-I, December 19, 2011