State Of Washington v. Bryan M. Hallmeyer ( 2017 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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STATE OF WASHINGTON,
No. 76034-3-1 •
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BRYAN M. HALLMEYER, UNPUBLISHED OPINION C:)
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Appellant. FILED: January 23, 2017
SPEARMAN, J. — An attorney's conduct is not deficient if it can be
considered a legitimate trial tactic. Bryan M. Hallmeyer contends that he received
ineffective assistance of counsel because his attorney did not call a witness. But
the attorney informed the court that not calling the witness was a strategic
decision based on the witness's hostility to the defense. Because the decision
was a legitimate trial tactic, counsel's performance was not deficient.
FACTS
A police officer was on patrol at about 11:00 p.m. in a marked police
vehicle. He observed the driver of another car, Lyle Lippe!, look at the police car
and then make an abrupt turn. The officer drove around the block and came
upon Lippel's car stopped in the middle of the road with the engine running and
both front doors open. Lippel and his passenger, Hallmeyer, were both out of the
car and appeared to be changing places.
No. 76034-3-1/2
Lippel spoke with the officer and consented to a search of the car. The
officer found a substantial quantity of heroin and methamphetamine as well as
paraphernalia associated with drug sales. The officer also found two loaded
handguns, an AR-15 rifle, ammunition, and a bulletproof vest. The officer placed
both Lippel and Hallmeyer under arrest.
Lippel entered a plea to charges against him. Hallmeyer was tried on
charges of possession of controlled substances with intent to distribute.1
Hallmeyer argued that the drugs and paraphernalia belonged to Lippel and he
did not know they were in the car. He admitted owning one of the handguns and
stated that he was carrying it because he had recently been the victim of a crime.
Hallmeyer moved to admit Lippel's statements to the arresting officer,
arguing that these statements corroborated Hallmeyer's theory of the case.
According to Hallmeyer, Lippel told the arresting officer that he owned two of the
weapons and the bulletproof vest. Lippel explained to the officer that he and
Hallmeyer were searching for the person who had stolen Hallmeyer's car. When
the officer questioned Lippel about the drugs, Lippel turned away and said "I'm
done." Clerk's Papers (CP) at 18. Hallmeyer asserted that this last alleged
statement amounted to an admission that the drugs belonged to Lippel.
Hallmeyer's counsel stated that he was not calling Lippel as a witness
because he was hostile to the defense. But he argued that Lippel's statements
were admissible because they fell within an exception to the general rule against
1 Hallmeyer was also charged with unlawful possession of a firearm. His conviction on
that charge is not at issue in this appeal.
2
No. 76034-3-1/3
hearsay. In the alternative, he argued that the statements were not offered for the
truth and thus were not hearsay.
The trial court excluded Lippel's statements to the arresting officer as
hearsay. A jury acquitted Hallmeyer of possession with the intent to deliver but
convicted him of the lesser-included offense of possession of a controlled
substance.
DISCUSSION
Hallmeyer contends that he received ineffective assistance because
counsel demonstrated a lack of understanding of the rules of evidence. To
prevail on a claim of ineffective assistance of counsel, a defendant must show
that counsel's performance was deficient and that the deficient performance
prejudiced the defense. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011)
(citing State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987)). We apply a
strong presumption that counsel's performance was reasonable. Id. (citing State
v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).
Hallmeyer asserts that trial counsel's performance was deficient because
he failed to properly introduce and support his arguments concerning Lippel's
statements. Hallmeyer contends that prejudice resulted from counsel's poor
understanding of the hearsay exception for statement's against interest.2
Hearsay statements against the declarant's penal interest are admissible
when the declarant is unavailable. ER 804(b)(3). A witness is unavailable if,
2 Counsel also sought to introduce the statements as non-hearsay and as other suspect
evidence. Hallmeyer makes no argument that trial counsel's allegedly deficient performance in
introducing these alternative theories was prejudicial.
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No. 76034-3-1/4
among other reasons, he persistently refuses to testify despite a court order to do
so. ER 804(a)(2).
Hallmeyer acknowledges that Lippel was not unavailable within the
meaning of ER 804. But he contends that counsel was deficient for not calling
Lippel as a witness. He asserts that, had counsel called Lippel, he would have
refused to testify and been declared unavailable. Alternatively, Lippel would have
testified and been subject to cross examination. In either scenario, Hallmeyer
contends, he would have been able to confront Lippel about the drugs in his car.
We reject this argument. Legitimate trial strategy or tactics do not
constitute deficient performance. Grier, 171 Wn.2d at 33 (citing KvIlo, 166 Wn.2d
at 863). To rebut the presumption that counsel rendered reasonable
performance, a defendant must show that counsel's conduct cannot be explained
by any "'conceivable legitimate tactic." Id. (quoting State v. Reichenbach, 153
Wn.2d 126, 130, 101 P.3d 80 (2004)). In this case, defense counsel chose not to
call Lippel because he was hostile to the defense. The decision was a legitimate
trial strategy. Counsel's performance was not deficient.
Affirmed.
WE CO CUR:
J.
Arm
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