State Of Washington v. Victor Russell ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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—175 Wn. App. 912, 927, 308 P.3d 736 (2013). A trial court abuses its
discretion when its decision is manifestly unreasonable or based on untenable grounds.
Bradford, 175 Wn. App. at 927.
"The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims." ER 901(a). This requirement is met" 'if
sufficient proof is introduced to permit a reasonable trier of fact to find in favor of
authentication or identification.'" Bradford, 175 Wn. App. at 928 (quoting State v.
Danielson, 37 Wn. App. 469, 471, 681 P.2d 260 (1984)). In making its determination as
to authentication, the trial court is not bound by the rules of evidence. State v. Williams,
136 Wn. App. 486, 500, 150 P.3d 111 (2007).
The identity of a party to a telephone call may be established by direct or
circumstantial evidence. Danielson, 37 Wn. App. at 472. Alone, self-identification by
the person on the other end of the line is insufficient to satisfy the requirements of ER
901. Passovovv. Nordstrom, Inc., 52 Wn. App. 166, 171, 758 P.2d 524 (1988).
"However, courts routinely find a call to be authenticated when self-identification is
combined with virtually any circumstantial evidence." Passovov, 52 Wn. App. at 171.
Such circumstantial evidence may include the contents of the conversation itself.
Danielson, 37 Wn. App. at 471. For example, in Passovov, a telephone call was
properly authenticated when in addition to identifying herself as a Nordstrom employee,
the caller made the call in response to an earlier call and also demonstrated familiarity
with the facts of the incident. Passovov, 52 Wn. App. at 171. In State v. Deaver, 6 Wn.
No. 75033-0-1/5
App. 216, 218-19, 491 P.2d 1363 (1971), even though the recipient of a call did not
recognize the caller's voice, the telephone call was authenticated based on the caller's
self-identification and the content of the conversation.
By way of illustration only and not by way of limitation, ER 901 provides
authentication or identification of telephone conversations conforming to the following
requirements:
[B]y evidence that a call was made to the number assigned at the time by
the telephone company to a particular person or business, if (i) in the case
of a person, circumstances, including self-identification, show the person
answering to be the one called.
ER901(b)(6)(i).
The trial court did not abuse its discretion by admitting evidence of Russell's
telephone conversations with Lieutenant Brenna and Deputy Hovda. During both
conversations, Russell identified himself. Additionally, the self-identification in both
conversations was combined with circumstantial evidence. In the conversation with
Lieutenant Brenna, the person who answered the call demonstrated familiarity with the
facts of the incident at Walmart. For example, he admitted putting the notes on
Redford's car and encountering Nichols. In the conversation with Deputy Hovda, the
person answering the call demonstrated awareness that his prior actions could result in
going to jail. The evidence also showed the telephone number Deputy Hovda called
was listed as Russell's number in the e-mails from Russell to Redford. The Thurston
County Sheriff's Office system also listed the telephone number as belonging to
Russell.
No. 75033-0-1/6
Ineffective Assistance of Counsel
Russell argues he received ineffective assistance of counsel at trial because
defense counsel stipulated to two prior convictions for violation of a no-contact order
instead of moving to bifurcate the trial so the jury would not hear evidence of the prior
convictions until after it decided the underlying charge. We disagree.
To demonstrate ineffective assistance of counsel, a defendant must
make two showings: (1) defense counsel's representation was deficient,
i.e., it fell below an objective standard of reasonableness based on
consideration of all the circumstances; and (2) defense counsel's deficient
representation prejudiced the defendant, Le., there is a reasonable
probability that, except for counsel's unprofessional errors, the result of
the proceeding would have been different.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either element of
the test is not satisfied, the inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917
P.2d 563 (1996).
We engage in a strong presumption that counsel's representation was effective.
McFarland. 127 Wn.2d at 335. " 'When counsel's conduct can be characterized as
legitimate trial strategy or tactics, performance is not deficient.'" State v. Grier, 171
Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting State v. Kyllo, 166 Wn.2d 856, 863, 215
P.3d 177 (2009)). We will not find ineffective assistance of counsel if the actions of
counsel go to trial tactics. Grier, 171 Wn.2d at 33. Counsel does not render ineffective
assistance by refraining from strategies that reasonably appear unlikely to succeed.
McFarland, 127 Wn.2d at 334 n.2.
The fact that a defendant has at least two prior convictions for violating a no-
contact order is an element of the crime of felony violation of a no-contact order—the
offense Russell was charged with. See RCW 26.50.110(5). "[W]hen a prior conviction
No. 75033-0-1/7
is an element of the crime charged, it is not error to allow the jury to hear evidence on
that issue." State v. Roswell. 165 Wn.2d 186, 197, 196 P.3d 705 (2008). Further,
bifurcated trials are not favored. State v. Monschke. 133 Wn. App. 313, 335, 135 P.3d
966 (2006). Because, it is unlikely a motion to bifurcate would have been successful,
defense counsel's decision not to move to bifurcate did not fall below an objective
standard of reasonableness.
Moreover, Russell was not prejudiced by his counsel's decision not to move to
bifurcate. When introducing evidence of a prior conviction, the trial court can reduce
any unnecessary prejudice where practical, such as by allowing a defendant to stipulate
to the prior conviction and instructing the jury as to the limited purpose for which it may
consider the prior conviction. Roswell, 165 Wn.2d at 198 n.6.
Here, the trial court read the parties' stipulation to the jury and gave an
appropriate limiting instruction.
The parties have agreed that certain facts are true. You must
accept as true that the person before the Court who has been identified in
the charging document as defendant, Victor Daniel Russell, was convicted
on October 31st, 2013 of violation of no-contact, protection, or restraining
order, domestic violence, in the State of Washington vs. Victor Russell in
Thurston County Superior Court Cause Number 13-1-00529-1.
You must also accept as true that the person before the Court who
has been identified in the charging document as defendant Victor Daniel
Russell was convicted on January 12th, 2011 of violation of post
conviction no-contact order, domestic violence, in State of Washington vs.
Victor Daniel Russell in Thurston County Superior Court Cause Number
10-1-01556-0.
This evidence has been admitted in this case for only a limited
purpose. This evidence consists of the defendant's two prior convictions
for violating a court order. This evidence may be considered by you only
for the purpose of deciding whether the defendant has two prior
convictions for violating a court order. You may not consider it for any
other purpose. Any discussion of the evidence during your deliberations
must be consistent with this limitation.
No. 75033-0-1/8
We presume the jury follows the court's instructions. State v. Perez-Valdez, 172
Wn.2d 808, 818-19, 265 P.3d 853 (2011). Russell cannot show prejudice by defense
counsel's decision not to move to bifurcate the trial.
Affirmed.
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WE CONCUR: