Opinion
67219-3-I
01-07-2013
STATE OF WASHINGTON, Respondent, v. TREVOR COLLIN SNOW, Appellant.
UNPUBLISHED OPINION
Becker, J.
Trevor Snow appeals his judgment and sentence for one count of child molestation in the first degree. At trial, a detective recounted a conversation he had with Snow in which Snow admitted using drugs and being untruthful about where he was staying. The primary issue is whether the phone call was properly authenticated. Finding no error, we affirm.
FACTS
In January or February 2010, 10-year-old TB described to his mother a molestation incident involving Snow. TB said it occurred while he was staying at his father's house over the Christmas break. TB's mother confronted Snow with the allegation and then contacted police. Snow was charged with child molestation in the first degree. A jury convicted him. This appeal followed.
At trial, TB described the molestation in detail. He said it occurred one evening in his father's house after he and Snow played a video game together. TB's father testified that before he left the house that evening, he walked over to TB's grandmother's and asked her to come over and supervise TB. The grandmother testified that when she arrived. Snow was in the house with TB. TB's father and grandmother both testified that Snow was intoxicated that evening. Detective Steven Harris testified that TB's account at trial was consistent with what TB told him in the initial investigation interview.
The authentication issue arises from Harris's testimony about telephone communications he had with Snow at the beginning of the investigation. TB's mother gave Harris a phone number she had for Snow. Harris called the number, leaving a general message and asking Snow to call him back. Harris received a return message from someone identifying himself as Snow. Snow said in the message he was on a bus on his way to Texas for drug rehabilitation. Later, when Harris and Snow spoke to each other on the phone. Snow admitted he was never on a bus to Texas but had actually driven his car to his father's house in Hermiston, Oregon. Snow at first told Harris he would be willing to meet police for an interview. Then he called back to say he could not meet because he was going to start drug rehabilitation at a clinic in Seattle. Harris offered to meet Snow at the clinic. Snow said he could not receive visitors for 30 days but would contact Harris after that. Harris testified that in response to being told of TB's allegations. Snow said, "it wasn't like him to do something like that but if it occurred he doesn't recall it occurring" because he had "done a lot of drugs at the time." Snow never contacted Harris after this phone conversation.
At trial, Snow took the stand and denied having sexual contact with TB. He said he went to TB's father's house on the evening in question, helped TB set up the video game, and played the game with TB for a while. He admitted he had been drinking and also admitted being "really high" on methamphetamine at the time. He denied intentionally misleading Detective Harris about his location. He said that any statements he made to Detective Harris at the time were unreliable because he was "detoxing" and "emotionally distressed" about leaving his family and children to seek drug rehabilitation. He said he failed to contact Detective Harris after he left the rehabilitation program because he was focused on making his life better.
AUTHENTICATION
Snow contends his statements on the telephone with Detective Harris were not properly authenticated and that counsel was ineffective by failing to keep them from being admitted. To establish ineffective assistance of counsel, a party must show both that counsel's performance was deficient and that it resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re Det. of Coe, 175 Wn.2d 482, 490, 286 P.3d 29 (2012).
"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). Telephone conversations, by way of illustration, can be authenticated by "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." ER 901 (b)(6). Courts "routinely find a call to be authenticated when self-identification is combined with virtually any circumstantial evidence." Passovoyv. Nordstrom, Inc., 52 Wn.App. 166, 171, 758 P.2d 524 (1988), review denied, 112 Wn.2d 1001 (1989).
Before jury selection began, the State asked for a ruling on the admissibility of the telephone statements. Defense counsel objected that the State could not authenticate who the speaker was. The court held a CrR 3.5 hearing, at which Detective Harris testified. Harris admitted that he could not identify the voice as Snow's because he had never spoken to Snow before the phone calls. He explained the facts that led him to believe he was speaking with Snow. Harris had been given the phone number by TB's mother as a way to contact Snow. Harris had left a general voicemail with no specific information at the number he believed to be Snow's, and a person identifying himself as Snow called back and left a message. The message referred to details of the alleged abuse and to members of TB's family, and it placed the caller at TB's father's house. When Harris later spoke to someone who again self-identified as Snow, the person again confirmed facts surrounding the allegations. The caller said he was with his father in Hermiston, Oregon. Harris then spoke with a Hermiston police officer who was familiar with Snow's father's Hermiston residence.
The trial court initially ruled this testimony was not enough to authenticate the statements but left the matter open for the State to provide additional authority. The State took the matter up again before trial resumed, offering Passovoy as authority for admitting the conversations based on Detective Harris's testimony alone. The State also offered a written statement signed by Michelle Moritz, who claimed to be the owner of the cell phone and phone number in Snow's possession at the time of the calls with Detective Harris. In her statement, Moritz said she had loaned her cell phone to Snow for about a year between 2009 and 2010. Attached was a copy of Moritz's phone bill, reflecting calls from Hermiston, Oregon, on the dates Harris said he spoke to Snow. The court thereupon reversed its original ruling and admitted the conversations as having been adequately authenticated.
Snow contends defense counsel was ineffective for failing to object to the Moritz affidavit. He contends it should have been excluded under ER 401 as irrelevant because it referred to a phone number not in evidence and under CrR 4.7 because it was evidence introduced on the morning of trial. Snow has failed to show how he was prejudiced by the introduction of the affidavit, however, so both arguments fail. State v. Foster, 140 Wn.App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007). The Moritz affidavit was unnecessary to authenticate the telephone conversations. The court stated that it was changing its mind based on the "cases" cited by the state, which included Passovoy.
Under Passovoy, Detective Harris's testimony was enough on its own to authenticate the conversations. In Passovoy, this court ruled the circumstantial evidence was adequate to authenticate a telephone call where there was testimony that the caller had self-identified as the person in question, the caller was returning a call as requested, and the caller demonstrated familiarity with the facts of the incident. Passovoy, 52 Wn.App. at 171. Harris's testimony satisfied these three conditions. This ruling was consistent with State v. Danielson, 37 Wn.App. 469, 681 P.2d 260 (1984), where this court found similar evidence provided "sufficient proof of identification" to admit a telephone conversation between a police officer and the defendant. Danielson, 37 Wn.App. at 472. In Danielson the police officer testified that the caller identified himself as the defendant, knew certain personal information about the defendant, and had returned the police officer's call as requested earlier. Danielson, 37 Wn.App. at 473.
Because Harris's testimony was adequate on its own to authenticate the telephone statements, failure by defense counsel to object to the Moritz statement was not prejudicial to Snow.
Passovoy has a second prong to its analysis, which is determining whether an authenticated hearsay statement is admissible at trial as a statement by a "party-opponent" under ER 801(d)(2). Passovoy, 52 Wn.App. at 171. Snow argues that the court erred by failing to consider the second prong and that counsel was ineffective for not insisting that it be considered. The argument fails. The second prong of the Passovoy analysis was not relevant here. Once Snow's telephone statements were authenticated as having been made by him—the named defendant in the case—they were admissible under ER 801(d)(2).
CONFRONTATION CLAUSE
Snow contends the court violated his Sixth Amendment confrontation rights by not requiring that Moritz be produced so that he could cross-examine her. The State represented that it had no intention of admitting the Moritz statement at trial for any purpose. Moritz was never mentioned at trial.
The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. "Witnesses" in this context are "those who bear testimony" against a defendant. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (internal quotation marks omitted), quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Testimonial statements that entitle a defendant to confront the declarant include pretrial statements that the declarant "'would reasonably expect to be used prosecutorially'" or "'that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Melendez-Diaz, 557 U.S. at 309-10, quoting Crawford, 541 U.S. at 51-52. However, statements that are used only for authentication purposes are not necessarily subject to confrontation: "we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Melendez-Diaz, 557 U.S. at 311 n.1.
In the face of the statement from Melendez-Diaz, Snow fails to show that the Moritz statement was testimonial. In any event, under Passovoy and Danielson, Detective Harris's testimony stood on its own. Any error with regard to the use of the Moritz statement in the pretrial hearing on authenticity was harmless.
OTHER CLAIMS OF INEFFECTIVE ASSISTANCE
In addition to his concerns about the Moritz statement, Snow makes several other allegations of ineffective assistance. First, he claims defense counsel failed to cross-examine Detective Harris effectively to make it clear to the jury that Harris was unable to positively identify the voice on the phone as Snow's.
Cross-examination is a matter of judgment and strategy. In re Pers. Restraint of Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004). If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). Here, by the time counsel cross-examined Harris, counsel had already committed to a strategy that involved accepting Harris's account of the telephone conversation as accurate. In opening statement, counsel used Snow's telephone statements about drug use and rehabilitation for a legitimate defense purpose: to provide Snow an excuse for fleeing to Hermiston and lying to police. ("So he lied to the officer, and that doesn't make him look very good. But his reasons for lying had to do with his drug addictions and nothing to do with these terrible charges.") Making a big issue about whether it was really Snow on the other end of the telephone call would have been inconsistent with this strategy.
Snow contends counsel was ineffective for failing to review the first amended information before trial. Counsel admitted on the first day of trial that he had not seen it. But Snow fails to show how this prejudiced him. Nothing in the information was unusual. It contained the usual elements set forth in a first degree child molestation case. See RCW 9A.44.083. Counsel was plainly aware of the charge Snow was facing.
Snow contends counsel was ineffective for pursuing strategies that were unlikely to succeed. Counsel made an effort to permit Snow to testify that he had never before been charged with a similar sexual offense. He also tried to have TB's father declared an expert on his son's credibility. This latter strategy was intended to communicate to the jury that the boy's own father did not believe Snow was guilty because the boy had previously made other allegations of abuse. Both of these evidentiary strategies were unsuccessful, but that does not render counsel's assistance deficient. And while Snow assumes that counsel could have succeeded as to both matters if he had been more diligent, the record provides no support for this assumption.
Snow contends that when the court asked counsel to provide authority supporting his strategies, counsel responded that he had not done the necessary research. The record does not support Snow's characterization of defense counsel as uninformed. As to one matter in dispute—defense counsel's argument that Snow should be permitted to testify that he had never before been accused of child molestation—counsel merely stated that he had "found nothing to support" his position, not that he had not researched it. As to another matter, counsel did provide the court with two cases supporting the admissibility of evidence that TB had previously made other allegations of sexual molestation. The court admitted that evidence over the State's objection.
Snow contends counsel was ineffective for failing to lay an adequate ground to support his motion for a new trial filed months after trial. At trial. Snow anticipated that the grandmother was going to give testimony favorable to the defense. A few days before trial, someone made a call to the grandmother, and according to Snow, her attitude toward him changed for the worse after this call. The testimony that she gave was restrained and did not meet Snow's expectation that it would be favorable to the defense. Snow's motion for a new trial argued that before the grandmother testified at trial, someone fed her false information about a previous molestation committed by Snow. The court denied the motion based on inadequate evidence.
Snow contends counsel should have cross-examined TB's grandmother so as to establish that her testimony and demeanor had changed due to witness tampering. In a statement of additional grounds, RAP 10.10, Snow also contends counsel was ineffective for failing to obtain a statement from the grandmother to support his motion for a new trial.
These ineffective assistance arguments are unpersuasive. First, Snow presumes that counsel could have gotten the grandmother to admit that she had been tampered with or that she had materially changed her testimony as a result. This is speculation. When a claim of ineffective assistance rests on matters outside the record, it may be considered in a personal restraint petition but not in a direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). So far as the record on appeal reveals, counsel's decision not to cross-examine the grandmother was a strategic move and therefore not deficient performance. Lord, 117 Wn.2d at 883. At the hearing on the motion for a new trial, defense counsel explained that he limited his cross-examination of the grandmother because he was concerned about opening the door to damaging testimony.
In his statement of additional grounds. Snow contends counsel was ineffective for failing to request a continuance of trial despite being too ill to perform effectively. This theory, too, rests on facts not in the record. The record shows that defense counsel was too ill to proceed on January 19 and 20, and trial was continued both of those days. There is no evidence that counsel remained ill once trial resumed the following Monday, January 24.
Finally, Snow contends in his statement of additional grounds that his attorney did not tell him he would have an "indeterminate sentence, " did not explain to him "all of the options that were possible, or the ramifications of these different options, " and merely told him that his sentence would be 65 months. This contention not only rests on facts outside the record but is inconsistent with what is actually in the record. The record reflects that Snow understood that he could be sentenced within a range, which was declared at sentencing to be 51 to 68 months. This issue does not warrant further review.
PROSECUTORIAL MISCONDUCT
Snow contends the prosecutor improperly vouched for TB's credibility during closing argument, violating Snow's right to a fair trial.
To prevail on a claim of prosecutorial misconduct, the defendant bears the burden of showing both improper conduct and resulting prejudice. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Although it is improper for a prosecutor to vouch for a witness's credibility, a prosecutor has wide latitude in closing argument in arguing reasonable inferences from the evidence, "including inferences as to witness credibility." State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006). Closing argument does not constitute improper vouching unless it is clear and unmistakable that the prosecutor is not arguing an inference from the evidence but is instead expressing a personal opinion about credibility. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996).
In the context of discussing the conflict between TB's account of the molestation and Snow's denials of any involvement, the prosecutor argued that TB "is credible. He remembers some details, down to the white stripes on the sweat pants. He forgets other details. Think of a ten year old, an 11 year old and how they remember things." Snow objected to these remarks and asked that the jury be instructed to disregard them. The court sustained the objection and instructed the jury as requested.
The prosecutor then reframed his credibility argument:
Let me clarify. I am not vouching for any particular witness. I'm arguing from the evidence, what you should find is credible. But you decide who is credible and who is not credible. Perhaps you find everybody credible and it's hard to match the two stories up, of course. You decide who is credible. My argument to you is based on the evidence.The prosecutor then said that TB "tells a credible story about what happened to him." Snow again objected, and the court again sustained the objection, and asked the prosecutor to "Please adjust your argument accordingly." The prosecutor concluded:
You decide who is telling the truth in this case and I will assure you will be able to figure that out. Look at what each witness says, see if it fits with the other facts, and come to your conclusion.
Snow attempts to compare these remarks to the flagrant misconduct committed by the prosecutor in State v. Boehning, 127 Wn.App. 511, 111 P.3d 899 (2005). The comparison is a poor one. In Boehning, the prosecutor argued that the jury should believe the victim's account over the defendant's, based on inferences the jury could draw from the victim's statements to detectives—statements which had been ruled inadmissible at trial. Boehning, 127 Wn.App. at 519-21. The prosecutor suggested to the jury that the victim had disclosed far more serious allegations to the detectives in the one-one-one interview setting than she had disclosed at trial, and that those pretrial disclosures would have supported the three rape charges that had been dismissed at the close of the State's case for insufficient evidence. Boehning, 127 Wn.App. at 521. The court's decision that the remarks constituted misconduct rested on the prosecutor's "repeated attempt to bolster [the victim's] trial testimony and credibility by instilling inadmissible evidence in the juror's minds." Boehning, 127 Wn.App. at 523. No such attempt was made here. The prosecutor was drawing an inference from admissible evidence surrounding TB's description of the molestation.
Nor did the prosecutor's remarks set forth a statement of personal belief. We did find a statement of personal belief in Sargent, where the prosecutor informed the jury, "I believe Jerry Lee Brown. I believe him." State v. Sargent, 40 Wn.App. 340, 343, 698 P.2d 598 (1985) (emphasis omitted). The court concluded the prosecutor's remarks directly placed "the integrity of the prosecution" on the side of Brown's credibility. Sargent, 40 Wn.App. at 344. Here, by contrast, the prosecutor repeatedly informed the jury that credibility determinations were the jury's alone. The prosecutor directed the jury to the evidence surrounding TB's account of the molestation, without asking the jury to place its faith in the prosecutor's assessment of TB's credibility.
Affirmed.