No. 30077-0-II.The Court of Appeals of Washington, Division Two.
Filed: June 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County. Docket No: 03-1-00009-3. Judgment or order under review. Date filed: 03/07/2003. Judge signing: Hon. George Lamont Wood.
Counsel for Appellant(s), Sherryl A. Jones, Attorney at Law, PO Box 1869, Port Townsend, WA 98368-0058.
Counsel for Respondent(s), Lauren Michele Erickson, Attorney at Law, Clallam Co Prosc Atty Ofc, 223 E 4th St, Port Angeles, WA 98362-3015.
MORGAN, A.C.J.
Darry Keith Ausmus appeals convictions for second degree assault while armed with a deadly weapon. He argues that the trial court erroneously admitted two hearsay statements and that his counsel rendered ineffective assistance by failing to object to one of those statements. We affirm.
On January 7, 2003, according to the State, Ausmus threatened Levi Barclay, Ryan Starks, and Cory Stokes with a knife. He was charged with three counts of second degree assault while armed with a deadly weapon. The jury convicted on Count I and Count III but acquitted on Count II. He was sentenced to 37 months of total confinement.
At trial, the State called four witnesses pertinent here: Barclay, Starks, Stokes, and Officer Knight. Each was cross-examined, so confrontation is not an issue.[1]
The issue arises from hearsay introduced through Knight. He had taken an out-of-court statement from each victim a few minutes after the incident. The trial court excluded Starks’s statement, so we limit our discussion to the other two.
Knight interviewed Barclay alone. He had known Barclay for seven or eight years and observed that Barclay was `upset, shaking a little bit, agitated. He was too agitated to write — he asked me to write for him.’[2] He was `excited,’ `breathing rapidly[,]’ and `appear[ed] different’ on this occasion than on prior ones.[3] He said that he was standing in an alley with Stokes and Starks when Ausmus came around the corner. Ausmus ran at him with a knife, he thought he was going to be stabbed, and he took off running.
Knight also interviewed Stokes alone. Being previously acquainted with Stokes as well as with Barclay, he had observed that Stokes is `usually pretty quite [sic] and gives the impression of being kind of bored with everything going on around him.’[4] Although a `lot of times . . . you have to drag things out of him[,]’ on this occasion `he was volunteering information[.]’[5] Stokes told `essentially the same story’ as Barclay.[6]
Defense counsel objected to Barclay’s statements as inadmissible hearsay, which the trial court admitted after ruling that they were excited utterances within the meaning of ER 803(a)(2).[7] Defense counsel did not object to Stokes’s statements. Ausmus argues on appeal (1) that Barclay’s and Stokes’s statements were not shown to be excited utterances, and (2) that his trial counsel rendered ineffective assistance by not objecting to Stokes’s statements.
A hearsay statement qualifies as an excited utterance if (1) a startling event occurred; (2) the declarant spoke while under the stress of excitement caused by that event; and (3) the declarant’s statement related to that event.[8] Each factor is a question of preliminary fact for the judge to decide under ER 104(a). As indicated in State v. Freigang:
The question usually at the core of this exception [ER 803(a)(2)] is whether the declarant was excited by the event or condition at the time of his or her statement. Whether a particular declarant is excited on a particular occasion is a hearsay-related question of preliminary fact controlled by ER 104(a). Like other hearsay-related questions of preliminary fact, it is decided by the trial judge, who is not bound by the rules of evidence (except those with respect to privileges). Thus, the judge can take the information he or she needs to decide the question from sources such the oral assertions of counsel, affidavits, or, in the judge’s discretion, `the making of an offer in question and answer form.’ At the end of the ER 104(a) hearing, the judge decides the disputed preliminary question according to a preponderance of the information presented.[9]
In this case, the trial court had ample information from which to find that Ausmus had triggered a startling event; that Barclay and Stokes spoke to Knight while under the stress of excitement due to that event; and that Barclay’s and Stokes’s statements related to that event. Thus, the trial court did not err by ruling that Barclay’s and Stokes’s statements were admissible even though hearsay.
Having concluded that the statements were properly admitted, we also conclude that counsel did not render ineffective assistance by not objecting to Stokes’s statements. To show ineffective assistance, Ausmus must show (1) deficient performance and (2) resulting prejudice.[10] He has shown neither here, for it is apparent that the trial court would properly have admitted Stokes’s statements even if a hearsay objection had been made.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and COX, J.P.T., concur.
Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.