No. 28552-5-II.The Court of Appeals of Washington, Division Two.
Filed: September 16, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 02-1-00016-9. Judgment or order under review. Date filed: 03/08/2002.
Counsel for Appellant(s), Clayton Lee Spencer, Spencer Sundstrom PLLC, 201 NE Park Plaza Dr Ste 261, Vancouver, WA 98684-5877.
Counsel for Respondent(s), Rachel Brooks Mitchell, Domestic Violence Prosecution Center, 210 E 13th St, P.O. Box 1995, Vancouver, WA 98666.
ARMSTRONG, J.
Patrick John McDonald appeals his conviction for felony violation of a domestic violence no-contact order by assault. McDonald argues that his counsel was ineffective for failing to object to hearsay statements and for bringing out during voir dire that McDonald was in custody. McDonald also contends that the court should have dismissed the charge because the protective order was defective. We find no reversible error and, therefore, affirm.
FACTS
Kayla Peterson was crying and hysterical when she telephoned Travis Sturdevant, a friend and neighbor, on December 30. Peterson told Sturdevant that Patrick McDonald had just beaten her and was breaking her furniture. She asked Sturdevant to come over to her home.
When Sturdevant arrived a few minutes later, Peterson’s face was red and she appeared to have been crying. He also saw a cut on Peterson’s face and noticed that the coffee table was smashed. Peterson again told Sturdevant that McDonald had beaten her. Sturdevant stayed with Peterson for five to ten minutes. McDonald’s counsel did not object during Sturdevant’s direct examination.
Peterson also called Dayla Robinson, a friend of 20 years. Peterson asked Robinson to come over and help clean her home. Peterson sounded upset over the phone.
Robinson drove to Peterson’s home with another friend, Michelle McCarter. When the two arrived, Peterson was sitting on her bed; she had blood in her hair.
McCarter testified that she and Robinson arrived at Peterson’s home approximately 15 minutes after the phone call. Peterson looked “{r}eal frazzled,” and was “{c}onfused, upset, really upset, just lost, kind of.” Report of Proceedings (RP) at 145-46. She again reported that McDonald had hit her. Counsel objected to the hearsay statements Peterson made to Robinson and McCarter. The court overruled the objection, ruling that the statements fit within the excited utterance hearsay exception.
Police officers arrived at 4:14 p.m. One officer saw a cut and some bruising on Peterson’s face. He also noticed the broken table.
The jury convicted McDonald on one count of felony violation of a domestic violence no contact order by assault.
The court had issued a no contact order on May 7, 2001, restricting McDonald from contacting Peterson. The order was apparently extended on August 31, 2001, as the result of an earlier conviction. The order was effective until August 31, 2003.
On December 30, 2001, the State charged Peterson with felony violation of a domestic order and third degree malicious mischief.
During voir dire, McDonald’s counsel asked the jurors whether they would wonder why the victim did not testify at trial. More specifically, counsel asked the jurors whether they would speculate that his client had “something to do with it {her failure to appear}.” RP at 23-24. When one juror said she might wonder about this, counsel asked “{S}o if my client testifies that he’s been in custody since his arrest, how is that going to impact that question?” RP at 24. McDonald’s defense counsel continued asking jurors, “So the fact that the victim’s not here and the fact that testimony will come out that my client was in jail since the arrest, does that have any impact on any of you?” RP at 25.
McDonald moved to dismiss the charge, arguing that the no contact order was invalid. He reasoned that the order was flawed because it did not contain the warnings required by chapter 10.99 RCW, specifically the warning that a “drive-by shooting” is a violation of the order. McDonald also argued that, although the order warned him in the first paragraph that the victim’s consent was not a defense, the order did not repeat the warning in its last section, filled out after his first violation.
Peterson did not testify during the trial; nor did she attend the proceedings.
ANALYSIS I. Ineffective Assistance of Counsel
Under the Sixth Amendment of the United States Constitution, the right to counsel includes the right to effective assistance of counsel. To establish that counsel was ineffective, the defendant must demonstrate:
(1) his attorney’s performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
We presume that counsel provided effective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Because of this presumption, the defendant must demonstrate the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). If the challenged conduct is a legitimate trial strategy, it cannot serve as a basis for an ineffective assistance of counsel claim. Lord, 117 Wn.2d at 883.
A. Hearsay
McDonald argues that his counsel should have objected to Sturdevant’s testimony that repeated the statements Peterson made that McDonald had assaulted her. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. ER 801(c). Hearsay is not admissible except as provided by the rules of evidence, court rules, or by statute. ER 802. An “{e}xcited {u}tterance” is admissible as an exception to the hearsay rule. ER 803(a)(2).
A defendant who claims that counsel should have challenged the admission of evidence must show: (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct, (2) that an objection to the evidence would likely have been sustained, and (3) that the result of the trial would have differed had the evidence not been admitted, Failing to object to admissible evidence is neither unreasonable nor prejudicial. State v. Alvarado, 89 Wn. App. 543, 553, 949 P.2d 831 (1998).
Sturdevant testified that Peterson was crying and sounded half — hysterical over the phone. Peterson told him, “Pat just beat the shit out of me, and he’s freaking out and he’s breaking my furniture.” RP at 66.
When Sturdevant arrived at Peterson’s home, she was shaking, crying and sobbing, and her face was cut. Sturdevant testified that Peterson called him during the daytime, but he did not know if it was morning or afternoon. He also did not know what time he left Peterson’s home, although he was there for 15 to 20 minutes.
Robinson also testified that Peterson sounded upset and was possibly crying when the two talked over the phone. Counsel objected, arguing that Robinson’s testimony was hearsay.
McCarter also testified that she saw Peterson approximately 15 minutes after Robinson got off the phone with Peterson. Peterson looked “{r}eal frazzled,” confused, and upset. RP at 145-46.
An excited utterance requires: (1) a startling event or condition, (2) a statement made while the declarant was still under the stress of the startling event, and (3) the statement relating to the event or condition. State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997).
Peterson’s statements to Sturdevant meet these requirements. McDonald had just assaulted Peterson. Sturdevant, Robinson, and McCarter all described Peterson as upset, crying, frazzled, confused, and injured. And the statements related to the assault.
While the record does not establish how much time passed between the assault and Peterson’s call to Sturdevant, the hearsay statement need not be contemporaneous with the startling event to fall under the excited utterance exception. See Walters v. Spokane Int’l Ry. Co., 58 Wn. 293, 298, 108 P. 593 (1910) (although decided under res gestae, court held statement made two hours after accident was admissible, as statements need not be strictly contemporaneous); State v. Lopez, 29 Wn. App. 836, 839, 631 P.2d 420 (1981) (robbery victim’s statement to police shortly after incident qualified as excited utterance).
Finally, counsel objected when Robinson and McCarter repeated Peterson’s statements to them. These statements occurred in the same general time period as her statement to Sturdevant; they reported the same event and Peterson’s condition was generally the same. The trial court ruled the statements admissible as excited utterances. We have no reason to believe that the trial court would have ruled otherwise as to Sturdevant’s testimony. Because McDonald cannot show that the trial court would have ruled the statements inadmissible, his claim that counsel should have objected fails.
B. Custodial Status
McDonald next argues that counsel should not have advised the jury during voir dire that he was in custody.
The questioning, however, was clearly part of counsel’s trial strategy. Counsel was concerned that the prospective jurors might speculate that the victim was not present because of McDonald’s manipulation. To counter this, counsel disclosed that his client would testify that he had been in custody since his arrest. Counsel intended to dispel any concerns the jurors might have that McDonald was responsible for the victim’s absence. This was appropriate trial strategy and does not show that counsel was ineffective. Lord, 117 Wn.2d at 883.
II. Validity of the No Contact Order
RCW 10.99.040(4)(b) provides, among other things, that a domestic violence no contact order must warn the defendant that he violates the order even if the victim invites the contact. The order must also state that certain order-violating crimes, including a drive-by shooting, are felonies.
Similarly, RCW 10.99.050(2)(b) provides that the written order must contain the court’s directives and the warning that a drive-by shooting violation, among other crimes, is a felony. An order that does not contain the mandatory warnings is invalid. State v. Marking, 100 Wn. App. 506, 511-12, 997 P.2d 461 (2000). Because a valid order is implicitly an element of the crime, the State must prove the order valid beyond a reasonable doubt. Marking, 100 Wn. App. at 509. When an order contains an inaccurate statutory reference, however, a defendant must show prejudice to be entitled to relief from the order. State v. Sutherland, 114 Wn. App. 133, 136, 56 P.3d 613 (2002).
The no contact order here is a one page document. In the top third of the document, it states:
Violation of this No Contact Order is a criminal offense under chapter 10.99 RCW and will subject you to arrest. Any assault or reckless endangerment that is a violation of this Order is a felony. You can be arrested even if any person protected by this Order invites or allows you to violate the Order’s prohibitions. You have the sole responsibility to avoid or refrain from violating the Order’s provisions. Only the Court can change the order.
Exhibit 6.
The one-page order has two other parts: (1) a pre-trial section located in the document’s middle third, and (2) a post-trial section locating on the bottom third.
On the bottom third, the order reads:
You are hereby advised you have been convicted of one of the following crimes against a member of your family or household: Assault in the Fourth Degree, Coercion, Stalking, Reckless Endangerment in the Second Degree, Criminal Trespass in the First Degree, or Violation of the provisions of a Protection Order or No Contact Order restraining you or excluding you from a residence (RCW 26.50.060. 26,50.070 (sic), 26.50.130, or 10.99.040).
Exhibit 6.
McDonald argues that the no contact order was facially invalid because the mandatory warning — that a victim’s consent is not a defense — was not contained in the post-trial section of the one-page order. He argues that the pre-trial and post-trial sections are separate and distinct from each other and, thus, each requires the language RCW 10.99.040(4)(b) or RCW 10.99.050(2)(b) mandates.
But McDonald cites no authority in support of his argument that the no contact order’s pre-trial and post-trial sections require separate warnings. And the no contact order reads as one document. For example, language in the bottom third of the order states that “{t}his No Contact Order is extended and shall remain in effect until” August 31, 2003. Exhibit 6. Moreover, although RCW 10.99.040(4)(b) expressly requires the disclosure, it does not dictate where the language must be in the order.
McDonald also argues that the order’s warning language is inaccurate because it is not in the statutory words. Specifically, McDonald argues that the top portion of the order does not refer to chapter 26.50 RCW, and the order does not state that a drive-by shooting is a prohibited act.
Again, we disagree. Although the order did not recite the language of RCW 10.99.040(4)(b) or RCW 10.99.050(2)(b) verbatim, it did advise McDonald that he could be arrested even if Peterson consented to the contact. And the bottom third of the order does refer to RCW 26.50.060
and 26.50.070. Moreover, we have held that an inaccurate statutory reference in a document does not necessarily prejudice the defendant. Sutherland, 114 Wn. App. at 136. Rather, the defendant must demonstrate that the inaccuracy prejudiced him. Sutherland, 114 Wn. App. at 136. McDonald has not shown that the order’s language or its failure to mention chapter 26.50 RCW prejudiced him.
Finally, McDonald was not prejudiced by the omission of “drive-by shooting” as a crime. He was neither charged with nor convicted of drive — by shooting.
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.
MORGAN, P.J. and SEINFELD, J., concur.