Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  )         No. 66046-2-I
                       Respondent,
                                                  )         DIVISION ONE
                v.
                                                  )         UNPUBLISHED OPINION
 DARRON VAN DOWNEY,
                                                  )
                       Appellant.                           FILED: February 27, 2012
                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Downey was convicted of assaulting his girlfriend, Brooks.  

Brooks did not testify at trial.  But, two police officers, an EMT, an employee in 

Downey's apartment building all testified about statements Brooks made after the 

assault.  Downey argues that allowing one of the officers and the apartment manager to 

testify about Brooks' statements violated his constitutional right to confront his accuser.  

He also argues defense counsel was deficient in stipulating to admission of the 

apartment manager's testimony.  The officer's testimony was harmless, and allowing 

the apartment manager's testimony was not constitutional error.  We affirm.

                                            FACTS

       In April 2010, Diane Brooks went to visit Darron Downey, who lived in an 

apartment building that serves residents dealing with alcohol and substance abuse,  

No. 66046-2-I/2

and mental health problems.  Brooks and Downey were dating at the time.  On her way 

to his apartment, Brooks met Peggy Collins, who worked in                Downey's  apartment 

building.  

       Later that day, Ms. Collins       found Brooks outside her office.  Brooks was 

frightened and crying.  She had a laceration on her head that looked like a deep dent.  

Ms. Collins brought Brooks into her office, locked the door, and called 911.  Brooks 

stated that Downey had hit her.  

       Emergency Medical Technician (EMT) Eric Lane and Police Officers Ian Birk and 

William Collins responded to the call.  Lane found Brooks in Ms. Collins's office.  

Brooks told Lane that her boyfriend had hit her.  

       Meanwhile, Officer Birk detained Downey, and Officer Collins went to speak with 

Brooks.   Brooks told Officer Collins that Downey had been drinking for approximately 

12 hours.  She said that Downey assaulted her by pushing her head into a window 

frame.  

       Later, Officer Birk also spoke to Brooks.  Their conversation was brief, but 

Brooks confirmed that Downey assaulted her.  

       Downey was charged with assault in the second degree  --  domestic violence.  

After it was unable to locate Brooks, the State moved for a pretrial ruling on the 

admissibility of Brooks' statements to Ms. Collins, Lane, and Officers Birk and Collins.  

Defense counsel stipulated to the admissibility of Ms. Collins's and Lane's statements.  

Ultimately, all four witnesses were permitted to testify.  Brooks did not testify.

                                        DISCUSSION

       The United States constitution guarantees an accused the right to confront the 

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witnesses against him.  U.S. Const.  amend. VI.  That protection is directed at the 

improper use of ex parte examinations and ex parte affidavits as substitutes for live 

witnesses in criminal cases.  Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 

1354, 158 L. Ed. 2d 177 (2004).  A testimonial statement made to a police officer may 

only be offered when the declarant is unavailable and the defendant has had a prior 

opportunity for cross-examination.  Id. at 68.  A statement is testimonial when the 

circumstances objectively indicate that there is no ongoing emergency, and that the 

primary purpose of the interrogation is to establish or prove past events potentially 

relevant to later criminal prosecutions.  Davis v. Washington, 547 U.S. 813, 822, 126 S. 

Ct. 2266, 165 L. Ed. 2d 224 (2006).

       Downey claims that Brooks' statements to Ms. Collins were testimonial and that 

defense counsel was ineffective for stipulating to the statements' admission.  The State 

argues that the statements were nontestimonial and that the decision not to object was 

a legitimate trial strategy.  

       Downey argues that Brooks' statements to Ms. Collins were testimonial, because 

a reasonable person in the position of the declarant would realize that the information 

would likely be used in a criminal investigation or prosecution.  In doing so, he relies on 

State v. Powers, which  held that a victim's conversation with a 911 operator was 

testimonial.  124 Wn. App. 92, 101-02, 99 P.3d 1262 (2004).         But, Powers came before 

Davis, in which the United States Supreme Court articulated that "[s]tatements are 

nontestimonial when made in the course of police interrogation under circumstances 

objectively indicating that the primary purpose of the interrogation is to enable police 

assistance to meet an ongoing emergency."  Davis, 547 U.S. at 822.

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       Further, in both Powers and Davis, the statements were made to a 911 operator.  

Davis, 547 U.S. at 817; Powers, 124 Wn. App. at 101-02.  The Davis court explicitly 

considered the 911 operators acts to be acts of the police, and declined to consider 

whether and when statements made to someone other than law enforcement personnel 

are testimonial.  Id. at 823 n.2.  

       Here,  Ms. Collins testified that she found Brooks in the hall.  Brooks was 

frightened and crying.  She was searching for Ms. Collins.              Brooks had a visible 

laceration on her face and stated that Downey hit her.  At that point, Ms. Collins had 

Brooks sit down in her office and locked the door.  Ms. Collins decided to call 911, 

there is no indication that Brooks asked her to call.  Because Brooks was seeking help 

and shelter from Ms. Collins, she told Ms. Collins that Downey hit her.  Her statement 

was for the immediate purpose of getting to safety in an ongoing emergency.  Under 

the test articulated in Davis, this statement would have been nontestimonial if made to 

a police officer.  We hold it was nontestimonial when made to the apartment manager.

       To prevail on a claim of ineffective assistance of counsel, a defendant must 

establish both deficient performance and a resulting prejudice.  State v. McFarland, 127 

Wn.2d 322, 334-35, 899 P.2d 1251 (1995).  When the claim is based on a failure to 

object, deficient performance exists only when the defendant shows that there was no 

legitimate strategic reason not to object, and that an objection would likely have been 

sustained.  Id. at 336, 337 n.4.     Downey cannot show that the trial court would have 

sustained an objection. His claim for ineffective assistance of counsel necessarily fails.

       The State concedes that Brooks' statements to Officer Collins were testimonial, 

and that the trial court erred in admitting the statements.  The State did not concede, 

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but we will assume for purposes of this opinion, that Brooks' statement to Officer Birk 

that Downey had assaulted her was also testimonial.

       But, a constitutional error does not require reversal if it is proved to be harmless 

beyond a reasonable doubt.  State v. Jones, 168 Wn.2d 713, 724, 230 P.3d 576 

(2010).  Error is harmless if there is no reasonable probability that the outcome of the 

trial would have been different had the error not occurred.  State v. Banks, 149 Wn.2d 

38, 44, 65 P.3d 1198 (2003).

       Downey argues that the error was not harmless, because Brooks' statements to 

the officers were the only evidence that her injuries were caused by Downey.  That 

argument is factually incorrect.

       Ms. Collins testified that she found Brooks frightened and crying and that Brooks 

said that Downey hit her.  Lane testified that Brooks told him that she was assaulted by 

her boyfriend.  Further, Officer Birk testified that, when he arrived, Downey called out to 

him  that "you're probably looking for me."  No evidence suggested a different 

perpetrator.   Brooks' statements to Ms. Collins and Lane, together with Downey's 

statement that Officer Birk was probably looking for him, were sufficient to prove 

beyond a reasonable doubt that Downey was the individual who assaulted Brooks.  

There is no reasonable probability that the outcome of the trial would have been 

different had the testimony of the two officers not been admitted.

       We affirm.

WE CONCUR:

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