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.  66144-2-I
                                            )
                      Respondent,                   )      DIVISION ONE
                                            )
                v.                          )       UNPUBLISHED OPINION
                                            )
RONALD STEVEN CABELL, JR.,                  )
                                            )
                      Appellant.            )       FILED:  March 26, 2012

       Schindler, J.  --  A jury convicted Ronald Steven Cabell, Jr. of second degree 

assault and returned special verdicts on the aggravating factors of deliberate cruelty 

and knowledge that the victim was particularly vulnerable or incapable of resistance.  

On appeal, Cabell argues his attorney provided ineffective assistance of counsel (1) by 

failing to object to reference to a police database, and (2) by not moving to strike the 

testimony that Cabell told police "he was leaving the state."  Because Cabell cannot 

establish ineffective assistance of counsel, we affirm.

                                            FACTS

       Joseph Mitchell is a member of the United States Navy working with the naval air 

station on Whidbey Island.  On March 26, 2010, Mitchell and a group of co-workers and 

friends went to the Lava Lounge, a bar in Oak Harbor.  At about 1:30 a.m., Mitchell  

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went outside with several friends to smoke a cigarette.  Mitchell said that while he was 

outside, someone came up to him and punched him in the face.  Mitchell said that he 

tried to walk away but was ambushed by a group of young men who punched him,

pushed him to the ground, and kicked him multiple times.  Before losing consciousness, 

Mitchell curled up into a ball to try to protect his head as the men stomped and kicked 

him. 

       When Mitchell's friend Roberto Tavera tried to intervene, one of the men 

punched him in the face.  The group then ran away.  When Katie Wilkins saw the men 

attack Mitchell, she recorded the attack with her digital camera.

       After Mitchell regained consciousness, he could not walk on his right leg and sat 

on the curb, holding his head.  In addition to bruises all over his face and body, Mitchell 

had a broken nose, a concussion, and a fractured ankle.  The injury to his ankle 

required surgery to install a plate and screws.

       Officer Michael Clements of the Oak Harbor Police Department arrived at 

approximately 1:40 a.m.  Wilkins gave her camera to Officer Clements. Wilkins 

described the assault of Mitchell as "brutal." Officer Clements showed the video to the

manager of the Lava Lounge, Jason Youngsman.  Youngsman was able to identify one 

of the assailants, later identified as Cabell, as "Scooter."

       Detective Anthony Slowik watched the video of the attack several times, and

played the video "frame by frame and attempted to identify people in the video as 

witnesses or suspects." Detective Slowik testified that he was able to identify one of 

the men who kicked and stomped Mitchell as Cabell.  The video showed Cabell 

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stomping Mitchell twice and kicking him once in the head.  Detective Slowik compared

the video with a Department of Licensing photograph.  Detective Slowik testified that 

"[f]rom that information," he located a telephone number for Cabell and called him.  

       I looked -- we have a police database that I looked his phone number up 
       in, and I called that phone number and left a message asking him to 
       contact me about the incident.

Detective Slowik said that he spoke to Cabell on April 13.  

       The State charged Cabell with assault in the second degree and alleged the 

aggravating factors of deliberate cruelty and a particularly vulnerable or incapacitated 

victim.

       A number of witnesses testified at trial, including Mitchell, Tavera, Wilkins, and 

Detective Slowik.  Mitchell testified that he did not see who hit him.  Tavera identified 

Cabell as the man who punched him in the face when he tried to stop the attack on 

Mitchell. Wilkins testified that the men brutally kicked and stomped Mitchell mainly in 

the head and upper body.  The court admitted the video, and the State played the video 

of the assault.  

       Detective Slowik testified that Cabell told him "we were all drunk.  It was a 

melee.  I don't remember much -- or I think he said something like I don't know what 

happened and I don't remember much."  Detective Slowik said that at the end of the

telephone conversation, he asked Cabell to come to the police department to speak to 

him and Cabell said "he was leaving the state." The defense objected on relevancy 

grounds and the court sustained the objection.

       Erika Thompson-Spence, a friend who lent her car to Cabell the night of the 

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incident, and Courtney Erickson, another friend of Cabell's who was at the Lava 

Lounge that night, testified for the defense.  Spence said Cabell told her there was a 

fight but he did not appear to have any injuries.  Erickson testified that Mitchell was 

drunk and punched Cabell in the face.  Erickson said that after Mitchell fell down, 

Cabell kicked him twice in the chest. 

       The jury convicted Cabell of assault in the second degree and returned a special 

verdict on the aggravating factors of deliberate cruelty and a particularly vulnerable 

victim.  

                                          ANALYSIS

       On appeal, Cabell contends his attorney provided ineffective assistance of 

counsel (1) by failing to object to Detective Slowik's testimony that he found Cabell's 

telephone number in a "police database," and (2) by failing to make a motion to strike 

the detective's statement that Cabell said he was leaving the state. 

       A criminal defendant has a constitutional right to effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To demonstrate ineffective assistance of counsel, the defendant must show both 

deficient performance and resulting prejudice.  Strickland, 466 U.S. at 687; State v. 

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

       In order to prevail on a claim of ineffective assistance of counsel, Cabell must 

demonstrate (1) deficient performance, that his attorney's representation fell below the 

standard of reasonableness; and (2) resulting prejudice, that but for the deficient 

performance, the result would have been different.  Strickland, 466 U.S. at 687; State v. 

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Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in 

Strickland).  If a defendant fails to establish either prong, we need not inquire further. 

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

       To establish deficient performance, Cabell has the heavy burden of showing that 

his attorney "made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. 

There is a strong presumption of effective representation of counsel, and the defendant 

has the burden to show that based on the record, there are no legitimate strategic or 

tactical reasons for the challenged conduct.  McFarland, 127 Wn.2d at 335-36.  As the 

Supreme Court explained in Strickland:

       A fair assessment of attorney performance requires that every effort be 
       made to eliminate the distorting effects of hindsight, to reconstruct the 
       circumstances of counsel's challenged conduct, and to evaluate the 
       conduct from counsel's perspective at the time.  Because of the difficulties 
       inherent in making the evaluation, a court must indulge a strong 
       presumption that counsel's conduct falls within the wide range of 
       reasonable professional assistance; that is, the defendant must overcome 
       the presumption that, under the circumstances, the challenged action 
       "might be considered sound trial strategy." See Michel v. Louisiana, [350 
       U.S. 91,] 101[, 76 S. Ct. 158, 100 L. Ed. 83 (1955)].

Strickland, 466 U.S. at 689.

       Here, Cabell argues that the reference to a police database "signaled" that he 

had prior involvement with the police. We disagree.  In context, the reference to a

police database did not imply prior criminal history.  Detective Slowik testified that he 

was able to identify the man in the video with a photograph from the Department of 

Licensing and found his telephone number in a "police database." Further, any

objection to the reference to a police database would only draw attention to the

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testimony.  We presume that a failure to object constituted a legitimate trial strategy.

"Counsel's decisions regarding whether and when to object fall firmly within the 

category of strategic or tactical decisions." State v. Johnston, 143 Wn. App. 1, 19, 21, 

177 P.3d 1127 (2007). 

       Nor can Cabell establish prejudice based on the failure of his attorney to move 

to strike the statement that Cabell told Detective Slowik he could not meet him at the 

police department because he was leaving the state. Even if the testimony was, as the 

State concedes, an improper reference to the defendant's right to remain silent, the 

prosecutor did not mention or refer to this testimony.  State v. Sweet, 138 Wn.2d 466, 

481, 980 P.2d 1223 (1999).  Moreover, the overwhelming evidence at trial, including 

the video of the assault, supports the conclusion in that Cabell assaulted Mitchell by 

kicking him and stomping him while he was on the ground.

       We affirm.

WE CONCUR:

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