[Nos. 34445-9-II; 35060-2-II. Division Two. May 30, 2007.]
In the Matter of the Personal Restraint of KEVIN LAWRENCE HENDRICKSON, Petitioner. [1] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Test. A criminal defendant claiming ineffective assistance of counsel must show that (1) counsel's performance was deficient and (2) the deficient performance was prejudicial to the defense. Deficient performance is shown by representation that falls below an objective standard of reasonableness. Prejudice occurs when there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. [2] Evidence — Hearsay — Business Records — What Constitutes — Testimony Regarding Investigation.Testimony by a public official regarding a conversation that the official had with another person during an investigation does not constitute a business record for purposes of the business records exception to the rule against hearsay (RCW 5.45.020 and ER 803(a)(6)). [3] Evidence — Hearsay — Public Records — What Constitutes — Testimony Regarding Investigation.Testimony by a public official regarding a conversation that the official had with another person during an investigation does not constitute a public record for purposes of the public records exception to the rule against hearsay (RCW 5.44.040 and ER 803(a)(8)). [4] Criminal Law — Evidence — Hearsay — Right of Confrontation — Unavailability of Declarant — Testimonial or Nontestimonial Statement — Effect. Under the Sixth Amendment, hearsay evidence of an out-of-court testimonial statement made by an unavailable declarant may not be admitted in a criminal trial unless the defendant has had a prior opportunity to cross-examine the declarant. [5] Criminal Law — Evidence — Hearsay — Right of Confrontation — Unavailability of Declarant — Testimonial or Nontestimonial Statement — Statement Potentially Used To Investigate or Prosecute Crime. A hearsay statement is testimonial in nature, and implicates the Sixth Amendment right to confront adverse witnesses, where a reasonable person in the declarant's position would anticipate that the statement would be used against an accused in the investigation or prosecution of a crime. [6] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Failure To Object to Evidence — Unavailable Declarant's Testimonial Statement — Material to Conviction. Defense counsel's failure to object to the admission of hearsay evidence of an unavailable declarant's testimonial statement on Sixth Amendment confrontation clause grounds will support a claim of ineffective assistance of counsel if there is no tactical reason for such failure and the statement is material to the determination of the defendant's guilt or innocence. Nature of Action: Prosecution for one count of first degree possession of stolen property and 16 counts of second degree identity theft. Superior Court: After 13 of the identity theft counts were dismissed, the Superior Court for Pierce County, No. 04-1-04088-6, Frank E. Cuthbertson, J., on February 3, 2006, entered a judgment on a verdict finding the defendant guilty of three counts of second degree identity theft. The State dismissed the possession of stolen property charge without prejudice after the jury failed to reach a unanimous verdict on the charge. The defendant later sought relief from personal restraint. Court of Appeals: Holding that defense counsel was ineffective for failing to object to an unavailable declarant's testimonial statement, which was the only evidence supporting one of the second degree identity theft counts, the court affirms the judgment in part, reverses the judgment in part, dismisses the personal restraint petition, and remands the case for further proceedings. Kevin L. Hendrickson-, pro se. Sheri L. Arnold-, for appellant/petitioner. Gerald A. Horne-, Prosecuting Attorney, and Michelle Luna-Green- and Karen D. Platt-, Deputies, for respondent. ¶1 QUINN-BRINTNALL, J. — Kevin Hendrickson is a tow truck driver who stored financial information, some belonging to clients, in a stolen trailer. He appeals his convictions for three counts of second degree identity theft on grounds of improper searches and arrest, ineffective assistance of counsel, insufficient evidence, and several other issues. Because his conviction for count 16 rests solely on highly prejudicial hearsay testimony, we reverse his conviction for identity theft against Don Noe, affirm his convictions on counts 12 and 18 in all other respects, and remand to the trial court for further proceedings. FACTS ¶2 While driving through Tacoma, Michael Brutsche spotted his grandfather's trailer, which had been stolen months before, in an unfenced used car lot. He and his cousin, Lee Farro, pulled into the lot and called his grandfather and 911. The two waited for Michael Brutsche's grandfather, Leo Brutsche, and Officer William Budinich to arrive. ¶3 When Officer Budinich arrived, Michael Brutsche and Farro told him that, while they were waiting, they saw Hendrickson approach the trailer, put a box by it, and try to open a locked door on the trailer. They said that when Hendrickson saw that he was being watched, he dropped a set of keys into the box and left. ¶4 Officer Budinich verified that the trailer rightfully belonged to Leo Brutsche and had been stolen. He arrested Hendrickson, took a keychain from Hendrickson's belt loop, and used the keys to open several locks on the trailer. Leo Brutsche demanded that Budinich open the trailer so that he could see if a concrete cutter that was stolen with the trailer was still inside. ¶5 Officer Budinich conducted a quick sweep of the trailer's interior to ensure that no people or dangerous conditions, such as a portable methamphetamine laboratory, were present. He noted that there was no safety risk and that Leo Brutsche's concrete cutter was no longer in his trailer. During the cursory search for the cement cutter, Officer Budinich also saw that the trailer contained a box of vehicle identification number (VIN) plates, papers, and a file cabinet. Officer Budinich impounded the trailer and obtained a warrant to search it. Police searched the trailer and found numerous documents containing financial information. ¶6 The State charged Hendrickson with first degree possession of stolen property for the trailer and 16 counts of second degree identity theft. Before trial, Hendrickson challenged Officer Budinich's initial search of the trailer and the search warrant. He also objected to admitting statements he made to police, but the trial court ruled that all were lawful. ¶7 At the close of its case, the State dismissed five of the identity theft counts because key witnesses were unavailable. Hendrickson urged the trial court to direct a verdict in his favor on all counts. The trial court dismissed eight of the remaining identity theft counts because the State failed to prove that Hendrickson possessed the financial information for illegal purposes. ¶8 The jury did not reach a unanimous verdict on the charge of possession of stolen property, count 1, and the State dismissed that charge without prejudice. But the jury convicted Hendrickson on the three remaining counts of identity theft. ¶9 This appeal requires us to review: (1) the effectiveness of Hendrickson's counsel; (2) Hendrickson's arrest; (3) the search warrant; (4) sufficiency of the evidence; (5) issues raised in Hendrickson's statement of additional grounds; ANALYSIS Ineffective Assistance of Counsel ¶10 Hendrickson urges that we reverse his conviction for identity theft of Noe's Social Security card on the ground of ineffective assistance of counsel. Hendrickson's counsel did not object to hearsay testimony by a criminal investigator that Noe lost his card and that no one had permission to use it. This key testimony is inadmissible hearsay and barred under Crawford, ¶11 Joe Rogers, a Social Security Administration special agent, testified that he conducts criminal investigations relating to identity theft and misuse of Social Security cards. He investigated the Social Security cards "in relationship to the case involving State v. Kevin Hendrickson," apparently at police request. 2 Report of Proceedings (RP) at 67. During trial, Special Agent Rogers testified as follows: [State] . . . Can you please tell the jurors whether you had any opportunity to attempt to contact the owner of that card, Don Noe? A I did. Q And what did you do then? A I contacted Mr. Noe and spoke to him on two occasions, primarily to ask about his social security card, whether he ever lost it, a little bit of history about it. Mr. Noe explained to me that he was attending Evergreen State College in the Olympia area and sometime in the Spring of 2004, he wasn't sure of the exact date, he did lose his card. He lost his wallet somewhere around the campus and hadn't seen it since. In the fall of 2004, he applied for and received a replacement social security card. Q And did you ask him whether anyone had permission to have his social security card? A Yes, I did. Q And what was his response? A He stated to me that nobody had his permission to have his social security card, possess it. 2 RP at 68-69. Hendrickson's attorney did not object. Hendrickson now claims this failure to object constituted ineffective assistance of counsel. ¶13 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c). These statements were hearsay and were offered to prove a material fact: that Noe did not consent to another person possessing or using his Social Security card. ¶16 Hendrickson's attorney failed to object to this testimony, which was crucial to the State's case because it was the only evidence linking the Social Security card, exhibit 1, to the geographic region where Hendrickson lived and was the only evidence that Hendrickson did not have a valid reason to possess the card. We can see no tactical reason for defense counsel's failure to object. And there is a reasonable probability that without this evidence Hendrickson would have been acquitted on this charge. We reverse and remand for retrial of this conviction. ¶17 We analyze the remaining issues without publication because we resolve those issues by following well-established legal principles that have no precedential value. RCW 2.06.040; Fitzpatrick, 5 Wn. App. at 669. We affirm on those grounds. ¶18 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. VAN DEREN, A.C.J., and BRIDGEWATER, J., concur.