                                                                 FILED

                                                            MAY 02, 2013

                                                   In the Office ofthe Clerk of Court 

                                                  WA State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )           No. 30318-7-III
                                              )
                             Respondent,      )
                                              )
        v.                                    )
                                              )           UNPUBLISHED OPINION
JACOB MICHAEL EASTEP,                         )
                                              )
                             Appellant.       )

       KORSMO, C.J. -     Jacob Eastep contends that his trial counsel performed

ineffectively at a CrR 3.5 hearing during his cross-examination of an officer. He does not

satisfy the stringent standards of review that govern this issue. We affirm his conviction

for possession of methamphetamine.

                                           FACTS

       Mr. Eastep was a passenger in a car stopped by police after a short pursuit. He

was discovered to be in possession of methamphetamine and eventually charged with that

offense. His counsel moved to suppress the evidence, contending that officers engaged in

a pretext stop of the vehicle.
No. 303 IS-7-II1
State v. Eastep


       Kennewick Police Department detectives on patrol pulled into an apartment

complex in Kennewick at approximately 12:46 a.m. They observed a parked Ford

Bronco with its engine running and lights on. As they drove alongside it, the woman in

the driver's seat gestured at them with her hands, indicating a need for assistance. The

detectives parked and stepped out of their car. At that point, someone in the vehicle said

"go, go, go." The Bronco left at a speed in excess of the posted limit. The detectives

returned to their car and pursued the Bronco in order to assist the driver.

       The Bronco continued its excessive speed and failed to stop for a stop sign. The

detectives activated their emergency lights and pursued the Bronco an additional 1I4 mile

before it stopped. They recognized passenger Jacob Eastep; officers had been seeking to

serve arrest warrants on him for the past week. The detectives arrested Mr. Eastep and

searched him. A glass smoking device with a residue amount of methamphetamine was

recovered from his pocket. He subsequently was charged with illegally possessing a

controlled substance.

       Defense counsel moved to suppress, arguing that the traffic stop was pretextual.

At the suppression hearing, a detective whose report had attributed the "go" statement to

the driver testified that he thought it was her, but now was uncertain who made the

statement. The detective was not cross-examined about the potential discrepancy




                                              2

No. 30318-7-111
State v. Eastep


between the report and his hearing testimony. The other detective testified the statement

came from some other person in the car.

       The trial court denied the motion to suppress, finding that the stop was justified

under the community caretaking or welfare check rationales. After that ruling, the case

was heard as a stipulated facts trial to the bench. Mr. Eastep was convicted and timely

appealed to this court.

                                        ANALYSIS

       The sole issue in this appeal is an argument that counsel performed ineffectively at

the suppression hearing by failing to fully cross-examine the first detective. This

argument is unavailing.

       The Sixth Amendment guaranty of counsel requires more than the mere presence

of an attorney. The attorney must perform to the standards of the profession; failure to do

so will require a new trial when the client has been prejudiced by counsel's failure. State

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

ineffectiveness claims, courts must be highly deferential to counsel's decisions. A

strategic or tactical decision is not a basis for finding error. Strickland v. Washington,

466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim of

ineffective assistance, the defendant must show both that his counsel erred and that the




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No.30318-7-III
State v. Eastep


error was so significant, in light of the entire record, that it deprived him of a fair trial.

Id. at 690-92.

       Mr. Eastep complains about trial counsel's performance in the cross-examination

of the first detective. That argument can be quickly answered. Even lame or ineffectual

cross-examination does not establish ineffective assistance of counsel. In re Pers.

Restraint o/Pirtle, 136 Wn.2d 467,489,965 P.2d 593 (1998). Cross-examination is a

matter of trial strategy that typically is immune from challenge as long as it falls within

the range of reasonable representation. In re Pers. Restraint o/Davis, 152 Wn.2d 647,

720, 101 PJd 1 (2004). This case is in that category. The detective had already

expressed confusion about who made the "go" statement. Little would be gained by

asking about the report and further rehashing the issue of the identity of the speaker.

       Mr. Eastep also fails to explain why any error by counsel on this point was

prejudicial. It was his burden to establish that but for counsel's error, the outcome of the

case would have been different. Id. The point of further examination had already been

made by the detective's testimony-he was unsure if the driver was the speaker. More

importantly, the identity of the speaker was of no consequence to the motion. The issue

to be decided was what motivated the detectives to stop the car, not who told the driver to

flee. Further examination of the detective on that latter issue would not have changed the

outcome of the hearing. Hence, the alleged error was not prejudicial.


                                                4

No.3031S-7-II1
State v. Eastep


       Mr. Eastep has not established either that his counsel failed him or that the failure

was prejudicial to his case. Accordingly, he has not established that his Sixth

Amendment right was violated.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                                Korsmo, C.J.

WE CONCUR:




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