      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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                                                                                                   Cf: CD
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STATE OF WASHINGTON,
                                                 No. 76034-3-1                                                     •
                     Respondent,                                                       r•3
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                                                 DIVISION ONE                                              *":".• rrl
                                                                                                     Cl) r r•-.1
       V.
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BRYAN M. HALLMEYER,                              UNPUBLISHED OPINION                     C:)
                                                                                         444•41•




                     Appellant.                  FILED: January 23, 2017

       SPEARMAN, J. — An attorney's conduct is not deficient if it can be

considered a legitimate trial tactic. Bryan M. Hallmeyer contends that he received

ineffective assistance of counsel because his attorney did not call a witness. But

the attorney informed the court that not calling the witness was a strategic

decision based on the witness's hostility to the defense. Because the decision

was a legitimate trial tactic, counsel's performance was not deficient.

                                      FACTS

      A police officer was on patrol at about 11:00 p.m. in a marked police

vehicle. He observed the driver of another car, Lyle Lippe!, look at the police car

and then make an abrupt turn. The officer drove around the block and came

upon Lippel's car stopped in the middle of the road with the engine running and

both front doors open. Lippel and his passenger, Hallmeyer, were both out of the

car and appeared to be changing places.
No. 76034-3-1/2

       Lippel spoke with the officer and consented to a search of the car. The

officer found a substantial quantity of heroin and methamphetamine as well as

paraphernalia associated with drug sales. The officer also found two loaded

handguns, an AR-15 rifle, ammunition, and a bulletproof vest. The officer placed

both Lippel and Hallmeyer under arrest.

       Lippel entered a plea to charges against him. Hallmeyer was tried on

charges of possession of controlled substances with intent to distribute.1

Hallmeyer argued that the drugs and paraphernalia belonged to Lippel and he

did not know they were in the car. He admitted owning one of the handguns and

stated that he was carrying it because he had recently been the victim of a crime.

       Hallmeyer moved to admit Lippel's statements to the arresting officer,

arguing that these statements corroborated Hallmeyer's theory of the case.

According to Hallmeyer, Lippel told the arresting officer that he owned two of the

weapons and the bulletproof vest. Lippel explained to the officer that he and

Hallmeyer were searching for the person who had stolen Hallmeyer's car. When

the officer questioned Lippel about the drugs, Lippel turned away and said "I'm

done." Clerk's Papers (CP) at 18. Hallmeyer asserted that this last alleged

statement amounted to an admission that the drugs belonged to Lippel.

       Hallmeyer's counsel stated that he was not calling Lippel as a witness

because he was hostile to the defense. But he argued that Lippel's statements

were admissible because they fell within an exception to the general rule against




        1 Hallmeyer was also charged with unlawful possession of a firearm. His conviction on
that charge is not at issue in this appeal.

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No. 76034-3-1/3

hearsay. In the alternative, he argued that the statements were not offered for the

truth and thus were not hearsay.

       The trial court excluded Lippel's statements to the arresting officer as

hearsay. A jury acquitted Hallmeyer of possession with the intent to deliver but

convicted him of the lesser-included offense of possession of a controlled

substance.

                                       DISCUSSION

       Hallmeyer contends that he received ineffective assistance because

counsel demonstrated a lack of understanding of the rules of evidence. To

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

that counsel's performance was deficient and that the deficient performance

prejudiced the defense. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011)

(citing State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987)). We apply a

strong presumption that counsel's performance was reasonable. Id. (citing State

v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).

       Hallmeyer asserts that trial counsel's performance was deficient because

he failed to properly introduce and support his arguments concerning Lippel's

statements. Hallmeyer contends that prejudice resulted from counsel's poor

understanding of the hearsay exception for statement's against interest.2

       Hearsay statements against the declarant's penal interest are admissible

when the declarant is unavailable. ER 804(b)(3). A witness is unavailable if,



        2 Counsel also sought to introduce the statements as non-hearsay and as other suspect
evidence. Hallmeyer makes no argument that trial counsel's allegedly deficient performance in
introducing these alternative theories was prejudicial.

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No. 76034-3-1/4

among other reasons, he persistently refuses to testify despite a court order to do

so. ER 804(a)(2).

      Hallmeyer acknowledges that Lippel was not unavailable within the

meaning of ER 804. But he contends that counsel was deficient for not calling

Lippel as a witness. He asserts that, had counsel called Lippel, he would have

refused to testify and been declared unavailable. Alternatively, Lippel would have

testified and been subject to cross examination. In either scenario, Hallmeyer

contends, he would have been able to confront Lippel about the drugs in his car.

      We reject this argument. Legitimate trial strategy or tactics do not

constitute deficient performance. Grier, 171 Wn.2d at 33 (citing KvIlo, 166 Wn.2d

at 863). To rebut the presumption that counsel rendered reasonable

performance, a defendant must show that counsel's conduct cannot be explained

by any "'conceivable legitimate tactic." Id. (quoting State v. Reichenbach, 153

Wn.2d 126, 130, 101 P.3d 80 (2004)). In this case, defense counsel chose not to

call Lippel because he was hostile to the defense. The decision was a legitimate

trial strategy. Counsel's performance was not deficient.

      Affirmed.




WE CO CUR:
                                                                       J.

                                                 Arm



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