                                                                                                          FILED
                                                                                                 C MT OF APPEALS
                                                                                                        01vjnop-1 II
                                                                                               2015 AL 21
                                                                                                                     AM 9: 27
                                                                                               STA- `    F 1          MGi0N
                                                                                               BY
                                                                                                          E: P to]




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

    STATE OF WASHINGTON,                                                         No. 45933 -7 -II


                                       Respondent,


          V.



    JOHNNIE MURREL COOLEY,                                                LIMasp] aMwotoOXGUIKOIAM




         JOHANSON, C. J. —            Johnnie Murrel Cooley appeals his jury trial convictions for four

counts of domestic violence court order violation,' the special verdict domestic violence findings,

and   the imposition     of   legal financial   obligations ( LFOs).   He argues that ( 1) the trial court erred in


admitting a portion of a 911 recording .in which the operator identifies the number the call

originated     from, ( 2) his trial counsel provided ineffective assistance of counsel when he failed to


request a limiting instruction related to this portion of the 911 recording, and ( 3) the trial court

erred when it failed to consider his ability to pay before imposing discretionary LFOs. In a pro se

                                            for                 SAG), he raises several additional ineffective
                                                  review2   (




statement      of   additional    grounds




assistance of counsel claims and challenges jury instruction 17, which advised the jury how to

complete     the    special verdict   forms. We hold that the admission of the 911 operator' s statement




    RCW 26. 50. 110( 5); RCW 10. 99. 020.

2
    RAP 10. 10.
No. 45933 -7 -II



was harmless, that Cooley does not establish ineffective assistance of counsel on any of his alleged

grounds, that any potential error injury instruction 17 was harmless, and that Cooley has waived

his LFO argument. We affirm the convictions and sentence.


                                                           FACTS


                                                       I. BACKGROUND


         Amy Lutter, who had been in a 12 -year relationship with Cooley and had two children with

him, obtained two protection or no contact orders prohibiting Cooley from having any contact with

her,   including telephonically         or   electronically; these       orders were   in     effect   in   January   2013.    In


January 2013, Lutter and her daughters were living with Lutter' s parents; Cooley lived about a

half mile away.      On January 13, Lutter received several threatening text messages and calls from

Cooley on her cell phone.

         On January 17, apparently after Cooley had called her parents' house " all night long" and

sent threatening text messages, Lutter decided to walk to Cooley' s home to ask his roommate, who

was also   his   employer,    to stop      Cooley from    contacting her. Report         of   Proceedings ( RP) ( Dec. 17,


2013) at 78. According to Lutter, as she was walking, Cooley.drove around the corner in his truck,

saw her, and drove straight at her. She jumped out of the way and fell to the ground. Cooley drove

onto the curb and then pulled away. As he pulled away, Lutter threw a rock at the truck, damaging

the rear window.


          On   January 17,    at   8: 07   AM,   911   received a call    from   a man   reporting that his "[        e] x-wife"



had thrown       a rock at   his   vehicle window;        the   caller   identified himself      as    Johnnie'   Cooley.     The


caller stated that he would wait for the police at the intersection of South L and South 70th Streets.

The 911 system listed the specific number the call came from. When the 911 operator asked the



                                                                2
No. 45933 -7 -II



caller what     his   number was,        the   caller was unsure.           The operator then read the number from the


911    system   to the     caller, and   the   caller responded, "        Yeah, I think that      might   be it." Ex. 1 at 1 min.


15 sec. through 1 min. 17 sec.


         Tacoma Police Officers Patrick Thomas O' Neill and Chris Yglesias responded to the


location      given   by   the 911   caller.     Although they were attempting to locate Cooley, they found

Lutter at the location; she appeared upset and agitated. Lutter told the officers that her " boyfriend"


had tried to     run   her down. RP ( Dec. 17, 2013)                 at    185.    The officers observed tire marks on the


grassy   area    between the       road    and       the   sidewalk.      It appeared as if the car had driven over the


sidewalk and " straddled" it. RP ( Dec. 17, 2013) at 192.


         Lutter       returned   to the   police station with             Officer Yglesias.       While at the police station,


Lutter received several calls on her cell phone from the same number that had appeared on the 911


system. Officer Yglesias had Lutter answer one of the calls and put it on speakerphone so he could

hear the   call.     According to    Officer Yglesias, the           male voice said, "       You' re as good as dead, bitch,"


and " I' m going to break all the windows at your parents' house" before hanging up. RP ( Dec. 17,

2013)    at   131.     Lutter told Officer Yglesias that the number the call came from was Cooley' s

number, and she identified the caller' s voice as Cooley' s. Lutter also showed Officer Yglesias the

text   messages       Cooley had     sent      her   on    January   13   and     January   14.   Based on the information on


Lutter' s phone, these text messages also originated from the same number that had called 911.




                                                                     3
No. 45933 -7 -II



          The    officers   later   contacted   Lutter   and collected   her   cell phone.   Lutter signed a consent


form allowing them to          search   the   phone.     An officer then photographed several threatening text

messages from Cooley' s number that were sent on January 13. 3

          About two hours after interviewing Lutter, Officer Yglesias located Cooley walking down

the street near Lutter' s parents' home. When Cooley saw the police car, he turned and started to

walk away.


          Officer Yglesias stopped Cooley, read him his Miranda' rights, and asked him why he was

in the   area.   Cooley responded that he was going to Lutter' s parents' house to get money for his

broken    window.      He also stated that the tire tracks Officer Yglesias has seen were from him


 Cooley) swerving to avoid the rock Lutter had thrown at his truck. Cooley denied having called

or   texted Lutter.    Cooley also told Officer Yglesias that he ( Cooley) did not have a functioning

phone with him and that his phone was at his house; but he admitted that he had called 911 that


day and stated that he had " used another phone" to make that call. RP (Dec. 17, 2013) at 168.

                                                     II. PROCEDURE


                                     A. CHARGES AND PRELIMINARY MOTIONS


          The State charged Cooley with four domestic violence court order violations.5 It further

alleged that all four counts were domestic violence incidents.




3 These photographs were admitted at trial.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

5 Counts I and II alleged the violations occurred on January 13.. Counts III and IV alleged that the
violations occurred on January 17.

                                                              M
No. 45933 -7 -II



            Before trial, Cooley moved in limine to exclude a portion of the 911 tape as hearsay.

Specifically, he objected to the portion of the recording in which the 911 operator asks the caller

what number       he is calling from, " the caller hesitates and is unable to recall the number, and the


911    operator gives       that information to the     caller, which   the   caller agrees   to."   RP ( Dec. 16, 2013)


at 52. Cooley argued that the 911 operator' s identification of the number the call originated from

was hearsay and that it was " testimonial evidence coming from the 911 operator, because the 911

operator is the one that actually said what phone number was that the caller was calling in from.

Then the      caller said    that   number must    be it." RP ( Dec. 16, 2013)       at   52. The trial   court   stated, "   I


think it' s admissible for the limited purpose of showing what the defendant did, not for the truth

of   the   matter asserted    by the   911   caller."   RP ( Dec. 16, 2013) at 55- 56.


                                B. TRIAL TESTIMONY AND COOLEY' S STIPULATION


            The State' s witnesses testified as described above. Cooley did not present any evidence.

            In addition, Lutter testified that she knew Cooley' s voice in person and on the telephone.

She further testified that she had listened to the 911 recording and that it was Cooley' s voice on

the recording.

            Katrina Rahier, a tape research analyst for South Sound 911, also testified about the 911


call   for the State.     Rahier testified that the complaint history ( CAD) logs provide the number for

the incoming call, that the CAD log was a business record, and that the CAD log for this call

showed what number the 911 call originated from.


            Rahier   also   identified the •911 recording.         The trial court admitted the 911 recording and

played      it for the   jury. Cooley did not make any additional objections to the admission of the

recording.



                                                               5
No. 45933 -7 -II



          Detective John William Bair testified that he had photographed the text messages on


Lutter' s   phone.       On    cross- examination,       defense          counsel asked       Bair   what "   spoofing of a phone


number" was. RP ( Dec. 18, 2013) at 214. Bair testified that there are computer programs available


that can make it look like a text was sent from a different number than it actually was sent from or

you can pay a service to make your number appear to be somebody else' s number. Bair admitted

that given the information he was able to retrieve from Lutter' s cell phone, he was unable to tell


what device actually sent a message other than from the information on Lutter' s phone itself. He

admitted that someone could have used another phone or computer to spoof a number and send a


text message that appeared to come from that number but did not. But he also testified that in the


numerous phones           he had          examined,    he had only          encountered       spoofing      once.    The trial court


admitted several photographs of incoming calls and several threatening text messages from

Lutter' s phone that appeared to come from the same number related to the 911 call.


           Cooley     stipulated      that   before   January    13       and   17, " there existed a protection order or no -


contact order applicable           to the defendant        and       that the   protected     party   was   Amy     Lutter ... ,   and




that the defendant knew of the existence of the order, and that the defendant had twice been

convicted     for violating the. provisions            of a court order."           Clerk' s Papers ( CP) at 7.


                                             C. JURY INSTRUCTIONS AND VERDICT


           The jury instructions did not include a limiting instruction related to the 911 call.

Instruction 17 stated in part,


                    In   order   to    answer a special verdict            form " yes,"    you must unanimously be
            satisfied    beyond       a   reasonable    doubt that "         yes"    is the correct answer. If you
            unanimously        agree      that the   answer   is "   no"    or cannot unanimously agree upon an
            answer,     then   you must answer " no. "



CP   at   28 ( emphasis       added).      Defense counsel did not object to any jury instructions.

                                                                      2
No. 45933 -7 -II



         The jury found Cooley guilty as charged and answered " yes" to each of the special verdict

forms.


                                                        D. SENTENCING


         At sentencing, 6     the State requested that the trial court impose the crime victim penalty
assessment, $      200 in   court costs,       the deoxyribonucleic ( DNA)             fee,   and $   2, 500 "[ Department of


Assigned Counsel] DAC recoupment. ,7 RP (Feb. 21, 2014) at 284. Neither Cooley nor his counsel

argued that he should not pay any discretionary LFOs.

         Although the State did not present any information about present or future ability to pay

LFOs, defense counsel stated during the sentencing hearing that Cooley and Lutter had both been

teachers   until    2007    when    they " ended up getting involved with methamphetamine, and as a

consequence of       that, their lives just fell         apart."    RP ( Feb. 21, 2014)       at   286.     Additionally, in his

allocution, Cooley mentioned that his child support payments had been modified to zero because

he was going to be incarcerated and had no means to pay child support. He stated that Lutter and

their children were now " homeless" and living with the children' s grandparents. Additionally, he

stated that he would like to be able to " get out and get back to work" as quickly as possible so he

could provide support for his children. RP ( Feb. 21, 2014) at 288.


         The trial    court sentenced          Cooley    to 60     months of   total   confinement.         The trial court also


imposed ( 1)    restitution   in   an amount yet         to be determined, ( 2) $ 500         crime victim assessment, (      3)


    100 DNA database fee, ( 4) $         1, 500 in court- appointed attorney fees and defense costs, and ( 5) a



6 The sentencing hearing was held on February 21, 2014.
7
    The " DAC      recoupment"      is   a   discretionary    cost.    RCW 10. 01. 160( 1), (         3).   The other costs are
mandatory. RCW 7. 68. 035( 1)(               a);   RCW 36. 18. 020( 2)( h); RCW 43. 43. 7541.


                                                                   7
No. 45933 -7 -II



 200 criminal filing fee, for a total of $2,300. The judgment and sentence contains the following

boilerplate finding:

          ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS.                                     The. court has
          considered the total amount owing, the defendant' s past, present and future ability
          to pay legal financial obligations, including the defendant' s financial resources and
          the    likelihood that the defendant'         s status will change.    The court finds that the
          defendant has the ability or likely future ability to pay the legal financial obligations
          imposed herein. RCW 9. 94A.753.


CP at 49. Even though the trial court did not discuss LFOs at length during the sentencing hearing,

it   stated   that it   was   ordering only $ 1,   500 in DAC recoupment because Cooley' s " daughters could

use   that money        when [ he got] out."       RP ( Feb. 21, 2014) at 289.


          Cooley appeals his convictions and LFOs. In his SAG, he also challenges his convictions

and the special verdicts.


                                                         ANALYSIS


                                    I. ADMISSION OF 911 OPERATOR' S STATEMENT


          Cooley first argues that the trial court erred when it allowed the jury to hear the 911

operator' s recitation of the number the 911 call originated from because this statement was not


relevant to the purpose for which the trial court admitted it or any fact at issue and the caller never

admitted       that the   number was       his.    He further argues that the admission of this evidence was


prejudicial because there was no limiting instruction. We hold that any potential error in admitting

this portion of the 911 call was harmless in light of the other evidence presented at trial.


          We review for abuse of discretion a trial court' s evidentiary rulings. State v. Magers, 164

Wn.2d 174, 181, 189 P. 3d 126 ( 2008). Abuse of discretion occurs when a trial court' s decision is


manifestly unreasonable' or based upon untenable grounds or reasons. Magers, 164 Wn.2d at 181.

An evidentiary error is grounds for reversal only if it is prejudicial. State v. Neal, 144 Wn.2d 600,

                                                               8
    No. 45933 -7 -II



    611, 30 P. 3d 1255 ( 2001).            An error is prejudicial if, within reasonable probabilities, it materially

    affected   the   outcome of      the trial. Neal, 144 Wn.2d            at   611.   Notably, "` admission of testimony that

    is   otherwise excludable        is   not prejudicial error where similar            testimony   was admitted ...   without



    objection."' .    State   v.   Weber, 159 Wn.2d 252, 276, 149 P. 3d 646 ( 2006) (                   quoting Ashley v. Hall,

    138 Wn.2d 151, 159, 978 P.2d 1055 ( 1999)).


              The admission of the part of the 911 call in which the 911 operator reads the telephone
J




    number from the 911 system was clearly harmless because the tape research analyst also testified

    that the CAD log for this call showed that the 911 call came from the same number, and Officer

    Yglesias testified that        Cooley    admitted   to   having   called      911 that morning. 8   Because the jury heard

    testimony from other sources about the 911 call' s origin without objection, Cooley does not show

    within a reasonable probability that the 911 operator' s statement affected the outcome of the trial

    and this argument fails. See Weber, 159 Wn.2d at 276.

                                           II. INEFFECTIVE ASSISTANCE OF COUNSEL


              Cooley further argues that the error in admitting the 911 operator' s recitation ofthe number

    the call originated from was compounded by his trial counsel' s failure to request a limiting

    instruction. He contends that a limiting instruction would have prevented the jury from using this

    evidence as proof of Cooley' s telephone number.

              To demonstrate ineffective assistance of counsel, a defendant must show that his counsel' s


    representation was deficient and that the deficientperformance prejudiced the defendant.


    Strickland       v.   Washington, 466 U. S. 668, 687, 104 S.                       Ct. 2052, 80 L. Ed. 2d 674 ( 1984).




    8
         Cooley did not object to any of this testimony.

                                                                      0J
No. 45933 -7 -II



Representation is deficient if it falls below an objective standard of reasonableness based on


consideration of all, the    circumstances.   State v. McFarland, 127 Wn.2d 322,. 334- 35, 899 P. 2d


1251 ( 1995).    Prejudice occurs when but for counsel' s deficient performance, the result of the


proceeding     would   have been different. McFarland, 127 Wn.2d        at   335.   If a party fails to satisfy

either prong, we need not consider both prongs. State v. Foster, 140 Wn. App. 266, 273, 166 P. 3d

726 ( 2007).    Again, because the jury heard testimony from other sources about the 911 call' s

number of origin without objection, Cooley does not show within a reasonable probability that the

911 operator' s statement affected the outcome of the trial and this argument fails. See Weber, 159


Wn.2d at 276.


                                                    III. LFOs


        Cooley next argues that the trial court failed make an individualized determination on his

ability to pay before imposing discretionary LFOs. The State argues that this issue is not ripe for

review until the State attempts to enforce the LFOs, that the issue was not preserved for appeal,


and that even if we choose to address this issue, the trial court properly considered Cooley' s ability

to pay. We hold that he waived this argument by failing to object during sentencing.

        Our Supreme Court recently rejected the State' s ripeness argument in State v. Blazina, 182

Wn.2d 827, 833     n. l,   344 P. 3d 680 ( 2015).    Accordingly, the fact that the State may not yet be

attempting to collect Cooley' s LFOs does not preclude our review of this issue.

        But Cooley did not challenge the trial court' s imposition of LFOs during sentencing so he

may not do so on appeal. State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492 (2013), remanded,

182 Wn.2d 827. Our decision in Blazina, issued before Cooley' s sentencing, provided notice that

the failure.to object to LFOs during sentencing waives a related claim of error on appeal. 174 Wn.


                                                       10
No. 45933 -7 -II



App.    at   911.   As our Supreme Court noted, an appellate court may use its discretion to reach

unpreserved claims of error.      Blazina, 182 Wn.2d        at   830. We decline to exercise such discretion


here.


                                               IV. SAG ISSUES


         In his SAG, Cooley argues that he received ineffective assistance of counsel when he failed

to object to a variety of issues and that jury instruction 17, which instructed the jurors that they

could answer " no" to the special verdict if they could not unanimously agree, was improper and

prejudicial. These arguments all fail.


                            A. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS


                                          1. STANDARD OF REVIEW


         As we noted above, to demonstrate ineffective assistance of counsel, Cooley must show

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


prejudicial. Strickland, 466 U. S. at 687. Representation is deficient if it falls below an objective

standard      of reasonableness   based   on consideration of all      the   circumstances.      McFarland, 127


Wn.2d at 334- 35. Prejudice occurs when but for counsel' s deficient performance, the result of the


proceeding      would   have been different. McFarland, 127 Wn.2d              at   335.   Thus, to succeed on an


ineffective assistance claim that rests on defense counsel' s failure to object, Cooley must show

that it is likely that the trial court would have sustained the objection had it been made. State v.

Fortun- Cebada, 158 Wn.       App. 158;    172, 241 P. 3d 800 ( 2010).       Cooley fails to make this' showing.




                                                       11
No. 45933 -7 -II



                               2. FAILURE TO OBJECT TO CLOSING ARGUMENT


        In his SAG, Cooley appears to argue that he received ineffective assistance of counsel

when defense counsel failed to object to significant portions of the State' s closing argument.9

Cooley fails to show that it is likely that the trial court would have sustained any of the objections

he now contends defense counsel should have made.


        Cooley objects to the following arguments, asserting that they were comments on his right

to not testify:

                   Now, this   case    has four     counts.     It' s clear that the defendant violated this
        order because electronically he sent her text messages, telephonically he called her,
        and directly in person when he swerved towards her.

RP ( Dec. 18, 2013) at 242.


                   And when you look at Plaintiff' s No. .3, which was admitted, a lot of the
        same      language   appears.      This is from Tacoma Municipal Court. " It is ordered that
        defendant is    prohibited      from causing       or   attempting to   cause physical   harm,"   when

        he   swerved    at   her, "
                             by                including
                                           major   assault                doesn' t apply,
                                                                          sexual   assault,"


         molesting, harassing, threatening or stalking, coming near or have any contact
        whatsoever in person or through others by mail, phone or any means directly or
        indirectly."

RP ( Dec. 18, 2013) at 244.


                So let' s talk a little bit about the facts and the credibility of witnesses. Well,
        at the beginning of this case I was reading the defendant' s cell phone to you. And
        you' ve    probably    seen   it   more   times.   Some of you might even have it memorized
        by   now....    And where does this number appear again and again and again?




 Cooley also directs us to portions of the argument from a CrR 3. 5 hearing addressing the
admissibility of his statements to Officer Yglesias during which defense counsel attempts to.raise
issues about the admissibility of the text messages and the call Lutter put on speakerphone at the
police station. It is unclear why Cooley cites to this portion of the record, and we will not address
it further. See RAP 10. 10( b) ( appellant' s SAG argument must inform the court of the nature of
the alleged error).


                                                                12
No. 45933 -7 -II



RP ( Dec. 18, 2013) at 246.


                Now, moving then back to Count I and Count II, the text messages sent on
        January 13th. And you have those in Plaintiff' s No. 11. And what you' re going to
        see is, again, the defendant' s cell phone number popping up time and time again.
        And what I' m going to do is I' m just briefly going to place them on the overhead
        projector.

                   Starting on page 3, you work your way back and you will be able to kind of
        track the time because some of them are duplicates, but Bair had to scroll down to
        capture the entire text message.
                   For example, so the bottom right of page 3 that first one comes in at 11: 19
        p. m.    and   it' s from his     number     saying, " You' re
                                                                     going to die. I will wait for days. I
        don' t   care.     You    will    die."   And that' s kind of the general tone of the threatening
        text messages.

                   And as you make your way to the other ones, you see that he' s talking about
         I' ve   got enough        fire   power     to light up    your   house like     an   Xmas tree," so they' re

        kind of the constant harassing text messages that are coming in.
                   Now, defense           asks    Detective Bair        aboutSomething that is
                                                                                the spoofing.

        possible. ,But again, folks, it' s kind of like your neighbors playing the joke on you
        throwing       snow on your yard.             It' s,   of course, possible,      but is it   reasonable?   Is it
        likely? It' s certainly not reasonable doubt.

RP ( Dec. 18, 2013) at 248- 49.


                    Lutter] has known the defendant for 12                  plus years.        They have children in
        common. She knows his voice. She knows his voice on the telephone. She knows
        his voice in person. And so when she continues to get those calls again, calls at the
        police station that are witnessed by Officer Yglesias, independent officer with no
        personal bias, from the defendant' s cell phone number, they finally get that one
        where they put it on speakerphone, she recognizes his voice. And what is, said on
        that    phone     call   that'   s overheard      by   Officer Yglesias? " You' re as good as dead,
        bitch. I' m going to break            all   the   windows at your parents'         house."
                                                                             Very consistent
        in terms of the kind of threats that he' s been making to her in text messages days
        earlier and also consistent with what occurred that morning, right.. She cracked his
        Plexiglass in the back of his truck and he' s basically going to retaliate and he' s
        going to break her windows.
                   What'    s also   in that      statement, again,      reading between the lines? He knows
        that she' s living at her parents' house. This isn' t some random spoofing. He knows
        that that'     s where she' s       staying.      How do    we    know that? That' s -where the officer
        sees him when he turns away.
               Now, in terms of phone calls, again, Ms. Lutter is the only one that' s telling
        you     that her   phone was         ringing repeatedly         while at   the   station.    Officer Ygelasias
         sic] says, yes, this number keeps coming up. It' s the same number that called 911.


                                                                   13
No. 45933 -7 -II



RP ( Dec. 18, 2013) at 250- 51.


               Officer Yglesias is questioning him about the phone calls and threats made
        that morning. He was clear. Phone call and threats that morning and the defendant
        informed him that it was another phone when asked what phone did you use to call
        911.    He said it was another phone because he didn' t have a functioning phone.. It
        was    the   phone at   home. Well,     which phone   did   you use   to   call 911? He said he
        used another phone. So he admits to calling 911; so there should be no mistake as
        to who was on the phone:
                   Now, you heard from Detective Bair. His role in this case was to retrieve
        text data. And normally you just plug in the USB and all that information comes
        up. It' s a fairly simple phone. Pretty straightforward in that it' s not a smart phone.
        I think he talked       about   that.   And the best he could do in this case was to take
        pictures of it and that' s why you have the pictures versus like the actual printout of
        the phone data itself.
                   And he told him, yeah, spoofing is a possibility, but that doesn' t arise to
        reasonable doubt because there' s absolutely no evidence of spoofing whatsoever.
        And, in fact, the statements that the defendant makes at the scene, the states [ sic]
        that he makes in the text messages, the statements that he makes when the call that' s
        on    speakerphone      that is identified
                                              by [ Lutter] as being him, they kind of tie.
        everything together. In looking at the big picture, that' s when you as the jury get
        to determine defendant is guilty of all four counts.

RP ( Dec. 18, 2013) at 253- 54.


                     Defense counsel described a one- sided domestic breakup where essentially
        all the anger is attributed to [ Lutter] and then neglects to include that that anger
        could also be the defendant, the anger why he swerved at her or why he sent her
        threatening text messages or why he' s calling her and threatening her over the
        telephone.

                     He also tells you not to speculate and then asks you to speculate to the point
        where you defy common sense. And an example of that is, he tells you, you know,
        that there' s no evidence that his client is the individual who was identified by
         Lutter] that     called   911. Yet all of his statements that he makes to Officer Yglesias
        corroborates that.

                What' s the likelihood that some unknown person is calling 911 describing
        that they' re Johnnie Cooley that she just threw a rock that, you know, it' s right by
        my house and, you know, she' s at this location. I' m going to follow her. Okay.
        I' m not going to follow her.
                And then it just so happens that what, I think maybe 10: 45 that morning
        when Officer Yglesias contact him, defendant' s in the area, starts talking about why
        are you talking to me, you got to talk to her about the broken window; doesn' t have
        an explanation as to the swerving but says why the tracks went towards her but then


                                                         14
No. 45933 -7 -II



          is talking about how he had to swerve out of the way. It defies common sense. The
          statements of Officer Yglesias corroborates that he' s the person that called 9.11.


RP ( Dec. 18, 2013) at 272- 73.


          He wants you to essentially disregard all the other evidence that connects the dots
          for you, all the overwhelming evidence.
                   And in terms of the defendant' s statements, he wants you, again, to ignore
          the statements that he made about talking to her parents about the broken window.
          And then he tells       you, common sense --      don' t check your common sense at the
          door. And so he talks about when the officer' s asking him about calling 911, and
          he says, well, I used another phone, defense wants you to believe that the defendant
          was talking about some other 911 call some other date. Officer Yglesias was clear
          they   were   talking   about what   had   occurred   that morning.   That defies common
          sense, folks, beyond a reasonable doubt, beyond a reasonable doubt. Not any doubt
          whatsoever, not one       hundred    percent.   Without any doubt whatsoever, beyond a
          shadow of a doubt, a reasonable doubt.


RP ( Dec. 18, 2013) at 276- 77.


          In closing argument, the State has wide latitude in making arguments to the jury and may

draw reasonable inferences from the evidence. State v. Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937

 2009).    These portions of the State' s closing argument are based on reasonable inferences from

the record and. did not.comment in any way on Cooley' s right to remain silent. Thus, Cooley has

not shown that any objection would have been successful and cannot establish ineffective

assistance of counsel on this ground.




                                                          15
No. 45933 -7 -II



                             3. AUTHENTICATION OF TEXTS AND SPEAKERPHONE CALL


         Cooley next argues that defense counsel failed to argue that the trial court should exclude

the " cell phone evidence" because the State had not sufficiently identified or authenticated this

evidence. 10 SAG at 8. Again, we disagree.

         ER 901(   a) provides, "       The requirement of authentication or identification as a condition


precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in

question   is   what   its   proponent claims."   The proponent of the evidence meets this requirement " if


sufficient proof is introduced to permit a reasonable trier of fact to find in favor of authentication


or   identification." State      v.   Danielson, 37 Wn.   App. 469, 471, 681 P. 2d   260 ( 1984).   Identity of a

party making a call may be established by direct or circumstantial evidence. Danielson, 37 Wn.

App. at 472.

         The evidence here showed that all of these communications originated from a specified


number, Lutter identified the caller on the speakerphone as Cooley, the CAD log stated that the

911 call had originated from this same number as these calls, and Cooley admitted`to Officer

Yglesias that he ( Cooley) had placed the 911 call. This is sufficient evidence to support a finding

that the text messages and cell phone call Officer Yglesias heard over the speakerphone were what


the State purported them to be, texts and calls from Cooley. Because there was sufficient evidence

to satisfy ER 901( a),         Cooley does not show that any objection to the admission of this evidence



10
  Cooley also mentions that defense counsel " inartfully" objected to the introduction of the text
messages and " voice admissions" in the aforementioned CrR 3. 5 hearing. SAG at 9. To the extent
Cooley is attempting to argue that the trial court erred in not considering this objection, that
argument fails. The trial court properly refused to consider these objections at the CrR 3. 5 hearing
because they were not relevant to whether Cooley' s statements to Officer Yglesias were
admissible.




                                                           16
No. 45933 -7 -II



on   this   ground    would     have been     successful.    Accordingly, he does not establish. ineffective

assistance of counsel.



                                           4. AUTHENTICATION OF 911 CALL

            Cooley further argues that defense counsel failed to argue that the 911 call was not properly

authenticated.       But "[   a] sound   recording ...   need not be authenticated by a witness with personal

knowledge of the events recorded. Rather, the trial court may consider any information sufficient

to   support   the   prima    facie showing that the      evidence   is   authentic."   State v. Williams, 136 Wn.


App.   486, 500, 150 P. 3d 111 ( 2007).          The identity of a party to a telephone conversation may be

established by either direct or circumstantial evidence. Danielson, 37 Wn. App. at 472. Here, the

911 caller stated that his name was Johnnie Cooley, Lutter identified Cooley' s voice on the tape,

and   Cooley    admitted      to Officer Yglesias that he had    called      911.   This evidence was sufficient to


establish identity and it is not likely the trial court would have granted a motion brought on this

ground.       Accordingly, Cooley does not show that defense counsel' s failure to raise this issue

amounted to ineffective assistance of counsel.


                                                   5.    PRIVACY ACT '


            Cooley next argues that defense counsel should have objected to the testimony about the

speakerphone call because it was obtained in violation of the privacy act.11 Again, we disagree.

            Washington' s privacy act prohibits the State from intercepting a private telephone

communication by use of a device designed to record or transmit the communication without

consent.      RCW 9. 73. 030( 1)(    a).    It does not prevent a police officer from listening in person to a




i i Ch. 9. 73 RCW.

                                                            17
No. 45933 -7 -II



communication he can hear because the phone is tilted his way or, as here, comes from a

speakerphone.        State    v.   Corliss, 123 Wn.2d 656, 662, 870 P. 2d 317 ( 1994).                 That activity falls

outside the privacy act because it does not involve a device used to record or transmit the

communication.        Corliss, 123 Wn.2d          at   551.   Accordingly, any potential motion challenging this

evidence on this ground would have failed and Cooley does not establish ineffective assistance of

counsel on this ground.


                                                 6. FOURTH AMENDMENT


           Cooley further contends that defense counsel failed to argue that the testimony about the

speakerphone call violated his ( Cooley' s) right to privacy under the Fourth Amendment because

it was obtained without a search warrant. We disagree.


           Relying   on    State    v.   Haq,   166 Wn.   App.       221, 268   P. 3d 997 (   2012),   Cooley argues that

Officer Yglesias'     s"     intercept[ ion]" of this conversation was an attempt to solicit a confession.


SAG at 13. Haq addresses recordings ofjail telephone calls as a violation of right to counsel. 166

Wn. App. at 249. But such violations require governmental effort to elicit incriminating statements

from the    appellant and      that did    not occur    here,   so   Haq is   not   helpful to   Cooley. 166 Wn. App. at

249- 51.    To the extent Cooley is also arguing that Officer Yglesias' s listening in to the call was a

violation of his right to privacy under article I, section 7 of the Washington Constitution, that

argument was also expressly rejected in Corliss. 123 Wn.2d at 664. Thus, Cooley does not show

that any motion challenging the speakerphone evidence on this ground would have succeeded, and

he fails to establish ineffective assistance of counsel.




                                                                18
No.. 45933 -7 -II



                    7. RIGHT TO REMAIN SILENT/ RIGHT AGAINST SELF- INCRIMINATION


        Cooley next argues that defense counsel failed to argue that the admission of the text

messages and the testimony about the speakerphone call violated his ( Cooley' s) right to remain

silent and his right against self-incrimination. Again, we disagree.


        The right to remain silent and the right against self-incrimination prohibit the State from


compelling the defendant to testify at trial or forcing him to participate in a custodial interrogation.

State v. Mendes, 180 Wn.2d 188, 195, 322 P. 3d 791 ( 2014), cert. denied, 135 S. Ct. 1718 ( 2015).


A defendant' s voluntary statements to a victim, such as the ones here, do not fall under those

protections. Accordingly, Cooley has not shown that any motion based on this ground would have

been successful and he fails to establish ineffective assistance of counsel. 12

                                   8.   SIXTH AMENDMENT RIGHT TO COUNSEL


        Citing    Randolph   v.    California, 380 F. 3d 1133, 1144 ( 9th Cir. 2004.), Cooley        also appears

to assert that defense counsel should have challenged the evidence related to the speakerphone call


as a violation of his Sixth Amendment right to counsel because Lutter was acting as an agent for

the State   by   stimulating the    conversation about   the   charged crime.   Again,   we   disagree.

            Once a defendant' s Sixth Amendment right to counsel has attached, the government is


forbidden from ` deliberately eliciting'       incriminating     statements   from the defendant." Randolph,


380 F.3d atl143 ( quoting Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L. Ed.

2d 246 ( 1964)).     In Randolph, the court considered whether a jailhouse informant was acting as an



12
  Cooley also cites to Townsend v. Sain, 372 U.S. 293, 307, 83 S. Ct. 745, 9 L. Ed. 2d 770 ( 1963),
overruled on other grounds by Keeney v. Tamayo- Reyes, 504 U. S. 1, 5- 6, 112 S. Ct. 1715, 118 L.
Ed. 2d 318 ( 1992).         Townsend addresses admission of confessions not the admission of a

defendant' s voluntary statements to a victim, so it is not helpful here.

                                                         19
No. 45933 -7 -II



agent for the State when he obtained information about the defendant and, therefore, violated the


defendant' s Sixth Amendment         right   to   counsel.        380 F. 2d    at   1143- 44.   Here, however, even


assuming that Cooley' s right to counsel had attached, Lutter did not initiate the contact at issue;

she   merely   answered   her   phone and placed        it   on speakerphone.            She did not act as an agent.


Accordingly, Cooley does not show that a motion brought on this ground would have been

successful, and he fails to establish ineffective assistance of counsel.

                                      9. RIGHT TO CONFRONTATION


        Cooley further argues that defense counsel failed to argue that the admission of the 911

call violated his ( Cooley' s) right to confront witnesses under article I, section 22 and the Sixth

Amendment because he        was not allowed        to   rebut     the   evidence    authenticating the 911 tape— he


appears to refer to Officer Yglesias' s testimony that Cooley had admitted calling 911 the day of

the incident. This argument also fails.

        The state and federal confrontation clauses give a defendant a right to confront and cross-


examine witnesses     testifying   against   him. Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct.


1354, 158 L. Ed. 2d 177 ( 2004);     State v. McDaniel, 155 Wn. App. 829, 846, 230 P. 3d 245 ( 2010)

The confrontation clause prohibits admission of testimonial statements made by a witness who did

not appear at trial unless the witness was unavailable to testify and the defendant had a prior

opportunity for    cross- examination.       Crawford, 541 U.S.           at   53- 54.    Officer Yglesias testified at


trial, so there was no violation of Cooley' s confrontation rights. That Cooley chose not to testify.

was a voluntary waiver of his right to provide testimony challenging Officer Yglesias' s testimony.

Accordingly; there is no likelihood that the trial court would have granted a motion brought on this

basis, and Cooley fails to establish ineffective assistance of counsel.


                                                             20
No. 45933 -7 -II



                                               B. SPECIAL VERDICT FORMs


             Finally, Cooley argues that jury instruction 17 was improper because it required the jury to

be unanimous and did not allow the jury to leave the form blank if it did not come to a unanimous

decision. We hold that Cooley failed to preserve this argument under RAP 2. 5( a).

             We generally decline to review claims that an appellant raises for the first time on appeal.

RAP 2. 5(      a).    We will, however, review an argument for the first time if it concerns a " manifest

error   affecting       a constitutional right."       RAP 2. 5(   a)(   3). "   A constitutional error is manifest if the


appellant can show actual prejudice, i.e., there must be a `plausible showing by the [ appellant] that

the   asserted error          had   practical and   identifiable   consequences        in the trial   of   the   case."'   State v.


Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011) ( internal                         quotation marks omitted) ( alteration




in   original) (     quoting State v. O' Hara, 167 Wn.2d 91, 99, 217 P. 3d 756 ( 2009)).

             In Washington, defendants have                a constitutional right      to   a unanimous verdict.           State v.


Badda, 63 Wn.2d 176, 181- 82, 385 P. 2d 859 ( 1963).                         A jury' s inability to come to. a unanimous

agreement          is not the equivalent       of an acquittal        for   purposes   of   double    jeopardy.       In re Pers.


Restraint of Candelario, 129 Wn.               App.       1, 6, 118 P. 3d 349 ( 2005) (     quoting State v. Despenza, 38

Wn.     App.       645, 654, 689 P. 2d 87 ( 1984)).              But even presuming, but not deciding, that jury

instruction 17 was constitutionally defective because it allowed the jury to reject the special verdict

even if it was not unanimous, Cooley does not show actual prejudice. The jury unanimously found

that    he   and     Lutter   were members of       the   same   family     or   household. Thus, the court' s instruction




                                                                 21
No. 45933 -7 -II



to the jury thatit must answer " no" if it could not come to a unanimous decision played no role in

the jury' s decision and there was no risk the jury failed to reach a unanimous decision.

            Apparently citing State   v.   Bashaw, 169 Wn.2d 133, 147- 48, 234 P. 3d 195 ( 2010),   overruled




by   State   v.   Nunez, 174 Wn.2d 707, 285 P. 3d 21 ( 2012),     Cooley argues that this alleged error was

not harmless because when unanimity is required, a juror with reservations may not hold to his or

her position or may not raise additional questions that could have led to a different'result. Bashaw

is not helpful here. Bashaw held that it was error to instruct the jury that the special verdict had to

be unanimous, but our Supreme Court reversed this holding in Nunez. Nunez, 174 Wn.2d at 709-

10. And to the extent we can still analogize to Bashaw' s harmless error analysis, the same concern


expressed in Bashaw does not exist here because Cooley' s jury was instructed that it was to vote

 no" if it could not come to a unanimous decision, an option not available to the jury in Bashaw.

Thus, unlike in Bashaw, there is no question here whether the jury' s unanimous decision that

Cooley and Lutter were members of the same family or household was a unanimous verdict.

Because Cooley does not show a manifest error affecting a constitutional right, he has waived this

issue. 13

            In sum, we hold that the admission of the 911 operator' s statement was harmless, that


Cooley does not establish ineffective assistance of counsel on any of his alleged grounds, that he




13 To the extent Cooley is also raising this as an ineffective assistance of counsel claim, that
argument would also fail because Cooley cannot establish prejudice.
                                                         22
No. 45933 -7 -II



has waived his LFO challenge, and that any potential error in jury instruction 17 was harmless.

Accordingly, we affirm the convictions and sentence.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,


it is so ordered.



                                                                             C'#
                                                       HANSOM, C. J.
 I concur:




 SUTTON, I




                                                23
No. 45933 -7 -II



           BJORGEN, J. ( concurring) —   For the reasons set out in my dissent in State v. Lyle,

P. 3d _,     No. 46101 -3 - II, 2015 WL 4156773 ( Wash. Ct.      App. July   10, 2015), I would reach


Johnnie Cooley' s legal financial obligations' challenge, even though he did not raise it during

sentencing. However, the majority in Lyle, a published decision, reached a contrary conclusion.

Lyle, _      P. 3d _,   No. 46101 -3 -II, 2015 WL 4156773 ( Wash. Ct. App.       July   10, 2015). Unless


Lyle is overturned or its bases questioned by subsequent case law, I shall observe its result under

principles of stare decisis. Therefore, I concur in this decision with the reservation here

expressed.




                                                   B? URGE' -- ---
                                                                J




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