                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                       March 26, 2019




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                            No. 50679-3-II

                                   Respondent,

         v.

    RUSSELL ARNOLD FORD,                                      UNPUBLISHED OPINION

                                   Appellant.

        NEVIN, J.P.T.* — Russell Arnold Ford appeals his jury trial conviction for attempting to

elude a pursuing police vehicle. He argues that (1) the trial court erred when it denied defense

counsel’s request for a recess to allow Ford to secure a witness’s presence and that this error

interfered with Ford’s right to present a defense and right to compulsory process, and (2) he

received ineffective assistance of counsel because defense counsel failed to request a material

witness warrant to secure the same witness’s presence. We affirm.

                                                 FACTS

                                           I. BACKGROUND

        Shortly before 9:30   PM   on the evening of February 16, 2017, Cosmopolis Police Officer

Nicholas Byron attempted to stop a van he had observed speed through a stop sign. The van



*
 Judge Jack Nevin is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW
2.06.150.
No. 50679-3-II


initially slowed to 5 to 10 miles an hour, and Officer Byron started to pull in behind it. As the van

slowed, Officer Byron was able to see the driver.

         Rather than stopping, the van suddenly drove off at a high rate of speed. As Officer Byron

pursued the speeding van, it turned down a dead-end road, jumped the curb at the end of the road,

became airborne, and came to a stop about 70 feet off of the roadway.

         Officer Byron did not observe anyone exit the van. He did, however, see someone run

away from the van after it stopped. Officer Byron did not see anyone else in the van. The driver’s

side door was wide open and the passenger’s side door was open about a half an inch. Officer

Byron characterized the passenger’s side door as being “unlatched,” and believed it could have

come unlatched due to the impact of the crash. 1 Verbatim Report of Proceedings (VRP) at 81.

         Kenneth Singleton, Jr., a bystander, also witnessed the crash and observed a man fleeing

the van. Singleton reported this to Officer Byron.

         More officers arrived soon after the crash and searched the nearby wooded area. Within

five minutes, the officers located and arrested Ford. After advising Ford of his Miranda1 rights,

Ford told Officer Byron that “he had borrowed the vehicle from a friend.” 1 VRP at 59.

                                          II. PROCEDURE

         The State charged Ford with attempting to elude a pursuing police vehicle. The case

proceeded to a jury trial. Ford’s defense was that he was not the driver.




1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 50679-3-II


                                        A. PRETRIAL HEARINGS

          During a pretrial hearing, there was some discussion about whether the van’s prior owner,

Kenneth Beebe, had identified Ford as the person who purchased the van. The State admitted that

Beebe’s statement2 did not say that he sold the van to Ford and that any assertion by Beebe that he

sold the van to Ford would be based on someone else’s knowledge and would be inadmissible.

The State further commented that the trial court could exclude Beebe’s statement because of late

disclosure.

          At a later pretrial hearing, defense counsel stated that Ford planned to call Beebe as a

witness. Defense counsel did not, however, comment on what information Beebe would provide.

                                               B. TRIAL

1.        TESTIMONY ON FIRST DAY OF TRIAL AND HEARSAY OBJECTION

          At trial, Officer Byron and Singleton testified consistent with the facts set out above.

Although Singleton could not identify the person he saw fleeing the van, Officer Byron identified

Ford as the driver based on what he (Officer Byron) had seen when the van had initially slowed

down.

          On cross-examination, defense counsel asked Officer Byron if he had “any information”

about who owned the van. 1 VRP at 73. The State objected on hearsay grounds. Defense counsel

responded that this information would have probably been communicated by radio and that there

was likely a “[computer-aided dispatch (CAD)] record” containing this information. 1 VRP at 73.

The trial court reserved its ruling on the State’s hearsay objection.




2
    This statement is not part of the record on appeal.

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No. 50679-3-II


       Ford’s witnesses included Ford’s friends David Ruport, Chelsie Landgraf, and Tyler

Parker. Ford also called Officer Byron.

       Ruport testified that on the night of the incident, he, Ford, and another friend drove to a

nearby town to look at a vehicle that was for sale. On the way back, they stopped at a gas station

and Ford joined a man and a woman named “Chelsie” in their van. 1 VRP at 131. Ruport testified

that Ford got into the van on the passenger’s side. Ruport also testified that he was driving behind

the van when he saw a police vehicle pull in behind the van. He stated that he did not see the

people in the van change drivers at any point. Ruport admitted that he had a criminal record that

included “crimes of dishonesty.” 1 VRP at 129.

       Landgraf testified that on the night of the incident, Ford joined her and her boyfriend Parker

in a van that was driven by Parker. She testified that Ford was sitting in the front passenger’s seat

and that she was sitting on a mattress in the back of the van. She further testified that Parker was

driving at the time of the pursuit and that she and Parker fled through the driver’s side door after

the van crashed. Landgraf admitted that she had several prior theft convictions.

       After the trial court released the jury on the first day of trial, the trial court and the parties

discussed the State’s earlier hearsay objection related to whether Officer Byron had information

about who owned the van. Regarding the source of Officer Byron’s information regarding the

van’s owner, defense counsel stated that there was a CAD log but that Beebe could testify about

the van’s ownership and that he would be in court the next day. Defense counsel appeared to agree

that questioning Beebe about the van’s title would be a “more expedient” way to introduce the

evidence of ownership than trying to introduce it through Officer Byron or through other official

records. 1 VRP at 166.


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No. 50679-3-II


2.     SECOND DAY OF TRIAL

       On the second day of trial, before presenting any witnesses, the State advised the trial court

that in a prior hearing Parker had stated that he had not been driving the van. The State was

concerned that defense counsel was planning to call Parker for the sole purpose of impeaching

him. Defense counsel clarified that she intended to call Parker to assist in establishing who owned

the van after calling Officer Byron to testify about a photomontage that was used to identify Parker

as the van owner—apparently through Beebe. Defense counsel then stated, “I can go ahead and

not ask Mr. Parker whether he was driving the vehicle that night, but there was some solid evidence

that he was.” 2 VRP at 173.

       Defense counsel then called Officer Byron. Officer Byron testified that after the attempted

el

uding incident, he had constructed a photomontage containing a photograph of Parker to “help

identify the subjects that potentially purchase[d] a vehicle.” 2 VRP at 182. When defense counsel

asked Officer Byron if someone had selected Parker from the photomontage, the State objected on

hearsay grounds, and the trial court sustained the objection.

       Outside of the jury’s presence, the State argued that because Beebe had not testified,

Beebe’s identification of Parker in the photomontage was hearsay. The State also objected on the

basis of relevance. Defense counsel argued that the vehicle’s ownership was relevant to who was

driving the vehicle and that the vehicle’s ownership could “establish[ ] a reasonable doubt in the

mind of the juror [sic].” 2 VRP at 183.

       The parties discussed the hearsay exception for identification. The State explained that the

exception only applied after the witness has testified and that Beebe had not testified. Defense


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No. 50679-3-II


counsel responded, “I did ask him to be here. I’ve subpoenaed him, but he has not shown.” 2

VRP at 185.

       The State advised the trial court that Beebe had been in court the day before and that Beebe

“said he had received only [the State’s] subpoena.” 2 VRP at 185. The State said that it had told

Beebe that it was not going to call him and that he could go home, but it asked him to remain

available.

       Defense counsel responded that although she personally had not been able to reach Beebe,

her office had spoken to Beebe on the afternoon of the first day of trial. According to defense

counsel, Beebe “indicated that he had gotten [defense counsel’s] subpoena, but that he didn’t want

to come back to court.” 2 VRP at 185. When the State commented that Beebe had seemed

cooperative during their interactions, defense counsel stated, “Maybe we could take a recess and

you could call him.” 2 VRP at 185.

       The trial court responded,

       Well, we need to have witnesses arranged and ready to go, so. . . I’m going to
       sustain the objection as far as hearsay, because that sounds like where you’re
       headed as far as some sort of gesture towards a particular person on that montage.

2 VRP at 186 (alteration in original).

       The trial court then asked defense counsel whether Beebe had been served. Defense

counsel responded, “I believe so. I would have to double check.”3 2 VRP at 186. When the jury

then returned, the trial court instructed it to disregard the testimony regarding the photomontage.




3
 The appellate record contains a copy of the subpoena that the State served on Beebe; it does not
contain any record of a subpoena that the defense served on Beebe.

                                                 6
No. 50679-3-II


       Defense counsel then asked Officer Byron if he had been able to determine who owned the

van, and the State objected based on hearsay. The trial court sustained the objection because

defense counsel had not laid “a proper foundation.” 2 VRP at 187. Defense counsel then

questioned Officer Byron about looking up Department of Licensing records and whether those

records disclosed the owner of the van. The State objected, arguing that Officer Byron was not

the record custodian. The trial court sustained the objection and instructed the jury to disregard

this line of questioning.

       Defense counsel next called Parker. Parker testified that he had not seen Ford “for a long

time” and denied seeing him on February 16. 2 VRP at 189. Parker admitted that he knew

Landgraf, but he testified that she was not his girlfriend and that he had last seen Landgraf about

six months earlier, well before the eluding incident. Parker also testified about talking to Officer

Byron a couple of weeks before the trial. He stated that he told Officer Byron that he did not have

anything to do with “a felony that happened.” 2 VRP at 190. Parker also admitted that he was

currently in custody on a theft charge.

       The State did not question Parker. Neither party asked Parker whether he owned the van.

       In closing argument, defense counsel argued that the key issue was whether the State had

proven that Ford had been driving the van during the eluding incident. Defense counsel’s argument

also focused on the credibility and accuracy of the testimony implicating Ford as the driver.

       The jury found Ford guilty of attempting to elude a police vehicle. Ford appeals his

conviction.




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No. 50679-3-II


                                            ANALYSIS

       Ford argues that the trial court erred when it denied defense counsel’s request for a recess

to allow her to secure Beebe’s presence and that this error interfered with Ford’s right to present a

defense and right to compulsory process. He also argues that he received ineffective assistance of

counsel because defense counsel failed to request a material witness warrant to secure Beebe’s

presence. These arguments fail.

                                  I. REFUSAL TO CALL A RECESS

       We first address whether the trial court erred when it refused to call a recess to allow

defense counsel time to secure Beebe’s presence. Ford asserts that Beebe was a material witness

because his testimony would have established that Parker had purchased the van and “Parker’s

ownership of the van was an important point for Ford’s defense, as it tended to corroborate that

Parker was the driver” rather than Ford. Br. of Appellant at 8.

       We review a trial court’s decision to grant or deny a recess for abuse of discretion. State

v. Mays, 65 Wn.2d 58, 62, 395 P.2d 758 (1964); State v. Bluehorse, 159 Wn. App. 410, 436, 248

P.3d 537 (2011). The trial court abuses its discretion only if there is a clear showing that the

court’s exercise of discretion was manifestly unreasonable, based on untenable grounds, or based

on untenable reasons. State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013).

       But

       even where the denial of a motion for [recess] is alleged to have deprived a criminal
       defendant of his or her constitutional right to compulsory process, the decision to
       deny [the motion] will be reversed only on a showing that the accused was
       prejudiced by the denial and/or that the result of the trial would likely have been
       different had the [motion] not been denied.




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No. 50679-3-II


State v Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123 (1994). This determination “‘must be [based

on] the circumstances present in the particular case.’” Tatum, 74 Wn. App. at 86 (alteration in

original) (quoting State v. Eller, 84 Wn.2d 90, 96, 524 P.2d 242 (1974)). Ford does not meet this

burden.

        Ford intended to call Beebe to establish that Parker owned the van, which Ford asserts

would make it more probable that Parker, rather than Ford, was driving the van. But the ownership

of the van is not relevant4 to who was driving the van at the time of the incident—just because

someone owns a vehicle it does not mean he or she is the exclusive driver of that vehicle. Thus,

there is no reasonable probability that the evidence Ford sought to offer would have changed the

result in this case.5

        Furthermore, Ford could have also introduced evidence of the van’s ownership through

Parker, whom the defense already intended to call as a witness. Because the defense had another

way of establishing the van’s ownership, Ford does not show that the trial court abused its

discretion by refusing to call a recess to allow the parties to contact Beebe.

        Because Ford fails to establish that calling Beebe would have changed the results of this

case or otherwise establish that the trial court abused its discretion, Ford is not entitled to relief on

this ground.




4
 Relevant evidence is “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” ER 401.
5
 We note that Ford’s reliance on State v. Edwards, 68 Wn.2d 246, 412 P.2d 747 (1966), does not
change this outcome because Edwards does not address prejudice.

                                                   9
No. 50679-3-II


             II. RIGHT TO PRESENT A DEFENSE AND RIGHT TO COMPULSORY PROCESS

        Ford also contends that the trial court’s refusal to grant a recess denied him his right to

present “a complete defense,” which includes his right to compulsory process to compel the

attendance of witnesses. Br. of Appellant at 7. Again, we disagree.

                The Sixth Amendment provides, in part: “In all criminal prosecutions, the
        accused shall enjoy the right . . . to have compulsory process for obtaining witnesses
        in his favor. . . .” U.S. Const. amend. VI. The federal right to compulsory process
        is applicable to the states through the Fourteenth Amendment. Washington v.
        Texas, 388 U.S. 14, 17-19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). The
        defendant’s right to compel the attendance of witnesses is “in plain terms the right
        to present a defense.” Washington, 388 U.S. at 19. But the Washington Supreme
        Court has recognized that “[a]lthough guarded jealously, the right [to compulsory
        process] is not absolute.” State v. Smith, 101 Wn.2d 36, 41, 677 P.2d 100 (1984).
        The defendant’s right to obtain witnesses in his favor applies only to witnesses who
        are material to the defense. Smith, 101 Wn.2d at 41 (citing Washington, 388 U.S.
        at 23). And, the defendant bears the burden of establishing materiality. Smith, 101
        Wn.2d at 41.

State v. Wimbish, 100 Wn. App. 78, 82, 995 P.2d 626 (2000). The burden of establishing

materiality “has been described as establishing a colorable need for the person to be summoned.”

Smith, 101 Wn.2d at 41-42 (citing Ashley v. Wainwright, 639 F.2d 258 (5th Cir. 1981)). Ford fails

to establish materiality.

        Again, Ford sought Beebe’s testimony to establish that Parker owned the van. As discussed

above, the van’s ownership was not relevant to who was driving the van at the time of the eluding

incident. Additionally, there were other ways Ford could have established whether Parker owned

the van. For instance, Ford could have presented records establishing the van’s ownership or asked

Parker whether he owned the van. Thus, there was no “colorable need” to summon Beebe, and

Ford fails to show that he was denied his right to present his defense or his right to compulsory

process. Smith, 101 Wn.2d at 42.


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No. 50679-3-II


                       III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

       Finally, Ford argues that defense counsel’s failure to request a material witness warrant to

secure Beebe’s testimony was ineffective assistance of counsel. Because it is not reasonably

probable that the trial court would have granted a request for a material witness warrant, this

argument fails.

       When addressing an ineffective assistance of counsel claim, we begin our analysis with a

strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251

(1995). To prevail on a claim of ineffective assistance, Ford must show that (1) his counsel’s

performance was deficient in that it fell below an objective standard of reasonableness based on

all the circumstances and (2) the deficient performance prejudiced him because had the errors not

occurred the result of the trial probably would have been different. McFarland, 127 Wn.2d at 334-

35 (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). Ford must satisfy both

criteria in order to show that the conviction “‘resulted from a breakdown in the adversary process

that renders the result unreliable.’” State v. Garrett, 124 Wn.2d 504, 518, 881 P.2d 185 (1994)

(quoting Strickland, 466 U.S. at 687). To establish prejudice in this context, Ford must show that

the trial court would have granted a motion for a material witness warrant had defense counsel

requested one.

       CrR 4.10(a) provides for the issuance of material witness warrants. Under CrR 4.10(a),

Ford could obtain a material witness warrant only if he showed that (1) Beebe’s testimony was

material and (2) Beebe had refused to obey a lawfully issued subpoena or it was impracticable to




                                               11
No. 50679-3-II


secure Beebe’s presence by subpoena. CrR 4.10(a)(2), (3). Ford fails to show that he satisfied

both of these requirements.

         First, as discussed above, Ford does not show that Beebe’s testimony was material.

Second, the record shows that when the trial court asked defense counsel if she had served Ford

with a subpoena, defense counsel responded that although she believed that Beebe had been served

with a defense subpoena, she would have to verify that he had been served. Thus, based on the

record before the trial court, the trial court would have had no grounds to find that Beebe had

refused to obey a lawfully issued subpoena.6 Because Ford does not show that the trial court would

have issued a material witness warrant had defense counsel requested one, his ineffective

assistance of counsel claim fails.

         Accordingly, we affirm.

         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.



                                                  NEVIN, J.P.T.
    We concur:



    WORSWICK, P.J.



    SUTTON, J.



6
 We note that Ford does not argue that defense counsel was ineffective for failing to subpoena
Beebe.
                                             12
