                                                                             FILED
                                                                           July 7, 2016
                                                                  In the Office of the 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. 33169-5-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
RAMON MORFIN JR.,                             )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO,   J. - Ramon Morfin appeals from his conviction at a bench trial on two

counts of first degree assault, primarily arguing that the trial judge erred in admitting two

officers' identification of him as the shooter from a poor quality video recording of the

incident. Believing the judge properly admitted that evidence, we affirm.

                                          FACTS

       The shooting occurred at a Franklin County Motel 6 late in the evening of August

29, 2011. A man fired multiple shots at Paula and Debbie Villarreal while they were

seated in a car outside the hotel. The hotel's video surveillance system captured the

shooting. Both women survived; Paula Villarreal had to have a bullet surgically removed

from her jaw.
No. 33169-5-III
State v. Morfin


       Detective Kirk Nebeker was one of the detectives investigating the shooting. He

reviewed the surveillance video and interviewed a number of individuals in rooms of the

motel, including Ramon Morfin. The detective also eventually interviewed Manual

Ramirez Salazar. The detective indicated to Mr. Ramirez Salazar that the video

surveillance was poor quality and did not identify the shooter. Ramirez Salazar told

Nebeker that Mr. Morfin was the shooter. Sergeant Brad Gregory also participated in the

investigation at the motel and saw Mr. Morfin. He also viewed the surveillance video.

       The prosecutor filed two counts of first degree assault while armed with a firearm.

The information also alleged the aggravating factors that the crimes were committed to

advance the defendant's gang and to advance his own standing within that organization.

Mr. Morfin waived his right to a jury and proceeded to a bench trial.

       Detective Nebeker's testimony laid the foundation for admitting the surveillance

video. Prior to playing the video, the detective described the contents of the video,

including his identification of the shooter: "You can see who I identify as Mr. Morfin lean

over the car, and you can see the fire from the muzzle as shots go out." Defense counsel

did not object to this testimony. The video was then played for the bench.

       The detective had periodic prior contacts with Mr. Morfin dating back 11 years

before the shooting. When seeing him at the hotel, the detective immediately recognized

his face. However, he could not recognize Mr. Morfin's face in the video because of its

poor quality. Instead, he recognized Mr. Morfin based on the clothing he was wearing that

                                             2
No. 33169-5-III
State v. Morfin


night. He similarly thought the shooter had the same body build as Mr. Morfin had.

       After discussing the detective's belief that Mr. Morfin was the shooter, the

prosecutor asked Detective Nebeker about his interview of Mr. Ramirez Salazar. In both

direct and redirect examination, the prosecutor solicited answers that Ramirez Salazar had

confirmed the detective's belief that Morfin was the shooter. Defense counsel did not

object to either of these statements. Instead, counsel cross-examined the detective

concerning perceived inconsistencies between his trial testimony about the quality of the

videotape and what he had told Ramirez Salazar about the tape's quality. The detective

explained that he used a ruse on Ramirez Salazar to obtain information.

       Sergeant Brad Gregory was the only other witness who identified Mr. Morfin as the

shooter. Like Detective Nebeker, Gregory could not identify faces on the videotape and

based his identification solely on the shoot~r's clothing and "body style." Unlike Nebeker,

Sergeant Gregory had no prior experience with Mr. Morfin before that night.

       The trial judge found Mr. Morfin guilty of both charges and the accompanying

firearm enhancements, but rejected the two gang-related aggravating factors. Commenting

on the evidence, the court indicated that the videotape itself was insufficient to identify the

shooter. 1 The court confirmed that it relied on the identification made by the two officers.

The written findings of fact prepared by the prosecutor's office also credit the two officers'


       1
         "The video itself would not allow an individual who hasn't observed these folks
at the scene to make much of it." Report of Proceedings at 165.

                                              3
No. 33169-5-III
State v. Morfin


identification from the video and describe the clothing worn by Mr. Morfin and seen on the

video. The findings also note that Mr. Ramirez Salazar confirmed the identification,

although the court's oral remarks did not mention Mr. Ramirez Salazar.

       Mr. Morfin timely appealed to this court.

                                         ANALYSIS

       This appeal challenges the use of the officers' identification testimony and the

reference to Mr. Ramirez Salazar's "confirmation" that Mr. Morfin was the shooter. 2 As

there was no objection at trial to any of this testimony, Mr. Morfin frames the issues on

appeal as instances of ineffective assistance of counsel. We address the two arguments as

sub-issues of that challenge.

       Well settled standards govern our review. Typically, the failure to raise an

evidentiary challenge at trial waives any challenge to the evidence. State v. Guloy, 104

Wn.2d 412, 421, 705 P.2d 1182 (1985); RAP 2.5(a). In the case of assertions of

ineffective assistance of counsel, appellate courts undertake a two-prong analysis. The

Sixth Amendment to the United States Constitution guarantee of the right to counsel

requires that an appointed attorney perform to the standards of the profession. Counsel's

failure to live up to those standards will require a new trial when the client has been

prejudiced by the attorney's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899


       2
         Mr. Morfin also filed a prose statement of additional grounds. None of the four
issues raised in that document have merit and we will not further discuss them.

                                             4
No. 33169-5-III
State v. Morfin


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.

Stricklandv. Washington, 466 U.S. 668, 689-691, 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 error was so significant, in light of the entire trial

record, that it deprived him of a fair trial. Id. at 690-692.

       Mr. Morfin first contends that his counsel should have objected to the testimony

from Nebeker and Gregory identifying him as the shooter in the video based on the

clothing he had been wearing. He contends that counsel should have raised a

foundational challenge to the testimony in accord with the decision in State v. George,

150 Wn. App. 110, 119, 206 P.3d 697 (2009). We think the more apropos decision is

State v. Hardy, 76 Wn. App. 188, 884 P.2d 8 (1994).

       In Hardy, the defendants objected at jury trial to testimony from an officer who

identified the defendant from a grainy videotape as the person who purchased drugs from

a police informant. Id. at 189-190. They contended that the testimony invaded the

province of the jury and was improper opinion testimony. Id. at 190. Division One noted

the lay opinion testimony was proper under ER 701 when it was based on the perception

of the witness and was helpful to a clear understanding of the issue. Id. After review of

cases interpreting the instructive federal version of the rule, the court stated:




                                               5
No. 33169-5-III
State v. Morfin


       A lay witness may give an opinion concerning the identity of a person
       depicted in a surveillance photograph if there is some basis for concluding
       that the witness is more likely to correctly identify the defendant from the
       photograph than is the jury.

Id.

       In each case, the officers involved had prior contacts with the defendants. Id. at

191-192. Because the officers knew the defendants, they were "in a better position to

identify [the defendant] in the somewhat grainy videotape than was the jury." Id. at 191.

The court also rejected the claim that the testimony invaded the province of the jury since

the jury was free to disbelieve the officers. Id.

       A somewhat different factual pattern was presented in George, a robbery

prosecution. There a divided Division Two panel concluded that an officer who had

talked to the defendants the night of the robbery and extensively reviewed the

surveillance video invaded the province of the jury when he identified the robbers from

the video. 150 Wn. App. at 118. The George majority distinguished Hardy on the basis

of the "extensive" contacts the Hardy officers had with the defendants during the years.

Id. at 119. Although the George officer had based his identification in part on the

clothing worn that night, it was clear that there had been some change in clothing

between the robbery and the police contact. Id. at n.4. The dissenting judge concluded

the officer had enough contact with the defendant that night to comment about the video.

Id. at 120-121 (Penoyar, A.CJ., dissenting in part).


                                              6
No. 33169-5-111
State v. Morfin


       We need not opine whether George was properly decided since it, too, is

distinguishable from this case. Here, Detective Nebeker had known Mr. Morfin a long

time, putting him in at least the same position as the officers involved in Hardy.

Although Sergeant Gregory did not have any prior exposure to Mr. Morfin, unlike

George there was no evidence that Mr. Morfin had changed his clothing in the brief

interval between the shooting and the meeting with the police. That evidence, therefore,

was more probative than it was in George.

       Even more critically than those two distinctions, the question presented by ER 701

is whether the evidence was helpful to the trier of fact. Here the trial court, sitting as trier

of fact, expressly noted the importance of the identification by officers who saw the

defendant at the scene given the poor quality of the videotape. It was well within the

discretion of the trial court under ER 701 to admit the evidence. Indeed, as this was a

bench trial, there is very little chance the evidence invaded the province of the trier of

fact. The court expressly noted that it was free to credit or reject the testimony of the two

officers. Report of Proceedings (RP) at 165. Accordingly, the concerns of the George

majority have less weight under these facts.

       Defense counsel was not ineffective for failing to object. The evidence was

admissible under ER 701 and Hardy. There is little likelihood an objection would have

succeeded. Accordingly, Mr. Morfin's argument fails to satisfy the first prong of

Strickland.

                                               7
No. 33169-5-III
State v. Morfin


       Mr. Morfin's second argument, however, does satisfy the initial Strickland

standard. He argues, and we agree, that his counsel erred by not objecting to the

detective's two statements that Mr. Ramirez Salazar confirmed that Mr. Morfin was the

shooter. 3 This error, however, was harmless beyond a reasonable doubt.

       The State agrees the statements constituted hearsay, but argues there was no

objection due to defense tactics and the omission was also harmless. We are not

convinced that the tactical argument is correct, but need not decide that point since the

error was harmless.

           The trial judge did not mention the Ramirez Salazar statements when issuing the

bench verdict other than in the context of the detective's ruse, but did expressly discuss

the identification testimony by the two officers. RP at 163-165. Although the statements

were included in the written findings prepared by the prosecution, there is no indication

that the trial court did consider the testimony as substantive evidence. Clerk's Papers at

32. Accordingly, we do not believe the evidence had any impact on the bench verdict.




       3
         Normally the decision to not object to inadmissible evidence is tactical, but there
is an exception to that general rule. "The decision of when or whether to object is a
classic example of trial tactics. Only in egregious circumstances, on testimony central to
the State's case, will the failure to object constitute incompetence of counsel justifying
reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).

                                              8
No. 33169-5-III
State v. Morfin


       The critical evidence was the testimony of the two officers linking the clothing

seen in the video to that worn by Mr. Morfin at the time of the incident. 4 The trial court

only relied on that testimony in reaching the bench verdict. The statements attributed to

Mr. Ramirez Salazar played no part in that determination. The error in not challenging

them at trial did not prejudice Mr. Morfin.

       In both instances, Mr. Morin has not met his burden of establishing that his trial

counsel performed ineffectively. The convictions are 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.




WE CONCUR:




      Lawrence-Berrey, J.
                                   j
      4
         In this court's view, although the video was so grainy that the shooter's face
could not be identified, the shooter's clothing was sufficiently discemable in the video to
support the identification testimony based on the clothing alone.

                                              9
