                                                                        FILED
                                                                   SEPTEMBER 28, 2017
                                                                 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. 34769-9-111
                     Respondent,              )
                                              )
       V.                                     )
                                              )
JEFFREY TYLER MARTIN,                         )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. -Jeffrey Martin appeals his convictions for first degree robbery and

first degree burglary, arguing that his trial counsel provided ineffective assistance by

failing to argue that the excited utterance exception authorized admission of a statement

made by his codefendant. Counsel did not err, so Mr. Martin fails to establish that his

counsel was ineffective.

                                          FACTS

       This case had its genesis in a confrontation in a casino hotel room in Airway

Heights. Earlier in the evening, victim Gary Eskridge had exchanged telephone numbers

with Patricia Walpole. The two had met at the casino; Eskridge was staying at the

casino's hotel. Ms. Walpole was accompanied by her children, Dustin Perrin and Angela

Blue-Darling. Martin was a friend of the group. The Walpole group later left the casino.
No. 34769-9-III
State v. Martin


       They had not ventured far when Eskridge sent a series of texts to Ms. Walpole that

apparently incensed her children. They decided to return to the hotel in the wee hours of

the morning to confront Eskridge. Martin agreed to accompany them.

       Eskridge received a text message from Walpole's phone at 5:20 a.m. asking ifhe

was still up. He responded "yes" and sent his room number. The trio reached the room a

few minutes later and knocked on the door. The two men flattened themselves on either

side of the door; Eskridge could only see the young woman through the peephole. A

hotel video captured the scene in the hallway.

       Eskridge opened the door and briefly spoke with Blue-Darling before the two men

rushed into the room. Perrin allegedly asked Eskridge, "what were you going to do to my

momma?" The two men pushed Eskridge against a wall. Martin held him there while

Perrin struck him. Perrin demanded money and collected items on the nightstand

belonging to Eskridge while Martin continued to hold the victim against the wall. Perrin

disconnected the room's telephone.

       Eskridge called out for help and Martin threw him to the ground between the bed

and the wall. The two men left the room and took Eskridge's watch, cell phone, keys,

and pants. Eskridge suffered a broken ankle and a bloody nose. He spent three days in

the hospital.

       Mr. Martin was charged with first degree robbery and first degree burglary. His

case proceeded to jury trial. He took the stand in his own defense and testified to

                                             2
No. 34769-9-111
State v. Martin


returning to the casino at the request of Mr. Perrin. When reciting statements made as the

trio entered into Eskridge's hotel room, the trial court sustained the prosecutor's

objection. Defense counsel insisted that it was "res gestae," but the court instructed Mr.

Martin not to repeat anything that another person said. Report of Proceedings (RP) at

108. Mr. Martin told the jurors that he did not have permission to enter the room, but

followed the others in. A fight soon ensued between Mr. Perrin, whom he described as

mad and shouting, and Eskridge. Martin was not involved in the fight. One time Perrin

shoved Eskridge into Martin, but the defendant simply pushed Eskridge back at Perrin.

Perrin was the person who took the victim's property.

       In closing argument, defense counsel contended that Perrin was the bad actor and

that his client "was a mere dupe" who was unaware of what was about to transpire. RP at

156. He pointed to the fact that his client did not take any property as evidence of his

lack of intent to commit a crime. Nonetheless, the jury convicted Mr. Martin as charged

on both counts.

       The defense moved for a new trial and made an offer of proof concerning what

Mr. Martin would have testified if permitted. In very brief testimony, Mr. Martin

answered questions from his counsel and identified "what were you going to do to my

momma" as the sole statement he would have offered. The trial court concluded that the

statement was not admissible and denied the new trial motion.




                                             3
No. 34769-9-III
State v. Martin


       Mr. Martin was sentenced within the standard range and promptly appealed to this

court. A panel considered the case without argument.

                                         ANALYSIS

       This appeal raises a single issue--was trial counsel ineffective for failing to argue

the excited utterance exception to the hearsay rule?

       The standards of review governing a claim of ineffective assistance of counsel are

well understood. The Sixth Amendment guarantee of counsel requires more than the

mere presence of an attorney; counsel must perform to the standards of the profession.

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

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

1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to

counsel's decisions. A strategic or tactical decision is not a basis for finding error.

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. Martin is unable to satisfy either prong of the Strickland test. His counsel did

attempt to enter the testimony into evidence. The evidence was of such minor relevance,

however, that any error was harmless. This argument requires us to consider the rules

governing evidentiary issues on appeal.

                                               4
No. 34769-9-111
State v. Martin


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

Guloy, 104 Wn.2d 412, 429-430, 705 P.2d 1182 (1985). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971). An erroneous evidentiary ruling is not prejudicial

"unless, within reasonable probabilities, had the error not occurred, the outcome of the

trial would have been materially affected." State v. Cunningham, 93 Wn.2d 823, 831,

613 P.2d 1139 (1980). The failure to raise an evidentiary objection to the trial court

waives the objection. Guloy, 104 Wn.2d at 422; State v. Boast, 87 Wn.2d 44 7, 451-452,

553 P.2d 1322 (1976). As explained in Guloy:

       A party may only assign error in the appellate court on the specific ground
       of the evidentiary objection made at trial. Since the specific objection
       made at trial is not the basis the defendants are arguing before this court,
       they have lost their opportunity for review.

104 Wn.2d at 422 (citation omitted).

       Hearsay is a statement made by a declarant, other than while testifying, that is

"offered in evidence to prove the truth of the matter asserted." ER 801(c). That

definition presents the first problem with this appeal. The question, "what were you

going to do to my momma?" does not constitute hearsay. It is not a statement of fact, but

is an inquiry of another. It also was not offered to prove the truth of the matter asserted

since there is no assertion of fact, truthful or otherwise, contained therein.




                                              5
No. 34769-9-111
State v. Martin


       If the trial court determined that the statement was hearsay, it erred in so doing. 1

The appellant, however, does not challenge either the rulings made during trial or the

ruling on the motion for a new trial. Instead, he argues that his trial counsel erred. That

is not the case. An attorney is not a guarantor of the judge's rulings. Appellant has not

satisfied the first prong of the Strickland standard.

       Nonetheless, the appellant argues that his counsel erred by not arguing the excited

utterance exception to the hearsay rule. Even if the statement had been hearsay, the

excited utterance exception was not necessarily the method to enter it into evidence. An

excited utterance is admissible because it is "believed to be 'a spontaneous and sincere

response to the actual sensations and perceptions already produced by [an] external

shock."' State v. Chapin, 118 Wn.2d 681,686, 826 P.2d 194 (1992) (quoting 6 JOHN

HENRYWIGMORE,EVIDENCEINTRIALSATCOMMONLAW § 1747, at 195 (JamesH.

Chadbourn rev. ed. 1976)). An excited utterance has three requirements: (1) a startling

event or condition occurred, (2) the declarant made a statement that relates to the startling

event, and (3) the declarant made the statement while still under the stress of excitement

caused by the event. ER 803(a)(2); State v. Young, 160 Wn.2d 799, 806, 161 P.3d 967

(2007). Even assuming that the victim's texts constituted a startling event, Perrin's



       1
        The specific statement was not offered during trial, in part because no
opportunity was permitted, so the trial court was not in a position to consider whether this
question could be hearsay.

                                              6
No. 34769-9-111
State v. Martin


alleged statement failed the second and third prongs of this test. The inquiry is not about

the "startling event," but is an effort to obtain information about the future. It also does

not appear to have been made while under the influence of the earlier texts. Perrin and

his sister planned their response and traveled back to the hotel to confront the victim,

making efforts at concealment. While the texts may have motivated their action, it

cannot be said that Perrin and his accomplices were "under the stress of excitement"

caused by the texts. They premediated their return to the casino and their actions upon

arriving there. The statement in the hotel room was not an excited utterance.

       If a theory of admissibility had been necessary, the one offered by trial counsel

was the correct theory. The concept of "res gestae" has several distinct meanings in the

law, some of which are related to ER 404(b). See, e.g., State v. Tharp, 27 Wn. App. 198,

204,616 P.2d 693 (1980), aff'd, 96 Wn.2d 591,637 P.2d 961 (1981). However, it also

has a more general meaning that encompasses the idea of "completing the picture." Id.

Defense counsel likely was referring to the term in this sense when explaining the

relevancy of the evidence.

       However, the term also refers to a hearsay exception. See State v. Pugh, 167

Wn.2d 825, 837-845, 225 P.3d 892 (2009). As noted in Pugh, the res gestae hearsay

exception is the source of several modem hearsay exceptions, including the excited

utterance exception. Id. at 839-840. Like an excited utterance, the essence of the

exception is the spontaneous nature of the utterance. Id. If counsel was referring to this

                                              7
No. 34769-9-111
State v. Martin


exception at trial, he properly referred the trial court to a correct theory of admissibility

for the hearsay. Id. at 839-845.

       For all of the noted reasons, counsel did not perform defectively by failing to urge

the excited utterance exception on the trial judge. Moreover, the defense was not harmed

by the omission of the evidence. Perrin's state of mind was of very little importance to

determining the meaning of Martin's active participation in the events at the hotel. In

particular, given that Mr. Martin denied assaulting or robbing the victim, the state of

mind of the defendants was not of particular import. The question was not whether Mr.

Eskridge had been attacked and robbed; the question was whether Mr. Perrin committed

the crime alone or with the active assistance of Mr. Martin. The excluded statement

simply did not impact the jury verdict one way or the other.

       Mr. Martin has not demonstrated that his counsel rendered ineffective assistance.

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:



                                                          Pennell, J.   '    ...

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