                                                                                                          ALS

                                                                                      2013 P)EC 20
                                                                                                          3i



    IN THE COURT OF APPEALS OF THE STATE OF WAS                                        IN ; : ,      rr

                                            DIVISION II

STATE OF WASHINGTON,                                                  No. 42855 -5 -II


                                  Respondent,                  UNPUBLISHED OPINION


         V.



LYRIC LEEYN CLINE,




         BJORGEN, J. —     Lyric L. Cline appeals his conviction for second degree assault. During

the trial, Cline' s victim, Larissa Oien, failed to appear, but the trial court admitted a tape


recording of her 911 call and allowed the responding officer to testify to statements she made

about the assault. Cline claims that the admission of this evidence violated his constitutional


right to confront the witnesses against him and evidence rules forbidding the admission of

hearsay testimony. Cline also contends that his attorney performed deficiently when he decided

not to cross -examine Oien at a pretrial hearing.

         Because Oien made the statements at issue for the primary purpose of seeking aid in an

on -going emergency, they were nontestimonial and did not implicate Cline' s confrontation

clause rights. Further, we conclude that the trial court did not abuse its discretion in allowing the

State to introduce Oien' s statements under the excited utterance exception to the hearsay rule.

Finally, because Cline' s attorney had legitimate reasons not to cross -examine Oien at the pretrial

hearing, we hold that Cline did not receive ineffective assistance of counsel. Consequently, we

affirm   Cline'   s conviction.
No. 42855 -5 -II



                                     I. FACTS AND PROCEDURAL HISTORY


          On June 30, 2011, Oien and Cline, her boyfriend, had a violent argument at their

apartment. During the altercation Cline repeatedly strangled and punched Oien. At some point

Cline told Oien that he was afraid that their neighbors may have heard the assault and that she

had to drive him away from the apartment. While in the car, Cline threatened to kill Oien and

himself and punched and spit on Oien. Cline also " made comments that he wanted to die suicide

by    cop."   1 4 Report of Proceedings (RP) at 168.

          Oien eventually escaped from the car and began to run away. Cline got into the driver' s

seat, chased Oien for some way, and then drove off. Oien ran to a nearby Home Depot where

she called     911.   During the 911 call Oien stated she was reporting an assault, described where

and when the assault happened, gave her name, gave Cline' s name and description, explained the

extent of her injuries and declined medical assistance, informed the operator that Cline had taken

her car and that she did not know where he had gone, stated that Cline was suicidal and armed

with a knife, and told the operator that Cline did not have a cell phone. Oien broke down in tears

when asked her name during the call, and some of her answers were not responsive to the

questions asked. See Ex. 1.


          The 911 operator dispatched Officer Daniel Bortle of the Tacoma Police Department to


the Home Depot to speak with Oien. When Bortle arrived about 20 minutes after the 911 call, he

found Oien frantic       and   distracted, crying " like   a small child would   cry   and   lose their breath." 4



 1"
      Suicide -  cop" is "[
              by -              a] form of suicide in which the suicidal person intentionally engages in
 life -
      threatening behavior to induce a police officer to shoot the person. Frequently, the decedent
 attacks the officer or otherwise threatens the officer' s life, but occasionally a third person' s life is
 at risk."    BLACK' S LAw DICTIONARY 1571 ( 9th ed. 2009).




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No. 42855 -5 -II



RP at 162. Bortle also observed bruises on Oien' s face, neck, chest, and arms. Bortle had

difficulty getting Oien to focus or answer his questions and took her outside to the Home Depot' s

parking lot to interview her. Oien essentially told Bortle the same things she had told the 911

operator,   adding that Cline had   announced   his intention to die   by " suicide -by- cop."    4 RP at 168.


         At the end of the interview, Oien said that she was afraid to go home and told Bortle she


planned to go to her father' s house to hide from Cline. Later that day, Bortle heard a dispatch

about an incident at an address he recognized as belonging to Oien' s father. He responded and

contacted Oien, who informed him that Cline had been waiting for her at the house, but had run

off when her father asked a neighbor to call 911.


         The next day, Bortle chanced across Oien' s car and found her there with Cline. Bortle

immediately arrested Cline. During this exchange, Oien told Bortle that Cline had not actually
                                                                              2
assaulted   her, but that   an unnamed woman    had inflicted her wounds.


         The State charged Cline with second degree assault based on the incident. Cline moved


to suppress the recording of Oien' s 911 call and the statements that she made to Bortle. At the

pretrial hearing on the 911 call' s admissibility, the State called Oien to testify in order to

authenticate the tape. Oien authenticated the tape by identifying her voice and stating that the

recording was accurate. Cline' s attorney declined to cross -examine Oien. Both parties agreed
                                                                                              Crawford3

that the tape   was authenticated and   that, if Oien testified, there   would not   be   a               issue.


Cline argued that the recording was inadmissible hearsay and asked the trial court to exclude it.



2
    At trial a forensic nurse testified that Oien' s wounds were. consistent with those that Cline' s
 assault, as Oien had described it to Bortle, would produce.


 3 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004).


                                                      3
No. 42855 -5 -II


The trial court found that Oien' s statements were admissible as excited utterances and admitted


the tape and her statements to Bortle.


         On the first day of trial, Oien failed to appear and the State requested a material witness

warrant to compel her presence at trial. The trial court issued the warrant, but police were unable

to locate Oien and she never testified at trial. Due to Oien' s absence, Cline objected to admitting

both the 911 recording and Oien' s statements to Bortle based on Crawford and the rules against

admitting hearsay. The trial court rejected these arguments, finding that Oien' s statements were

nontestimonial because their primary purpose was to request aid and that both statements were

admissible as excited utterances.




         The jury heard the 911 tape and Bortle' s testimony and found Cline guilty of second

degree assault. Cline appeals his conviction.


                                               R. ANALYSIS


             Cline alleges that the admission of Oien' s out - court statements about the assault
                                                             of -


unconstitutionally deprived him of his Sixth Amendment right to confront the witnesses against

him and allowed the jury to hear inadmissible hearsay. He also maintains that his attorney' s

deficient performance deprived him of his right to counsel guaranteed by the Sixth Amendment.

We review de novo Cline' s confrontation clause and ineffective assistance of counsel claims.

State   v.   Jasper, 174 Wn.2d 96, 108, 271 P. 3d 876 ( 2012); State v. A.N.
                                                                           J., 168 Wn.2d 91, 109,


225 P. 3d 956 ( 2010). We review the admission of an out - court statement as an excited
                                                         of -


utterance for an abuse of discretion by the trial court. State v. Young, 160 Wn.2d 799, 806, 161

P. 3d 967 ( 2007).




                                                      M
No. 42855 -5 -II



A.        The admission of Oien' s out - - ourt statements did not violate Cline' s rights under the
                                       of c

confrontation clause of the United States Constitution.


          1.    The application of the confrontation clause to out - court statements
                                                                   of -


          The confrontation          clause provides          that "[ i]n all criminal prosecutions, the accused shall



enjoy the      right ...    to be   confronted with         the   witnesses against    him." U.S. CONST. amend. VI.


The confrontation clause embodies the belief that criminal defendants should.have the


opportunity to test evidence against them in the adversarial " crucible of cross -examination."

Michigan       v.   Bryant, - --U. S. - - -,    131 S. Ct. 1143, 1157, 179 L. Ed. 2d 93 ( 2011). To this end,


where the confrontation clause applies, it excludes a declarant' s out - - ourt statements unless
                                                                       of c

the declarant either appears at trial for cross examination or is unavailable for trial but the

defendant had a prior opportunity for cross examination. Crawford v. Washington, 541 U.S. 36,

53 -54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004).


          The confrontation clause, by its own terms, however, applies only to witnesses, meaning

those   who "`      bear testimony "'       against the defendant. Crawford, 541 U.S. at 51 ( quoting 2 N.

WEBSTER, AN AMERICAN DICTIONARY                           OF THE    ENGLISH LANGUAGE ( 1828)).         To determine


whether one making a statement to a law enforcement officer or agent has become a witness, we

look to the speaker' s primary purpose in making the statement. Bryant, 131 S. Ct. at 1153, 1156;

Davis   v.     Washington, 547 U. S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). A witness' s


statements are         testimonial because           he   or she makes `[       a] solemn declaration or affirmation .. .


for the   purpose of        establishing       or   proving   some   fact. "'    Crawford, 541 U.S. at 51 ( quoting 2 N.

WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE ( defmition of "testimony ")).

But "[ n] o     ` witness'    goes   into   court    to   proclaim an     emergency    and seek
                                                                                                  help."   Davis, 547 U.S. at




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No. 42855 -5 -II



828. Following this logic, statements " are testimonial when the circumstances objectively

indicate that there is     no ...        ongoing emergency, and that the primary purpose of the interrogation

is to   establish or prove past events           potentially   relevant   to later   criminal prosecution."   Davis, 547


U. S.   at   822.   Conversely, "[ s] tatements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to      enable police assistance        to   meet an   ongoing emergency."         Davis, 547 U.S. at


822.


              To determine whether the `primary purpose' of an interrogation is `to enable police ...

to   meet an    ongoing emergency,' ...           we objectively evaluate the circumstances in which the

encounter occur[ red] and           the   statements and actions of       the   parties."   Bryant, 131 S. Ct. at 1156


 quoting Davis, 547 U. S.           at   822).   The Supreme Court first defined its primary purpose test in its

disposition of a set of consolidated cases: Davis, 547 U.S. at 813 and Hammon v. Indiana, 546

U. S. 976, 126 S. Ct. 552, 163 L. Ed. 2d 459 ( 2005). The court later refined this test in Bryant.


These cases control our disposition of Cline' s case.

             The facts presented here are similar to those in Davis, which also involved a 911 call


reporting a domestic violence assault. Davis, 547 U.S. at 817. The woman making the call,

Michelle McCottry, stated that her ex- boyfriend, Davis, had just assaulted her and told the

operator that the boyfriend was still on the scene. Davis, 547 U.S. at 817 -18. The officers

arrived to find McCottry frightened and preparing to flee the residence. Davis, 547 U.S. at 817-

 18.


             The State obtained a conviction after playing the 911 call despite McCottry' s failure to

 appear at trial. Davis, 547 U.S. at 818 -19. Davis appealed on confrontation clause grounds, and




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No. 42855 -5 -II


the Supreme Court affirmed his conviction after determining McCottry was not a witness within

the meaning of the confrontation clause because she made nontestimonial statements. The court

reached this conclusion by reasoning that McCottry spoke to the 911 operator for the primary

purpose of obtaining police assistance to deal with an ongoing emergency; her statements were

not directed at establishing the facts of a past crime in order to identify or convict the perpetrator.

Davis, 547 U.S. at 826 -29. Four factors led the court to this conclusion. First, McCottry

described events essentially as they were happening, rather than some time after the fact. Davis,

547 U.S. at 827. Second, the court reasoned that any objective listener would understand that

McCottry, whose assailant was still in her immediate vicinity, faced a real and ongoing

emergency. Davis, 547 U.S. at 827. Third, the court found that the questions the 911 operator

asked, including those necessary to determine Davis' s identity and evaluate the threat that he

posed, were necessary to resolve the emergency. Davis, 547 U.S. at 827. Finally, the court

found the informality of McCottry' s interaction with the 911 operator indicated she was not

making a solemn declaration or affirmation and thus not making testimonial statements. Davis,

547 U. S. at 827.


        The facts here are distinguishable from those in Hammon. There, police responded to a


domestic violence call and found Amy Hammon sitting on the porch. Davis, 547 U.S. at 819..

Hammon appeared shaken, but, in response to police questioning, insisted that nothing was

wrong and declined medical aid. Davis, 547 U.S. at 819. Police nonetheless convinced her to let

them in the house, where they found a broken heater surrounded by pieces of glass. Davis, 547

U.S. at 819; Hammon, 829 N1.2d at 819. The officers then questioned Hammon away from her

husband, and she told them that her husband had broken the heater and then shoved her into the




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No. 42855 -5 -II



pieces of glass, beaten her, attacked her daughter, and destroyed some of her property. Davis,

547 U.S. at 819.

        The husband was convicted of offenses related to the assault and appealed on


confrontation clause grounds, arguing that since his wife did not appear, the State could not

introduce her statements through testimony by the responding officers or through her own

affidavit.   Davis, 547 U. S.   at   820 -21. The Supreme Court agreed and reversed the conviction,


finding Hammon' s statements testimonial under the factors it laid out in Davis. First, Hammon

did not narrate presently occurring events when she spoke with police; the assault had ended and

she initially told the officers that everything was fine. Davis, 829 N.E.2d at 829 -30. Second,

since the police had secured Hammon' s safety and she had declined medical aid by the time she

spoke with the officers, an objectively reasonable listener would realize that she was not facing

an ongoing emergency when she made her statements. Davis, 547 U.S. at 829 -32. Third, the

court determined that the police questions were necessary to prove past events, the purpose and

hallmark of testimony, not to resolve any emergency Hammon faced. Davis, 547 U.S. at 830.

Finally, the court found Hammon' s interaction with police was formal; the officers separated her

from other witnesses and the interview produced a signed affidavit introduced into evidence.

Davis, 547 U.S. at 830. Unlike Hammon' s statements, Oien' s statements to the 911 operator and

to Bortle were made to help resolve an ongoing emergency.

        In Bryant, 131 S. Ct. at 1150, police asked Covington, a man found dying from a gunshot

wound, " what       had happened,       who   had    shot   him,   and where the shooting had occurred."

 Covington told them        he       had,   around   a   half an- hour
                                                              -            before,   been conversing with an

 acquaintance,     Bryant, through the door to Bryant'        s   house.   Bryant, 131 S. Ct.   at   1150.   At the
No. 42855 -5 -II



end of the conversation, when Covington turned to leave, Bryant shot him through the door.

Bryant, 131 S. Ct.           at   1150.       After 10 minutes of questioning, police went to Bryant' s house

where they found blood, a bullet, a hole in the door, and the victim' s wallet outside.

         Bryant was convicted of murder after the police officers testified about Covington' s

statements.          Bryant, 131 S. Ct.         at   1151 -53.   Bryant appealed his conviction on confrontation


clause grounds and the Supreme Court affirmed his conviction after holding that Covington' s

statements were nontestimonial.                 Bryant, 131 S. Ct.          at   1167. The court rested this conclusion on


the circumstances of the police interaction with Covington and the statements made by both

Covington        and   the   police.    Bryant, 131 S. Ct.       at    1166 -67. Although Bryant had shot Covington


more than 30 minutes before police interrogated Covington, Bryant remained at large while

Covington        spoke   to the    police.      Bryant, 131 S. Ct.          at   1166.     Given Bryant' s unknown location


and possession of a firearm, and Covington' s medical condition, the court concluded that any

objective listener would realize that Covington faced an ongoing emergency. Bryant, 131 S. Ct.

at   1165 -66.       The court reasoned that the police officers' questions, those intended to help them

identify      and assess     the threat       posed   by   Bryant, "      were the exact type of questions necessary" to

resolve    the emergency Bryant               posed.     Bryant, 131 S. Ct.           at   1166.   Finally, the court noted that

Covington'       s   interaction       with    police,     occurring in          an   unsecured,     chaotic scene and in an


unstructured way, lacked the formality associated with testimony. Bryant, 131 S. Ct. at 1166.

           2.     Oien' s statements to the 911 operator were nontestimonial because, objectively

viewed, she made them to seek police aid in the face of an ongoing emergency.

           The facts in Davis           are   closely    analogous        to the facts here.       Both cases involve 911 calls


made     to     report   incidents      of    domestic     violence.        Following Davis, we examine four criteria:



                                                                      9
No. 42855 -5 -II


whether the speaker' s statements narrate contemporaneous events or describe past events,

whether a reasonable listener would understand the speaker faced an ongoing emergency,

whether the police officer' s questions and the speaker' s answers are necessary to resolve the

ongoing emergency, and the formality of the interaction. Davis, 547 U.S. at 827.

           The first Davis factor looks to whether the witness is narrating ongoing events or making

statements       about past     events.    A speaker may speak contemporaneously of past events if the

speaker connects         the   past events      with ongoing   ones.   State v. Koslowski, 166 Wn.2d 409, 422


n. 8,   209 P. 3d 479 ( 2009) ( "[ I] t is not inconsistent to speak of past events in conjunction with an


ongoing emergency and, in appropriate circumstances, considering all of the factors the Court

identified [ in Davis], the fact that some statements are made with regard to recent past events


does not cast them in testimonial stone. ").

           While Oien spoke of the assault, a past event, her statements were made in fear for her

immediate safety due to the continuing threat from Cline.                  Oien informed the 911 operator that


Cline had threatened to kill her, threatened to kill himself, stolen her car, and that she had no idea

of   his   whereabouts.        In this sense, the threat Cline posed to Oien was current and continuing

when       she   spoke    with    the     911   operator.   Koslowski,    166   Wn.2d   at   422 (   statements   are



contemporaneous where the speaker is " still in danger" from the suspect).


           The second Davis factor looks to whether an objective listener would recognize that the

witness     faced   an   ongoing emergency.          This evaluation " is a highly context -
                                                                                           dependent inquiry."

Bryant, 131 S. Ct.        at   1158. Relevant factors include whether police have " neutralized" the risk a


suspect poses to the witness, the general public, or the police themselves; the type of risk posed




                                                               10
No. 42855 -5 -II



by    any   weapons       the   suspect might     have;    and   the   victim' s medical state.    Bryant, 131 S. Ct. at


1158 -59.


            A reasonable listener would recognize that Oien faced an ongoing emergency when she
                                         4
spoke with        the 911    operator.       While Oien declared that she did not need medical assistance, like


Hammon, she did report that Cline had assaulted her and threatened both her life and his own.

Like Bryant, Cline was at large and at an unknown location when his victim spoke with police.


Like McCottry, Oien was asking for police protection from the threat Cline posed. Further, like

the scenes in Davis. and Bryant, Oien spoke in an unsecured, public location. In this context, the

911 call objectively looks " plainly [ like] a call for help against [ a] bona fide physical threat."

Davis, 547 U.S. at 827.

            The third Davis factor looks to whether the questions police ask and the answers the


witness gives are           necessary to      resolve an   ongoing emergency the         witness   faced.   The fact that


police ask about the identity of the perpetrator or the facts of the crime does not necessarily make

the    witness' s    answers       testimonial.      Bryant, 131         S.   Ct. 1165 -66; Davis, 547 U.S.      at 827.


Questions intended to allow the police to " assess the situation and the threat to the safety of the

victim      and   themselves" may            elicit nontestimonial       answers.   Koslowski, 166 Wn.2d at 425 -28


 citing People       v.   Bradley,   8 N.Y.3d 124, 862 N.E. 2d 79, 830 N.Y. S. 2d 1 ( 2006); State v. Shea,


2008 VT 114, 965 A.2d 504, 509)).                    This is especially true where the questions involve an at-

large suspect posing a threat to the safety of the victim, police officers, or the general public.

Bryant, 131 S. Ct. at' 1166; Koslowski, 166 Wn.2d at 427 -28 ( citing People v. NievesAndino, 9




 4
     A principal role of 911 operators is to respond to emergencies.


                                                                  11
No. 42855 -5 -II



N.Y.3d 12, 13, 872 N.E. 2d 1188, 840 N.Y. S. 2d 882 ( 2007); State v. Ayer, 154 N.H. 500, 509- 10,


917 A.2d 214 ( 2006); United States v. Arnold, 486 F. 3d 177, 179 -80 ( 6th Cir. 2007)).


          The questions and answers found in the 911 call were plainly oriented towards addressing

the threat Cline posed to Oien and himself. Oien only described the assault at two points in the

call: when the operator asked her what she had called to report and when the operator asked how

Cline had hit her. While the second question appears, when viewed in isolation, as an attempt to


elicit testimony, the sequence of questions indicates that the operator asked the question to

determine     whether        Oien    needed   medical       assistance.              The questions        about Cline' s name,


description, whereabouts, possession of weapons, state of mind, and the police' s ability to

contact     Cline    were     necessary      for the      operator       to     determine          whether     police   would "     be


encountering       a violent      felon"   when   responding       and   how they             might resolve    the   situation.   See


Ex. 1; Davis, 547 U.S. at 827.


          The final Davis factor looks to the formality of the speaker' s interactions with law

enforcement personnel.             To evaluate the formality of an interaction, we look to the location of

the interaction, whether police isolated the person from others for individual questioning, and

whether     the   speaker makes        any kind     of signed attestation.                Crawford, 541 U.S. at 51 -53 n.4;


Davis, 547 U. S.       at   830.    Interactions   with   911      operators are          typically deemed informal. Davis,

547 U. S.    at   827 ( contrasting the solemnity          of a    formal      police         interrogation   with a   911   call); see




also   Commonwealth          v.    Galicia, 447 Mass. 737, 745, 857 N.E.2d 463 ( 2006) ( "[ T] he questions


occurred    in the   highly    informal setting     of a   telephone          call   to   a   911 dispatcher. "). Oien made the


 statements at      issue in the    context of a    911    call.    She called 911 from a somewhat chaotic public




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No. 42855 -5 -II



place   that   police      had   not secured.    Given these facts, Oien' s statements share nothing with the

formality that customarily attends testimony.

          Cline makes three arguments as to why we should find Oien' s statements to the operator

testimonial.        First, he 'argues that Oien spoke of events that had occurred over a half an-hour
                                                                                              -

before her     call and     contends this      requires a   finding   that her   statements were     testimonial.     To the


contrary,      Oien'   s   statements,    as    discussed    above,    were contemporaneous with               an ongoing


emergency and not testimonial under confrontation clause analysis.

          Second, based apparently               on   Oien' s demeanor      during    the    call,   Cline   states   that "   a




reasonable      listener    would recognize       that [ Oien]   was not    facing   an    ongoing emergency."         Br. of


Appellant      at   12.     As we discuss below in our analysis of Cline' s hearsay challenge, Oien' s

demeanor was consistent with one under the stress of a serious emergency. Further, as discussed

above, Oien' s statements as a whole would leave a reasonable listener with little doubt she faced

an ongoing emergency.


          Finally, Cline states, without argument, that Oien' s statements were not necessary to'

resolve    any ongoing emergency.                 We generally decline to consider an inadequately briefed

argument.       Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P. 3d

835 ( 2011).         In any event, as discussed above, the operator' s questions and Oien' s answers,

geared as they were to assessing whether Cline was accused of a violent crime, whether he had

weapons,       how to       identify   him,     and   how to   contact    him,    were "   the exact type of questions


necessary" to resolve the emergency Oien faced. See Bryant, 131 S. Ct. at 1166.

          We hold that, viewed objectively in light of the surrounding circumstances, Oien' s

 statements to the 911 operator were " plainly a call for help against [ a] bona fide physical threat."



                                                                 13
No. 42855 -5 -II



Davis, 547 U. S.      at   826.    Just as McCottry made nontestimonial statements in Davis by speaking

to police to obtain help in an emergency, Oien made nontestimonial statements by speaking to

the 911    operator    to   obtain protection      from    a present and       continuing threat from Cline.          Under


Davis and Bryant, the trial court did not err in admitting Oien' s statements to the 911 operator.

          3.    Oien' s statements to Bortle were nontestimonial because, objectively viewed, she

made them to enable the police to respond to the continuing emergency posed by Cline' s

unknown location and Cline' s threats to kill Oien or himself.


          The circumstances surrounding Oien' s statements to Bortle at the Home Depot closely
                                    5
resemble       those in Bryant.          Both cases involve a victim' s statements to a police officer while


their   violent attacker remained at           large    and a possible       threat to the   victim or   the   police.   We


therefore apply the analysis used by the Bryant court to determine if Oien' s statements were

testimonial.      In doing so, we look objectively at the " statements and actions of the parties to the

encounter ...      in light   of   the   circumstances   in   which   the interrogation      occurs."   Bryant, 131 S. Ct


at 1162. 6


5
     Bortle also testified that when he responded to. the call at Oien' s father' s house, she told him
Cline had just been there and had run off. Objectively, this statement is not testimonial, because
it went to helping the police apprehend Cline rather than proving any of Cline' s criminal
activities.     Further, Oien' s father testified that he asked a neighbor to call 911 when he and Oien
arrived home to find Cline waiting for them, and that Cline had run off in response to the 911
call. Even if we agreed that the trial court erred in admitting Bortle' s testimony, any error in

admitting these statements was harmless given the fact that Oien' s father testified to the exact
same subject matter and was subject                to   cross examination.        See State v. Anderson, 171 Wn.2d
764, 770, 254 P. 3d 815 ( 2011) (            other untainted testimony can render a confrontation clause error
harmless, as can the fact that the tainted testimony " added little, if any, evidence to prove the
elements of the current charge" against the defendant).

 6
     The, Bryant court cited to Davis when it laid out its test to determine if Covington made
testimonial       statements,      but did   not   analyze    all    of   the Davis factors ( no mention is made of
 whether       Covington    made        contemporaneous       statements).     Bryant, 131 S. Ct.       at   1162.   The test



                                                                14
No. 42855 -5 -II



          We first look to the circumstances surrounding the encounter. Bryant, 131 S. Ct. at 1163.

This requires us to evaluate, in context, the type of threat the suspect posed to the victim, the

public, or   the   police.     Bryant, 131 S. Ct.      at   1158 -59, 1163 -64.       Just as Bryant remained at -large


when police spoke with              Covington, Cline     remained at -large when             Oien   spoke   to Bortle.     While


Cline did not have a firearm, and thus posed somewhat less of a threat than Bryant possibly did,

Cline had    a   knife   and   had explicitly threatened to die           by    suicide - by -cop    and   to kill Oien.   Cline


thus   posed a   definite threat to " the      police and      the   public."   Bryant, 131 S. Ct. at 1162.


          We next examine Bortle' s and Cline' s statements and actions. Bryant, 131 S. Ct. at 1162.


Bortle directed his questions to assessing the threat Cline posed, even if these questions

occasionally took the form             of   asking   about     the   assault.    Bortle needed to know what type of


violence Cline was capable of to determine if he posed a serious threat to Oien and other police

officers.    See Bryant, 131 S. Ct.           at   1165 -66.     Oien was distraught and reported Cline' s assault


against   her    and   threats   against    her life. When the interview ended, she expressed her fears that


Cline   would      find her    at   her home   and   described her       plan   to hide     at   her father' s house. Viewed


objectively,     given    this   state of affairs, "   we cannot say that" Oien " would have had a ` primary

purpose' `   to establish or prove past events potentially relevant to later criminal prosecution. "'

Bryant, 131 S. Ct. at 1165 ( quoting Davis, 547 U.S. at 822).


used in Bryant is, however, essentially identical to the second, third, and fourth Davis factors
 did an emergency exist, what did the police ask and how did the speaker answer, and was the
interaction formal). Bryant, 131 S. Ct. at 1163 -66. Because the Bryant court conspicuously did
not analyze whether a victim' s statements about an at -large suspect posing a threat to persons
other than his original victim were testimonial by reference to the Davis factors, we do not either,
despite the functional           equivalence of      the tests   used    in the two    cases.       To the extent that Cline
invokes Davis by arguing that Oien made nontestimonial statements to Bortle because the assault
had occurred in the past, we reject his claim for the same reason we rejected this argument when
made about       the 911     call:   Cline was at large and an ongoing threat to Oien' s person as well as to
the safety of responding.police officers.


                                                                 15
No. 42855 -5 -II



           Finally,     we   look     at   the   formality   of   Oien'   s   interaction   with   Bortle. Bryant, 131 S. Ct. at


1166.      Oien spoke to Bortle in an unsecured public location, not in a police vehicle or a police

station.     She received no indication she was offering formal testimony, like the Miranda

warnings in Crawford. All objective indications point to the absence of testimonial formality.

           Cline asks us to hold that Oien made testimonial statements to Bortle based on three

arguments.            First, he asserts that the circumstances surrounding Oien' s statements to Bortle

indicate    no    ongoing emergency because                   she was         safe   in the Home Depot.         Cline' s argument


ignores a central tenant of Bryant, namely that a suspect may pose a threat to those beyond the

initial   victim of      his   or   her     crime, such as    the   police who might respond             to that   crime.    Bryant,


131 S. Ct.       at   1163 -64.       Cline' s threat to commit suicide -by -
                                                                            cop created an ongoing emergency

even    if we    accept    his   argument         that Oien   was safe.         See Bryant, 131 S. Ct.     at   1163 -64. Further,


Bortle' s presence at Home Depot gave Oien at best only a temporary respite from an immediate

threat.     She knew that as soon as Bortle left, she would be again fully exposed to danger from

Cline. Her statements were made in the context of this continuing threat and emergency.

           Cline also argues that Oien faced no ongoing emergency because there was no chance

that he     would       show     up    at   the Home Depot.           He presents no evidence for this assertion, and


because Oien and the police had no idea of his whereabouts, this argument is unpersuasive.


           Cline finally contends that Bortle transformed his interaction with Oien into a formal one

by taking her          out of    the Home Depot to            question        her.   Bortle, however, was not isolating Oien

from other witnesses so that he could question her in private, as the police did in Hammon, but

rather     because       she   was     so    distracted he was        having difficulty        communicating       with     her.   His




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


                                                                      16
No. 42855 -5 -II



dialogue with her remained informal and geared toward resolving the emergency she faced; it

was not an attempt to question a witness in detail.

         We hold that Oien' s statements to Bortle at the Home Depot were made for the primary

purpose of resolving the emergency created by Cline' s unknown whereabouts and his threats to

harm Oien, himself,          or    the   police.    The admission of these statements did not offend the


confrontation clause.




B.       The 911 tape and Bortle' s testimony about Oien' s statements at the Home Depot fall

under the excited utterance exception of the hearsay

         Cline next argues that Oien' s statements on the 911 tape and those she made to Bortle at

the Home Depot            were    not    excited   utterances   and   thus   were    inadmissible       as   hearsay.   He


contends, based on the passage of time between the assault and the call and his characterization


of Oien' s demeanor during the call, that Oien was no longer under the stress of the assault when

she spoke to the 911 operator. Instead, Cline argues that Oien was calm, all her statements were

in   response   to   questions,    and   she was   primarily    concerned with      getting her   car   back. He makes


similar arguments about Oien' s statements to Bortle in the Home Depot parking lot. The record,

though, flatly contradicts his characterization of Oien' s demeanor.

         An out -of court statement is hearsay and generally inadmissible to prove the truth of the
                    -

matter   asserted      in the     statement.       ER 801,     802.   However, one of the exceptions to this


prohibition,      ER 803( a)( 2),        allows the trial    court to admit a person' s           out -
                                                                                                      of court excited
                                                                                                         -


utterance.      A trial   court   may    admit a statement as an excited utterance        if "( a startling event or
                                                                                              1)

 condition occurred, ( 2)         the declarant made the statement while under the excitement or stress of


the startling event or condition, and ( 3) the statement related to the startling event or condition."



                                                               17
No. 42855 -5 -II



Young,    160 Wn.2d      at   806. Because we review the trial court' s decision to admit a statement as


an excited utterance      for   an abuse of         discretion, "[ w]e will not reverse the trial court' s decision


 unless we   believe that     no reasonable         judge   would      have   made   the   same    ruling. "' State v. Ohlson,


162 Wn.2d 1, 8, 168 P. 3d 1273 ( 2007) ( quoting                  State v. Woods, 143 Wn.2d 561, 595 -96, 23 P. 3d

1046 ( 2001)).


         Cline argues that the passage of time between the assault and the statements prevents

their   admission as     excited utterances.          Although Oien did not call 911 until about 30 minutes


after the assault, and Bortle did not arrive until approximately 20 minutes later, this lapse of time

does not necessarily show that Oien was no longer under the influence of the startling event at . .

the time    she   made    her    statements.         See Woods, 143 Wn.2d                  at   598 -99 ( 45 minutes elapsed

between startling   event and statements made                to   a paramedic).       As our Supreme Court has noted,


domestic violence can leave the victim of an assault stressed long after the event has ended.

Koslowski, 166 Wn.2d at 424 ( citing Shea, 965 A.2d at 509).

          We similarly        reject   Cline'   s   arguments      about      Oien' s demeanor.          Contrary to Cline' s

characterization of the 911 call, Oien demonstrated signs of distress when speaking with the

operator.    Oien broke down and cried at the beginning of the call and the 911 operator had to

repeatedly tell her to take        deep   breaths before          she could continue            talking. Furthermore, Oien' s

answers to ' the operator' s questions were sometimes nonresponsive, and the operator had to

repeat   some of   the    questions.      For example, at one point the operator asked Oien for Cline' s


height and she responded that he was blond but shaved his head. Based on the 911 recording as

a whole, the trial court could reasonably find that Oien was still under the stress of excitement of

the traumatic event when she called 911.




                                                                  18
No. 42855 -5 -II



         Bortle testified that when he contacted Oien she was hysterically crying, at times so hard

she    lost her breath.         Oien     was    also    frantic, distracted,         and    afraid.     Considering Bortle' s

observations of Oien' s behavior at the scene, the trial court' s finding that Oien continued to be

under   the   stress     of excitement of       the startling       event was       not    an   abuse   of   discretion.   Oien' s


statements on the 911 tape and her statements to Bortle at the Home Depot store fall within the


excited utterance exception of the hearsay rule and were properly admitted.

C.       Cline' s attorney had legitimate reasons for declining to cross -examine Oien at the pretrial .

hearing and his performance did not fall below an objective standard of reasonableness.

         Finally, Cline maintains that he received ineffective assistance of counsel because his

attorney did not cross -examine Oien at the pretrial hearing where Oien authenticated her voice

on    the 911 tape.       Cline asserts that, had his attorney done so, Oien would have recanted her

statements that he had assaulted her. We reject this claim as well.


         The Sixth Amendment and article I, section 22 of the Washington Constitution each


guarantee     the   effective assistance of counsel            to   criminal   defendants. State v. Grier, 171 Wn.2d


17, 32, 246 P. 3d 1260 ( 2011),           on remand,          168 Wn.      App.    635, 278 P. 3d 225 ( 2012).         To prevail


on an ineffective assistance of counsel claim, a defendant must show both deficient performance


and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.

2d 674 ( 1984); Grier, 171 Wn.2d               at   32 -33.   If the defendant fails to make the necessary showing

on one    prong     of   this test,   we " need not address          the   other   prong."      State v. Staten, 60 Wn. App.

 163, 171, 802 P. 2d 1384 ( 1991);          State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 ( 2009).

          With regard to the first prong, counsel renders deficient performance if the representation

  falls ` below     an    objective     standard      of reasonableness. "'           Grier, 171        Wn.2d    at   33 ( quoting




                                                                    19
No. 42855 -5 -II



Strickland, 466      U. S.      at   688).   We begin       our review with "`        a strong presumption that counsel' s

performance was reasonable. "'                 Grier, 171 Wn.2d at 33 ( quoting State v. Kyllo, 166 Wn.2d 856,

862, 215 P. 3d 177 ( 2009)).                  If. counsel'    s   conduct "`   can .be characterized as legitimate trial


strategy   or   tactics,   performance         is   not   deficient. "'   Grier, 171 Wn.2d at 33 ( quoting Kyllo, 166

Wn.2d at 863).


         While Cline asserts that Oien " clearly" would have recanted her statements to Bortle if

asked, we find the issue not so clear cut. By the time of the pretrial hearing, Oien had told two

different versions of events, one to the 911 operator and to Bortle immediately after the 911 call

stating that Cline had assaulted her, and one to Bortle the next day stating that an unnamed

woman      had inflicted her          wounds.       Cline' s attorney could not know which story Oien would tell

on the stand if he asked her about the events during the pretrial hearing.

          The State called Oien at the pretrial hearing solely for the purpose of admitting the tape,

and only asked her the questions necessary to authenticate the tape and to lay the foundation for

an    excited utterance exception.              Cline' s attorney was prepared to try to exclude the 911 call on

the   argument     Oien     was no         longer   under    the   stress of   the   assault when she called   911.   Asking

Oien, in    essence,       to   recant risked       undermining this       argument.       She might refuse to recant and


claim that she had told the truth initially because she was too stressed to fabricate a story. If she

recanted, the State might try to rehabilitate its version of events by asking her questions about

her stress in the hour after the attack, which would similarly thwart counsel' s argument for

excluding the tape.

           We cannot fault an attorney for making the tactical decision to refuse to ask questions to

which     he    or she   does        not   know the   answer.       See Hamburg v. State, 820 P.2d 523, 528 ( Wyo.



                                                                     20
No. 42855 -5 -II


1991) ( no ineffective assistance of counsel where counsel refused to ask questions to which he


did    not    know the   answer   because    doing   so   is " often   suicidal. ");   State v. King, 248 P. 3d 984, 994

n. 8   ( Utah Ct.   App.   2010) ( no ineffective assistance of counsel in decision not to ask questions


with unknown answers          during   cross examination).             We find no deficient performance and reject


Cline' s ineffective assistance of counsel claim.


                                                     III. CONCLUSION


              We hold that Oien' s statements to the 911 operator and to Bortle at the Home Depot and

at Oien' s father' s house were nontestimonial and that their admission at trial did not abridge

Cline'    s   Sixth Amendment      rights.   We further hold that the trial court did not abuse its discretion


in admitting the 911 statements and the statements to Bortle at Home Depot as excited

utterances.       Finally, Cline' s counsel was not ineffective at the pretrial hearing by failing to cross

examine Oien about her 911 call. We therefore affirm Cline' s convictions.


              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.




                                                                 B      RGEN '-              i

We concur: /




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