State v. Ford
| Decision Date | 26 March 2019 |
| Docket Number | No. 50679-3-II,50679-3-II |
| Parties | STATE OF WASHINGTON, Respondent, v. RUSSELL ARNOLD FORD, Appellant. |
| Court | Washington Court of Appeals |
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.
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 vaninitially 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.
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.
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.
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.
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.
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 eluding 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. Defensecounsel responded, 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.
2 VRP at 186 (alteration in original).
The trial court then asked defense counsel whether Beebe had been served. Defense counsel responded, 3 2 VRP at 186. When the jury then returned, the trial court instructed it to disregard the testimony regarding the photomontage.
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...
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