Court of Appeals Division I 

State of Washington
Opinion Information Sheet


Docket Number: 62864-0
Title of Case: State Of Washington, Respondent V. Steven Lavelle Lee, Et Ano. Appellants
File Date: 02/07/2011


SOURCE OF APPEAL
----------------
Appeal from Snohomish Superior Court
Docket No: 07-1-03040-3
Judgment or order under review
Date filed: 12/16/2008
Judge signing: Honorable Michael T Superior Court Administration Downes


JUDGES
------
Authored by Ronald Cox
Concurring: J. Robert Leach
Anne Ellington


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Suite 701
Seattle, WA, 98101


Oliver Ross Davis
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647


Steven Witchley
Ellis Holmes & Witchley PLLC
705 2nd Ave Ste 401
Seattle, WA, 98104-1718

Counsel for Respondent(s)
Mary Kathleen Webber
Snohomish County Prosecutors Office
Msc 504
3000 Rockefeller Ave
Everett, WA, 98201-4061






IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 62864-0-I
) (Consolidated with
Respondent, ) No. 62961-1-I)
)
v. ) DIVISION ONE
)
STEVEN LAVELLE LEE and )
TSEGAZEAB A. ZERAHAIMANOT, ) PUBLISHED IN PART
)
Appellants. ) FILED: February 7, 2011
)
)

Cox, J. -- Steven Lee and Tsegazeab Zerahaimanot, co-defendants in a

joint trial, appeal their judgments and sentences in this prosecution for one count

of felony murder, one count of first degree murder, and one count of second

degree unlawful possession of a firearm. Both murder counts included firearm

allegations to support enhancements.

The first issue is whether the trial court violated their state and federal

rights to a public trial by sealing juror questionnaires without first conducting the
analysis required under State v. Bone-Club.1 The public's right to open access

to court proceedings is also implicated. The second issue is whether their

confrontation rights were violated when the trial court admitted cell phone

1 128 Wn.2d 254, 906 P.2d 325 (1995).

No. 62864-0-I (Consolidated with 62961-1)/2

records without providing an opportunity to cross-examine the record custodians.

Lee and Zerahaimanot make additional claims that we address in the

unpublished portion of this opinion.

We remand to the trial court for reconsideration of its order to seal the

juror questionnaires under Bone-Club. We also direct the trial court to vacate

Lee's and Zerahaimanot's premeditated murder convictions on double jeopardy

grounds, leaving undisturbed their felony murder convictions. In all other

respects, we affirm.

In the early morning of August 21, 2007, Jill Rich and Bristol Chaney

found Forrest Starrett lying next to his truck in Everett, Washington. Starrett had

suffered gunshot wounds to the leg and head. He was dead when police arrived

at the scene. Investigation led to Lee and Zerahaimanot.

The State charged them in Snohomish County Superior Court with felony

murder, premeditated murder, and another crime not relevant to this appeal.

The charges also included firearm allegations to support requests for

enhancements.

The night of the shooting, Starrett was at Michelle Walker's apartment

with several other individuals, including Leroy Holt. Holt invited Lee and

Zerahaimanot to the apartment. Holt later witnessed Zerahaimanot shoot

Starrett in the lower part of his body and Lee shoot Starrett in the head. It was

the State's theory that Lee and Zerahaimanot killed Starrett because they were

suspicious that he was a police officer. A jury convicted them as charged.

2

No. 62864-0-I (Consolidated with 62961-1)/3

Lee and Zerahaimanot appeal.

Open and Public Trial

Lee and Zerahaimanot argue that their federal and state constitutional

rights to a public trial were violated when the trial court sealed juror

questionnaires without first conducting a Bone-Club hearing on the record. We

hold that their right to a public trial was not violated. But, the failure to conduct a

Bone-Club hearing before entering the sealing order is inconsistent with the

public's right of open access to court records. Accordingly, remand for

reconsideration of the sealing order at such a hearing is required.

An accused's right to a public trial is protected by both the state and

federal constitutions. The Sixth Amendment provides, "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial."2 In

article I, section 22, the Washington Constitution provides "[i]n criminal

prosecutions the accused shall have the right . . . to have a speedy public trial
by an impartial jury."3

Separate from the defendant's right to a public trial, the public has a right

to open court proceedings. Article I, section 10, of the Washington Constitution
provides that "[j]ustice in all cases shall be administered openly."4 This

2 U.S. Const. amend. VI.

3 Wash. Const. art. 1, § 22.

4 Wash. Const. art. 1, § 10.

3

No. 62864-0-I (Consolidated with 62961-1)/4

provision has been interpreted as protecting the public and press's right to open

and accessible court proceedings, similar to the public's right under the First
Amendment.5

These [respective constitutional] provisions "assure a fair trial,
foster public understanding and trust in the judicial system and give
judges the check of public scrutiny." The guaranty of open criminal
proceedings extends to jury selection, which is important "'not
simply to the adversaries but to the criminal justice system.'"[6]

While the public's right to open court proceedings and the defendant's

right to a public trial are independent, they "serve complementary and
interdependent functions in assuring fairness of our judicial system . . . ."7 In

Bone-Club, the supreme court set out the standards for closing all or any portion
of a criminal trial.8 Because the defendant's rights under article I, section 22 and

the public's right under article I, section 10 are interrelated, the same analysis

applies to both rights:

1. The proponent of closure or sealing must make some
showing [of a compelling interest], and where that need is based
on a right other than an accused's right to a fair trial, the proponent
must show a 'serious and imminent threat' to that right.

5 State v. Easterling, 157 Wn.2d 167, 174, 178, 137 P.3d 825 (2006)
(citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct.
819, 78 L. Ed. 2d 629 (1984)).

6 State v. Coleman, 151 Wn. App. 614, 620, 214 P.3d 158 (2009) (quoting
State v. Duckett, 141 Wn. App. 797, 803, 173 P.3d 948 (2007); In re Pers.
Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-
Enterprise, 464 U.S. at 505)).

7 State v. Momah, 167 Wn.2d 140, 148, 217 P.3d 321 (2009), cert.
denied, 131 S. Ct. 160 (2010).

8 Bone-Club, 128 Wn.2d at 258-59.

4

No. 62864-0-I (Consolidated with 62961-1)/5

2. Anyone present when the closure motion is made must be
given an opportunity to object to the closure.

3. The proposed method for curtailing open access must be the
least restrictive means available for protecting the threatened
interests.

4. The court must weigh the competing interests of the
proponent of closure and the public.

5. The order must be no broader in its application or duration
than necessary to serve its purpose."[9]

In State v. Waldon,10 this court held the same analysis applies when sealing

court documents.11

When the defendants' right to a public trial is violated, the court devises a
remedy appropriate to that violation.12 If the error is structural in nature, the

conviction must be reversed and a new trial is required.13 An error is structural

when it "'necessarily render[s] a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.'"14 But, in each case the

9 Id. (quoting Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-
11, 848 P.2d 1258 (1993)); see also Seattle Times Co. v. Ishikawa, 97 Wn.2d
30, 36-39, 640 P.2d 716 (1982).

10 148 Wn. App. 952, 967, 202 P.3d 325, review denied, 166 Wn.2d 1026,
(2009).

11 Id. at 967.

12 Momah, 167 Wn.2d at 149.

13 Id.

14 Id. (quoting Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct.
2546, 165 L. Ed. 2d 466 (2006)).

5

No. 62864-0-I (Consolidated with 62961-1)/6

"remedy must be appropriate to the violation."15

Whether the defendant's right to a public trial or the public's right to open
court proceedings was violated are questions of law subject to de novo review.16

Here, Lee and Zerahaimanot argue that sealing the juror questionnaires

without a Bone-Club analysis violated their public trial right under article I,
section 22. They also argue that article I, section 10 is implicated.17

This court addressed whether sealing juror questionnaires violated these
constitutional provisions in State v. Coleman.18 There, the State prosecuted

Coleman for rape and multiple counts of first degree child molestation.19 The

members of the venire completed questionnaires that included matters
concerning their sexual histories.20 The completed questionnaires were

provided to counsel and jury selection proceeded in open court.21

Three days after the jury was accepted as constituted and sworn, the

court ordered the questionnaires sealed, stating in its order:

The court finds compelling circumstances for sealing the
documents indicated below:

15 Id. at 150, 155-56.

16 Id. at 147.

17 Brief of Appellant Zerahaimanot at 20-21.

18 151 Wn. App. 614, 621, 214 P.3d 158 (2009).

19 Id. at 617.

20 Id. at 618.

21 Id.

6

No. 62864-0-I (Consolidated with 62961-1)/7

Jury questionnaires containing personal sexual history of
prospective jurors related to issues in this case. The individual
juror's right to privacy in this information greatly outweighs the
public's right to access the court files.[22]

The court did not hold a Bone-Club hearing to consider whether sealing was
proper and appears to have ordered sealing on its own motion.23 The jury

convicted Coleman of two counts of molestation, acquitted him of a third, and
failed to reach a verdict on the rape charge.24

On appeal, Coleman argued that the trial court's failure to undertake a

Bone-Club analysis before entering its sealing order violated both "his right and
that of the public to an open and public trial."25 He further claimed that these

violations constituted structural error, requiring a new trial.

This court concluded that the failure to conduct a Bone-Club analysis

prior to sealing the juror questionnaires did not violate Coleman's right to a
public trial under article 1, section 22.26 Rather, it violated the public's right to

open and accessible court proceedings under article I, section 10:

"Under these authorities, the court should have conducted a
Bone-Club analysis before sealing the questionnaires. Violation
of the public's right to open court records requires remand for
reconsideration of the order.

22 Id.

23 Id. at 618-19.

24 Id. at 618.

25 Id. at 619.

26 Id. at 623-24.

7

No. 62864-0-I (Consolidated with 62961-1)/8

Coleman contends that sealing the questionnaires without
conducting the Bone-Club analysis amounted to structural error,
from which prejudice is presumed and for which a new trial is
warranted. On these facts, we do not agree that structural error
occurred. [First, t]he questionnaires were used only for selection
of the jury, which proceeded in open court. [Second, t]he
questionnaires were not sealed until several days after the jury was
seated and sworn. [Third, u]nlike answers given verbally in closed
courtrooms, there is nothing to indicate that the questionnaires
were not available for public inspection during the jury selection
process. Thus, the subsequent sealing order had no effect on
Coleman's public trial right and did not "create 'defect[s]
affecting the framework within which the trial proceeds.'"
The error was not structural."[27]

This case is factually similar to Coleman. Here, Zerahaimanot's counsel

proposed use of the questionnaires prior to trial, and neither Lee nor the State

objected. The juror questionnaires identified the defendants and some

witnesses as African-Americans and asked the members of the venire about

their attitudes toward African-Americans. The questionnaires also asked the

members of the venire about their attitudes about firearms. The court sealed the

answers to these questionnaires after jury selection.

Lee and Zerahaimanot do not assert that jury selection was closed to the

public. More importantly, they fail to show that the completed questionnaires

were used for anything other than jury selection. Thus, there is no factual

distinction from the first factor of Coleman.

Lee and Zerahaimanot also fail to distinguish this case from Coleman on

the second factor. There, the trial court entered the sealing order after the

27 Id. (internal citations omitted) (emphasis added).

8

No. 62864-0-I (Consolidated with 62961-1)/9

parties accepted the jury, as constituted. Here, the same is true. On November

18, 2008, Lee and Zerahaimanot accepted the jury, as constituted. The

following day, the jury was seated and sworn and the court, sua sponte, entered

an order sealing the questionnaires.

Lee and Zerahaimanot claim that the juror questionnaires in this case

were sealed contemporaneously with the swearing of the jury, contrary to the

facts in Coleman. But this factual distinction, if true, is not material. This record

shows that the questionnaires were only used in open court during jury

selection, not after. It is irrelevant that the sealing of the questionnaires may

have been done contemporaneously with the swearing of the jury following its

selection and acceptance by the parties in open court.

Lee and Zerahaimanot attempt to distinguish Coleman primarily on the

third factor: whether the questionnaires were available to the public during voir

dire. They rely on the following colloquy:

"The Court: We're going to be in court at nine o'clock in the
morning [tomorrow] . . . . I'm going to have [the jury] fill out the
questionnaire - - after they have been sworn in - - I'm going to have
them fill out the questionnaire. After they are done filling out the
questionnaire they can leave. Once we have all the questionnaires
assembled, my law clerk will copy them and she will get you copies
of the questionnaires so you can start reading them.

I don't anticipate doing anything with the jury tomorrow other
than introducing them to the case, giving them some preliminary
instruction, having them fill out the questionnaire and then go
home.

[Zerahaimanot's Counsel]: Two question [sic] I have: Am I
correct in assuming that the questionnaires cannot leave the
courtroom? Can we take them?

9

No. 62864-0-I (Consolidated with 62961-1)/10

The Court: Let me think about that.

[Zerahaimanot's Counsel]: Certainly keep them confidential.

The Court: Let me think about that. Certainly if I do allow
you to take them from the courtroom, nobody is going to be allowed
to take copies or anything like that, and I'm going to want them
back.
[Zerahaimanot's Counsel]: Right."[28]

Read in context, this exchange shows that Lee and Zerahaimanot had full

access to the questionnaires prior to the sealing order. The issue is whether this

exchange evidences either an express or de facto sealing, contrary to the

public's right to obtain access to court documents. Also, at issue is whether the
claimed error is "structural," requiring a new trial.29

It is unclear from this record whether the court's comments represented a

decision to deny public access to the completed questionnaires during voir dire.

What the exchange does show is that the court expressed concern about

sending copies of the questionnaires out of the courtroom with the attorneys.

The court's remark that "nobody is going to be allowed to take copies or

28 Report of Proceedings (Nov. 13, 2008) at 4-5.

29 The U.S. Supreme Court has identified a limited list of trial errors in
criminal cases as "structural" and not subject to harmless error analysis. See
Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246,113 L. Ed. 2d 302
(1991). "Structural" errors include the total deprivation of the right to counsel at
trial (Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963));
an impartial trail court judge (Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L.
Ed. 749 (1927)); unlawful exclusion of members of the defendant's race from a
grand jury (Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598
(1986)); the right to self-representation at trial (McKaskle v. Wiggins, 465 U.S.
168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984)); and the right to a public trial
(Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)).

10

No. 62864-0-I (Consolidated with 62961-1)/11

anything like that, and I'm going to want them back" reflects this concern.

No one discussed the public's access to the questionnaires. We do not

suggest that the failure to raise the issue constituted a waiver of the claim on

appeal. Likewise, it did not diminish the trial court's responsibility to protect the

constitutional safeguards that are before us. Nevertheless, on this limited

record, we will not speculate about how the court would have ruled had a

member of the public asked for access to these questionnaires. In sum, this

colloquy between court and counsel tells us little, if anything, about whether the

questionnaires were unavailable to the public.

We also note that the record is silent on where these questionnaires were

located during jury selection, which unquestionably proceeded in open court.

This fact would be important in determining whether the public had access to

them. Yet, Lee and Zerahaimanot fail to point to anything in this record, either in

the above exchange or elsewhere, to fill this void. And, even assuming the

questionnaires were not filed in the superior court clerk's office, or otherwise

easily accessible to the public, that is not necessarily equivalent to a complete

denial of public access.

In short, on this record, Lee and Zerahaimanot fail in their burden to show

that the questionnaires were unavailable for public inspection during jury

selection. This is fatal to their claim that the court violated their public trial right.

As in Coleman, the trial court's failure to conduct a Bone-Club analysis prior to

entering the sealing order did not violate Lee's and Zerahaimanot's article 1,

11

No. 62864-0-I (Consolidated with 62961-1)/12

section 22 right to a public trial. Their attempts to distinguish that case are

unpersuasive.

Lee and Zerahaimanot next argue that Coleman appears to

suggest -- without explicitly stating -- that the violation in that case was de
minimus, not structural.30 We do not read that case to make any such

suggestion and the supreme court recently rejected such a characterization.31

Nothing in Coleman departs from that guidance.

They next argue that Coleman was overruled sub silentio by State v.
Strode32 and State v. Momah.33 We disagree.

In those cases, the supreme court decided that the trial courts either

expressly or implicitly closed the courtrooms by conducting a portion of voir dire
in chambers.34 A plurality concluded in Strode that "full courtroom closure during

jury selection" must be preceded by the "Bone-Club analysis; failure to do so
results in violation of the defendant's public trial rights."35 Addressing the

appropriate remedy, the court held that "denial of the public trial right is deemed
to be a structural error and prejudice is presumed."36 "[T]herefore, Strode's

30 Brief of Appellant Zerahaimanot at 33.

31 State v. Strode, 167 Wn.2d 222, 230, 217 P.3d 310 (2009).

32 167 Wn.2d 222, 217 P.3d 310 (2009).

33 167 Wn.2d 140, 217 P.3d 321 (2009).

34 Strode, 167 Wn.2d at 223; Momah, 167 Wn.2d at 145-46.

35 Strode, 167 Wn.2d at 228.

12

No. 62864-0-I (Consolidated with 62961-1)/13

convictions are reversed and the case is remanded for a new trial."37 Two

justices, writing separately, concurred in that result.

Likewise, in Momah, the supreme court held that a trial court must

undertake the Bone-Club analysis prior to a de facto closing of the courtroom
during voir dire.38 But in Momah, the court concluded that there was no

structural error because the trial court weighed the appropriate factors on the

record prior to closing the courtroom, effectively engaging in a Bone-Club
analysis.39

In our view, neither Strode, a plurality decision, nor Momah overrules
Coleman.40 First, neither case addresses the issue of whether sealing juror

questionnaires without first conducting a Bone-Club analysis violates a

defendant's right to a public trial under article 1, section 22 or the Sixth

Amendment. Rather, both deal with the factually distinguishable issue of closing

the courtroom for voir dire without conducting a Bone-Club analysis.

Second, neither case addresses the appropriate remedy where a court

36 Id. at 231.

37 Id.

38 Momah, 167 Wn.2d at 149-50.

39 Id. at 155-56.

40 Coleman was decided on August 17, 2009, just under two months prior
to Strode and Momah, which were decided on October 8, 2009. Coleman was
not the subject of a petition for review. But In re Detention of Townsend, noted
at 157 Wn. App. 1039, 2010 WL 3221940, which follows Coleman, is the subject
of a currently pending petition for review.

13

No. 62864-0-I (Consolidated with 62961-1)/14

errs by failing to conduct the Bone-Club analysis prior to sealing juror

questionnaires. Thus, the remedy for an article 1, section 10 violation was not at

issue there, as it was in Coleman.

Finally, Strode and Momah recognize that a defendant should not receive
a new trial where his right to a public trial has been safeguarded,41 or where this

would be a "windfall" remedy.42 This is consistent with Coleman's holding that

there is no easy distinction between juror questionnaires as part of open court

proceedings and juror questionnaires as court records. This court concluded

that Coleman did not demonstrate that sealing juror questionnaires after jury

selection was complete rendered his trial fundamentally unfair or an unreliable

vehicle for determining guilt or innocence. In short, there was no structural

error.

We conclude that the holding in Coleman is not inconsistent with either

Momah or Strode. As such, Lee and Zerahaimanot have failed to show any

violation of their public trial right under article 1, section 22 or the Sixth

Amendment.

After Coleman, there can be no serious dispute that the trial court in this

case violated the public's right of open access to court records by failing to

conduct a Bone-Club hearing before entering its sealing order. The question is

what remedy is appropriate for this error. We follow Coleman and remand to the

41 Id. at 236 (Fairhurst, J. and Madsen, J., concurring).

42 Momah, 167 Wn.2d at 150.

14

No. 62864-0-I (Consolidated with 62961-1)/15

trial court to conduct a Bone-Club hearing and to reconsider its closing order.

Lee and Zerahaimanot have not presented to us any reasoned argument, other

than the points we have already discussed, why the error here is structural,

requiring a new trial.

Remand for reconsideration of the sealing order is also consistent with

relevant case law other than Coleman.
In Seattle Times Co. v. Ishikawa,43 the supreme court held that the trial

court erred in sealing the record from a hearing without first analyzing the five
factors outlined by the court.44 These factors are the immediate predecessor of

the Bone-Club analysis.45 The trial court also erred in failing to address these

factors prior to denying two regional newspapers' motions to unseal the records
from the hearing.46 The supreme court remanded the matter to the trial court to

reconsider the newspapers' motions to unseal the records in accordance with
the articulated standard.47 No more severe remedy was imposed in that case.

While Ishikawa was a civil case, it nonetheless provides guidance that is helpful

here.

In Waldon, the trial court granted the defendant's motion to seal her court

43 97 Wn.2d 30, 640 P.2d 716 (1982).

44 Id. at 42-46.

45 See Bone-Club, 128 Wn.2d at 258-59.

46 Ishikawa, 97 Wn.2d at 42-46.

47 Id. at 45-46.

15

No. 62864-0-I (Consolidated with 62961-1)/16

record based on General Rule (GR) 15 rather than the five part constitutional
test in Ishikawa.48 This court reversed, concluding that GR 15 must be read in

harmony with Ishikawa.49 Because the trial court applied the incorrect legal

standard in sealing the court record, the correct remedy was to remand for the
trial court to reconsider the motion to seal under both GR 15 and Ishikawa.50

Finally, in Waller v. Georgia,51 after concluding that the trial court erred in

closing a pretrial suppression hearing to the public, the U.S. Supreme Court
remanded for a new suppression hearing.52 The court concluded that a new trial

was required only if the new hearing resulted in suppression of material
evidence not suppressed at the first, closed hearing.53 It reasoned that if

"essentially the same evidence is suppressed, a new trial presumably would be
a windfall for the defendant, and not in the public interest."54

In sum, on this record, Lee and Zerahaimanot's right to a public trial was

not violated. But, the trial court did err by sealing the juror questionnaires

without first conducting a Bone-Club analysis. That error was not structural.

48 Waldon, 148 Wn. App. at 955-56.

49 Id. at 966.

50 Id. at 957, 967.

51 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).

52 Id. at 48-49.

53 Id.

54 Id. at 50.

16

No. 62864-0-I (Consolidated with 62961-1)/17

Thus, the appropriate remedy is to remand this case for reconsideration of the

sealing order under Bone-Club and other relevant authority.

TESTIMONIAL AUTHENTICATION OF BUSINESS RECORDS

Lee and Zerahaimanot next argue that the admission of cell phone

records through affidavits that attest to the authenticity of those records violated

their Sixth Amendment right to confrontation. We disagree.

"The appellate court may refuse to review any claim of error which was
not raised in the trial court."55 But, manifest error affecting a constitutional right

may be reviewed for the first time on appeal.56 In State v. Lynn,57 this court

outlined a four-step analysis for constitutional errors raised for the first time on

appeal:

First, the reviewing court must make a cursory determination as to
whether the alleged error in fact suggests a constitutional issue.
Second, the court must determine whether the alleged error is
manifest. Essential to this determination is a plausible showing by
the defendant that the asserted error had practical and identifiable
consequences in the trial of the case. Third, if the court finds the
alleged error to be manifest, then the court must address the merits
of the constitutional issue. Finally, if the court determines that an
error of constitutional import was committed, then, and only then,
the court undertakes a harmless error analysis.[58]

Here, the court admitted several cell phone records under RCW

55 RAP 2.5(a).

56 RAP 2.5(a)(3).

57 67 Wn. App. 339, 345, 835 P.2d 251 (1992).

58 Id.

17

No. 62864-0-I (Consolidated with 62961-1)/18

10.96.030. This statute allows business records to be authenticated by affidavits

from the custodians of the records rather than requiring the custodians to testify
in court.59 Lee and Zerahaimanot did not object to the admission of the records

within the time frame required by RCW 10.96.030.60 Instead, they raise this

issue for the first time on appeal.

The Sixth Amendment Confrontation Clause states that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . ."61 The Fourteenth Amendment makes the right

binding on the states.62 Based upon a cursory review of this issue, as required

by the first factor in Lynn, the custodians' failure to testify implicates the

Confrontation Clause and therefore suggests a constitutional issue.

Lee and Zerahaimanot assert that the error was manifest because the cell

phone records at issue corroborated the testimony of Holt, the only eye-witness

to the crime. They contend that Holt's credibility was otherwise "shaky" because

he fled the scene of the shooting, eluded police, testified under a plea

59 RCW 10.96.030.

60 RCW 10.96.030: "(3) . . . A motion opposing admission in evidence of
the record shall be made and determined by the court before trial and with
sufficient time to allow the party offering the record time, if the motion is granted,
to produce the custodian of the record or other qualified person at trial, without
creating hardship on the party or on the custodian or other qualified person . . .
(4) Failure by a party to timely file a motion . . . shall constitute a waiver of
objection to admission of the evidence . . . ."

61 U.S. Const. amend. VI.

62 Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923
(1965).

18

No. 62864-0-I (Consolidated with 62961-1)/19

agreement with the State, and was a drug dealer. Given the impact Holt's

credibility could have had on the jury's decision, the alleged error was manifest

under the second factor in Lynn.

We now address the constitutional issue: whether the admission of

affidavits authenticating business records under RCW 10.96.030 violates the

Confrontation Clause.

"The admission of hearsay frequently raises concerns under the
Confrontation Clause."63 Even though hearsay evidence may be admissible

under a statutory or common law exception, the Confrontation Clause also
requires analysis.64 In Washington, the admission of business records is

generally an exception to the hearsay rules.65 But, the admission of "testimonial"

hearsay evidence violates the Confrontation Clause unless the proponent shows

that the declarant is unavailable and that the accused had a prior opportunity to
cross-examine the declarant.66 If evidence is not "testimonial," then no such

showing is required.67

A violation of the Confrontation Clause is reviewed de novo.68

63 State v. Kronich, 160 Wn.2d 893, 901, 161 P.3d 982 (2007) (citing
State v. Monson, 113 Wn.2d 833, 840, 784 P.2d 485 (1989)).

64 Id. (citing Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004).

65 ER 803(6); RCW 5.45.010,.020.

66 Kronich, 160 Wn.2d at 902 (citing Crawford, 541 U.S. at 53-54, 68).

67 Id. (citing Crawford, 541 U.S. at 53-54, 68).

68 Id. at 901 (citing Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887,

19

No. 62864-0-I (Consolidated with 62961-1)/20

In Melendez-Diaz v. Massachusetts,69 the U.S. Supreme Court recently

considered whether an affidavit was "testimonial" under the Confrontation

Clause. There, the defendant was charged with distributing and trafficking
cocaine.70 The trial court admitted three "certificates of analysis," sworn to by

laboratory analysts before a notary public, which stated that the seized bags

were "examined with the following results: The substance was found to contain:
Cocaine."71 The trial court did not require the analysts who prepared the

certificates to testify in court.72 The Court held that the admission of the

certificates violated the defendant's confrontation rights because they were
created for the sole purpose of providing evidence against the defendant.73

Significantly, the court also articulated that not everyone providing

evidence for trial must testify in court:

Contrary to the dissent's suggestion, we do not hold, and it is not
the case, that anyone whose testimony may be relevant in
establishing the chain of custody, authenticity of the sample, or
accuracy of the testing device, must appear in person as part of the

144 L. Ed. 2d 117 (1999)).

69 __ U.S. __, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).

70 Id. at 2530.

71 Id. at 2531.

72 Id.

73 Id. at 2539-40.

20

No. 62864-0-I (Consolidated with 62961-1)/21

prosecution's case.[74]

For example, it explained that affidavits of authenticity are not "testimonial:"

The dissent identifies a single class of evidence which, though
prepared for use at trial, was traditionally admissible: a clerk's
certificate authenticating an official record -- or a copy thereof -- for
use as evidence. But a clerk's authority in that regard was
narrowly circumscribed. He was permitted "to certify to the
correctness of a copy of the record kept in his office," but had "no
authority to furnish, as evidence for the trial of a lawsuit, his
interpretation of what the record contains or shows, or to certify to
its substance or effect."[75]

Therefore, under Melendez-Diaz, a custodian may authenticate a business

record by affidavit but cannot, without the opportunity for confrontation, create a
record for the sole purpose of providing evidence against the defendant.76

This court recently applied Melendez-Diaz in State v. Jasper.77 There, the

trial court admitted affidavits that the defendant was driving with a suspended
license based upon a diligent search of the public records.78 This court held that

the affidavits were testimonial under Melendez-Diaz because they included

"factual assertions, intended to prove an element of a crime charged. They are
not merely statements of the authenticity of the attached records themselves."79

74 Id. at 2532 n.1 (emphasis added).

75 Id. at 2538-39 (quoting State v. Wilson, 141 La. 404, 409, 75 So. 95
(1917) (internal citations omitted).

76 Id. at 2539.

77 State v. Jasper, ___ Wn. App. ___, 240 P.3d 174 (2010).

78 Id. at 181.

79 Id.

21

No. 62864-0-I (Consolidated with 62961-1)/22

Jasper acknowledges the clear exception for affidavits proving only the

authenticity of a record:

The affidavit is not merely a certification that the agency records
attached to the affidavit were true and correct copies of records
processed by the DOL. Without question, such a statement would
be of the type approved by Melendez-Diaz.[80]

This case falls squarely within the exception for authentication described

in Melendez-Diaz and Jasper. Here, there is no dispute that the cell phone

records were business records created for the phone companies' administration.

They were not created as evidence against Lee and Zerahaimanot. Neither of

them contends otherwise.

In accordance with RCW 10.96.030, the cell phone records were properly

authenticated by affidavits from the record custodians. RCW 10.96.030(2)

requires that "to be admissible without testimony from the custodian of records,

business records must be accompanied by an affidavit, declaration, or

certification by its record custodian or other qualified person . . . ." The affidavit

must include:

contact information for the witness completing the document and
attest[ation] to the following:

(a) The witness is the custodian of the record or sets forth
evidence that the witness is qualified to testify about the
record;

(b) The record was made at or near the time of the act,
condition, or event set forth in the record by, or from
information transmitted by, a person with knowledge of
those matters;

80 Id.

22

No. 62864-0-I (Consolidated with 62961-1)/23

(c) The record was made in the regular course of business;

(d) The identity of the record and the mode of its preparation;
and

(e) Either that the record is the original or that it is a duplicate
that accurately reproduces the original.[81]

None of this information "create[s] a record for the sole purpose of providing
evidence against a defendant" as in Melendez-Diaz.82 Additionally, the affidavits

admitted in this case did not include information other than that required by the

statute.

Based upon the reasoning in Melendez-Diaz, these affidavits are not

"testimonial." They were created and admitted solely to prove the authenticity

of the underlying phone records. Thus, the affidavits do not violate the

confrontation rights of Lee or Zerahaimanot. Accordingly, we reject their

constitutional claims and need not reach the harmless error analysis under Lynn.

Lee and Zerahaimanot argue that because RCW 10.96.030 allows

affidavits to authenticate the underlying document, the affidavits are created

specifically for use at trial and thus violate Melendez-Diaz. But, the Supreme

Court specifically rejected that argument when it explained that a clerk's

certificate authenticating an official record "though prepared for use at trial[,]" is
permissible.83 Accordingly, we reject this claim.

81 RCW 10.96.030(2).

82 Melendez-Diaz, 129 S. Ct. at 2539.

83 Id. at 2538.

23

No. 62864-0-I (Consolidated with 62961-1)/24

We remand to the trial court for reconsideration of its order to seal the

juror questionnaires under Bone-Club. We also direct the trial court to vacate

Lee and Zerahaimanot's premeditated murder convictions on double jeopardy

grounds, leaving undisturbed their felony murder convictions. In all other

respects, we affirm.

The balance of this opinion has no precedential value. Accordingly,

under RCW 2.06.040, it shall not be published.

Lee and Zerahaimanot make additional arguments. They claim that the

trial court's answer to a jury question regarding the "to convict" instruction for

premeditated murder deprived them of due process of law. They challenge their

respective informations as inadequate to provide notice of the essential

elements of felony murder. Lee separately claims that the admission of

testimony from Holt was inadmissible hearsay that violated his confrontation

rights. In the alternative, both claim that their trial counsel was ineffective in

failing to argue that the murder and the unlawful possession of a firearm

constituted the "same criminal conduct" for calculating the offender scores. Lee

separately claims that his trial counsel was ineffective in failing to object to Holt's

testimony as hearsay. Finally, both claim that principals of double jeopardy

require that their convictions for premeditated murder be vacated. For the

reasons that follow, we reject all of these claims except that based on double

jeopardy.

JURY QUESTION

24

No. 62864-0-I (Consolidated with 62961-1)/25

Lee and Zerahaimanot argue that the trial court's answer to a jury

question about the premeditated murder "to convict" instruction violated their due

process rights by misstating the intent element. They are mistaken.

Jury instructions are proper if they correctly state the law, do not mislead
the jury, and allow each party to argue its theory of the case.84 The trial court

has discretion to determine whether to give further instructions to the jury during
deliberations.85 Alleged legal errors in the instructions are reviewed de novo.86

Here, the jury submitted a question to the trial court during deliberations.

They asked "[o]n instruction page #15, are we to interpret that element (3) is a

continuation of element (2)? That is, the "intent" referred to in element (2)
directly is associated with the "intent" in element (3)?"87

The court consulted with counsel for the State, Lee and Zerahaimanot, in

the presence of both defendants. The trial court proposed the following answer:

"[r]egarding Instruction No. 15, the word "intent" in element No. 3 refers to the
"intent" required to be proved in element No. 2."88 Despite objections from all

parties, the court gave this answer to the jury.

Instruction 15 stated:

84 Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000).

85 State v. Becklin, 133 Wn. App. 610, 615, 137 P.3d 882 (2006), rev'd on
other grounds, 163 Wn.2d 519, 182 P.3d 944 (2008) (citing State v. Brown, 132
Wn.2d 529, 612, 940 P.2d 546 (1997)).

86 State v. Porter, 150 Wn.2d 732, 735, 82 P.3d 234 (2004).

87 Clerk's Papers (Lee) at 39.

88 Report of Proceedings (Dec. 10, 2008) at 2164.

25

No. 62864-0-I (Consolidated with 62961-1)/26

To convict the defendant Zerahaimanot of the crime of
murder in the first degree as charged in Count II, each of the
following elements of the crime must be proved beyond a
reasonable doubt:

(1) That on or about the 21st day of August, 2007, the
defendant Zerahaimanot or an accomplice caused the death
of Forrest Starrett;

(2) That the defendant Zerahaimanot or an accomplice
acted with intent to cause the death of Forrest Starrett;

(3) That the intent to cause the death was premeditated;

(4) That Forrest Starrett died as a result of the defendant
Zerahaimanot's or the accomplice's acts; and
(5) That the acts occurred in the State of Washington.[89]

Based upon the trial court's response to the jury, in order to be convicted

of premeditated murder, the jury had to find that Zerahaimanot or an accomplice

acted with premeditated intent to cause the death of Forrest Starrett. This is

consistent with the plain meaning of Instruction 15. Neither Lee nor

Zerahaimanot challenge Instruction 15 on appeal. As such, the trial court

properly answered the jury's question and did not abuse its discretion.

Lee and Zerahaimanot argue that the trial court's instruction to the jury

"needed to convey to the jury that it could only find the element of premeditation

if it were convinced beyond a reasonable doubt that (a) Zerahaimanot

premeditatedly caused Starrett's death; or (b) Lee premeditatedly caused

Starrett's death and Zerahaimanot assisted him with knowledge of Lee's

89 Clerk's Papers (Lee) at 61 (emphasis added).

26

No. 62864-0-I (Consolidated with 62961-1)/27

premeditation."90 But this specificity of knowledge is not required.

[T]he law of accomplice liability in Washington requires the State to
prove that an accused who is charged as an accomplice with
murder in the first degree, second degree or manslaughter knew
generally that he was facilitating a homicide, but need not have
known that the principal had the kind of culpability required
for any particular degree of murder.[91]

Therefore, the jury only had to find beyond a reasonable doubt that

Zerahaimanot, with knowledge that he was facilitating a homicide, assisted Lee

in committing premeditated murder. Because the trial court's answer was a

correct statement of the law, we reject this challenge.

Lee and Zerahaimanot next argue that their rights under the due process

clause were violated because of the jury's allegedly obvious confusion about the

element of premeditation lowered the State's burden of proof. To the contrary, a

"jury's question does not create an inference that the entire jury was confused,
or that any confusion was not clarified before a final verdict was reached."92

Additionally, a jury is presumed to follow the court's instructions.93 Because

Instruction 15 required the jury to find all elements beyond a reasonable doubt

and the trial court's answer to the jury's question did not misstate the law, this

argument is not persuasive.

90 Brief of Appellant Zerahaimanot at 50.

91 Sarausad v. State, 109 Wn. App. 824, 836, 39 P.3d 308 (2001)
(emphasis added).

92 State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988).

93 State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d 973 (2010) (citing
State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008)).

27

No. 62864-0-I (Consolidated with 62961-1)/28

Finally, Lee and Zerahaimanot argue that the trial court's answer to the

jury's question tainted the jury's consideration of the instructions for felony

murder. Instruction 3 stated that "[a] separate crime is charged in each count.

You must separately decide each count charged against each defendant. Your

verdict on one count as to one defendant should not control your verdict on any
other count or as to any other defendant."94 Because the jury was instructed to

consider the charges separately, they are presumed to have done so. This

claim is not persuasive.

NOTICE OF ESSENTIAL ELEMENTS IN CHARGING DOCUMENTS

Lee and Zerahaimanot argue that the informations charging them were

unconstitutional because they failed to state the elements of second degree

kidnapping, the underlying crime for their felony murder charges. We disagree.

An information must include every essential element of the charged crime
in order to meet constitutional due process requirements.95 The purpose of this

rule is to apprise a defendant of the charged crime so that he may prepare a
defense.96 Although the underlying felony is an essential element of felony

murder, the defendant is not actually charged with that underlying crime.97

94 Clerk's Papers (Lee) at 49.

95 State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991).

96 Id.

97 State v. Bryant, 65 Wn. App. 428, 438, 828 P.2d 1121 (1992) (citing
State v. Whitfield, 129 Wash. 134, 139, 224 P. 559 (1924)).

28

No. 62864-0-I (Consolidated with 62961-1)/29

Constitutional challenges are subject to de novo review.98

In State v. Hartz,99 the court held that the elements of the underlying

crime are not elements of the crime of felony murder and need not be stated in
the information.100 Here, the amended informations for each defendant charged:

COUNT I: FIRST DEGREE MURDER WITH A FIREARM,
committed as follows: That the defendant, on or about the 21st day
of August, 2007, committed or attempted to commit the crime of
second degree kidnapping, and in the course of or in furtherance
of such crime or in immediate flight therefrom, the defendant, or
another participant, did cause the death of another person . . . .[101]

Because the elements of second degree kidnapping are not elements of felony

murder, the information need not include them and Lee and Zerahaimanot's due

process rights were not violated.

Lee and Zerahaimanot argue that Hartz was effectively overruled by
Apprendi v. New Jersey,102 State v. Goodman,103 and State v. Recuenco.104 In

Apprendi, the U.S. Supreme Court stated that "'any fact (other than prior

conviction) that increases the maximum penalty for a crime must be charged in

98 Islam v. Dep't of Early Learning, 157 Wn. App. 600, 608, 238 P.3d
74 (2010).

99 65 Wn. App. 351, 354, 828 P.2d 618 (1992).

100 Id.

101 Clerk's Papers (Lee) at 97; Clerk's Papers (Zerahaimanot) at 103
(emphasis added).

102 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

103 150 Wn.2d 774, 83 P.3d 410 (2004).

104 163 Wn.2d 428, 180 P.3d 1276 (2008).

29

No. 62864-0-I (Consolidated with 62961-1)/30

an indictment . . . .'"105 In Goodman, the Washington supreme court held that the

type of controlled substance the defendant was convicted of possessing affected

the duration of his sentence and therefore must be included in the information
under Apprendi.106 In Recuenco, the supreme court held that it was error to

charge the lesser enhancement of "deadly weapon" in the information but

sentence the defendant to a "firearm" enhancement, which has a greater
penalty.107 Here, the underlying crime of second degree kidnapping does not

increase the penalty for felony murder. Thus, these cases are not persuasive

and do not overrule Hartz.
Additionally, Lee and Zerahaimanot argue that under State v. Powell108

the elements of second degree kidnapping must be included in the information

because the State must prove them beyond a reasonable doubt at trial. In

Powell, the court noted that the "'essential elements' include only those facts

that must be proved beyond a reasonable doubt to convict a defendant of the
charged crime."109 Lee and Zerahaimanot mistakenly focus on the language

that the elements that must be proved beyond a reasonable doubt and ignore

the limitation that the information need only include those factors for the crime

105 Apprendi, 530 U.S. at 476 (quoting Jones v. United States, 526 U.S.
227, 243 n.6, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).

106 Goodman, 150 Wn.2d at 785-86.

107 Recuenco, 163 Wn.2d at 436, 441.

108 167 Wn.2d 672, 223 P.3d 493 (2009).

109 Id. at 683 (emphasis added).

30

No. 62864-0-I (Consolidated with 62961-1)/31

charged.110 Because they were not charged with second degree kidnapping,

this argument is unpersuasive.

OFFENDER SCORE

Lee and Zerahaimanot argue that unlawful possession of a firearm and

murder were the same criminal conduct for purposes of calculating their offender

scores. We disagree.

If two current offenses encompass the same criminal conduct, then those
offenses will only count as one crime in calculating the offender score.111 The

same criminal conduct requires two or more crimes to involve (1) the same
criminal intent, (2) the same time and place, and (3) the same victim.112 "If any

one of these elements is missing, the offenses must be individually counted
toward the offender score."113

A sentencing court's determination of same criminal conduct will be
reversed only for a clear abuse of discretion or misapplication of law.114

Here, although the murder and unlawful possession of a firearm occurred

in the same time and place, they involved neither the same criminal intent nor

the same victim. The criminal intent for the unlawful possession of a firearm is

110 (Emphasis added.)

111 RCW 9.94A.589(1)(a).

112 State v. Haddock, 141 Wn.2d 103, 109-10, 3 P.3d 733 (2000).

113 Id. at 110.

114 Id.

31

No. 62864-0-I (Consolidated with 62961-1)/32

voluntary possession of the gun.115 The criminal intent for murder is to kill

someone.116 Additionally, the victim of the unlawful possession of a firearm is

the general public.117 The victim of the murder was Starrett. Because the crimes

did not satisfy two of the three criteria, they are not the same criminal conduct

and the trial court did not abuse its discretion by counting them separately.

Lee and Zerahaimanot argue that the criminal intent for murder and

unlawful possession of a firearm are the same because one crime furthered the
other. They rely on State v. Dunaway,118 which explained that courts should

focus on the extent to which the criminal intent, viewed objectively, changed from
one crime to the next.119 "[P]art of this analysis will often include the related

issues of whether one crime furthered the other and if the time and place of the
two crimes remained the same."120 In Dunaway, the defendants committed

armed robbery and then attempted to murder the victims before leaving the
premises.121 But, the supreme court held that the two crimes did not encompass

the same criminal conduct. "[N]either crime furthered the commission of the

115 State v. Thompson, 55 Wn. App. 888, 894, 781 P.2d 501 (1989); RCW
9.41.040.

116 State v. Dunaway, 109 Wn.2d 207, 216, 743 P.2d 1237 (1987); RCW
9A.32.030.

117 Haddock, 141 Wn.2d at 110-11.

118 109 Wn.2d 207, 743 P.2d 1237 (1987).

119 Id. at 215.

120 Id.

121 Id. at 216.

32

No. 62864-0-I (Consolidated with 62961-1)/33

other. While the attempted murders may have been committed in an effort to

escape the consequences of the robberies, they in no way furthered the ultimate
goal of the robberies."122 Dunaway does not support the argument that

committing unlawful possession of a firearm furthers a murder.

Lee and Zerahaimanot also argue that because Starrett was a member of

the "public" both crimes involve the same victim. But, our supreme court
rejected this argument in State v. Haddock.123 There, the defendant was

convicted of unlawful possession of a firearm and possession of stolen
firearms.124 The court held that because the theft victims suffered distinct

emotional, psychological, physical, or financial injury as a direct result of the

defendant's crime, they should be considered separate and apart from the
general public.125

Here, Starrett suffered distinct and serious injuries as a direct result of the

murder. They were distinct from any injury that the public suffered. Therefore,

this argument is not persuasive.

Hearsay Statement

Lee argues that Holt's testimony about a conversation he had with

Zerahaimanot was inadmissible hearsay and violated Lee's Sixth Amendment

122 Id. at 217.

123 141 Wn.2d 103, 111, 3 P.3d 733 (2000).

124 Id. at 110.

125 Id. at 111.

33

No. 62864-0-I (Consolidated with 62961-1)/34

right to confrontation. We again disagree.

At trial, Lee did not object to the portion of Holt's testimony now at issue.

Therefore, we must apply the Lynn analysis, as described above, in reviewing

the alleged error for the first time on appeal.

Upon a cursory review of the Holt's testimony about Zerahaimanot's out of

court statements, as stated below, the Confrontation Clause is implicated.

Additionally, the alleged error is manifest. Holt was the only eye witness and the

admissions of Zerahaimanot during a conversation after the shooting could have

a practical and identifiable consequence on the outcome of the case. Thus, the

merit of the Confrontation Clause claim is at issue.

The Confrontation Clause prohibits the admission of testimonial hearsay
unless the defendant has an opportunity to cross-examine the declarant.126 "A

statement is testimonial if a reasonable person in the declarant's position would

anticipate that his statement would be used against the accused in investigating
or prosecuting a crime."127 "Non-testimonial" hearsay is not subject to the

Confrontation Clause and is admissible, subject only to the rules of evidence.128

An alleged violation of the Confrontation Clause is reviewed de novo.129

126 State v. Hendrickson, 138 Wn. App. 827, 833, 158 P.3d 1257 (2007)
(citing State v. Shafer, 156 Wn.2d 381, 388, 128 P.3d 87 (2006)).

127 Id. (citing Shafer, 156 Wn.2d at 389).

128 State v. Pugh, 167 Wn.2d 825, 831-32, 225 P.3d 892 (2009) (citing
Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224
(2006)).

129 Kronich, 160 Wn.2d at 901 (citing Lilly, 527 U.S. at 137).

34

No. 62864-0-I (Consolidated with 62961-1)/35

Here, Holt testified about a conversation he had with Zerahaimanot after

the shooting:

[PROSECUTOR]: One final thing I want to ask you about.
You were asked some questions about [Zerahaimanot] being foggy
about the details of what happened. You remember those
questions?

[HOLT]: Yes.

. . . .

[PROSECUTOR]: Did he tell you some of the things that he
had done?

[HOLT]: Um, he - - he said why - - he asked why did - - why
did Forrest go for the gun. Grab the gun. And then he said - - he
said something about him being the one that - - him might have
been the one that shot him in the head.

[PROSECUTOR]: So, whether or not Forrest struggled over
the gun came from [Zerahaimanot] not you, correct? That question
was raised by [Zerahaimanot]. Or the statement, I guess. It wasn't
a question. Let me ask a clear question on that.

[Zerahaimanot] was the one that asked you why did he
struggle over the gun, why did he grab the gun.

[HOLT]: Yes, he said that.

[PROSECUTOR]: Okay.

And then [Zerahaimanot] made the statement to you
that he believed he was the one that shot Forrest in the head.

[HOLT]: Yes.

[PROSECUTOR]: And then it was after that that you
said, No, I saw [Lee] shoot him in the head.

[HOLT]: Yes.

[PROSECUTOR]: Did he take any issue with that?

35

No. 62864-0-I (Consolidated with 62961-1)/36

[HOLT]: No.

[PROSECUTOR]: Okay. All right. Thank you. That's all I
have.[130]

Zerahaimanot chose not to testify at trial. So Lee did not have an

opportunity to cross-examine him regarding this conversation.

We need not determine whether Zerahaimanot's silence was inadmissible

hearsay under the rules of evidence. Assuming without deciding that it was, his

silence was not "testimonial." Holt and Zerahaimanot were associates. Holt

invited Zerahaimanot to Walker's house the evening of the shooting. On this

record, a reasonable person in Zerahaimanot's position would not believe that

his silence during a discussion with his associate, who witnessed the crime,

would later be used in the investigation and prosecution of that crime. Thus, the

trial court did not violate Lee's right to confront Zerahaimanot. Because there

was no constitutional violation, we need not engage in a harmless error
analysis.131

Lee implies that the State's questioning of Holt on the stand makes

Zerahaimanot's statement testimonial and therefore subject to the Confrontation

Clause. He cites no authority for this proposition and we assume he has found

none. We need not address this part of his claim any further.
Lee also argues that Bruton v. United States132 is controlling because

130 Report of Proceedings (Nov. 25, 2008) at 1034-35 (emphasis added).

131 See State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).

132 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

36

No. 62864-0-I (Consolidated with 62961-1)/37

Zerahaimanot's failure to correct Holt's statement was tantamount to a co-
defendant's confession that improperly implicated him.133 But, the fact that

Zerahaimanot's statements to Holt were not testimonial precludes an analysis

under Bruton. In Bruton, the co-defendant's confession was made to a postal
inspector during interrogations at the city jail.134 The statement was testimonial

because a reasonable person in a jail interrogation would expect that his

statements would be used in later investigating and prosecuting the crime.

Because Zerahaimanot's statements were not testimonial, Lee's confrontation

right was not violated and Bruton is not applicable.

Ineffective Assistance of Counsel

Lee and Zerahaimanot argue that they were denied effective assistance

of counsel because their respective trial counsel failed to argue that unlawful

possession of a firearm and murder were the same criminal conduct.

Additionally, Lee argues that he was denied effective assistance of counsel

because his attorney failed to object to the alleged hearsay testimony presented

by Holt. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant

must show that counsel's performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced his trial.135 The

133 Brief of Appellant Lee at 28-31.

134 Id.

135 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251

37

No. 62864-0-I (Consolidated with 62961-1)/38

reasonableness inquiry presumes effective representation and requires the

defendant to show the absence of legitimate strategic or tactical reasons for the
challenged conduct.136 To show prejudice, the defendant must show that, but for

the deficient performance, there is a reasonable probability that the outcome of
the trial would have been different.137 If one of the two prongs of the test is

absent, we need not inquire further.138

Here, neither attorney's performance fell below the standard of

reasonableness. As discussed above, unlawful possession of a firearm and

murder do not constitute the same criminal conduct. Therefore, counsel had no

duty to object and acted reasonably.

Lee also argues that his counsel was ineffective because he failed to

object on hearsay grounds to Holt's testimony about his conversation with

Zerahaimanot. But, Lee failed to show that Holt's testimony was inadmissible

hearsay.

Holt testified that Zerahaimanot was silent when Holt informed him that

Lee shot Starrett. Although a declarant's non-verbal conduct can be a statement

for the purposes of hearsay, it will only be considered as such if it is intended by

(1995).

136 McFarland, 127 Wn.2d at 336.

137 In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593
(1998).

138 Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273,
166 P.3d 726 (2007).

38

No. 62864-0-I (Consolidated with 62961-1)/39

the declarant as an assertion.139 Based upon the testimony presented above,

there is no indication that Zerahaimanot's failure to respond to Holt's statement

that Lee shot Starrett in the head was an assertion of the truth of that statement.

Holt admitted that Zerahaimanot was "foggy" about the events of the shooting.

His failure to respond to Holt's statement could have been due to his general

confusion, not his recollection and agreement with Holt's version of the events.

On this record, Lee did not meet his burden to show that the testimony was

hearsay. Therefore, counsel had no duty to object and acted reasonably.

Because counsel's performance was not deficient in either instance, we

need not address prejudice.

DOUBLE JEOPARDY

Finally, Lee and Zerahaimanot argue that the trial court erred in refusing

to vacate their merged murder convictions during sentencing. We agree.

The Washington and federal constitutions protect persons from being

twice put in jeopardy for the same offense by being "punished multiple times for
the same offense."140 Double jeopardy claims are reviewed de novo.141

In State v. Womac,142 the supreme court considered whether a

139 ER 801(a).

140 U.S. Const. amend. V; Wash. Const. art. I, § 9; State v. Linton, 156
Wn.2d 777, 783, 132 P.3d 127 (2006) (citing State v. Graham, 153 Wn.2d 400,
404, 103 P.3d 1238 (2005)).

141 State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010) (citing State
v. Kelley, 168 Wn.2d 72, 76, 226 P.3d 773 (2010)).

142 160 Wn.2d 643, 160 P.3d 40 (2007).

39

No. 62864-0-I (Consolidated with 62961-1)/40

defendant's three homicide convictions should stand when he was only
sentenced on one of them.143 It held that the entry of judgment on all three

convictions violated double jeopardy and directed the lower court to vacate two
of the convictions on remand.144 The court reasoned that even though Womac

was sentenced for only one conviction, the stigma and impeachment value of the
other convictions remained.145 "'[C]onviction, and not merely imposition of a

sentence, constitutes punishment'" for double jeopardy purposes.146

Here, the trial court entered judgments against Lee and Zerahaimanot on

two counts: Count I for felony murder and Count II for premeditated murder. The

court made a note on the Judgment and Sentence that: "Count II merges into
Count I for sentencing purposes . . . ."147 The court then sentenced Lee and

Zerahaimanot only on the felony murder count. It declined, however, to vacate

the merged conviction as requested by the State and required by Womac. This

was incorrect.
The State argues that State v. Johnson148 and State v. Meas149 are

143 Id. at 656.

144 Id. at 660.

145 Id. at 657.

146 Id. (citing State v. Gohl, 109 Wn. App. 817, 822, 37 P.3d 293 (2001).

147 Clerk's Papers (Lee) at 20; Clerk's Papers (Zerahaimanot) at 5.

148 113 Wn. App. 482, 54 P.3d 155 (2002).

149 118 Wn. App. 297, 75 P.3d 998 (2003).

40

No. 62864-0-I (Consolidated with 62961-1)/41

controlling here. But, both of these cases were decided before Womac, which

unequivocally holds that the entry of multiple convictions for the same crime

violates double jeopardy even if a defendant is only sentenced on one

conviction. The State's reliance is misplaced.
The State also argues that State v. Trujillo150 is persuasive because Lee

and Zerahaimanot were charged in the alternative with felony murder and

premeditated murder. But, in that case, the court held that "where the jury

returns a verdict of guilty on each alternative charge, the court should enter a

judgment on the greater offense only and sentence the defendant on that
charge without reference to the verdict on the lesser offense."151 There, the

trial court acted appropriately because it entered judgment only on the greater
offense.152 Here, the trial court entered judgment on both counts of murder. As

such, Trujillo is unpersuasive.

Finally, the State argues that there is no double jeopardy violation

because the reference to Count II on the judgment and sentence does not result

in any collateral punishments for the defendants. This argument is clearly at

odds with the holding in Womac. As such, it is unpersuasive.

Remand to vacate the premeditated murder convictions is the proper

remedy for this double jeopardy violation. The felony murder convictions should

150 112 Wn. App. 390, 49 P.3d 935 (2002).

151 Trujillo, 112 Wn. App. at 411 (emphasis added).

152 Id.

41

No. 62864-0-I (Consolidated with 62961-1)/42

remain undisturbed.

We remand to the trial court for reconsideration of its order to seal the

juror questionnaires under Bone-Club. We also direct the trial court to vacate

Lee and Zerahaimanot's premeditated murder convictions on double jeopardy

grounds, leaving undisturbed their felony murder convictions. In all other

respects, we affirm.

WE CONCUR:

42