State Of Washington, Respondent V. Simion Martinez, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ,
Respondent,
v.
SIMION MARTINEZ,
Appellant.
No. 74113-6-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 17, 2017
Appelwick, J. — During Martinez's trial for second degree assault, his
counsel objected on hearsay grounds to testimony identifying Martinez as the
assailant. 	For the first time on appeal, Martinez contends the testimony violated
his right to confront the witnesses against him. 	This contention cannot be raised
for the first time on appeal. We affirm.
FACTS
Based on allegations that Martinez punched Cesar Bustillo-Diaz during a
wake at a Burien apartment complex, the State charged him second degree assault.
At trial, King County Sheriffs Deputy Andrew Weekley testified that on April
13, 2015, he responded to a report of a disturbance at an apartment complex. When
he arrived, "there w[ere] tons of people outside just kind of mingling around." 	One
man, Cesar Bustillo-Diaz, was bleeding from his face. 	Concerned that "somebody
else might be injured" and/or that the "suspect might be there," Deputy Weekley

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began speaking to the crowd "trying to figure out if the bad guy was still there, any
other victims, who saw it, just trying to get any information I could."
The prosecutor inquired whether Weekley was able to obtain the suspect's
name from the crowd:
[PROSECUTOR:] Okay. 	Did the information you gathered from them
help you identify who the suspect was?
[DEPUTY WEEKLEY:] Yes.
[PROSECUTOR:] 	Did you eventually get a name?
[DEPUTY WEEKLEY:] Yes.
[PROSECUTOR:] And what was that name?
[DEFENSE COUNSEL]: I'm going to object, it's hearsay.
[PROSECUTOR]: 	For identification.
[DEFENSE COUNSEL]: 	But it's not -- he's not the one who's
doing the Identifying.
[DEPUTY WEEKLEY:] A possible suspect.
THE COURT: 	Your further comment regarding the objection,
Mr. Kim?
[PROSECUTOR]: 	It's for identification.
THE COURT: The objection will be overruled.
(Emphasis added.)
When the prosecutor asked for "the possible suspect's name that you
gathered from this crowd," Deputy Weekley testified:
I can't give you the exact [name]. ... I remember it being a close
match to the person, and that happens all the time. 	We'll get, you
know, Andre Weekley for me, and so I put in A. Weekley in our little
search, and it would come back Andy Weekley or Andrew Weekley.
And I go, hey, that's - that's a possibility. 	Ages match, you know,
sexes match. 	So I don't know the exact name and date of birth I

No. 74113-6-1/3
had originally, but through our databases we were able to come up
with the name of Simon Martinez.
Defense counsel objected again:
[DEFENSE COUNSEL]: 	I'm going to 	object and 	move to
strike. 	Now he's not -- the question - 	or - 	and it's also
nonresponsive. 	The question was what information he got
from the people there, and now he's telling about information
he got from his databases.
THE COURT: 	Sustained. 	Redirect the witness.
[PROSECUTOR]: 	I will, Your Honor.
[PROSECUTOR:] 	Did you get information from these witnesses?
[DEPUTY WEEKLEY:] Yes.
[PROSECUTOR:] Did that eventually lead to a name of a suspect?
[DEPUTY WEEKLEY:] Yes.
[PROSECUTOR:] What was the name of that suspect?
[DEPUTY WEEKLEY:] Sorry, Simon Martinez.
[DEFENSE COUNSEL]: 	I'm going to object again.
[PROSECUTOR]: 	It's already been ruled on, your Honor.
THE COURT: 	Just a second. What is the objection now?
[DEFENSE COUNSEL]: 	Well, he's giving information that
maybe came from some other source that's hearsay, and
he's saying 	eventually, 	and 	it's still 	nonresponsive to the
question.
THE 	COURT: 	Objection 	overruled. 	Exception 	to 	the
hearsay is 	identification. 	You 	may answer the question.
What's the name?
[DEPUTY WEEKLEY:] Simon Martinez.
(Emphasis added.)

No. 74113-6-1/4
Deputy Weekley subsequently clarified he meant "Simion" Martinez. 	He
also testified the information he gathered came from two people in particular, a
man who he did not identify and a woman named Gilma Martinez Crisanto.
Bustillo-Diaz testified that 	he 	attended 	the wake. 	When 	asked 	if he
recognized Martinez, Bustillo-Diaz said he recognized him from a picture a police
officer showed him at the hospital. 	According to Bustillo-Diaz, Martinez was "so
rude . . . and he repeat a lot of times [that] someone [was] going to die." 	Later,
he heard someone running towards him. 	Bustillo-Diaz pointed at Martinez and
said, "I just turn around and see . . . that guy just hit me a lot, a lot of times." He
testified that he received 5-7 stitches on his face. 	He was "positive" when he
picked Martinez's photo from the montage and was "certain" that Martinez was
the person who assaulted him.
Deputy Weekley's partner, Officer Scott Mandella, generally corroborated
Deputy Weekley's testimony about his exchange with the crowd members:
[PROSECUTOR:] 	Did 	you know of a 	suspect's 	name 	before
creating the photo lineup?
[OFFICER MANDELLA:] Yes, I did.
[PROSECUTOR:] Okay. 	How did you obtain that?
[OFFICER MANDELLA:] 	Deputy Weekley relayed that information
to me that was given to him from another witness on scene.
Based on the information he received from Deputy Weekley and Bustillo-Diaz,
Officer 	Mandella created 	a 	photo montage 	and 	showed 	it to 	Bustillo-Diaz.
Without hesitation, Bustillo-Diaz picked a photo of Martinez. 	Officer Mandella
testified that prior to showing Bustillo-Diaz the montage, he informed him that

No. 74113-6-1/5
"the 	person who 	committed the 	crime 	may 	or 	may 	not 	be 	in this 	group 	of
photographs" and that he was "in no way obligated to identify anyone."
Martinez 	did 	not testify 	or 	call 	any 	witnesses. 	In closing 	argument,
defense counsel argued that the state failed to prove beyond a reasonable doubt
that Martinez was the assailant. 	Counsel pointed out that while Bustillo-Diaz
described his attacker as a "black/white mixed race male," Martinez "is not light
skinned." 	Counsel 	also 	noted 	that 	Bustillo-Diaz 	initially 	testified 	that 	he
recognized Martinez from the pictures police showed him at the hospital and that
he had assumed his attacker was among the photos the police showed him.
After three hours of deliberation, the jury informed the court it could not
reach a verdict. 	The court directed the jury to resume deliberating. 	The jury
subsequently returned a guilty verdict. 	Martinez appeals.
DECISION
Martinez 	contends 	the 	trial 	court's 	admission 	of 	hearsay 	statements
violated 	his 	right to confrontation 	under the state and federal 	constitutions.1
Specifically, he contends the statements were nontestimonial hearsay and were
therefore inadmissible. 	Martinez does not dispute that this issue is raised for the
first time on appeal. 	The State counters that this challenge can be raised for the
first time on appeal via only an ineffective assistance of counsel claim. 	We
agree.
1 Sixth Amendment of the United States Constitution and Article 1, section
22 of the Washington Constitution.

No. 74113-6-1/6
In State v. O'Cain. 169 Wn. App. 228, 247-48, 279 P.3d 926 (2012), we
declined to consider a confrontation clause argument raised for the first time on
appeal. 	At trial, O'Cain objected to evidence on relevance grounds and did not
assert a violation of his right to confrontation. 	We noted that under Melendez-
Diaz v. Massachusetts. 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009),
a defendant loses the right to confront witnesses by failing to assert it at trial. 	Id.
We reasoned that if it were not the defendant's burden to object on confrontation
grounds, trial judges would be 	placed in the untenable position 	of either sua
sponte interposing a confrontation objection or knowingly presiding over a trial
headed for likely reversal on appeal. 	Id. at 243. 	We concluded that objecting on
confrontation grounds is a tactical decision for counsel and that, absent such an
objection, ER 103 precludes the predication of error on confrontation grounds
and trumps RAP 2.5(a)(3) (allowing appellate courts to consider errors, including
"manifest error affecting a constitutional right," for the first time on appeal), id.
We reached the same conclusion in State v. Fraser, 170 Wn. App. 13, 26-
27, 282 P.3d 152 (2012). 	There, the defendant objected to evidence at trial on
the ground that it was more prejudicial than probative, 	jd. at 25. 	For the first
time on appeal, he argued that the evidence violated his right to confrontation.
\± 	We 	reaffirmed 	our decision 	in O'Cain, 	holding 	that 	Fraser waived 	his
confrontation argument by not objecting on that ground at trial. 	Id. at 26. 	We
then added an alternative analysis that "[i]f RAP 2.5(a)(3) is read as a state
procedural exception to the objection requirement for confrontation clause errors,
6-

No. 74113-6-1/7
Fraser would still not be entitled to review because he failed to make a showing
of manifest constitutional error. 	Fraser, 	170 Wn. 	App. 	at 26-27. 	Fraser is
consistent with O'Cain.
Like 	the 	defendant 	in 	O'Cain, 	Martinez 	objected 	to 	the 	challenged
evidence at trial, 	but not on confrontation grounds.2 	Under O'Cain, Martinez
waived his confrontation claim and cannot raise it for the first time on appeal.
Martinez does not argue that a hearsay objection in the trial court is an exception
to the holding in O'Cain and that it is sufficient to preserve a confrontation clause
challenge for appeal. 	To the extent there was any violation of Martinez's right to
confrontation below, it was caused by defense counsel's decision not to object on
confrontation grounds. 	The proper challenge on appeal or collateral 	review
would be a claim of ineffective assistance of counsel. 	See O'Cain, 169 Wn. App.
at 245. 	Martinez does not advance such a claim on appeal.3
2 We note that the failure to object on confrontation grounds may deprive
the State of an opportunity to create a full 	record regarding the nature and
purposes of the police questioning and the testimonial or nontestimonial nature of
the witness's responses. 	Without a developed record, it may be impossible to
determine whether a claimed error is manifest constitutional error under RAP
2.5(a)(3). 	State v. WWJ Corp.. 	138 Wn.2d 595, 603, 	980 P.2d 1257 (1999)
(holding that without a developed record a claimed error cannot be manifest and
does not satisfy RAP 2 .5(a)(3)); State v. McFarland. 127 Wn.2d 322, 333-34,
899 P.2d 1251 (1995)(to show that a claimed error is manifest, the trial court
record must be sufficiently developed to show actual prejudice).
3 The State also contends that the challenged evidence "was cumulative
and 	nearly identical 	to 	unchallenged testimony by 	Mandella." 	The 	State
concludes that because the evidence was cumulative of other evidence, there
was no manifest constitutional error under RAP 2.5(a). 	See Fraser, 170 Wn.
App. at 26-29. 	Martinez did not respond to these arguments.

No. 74113-6-1/8
Martinez requests that we preclude an award of costs to the State under
RAP 14.2 on the ground that he is indigent. 	Appellate courts may require an
adult 	offender 	convicted 	of 	an 	offense 	to 	pay 	appellate 	costs. 	RCW
10.73.160(1). The commissioner or clerk will award costs to the State if the State
is the substantially prevailing party on appeal, "unless the appellate court directs
otherwise in its decision terminating review." 	RAP 14.2. 	We entrust indigency
determinations to the trial judge and will defer to a finding of indigency absent a
showing of good cause not to do so. 	State v. Sinclair, 192 Wn. App. 380, 393,
367 P.3d 612, review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016). 	We "give a
party the benefits of an order of indigency throughout the review unless the trial
court finds the party's financial condition has improved to the extent that the party
is no longer indigent." 	RAP 15.2(f).
The State argues that we should not defer to the trial court's indigency
finding in this case, because the order does not contain findings or information
about Martinez's future ability to pay. 	But, Sinclair makes clear that during trial
and sentencing, both parties have access to information about "the defendant's
age, family, education, employment history, criminal history, and the length of the
current sentence" that influence the State's discretionary decision to seek costs.
Sinclair. 192 Wn. App. at 391-92. 	Here, the trial court found Martinez indigent
and has not found that his financial condition has improved or is likely to improve.
We therefore presume that Martinez remains indigent. 	The State does not point
to anything 	in 	the record 	suggesting that his financial 	condition 	is likely to
8-

No. 74113-6-1/9
improve. 	Although the State notes that Martinez is 	in his 	early thirties and
received "no additional confinement after sentencing," these facts are insufficient
to overcome the presumption of indigency. 	An award of appellate costs is not
appropriate in these circumstances.
Affirmed.
WE CONCUR:
dw*)