Filed Washington State Court of Appeals Division Two
January 9, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49163-0-II
Respondent,
v.
BRICE SCOT NOWACKI, UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — Brice Nowacki appeals his convictions of forgery and making a false
or misleading statement to a public servant. Nowacki argues that (1) the trial court erred by
admitting two prior written statements, (2) he was denied his right to a fair trial due to improper
opinion testimony by an officer, (3) the prosecutor committed misconduct during closing by
arguing facts not in evidence, (4) his trial counsel was ineffective for failing to object to the
opinion testimony and the prosecutor’s remarks at closing, and (5) this court should not impose
appellate costs. We affirm Nowacki’s convictions.
FACTS
I. BACKGROUND
Justin Dunaway possessed several stolen checks from Nichole Brese’s closed checking
account. In July 2015, Dunaway asked Austin Malakowsky to cash some signed checks from
Brese’s account in exchange for money. Malakowsky successfully cashed a number of forged
checks. No. 49163-0-II
In late July 2015, Malakowsky, Dunaway, and Brice Nowacki, a friend of Malakowsky,
all met. After this meeting, Malakowsky asked Nowacki to cash one of Brese’s check in
exchange for money. Nowacki later agreed to cash the check at Fibre Federal Credit Union
where Nowacki had a checking account.
On July 30, 2015, Malakowsky picked up Nowacki and drove him to Fibre Federal Credit
Union. On the way to the credit union, Malakowsky gave Nowacki one of Brese’s checks made
out to “Brice Caski.” A Verbatim Report of Proceedings (VRP) at 71. The check also included
a note in the memo line which stated, “For work.” A VRP at 71. After dropping Nowacki off at
Fibre Federal Credit Union, Malakowsky left. Nowacki entered the credit union and handed a
teller the check and his identification. Nowacki told the teller that he was cashing a check for a
male friend named Nichole Brese. The teller contacted Brese’s credit union and learned that
Brese’s account had been closed. The teller notified the bank manager then the police were
called.
Sergeant Scott Neves responded to the call and approached Nowacki, who was exiting
the credit union. Sergeant Neves asked Nowacki what was “[g]oing on?” A VRP at 103.
Nowacki responded that he was at the credit union to cash a check. When Sergeant Neves told
Nowacki, “That’s why I’m here, too,” Nowacki stated, “S**t, I just knew it.” A VRP at 104.
Other officers soon arrived on the scene as did a white SUV (sports utility vehicle), later
determined by officers to be driven by Malakowsky. Nowacki then told Sergeant Neves the
person he was cashing the check for was inside the white SUV. Sergeant Neves and Nowacki
reentered the credit union, and Sergeant Neves spoke with the credit union employees.
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After speaking with the employees, Sergeant Neves detained Nowacki. Nowacki then
told Sergeant Neves that Nichole Brese was his male friend who he knew personally. Nowacki
also told Sergeant Neves that Brese had given him the check to cash because Brese did not have
a bank account. Nowacki also explained that Malakowsky had cashed several checks for
Nichole Brese. Sergeant Neves took Malakowsky into custody.
After detaining Malakowsky, Sergeant Neves recontacted Nowacki, who then apologized
and told Sergeant Neves that he had previously lied about Brese’s identity and that he did not
want to get into trouble. Nowacki also told Sergeant Neves that it was Malakowsky who had
given him the check to cash.
Later, another officer presented a photo of Justin Dunaway to Nowacki and Malakowsky.
Nowacki then informed the officers that he had actually received the check from Dunaway, and
not Malakowsky, as he had previously stated.
The officers then transported Nowacki and Malakowsky to the police station. At the
station, a police officer obtained a statement from Malakowsky. Malakowsky’s statement read:
I met a guy named Justin Dunaway he told me he needed help cashing his checks. So I helped him I didn’t know where the checks came from or how he got them he gave me about 100 per check and I think 5 checks were deposited I did not know they were fake. I thought I was helping a friend but instead I was being set up.
Ex. 2.
The State charged Nowacki with forgery and making a false or misleading statement to a
public servant. The State separately charged Malakowsky for his involvement with cashing
Brese’s checks. Malakowsky later pleaded guilty to his charges. After pleading guilty,
Malakowsky authored a second statement. Malakowsky gave this statement to Nowacki’s
defense counsel. Malakowsky’s second statement stated:
3 No. 49163-0-II
I conned my friend Brice into cashing a fake check. I told him since he needed money if he cashed this check he would get a good portion of the money that comes out of it he had no clue that what he was doing was illegal and Brice Nowacki is the man I conned.
Ex. 3.
II. TRIAL
At Nowacki’s trial, witnesses testified to the facts as described above. In addition,
Malakowsky testified that it took him a day to fully convince Nowacki to cash a check due to
Nowacki’s initial skepticism. When asked about whether he tried to explain to the police on the
day of the incident that Nowacki was not involved, Malakowsky responded that he “tried to” but
that he could not “exactly remember what happened that day.” A VRP at 137. Malakowsky also
testified that he was trying to do what he could to help Nowacki, but that he was also trying to
save himself. Malakowsky stated that he knew the checks were fake.
Malakowsky identified exhibit 2 as the same statement that he had given to police.
Malakowsky verified that exhibit 2 did not contain any information about encouraging Nowacki
to cash a check.
Malakowsky also testified about a later statement he gave to Nowacki’s defense counsel,
which was marked as exhibit 3. Malakowsky verified that he wrote out the statement in
Nowacki’s defense counsel’s office sometime after pleading guilty to his own charges.
The State moved to admit both statements into evidence. Nowacki objected on the
ground that there was an “improper foundation for [a] Smith[1] [a]ffidavit.” A VRP at 145
1 State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982).
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(alteration in original). The trial court overruled the objection as to exhibit 2. However, the
court sustained the objection as to exhibit 3.
The State then continued to question Malakowsky regarding exhibit 3. When asked how
he came to write the statement, Malakowsky responded that he decided that he “needed to tell
the truth.” A VRP at 145. The State again moved to admit the statement into evidence and
Nowacki again objected, asserting the same objection, that the State had not established a proper
foundation for a “Smith affidavit.” The trial court overruled the objection and admitted exhibit 3.
Nowacki also testified at trial. He testified that Malakowsky asked him to cash a check
but that he was reluctant to do so. He stated that he originally refused Malakowsky’s proposal
but that Malakowsky later convinced him to cash the check by telling him that it was “legal and
safe.” A VRP at 157. Nowacki stated that although he had met Dunaway one time prior to the
incident, he did not know Dunaway’s real name until the officers presented him with Dunaway’s
photograph that referenced Dunaway’s name. Nowacki also testified that he initially thought
that Dunaway’s name was Nichole Brese based on the name printed on the check.
Regarding the day of the incident, Nowacki testified that he originally thought that the
check that he received from Malakowsky was legitimate but by the time Sergeant Neves
approached him, he started to “connect the dots” regarding the validity of the check. A VRP at
164. Nowacki also admitted that he lied to Sergeant Neves about knowing Nichole Brese.
Nowacki admitted that he never mentioned his reluctance to cash the check to Sergeant Neves.
He also admitted that he had discussed the check-cashing plan with his mother, who told him
that it “was a bad idea.” A VRP at 169.
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During Sergeant Neves’s testimony, the State specifically asked him his opinion on when
people confess to police. The State asked if people “just always confess to everything” during a
police investigation. A VRP at 182. Sergeant Neves responded that “[m]ost people lie to the
police” and do not confess. A VRP at 182. The State then asked if Sergeant Neves ever
expected Nowacki to tell him that the checks were fake. Nowacki objected to this question
before Sergeant Neves responded. The trial court sustained the objection and the State did not
ask any other related questions.
Nowacki then asked Sergeant Neves a series of questions regarding confessions.
Nowacki specifically asked Sergeant Neves whether, in his experience, people sometimes do
confess, to which Sergeant Neves responded that “they do” and added, “Sometimes it takes a
little investigation, but at times they do confess.” A VRP 183.
At the close of trial, the court instructed the jury and included an instruction about
arguments made the by attorneys during trial. The trial court stated:
The lawyers’ remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers’ statements are not evidence. The evidence is the testimony and the Exhibits, the law as contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions.
VRP (June 1, 2016) at 18.
During closing arguments, the prosecutor commented about the copy of the check
presented to the jury and stated, “First of all, we know the check, in and of itself, is off an email
account photo.”2 VRP (June 1, 2016) at 21. Nowacki did not object to the prosecutor’s
2 The check’s image was admitted as an exhibit at trial.
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comments about the email account photo. Later during closing, the prosecutor discussed
Nowacki’s interaction with the teller at Fibre Federal Credit Union and stated, “So he tells her: I
have a guy friend, Nichole, who has a fellow by the name, Ron.” (June 1, 2016) at 25. Nowacki
did not object to the prosecutor’s comments about a person named Ron.
The jury then found Nowacki guilty of forgery and making a false statement to a public
servant, as charged. Nowacki appeals his convictions.
ANALYSIS
I. PRIOR WRITTEN STATEMENTS
Nowacki argues that the trial court erred by admitting Malakowsky’s two prior written
statements (exhibits 2 and 3). Nowacki contends that these exhibits were hearsay and did not
meet the admissibility requirements of a Smith affidavit or ER 801(d)(1). The State responds
that the trial court properly admitted Malakowsky’s prior statements because the statements were
admissible for impeachment purposes. We hold that the trial court improperly admitted both
exhibits 2 and 3, but that the admission of the exhibits was harmless.
A. Legal Principles
We review the trial court’s decision to admit or exclude evidence for an abuse of
discretion. State v. Ashley, 186 Wn.2d 32, 38-39, 375 P.3d 673 (2016). An abuse of discretion
occurs when the trial court bases its decision on untenable grounds or exercises discretion in a
manner that is manifestly unreasonable. State v. Zunker, 112 Wn. App. 130, 140, 48 P.3d 344
(2002). If the trial court bases its evidentiary ruling on an incomplete legal analysis or a
misapprehension of legal issues, the ruling may be an abuse of discretion. State v. Nieto, 119
Wn. App. 157, 161, 79 P.3d 473 (2003).
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“Hearsay” is a “statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Prior
statements of testifying witnesses are considered hearsay unless they fall under an exclusion or
exception to the hearsay rule. ER 801(d)(1).
Under ER 801(d)(1), a prior inconsistent statement is not hearsay and may be admitted as
substantive evidence if: (i) the declarant testified at trial and was subject to cross-examination,
(ii) the statement was inconsistent with the declarant’s testimony, (iii) it was given under oath
subject to penalty of perjury, and (iv) it was provided at a trial, hearing, or other proceeding, or
in a deposition. A “prior inconsistent statement” is a statement made by the witness out of court
which is inconsistent with the witness’s testimony. ER 613, 801(d)(1)); see State v. Johnson, 40
Wn. App. 371, 378, 699 P.2d 221 (1985).
In State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982), our Supreme Court considered
whether a sworn statement given during a police station interrogation qualified as an “other
proceeding” under ER 801(d)(1). Smith, 97 Wn.2d at 860-61. Such statements are commonly
referred to as a Smith affidavit. In Smith, the Supreme Court held that a sworn statement given
during a police station interrogation is admissible as substantive evidence under ER 801(d)(1) as
long as “[m]inimal guarantees of truthfulness” were met. Smith, 97 Wn.2d at 862. But Smith did
not define “minimal guarantees of truthfulness” because “each case depends on its facts with
reliability the key.” Smith, 97 Wn.2d at 861, 863.
After Smith, in assessing the reliability of a prior inconsistent statement given to police,
courts consider whether (1) the witness made the statement voluntarily, (2) there were minimal
guarantees of truthfulness, (3) the statement was given following one of the legally permissible
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methods for determining whether there was probable cause, and (4) the witness was later subject
to cross-examination. Nieto, 119 Wn. App. at 162-63.
B. The Trial Court Improperly Admitted the Prior Written Statements
Nowacki argues that Malakowsky’s prior statements contained in exhibits 2 and 3 were
not admissible under ER 801(d)(1) because they were not inconsistent with Malakowsky’s trial
testimony. Nowacki also argues that the State did not provide evidence from which the court
could properly determine if the statements met the requirements of a Smith affidavit. We hold
that the exhibits were improperly admitted, but that this error was harmless.
1. Exhibit 2
Nowacki argues that the statement in exhibit 2 was not inconsistent with Malakowsky’s
trial testimony. Nowacki also argues that the trial court improperly admitted exhibit 2 as a Smith
affidavit. We hold that although Malakowsky’s statements in exhibit 2 were inconsistent with
his trial testimony, the trial court improperly admitted exhibit 2 as a Smith affidavit. We further
hold that this error was harmless.
We first hold that Malakowsky’s statements in exhibit 2 were inconsistent with his later
trial testimony. In exhibit 2, Malakowsky reported that he did not know the checks were fake
and that he had been conned by Dunaway. Conversely, at trial Malakowsky testified that he
knew the checks were fake at the time he gave them to Nowacki. This record clearly shows that
Malakowsky’s prior statement contradicts his trial testimony. See Johnson, 40 Wn. App. at 377.
Therefore, contrary to Nowacki’s argument, the statements in exhibit 2 were inconsistent
statements as contemplated by ER 801(d)(1).
9 No. 49163-0-II
However we also hold that the trial court erred when it admitted exhibit 2 as a Smith
affidavit.
We are unable to determine whether the circumstances under which Malakowsky gave
his statement satisfy the additional Smith reliability factors because the trial court failed to
inquire into those factors or otherwise analyze the reliability of Malakowsky’s statement.
The record on appeal is not developed enough to show the voluntariness of the statement
in exhibit 2 or whether the statement contained minimal guarantees of truthfulness as required
under Smith. Had the court considered any of the Smith factors, the court might have determined
that exhibit 2 was sufficiently reliable. However, without those findings, we cannot say that
Malakowsky’s statement to police had the sufficient indicia of reliability required of a Smith
affidavit. See Nieto, 119 Wn. App. at 162-63 (holding that the court must analyze the facts of the
case and the purposes of the hearsay rule in determining whether a prior statement provides
minimal guarantees of truthfulness under Smith).
Therefore, because the trial court based its evidentiary ruling on an incomplete legal
analysis, the trial court abused its discretion in admitting exhibit 2 as a Smith affidavit. See
Nieto, 119 Wn. App. at 157. However, as discussed below, the court’s error was harmless.
2. Exhibit 3
Nowacki also argues that the statement in exhibit 3 was not inconsistent with
Malakowsky’s trial testimony, and therefore, the trial court improperly admitted the statement as
a prior inconsistent statement under ER 801(d)(1). We agree.3
3 Because we find that exhibit 3 was not an inconsistent statement under ER 801(d)(1), we do not address Nowacki’s arguments that exhibit 3 did not meet the requirements of a Smith affidavit.
10 No. 49163-0-II
In exhibit 3, Malakowsky stated that he had “conned” Nowacki into cashing the check
and that Nowacki had “no clue that what he was doing was illegal.” At trial, Malakowsky
testified that he conned and encouraged Nowacki into cashing the check. When asked about how
he came to write the statement in exhibit 3, Malakowsky testified that he decided that he “needed
to tell the truth.” A VRP at 145.
Taken as a whole, there was no clear inconsistency between Malakowsky’s trial
testimony and his prior statement. See State v. Newbern, 95 Wn. App. 277, 294, 975 P.2d 1041
(1999) (holding that, when taken as a whole, testimony that affords some indication that it was
different than other testimony is inconsistent). Because there was no inconsistency between
Malakowsky’s trial testimony and his prior statement, the trial court erred in admitting exhibit 3.
C. The Admission of the Statements Did Not Prejudice Nowacki
Although the trial court erred in admitting exhibit 2 and exhibit 3, we will not reverse due
to an error in admitting evidence where the error does not prejudice the defendant. State v.
Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004). An evidentiary error is not prejudicial unless,
within reasonable probabilities, the trial’s outcome would have differed had the error not
occurred. Thomas, 150 Wn.2d at 871.
Here, it is not reasonably probable that the trial outcome would have differed if the trial
court had excluded Malakowsky’s statements. Importantly, the jury still heard Malakowsky’s
testimony regarding the substance of both prior written statements. At trial, prior to the
However we do note that exhibit 3 was not a sworn statement given during a police station interrogation; thus, calling into doubt whether Smith applies.
11 No. 49163-0-II
admission of the statements into evidence, Malakowsky testified to making the statements and
the State questioned him about the contents of the two statements.
Moreover, the jury had other evidence from which they could determine that Nowacki
was guilty of forgery and making a false statement. It was uncontested that Nowacki presented a
forged check for payment. The main question for the jury was whether Nowacki was an
innocent patsy, or whether he knew the check was forged. Evidence of Nowacki’s own actions
and statements largely supported the State’s case.
Initially, upon Sergeant Neves informing Nowacki that he was there to investigate the
cashing of a check, Nowacki stated “S**t, I just knew it.” A VRP at 104. Then Nowacki gave
several conflicting statements to Sergeant Neves at the scene. He told Sergeant Neves that
Nichole Brese was his male friend who he knew personally. Nowacki also told Sergeant Neves
that Brese had given him the check to cash because Brese did not have a bank account. Nowacki
then told Sergeant Neves that Malakowsky had cashed several checks for Nichole Brese.
Nowacki then told Sergeant Neves that he had previously lied about Brese’s identity and that he
did not want to get into trouble. Nowacki then said that it was Malakowsky who had given him
the check to cash.
At trial, Nowacki testified that he only began to “connect the dots” that the check was not
good after seeing Sergeant Neves at the bank. Yet he admitted that his mother had tried to warn
him about cashing the check. With this evidence, there is no reasonable probability that the
trial’s outcome would have differed had Malakowsky’s two prior written statements not been
admitted.
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Accordingly, because the trial court’s evidentiary ruling did not have the reasonable
probability of affecting the trial’s outcome, we hold that the trial court’s admission of exhibit 2
and exhibit 3 was harmless.
II. OPINION TESTIMONY
Nowacki argues for the first time on appeal that Sergeant Neves provided impermissible
opinion testimony about Nowacki’s guilt and veracity. Nowacki asserts that the alleged opinion
testimony violated his constitutional right to a fair trial and trial by jury. We disagree.
It is generally improper for a witness to offer testimony concerning the credibility of
another witness. State v. Demery, 144 Wn.2d 753, 764, 30 P.3d 1278 (2001). Such testimony is
unfairly prejudicial to a defendant and invades the exclusive province of the jury. Demery, 144
Wn.2d at 759. A witness’s expression of personal belief about a witness’s veracity is
inappropriate opinion testimony. State v. Perez–Valdez, 172 Wn.2d 808, 817, 265 P.3d 853
(2011).
Where there is no objection to allegedly improper witness testimony before the trial
court, a party seeking to raise the issue on appeal must demonstrate that the error is a manifest
error affecting a constitutional right. RAP 2.5(a)(3); State v. Kirkman, 159 Wn.2d 918, 935, 155
P.3d 125 (2007). “Manifest” error requires a showing of actual prejudice. Kirkman, 159 Wn.2d
at 935. 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. Kirkman, 159 Wn.2d at
935.
“An explicit or nearly explicit” opinion on the defendant’s guilt or a victim’s credibility
can constitute manifest error. Kirkman, 159 Wn.2d at 936. But if the testimony does not directly
13 No. 49163-0-II
comment on the defendant’s guilt or veracity, helps the jury, and is based on inferences from the
evidence, it is not improper opinion testimony. State v. Johnson, 152 Wn. App. 924, 930-31, 219
P.3d 958 (2009). We preview the merits of the claimed constitutional error to determine whether
the argument is likely to succeed. State v. Nguyen, 165 Wn.2d 428, 433-34, 197 P.3d 673
(2008).
Here, the State asked Sergeant Neves whether he “expected” Nowacki to tell him the
checks were fake. VRP (Vol. A) at 182. Nowacki objected to the question and the court
sustained the objection. Sergeant Neves never answered the State’s question and the State did
not ask any other related questions. Though Sergeant Neves was asked about his opinion on
Nowacki’s veracity, Sergeant Neves made no comment on Nowacki’s guilt or veracity in
response to this question.
The State also asked Sergeant Neves if people “just always confess to everything” during
a police investigation. VRP (Vol. A) at 182. Sergeant Neves responded that “[m]ost people lie
to the police” and do not confess. A VRP at 182. Sergeant Neves’s response was not a direct
personal opinion as to Nowacki’s veracity but rather an opinion based on Sergeant Neves’s
experience with police investigations. See State v. Sanders, 66 Wn. App. 380, 388, 832 P.2d
1326 (1992) (holding that an officer’s testimony was not an improper opinion on the defendant’s
guilt, because the testimony was only an inference based on the officer’s experience).
It is clear that Sergeant Neves did not express any direct opinion or explicit expression of
personal belief as to Nowacki’s guilt or veracity. Consequently, Nowacki fails to show a
manifest error affecting a constitutional right, and thus, he has waived this issue on appeal.
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III. PROSECUTORIAL MISCONDUCT
Nowacki argues that the prosecutor committed misconduct by referring to facts not in
evidence during closing argument. Nowacki specifically contends that it was misconduct for the
prosecutor to make a statement that the copy of the check presented to the jury was from an “[e]-
mail account photo” and to comment that Nowacki told the credit union teller that Nowacki had
a “guy friend, Nichole, who has a fellow by the name, Ron.” Br. of Appellant at 19 (quoting
VRP (June 1, 2016) at 21). Nowacki argues that the prosecutor’s statements prejudiced him
because the issues at trial were Nowacki’s credibility and whether Nowacki knew the check was
forged. The State argues that the prosecutor’s statements were simple misstatements and that the
trial court properly instructed the jury on statements made during closing.4 We agree with
Nowacki that the State’s comments were improper references to facts not in evidence, but we
hold that the comments were not prejudicial.
To establish prosecutorial misconduct, the defendant must prove that the prosecuting
attorney’s remarks were both improper and prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341
P.3d 268 (2015). Depending on whether the defendant objected to the improper comments, we
analyze resulting prejudice under one of two standards of review. State v. Emery, 174 Wn.2d
741, 760, 278 P.3d 653 (2012). Where, as here, the defendant did not object at trial, he is
deemed to have waived any error, unless the prosecutor’s misconduct was so flagrant and ill-
intentioned that an instruction could not have cured the resulting prejudice. Emery, 174 Wn.2d
at 760-61. Under this heightened standard, the defendant must show that (1) no curative
4 The State fails to cite to any authority to support its assertions that a simple misstatement made by the prosecutor is not considered misconduct.
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instruction would have obviated any prejudicial effect on the jury and (2) the misconduct
resulted in prejudice that had a substantial likelihood of affecting the jury verdict. Emery, 174
Wn.2d at 761.
We review a prosecutor’s statements during closing argument in the context of the total
argument, the issues in the case, the evidence, and the jury instructions. State v. Warren, 165
Wn.2d 17, 28, 195 P.3d 940 (2008). It is improper for a prosecutor to assert during closing
argument facts not admitted as evidence during trial. In re Pers. Restraint of Glasmann, 175
Wn.2d 696, 705, 286 P.3d 673 (2012) (plurality opinion). This court accords a prosecutor some
latitude to argue reasonable inferences from facts in evidence. Warren, 165 Wn.2d at 30.
Here, the prosecutor’s comments about an “e-mail account photo” and a man named
“Ron” were not statements that could be inferred from any other facts in the record before the
jury. See Warren, 165 Wn.2d at 30. Therefore, the prosecutor’s statements were improper and
the prosecutor committed misconduct during closing argument. See Emery, 174 Wn.2d at 760.
Nevertheless, because Nowacki did not object to the State’s comments, we examine
whether a curative instruction may have obviated any prejudicial effect and whether it resulted in
a substantial likelihood of affecting the jury verdict. Emery, 174 Wn.2d at 760-61. Here,
although the prosecutor’s statements were improper, it is clear that the prosecutor’s comments
were not so flagrant or ill-intentioned that a curative instruction from the court could not have
cured any resulting prejudice. See Emery, 174 Wn.2d at 760. Moreover, this misconduct was
not likely to have altered the outcome of this case. These statements are benign and the jury had
other evidence from which to determine Nowacki’s guilt.
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Because these statements were not so flagrant and ill-intentioned that a curative
instruction could not have cured any prejudice, Nowacki has failed to preserve this issue for
review and we do not consider it further.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Nowacki further argues that he received ineffective assistance of counsel at trial.
Specifically, Nowacki claims that his trial counsel was ineffective for failing to object to
Sergeant Neves’s alleged opinion of guilt and veracity testimony and to the statements made by
the prosecutor during closing arguments. We disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wn.2d
17, 32, 246 P.3d 1260 (2011). We review ineffective assistance claims de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
In order to show that he received ineffective assistance of counsel, a defendant must
show (1) that defense counsel’s conduct was deficient and (2) that the deficient performance
resulted in prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). A defense
counsel’s performance is deficient if it falls below an objective standard of reasonableness and
was not based on a tactical decision. State v. Beasley, 126 Wn. App. 670, 686, 109 P.3d 849
(2005).
When reviewing deficiency, we strongly presume that counsel was effective. State v.
McLean, 178 Wn. App. 236, 247, 313 P.3d 1181 (2013), review denied, 179 Wn.2d 1026 (2014).
To rebut this presumption, the defendant bears the burden of establishing the absence of any
conceivable legitimate tactic explaining counsel’s performance. See Reichenbach, 153 Wn.2d at
17 No. 49163-0-II
130. Additionally, where the appellant claims ineffective assistance based on his trial counsel’s
failure to object, the appellant must also show that such an objection, if made, would have been
successful in order to establish deficient performance. State v. Gerdts, 136 Wn. App. 720, 727,
150 P.3d 627 (2007).
To show prejudice, a defendant must show a reasonable possibility that, but for counsel’s
purportedly deficient conduct, the outcome of the proceeding would have differed. Reichenbach,
153 Wn.2d at 130. Because both prongs must be met, a failure to show either prong will end the
inquiry. State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).
1. Counsel’s failure to object to Sergeant Neves’s testimony was not improper
Nowacki argues that his counsel was ineffective for failing to object to Sergeant Neves’s
testimony about whether people generally confess or lie to the police because the testimony was
an improper opinion on Nowacki’s guilt and veracity. We disagree.
Nowacki first fails to demonstrate that his trial counsel performed deficiently. A trial
counsel’s decisions regarding whether and when to object fall firmly within the category of
strategic or tactical decisions. Reichenbach, 153 Wn.2d at 130. It cannot be said that trial
counsel’s failure to object to Sergeant Neves’s testimony was not tactical, especially when trial
counsel questioned Sergeant Neves regarding his opinion on the tendency of people to confess
during investigations.
Additionally, Nowacki fails to show that an objection to Sergeant Neves’s testimony, if
made, would have been successful. See Gerdts, 136 Wn. App. at 727. It is generally improper
for a witness to opine that the defendant is guilty; to do so is to invade the jury’s exclusive
province. Demery, 144 Wn.2d at 759. To determine whether a witness’s statement is improper
18 No. 49163-0-II
opinion testimony on the defendant’s guilt, we consider the circumstances of the case, including
the type of witness involved, the nature of the testimony, the nature of the charges, the type of
defense, and other evidence before the trier of fact. City of Seattle v. Heatley, 70 Wn. App. 573,
579, 854 P.2d 658 (1993). Testimony that is not a direct comment on the defendant’s guilt or on
the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the
evidence is not improper opinion testimony. Heatley, 70 Wn. App. at 578.
Sergeant Neves testified about his own opinion and perception, namely, that most people
lie to the police and do not confess. The State asked Sergeant Neves if, during investigations
“people just always confess to everything?” A VRP at 182. Sergeant Neves did not respond
with any testimony as to whether he thought Nowacki would confess to police. Rather, Sergeant
Neves simply provided testimony regarding whether people confess in the general sense. At no
time did Sergeant Neves give a direct or nearly direct opinion as to Nowacki’s guilt or veracity.
Therefore, it is not likely that an objection to Sergeant Neves’s testimony would have been
successful. See Heatley, 70 Wn. App. at 579-80.
Nowacki’s trial counsel’s decision to not object to Sergeant Neves’s trial testimony did
not fall below an objective standard of reasonableness. Because he cannot show deficient
performance, Nowacki’s ineffective assistance of counsel claim on this ground fails.
2. Counsel’s failure to object to the State’s misconduct did not prejudice Nowacki
Nowacki next asserts that there was no strategic reason for his trial counsel’s failure to
object to the State’s improper statements during closing and that he was prejudiced. We
disagree.
19 No. 49163-0-II
As discussed above, the State’s comments during closing argument were benign. Even
assuming that Nowacki’s counsel was ineffective for not objecting, Nowacki cannot show any
prejudice from these statements. Accordingly, we hold that Nowacki’s trial counsel did not
provide ineffective assistance of counsel.
V. COSTS ON APPEAL
Nowacki requests that we refrain from awarding appellate costs against him because he is
indigent. A commissioner of this court will consider whether to award appellate costs in due
course under RAP 14.2 if the State files a cost bill and if Nowacki objects to that cost bill.
CONCLUSION
We affirm Nowacki’s convictions for forgery and making a false or misleading statement
to a public servant.
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.
Worswick, P.J. We concur:
Lee, J.
Sutton, J.