Personal Restraint Petition Of: Vernon Curry, Jr

Filed

Washington State

Court of Appeals

Division Two

June 15, 2021

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of No. 54033-9-II

the Personal Restraint of

VERNON LEWIS CURRY, JR., UNPUBLISHED OPINION

Petitioner.

MAXA, P.J. – In this personal restraint petition (PRP), Vernon Curry seeks relief from

personal restraint imposed following his convictions of first degree murder with a firearm

enhancement and first degree unlawful possession of a firearm.

Curry argues that (1) his defense counsel provided ineffective assistance of counsel by

failing to (a) challenge the State’s firearm ballistics expert’s testimony, (b) move for a mistrial

after the jury heard inadmissible hearsay, (c) object to admission of a recording of a 911 call on

confrontation clause grounds, (d) request a limiting instruction regarding the 911 call, and (e)

request a limiting instruction regarding a photograph that showed the word “gang”; (2) the trial

court erred in admitting a recording of the 911 call into evidence; (3) cumulative error deprived

him of a fair trial; and (4) his appellate counsel provided ineffective assistance of counsel.

We conclude that Curry’s claims have no merit. Accordingly, we deny Curry’s PRP.

FACTS

Shooting Incident

On September 7, 2014, at approximately 4:00 AM, Michael Ward was shot and killed in

his car outside an after-hours club in Tacoma.

No. 54033-9-II

A surveillance video showed a man pulling a mask over his face as he approached

Ward’s vehicle. A witness then approached Ward and realized that he had been shot, and fired

several shots toward a car in the street. Another witness told law enforcement that he saw a man

in a ski mask commit the shooting. That witness also fired shots. A police officer who was

nearby heard gunshots and saw a Black male with a face covering sprinting down the sidewalk

carrying a dark object.

A witness who lived near where the shooting occurred observed someone running

through the area. A ski mask later was discovered in that area.

On the same day as the shooting, Karin Curry – Curry’s stepmother – called 911 to report

her son’s possible involvement in Ward’s murder. During the call, Karin1 asked for a police

officer to come to her house to “talk to him regarding the shooting last night in Tacoma.” PRP

App. Attach. D. When the operator asked what Karin would like to speak to the officer about,

she clarified: “I’m the -- I’m a parent, and I think there’s a possibility that my son was involved. .

. . He called me this morning and he was very distraught and so, you know . . . I’m not sure.”

PRP App. Attach. D.

Investigation

Crime scene technicians recovered multiple .38 and .40 caliber bullets and spent shell

casings from the crime scene. Ten days after the shooting, a .40 caliber Sig Sauer pistol was

discovered near where the ski mask was found. There were no fingerprints or matching DNA

profiles on the gun. Forensic testing later found Curry’s DNA on the inside of the ski mask

under the eyes and the mouth, although DNA from an unknown person also was found.

1

For clarity, this opinion uses Karin Curry’s first name. No disrespect is intended.

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No. 54033-9-II

The State charged Curry with first degree murder with a firearm enhancement and first

degree unlawful possession of a firearm.

Trial

At trial, Brenda Walsh testified as the State’s ballistics expert. Walsh worked as a

forensic scientist in the firearm and toolmark section of the Washington State Patrol Crime

Laboratory. In that capacity, she examined fired bullets and cartridge cases to determine whether

they had been fired by a particular firearm.

In this case, Walsh test fired the Sig Sauer pistol and collected the fired bullets and

cartridge cases. She then microscopically examined multiple cartridge cases, bullet jacket

fragments, and bullet fragments that were recovered from the crime scene and compared them to

each other and to the test fires. Specifically, Walsh looked for certain patterns of reproducible

markings and markings with unique characteristics. Based on her analysis, Walsh concluded that

seven cartridge casings, three bullet jacket fragments and three bullet fragments found at the

scene were fired from the Sig Sauer pistol.

Defense counsel did not object to Walsh’s testimony on the grounds that her analysis was

not scientifically accepted. Defense counsel also did not cross-examine Walsh about the validity

of her analysis or her ability to make conclusive statements. Instead, in a brief cross-

examination he established that Walsh had no knowledge of any fingerprint analysis done on the

shell casings, that there were nine additional casings that came from a different gun, and that

there were bullet fragments from a third gun.

The State also called Karin as a witness. On direct examination, Karin testified that she

called the police after receiving a “call from . . . [her] grandson’s mother . . . saying that there

was speculation that my son could possibly be involved.” 8B RP at 579. Defense counsel

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No. 54033-9-II

objected on the basis of hearsay, which the trial court sustained. The trial court later instructed

the jury to disregard any evidence ruled inadmissible during trial.

Later in her testimony, Karin was asked why she called the police. She denied calling

due to her suspicions regarding her son’s involvement in the shooting. The State then began to

play a recording of the 911 call. At some point during the recording, defense counsel asked to

stop the recording and objected on the basis of hearsay, relevance, and prejudice. The trial court

overruled the objection, reasoning that there was no hearsay in the recording itself, and allowed

the tape to be played in its entirety.

Curry testified in his own defense. He explained that he had gone to a club with his then

girlfriend on the night of the shooting. After the club, Curry and his girlfriend returned to his

home around 3:00 or 3:30 AM and went to bed. Curry acknowledged that he lived roughly two

miles from the crime scene and that cell tower records revealed that he was in the general

location of the shooting between 3:30 and 4:30 AM.

Curry testified that he had a media company called Ylyfe Entertainment. As part of a

photoshoot for Ylyfe, he wore a black ski mask similar to the one found near where the shooting

occurred. But Curry claimed that his mask was in a container that had been stolen from his car

months before the shooting.

During cross-examination, the State asked if Ylyfe produced music that condoned street

violence. Curry denied promoting street violence through Ylyfe. The State then sought

admission of a hip-hop music video produced by Ylyfe featuring Curry for the limited purpose of

impeaching him as to whether Ylyfe promoted street violence. The trial court excluded the video

but allowed the State to introduce two still photos of Curry with the term “Y Gang” and “Y Gang

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No. 54033-9-II

Entertainment.” 15 RP at 1623-24. The court offered to give a limiting instruction to

accompany the photos, which defense counsel refused.

During closing argument, defense counsel focused on the lack of direct eyewitness

identification evidence. He emphasized that no witness identified Curry as the person who shot

Ward, and in fact the two eyewitnesses who knew Curry told law enforcement that he was not

the shooter. Defense counsel did not mention the forensics evidence. He acknowledged that

seven shots were fired from the Sig Sauer pistol that law enforcement located, but he questioned

the circumstances surrounding the discovery of the pistol in plain sight the day after Curry was

arrested. And he also noted the many other shots that were fired. Defense counsel did not

mention the 911 call or the Y Gang photographs.

The jury found Curry guilty of first degree murder with a firearm enhancement and

unlawful possession of a firearm.

Curry appealed his convictions. State v. Curry, No. 49026-9-II, slip op. at 1 (Wash. Ct.

App. Apr. 24, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049026-9-

II%20Unpublished%20Opinion.pdf. Curry raised various issues on direct appeal. Id. at 1. This

court affirmed Curry’s convictions. Id.

Curry then filed this PRP.

ANALYSIS

A. PRP PRINCIPLES

We will grant appropriate relief when petitioners establish that they are under restraint

that is unlawful for one of certain specified reasons. RAP 16.4(a), (c). To prevail in a PRP, a

petitioner must establish (1) “a constitutional error that resulted in actual and substantial

prejudice,” or (2) “a nonconstitutional error involving a fundamental defect that inherently

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No. 54033-9-II

resulted in a complete miscarriage of justice.” In re Pers. Restraint of Dove, 196 Wn. App. 148,

154, 381 P.3d 1280 (2016). The petitioner must make this showing by a preponderance of the

evidence. Id. The standard for nonconstitutional error is stricter that the actual prejudice

standard for constitutional error. See In re Pers. Restraint of Amos, 1 Wn. App. 2d 578, 589, 406

P.3d 707 (2017).

However, “a PRP is not a substitute for a direct appeal, and the availability of collateral

relief is limited.” Dove, 196 Wn. App. at 153. “ ‘Relief by way of a collateral challenge to a

conviction is extraordinary, and the petitioner must meet a high standard before this court will

disturb an otherwise settled judgment.’ ” Id. (quoting In re Pers. Restraint of Coats, 173 Wn.2d

123, 132, 267 P.3d 324 (2011)).

RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to

support the factual allegations in the PRP. In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503,

384 P.3d 591 (2016). The petitioner must show that he has competent, admissible evidence to

support the petition. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013).

Conclusory allegations are insufficient. Wolf, 196 Wn. App. at 503. In addition, the factual

allegations must be based on more than speculation and conjecture. Yates, 177 Wn.2d at 18.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Curry argues that he was actually and substantially prejudiced by ineffective assistance of

counsel because of defense counsel’s failure to (1) challenge the testimony of the State’s

firearms ballistics expert, (2) move for a mistrial after the jury heard Karin’s inadmissible

hearsay testimony, (3) object to admission of a recording of Karin’s 911 call on confrontation

grounds; (4) request a limiting instruction regarding the 911 call recording, and (5) request a

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No. 54033-9-II

limiting instruction regarding the photographs showing “Y Gang” evidence. We conclude that

none of Curry’s ineffective assistance of counsel claims have merit.

1. Legal Principles

Ineffective assistance of counsel claims arise from the Sixth Amendment to the United

States Constitution and article I, section 22 of the Washington Constitution. State v. Estes, 188

Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on an ineffective assistance claim, the

defendant must show both that (1) defense counsel’s representation was deficient and (2) the

deficient representation prejudiced the defendant. Id. at 457-58. Representation is deficient if,

after considering all the circumstances, it falls below an objective standard of reasonableness.

Id. at 458. Prejudice exists if there is a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have differed. Id.

We apply a strong presumption that defense counsel’s performance was reasonable. Id.

Defense counsel’s conduct is not deficient if it was based on legitimate trial strategy or tactics.

Id. To rebut the strong presumption that counsel’s performance was effective, “the defendant

bears the burden of establishing the absence of any ‘conceivable legitimate tactic explaining

counsel’s performance.’ ” State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting

State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

The “reasonable probability” standard for prejudice in an ineffective assistance of

counsel claim on direct appeal is not precisely the same as the “actual and substantial prejudice”

standard in a PRP. In re Pers. Restraint of Crace, 174 Wn.2d 835, 842, 280 P.3d 1102 (2012).

However, a petitioner who presents a successful ineffective assistance of counsel claim

necessarily establishes actual and substantial prejudice for purposes of collateral relief. Id. at

846-47.

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2. Failure to Challenge the Testimony of the Firearms Ballistics Expert

Curry argues that defense counsel rendered ineffective assistance by failing to challenge

Walsh’s firearms ballistics testimony. Specifically, Curry asserts that defense counsel should

have (1) objected to Walsh’s testimony under ER 702 and Frye2 because her analysis of bullet

markings is not generally accepted in the scientific community, and (2) cross-examined Walsh

regarding the inherent uncertainty of her analysis. We disagree.

a. Failure to Object Under ER 702 and Frye

“Decisions on whether and when to object to trial testimony are classic examples of trial

tactics. Only in egregious circumstances, on testimony central to the State’s case, will the failure

to object constitute incompetence of counsel justifying reversal.” State v. Crow, 8 Wn. App. 2d

480, 508, 438 P.3d 541 (citations omitted), review denied, 193 Wn.2d 1038 (2019). Reversal is

required only if defense counsel had no valid strategic reason for failing to object, an objection

likely would have succeeded, and the result of the trial would have been different if the evidence

had not been admitted. Id. at 508-09.

To be admissible, expert testimony must satisfy ER 702 and the Frye test. State v. Arndt,

194 Wn.2d 784, 798, 453 P.3d 696 (2019). ER 702 provides that “[i]f scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form of an opinion or otherwise.” Expert

testimony generally should be admitted under ER 702 if it assists the jury in explaining matters

2

Frye v. United States, 293 F. 1013 (D.C. Cir.1923).

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No. 54033-9-II

beyond the understanding of ordinary lay persons. State v. Green, 182 Wn. App. 133, 146, 328

P.3d 988 (2014).

The Frye test helps determine the admissibility of expert testimony based on a novel

scientific theory. Id. at 148. Expert testimony is admissible under Frye if “the theory and

underlying methodology have been accepted in the relevant scientific community.” Id. at 149.

There must be scientific consensus regarding the reliability of the methodology. Arndt, 194

Wn.2d at 798.

Significantly, “the Frye test focuses on general scientific theories, not particular opinions

based on those theories.” Green, 182 Wn. App. at 149. Frye is not implicated if an expert’s

opinions are based on generally accepted theories, even if those opinions themselves are not

generally accepted. Id. “[T]he application of accepted techniques to reach novel conclusions

does not raise Frye concerns.” Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 919, 296

P.3d 860 (2013). And disputes over whether an acceptable technique was correctly performed in

a particular situation go to the weight, not the admissibility, of the testimony. State v. Bander,

150 Wn. App. 690, 699, 208 P.3d 1242 (2009).

To demonstrate that Walsh’s analysis is not generally accepted within the relevant

scientific community, Curry relies principally on 2008 and 2009 reports from the National

Research Council of the National Academy of Sciences as well as the 2016 President’s Council

of Advisor’s on Science and Technology’s report. These reports emphasized that firearm

identification based on bullet markings depends on the subjective assessment of the examiner

and not on any objective standards.

However, in State v. DeJesus, 7 Wn. App. 2d 849, 436 P.3d 834, review denied, 193

Wn.2d 1024 (2019), Division One of this court rejected a similar argument. In DeJesus, the

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No. 54033-9-II

State presented expert testimony concluding that two sets of cartridge casings had consistent

markings, indicating that they were fired from the same gun. Id. at 858. On appeal, the

defendant argued the ballistics identification testimony was inadmissible under Frye. Id. at 859.

The defendant cited the same three reports on which Curry relies. Id. at 861.

The court concluded that the trial court did not err in admitting the expert’s testimony

under Frye and ER 702. Id. at 865. The court stated, “[T]he reports on which DeJesus relies do

not affect the general scientific acceptance of ballistic identification. Instead, the problems they

espouse bear on the question of reliability of the individual test and tester at issue. These

questions are then considered by the trier of fact in assessing the weight to be given to the

evidence.” Id. at 863-64. We agree with DeJesus.

In addition, Curry’s primary concern appears to be that Walsh stated her opinions with

certainty and without equivocation rather than acknowledging that her markings analysis was not

an exact science. But Walsh’s specific opinions regarding the reliability of her analysis do not

implicate Frye. See Green, 182 Wn. App. at 149.

Finally, the record is insufficient for this court to determine whether a Frye objection

would have been successful in the trial court. Because no objection was made, the State had no

opportunity to present evidence showing that Walsh’s analysis was generally accepted in the

relevant scientific community.

We conclude that Curry cannot establish that the trial court would have excluded Walsh’s

testimony if he had objected.

b. Failure to Cross-Examine

Curry argues that even if Walsh’s testimony was admissible, defense counsel should have

vigorously cross-examined her regarding the limitations of her analysis. The State contends that

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No. 54033-9-II

defense counsel made a tactical decision not to attack Walsh’s testimony but to instead focus on

the absence of any link between the murder weapon and Curry.

Defense counsel certainly could have cross-examined Walsh about the subjectivity of her

analysis, using the reports that Curry cites. And it is possible that counsel’s failure to cross-

examine was based on his ignorance of these reports or the legitimate questions about the

markings analysis. But the issue is not whether defense counsel could have cross-examined

Walsh. The question is whether Curry has established “the absence of any ‘conceivable

legitimate tactic explaining counsel’s performance.’ ” Grier, 171 Wn.2d at 42 (quoting

Reichenbach, 153 Wn.2d at 130).

Defense counsel may have decided that without an expert of his own, any attempt to

challenge Walsh’s opinions would not have been effective. And undertaking a vigorous cross-

examination may have mislead the jury into believing that Curry was guilty if they agreed with

Walsh that the Sig Sauer pistol was the murder weapon. Counsel reasonably may have believed

that the better strategy was to point out on cross-examination of Walsh that there was no DNA or

fingerprint evidence connecting Curry to the pistol.

We can only speculate regarding whether defense counsel’s failure to cross-examine

Walsh regarding her markings analysis was based on deficient performance or on a legitimate

trial strategy. As a result, Curry cannot establish deficient performance based on this record.

See State v. Linville, 191 Wn.2d 513, 525, 423 P.3d 842 (2018).

We conclude that Curry cannot establish ineffective assistance of counsel based on his

failure to object to Walsh’s testimony or cross-examine Walsh regarding her markings analysis.

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3. Failure to Move for a Mistrial Based on Hearsay Testimony

Curry argues that he received ineffective assistance of counsel when trial counsel failed

to move for a mistrial after the jury heard inadmissible hearsay testimony from Karin regarding

the basis for her 911 call. We disagree.

Here, Karin testified that she “had a call from . . . my grandson’s mother, and she was

saying that there was speculation that my son could possibly be involved.” 8B RP at 579.

Defense counsel objected to this obvious hearsay statement, and the trial court sustained the

objection. But the jury already had heard the statement. Defense counsel did not move for a

mistrial.

However, whether to move for a mistrial necessarily is a strategic decision. Defense

counsel may not have wanted a mistrial for various reasons. Again, we can only speculate why

counsel did not request a mistrial, which is not a sufficient basis for an ineffective assistance of

counsel claim. See Linville, 191 Wn.2d at 525.

Further, in order to prevail on a claim that counsel’s failure to request a mistrial

constituted ineffective assistance of counsel, Curry must establish that his counsel’s request for a

mistrial would have been granted. See State v. Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012)

(articulating the same standard for a motion to sever). “ ‘A mistrial should be granted only when

the defendant has been so prejudiced that nothing short of a new trial can insure that defendant

will be tried fairly.’ ” State v. Gaines, 194 Wn. App. 892, 897, 380 P.3d 540 (2016) (quoting

State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979)). The fact that the jury heard this

hearsay statement was mitigated by the fact that the statement was brief, the trial court

immediately sustained Curry’s objection, and Karin expressly stated that she was told that

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No. 54033-9-II

Curry’s involvement in the murder was speculation. Therefore, Curry cannot show that the trial

court would have granted a mistrial motion even if defense counsel had made one.

Accordingly, we conclude that Curry cannot establish ineffective assistance of counsel on

this basis.

4. Failure to Object to the Admission of the 911 Call

Curry argues that he received ineffective assistance of counsel when trial counsel failed

to object to the recording of Karin’s 911 call on confrontation clause grounds. We disagree.

Defense counsel’s failure to object to testimony constitutes ineffective assistance only if

the trial court would have sustained the objection. Crow, 8 Wn. App. 2d at 508-09. Therefore,

the question here is whether the trial court would have sustained a confrontation clause objection

to the 911 call recording if defense counsel had made one.

The confrontation clause of the Sixth Amendment to the United States Constitution

precludes the admission of a “testimonial” out-of-court statement if the declarant is unavailable

and the defendant had no prior opportunity to cross-examine the declarant. State v. Burke, 196

Wn.2d 712, 725, 478 P.3d 1096 (2021). However, the confrontation clause is inapplicable to

out-of-court statements when the declarant appears at trial for cross-examination. See Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).

Karin’s statements made during the 911 call arguably were testimonial because they

identified Curry as a potential suspect in Ward’s murder and were not made to meet an ongoing

emergency. But because she testified at trial, the admission of Karin’s 911 call did not violate

Curry’s rights under the confrontation clause.

Curry argues that the 911 call implicates the confrontation clause because the source of

Karin’s statement in the call was a third person – her grandson’s mother. However, the 911 call

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No. 54033-9-II

did not mention Karin’s grandson’s mother or any other third person. Instead, Karin stated that

“I think there’s a possibility that my son was involved.” PRP App. Attach. D (emphasis added).

There is no indication that the trial court would have sustained a confrontation clause

objection to the 911 call recording. Accordingly, we conclude that Curry cannot establish

ineffective assistance of counsel on this basis.

5. Failure to Seek Limiting Instruction Regarding the 911 Call

Curry argues that trial counsel provided ineffective assistance because he failed to seek a

limiting instruction as to Karin’s 911 call. We disagree.

Whether to request a limiting instruction is a matter of trial tactics. State v. Yarbrough,

151 Wn. App. 66, 90, 210 P.3d 1029 (2009). Failure to propose the instruction could have been

a legitimate trial tactic because had defense counsel proposed this instruction, he could have

risked reemphasizing the evidence. See id. A petitioner must rebut the strong presumption of

reasonable performance by demonstrating that counsel’s tactical choice was unreasonable given

the circumstances. See Grier, 171 Wn.2d at 34.

Here, Curry fails to rebut this presumption. Defense counsel may have made a

reasonable tactical decision regarding a limiting instruction. During closing argument, counsel

focused on the lack of eyewitness identification evidence and did not mention the 911 call.

Therefore, it appears that counsel was intent on avoiding emphasis on the evidence.

Accordingly, we conclude that Curry cannot establish ineffective assistance of counsel on this

basis.

6. Failure to Seek a Limiting Instruction Regarding “Y Gang” Evidence

Curry argues that trial counsel provided ineffective assistance because he failed to request

a limiting instruction as to the State’s “Y Gang” evidence. We disagree.

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No. 54033-9-II

Here, the trial court allowed the State to introduce into evidence two photographs from a

video featuring Curry and showing the term “Y Gang.” The trial court offered to give a limiting

instruction, but defense counsel declined. He stated that he did “not want argument that

[Curry’s] part of a gang and it’s a gang shooting.” 16 RP at 1687. Counsel elaborated that

giving the instruction would be tantamount to “saying don’t consider the gang evidence, except

for credibility.” 16 RP at 1688. In other words, counsel articulated his reasons for his decision

on the record.

Curry argues that defense counsel’s reasons for rejecting the limiting instruction were

unreasonable because the proposed limiting instruction did not mention gang evidence. But

defense counsel clearly wanted to avoid emphasizing the Y Gang evidence and believed that

giving a limiting instruction would create such an emphasis. Given the strong presumption of

reasonableness, Estes, 188 Wn.2d at 458, we conclude that defense counsel’s strategic decision

did not constitute deficient performance. Accordingly, we conclude that Curry cannot establish

ineffective assistance of counsel on this basis.

C. ADMISSION OF RECORDING OF 911 CALL

Curry argues that the trial court erred by admitting the recording of Karin’s 911 call into

evidence because it constituted double hearsay and was unduly prejudicial, in violation of ER

801, ER 802, and ER 403. We disagree.

To prevail in a PRP regarding the admission of evidence, a petitioner must show that the

error constitutes a fundamental defect resulting in a miscarriage of justice. In re Pers. Restraint

of Morris, 176 Wn.2d 157, 168, 288 P.3d 1140 (2012).

“Hearsay” is an out-of-court statement “offered in evidence to prove the truth of the

matter asserted.” ER 801(c). Hearsay evidence generally is not admissible unless it falls within a

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No. 54033-9-II

recognized exception to the hearsay rule. ER 802; State v. Alvarez-Abrego, 154 Wn. App. 351,

366, 225 P.3d 396 (2010). Hearsay within hearsay is admissible if each level of hearsay is

independently admissible. See ER 805. But a prior statement of a witnesses offered to impeach

that witness is not hearsay. ER 801(d)(1).

Curry argues that the 911 call contained double hearsay because Karin was simply

repeating what she heard from her grandson’s mother. He claims that the evidence was clear that

the basis of Karin’s statements on the 911 call was what she had heard from that person.

However, the statements that Karin made in the 911 call were entirely her own. As noted above,

she did not mention her grandson’s mother. Instead, she stated, “I think there’s a possibility that

my son was involved.” PRP App, Attach. D (emphasis added). There was no double hearsay.

Karin’s own statements on the 911 call potentially were hearsay because they were made

out of court. But the 911 call recording was offered and admitted for the purpose of impeaching

Karin’s credibility after she denied making the call was because she thought that Curry was

involved in Ward’s murder. Curry argues that the State improperly created the need for

impeachment by unnecessarily asking Karin about the motivation behind her call. But the

State’s question posed to Karin about the motivation behind her call was legitimate.

Curry also argues that the 911 call should have been excluded under ER 403. But any

prejudice that might have resulted from admitting the 911 call was outweighed by the probative

value it had to impeach Karin.

We hold that the trial court did not err in admitting the recording of Karin’s 911 call.

D. CUMULATIVE ERROR

Curry argues that cumulative error denied him a fair trial. Under the cumulative error

doctrine, the defendant must show that the combined effect of multiple errors requires a new

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No. 54033-9-II

trial. State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017). Here, Curry has not

demonstrated that any error denied him a fair trial. Therefore, we hold that the cumulative error

doctrine is inapplicable.

E. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Curry argues that he received ineffective assistance of counsel because his appellate

counsel failed to raise on appeal the issues raised in this PRP. As discussed above, we hold that

none of Curry’s PRP claims have merit. Therefore, we reject Curry’s argument.

CONCLUSION

We deny Curry’s PRP.

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.

MAXA, P.J.

We concur:

CRUSER, J.

VELJACIC, J.

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