IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
RONALD STEVEN CABELL, JR.,
FILED: March 26, 2012
Schindler, J. — A jury convicted Ronald Steven Cabell, Jr. of second degree
assault and returned special verdicts on the aggravating factors of deliberate cruelty
and knowledge that the victim was particularly vulnerable or incapable of resistance.
On appeal, Cabell argues his attorney provided ineffective assistance of counsel (1) by
failing to object to reference to a police database, and (2) by not moving to strike the
testimony that Cabell told police “he was leaving the state.” Because Cabell cannot
establish ineffective assistance of counsel, we affirm.
Joseph Mitchell is a member of the United States Navy working with the naval air
station on Whidbey Island. On March 26, 2010, Mitchell and a group of co-workers and
friends went to the Lava Lounge, a bar in Oak Harbor. At about 1:30 a.m., Mitchell
went outside with several friends to smoke a cigarette. Mitchell said that while he was
outside, someone came up to him and punched him in the face. Mitchell said that he
tried to walk away but was ambushed by a group of young men who punched him,
pushed him to the ground, and kicked him multiple times. Before losing consciousness,
Mitchell curled up into a ball to try to protect his head as the men stomped and kicked
When Mitchell’s friend Roberto Tavera tried to intervene, one of the men
punched him in the face. The group then ran away. When Katie Wilkins saw the men
attack Mitchell, she recorded the attack with her digital camera.
After Mitchell regained consciousness, he could not walk on his right leg and sat
on the curb, holding his head. In addition to bruises all over his face and body, Mitchell
had a broken nose, a concussion, and a fractured ankle. The injury to his ankle
required surgery to install a plate and screws.
Officer Michael Clements of the Oak Harbor Police Department arrived at
approximately 1:40 a.m. Wilkins gave her camera to Officer Clements. Wilkins
described the assault of Mitchell as “brutal.” Officer Clements showed the video to the
manager of the Lava Lounge, Jason Youngsman. Youngsman was able to identify one
of the assailants, later identified as Cabell, as “Scooter.”
Detective Anthony Slowik watched the video of the attack several times, and
played the video “frame by frame and attempted to identify people in the video as
witnesses or suspects.” Detective Slowik testified that he was able to identify one of
the men who kicked and stomped Mitchell as Cabell. The video showed Cabell
stomping Mitchell twice and kicking him once in the head. Detective Slowik compared
the video with a Department of Licensing photograph. Detective Slowik testified that
“[f]rom that information,” he located a telephone number for Cabell and called him.
I looked -- we have a police database that I looked his phone number up
in, and I called that phone number and left a message asking him to
contact me about the incident.
Detective Slowik said that he spoke to Cabell on April 13.
The State charged Cabell with assault in the second degree and alleged the
aggravating factors of deliberate cruelty and a particularly vulnerable or incapacitated
A number of witnesses testified at trial, including Mitchell, Tavera, Wilkins, and
Detective Slowik. Mitchell testified that he did not see who hit him. Tavera identified
Cabell as the man who punched him in the face when he tried to stop the attack on
Mitchell. Wilkins testified that the men brutally kicked and stomped Mitchell mainly in
the head and upper body. The court admitted the video, and the State played the video
of the assault.
Detective Slowik testified that Cabell told him “we were all drunk. It was a
melee. I don’t remember much -- or I think he said something like I don’t know what
happened and I don’t remember much.” Detective Slowik said that at the end of the
telephone conversation, he asked Cabell to come to the police department to speak to
him and Cabell said “he was leaving the state.” The defense objected on relevancy
grounds and the court sustained the objection.
Erika Thompson-Spence, a friend who lent her car to Cabell the night of the
incident, and Courtney Erickson, another friend of Cabell’s who was at the Lava
Lounge that night, testified for the defense. Spence said Cabell told her there was a
fight but he did not appear to have any injuries. Erickson testified that Mitchell was
drunk and punched Cabell in the face. Erickson said that after Mitchell fell down,
Cabell kicked him twice in the chest.
The jury convicted Cabell of assault in the second degree and returned a special
verdict on the aggravating factors of deliberate cruelty and a particularly vulnerable
On appeal, Cabell contends his attorney provided ineffective assistance of
counsel (1) by failing to object to Detective Slowik’s testimony that he found Cabell’s
telephone number in a “police database,” and (2) by failing to make a motion to strike
the detective’s statement that Cabell said he was leaving the state.
A criminal defendant has a constitutional right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
To demonstrate ineffective assistance of counsel, the defendant must show both
deficient performance and resulting prejudice. Strickland, 466 U.S. at 687; State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
In order to prevail on a claim of ineffective assistance of counsel, Cabell must
demonstrate (1) deficient performance, that his attorney's representation fell below the
standard of reasonableness; and (2) resulting prejudice, that but for the deficient
performance, the result would have been different. Strickland, 466 U.S. at 687; State v.
Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in
Strickland). If a defendant fails to establish either prong, we need not inquire further.
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
To establish deficient performance, Cabell has the heavy burden of showing that
his attorney “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
There is a strong presumption of effective representation of counsel, and the defendant
has the burden to show that based on the record, there are no legitimate strategic or
tactical reasons for the challenged conduct. McFarland, 127 Wn.2d at 335-36. As the
Supreme Court explained in Strickland:
A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.” See Michel v. Louisiana, [350
U.S. 91,] 101[, 76 S. Ct. 158, 100 L. Ed. 83 (1955)].
Strickland, 466 U.S. at 689.
Here, Cabell argues that the reference to a police database “signaled” that he
had prior involvement with the police. We disagree. In context, the reference to a
police database did not imply prior criminal history. Detective Slowik testified that he
was able to identify the man in the video with a photograph from the Department of
Licensing and found his telephone number in a “police database.” Further, any
objection to the reference to a police database would only draw attention to the
testimony. We presume that a failure to object constituted a legitimate trial strategy.
“Counsel's decisions regarding whether and when to object fall firmly within the
category of strategic or tactical decisions.” State v. Johnston, 143 Wn. App. 1, 19, 21,
177 P.3d 1127 (2007).
Nor can Cabell establish prejudice based on the failure of his attorney to move
to strike the statement that Cabell told Detective Slowik he could not meet him at the
police department because he was leaving the state. Even if the testimony was, as the
State concedes, an improper reference to the defendant’s right to remain silent, the
prosecutor did not mention or refer to this testimony. State v. Sweet, 138 Wn.2d 466,
481, 980 P.2d 1223 (1999). Moreover, the overwhelming evidence at trial, including
the video of the assault, supports the conclusion in that Cabell assaulted Mitchell by
kicking him and stomping him while he was on the ground.