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State v. Todahl

March 31, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
MATTHEW JAMES TODAHL, APPELLANT, FRANK FREDERICK FAUST, AND RONALD GENE BAKER AND EACH OF THEM, DEFENDANTS.



Appeal from Superior Court of King County. Docket No: 95-1-03103-6. Date filed: 10/23/95. Judge signing: Hon. Leroy McCullough.

PER CURIAM. Matthew Todahl appeals his conviction for forgery and attempted forgery, arguing that he received ineffective assistance of counsel because his attorney did not request an accomplice instruction.

Because substantial evidence corroborated his accomplice's testimony, no cautionary instruction was required. Todahl also argues that prosecutorial misconduct denied him a fair trial because the State violated the trial court's evidentiary ruling. Because there is no showing that the prosecutor deliberately disregarded the court's ruling or that an objection would have been so damaging that it could not be remedied by a curative instruction, Todahl's failure to object below waived his right to raise this argument on appeal. We affirm.

FACTS

Eric Northrop lost his daytimer, which contained two signed blank checks from his business account. Ronald Baker found it the next day. He testified that his friends, Frank Faust and Todahl, wrote on the two checks. Baker drove them to a Check Exchange store. Baker stayed in the car, Faust went inside the Check Exchange, and Baker was unsure where Todahl went. A Check Exchange employee testified that a man she later identified as Faust presented one of the checks. Another man, who she later identified as Todahl, entered the store and asked what was taking so long. She testified that Todahl explained that the check was in payment for work that they had done. In response to her questions about why the check was completed by two people in different colored ink, Todahl explained that a foreman wrote the check and a secretary gave it to them.

After Todahl asked her if it would be easier for them to cash the check at a bank, the two men left the store.

Jennifer Smith, a teller at First Interstate Bank, testified that a man she later identified as Todahl presented one of Northrop's checks to be cashed. He showed her an identification card with his name and picture on it. After Smith explained that she could not cash the check because there was a stop payment on it, Todahl left the bank.

Both Check Exchange and the bank had called Northrop to tell him that someone was trying to cash his checks. Northrop hurried to the bank. When a man fitting the description he was given left the bank, Northrop drew his gun on him. An undercover police officer immediately approached and arrested the man. Smith, Baker, and the arresting officer all testified that the man Northrop apprehended was Todahl. Northrop, however, testified that he apprehended Faust. He could not identify Todahl in court as the person he captured.

The State charged Todahl with one count of forgery for his involvement with the check presented at Check Exchange and one count of attempted forgery related to the check presented at the bank. The jury found him guilty.

Discussion

Ineffective Assistance of Counsel

Todahl contends that he received ineffective assistance of counsel because his attorney failed to request a cautionary instruction on accomplice testimony.

To demonstrate ineffective assistance of counsel, a defendant must overcome a strong presumption that counsel provided adequate assistance.

See Strickland v. Wash., 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He must show that (1) counsel's performance was deficient, and (2) counsel's performance actually prejudiced the defense. See id. at 687.

The accomplice instruction *fn1 is only required when the accomplice testimony is not "substantially corroborated" by other evidence. See State v. Harris, 102 Wash. 2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by State v. Brown, 111 Wash. 2d 124, 761 P.2d 588 (1988); State v. Mannhalt, 68 Wash. App. 757, 767-68, 845 P.2d 1023 (1992). Corroborating evidence is sufficient if it fairly tends to connect the defendant with the commission of the crime. See State v. Calhoun, 13 Wash. App. 644, 648, 536 P.2d 668 (1975) (quoting State v. ...


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