State Of Washington v. Brice Nowacki, 49163-0

Background

In July 2015 Brice Nowacki cashed (or attempted to cash) a check drawn on Nichole Brese’s closed account after being given the check by acquaintances; police were called and Nowacki made inconsistent statements at the scene and later at trial.
Justin Dunaway possessed multiple stolen checks; Austin Malakowsky cashed several forged checks and later gave two written statements about his role (Ex. 2 to police; Ex. 3 written after pleading guilty and provided to defense counsel).
At trial Malakowsky testified, identified both exhibits, and gave testimony that conflicted in parts with his prior writings; the State sought to admit both written statements into evidence.
The trial court admitted both exhibits over Nowacki’s objections (sustaining one initial objection to Ex. 3 but later admitting it); the jury convicted Nowacki of forgery and making a false or misleading statement to a public servant.
On appeal Nowacki challenged (1) admission of the two prior written statements, (2) alleged improper opinion testimony by Sergeant Neves, (3) prosecutorial misconduct in closing (referencing facts not in evidence), (4) ineffective assistance for counsel’s failure to object, and (5) appellate costs.

Issues

Issue	Nowacki’s Argument	State’s Argument	Held
Admissibility of prior written statements (Ex. 2 & 3)	Statements were hearsay and not admissible under ER 801(d)(1) or Smith; trial gave no Smith reliability foundation	Statements admissible for impeachment/substantive use as prior inconsistent statements	Court: Admission of both exhibits was error (Ex.2 improperly admitted as Smith affidavit without Smith-factor inquiry; Ex.3 was not inconsistent), but error was harmless given testimony and other strong evidence of guilt
Officer opinion testimony (Sergeant Neves)	Officer gave impermissible opinion about people lying/confessing and implied Nowacki’s veracity — denied fair trial	Officer’s remarks were general, experiential, and did not state belief about Nowacki’s guilt	Court: No manifest constitutional error; testimony was permissible experience-based inference and issue waived for lack of timely objection
Prosecutorial misconduct in closing (statements about an "e-mail account photo" and a man named "Ron")	Prosecutor argued facts not in evidence, prejudicing credibility issue	Comments were simple misstatements; jury instruction cured any error	Court: Remarks were improper (misconduct) but not so flagrant that a curative instruction could not have cured prejudice; no reversible error
Ineffective assistance for failure to object to officer testimony and prosecutor remarks	Counsel’s failure to object was deficient and prejudiced trial	Failure to object was tactical; objections likely would not have succeeded and any error was harmless	Court: No deficient performance shown (tactical choice plausible) and no prejudice; ineffective assistance claim fails

Key Cases Cited

State v. Smith, 97 Wn.2d 856 (1982) (Smith affidavit standard: prior sworn police-station statements may be admissible if minimal guarantees of truthfulness exist)
State v. Ashley, 186 Wn.2d 32 (2016) (abuse of discretion review for evidentiary rulings)
State v. Nieto, 119 Wn. App. 157 (2003) (factors for assessing Smith reliability)
State v. Thomas, 150 Wn.2d 821 (2004) (harmless error standard for evidentiary errors)
State v. Demery, 144 Wn.2d 753 (2001) (impropriety of witness testifying to another witness’s veracity)
State v. Emery, 174 Wn.2d 741 (2012) (standard for reviewing unpreserved prosecutorial misconduct claims)
State v. Kirkman, 159 Wn.2d 918 (2007) (manifest error affecting a constitutional right; waiver rules)
State v. Warren, 165 Wn.2d 17 (2008) (limits on reasonable inferences vs. facts not in evidence in closing)