State of Washington v. Sexton Oneal Cleary, 38561-2

On May 10, 2019 Sexton Cleary was arrested for violating a domestic violence no‑contact order after Heather Richardson called 911; Cleary was jailed and bonded at $30,000.
While jailed Cleary made numerous recorded calls to Richardson; some calls were placed using other inmates’ PINs but the jail’s voice‑identification software attributed the speakers to Cleary and Richardson.
In the calls Cleary discussed bail, told Richardson the case depended on the victim appearing, and urged or encouraged actions that the State said caused Richardson to avoid court; Richardson had earlier sent a letter to the prosecutor claiming mistaken identity.
The State moved to admit Richardson’s out‑of‑court statements (911 calls and jail calls) under the forfeiture‑by‑wrongdoing doctrine (ER 804(b)(6)), arguing Cleary’s misconduct caused her unavailability.
The trial court, while presuming speaker identities for purposes of ruling, found by clear, cogent, and convincing evidence that Cleary’s contact caused Richardson’s absence and admitted her hearsay; the jury convicted Cleary of five felony protection‑order violations and one count of witness tampering.
On appeal Cleary argued (1) the court erred by presuming identity rather than making the necessary forfeiture finding and (2) trial counsel was ineffective for not contesting identity; the Court of Appeals declined review of the first claim and rejected the ineffective assistance claim, affirming the convictions.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Cleary)	Held
Whether the trial court erred by presuming Cleary was the speaker on jail calls instead of finding identity by clear, cogent, and convincing evidence before applying ER 804(b)(6) forfeiture‑by‑wrongdoing	The evidence (voice ID software, contextual details, corroborating facts) established identity and that Cleary’s contacts caused Richardson’s unavailability, so forfeiture exception applied	Trial court improperly presumed identity rather than making the required finding; admission of hearsay was therefore error	Not reviewed on appeal: Cleary did not preserve the argument (pretrial concession on identity excluded this issue); appeal dismissed under RAP 2.5(a)
Whether trial counsel was ineffective for failing to contest identity at the pretrial forfeiture hearing	Counsel’s concession was a reasonable tactical choice given overwhelming identity evidence; focusing on contesting causation was strategic	Counsel was deficient for not contesting identity, which deprived Cleary of a viable challenge to the hearsay admission	Rejected: counsel’s performance was within reasonable strategic judgment and defendant was not prejudiced; ineffective assistance claim fails

State v. Estes, 188 Wn.2d 450 (Wash. 2017) (announcing de novo review standard for ineffective assistance claims)
State v. Grier, 171 Wn.2d 17 (Wash. 2011) (strategic concessions may be reasonable; counsel not deficient if tactic has legitimate basis)
State v. Reichenbach, 153 Wn.2d 126 (Wash. 2004) (framework for assessing ineffective assistance and prejudice)
State v. Silva, 106 Wn. App. 586 (Wash. Ct. App. 2001) (recognizing concession of an issue that cannot be credibly disputed can be proper strategy)