In Re The Personal Restraint Petition Of Kenneth Archie Peebles, Jr. ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 15, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint of: No. 50172-4-II
KENNETH ARCHIE PEEBLES,
Petitioner,
UNPUBLISHED OPINION
SUTTON, J. — In this timely personal restraint petition (PRP),1 Kenneth Archie Peebles
argues that he is under unlawful restraint following his August 22, 2014 jury trial conviction for
first degree child molestation. He contends that he received ineffective assistance of counsel
because his trial counsel failed (1) to request a lesser included offense instruction for fourth degree
assault, and (2) to present expert witness testimony about the effects of alcohol on his ability to
engage in voluntary acts. Because these arguments either fail or are not adequately supported, we
deny his petition.
FACTS
The facts of this case are succinctly summarized in our unpublished opinion addressing
Peebles’s direct appeal:
When Peebles arrived at Jeremy Parrish’s home to pick up some mail,
Parrish invited his longtime friend to dinner. Parrish’s eight-year-old daughter
1
Peebles filed his petition in April 2017, less than one year after his direct appeal mandated in
September 2016. Accordingly, this petition is timely. RCW 10.73.090(3)(b).
No. 50172-4-II
AP[2] was staying with her father and knew Peebles. Peebles and Parrish drank
home brewed beer and they eventually decided that Peebles should stay the night
because he had been drinking.
AP went to bed before the adults. She wore shorts, underwear, and a T-shirt
to bed. AP awoke when she felt Peebles lie down beside her. He laid on his side
facing her back. AP felt Peebles’s hand touching her buttocks and the area below
her hip. His hand was inside her shorts but outside her underwear. She moved his
hand and went back to sleep. She awoke a second time when Peebles touched her
in the same places and in her vaginal area.
AP then got out of bed and woke her father. When she told him what
Peebles had done, Parrish got up and found Peebles asleep in another room. Parrish
woke Peebles and drove him home. Peebles seemed unsteady but entered his house
unassisted.
The next day Parrish told AP’s mother about the incident and she called the
police. AP described the touching to her mother and to professionals who examined
and interviewed her.
The State charged Peebles with child molestation in the first degree. It
sought to introduce DNA evidence obtained from AP’s shorts that revealed two
separate male DNA profiles; however, the defense moved before trial to exclude
that evidence because the DNA test concluded that “the sample was not suitable for
comparison purposes.” Clerk’s Papers (CP) at 27. The trial court granted the
motion to exclude any reference to DNA evidence.
At trial, AP and her parents testified to the facts cited above. AP’s mother
also testified that AP told her that Peebles touched her buttocks twice. Parrish
stated that AP told him that Peebles crawled into bed with her and pulled down her
pants twice, though he admitted telling a deputy that AP said Peebles pulled her
pants down once. Parrish also told the deputy that AP denied being touched in her
private parts.
Deputy Jason Smith testified about going to Parrish’s house and collecting
the clothing that AP had worn to bed. This clothing was placed into three envelopes
that were admitted into evidence. When the prosecutor asked Smith to identify the
contents of each envelope, she also asked about the contents of a packet in the first
envelope. Smith replied, “It’s some sort of test, DNA test.” IV Report of
2
We use initials to protect the witness’s identity. General Order 2011-1 of Division II, In Re The
Use of Initials Or Pseudonyms For Child Witnesses In Sex Crime Cases.
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No. 50172-4-II
Proceedings (RP) at 174.[3] The prosecutor then asked about the second envelope
without further reference to DNA.
After excusing the jury for the day, the trial court addressed the DNA issue
sua sponte. The prosecutor apologized for the inadvertent reference to DNA
evidence, explaining that she had no idea that the DNA test was in the packet. The
prosecutor added that the defense was entitled to a limiting instruction. After
considering the matter overnight, defense counsel decided against an instruction
that would highlight the DNA issue.
A deputy prosecutor who attended an interview with AP testified that the
child stated Peebles had touched her “chest, bottom, and front.” V RP at 293.
Peebles testified that after drinking two high-alcohol beers with Parrish, he could
only remember eating dinner and then waking up in his own home the next
morning. He stated that he was shocked when Parrish told him about AP’s
allegations, but he explained that he could not deny molesting AP because of his
intoxication that evening.
State v. Peebles, No. 47392-5-II, noted at 192 Wash. App. 1058, review denied, 185 Wash. 2d 1041
(2016).
In closing argument, Peebles argued that in his drunken state he accidentally touched AP
and that although AP perceived this as sexual touching, that was not Peebles’s intent. He also
argued that AP “misperceived” what was going on because she had been asleep when the contact
happened. RP (July 17, 2014) at 379-80. Peebles also discussed how, in some of her earlier
statements, AP stated that Peebles did not touch her “bottom, her front[, or] her chest.” RP (July
17, 2014) at 383. He also pointed out other inconsistencies in AP’s statements over time.
On appeal, we rejected Peebles argument that he had received ineffective assistance of
counsel based on defense counsel’s failure to object to a reference to the excluded DNA evidence
3
To allow for full review of this matter, we hereby transfer the electronic record from Peebles’s
direct appeal, State v. Peebles, No. 47392-5-II, noted at 192 Wash. App. 1058, review denied, 185
Wash. 2d 1041 (2016).
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No. 50172-4-II
or portions of the State’s closing argument.4 Peebles, slip op. at 11-12. Less than a year after the
direct appeal mandated, Peebles filed this PRP.
ANALYSIS
Peebles argues that he received ineffective assistance of counsel because defense counsel
failed (1) to request a lesser included instruction for fourth degree assault and (2) to present expert
witness testimony to testify about the effects of alcohol on his ability to engage in voluntary acts.
His first argument fails and his second argument is not adequately supported.
I. ISSUES NOT PREVIOUSLY RAISED AND ADDRESSED
As a preliminary matter, the State asserts that Peebles cannot raise his ineffective assistance
of counsel claims in his PRP because we addressed ineffective assistance of counsel claims on the
merits in his direct appeal. We reject this argument.
A PRP petitioner generally cannot raise issues in a PRP if those issues were previously
raised and addressed on the merits. In re Pers. Restraint of Cross, 180 Wash. 2d 664, 678, 327 P.3d
660 (2014). But the premise that a petitioner who raised any ineffective assistance of counsel
claim on direct appeal is barred from raising another ineffective assistance of counsel claim based
on different grounds in a PRP has been expressly rejected by our Supreme Court in In re Personal
Restraint of Khan, 184 Wash. 2d 679, 689, 363 P.3d 577 (2015). Accordingly, we address Peebles’s
new ineffective assistance of counsel claims.
4
We also rejected Peebles’s sufficiency of the evidence, prosecutorial misconduct, and
cumulative evidence claims. See Peebles, slip op. at 4, 6, 12.
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No. 50172-4-II
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A. LEGAL PRINCIPLES
To be entitled to collateral relief in a PRP raising an ineffective assistance of counsel claim,
the petitioner must show both that (1) defense counsel’s representation was deficient and (2) the
deficient representation was prejudicial. In re Pers. Restraint of Crace, 174 Wash. 2d 835, 840, 846-
47, 280 P.3d 1102 (2012) (adopting the ineffective assistance of counsel analysis in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) in the PRP context).
Representation is deficient if, after considering all the circumstances, it falls below an objective
standard of reasonableness. State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 (2011). A petitioner
alleging ineffective assistance of counsel must overcome a strong presumption that counsel’s
performance was reasonable. Grier, 171 Wash. 2d at 33. Prejudice occurs when there is “‘a
reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceedings would have been different.’” Grier, 171 Wash. 2d at 34 (quoting State v. Kyllo, 166
Wash. 2d 856, 862, 215 P.3d 177 (2009)).
We have three options when reviewing a PRP. In re Pers. Restraint of Yates, 177 Wash. 2d
1, 17, 296 P.3d 872 (2013). If the petitioner fails to make a prima facie showing that he received
ineffective assistance of counsel, we will dismiss the petition. See Yates, 177 Wash. 2d at 17. If he
establishes ineffective assistance of counsel, we will grant the petition. See Yates, 177 Wash. 2d at
18. Or, finally, if the petitioner makes a prima facie showing of ineffective assistance of counsel
but we cannot determine the petition’s merits on the record, we will remand to the superior court
for a reference hearing. See Yates, 177 Wash. 2d at 18; RAP 16.11(b).
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No. 50172-4-II
To make a prima facie showing, the petitioner must present the evidence that is available
to support the factual allegations underlying the claim of unlawful restraint. Yates, 177 Wash. 2d at
18. A petition must state with particularity facts that, if proven, would entitle the petitioner to
relief—bald assertions and conclusory allegations are not enough. Yates, 177 Wash. 2d at 18.
If the petitioner’s allegations are based on matters outside the existing record, he must also
demonstrate that he has competent, admissible evidence supporting the allegations. Yates, 177
Wash. 2d at 18. If the evidence is based on knowledge in the possession of others, the petitioner must
present their affidavits, with admissible statements, or other corroborative evidence. Yates, 177
Wash. 2d at 18. Factual allegations must be based on more than speculation, conjecture, or
inadmissible hearsay. Yates, 177 Wash. 2d at 18.
B. FAILURE TO REQUEST LESSER INCLUDED OFFENSE INSTRUCTION
Peebles first argues that defense counsel provided ineffective assistance of counsel because
he did not request a lesser included offense instruction for fourth degree assault. Peebles asserts
that defense counsel’s failure to request an instruction on fourth degree assault was not a
reasonable tactical decision because defense counsel was under the erroneous impression that the
only available lesser included offenses were felonies and his counsel failed to properly advise him
(Peebles) before deciding to forgo a lesser included offense instruction. Regardless of whether
defense counsel’s decision could have been a legitimate trial tactic, Peebles does not show
ineffective assistance of counsel on this ground because he fails to establish prejudice.
To show prejudice in this context, Peebles must first demonstrate that he would have been
entitled to the lesser included instruction if he had requested it. State v. Cienfuegos, 144 Wash. 2d
222, 227, 25 P.3d 1011 (2001). To be entitled to a lesser included offense instruction, Peebles had
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No. 50172-4-II
to demonstrate that (1) all of the elements of fourth degree assault are necessary elements of first
degree child molestation (the legal prong) and (2) the evidence would support an inference that
Peebles committed only fourth degree assault (the factual prong). State v. Stevens, 158 Wash. 2d
304, 311, 143 P.3d 817 (2006). Peebles satisfies the legal prong,5 but not the factual prong.
In examining the factual prong, we view the supporting evidence in the light most favorable
to Peebles. State v. Fernandez-Medina, 141 Wash. 2d 448, 455-56, 6 P.3d 1150 (2000). To establish
the factual prong, the evidence must raise an inference that Peebles committed only fourth degree
assault. Fernandez-Medina, 141 Wash. 2d at 455. Here, to be entitled to a lesser included instruction
on fourth degree assault, Peebles must point to evidence that he touched AP intentionally, but not
for the purpose of sexual gratification.
Although AP’s statements about the exact nature of the touching varied, she consistently
stated that Peebles touched her underneath her clothing. And Peebles was unable to dispute her
statements because he claimed to have no memory of any of the relevant events. Thus, taken in
the light most favorable to Peebles, the evidence showed that he touched AP underneath her
clothing. The nature of this touch goes beyond innocent intentional touching.
We note that this case differs from Stevens. In Stevens, our Supreme Court held that the
defendant, Stevens, who had been charged with second degree child molestation, had been entitled
to a lesser included offense instruction on fourth degree assault. 158 Wash. 2d at 306. In Stevens, it
5
Second degree child molestation necessarily includes the elements of fourth degree assault.
Stevens, 158 Wash. 2d at 311 (second degree child molestation necessarily includes the elements of
fourth degree assault). Because the only difference between first and second degree child
molestation is the ages of the parties involved, fourth degree assault is also a lesser included
offense of first degree child molestation. See RCW 9A.44.083, .086.
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No. 50172-4-II
was undisputed “that Stevens touched [one of the victims] on her breast,” but Stevens asserted that
the touch was accidental. 158 Wash. 2d at 311. Considering the evidence that after Stevens grabbed
the victim’s breast he make a joke about it, our Supreme Court held that “[a] reasonable juror could
infer the touch was intentional” and that this evidence supported an inference that Stevens touched
the victim without privilege or consent, the touch was offensive, and therefore the touch was
arguably unlawful. Stevens, 158 Wash. 2d at 312. By implication, the Court held that a reasonable
juror could also have concluded that the touching was not for the purpose of sexual gratification.
See Stevens, 158 Wash. 2d at 312.
Here, in contrast, there was no allegation of another motivation and the touching was more
than a mere passing glance. The fact that the touching occurred under AP’s clothing does not
suggest an innocent motive. Accordingly, we hold that Peebles fails to show that he would have
been entitled to the lesser included instruction had he requested it. Because he would not have
been entitled to the instruction, defense counsel’s failure to request this instruction does not amount
to ineffective assistance of counsel and this argument fails.
C. FAILURE TO PRESENT EXPERT WITNESS TESTIMONY
Peebles next argues that defense counsel provided ineffective assistance of counsel because
he failed to offer expert testimony about the effects of alcohol. Specifically, Peebles asserts that
such expert testimony would have helped the jury to understand the voluntary intoxication
8
No. 50172-4-II
instruction by explaining “why the effects of alcohol can change a seemingly voluntary act into an
involuntary act.”6 PRP Brief at 9.
Generally, the decision “to call a witness is a matter of legitimate trial tactics that
presumptively does not support a claim of ineffective assistance of counsel.” State v Davis, 174
Wash. App. 623, 639, 300 P.3d 465 (2013). “A defendant can overcome this presumption by
showing that counsel failed to adequately investigate or prepare for trial.” Davis, 174 Wash. App.
at 639.
The only support Peebles provides for this claim is his assertion in his affidavit that defense
counsel did not suggest that they use an expert witness to assist with the intoxication defense. But
Peebles does not provide anything demonstrating that counsel failed to investigate whether calling
an expert witness would have been beneficial or whether the decision to refrain from presenting
an expert witness was a reasonable tactical decision. Additionally, Peebles does not provide
anything establishing what testimony such an expert would have provided beyond the bare
assertion in his briefing that the expert might have explained “why the effects of alcohol can
change a seemingly voluntary act into an involuntary act.” PRP Brief at 9. As stated above, more
than bare assertions and speculation are required to establish he is entitled to relief or a reference
6
The voluntary intoxication instruction provided:
No act committed by a person while in a state of voluntary intoxication is
less criminal by reason of that condition. However, evidence of intoxication may
be considered in determining whether the defendant acted for the purpose of
gratifying sexual desires of either party.
Br. of Resp’t, App. E (Jury Instruction 10).
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No. 50172-4-II
hearing. Because Peebles has not adequately supported his ineffective assistance of counsel claim,
it fails.
Accordingly, we deny this petition.
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.
SUTTON, J.
We concur:
WORSWICK, P.J.
BJORGEN, J.
10