Personal Restraint Petition Of Cj Copeland ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal No. 80973-3-I
Restraint Petition of
DIVISION ONE
CJ COPELAND,
UNPUBLISHED OPINION
Petitioner.
SMITH, J. — A jury found CJ Copeland guilty of three counts of second
degree assault and two counts of third degree assault. In this personal restraint
petition (PRP), Copeland requests a reference hearing to establish that the
prosecutor violated his right to due process by presenting false testimony at trial
and allowing it to go uncorrected. He also contends that he received ineffective
assistance of counsel. Because Copeland fails to allege facts that would entitle
him to relief, we deny his request for a reference hearing and deny the personal
restraint petition.
FACTS
The facts underlying this conviction are set out in more detail in State v.
Copeland, No. 76372-5-I (Wash. Ct. App. July 30, 2018) (unpublished),
https://www.courts.wa.gov/opinions/pdf/763725.pdf.
Jill Cutler and Brian Hagins were married for 23 years, and
have four children: Hailey, Niam, Brona, and T.H. Cutler and
Hagins were active members of the Mormon Church. Hagins
worked outside the home and Cutler was a homemaker.
In 2011, Cutler's best friend McKala Copeland passed away
unexpectedly. In 2012, Cutler and Hagins agreed to take in her
Citations and pin cites are based on the Westlaw online version of the cited material.
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children CJ Copeland and Alex Hunter until they could get back on
their feet. CJ Copeland was 18 years old and Alex Hunter was 15
years old.
At the time Copeland and his brother moved in, Cutler and
Hagins' marriage was already falling apart. In May 2013, Cutler
secretly began a sexual relationship with Copeland.
…
According to Cutler, Copeland started physically abusing her
within weeks after they began their sexual relationship. He was
also extremely controlling and paranoid that she was cheating on
him. He made her ask permission to go to the store or even to get
out of bed or go to the bathroom. He imposed strict time limits on
her outings and forced her to text him photos to prove she wasn't
cheating. If she did not answer his calls on the first ring, he would
accuse her of cheating. He constantly checked her cell phone to
make sure she was not talking to men or deleting texts or emails.
He told Cutler that if she left him or had him arrested, his friends
would rob her and burn her house down. He also threatened to
have Cutler or her children put in jail.
Copeland, slip op. at 1-3. In October 2015, Cutler allowed a friend to call the
police, and after speaking with Cutler and seeing bruises all over her body, the
police arrested Copeland. The State charged Copeland with five counts of
second degree assault and two counts of third degree assault.
Cutler was the only direct witness to the abuse and testified at length at
trial. In addition to her testimony, three of Cutler’s children testified about seeing
their mother with bruises, black eyes, and broken noses on multiple occasions.
Two of Cutler’s friends testified that Cutler had told them that Copeland was
abusing her. The State introduced photos of extensive bruising and burn marks
on Cutler—some were taken by the police on the day Copeland was arrested,
and others were provided by Cutler, who said she had taken them throughout the
relationship and e-mailed them to a secret e-mail address before deleting them
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from her phone. There were also photos of marks on Cutler’s bedframe and
bedroom walls consistent with belt strikes.
The jury found Copeland guilty of both counts of third degree assault and
three of the five counts of second degree assault. The court sentenced
Copeland to 70 months of incarceration. Copeland appealed, challenging the
admission of Cutler’s friends’ testimony about Cutler’s prior statements, and we
affirmed.
ANALYSIS
In his PRP, Copeland contends that the prosecutor failed to ensure the
accuracy of the testimony it presented at trial and thereby violated his due
process right to a fair trial. He also contends that he received ineffective
assistance of counsel because his trial counsel failed to adequately investigate
the case or to raise the issue of contradictory testimony at various points
throughout trial. We conclude that Copeland has not met his burden to allege
facts that would entitle him to relief.
A petitioner may seek relief from governmental restraint where “[t]he
conviction was obtained or the sentence . . . was imposed . . . in violation of the
Constitution of the United States or the Constitution or laws of the State of
Washington.” RAP 16.4(c)(2). “Relief by way of a collateral challenge to a
conviction is extraordinary, and the petitioner must meet a high standard before
this court will disturb an otherwise settled judgment.” In re Pers. Restraint of
Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). Accordingly, “personal
restraint petitioners who have had prior opportunity for judicial review must show
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that they were actually and substantially prejudiced by constitutional error or that
their trials suffered from a fundamental defect of a nonconstitutional nature that
inherently resulted in a complete miscarriage of justice.” Coats, 173 Wn.2d at
132.
This court has three options regarding constitutional issues raised
in a personal restraint petition:
1. If a petitioner fails to meet the threshold burden of showing
actual prejudice arising from constitutional error, the petition must
be dismissed;
2. If a petitioner makes at least a prima facie showing of actual
prejudice, but the merits of the contentions cannot be determined
solely on the record, the court should remand the petition for a full
hearing on the merits or for a reference hearing pursuant to RAP
16.11(a) and RAP 16.12;
3. If the court is convinced a petitioner has proven actual prejudicial
error, the court should grant the Personal Restraint Petition without
remanding the cause for further hearing.
In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992).
To make the required prima facie showing for a reference hearing, the
petitioner must “state in his petition the facts underlying the claim of unlawful
restraint and the evidence available to support the factual allegations.” Rice, 118
Wn.2d at 885-86. “[T]he petitioner must state with particularity facts which, if
proven, would entitle him to relief” and “must present evidence showing that his
factual allegations are based on more than speculation, conjecture, or
inadmissible hearsay.” Rice, 118 Wn.2d at 886. “Once the petitioner makes this
threshold showing, the court will then examine the State's response to the
petition,” which “must answer the allegations of the petition and identify all
material disputed questions of fact.” Rice, 118 Wn.2d at 886. “If the parties'
materials establish the existence of material disputed issues of fact, then the
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superior court will be directed to hold a reference hearing in order to resolve the
factual questions.” Rice, 118 Wn.2d at 886-87.
Presentation of False Testimony
Copeland first contends that the prosecutor violated his due process right
to a fair trial by eliciting false testimony. We disagree.
A prosecutor “must function within boundaries” while seeking justice
because the prosecutor “owes a duty to defendants to see that their rights to a
constitutionally fair trial are not violated.” State v. Monday, 171 Wn.2d 667, 676,
257 P.3d 551 (2011). Accordingly, the constitution requires the prosecution to
disclose favorable evidence to the defense where the evidence is material to the
defendant’s guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963). Similarly, a prosecutor “may not knowingly use
false evidence, including false testimony, to obtain a tainted conviction.” Napue
v. Illinois, 360 U.S. 264, 269-70, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)
(reversing conviction where prosecutor knowingly presented false testimony that
witness had not received any promises of leniency in exchange for testifying).
“The same result obtains when the State, although not soliciting false evidence,
allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269. A
“‘conviction obtained by the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.’” In re Pers. Restraint of
Benn, 134 Wn.2d 868, 936, 952 P.2d 116 (1998) (quoting United States v. Agurs,
427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)).
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Furthermore, “when it should be obvious to the Government that [a]
witness’ answer, although made in good faith, is untrue, the Government's
obligation to correct that statement is as compelling as it is in a situation where
the Government knows that the witness is intentionally committing perjury.”
United States v. Harris, 498 F.2d 1164, 1169 (3d Cir. 1974). “‘Mere
inconsistency’ between witnesses’ testimony is not necessarily perjury, and not
every contradiction is material.” United States v. Martin, 59 F.3d 767, 770 (8th
Cir. 1995) (quoting United States v. Nelson, 970 F.2d 439, 443 (8th Cir. 1992)).
Copeland points to several facts that he claims show the prosecutor knew
or should have known that Cutler offered false testimony. First, he points to a
complaint Cutler made to the police about the police officer’s initial response to
her call. Cutler had emailed a complaint to the police department saying that the
deputy who arrived at her house had not collected evidence, that she thought he
did not believe her, and that she had been called a liar. The officer who
investigated this complaint testified that she “noted that the deputy had collected
evidence and that we had made an arrest that day. And certainly, if we didn’t
believe a victim, we wouldn’t make an arrest.” Copeland claims this shows the
State knew Cutler “at best, exaggerated and at worst, made false accusations”
about the police and that this put the veracity of Cutler’s testimony at issue.
However, the officer who investigated the complaint concluded that there was
simply a difference in perception:
When I explained that we're going to ask hard questions, it
was maybe his approach or questions that maybe made her jump
to that conclusion.
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For example, her claim that we didn't collect evidence, I'm
thinking that's a discrepancy because I clearly see he collected,
took pictures, and he collected a belt or belts.
Her assertion would be we didn't collect the knife.
So it’s a perspective.
The officer also concluded that Cutler’s perception was that “she was made to
feel she was a liar as opposed to being called a liar.” This evidence does not
establish that Cutler falsely testified about the issues at trial, or that the
prosecutor knowingly presented false testimony. At worst it raises an issue of
Cutler’s credibility, and issues of credibility are left for the trier of fact to
determine. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 498, 251 P.3d
884 (2010). Copeland was properly able to raise this issue and elicit the above
testimony during trial. See also State v. Statler, 160 Wn. App. 622, 641-42, 248
P.3d 165 (2011) (“The jury had to determine whether there was perjured
testimony, and apparently rejected the defense arguments.”). Copeland relies on
N. Mariana Islands v. Bowie, 243 F.3d 1109, 1117-18 (9th Cir. 2001), in which
the prosecutor proceeded with trial without investigating a letter found in the
possession of one of the defendant’s accomplices, describing a plan to blame the
murder on the defendant despite it having been committed by someone else.
None of the facts in this case approach the blatant notice of potential false
testimony that was present in Bowie.
Copeland next points to Cutler’s statements at his sentencing hearing,
including descriptions of sadism and rape by Copeland, that were not part of her
testimony at trial. However, Copeland fails to establish a connection between
these new allegations and any purportedly false testimony at trial, let alone any
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basis on which the prosecutor should have known at trial that it was offering false
testimony. Nor do these allegations affect the propriety of his sentence, given
the sentencing court’s explicit statement that it was not “taking into account
factual allegations that may have been made that were unproved.”
Copeland next contends that the State’s investigation was incomplete with
respect to the photographs Cutler provided of her injuries. Cutler testified that
she began taking photographs of her injuries in March or April of 2015, and that
she would send them to a secret email address and then delete the evidence off
of her phone. Cutler printed out these photos and e-mails and gave them to
police, who asked if they could look at her phone to try to get the embedded
photos from it. Cutler testified that she agreed, but the police did not take her
phone immediately, and two weeks later the microphone on her phone broke and
when she brought it to the phone store to get it fixed, they gave her a brand new
phone. Accordingly, the police were not able to gather forensic evidence from
the phone. Again, these circumstances could be and were used to impeach
Cutler’s credibility, but do not establish that her testimony was false. Indeed, the
injuries depicted in Cutler’s photos were corroborated by the testimony of
multiple witnesses, including police, describing similar bruising and injuries on
Cutler’s body. Furthermore, while Copeland could properly use these facts to
raise doubts about the thoroughness of the police investigation, an “incomplete
or perhaps negligently conducted” investigation does not itself establish a
violation of due process. State v. Armstrong, 188 Wn.2d 333, 345-46, 394 P.3d
373 (2017).
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Copeland also points to other shortcomings in the State’s investigation,
such as the fact that it did not subpoena Copeland’s phone records or follow up
on a claim that Cutler made in an interview that Copeland beat her outside on
one occasion when the neighbors were outside. These incidents again
constitute, at worst, an incomplete investigation rather than suppression of
evidence or presentation of false evidence. Copeland was able to present this
information to the jury, which was able to judge credibility accordingly. Copeland
was also able to impeach Cutler on her earlier statement that the neighbors had
been outside, when she conceded that she merely “thought there was a good
chance they were out.”
Finally, Copeland points to general inconsistencies in Cutler’s testimony.
These inconsistencies include differences in timelines—Cutler at one point
testified that she began documenting her injuries in March or April of 2015 but
later testified that she photographed her injuries from an assault on February 18,
2015, a few days after it happened—and in how she described her
experiences—for instance, saying at one point that Copeland never let her go to
the doctor but at another point describing a visit to her regular doctor. None of
these differences within Cutler’s testimony point to the prosecutor allowing false
testimony to go uncorrected; on the contrary, many of the inconsistencies
Copeland describes are at portions where Cutler is correcting herself.
“Conflicting witness testimony does not demonstrate that the witnesses
committed perjury or that the prosecutor knew of any alleged perjury.”
Monschke, 160 Wn. App. at 498.
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Altogether, the facts cited by Copeland do not establish that Cutler
perjured herself or that the prosecutor was on notice that her testimony was
false. These facts all go to Cutler’s credibility, which was properly put at issue
before the jury. Copeland has failed to allege facts showing his due process right
was violated.
Ineffective Assistance of Counsel
Copeland also contends that he received ineffective assistance of counsel
because his attorney failed to challenge the sufficiency or integrity of the State’s
evidence by, for instance, challenging the State’s probable cause or moving for a
mistrial. Copeland also contends that his attorney failed to adequately
investigate or interview witnesses. We disagree.
“Those charged with a crime have a constitutional right to effective
assistance of counsel.” In re Khan, 184 Wn.2d 679, 688, 363 P.3d 577 (2015).
A defendant “bears the burden of showing (1) that his counsel's performance fell
below an objective standard of reasonableness and, if so, (2) that counsel's poor
work prejudiced him.” State v. A.N.J., 168 Wn.2d 91, 109, 225 P.3d 956 (2010).
Copeland has failed to allege facts that would entitle him to relief.
Because he has failed to show that the State presented false evidence, he has
necessarily failed to show that his attorney was ineffective by failing to move for a
mistrial on these grounds. Although he provides an affidavit from his trial
attorney, there is no information about the scope of her investigation or her
decisions regarding how she challenged the State’s evidence. A review of the
record indicates that Copeland’s attorney at trial raised almost all of the
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evidentiary issues and factual inconsistencies that he discusses in his petition,
and the jury was able to weigh them accordingly. Thus, Copeland has failed to
allege facts that indicate his attorney’s performance fell below an objective
standard of reasonableness or that her performance prejudiced him.
Because Copeland has not met his burden to show that his conviction was
entered in violation of the federal constitution or the constitution or laws of
Washington State, we deny Copeland’s PRP.
WE CONCUR:
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