Personal Restraint Petition Of Jerry Brand Bogart ( 2022 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of: ) No. 82256-0
)
) DIVISION ONE
JERRY BRAND BOGART )
) UNPUBLISHED OPINION
Petitioner. )
)
)
ANDRUS, A.C.J. — In this personal restraint petition, Jerry Bogart seeks
relief from his convictions for first degree assault with a deadly weapon and
unlawful possession of a firearm. He challenges both the legal and evidentiary
basis for his convictions as well as the adequacy of his trial and appellate counsel’s
representations. We deny his personal restraint petition.
FACTS 1
Kelly LeMoigne and his wife, Vicki Ecklund, were long-time users of
methamphetamine. They bought drugs from James Stevens and, at some point
in 2015 or early 2016, both Ecklund and LeMoigne provided information to the
police about Stevens, resulting in his arrest.
1 The State moved to transfer the Verbatim Report of Proceedings (VRPs) from the direct appeal
in this case, No. 78057-3-1, for our consideration of this petition, which this court granted. At trial,
Kelly LeMoigne’s perpetuation deposition was admitted in lieu of live testimony. Because this
testimony was not transcribed in the VRPs and is necessary for our full consideration of all of the
issues here, including whether the evidence was sufficient to convict, we have transferred the
Clerk’s Papers, which contain a transcript of LeMoigne’s deposition, on our own motion.
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LeMoigne and Ecklund also purchased methamphetamine from Bogart,
Stevens’ friend, on several occasions. In the early morning hours of March 23,
2016, LeMoigne arranged to meet Bogart in order to buy methamphetamine.
Unbeknownst to LeMoigne, Bogart planned to confront him about being a police
informant and decided not to sell him any drugs. Bogart, who testified at trial,
described himself as “[h]omicidely” angry that Ecklund and LeMoigne “were rats.”
When LeMoigne arrived at the meeting place, Bogart was already there,
standing in front of his car. LeMoigne parked his car facing Bogart. When Bogart
approached LeMoigne’s window, LeMoigne handed Bogart money and Bogart
tossed a cigarette pack containing salt, rather than methamphetamine, into the car.
Bogart then reached through the open car window, punched LeMoigne in
the face, and called him a “f—ckin’ rat.” LeMoigne saw Bogart preparing to hit him
again and, afraid of being hit, drove his car forward, intentionally striking Bogart’s
car and damaging both vehicles. Bogart pulled out a handgun and fired several
shots at LeMoigne as he drove away. Bogart claimed he acted in self-defense
because he was afraid LeMoigne intended to hit him with his car.
As LeMoigne was driving home, he received a voicemail message from
Bogart in which Bogart expressed concern for LeMoigne and asked where he had
gone. Bogart, believing he had terminated the call to LeMoigne, told his girlfriend
that he had tried to kill LeMoigne and that he would kill him if he saw him again.
His comments were recorded on LeMoigne’s voicemail.
LeMoigne reported the shooting incident to the police later that morning.
Bogart was subsequently stopped and arrested. When police executed a search
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warrant on Bogart’s car, they found two guns—a .22 caliber pistol and a 12-guage
shotgun—and ammunition for both weapons.
The State charged Bogart with first degree assault with a firearm and two
counts of first degree unlawful possession of a firearm. While awaiting trial, Bogart
shared a jail cell with Tyler Vorderstrasse. Vorderstrasse, who had known Bogart
for several years and with whom he shared many mutual friends, was also friends
with LeMoigne and Ecklund.
While they were cellmates, Bogart and Vorderstrasse discussed the details
of their respective cases. Vorderstrasse then testified at trial about these
conversations in exchange for a reduction in a pending charge against him.
Vorderstrasse testified that Bogart told him he had punched LeMoigne and called
him a “rat” because he believed LeMoigne and Ecklund had informed on Stevens.
Vorderstrasse also testified that Bogart admitted he had fired shots at LeMoigne,
hitting LeMoigne’s car in the process.
The jury found Bogart guilty of first degree assault with a deadly weapon
and both counts of unlawful possession of a firearm. 2 The trial court sentenced
Bogart to 318 months on the assault, with a 60-month firearm enhancement, to be
served consecutively to a 72-month sentence on a bail jumping conviction, for a
total period of confinement of 479.5 months.
Bogart appealed and this court affirmed his conviction in State v. Bogart,
No. 78057-3-I, slip. op. (Wash. Ct. App. Sept. 16, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/780573.pdf. The court reversed his
2At a subsequent bench trial under the same cause number, Bogart was also found guilty of one
count of bail jumping.
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sentence, however, because the trial court had imposed a firearm enhancement
when the jury’s special verdict only found that he had used a deadly weapon. We
remanded the case for resentencing to reflect the correct sentencing
enhancement. Id. In August 2020, the trial court resentenced Bogart to 318
months on the assault, with a 24-month deadly weapons enhancement. The
sentences for unlawful possession of firearms and bail jumping remained the
same. Bogart’s current total period of confinement is 443.5 months.
In this timely personal restraint petition, Bogart argues that (1) the trial court
erred in admitting ER 404(b) evidence relating to his attempts to sell firearms to a
third party; (2) the trial court erred in denying his motion to compel information
about the confidential informant activities of LeMoigne and Ecklund; (3) he was
denied a full and fair opportunity to prepare for trial; (4) the evidence is insufficient
to sustain his conviction for first degree assault with a deadly weapon; (5) he
received ineffective assistance of counsel at trial and (6) on appeal; and (7) the
cumulative effect of the errors denied him a fair trial. We reject each and every
claim.
ANALYSIS
An appellate court may grant relief to a petitioner who is under restraint and
who can demonstrate his restraint is unlawful. RAP 16.4; In re Pers. Restraint of
Cook, 114 Wn.2d 802, 805, 792 P.2d 506 (1990). Restraint is unlawful when a
conviction is obtained in violation of the United States Constitution or the laws of
the state of Washington. RAP 16.4(c)(2).
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Relief by way of a collateral challenge to a conviction is extraordinary and
a 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). The petitioner has the burden of demonstrating error and, if the error
is constitutional, actual and substantial prejudice. In re Pers. Restraint of
Sandoval, 189 Wn.2d 811, 821, 408 P.3d 675 (2018). If the error is not
constitutional, the petitioner must show that the error represents a fundamental
defect that inherently resulted in a complete miscarriage of justice. Id. (quoting In
re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013)). 3 The
petitioner must make these heightened showings by a preponderance of the
evidence. In re Pers. Restraint of Yates. 177 Wn.2d 1, 17, 296 P.3d 872 (2013).
A. ER 404(b)
Bogart first argues that the trial court admitted evidence in violation of ER
404(b) when it allowed testimony that he arranged to sell a shotgun to a third party.
ER 404(b) prohibits admission of “[e]vidence of other crimes, wrongs, or acts . . .
to prove the character of a person in order to show action in conformity therewith.”
Before admitting evidence pursuant to ER 404(b), the trial court must
3 Bogart cites In re Pers. Restraint of Pierce, 173 Wn.2d 372, 377, 268 P.3d 907 (2011) for the
proposition that “when a petition ‘raises issues that were afforded no previous opportunity for
judicial review, . . . the petitioner need not make the threshold showing of actual prejudice or
complete miscarriage of justice.’” This proposition does not apply to most of the claims he raises
here. This lower burden of proof applies to issues that have seen no opportunity for a prior appeal,
such as when a petitioner challenges prison policies or disciplinary decisions. See Pierce, 173
Wn.2d at 375 (review concerned money that had been taken from an inmate’s account after he
was incarcerated); In re Pers. Restraint of Dalluge, 162 Wn.2d 814, 817, 177 P.3d 675 (2008)
(lower standard applied because there is no direct review of department of corrections hearing
finding that petitioner violated his community custody conditions). By contrast, with the exception
of Bogart’s claim that he received ineffective assistance of appellate counsel, the legal and
evidentiary claims raised here had an opportunity for judicial review on direct appeal.
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(1) find by a preponderance of the evidence that the misconduct
occurred, (2) identify the purpose for which the evidence is sought to
be introduced, (3) determine whether the evidence is relevant to
prove an element of the crime charged, and (4) weigh the probative
value against the prejudicial effect.
State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting State v. Vy
Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). If the evidence is admitted, a
limiting instruction is required. State v. Arredondo, 188 Wn.2d 244, 257, 394 P.3d
348 (2017).
When the admissibility of evidence is challenged under ER 404(b), we
review a trial court's ruling for abuse of discretion. State v. Fisher, 165 Wn.2d 727,
745, 202 P.3d 937 (2009). Erroneous admission of ER 404(b) evidence is not of
constitutional magnitude. State v. Mezquia, 129 Wn. App. 118, 131, 118 P.3d 378(2005). As such, Bogart bears the burden of demonstrating that any error by the
trial court here resulted in a complete miscarriage of justice. Sandoval, 189 Wn.2d
at 821.
Here, Vorderstrasse testified that, while awaiting trial in the Snohomish
County Jail, Bogart told him that the morning after the incident with LeMoigne, he
made plans to sell a shotgun to a man named “Bald Billy.” Bogart objected to this
testimony, arguing it was inadmissible evidence of a prior bad act that was
cumulative of evidence already presented. The State argued that this evidence
demonstrated Bogart’s possession of the firearm, an element of one of the charged
offenses. It also argued that because Bogart claimed Vorderstrasse knew details
of the alleged shooting incident only from reading Bogart’s discovery materials in
their shared jail cell and not from inculpatory statements from Bogart himself, the
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evidence that Vorderstrasse knew about the impending sale to Bald Billy was
necessary to corroborate Vorderstrasse’s testimony that he gained his knowledge
of the shooting incident from Bogart directly and not from discovery materials. The
court admitted the evidence and instructed the jury that the testimony relating to
the sale of the shotgun could be considered only for the purpose of evaluating the
credibility of witnesses.
Bogart argues that testimony related to the sale of the shotgun was
irrelevant because there was no evidence suggesting that the shotgun he tried to
sell to Bald Billy was the shotgun the police found in the vehicle.
Relevant evidence is "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence." ER 401. Here, this
evidence was relevant to the jury’s determination of Vorderstrasse’s credibility.
In his opening, Bogart raised the issue of Vorderstrasse’s credibility. He
told the jury that “the information [Vorderstrasse] knows did not come from
[Bogart], it came from reading material of [Bogart’s], what we call discovery,” which
he would have had access to in the cell he shared with Bogart. He referred to
Vorderstrasse as “a career criminal who when caught provides information to law
enforcement to get lighter sentences . . . . [H]e lies for a profession.”
Evidence of Bogart’s attempted sale of the shotgun, however, was only
accessible through use of a computer, and Vorderstrasse could not have read
about it in their shared jail cell. This evidence rebutted Bogart’s challenge to
Vorderstrasse’s credibility by demonstrating that Vorderstrasse had details that
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could not have been discovered by merely reading case documents found in
Bogart’s cell. See State v. Lee, 188 Wn.2d 473, 488, 396 P.3d 316 (2017)
(“Credibility evidence is particularly relevant when the witness is central to the
prosecution’s case.”).
Moreover, evidence that Bogart intended to sell the shotgun was
circumstantial evidence demonstrating Bogart’s dominion and control over the
weapon, which spoke to whether Bogart unlawfully possessed the firearm.
Evidence regarding the possession of a weapon is admissible and highly relevant
where the jury could infer from the evidence that the weapon could have been
used in the commission of the crime. State v. Luvene, 127 Wn.2d 690, 708, 903
P.2d 960 (1995).
Bogart maintains that, because detectives testified that the shotgun was
found in Bogart’s car, evidence that he tried to sell a shotgun to a third party was
cumulative of the evidence that he possessed a firearm and was unduly prejudicial
in implying that he was guilty of improperly attempting the sell a weapon. But the
evidence was not cumulative with respect to Vorderstrasse’s credibility, who,
Bogart acknowledges, was a “star witness” the State used to elicit admissions in
Bogart’s own words. Further, during Bogart’s own direct testimony, he admitted
that he tried to sell the revolver he used in the assault to LeMoigne just weeks
before the incident. Given this admission, Bogart cannot demonstrate any
prejudice resulting from testimony regarding the sale of a firearm.
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Even if the trial court erred in admitting evidence that Bogart tried to sell a
shotgun to a third party, Bogart cannot demonstrate that he is entitled to relief.
This purported error did not result in a complete miscarriage of justice.
B. Motion to Compel
Bogart next argues that the trial court abused its discretion when it denied
his motion to compel historical information about LeMoigne and Ecklund. 4 We
disagree.
Prior to trial, Bogart moved to compel the disclosure of historical information
relating to LeMoigne and Ecklund. He argued that any information these witnesses
may have shared with law enforcement could be used to impeach them or attack
their credibility. The trial court granted the motion in part by issuing a subpoena
duces tecum to the Snohomish County Regional Drug Task Force directing it to
produce documents relating to either witness within the last ten years for an in
camera review. The court received three separate batches of responsive
documents from the task force. Following its review of these documents, the court
ruled that disclosure of the materials was not required. The court found that
[The materials] do not contain information about Mr. Bogart. They
confirm Ms. Ecklund’s participation as a paid informant over a period
of time. Other than the potential impeachment value of the fact that
Ms. Ecklund has been a paid informant, a fact that the defense
knows because Ms. Ecklund disclosed it through discovery in this
case, the documents are not relevant for other impeachment
purposes or for any direct evidence purpose that relates to Mr.
Bogart’s current charges.
4Bogart also asserts that the court erred in denying the same motion with regard to Vorderstrasse.
The record, however, demonstrates that Bogart withdrew the motion as to Vorderstrasse.
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The court further found that the documents were silent as to LeMoigne. The court
marked the documents it had reviewed as Exhibit 1 and ordered that they be filed
under seal.
Bogart argues that the documents he requested were discoverable under
CrR 4.7 because he could have used them to impeach witnesses whose credibility
was “pivotal” in this case. CrR 4.7(e)(1) provides that “[u]pon a showing of
materiality to the preparation of the defense, and if the request is reasonable, the
court in its discretion may require disclosure to the defendant of [other] relevant
material and information.” Both threshold requirements—materiality and
reasonableness—must be met before the court may exercise discretion in granting
the request. State v. Norby, 122 Wn.2d 258, 266, 858 P.2d 210 (1993). In general,
we review discovery decisions based on CrR 4.7 for abuse of discretion. State v.
Vance, 184 Wn. App. 902, 911, 339 P.3d 245 (2014).
Without challenging the trial court’s finding that the materials contained no
impeachment or direct evidence, Bogart now argues that these documents were
material. He seems to argue that the documents must be material because the
witnesses’ history of providing evidence to gain advantage with law enforcement
affects their credibility. But the jury heard evidence that Ecklund worked as an
informant and heard Bogart’s arguments that this damaged her credibility. And
Bogart fails to identify how the specific details of these documents were material.
Moreover, he has not designated the sealed materials for our review. Thus, we do
not have the record necessary to determine whether the trial court abused its
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discretion in finding that the documents contained no impeachment or direct
evidence relating to Bogart or in concluding that the documents were not material.
C. Access to Resources and Time to Prepare
Bogart argues that he was denied his constitutional right to a fair trial
because the State denied him adequate access to the discovery in his case and
time to prepare. The record does not support this argument.
The Fourteenth Amendment to the United States Constitution requires that
criminal prosecutions conform to prevailing notions of fundamental fairness, and
that criminal defendants be given a meaningful opportunity to present a complete
defense. State v. Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994)
(citing California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct 2528 81 L. Ed. 2d 413(1984). In Washington, CrR 4.7 governs discovery in criminal cases. It details the
obligations of both the prosecution and defense in disclosing information within
their respective possession or control and dictates, generally, what information is
subject to disclosure. The principles underlying this rule “require meaningful
access to copies based on fairness and the right to adequate representation.”
State v. Boyd, 160 Wn.2d 424, 433, 158 P.3d 54 (2007).
In order to provide adequate information for informed pleas, expedite
trials, minimize surprise, afford opportunity for effective cross-
examination, and meet the requirements of due process, discovery
prior to trial should be as full and free as possible consistent with
protections of persons, effective law enforcement, the adversary
system, and national security.
State v. Yates, 111 Wn.2d 793, 797, 765 P.2d 291 (1988) (quoting CRIMINAL RULES
TASK FORCE, W ASHINGTON PROPOSED RULES OF CRIMINAL PROCEDURE 77 (West
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Pub'g Co. ed.1971)). “To deny access to copies does not accord with these
policies.” Boyd, 160 Wn.2d at 434.
Bogart asserts that, while in jail, he was not given access to the entirety of
the discovery available in his case, which infringed on his right to meaningfully
participate in his defense. But Bogart’s counsel informed the court that Bogart had
received all of his discovery, but one document. And Patricia Pendry, the recording
and data management supervisor at the Snohomish County Jail, testified about
the discovery policies for all inmates. According to Pendry, inmate discovery is
limited to paper documents, which they must keep in their cell in a “bin box.” While
the inmates are not subject to any page limit for the amount of paperwork they can
keep in their cell, they are required to keep it within their bin box, which is
approximately 17” long by 12” wide by 10” deep. Inmates who are represented by
counsel can request an additional bin box.
Bogart argues that this system limited the volume of legal paperwork he had
access to, requiring him to review discovery in a piecemeal fashion. He contends
this piecemeal production limited his ability to go back to read in context
documents the State produced early in his case when he received new documents
that referenced the earlier produced material.
Bogart cites no law supporting the contention that either the right to a fair
trial or the right to present a defense grants a criminal defendant the right to
unlimited access to discovery materials. In fact, under federal law, sensitive
materials need only be made “reasonably available” to the defendant. See 18
U.S.C. § 3509(m)(2)(A) (“a court shall deny, in any criminal proceeding, any
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request by the defendant to copy, photograph, duplicate, or otherwise reproduce
any property or material that constitutes child pornography . . .so long as the
Government makes the property or material reasonably available to the
defendant.”) (emphasis added).
Moreover, he has not articulated how the limited access to discovery
infringed his rights. Bogart’s attorney had unrestricted access to all the
discoverable materials and was able to craft and present a defense. Even if we
assume that piecemeal production to a defendant amounts to a constitutional
violation, Bogart has not identified any actual or substantial prejudice to the
development of his case nor has he identified how it affected the verdict.
D. Sufficiency of the Evidence
Bogart next challenges the sufficiency of the evidence supporting his
conviction for first degree assault with a deadly weapon, arguing there was
insufficient evidence of his intent to inflict great bodily harm on LeMoigne. We
disagree.
Due process requires that the State prove each element of a charged
offense beyond a reasonable doubt. State v. Chacon, 192 Wn.2d 545, 549, 431
P.3d 477 (2018). We review the sufficiency of the evidence de novo. State v.
Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Evidence is sufficient to support
a conviction if, viewed in the light most favorable to the State, any rational trier of
fact could have found the elements of the crime beyond a reasonable doubt. State
v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439 (2009). A defendant's claim of
insufficiency “admits the truth of the State's evidence and all inferences that
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reasonably can be drawn” from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992).
Under RCW 9A.36.011(1)(a), a person is guilty of assault in the first degree
if that person assaults another with a firearm or any deadly weapon with intent to
inflict great bodily harm. A person acts with “intent” if he “acts with the objective or
purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a).
The State is entitled to rely on circumstantial evidence in proving the defendant’s
intent. State v. Mancilla, 197 Wn. App. 631, 649, 391 P.3d 507 (2017).
Viewing the evidence in the light most favorable to the State, a reasonable
jury could find beyond a reasonable doubt that Bogart intended to cause great
bodily harm to LeMoigne. Bogart admitted that he was he was “[h]omicidely” angry
when he discovered that LeMoigne and Ecklund provided information to the police.
Bogart admitted that he arranged a meeting with LeMoigne where he planned to
sell him fake drugs and confront him about being an informant. Bogart admitted
that he punched LeMoigne in the face and called him a rat. LeMoigne testified
Bogart pulled a gun from his pocket and shot at LeMoigne and his car. Bogart
admitted that “Well, so I started shooting. Jesus, man, okay. I started shooting
pop, pop, pop, pop.” After the incident, Bogart left a recording on LeMoigne’s
voicemail in which he can be heard saying that he had just tried to kill LeMoigne
and that he was going to kill LeMoigne the next time he saw him. Bogart admitted
that it is his voice in the recording, and the recording was played for the jury at trial.
Bogart argues now, as he did to the jury, that the evidence only
demonstrates that he shot at LeMoigne in self-defense. But his admitted rage
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towards LeMoigne for being an informant and the voicemail left shortly after the
incident undercuts the contention that he was acting only in self-defense. And the
jury, having been presented with evidence, was entitled to reject Bogart’s version
of events. We defer to the jury’s evaluation of witness credibility, resolution of
testimony in conflict, and weight and persuasiveness of the evidence. State v.
Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
The evidence was sufficient to support Bogart’s conviction.
E. Ineffective Assistance of Trial Counsel
Next, Bogart asserts that his trial counsel was ineffective for four reasons:
(1) his counsel did not withdraw despite a breakdown in their relationship; (2) his
counsel failed to properly advise him on a plea offered by the State; (3) his
counsel’s closing arguments urged the jury to convict Bogart; and (4) his counsel
failed to challenge evidence that he shot at LeMoigne and caused bullet damage
to his car. We reject each in turn.
Under the Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington State Constitution, a defendant in a criminal
proceeding is guaranteed the right to effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To establish ineffective
assistance of counsel, a defendant must demonstrate both (1) that counsel's
representation fell below an objective standard of reasonableness and (2) that
counsel’s representation resulted in prejudice, i.e., a reasonable probability that,
but for counsel's deficient performance, the result of the proceeding would have
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been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Because the defendant must show both prongs, a failure to demonstrate either
prong will end the inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d
489 (2018).
Deficient performance occurs when counsel's performance cannot be
attributed to any conceivable legitimate tactic. State v. Carson, 184 Wn.2d 207,
218, 357 P.3d 1064 (2015) (quoting Grier, 171 Wn.2d at 33). “The reasonableness
of counsel's performance is to be evaluated from counsel's perspective at the time
of the alleged error and in light of all the circumstances.” In re Pers. Restraint of
Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). There is a strong presumption
that counsel exercised reasonable professional judgment to render adequate
assistance. Carson, 184 Wn.2d at 216. To rebut this presumption, the defendant
has the burden to establish that there are no legitimate strategic or tactical reasons
explaining counsel's performance. McFarland, 127 Wn.2d at 335-36.
Complete Breakdown in Communication
Bogart first contends his trial counsel, Jason Schwarz, should have
withdrawn from the case because they had “serious and continuous problems.”
Bogart submitted a declaration contending that Schwarz did not provide him with
discovery in his case, that Schwarz did not respond to Bogart’s correspondence
and questions, that Schwarz told Bogart that he was a “pain in the ass” and that
no other attorney’s wanted to work with Bogart, and that Schwarz discussed
Bogart’s case with another inmate.
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Bogart proposes no legal framework with which to analyze his argument
that counsel should have withdrawn and he cites no authority for the contention
that his counsel had a duty to withdraw. Even if we were to assume that his
attorney had a duty to withdraw from representation, Bogart must demonstrate that
Schwarz would have been permitted to withdraw had he requested to do so.
A defendant “‘must show good cause’” before the trial court will allow
substitution of counsel, “‘such as a conflict of interest, an irreconcilable conflict, or
a complete breakdown in communication between the attorney and the
defendant.’”5 State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004) (quoting
State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997) (Stenson I). If the
relationship between a defendant and his counsel completely collapses, the denial
of substitute counsel violates the defendant’s right to effective assistance of
counsel. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 722, 16 P.3d 1 (2001)
(Stenson II). A conflict over trial strategy or a defendant's lack of trust or
confidence in his attorney does not warrant substitution of counsel. State v. Cross,
156 Wn.2d 580, 607, 132 P.3d 80 (2006). “Attorney-client conflicts justify the grant
of a substitution motion only when counsel and defendant are so at odds as to
prevent presentation of an adequate defense.” Stenson I, 132 Wn.2d at 734.
The day before trial, Bogart asked to address the court about concerns he
had with his representation. He complained that “there should have been more
motions filed on [his] behalf.” He told the court that he had asked Schwarz to file
certain motions, but Schwarz decided not to do so because he thought they had
5 Because Bogart contends there was no conflict of interest, we do not address that basis here.
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little chance of success. Bogart said he thought LeMoigne should have been
deposed a second time after they learned about Vorderstrasse’s testimony, and
he complained that he had not received a complete copy of discovery and what he
had received had been heavily redacted. Bogart did not ask the court to appoint
a different attorney to represent him.
Schwarz, in response, told the court that as far as he knew, there was only
one document—a letter to Vorderstrasse dated less than a month earlier—that the
State would not allow him to give to Bogart. Schwarz indicated that he had a copy
of that letter with him and would, at the next break, allow Bogart to read it. 6 The
court, in response to Bogart’s concerns, stated:
I appreciate you raising the concerns you have, but you are
represented by counsel. Both attorneys in this case have an
exemplary reputation in this jurisdiction for working not only hard but
ethically within the courtrooms of this jurisdiction. There may be—
there may be matters you’d like to know more about or that you have
had some disagreement with your counsel about. All I can say is that
from the perspective of this Court, both counsel have worked very
hard to ensure that today’s proceedings begin in a manner that is
structured to fairly address the charges with which you have been
arraigned . . . .
Stenson II is helpful to our analysis here. In that case, Stenson’s trial
attorney moved to withdraw due to frustrations with his client. 142 Wn.2d at 729.
The attorney told the trial court that he felt he did not have an attorney-client
relationship with Stenson and indicated that he was so upset that he could not
6 The State informed the court that throughout the case, the prosecutor had worked cooperatively
with Schwarz to redact discovery in a manner that complied with CrR 4.7. With regard to the
Vorderstrasse letter, the prosecutor stated that he decided that no amount of redaction would be
appropriate because of the number of threats Vorderstrasse, who was in custody, had received in
relation to the case.
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No. 82256-0-I/19
“’stand the sight of him.’” Id. The trial court denied this motion after finding that
counsel was competent and that his representation was excellent. Id.In a personal restraint petition, Stenson argued that his counsel should have
withdrawn from representation. Id. at 721. Our Supreme Court disagreed and
concluded that the effects of any breakdown in communication were negligible. Id.
at 729. The court highlighted that while Stenson and his counsel had many
disagreements, there was no evidence that the representation had been
inadequate. Id. at 730. And there was no evidence that the breakdown in
communication lasted long or was severe. Id. at 731. Thus, the court concluded
that there was no reason to believe that an irreconcilable conflict existed. Id. at
732.
The issues identified here are less severe than those identified in Stenson
II. Here, as in that case, the record does not demonstrate a complete collapse in
Bogart’s relationship with Schwarz or that the issues identified prevented him from
fully presenting an adequate defense. Unlike in Stenson II, Bogart’s comments to
the trial court demonstrate that Bogart and Schwarz were communicating, albeit
disagreeing, on how to move forward with the case and whether or not to conduct
certain discovery or file certain motions. And the record demonstrates that
Schwarz provided Bogart with all of the discovery, even if it occurred in a manner
Bogart disliked. Like in Stenson II, Bogart’s relationship with his counsel may have
been strained but “[s]imple lack of rapport between attorney and client is not a
basis for withdrawal of counsel, even where client and attorney agree withdrawal
is preferred.” State v. Hegge, 53 Wn. App. 345, 350, 766 P.2d 1127 (1989).
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No. 82256-0-I/20
Finally, his bald assertion that defense counsel discussed his case with
another inmate, without more, is not sufficient to warrant relief or to justify granting
a reference hearing. See In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828
P.2d 1086 (1992) (“Bald assertions and conclusory allegations” do not support
holding a reference hearing.).
Bogart has failed to demonstrate that his trial counsel would have been
permitted to withdraw. And he has not otherwise demonstrated that Schwarz’s
behavior fell below an objective standard of reasonableness or resulted in
inadequate legal assistance. Trial counsel was not deficient.
Plea Negotiations
Bogart next argues that his counsel was ineffective in the plea negotiation
process because counsel failed to properly explain the terms of the State’s plea
offer. Again, this contention is not supported by the record.
The right to effective assistance of counsel applies in the plea bargaining
context. Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012).
Counsel has a duty to assist a defendant in evaluating any plea offer that the
defendant receives. State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010).
Effective assistance of counsel includes assisting the defendant in making an
informed decision as to whether to plead guilty or to proceed to trial. Id. at 111.
Counsel must, at a minimum, “reasonably evaluate the evidence against the
accused and the likelihood of a conviction if the case proceeds to trial so that the
defendant can make a meaningful decision as to whether or not to plead guilty.”
Id. at 111-12.
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No. 82256-0-I/21
According to comments Bogart made during his sentencing hearing, the
State initially offered to allow Bogart to plead to charges that would result in a
recommended sentence of 158 months, an offer Bogart admitted he rejected.
Bogart then apparently changed his mind and wanted to accept the deal, but
learned the State had withdrawn the offer. After a jury found him guilty, and Bogart
realized he was facing a sentence of in excess of 400 months, he complained to
the trial court about the State’s decision to withdraw the offered plea:
[T]hey offered me a plea for 158 months, and then they take it away
like a week, you know? At first I said I didn’t want it, but then I tell you
all that I want that plea man. And then you say, no, no more plea,
because that plea is gone, you know what I mean? And then that
man want 270 months, and I’m not taking no 270-month plea, but I’ll
take 158-month plea. They take it away fast, man. I didn’t say yes
right away, you know? I have to think about it because the problem
with a 158-month plea is [Schwarz] told me they give me 10 years.
I'm like, 158 months didn't make ten years, so I try to tell [Schwarz]
that when he told me the plea. You know, 158 months is not 10 years.
10 years is 120 months, you know? So they—[Schwarz] come back
and he told me that 159 months means I would do ten years, I would
serve the ten years, you know? But I was just trying to tell him that
he was wrong, that 158 was not ten years.
Bogart now argues that his counsel failed to effectively communicate and
explain the plea offer to him. Bogart further argues that defense counsel failed to
explain to Bogart that he would face a much longer sentence if he rejected the
offer.
But Bogart’s statements during his sentencing hearing demonstrate that he
was aware that the State had offered him a plea of 158 months and that he had
rejected that offer. And aside from the remarks Bogart made during sentencing,
there is no evidence in the record to suggest that Bogart did not understand the
offer. He provided no testimony whatsoever about the plea negotiation process or
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No. 82256-0-I/22
any representations his counsel made about the consequences of accepting or
rejecting the offer. Nothing in the record suggests that Bogart was unaware that
he faced a much longer sentence if he chose to reject the plea offer and go to trial.
Bogart has failed to demonstrate that his defense counsel’s performance in
the plea negotiation process was deficient.
Closing Argument
Next, Bogart contends that his counsel was ineffective during closing
arguments because he “appear[ed] to be arguing for the State.” But the excerpts
from the argument on which he relies have been taken out of context and were an
appropriate explanation of the law that applied to the case.
During closing argument, defense counsel used a flow chart to explain the
jury instructions and applicable law. He addressed each question the jury had to
answer and how it might approach the instructions and evidence to answer each
question. For example, when assessing the assault charge, counsel argued
[T]his is the question, did Mr. Bogart intend to inflict bodily
injury upon Mr. LeMoigne? If you think he did not, if you think that
shot was meant not to inflict bodily injury, he was not trying to hurt
him, then you must find him not guilty, because there is no intent to
inflict bodily injury. . . .
If you decide that he did intend to inflict bodily harm, then you
have to ask yourself self defense questions. . . . Do you believe that
Mr. Bogart reasonably believed that Mr. LeMoigne was backing up
his car toward him and that he was about to be injured?
So if you believe that he did not believe that, that sounds a
little odd to say, but if after looking at all the evidence the State has
proven to you that he does not have that belief, you must find him
guilty.
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No. 82256-0-I/23
Schwarz continued to explain the law in this fashion, arguing that each instruction
created a question the jury had to answer. Counsel explained that, based on how
it answered each question, the jury would have to find Bogart guilty or not guilty.
Bogart highlights several passages of this lengthy closing argument and
contends that Schwarz appears to be arguing for the State and encouraging the
jury to find him guilty. This assertion takes defense counsel’s closing argument
out of context.
When considered in the context of argument as a whole, it is clear that
Schwarz did not argue that the jury should find his client guilty, but merely
explained the law governing their decision. Schwarz’s closing argument was an
accurate explanation of the law likely intended to further the jury’s understanding
of the jury instructions and to facilitate its deliberations. Furthermore, the totality
of defense counsel’s closing argument shows that Schwarz zealously encouraged
the jury to acquit Bogart of first degree assault. After laying out the legal
framework, Schwarz argued at length that the evidence precluded a finding of
guilty. He argued that the evidence demonstrated Bogart’s fear for his life and his
lack of intention to inflict harm on LeMoigne and that, because of this, the jury
should find him not guilty.
Because counsel merely explained the law to the jury before arguing that it
should find Bogart not guilty, Bogart cannot show that his counsel’s performance
was deficient. Therefore, counsel was not ineffective.
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No. 82256-0-I/24
Failure to Challenge Evidence
Finally, Bogart argues his trial counsel was ineffective for failing to challenge
evidence of damage to LeMoigne’s vehicle. He argues his counsel’s performance
was deficient because the evidence relating to the bullet damage to LeMoigne’s
car lacked proper foundation or was otherwise irrelevant.
Bogart first argues that the “entirety of th[e] line of testimony and evidence”
regarding the firearm damage to LeMoigne’s vehicle was irrelevant because there
was no evidence to connect the mark on the car to any weapon Bogart possessed.
He argues that evidence that the damage to LeMoigne’s vehicle was caused by a
bullet is only relevant if the State can connect the damage to Bogart’s actions.
But the evidence of firearm damage was relevant to an element of the
crime—whether Bogart used a firearm to assault LeMoigne with the intent to do
great bodily harm. LeMoigne testified—and Bogart admitted—that Bogart fired
several bullets at LeMoigne as he drove away. LeMoigne testified that the damage
was not there prior to the assault. When police arrested Bogart later that day, he
had two firearms—a shotgun and a .22 caliber revolver—and ammunition to use
them in his vehicle. At trial, Bogart admitted that he used the revolver in the assault
and contended that his use of the revolver, rather than the shotgun, demonstrated
that he did not intend to hurt LeMoigne. The bullet damage demonstrates both
that a firearm was used in the actual assault and that it was aimed at LeMoigne,
supporting the State’s position that Bogart intended to do harm. Because this
evidence was relevant, it was not deficient for trial counsel not to challenge its
admission.
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No. 82256-0-I/25
In the same vein, Bogart challenges that the testimony of Deputy Steve
Dosch, 7 regarding bullet damage to LeMoigne’s car, arguing he lacked the
requisite knowledge or expertise to opine that the mark on the car came from a
bullet. Dosch, a retired Snohomish County Sheriff’s Deputy with 24 years of
experience, testified that he examined the car while interviewing LeMoigne
regarding the shooting incident and LeMoigne showed him what he described as
a bullet graze mark on the side of the car. He took photographs of the mark and
testified that, although he had not had advanced forensic training, his common
sense told him that it “appears that that [mark] could be consistent with a bullet
strike grazing a car.” He further opined that
[I]t looks like the bullet would have—assuming it was a bullet, it
looked like a shotgun of some sort came from the rear of the vehicle,
hit the vehicle causing the dent and then skipping where you see the
missing paint and just traveling forward toward the front of the car.
That’s what it appeared.
Counsel did not object to this testimony.
But the decision whether and when to object to trial testimony is a “classic
example[] of trial tactics.” State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541(2019). A reviewing court presumes that a “failure to object was the product of
legitimate trial strategy or tactics.” State v. Johnston, 143 Wn. App. 1, 20, 177
P.3d 1127 (2007).
Bogart cannot demonstrate that the decision not to challenge Dosch’s
testimony was anything other than a considered trial tactic. LeMoigne testified
7In his petition, Bogart contends Deputy Lucas Robinson testified as to the bullet damage to
LeMoigne’s vehicle. However, the testimony that Bogart argues was inadmissible was given by
Deputy Steve Dosch.
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No. 82256-0-I/26
Bogart shot at him as he was driving away. The State called Greg Frank, a forensic
scientist with the Washington State Patrol Crime Lab to confirm that the mark on
LeMoigne’s car most likely came from a bullet. He opined that “visually [the mark]
is consistent with what I would have seen in other cases as a—from a ricochet on
a vehicle, a bullet ricochet on a vehicle.” Dosch’s testimony was consistent with
the testimony of Bogart, LeMoigne and Frank.
It is not only conceivable but highly probable that defense counsel
strategically chose not to challenge Dosch’s testimony that the mark on
LeMoigne’s car came from a bullet from Bogart’s gun, given the defense theory
that Bogart did in fact shoot at LeMoigne but did so in self-defense. Counsel likely
decided that it would waste time and confuse the jury to challenge evidence from
Dosch that was simply cumulative of that provided by other witnesses, or to
challenge evidence that Bogart shot at LeMoigne when Bogart planned to admit
he did so. Bogart has not demonstrated that the failure to object to Dosch’s
testimony constitutes ineffective assistance of counsel.
F. Ineffective Assistance of Appellate Counsel
Bogart further asserts that he received ineffective assistance of counsel on
appeal. We can identify no basis for this claim.
A criminal defendant has a right to have effective assistance of counsel on
an appeal of right. In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 787, 100 P.3d
279 (2004) (citing Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed. 2d
821 (1985)). A petitioner must show that “ʻthe legal issue that appellate counsel
failed to raise had merit’” and that they were “ʻactually prejudiced by the appellate
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No. 82256-0-I/27
counsel’s failure to raise the issue.’” In re Pers. Restraint of Meredith, 191 Wn.2d
300, 308, 422 P.3d 458 (2018) (quoting Dalluge, 152 Wn.2d at 777-78). To
establish prejudice, the petitioner must show a reasonable probability that, but for
his counsel’s unreasonable failure to raise an issue, he would have prevailed on
his appeal. Id.Bogart has not established that the issues raised in this petition were
meritorious or that he would have prevailed in reversing his conviction or sentence
had they been advanced on direct appeal. He has not demonstrated any
ineffective assistance of appellate counsel.
G. Cumulative Error
Finally, Bogart argues that the cumulative effect of the challenged errors
deprived him of his right to a fair trial. The cumulative error doctrine requires
reversal when the combined effect of several errors denies the defendant a fair
trial. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). “The doctrine
does not apply where the errors are few and have little or no effect on the outcome
of the trial.” Id. Because Bogart cannot show that multiple errors deprived him his
right to fair trial, his cumulative error claim fails.
We deny Bogart’s petition.
WE CONCUR:
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