State Of Washington, Resp. v. Derrick A. Kolanowski, App. ( 2017 )


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  •       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,                                  No. 73703-1-1
    t—     vu
    Respondent,                      DIVISION ONE
    c-.}
    v.
    DERRICK ALLEN KOLANOWSKI,                             UNPUBLISHED
    Appellant.                       FILED: January 30. 2017
    Cox, J. — Derrick Kolanowski appeals his conviction for rape and unlawful
    imprisonment. Because he fails in his burden to overcome the presumption that
    his trial counsel was effective, we reject his ineffective assistance of counsel
    claim. We affirm.
    On the night of February 7, 2014, Kolanowski arranged through his
    acquaintance Tim Powell to buy marijuana from a woman named S.W.-H.
    Powell and S.W.-H were roommates at the time. Powell told Kolanowski to stop
    by the trailer where S.W.-H. and Powell lived for the sale.
    Later that night, a man arrived at the trailer around 10:30 or 11:00 p.m.
    S.W.-H. was alone at the time. She let him in and sold him the marijuana. The
    man did not leave despite her repeated requests for him to do so. Instead, he
    sat down at a table and smoked the marijuana. He also offered to pay S.W.-H.
    for sex. S.W.-H. repeatedly refused.
    No. 73703-1-1/2
    When the man finally arose to leave, he claimed to have trouble opening
    the door. When S.W.-H. went to assist him, the man placed her in a chokehold
    and punched her when she resisted. S.W.-H. continued to struggle with the
    assailant. Nevertheless, he sexually assaulted her and repeated his sexual
    assaults overnight until sometime the next morning. He left the scene around
    8:00 or 8:30 a.m. the next morning.
    S.W.-H. went to the hospital that morning, where police responded to her
    report of the sexual assaults. Police investigated the matter, interviewing S.W.-H
    and others. Police also gathered evidence from the crime scene.
    Based on this investigation, police arrested Kolanowski at his workplace.
    At the time of his arrest, he was wearing a black sweatshirt. Police seized this
    sweatshirt as evidence, and a crime lab tested it for DNA.
    The State charged Kolanowski with rape in the second degree and
    unlawful imprisonment of S.W.-H., allegedly occurring on or about February 8,
    2014. His primary defense at trial was identity, claiming he was elsewhere at the
    time of the crimes. He also maintained that the blood on his sweatshirt at the
    time of his arrest was due to injury at work. A jury convicted him as charged.
    Kolanowski appeals.
    INEFFECTIVE ASSISTANCE OF COUNSEL
    Kolanowski argues that he was denied effective assistance of trial counsel
    on two grounds. First, he argues his counsel failed to authenticate extrinsic
    impeachment evidence. Second, he argues his counsel failed to object to
    No. 73703-1-1/3
    inadmissible DNA "match" testimony. We hold that he fails to meet his burden to
    show counsel was ineffective in either respect.
    The Sixth Amendment to the United States Constitution guarantees a
    criminal defendant's right to not only counsel, but to counsel whose assistance is
    effective.1 The Washington Constitution provides an analogous right in article 1,
    section 33.2 The United States Supreme Court explained in Strickland v.
    Washington that the benchmark of this right is "whether counsel's conduct so
    undermined the proper functioning of the adversarial process that the trial cannot
    be relied on as having produced a just result."3
    The defendant demonstrates the ineffectiveness of his counsel by meeting
    a two-part burden. He must first show that counsel's performance was
    unreasonably ineffective and, second, that such ineffectiveness prejudiced the
    results of his case.4 Because he must meet both elements, the court need not
    address both ifeither is found wanting.5
    The defendant shows that his counsel's representation "fell below an
    objective standard of reasonableness" based on the relevant circumstances and
    the "prevailing professional norms."6 So long as the representation was
    1 Strickland v. Washington, 
    466 U.S. 668
    , 686, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674 (1984).
    2 State v. Benn, 
    120 Wash. 2d 631
    , 663, 
    845 P.2d 289
    (1993).
    3 
    466 U.S. 668
    , 686, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674 (1984).
    4 Id, at 687.
    5 id, at 697.
    6 
    Id. at 688.
    No. 73703-1-1/4
    reasonable, this court should neither "interfere with the constitutionally protected
    independence of counsel [nor] restrict the wide latitude counsel must have in
    making tactical decisions."7 Thus, this court conducts this inquiry "from counsel's
    perspective at the time" of trial and must strongly presume that counsel's conduct
    was reasonably effective.8 The defendant can overcome that presumption by
    showing "there is no conceivable legitimate tactic explaining counsel's
    performance."9 But the defendant must show this or any other deficiency based
    on the record established in the proceedings below.10
    The defendant seeking to overturn his conviction must also show a
    "reasonable probability that, absent the errors, the factfinder would have had a
    reasonable doubt respecting guilt."11 The defendant need not show that he
    would more likely have been acquitted than not absent the relevant error.12 He
    must also show that that probability was "substantial, not just conceivable."13
    Again, he must do so based on the record below.14
    7 id at 689.
    8 Id,; see also State v. McFarland, 
    127 Wash. 2d 322
    , 337, 
    899 P.2d 1251
    (1995).
    9 State v. Carson. 
    184 Wash. 2d 207
    , 218, 
    357 P.3d 1064
    (2015).
    10 
    McFarland. 127 Wash. 2d at 337
    .
    11 
    Strickland. 466 U.S. at 695
    .
    12 id, at 693.
    
    13 Harrington v
    . Richter. 
    562 U.S. 86
    . 112, 
    131 S. Ct. 770
    , 178 L.Ed. 2d
    624(2011).
    14 
    McFarland, 127 Wash. 2d at 337
    .
    No. 73703-1-1/5
    Determining whether counsel provided ineffective assistance is a mixed
    question of law and fact.15 We review de novo whether a defendant received
    ineffective assistance of counsel.16
    Authenticating Extrinsic Impeachment Evidence
    Kolanowski first argues that his trial counsel's failure to secure a witness
    to authenticate a screenshot of a Facebook post allegedly made at the time of
    the rape was deficient performance. Specifically, he claims this evidence would
    have impeached S.W.-H.'s credibility by showing she had access to her phone
    and was not within her attacker's grasp at the time of the sexual assaults. We
    hold that this record fails to support the claim that counsel's performance was
    deficient.
    The issue is whether counsel's failure to secure a witness to authenticate
    the time stamp on a March 2015 screenshot of a Facebook page was objectively
    unreasonable. In deciding this question, we are confined to the record on appeal
    in ascertaining the relevant facts.
    This record shows that S.W.-H testified at trial that she was unable to
    contact anyone outside her trailer during the sexual assaults of February 8, 2014.
    That was because she was not close to her phone. She also testified that she
    could not escape from the assailant because he held her down.
    During pretrial motions, the State sought to exclude Facebook records that
    lacked foundation. Counsel for Kolanowski sought to admit a March 2015
    15 State v. Jones, 
    183 Wash. 2d 327
    , 338, 
    352 P.3d 776
    (2015).
    16 id,; State v. Cross. 
    156 Wash. 2d 580
    , 605, 
    132 P.3d 80
    (2006).
    No. 73703-1-1/6
    screenshot of what purported to be a 2:49 a.m., February 8, 2014 record. The
    record was purported to be a "liking [by S.W.-H of] a photograph of—posted by
    [her]—[a] friend of a football player in a tutu." The relevance of this post was to
    undercut the credibility of S.W.-H's testimony that she did not have access to her
    phone at 2:49 a.m. on February 8, 2014.
    The focus of the arguments centered on the foundation required to prove
    that the 2:49 a.m. time shown on the March 2015 screenshot was the same time
    S.W.-H's device liked the posting by her friend on February 8, 2014.
    The parties appeared to acknowledge that Facebook has a privacy policy
    disallowing access to its records other than by duly authorized law enforcement
    officers. A Facebook website sets forth the protocols for this option. Thus, it
    appears that counsel, as opposed to law enforcement officers, could not pursue
    this option.
    The discussion moved to another option, a judicial subpoena issued by
    the trial court. But it appears that Facebook, headquartered in California, could
    ignore or delay responding to a subpoena issued by a Washington trial court.
    Counsel established that he timely sought the cooperation of the State in
    pursuing information from Facebook before trial. But this was without success
    because the law enforcement officer tasked with serving the subpoena never did
    so. The trial court then ordered the State to put counsel in contact with someone
    who knew what needed to be done to obtain information from Facebook.
    Nothing in this record shows what took place in response to this directive. We
    decline to speculate about what took place after the court's directive to the State.
    No. 73703-1-1/7
    We also decline to speculate what a successful inquiry of Facebook would have
    shown on the authentication issue of timing.
    Near the end of the presentation of witnesses, counsel indicated he would
    explore the possibility of having his investigator testify about her experience with
    Facebook posts. However, no such testimony followed. We must presume
    counsel decided that such testimony would not be helpful.
    During closing argument, neither side addressed this Facebook issue.
    Rather, counsel for Kolanowski focused on other challenges to the victim's
    credibility.
    It is clear from our review of this record on appeal that counsel sought
    admission of the March 2015 screenshot to undermine S.W.-H's testimony about
    her inability to obtain access to her phone because her assailant held her down
    during the sexual assaults of February 8, 2014. If she "liked" a post at 2:49 a.m.
    on that date, the time stamp on the screenshot could have been relevant to her
    credibility.
    But there is neither evidence of what authentication evidence of timing
    would prove or what more counsel could have done to obtain this authentication
    evidence under the circumstances. In sum, on this record, Kolanowski fails in his
    burden to overcome the presumption that counsel provided effective assistance.
    He has failed to show counsel's performance was not objectively reasonable.
    The cases Kolanowski cites confirm this conclusion. State v. Thomas17 is
    instructive. In that case, defense counsel had called a witness to offer expert
    17 
    109 Wash. 2d 222
    , 229-30, 
    743 P.2d 816
    (1987).
    No. 73703-1-1/8
    testimony showing that Kerry Thomas could not have formed the intent
    necessary to sustain her conviction.18 The trial court declined to qualify the
    proffered expert because she was only a trainee in her profession.19 The
    verbatim transcript from the trial, quoted at length in the opinion, "demonstrate[d]
    that defense counsel was unaware of his 'expert's' lack of qualifications."20 The
    supreme court characterized this as a "fail[ure] to conduct appropriate
    investigations" rather than a strategic choice.21
    Division Two of this court considered the related question whether a
    defense attorney acts unreasonably when she fails to satisfy the procedural
    requirements to admit crucial evidence in State v. Horton.22 Thomas Horton had
    been convicted of raping and molesting a child.23 A mandated reporter had
    informed Child Protective Services (CPS) that the child, S.S., might be a victim of
    abuse.24 A doctor with CPS found penetrating trauma to S.S.'s hymen.25 But
    S.S. gave conflicting accounts to the doctor and a forensic investigator on the
    cause of that trauma.26 S.S. told the investigator she had been having sexual
    18 id,
    19 Id, at 229.
    20 id, at 231.
    21 id, at 230.
    22 
    116 Wash. App. 909
    , 
    68 P.3d 1145
    (2003).
    23 id, at 910.
    24 id, at 911.
    25 Id,
    26 id,
    8
    No. 73703-1-1/9
    intercourse with a boy other than the defendant.27 She also told the doctor that
    Horton had sexually abused her and that she had not been sexually active with
    anyone else.28 The record in the case evidenced the precise content of these
    inconsistent statements.29
    Confronted with these conflicting accounts, CPS concluded that the
    allegations were unfounded.30 But the State charged Horton with rape and child
    molestation. During cross-examination at trial, Horton's attorney asked S.S. if
    she had engaged in sexual activity with anyone beside Horton.31 S.S. answered
    no, and defense counsel did not challenge her response.32
    Later, defense counsel attempted to call the forensic investigator and
    S.S.'s childhood friend so that they might relate S.S.'s statements about sexual
    activity with her boyfriend.33 But counsel did not comply with ER 613(b) because
    he failed to give S.S. "an opportunity to explain or deny her pretrial statements by
    calling them to [her] attention while [she] was on the stand, or by arranging for
    27 id, at 913.
    28 id, at 911.
    29 id, at 913
    30 id, at 911.
    31 id, at 913.
    32 id,
    33 
    Id. at 914.
    No. 73703-1-1/10
    [her] to remain in attendance after testifying."34 On this basis, the trial court
    excluded the testimony.35 The jury found Horton guilty.36
    Horton appealed, arguing that his counsel had rendered deficient
    assistance by failing to provide a proper foundation for the admission of S.S.'s
    prior inconsistent statements.37 Division Two of this court agreed, concluding
    that the record provided no suggestion that counsel's non-compliance with ER
    613(b) supported some "strategy or tactic designed to further [Horton's]
    interests."38 Instead, the court observed that counsel had sought to impeach
    S.S.'s testimony with extrinsic evidence but had failed to lay the proper
    foundation.39 The court concluded that procedural non-compliance "was entirely
    to Horton's detriment; that compliance with ER 613(b) would have been only to
    his benefit."40
    The Horton court discussed two cases in the Indiana Court of Appeals,
    Ellvson v. State41 and Wright v. State.42 In the first, the trial court had convicted
    34 id, at 916.
    35 id, at 914.
    36 id, at 912.
    37 id,
    38 id, at 917.
    39 id, at 916-17.
    40 id,
    41 id, at 923; Ellvson v. State, 
    603 N.E.2d 1369
    , 1371 (1992).
    42 
    581 N.E.2d 978
    (1991).
    10
    No. 73703-1-1/11
    Matthew Ellyson of raping his wife and burglarizing her home.43 The case record
    indicated that when authorities conducted rape exams soon after the alleged
    incident, they found the results "negative as to sexual intercourse that evening."44
    Defense counsel attempted to introduce the exam results during the state
    investigator's testimony at trial but failed to do so.45
    On appeal, Ellyson argued that his attorney had acted incompetently by
    failing to "produce the witnesses necessary to authenticate and show the
    relevancy of" the rape exams.46 The reviewing court rejected the notion that
    such failure was "merely the result of poor strategy or bad tactics."47 Rather, the
    decision to introduce the rape exam results was itself a "valid strategic decision"
    but one executed ineffectively.48 That "gaffe" in execution rendered the
    assistance of counsel objectively unreasonable.49
    In Wright, the second Indiana case, the state charged Russell Wright with
    child molestation.50 At trial, defense attempted to call a witness to testify to
    statements given by the victim, inconsistent with her allegations of molestation.51
    43 Ellvson, 
    603 N.E.2d 1369
    .
    44 id, at 1372.
    45 id,
    46 id, at 1373.
    47 Jd, at 1374.
    48 id,
    49 id, at 1374-75.
    50 581 N.E.2dat978.
    51 
    Id. at 979.
    11
    No. 73703-1-1/12
    But, as in Horton, the trial court excluded this testimony because defense
    counsel had failed to first cross-examine the witness as to these statements.52
    Defense counsel made an offer to prove at which time the witness testified that
    the victim had admitted to fabricating her accusation.53 Reversing the conviction,
    the appellate court characterized defense counsel's failure to comply with
    procedure as a "blunder[]."54
    In all these cases, the reviewing court had a record clearly establishing
    what the relevant evidence would show, such as the results of the rape exam in
    Ellyson or the contents of the offered testimony in the other cases. In all, the
    defense counsel actually acted to introduce the relevant evidence at trial, rather
    than merely discussing its possible admission with the court. In each, defense
    counsel failed to act in an objectively reasonable way that led to exclusion of the
    evidence.
    This case is different. Authentication of the Facebook timestamp was at
    issue. Without proper authentication the post was not relevant to the victim's
    credibility. But we simply cannot determine from this record what evidence the
    timestamp would have provided.
    Moreover, this record does not show any unreasonable failure to gain
    admission of the evidence. Rather, this record shows that counsel took
    reasonable steps to gain admission of the evidence. In observing the
    52 id,
    53 JdL at 979-80.
    54 
    Id. at 980.
    12
    No. 73703-1-1/13
    presumption of effective assistance of counsel, we cannot discount that counsel
    may have ultimately decided that authentication of the Facebook record would
    not have advanced the defense case. In short, Kolanowski has failed in his
    burden to show deficient performance of counsel. Accordingly, we need not
    reach the other prong of the test: prejudice.
    DNA "Match" Testimony
    Kolanowski next argues that his trial counsel was ineffective for failing to
    object when a forensic scientist for the State testified that the blood on
    Kolanowski's sweatshirt cuff "matched" Kolanowski's blood sample. Specifically,
    he contends this evidence was inadmissible without the scientist also providing a
    probability estimate. We hold that he has failed to overcome the presumption
    that counsel was effective.
    "[W]here the defendant claims ineffective assistance based on counsel's
    failure to challenge the admission of evidence," we apply a modified three-part
    version of the Strickland test.55 Under this test:
    the defendant must show (1) an absence of legitimate strategic or
    tactical reasons supporting the challenged conduct, (2) that an
    objection to the evidence would likely have been sustained, and (3)
    that the result of the trial would have been different had the
    evidence not been admitted.1561
    The first element is at issue here. Megan Inslee, a forensic scientist from
    the State's crime lab, testified to DNA testing done on various items of evidence
    55 State v. Saunders. 
    91 Wash. App. 575
    , 578, 
    958 P.2d 364
    (1998) (internal
    citations omitted); see State v. Hendrickson. 
    129 Wash. 2d 61
    , 80, 
    917 P.2d 563
    (1996); 
    McFarland. 127 Wash. 2d at 336-37
    .
    56 id,
    13
    No. 73703-1-1/14
    collected by police during their investigation of the crimes. For certain tests, she
    testified both to whether there was a "match" between items tested and known
    blood samples and the probability estimates whether the same genetic profile
    would appear in the population. But neither her testimony nor her lab report
    included a probability estimate for the DNA test on the blood sample found on
    Kolanowski's sweatshirt that he was wearing at the time of arrest. Kolanowski
    argues that counsel either should have objected to this incomplete testimony or
    moved to exclude it once this witness testified. He argues the failure to do so
    was objectively unreasonable. We disagree.
    Whether and when to object are classic examples of trial strategy.57 Thus,
    the issue is whether counsel had any "legitimate strategic or tactical reason[]" for
    failing to seek exclusion of the "match" testimony.58
    The State correctly argues that counsel may have determined it strategic
    to let the DNA evidence of a match to Kolanowski to go unchallenged so the jury
    would believe that the blood on the sweatshirt was Kolanowski's. This is
    consistent with the defense's theory that Kolanowski injured himself at work.
    This also fits within the defense of identity, attempting to place Kolanowski
    elsewhere at the time of the crimes.
    Had counsel objected based on the incomplete evidence, it is likely the
    court would have sustained the objection based on the controlling law that
    Kolanowski cites in this appeal. Because the forensic scientist had already
    57 See State v. Madison. 
    53 Wash. App. 754
    , 763, 
    770 P.2d 662
    (1989).
    58 
    McFarland. 127 Wash. 2d at 336
    .
    14
    No. 73703-1-1/15
    testified to probability estimates for the other DNA tests, there is no reason to
    believe that she could not have also provided the missing evidence for the DNA
    test on Kolanowski's sweatshirt. Thus, an objection was unlikely to have
    advanced the defense case.
    Alternatively, in the unlikely event that the court would have admitted the
    evidence without the probability estimate after a proper objection, the jury could
    have concluded that the blood was S.W.-H.'s. That would have been highly
    prejudicial to the defense, as there was no other DNA evidence definitively
    linking Kolanowski to the victim.
    Kolanowski counters that the trial court might have excluded all of Inslee's
    testimony regarding the blood. For the reasons we already discussed, that was
    highly unlikely, on this record.
    In sum, Kolanowski fails to meet his burden under the first prong of the
    controlling test to show the absence of legitimate strategic or tactical reason for
    counsel's choice not to exclude the incomplete evidence in this case.
    Having failed to meet the first prong of the three part test, we need not
    consider the remaining prongs of Kolanowski's claim. He has failed to overcome
    the presumption of effective assistance of counsel.
    COSTS
    Kolanowski argues that the court should decline to award the State
    appellate costs should he not prevail. We agree.
    15
    No. 73703-1-1/16
    RCW 10.73.160(1) gives appellate courts discretion to decline to impose
    appellate costs on appeal.59 Under State v. Sinclair, there is a presumption that
    indigency continues unless the record shows otherwise.60
    Here, the trial court found Kolanowski "unable by reason of poverty to pay
    for any of the expenses of appellate review." Kolanowski's conviction,
    incarceration, and resultant loss of meaningful income make him further unable
    to pay such costs and expenses. Nothing in this record overcomes the
    presumption of Kolanowski's indigence. Thus, an award to the State for
    appellate costs is inappropriate under these circumstances.
    The State cites numerous cases in rebuttal but none are persuasive. In all
    three cases, the defendants challenged the constitutionality of cost statutes.61
    Two of these cases concerned the imposition of mandatory and not discretionary
    fees in cases where the defendant had failed to show his indigence.62
    Here, Kolanowski proved his indigency as the trial court found in its order
    of indigency. He does not challenge the constitutionality of a cost statute but
    merely argues that this court should use its statutory discretion to decline an
    award of costs. We do so.
    59 State v. Nolan, 
    141 Wash. 2d 620
    , 629, 
    8 P.3d 300
    (2000).
    60 
    192 Wash. App. 380
    , 393, 
    367 P.3d 612
    (2016).
    61 State v. Blank, 
    131 Wash. 2d 230
    , 233, 
    930 P.2d 1213
    (1997); State v.
    Shelton, 
    194 Wash. App. 660
    , 666, 
    378 P.3d 230
    (2016); State v. Stoddard, 
    192 Wash. App. 222
    , 226, 
    366 P.3d 474
    (2016).
    62 
    Shelton, 131 Wash. App. at 669
    ; 
    Stoddard. 192 Wash. App. at 225
    .
    16
    No. 73703-1-1/17
    We affirm the judgment and sentence. We also deny costs of appeal to
    the State.
    Cc&cs-
    WE CONCUR:
    ^&»v*tk ,cy
    17