State Of Washington, V David William Carson ( 2014 )

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209 MAR 13 AM IP:, l I
STATE
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43359- 1- 11
Respondent,
rW4
DAVID WILLIAM CARSON, PUBLISHED OPINION
HUNT, J. — David William Carson appeals his jury trial convictions for three counts of
first degree child molestation. He argues that ( 1) the trial court violated his right to a unanimous
Petrichl
jury verdict by failing to provide a unanimity instruction, ( 2) his trial counsel provided
ineffective assistance in successfully opposing the trial court' s giving a Petrich unanimity
instruction, and ( 3) the trial court violated his right to a public trial by sealing the. jury
2
questionnaires without a Bone -Club hearing. In a Statement of Additional Grounds for Review
SAG), Carson further asserts that ( 1) inconsistent testimony during the child hearsay hearing
1
State v. Petrich, 101 Wash. 2d 566, 572, 683 P.2d 173 ( 1984), overruled on other grounds by
State v. Kitchen, 110 Wash. 2d 403, 405 -06, 756 P.2d 105 ( 1988).
2
State v. Bone -Club, 128 Wash. 2d 254, 906 P.2d 325 ( 1995).
No. 43359 -1 - II
and the jury trial unfairly prejudiced him; and ( 2) there was another " David" whom the victim
mentioned in the child forensic interview, which suggests that Carson was not the perpetrator.
We hold that defense counsel' s objection to a Petrich jury instruction, if error, was invited and
that it did not constitute ineffective assistance of counsel. We affirm.
FACTS
I. CHILD MOLESTATION
In 2009, David William Carson moved in with his friend DH, DH' s fiance —TH, and
their three children —C. M, and five- year -old CC. 3 In exchange for housing, Carson paid $250 a
month in rent, gave the family part of his food stamp allowance, performed household chores,
and watched the children while DH and TH worked.
In August 2010, TH was driving the children to a friend' s house when CC repeatedly
tried to get her attention. When TH responded, CC told her that Carson had " tried to put his
4
penis in his [ CC' s] butt" and that once Carson had put " string "5 on his hands and tape on his
mouth. TH stopped the car and called DH; she called the police when she arrived at her friend' s
house. After speaking with a police officer, TH scheduled a forensic interview for CC.
3
To provide some confidentiality in this case, we use initials in the body of the opinion to
identify the victim, victim' s family members, and other juveniles.
4 2 Report of Proceedings ( RP) at 164.
5 2 RP at 168. TH testified that the " string" CC refers to is a " zip -tie" of the type they used to fix
a recliner in their home.
No. 43359 -1 - II
On August 26, CC met with Cornelia Thomas, a forensic interviewer at Mary Bridge
Child Advocacy Center. During the interview, CC referred to Carson' s6 penis as " business" but
clarified that " business" meant " penis" by pointing to his private parts when Thomas asked him
to show her what " business" meant.7 CC detailed three occasions when Carson had tried to put
bottoms : (
his " business" in CC' s 1) when Carson tied CCs hands and put duct tape on his mouth
in TH' s room, ( 2) when Carson made CC look at a Spiderman blanket in CC' s bedroom, and ( 3)
9
when Carson twisted CC' s" business" in the bathroom.
Michele Breland, a nurse at Mary Bridge Children' s Hospital, later performed a medical
examination on CC, during which CC told her that Carson had tried to punch CC, had put his
business in [ CC' s] bottom," and had twisted CC' s penis. 4 Report of Proceedings ( RP) at 389.
The physical examination results were inconclusive about whether CC' s condition was indicative
of sexual assault.
6
CC initially referred to Carson as his " uncle. When Thomas asked what CC' s uncle' s name
was, CC replied it was " David" and clarified that he had another uncle, " Mulkins," who " doesn' t
do nothin' to me, he tried fights with me on Halo games." Pierce County Superior Court, Wash.,
Forensic Interview, State v. Carson, No. 10 -1- 04754 -1, ( Aug. 26, 2010), digital video recording
by Mary Bridge Child Advocacy, Center ( on file with Wash. Court of Appeals, Div. II, No.
43349 -1 - II) (Ex. 5), at 13 min., 56 sec. - 13 min., 57 sec.
7
Pierce County Superior Court, Wash., Forensic Interview, Ex. 5, supra, at 13 min., 55 sec. - 14
min., 3 sec.
8
In response to Thomas' s question about when Carson put his penis in CC' s bottom, CC initially
mentioned a fourth incident - in CC' s " new house." Pierce County Superior Court, Wash.,
Forensic Interview, Ex. 5, supra, at 13 min, 58 sec, 14 min, 12 sec. CC did not, however,
provide any detail about this fourth instance.
9 Pierce County Superior Court, Wash., Forensic Interview, Ex. 5, supra, at 13 min, 58 sec, 13
min., 55 sec.; 13 min., 59 sec.; 14 min., 3 sec.; 14 min., 19 sec.
3
No. 43359 -1 - II
Pierce County Sheriff' s Department Detective Thomas Catey investigated the alleged
abuse of CC. Carson voluntarily met Catey at the sheriff' s office and told Catey that ( 1) he had
moved out of DH and TH' s home after DH accused him of sleeping with TH, and ( 2) he believed
DH and TH had fabricated CC' s molestation story in retaliation for leaving their home and
placing them in a financial bind.
II. PROCEDURE
The State charged Carson with three counts of first degree child molestation. Carson
requested a jury trial.
A. Child Hearsay Hearing; Voir Dire
CC' s mother, TH, testified at a pretrial child hearsay hearing to determine the
admissibility of CC' s statements to her the first time CC told her about Carson. She related CC' s
statements that Carson had tried to sodomize him and had once had taped CC' s mouth and tied
his hands. The trial court later ruled these child hearsay statements admissible.
After the jurors filled out questionnaires, the trial court conducted voir dire. Based on the
completed questionnaires, both counsel decided which jurors to excuse and which jurors to
10
question individually.
B. Trial Testimony
At trial, CC identified Carson as " Uncle David," who had lived with his ( CC' s) family. 2
RP at 103. CC testified that Carson had touched his ( CC' s) bottom with his ( Carson' s)
io
The parties did not designate the jury voir dire as part of the record on appeal. Thus, the
record before us fails to show that voir dire did not occur in open court.
I
No. 43359 -1 - II
11 12;
business " in DH' s office, " where his computer games are" in CC' s room; in the bathroom;
in his mother' s room; and in his dad' s " old room "; CC also described an incident in his mother' s
room when Carson had tied CC' s hands with plastic strings and put duct tape on CC' s mouth.
On cross -examination, CC testified that he did not remember Carson having touched his ( CC' s)
13
business" at all. 2 RP at 126.
TH testified that ( 1) Carson lived with her family during the summer of 2009 and took
care of the children while she and DH worked; ( 2) the day before Memorial Day weekend 2010,
Carson moved out after an argument with DH; ( 3) on August 13, 2010, CC told her " that David
14
tried to put his penis in his [ CC' s] butt, " after putting " string "15 on CC' s hands and tape on his
mouth; and (4) after that day, CC did not want to get dressed in front of family members, stopped
leaving the restroom door open, and became more aggressive. Detective Catey testified that
Carson told him he had moved out of TH' s home after DH accused him of sleeping with TH,
denied any sexual contact with CC, and believed DH and TH had fabricated CC' s molestation
story in retaliation for his leaving them in a financial bind.
11
CC clarified that " business" is "[ s] omething that you use to go to the bathroom" and that he
did know any other name for " business."
not 2 RP at 105. CC testified that Carson' s " business"
never went inside his bottom. 2 RP at 111.
122RPat109.
13 Much of CC' s trial testimony was inconsistent and confusing.
142RPat164.
2 RP at 168.
5
No. 43359 -1 - II
Child forensic interviewer Thomas testified that she had recorded her August 26, 2010
interview with CC approximately two weeks after CC' s disclosure to TH. During this interview,
CC disclosed a twisting of his " business" ( which he later identified as a penis by pointing to that
area of his body); a time when he was duct taped, had his hands tied with plastic string, and had a
penis " going into his bottom "; and identified Carson as the perpetrator. 3 RP at 218. The trial
court admitted into evidence CC' s hearsay statements to Thomas and the DVD ( digital video
disk) recording of this interview, , hich Thomas had labeled with her initials; the jury viewed
w
this DVD during trial.
Carson testified that he had known DH since 1996 and had moved in with DH and TH in
2009 after Carson had an altercation with his brother. Carson mentioned an agreement that he
would pay TH and DH rent, give them $ 150 of his food stamps, and watch the children. Carson
also mentioned that DH owned pornography and that he ( Carson) had caught CC watching
pornography once. Carson further testified that in May 2010, DH accused him of sleeping with
TH, which prompted Carson to move out, which then upset DH and TH because they had no one
to watch their children. - Carson denied bathing the children, helping CC in the bathroom,
touching CC' s penis, tying up CC, or having access to zip -ties.
Mary Bridge Children' s Hospital nurse Breland testified that when she performed a
physical examination of CC on August 26, 2010, CC had asked her whether she was going to
check his " business" ( pointing to his penis) and told her that Carson had tried to punch him and
put " his business in [ CC' s] bottom," which made him feel like he had to " poop," and that Carson
had tried to twist CC' s" business." 4 RP at 390, 389, 391. Breland found no sign of trauma and
nothing unusual on CC' s penis and testicles; his anus appeared normal. Based on CC' s physical
No. 43359 -1 - II
examination, Breland could not conclusively say that CC' s condition was indicative of sexual
assault.
C. Jury Instructions
The trial court and counsel discussed whether to give a Petrich jury instruction. The
State had included in its proposed jury instructions the following Petrich instruction:
To convict the defendant on any count of Child Molestation in the First
Degree, one particular act of Child Molestation in the First Degree must be
proved beyond a reasonable doubt, and you must unanimously agree as to which
act has been proved. You need not unanimously agree that the defendant
committed all the acts of Child Molestation in the First Degree.
Clerk' s Papers ( CP) at 38 ( Jury Instruction 3).
Carson' s counsel, however, explained that he had purposefully not proposed a Petrich
instruction because he did not think one was necessary for the three "separate and distinct
incidents at hand. Instead, he believed that ( 1) a Petrich instruction was required only when the
child talks about five or six incidents and just one is charged; and ( 2) more importantly, a Petrich
instruction would confuse the jury. The next day, Carson' s counsel reiterated that he had
deliberately omitted a Petrich instruction from his proposed instructions because he saw no need
for one and a Petrich instruction " becomes a problem" because it would " confuse the heck out of
this jury" and potentially mislead the jury. 4 RP' at 405, 406.
When the trial court asked Carson' s counsel if he was objecting to giving a Petrich
instruction, he responded in the affirmative. When the trial court asked if Carson' s counsel
WPIC16
objected to 4. 25 ( the " Petrich instruction "), he replied, " I think it' s confusing, yes." 4
16
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4. 25, at
110 ( 3d. ed. 2008) ( WPIC).
7
No. 43359 -1 - II
RP at 408. The trial court then asked whether Carson' s counsel thought it would be error to give
a Petrich instruction, to which he responded, " I do." 4 RP at 409. Based on defense counsel' s
strong, repeated objections, the trial court did not give the jury a Petrich instruction.
The trial court did, however, instruct the jury that its verdict must be unanimous:
As jurors, you have a duty to discuss the case with one another and to
deliberate in an effort to reach a unanimous verdict. Each of you must decide the
case for yourself, but only after you consider the evidence impartially with your
fellow jurors. During your deliberations, you should not hesitate to re- examine
your own views and to change your opinion based upon further review of the
evidence and these instructions. You should not, however, surrender your honest
belief about the value or significance of evidence solely because of the opinions
of your fellow jurors. Nor should you change your mind just for the purpose of
reaching a verdict.
CP at 72 ( Jury Instruction 12). The trial court further instructed the jury: " A separate crime is
charged in each count. You must decide each count separately. Your verdict on one count
should' not control your verdict on any other count." CP at 63 ( Jury Instruction 3).
The trial court also gave the jury a separate " to convict" instruction for each of the three
charged counts, listing the following elements of child molestation that the State needed to prove
beyond a reasonable doubt:
To convict the defendant of the crime of child molestation in the first
degree as charged in Count I, [ II, III] each of the following elements of the crime
must be proved beyond a reasonable doubt:
1) That between the dates of April 1, 2009, and May 31, 2010, the
defendant had sexual contact with C. C.;
2) That C. C. was less than twelve years old at the time of the sexual
contact and was not married to the defendant and not in a state registered
domestic partnership with the defendant;
3) That C. C. was at least thirty - months younger than the defendant;
six
and
4) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
No. 43359 -1 - II
On the other hand, if, after weighing all the evidence you have reasonable
doubt as to any one of these elements, then it will be your duty to return a verdict
of not guilty.
CP at 67, 68, 69 ( Jury Instructions 7, 8, 9).
D. Closing Arguments; Verdict
During closing argument, the State focused on the evidence and distinguishing
characteristics of three distinct acts of child molestation that occurred on three different dates at
three separate locations: ( 1) the incident in the bathroom when Carson twisted CC' s " business,"
2) the incident in TH' s room when Carson tied CC' s hands and placed tape over his mouth, and
3) the incident in CC' s bedroom when Carson placed his penis in CC' s anus while making CC
look at a Spiderman blanket. 4 RP at 427 -30. The State also explained to the jury that despite
the evidence of several acts, it was asking the jury to focus on only three specific acts: Carson' s
twisting of CC' s penis as the first act and the incidents in TH' s room and CC' s bedroom as the
second and third acts:
STATE]: ... The allegations in this case are that the defendant placed his hand
and twisted, according to [ CC], his penis on one occasion while he was in the
bathroom....
CC], you' ll remember, described several different times the defendant tried
to put his penis in his bottom: In his room, in his mom' s room, in the office. He
described several different occasions.
Some he was able to describe with greater specificity than others, and
there' s two that the State is focusing on and would like you to focus on for
purposes ofyour deliberations, one that occurred in his room, and the instant one
that I' m referring to right now that occurred allegedly in his mother' s room.
4 RP at 424, 428 ( emphasis added).
During Carson' s closing argument, his counsel noted the State' s burden to prove its case
beyond a reasonable doubt; Carson' s learning disability and his resultant susceptibility to TH and
4
No. 43359 -1 - II
DH' s taking advantage of him; their coaching CC to accuse Carson of molestation, in revenge
for leaving them in a financial bind without a babysitter, household servant, and rent and food
contributor; and the weak merely circumstantial evidence of molestation. In support of his
argument to the jury to acquit, counsel stressed CC' s convoluted, contradictory, and " jumbled
mess" of "confusing" statements during the forensic interview and at trial. 4 RP at 454. During
deliberations, the jury followed defense counsel' s closing argument suggestion and asked to
review the DVD of Thomas' s forensic interview of CC, during which he had told her about the
same three molestation incidents on which the State had focused during its closing argument.
The jury found Carson guilty of all three counts. He appeals.
ANALYSIS
I. SEALED JURY QUESTIONNAIRES
Carson first argues that the trial court violated his right to a public trial by sealing the jury
questionnaires without first conducting a closure
courtroom - analysis under Bone -Club. As
Carson correctly notes in his reply brief, our Supreme Court recently held that the trial court' s
sealing of juror questionnaires without a Bone -Club analysis does not violate a defendant' s
public trial rights. See Reply Br. of Appellant at 3 ( citing State v. Beskurt, 176 Wash. 2d 441, 447,
17
293 P.3d 1159 ( 2013)). Finding Beskurt dispositive, we do not further address this issue.
17
As in Beskurt, the jury here completed the questionnaires before voir dire. Moreover, trial
counsel did not use the questionnaires as a substitute for voir dire, but instead used them as a
screening tool." See Beskurt, 176 Wash. 2d at 447.
10
No. 43359 -1 - II
II. PETRICH INSTRUCTION
Carson next challenges the trial court' s failure to give a Petrich instruction on two
grounds —( 1) such failure was reversible error, and ( 2) his defense counsel rendered ineffective
assistance in objecting to the trial court' s proposed giving such instruction. We hold that the
invited error doctrine bars Carson' s first challenge. See State v. Kyllo, 166 Wash. 2d 856, 861 -62,
215 P.3d 177 ( 2009). With respect to his second challenge, we hold that Carson fails to show
deficient performance and, therefore, fails to meet the test for ineffective assistance of counsel.
A. Invited Error
Carson first argues that the trial court violated his constitutional right to unanimous jury
18
verdicts by failing to give a Petrich instruction. The State responds that ( 1) a Petrich
instruction was not necessary because the prosecutor elected for the jury' s consideration three
distinct acts to support the three separate counts of child molestation, and ( 2) Carson invited the
error when he objected and asked the trial court not to give a Petrich instruction. We hold that
because Carson invited this claimed error, he cannot raise it on appeal.
The invited error doctrine is a strict rule that precludes a criminal defendant from seeking
appellate review of an error he helped create, even when the alleged error involves constitutional
rights. State v. Studd, 137 Wash. 2d 533, 546 -47, 973 P.2d 1049 ( 1999); State v. Henderson, 114
18 In Petrich our Supreme Court held,
When the evidence indicates that several distinct criminal acts have been
committed, but defendant is charged with only one count of criminal conduct, jury
unanimity must be protected. ... The State may, in its discretion, elect the act
upon which it will rely for conviction. ... When the State chooses not to elect,
this jury instruction must be given to ensure the jury' s understanding of the
unanimity requirement.
Petrich, 101 Wash. 2d at 572.
11
No. 43359 -1 - II
Wn.2d 867, 870 - 71, 792 P.2d 514 ( 1990) ( citing State v. Boyer, 91 Wash. 2d 342, 344 -45, 588 P.2d
1151 ( 1979)). This doctrine applies to alleged failures to provide a Petrich unanimity jury
instruction. For example, in State v. Corbett, 158 Wn. App. 576, 592, 242 P.3d 52 ( 2010), we
held that where the defendant proposed jury instructions that did not include a Petrich
instruction, the invited error doctrine precluded him from challenging on appeal for the first time
the trial court' s failure to provide a Petrich unanimity instruction:
Corbett argues that the trial court failed to instruct the jury that it must find
separate and distinct acts supporting each count and enter unanimous verdicts
based on these separate and distinct acts. Corbett requests that we vacate three of
his [ four] convictions on this But Corbett proposed the jury instructions
ground.
he now seeks to challenge[.] Accordingly, Corbett invited any error.
Corbett, 158 Wash. App. at 591 -92 ( citing State v. Phelps, 113 Wash. App. 347, 353, 57 P.3d 624
2002); Henderson, 114 Wash. 2d at 870 -71).
Carson more overtly invited omission of a Petrich instruction than did Corbett: Corbett
simply failed to include a Petrich instruction with his proposed instructions. Corbett, 158 Wn.
App. at 585 -86, 591. But Carson deliberately omitted a Petrich instruction from his proposed
jury instructions and then repeatedly and strenuously opposed the trial court' s plan to give a
Petrich instruction, as the following colloquy illustrates:
THE COURT]: My understanding is both sides have put together packets of
instructions, and the only difference is whether or not Washington Pattern
Instruction 4. 25, WPIC 4. 25, sometimes called the "[ Petrich] instruction," can be
given.
CARSON' S COUNSEL]: I left it out of mine, Your Honor, and I' ll explain to
the Court why. I think I did off the record.
So because we have multiple counts here, to me, this child' s testimony
was a muddled mess, ... we still have multiple counts, and I think the [ Petrich]
instruction wasn' t designed for that. Obviously, Your Honor is going to make the
12
No'. 43359 -1 - II
final decision, but I wanted to give you and the State the reason why I didn' t put it
in there.
THE COURT]: So you' re objecting to giving the [ Petrich] instruction, Mr.
Sepe?
CARSON' S COUNSEL]: I am for the reasons that I indicated. ... I looked at
Petrick] and I looked at the comments that indicate, as I read it, that it should
only be used where you' re alleging one count but multiple acts. Here, we' re not
doing that. I didn' t feel it was needed.
THE COURT]: You' re objecting to 4. 25?
CARSON' S COUNSEL]: I think it' s confusing, yes.
THE COURT]: You think it would be error to give 4. 25?
CARSON' S COUNSEL]: I do.
4 RP at 404 -09. After the trial court sustained Carson' s counsel' s objection and withdrew the
Petrich instruction from the stack it was going to read to the jury, the trial court again inquired:
THE COURT]: Mr. Sepe, any objections or exceptions?
CARSON' S COUNSEL]: We have no objections to the instructions [ to be]
given by the Court or the failure to give any instruction of the defense.
THE COURT]: And the defense was opposed to giving the [ Petrich] instruction.
CARSON' S COUNSEL]: We were, and I think we made a clear record as to
why we didn' t think it was necessary.
4 RP at 410. Because Carson affirmatively opposed the trial court' s giving the jury a Petrich
unanimity instruction, the invited error doctrine precludes his claiming this as error on appeal.
13
No. 43359 -1 - II
B. Effective Assistance of Counsel
Carson next argues that his trial counsel rendered ineffective assistance in that his
objection to the trial court' s giving a Petrich instruction constituted deficient representation and
the trial court' s resultant failure to provide this instruction was "`` presumed to result in
prejudice. "' Br. of Appellant at 19 ( quoting State v. Coleman, 159 Wash. 2d 509, 512, 150 P.3d
1126 ( 2007)). The State counters that defense counsel' s objection to the proposed Petrich
instruction was legitimate trial strategy and that Carson failed to demonstrate prejudice. Br. of
Resp' t at 10, 13. We hold that defense counsel' s objection to the proposed Petrich instruction
was legitimate trial strategy, not deficient performance, and thus not ineffective assistance of
counsel.
1. Standard of review
To prevail on an ineffective assistance of counsel claim, a defendant must show both
deficient performance and resulting prejudice; failure to show either prong defeats such claim.
State v. McNeal, 145 Wash. 2d 352, 362, 37 P.3d 280 ( 2002). Because Carson fails to satisfy the
deficient performance prong, we do not address the second, prejudice prong of the test. McNeal,
145 Wash. 2d at 362.
We review an ineffective assistance claim de novo, beginning with a strong presumption
that trial counsel' s performance was adequate and reasonable and giving exceptional deference
when evaluating counsel' s strategic decisions. Strickland v. Washington, 466 U.S. 668, 689, 104
S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 ( 2011)
citing Kyllo, 166 Wash. 2d at 862), adhered to in part on remand, 168 Wash. App. 635, 278 P.3d
14
No. 43359 -1 - II
225 ( 2012). Thus, to establish deficient performance, a defendant must show that counsel' s
performance fell below an objective standard of reasonableness. McNeal, 145 Wash. 2d at 362.
Given the deference we afford defense counsel' s decisions in the course of
representation, the threshold for deficient performance is high. Grier, 171 Wash. 2d at 33. There is
a strong presumption that counsel has rendered adequate assistance and has made all significant
decisions by exercising reasonable professional judgment. State v. Lord, 117 Wash. 2d 829, 883,
822 P.2d 177 ( 1991). Thus, "[ w]hen counsel' s conduct can be categorized as legitimate trial
19
strategy or tactics, performance is not deficient. " Kyllo, 166 Wash. 2d at 863. Generally,
legitimate trial strategy cannot serve as the basis for a claim of ineffective assistance of counsel.
Lord, 117 Wash. 2d at 883. Such is the case here.
2. Performance not deficient
Carson fails to show that his counsel' s performance was deficient. We disagree with him
and the dissent that defense counsel declined the Petrich instruction under a mistaken belief that
this instruction was unnecessary. On the contrary, the record shows that Carson' s counsel ( 1)
had carefully and strategically considered whether it was in his client' s best interest for the trial
court to give the jury a Petrich instruction, and ( 2) decided to oppose giving the Petrich
instruction to avoid confusing the jury (not simply, as Carson asserts for the first time on appeal;
because he was under a mistaken belief about the law). Defense counsel' s tactical decision to
avoid jury confusion was legitimate trial strategy —a general credibility attack on the victim' s
19
A criminal defendant can rebut the presumption of reasonable performance by showing that
his counsel' s representation was unreasonable under prevailing professional norms and that there
is " no conceivable legitimate tactic" that explains counsel' s performance. Grier, 171 Wash. 2d at
33 ( citations omitted). Again, such is not the case here.
15
No. 43359 -1 - II
muddled mess ,20 of coached testimony advanced by defense counsel' s strenuous argument to
the trial court that giving the Petrich instruction would result in the very evil that such an
instruction is normally intended to prevent. —jury confusion.
The following colloquy about the proposed jury instructions demonstrates this focal point
of counsel' s trial strategy:
CARSON' S COUNSEL]: I left [ the Petrich instruction] out of [my proposed
instructions], Your Honor, and I' ll explain to the Court why. .. .
Generally, when you read the comments to the [ Petrick] instruction, it
doesn' t apply, as I understand it, to multi -count cases because the way it' s read
could confuse the jury. Normally it' s when you have one count but you have like
six possible acts that could have accounted for.
Say, for example, hypothetically the State charged him with one count of
child molestation and yet the child describes perhaps an incident in one bedroom,
something in an office, and something in another bedroom.
The jury, under
Petrick], would have to decide which of those one acts unanimously do they
agree on to support the charge beyond a reasonable doubt.
It becomes a problem when you have multiple counts because look what it
says in the second sentence: " To convict the defendant on any count of child
molestation, one particular act of child molestation in the first degree must be
proved beyond a reasonable doubt."
The reason that comment is there and even though the jury is given
Instruction 3. 01, that each count is to be considered by you separately and your
verdict on one doesn' t affect your verdict on the other, the reason that they give
you that little warning under the comment is to avoid the possibility that, well, if
you find that he committed one act, then he must have committed all the counts.
20 4 RP at 406.
ffst
No. 43359 -1 - II
So I elected, when reading the comment, when reading and looking at this
case, saying we' re going to confuse the heck out of this jury and there' s a
possibility they could be misled into thinking that this means to convict him on
21]
any count, they must agree on, at least, one act. [
4 RP at 404 -06 ( emphasis added).
When the trial court sought to clarify that defense counsel objected to giving the Petrich
instruction, counsel reiterated his trial strategy, again focusing on the confusion it would cause
for the jury and asserting it would be error to give such instruction in this case:
THE COURT]: So you' re objecting to giving the [ Petrick] instruction, Mr.
Sepe?
CARSON' S COUNSEL]: I am for the reasons that I indicated. I believe there' s
one count and you have multiple alleged acts. When you have something like
this, if you look although this child' s testimony was muddled, inconsistent
at—
and confusing as heck, and the tape wasn' t much better, there seems to be
something that happened in his bedroom, something that happened involving
twisting " the business" in the bathroom, maybe, or an office, depending on which
version you believe, something that appears to may have happened in his
mother' s room. So when I looked at that, I said, well, there' s three somewhat
distinct acts here, albeit confusing. And I looked at [ Petrick] and I looked at the
comments that indicate, as I read it, that it should only be used where you' re
alleging one count but multiple acts. Here, we' re not doing that. I didn' t feel it
was needed.
THE COURT]: You' re objecting to 4. 25?
CARSON' S COUNSEL]: I think it' s confusing, yes.
21
Counsel also argued:
So because we have multiple counts here, to me, this child' s testimony
was a muddled mess but assuming that isn' t the case for purposes of argument,
we still have multiple counts, and I think the [ Petrich] instruction wasn' t designed
for that. Obviously, Your Honor is going to make the final decision, but I wanted
to give you and the State the reason why I didn' t put it in there and why I only put
it in there when I have a one -count case but there' s a possible six acts to choose
from.
4 RP at 406.
17
No. 43359 -1 - II
THE COURT]: You think it would be error to give 4.25?
CARSON' S COUNSEL]: I do.
4 RP at 408 -09 ( emphasis added).
Consistent with this expression of trial strategy, Carson' s counsel avoided discussing
specific incidents in his closing argument and argued instead that CC' s testimony and statements
were so muddled, inconsistent, and confusing that they created a reasonable doubt about whether
Carson had committed any of the acts or the charged crimes,
CARSON' S COUNSEL]: ... But then on the testimony it was a jumbled mess
of old house, new house, this bathroom. We had more than a dozen I- don' t-
knows and I- don' t- remembers.
It makes no sense. His testimony, this taped statement, is all over the place. It' s
an inconsistent, jumbled, confusing mess, and yet that' s what the State wants you
to believe beyond a reasonable doubt is the evidence that proves that my client is
guilty beyond a reasonable doubt.
A]nd you see that this is as jumbled a mess as to what came from there.
And the big question I think you need to ask yourselves in this case is, do I
feel comfortable convicting three counts or of any count of a charge like this
based on that, that jumbled, confusing mess?
4 RP at 450, 454 -55, 457.
We hold that Carson' s counsel' s decision to oppose giving a Petrich instruction was a
reasonable trial strategy to avoid jury confusion, that Carson fails to rebut the strong deferential
presumption that counsel' s performance was not deficient, and that consequently his ineffective
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No. 43359 -1 - II
22
assistance of counsel argument fails.
III. STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Carson asserts that ( 1) TH' s testimonies at the child hearsay hearing and at
trial were inconsistent, thus prejudicing him; and ( 2) in his interview with Thomas, CC identified
another person known as " David." SAG at 1 - 2. These claims fail to require reversal.
Carson claims that during the child hearsay hearing, TH testified that when CC told her
about Carson, she " kept driving to her friend['] s house "; but during the jury trial, TH testified
that she " pulled over at a place and got out and called her [ b] oyfriend." SAG at 2. Carson
incorrectly mischaracterizes TH' s testimony. Although TH testified at the child hearsay hearing
that she had initially continued driving; she also testified that she had eventually stopped her
22
Because we hold that Carson fails to show deficient performance, we do not address the
prejudice prong of the ineffective assistance of counsel test. Both Carson and the dissent cite
Coleman for the proposition that omission of a unanimity instruction is presumed to result in
prejudice. But the presumption of prejudice in Coleman was in the context of harmless error
analysis, not in the context of an ineffective assistance of counsel claim. See Coleman, 159
Wash. 2d at 511. The presumption of prejudice in an ineffective assistance of counsel claim is
limited to " the complete denial of counsel and comparable circumstances" such as ( 1) where a
defendant " is denied counsel at a critical stage of his trial "; (2) where " counsel entirely fails to
subject the prosecution' s case to meaningful adversarial testing "; ( 3) where the circumstances are
such that " the likelihood that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate without inquiry into [ the]
actual conduct of the trial "; and ( 4) where " counsel labors under an actual conflict of interest."
In re Pers. Restraint of Davis, 152 Wash. 2d 647, 674, 101 P.3d 1 ( 2004) ( internal quotation marks
and footnoted citations omitted) ( quoting Visciotti v. Woodford, 288 F.3d 1097, 1106 ( 9th Cir.),
rev' d on other grounds, 537 U.S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279 ( 2002)). Carson fails to
show that any of these circumstances —comparable to " complete denial of counsel" — are present
here. See Davis, 152 Wash. 2d at 674. Therefore, there is no presumption of prejudice.
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No. 43359 -1 - II
23
vehicle. Contrary to Carson' s claim, the record shows that TH' s child hearsay hearing
testimony was not inconsistent with her jury trial testimony.
Carson also appears to assert that CC identified the wrong defendant by alleging that
during CC' s forensic interview with Thomas, CC mentioned a " Mulkins," who happens to be
David" Mulkins. SAG at 1. Again, Carson mischaracterizes the record. The recording of this
interview shows that when CC mentioned Mulkins, it was in response to Thomas' s asking CC
what his uncle' s name was, to which CC responded, " David.... My other [ uncle] is Mulkins and
he doesn' t do nothin' to me, he tried fights with me on Halo games. "24 When Thomas asked if
Uncle David" was the one who had put his penis in CC' s bottom and twisted CC' s business, CC
nodded affirmatively. 25 The record thus shows that when CC mentioned Mulkins, he was merely
distinguishing between his two Uncle
uncles — " David" ( Carson), who had molested him; and his
other uncle, " Mulkins" ( David Mulkins), who had not molested him.
23 In Report of Proceedings ( Vol. 1) at 61:
THE STATE]: Did you continue driving?
TH]: Yes.
THE STATE] : Was that difficult for you?
TH] : Yes.
THE STATE]: At some point did you stop the vehicle or pull over?
TH]: Yes.
24 Pierce County Superior Court, Wash., Forensic Interview, Ex. 5, supra, at 13 min., 56 sec., -
13 min., 57 sec. ( emphasis added),
25 Pierce County Superior Court, Wash., Forensic Interview, Ex. 5, supra, at 13 min., 57 sec.
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No. 43359 -1 - II
Moreover, at trial, CC accurately identified Carson as " Uncle David," the perpetrator:
THE STATE]: And who is David?
CC]: My Uncle David.
THE STATE]: Do you see your Uncle David anywhere in the courtroom today?
CC]: Right there.
THE STATE]: And, Your Honor, I would ask that the record reflect that the
witness has identified the defendant.
2 RP atl03. This part of the record shows that even if CC knew another " David" in addition to
Carson, CC accurately identified Carson as the person who had molested him. Contrary to
Carson' s assertions, nothing in the record supports Carson' s allegation of mistaken identity.
We affirm.
Hunt, P. J.
T rnnriir
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No. 43359- 1- 11
WORSwICK, J. ( dissenting) — I disagree with the majority' s holding that David William
Carson' s counsel was not ineffective. In my opinion, defense counsel' s decision to decline a
Petrich 26 instruction cannot be characterized as a legitimate trial tactic, and, therefore, his
performance was deficient. Further, counsel' s error was prejudicial. Carson has met his burden
to show ineffective assistance of counsel, and I disagree with the majority' s opinion holding
otherwise. Accordingly, I would reverse Carson' s convictions for three counts of first degree
child molestation.
I. DEFICIENT PERFORMANCE
Defense counsel' s performance is deficient if it falls below an objective standard of
reasonableness. State v. McFarland, 127 Wash. 2d 322, 334 7- 35, 899 P.2d 1251 ( 1995). To
overcome the presumption that counsel' s performance was reasonable, counsel' s conduct must
be devoid of any conceivably legitimate trial strategy. State v. Grier, 171 Wash. 2d 17, 42, 246
P.3d 1260 ( 2011). In some instances failing to request a jury instruction may be a legitimate trial
tactic. See State v. Yarbrough, 151 Wn. App. 66, 90, 210 P.3d 1029 ( 2009) ( "[ F] ailure to request
a limiting instruction for evidence admitted under ER 404( b) may be a legitimate tactical
decision not to reemphasize damaging evidence. "). Such is not the case here.
In Washington, defendants have a constitutional right to a unanimous jury verdict. See
State v. Badda, 63 Wash. 2d 176, 181 -82, 385 P.2d 859 ( 1963). A Petrich instruction is necessary
to protect a defendant' s right to a unanimous jury verdict. Petrich, 101 Wash. 2d at 569. When
defense counsel rejected the proposed Petrich instruction, defense counsel unilaterally waived
Carson' s right to a unanimous verdict. Although a defendant may waive the right to a 12- person
26 State v. Petrich, 101 Wash. 2d 566, 683 P.2d 173,( 1984).
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No. 43359 -1 - II
jury, or to a jury altogether, a defendant may not waive his right to a unanimous verdict should
the defendant elect a jury trial. State v. Noyes, 69 Wash. 2d 441, 446, 418 P.2d 471 ( 1966) ( When a
hung jury stands 11 to 1 for acquittal, defendant is not permitted to waive a unanimous verdict
and accept the vote of 11 jurors as a valid verdict.) Accordingly, defense counsel' s waiver of
Carson' s right to a unanimous verdict is per se unreasonable.
Second, defense counsel declined the Petrich instruction under the mistaken belief that a
Petrich instruction was unnecessary in this case. When asked about the Petrich instruction
defense counsel stated:
I didn' t [ propose a Petrich instruction], and the reason I didn' t, obviously,
from [ C. C.'testimony it was all jumbled up. I don' t know what happened,
s]
where, and new, old, or whatever, but from the videotape at some point there
seemed to be three separate and distinct incidents, one in his room, one in his
mother' s room, and one in the bathroom.
Normally Petrich instructions come up where the child talks about five or
six incidents and one of them is charged, and then Petrich says, well, you have to
agree on whatever act it is.
Here, I didn' t feel that there was a need for that because even though it
was a jumbled mess, there were, at least, three separate and distinct incidents
referred to, and I didn' t think Petrich was necessary, but that' s certainly the
Court' s discretion.
3 Report of Proceedings ( RP) at 334 -35. But defense counsel was mistaken. A Petrich
instruction is required in cases where the State charges multiple counts based on " generic
testimony" regarding prolonged and consistent sexual abuse. State v. Hayes, 81 Wash. App. 425,
430 -31, 914 P.2d 788 ( 1996). In Hayes, Division One of this court stated:
In sexual abuse cases where multiple counts are alleged to have 'occurred
within the same charging period, the State need not elect particular acts associated
with each count so long as the evidence " clearly delineate[ s] specific and distinct
incidents of sexual abuse" during the charging periods. The trial court must also
instruct the jury that they must be unanimous as to which act constitutes the count
23
No. 43359 -1 - II
charged and that they are to find " separate and distinct acts" for each count when
the counts are identically charged.
81 Wn. App. at 431 ( footnotes omitted). Here, the State charged Carson with three counts of
rape of a child. C. C.' s testimony establishes some distinct acts of sexual abuse, but also includes
generic testimony" regarding ongoing abuse. Therefore, a Petrich instruction was required. I
cannot be convinced that basing a decision on an erroneous view of the law can be characterized
as a legitimate trial tactic.
Third, defense counsel declined the Petrich instruction based on his assertion that the
instruction would needlessly confuse the jury. Jury instructions are proper when they permit the
parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of
the applicable law. State v. Barnes, 153 Wash. 2d 378, 382, 103 P.3d 1219 ( 2005). Therefore, it
stands to reason that defense counsel may decline, or the trial court may reject, a jury instruction
that is misleading. However, it is unreasonable to believe that the jury will be misled or
confused by an instruction that is an accurate statement of applicable law required to protect a
specific constitutional right. In my opinion, defense counsel' s conduct is as unreasonable as
declining a reasonable doubt instruction on the theory that the definition of reasonable doubt may
confuse the jury.
Here, defense counsel' s reasons for declining the Petrich instruction are fundamentally
unreasonable. When defense counsel' s actions are unreasonable or based on misunderstandings
of the law, I do not believe they can be characterized as legitimate trial tactics or strategies.
Accordingly, I would hold the defense counsel' s performance was deficient.
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No. 43359 -1 - II
II. PREJUDICE
To prevail on his claim of ineffective assistance of counsel, Carson must also show
prejudice. When the State presents evidence of multiple acts that could each form the basis of
one charged crime, " either the State must elect which of such acts is relied upon for a conviction
or the court must instruct the jury to agree on a specific criminal act." State v. Coleman, 159
Wash. 2d 509, 511, 150 P.3d 1126 ( 2007). " Where there is neither an election nor a unanimity
instruction in a multiple acts case, omission of the unanimity instruction is presumed to result in
prejudice. , 27 Coleman, 159 Wash. 2d at 512
Failure to give the Petrich instruction, when required, violates the defendant' s
constitutional right to a unanimous jury verdict and is reversible error, unless the error is
harmless." State v. Bobenhouse, 166 Wash. 2d 881, 894, 214 P.3d 907 ( 2009) ( citing State v.
Camarillo, 115 Wash. 2d 60, 64, 794 P.2d 850 ( 1990)). Specifically, in cases where the trial court
failed to give a required Petrich instruction " the standard of review for harmless error is whether
The State clearly chose not to elect. During the discussion regarding the Petrich instruction
the State asserted:
Your honor, I need to go back and look at the case law. My understanding
of Petrich is the State needs to either elect a specific date, incident time per
charge or if they failed to elect, a Petrich instruction is required.
We have not elected. What we have done is we have charged three counts
of identical offenses during the same period of time, so I, frankly, think, and I just
wanted to speak with [ defense counsel] about this to see if he and I were of like
mind, I think [ the Petrich instruction] is required, frankly, but that would be the
only difference between my proposed [ instructions] and the defense proposed
instructions] .
3 RP at 335 -36 ( The State later confirmed that it was not electing during a
emphasis added).
second conversation regarding the use of the proposed Petrich instruction.
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No. 43359 -1 - II
a `` rational trier of fact could find that each incident was proved beyond a reasonable doubt."'
Camarillo, 115 Wash. 2d at 65 ( quoting State v. Gitchel, 41 Wash. App. 820, 823, 706 P.2d 1091
1985)).
Reviewing courts have held that failure to give a Petrich instruction is harmless when
the evidence presented was sufficient to establish that each crime had occurred, there was no
conflicting testimony, and the victim provided specific detailed testimony." Bobenhouse, 166
Wash. 2d at 894 ( citing Camarillo, 115 Wash. 2d at 70). Here, the victim did not provide specific
detailed testimony. His testimony was vague, confusing, and, at times, inconsistent. Further,
Carson testified and specifically denied the allegations of abuse. Accordingly, I am not
convinced that the error was harmless beyond a reasonable doubt. Because the error was not
harmless, this court presumes that the error was prejudicial to Carson, and he has met his burden
under the second prong of the ineffective assistance of counsel test.
Carson is required to show both counsel' s performance was deficient and counsel' s
deficient performance prejudiced him. Defense counsel' s performance was deficient because he
had no legitimate tactical reason to justify declining a Petrich instruction. Carson has also met
his burden to show prejudice because the failure to give a Petrich is presumed to be prejudicial,
and, here, the error was not harmless beyond a reasonable doubt. Therefore, I believe that
Carson has met his burden to prove ineffective assistance of counsel and I would reverse.
26