Personal Restraint Petition Of L C Johnson ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal ) No. 81689-6-I
Restraint of )
)
L.C. JOHNSON, )
) UNPUBLISHED OPINION
Petitioner. )
)
VERELLEN, J. — In this personal restraint petition, L.C. Johnson contends a
retrial is required because he received ineffective assistance of counsel. Johnson
argues defense counsel’s investigation was insufficient and she failed to introduce
evidence to impeach prosecution witnesses while bolstering his own testimony.
Because Johnson does not show defense counsel’s decisions were deficient or
prejudiced his right to a fair trial, he fails to establish he received ineffective
assistance of counsel.
Therefore, we deny the petition.
FACTS1
Two young men were sitting in a Ford Mustang in a parking lot outside of
Johnson’s apartment complex, listening to music and smoking marijuana. The
1All facts are from Johnson’s direct appeal, unless otherwise noted. State
v. Johnson, No. 77355-1-I, slip op. at 2-5 (Wash. Ct. App., Mar. 11, 2019)
(unpublished), http://www.courts.wa.gov/opinions/pdf/773551.pdf.
No. 81689-6-I/2
young men had previously vandalized Johnson’s car, beaten up his nephew, and
injured Johnson while he was trying to break up the fight with his nephew.
Johnson shot at the men while they sat in the Mustang, lightly grazing one. A jury
found Johnson guilty of first degree and second degree assault, both with firearm
enhancements, and he was sentenced to 207 months’ confinement.
During trial, both young men testified for the State, as did Valentina
Miroshnyk and her cousin, Ruvim Rymaruk. Miroshnyk testified to seeing Johnson
get out of his car with a gun in his hand and shoot at the young men, hearing two
gunshots. Rymaruk heard a gunshot, ran outside, heard someone scream, “You
shot him,” and saw a gun in Johnson’s hand. He pulled out his cell phone and
began recording a video. Johnson can be seen driving away with his wife
Jennifer2 in their car. He returned about 20 seconds later, reversing up the street
and into the parking lot about 15 feet from the Mustang, and got out of the car
empty-handed. He approached the Mustang and tried repeatedly to get close to it,
even as one of the young men shoved him away. Kai Cornyn, a friend of
Johnson’s, intervened and stopped the shoving. Cornyn also testified at trial.
Defense counsel did not call Jennifer to testify. Johnson testified in his own
defense, denying he owned a gun, shot a gun, or used force against anyone on
the day of the alleged shooting.
2 Because Johnson and his wife share the same last name, we refer to her
by her first name.
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Johnson filed a direct appeal, and this court affirmed. Johnson timely filed
a personal restraint petition.
ANALYSIS
Johnson contends he received ineffective assistance of counsel, requiring
retrial or a reference hearing.
We review claims of ineffective assistance of counsel de novo.3 To prevail,
Johnson must prove that defense counsel’s performance was deficient and that
without the deficient performance the result, by a reasonable probability, would
have been different.4 Johnson’s claim fails unless both are proven.5 When
considering a claim of ineffective assistance, we presume defense counsel’s
performance was not deficient.6 To overcome this presumption, Johnson “must
establish an absence of any legitimate trial tactic that would explain counsel’s
performance.”7
I. Failure to Investigate
Johnson contends defense counsel was deficient because she failed to
conduct an adequate investigation. Part of providing effective representation is
3
Matter of Lui, 188 Wn.2d 525, 538, 397 P.3d 90 (2017) (citing State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009)).
4Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)).
5 In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012)
(citing Strickland, 466 U.S. at 697).
6
Lui, 188 Wn.2d at 539 (citing State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
1260 (2011)).
7 Id. (citing Grier, 171 Wn.2d at 33).
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investigating the case and interviewing witnesses.8 Failure to interview a
particular witness can constitute deficient performance,9 but the “duty to
investigate ‘does not necessarily require that every conceivable witness be
interviewed.’”10 A reviewing court will defer to defense counsel’s decisions when
the record shows she “investigated the case and made an informed and
reasonable decision against conducting a particular interview or calling a particular
witness.”11 “At the least, a defendant seeking relief under a ‘failure to investigate’
theory must show a reasonable likelihood that the investigation would have
produced useful information not already known to defendant’s trial counsel.”12
Johnson contends defense counsel failed in three different ways to conduct
and utilize the results of a diligent investigation: first, not interviewing Miroshnyk,
Rymaruk, or Jennifer; second, not transcribing six recorded police interviews with
the young men, Miroshnyk, or Rymaruk;13 and, third, not obtaining a computer
aided dispatch (CAD) report before trial began.
8
State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015) (citing State v.
Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991)).
9 Id. at 340 (citing Ray, 116 Wn.2d at 548).
10In re Pers. Restraint of Davis, 152 Wn.2d 647, 739, 101 P.3d 1 (2004)
(quoting Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001)).
11
Jones, 183 Wn.2d at 340 (citing State v. Hess, 12 Wn. App. 787, 788-90,
532 P.2d 1173 (1975); State v. Floyd, 11 Wn. App. 1, 2, 521 P.2d 1187 (1974)).
12 Davis, 152 Wn.2d at 739 (citing Bragg, 242 F.3d at 1088).
13 Johnson assigns error to the failure to have seven interviews transcribed,
Pet’r’s Supp. Br. at 3, but his argument states the deficiency was a failure to
transcribe six interviews, id. at 38. Regardless of the number, the analysis is the
same.
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Miroshnyk and Rymaruk were both interviewed by the police, and defense
counsel received recordings of them. The interviews were thorough and clearly
relayed their perspectives. Because Johnson has not provided any evidence
suggesting defense counsel failed to listen to them, we presume none exists.14
The detailed interviews of Miroshnyk and Rymaruk provided defense counsel
knowledge of their likely testimony. Based upon that information, counsel could
decide how to spend her time preparing for trial. Because she made an informed,
reasonable decision not to interview Miroshnyk and Rymaruk, Johnson fails to
show this decision was deficient.15
Johnson also fails to provide any evidence that defense counsel did not
interview Jennifer, despite it being his burden to do so,16 relying instead on
speculation. Even if such evidence existed, Johnson has the burden of
demonstrating the missing interview would have provided “useful information not
already known” to defense counsel.17 Jennifer’s post-trial declaration merely
echoes Johnson’s trial testimony, and no other evidence demonstrates Jennifer’s
14 See In re Pers. Restraint of Hubert, 138 Wn. App. 924, 928, 158 P.3d
1282 (2007) (petitioner bears the burden of proving actual and substantial
prejudice) (citing Davis, 152 Wn.2d at 671-72); see also In re Pers. Restraint of
Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013) (“To establish a prima facie showing
required for a reference hearing, a petitioner must offer ‘the facts underlying the
claim of unlawful restraint and the evidence available to support the factual
allegations.’”) (quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828
P.2d 1086 (1992)).
15 Jones, 183 Wn.2d at 340.
16 Yates, 177 Wn.2d at 18 (citing Rice, 118 Wn.2d at 885-86).
17 Davis, 152 Wn.2d at 739 (citing Bragg, 242 F.3d at 1088).
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likely testimony. Johnson fails to demonstrate defense counsel did not interview
Jennifer or that the absence of an interview would have been prejudicial.
Johnson asserts defense counsel was deficient because she did not have
the audio recordings of police interviews with witnesses, such as Miroshnyk,
transcribed. Johnson argues this prejudiced him because his “attorney did not
have the basic documents necessary to conduct cross-examination.”18 But
Johnson fails to cite authority requiring a written transcript to impeach a witness
with an inconsistent statement. Although ER 613(b) requires the establishment of
proper foundation before impeaching a witness with extrinsic evidence of a prior
inconsistent statement,19 ER 613(a) allows the use of written and unwritten
statements for impeachment.20 Because Johnson fails to show any requirement to
transcribe recorded interviews to impeach witnesses, he fails to establish this
decision was unreasonable.
To the extent Johnson argues defense counsel’s impeachment of
Miroshnyk was deficient because it did not impeach her testimony, the record
shows otherwise. Defense counsel used Miroshnyk’s initial statement to the police
rather than her official interview to undermine the accuracy of her memory and of
18 Pet’r’s Supp. Br. at 39.
19 State v. Horton, 116 Wn. App. 909, 914, 68 P.3d 1145 (2003).
205A KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND
PRACTICE, § 613.9 at 592 (6th ed. 2016) (written or oral statements can be used
for impeachment).
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her perspective on the shooting. Because “[d]eficient performance is not shown
by matters that go to trial strategy or tactics,”21 these arguments are unconvincing.
Johnson argues defense counsel failed to conduct a diligent investigation
because she did not obtain a particular CAD report to corroborate Johnson’s claim
that Miroshnyk and Rymaruk were biased against him.22 While being cross-
examined, Johnson asserted that Miroshnyk and Rymaruk recorded the second
half of his encounter with his victims and testified against him because of a
personal “vendetta” against him caused by him calling the police on their relative. 23
Johnson contends the absence of this report confirming his call to police
undermined his credibility.
But the CAD report would have confirmed only that on February 2, 2017,
Johnson had called the police to report a “fight” between a 13-year old “Ukrainian
male,” who was the aggressor, and another 13-year old boy.24 The CAD does not
name the alleged aggressor or give any details about him except Johnson’s
guesses about his age and nationality. When asked to name either boy, Johnson
21State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citing
State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994); State v. Mak, 105
Wn.2d 692, 718 P.2d 407 (1986)).
22 Although Johnson assigns error to the absence of “[t]he records of those
calls,” meaning several CAD reports, Pet’r’s Supp. Br. at 3, 38, his arguments are
limited to the CAD report about Miroshnyk and Rymaruk’s relative, Pet’r’s Supp.
Br. at 44-51; Reply Br. at 13-17.
23 Report of Proceedings (Feb. 15, 2017) at 590.
24 Pet’r’s Supp. Br. at 46.
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could not. At best, the CAD report was relevant only if the aggressor actually was
related to Miroshnyk and Rymaruk.
ER 104 governs conditional relevance. “[T]he trial court's proper inquiry
under ER 104(b) is ‘whether the evidence is sufficient to support a finding of the
needed fact.’”25 Johnson argues the witnesses’ “Ukrainian names” and the
“evidence showing that many of the members of this large family lived in the
complex”26 is sufficient to make the CAD report relevant. Because this relies upon
speculation and does not demonstrate the CAD was about a relative of Miroshnyk
or Rymaruk, we disagree.27 The CAD report was irrelevant. Because the CAD
report was not relevant and therefore inadmissible,28 Johnson fails to show
defense counsel was deficient for not obtaining it.
II. Failure to Introduce Evidence
Johnson argues defense counsel was ineffective because she did not call
Jennifer to testify and did not invite certain testimony from Cornyn, Johnson’s
friend.
“Generally the decision whether to call a particular witness is a matter for
differences of opinion and therefore presumed to be a matter of legitimate trial
25
State v. Dixon, 159 Wn.2d 65, 78, 147 P.3d 991 (2006) (quoting State v.
Karpenski, 94 Wn. App. 80, 102, 971 P.2d 553 (1999)).
26 Reply Br. at 17.
Dixon, 159 Wn.2d at 78 (“When a trial judge’s function is to decide
27
whether the evidence is sufficient to support a finding, a reviewing court’s function
will be the same.”) (quoting Karpenski, 94 Wn. App. at 104).
28 ER 402.
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tactics.”29 Johnson asserts Jennifer’s testimony would have been beneficial
because it was “different from that offered by the State’s witnesses” and
corroborated Johnson’s testimony.30 But it is also apparent that calling Jennifer to
testify about what she said to her husband would present a substantial risk by
opening her to cross-examination about what Johnson said and did immediately
before and after the shooting.31 On this record, whether to call Jennifer was a
legitimate tactical decision.
Even if it was not legitimate, Johnson fails to show prejudice. Without
more, the addition of Jennifer’s corroboration does not allow “a reasonable
probability that the result of the proceeding would have been different.”32 Three
eyewitnesses testified to seeing Johnson holding a gun and pointing it at the
victims, another saw Johnson approaching the Mustang seconds before hearing a
gunshot that grazed one victim, and Rymaruk began videoing Johnson because
he heard a gunshot. “Counsel’s errors must be ‘so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.’ In other words, ‘[t]he
29
Davis, 152 Wn.2d at 742 (citing State v. Byrd, 30 Wn. App. 794, 799, 638
P.2d 601 (1981)).
30 Reply Br. at 22.
31Because the couple’s children were in Johnson’s car with their parents,
their communications would not have been privileged. See State v. McKee, 141
Wn. App. 22, 38, 167 P.3d 575 (2007) (spousal communications privilege is
inapplicable when communications are not confidential) (citing Swearingen v. Vik,
51 Wn.2d 843, 848, 322 P.2d 876 (1958)).
32 Lui, 188 Wn.2d at 538 (citing Strickland, 466 U.S. at 687).
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likelihood of a different result must be substantial, not just conceivable.’”33
Because the jury heard Johnson’s testimony, weighed it against the State’s
witnesses, and chose not to credit his account, it is not substantially likely that his
wife’s mere corroboration would have contributed to a different result.
Johnson argues defense counsel did not make a legitimate tactical decision
by declining to rely on Cornyn to corroborate his testimony. Defense counsel
knew Cornyn’s potential testimony because she interviewed him. He was not
present for the assaults themselves, so Cornyn’s testimony could not contradict
critical testimony from the State’s witnesses about Johnson pointing a gun at and
shooting at the victims. Also, Cornyn’s credibility was ripe for attack because he
considers Johnson a “great friend” and has two prior convictions for theft.34
It was also reasonable to decide against having Cornyn corroborate
Johnson’s version of events when his likely testimony about seeing a gun in the
Mustang would have been considerably undermined by the video recording. In
Cornyn’s police interview, he said Johnson did not shoot a gun and, instead,
claimed to have seen the handle of a handgun beneath the passenger’s seat while
pulling Johnson out of the Mustang’s passenger-side door. He also said Johnson
was trying to grab the gun from beneath the seat. But the video shows the
passenger door was closed and that Johnson was never inside the vehicle. And
one of the victims testified that he rolled up the passenger window when Johnson
33Id. (quoting Harrington v. Richter, 562 U.S. 86, 104, 112, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011)) (internal quotation marks and citations omitted).
34 Cornyn Police Interview (Feb. 7, 2017) at 20.
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No. 81689-6-I/11
approached the Mustang after the shooting. Johnson fails to show defense
counsel made an illegitimate or unreasonable decision to keep Cornyn’s testimony
brief.35
Therefore, we deny Johnson’s petition.
WE CONCUR:
35
Johnson also alleges a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed 2d 215 (1963), discovery violation and a Sixth Amendment violation
based upon a conspiracy between the State and defense counsel to suppress
Cornyn’s testimony. To prove his allegation, Johnson relies on an e-mail chain
from defense counsel to the prosecuting attorney. But the e-mails show the
ordinary disclosure of witness names, contact information, and possible testimony.
See, e.g., CrR 4.7(b)(1) (“the defendant shall disclose to the prosecuting attorney
the following material and information within the defendant’s control . . . the names
and addresses of persons whom the defendant intends to call as witnesses . . .
together with any written or recorded statements”). These e-mails do not support
a conspiracy or a Brady violation. Because his allegations rely upon speculation
rather than evidence, his argument is unconvincing. Yates, 177 Wn.2d at 18
(citing Rice, 118 Wn.2d at 885-86).
11