State of Washington v. William Vern Gadberry ( 2020 )

FILED
APRIL 2, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36489-5-III
Respondent, )
)
v. )
)
WILLIAM VERN GADBERRY, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — William Gadberry appeals from a conviction for second degree
assault, contending that evidence was improperly admitted and that his attorney
performed deficiently. We affirm.
FACTS
The victim, Ms. Quinn Learn, lived in the basement of the home of Jeanne
Gadberry, a woman for whom Learn provided caregiving services in exchange for room
and board. Two of Gadberry’s sons, Steven and William, also lived in the basement.
When Ms. Gadberry was hospitalized due to medical complications, her other children
decided to sell the house. Eviction notices were served on all those living in the building.
An agitated William Gadberry confronted Learn on June 19, 2018, about missing
jewelry; she attempted to lock herself in her room. According to her, William jumped on
No. 36489-5-III
State v. Gadberry
her and started to squeeze her neck, cutting off her air supply. He then put one of her
belts around her neck and attempted to tighten it; she used her hand to prevent the belt
from closing too tightly. At Learn’s urging, Steven called the police.
During cross-examination, defense counsel asked Learn why his client had gotten
upset. Learn responded that they had been talking about the missing jewelry, leading him
to become upset. She tried to avoid him because it was “not the first time he’s ever
assaulted me.” Report of Proceedings (RP) at 138. Counsel then received permission to
question Learn about prior arguments not recounted during her direct examination. Learn
testified that Gadberry “has a history of arguing with everybody” and that he had hit her a
couple of times. RP at 145.
In contrast, William Gadberry testified that he confronted Learn about jewelry his
siblings reported missing and she punched him, beginning an altercation. The two fell to
the floor and she began hitting him with a belt. He testified that he never put his hands
on her neck to strangle her, but did use the belt on her neck to “control” her. She was a
larger person than he was.
The incident resulted in charges of second degree assault, attempted second degree
murder, and harassment. The case proceeded to jury trial in the Spokane County
Superior Court. Deputy Sheriff Christopher Johnston testified to the injuries suffered by
both Learn and Gadberry. He characterized the scratches on Gadberry’s face as
“defensive wounds.” Detective Mike Ricketts conducted the follow up investigation. He
2
No. 36489-5-III
State v. Gadberry
testified that the injuries to Learn’s neck were consistent with manual strangulation and
that the injuries were serious, in the “upper 15 percent” of strangulation injuries that
could be photographed. RP at 174-175.
The defense obtained instructions on self-defense and argued the case to the jury
on that theory. The jury acquitted Gadberry on the attempted murder and harassment
counts, but convicted him of second degree assault.
Mr. Gadberry timely appealed to this court. A panel considered his case without
hearing argument.
ANALYSIS
This appeal raises claims of improper opinion testimony by Deputy Johnston and
ineffective assistance by trial counsel. We address those claims in the order listed.
Testimony of Deputy Johnston
Mr. Gadberry first contends that Johnston’s testimony about “defensive wounds,”
when coupled with his testimony that he was trained to identify the aggressor, amounted
to an opinion that the defendant was guilty. Gadberry did not challenge the testimony at
trial and cannot now establish manifest constitutional error.
Two related legal principles govern our review. The first is the recognition that a
proper objection must be made at trial to perceived errors in admitting or excluding
evidence; the failure to do so precludes raising the issue on appeal. State v. Guloy, 104
Wn.2d 412, 421, 705 P.2d 1182 (1985). “‘[A] litigant cannot remain silent as to claimed
3
No. 36489-5-III
State v. Gadberry
error during trial and later, for the first time, urge objections thereto on appeal.’” Id.(quoting Bellevue Sch. Dist. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)). A
trial judge’s decision to admit or exclude evidence is reviewed for abuse of discretion.
Diaz v. State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). Discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The second principle is that appellate courts review trial court rulings. Where, as
here, there is no trial court ruling to challenge, appellate review normally is not available.
RAP 2.5(a). There are certain exceptions to this doctrine that recognize a small class of
errors that can be reviewed even in the absence of a trial court challenge. The most
common of those exceptions, found in RAP 2.5(a)(3), permits review of a manifest error
affecting a constitutional right. A party claiming the existence of manifest constitutional
error is first required to establish the existence of error that is constitutional in nature. If
such an error is demonstrated, the party must then show that the error was not harmless
and actually had an identifiable and practical impact on the case. State v. Kirkman, 159
Wn.2d 918, 934-935, 155 P.3d 125 (2007); State v. Scott, 110 Wn.2d 682, 687-688, 757
P.2d 492 (1988).
Mr. Gadberry argues that this is an instance of manifest constitutional error
because witnesses are not permitted to opine as to the guilt of the defendant. State v.
Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Such testimony invades the jury
4
No. 36489-5-III
State v. Gadberry
functions of determining credibility and guilt or innocence. Kirkman, 159 Wn.2d at 927;
Black, 109 Wn.2d at 348. However, opinion testimony indirectly related to an ultimate
fact is not a “manifest” constitutional error that may be raised for the first time on appeal.
Kirkman, 159 Wn.2d at 936.
The fact that Mr. Gadberry has to combine disparate portions of the deputy’s
testimony to raise this contention defeats his argument by demonstrating there was no
direct testimony opining who was the aggressor. A far closer question was presented in
Kirkman. There, our court concluded that testimony that the child victim’s report of
sexual abuse was “consistent” with the medical findings did not amount to a comment on
the victim’s credibility.
Moreover, the testimony was not particularly harmful to the defense. Both parties
testified that Mr. Gadberry used the belt on Ms. Learn’s neck. The fact that a person
being strangled would lash out and scratch the assailant’s face in defense was consistent
with the uncontested fact that Gadberry choked Learn with the belt. It did not speak to
the question of who started the fight and whether Gadberry’s use of the belt constituted
lawful self-defense. This testimony was not harmful.
The alleged error was not manifest.
Ineffective Assistance of Counsel
Despite the fact that the jury acquitted on the attempted murder and harassment
charges, Mr. Gadberry alleges that he was the victim of ineffective assistance of counsel
5
No. 36489-5-III
State v. Gadberry
due to failure to challenge some of the previously mentioned trial testimony from the two
officers and the victim. This claim, too, is without merit.
An attorney’s failure to perform to the standards of the profession will require a
new trial when the client has been prejudiced by counsel’s failure. State v. McFarland,
127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). Courts must be highly deferential to
counsel’s decisions when evaluating ineffectiveness claims. A strategic or tactical
decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-
691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts evaluate
counsel’s performance using a two-prong test that requires determination whether or not
(1) counsel’s performance failed to meet a standard of reasonableness and (2) actual
prejudice resulted from counsel’s failures. Id. at 690-692. When a claim fails one prong, a
reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140
Wn. App. 266, 273, 166 P.3d 726 (2007). If the evidence necessary to resolve the
ineffective assistance argument is not in the record, the claim is not manifest and cannot
be addressed on appeal. McFarland, 127 Wn.2d at 334.
Mr. Gadberry contends that his counsel erred by failing to challenge (1) Johnston’s
testimony concerning the defensive wounds; (2) Learn’s testimony that there were prior
assaults; and (3) Rickett’s testimony about the photographs. It is an exceptionally difficult
proposition to establish error in this regard absent evidence from the trial attorney. As the
Strickland court noted, no two lawyers would try a case in the same manner. 466 U.S. at
6
No. 36489-5-III
State v. Gadberry
689. Accordingly, discerning such error from an undeveloped appellate record is largely a
fruitless undertaking because the decision to object is a “classic example of trial tactics.”
See State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). “Only in egregious
circumstances, on testimony central to the State’s case, will the failure to object constitute
incompetence of counsel.” Id. A reviewing court presumes that a “failure to object was
the product of legitimate trial strategy or tactics, and the onus is on the defendant to rebut
this presumption.” State v. Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007) (citing
cases).
All of Gadberry’s arguments run right into this presumption and the even stronger
Strickland presumption that counsel performed effectively. All of the challenged
evidence also fails the Madison centrality argument. The testimony of Johnston and
Ricketts addressed the uncontested fact that Gadberry used a belt around Learn’s neck
during their altercation. None of that testimony addressed the question of who started the
fight.
Learn’s testimony concerning the previous altercations allowed defense counsel to
raise the issue of prior conflict between the two in support of his self-defense claim and
fit in with his client’s subsequent testimony that Learn was bigger than he was and had
fought him before. The decision to run with the testimony when Learn opened the
subject up was clearly a tactical one by counsel who used the testimony to examine Learn
outside the scope of her direct examination testimony. Accordingly, counsel’s tactical
7
No. 36489-5-III
State v. Gadberry
decision was not error under Strickland. The information concerning prior physical
conflicts also was highly relevant to the need to use force in self-defense, a defense that
apparently was successful as to the far more serious offense of attempted second degree
murder.
Gadberry has not established that his counsel erred, nor has he shown any
prejudicial harm from the alleged errors. Since he needed to establish both, his claim of
ineffective assistance fails.
The conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Korsmo, J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Pennell, C.J.
8