State Of Washington v. Tyler Justin Mcvey ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
September 15, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53345-6-II
(Consolidated)
Respondent,
v.
TYLER JUSTIN MCVEY,
Appellant.
In the Matter of the Personal Restraint No. 53631-5-II
Petition of
TYLER JUSTIN MCVEY,
UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — Tyler McVey was convicted of first degree child rape and first degree
child molestation. In this consolidated case, we consider McVey’s direct appeal and personal
restraint petition (PRP), both raising ineffective assistance of counsel arguments. In his direct
appeal, McVey contends that the trial court erred by denying his CrR 7.8 motion for relief from
judgment because he received ineffective assistance of counsel when his trial counsel failed to
interview a potential eyewitness and failed to call that witness to testify at trial. In his PRP,
McVey contends that he received ineffective assistance of counsel because his trial counsel
failed to share discovery with McVey and did not call McVey to testify at trial. We disagree
with all of McVey’s contentions, affirm the trial court’s denial of his motion for relief from
judgment, and deny his PRP.
No. 53345-6-II;
Cons. No. 53631-5-II
FACTS
I. BACKGROUND FACTS
When ES was four years old her father, Jason Seevers, had full custody of her, but she
frequently visited her mother, Kecia Johnson, at Johnson’s home. At the time, Johnson’s
boyfriend, McVey, and her stepfather, Mark Schmidt, often stayed at her home. During ES’s
visits, when Johnson left for work, McVey would watch ES. Schmidt was incapable of watching
ES due to a previous stroke. After one visit to Johnson’s house, ES told Seevers that McVey
touched her and she did not like it. When Seevers’s wife handed ES a doll and asked ES where
McVey had touched her, ES pointed at the middle of the doll’s groin. ES later told a forensic
interviewer that McVey had put his hand inside her body.
The State charged McVey with one count of first degree rape of a child and one count of
first degree child molestation. At trial, McVey chose not to testify. McVey’s trial counsel did
not call any defense witnesses and, during his closing argument, argued primarily that ES
fabricated the allegations against McVey at the encouragement of her father as part of an
ongoing child custody battle with Johnson. The jury returned guilty verdicts on both counts.
II. CrR 7.8 MOTION
After our court affirmed McVey’s convictions following his first appeal, McVey filed a
CrR 7.8 motion for relief from judgment. In his motion, McVey argued that he received
ineffective assistance of counsel during his trial. The trial court ordered an evidentiary hearing
on McVey’s motion.
David Haller testified at the CrR 7.8 hearing. He explained that McVey’s trial counsel,
Robert Brungardt, had hired him as a private investigator and asked him to attempt to make
contact with Schmidt. Although Haller did not make contact with Schmidt in person, he did
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No. 53345-6-II;
Cons. No. 53631-5-II
exchange text messages with someone who said he was Schmidt. Haller asked Schmidt if he
could see ES and McVey while waiting for ES’s father to pick her up on the day in question, and
Schmidt replied, “[N]o.” 1 Report of Proceedings (RP) at 101. Haller also contacted Johnson
and asked if she had discussed the events with Schmidt. Johnson told Haller that Schmidt told
her he had not seen anything unusual that day but he did not have ES and McVey in his sight for
the entire time. Haller testified that in the course of his investigation, he learned that Schmidt
had moved to Florida, but he was unable to obtain an address for him.
Brungardt also testified at the hearing. Brungardt testified that McVey had told him
Schmidt could be an alibi witness, which is why Brungardt directed Haller to attempt to locate
Schmidt. Brungardt recalled that ES had stated that Schmidt had been in his room at the time of
the rape. Brungardt explained that he did not believe Schmidt would be a helpful witness based
on Schmidt’s statement that he did not have direct sight of McVey and ES during the relevant
time period. Brungardt was also aware that Schmidt had health issues from a previous stroke
that limited his ability to communicate, which factored into his decision not to pursue him further
as a witness. Instead, Brungardt chose to pursue an alternative defense theory focusing on child
custody issues.
Brungardt testified about his pretrial conversations with McVey. Brungardt recalled
discussing the report of ES’s forensic interview with McVey and explaining to McVey that
Brungardt had listened to the audio of the interview. Brungardt also testified that he had
multiple conversations with McVey about McVey’s right to testify during trial. At the time of
their conversations, Brungardt made McVey aware of his investigation into the case including
listening to the forensic interview. Brungardt testified, “I never and have never told a client that
he or she should not testify.” 1 RP at 150.
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No. 53345-6-II;
Cons. No. 53631-5-II
Schmidt also testified at the CrR 7.8 hearing. Schmidt had significant difficulty
testifying audibly and answered each question by nodding “yes” or “no.” Schmidt
acknowledged that he had lived at Johnson’s home with ES, but shook his head “no” when asked
if he lived there when ES said McVey touched her inappropriately. Schmidt shook his head “no”
when asked if he ever saw McVey touch ES inappropriately. 2 RP at 172. Schmidt shook his
head “no” when asked if ES ever told him that McVey touched her inappropriately. 2 RP at 178.
Schmidt shook his head “no” when asked if he remembered the day of the incident between ES
and McVey. 2 RP at 184. Schmidt did not remember if he was at Johnson’s house on the day of
the incident and did not have any direct knowledge of whether the allegations did or did not
occur.
Schmidt did not recall whether he exchanged text messages with Haller. Schmidt
acknowledged that the phone number Haller messaged belonged to him. Schmidt could not
recall whether he had ever talked to a lawyer other than McVey’s counsel for the CrR 7.8
hearing or if he ever spoke to law enforcement regarding the incident with ES.
Following the CrR 7.8 hearing, the trial court entered written findings of fact and
conclusions of law. The court found the State’s witnesses credible. The trial court also found
that Schmidt’s previous stroke adversely affected his cognitive function, ability to communicate,
and his memory. The trial court found that Schmidt had difficulty answering yes or no questions
appropriately, struggled to answer simple questions, and expressed a lack of comprehension.
Due to contradictions in Schmidt’s testimony and his lack of comprehension, the trial court
found that Schmidt’s testimony was unbelievable and that, had he been called to testify at trial, a
jury would have given his testimony no weight, such that there was no reasonable probability
that testimony from Schmidt would have affected the outcome of trial. Based on these findings,
4
No. 53345-6-II;
Cons. No. 53631-5-II
the trial court concluded that McVey could not show that he was prejudiced by Brungardt’s
decision not to further investigate Schmidt or call Schmidt as a witness at trial, and the trial court
denied McVey’s motion for relief from judgment.
McVey appeals the trial court’s denial of his motion for relief from judgment.
ANALYSIS
I. LEGAL PRINCIPLES
We review a superior court’s denial of a CrR 7.8 motion for relief from judgment for
abuse of discretion. State v. Robinson, 193 Wash. App. 215, 217, 374 P.3d 175 (2016). A trial
court abuses its discretion when its decision is manifestly unreasonable or based on untenable
grounds, or when no reasonable judge would have reached the same decision. Robinson, 193
Wash. App. at 217-18; State v. McKenzie, 157 Wash. 2d 44, 52, 134 P.3d 221 (2006). We review the
findings of fact on a CrR 7.8 motion for substantial evidence. State v. Ieng, 87 Wash. App. 873,
877, 942 P.2d 1091 (1997). Substantial evidence is a sufficient quantity of evidence to persuade
a rational, fair-minded person that a finding is true. State v. Schultz, 170 Wash. 2d 746, 753, 248
P.3d 484 (2011). We defer to the trier of fact on credibility issues. State v. Camarillo, 115
Wash. 2d 60, 71, 794 P.2d 850 (1990). Unchallenged findings of fact are verities on appeal. State
v. Stewart, 12 Wash. App. 2d 236, 240, 457 P.3d 1213 (2020).
Under CrR 7.8(b)(5), a court may grant relief from judgment for “[a]ny other reason
justifying relief from the operation of the judgment.” Ineffective assistance of counsel can
provide the basis for vacating a judgment under CrR 7.8(b)(5). See State v. Martinez, 161 Wn.
App. 436, 441, 253 P.3d 445 (2011).
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No. 53345-6-II;
Cons. No. 53631-5-II
“We review ineffective assistance of counsel claims de novo.” State v. Estes, 188 Wash. 2d
450, 457, 395 P.3d 1045 (2017). Ineffective assistance of counsel is a two-prong inquiry. State
v. Grier, 171 Wash. 2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective assistance of
counsel claim, a defendant must show that defense counsel’s performance was deficient, and the
deficient performance prejudiced the defendant. Grier, 171 Wash. 2d at 33. A failure to prove
either prong ends our inquiry. State v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563 (1996).
There is no ineffective assistance when counsel’s complained of actions are trial tactics
or go to the theory of the case. Grier, 171 Wash. 2d at 33. There is a strong presumption that
defense counsel’s conduct was not deficient. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d
1251 (1995). Because of this presumption, “the defendant must show in the record the absence
of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.”
McFarland, 127 Wash. 2d at 336.
To be effective, trial counsel must investigate the case. State v. Jones, 183 Wash. 2d 327,
339, 352 P.3d 776 (2015). Counsel’s duty includes making reasonable investigations, or making
a reasonable decision that renders particular investigations unnecessary. In re Pers. Restraint of
Gomez, 180 Wash. 2d 337, 355, 325 P.3d 142 (2014). This duty to investigate includes
interviewing witnesses. Jones, 183 Wash. 2d at 339. The decision whether to call a witness is
generally presumed to be a matter of trial strategy or tactics, but this presumption may be
overcome by showing that the witness was not presented because counsel failed to conduct
appropriate investigations. State v. Thomas, 109 Wash. 2d 222, 230, 743 P.2d 816 (1987).
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No. 53345-6-II;
Cons. No. 53631-5-II
II. CrR 7.8 MOTION
McVey argues that the trial court abused its discretion by denying his motion for relief
from judgment because he received ineffective assistance from his trial counsel when counsel
failed to adequately investigate Schmidt and failed to call him to testify at trial. We disagree.
McVey contends that his trial counsel failed to adequately investigate Schmidt, but the
record does not support his contention. Rather, the record reflects that trial counsel conducted a
reasonable investigation into Schmidt upon learning he may be a potential alibi witness. Based
on counsel’s investigator’s communications with Schmidt, Schmidt’s health challenges,
statements by ES in her forensic interview, and Johnson’s recollection of conversations with
Schmidt, trial counsel made the tactical decision not to further pursue him as a witness.
Brungardt testified that he made the strategic decision to present a different defense theory at
trial—that the rape accusations were fabricated as part of an ongoing child custody battle. Given
this testimony, McVey cannot show that trial counsel’s decision not to pursue Schmidt further or
call him as a witness at trial was anything other than a legitimate trial tactic. Legitimate trial
tactics do not constitute deficient performance. McFarland, 127 Wash. 2d at 336.
The trial court did not enter findings or conclusions regarding whether trial counsel
rendered deficient performance, ending its inquiry after concluding that McVey could not satisfy
the prejudice prong of the Strickland1 test. But we may affirm on any grounds supported by the
record, and Brungardt’s decision not to pursue Schmidt as a witness was clear trial strategy.
1
Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984).
7
No. 53345-6-II;
Cons. No. 53631-5-II
State v. Streepy, 199 Wash. App. 487, 500, 400 P.3d 339 (2017). Accordingly, we affirm the trial
court’s denial of McVey’s CrR 7.8 motion.2
II. PERSONAL RESTRAINT PETITION
In his PRP, McVey contends that he received ineffective assistance of trial counsel
because his counsel failed to review all discovery with McVey and did not call McVey to testify
at trial.3 We disagree.
A petitioner may request relief through a PRP when he is under unlawful restraint. RAP
16.4(a)-(c). One way to prove unlawful restraint is for a personal restraint petitioner to show a
constitutional error that results in actual and substantial prejudice. In re Pers. Restraint of
Monschke, 160 Wash. App. 479, 488, 251 P.3d 884 (2010). If such a petitioner makes a successful
ineffective assistance of counsel claim, he has necessarily met his burden to show actual and
2
In a Statement of Additional Grounds for Review, McVey points out that Schmidt was capable
of driving himself to-and-from the casino, arguing it evidences Schmidt’s competence and
undermines the trial court’s finding that a jury would have found Schmidt’s testimony
unbelievable. But substantial evidence supports the trial court’s finding. Schmidt struggled to
answer questions at the hearing and had limited recall of the relevant time period. McVey does
not assign error to the trial court’s findings that Schmidt had difficulty answering yes or no
questions appropriately, had difficulty answering simple questions, and demonstrated a lack of
comprehension. These findings are now verities on appeal. Stewart, 12 Wash. App. 2d at 240.
That Schmidt occasionally drove himself to the casino does not overcome the substantial
evidence supporting the trial court’s findings.
3
In his petition, McVey occasionally references trial counsel’s alleged failure to cross-examine
ES as a basis for his ineffective assistance of counsel claim, but the substance of his argument
does not mention cross-examination and focuses entirely on counsel’s review of discovery and
McVey’s decision not to testify. “‘[P]assing treatment of an issue or lack of reasoned argument
is insufficient to merit judicial consideration.’” State v. Mason, 170 Wash. App. 375, 384, 285
P.3d 154 (2012) (quoting West v. Thurston County, 168 Wash. App. 162, 187, 275 P.3d 1200
(2012) (internal quotations omitted)). Accordingly, we do not consider McVey’s assertion that
trial counsel failed to adequately cross examine ES.
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No. 53345-6-II;
Cons. No. 53631-5-II
substantial prejudice. In re Pers. Restraint of Crace, 174 Wash. 2d 835, 846-47, 280 P.3d 1102
(2012).
McVey states that he was not aware of ES’s forensic interview and that had trial counsel
reviewed it with him and called Schmidt as a witness at trial, McVey would have testified at
trial. But the record does not support McVey’s contention.4 Brungardt testified that he listened
to the audio of ES’s forensic interview and discussed the contents of it with McVey. Brungardt
also testified that he explained to McVey that he was unable to locate Schmidt.
Brungardt also recalled having multiple conversations with McVey about McVey’s right
to testify during trial. Brungardt testified, “I never and have never told a client that he or she
should not testify.” 2 RP at 150. At trial, the court took a brief recess for trial counsel and
McVey to discuss whether McVey wanted to testify. Following the recess, trial counsel
informed the court that McVey chose not to testify. The trial court confirmed with McVey that
that was his choice and that he did not need any more time to make that decision.
The record does not support McVey’s contentions in his PRP. Instead, the record shows
that trial counsel appropriately reviewed discovery and discussed the case with McVey before
and during trial, and that McVey made an informed decision not to testify. Because McVey’s
arguments are based on incorrect facts, he fails to show that his trial counsel rendered deficient
performance such that McVey received ineffective assistance of counsel.
4
McVey made this identical argument in his CrR 7.8 motion, but conceded the issue at the
hearing after evidence was presented that did not support his claim.
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No. 53345-6-II;
Cons. No. 53631-5-II
We affirm the trial court’s denial of McVey’s CrR 7.8 motion for relief from judgment
and deny McVey’s PRP.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
____________________________
Worswick, P.J.
_________________________
Melnick, J.
________________________
Cruser, J.
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