State of Washington v. Cameron J. Peterson ( 2018 )

FILED
DECEMBER 18, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
STATE OF WASHINGTON, )
) No. 35686-8-III (consolidated
Respondent, ) with No. 35853-4-III)
)
v. )
)
CAMERON J. PETERSON, )
) UNPUBLISHED OPINION
Appellant. )
__________________________________ )
UN))
IN THE MATTER OF PERSONAL )
RESTRAINT OF )
)
CAMERON J. PETERSON ) Resondent,
FEARING, J. — Cameron Peterson appeals a superior court order denying his
motion to issue a postconviction subpoena duces tecum for medical records. In a
consolidated personal restraint petition, Peterson seeks the same relief. We affirm the
superior court’s denial of relief.
FACTS
On April 12, 2015, Cameron Peterson and Gregory Zielke Sr. patronized a tavern.
Someone forcefully struck Zielke on his head, and the blow rendered Zielke unconscious.
At trial, the State presented witnesses who testified that Peterson walloped Zielke with a
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bottle, glass, or other object. One witness described a resulting “‘gash’” on Zielke’s
head that caused significant bleeding. Clerk’s Papers at 37. Peterson has always denied
striking the blow. Following the assault, medical personnel transported Gregory Zielke
to Sacred Heart Medical Center.
The State charged Cameron Peterson with second degree assault. The prosecution
did not introduce at trial medical records for the hospital treatment of Zielke. A jury
convicted Peterson of the charge. The superior court sentenced Peterson to three months’
confinement.
Cameron Peterson appealed his conviction. This court held that sufficient
evidence supported the conviction and affirmed the conviction.
PROCEDURE
Following the appeal of the conviction for second degree assault, Cameron
Peterson, citing CrR 4.8(b), filed a motion in the superior court for issuance of a
subpoena duces tecum directing the records custodian for Sacred Heart Medical Center to
produce all records relating to the diagnosis and treatment of Gregory Zielke for the head
injury. In support of the subpoena request, Peterson argued that he did not assault Zielke
as described by witnesses and the medical records would confirm a lack of injury to
Zielke’s head.
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The superior court denied the motion for issuance of the subpoena duces tecum.
The court ruled that CrR 4.8 applied only to pretrial discovery. Peterson appealed this
decision to this court.
Cameron Peterson later filed with the superior court a motion, under CrR
7.8(b)(2), (3) and (5), for relief from judgment and for discovery. Pursuant to CrR
7.8(c)(2), the superior court transferred the motion to this court as a personal restraint
petition. This court consolidated the appeal with the personal restraint petition.
LAW AND ANALYSIS
Despite consolidating Cameron Peterson’s personal restraint petition with his
appeal, we separate the two for purposes of analysis. Although Peterson seeks a
subpoena duces tecum for medical records in each proceeding, the rules attending the
request differ within the two proceedings. We also address his request within the context
of a motion to vacate judgment under CrR 7.8.
Appeal
After completion of the appeal of his conviction, Cameron Peterson asked the
superior court to issue a subpoena duces tecum, under CrR 4.8(c), to obtain the medical
records of his victim. The superior court ruled that CrR 4.8 applies only to pretrial
motions. We agree.
Cameron Peterson seeks to garner a subpoena duces tecum for discovery purposes.
CrR 4.7 governs criminal discovery. State v. Pawlyk, 115 Wn.2d 457, 471, 800 P.2d 3383
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(1990). CrR 4.8 addresses subpoenas. The title to section 4 of the criminal rules for
Superior Court, which contains CrR 4.7 and 4.8, is “PROCEDURES PRIOR TO TRIAL”
CrR 4.7, which addresses discovery, speaks in terms of discovery leading to trial. The
discovery rules constitute pretrial mechanisms to facilitate litigation and preserve a
defendant’s rights while preparing for trial. See State v. Copeland, 89 Wn. App. 492,
497, 949 P.2d 458 (1998).
CrR 4.8(a)(1)(B) refers to “[t]he court in which the action is pending” as the body
issuing the subpoena. After the appeal affirms the conviction, no action pends before the
superior court.
In District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S.
52, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009), the United States Supreme Court suggested
that a defendant may not engage in ongoing disclosure after a conviction. After a
conviction, the defendant has been “constitutionally deprived” of his liberty, the
presumption of innocence is gone, and a defendant is no longer entitled to the same
pretrial liberty interests. District Attorney’s Office for the Third Judicial District v.
Osborne, 557 U.S. at 68-69. Our own state Supreme Court shares the same view as the
Court in Osborne. See generally State v. Mullen, 171 Wn.2d 881, 902, 259 P.3d 158(2011) the Washington Supreme Court observed that pretrial discovery principles do not
apply to postconviction processes.
An offender may possess a due process right for postconviction discovery. In re
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Personal Restraint of Gentry, 137 Wn.2d 378, 972 P.2d 1250 (1999). In Gentry, the
court noted that, although a defendant possesses no due process right to discovery as a
matter of course postconviction, the defendant may obtain discovery to the extent he or
she can show good cause to believe discovery would prove entitlement to other relief. In
re Personal Restraint of Gentry, 137 Wn.2d at 390-91. In his brief, Cameron Peterson
cited Gentry, but he employs the decision in his CrR 4.8 argument. He does not assert
the due process clause.
Motion to Vacate Judgment
We question whether we should address Cameron Peterson’s motion to vacate his
conviction under CrR 7.8 when the motion becomes a personal restraint petition when
transferred to this appeal court. We analyze Peterson’s claim under CrR 7.8 anyway.
Cameron Peterson argues that, by filing a motion to vacate his conviction under
CrR 7.8, a new action is now “pending” before the trial court and therefore he gains
entitlement to use the criminal discovery rules to obtain the subpoena duces tecum. The
argument contains some logic, but falls short when considering the limited nature of CrR
7.8.
CrR 7.8(b) declares:
On motion and upon such terms as are just, the court may relieve a
party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or
irregularity in obtaining a judgment or order;
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(2) Newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the
judgment.
The motion shall be made within a reasonable time and for reasons
(1) and (2) not more than 1 year after the judgment, order, or proceeding
was entered or taken, and is further subject to RCW 10.73.090, .100, .130,
and .140. A motion under section (b) does not affect the finality of the
judgment or suspend its operation.
Whereas the court rule references “newly discovered evidence,” the rule authorizes no
formal discovery.
Cameron Peterson seeks vacation of his conviction under three of the grounds
listed in CrR 7.8: newly discovered evidence, fraud, and any other justifying reason. We
address each ground in such order.
If the defendant seeks vacation of judgment under CrR 7.8(b)(2), he must
demonstrate that the evidence (1) will probably change the result of the trial, (2) was
discovered since the trial, (3) could not have been discovered before trial by the exercise
of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. State v.
Williams, 96 Wn.2d 215, 222-23, 634 P.2d 868 (1981). The absence of any one factor is
grounds to deny the motion. State v. Gassman, 160 Wn. App. 600, 609, 248 P.3d 155(2011). Cameron Peterson could have subpoenaed the medical records before his trial, so
the lack of discovery is not excused. He claims he directed his trial counsel to procure
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the records, but his claim, if true, only shows a lack of diligence of his counsel and
confirms the records could have been discovered before trial. Also, since we do not
know of the contents of the medical records, we cannot find that discovery would
probably change the result of the trial.
Cameron Peterson also bases his motion for vacation of the judgment on CrR
7.8(b)(3), which permits relief from a final judgment based on fraud, misrepresentation,
or other misconduct by an adverse party. Nevertheless, Peterson does not allege or
present any evidence of fraud, misrepresentation, or misconduct of an adverse party.
Cameron Peterson posits a third basis of relief under CrR 7.8(b)(5). Under this
subsection of the rule, a court may relieve a party from a final judgment for any other
reason justifying relief from the operation of the judgment. Ineffective assistance of
counsel qualifies for relief under section (5). State v. Cervantes, 169 Wn. App. 428, 434,
282 P.3d 98 (2012).
Cameron Peterson justifies his motion for relief on a claim of ineffective
assistance of counsel at trial resulting from his counsel’s failure to obtain evidence
critical to his defense. Nevertheless, Peterson claims he gains entitlement to a subpoena
merely by alleging ineffective assistance of counsel, rather than showing ineffective
assistance. He must establish ineffective assistance of counsel.
To prove ineffective assistance of counsel, the defendant must show that
(1) defense counsel’s representation was deficient, falling below an objective standard of
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reasonableness and (2) the deficient performance prejudiced the defendant. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). Courts will presume counsel was
effective. State v. Sutherby, 165 Wn.2d at 883.
Cameron Peterson does not acknowledge or cite either prong of ineffective
assistance of counsel. Although Peterson argues that no reasonable defense attorney
would have failed to obtain the victim’s medical records for use at trial, this panel cannot
find prejudice because the panel can only speculate as to the contents of those records.
Personal Restraint Petition
The law governing personal restraint petitions requires a petitioner alleging
constitutional error to “satisfy his threshold burden of demonstrating actual and
substantial prejudice.” In re Personal Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d
506 (1990). If the petitioner does not demonstrate actual prejudice, the law requires
dismissal of the petition. In re Personal Restraint of Grisby, 121 Wn.2d 419, 423-24,
853 P.2d 901 (1993). The petition must be dismissed if the petitioner fails to meet his or
her burden of showing actual prejudice arising from constitutional error. In re Personal
Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
Cameron Peterson presents nothing more than speculation as to the contents of his
desired medical records of Gregory Zielke. Peterson claims that the ability to pursue
postconviction relief depends on his ability to get access to the medical records in order
to demonstrate prejudice. This argument confirms the lack of a showing of prejudice.
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We recognize the paradoxical situation faced by Cameron Peterson. He must gain
a copy of the medical records to show prejudice. But he cannot gain a copy of the
medical records because he has yet to show prejudice. Nevertheless, we remain bound by
the rules promulgated for a personal restraint petition.
CONCLUSION
We affirm the superior court's denial of an issuance of a subpoena duces tecum.
We dismiss Cameron Peterson's personal restraint petition.
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.
Fearing, J.
WE CONCUR:
Q_
Pennell, A.CJ.
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