State Of Washington, V. Richard Thomas Bannister

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 81187-8-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
RICHARD BANNISTER,
Appellant.
COBURN, J. — Richard Bannister appeals his conviction for rape in the
second degree. He contends that an emergency room doctor’s “diagnosis” that
the victim was “sexually assaulted” was an impermissible opinion on guilt. While
the testimony was confusing, in context, it is not a manifest constitutional error.
We affirm. Because Bannister cannot demonstrate prejudice, his ineffective
assistance of counsel claim also fails.
FACTS
Richard Bannister met A.H. when she moved into his senior-living
apartment building in September 2017. They became friends, occasionally
watching movies together in his apartment. On July 4, 2018, A.H. walked past
Bannister’s door on her way to a picnic with friends. He invited her in for a drink
and she accepted.
According to A.H., after talking for a while, Bannister went into the
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81187-8-I/2
bathroom and came out without his clothes on. His fists balled up, his face red
and sweating he told A.H., “I’m going to fuck you.” He grabbed A.H. and threw
her onto his bed, ripped off her jeans, and removed her underwear. Bannister
held onto her knees and legs and spread them apart and started licking her
genital area, putting his tongue in her vagina. A.H. screamed for help repeatedly
while asking Bannister to let her go. A.H. then grabbed a lamp, while knocking
over a nightstand, and attempted to hit Bannister with the lamp to escape.
Bannister grabbed the lamp and A.H. made it off the bed, onto the floor, but then
lost control of her bowels and defecated on the floor. She started crawling
toward the door, scraping her knees and elbows. Bannister moved on top of her,
telling her he would break her jaw if she screamed. He then attempted to push
his penis into her vagina. At that point, a person started banging on the door
saying they had contacted the police and they were on their way. Bannister then
went into the bathroom and threw A.H. a towel and told her to clean herself up,
telling her “Don’t you go out there and lie on me.” He then opened the door,
shoved her out, and closed the door. Bannister opened the door again and threw
her clothes out.
The two witnesses who saw A.H. in the hallway testified that on their way
to the apartment elevator, they heard loud noises and the sounds of furniture
falling in Bannister’s apartment. They heard a woman screaming, “Somebody
please help me. He’s hurting me. He’s trying to rape me.” A.H. then came “flying
out” onto the floor in her underwear and a little top. A.H. looked as though she
had been fighting. Bannister’s door slammed and locked. A.H. was crying and
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shaking, telling them, “He’s got my stuff. And he’s trying to rape me.”
Bannister’s door opened and a pair of pants were thrown in A.H.’s face.
When police arrived, A.H. appeared scared and disheveled, her hair
messed up, rug burns on her elbows and knees, and missing clothing and shoes.
She told the officers that Bannister had sexually assaulted her.
Police knocked on Bannister’s door and he agreed to speak with them.
When they entered his apartment they saw a pair of ladies’ sandals, a hat, and a
purse. They also observed that the apartment had just been cleaned: a bottle of
409 cleaner sat out, and there were wet and slightly brown spots on the floor
near the bed. Police conducted a recorded interview with Bannister. Bannister
referred to A.H. as his “gal pal.” He told officers she was as “cute as a button.” “If
you don’t want to kiss her, you’re fucking gay.”
Bannister told police that he was asleep when A.H. came into his
apartment. They started watching a movie together and A.H. started talking
about “gangster shit” so he told her to leave. He claimed that she refused to
leave, so he left the room and she eventually left. When officers asked about the
wet floor stains, Bannister said they were from food but later in the interview said
that A.H. had spilled liquid on the floor. Bannister said he never touched A.H.
When asked if he had oral sex with her he said, “No. I wish.” Police arrested
Bannister.
Bannister presented a different version of events at trial. He claimed A.H.
washed her vagina on his washcloth for “several minutes” and then came out of
the bathroom with her pants undone. When he told her to leave she “stumbled
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backwards,” hit her shoulder on the lamp, her pants fell down and then she
defecated. Bannister said he did not tell the police the truth about the stains
because A.H.’s incontinence was a “private matter.”
After the event, A.H. went to the hospital. She told the emergency room
doctor that she had been sexually assaulted. The doctor documented A.H.’s
skinned elbows and knees and bruising on her left shoulder. The doctor did not
conduct any sort of sexual exam, leaving that for the sexual assault nurse
examiner (SANE). The SANE also noted the scrapes on A.H.’s elbows, knees,
and bruise to her shoulder but also noted bruising on A.H.’s left outer thigh and
right knee. The SANE took vulvar perineal swabs on the outside of A.H.’s vagina
to be tested for evidence. The results indicated the presence of male saliva DNA
(deoxyribonucleic acid) matching a reference sample from Bannister. The type
of DNA testing performed in this case was “Y-STR,” a Y-chromosome testing.
The sample matched the DNA profile of Bannister and his male paternal
relatives. A forensic scientist testified that such a match would not be expected
to “occur more frequently than one in 8600 male individuals in the U.S.
population.”
Bannister was charged in King County Superior Court with rape in the
second degree by forcible compulsion and indecent liberties.
At trial, during the State’s direct examination of the emergency room
doctor, the prosecutor asked the doctor to review the medical chart created at the
time A.H. reported to the hospital, including the notes the emergency room nurse
made, and her own notes. The doctor read aloud the notes from the emergency
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No. 81187-8-I/5
room nurse:
Patient presents to ED for a complaint of hip pain and sexual
assault that happened today around 1630. Patient tearful when
explaining what happened today. Patient states she was at
apartment complex in a computer [room] and saw a guy that she's
known. Patient states he asked her if she wanted a drink, and she
states she went with him. And he came out naked.
Patient states he threw her onto bed and began assaulting
her. Patient states she was screaming but was told that if she
continued to scream he said he would break my jaw. Patient states
she told him, ‘Do whatever, just let me go.’ She states that he was
licking me and that there were a couple of people outside that
knocked and heard me scream. Patient stated, ‘I don't know if he
came inside me.’ Patient states PD were on the scene and
arrested him.
The doctor also read her own notation that A.H. “presents today after recent
sexual assault just prior to arrival. . . . She notes that she has some abrasions on
her bilateral elbows and knees but no other injuries.” The prosecutor asked,
“Based on your examination of how you – how she told you
the injuries occurred, in your evaluation of her as a doctor, were they
consistent?” The doctor answered, “Yes.”
After the doctor explained that she referred A.H. for further forensic
evaluation, the prosecutor asked the doctor, “[W]hat was your final diagnosis for
[A.H.] as it relates to this incident?” The doctor replied, “Sexual assault of adult,
multiple abrasions, contusion of left shoulder.” Defense did not object.
During cross-examination, the doctor stated more than once that she does
a physical exam but does not perform sexual exams and did not examine A.H.’s
genitalia. During re-cross examination of the doctor, defense introduced the
word “rape” into the diagnosis.
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[DEFENSE COUNSEL]: So, [Doctor], I think you concluded your testimony
by saying your final diagnosis was adult rape sexual -- was it called sexual
rape?
[WITNESS]: That is what I diagnosed at that time.
[DEFENSE COUNSEL]: Okay. And that was basically based on the
reported assertions of [A.H.]; is that correct?
[WITNESS]: Yes.
A jury convicted Bannister of rape in the second degree and indecent
liberties. At sentencing, the trial court vacated the indecent liberties charge on
the basis that it merged with the rape charge. The court imposed a standard
range, indeterminate sentence of 95 months to life. Bannister appeals.
DISCUSSION
Opinion Testimony
Bannister argues that the emergency room doctor’s testimony that she
diagnosed A.H. with “sexual assault” was an impermissible opinion on guilt and
such an error was not harmless. Bannister did not object to the doctor’s
testimony. Generally, appellate courts will not consider issues raised for the first
time on appeal. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).
Appellate courts are and should be reluctant to conclude that
questioning, to which no objection was made at trial, gives rise to
“manifest constitutional error” reviewable for the first time on
appeal. The failure to object deprives the trial court of an
opportunity to prevent or cure the error. The decision not to object
may be a sound one on tactical grounds by competent counsel, yet
if raised successfully for the first time on appeal, may require a
retrial with all the attendant unfortunate consequences. Even
worse, and we explicitly are not referring to counsel in this case, it
may permit defense counsel to deliberately let error be created in
the record, reasoning that while the harm at trial may not be too
serious, the error may be very useful on appeal.
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No. 81187-8-I/7
City of Seattle v. Heatley, 70 Wn. App. 573, 584-85, 854 P.2d 658 (1993)
(quoting State v. Madison, 53 Wn. App. 754, 762-763, 770 P.2d 662 (1989)). As
we stated in Heatley,
the proper approach in analyzing alleged constitutional error raised
for the first time on appeal involves four steps. First, the reviewing
court must make a cursory determination as to whether the alleged
error in fact suggests a constitutional issue. Second, the court
must determine whether the alleged error is manifest. Essential to
this determination is a plausible showing by the defendant that the
asserted error had practical and identifiable consequences in the
trial of the case. Third, if the court finds the alleged error to be
manifest, then the court must address the merits of the
constitutional issue. Finally, if the court determines that an error of
constitutional import was committed, then, and only then, the court
undertakes a harmless error analysis.
Heatley, 70 Wn. App. 573 at 585 (quoting State v. Lynn, 67 Wn. App. 339, 345,
835 P.2d 251 (1992)).
We first conduct a cursory determination as to whether the alleged error in
fact suggests a constitutional issue.
Witnesses may not provide their opinion as to the guilt of a defendant.
State v. Kirkman, 159 Wn.2d at 927. Although an expert opinion might “embrace
an ultimate issue to be decided by a trier of fact,” witnesses cannot provide an
opinion on a defendant’s guilt. State v. Hudson, 150 Wn. App. 646, 652, 208
P.3d 1236 (2009); see also ER 704. Such opinions are improper “whether made
directly or by inference.” State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213(2014). Witnesses may not express an opinion that the defendant is guilty or
express an opinion as to the truth of the accuser’s statement to the witness,
hence indirectly opining that the defendant is guilty. Madison, 53 Wn. App. at
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No. 81187-8-I/8
760. Opinion testimony regarding the veracity of witnesses is particularly
inappropriate in criminal trials. State v. Montgomery, 163 Wn. 2d 577, 591, 183
P.3d 267 (2008). “Impermissible opinion testimony regarding the
defendant's guilt may be reversible error because such evidence violates the
defendant's constitutional right to a jury trial, which includes the independent
determination of the facts by the jury.” Kirkman, 159 Wn.2d at 927.
The jury had to determine if Bannister committed rape in the second
degree by forcible compulsion. Any reasonable juror would understand that such
a crime is a form of sexual assault. The alleged error does suggest a
constitutional issue.
We next examine if the error was manifest.
To show manifest error, a defendant must demonstrate how the alleged
constitutional error caused “actual prejudice” at trial. Kirkman, 159 Wn.2d at 926-
27. “Actual prejudice” requires a showing that the error had “ ‘practical and
identifiable consequences in the trial of the case.’ ” Kirkman, 159 Wn.2d at 935(quoting State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)). Just
because the error involved the admission of testimony alleged to constitute an
opinion on guilt, it does not necessarily mean it is an error of constitutional
magnitude that may automatically be raised for the first time on appeal under
RAP 2.5(a)(3). Heatley, 70 Wn. App. at 583.
Although the doctor used the term “diagnosis,” the record does not
support that her statement was an actual “diagnosis.” Webster's Third New
International Dictionary defines “diagnose” as “to identify (as a disease or
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No. 81187-8-I/9
condition) by symptoms or distinguishing characteristics.” Yow v. Dep't of Health
Unlicensed Prac. Program, 147 Wn. App. 807, 819, 199 P.3d 417 (2008)
(quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 622
(1993)). Sexual assault or rape is a description of a crime. The record shows
that the doctor’s “diagnosis” was nothing more than a reflection of A.H.’s claim
that she had been sexually assaulted. The injuries the doctor referred to as
being consistent with what A.H. claimed, were the physical injuries such as the
abrasions on knees and elbows. The doctor repeatedly stated she did not
conduct a sexual examination. The doctor also made clear that she based her
diagnosis on the reported assertions of A.H. In context, while the doctor’s
testimony that she diagnosed A.H. with “sexual assault” may have been arguably
improper for lack of foundation, the doctor did not opine that she believed A.H.
had been sexually assaulted or raped.
These facts and circumstances are far different than the cases Bannister
relies upon, State v. Hudson, 150 Wn. App. 646, 208 P.3d 1236 (2009) and State
v. Black, 109 Wn.2d 336, 745 P.2d 12 (1987). Both are distinguishable. First, in
both Hudson and Black, defense properly preserved the issue for appeal by
objecting to opinion testimony.
In Hudson, defense counsel objected to the State introducing expert
opinion that the victim’s injuries were caused by “nonconsensual sex.” Hudson,
150 Wn. App. at 651. The doctor in the instant case did not testify that the
physical injuries she observed were caused by a sexual assault. The doctor said
the injuries were consistent with what A.H. claimed occurred.
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In Black, our Supreme Court rejected an expert’s testimony that the victim
was suffering from “rape trauma syndrome.” Black, 109 Wn.2d at 348. The
Supreme Court held that “under the Frye[1] standard, expert testimony on rape
trauma syndrome is not a scientifically reliable means of proving lack of consent
in a rape case.” Black, 109 Wn. 2d at 348-49 (finding prejudice because the term
implied an opinion that the alleged victim is telling the truth and was in fact
raped). Unlike the expert in Black, the doctor in the instant case did not diagnose
A.H. with a condition.
Bannister has not established that the doctor’s testimony is a manifest
constitutional error that we would consider for the first time on appeal under RAP
2.5(a). See State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009).
Even if we were to conduct a harmless error analysis, any error would be
harmless because the State can establish beyond a reasonable doubt that,
despite the alleged error, the jury would have reached the same verdict. See
State v. Quaale, 182 Wn.2d 191, 202, 340 P.3d 213 (2014).
The State argues that even if the doctor’s diagnosis was inadmissible, the
other evidence against Bannister was overwhelming. We agree.
Two neutral witnesses who heard the attack testified. They testified that
A.H. screamed from Bannister’s apartment, “He’s trying to rape me,” and they
saw her “flying” out of the apartment without her pants. Their statements were
consistent with A.H.’s statement of events. The State called multiple police
officers to testify who stated that they saw wet brown spots on the carpet,
1 Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
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No. 81187-8-I/11
congruent with A.H.’s testimony that she lost control of her bowels. The State
presented evidence of saliva from A.H.’s genitalia matching Bannister’s DNA
profile, and injuries she sustained, corroborating A.H.’s narrative of Bannister’s
attack. Bannister gave contradictory statements at trial and provided no
explanation for the third party witness testimony that they heard A.H. scream,
“He’s trying to rape me.”
Ineffective Assistance of Counsel
Bannister next argues that he was denied effective assistance of counsel
when his attorney did not object to the doctor’s improper opinion testimony and
made it worse by introducing the word “rape” into the doctor’s diagnosis.
A criminal defendant is entitled to effective legal counsel. U.S. CONST.
amend. VI; W ASH. CONST. art. I, § 22; State v. Grier, 171 Wn.2d 17, 32, 246 P.3d
1260 (2011). We review ineffective assistance of counsel claims de novo. State
v. Rafay, 168 Wn. App. 734, 775, 285 P.3d 83 (2012).
In order to prevail on an ineffective assistance of counsel claim, a
defendant must prove two elements: deficient performance and resulting
prejudice. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). Deficient
performance is shown where an attorney’s conduct falls “below an objective
standard of reasonableness based on consideration of all the circumstances.”
Estes, 188 Wn.2d at 458 (quoting State v. McFarland, 127 Wn.2d 322, 334-35,
899 P.2d 1251 (1995)). Counsel’s performance is not deficient where their
conduct can be explained as a legitimate trial strategy. Estes, 188 Wn.2d at 458.
Prejudice requires a showing that there is a reasonable probability that “ ‘but for
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No. 81187-8-I/12
counsel’s deficient performance, the outcome of the proceedings would have
been different.’ ” Estes, 188 Wn.2d at 458 (quoting State v. Kyllo, 166 Wn.2d
856, 862, 215 P.3d 177 (2009)). Where a defendant fails to prove either
element, “we need not inquire further.” State v. Hassan, 151 Wn. App. 209, 217,
211 P.3d 441 (2009).
For the reasons discussed above, Bannister cannot demonstrate that “but
for” his defense counsel’s performance the outcome of his trial would have been
different. Because Bannister fails to show he was prejudiced, we need not
inquire further.
We next turn to Bannister’s statement of additional grounds for review.
Speedy Trial
Bannister contends that multiple continuances prevented him from having
a speedy trial in violation of the United States and Washington Constitutions and
CrR 3.3.
Bannister was arrested on July 4, 2018. He was charged five days later
on July 9, 2018. Bannister was incarcerated for 18 months between his arrest
and his January 2020 trial. The record is silent as to Bannister’s arraignment
date, his initial trial date, and multiple continuance hearings, except for October
4, 2019. The record does show that two attorneys withdrew from representing
Bannister, one in August 2018 and another in February 2019. On October 4,
2019, over Bannister’s objection, the court granted a motion from Bannister’s
defense counsel continuing Bannister’s trial to December 5, 2019 to
accommodate an expert witness and defense counsel’s vacations. Through a
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No. 81187-8-I/13
January 7, 2020 declaration from defense counsel in the record, 2 we know the
court previously continued Bannister’s trial for various scheduling issues, such as
vacation leave of both counsel or unavailability of counsel because of other trial
commitments. Trial began on January 6, 2020. According to the declaration,
Bannister objected to all the continuances.
A. CrR 3.3
A detained defendant must be brought to trial within 60 days of an
arraignment. CrR 3.3(b)(1)(i), (c)(1). Courts may continue a defendant’s trial
date if a continuance is required “in the administration of justice and the
defendant will not be prejudiced in the presentation of his or her defense.” CrR
3.3(f)(2). “Continuances appropriately granted by the court are excluded from
the calculation of time to trial and extend the allowable trial date to 30 days after
the end of the excluded period.” State v. Hatt, 11 Wn. App. 2d 113, 150, 452
P.3d 577 (2019) (quoting CrR 3.3(b)(5), (e)(3), (f)). Both the unavailability of
witnesses and leaves of attorney are valid grounds for trial continuances. See
State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993) (unavailability of a
witness); State v. Heredia-Juarez, 119 Wn. App. 150, 153, 79 P.3d 987 (2003).
(leave of prosecutor); State v. Jones, 117 Wn. App. 721, 729, 72 P.3d 1110(2003) (leave of defense counsel). If a defendant’s counsel brings a motion for a
trial continuance, any objection from the defendant is waived. CrR 3.3(f)(2). We
review violations of CrR 3.3 de novo. Hatt, 11 Wn. App. 2d at 150.
2 The declaration was in support of a CrR 8.3(b) motion to dismiss that was
denied.
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No. 81187-8-I/14
The record before us is insufficient to evaluate Bannister’s claim that his
speedy trial rights were violated under CrR 3.3. The record includes only the
October 2019 continuance order. As that motion for continuance was brought by
Bannister’s defense counsel, Bannister’s objection to it was waived. CrR
3.3(f)(2). To the extent the record does suggest that at least one continuance
was brought on behalf of the State for a prosecutor’s leave, there is no evidence
that the continuance was improper as a prosecutor’s scheduled leave is a proper
basis for a court to grant a continuance. Heredia-Juarez, 119 Wn. App. at 153.
Because it appears that defense counsel requested several continuances, and
the record on appeal does not include any orders granting continuances or
setting trial dates other than the October order, we cannot review this claim.
RAP 10.10(c).
B. Constitutional speedy trial right
Criminal defendants are guaranteed a constitutional right to a speedy trial.
U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22. Washington courts rely on
the Barker balancing test to determine whether a defendant has been denied the
right to a speedy trial. State v. Ollivier, 178 Wn.2d 813, 827-28, 312 P.3d 1(2013); Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 33 L. Ed. 2d 101(1972). A defendant must first show that the delay between their charges and
trial was “presumptively prejudicial” to trigger the balancing test. Ollivier, 178
Wn.2d at 827. To determine if the delay was presumptively prejudicial, courts
may look to the length of the delay, the complexity of the charges, and the
reliance on eyewitness testimony. State v. Iniguez, 167 Wn.2d 273, 292, 217
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No. 81187-8-I/15
P.3d 768 (2009). If a Barker test is triggered, we are required to consider the
“[l]ength of the delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant.” Hatt, 11 Wn. App. 2d at 153 (citing Barker,
407 U.S. 514 at 530). We review constitutional violations de novo. Hatt, 11 Wn.
App. 2d at 152.
The charges against Bannister were neither complex nor numerous. We
recently concluded that an 18-month delay was sufficient to trigger a Barker
analysis in a first degree murder case that included an array of accompanying
charges. Hatt, 11 Wn. App. 2d at 153. The delay at issue in Bannister’s case
was presumptively prejudicial to trigger a Barker analysis.
The first and second factor of the Barker analysis, the length of the delay
and reason for the delay, allow the court to assess whether the delay was
“reasonably necessary for defense preparation” and “evaluates each party’s
responsibility for the delay.” Hatt 11 Wn. App. at 154. In the instant case,
Bannister’s trial was delayed for presumably about 18 months. However, for the
reasons discussed above, the record is insufficient for us to review each party’s
responsibility for the delay or whether each continuance was reasonably
necessary for defense preparation. Thus, we cannot review this claim and need
not examine the remaining Barker factors. RAP 10.10(c).
Government Misconduct
In his statement of additional grounds, Bannister next alleges that the
government engaged in misconduct by not disclosing relevant evidence to the
defense.
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No. 81187-8-I/16
“The court, in the furtherance of justice, after notice and hearing, may
dismiss any criminal prosecution due to arbitrary action or governmental
misconduct when there has been prejudice to the rights of the accused which
materially affect the accused's right to a fair trial.” CrR 8.3(b). A defendant
alleging government misconduct must demonstrate both misconduct and actual
prejudice. State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017).
A defendant can bring a government misconduct claim where the State violates
its discovery obligations. Salgado-Mendoza, 189 Wn.2d at 429. As part of those
obligations, the State must turn over all potentially exculpatory evidence, as well
as evidence that could be used as impeachment evidence. State v. Mullen, 171
Wn.2d 881, 894, 259 P.3d 158 (2011) (analyzing the State’s disclosure
obligations to defense under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963)). We review a trial court's decision on a motion to dismiss
for an abuse of discretion. State v. Brooks, 149 Wn. App. 373, 384, 203 P.3d
397 (2009).
Bannister’s allegation echoes motions for dismissal filed by his defense
counsel during trial. The first motion, filed January 7, 2020, alleged that the State
had not delivered reports from deputies involved with Bannister’s allegations.
The trial court denied this motion. The second motion to dismiss, filed January
13, 2020, alleged that the State failed to provide Brady material related to the
termination of a deputy involved in the Bannister investigation. The court
determined the material in question was not Brady material. We review each in
turn.
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No. 81187-8-I/17
A. Reports from deputies
On January 6, 2020, the prosecutor sent an e-mail to defense suggesting
that it had a report from a deputy that had not previously been provided. This
prompted a motion from defense to dismiss. At a hearing where the parties
examined what deputy reports were and were not provided, it was discovered
that the State actually had provided the report to defense in November 2018, and
the only missing materials amounted to “administrative cover sheets.” The trial
court explained, “in light of the hundreds and hundreds of pages of documents
that have been produced, the failure to produce what this Court would regard as
relatively inconsequential administrative sheets of paper, does not rise to the
level of gross mismanagement which would mandate dismissal of this matter or
other sanctions pursuant to Criminal Rule 8.3(b).” At the hearing, defense
counsel did not further maintain it did not receive relevant reports. The trial court
did not abuse its discretion in denying the defense motion to dismiss.
B. Brady material
During trial, the State provided an e-mail chain to defense explaining its
efforts to locate one of the investigating officers who took A.H.’s statement. It
was through this e-mail chain that defense learned that the deputy had resigned
in lieu of termination. Defense moved for dismissal arguing that the State
violated its Brady obligations by failing to provide defense with the reason the
deputy resigned in lieu of termination. The trial court ordered the State to provide
the deputy’s personnel file for in camera review so it could determine if the
reason for the deputy’s departure qualified as Brady material. The State
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No. 81187-8-I/18
explained that the deputy’s departure had nothing to do with the case or qualified
as Brady material. Nevertheless, the State provided the deputy’s file under seal
for the court’s in camera review. The State also located the deputy and alerted
the court and opposing counsel that the State could make her available for trial
should defense wish to call her.
After reviewing the file, the court denied the motion explaining, “I would
likely not even allow any of this information to be introduced for impeachment
purposes. It’s not even tangentially related to any investigation involved in this
case or her abilities with regard to investigations. It's really quite tangential.”
Defense counsel stated it did not intend to call the deputy to testify based on the
court’s ruling.
Because Bannister did not designate the sealed record to be transferred
on appeal, we do not have a sufficient record to review his claim. RAP 10.10(c).
Prosecutor’s Conflict of Interest
In his third statement of additional grounds, Bannister contends that the
prosecutor who tried his case had a conflict of interest because she expressed
personal feelings about Bannister and “improperly vouched for [his] conviction”.
Bannister fails to cite to any part of the record to support his claim. The record
suggests Bannister is referring to an e-mail that the prosecutor provided to
defense that appeared to relay statements A.H. made to the prosecutor about
whether she and Bannister were both Jehovah’s Witnesses, a fact Bannister
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disputes. 3 The issue is not that the prosecutor vouched for Bannister’s
conviction but that it appeared the prosecutor became a potential impeachment
witness in the case.
Generally, an attorney may not act as a witness at a trial in which they are
acting as an advocate. RPC 3.7.
Again, Bannister echoes a motion to dismiss raised by his defense
counsel below. However, Bannister fails to acknowledge that the information in
the e-mail the prosecutor sent were notes she found in her file relaying
information a victim advocate received from A.H. This was explained during a
hearing in court. The court summarized by saying, “[the prosecutor] didn't
receive this information. So all she did is she disclosed it. That's why it's her
email. And when I read this, the first thing that jumped out at me was ‘[A.H.] told
us,’ and I – the question was: Who's us? Now we know the ‘us’ is somebody from
the victim's advocate office.” Thus, the court correctly concluded that it is the
victim advocate who is a potential impeachment witness, not the prosecutor. The
prosecutor did not have a conflict of interest and the court correctly denied the
defense motion. Bannister fails to otherwise establish the existence of any other
conflict of interest.
Jury Instructions
Finally, in his statement of additional grounds, Bannister complains of
3 Bannister cites to Appendix E, which appears to refer to attachments to
defense counsel’s trial memorandum. While Appendix E relates to an order
regarding defense expert, Appendix F includes an e-mail from the prosecutor that
is the heart of the claim.
19
No. 81187-8-I/20
flawed jury instructions suggesting that it was unclear whether the indecent
liberties charge was a separate act from the rape charge. Because the trial court
vacated the indecent liberties conviction at sentencing, Bannister’s claim is moot.
See State v. Calhoun, 163 Wn. App. 153, 168, 257 P.3d 693 (2011) (assignment
of error is moot if there is no remedy available to the defendant). We therefore
decline to review this claim.
We affirm.
WE CONCUR:
20