May 12, 2009.
Petition for relief from personal restraint.
Denied by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
Rodney Cooley has filed a personal restraint petition challenging his jury convictions for one count of first degree assault, one count of second degree assault with a deadly weapon, and one count of second degree assault by torture. He argues that: (1) the search warrant for his house unlawfully allowed police to seize the victim; (2) the word "torture" in the second degree assault statute is unconstitutionally vague; (3) insufficient evidence supports his conviction for second degree assault by torture; (4) the deadly weapon sentence enhancement violates double jeopardy; (5) he received ineffective assistance of counsel; and (6) the prosecutor committed misconduct. We deny his petition.
We have incorporated the facts from Commissioner Schmidt's ruling in Cooley's direct appeal, cause no. 31354-5-II (filed March 8, 2005).
In September 2003, Theresa Gorham went to Rodney Cooley's and Janice Novotney's home for dinner. Just as Cooley finished preparing dinner, Gorham and Novotney went to a store and bought beer, over Cooley's objections. When they returned, Cooley was angry and accused Gorham and Novotney of using drugs while they were gone. Gorham said nothing but Novotney denied, falsely, that they had used drugs. When Cooley brought them dinner, Novotney objected to the taste of mushrooms and announced she was not hungry. According to Gorham, Cooley took a beer bottle from the counter, held it in front of Novotney's face, and broke the beer bottle across Novotney's knee. Gorham helped Novotney to her bedroom, where she changed her pants. The beer bottle had not cut her leg. At Gorham's suggestion, Novotney left with her and stayed at her home for two days.
Early in the morning of September 14, Gorham received an internet message from Novotney. Novotney had left Gorham's residence to retrieve a change of clothes but she had not returned. When Gorham called Novotney later that morning, Novotney explained that Cooley had slapped her during dinner the night before. Gorham called a friend, Techla Fish, to check on Novotney. When Fish arrived, she saw that Novotney had a black eye, bruises on her neck, and slap marks on her face. When Gorham arrived later, she, too, saw that Novotney was shaken and had a black eye, bruises on her chin and neck, and slap marks on her face. Later that evening, a mutual friend took pictures of Novotney's face and neck.
According to Gorham, Novotney told her of instances when Cooley had (1) held her down and slapped her, (2) urinated on her, (3) poked her in the chest, (4) thrown Ajax in her face, and (5) broken a broom across her back.
Gorham, Fish, and Kathleen Butcher helped Novotney move into Gorham's home. Butcher and Fish also noticed that Novotney had a black eye and bruises on her neck. According to Butcher and Fish, Novotney said that Cooley had lifted her off the ground by her neck.
Novotney also told Butcher and Fish about the incidents that Gorham had described.
On October 9, Deputy James Jones responded to a 911 call reporting domestic violence assault. Jones saw that Novotney had a black left eye.
Novotney told Jones that she had been assaulted. On October 13, Deputy Lynelle Kern went to Novotney's home to follow-up on Deputy Jones's domestic violence report. Kern noticed that Novotney's eye, face, and neck were bruised. Novotney told Deputy Kern that she did not want to talk to her. Novotney also denied that Cooley was there at the time.
The next day, Deputy Kern returned with a warrant to search for "[b]ruises and injuries upon Janice Novotney as well as evidence of blood and other damage to the residence and/or other items of property caused by acts of domestic violence." Petitioner's Exhibit C. Deputies found Cooley in the residence. Kern ordered Cooley to come out with his hands up. When Cooley did not comply, Kern drew her weapon, ordered Cooley to the ground, handcuffed him, and placed him under arrest.
As the deputies removed Cooley from the residence, he began yelling at Novotney and asking her what she had done. According to Kern, Novotney began rocking back and forth and repeating: "Oh my God, I'm dead. Oh my God." Report of Proceedings (RP) (Dec. 11, 2003) at 461. Novotney told Kern that on October 8 Cooley had slapped her, kicked her, punched her, and put his hands around her throat, squeezed, and lifted her off the ground in a way that prevented her from breathing.
II. Procedure A. Trial
The State charged Cooley with one count of first degree assault, one count of second degree assault with a deadly weapon, and one count of second degree assault by torture. Novotney testified that during most of the time at issue, she had been drunk or high on methamphetamine. She also testified that: (1) during the dinner with Gorham, she had been drunk and high; (2) Cooley did not strike her with a beer bottle; (3) on October 8, she threw her keys at Cooley and struck him; (4) she did not recall whether Cooley had struck her, but Cooley did not grab her around the neck or lift her from the floor; (5) Cooley did not slap her face or hit her in the stomach; (6) she could not remember whether she had made the statements that Gorham and Deputy Kern reported, but the events she had described to Gorham, Butcher and Fish had not occurred; (7) the only times Cooley had struck her were in self-defense against her assaults on him; (8) the bruises depicted in the October 9 photographs resulted from Cooley's defending himself, from her falling onto a countertop while cleaning her cupboards, and from training her horse. Novotney also testified that she planned to marry Cooley.
The State also charged Cooley with second degree rape and felony harassment, but the trial court dismissed those charges at the end of the State's case.
Novotney could not recall her visit to the hospital emergency department on October 14 or her statements to the physician. The State and Cooley stipulated to admission of her emergency department medical record, which contained a history that Novotney had given to the physician. That history provided:
[Novotney] states that over the last six months to one year she has been physically abused by the male with whom she lives. She states it escalated in the last six months and even at a higher level of frequency in the last two weeks such that the physical abuse has been daily over the last two weeks. She states that yesterday he picked her up by the throat but she states she did not ever stop breathing or pass out from that.
Clerk's Papers (CP) at 144.
Gorham, Fish, Butcher, Deputy Jones, and Deputy Kern testified as described above. Forensic pathologist John Howard, M.D., testified that squeezing a person's neck until the person cannot breathe will result in some brain injury within 3 to 15 seconds and will result in permanent brain damage within 1 to 2 minutes. Dr. Howard also testified that Novotney's bruises, as shown in the photographs taken on October 9 and October 14, were consistent with squeezing a person's neck to the point that the person could not breathe. Domestic violence counselor April Gerlock, Ph.D., testified that some victims of domestic violence recant their statements reporting violence.
Cooley testified and denied that he had argued with or struck Novotney with a beer bottle during their dinner with Gorham. He admitted to having slapped Novotney on October 8 and struggling with her, but only in self-defense after she threw her keys at him and tried to stab him with a knife. He denied committing any of the acts that Novotney reportedly described to Gorham, Butcher, and Fish. The jury convicted Cooley as charged.
B. Appellate Review
Cooley filed a direct appeal. He argued that (1) the State had failed to present sufficient evidence of first degree assault, second degree assault with a deadly weapon, or second degree assault by torture, and (2) the trial court erred in admitting hearsay evidence. Holding that these arguments were clearly without merit, our court commissioner affirmed the judgment and sentence. The Washington Supreme Court denied review. State v. Cooley, 156 Wn.2d 1029, 132 P.3d 1094 (2006).
Cooley filed a timely personal restraint petition, for which we held oral argument. Thereafter, we remanded to the trial court for an evidentiary hearing to address Cooley's claim that ineffective assistance of counsel rendered his guilty plea invalid. On March 5, 2009, the trial court conducted a hearing and considered testimony and documentary evidence. The trial court entered findings of fact on March 20. Having received the trial court's findings of fact on March 23, we now address Cooley's arguments.
The mandate issued on April 21, 2006. Cooley filed this personal restraint petition on April 10, 2007.
In his personal restraint petition (PRP), Cooley argues that: (1) the search warrant for his house unlawfully allowed police to seize Novotney; (2) the word "torture" in the second degree assault statute is unconstitutionally vague; (3) insufficient evidence supports his conviction for second degree assault by torture; (4) the deadly weapon sentence enhancement violates double jeopardy; (5) he received ineffective assistance of counsel; and (6) the prosecutor committed misconduct. These arguments fail.
I. Personal Restraint Petition, Scope of Review
As a threshold matter, we note that a personal restraint petitioner may not revive an issue that he raised and the court rejected on direct appeal unless the interests of justice require relitigation of that issue. In re Pers. Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986). The petitioner may raise new issues, however, including both errors of constitutional magnitude that result in actual and substantial prejudice and nonconstitutional errors that constitute a fundamental defect and inherently result in a complete miscarriage of justice. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 331, 823 P.2d 492 (1992); In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990); In re Pers. Restraint of Hews, 99 Wn.2d 80, 87, 660 P.2d 263 (1983).
II. Search Warrant
For the first time, Cooley challenges the search warrant for his home. He argues that the warrant was unlawful because (1) it allowed police to seize a person, Novotney; and (2) search warrants may allow the seizure of only things, not persons. Cooley premises his entire argument on this assertion: "The whole case started when deputies obtained a warrant to `seize' Janice Novotney." Petitioner's Op. Br. at 7-8. Cooley's assertion, however, misconstrues the warrant, which did not allow deputies to seize Novotney. Thus, this argument fails.
A. Standard of Review
Whether a search warrant was facially invalid is a question of law that we review de novo. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998). We interpret warrants in a common sense, practical manner, rather than in a hyper technical sense. State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992). In close cases we must resolve doubts in favor of upholding the warrant's validity. State v. Helmka, 86 Wn.2d 91, 93, 542 P.2d 115 (1975).
In essence, Cooley argues that the search warrant was facially invalid because it authorized police action that was not the proper subject of a search warrant, an arrest of a person. But such was not the case here. Here, Deputy Lynelle Kern submitted a complaint for a search warrant in which she requested authority to search Cooley's and Novotney's home for:
Photographs of injuries caused by domestic violence, the victim's body to be examined by a medical doctor to include a full X-ray of the skeletal system, and also evidence of blood and other damage to the residence and/or other items of property caused by acts of domestic violence.
Petitioner's Exhibit B, at 1.
But the judge did not issue a warrant to search for everything Deputy Kern had requested. Instead, the judge issued a warrant allowing police to search for the following evidence "in, about and upon" the home:
Bruises and injuries upon Janice Novotney as well as evidence of blood and other damage to the residence and/or other items of property caused by acts of domestic violence.
Petitioner's Exhibit C.
Deputy Kern's search warrant complaint was not a search warrant. It is irrelevant that she may have requested a search and seizure that the law does not authorize. It is the duty of judges and magistrates, not law enforcement officers, to rule on the law and to issue warrants accordingly. State v. Patterson, 83 Wn.2d 49, 57-58, 515 P.2d 496 (1973). The only document at issue here is the search warrant that the court issued, and it did not authorize police to seize Novotney. Instead, the warrant authorized police to preserve evidence of bruises on Novotney's body by taking photographs at the scene, writing reports, or testifying about any bruises or injuries they observed. This warrant validly allowed police to examine Novotney in her home to discover evidence of a crime, namely bruises and injuries on her body. Helmka, 86 Wn.2d at 93.
Although the search warrant complaint is central to many issues, such as whether probable cause supported the warrant, Cooley does not raise such a challenge here. State v. Higby, 26 Wn. App. 457, 460, 613 P.2d 1192 (1980). Rather, he focuses on the probable cause standard of review, but only to argue that (1) probable cause did not support a conclusion that Novotney was a criminal suspect; and (2) therefore, an arrest warrant could not be issued for her. Because the warrant did not allow police to arrest Novotney, this point is irrelevant to Cooley's petition.
The search warrant allowed police to search for bruises and injuries on Novotney, but it did not authorize police to compel her, as Cooley claims, to leave her home or to submit to a medical examination. The search warrant contained typical, "boilerplate" language allowing police to "seize all evidence, and to safely keep the same"; but this "boilerplate" language does not apply to the issue before us: Police obviously cannot seize "bruises and injuries upon Janice Novotney." Petitioner's Exhibit C.
Cooley provides no authority, and we find none, for the proposition that a search warrant is invalid simply because it authorizes police to search for evidence exhibited on a person's body. To the contrary, our courts and legislature authorize search warrants to obtain evidence from a person by conducting strip searches, body cavity searches, and blood tests. RCW 10.79.080 (body cavity search); State v. Kalakosky, 121 Wn.2d 525, 852 P.2d 1064 (1993) (blood test); State v. Hampton, 114 Wn. App. 486, 492-93, 60 P.3d 95 (2002) (strip search). Cooley does not argue that the warrant was invalid simply because it authorized police to search for "bruises and injuries upon Janice Novotney," and we cannot reach such a conclusion based on this record.
Cooley's argument implies that, regardless of the warrant's plain language, police in fact seized Novotney and compelled her to undergo an off-site medical examination and photographic session. This is not Cooley's argument to make. "[O]ne only has standing to challenge the legality of one's own arrest." State v. Lewis, 19 Wn. App. 35, 43, 573 P.3d 1347 (1978) (citing State v. Freeman, 17 Wn. App. 377, 563 P.2d 1283 (1977)). Cooley has no standing to challenge Novotney's theoretical arrest. Because the warrant is valid on its face and Cooley provides no argument beyond one based on an erroneous interpretation of the warrant, we deny his petition on this ground.
Police explained to Novotney that she was not under arrest, but they had a "seizure warrant." Deputy Kern told her "that the warrant was only to take her to the hospital so that she could be treated, get a medical examination, and that she would be returned home; she wasn't going to be placed in restraints or anything." RP Vol. 5 at 465. There is some evidence that Novotney consented to go with police to the hospital, notwithstanding the warrant. But Cooley did not raise this issue until now and, thus, did not develop the trial court record on this issue.
If police seized Novotney, they did not do so under the court-authorized search warrant.
III. "Torture" Not Vague
Cooley next argues that RCW 9A.36.021(1)(f), defining second degree assault in terms of "torture," is vague because (1) neither the statute nor the jury instructions defined "torture," and (2) recent political developments have rendered the definition of "torture" indefinite. Again, we disagree.
The jury found Cooley guilty of violating RCW 9A.36.021(1)(f), which provides in relevant part:
A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
. . . .
(f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.
See also Respondent's App. B (Instruction No. 28). Cooley asks us to base our decision about the "vagueness" of the term "torture" on the political debate over whether particular interrogation techniques used by federal government agents constituted "torture." This debate, he contends, renders the term indefinite in the minds of ordinary citizens and, thus, renders the statute vague. Cooley does not have standing to raise this challenge.
A. Standard of Review
We review the constitutionality of a statute de novo. State v. Eckblad, 152 Wn.2d 515, 518, 98 P.3d 1184 (2004). We presume a statute is constitutional; the burden is on the party challenging it to prove that it is unconstitutionally vague beyond a reasonable doubt. Sullivan, 143 Wn.2d at 180. Where, as here, the statute does not implicate first amendment activity, courts review the vagueness challenge under the facts of the case. State v. Lee, 135 Wn.2d 369, 393, 957 P.2d 741 (1998). "A defendant whose conduct clearly fits within the proscriptions of a statute does not have standing to challenge the constitutionality of that statute for vagueness." In re Detention of Albrecht, 129 Wn. App. 243, 254, 118 P.3d 909 (2005) (quoting Lee, 135 Wn.2d at 393).
Courts permit facial challenges only when the statute implicates first amendment activity. See Douglass, 115 Wn.2d at 182.
B. No Standing
Cooley lacks standing to raise this vagueness challenge because his conduct clearly fits within the statute's proscriptions. See In re Albrecht, 129 Wn. App. at 254. We have previously approved two very similar definitions of "torture": (1) "to cause intense suffering, inflict anguish on; subject to severe pain"; and (2) "the infliction of severe or intense pain as punishment or coercion, or for sheer cruelty."
State v. Madarash, 116 Wn. App. 500, 514, 66 P.3d 682 (2003) (quoting Webster's Third International Dictionary (1969)); Brown, 60 Wn. App. at 65. The pain and agony that Cooley inflicted on Novotney clearly fits within these definitions.
Cooley physically abused Novotney for six months to a year and, in the two weeks before his arrest, escalated to physically abusing her daily: Cooley (1) broke a beer bottle across Novotney's knee; (2) slapped her hard enough to blacken her eye and to bruise her face; (3) urinated on her; (4) threw Ajax in her face; (5) broke a broom across her back; and (6) choked her and lifted her off the ground by her throat so that she could not breathe, putting her at great risk of brain injury. There is also evidence that Cooley assaulted Novotney in order to "punish" her: He broke the beer bottle across her knee because she would not eat the dinner he had prepared and because he disapproved of her using drugs alone with Gorham. This behavior clearly fits within RCW 9A.36.021(1)(f)'s proscriptions.
Cooley argues that the jury did not necessarily believe that all these instances of abuse occurred and, instead, could have convicted him of assault by torture if it concluded that his assaults caused "indignities, but not . . . agonizing pain worse than other assaults." Petitioner's Op. Br. at 27. Cooley's theory at trial was that Novotney had fabricated her allegations of abuse and that he had slapped and restrained her rarely and minimally in self-defense to her violent outbursts. The State's theory, in contrast, was that Cooley had repeatedly assaulted Novotney over a six-month period in the manner described above. The jury's decision to convict him on this count demonstrates that it believed the State's theory. Cooley's conduct fit squarely within the statutory prohibition of causing, by design, severe pain or anguish. Accordingly, he lacks standing to challenge the statutory definition of "torture." See In re Albrecht, 129 Wn. App. at 254.
IV. Insufficient Evidence
Cooley next argues that insufficient evidence supported his conviction for second degree assault by torture. Cooley previously raised this argument and we rejected it on the merits in his direct appeal. He fails to argue that justice requires the issue's re-litigation. Accordingly, we hold that Cooley is barred from relitigating this issue in his personal restraint petition. See RCW 10.73.140 and In re Pers. Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986) (A personal restraint petitioner may not renew an issue that he raised on direct appeal and the court rejected on the merits unless he demonstrates that the interests of justice require relitigation of that issue.).
In Cooley's direct appeal, we reviewed whether sufficient evidence supported his second degree assault by torture conviction. Our court commissioner addressed the issue on the merits and rejected it:
A jury convicted Rodney Cooley of one count of assault in the first degree, one count of assault in the second degree with a deadly weapon and one count of assault in the second degree by torture. He appeals, arguing that the State failed to present sufficient evidence as to any of these crimes. . . .
. . . .
Cooley's conviction for assault in the second degree by torture is supported by the history that Novotney gave when she was taken to the hospital emergency department. She told the physician that she was "sometimes punched, sometimes slapped, sometimes bitten" by Cooley. CP at 144. Novotney's statements to the physician were admitted properly under ER 803(a)(4) as statements made for the purposes of medical diagnosis or treatment. The State presented sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that Cooley committed assault in the second degree by torture in his repeated assaults of Novotney.
State's Appendix D.
Cooley argues that he did not raise the issue of sufficiency of the evidence in his direct appeal quoting the following assignment of error in his Brief of Appellant: "Did the Trial Court err in allowing the jury to consider charges where the State failed to prove all elements of those charges?" Petitioner's Reply Br. at 13 (quoting App. Op. Br. at 1). We do not have the direct appeal briefs before us. Nevertheless, this assignment of error challenged the sufficiency of evidence. Although this assignment of error seems to have challenged the trial court's denial of a defense motion to dismiss a charge at the close of the State's case, we always review such issues for the sufficiency of evidence where, as here, the jury entered a verdict. State v. Jackson, 82 Wn. App. 594, 608, 918 945 (1996), review denied, 131 Wn.2d 1006 (1997).
V. Double Jeopardy
"It is well settled that sentence enhancements for offenses committed with weapons do not violate double jeopardy even where the use of a weapon is an element of the crime." State v. Nguyen, 134 Wn. App. 863, 866, 142 P.3d 1117 (2006), review denied, 163 Wn.2d 1053 (2008); cert. denied, 129 S. Ct. 644, 172 L. Ed. 2d 626 (2008). Cooley argues, however, that we must reexamine this rule in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Specifically, he contends that his punishment for both a firearm enhancement and first degree robbery, premised on his possession of the same firearm, violates double jeopardy.
We rejected this argument in Nguyen, 134 Wn. App. at 866-70, and State v. Tessema, 139 Wn. App. 483, 493, 162 P.3d 420 (2007), review denied, 163 Wn.2d 1018 (2008). Based on these dispositive cases, we hold that multiple punishments for first degree robbery and a firearm enhancement do not violate double jeopardy.
VI. Ineffective Assistance of Counsel
Cooley next argues that he received ineffective assistance of counsel because: (1) he rejected a plea offer based on his trial counsel's misinformation about the maximum sentence he faced; (2) his trial counsel failed to call exculpatory witnesses; (3) his trial counsel failed to investigate Novotney's mental health; and (4) his trial counsel failed to challenge the search warrant's validity. We remanded to the trial court to hold an evidentiary hearing on the first issue. Based partially on the trial court's findings, we deny the petition on this ground.
A. Standard of Review
To prove ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984)). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). An attorney's representation is deficient when his performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). We strongly presume effective assistance of counsel and will grant a personal restraint petition on this ground only if the attorney's allegedly improper decisions were not based upon a legitimate strategic or tactical rationale. Strickland, 466 U.S. at 689. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1241 (1995).
In this petition, Cooley asserts that material facts exist outside the record which, in the interest of justice, require us to vacate his conviction and sentence. RAP 16.4(c)(3). Cooley fails to meet this test here.
B. Advice About Plea Bargain
Cooley argues that he received ineffective assistance of counsel because his attorney failed to advise him of the penalties that he faced if he rejected the State's plea agreement. This argument fails.
After the reference hearing on remand, the trial court found that (1) counsel had informed Cooley that, if he rejected the plea agreement and was convicted, he could go to prison "for a long time"; and (2) counsel did not articulate a specific standard range sentence that Cooley faced. An attorney's failure to advise a defendant of the available options and possible consequences during plea bargaining constitutes deficient performance. In re Pers. Restraint of McCready, 100 Wn. App. 259, 263-64, 996 P.2d 658 (2000). But assuming, without deciding, that trial counsel's advice was deficient, Cooley fails to establish ineffective assistance because no prejudice resulted.
In reviewing prejudice, we determine whether a reasonable probability exists that, but for his attorney's alleged deficiency, Cooley would have accepted the plea bargain. State v. James, 48 Wn. App. 353, 363-64, 739 P.2d 1161 (1987). The trial court took testimony and considered evidence on this issue. It found that Cooley's "claim that he would have accepted the plea offer had he been correctly informed about the sentencing consequences is not credible." Finding of Fact (FF) 4(b)(viii). And it found other evidence to the contrary: (1) the prosecutor had previously dismissed similar charges against Cooley in an earlier matter; (2) Cooley and his attorney reasonably believed that the jury would acquit him or that the prosecutor would dismiss the charges; and (3) Cooley believed strongly that he was innocent. FF 4(b). Based on this evidence, the trial court concluded that Cooley would not have accepted the State's plea bargain even if he had known the sentencing consequences he faced at trial.
Because Cooley would not have accepted the plea bargain even if he had known the exact sentence he faced by rejecting it, his counsel's failure to inform him of the possible sentence he faced if he rejected the plea bargain and went to trial did not prejudice Cooley. Thus, his claim of ineffective assistance of counsel fails because Cooley was not prejudiced. See In re McCready, 100 Wn. App. at 263-64.
C. Character Witnesses
Second, Cooley argues that his attorney provided ineffective assistance of counsel because he failed to investigate and to call character witnesses. He submits declarations by five people who each say that (1) they knew Cooley and Novotney, (2) they never saw Cooley act violently toward Novotney, (3) they witnessed Novotney act violently toward Cooley, (3) they were available and willing to testify, and (4) defense counsel did not contact them. Counsel's decision was a legitimate trial tactic and, hence, not deficient performance.
Generally, deciding whether to call a witness is a matter of legitimate trial tactics, which will not support a claim of ineffective assistance of counsel. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981). A defendant can overcome this presumption by showing that counsel failed adequately to investigate or prepare for trial. Byrd, 30 Wn. App. at 799. But the decision not to call a witness is considered a legitimate trial strategy where counsel has fully investigated and made an informed decision. See, e.g., State v. Hess, 12 Wn. App. 787, 532 P.2d 1173 (1975) (decision not to subpoena potentially harmful witness was justified), aff'd, 86 Wn.2d 51, 541 P.2d 1222 (1975); State v. Floyd, 11 Wn. App. 1, 521 P.2d 1187 (1974) (decision not to call alibi witness was legitimate part of trial strategy).
Cooley has not carried his burden to prove inadequate investigation or trial preparation; and, even if he had, it is clear from our record that counsel made an informed tactical decision. The following portion of the record is illuminating:
[Prosecutor]: Your Honor, just one motion. The defense attorney provided me with a summary of the anticipated testimony of his witnesses. . . . His, letter to me is dated November 13th, and indicates the following: Please accept the summary of testimony is that Mr. Cooley has never been violent before he met Janice Novotney, and that Janice has had her issues. . . . We would ask the defense to confirm for the record that that is what they anticipate their witnesses will testify about.
. . .
[Defense Counsel]: I don't intend to go there, because then I open up the prior convictions and reputation issues. There are several witnesses that may have seen acts of violence between these parties, and I don't particularly plan to go there at this time. . . . I may bring in several witnesses, people who have seen Ms. Novotney being violent in the past. I don't know that I'm going to bring them; I'm trying to limit this case. But out of caution — He's listed a considerable number of witnesses. Because there's a potentiality this case could get exponential, and I'm trying to curtail it.
1 RP at 27-29.
This portion of our record demonstrates that Cooley's counsel performed an adequate investigation. He researched the witnesses that Cooley proposed and knew they could testify that Novotney was violent. Counsel simply made an informed decision not to call them. He wanted to focus and to limit the case. He was also concerned that witnesses' testimony would open the door to cross-examination about Cooley's prior convictions and reputation, evidence that would not otherwise be admissible and might hurt his defense. Moreover, testimony by these people would have been cumulative with Novotney's testimony that she was often violent toward Cooley and he hurt her only in self-defense.
ER 405(a) (allowing cross-examination on specific instances of defendant's conduct to rebut reputation testimony); State v. Fisher, 130 Wn. App. 1, 16, 108 P.3d 1262 (2000) (citing State v. McFadden, 63 Wn. App. 441, 450 n. 25, 820 P.2d 53 (1991), review denied, 119 Wn.2d 1002, (1992)) (testimony supportive of good character opens the door to rebuttal evidence of the defendant's bad character).
We hold that Cooley's counsel was not deficient for deciding not to call these witnesses because that decision was a legitimate trial tactic. Thus, Cooley's ineffective assistance of counsel argument also fails on this ground.
D. Mental Health Investigation
Cooley further argues that he received ineffective assistance of counsel because (1) his attorney failed to investigate Novotney's mental health; and (2) if counsel had investigated, he would have discovered that Novotney had mental health disorders that, arguably, counsel could have used to impeach her testimony.
Cooley presents additional evidence on this point. He attaches an undated Social Security Administration "notice of award" that concludes that Novotney filed for benefits on June 23, 2005, and became disabled under the Administration's rules on August 31, 2003. Cooley also attaches a one-page Washington State Department of Social and Health Services (DSHS) record from May 18, 2005. The document is entitled "physician's certification for medicaid" and lists under the diagnosis portion, "Schizophrenia paranoid type r/o schizoaffective disorder[;] amphetamine dependence in remission." Petitioner's App. M.
Novotney submitted a declaration stating that DSHS had declared her disabled from mental health problems at the time of the trial. She says she "did not tell either Rod Cooley or his lawyer about [her] total mental health disability and DSHS payments at the time of these incidents, and at the time of my trial testimony, until after he had been convicted." Petitioner's App. N (Declaration of Janice Novotney, at 1).
Novotney's Social Security award and DSHS certification are irrelevant. Cooley does not argue that these documents constitute new evidence that render his trial unfair. Moreover, both documents are dated after the trial and fail to show that Novotney had a particular mental disorder, as alleged, when she testified. Cooley presents no actual evidence that his attorney could have discovered if he had conducted his investigation differently. Further, Novotney admits that she did not tell Cooley or his attorney about her mental health disability until after trial. Cooley shows no reason why counsel would have suspected that Novotney had a mental health disability; and an attorney is not required to search every possible source for any possible evidence that might help his client. State v. Frederick, 32 Wn. App. 624, 627, 648 P.2d 925 (1982), rev'd on other grounds, 100 Wn.2d 550 (1983) (holding that attorney is not required to investigate in a particular manner when he had no reason to believe the search would be fruitful). The record shows that Cooley's counsel performed a reasonable investigation; thus, his performance was not deficient.
Furthermore, Cooley's attorney had no reason to impeach Novotney's testimony. She testified that she was a methamphetamine abuser who was often violent toward Cooley and that he hurt her only in protecting himself from her violent outbursts. This testimony helped Cooley; his counsel had no reason to impeach Novotney based on her mental health disorders or otherwise. Accordingly, Cooley cannot demonstrate prejudice. Again, his ineffective assistance of counsel argument fails.
E. Search Warrant
Cooley also frames the search warrant issue as one of ineffective assistance of counsel. Because Cooley would not have prevailed on the merits if counsel had challenged the warrant, Cooley cannot demonstrate that his attorney's performance was deficient. Cooley has failed to prove that he received ineffective assistance of counsel on any ground.
VII. Prosecutorial Misconduct
Finally, Cooley argues that the prosecutor committed misconduct by failing to obtain and to disclose the victim's Department of Social and Health Services (DSHS) records. Petitioner's Op. Br. at 42. Because the records were not within the prosecutor's knowledge or control, we hold that the prosecutor did not commit misconduct.
The State is under a duty to disclose and to preserve evidence that is material to guilt or punishment and favorable to the defendant; its failure to do so generally violates the accused's constitutional right to a fair trial. In re Pers. Restraint of Hegney, 138 Wn. App. 511, 538-539, 158 P.3d 1193 (2007) (citing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Coe, 101 Wn.2d 772, 783, 684 P.2d 668 (1984); State v. Renfro, 28 Wn. App. 248, 251, 622 P.2d 1295 (1981), aff'd, 96 Wn.2d 902, cert. denied, 459 U.S. 842 (1982); CrR 4.7.) But the State's duty "is limited to material and information within the knowledge, possession or control of members of the prosecuting attorney's staff." CrR 4.7(a)(4).
Here, Cooley does not contend that the State requested, possessed, knew of, or controlled the DSHS records. Rather, his sole contention is that the prosecutor has an independent obligation to search the records of all government agencies for any material documents. In State v. Fredrick, we rejected the contention that a prosecutor has "constructive notice" of its entire county's records. Frederick, 32 Wn. App. at 627. And we held that a prosecutor is not required to search government files without any reason to believe they would contain relevant records. Frederick, 32 Wn. App. at 627. Any rule to the contrary, we reasoned, would impose an unreasonable burden on the State. Frederick, 32 Wn. App. at 627.
Cooley presents no reason to diverge from this precedent and we see none. Moreover, we cannot say that the prosecutors had ready access to medical records at issue here simply because another state government agency held them; privacy laws prohibit such unfettered access. See Citizens for Health v. Leavitt, 428 F.3d 167 (3rd Cir. 2005). We deny the petition on this ground.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, A.C.J., concur.