In re Gossett

• Decision Date: 31 March 2014
• Docket Number: NO. 71435-0-I,71435-0-I
• Court: Washington Court of Appeals
• Parties: In the Matter of the Personal Restraint Petition of MARK J. GOSSETT, Petitioner.

In the Matter of the Personal Restraint Petition of MARK J. GOSSETT, Petitioner.

NO. 71435-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: March 31, 2014

UNPUBLISHED OPINION

LAU, J. — In this personal restraint petition (PRP), Mark Gossett challenges his convictions in Thurston County Superior Court No. 08-1-02102-9, seeking a new trial based on denial of effective assistance of counsel at trial, denial of effective assistance of counsel on appeal, and prosecutorial misconduct in closing argument. Gossett acknowledges that he raised the ineffective assistance of trial counsel and prosecutorial misconduct issues on direct appeal, but he now asserts the same arguments supported by different facts and contends appellate counsel was ineffective for inadequately arguing the issues on direct appeal. Because Gossett's ineffective assistance of trial counsel and prosecutorial misconduct claims lack merit, he fails to show that appellate counsel's performance on direct appeal constituted ineffective assistance. We deny Gossett's PRP.

FACTS

Mark Gossett is currently serving a term of 245 months' confinement following his conviction by jury of two counts of second degree rape of a child and two counts of second degree child molestation of his adopted daughter AG. The facts of this case are fully discussed in Gossett's direct appeal. State v. Gossett, noted at 167 Wn. App. 1011, 2012 WL 830507. In sum, AG and her biological sister SG were placed as foster children in Mark and Linda Gossett's home in June 2000. In December 2001, the Gossetts adopted the sisters. According to AG, life at the Gossetts' home changed dramatically after the adoption. The Gossetts were strict and used corporal punishment to discipline AG.

In January 2008, after an argument with Linda,¹ AG moved in with Jennifer Myrick, a woman she had met at the Gossetts' church. In June 2008, AG told Myrick and Myrick's best friend, Roberta Vandervort, that Gossett had sexually abused her. AG told Myrick and Vandervort that the abuse began around the time she was in eighth grade.

In July 2008, AG met with Thurston County Deputy Sheriff Kurt Rinkel and told him that Gossett began touching her in eighth grade. AG turned 14 in November of her eighth grade year. AG also told Sergeant Evans on two occasions that the sexual abuse started when she was 14 years old. In November 2008 the State charged Gossett with two counts of second degree child rape (domestic violence) and two counts of second degree child molestation (domestic violence).

During pretrial proceedings and at trial, the defense raised AG's failure to report and delay in reporting the sexual abuse. In March 2010, the defense moved to exclude "the testimony of Kelly Jones, whom the State intends on calling as an expert witness for purposes of testifying with respect to the potential delay in reporting of victims of child rape." In the declaration supporting the motion, defense counsel objected on grounds that Jones had never met AG and that the testimony regarding delay in reporting was unscientific, lacked foundation, and failed to meet the Frye² standard. In its memorandum of authorities in support of the motion to exclude Jones's testimony, the defense noted:

It has been presented to the Defendant, by the State that Kelly Jones is going to be called as an expert witness to testify that it is normal for alleged victims of child rape, or rape in general, to delay the reporting of the incident. The State is first presuming that the Defense will cross examine [AG] and try to impeach her for the delay in reporting the incidents. They intend to call Kelly Jones to explain to the jury that, according to studies, it is not unusual at all for these types of victims to delay in reporting incidents of sexual abuse.

(Emphasis added.) The memorandum objected to the testimony on the same grounds noted in counsel's declaration. The defense did not dispute the State's understanding of its trial strategy, nor did the defense deny that it would impeach AG over her delay in reporting.

In its opposition to Gossett's motion to exclude Jones's testimony, the State explained:

Because AG did not disclose her sexual abuse until June of 2008, when she turned 18 years old and was able to move out of the house, one of defendant's theories of the case is that AG lied by virtue of having waited to tell. Specifically, defendant plans to argue that because AG never told earlier and delayed her disclosure, this in and of itself is indicative of lying and seeks to challenge AG'scredibility. The State anticipates that [Jones] will testify that not only is it commonplace for child victims of sexual assault to delay disclosure of their abuse, but it is equally common for these individuals to deny the fact that the sexual abuse even occurred.

(Emphasis added.) The State further argued, "Here, the defendant will be arguing that AG's allegations are false because she delayed disclosure. . . . [T]he state's expert should be allowed to testify since it is offered to rebut the defense theory that AG's delayed disclosure suggests she's lying."

In its response brief to the State's opposition, the defense again argued that the proposed expert testimony lacked scientific foundation and was inadmissible under Frye. The defense also responded to the State's comments on its theory of the case:

Finally, the State simplifies the defense position in regard to the complaining witness statements. The defense does not contend that the witness lacks credibility because she did not disclose. The defense position is more nuanced. The complainant has considerable knowledge of the system, and of the protections that are available. With these in mind, the complainant did disclose, but disclosed actions that had nothing to do with defendant. Only when the disclosures that complainant was making were insufficient to achieve her ends, did she escalate the accusations.

Despite the claim that the State misunderstood its argument, the defense never denied that it intended to question AG about her delay in reporting the sexual abuse.

At the hearing on the defense motion to exclude Jones's testimony, defense counsel argued:

The defendant Mark Gossett is charged with I believe it's two counts of child molestation and two counts of rape of a child, four incidents that occurred over a three- or four-year period of time. And the alleged victim, [AG], moved out of the family home in January of 2008 and had not ever disclosed what she alleges was going on during the time it was supposedly going on and did not disclose anything until early June of. . . 2008. And in anticipation that the defense would be cross-examining the alleged victim and arguing that there was a delay in such reporting and therefore it must not be true, the state has indicated that it's their intent to call, for lack of a better word, an expert to testify apparently that the -- adelay in reporting is not unusual in these types of cases. It's our position that that is not the proper subject of expert testimony under Evidence Rule 702 and 703, and also under State v. Black, [109 Wn.2d 336, 745 P.2d 12 (1987)].

RP (Apr. 1, 2010) at 12-13 (emphasis added). Defense counsel argued, consistent with the defense briefing on the issue, that Jones's testimony was unscientific and inadmissible under Frye. The State responded,

[Defense] [c]ounsel would like to exclude expert testimony because he wants to use the fact that [AG], the victim in this case, delayed reporting and therefore is indicative of her credibility. Well . . . the Frye standard does not apply, not only when the witness bases his or her testimony on their own experience, training and observations, but also when it goes to rebut the defense theory that the delay in reporting shows that the victim's allegations were false.

. . . .

. . . . The Frye standard just doesn't apply and [Jones's] testimony's relevant based on their defense theory.

RP (Apr. 1, 2010) at 21-23. Defense counsel never disputed the State's account of the defense's theory of the case and trial strategy during the hearing. The court reserved ruling on the motion until after jury selection.

Meanwhile, the defense trial brief, filed April 19, indicated the defense intended to cross-examine AG regarding her delay in reporting the sexual abuse. See Clerk's Papers (CP) at 92 ("[AG] never told anyone anything about any problems with her father, Mark Gossett" until disclosing the abuse to Jennifer Myrick and "on or about June 2, 2008, [AG] allegedly disclosed to Jennifer Myrick and . . . [Roberta] Vandervort, that she had been being [sic] sexually abused by Mark. This was the first time that [AG] had ever told anybody that she had been sexually abused by Mark."); CP at 93 ("It is the intent of the defense to show how unlikely is it that Mark sexually abused [AG] and also how unlikely it is that she is telling the truth. In that vein, the defense intends to introduce evidence about all of the things mentioned herein . . . . The defense will alsointroduce evidence that will make it highly unlikely that this abuse occurred, that [AG] has told people different scenarios and that once she made the alleged disclosure to Jennifer Myrick and [Roberta] Vandervort, she would tell people that she hardly knew that she had been sexually abused by Mark Gossett.").

The court revisited the motion to exclude expert witness testimony on April 19. Defense counsel informed the court:

My understanding is that if [Jones is] being called - - I guess I'll say, my understanding is the expectation by the State is that [AG] will be cross-examined on her delay in reporting, and, therefore, this expert will come to say that that's basically not abnormal, that it's fairly common. . . .

And so my position is, again, that we don't know if [Jones's] expertise covers that area, because it's not necessary in dealing with the treatment that she provides.

RP (Apr. 19, 2010) at 31-32 (emphasis added). The prosecutor responde...