In re Griffin
| Decision Date | 07 September 2016 |
| Docket Number | No. 42012-1-II,42012-1-II |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Personal Restraint Petition of: LESTER JUAN GRIFFIN, Petitioner. |
LEE, J. — Lester Juan Griffin was convicted of first degree burglary and first degree assault in 2009. This court affirmed his convictions on direct appeal in 20101 and then dismissed his personal restraint petition on procedural grounds in 2014.2 The Supreme Court remanded Griffin's petition for determination on its merits.3
In his petition, Griffin raises three broad arguments. First, he asserts that his rights under Brady v. Maryland4 were violated when his defense counsel did not receive evidence relating to investigations against the lead investigating officer for: (1) conflicting statements made under oath in a different criminal proceeding; (2) sexual harassment and assault of a coworker; and (3) an off-duty, unauthorized investigation and arrest of a suspect. Second, he asserts that his trial counselwas ineffective for failing to: (1) adequately investigate the officer's conduct described above; (2) impeach the testimony of the accomplice and investigating officer with a prior inconsistent statement; and (3) object to the prosecutor's conduct during the State's case in chief, closing, and rebuttal. Third, Griffin asserts that several instance of prosecutorial misconduct warrant reversal of his convictions.
We grant Griffin's petition and remand for new trial because the State failed to disclose evidence favorable to Griffin that, in the aggregate, create a reasonable probability that the outcome of the proceedings would have been different. We also hold that Griffin's counsel was deficient in failing to object to the prosecutor's improper vouching during the State's case in chief and there is a reasonable probability that prejudice resulted. Finally, we dismiss Griffin's prosecutorial misconduct argument because he fails to establish that a curative instruction could not have obviated the prejudice.
Lester Juan Griffin was convicted in 2009 of attempted first degree burglary, with a firearm enhancement, and first degree assault, with a firearm enhancement. His convictions precipitated from the attempted robbery, and subsequent shooting, of Gary Atkinson around midnight on May 17, 2008.
Around midnight on May 17, 2008, Atkinson awoke to a loud pounding on the front door of his apartment. He opened his front door partway and saw two African-American males standing outside his door. The men wore bandanas covering their mouths, but not their noses, and both had guns pointed at him. The men shouted for Atkinson to "[g]et down," as Atkinson tried to shut thedoor on them. Verbatim Report of Proceedings (VRP) at 100. Unable to shut the door, Atkinson allowed the door to swing open and pushed his way through the two men. Outside of his apartment, Atkinson heard one say, VRP at 101, 106, 123. He heard two shots, and felt one of the bullets hit him in the back.
Atkinson ran to his neighbor's apartment for help. Atkinson's neighbor had heard the gunshots and, after Atkinson came inside, stepped outside to see two men running down the hallway towards the carport area. The neighbor then called 911. The first 911 call came in at 12:12 a.m. on May 17.
Atkinson said he recognized one of his attackers as Garry Alexander. Atkinson said he recognized Alexander by his voice, build, eyes, nose, and tattoo under his eye. Atkinson told the responding officer that Alexander was one of his attackers, and he identified Alexander in a photo laydown5 later at the hospital. Atkinson testified that he knew Alexander through Atkinson's girlfriend, whom Alexander had a child with. Atkinson said that he and Alexander had spoken more than twenty times over the prior two years, that Alexander had been to Atkinson's home and work, and that Alexander had a "distinctive" voice. VRP at 117. Atkinson also said that his girlfriend had told him that Alexander was planning to punch Atkinson in the stomach the next time Alexander saw him.6
Personal Restraint Petition (PRP)7 Ex. 16, at 44. Alexander told Wilken the three then went to the Evergreen Park Apartments, near Atkinson's apartment complex, and parked there. PRP Ex. 16, pg. 46. Alexander said he was supposed to be the getaway driver, but had thought better of it and left Griffin and Perkins stranded at the apartments after they got out of the car.
Perkins was picked up by police and went with Sergeant Michael Chylack and another officer as they searched the area around the Evergreen Park Apartments during the day on May19. The officers had to abandon their search, however, because they were afraid Perkins would be seen working with the police. Perkins told the police where to find a glove that was used in the crime. Chylack returned that night, this time with Wilken, and Chylack found a black glove along a fence line. A deoxyribonucleic acid (DNA) analysis was performed on the glove. Griffin's DNA was found on the glove, along with other unknown contributors, while Alexander and Perkins were excluded as possible contributors.
After Alexander's second interview, Alexander entered into a plea deal with the State in exchange for his testimony against Griffin. The plea agreement stated that Alexander would be given a sentence of 48 months for first degree attempted robbery in exchange for his truthful testimony against Griffin and Perkins. The plea agreement also stated that Alexander would be subject to a polygraph test at any time. The plea agreement was later admitted at trial without objection from Griffin's trial counsel.
Alexander testified that on the night of the attempted robbery, he and Perkins were at Griffin's apartment when Alexander and Perkins decided to walk to a nearby Chevron convenience store for snacks. The convenience store did not take EBT cards as a form of payment, so Alexander and Perkins walked to the mini-mart across the street. Griffin met them on the way to the mini-mart. The three were captured on the mini-mart's surveillance system entering at 11:39 p.m. and leaving at 11:41 p.m. on May 16. After leaving the mini-mart the three went back to Griffin's apartment, got into Griffin's car, and then the three drove back to the mini-mart in Griffin's car where Griffin bought a Steel Reserve beer. Security footage from the mini-mart shows Griffinarriving at 11:54 p.m. and leaving with a silver aluminum can at 11:58 p.m. on May 16. Only Griffin could be seen in the later photos from the mini-mart.
Alexander also testified that after leaving the mini-mart, they parked at the Evergreen Park Apartments because it was further away from where the robbery would take place, and then Griffin and Perkins got out to go rob Atkinson. Alexander "lost his nerve" and drove to the apartment of his ex-wife, Tina Williams, so he could use her phone to call his fiancée. VPR at 264. He said he wanted his fiancée to help him get Griffin's car back to Griffin's apartment.
Marilyn Green was Griffin's friend and lived in the Evergreen Park Apartments. She testified that Griffin and another African-American male arrived at her doorstep about 11:00 p.m., or a little bit after, asking to use her phone. She could not remember on what day this occurred. Griffin told her they had been drinking at a bar, Griffin's car had broken down, and they needed to call for a ride. This testimony was confirmed by Green's daughter, who also testified at Griffin's trial.
Wilken also testified at Griffin's trial. He testified that Alexander's testimony at trial was consistent with what Alexander had told him during the second interview, before Alexander had been offered a plea deal. Specifically, Wilken testified that Alexander had told him they made a second stop at the mini-mart so that Griffin could buy a Steel Reserve beer. This testimony was admitted over objection as a prior consistent statement because, as the prosecutor argued to the judge, "This witness [Wilken] would testify that Garry Alexander told him the exact same thing in the interview that was before the cooperation agreement was signed, so I submit it's not hearsay, it's a prior consistent statement." VRP at 399.
Shortly before trial, the defense learned that Wilken was placed on administrative leave from the Vancouver Police Department. Griffin's trial counsel brought this to the trial court's attention and asked for the facts related to the administrative leave to determine if they went to the "truth and veracity, which could have an effect . . . in this case." VRP at 87. The prosecutor responded that he did not know how the defense found out that Wilken was on administrative leave, but that he had "looked into it to find out if there was any Brady material," and that he was "specifically advised by the chief criminal deputy" "that there was no allegation of any issues that would...
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