In re Pers. Restraint of Curry

• Decision Date: 15 June 2021
• Docket Number: No. 54033-9-II,54033-9-II
• Court: Washington Court of Appeals
• Parties: In the Matter of the Personal Restraint of VERNON LEWIS CURRY, JR., Petitioner.

In the Matter of the Personal Restraint of VERNON LEWIS CURRY, JR., Petitioner.

No. 54033-9-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

June 15, 2021

UNPUBLISHED OPINION

MAXA, P.J. - In this personal restraint petition (PRP), Vernon Curry seeks relief from personal restraint imposed following his convictions of first degree murder with a firearm enhancement and first degree unlawful possession of a firearm.

Curry argues that (1) his defense counsel provided ineffective assistance of counsel by failing to (a) challenge the State's firearm ballistics expert's testimony, (b) move for a mistrial after the jury heard inadmissible hearsay, (c) object to admission of a recording of a 911 call on confrontation clause grounds, (d) request a limiting instruction regarding the 911 call, and (e) request a limiting instruction regarding a photograph that showed the word "gang"; (2)the trial court erred in admitting a recording of the 911 call into evidence; (3) cumulative error deprived him of a fair trial; and (4) his appellate counsel provided ineffective assistance of counsel.

We conclude that Curry's claims have no merit.Accordingly, we deny Curry's PRP.

FACTS

Shooting Incident

On September 7, 2014, at approximately 4:00 AM, Michael Ward was shot and killed in his car outside an after-hours club in Tacoma.

A surveillance video showed a man pulling a mask over his face as he approached Ward's vehicle.A witness then approached Ward and realized that he had been shot, and fired several shots toward a car in the street.Another witness told law enforcement that he saw a man in a ski mask commit the shooting.That witness also fired shots.A police officer who was nearby heard gunshots and saw a Black male with a face covering sprinting down the sidewalk carrying a dark object.

A witness who lived near where the shooting occurred observed someone running through the area.A ski mask later was discovered in that area.

On the same day as the shooting, Karin Curry - Curry's stepmother - called 911 to report her son's possible involvement in Ward's murder.During the call, Karin¹ asked for a police officer to come to her house to "talk to him regarding the shooting last night in Tacoma."PRP App. Attach.D.When the operator asked what Karin would like to speak to the officer about, she clarified: "I'm the -- I'm a parent, and I think there's a possibility that my son was involved. . . .He called me this morning and he was very distraught and so, you know . . . I'm not sure."PRP App. Attach.D.

Investigation

Crime scene technicians recovered multiple .38 and .40 caliber bullets and spent shell casings from the crime scene.Ten days after the shooting, a .40 caliber Sig Sauer pistol was discovered near where the ski mask was found.There were no fingerprints or matching DNA profiles on the gun.Forensic testing later found Curry's DNA on the inside of the ski mask under the eyes and the mouth, although DNA from an unknown person also was found.

The State charged Curry with first degree murder with a firearm enhancement and first degree unlawful possession of a firearm.

Trial

At trial, Brenda Walsh testified as the State's ballistics expert.Walsh worked as a forensic scientist in the firearm and toolmark section of the Washington State Patrol Crime Laboratory.In that capacity, she examined fired bullets and cartridge cases to determine whether they had been fired by a particular firearm.

In this case, Walsh test fired the Sig Sauer pistol and collected the fired bullets and cartridge cases.She then microscopically examined multiple cartridge cases, bullet jacket fragments, and bullet fragments that were recovered from the crime scene and compared them to each other and to the test fires.Specifically, Walsh looked for certain patterns of reproducible markings and markings with unique characteristics.Based on her analysis, Walsh concluded that seven cartridge casings, three bullet jacket fragments and three bullet fragments found at the scene were fired from the Sig Sauer pistol.

Defense counsel did not object to Walsh's testimony on the grounds that her analysis was not scientifically accepted.Defense counsel also did not cross-examine Walsh about the validity of her analysis or her ability to make conclusive statements.Instead, in a brief cross-examination he established that Walsh had no knowledge of any fingerprint analysis done on the shell casings, that there were nine additional casings that came from a different gun, and that there were bullet fragments from a third gun.

The State also called Karin as a witness.On direct examination, Karin testified that she called the police after receiving a "call from . . . [her] grandson's mother . . . saying that there was speculation that my son could possibly be involved."8B RP at 579.Defense counselobjected on the basis of hearsay, which the trial court sustained.The trial court later instructed the jury to disregard any evidence ruled inadmissible during trial.

Later in her testimony, Karin was asked why she called the police.She denied calling due to her suspicions regarding her son's involvement in the shooting.The State then began to play a recording of the 911 call.At some point during the recording, defense counsel asked to stop the recording and objected on the basis of hearsay, relevance, and prejudice.The trial court overruled the objection, reasoning that there was no hearsay in the recording itself, and allowed the tape to be played in its entirety.

Curry testified in his own defense.He explained that he had gone to a club with his then girlfriend on the night of the shooting.After the club, Curry and his girlfriend returned to his home around 3:00 or 3:30 AM and went to bed.Curry acknowledged that he lived roughly two miles from the crime scene and that cell tower records revealed that he was in the general location of the shooting between 3:30 and 4:30 AM.

Curry testified that he had a media company called Ylyfe Entertainment.As part of a photoshoot for Ylyfe, he wore a black ski mask similar to the one found near where the shooting occurred.But Curry claimed that his mask was in a container that had been stolen from his car months before the shooting.

During cross-examination, the State asked if Ylyfe produced music that condoned street violence.Curry denied promoting street violence through Ylyfe.The State then sought admission of a hip-hop music video produced by Ylyfe featuring Curry for the limited purpose of impeaching him as to whether Ylyfe promoted street violence.The trial court excluded the video but allowed the State to introduce two still photos of Curry with the term "Y Gang" and "Y GangEntertainment."15 RPat 1623-24.The court offered to give a limiting instruction to accompany the photos, which defense counsel refused.

During closing argument, defense counsel focused on the lack of direct eyewitness identification evidence.He emphasized that no witness identified Curry as the person who shot Ward, and in fact the two eyewitnesses who knew Curry told law enforcement that he was not the shooter.Defense counsel did not mention the forensics evidence.He acknowledged that seven shots were fired from the Sig Sauer pistol that law enforcement located, but he questioned the circumstances surrounding the discovery of the pistol in plain sight the day after Curry was arrested.And he also noted the many other shots that were fired.Defense counsel did not mention the 911 call or the Y Gang photographs.

The jury found Curry guilty of first degree murder with a firearm enhancement and unlawful possession of a firearm.

Curry appealed his convictions.State v. Curry, No. 49026-9-II, slip op. at 1(Wash. Ct. App.Apr. 24, 2018)(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049026-9-II%20Unpublished%20Opinion.pdf. Curry raised various issues on direct appeal.Id. at 1.This court affirmed Curry's convictions.Id.

Curry then filed this PRP.

ANALYSIS

A. PRP PRINCIPLES

We will grant appropriate relief when petitioners establish that they are under restraint that is unlawful for one of certain specified reasons.RAP 16.4(a), (c).To prevail in a PRP, a petitioner must establish (1)"a constitutional error that resulted in actual and substantial prejudice," or (2)"a nonconstitutional error involving a fundamental defect that inherentlyresulted in a complete miscarriage of justice."In re Pers. Restraint of Dove, 196 Wn. App. 148, 154, 381 P.3d 1280(2016).The petitioner must make this showing by a preponderance of the evidence.Id.The standard for nonconstitutional error is stricter that the actual prejudice standard for constitutional error.SeeIn re Pers. Restraint of Amos, 1 Wn. App. 2d 578, 589, 406 P.3d 707(2017).

However, "a PRP is not a substitute for a direct appeal, and the availability of collateral relief is limited."Dove, 196 Wn. App. at 153." 'Relief by way of a collateral challenge to a conviction is extraordinary, and the petitioner must meet a high standard before this court will disturb an otherwise settled judgment.' "Id.(quotingIn re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324(2011)).

RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to support the factual allegations in the PRP.In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503, 384 P.3d 591(2016).The petitioner must show that he has competent, admissible evidence to support the petition.In re Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872(2013).Conclusory allegations are insufficient.Wolf, 196 Wn. App. at 503.In addition, the factual allegations must be based on more than speculation and conjecture.Yates, 177 Wn.2d at 18.

B.INEFFECTIVE ASSISTANCE OF COUNSEL

Curry argues that he was actually and substantially prejudiced by ineffective assistance of counsel because of defense counsel's failure to (1) challenge the testimony of the State's firearms ballistics expert, (2...