In re Theders, 53557-9-I.

• Decision Date: 21 November 2005
• Docket Number: No. 53557-9-I.,53557-9-I.
• Citation: 123 P.3d 489,130 Wn. App. 422
• Court: Washington Supreme Court
• Parties: In re the Personal Restraint Of William H. THEDERS, Jr., Petitioner.

123 P.3d 489

In re the Personal Restraint Of William H. THEDERS, Jr., Petitioner.

No. 53557-9-I.

Court of Appeals of Washington, Division One.

November 21, 2005.

Tom Conom, Attorney at Law, Edmonds, WA, for Appellant.

Lee Davis Yates, King County Prosecutor's Office, Seattle, WA, for Respondent.

GROSSE, J.

¶ 1 A criminal defendant does not have a right under the Confrontation Clause of the Sixth Amendment to prevent the introduction of incriminating statements of a co-defendant unless those statements are offered for the truth of the matter asserted. When they are offered for reasons other than proving the truth of the matter, as here, they are not hearsay and are not contrary to Crawford v. Washington.¹ Moreover, the Personal Restraint Petition (PRP) is a collateral attack on a trial that occurred in 2001, and on a direct appeal filed in early 2003, long before Crawford was decided and to which that case does not apply. As a result, the remaining collateral attack based on allegations of ineffective assistance of appellate counsel fails as counsel's performance was neither deficient nor prejudicial. The petition is denied.

FACTS

¶ 2 William H. Theders, Jr., files a PRP alleging he is being unlawfully held in custody pursuant to a judgment obtained in violation of the United States and Washington constitutions.

¶ 3 Theders and co-defendant Larry F. Graves were charged with attempted first degree murder. Theders was found guilty as an accomplice following trial. Graves, who acted as the principal, pled guilty following Theders' trial. At trial, Theders was represented by retained counsel, Tom P. Conom. Conom raised a number of arguments against the use of custodial and non-custodial statements made by co-defendant Graves, which were admitted to show Theders' state of mind and knowledge. Conom argued that the admission of the statements was a violation of Theders' right of confrontation. Statements admitted at trial were those made by the non-testifying co-defendant and similar statements made by Theders. By the time of trial, the original statements by Graves and Theders were acknowledged by them to be false.

¶ 4 Following his conviction, Theders filed a motion for a new trial specifically alleging that the trial court erred in denying his motion in limine to exclude any custodial statements of the co-defendant to implicate Theders, or the one-sided telephone conversation of the co-defendant to show Theders' state of mind, expressly arguing confrontation issues. The motion was denied.

¶ 5 Theders appealed his conviction. He was represented on appeal by appointed counsel Christopher Gibson and Robert Weppner. Appellate counsel did not assign error to, or argue Sixth Amendment confrontation issues, thus they were not considered or decided in the direct appeal. Theders challenged other evidentiary rulings made by the trial court and jury instructions. The conviction was affirmed in an unpublished opinion.² Theders' petition for review was denied by the State Supreme Court.

¶ 6 Theders filed this PRP alleging ineffective assistance of appellate counsel and violations of his Sixth Amendment right of confrontation under the Confrontation Clause. Theders is once again represented by Tom P. Conom, original trial counsel.

¶ 7 A full recitation of the substantive facts is set forth in the prior unpublished opinion of this court. But, in short, Angela and Larry Graves lived with Larry's longtime friend Theders in Monroe, Washington. The Graves' marriage was not stable and, with the support of her friend Valerie Anderson, Angela asked for a dissolution of the marriage. Larry was unhappy about the prospect of the dissolution and knew that Anderson was supportive of Angela's decision.

¶ 8 Angela and her children went to Anderson's house to spend a weekend in early November of 2000. Angela and her children returned to Theders' house but Anderson called Angela and told her someone had cut a hole in the top of her convertible. Larry offered to fix the hole with duct tape. Anderson came to the house and visited with Angela while Larry fixed the roof of the car.

¶ 9 After fixing the roof of Anderson's car, Larry and Theders said they were going to Petsmart at the Everett Mall to buy a dog bed for a new puppy Larry purchased for his children. They left in Theders' pick-up. Sometime after they left, Larry used his cell phone to call Angela to tell her that the store was closed and that he and Theders were coming home. Angela testified that she heard Theders in the background while Larry talked to her. Shortly after this call, Valerie Anderson left to drive home. Later, Larry called Angela again and said he and Theders were in Snohomish and that they were going to try to find a dog bed at another store. At trial, the content of the cell phone calls was entered into evidence through the testimony of Angela over objection of counsel. The evidence was admitted to show Theders' state of mind, that he knew what was happening. Theders claimed he had a cold and had no reason to listen to what Larry was talking about. He testified that he did not hear or pay attention to Larry's calls to Angela.

¶ 10 Valerie Anderson arrived home. As she walked to her front door a man wearing dark clothes and a ski mask grabbed her from behind. The attacker held a serrated knife to Anderson's throat and the two struggled. Anderson said she recognized Larry's voice when he shouted at her to be quiet. Anderson sustained several severe cuts to her throat, face and hands.

¶ 11 The attacker fled when a neighbor who heard Anderson screaming, yelled and shined a flashlight on them. The attacker ran towards a slow moving pick-up truck at the end of Anderson's driveway, got in and drove away. The neighbors called 911. Anderson was interviewed at the hospital, where she identified Larry Graves as her attacker. Police recovered a bent, serrated knife and a ski mask at the scene.

¶ 12 Angela Graves said that Theders and Larry returned home, but that Theders left shortly thereafter. Police arrived and arrested Larry. Larry gave a statement to the police saying that he and Theders went to Petsmart at the Everett Mall, but because it was closed, they stopped at other places to find a dog bed, including a Fred Meyer store. They then returned home.

¶ 13 Angela called Theders and asked him to come home to talk to the police. When Theders arrived, the detective told him that Larry was arrested because police believed he stabbed someone. Theders responded that it was impossible because Larry had been with him. Theders told the officer they had been together from 5:30 to 7:30 p.m.

¶ 14 After being advised of his Miranda³ rights, Theders signed an almost identical statement to the one given by Larry, that he and Larry left the house to go to the Everett Mall to buy a dog bed for the new puppy. The store was closed so they went to Fred Meyer and then returned home. He also indicated that he had been to Anderson's house only once before and that he did not know how to get there. He said that he and Larry did not go to Anderson's house and he could not explain how Anderson thought it was Larry that attacked her.

¶ 15 Police told Theders they had information that a truck with two male occupants, one wearing glasses, as Theders does, was involved in the crime. After asking about potential perjury charges, Theders gave a second written statement to the police admitting that he drove Larry to Anderson's house, dropped Larry there and parked nearby. He saw Anderson arrive home and after a few minutes he drove back to Anderson's house. Larry walked to the truck and got in. Larry was shaky and nervous and told Theders he had spoken with Anderson. Theders denied knowing that Anderson had been hurt by Larry until he was later told by the police.

¶ 16 The State prosecuted Theders on an accomplice liability theory. Theders' defense at trial was that he had no knowledge that Larry planned to hurt or attack Anderson. The State argued that Theders knew Larry planned to kill Anderson, and that he assisted Larry by helping to conjure up and provide him with a false alibi as well as driving him to and from Anderson's house. The State emphasized Theders' conflicting statements to police, the statement of Larry and Larry's side of his cell phone conversations with Angela to establish an alibi. The State emphasized the false interlocking alibi statements of the two men and called them the key piece of evidence to establish Theders' knowledge that Larry was planning to kill Anderson. The State also provided testimony of a jailhouse informant to show that at the time Theders knew exactly what Larry was planning on doing and that Larry had a ski mask and a serrated knife in his possession.

ANALYSIS

¶ 17 A PRP is not a substitute for an appeal. "[C]ollateral review undermines the principles of finality of litigation, degrades the prominence of the trial, and sometimes costs society the right to punish admitted offenders."⁴ Thus, to obtain relief through collateral review (PRP) Theders must show he was actually and substantially prejudiced by a violation of constitutional error or that nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice.⁵ The petitioner bears the burden of establishing prejudice by a preponderance of the evidence, but that burden "may be waived where the error gives rise to a conclusive presumption of prejudice."⁶ However, the court explicitly rejected the suggestion made in dicta in prior opinions that constitutional errors that are per se prejudicial on direct appeal "will also be presumed prejudicial for the purposes of personal restraint petitions."⁷

¶ 18 Initially, Theders claims the trial court committed prejudicial error by admitting the custodial and cell phone statements of the non-testifying co-defendant, allegedly referring to and implicating Theders without confrontation...