State v. Carson

• Decision Date: 17 September 2015
• Docket Number: No. 90308–5.,90308–5.
• Parties: STATE of Washington, Respondent, v. David William CARSON, Petitioner.
• Court: Washington Supreme Court

184 Wash.2d 207

357 P.3d 1064

STATE of Washington, Respondent

v.David William CARSON, Petitioner.

No. 90308–5.

Supreme Court of Washington, En Banc.

Argued Jan. 20, 2015.

Decided Sept. 17, 2015.

Valerie Marushige, Attorney at Law, Kent, WA, for Petitioner.

Thomas Charles Roberts, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

Opinion

WIGGINS, J.

¶ 1 David Carson appeals from his conviction on three counts of child molestation in the first degree. He argues on appeal that he received ineffective assistance of counsel because his attorney objected to a Petrich¹ instruction proposed by the State. A defendant must overcome a heavy burden in order to prevail on a claim of ineffective assistance; he must demonstrate that his attorney's performance was professionally deficient and that he suffered prejudice as a result. Carson satisfies neither prong of this standard.

¶ 2 Defense counsel reasonably concluded that the proposed instruction's language, tailored as it is for use in single-count cases, would be confusing and potentially prejudicial in Carson's multicount case. Under these circumstances, Carson cannot establish deficient performance. Moreover, defense counsel's objection did not prejudice Carson because the prosecution's closing argument clearly elected the acts on which the State was relying. For these reasons, we affirm.

BACKGROUND

I. Factual Background

¶ 3 In 2009, Carson, who was homeless at the time, moved into the home of his childhood friend, Dustin Halbert. Halbert lived with his fiancée, Tiffany Hagen, and her three children, including C.C., who had just turned five years old at the time Carson moved in. Carson watched the children during the day while Halbert and Hagen worked. Carson lived with the family for approximately one year and two months.

¶ 4 Three months after Carson had moved out of the house, C.C. told Hagen that Carson “tried to put his penis in [C.C.'s] butt.” Hagen called police. Thirteen days later, C.C. underwent a medical examination and was interviewed by child forensic interviewer Cornelia Thomas. The forensic interview lasted just over 40 minutes. A DVD (digital video disk) of the interview was introduced as an exhibit at Carson's trial. The jury viewed the video of the forensic interview three times: once during Thomas's testimony at trial and twice during its deliberations after sending requests for the video to the court.

¶ 5 As recorded in the DVD, C.C. describes three separate incidents of sexual assault by Carson in some detail: one where Carson twisted C.C.'s “business,” C.C.'s term for a penis; and two incidents where Carson attempted to put his “business” in C.C.'s “bottom.” According to C.C.'s statements during the interview, Carson twisted C.C.'s “business” in a bathroom. C.C. also said that Carson attempted to put his “business” in C.C.'s “bottom” while they were in his “mom's room,” which he also referred to as his “mom and dad's” room. At some point during this assault, Carson put tape on C.C.'s mouth and used zip ties to tie C.C.'s hands behind his back. In the third incident that C.C. described, Carson attempted to put his “business” into C.C.'s “bottom” in C.C.'s own room after making C.C. look at his Spiderman blanket.

¶ 6 The following month, Detective Thomas Catey interviewed Carson at the Pierce County Sheriff's Department headquarters. During the interview, Carson denied having any sexual contact with C.C. Carson claimed that the allegations were retaliation for Carson's moving out of their house and leaving them in a financial bind.

¶ 7 The State charged Carson with one count of rape of a child in the first degree and one count of child molestation in the first degree. Eleven days before trial, the State filed an amended information charging three counts of child molestation in the first degree. Because C.C. never provided dates on which each event occurred, each count of the amended information specified a charging period covering the entire time that Carson lived in the same house as C.C.—April 1, 2009 to May 31, 2010:

That DAVID WILLIAM CARSON, in the State of Washington, during the period between the 1st day of April, 2009 and the 31st day of May, 2010, did unlawfully and feloniously, being at least 36 months older than C.C., have sexual contact with C.C., who is less than 12 years old and not married to the defendant and not in a state registered domestic partnership with the defendant, contrary to RCW 9A.44.083, and against the peace and dignity of the State of Washington.

II. Trial

¶ 8 When he testified at trial, C.C. had difficulty recalling the specifics of each incident, often responding with “I forgot” or “I don't remember” to questions from both attorneys. C.C. recalled a few particulars, such as Carson tying C.C.'s hands and taping his mouth while they were in his parents' room, but C.C. was unable to confirm or recount most of the details he had described in his videotaped interview 18 months earlier.² During his cross-examinations of C.C. and other state witnesses, defense counsel largely avoided questions that could elicit details of the specific incidents. When examining his own witnesses, defense counsel focused on Carson's background, Carson's responsibilities while he lived with Halbert and Hagen, and the witnesses' observations of C.C.

¶ 9 The prosecution's closing argument focused exclusively on the three incidents that C.C. described in his videotaped interview. The prosecutor explicitly told the jury that those incidents were the only acts the State wished the jury to focus on for the purposes of its deliberations. The prosecutor then proceeded to walk the jury through the specifics of these three incidents, which correlated with the three described in C.C.'s interview.

¶ 10 In the defense's closing argument, defense counsel argued that the allegations were entirely fabricated. He argued that true sources of the allegations against Carson were Halbert and Hagen, who concocted the claims of sexual abuse as retaliation for Carson's leaving them in a financial bind. During the relatively short time that defense counsel spent discussing the specific allegations against Carson, he focused almost entirely on the video of C.C.'s interview with Thomas and urged the jury to view the video. He argued that the allegations against his client were completely false, the by-product of coaching by C.C.'s parents combined with embellishment by C.C. himself.

¶ 11 Prior to closing arguments, the parties discussed the State's proposed Petrich instruction, which read:

The State alleges that the defendant committed acts of Child Molestation in the First Degree against C.C. on multiple occasions. To convict the defendant on any count of Child Molestation in the First Degree, one particular act of Child Molestation in the First Degree must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of Child Molestation in the First Degree.

¶ 12 The possibility of a Petrich instruction had first been raised by the trial court the week before trial. Defense counsel had then suggested that the instruction might not be necessary because the evidence showed “three separate and distinct, identifiable acts.” On the second day of trial, the parties discussed their proposed instructions with the court, including the State's Petrich instruction. Defense counsel argued that the instruction was unnecessary because the evidence pointed to “three separate and distinct incidents, one in [C.C.'s] room, one in his mother's room, and one in the bathroom.”³ Defense counsel argued that reading the Petrich instruction could cause jury confusion:

I think [the Petrich instruction] can be confusing in a case where you have specific instances alleged, where three acts potentially are alleged ... and three acts are charged. If you read that instruction, it confuses the jury into thinking, well, if you agree that one act happened, then you must agree that all of them happened. And that concerns me.

¶ 13 The following day, after both parties rested, defense counsel specifically objected to the State's proposed Petrich instruction as confusing. The State responded that it had not elected to tie specific acts to specific counts “in the Information,” noting that each of the counts alleged the same charging period were “due in large part to [C.C.'s] inability to specifically say on this day and at this time” each incident occurred. The trial court sustained defense counsel's objection and declined to give the instruction.

¶ 14 The jury returned verdicts of guilty on all three counts.

III. Appeal

¶ 15 Carson appealed, asserting that his trial counsel's objection to the Petrich instruction constituted ineffective assistance of counsel.⁴ The Court of Appeals affirmed. State v. Carson, 179 Wash.App. 961, 320 P.3d 185 (2014). The court held that trial counsel's objection to the Petrich instruction was a reasonable trial tactic and thus did not constitute ineffective assistance. The court quoted extensively from the record, noting defense counsel's concerns that the Petrich instruction could confuse the jury. The Court of Appeals further noted that this objection comported with the defense's broader trial strategy, in which defense counsel “avoided discussing specific incidents in his closing argument and argued instead that CC's testimony and statements were so muddled, inconsistent, and confusing that they created a reasonable doubt about whether Carson had committed any of the acts or the charged crimes....” Id. at 979, 320 P.3d 185.

¶ 16 In dissent, Judge Worswick asserted that defense counsel's objection to the Petrich instruction was based on a belief that Petrich was inapplicable in multicount cases. Id. at 982–84, 320 P.3d 185. She concluded that this objection was based “on an erroneous view of the law” and thus cannot “be characterized as a legitimate trial tactic.” Id. at 984, ...