State v. Horton

• Decision Date: 20 May 2003
• Docket Number: No. 28093-1-II., No. 27677-1-II
• Citation: 116 Wash.App. 909,68 P.3d 1145
• Parties: STATE of Washington, Respondent, v. Thomas Ray HORTON, Appellant.
• Court: Washington Court of Appeals

68 P.3d 1145

116 Wash.App. 909

STATE of Washington, Respondent, v. Thomas Ray HORTON, Appellant.

Nos. 27677-1-II, 28093-1-II.

Court of Appeals of Washington, Division 2.

May 20, 2003.

James Elliot Lobsenz, Carney Badley Spellman, Seattle, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Atty Ofc, John Martin Neeb, Tacoma, WA, for Respondent.

MORGAN, P.J.

Thomas Ray Horton was convicted of rape of a child and child molestation. In this consolidated appeal and personal restraint petition (PRP), he claims, among other things, that he was ineffectively assisted by counsel. We grant the PRP and remand for new trial. In early 1999, S.S. and Horton lived in the same home. S.S., then age 13, told a friend that Horton had sexually abused her. The friend's mother helped her record the allegations on a cassette tape, which S.S. then played for her own mother, K.K. K.K. played the tape for Horton, who agreed to move out. No one notified the authorities at that time.

In April 1999, "a mandated reporter" informed CPS that S.S. might be a victim of abuse.¹ On July 2, 1999, S.S. was interviewed by Caryn Bujnowski, a child forensic interviewer with the Pierce County Prosecutor's Office. On July 13, 1999, S.S. was interviewed by Judy White, an investigator with Child Protective Services (CPS). On July 14, 1999, S.S. was physically examined by Dr. Yolanda Duralde, who found "penetrating trauma to the hymen."² S.S. told Dr. Duralde that Horton had touched her sexually and that she had not been sexually active with anyone else. Dr. Duralde thought that S.S. had been sexually abused, but CPS concluded that the allegations were unfounded.

Thirteen months later, on August 18, 2000, the State charged Horton with rape of a child in the first degree (Count I) and child molestation in the first degree (Count II). S.S. was the alleged victim in each count.

A jury trial began on April 2, 2001. S.S. testified that Horton had engaged her in vaginal intercourse, anal intercourse, and cunnilingus. He generally had acted after school, while K.K. was still at work. He had begun when S.S. was seven or eight and continued for two or three years. S.S. had been too ashamed to tell anyone until, when she was 13, she told her friend.

Horton denied any abuse. He said he had been working two jobs, often did not get home until 6 or 7 in the evening, and had not usually been home after school.

White testified that Horton had cooperated with CPS, although he had denied S.S.'s allegations. Tiffani Hughes, a friend of S.S.'s since elementary school, testified that S.S.'s reputation for truthfulness was "[n]ot very good."³ Hughes' parents both testified that S.S. had come to their house almost every day after school because no one was home at her house.

On April 12, 2001, the jury found Horton guilty on both counts. On July 18, 2001, through new counsel, Horton moved for a new trial on the ground that his attorney had rendered ineffective assistance. He also moved for an order extending the time within which to file his motion for new trial. After denying both motions, the trial court imposed concurrent sentences of 160 months on Count I and 89 months on Count II. Horton responded with both a direct appeal and a PRP, which we consolidated.

The dispositive issue is whether defense counsel rendered ineffective assistance.⁴ Horton has the burden of showing ineffective assistance.⁵ To meet this burden, he must show (1) deficient performance and (2) resulting prejudice.⁶ We discuss deficient performance first, and resulting prejudice second.

1.

In general, performance is deficient when it falls below an objective standard of reasonableness,⁷ but not when it is undertaken for legitimate reasons of trial strategy or tactics (i.e., for the defendant's ultimate benefit).⁸ According to Horton, his counsel rendered deficient performance in two ways: (A) by failing to introduce pretrial statements in which S.S. admitted sexual activity with a former boyfriend; and (B) by failing to object to improper remarks by the prosecutor. We turn to the first of these claims.

A.

On July 13, 1999, Judy White, the CPS investigator, spoke with S.S. and K.K. S.S. told White that "she'd been having sexual intercourse with a boy[.]"[⁹]

On February 13, 2001, defense counsel interviewed Tiffani Hughes. Hughes said that about two years earlier, she and S.S. had discussed whether S.S. had been sexually active with a former boyfriend, M.P. According to notes that defense counsel took at that time, S.S. said "that [M.P.] digitally penetrated her vagina[.] `Finger-banged[.'] [S.S.] told her this 2 years ago[.] She was bragging about this[.] She and [M.P.] had gone on a trip w[ith] church youth group[.]"[¹⁰]

At trial, in the State's case in chief, the prosecutor asked S.S., during direct examination: "Prior to ... your physical examination [by Dr. Duralde] ... had you engaged in any sexual intercourse with a person other than the defendant?"¹¹ S.S. answered using only one word: "No."¹² Defense counsel then asked S.S., during cross examination: "You told the prosecutor this morning that you had not engaged in sexual intercourse with anyone other than Mr. Horton; correct?"¹³ After an intervening objection, S.S. again answered: "No."¹⁴ Defense counsel did not ask S.S. to explain or deny her pretrial statements to White and Hughes, nor did she ask the court to have S.S. remain in attendance after testifying.¹⁵

Later, in the defense case in chief, defense counsel wanted to call White and Hughes to relate S.S.'s pretrial statements about sexual activity with M.P. and others. Out of the presence of the jury, the State moved to exclude such testimony. The trial court sustained because defense counsel had not complied with ER 613(b).¹⁶

ER 613(b) provides that extrinsic evidence of a prior inconsistent statement is not admissible in the absence of a proper foundation. The rule states in part that "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon ..."

ER 613(b) was copied verbatim from Federal Rule of Evidence (FRE) 613(b). The drafters of the federal rule commented:

The familiar foundation requirement that an impeaching statement first be shown to the witness before it can be proved by extrinsic evidence is preserved but with some modifications.... The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence. ..."[¹⁷]

A recent text summarizes these federal modifications. It explains:

Under the traditional common law rule, a foundation had to be laid with the witness being impeached before extrinsic evidence of the witness' prior inconsistent statement could be introduced. The impeaching attorney could freely ask the witness who made the statement about it without any foundation. But if the attorney wanted to bring in another witness to describe the statement—i.e., to use extrinsic evidence—then a foundation had to be laid by giving the witness who made the statement the opportunity to explain or deny the statement on the witness stand. This was done by calling the witness' attention to the statement and the surrounding circumstance. A typical formulation of the requirement provided that "the [impeaching] statements must be related to him, with the circumstances of times, places, and persons present; and he shall be asked whether he has made such statements, and if so, allowed to explain them."

The foundation requirement was designed to give the witness a fair chance to explain any circumstances, such as duress or influence, that might excuse the inconsistency; to reconcile the statements by explaining why they were not really inconsistent; or to deny having made the statement at all. The foundation requirement was also intended to require that the impeacher seek first to authenticate the inconsistent statement through the witness who made it. In many cases, this would obviate the need to call another witness to authenticate the statement.

The federal foundation requirement is more relaxed than its common law counterpart. Federal Rule of Evidence 613(b) provides that extrinsic evidence of a prior inconsistent statement is not admissible "unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." This rule might at first glance seem to be the same as the common law requirement, but it is not. The advisory committee's note points out that the rule does not specify any particular time at which the witness must be given the opportunity to explain or deny. With this in mind, some courts have held that the rule is satisfied even if the witness is not asked about the prior statement on the stand, so long as the witness is still available. The reasoning in support of this position is that the witness has the opportunity to explain or deny so long as the witness could be recalled for additional testimony. The federal liberalization has not been universally accepted, even by states that use the Federal Rules as a model.[¹⁸]

In State v. Johnson,¹⁹ we held that ER 613(b) incorporates the Federal Rules' new and more relaxed foundational standard. We said:

Prerule case law required the examiner, before introducing extrinsic evidence of a prior inconsistent statement, to direct the declarant's attention to the exact content of the allegedly contradictory statement as well as to the time and place where the declarant made the statement and to the persons present. Under ER 613(b), however, it

...