State v. Johnston
| Citation | 143 Wn. App. 1,177 P.3d 1127 |
| Decision Date | 25 October 2007 |
| Docket Number | No. 24850-0-III.,24850-0-III. |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Guylin Michael JOHNSTON, Appellant. |
David Ray Hearrean, Law Office of David R. Hearrean, PS, Spokane, WA, for Appellant.
Kevin Michael Korsmo, Attorney at Law, Spokane, WA, for Respondent.
¶ 1 Guylin Johnston appeals his second degree rape conviction. Mr. Johnston asserts that his right to due process was violated when police instructed a hospital employee to destroy potentially exculpatory evidence; that the trial court erred by failing to hold a competency hearing for the alleged victim; and that he received ineffective assistance of counsel. Where the evidence destroyed is potentially useful, as opposed to material exculpatory evidence, Mr. Johnston must show bad faith by the police to support a due process violation. He has not done so. And his other assertions of error are without merit. We, therefore, affirm.
¶ 2 Eastern State Hospital is a state psychiatric hospital serving the eastern Washington region. rn June 2004, Guylin Johnston was employed as a nurse at Eastern State Hospital. Amanda Managhan was a patient at Eastern State Hospital.
¶ 3 Ms. Managhan was admitted to Eastern State Hospital for depression-related issues. Mr. Johnston was one of several nurses assigned to watch Ms. Managhan for one-on-one shifts of one hour at a time. During one of these one-on-one sessions, Ms. Managhan and Mr. Johnston were alone in the laundry room while Ms. Managhan was doing laundry. The door to the room was closed, which was against the general safety policies of the hospital.
¶ 4 As Ms. Managhan was loading clothes into a washing machine, she turned around and saw Mr. Johnston with his pants around his ankles. He forced his penis into Ms. Managhan's mouth and ejaculated, Ms. Managhan was chewing gum. Ms. Managhan immediately spit the gum into a paper towel and rinsed out her mouth. She put the paper towel containing the gum in the pocket of her pants. This gum was later tested. Traces of both Mr. Johnston's and Ms. Managhan's DNA1 were found in the gum.
¶ 5 Later that day, Ms. Managhan told another employee at Eastern State Hospital that she had been molested and identified Mr. Johnston as the offender. The employee notified hospital authorities, who in turn notified the police. Mr. Johnston was charged with second degree rape and indecent liberties.
¶ 6 Prior to the first trial, the State asked the trial court to determine whether a conflict of interest existed between the law office of Mr. Johnston's defense counsel, Bevan Maxey, and the alleged victim. According to the State, Ms. Managhan consulted with a member of Mr. Maxey's firm to discuss, the potential of filing a civil suit against Eastern State Hospital based on the incident that allegedly took place in the laundry room.2 As part of that meeting, Ms. Managhan told the attorney "all relevant details ... of her sexual contact with the defendant," as well as other personal details about her physical and mental conditions. Clerk's Papers (CP) at 4.
¶ 7 Mr. Johnston disputed that the contact between Ms. Managhan and any member of the law firm amounted to an attorney-client relationship. According to Mr. Johnston, "no specific facts surrounding the criminal matter were disclosed." CP at 16. Defense counsel promised to take all measures necessary to ensure that any confidentiality would not be breached during Mr. Maxey's representation of Mr. Johnston.
¶ 8 The trial court granted the State's motion to disqualify Mr. Maxey as defense counsel. The court denied Mr. Johnston's motion to reconsider the disqualification. Mr. Johnston proceeded to trial with a different attorney, Rob Cossey.
¶ 9 Mr. Johnston also claims Mr. Cossey and another attorney, Chris Bugbee—who was counsel for Jacqueline Hughes—had worked in the same firm in the past. Ms. Hughes was a witness for the defendant in the first trial. In the retrial, she recanted and testified for the prosecution.
¶ 10 At the first trial, Mr. Johnston presented evidence that he had been set up by two other employees at Eastern State Hospital: Ms. Hughes and Mike Evans. Ms. Hughes and Mr. Evans were allegedly involved in a sexual relationship. Ms. Hughes testified that Mr. Evans had asked her to meet with Mr. Johnston. Ms. Hughes met with Mr. Johnston and had sex in Ms. Hughes's car.
¶ 11 Ms. Hughes requested that Mr. Johnston use a condom during sexual intercourse. The condom contained some of Mr. Johnston's semen. Ms. Hughes placed the used condom in a haggle when she got home and placed the baggie in her refrigerator. She then gave this baggie to Mr. Evans. Ms. Hughes testified that the sole purpose of her sexual encounter with Mr. Johnston was to secretly collect his semen.
¶ 12 Two other employees at Eastern State Hospital testified that they found a baggie wrapped in a paper towel in the laundry room of the hospital, one month after the alleged rape. Both employees testified that the contents of the baggie appeared to be semen. But another employee thought the material looked more consistent with a coffee stain. The hospital notified police of the baggie. The hospital security chief described the contents to the Washington State Patrol (WSP) as appearing like a coffee stain. WSP investigators told the hospital employees to throw the baggie away and the hospital complied.
¶ 13 The jury acquitted Mr. Johnston of the charge of indecent liberties, but could not reach a verdict on the charge of second degree rape. The trial court declared a mistrial on the charge of second degree rape and accepted the jury's verdict of not guilty on the charge of indecent liberties. Mr. Johnston was retried on the charge of second degree rape.
¶ 14 At the second trial, a State forensic analyst testified that she tested the piece of gum that Ms. Managhan placed inside a tissue for DNA. The analyst found traces of Ms. Managhan's and Mr. Johnston's DNA on the gum. There were traces of Mr. Johnston's semen as well. The analyst admitted that there were several items, including articles of clothing, that were not tested.
¶ 15 One of the State's witnesses, Trooper David Fenn, was unavailable to testify at trial because the trooper was called up for military duty. Mr. Johnston stipulated to Trooper Fenn's unavailability to testify, and agreed to let the State read the transcript of Trooper Fenn's prior testimony into the record. However, the court did not want Trooper Fenn's service in Iraq put before the jury because of concern of potential bias. The State had previously made one remark about Trooper Fenn's military service during opening arguments. Specifically, the prosecutor stated that other detectives would be presenting Trooper Fenn's testimony because, "Trooper Dave Fenn was shipped off to Iraq." Report of Proceedings (RP) at 864. Mr. Johnston did not object to this portion of the prosecutor's opening remarks.
¶ 16 Ms. Hughes testified at Mr. Johnston's retrial, but her testimony was substantially different from her testimony at the first trial. According to Ms. Hughes, Mr. Johnston had approached her about the case. She asserted that she was actually sexually involved with Mr. Johnston, and did not have a sexual relationship with Mr. Evans. Mr. Johnston wanted Ms. Hughes to falsely claim that Mr. Evans requested Mr. Johnston's semen. Her impression was that Mr. Johnston wanted to make it seem that he had been framed by Mr. Evans.
¶ 17 Ms. Hughes testified that her testimony in the prior trial had been false and claimed that Mr. Johnston had told her what she was supposed to say. Ms. Hughes stated that she changed her testimony because Mr. Evana was under investigation as a result of Ms. Hughes's testimony at the first trial.
¶ 18 Mr. Johnston again presented evidence from several employees at Eastern State Hospital regarding the plastic baggie that was found in the laundry room and subsequently destroyed. This evidence included testimony that the substance in the baggie resembled partially-dried semen and testimony that several employees believed what they found could be evidence connected to Ms. Managhan's allegations.
¶ 19 The jury found Mr. Johnston guilty of second degree rape.
¶ 20 This court reviews an alleged violation of the constitutional right to due process de novo. See, e.g., State v. Cantu, 156 Wash.2d 819, 831, 132 P.3d 725 (2006).
¶ 21 The constitutional requirement of due process imposes a duty on the State to disclose and preserve material exculpatory evidence to the defense. State v. Wittenbarger, 124 Wash.2d 467, 475, 880 P.2d 517 (1994). Suppression by the State of evidence that is favorable to the defendant violates due process if the evidence is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State's failure to preserve material exculpatory evidence requires dismissal of the charges against the defendant. State v. Copeland, 130 Wash.2d 244, 279, 922 P.2d 1304 (1996). However, this court uses a different test if the evidence at issue is merely potentially useful. Id. at 280, 922 P.2d 1304.
¶ 22 "[W]here potentially useful evidence is concerned, as opposed to material exculpatory evidence, no denial of due process will be found unless the defendant shows bad faith on the part of police."3 Id. This difference in treatment is rooted in part on a general unwillingness of the courts to "`impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.'" Wittenbarger, 124 Wash.2d at 475, 880 P.2d 517 (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)).
¶ 23 To qualify as material exculpatory evidence, the evidence...
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