In re Pers. Restraint of Gomez ( 2014 )

This .opinion-was filed for ree~rd
at J<: oo a('/) on MC(--( 147 Wn. App. 1003, 2008 WL
4561499. Gomez then filed a personal restraint petition, which was denied by
the Court of Appeals. In re Pers. Restraint of Gomez, noted at 164 Wn. App.
1017, 2011 WL 4839109. Petitioner then filed a motion for discretionary
review before this court, which was granted. In re Pers. Restraint of Gomez,
175 Wn.2d 1005, 284 P.3d 742 (2012).
STANDARD OF REVIEW
To prevail on a collateral attack on a judgment and sentence by way of
a personal restraint petition, a petitioner must generally first establish that a
constitutional error has occurred and it has resulted in actual and substantial
8
In re Pers. Restraint of Gomez
No. 86711-9
prejudice or that a nonconstitutional error has caused a complete miscarriage
of justice. In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212,227 P.3d
285 (20 10) (quoting In re Pers. Restraint ofIsadore, 151 Wn.2d 294, 298, 88
P.3d 390 (2004)). However, "if a personal restraint petitioner makes a
successful ineffective assistance of counsel claim, he has necessarily met his
burden to show actual and substantial prejudice." In re Pers. Restraint of
Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). An appellate court
will review a claim of ineffective assistance of counsel de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009) (citing In re Pers.
Restraint ofFleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001)).
In order for a petitioner to prevail on an ineffective assistance claim,
she must overcome the presumption that her counsel was effective. State v.
Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). To do this, she must
demonstrate that "(1) 'counsel's representation fell below an objective
standard of reasonableness' and (2) 'the deficient performance prejudiced the
defense."' In re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872(2013) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)). Accordingly, to prevail on her claim, Gomez
must first prove that Moser's "acts or omissions were outside the wide range
9
In re Pers. Restraint of Gomez
No. 86711-9
of professionally competent assistance." Strickland, 466 U.S. at 690. She
must then demonstrate "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome." ld. at 694.
The United States Supreme Court has indicated that we must be highly
deferential to counsel's performance. ld. at 689. Consequently, we must
"recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment." I d. at 690.
ANALYSIS
A. Conflicts of Interest
Gomez claims that Moser's representation of her at trial and of
Arechiga at the dependency proceedings created a conflict of interest that
violated her right to effective assistance of counsel. Defense counsel has a
duty of loyalty to the defendant, and thus the right to effective assistance of
counsel includes the right to conflict-free counsel. ld. at 692. But a conflict
of interest is not a per se violation of the right. See Holloway v. Arkansas, 435
U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978) (stating that joint
10
In re Pers. Restraint of Gomez
No. 86711-9
representation of codefendants is not a per se violation of the Sixth
Amendment). To show a violation of her right, a defendant must show that
(a) defense counsel "actively represented conflicting interests" and (b) the
"actual conflict of interest adversely affected" his performance. Cuyler v.
Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
Possible or theoretical conflicts of interest are "insufficient to impugn a
criminal conviction." !d. If the defendant makes both showings as to the
alleged conflict of interest, then the court presumes prejudice and the
defendant proves her claim. !d. at 349-50. Accordingly, we first consider
whether Moser actively represented conflicting interests. We conclude that
he did not.
Gomez argues that Moser actively represented conflicting interests
because he violated the Rules of Professional Conduct (RPCs) regarding
conflicts of interest. However, the RPCs do not "embody the constitutional
standard for effective assistance of counsel." State v. White, 80 Wn. App.
406, 412-13, 907 P.2d 310 (1995) (stating the rule in the direct appeal
context). Rather, they serve as mere guides for determining what is
reasonable. See Strickland, 466 U.S. at 688-89. Taking the RPCs as a guide,
we note that the RPCs provide that a concurrent conflict of interest exists if
11
In re Pers. Restraint of Gomez
No. 86711-9
"the representation of one client will be directly adverse to another client" or
"there is a significant risk that the representation of one ... client[ ] will be
materially limited by the lawyer's responsibilities to another client." RPC
1. 7(a)(l ), (2).
Here, the record shows that at most there was a theoretical conflict of
interest between Gomez and Arechiga. At the 2004 dependency proceedings,
Gomez and Arechiga were not adverse because they both countered the
State's position that they were neglectful or abusive by arguing that they were
neither and that Rafael's injuries were caused by accident or his own behavior.
From the time the State charged Gomez with manslaughter (May 2004) to the
time the State added the charge of homicide by abuse (April 2006), Gomez
and Arechiga were not adverse because the only charge was manslaughter and
Arechiga was not present when Rafael was fatally injured. Thus, Arechiga
was not a suspect. From the time the State added the charge of homicide by
abuse (April2006) through Gomez's criminal trial (March 2007), Gomez and
Arechiga were potentially adverse because Gomez could have theoretically
argued that Arechiga was responsible for some or all of the abuse of Rafael
and thereby escaped a conviction for homicide by abuse.
12
In re Pers. Restraint of Gomez
No. 86711-9
Although Gomez and Arechiga were potentially adverse from April
2006 through March 2007, ample evidence shows they were not actually
adverse because Gomez could not have reasonably argued that Arechiga
abused Rafael. First, the trial judge found that Gomez was the sole caretaker
of Rafael when she had custody of him. Second, the trial judge found that
Arechiga treated Rafael kindly and heard no evidence that Arechiga abused
Rafael or harbored ill will toward him. In her petition, Gomez does not allege
new evidence of abuse by Arechiga. Finally, at trial Arechiga supported
Gomez's theory and testimony that Rafael's past injuries were caused by
accident or behavior.
In sum, the record contains no evidence suggesting that Arechiga
abused Rafael and, at trial, Arechiga supported Gomez's defense. It follows
that Gomez's allegation of a conflict of interest is merely theoretical, which
is "insufficient to impugn a criminal conviction." Cuyler, 446 U.S. at 350.
Since Gomez has not shown that Moser actively represented conflicting
interests, we do not proceed to determine whether his performance was
adversely affected by conflicting interests.
13
In re Pers. Restraint of Gomez
No. 86711-9
B. Ineffective Assistance of Counsel
To prove a claim of ineffective assistance of counsel, a defendant must
show that defense counsel's performance was (a) deficient and (b) prejudicial.
Strickland, 466 U.S. at 687. We conclude that Moser's defense was not
deficient. Accordingly, Gomez received effective assistance of counsel for
the purposes of the Sixth Amendment.
The Sixth Amendment standard for effective assistance is "reasonably
effective assistance." Id. To prove that defense counsel's performance was
deficient, "the defendant must show that counsel's representation fell below
an objective standard of reasonableness." Jd. at 688. Gomez argues that
Moser's performance was deficient with regard to (1) experience, (2) use of
interpreters, (3) investigation of lay witnesses, (4) investigation of expert
witnesses, ( 5) preparation of Gomez for trial, and (6) preparation of Ophoven
for trial. We conclude that Moser's performance in all six categories met or
exceeded the reasonably effective assistance threshold.
1. Experience
Gomez argues that Moser's experience fell below an objective standard
of reasonableness because he failed to meet the Washington Defender
Association's Standards for Public Defense Services (1989) (endorsed by
14
In re Pers. Restraint of Gomez
No. 86711-9
Wash. State Bar Ass'n Bd. of Governors Jan. 1990), available at
http://www. defensenet. org/resources/publications-1 /wda-standards-for-
indigent-defense. 2 Prevailing professional standards may serve as guides for
determining what is reasonable but may not serve as a checklist for evaluating
attorney performance. 3 Strickland, 466 U.S. at 688-89.
Standard 14 provides that to represent a defendant accused of a class A
felony, public defense counsel must meet the following: (1) Washington's
minimum requirements for practicing law as defined by the supreme court;
(2) seven hours of legal education per calendar year in a relevant area of law;
and (3) either (a) two years of service as a prosecutor, or (b) two years of
service as a public defender, or (c) appeared as trial counsel alone or with
other trial counsel and handled a significant portion of the trial in three felony
cases that have been submitted to a jury. STANDARDS FOR PUBLIC DEFENSE
SERVICES std. 14.
2
Gomez submits two other professional standards: Washington State Bar Ass'n,
Standards for Indigent Defense Services std. 14 (2007),
http://www .nlada.net/sites/default/filcs/wa_ws bastandardsforindigdefense_ 092 02 007. pdf:
and the Washington State Supreme Court Standards for Indigent Defense std. 14.2
(2012). Because these standards were not in effect at the time of trial, we do not rely on
them to evaluate Moser's experience. See Strickland, 466 U.S. at 689.
3
This court has previously concluded that "professional standards are evidence of what
should be done, no more." State v. A.N.J, 168 Wn.2d 91, 113, 225 P.3d 956 (2010).
15
In re Pers. Restraint of Gomez
No. 86711-9
Setting aside the fact that Moser was not a public defender .at the time
of trial, it appears he met this prevailing standard for public defenders when
he took Gomez's case in May 2004. By that time, he held a license to practice
law in Washington, had served as a district court deputy prosecutor for 20
months, and had worked in private practice on criminal and tort matters for
just under 12 months. The only evidence showing that Moser did not meet
the legal education requirement is his statement that he did not seek additional
training while representing Gomez. Gomez makes no showing that Moser did
not actually meet the education requirements or that his relevant experience
was less than two years. In sum, Moser's experience roughly met the
prevailing professional standard in effect at the time of trial, which suggests
he had sufficient experience to defend Gomez.
In addition to prevailing professional standards, Gomez submits the
opinions of a seasoned defense attorney and a law professor on what
experience a lawyer would need to try Gomez's case. Garth Dano, a Grant
County criminal defense lawyer, stated that Gomez's case would take 200 to
1,000 hours to execute, a standard Moser met because he put an estimated 500
hours into Gomez's case.
16
In re Pers. Restraint of Gomez
No. 86711-9
Professor John Strait of Seattle University School of Law stated that
Moser was insufficiently experienced because he had no experience with
causation issues or expert opinion on child abuse. Yet, the record suggests
that Moser had experience with causation issues from his public service and
private practice work, as well as experience with medical experts,
psychologists, social workers, and guardians ad litem. In sum, Moser appears
to have met the prevailing professional standard, met Dano' s time
requirement, and met Strait's causation requirement. Accordingly, we
conclude that Gomez has not proved that Moser's experience was deficient.
2. Use of Interpreters
Ms. Gomez claims that she was denied her constitutional right to
effective assistance of counsel because her attorney, Moser, failed to
adequately consult with her through an interpreter. To support this claim, she
relies on her own declaration as well as a declaration from Moser. Both
declarations were drafted in May 2010, approximately six years after Moser
began representing Gomez. Moser's declaration indicates that for the most
part, he cannot remember whether he was using an interpreter while
discussing specific issues with Gomez. Although they did communicate
without an interpreter on some occasions, they also used court interpreters or
17
In re Pers. Restraint of Gomez
No. 86711-9
friends of Gomez's. Moser even retained a court certified interpreter to
interpret during three interviews he held with Gomez in jail during her trial.
The burden is on Gomez to show that Moser's use of interpreters was deficient
and ultimately prejudiced her at trial. Gomez has not met this burden.
Prior to her personal restraint petition, Gomez never informed anyone
of any ongoing problems communicating with her attorney. Despite being in
court on numerous occasions during the three years pending trial-during
which she was assisted by a court certified interpreter-she cannot point to a
single instance where she complained about an inability to meaningfully
communicate with Moser. Gomez neither raised this issue during her trial nor
on appeal.
The trial transcript also indicates that both Moser and Judge Antosz
respected Gomez's use of interpreters, ensuring that she fully understood the
proceedings. For example, at trial, Moser communicated to the court that
Gomez had expressed a concern about one of the court interpreters.
Specifically, she felt that this interpreter may have missed a few words
because he was looking down during part of the testimony. Judge Antosz took
this very seriously and questioned Gomez to ensure she had understood all the
proceedings. The court also granted another request Gomez made to recuse a
18
In re Pers. Restraint of Gomez
No. 86711-9
different court interpreter who had a potential conflict of interest. These
incidents bring to light two key points. First, both Moser and Judge Antosz
understood and respected the critical role of interpreters to Gomez's trial.
Second, Gomez was capable of speaking up when she believed problems
existed with communication.
Even if Moser's use of interpreters was deficient, Gomez has not shown
that she was prejudiced. Her version of the facts and defenses presented in
her personal restraint petition are materially identical to those presented at
trial. Despite the alleged communication problems she attributes to Moser's
deficient representation, she has not pointed to where she would have said or
done anything differently had the alleged miscommunication been addressed.
In fact, she testified on her own behalf at trial, according the judge the
opportunity to hear firsthand her own account of Rafael's injuries and the
events leading to his death.
Gomez relies on Chacon v. Wood, 36 F.3d 1459, 1464-65 (9th Cir.
1994), for the proposition that effective assistance of counsel requires
complete translation for non-English speaking defendants. Such reliance is
misplaced. In Chacon, the defendant claimed that he was grossly
misinformed of the sentencing consequences of his plea when an interpreter
19
In re Pers. Restraint of Gomez
No. 86711-9
mistranslated defense counsel's explanations. Id. at 1461. This led to the
defendant pleading guilty to an offense that he believed would be punishable
by 3 months in jail, but he was sentenced to up to 10 years in prison. I d. at
1460-61.
Chacon is inapposite because, here, there are no allegations that there
was improper translation of any significant discussions between Moser and
Gomez. We find no fault with Gomez and Moser's discussions on trial rights,
the right to a jury trial, or her right not to testify. Gomez fails to meet her
burden of proof that Moser's use of interpreters was "outside the wide range
of professionally competent assistance." Strickland, 466 U.S. at 690. She
also has not shown how any alleged deficiencies prejudiced her at trial.
3. Investigation of Lay Witnesses
Gomez argues that Moser's investigation fell below an objective
standard of reasonableness because he failed to find certain lay witnesses.
Defense "counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary." Id. at
691. "The reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or actions." Id."For example, when the facts that support a certain potential line of defense
20
In re Pers. Restraint of Gomez
No. 86711-9
are generally known to counsel because of what the defendant has said, the
need for further investigation may be considerably diminished or eliminated
altogether." Id.Here, Moser states that he got most of his facts from the dependency
proceedings and only a few new facts from Gomez herself. After the start of
trial, Gomez suggested that Moser call her friends to testify, but Moser chose
not to do so because he had heard them testify at the dependency proceedings,
considered them mere character witnesses, and thought they could not testify
to specific facts related to Rafael's death or injuries. Moser also chose to
make a limited investigation of CPS workers because he had heard some of
them testify at the dependency proceedings and did not think any of them had
actually seen Rafael's allegedly odd behaviors. Nonetheless, when Gomez
suggested that Moser contact Graciela Alvarado, a CPS worker, Moser made
numerous attempts to interview her and even tried to subpoena her but to no
avail.
All of these facts suggest that Moser was generally aware of the facts
and witnesses that supported Gomez's argument that Rafael's injuries resulted
from accidents or his odd behaviors. His choice not to develop this argument
21
In re Pers. Restraint of Gomez
No. 86711-9
was correspondingly reasonable. Thus, we conclude that Moser made an
objectively reasonable investigation of lay witnesses.
4. Investigation ofExpert Witnesses
At trial, Moser presented one expert witness for the defense, Dr. Janice
Ophoven. She testified that Rafael died from asphyxiation. Gomez claims
that Moser was ineffective for failing to consult with more expert witnesses
who could have presented a more thorough defense. The record simply does
not support this contention.
As noted, the Strickland standard for ineffective assistance of counsel
provides a high level of deference to trial counsel's strategic decisions. "In
any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments." Id. Given this deference,
Gomez has not proved that Moser's investigation of experts was deficient and
has not shown that she was prejudiced by such alleged deficiencies.
Moser pursued six or seven different experts, particularly in the area of
pediatric forensic pathology and epilepsy. He was able to secure the services
of Dr. Ophoven. He also specifically pursued Dr. May Griebel at the
University of Arkansas. His declaration states that he sent her materials, but
22
In re Pers. Restraint of Gomez
No. 86711-9
she returned them, saying she was unable to complete a review. Moser had
difficulty obtaining a local expert to work on the case because many had
potential conflicts with Dr. Feldman, one of the State's experts. Even after
securing Dr. Ophoven, Moser continued to try and secure additional experts,
sending them relevant materials for review. In the end, only Dr. Ophoven was
willing or able to assist with an opinion consistent with the defense's view of
events.
Moser contacted multiple experts and secured one to explain Rafael's
death. He was not required to search the entire country for experts, finding
multiple witnesses who could provide the most favorable opinion for the
defense. Given the great deference afforded investigative decisions under the
Strickland standard, Gomez has not met her burden of proving that Moser's
investigation of experts was deficient. Furthermore, a thorough review of the
trial transcript reveals that Dr. Ophoven provided adequate testimony that
generally supported the defense's theory of the case. For this reason, Gomez
has not shown that Moser's alleged deficiency in investigating experts
prejudiced her at trial.
23
In re Pers. Restraint of Gomez
No. 86711-9
5. Preparation of Gomez for Trial
Gomez argues that Moser's preparation of her for trial fell below an
objective standard of reasonableness because he did not inform her of the
nature of trial proceedings, nor did he prepare her for direct or cross-
examination. Gomez cites Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998),
for the proposition that defense counsel has a duty to prepare a defendant to
testify. In Turner, the Ninth Circuit found that defense counsel's "admission
that he spent at most forty-five minutes with [the defendant] prior to trial
demonstrates deficient performance." Id. at 457. Turner is inapposite to this
case, however, because Moser makes no such admission. To the contrary, he
states that he knows they discussed Gomez's testimony several times but does
not remember the specifics of their preparation. Thus, Turner does not show
that Moser's preparation of Gomez for trial was objectively unreasonable.
In addition, the record shows that prior to trial Gomez experienced
court and trial-like proceedings on multiple occasions and in Moser's
presence. For instance, she spent four days in dependency proceedings in
2004 and sat in court with the aid of an interpreter on at least eight occasions
prior to trial. While this evidence does not show that Moser fulfilled his duty
to prepare Gomez for trial, it does show that Gomez was in fact informed of
24
In re Pers. Restraint of Gomez
No. 86711-9
the nature of trial proceedings before going to trial. Since she does not meet
her burden of proof, we conclude that Moser's preparation of Gomez for trial
did not fall below an objective standard of reasonableness.
6. Preparation ofDr. Ophovenfor Trial
Gomez finally argues that Moser's trial preparation ofDr. Ophoven fell
below an objective standard of reasonableness because he failed to provide
her with necessary medical records on time and inform her of the elements of
homicide by abuse. Gomez's complaints about Moser's preparation of
Dr. Ophoven appear to fall into two categories: (a) Moser's general
preparation of Dr. Ophoven for trial and (b) Moser's alleged failure to prevent
Dr. Ophoven from "conceding" abuse at trial. Both are unfounded.
a. Moser's General Preparation of Dr. Ophoven for Trial
Gomez claims that her trial was prejudiced because her expert,
Dr. Ophoven, believed that CPS had confirmed a history of abuse when in fact
CPS had investigated but never confirmed the allegations. This is based on
Dr. Ophoven's declaration that reads in part, "Given what I understood to be
confirmed prior physical abuse resulting in longstanding CPS involvement, I
gave the manner of death as 'undetermined.' Without the prior abuse, I would
have classified the manner of death as 'natural."' App. 58, at 4. Gomez reads
25
In re Pers. Restraint of Gomez
No. 86711-9
this to mean that Dr. Ophoven would have concluded that the cause of death
was natural had she known that abuse was never officially confirmed by CPS.
This interpretation is reaching and disregards much of the trial record
and other portions of Dr. Ophoven's declaration. For example, one paragraph
earlier, Dr. Ophoven declared that"[ d]espite the history of abuse, this was a
relatively straightforward asphyxiation case." !d. at 3. This indicates that
Dr. Ophoven recognizes the history of abuse in this case. Consequently,
Gomez's reading of her previous statement is inconsistent with the record.
Instead, the only reasonable interpretation of her statement is this: had the
records indicated no prior abuse, she could have testified that the death was
natural. However, Dr. Ophoven testified at trial that the medical records did
reflect abuse. Dr. Ophoven's report indicates that she noted abuse based on
"[t]his constellation of traumatic injuries"-not the CPS reports. App. 19, at
8. Accordingly, we have no reason to believe that Dr. Ophoven would testify
any differently today than she did in 2007. This is especially clear given that
her testimony at trial regarding abuse was based almost entirely on her review
of the medical records such as histological slides and x-rays rather than CPS
reports. This confirms that even if Moser was at fault for Dr. Ophoven's
misunderstanding about the history of abuse, Gomez cannot prove prejudice.
26
In re Pers. Restraint of Gomez
No. 86711-9
Gomez also contends that Moser's preparation of Dr. Ophoven was
deficient because he did not provide her with materials in a timely fashion.
However, a thorough review of the trial record does not support such a
conclusion. Even if Moser's preparation of Dr. Ophoven was deficient,
Gomez cannot show prejudice. By the time of her testimony, Dr. Ophoven
had received all the necessary material, created a full report, and provided
adequate medical testimony on behalf of the defendant.
In support of the proposition that Moser's preparation of Dr. Ophoven
was deficient, Gomez quotes Bloom v. Calderon, 132 F.3d 1267, 1278 (9th
Cir. 1997): "Where defense counsel's only expert 'requests relevant
information which is readily available, counsel inexplicably does not even
attempt to provide it, and counsel then presents the expert's flawed testimony
at trial, counsel's performance is deficient."' Am. Opening Br. ofPet'r at 67.
Bloom is readily distinguishable from this case. In Bloom, the court
found ineffective assistance of counsel where the defense attorney did
"virtually nothing" to obtain an expert witness until a few days before trial.
Bloom, 132 F.3d at 1271. In fact, counsel failed to contact the expert or file
the court paperwork appointing him as a witness. This was discovered less
than three weeks before trial by a law student working with counsel. ld.
27
In re Pers. Restraint of Gomez
No. 86711-9
Counsel then did almost nothing to prepare the witness. The expert was never
given a theory of the case or the materials he needed. In fact, there was
significant evidence readily available to trial counsel, such as previous
psychiatric reports, which was never discovered or given to the expert. Id. at
1274. The result was a "severely damaging" psychiatric report that the
prosecution used against Bloom. Id. at 1271.
The Ninth Circuit has since distinguished Bloom in a case much more
akin to this one. In Raley v. nst, 470 F.3d 792 (9th Cir. 2006), the court
rejected a claim of ineffective assistance of counsel as to the guilt phase of a
murder trial where defense counsel conducted a reasonable investigation and
made a reasonable, strategic decision not to present expert testimony
regarding a mental defect claim. Counsel had consulted three different mental
health experts and determined that their testimony would not be beneficial to
the defendant. The court also rejected the petitioner's claim that defense
counsel failed to provide the experts with enough information about his
childhood to support an informed expert opinion. !d. at 801.
Here, Moser originally contacted Dr. Ophoven in June of 2005, nearly
two years before trial. Moser provided the bulk of material to Dr. Ophoven
in January 2006, over a year before trial. Although Dr. Ophoven may have
28
In re Pers. Restraint of Gomez
No. 86711-9
received some materials such as histological slides inconveniently close to her
testimony, she was able to review them, write a complete report, and provide
adequate testimony on behalf of the defendant. Accordingly, Moser's alleged
'
failure to provide materials in a timely fashion does not constitute ineffective
assistance.
b. Moser's Alleged Failure To Prevent Dr. Ophoven from
"Conceding" Abuse at Trial
Gomez claims that Moser failed to discover and correct Dr. Ophoven's
misunderstanding regarding the question of abuse. This supposedly led to
Dr. Ophoven conceding that Rafael was an abused child at trial. Gomez is
unable to prove that Moser deficiently prepared Dr. Ophoven for several
reasons. Even if Moser failed to correct Dr. Ophoven's misunderstanding that
the history of abuse had been officially confirmed by CPS, it in no way
prejudiced Gomez's defense. Dr. Ophoven's passing references to abuse were
most certainly warranted given the record that she reviewed. These references
to abuse were de minimis amid her medical opinions, as well as in light of the
testimony of many other witnesses. Most importantly, Gomez errs when she
contends that Dr. Ophoven conceded an element of the crime. This assertion
is a misstatement of the law. Abuse is not an element of homicide by abuse.
29
In re Pers. Restraint of Gomez
No. 86711-9
At trial, Dr. Ophoven testified under oath that she detected a pattern of
abuse when she reviewed the records. This testimony could not have
prejudiced Gomez given that abuse is not an element of the crime of homicide
by abuse. In explaining what she meant by "abuse," Dr. Ophoven testified
that it is "[a] child that's been hurt by their caregivers in a context of what I
would consider to be inappropriate or criminal behavior. But I can't say who.
I just said somebody has been hurting the child." 11 Verbatim Report of
Proceedings (VRP) (Mar. 5, 2007) at 2317. She then testified that her
definition of "abuse" is broad enough to include neglect. Notably, Moser
made it abundantly clear in closing argument that the defense did not concede
the perpetration of either assault or abuse by Gomez.
It is true that Dr. Ophoven testified that she detected a pattern of abuse
when reviewing the records in preparation for trial. She further testified that
her definition of "abuse" is broad enough to include neglect. However, she
did not testify that she noted a pattern of assaults or torture. Under the
homicide by abuse statute, the relevant element of the crime is just that: "a
pattern or practice of assault or torture." RCW 9A.32.055(1 ). It is
indisputable that assault is distinct from abuse under Washington law. See
RCW 26.44.020(1) (defining "abuse or neglect"); c.f RCW 9A.36.011-.041
30
In re Pers. Restraint of Gomez
No. 86711-9
(defining assault in the first, second, third, and fourth degrees); RCW
9A.36.120-.140 (defining assault of a child in the first, second, and third
degrees). The trial judge, sitting as the trier of fact, carefully parsed through
the different definitions and applied the correct one. Given that, even if
Dr. Ophoven' s testimony could be attributed to some deficiency on counsel's
part, Gomez has not shown a reasonable probability that the result would be
different.
Under RCW 9A.32.055(1), "A person is guilty of homicide by abuse
if, under circumstances manifesting an extreme indifference to human life, the
person causes the death of a child ... , and the person has previously engaged
in a pattern or practice of assault or torture of said child." (Emphasis added.)
The name of this crime-homicide by abuse-is somewhat of a misnomer, as
was noted by the trial court. See VRP (Mar. 28, 2007) at 12. In other words,
although the crime is called "homicide by abuse," abuse is not actually an
element of the crime.
Under our law, abuse can be something very different from assault and
torture. Commendably, Judge Antosz acknowledged this distinction several
times in his verdict:
31
In re Pers. Restraint of Gomez
No. 86711-9
[I]fyou look at the definition of abuse [it] is a different concept
[from assault]. It doesn't require an intent to harm. Abuse or
neglect can be simply the result of not laying hands on a child.
It can be the result of leaving a child in a dangerous position and
causing harm. So this is a different test than just simply of was
there ... abuse here.
!d.
Notably, Judge Antosz explained, "[S]ome physicians testified that
they were clear acts of abuse. And, again, that's not the test. It's not abuse.
It's whether they were assaults." I d. at 29; see also id. at 40 ("So, for instance,
when the experts testify that abuse occurred, the Court has to go further than
that to determine if assault occurred. Every assault is an abuse. Not every act
of abuse is an assault."). Judge Antosz further explained his belief that "the
Court must look at each injury individually and determine whether the State
has proven beyond a reasonable doubt that the Defendant previously engaged
in a pattern or practice of assaults." I d. at 19. With this in mind, Judge Antosz
determined that the upper arm injury, occipital fracture and epidural
hemorrhage, bruised/gouged ear injuries, and lacerated nipples were all the
result of assaults by Gomez.
These excerpts from Judge Antosz's verdict are especially crucial
because this was a bench trial-not a jury trial. The transcript provides an
32
In re Pers. Restraint of Gomez
No. 86711-9
accurate accounting of what Judge Antosz considered when rendering his
decision. Because this was a bench trial, we can be certain that there was no
confusion regarding the abuse/assault distinction. We know this because
Judge Antosz made an outstanding record on the point. This further supports
the conclusion that Gomez was not prejudiced by Dr. Ophoven's concession
of abuse.
Moser's alleged failure to prevent Dr. Ophoven from conceding abuse
at trial did not constitute ineffective assistance of counsel. Moser's
preparation of Dr. Ophoven fell within the acceptable range of professionally
competent behavior. Moreover, based on the record at hand, it is apparent
that Dr. Ophoven's testimony regarding previous abuse did not prejudice
Gomez. This is evident because abuse is not an element ofhomicide by abuse,
and Judge Antosz made it abundantly clear that he understood and respected
this distinction.
CONCLUSION
We conclude that Moser's representation of both Arechiga and Gomez
did not constitute an actual conflict of interest. We further conclude that
Moser's performance fell within the acceptable range of reasonably effective
assistance with respect to his experience, use of interpreters, investigation of
33
In re Pers. Restraint of Gomez
No. 86711-9
lay witnesses, investigation of expert witnesses, preparation of Gomez for
trial, and preparation of Dr. Ophoven for trial. We, therefore, deny Gomez's
personal restraint petition.
34
In re Pers. Restraint of Gomez
No. 86711-9
WE CONCUR:
35
In re Pers. Restraint of Gomez
No. 86711-9
OWENS, J. (concurring in part/dissenting in part) - Criminal defendants in
this country have the constitutional right to effective assistance of counsel even if they
do not speak English and even if they are accused of a heinous crime. While I agree
with the majority on several points, I disagree that counsel's use of interpreters,
investigation of experts, and preparation of the expert for trial provided Maribel
Gomez with effective assistance of counsel. Counsel was deficient in this case when
he failed to use an interpreter for the majority of his conversations with his non-
English-speaking client. Additionally, counsel was deficient when he failed to locate
an expert to testify about the cause of the victim's preexisting injuries when that
testimony was essential to the defense. That failure was compounded when counsel
did not adequately prepare the expert that he did secure for trial. These deficiencies
fell below an objective standard of reasonable performance and prejudiced the
defendant in this case. Therefore, I respectfully dissent.
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part
Counsel's Use ofInterpreters Was Deficient
The majority concludes that Gomez's attorney, Robert Moser, provided
effective assistance even though he primarily communicated with his non-English-
speaking client without using an interpreter. I disagree. Defense counsel has a duty
to consult with the defendant on her trial rights and defense strategy. Florida v.
Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). The Ninth
Circuit has stated that when communication between defense counsel and the
defendant necessarily depends on an intermediary, defense counsel must provide "[a]n
accurate and complete translation of all attorney-client communications" for the
defendant to actually receive effective assistance. Chacon v. Wood, 36 F.3d 1459,
1464-65 (9th Cir. 1994) (emphasis added).
Gomez primarily speaks Spanish and her English skills are poor, but as Moser
admitted in his declaration, "Usually [he and Gomez] would communicate without an
interpreter." App. 4, at 4. 1 Moser's lack of communication frustrated Gomez, as she
felt that she never had the "chance to give him a complete account of all the events."
App. 3, at 11. Occasionally Moser would use a friend as an informal interpreter, and I
agree that that is not, by itself, deficient performance. See United States v. Valdivia,
60 F.3d 594, 595 (9th Cir. 1995). But I disagree that Moser provided effective
1
Like the majority, all citations to the appendix relate to the appendices attached to the
amended opening brief of the petitioner.
2
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part
assistance when he primarily communicated with his non-English-speaking client
without an interpreter. An attorney must be able to communicate with his or her client
at all times. That way a defendant can accurately convey the facts to the attorney,
help make strategic decisions, and actively participate in our judicial process. I fear
that the majority's holding will weaken the public's confidence in our judicial system,
especially among those who do not speak English.
Counsel's Investigation ofExpert Witnesses Was Deficient
Additionally, Moser's investigation fell below an objective standard of
reasonableness because he failed to investigate certain expert witnesses. Moser did
not retain an independent medical expert for the dependency proceedings and admits
that he did not understand the science involved in Gomez's criminal defense until
after the start of trial. Moser states that he pursued more than five experts in pediatric
forensic pathology and epilepsy but was only able to retain Dr. Janice Ophoven-an
expert in diagnosing the manner and cause of child injuries and death. When the State
brought the additional charge of homicide by abuse, one of the two elements of which
is a pattern or practice of assault of a child, Moser informed the court that an adequate
defense of Gomez would now require an expert opinion on whether Rafael had been
abused. Yet, Moser never had Dr. Ophoven opine on whether Rafael's previous
injuries resulted from abuse, accident, or some other cause. This decision-or lack
thereof-is even more troubling in light of the fact that one expert Moser spoke with
3
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part
during his investigation had led him to believe that Rafael suffered from epilepsy.
Epilepsy would have explained some of his head injuries and perhaps the odd
behaviors that Gomez reported.
I disagree with the majority that Moser's failure to investigate experts should
be given "great deference" as part of counsel's trial strategy. Majority at 22-23.
Moser's failures were not strategic decisions picked after weighing competing options
for providing an effective defense. Rather, Moser omitted necessary expert opinions
for Gomez's defense and did not pursue a reasonable, alternative explanation for the
child's injuries. And, as further explained below, his deficient investigation resulted
in his expert conceding abuse in a homicide by abuse case without independently
making a determination on that issue.
In sum, the facts show that Moser knew that Gomez's defense required an
expert opinion on Rafael's injuries and yet he inexplicably failed to have his qualified
expert provide such an opinion. Accordingly, I conclude that Moser made an
objectively unreasonable investigation of expert witnesses.
Counsel's Preparation ofDr. Ophoven Was Deficient
Moser's preparation of Dr. Ophoven for trial also fell below an objective
standard of reasonableness when he failed to provide her with necessary medical
records on time and inform her of the elements of homicide by abuse. The Ninth
Circuit has held that "when the defense's only expert requests relevant information
4
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part
which is readily available, counsel inexplicably does not even attempt to provide it,
and counsel then prese~ts the expert's flawed testimony at trial, counsel's
performance is deficient." Bloom v. Calderon, 132 F.3d 1267, 1278 (9th Cir. 1997).
Similarly, the Sixth Circuit has held that defense counsel "cannot be deemed effective
where he hires an expert consultant and then either willfully or negligently keeps
himself in the dark about what that expert is doing, and what the basis for the expert's
opinion is." Richey v. Bradshaw, 498 F.3d 344, 362-63 (6th Cir. 2007).
As in Bloom and Richey, Moser's failure to prepare Dr. Ophoven was deficient.
Moser's only expert witness was Dr. Ophoven. In July 2005 and January 2006, she
asked Moser to send her critical autopsy slides and radiology images so she could
determine Rafael's cause of death. Moser failed to respond to Dr. Ophoven's
requests. Dr. Ophoven says she finally received the slides after the start of trial, while
Moser says he received the slides in the fall of 2006 and gave them to Dr. Ophoven
about a month before trial. In either case Moser's failure to furnish the documents is
inexplicable, as even he admits. Furthermore, while Moser retained Dr. Ophoven to
testify on Rafael's cause of death but not on his abuse, he gave her grounds to believe
that Rafael had been abused and informed her of the homicide by abuse charge
without providing her with the elements of the charge. Moser then failed to confirm
Dr. Ophoven's testimony as to abuse because at trial she conceded that Rafael had
been abused and based on that belief, she opined that the cause of death was
5
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part
undetermined. Dr. Ophoven states that had she known that abuse was a question of
fact for trial, she would have opined that the cause of death was natural instead of
undetermined. I would hold that Moser's preparation of Dr. Ophoven for trial was
deficient because he negligently kept himself in the dark as to his expert's testimony,
failed to provide his expert with requested information that was readily available, and
then presented her flawed testimony at trial.
Counsel's Deficiencies Prejudiced the Defendant
Moser's deficient use of interpreters, investigation of expert witnesses, and
preparation of Dr. Ophoven for trial prejudiced Gomez's defense. To show prejudice,
"[t]he defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome." Stricklandv. Washington, 466 U.S. 668,694, 104 S. Ct. 2052,80 L.
Ed. 2d 674 (1984). A reviewing court considers the totality of the evidence before the
judge. !d. at 695.
Homicide by abuse has only two essential elements: causing the death of a
child and a pattern or practice of assault or torture of said child. RCW 9A.32.055(1).
Although Moser had Dr. Ophoven opine on the cause of Rafael's death, he chose not
to have her opine on whether Rafael's injuries were the result of a pattern or practice
of assault. Thus, the defense had no expert opinion to rebut the State's expert's
6
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part
opinion that Rafael's injuries were the result of a pattern or practice of assault and,
moreover, had no expert opinion to support Gomez's and Jose Arechiga's testimony
that Rafael's injuries were accidental or the result of his odd behaviors.
The prejudicial effect of not having Dr. Ophoven opine on Rafael's injuries
was compounded by Moser's preparation of her for trial. At trial, Dr. Ophoven
conceded that Rafael's injuries were the result of abuse because of a
miscommunication between Moser and her. Thus, not only did the defense lack an
advantageous medical opinion on Rafael's injuries, it essentially conceded one
element of homicide by abuse and undercut Gomez's and Arechiga's testimony.
Moreover, the miscommunication damaged the defense's response to the other
element of homicide by abuse because Dr. Ophoven's belief that Rafael had been
abused led her to report the cause of Rafael's death as undetermined, rather than
report the cause as natural as she now states she would have done had she been
informed. In sum, Moser's preparation of Dr. Ophoven for trial resulted in giving
away one element ofhomicide by abuse and weakening the defense's rebuttal on the
other element.
These errors, coupled with Moser's failure to use interpreters, undermine my
confidence in the outcome of Gomez's trial. Taking all the evidence into account, I
would hold that there is a reasonable probability that Moser's deficient performance
changed the outcome of her trial. Accordingly, I would grant Gomez's personal
7
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part
restraint petition, vacate the conviction for homicide by abuse, and remand to the
superior court for any further proceedings consistent with those rulings.
8
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., Dissenting
9
In re Pers. Restraint of Gomez (Maribel)
No. 86711-9
WIGGINS, J. (concurring in part with the concurrence/dissent) -I concur
in part with the concurrence/dissent. Maribel Gomez established a prima facie
showing of actual and substantial prejudice from receiving ineffective assistance
of counsel. However, because the extent of prejudice is unclear from the record,
we should remand the petition for a reference hearing. See RAP 16.11 (b); In re
Pers. Restraint of Riley, 122 Wn.2d 772, 782, 863 P.2d 554 (1993); In re Pers.
Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992). At the reference
hearing, the court should inquire into the prejudicial effect of defense attorney
Robert Moser's deficient use of interpreters and preparation of Dr. Janice
Ophoven.
Deficient use of interpreters. The extent of the prejudice resulting from
Robert Moser's minimal use of an interpreter is unclear. According to Moser,
Gomez's English language skills "were not very good," and he usually
communicated with Gomez without an interpreter. Am. Opening Br. of Pet'r, App.
4, at 4. There is evidence, however, that Gomez hired interpreters on at least
three occasions and that Gomez's friends would sometimes interpret. ld. at 3-4.
It is not clear from the record how well Gomez speaks and understands English
and whether using an interpreter would have actually altered the outcome of trial
(e.g., whether Gomez would have revealed information that would have resulted
in a different verdict).
1
In re Pers. Restraint of Gomez (Maribel)
(Wiggins, J., concurring in part with the concurrence/dissent)
Deficient preparation of expert witness. The prejudicial effect of Moser's
deficient preparation of Dr. Ophoven is also unclear. The court should inquire as
to what Dr. Ophoven would have testified had Moser properly prepared her.
Therefore, I would remand the petition for a reference hearing to resolve
how the ineffective assistance of counsel affected Gomez's trial. I dissent from
the majority opinion and concur in part with the concurring/dissenting opinion.
2
In re Pers. Restraint of Gomez (Maribel)
(Wiggins, J., concurring in part with the concurrence/dissent)
3