Personal Restraint Petition Of George P Woodard ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
In the Matter of No. 45
the Personal Restraint Petition of
GEORGE P. WOODARD,
UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — In this personal restraint petition ( PRP), George P. Woodard challenges
his conviction for first degree kidnapping with sexual motivation) and second degree child rape,2
for kidnapping and raping M.P.' Woodard argues that ( 1) appellate counsel provided ineffective
assistance by failing to assign error to the trial court' s denial of two mistrial motions for
jailhouse informant testimony to Woodard' s prior bad acts. Woodard also argues that trial
to ( 2) properly impeach witnesses, ( 3) object to
counsel provided ineffective assistance by failing
Lisa Wahl-Hermosillo' s testimony defining rape as blunt penetrating trauma, (4) object to Wahl-
Hermosillo' s testimony stating that sex as M.P. had described would constitute " victimization,"
5) object to Wahl- Hermosillo' s testimony referencing a medical study not in evidence about 37
pregnant teenage girls, ( 6) object to the State' s mischaracterization of Wahl- Hermosillo' s
testimony referencing the study of the pregnant girls, ( 7) call a medical expert for the defense, or
1
Former RCW 9A.40. 020( 1)( b) ( 1975); former RCW 9. 94A.835 ( 2006).
2 RCW 9A.44. 076.
3
We use initials to protect the victim' s privacy.
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8) object to admission of M.P.' s rape kit and underwear for a lack of chain of custody. In
addition, Woodard argues that he was denied a right to a fair trial by (9) the trial court' s
admission of the rape kit and underwear without a sufficient chain of custody, ( 10) the trial
court' s comment on the evidence, ( 11) the trial judge' s bias against Woodard, and ( 12)
cumulative error. We reject Woodard' s arguments and deny his petition.
FACTS
In 2008, M.P. spent Christmas Eve with friends and family members at Woodard' s home.
M.P. was 12 years old at the time. M.P. wanted to go to the store and Woodard agreed to drive
her there in his van. Three witnesses testified the store was only a few minutes away by vehicle,
but Woodard and M.P. were gone for between 20 and 45 minutes.
According to M.P., while returning from the store, Woodard took a different route home,
drove down a back road, and stopped the van. Woodard ordered M.P. to get into the backseat
and pull down her pants. He then put his mouth on her breast over the outside of the hoody that
she was wearing and inserted his finger into her vagina. He stopped after about 10 to 20 minutes
and drove home.
The next day, M.P.' s mother learned what had happened and called the police. The State
charged Woodard with first degree kidnapping with sexual motivation, second degree child rape,
and second degree child molestation.4 Woodard' s case proceeded to a jury trial.
A. Trial Court' s Pretrial Instruction to the Jury
Prior to trial, the trial court made the following instruction to the jury:
4 RCW 9A.44. 086.
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There may be some evidence that certain things happened at a particular location.
You may know where that location is. You may go near it or by it going to or from
the Law and Justice Center or perhaps over the weekend or during a long recess. If
that' s the situation don' t stop to look things over, because conditions may not
necessarily be the same as they were when all the actions tookplace that led to the
charges beingfiled.
Keep an open mind. Don' t decide any issue in this case, until the entire case
has been submitted to you.
1,. Verbatim Report of Proceedings ( VRP) at 107 ( emphasis added). Woodard' s trial counsel
moved for a mistrial, arguing that the trial court' s statement that " all the actions took place that
led to the charges being filed" commented on the evidence. 1 VRP at 107. The trial court
denied the mistrial motion.
B. Trial Testimony ofJames Barnes and Jonathan Neff
At trial, the State presented testimony from two jailhouse informants: James Barnes and
Jonathan Neff, both called by the State to testify that Woodard had confessed to the sex offenses
at issue in Woodard' s case. Woodard challenges one statement from each witness.
Barnes' s Testimony Woodard Confessed to Sexual Intercourse with M.P. on Six Prior
Occasions
During a pretrial hearing on motions in limine, trial counsel expressed concern Barnes or
Neff might testify that Woodard confessed to sexual intercourse with M.P. on six occasions prior
to the sex offenses at issue in Woodard' s case. The State said it did not intend to elicit testimony
about uncharged prior sexual incidents on direct examination, but that it could contemplate
possible scenarios where the issue could arise on cross- examination. The trial court ordered the
State to instruct the witnesses not to mention Woodard' s alleged admissions of sexual
intercourse with M.P. prior to the incident at issue in the case. At trial, during the State' s
examination of Barnes, the following testimony occurred:
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State]: Did [ Woodard] say he did anything else to [ M.P.] on that night?
Barnes]: The comment was that [ Woodard] didn' t have a rubber, so he had oral
sex with her.
State]: In other words, he was denying that he had penile sexual intercourse with
her?
Barnes]: That night, yes.
State]: You said that Mr. Woodard indicated to you that he had stuck his finger in
M.P.]?
Barnes]: Yes.
4 VRP at 64- 66. Then, during trial counsel' s cross- examination of Barnes, the following
testimony occurred:
Trial Counsel]: Is it your testimony that [ Woodard] told you directly all of the
things that you just testified to?
Barnes]: Yes, sir.
Trial Counsel] : [ Woodard] told you he didn' t have sexual intercourse with [M.P.]?
Barnes]: On Christmas day. On Christmas eve he did not. He had six times of
intercourse before that he bragged about.
4 VRP at 68 ( emphasis added). Outside of the jury' s presence, trial counsel immediately moved
for a mistrial. The State asserted that it had told Barnes to refrain from mentioning the six prior
instances of intercourse and argued that trial counsel' s question may have unintentionally elicited
the response. Trial counsel asked if his question to Barnes could be read back. The trial court
initially responded by telling trial counsel, " You can be quiet," but eventually had the question
read back. 4 VRP at 70- 71.
The trial court denied the mistrial motion. The trial court then recalled the jury and
instructed them' to disregard the question and answer.
2. Neff's Testimony Woodard Smoked Crack Cocaine Immediately Prior to the Rape
The parties agreed not to elicit testimony regarding any of the witnesses' drug use. Later,
during the State' s direct examination of Neff, the following testimony occurred:
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State]: Did [ Woodard] ever indicate anything that he had done on Christmas eve
of 2008?
Neff]: Well, he indicated he was at his house with some friends and his wife and
they were smoking crack and he was asked— I can' t say if he asked or if [M.P.] had
asked to go to the store to get some candy.
State]: Okay,. What else did [ Woodard] say?
Neff] :.... [ Woodard] explained that he had pulled over there with [ M.P.] and that
he had digitally penetrated her and orally— had oral sex with her.
4 VRP at 78- 79 ( emphasis added). Trial counsel did not object to this testimony, but at the
conclusion of Neff s testimony, counsel moved for a mistrial, arguing that Barnes' s testimony
about Woodard' s confession to prior intercourse with M.P., combined with Neff s testimony
about Woodard' s confession to using crack cocaine, denied Woodard a fair trial. The trial court
denied the. motion. The trial court ruled that, within the context of Neff s testimony as a whole,
the violation was not egregious enough to warrant a mistrial. The trial court also ruled that
Barnes' s and Neff s testimony combined did not rise to the level of warranting a mistrial. The
trial court offered to instruct the jury to disregard the question and answer regarding Woodard' s
drug use, but trial counsel declined the offer because he did not.want to draw the jury' s attention
to it.
C. Inability To Impeach Witnesses
Trial counsel endeavored to impeach witnesses on four separate occasions.
1. Impeachment ofDallas Hazelrigg Concerning the Purpose ofHis Trip
At trial, Dallas Hazelrigg was one of three witnesses who testified that Woodard and
M.P. were gone to the store for between 20 and 45 minutes. To establish the length of time
Woodard and M.P. were away from Woodard' s home, Hazelrigg testified about his activities
during the time Woodard left to take M.P. to the store. Hazelrigg said that he and his brother left
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Woodard' s home just after Woodard left with M.P., and followed Woodard until Woodard
stopped at the store. Hazelrigg and his brother then stopped following Woodard and went down
a gravel road to a place "[ a] lmost across the street from the store." 2 VRP ( Part 1) at 83.
Hazelrigg testified that his brother went down the gravel road with intent to purchase drugs from
a drug dealer, and that Hazelrigg also went down the road to purchase a chain saw from the same
drug dealer.
On cross- examination, trial counsel attempted to impeach Hazelrigg' s testimony with his
unrecorded out-of-court statement to trial counsel, in which Hazelrigg specifically denied the
purpose for the errand:
Trial Counsel]: ... You and I have talked a couple of times about this case; is
that right?
Hazelrigg]: That' s right.
Trial Counsel]: You have specifically told me that when you and [ your brother]
went on your errand, it was not to buy drugs; is that right?
2 VRP (Part 1) at 94. The trial court sustained a hearsay objection by the State, ruling trial
counsel could not impeach Hazelrigg with an oral statement given to trial counsel because trial
counsel could not testify in Woodard' s trial, -meaning Hazelrigg' s statement to trial counsel could
not be corroborated. Trial counsel subsequently elicited the following testimony:
Trial Counsel]: What you told me [ out of court] yesterday, does that differ from
what we heard in Court today?
Hazelrigg]: It' s not different. It' s just more.
Trial Counsel]: Really? What' s the more?
Hazelrigg]: Yesterday, you were looking for a drug run and I wouldn' t basically
tell you what I was doing, because I felt it was irrelevant to the case or further
putting me admitting on the stand that I was going to run for drugs, which I really
wasn' t if you want to go into the long haul of it.
Trial Counsel]: So what you are saying is I asked you yesterday about a drug
run—
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Hazelrigg] : Correct.
Trial Counsel]: Did you tell me " yes" or " no"?
Hazelrigg]: I didn' t answer it. I said I went for a chainsaw [ sic] is what I
answered.
Trial Counsel]: Did they sell [ your brother] drugs?
Hazelrigg]: No, they did not.
2 VRP ( Part 1) at 100- 03. Trial counsel also elicited testimony that Hazelrigg did not mention
drugs when giving a statement to Deputy Susan Shannon.
2. Impeachment ofDeputy Shannon Concerning Mirandizing Woodard
The State called Deputy Shannon, who gave Woodard his Miranda' warnings. Deputy
Shannon testified that when she asked Woodard whether he wanted to speak with her, Woodard
said, " Yes." 3 VRP at 133. Trial counsel attempted to impeach this testimony with Deputy
Shannon' s written report in which Woodard said, " Yeah, I don' t have a problem" instead of
yes" by personally reading from the report. 3 VRP at 148. The trial court raised its own
impeachment method was improper under ER 613. Outside of
objection, ruling trial counsel' s
the jury' s presence, trial counsel explained to Deputy Shannon that he wanted Deputy Shannon
to testify to Woodard' s statement, " Yeah, I don' t have a problem" in Deputy Shannon' s written
report. 3 VRP at 148. With the jury present, Deputy Shannon testified that in Deputy Shannon' s
written report Woodard responded to Deputy Shannon' s request to speak with him with, " Yeah, I
don' t have a problem." 3 VRP at 148.
Miranda v. Arizona, 384 U.S. 436 ( 1966).
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3. Impeachment ofDeputy Shannon Concerning M.P. 's Statement She Wore a Hoody
Deputy .Shannon also took recorded statements from M.P. Deputy Shannon testified that
she collected a " hoody" from M.P. The State called M.P., who testified that she wore this hoody
when Woodard raped her and put his mouth on her breast over the hoody. DNA testing
confirmed that Woodard' s DNA was on the hoody, in the same location as where M.P. testified
Woodard had put his mouth on her breast over the hoody. Woodard' s DNA came from
a] mylase activity" which was " usually with saliva,"
associated - although " other body fluid
sources [ could not] be eliminated." Petition ( App. H at 3).
When Woodard was presenting his case, trial counsel recalled Deputy Shannon and
elicited the following testimony:
Trial Counsel]: Do you remember if on either one of [M.P.' s] taped statements
she told you what she was wearing when she was driven to the store by Mr..
Woodard?
Trial Counsel] : You don' t recall?
Deputy Shannon]: I was trying to recall your question. Did she ever tell me?
Trial Counsel]: [ W] hat she was wearing as far as a shirt when she went to the
store with [ Woodard].
Deputy Shannon]: Yes.
Trial Counsel]: Do you recall what that was?
Deputy Shannon]: It was a gray " I love me" shirt, blue hoody and the Vigoss
j eans.
5 VRP at 44- 45. Trial counsel attempted to impeach Deputy Shannon' s testimony ( that M.P.
told Deputy Shannon that M.P. was wearing a hoody when she was raped) with M.P.' s alleged
in her taped to Deputy Shannon. The State
omission of any reference to a hoody statement
objected and the trial court sustained, ruling that Deputy Shannon testified M.P. stated that she
N.
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was wearing a hoody during the rape, but did not testify that M.P.' s statement about the hoody
was recorded in M.P.' s taped statement. Then, the following occurred:
Trial Counsel]: Deputy Shannon, the question I asked moments ago, did you
understand it to be that I was asking you about what [ M.P.] told you in her two
taped statements?
Deputy Shannon]: No.
5 VRP at 51. Trial counsel then attempted to elicit testimony from Deputy Shannon that M.P.' s
statement about the hoody was recorded in M.P.' s taped statement, but was prevented from
eliciting such testimony by the State' s successful hearsay objections.
4. Impeachment ofBarnes with His.Declaration to the State
Prior to Woodard' s trial, Barnes sent a declaration under penalty of perjury to the State
requesting withdrawal of a State subpoena compelling Barnes to testify at Woodard' s trial.
Barnes' s declaration stated he had no actual or constructive knowledge regarding Woodard' s
case and could provide no testimony for either the State or the defense. Barnes testified at
Woodard' s trial for the State, but trial counsel did not impeach Barnes with his declaration.
D. Expert Testimony
The State called two medical experts at Woodard' s trial. First, the State called Dr. Paul
Sunderland, who gave M.P. a medical examination on December 25, 2008. Dr. Sunderland
testified that M.P. said she had been raped. Dr: Sunderland testified that the. entrance of M.P.' s
vagina was tender and swollen and that M.P.' s hymen was not intact. Dr. Sunderland testified
that hymen breakage typically resulted from penetration and that broken hymens do not grow
back. Dr. Sunderland testified that while there was some evidence of vaginal trauma, none of
M.P.' s injuries were serious, and all her injuries would have healed within a week at the longest.
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Second, the State called nurse practitioner Lisa Wahl -Hermosillo, who had given M.P. a
medical examination on December 30, 2008. Wahl -Hermosillo testified M.P. told her that she
had been sexually assaulted, and that this sexual assault included penile/vaginal penetration.
Contrary to Dr. Sunderland' s testimony, Wahl -Hermosillo testified that M.P' s hymen was intact.
Wahl -Hermosillo also testified that the physical exam had no indications that M.P. had been
raped. While Wahl -Hermosillo testified that M.P. had no vaginal injuries, Wahl -Hermosillo
testified that she would not expect to see any vaginal injuries on M.P. when she conducted her
examination, which was five to six days after the rape.
Wahl -Hermosillo made three statements in her testimony that Woodard challenges in his
PRP. First, Wahl -Hermosillo stated the following on direct examination:
State] : Now, what did you note on your physical exam when you looked at [ M.P.' s]
hymen?
Wahl -Hermosillo] : I found that she had a shallow notch on her hymen .... A notch
is considered a normal variant and it could or could not indicate blunt penetrating
trauma, which as the legal term is called rape.
5 VRP at 13- 14 ( emphasis added). Second, the following testimony occurred on redirect:
State]: So in your opinion, it would be possible for [ M.P.] to have sex as she
described and not see any physical signs, correct?
Wahl -Hermosillo]: Well, I wouldn' t call it sex. I would call it victimization, but,
yes, that' s true.
5 VRP at 24 ( emphasis added). Third, the following testimony occurred on redirect:
State]: Is it possible to have actual penile penetration without any injuries?
Wahl -Hermosillo]: Yes. In fact, they have done a study, where they had 37
pregnant teenage girls and all but three had normal findings and it' s fairly obvious
that something had happened.
5 VRP at 23. Trial counsel did not object to the above statements by Wahl -Hermosillo.
Woodard did not call a medical expert.
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E. Physical Evidence— Chain of Custody
At trial, the State admitted M.P.' s rape kit and a bag containing M.P.' s underwear. Lisa
Engler, a registered nurse at a hospital, testified she watched M.P. remove the underwear and
place it in the bag, and that Engler sealed the bag with an evidence seal and placed her initials
and the time on the bag. Engler testified she conducted a series of tests on M.P., and then placed
the testing materials and the underwear in a rape kit, which she sealed with her initials and a time
stamp. Engler testified she then submitted the rape kit to the sheriff' s office.
Sheriff' s Deputy Chris Fulton testified that he went to the hospital and received the rape
kit in sealed condition, transported it to the sheriff' s office, and placed it in the sheriff' s evidence
refrigerator. Deputy Fulton testified he sealed the refrigerator with evidence tape and initialed
the tape.
Sheriff' s Deputy Debra Hensley testified she removed the seal from the refrigerator and
removed the rape kit from the refrigerator. Deputy Hensley testified the rape kit was then
submitted to the Washington State Patrol Crime Lab ( WSPCL).
Teresa Shank, a WSPCL forensic scientist, testified she received the rape kit in sealed
condition. Shank testified she opened the rape kit, removed the bag from the rape kit, and
removed the underwear from the bag. Shank testified she then conducted tests on the items,
resealed the underwear in the bag, resealed the underwear and other items in the rape kit, and
returned the rape kit to the sheriff.
After the sheriff received the rape kit, the sheriff submitted the rape kit to Orchid
Cellmark Incorporated, a private DNA testing corporation. Orchid tested the items in the rape
kit and returned the rape kit to the sheriff.
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In preparation for trial, the rape kit was unsealed and opened in Engler' s presence and the
bag was removed from it. At trial, Engler identified the rape kit and testified it was in the same
condition as when she gave it to the sheriff except that it had additional seals. Engler identified
the bag by the evidence seal, the time, and her initials on the bag. Engler testified that the bag
was in the same condition as when she gave it to the sheriff. Shank identified the rape kit and
bag at trial and testified they were in the same condition at trial as when she received them at the
WSPCL, except that they were already opened at trial.
Deputy Hensley identified the rape kit at trial. Deputy Hensley testified that it looked
the same as when she acquired it from the refrigerator prior to it being sent to the WSPCL,
except that it had additional seals. Deputy Fulton could not identify the rape kit at trial.
On direct examination, M.P. identified the underwear as the underwear she wore when
she was raped. But then, on cross- examination, M.P. testified she could not identify the
underwear.
The State attempted to admit the rape kit multiple times during trial. Trial counsel
consistently challenged admission by objecting to " foundation." See 3 VRP at 154; 4 VRP at
116. While trial counsel did not specifically say he was objecting to chain of custody, it was
clear that trial counsel' s foundation objections went to chain of custody. After one of trial
counsel' s foundation objections, a colloquy about chain of custody occurred. After another
foundation objection, a voir dire of a witness about chain of custody occurred. The trial court
sustained trial counsel' s foundation objections multiple times. After the State presented an
additional witness to establish chain of custody, the trial court admitted the underwear and rape
kit over trial counsel' s objection.
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F. Closing Argument
Whereas Wahl -Hermosillo testified that the study of 37 pregnant teenaged girls
concluded it is possible for a woman to have had sexual intercourse and still have an intact
hymen, the State stated in closing argument:
Ms. Wahl even told you about statistics that showed women that were pregnant and
it' s hard to tell whether the hymen was in fact intact or not.
5 VRP at 98 ( emphasis added). Trial counsel did not object to this statement.
Both parties made many objections to the other party' s closing argument for arguing facts
not in evidence or misrepresenting testimony. The trial court sustained six of the State' s
objections for arguing facts not in evidence or misrepresenting testimony. In contrast, the trial
courtoverruled all of trial. counsel' s five objections for arguing facts not in evidence or
Misrepresenting testimony. After closing arguments, trial counsel moved to dismiss the charges
because the trial court ruled in favor of the State and against trial counsel on the objections. The
trial court denied trial counsel' s motion to dismiss, ruling there was no evidence in the record to
substantiate trial counsel' s arguments objected to by the State.
G. Conviction, Evidentiary Sentencing Hearing on Prior Conviction' s Existence, and Trial
Court' s Statement
A jury found Woodard guilty on all three counts. After Woodard' s conviction, the trial
court held an evidentiary sentencing hearing on the existence of Woodard' s prior child
molestation conviction. When the trial court ordered Woodard to provide his fingerprints in
court to be used as evidence in the hearing, Woodard refused to comply. Woodard asked the
trial court, " Who is trying the case, you or the prosecutor?" 5 VRP at 160. The trial court
responded, " I'm trying the case and you' re right on the edge of contempt. If I find you in
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No. 45709 -1 - II
contempt, it' s dead time." 5 VRP at. 160- 61 ( emphasis added). Woodard then provided his
prints.
The trial court found that the prior child molestation conviction existed. Based on the
prior child molestation conviction and Woodard' s current conviction for first degree kidnapping
and second degree child rape, the trial court found that Woodard was a persistent offender and
sentenced him to life imprisonment without the possibility of parole.
H. Direct Appeal
Woodard appealed his convictions. On direct appeal, appellate counsel argued that
admitting testimony of Woodard' s confession to the six prior instances of intercourse with M.P.
and crack cocaine use violated the evidence rules and denied Woodard a fair trial. While
appellate counsel noted that trial counsel made mistrial motions that were denied, appellate
counsel neither explicitly assigned error to the trial court' s denial of the mistrial motions nor
argued that the trial court erred by denying the mistrial motions. Because appellate counsel did
not assign error to or challenge the trial court' s denial of the mistrial motions, we did not
consider Woodard' s arguments regarding Barnes' s and Neff s testimony to Woodard' s
confessions to prior bad acts.
We reversed Woodard' s current conviction for second degree child molestation on
double jeopardy grounds, but upheld the. kidnapping and second degree child rape convictions
and his life sentence as a persistent offender. Woodard then filed this PRP.
ANALYSIS
The petitioner' s ability to collaterally attack his restraint through a PRP is limited by law.
In re Pers. Restraint of Crow, Wn. App. _, 349 P.3d 902, 905- 06 ( 2015). The petitioner
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must allege particularized facts which, if proven, would entitle the petitioner to relief. 349 P.3d
at 905. The petitioner also must support those factual allegations with evidence. 349 P.3d at
905. Where the record does not support the petitioner' s allegations, he must produce affidavits
or other forms of corroboration showing that competent and admissible evidence will establish
his allegations. In re Pers. Restraint of Rice, 118 Wash. 2d 876, 886, 828 P.2d 1086 ( 1992). If the
parties' materials raise issues of material fact, we order a reference hearing for the superior court
to resolve them. 118. Wn.2d at 886- 87. But we will not remand for a reference hearing unless
the petitioner has made his threshold showing. See 118 Wash. 2d at 886- 87.
Before the petitioner is entitled to collateral relief through a PRP, he must prove the
alleged error' s existence. Crow, 349 P.3d at 906. Furthermore, to be entitled to relief for a
constitutional error, he must prove that the error caused actual and substantial prejudice. 349
P.3d at 906. To be entitled to collateral relief for a nonconstitutional error, he must prove that
the error caused a fundamental defect resulting in a complete miscarriage of justice. 349 P.3d at
1.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
On an ineffective assistance of trial counsel claim, the defendant bears the burden of
showing deficient performance and resulting prejudice. State v. Grier, 171 Wash. 2d 17, 32- 33,
246 P.3d 1260 ( 2011); Strickland v. Washington, 466 U.S. 668, 687 ( 1984). Counsel' s
performance is deficient if it falls below an objective standard of reasonableness. State v.
Stenson, 132 Wash. 2d 668, 705, 940 P.2d 1239 ( 1997). Our scrutiny of counsel' s performance is
highly deferential; it strongly presumes reasonableness. State v. Thomas, 109 Wash. 2d 222, 226,
743 P.2d 816 ( 1987).
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To show deficient performance, the defendant must show the absence of any conceivable
legitimate tactic supporting trial counsel' s action. Grier, 171 Wash. 2d at 32- 33. To establish
prejudice, the defendant must show a reasonable probability that but for the deficient
performance, the result of the proceeding would have been different. Thomas, 109 Wash. 2d at
226. Because ineffective assistance of counsel claims present mixed questions of law and fact,
we review them de novo. In re Pers. Restraint ofBrett, 142 Wash. 2d 868, 873, 16 P.3d 601
2001).
In order to establish an ineffective assistance of appellate counsel claim, the defendant
must show the legal issue appellate counsel failed to raise had merit and that he was actually
prejudiced by the failure to raise or adequately raise the issue. In re Pers. Restraint ofDalluge,
152 Wash. 2d 772, 787- 88, 100 P.3d 279 ( 2004). To show prejudice, the petitioner must show a
reasonable probability that but for counsel' s failure to raise the meritorious issue on appeal, the
petitioner would have prevailed. 152 Wash. 2d at 788.
A. Appellate Counsel' s Failure To Assign Error to the Denial ofMistrial Motions
Woodard argues that appellate counsel provided ineffective assistance by failing to assign
error to the trial court' s denial of mistrial motions -for Barnes' s and Neff s testimonies of
Woodard' s confessions to prior bad acts. Because Woodard cannot show prejudice, we disagree.
To establish prejudice, Woodard must show a reasonable probability that but for
counsel' s failure to raise the issue on appeal, Woodard would have prevailed. Dalluge, 152
Wash. 2d at 788. To determine whether Woodard would have prevailed, we review the trial court' s
decision to deny the motions for mistrial.
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On direct appeal, we review the decision to grant or deny a mistrial motion under the
abuse of discretion standard because the trial court is in the best position to assess whether a
remark can be cured by admonition or requires a mistrial. State v. Dickerson, 69 Wash. App. 744,
748, 850 P.2d 1366 ( 1993); State v. Escalona, 49 Wash. App. 251, 254- 55, 742 P.2d 190 ( 1987).
A mistrial is appropriate only when the defendant was so prejudiced that only a new trial can
ensure a fair trial. State v. Whitney, 78 Wash. App. 506, 515, 897 P.2d 374 ( 1995).
To determine whether erroneous testimony was prejudicial enough to warrant a mistrial,
we consider three factors. First, we consider the erroneous testimony' s seriousness, i.e., whether
the erroneous testimony was serious enough to materially affect the trial' s outcome. State v.
Greiff, 141 Wash. 2d 910, 921, 10 P.3d 390 ( 2000); State v. Hopson, 113 Wash. 2d 273, 284, 286, 778
P.2d 1014 ( 1989). Second, we consider whether the erroneous testimony involved cumulative
evidence. Greiff, 141 Wash. 2d at 921. Third, we consider whether the trial court provided a
proper instruction to disregard the erroneous testimony; an instruction the jury is presumed to
follow. 141 Wash. 2d at 921; Hopson, 113 Wash. 2d at 287. Finally, we determine whether the
erroneous testimony denied the defendant a fair trial by analyzing the strength of the State' s case
against Woodard, considered " against the backdrop of all the evidence." Escalona, 49 Wash. App.
at 254.
Under ER 404( b), " Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith." Here, Barnes testified
that Woodard claimed to have intercourse with M.P. on six occasions prior to the alleged rape at
issue in Woodard' s case, and Neff testified that Woodard used an illicit drug prior to the alleged
rape at issue in Woodard' s case.
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In analyzing whether a mistrial should have, been granted for these statements, we first
characterize Barnes' s and Neff s statements as serious, but not serious enough to materially
affect the trial' s outcome. The offending testimony here consisted of Barnes' s brief statement
that Woodard had told Barnes about Woodard' s prior intercourse with M.P. and Neff s brief
statement that Woodard told Neff about Woodard' s drug use. Neither Barnes nor Neff testified
that Woodard actually committed these acts. Rather they claimed only that Woodard claimed to
have committed these acts. Barnes' s and Neff s brief statements were not serious enough to
materially affect the trial' s outcome.
The second factor is whether the statements were cumulative. Greiff, 141 Wash. 2d at 921.
There was no other evidence offered at trial regarding Woodard' s prior sex offenses or drug use.
In fact, the trial court had excluded the evidence of prior sex offenses and the parties had agreed
not to elicit testimony about Woodard' s drug use. Thus, the evidence was not cumulative. .
The third factor is whether the trial court properly instructed the jury to disregard the
erroneous testimony. 141 Wash. 2d at 921. Here, the trial court gave an instruction to disregard
Barnes' s testimony about Woodard' s claimed prior intercourse with M.P., an instruction jurors
are presumed to follow. Hopson, 113 Wash. 2d at 287. The trial court offered to give a curative
instruction for Neff s statement about Woodard' s claimed drug use, but trial counsel declined
that instruction for strategic reasons.
No. 45709 -1 - II
Finally, we must determine whether the erroneous testimony denied the defendant his
right to a fair trial by analyzing the strength of the State' s case against Woodard, considered
against the backdrop of all the evidence." Escalona, 49 Wash. App. at 254. The State' s case
against Woodard was very strong and included the victim' s testimony and DNA evidence.
M.P.' s testimony was unequivocal. DNA testing confirmed that Woodard' s DNA was on the
hoody in the same location as where M.P. testified Woodard had put his mouth on her breast
over the hoody. The evidence supported that this DNA came from " amylase activity" which is
usually associated with saliva. M.P. testified that after Woodard took M.P. to the store, Woodard
took a different route home, drove down a back road, stopped the van, and raped her for about
ten to twenty minutes. Three witnesses testified the store was only a few minutes away by
vehicle, but that Woodard was gone for between 25 and 30 minutes.
Dr. Sunderland testified that the entrance of M.P.' s vagina was tender and swollen.
Wahl -Hermosillo testified that M.P. had no vaginal injuries but that she would not expect to see
any vaginal injuries on M.P. when she conducted her examination five to six days after the rape.
Digital penetration and.oral sex both establish the " sexual intercourse" element of child
rape. RCW 9A.44.010( 1)( c); State v. Tili, 139 Wash. 2d 107, 115- 17, 985 P.2d 365 ( 1999). M.P.
testified that Woodard had oral sex with her and digitally penetrated her. This was confirmed by
Barnes and Neff, both of whom testified that Woodard confessed to performing oral sex on and
digitally penetrating M.P. on the date at issue in Woodard' s case. Finally, two witnesses testified
to M.P.' s distressed demeanor after the incident. Viewing Barnes' s and Neff s brief and indirect
remarks against the wealth of evidence against Woodard, we hold that Woodard was not denied
his right to a fair trial.
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No. 45709 -1 - II
We hold that the trial court did not abuse its discretion in refusing to grant a mistrial.
Thus, Woodard has failed to show a reasonable probability that had appellate counsel assigned
error to the trial court' s denial of the mistrial motion on direct appeal, Woodard would have
prevailed. Therefore, Woodard cannot prove prejudice and his ineffective assistance of appellate
counsel claim fails.
B. Trial Counsel' s Improper Impeachment of Witnesses
Woodard argues that trial counsel provided ineffective assistance by failing to properly
impeach witnesses in four instances. We disagree.
1. Impeachment ofHazelrigg with His Unrecorded Statement to Trial Counsel
Woodard argues that his trial counsel provided ineffective assistance by failing to
properly use Hazelrigg' s out- of-court statement to trial counsel to impeach Hazelrigg' s
testimony that his brother went to the street to purchase drugs. ' We disagree.
Although trial counsel initially failed to use Hazelrigg' s out-of-court statement to trial
counsel to impeach Hazelrigg' s testimony that his brother went to the street to purchase drugs,
trial counsel did elicit testimony that Hazelrigg mentioned drugs neither in his out-of-court
statement to trial counsel nor in his statement to Deputy Shannon. Thus, because trial counsel
successfully elicited the inconsistency between Hazelrigg' s testimony about his brother' s intent
and what Hazelrigg told both trial counsel and Deputy Shannon, Woodard has failed to show that
trial counsel' s performance fell below an objective standard of reasonableness. Therefore,
Woodard has failed to show deficiency.
20
No. 45709 -1 - II
2. Impeachment ofDeputy Shannon with Her Written Report
Woodard argues that trial counsel provided ineffective assistance by struggling to use
Deputy Shannon' s written report to impeach Deputy Shannon' s testimony that Woodard said
yes" in response to Deputy Shannon asking Woodard whether he wanted to speak with her. We
disagree.
Deputy Shannon testified that when she asked Woodard whether he wanted to speak with
her, Woodard said, " Yes." 3 VRP at 133. Trial counsel eventually succeeded in impeaching this
testimony with Deputy Shannon' s written report, in which Woodard responded to Deputy
Shannon' s question with, " Yeah, I don' t have a problem," rather than " yes." 3 VRP at 148.
Because trial counsel was able to elicit that Woodard said, " Yeah, I don' t have a problem," in
response to Deputy Shannon' s question, Woodard has failed to show that trial counsel' s
performance fell below an objective standard of reasonableness. Therefore, Woodard has failed
to show deficiency.
3. Impeachment ofDeputy Shannon or M.P. with M.P. 's Taped Statement
Woodard argues that trial counsel provided ineffective assistance by failing to properly
use M.P.' s taped statement to impeach M.P.' s and Deputy Shannon' s testimony that M.P. was
wearing a hoody. We disagree.
At trial, M.P. provided unequivocal testimony that she was wearing the hoody when
Woodard raped her and that Woodard put his mouth on her breast over the hoody. Deputy
Shannon testified that M.P. told Deputy Shannon, albeit not necessarily in the taped statement,
that she was wearing the hoody when she was raped. DNA testing confirmed that Woodard' s
21
No. 45709 -1 - II
DNA was on the hoody, in the same location as where M.P. testified Woodard had put his mouth
on her breast over the hoody.
This testimony is not contradicted by the mere absence ofa reference to the hoody in
M.P.' s taped statement. The mere absence of a reference to a hoody provides minimal benefit to
Woodard. Therefore, Woodard has failed to show that there is a reasonable probability that but
for trial counsel' s failure to impeach M.P. or Deputy Shannon with the absence of a reference to
the hoody in M.P.' s taped statement, the outcome of the trial would have been different. Thus
Woodard has failed to show prejudice.
4. Impeachment ofBarnes with his Declaration Requesting Withdrawal ofa Subpoena
Woodard argues that trial counsel provided ineffective assistance by failing to impeach
Barnes with his declaration requesting the State to quash its subpoena, in which Barnes claimed
he had no testimony to contribute to Woodard' s case. We disagree.
Trial counsel did not impeach Barnes with his declaration that he had no testimony to
contribute to Woodard' s case. While Barnes' s statement has some impeachment value because it
shows Barnes' s dishonesty, it does not directly contradict Barnes' s claims against Woodard.
Furthermore, the State would have been able to easily explain Barnes' s statement to the jury by
arguing that Barnes claimed he did not have any information to contribute to Woodard' s trial
because Barnes wanted the State to quash its subpoena merely because Barnes did not want to
testify at Woodard' s trial. On the other hand, as discussed above, the State' s case against
Woodard was very strong and included the victim' s unequivocal testimony, DNA evidence, and
strong circumstantial evidence. Thus, Woodard has failed to show a reasonable probability that
22
No. 45709 -1 - II
but for trial counsel' s failure to impeach Barnes with his statement, the outcome of the trial
would have been different. Therefore, Woodard has failed to show prejudice.6
C. Trial Counsel' s Failure To Object to Wahl-Hermosillo' s Testimony Defining Rape
Woodard argues that trial counsel provided ineffective assistance by failing to object to
Wahl-Hermosillo' s testimony providing a legal conclusion by defining rape as blunt penetrating
trauma. The State concedes Wahl-Hermosillo' s testimony improperly provided a legal
conclusion, but argues that trial counsel' s failure to object to this testimony did not constitute
ineffective assistance of counsel. Because Woodard has failed to prove prejudice, we agree with
the State.
A witness may not testify to a conclusion of law. Hyatt v. Sellen Constr. Co., Inc., 40
Wn. App. 893, 899, 700 P.2d 1164 ( 1985). " Improper legal conclusions include testimony that a
particular law applies to the case, or testimony that the defendant' s conduct violated a particular
law." State v. Olmedo, 112 Wash. App. 525, 532, 49 P.3d 960 ( 2002).
Here, Wahl-Hermosillo' s testimony defining rape as blunt penetrating trauma testified to
an ( inaccurate) legal conclusion. But this testimony did not suggest that M.P. was raped: it
suggested that because Wahl -Hermosillo was unable to tell whether M.P. suffered blunt
penetrating trauma, she was unable to tell whether M.P. had been raped. In fact, Wahl -
Hermosillo testified that M.P.' s physical exam had no indications of rape. The jury was given
instructions properly defining rape, which jurors are presumed to follow. State v. Williams, 159
6 Woodard also argues that trial counsel' s inability to impeach witnesses violated his right to
confrontation, but does not explain how. Thus, we hold that Woodard has failed to prove the
alleged error' s existence.
23
No. 45709 -1 - II
Wn. App. 298, 321, 244 P.3d 1018 ( 2011). Thus, Woodard has failed to show a reasonable
probability that but for trial counsel' s failure to object to Wahl-Hermosillo' s statement defining
rape, the outcome of the trial would have been different. Therefore, Woodard has failed to prove
prejudice. 7
D. Trial Counsel' s Failure To Object to Wahl-Hermosillo' s " Victimization" Comment
Woodard argues that trial counsel provided ineffective assistance by failing to object to
Wahl-Hermosillo' s testimony to her opinion that intercourse as M.P. had described would
constitute victimization. We disagree.
Expert witnesses may testify in the form of an opinion. ER 702. But expert witnesses
may not testify to an opinion as to a defendant' s guilt. Olmedo, 112 Wash. App. at 530.
Here, Wahl-Hermosillo' s statement was that intercourse as M.P. had described would be
victimization, not that such a victimization actually occurred. In fact, Wahl -Hermosillo testified
that the physical exam had no indications that M.P. had been raped. The parties below did not
dispute that intercourse as M.P. had described would be victimization; they disputed only the
truth of M.P.' s description. Thus, Woodard has failed to show a reasonable probability that but
for.trial counsel' s failure to object to Wahl-Hermosillo' s statement about victimization, the
Woodard argues that Wahl-Hermosillo' s testimony defining rape denied Woodard a fair trial by
testifying to a legal conclusion. For the same reason he has failed to show prejudice under the
ineffective assistance of counsel standard, Woodard has failed to show either actual and
substantial prejudice or a fundamental defect resulting in a complete miscarriage ofjustice.
Thus, Woodard' s claim fails whether it asserts an evidentiary or constitutional error.
Im
No. 45709 -1 - II
outcome of the trial would have been different. Therefore, Woodard has failed to show
prejudice.8
E. Trial Counsel' s Failure To Object to Wahl- Hermosillo' s Testimony About the Study
Woodard argues that trial counsel provided ineffective assistance by failing to object to
Wahl-Hermosillo' s testimony for referencing a study of 37 pregnant girls that was not admitted.
We disagree.
Here, Wahl -Hermosillo gave a passing reference to the study of 37 pregnant girls without
providing any detail. If trial counsel had objected to Wahl-Hermosillo' s reference to the study, it
would have called attention to the study. Also, the State could have responded by eliciting
additional foundational information about the study to support her reference to the study, which
could have damaged Woodard' s case. Thus, it is a conceivable legitimate strategy to avoid
objecting to Wahl-Hermosillo' s passing reference to the study to avoid eliciting additional
testimony expanding upon the study' s legitimacy. Therefore, Woodard has failed to show that
trial counsel was deficient for failing to object to Wahl-Hermosillo' s testimony for referencing a
study of 37 pregnant girls that was not admitted.9
8 Woodard also argues that Wahl-Hermosillo' s testimony that intercourse as M.P. had described
would constitute victimization denied him his constitutional right to a fair trial. For the same
reason Woodard has failed to show prejudice under the ineffective assistance of counsel
standard, he has failed to show actual and substantial prejudice. Thus, his claim fails.
9 Woodard also argues that Wahl-Hermosillo' s testimony about the study of 37 pregnant girls
denied him a fair trial by citing a study that was inadmissible under the evidence rules and the
test for novel scientific evidence articulated in Frye v. United States, 293 F. 1013, 1014 ( D. C.
Cir. 1923). But Woodard has provided no information revealing the details of the study, and the
record does not reveal the study' s details. Thus, Woodard has failed to show that competent and
admissible evidence would establish that the study was inadmissible under the evidence rules or
Frye, and his claim fails.
25
No. 45709 -1 - II
F. Trial Counsel' s Failure To Object to the State' s Mischaracterization of 37 Pregnant
Girls Study in Closing
Woodard argues that trial counsel provided ineffective assistance by failing to object to
the State' s mischaracterization of the conclusion of the study of 37 pregnant girls referenced by
Wahl-Hermosillo' s testimony. We disagree.
In closing, the State said that the study of 37 pregnant girls concluded that it' s difficult to
determine whether a hymen is intact, while Wahl-Hermosillo' s testimony supported only that the
study concluded that it is possible for a woman to have had intercourse and still have an intact
hymen. But Woodard does not explain how the State' s misstatement of the study' s conclusion is
more harmful to his case than the study' s actual conclusion. Thus, Woodard has failed to show a
reasonable probability that but for trial counsel' s failure to object, the outcome of his trial would
have been different. Therefore, Woodard has failed to show prejudice. lo
G. Trial Counsel' s Decision Against Calling a Medical Expertfor the Defense
Woodard argues that trial counsel provided ineffective assistance by failing to call a
medical expert for the defense. We disagree. ii
io Woodard argues that we should grant his petition because the State' s mischaracterization of
the study constituted prosecutorial misconduct. In a PRP, prosecutorial misconduct can
constitute constitutional error or nonconstitutional error, depending upon the specific misconduct
at issue. See State v. Emery, 174 Wash. 2d 741, 756- 57; 278 P.3d 653 ( 2012); In re Pers. Restraint
of Pirtle, 136 Wash. 2d 467, 485, 965 P.2d 593 (
1998). For the same reason he has failed to show
prejudice under the ineffective assistance of counsel standard, Woodard has failed to show either
actual and substantial prejudice or a fundamental defect resulting in a complete miscarriage of
justice. Thus, Woodard' s claim fails whether it asserts an evidentiary or constitutional error.
Woodard also argues that trial counsel was ineffective for failing to consult with a medical
expert, and requests a reference hearing on this issue. But Woodard failed to show through
affidavits or other forms of corroboration that competent and admissible evidence will establish
No. 45709 -1 - II
The State bears the burden of proving Woodard' s guilt beyond a reasonable doubt. State
v. Bennett, 161 Wash. 2d 303, 307, 165 P.3d 1241 ( 2007). Here, the State' s two medical experts
both examined M.P. and reached contradictory conclusions as to whether M.P.' s hymen was
intact. Furthermore State medical expert Wahl -Hermosillo testified that M.P.' s physical exam
had no indications that M.P. had been raped. This testimony raised doubt in favor of Woodard.
While calling a third medical expert could have potentially resolved this doubt in favor of
Woodard, it could also have resolved this doubt against Woodard. Thus, it is a conceivable
legitimate tactic for trial counsel to argue that the State' s medical experts created reasonable
doubt, rather than call a third medical expert who could have resolved that doubt to Woodard' s
detriment. Therefore, Woodard has failed to prove that trial counsel was deficient.
H. Trial Counsel' s Allegedly Incomplete Objection to the Rape Kit and Underwear
Woodard argues that trial counsel provided ineffective assistance by failing to object to
the admission of the rape kit and underwear for a lack of chain of custody. We disagree.
Here, trial counsel' s foundation objections to admitting the rape kit and underwear were
chain of custody objections. This is evidenced by the colloquy about chain of custody after one
of trial counsel' s foundation objections, as well as trial counsel' s voir dire about chain of custody
after another foundation objection. Thus, because trial counsel' s foundation objections objected
to a lack of chain of custody, Woodard has failed to show that trial counsel was deficient for
failing to object to a lack of chain of custody.
that trial counsel failed to consult with a medical expert. Thus, because Woodard has not made a
threshold showing, he is not entitled to a reference hearing and his claim fails.
27
No. 45709 -1 - II
II. ADMISSION OF THE RAPE KIT AND UNDERWEAR
Woodard argues that admission of the rape kit and underwear without a proper chain of
custody denied him a fair trial because the witnesses at trial could not identify the underwear,
Deputy Fulton could not identify the rape kit, and no witnesses traced the rape kit and underwear
to and from Orchid. We disagree.
We review the trial court' s chain of custody rulings for an abuse of discretion. State v.
Campbell, 103 Wash. 2d 1, 21, 691 P.2d 929 ( 1984). " Before a physical object connected with the
commission of a crime may properly be admitted into evidence, it must be satisfactorily
identified and shown to be in substantially the same condition as when the crime was
committed." 103 Wash. 2d at 21. When the evidence is susceptible to alteration by tampering or
contamination, the proponent of the evidence must " establish a chain of custody ` with sufficient
completeness to render it improbable that the original item has either been exchanged with
another or been contaminated or tampered with."' State v. Roche, 114 Wash. App. 424, 436, 59
P.3d 682 ( 2002) ( emphasis omitted) ( quoting United States v. Cardenas, 864 F.2d 1528, 1531
10th Cir. 1989)). In-assessirig the chain of custody' s completeness, the trial court shall consider
the nature of the article, the circumstances surrounding the preservation and custody of it, and
the likelihood of intermeddlers tampering with it."' Campbell, 103 Wash. 2d at 21 ( quoting
Gallego v., United States,. 276 F.2d 914, 917 ( 9th Cir. 1960)). Minor discrepancies in the chain
of custody affect the weight of the evidence, not its admissibility. 103 Wash. 2d at 21.
28
No. 45709 -1 - II
A. Inability To Identify the Underwear
Woodard argues that the underwear was inadmissible because the witnesses could
identify only the bag holding the underwear, not the underwear itself. We disagree.
Engler testified that she watched M.P. remove the underwear and place it in the bag, and
that Engler sealed the bag with an evidence seal and placed her initials and time stamp on the
Engler identified the bag by the evidence seal, the time, and her initials. Shank testified she
bag.
removed the underwear from the sealed bag, conducted her tests, and resealed the underwear in
the bag. Shank identified the bag at trial.
While Shank and Engler did not testify that they could identify the underwear itself, they
provided detailed testimony about how they sealed the underwear in the bag and identified the
bag at trial. This established the chain of custody with sufficient completeness to render it
improbable that the underwear had either been exchanged with another or been contaminated or
tampered with. Thus, the trial court did not abuse its discretion by deciding the chain of custody
was established. Therefore, Woodard' s claim fails.
B. Fulton' s Inability To Identify the Rape Kit
Woodard argues that the trial court erred by admitting the rape kit because Fulton could
not identify the rape kit at trial. We disagree.
Engler saw the rape kit before Deputy Fulton acquired it and identified the rape kit at
trial, after Deputy Fulton had placed it in the refrigerator. Deputy Fulton testified that he took
the rape kit from the hospital and placed it,in the refrigerator and sealed the refrigerator. Deputy
Hensley testified she saw the rape kit, sealed, in the refrigerator. Deputy Hensley identified the
rape kit at trial.
wt
No. 45709 -1 - II
This shows that the rape kit did not significantly change from before Deputy Fulton
received it until after Deputy Fulton placed it in the refrigerator. Thus, even without Deputy
Fulton' s identification of the rape kit, the evidence establishes the chain of custody with
sufficient completeness to render it improbable that the rape kit had either been exchanged with
another or been contaminated or tampered with. Thus, the trial court did not abuse its discretion
by deciding the chain of custody was established, and Woodard' s claim fails.
C. Transfer of the Rape Kit and Underwear to Orchid
Woodard argues that the trial court erred by admitting the rape kit and underwear because
the testimony did not trace the rape kit and underwear to and from Orchid. We disagree.
Three witnesses, Engler, Deputy Hensley, and Shank, saw the rape kit before Orchid had
tested it and identified the rape kit at trial after Orchid had tested it. Two witnesses, Engler and
Shank, saw the bag before- Orchid received it and identified the bag at trial after Orchid had
tested it. This shows that the bag and rape kit did not significantly change from before Orchid
received it until after Orchid returned it.' This sufficiently establishes the chain of custody.
Thus, the trial court did not abuse its discretion by deciding the chain of custody was sufficiently
established, and Woodard' s claim fails.
III. COMMENT ON THE EVIDENCE
Woodard argues that the trial court commented on the evidence when it told the jury not
to visit locations mentioned in the testimony because " conditions may not necessarily be the
the actions took place that led to the charges being filed." Petition at
same as they were when all
22- 23. We disagree.
No. 45709- 1- I1
We review constitutional issues de novo. State v. Vance, 168 Wash. 2d 754, 759, 230 P.3d
1055 ( 2010). Article IV, section 16 of the Washington State Constitution prohibits trial judges
from commenting on the evidence presented at trial. State v. Deal, 128 Wash. 2d 693, 703, 911
P.2d 996 ( 1996). An impermissible comment on the evidence is one that conveys the judge' s
attitude on the merits of the case or permits the jury to infer whether the judge believed or
disbelieved certain testimony. 128 Wash. 2d at 703.
Here, the trial court' s statement occurred before any testimony was presented to the jury,
and was intended to communicate to the jurors that they should not visit locations referenced in
future testimony to collect information. The comment did not state what actions took place, and
did not state that Woodard committed a crime or that any crime was committed. Thus, we hold
Woodard has failed to show that the trial court' s comment either conveyed its attitude on the
merits of the case or permitted the jury to infer whether the trial court believed or disbelieved
certain testimony. Therefore, Woodard' s claim fails.
IV. JUDICIAL BIAS
Woodard asserts the trial judge was biased against him because the trial judge said he
was trying the case, told trial counsel to be quiet, and ruled against Woodard many times at trial.
We disagree.
We review constitutional issues de novo. Vance, 168 Wash. 2d at 759. Criminal defendants
have a due process right to a fair trial by an impartial judge. U.S. CONST. amends. VI, XIV;
WASH. CONST. art. I, § 22; In re Pers. Restraint ofSwenson, 158 Wash. App. 812, 818, 244 P.3d
959 ( 2010).
31
No. 45709 -1 - II
We generally review claims ofjudicial bias under the appearance of fairness doctrine,
which states that "` a judicial proceeding is valid only if a reasonably prudent and disinterested
observer would conclude that all parties obtained a fair, impartial, and neutral hearing."' State v.
Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 ( 1995) ( quoting State v. Ladenburg, 67 Wash. App.
749, 754- 55, 840 P.2d 228 ( 1992)). But the party who argues that a judge has a bias must
support the claim with evidence; a claim unsupported by such evidence is without merit. State v.
Post, 118 Wash. 2d 596, 619, 826 P.2d 172, 837 P.2d 599 ( 1992). Thus, before we will apply the
appearance of fairness doctrine, Woodard must show such evidence of a judge' s actual or
potential bias. 118 Wash. 2d at 619; Carter, 77 Wash. App. at 11- 12.
First, the trial judge stated he was " trying the case." 5 VRP at 160. This is a correct
statement. "[ T] ry" means "[ t]o examine judicially; to examine and resolve ( a dispute) by means
of a trial." BLACK' S LAw DICTIONARY 1750 ( 10th ed. 2014). Thus, because the trial court was
examining Woodard' s case judicially, the trial court was trying the case. The statement is not
evidence of the trial judge' s actual or potential bias.
Second, when trial counsel asked the trial court whether he could have his question to
Barnes read back, the trial court initially responded by telling trial counsel " you can be quiet,"
but eventually had the question read back. 4 VRP at 70. While the trial court' s comment may
reveal the trial judge' s frustration, it does not constitute evidence of the judge' s actual or
potential bias, particularly because the trial court complied with trial counsel' s request to have
his question to Barnes read back.
32
No. 45709 -1 - II
Woodard' s other allegations of bias are simply a listing of the trial court' s rulings to
which Woodard disagrees, particularly the trial court' s rulings during closing argument. These
trial court decisions do not provide evidence of an actual or potential bias against Woodard, but
rather show legal determinations against Woodard' s interests. Thus, Woodard' s claim of judicial
bias fails.
V. CUMULATIVE ERROR
Woodard argues that accumulation of errors deprived him of a fair trial. See State v. Coe,
101 Wash. 2d 772, 789, 684 P.2d 668 ( 1984). We disagree.
Under the cumulative error doctrine, we may reverse a defendant' s conviction when the
combined effect of trial errors effectively denies the defendant his or her right to a fair trial, even
if each error alone would be harmless. State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646
2006). But the defendant bears the burden to show multiple trial errors and that the
accumulated prejudice from those errors affected the outcome of his or her trial. In re Pers.
Restraint of Cross, 180 Wash. 2d 664, 690, 327 P.3d 660 ( 2014). Because Woodard has failed to
show any prejudicial errors, we hold that Woodard,has failed to meet his burden of showing that
the accumulated prejudice of multiple trial errors affected the outcome of his trial.
33
No. 45709 -1 - II
We deny Woodard' s petition. 12
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
Worswick, J.
We concur:
Q. C. J.
41C
Bj` . gen
Lee, J.
12 Woodard requests a reference hearing multiple times in his petition. If the parties' materials
raise issues of material fact, we. order a reference hearing for the superior court to resolve them.
Rice, 118 Wash. 2d at 886- 87. But we will not remand for a reference hearing unless the petitioner
has made his threshold showing. See 118 Wash. 2d at 886- 87. On every issue raised by Woodard,
either Woodard failed to make a threshold showing, or the parties' submissions to us did not
raise any issues of material fact. See 118 Wash. 2d at 886- 87. Thus, we do not order a reference
hearing.
34