Personal Restraint Petition Of Charles v. Farnsworth ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
July 30, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 51541-5-II
Personal Restraint of
CHARLES VERDEL FARNSWORTH, JR.
Petitioner.
UNPUBLISHED OPINION
WORSWICK, P.J. — Charles Farnsworth Jr., seeks relief from personal restraint imposed
as a result of his 2012 conviction for first degree robbery, which resulted in a life sentence without
possibility of parole. Farnsworth filed an amended personal restraint petition and a supplemental
petition, which we consider herein.1
AMENDED PETITION
Issue 1: James McFarland’s Testimony
Farnsworth and James McFarland were both charged with first degree robbery and both
faced life sentences without possibility of parole. McFarland agreed to plead guilty to first degree
robbery and first degree theft, with an agreement that if he testified against Farnsworth, the State
would move to vacate the robbery conviction. McFarland testified against Farnsworth, but during
cross-examination denied that he had pleaded guilty to both robbery and theft and testified that he
had only pleaded guilty to theft. Farnsworth sought to impeach McFarland with McFarland’s plea
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Consideration of Farnsworth’s petitions was delayed by motions brought in this court and in our
Supreme Court.
No. 51541-5-II
agreement, but the trial court denied his request to admit the plea agreement. Farnsworth argues
that the trial court erred in refusing to admit the plea agreement.
This issue was addressed in Farnsworth’s direct appeal. State v. Farnsworth, 185 Wn.2d
768, 781-85, 790, 374 P.3d 1152 (2016). And a majority of justices held that any error was
harmless. Farnsworth, 185 Wn.2d at 785. Farnsworth attempts to recast his argument into
prosecutorial misconduct and ineffective assistance of counsel issues. But those issues previously
decided cannot be recast in a new manner unless the interests of justice require relitigation of the
issue. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013); In Re Pers. Restraint
of Jeffries, 114 Wn.2d 485, 488, 789 P.2d 731 (1990); see also In re Pers. Restraint of Stenson,
142 Wn.2d 710, 720, 16 P.3d 1 (2001). Thus, unless he shows that the interests of justice require
relitigation, Farnsworth cannot raise these arguments again in this petition. In re Pers. Restraint
of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994). He makes no such showing; he merely asserts
that he received an unfair trial.
Even if we were to consider Farnsworth’s argument, both prosecutorial misconduct and
ineffective assistance of counsel require a showing of prejudice. State v. Emery, 174 Wn.2d 741,
755, 761, 278 P.3d 653 (2012). The Supreme Court’s holding that any error was harmless therefore
precludes relief on the revised claims. Farnsworth, 185 Wn.2d at 783-84; Emery, 174 Wn.2d at
754-61. Accordingly, Farnsworth does not demonstrate a ground for relief from restraint.
Issue 2: Prosecutorial Misconduct – Failure to Correct and Inability to Impeach
McFarland’s Testimony
Farnsworth argues that the prosecutor committed misconduct by not “correcting”
McFarland’s testimony about his plea agreement. But he does not demonstrate that the prosecutor
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has any such duty. McFarland’s plea agreement testimony was during cross-examination by
Farnsworth’s counsel, so the State did not suborn perjury.
Farnsworth also claims ineffective assistance of counsel in not raising this issue and the
issue of not being allowed to impeach McFarland with two police reports 2 at trial and on appeal.
But his trial counsel attempted to impeach McFarland with the plea agreement and the police
reports. Moreover, his appellate counsel raised the impeachment issue in his direct appeal, and
Farnsworth does not show that appellate counsel’s not raising the second prosecutor’s failure to
correct testimony issue constitutes ineffective assistance. He does not demonstrate a ground for
relief from restraint.
Issue 3: Prosecutorial Misconduct – Presenting False Evidence
Farnsworth argues that it was prosecutorial misconduct to present false evidence about the
circumstances of his prior convictions regarding his wearing of a wig and glasses and that it was
ineffective assistance of counsel not to raise this issue with the courts at trial and on appeal. But
the State did not present any evidence about the prior convictions. While it mentioned these
convictions during opening statements, it elected not to introduce this evidence during trial. And
both trial and appellate counsel raised this issue.
Issue 4: Prosecutorial Misconduct – During Opening Statement
Farnsworth argues that the prosecutor committed misconduct by mentioning the evidence
of the circumstances of the prior convictions during opening statements. But this issue was also
rejected in his direct appeal and cannot be raised again in this petition. Farnsworth, 185 Wn.2d at2
The trial court sustained the prosecutor’s objection to the use of the police report for impeachment
on grounds of hearsay.
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No. 51541-5-II
785-86; Lord, 123 Wn.2d at 303. Farnsworth also argues that he received ineffective assistance
of counsel when counsel failed to address the alleged prosecutorial misconduct. But, again, he
cannot recast his argument as ineffective assistance of counsel claims. Stenson, 142 Wn.2d at 720.
Issue 6:3 Judicial Bias
Farnsworth argues that the trial judge was biased against him and violated the appearance
of fairness doctrine when it (1) denied the admission of McFarland’s plea agreement, (2) did not
allow him to impeach McFarland with the police reports, (3) allowed the prosecutor to use
evidence of the circumstances of his prior convictions, (4) allowed the prosecutor to present
testimony by McFarland about rude gestures and comments Farnsworth made, and (5) allowed the
prosecutor to make references to the circumstances of his prior convictions in her opening
statement. All issues except (4) are addressed above, and none shows bias or an appearance of
unfairness. As to (4), this issue was rejected in his direct appeal and cannot be raised again here.
Farnsworth, 185 Wn.2d at 786-87; Lord, 123 Wn.2d at 303.
Issue 7: Ineffective Assistance of Appellate Counsel – Misrepresentation of Evidence
Farnsworth argues that his appellate counsel provided ineffective assistance of counsel in
“failing to address the Supreme Court’s misrepresentation of the evidence of [his] prior
convictions.” Am. Pet. at 35. But that alleged misrepresentation pertained to evidence of the
circumstances of Farnsworth’s prior convictions that, although mentioned in opening statements,
was not presented by the prosecutor. Farnsworth does not demonstrate any prejudice.
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Farnsworth’s amended petition did not contain an issue numbered 5.
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No. 51541-5-II
Issue 8: Right to Present a Defense
Farnsworth argues that his right to present a defense was violated when the prosecutor
rested without presenting the evidence of the circumstances of Farnsworth’s prior convictions that
she mentioned in her opening statement. But he fails to show how the prosecutor’s decision not
to introduce that evidence violated his right to present a defense.
Issue 9: Ineffective Assistance of Trial Counsel – Loss of Evidence
Farnsworth argues that his first trial counsel’s deficient performance led to “loss of a
crucial witness and a three minute portion of exculpable video evidence.” Am. Pet. at 37. But he
does not demonstrate who that witness was or that there was exculpatory evidence available.
Issue 10: Ineffective Assistance of Standby Counsel
Farnsworth argues that his standby counsel provided ineffective assistance of counsel
through “unauthorized collaboration with the prosecution.” Am. Pet. at 40. We address this
argument below in the Supplemental Petition Issue B section.
Issue 11: Ineffective Assistance of Trial Counsel – Failure to Object
Farnsworth argues that his trial counsel provided ineffective assistance of counsel when he
did not object to testimony regarding Farnsworth’s statements made while refusing to provide a
handwriting exemplar. To establish ineffective assistance of counsel, Farnsworth must
demonstrate that his counsel’s performance fell below an objective standard of reasonableness and
that as a result of that deficient performance, the result of his case probably would have been
different. Emery, 174 Wn.2d at 755. We presume strongly that trial counsel’s performance was
reasonable. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011). Farnsworth does not show
deficient performance. His statements were volunteered, not the result of custodial interrogation.
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No. 51541-5-II
There was no federal Fifth Amendment objection that his counsel could have raised. Farnsworth
does not demonstrate ineffective assistance of trial counsel.
Issue 12: Ineffective Assistance of Standby Counsel – Failure to be Present
Farnsworth argues that he received ineffective assistance of standby counsel when that
counsel was not present at the jail when the State attempted to obtain his handwriting exemplar.
A defendant is not constitutionally entitled to standby counsel, and Farnsworth has not shown that
standby counsel has any duty to be present for an attempt to obtain a handwriting exemplar
pursuant to court order. See State v. Silva, 107 Wn. App. 605, 625, 27 P.3d 663 (2001). Thus,
Farnsworth does not demonstrate ineffective assistance of standby counsel.
Issue 13: Reiteration of Prior Claims
Farnsworth reiterates the claims made in issues 2 and 7, which we rejected above.
Issue 14: Cumulative Error
Farnsworth argues that cumulative error denied him a fair trial. The cumulative error
doctrine applies when several errors occurred at the trial level, none of which alone warrants
reversal, but the combined errors effectively denied the defendant a fair trial. Yates, 177 Wn.2d at
65-66. After reviewing this record, we hold that Farnsworth has not shown an accumulation of
error that would warrant reversal under the cumulative error doctrine.
SUPPLEMENTAL PETITION
Issue A: Ineffective Assistance of Trial Counsel – Loss of Evidence
Farnsworth argues that he received ineffective assistance of counsel from his first trial
counsel. But this argument was raised and rejected in issue 9, above.
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No. 51541-5-II
Issue B: Ineffective Assistance of Standby Counsel – E-mail
Farnsworth argues that he received ineffective assistance of counsel from his standby
counsel. Farnsworth had prepared motions that he wanted standby counsel to file for him. After
counsel did so, he wrote an e-mail to the Department of Assigned Counsel and to the prosecutor
informing them that Farnsworth did not want him to continue as standby counsel because
Farnsworth believed that counsel was mocking him in court. Counsel requested that new standby
counsel be assigned. Farnsworth then was appointed a third attorney. Farnsworth does not show
that the e-mail constituted deficient performance or resulting prejudice.
Farnsworth also argues that standby counsel was ineffective in not filing his motion for a
line-up identification. But Farnsworth’s motion did not identify what witnesses should be required
to participate, and so his motion could not have been granted. Farnsworth does not demonstrate
ineffective assistance by standby counsel.
Issue C: Ineffective Assistance of Standby Counsel – Failure to be Present
Farnsworth argues that his second standby counsel provided ineffective assistance of
counsel. This argument is raised and rejected in issue 12, above.
Issue D: Prosecutorial Misconduct – Failure to Correct and Inability to Impeach
McFarland’s Testimony
Farnsworth argues that the prosecutor committed misconduct when she aided McFarland’s
perjury. This argument is raised and rejected in issue 2, above.
Issue E: Prosecutorial Misconduct During Opening Statement.
Farnsworth argues that the prosecutor committed misconduct when she mentioned the
circumstances of Farnsworth’s prior convictions. This argument is raised and rejected in issues 3
and 4, above.
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No. 51541-5-II
Issue F: Exculpatory Evidence
Finally, Farnsworth submits a declaration stating that there are two witnesses who could
have exculpated him. Farnsworth must present evidence showing that his factual allegations are
based on more than speculation, conjecture, or inadmissible hearsay. In re Pers. Restraint of Rice,
118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Here, the declaration consists of mere hearsay
statements. His declaration is not sufficient to establish his entitlement to a new trial. Rice, 118
Wn.2d at 886.
Farnsworth does not present any grounds for relief from restraint. We therefore deny his
petition.
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, P.J.
We concur:
MELNICK, J.
SUTTON, J.
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