Personal Restraint Petition Of Jaarso Ahmed Abdi ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal ) No. 80370-1-I
Restraint of )
)
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JAARSO AHMED ABDI, ) UNPUBLISHED OPINION
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Petitioner. )
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VERELLEN, J. — In his personal restraint petition, Jaarso Abdi asserts his
counsel was ineffective at trial for failing to timely recognize that discovery from
the prosecutor included exculpatory statements by one victim to police and for
failing to present and properly argue that evidence at trial. But his counsel
discovered the exculpatory statements before trial, and the victim minimized the
role of Abdi in her trial testimony. Whether to cross-examine the victim about the
statements or seek to introduce them through another witness was a legitimate
tactical decision. Abdi also does not establish his counsel’s approach in opening
statement or closing argument was prejudicial.
Abdi contends his attorney was ineffective at sentencing for failing to
investigate, present, and argue mitigating circumstances of his youth. Abdi was
23 years old at the time of the charged conduct, and he had a traumatic and
No. 80370-1-I/2
violent childhood. But he does not establish he was prejudiced by his counsel’s
approach to sentencing.
Because he does not establish ineffective assistance of counsel, we deny
his personal restraint petition.
FACTS
Jaarso Abdi was convicted of attempted first degree robbery and first
degree unlawful possession of a firearm in March 2015. This court affirmed his
judgment and sentence on direct appeal. Abdi timely filed his personal restraint
petition after the mandate issued.
The basic facts leading to Abdi’s convictions are set out in his direct appeal.
Mohamed Ali, his wife, Halimo Dalmar, and their seven children were at home.
Abdi and two other men, Said and Forbes, knocked on the door and loudly
demanded money. The family refused to open the door. The three men went to a
nearby car, removed weapons from the trunk, and returned to the family’s
apartment. They again banged on the door while demanding money. When the
family did not open the door, the three men went around the house and attacked a
nearby neighbor.
Dalmar, thinking the coast was clear, left the apartment to drive her son
Mustafe to work. When Dalmar and Mustafe were in the car, the men approached
and again demanded money. Forbes pointed a gun at the window of the family
home where the children were. A neighbor saw a man holding a gun and called
911. Seattle police arrived in minutes. They saw the three suspects matching the
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descriptions given on the 911 call. The suspects fled. Abdi and Said were quickly
caught and taken into custody. Forbes escaped.
Witnesses saw the men toss something into a bin, where the police later
retrieved two guns. Ali and Dalmar both identified Abdi and Said in separate
lineups and explained their roles in the crimes. They also identified the three men
in court as the attackers.
The jury convicted Abdi and Said of first degree attempted robbery against
Dalmar and first degree unlawful possession of a firearm. The jury acquitted Said
of the second count of first degree attempted robbery against Ali but could not
reach a decision as to Abdi on that count.
The court sentenced Abdi to a standard range sentence of 152 months in
prison.
ANALYSIS
A petitioner alleging constitutional error in their personal restraint petition
bears the “threshold, prima facie burden of showing by a preponderance of the
evidence that [they were] actually and substantially prejudiced by the alleged
error.”1 The petitioner must show that the outcome of their trial “would more likely
than not have been different had the alleged error not occurred.”2
1 In re Pers. Restraint of Meippen, 193 Wash. 2d 310, 315, 440 P.3d 978
(2019).
2 Id. at 316.
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A defendant has a constitutional right to effective assistance of counsel.3
Our analysis of a claim of ineffective assistance of counsel begins with a strong
presumption that counsel was effective.4 The claimant bears the burden of
demonstrating that counsel’s assistance was ineffective.5 The claimant must show
that counsel’s conduct fell below a professional standard of reasonableness and
that but for counsel’s unprofessional conduct, there is a reasonable probability the
outcome at trial would have been different.6 If either of these prongs is not met,
the claim fails.7
A legitimate tactical decision cannot be the basis of an ineffective
assistance claim.8 “It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.”9 Therefore, we make
every effort to “eliminate the distorting effects of hindsight” and evaluate counsel’s
performance from counsel’s perspective at the time.10
3Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
4 Strickland, 466 U.S. at 690; McFarland, 127 Wash. 2d at 335.
5 McFarland, 127 Wash. 2d at 337.
6 State v. Grier, 171 Wash. 2d 17, 32-33, 246 P.3d 1260 (2011) (quoting
Strickland, 466 U.S. at 687).
7 State v. Garcia, 57 Wash. App. 927, 932, 791 P.2d 244 (1990).
8 State v. Alvarado, 89 Wash. App. 543, 548, 949 P.2d 831 (1998).
9 Strickland, 466 U.S. at 689.
10 Id.
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Prejudice is not established merely by showing that an error by counsel had
some conceivable effect on the outcome of the proceeding.11 The party claiming
ineffective assistance must show a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.12
Failure to Present Exculpatory Evidence
In an October 2014 pretrial defense motion, counsel for Abdi asserted she
had not been provided discovery of a police report recounting that Dalmar
disclosed to Abdi and Said’s parents that they “had done nothing to her,” and that
Forbes was “the only one that had a gun.”13 When the detective asked Dalmar
why she had changed her story, she responded that she hadn’t changed her story
and had always maintained that Forbes “was the only one that did anything to her
and the only one that had a gun.”14
After comparing notes with the prosecutor during a recess of the November
19, 2014 hearing, counsel for Abdi acknowledged she had been provided that
portion of the police report in February of 2014.
In her opening statement on December 10, 2014, Abdi’s counsel told the
jury, “[Y]ou’re going to hear from Ms. Halimo Dalmar that she tells the detectives
11 Id. at 693.
12 Id. at 694.
13 PRP, Ex. D at 25.
14 Id.
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and officers in this case in an interview that Mr. Abdi absolutely did nothing to her
whatsoever. She’s going to tell you that herself.”15
During her direct examination at trial, Dalmar emphasized Forbes’s actions.
She testified Forbes was one of two men knocking and kicking at the door and
demanding money, Forbes was the only one she saw with a gun, and he pointed
that gun at her house. She minimized the roles of Abdi and Said. Abdi was with
Forbes on the porch. Said and Abdi were with Forbes at the car. She noted that
Said “only came towards the side of my [car] window, he did not even use his
hands, and he ha[s] not done anything to me.”16 “He came to my car, but he did
not physically take anything from me. None of these guys took anything from me.
. . . [T]hey were all talking. I cannot identify which one was saying what. They
were saying, ‘Give me money. Give me money.’”17
On cross-examination, Abdi’s counsel did not ask any questions of Dalmar
about her statements to detectives.
In closing argument, Abdi’s counsel focused on accomplice liability and
Abdi’s limited role. She noted, “[W]hat you heard from the evidence is that Mr.
Abdi did not have a gun, that he did not threaten anybody,”18 and “what [Dalmar]
15 Report of Proceedings (RP) (Dec. 10, 2014) at 1349.
16 RP (Dec. 18, 2014) at 2264.
17 Id. at 2265.
18 RP (Jan. 12, 2015) at 2920.
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said is that Mr. Abdi did absolutely nothing to her. She said that one person had a
gun, and that was Mr. Forbes.”19 Later in her argument, she added:
[W]hat was clear is that Mr. Abdi did not have a gun at any time. . . .
[The daughter] testified, and I asked her “Was Mr. Abdi holding a
gun?,” her answer was unequivocally no, he was not. . . . [W]hen I
asked [Dalmar] did Mr. Abdi have a gun, she said, “I did not see Mr.
Abdi either with or near a visible gun.” That was her testimony.
Unequivocally did not have a gun. In fact, she said he didn’t do
anything.[20]
Defense counsel should be aware of the contents of discovery provided by
the State, but Abdi does not establish the timing of counsel’s realization was of
any significance. Days before jury selection and opening statements, Abdi’s
attorney was aware of the police report with Dalmar’s statements that neither Abdi
nor Said had done anything to her and that Forbes was the only one with a gun.
The essence of Abdi’s claim is counsel was ineffective for failing to present
exculpatory evidence either on cross-examination of Dalmar or through another
witness.
What direction to take how hard to push on cross-examination are squarely
strategic trial decisions:
Courts generally entrust cross-examination techniques, like
other matters of trial strategy, to the professional discretion of
counsel. In assessing Petitioner's claim that his counsel did not
effectively cross-examine a witness, we need not determine why trial
counsel did not cross examine if that approach falls within the range
of reasonable representation. “In retrospect we might speculate as
to whether another attorney could have more efficiently attacked the
credibility of . . . witnesses. . . . The extent of cross-examination is
19 Id. at 2922.
20 Id. at 2937.
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something a lawyer must decide quickly and in the heat of the
conflict. This . . . is a matter of judgment and strategy.”[21]
And in order to establish prejudice from deficient cross-examination, the petitioner
must show a reasonable probability the testimony to be elicited would have
overcome the evidence against him.22
Dalmar’s statements to the detectives did not stand in stark contrast to her
trial testimony. It was a matter of judgment and strategy whether to attempt to
impeach by means of the limited differences between her direct testimony and her
statement to the detectives. And further inquiry on cross-examination could have
allowed the prosecutor on redirect to explore whether Dalmar’s version of “not
doing anything” to her was limited to not physically touching her or actually taking
property from her. And Abdi does not establish that admitting Dalmar’s
statements to the detectives probably would have overcome the weight of the
evidence against him as multiple witnesses described his role in the attempted
robbery, including his possession of a gun.23
Counsel’s misstatement in closing about Dalmar’s testimony is troubling
and could have undercut her credibility with the jury, but it is clear that the focus of
21 In re Pers. Restraint of Davis, 152 Wash. 2d 647, 720, 101 P.3d 1 (2004)
(alterations in original) (quoting State v. Stockman, 70 Wash. 2d 941, 945, 425 P.2d
898 (1967)).
22 Id.
23 In the direct appeal, this court determined that sufficient evidence
supported his conviction for possession of a firearm. State v. Abdi, No. 73263-3-I,
slip op. at 6, (Wash. Ct. App. July 31, 2017) (unpublished) http://www.courts.wa.
gov/opinions/pdf/732633.pdf.
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her argument was to emphasize the evidence that Abdi did not possess or use a
gun in the context of accomplice liability. Even if deficient, Abdi does not establish
a reasonable probability that a different tack in the opening statement or closing
argument would have made a difference in the outcome of the trial.
Abdi does not establish ineffective assistance at trial.24
Failure to Present Mitigating Factor of Abdi’s Youth
Abdi contends his counsel was ineffective at sentencing for failing to
present evidence and advocate for a mitigated sentence based on Abdi’s youth.
Specifically, he argues he was 23 years of age at the time of the underlying crimes
and scientific evidence supports that frontal lobe development continues into the
mid-20s. Abdi also relies on his violent and traumatic experiences as an ethnic
minority and refugee. He contends development of his brain architecture was
disrupted by his migration to new countries and his childhood was filled with fear,
violence, poverty, and hunger. His trial counsel acknowledges in her declaration
that it did not occur to her to investigate or advocate for mitigation based on
youthfulness.
But prejudice for ineffective assistance for failure to present a potential
mitigating factor at sentencing requires a showing that the trial court would have
24 The four federal cases cited by Abdi regarding the failure to present
exculpatory evidence are not persuasive. Anderson v. Butler, 858 F.2d 16 (1st
Cir. 1988), Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002), Lord v. Wood, 184 F.3d
1083 (9th Cir. 1999), and Hart v. Gomez, 174 F.3d 1067 (9th Cir. 1999) all
involved facts where the exculpatory evidence was compelling, as opposed to the
limited exculpatory statements here.
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been inclined to accept such a factor.25 Abdi contends the sentencing court’s
comments about youthfulness revealed the court would have been receptive to
this mitigating factor. The court was aware of Abdi’s age at the time of the crimes
and his immigrant background, noting, “I also know that young men do stupid
things and they grow up, and fortunately, they grow out of them. And their brains
are immature at this age, but—and I’m a true believer in second chances and
sometimes even third chances.”26
But the court concluded Abdi had already been given multiple chances. His
criminal history included seven adult felonies and two juvenile matters. The court
was troubled by Abdi’s prior convictions and his “absolute disregard for your fellow
human being[s] and vulnerable people.”27 The court imposed the high end of the
standard range, acknowledging that the only thing the sentence would do is
protect the public for a period of time. The court acknowledged the science
25 See State v. Knight, 176 Wash. App. 936, 958, 309 P.3d 776 (2013) (where
there is no indication the trial court would have considered or imposed even a low
end standard sentence, let alone an exceptional sentence downward, the
defendant fails to establish he was prejudiced by counsel’s failure to inform the
court of the possibility of an exceptional sentence downward); see generally
Meippen, 193 Wash. 2d at 317 (although in a different setting, there was no showing
of prejudice for ineffective assistance where court was aware of its discretion to
impose an exceptional sentence downward based on youthfulness at sentencing
of juvenile but “[n]othing in our record suggests that the trial court would have
exercised its discretion to depart from the [Sentencing Reform Act] sentence
enhancement guidelines. The trial court determined that Meippen’s actions were
cold and calculated, and it clearly intended to impose a sentence at the top of the
standard range despite Meippen’s youth.”)
26 RP (Mar. 18, 2015) at 3108.
27 Id.
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underlying concerns with youthfulness and brain maturity and still chose a high
end sentence based on Abdi’s troubling history of disregard for others. The record
reveals the court was not inclined to mitigate Abdi’s sentence on the basis of
youthfulness.
Abdi does not establish ineffective assistance of counsel at sentencing.
We deny the petition.
WE CONCUR:
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