Opinion
No. 35724-1-II.
May 20, 2008.
Petition for relief from personal restraint.
Denied by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
In this Personal Restraint Petition, Jeffrey Taylor claims ineffective assistance of trial counsel for (1) lack of trial preparation; (2) failure to use an expert on false or coerced confessions; (3) failure to investigate Taylor's need for a psychologist to rebut the State's inference that his compulsiveness led him to commit these offenses; (4) failure to properly attack the victim's accusations; and (5) failure to introduce available evidence to corroborate his alibi. He also claims ineffective assistance of appellate counsel for failing to raise these issues on appeal. Finally, he claims that an accumulation of errors denied him a fair trial. We deny Taylor's petition.
FACTS
I. Procedural History
In August 2003, a jury found Taylor guilty of three counts of first degree child rape. We affirmed those convictions in an unpublished opinion, State v. Taylor, noted at 126 Wn. App. 1058, 2005 WL 834398. The jury found him not guilty of one count of first degree child rape and not guilty of first degree child molestation. He claimed on appeal that (1) the trial court erred in giving the jury a copy of the charging information during deliberations; (2) the prosecutor committed misconduct in closing arguments by (a) commenting on the seriousness of the charges; (b) abridging his right to remain silent; (c) improperly characterizing his statements to Detective Gardner as referring to all the charges; and (d) using a "golden rule" argument in closing. Pro se, Taylor argued that he received ineffective assistance of trial counsel because counsel failed to (1) object during closing when the prosecutor referred to his having seen a psychologist; (2) offer time records from his employer to show that he did not have the opportunity to commit the alleged crimes; (3) allow him to testify; and (4) call certain witnesses.
II. Substantive Facts (Direct Appeal)
In Taylor's direct appeal, we explained the facts as developed at trial as follows:
Between November 1999 and April 2000, Taylor and his wife Kim were staying with Kim's parents. KH, then age 9, did not live with Kim's parents, but she came there after school each day until her mother got off work.
In January 2003, KH told her mother that Taylor had touched her inappropriately. The mother notified the police. On March 12, 2003, KH told Detective Gardner that Taylor had molested her in a van. She did not allege penetration.
On March 21, 2003, Taylor initially told Gardner that he had never been alone with KH. Then, as he and Gardner continued to talk, he said that "it could have happened . . . [b]ut I just don't remember." When Gardner asked if Taylor could have done the things that KH alleged, Taylor stated that it was "a possibility. I have been to a psychologist in the past for doing impulsive things and being rebellious towards my parents and family." Taylor acknowledged the opportunity Page 3 and time to molest KH, said he was willing to get counseling or take tests to see if the acts did occur, and asked for help rather than jail time because he had a new family to take care of. They did not discuss rape.
Report of Proceedings (RP) at 126.
RP at 127.
In June 2003, KH told Gardner that Taylor had put his finger in her vagina while they were playing with baseball cards, while they were playing video games on a computer, while they were in the TV room, and while they were in Taylor's bedroom.
On June 5, 2003, the State filed an information which, as later amended, charged Taylor with child molestation in the first degree and four counts of child rape in the first degree. . . . .
Before trial, the State moved to exclude time sheets from Taylor's work. Taylor's counsel responded that he would not be offering them, as he expected that testimony from Taylor's wife would encompass the same information. At the beginning of trial, the court read the charging information to the jury venire. After the jury was selected and sworn, KH took the stand but became upset after giving her name, age, year in school, and identifying Taylor. The court took a recess, and she did not complete her testimony until later in the day. When she did, she said that Taylor had "unzipped [her] pants and put his hand in [her] private parts," and "put his finger inside" her. She did not remember how many times he had done this, but he had done it while they were in his bedroom, while they were playing video games, while they were in the TV room, and while they were looking at baseball cards. He had also grabbed her "privates," outside of clothing, while they were in a van.
RP at 91.
RP at 92.
KH's mother testified that she usually picked up KH around 6 p.m., and that Taylor was "usually always there." KH's great-aunt testified that Taylor and Kim stayed at her house except on Mondays and Wednesdays; that KH was not permitted in the Taylor's bedroom; that Taylor "was hardly home when [KH] was there;" that KH and Taylor had never been in the van together; and that her house did not have any video game machines or computers that worked. Taylor's father, Stanley, testified that Taylor and Kim stayed at his home on Mondays and Wednesdays. Kim testified that when they did not stay at Stanley's home on Mondays and Wednesdays, they both left for work at 5 or 5:30 a.m. and did not return home until 7 or 8 p.m. due to the length of their commute. Kim also testified that the aunt and uncle did not have a working computer or video game in their house.
RP at 76.
RP at 156.
Taylor, 2005 WL 834398 at *1-2.
III. New Facts Alleged In Petition
The declarations attached to Taylor's petition present the following new facts for our consideration:
These declarations do not comply with GR 13 or RCW 9A.72.085. See State v. Forest, 125 Wn. App. 702, 706-07, 105 P.3d 1045 (2005) (court need not address claim when defendant improperly submitted unsworn written statement); In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992) (if petitioner wishes to present evidence others possess, he must include their affidavits). On this basis alone, we could refuse to consider them, but since we deny his petition, we choose to address the merits rather than require Taylor to file another petition.
A. Declaration of Jeffrey Taylor
Taylor asserts that he only saw a psychologist when he was 19 years old and had gone to Montana for a few weeks without telling his family. His session with the psychologist had nothing to do with sexual deviancy. He asserts that Mr. Sergi, his attorney, did not ask him about these visits or try to contact the psychologist. He also asserts that he offered to get his time records to corroborate his defense, but Sergi was not interested. Taylor's wife then obtained the time records, but Sergi chose not to present them at trial.
B. Declaration of Richard A. Leo, Ph.D., J.D.
Dr. Richard Leo is an expert in the psychology of police interrogation. He claims that Detective Gardner used a specific psychological method of coercion in order to obtain a persuaded false confession from Taylor. He opined that Taylor's statements are neither admissions nor confessions. Rather, they are ambiguous. He asserts that the statements could simply be the product of pressure and manipulation to get Taylor to admit that it was hypothetically possible to do something he did not and could not remember. Dr. Leo also asserts that the circumstances involved in eliciting these statements may have resulted from Detective Gardner using "psychologically coercive inducements, in the form of implicit threats and promises, to elicit Mr. Taylor's compliance." App. B at 8.
Persuaded false confessions occur when the police interrogation techniques have caused an innocent suspect to believe that he might have committed the crime despite having no memory of doing so.
"A Persuaded false confession typically occurs when, after a series of accusations and denials, the interrogator convinces the suspect that it is possible he could have committed the alleged crime without remembering it and the suspect agrees with the interrogator's suggestion. This usually, but not always, happens after the interrogator has confronted the suspect with alleged evidence of his guilt that he claims is irrefutable and has suggested a theory of how the suspect could have had amnesia for the crime. Once suspect accepts the possibility that he could have committed the crime without remembering it, he tends to `confess' in equivocal, tentative and speculative language such as `I could have done [fill in the blank]' or `I probably did [fill in the blank].' This kind of hypothetical language reflects the suspect's own confusion-his belief, based on what the interrogator has told him, that he could have committed the crime without remembering it and yet his absence of any knowledge of having done so. No matter how hard the innocent suspect tries, he does not know any of the details of the crime and thus can only speculate about what he could or would have done (unless of course he has inferred the correct answers from the interrogators of they have been explicitly suggested to him)."
Decl. of Richard A. Leo, Ph.D., J.D., Petitioner's Br., App. B, at 5-6.
C. Declaration of Kimberly Taylor
Kimberly Taylor declares that she asked Sergi about obtaining Taylor's employment records to support his defense that he did not have an opportunity to commit the alleged crimes. She claims that Sergi simply said, "I'm not going to get them. If you want them, you can get them." App. C at 2. She then obtained the records and provided them to Sergi but he did not use them at trial or call the records custodian from Jeffrey's place of business.
D. Declaration of Frank Sebastian
Frank Sebastian is an investigator that Michael Kelly, Taylor's attorney for this current petition, hired on Taylor's behalf to investigate Taylor's trial for purposes of this personal restraint petition. Sebastian declares that he contacted Sergi multiple times to discuss his representation of Taylor but that Sergi never returned his telephone calls.
E. Declaration of Shannon Givens
Shannon Givens is an investigator that Kelly also hired on Taylor's behalf to investigate Taylor's trial for purposes of this personal restraint petition. She declares that she contacted John Wilson, the investigator that Sergi used for trial, that Wilson did not recall the details of the case and that, if he had any written reports, he would have turned them over to Sergi and would not have retained copies. He also told her that he often just gives information orally and that he may not have given a written report.
F. Declaration of Michael Kelly
Kelly is Taylor's attorney for this petition. He declared that he tried to contact Sergi six times, that he was only able to speak with him once for about five minutes and Sergi explained that he had "very little memory" of the case and no longer had a case file. He referred Kelly's legal assistant to the prosecutor's office in order to obtain the police reports. App. F at 4.
G. Appendices M-U
These appendices contain the official police reports and other documents from the prosecutor's office, including a letter from the victim's counselor.
H. Appendix V
This appendix includes the payroll reports that Kimberly Taylor obtained showing Jeffrey Taylor's hours of employment.
ANALYSIS
I. Standard of Review
To obtain relief through a personal restraint petition, a petitioner claiming constitutional error must show that such an error was made and that it "worked to his actual and substantial prejudice." In re Pers. Restraint of Lile, 100 Wn.2d 224, 225, 668 P.2d 581 (1983). The petitioner bears the burden of establishing prejudice by a preponderance of the evidence, but that burden "may be waived where the error gives rise to a conclusive presumption of prejudice." In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992). The St. Pierre court explicitly rejected, however, the suggestion made in prior dicta that constitutional errors that are per se prejudicial on direct appeal "will also be presumed prejudicial for the purposes of personal restraint petitions." [ St. Pierre, 118 Wn.2d at 328].
In Re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004).
We have three options when evaluating a personal restraint petition. We can (1) dismiss the petition if the defendant fails to make a prima facie showing of constitutional error; (2) remand for a full hearing if the petitioner makes a prima facie showing but the merits of the contentions cannot be determined solely from the record; or (3) grant the personal restraint petition without further hearing if the petitioner has proven actual prejudicial error. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
Our Supreme Court elaborated on the prerequisites for using a personal restraint petition to obtain a remand hearing in Rice, 118 Wn.2d at 886, stating: "[T]he petitioner must state with particularity the facts which, if proven, would entitle him to relief"; and if his allegations are based on matters outside the record and on knowledge others possess, he must present affidavits from those persons stating what they would give as competent testimony.
II. Effective Assistance of Trial Counsel
The test for ineffective assistance of counsel has two parts. First, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Second, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We begin with the presumption that counsel's assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122 (1986) (citing Strickland, 466 U.S. at 694). This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting his counsel's conduct. State v. McFarland, 127 Wn.2d 322, 334-38, 899 P.2d 1251 (1995).
A. Trial Preparation
Taylor first argues that Sergi went to trial wholly unprepared to defend him. He acknowledges that he does not know what Sergi did as Sergi cannot remember and has no case file. Nonetheless, he notes that the court file contains no motions, no discovery requests, no trial brief, no proposed jury instructions, and no sentencing memorandum.
The State responds that not one of these "omissions" was required or necessary. It explains that CrR 4.7(a) requires the prosecution to provide all discovery materials to the defense. It does not require defense counsel to request it. Further, the State notes that Sergi received discovery as he sought additional discovery at the omnibus hearing, which the State provided. Further, Sergi made an oral motion to exclude testimony, the court reserved ruling on the motion, and the State never offered the testimony. The State also responds that defense counsel has no obligation to retain case files or assist appellate counsel on any collateral attack, especially when the claim is ineffective assistance of counsel. The State also disagrees with Taylor's assertion that the State directed Detective Gardner not to speak with his investigator and attaches a declaration from Detective Gardner in which Detective Gardner explained that the choice he made not to talk with the investigator was his alone. He was not directed to do so by the prosecution or any other person.
In In re Pers. Restraint of Davis, 152 Wn.2d 647, 721, 101 P.3d 1 (2004), our Supreme Court noted that an attorney breaches his duty to his client if he fails "`to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" (quoting Strickland, 466 U.S. at 689). The Court further explained that "[d]efense counsel must, `at a minimum, conduct a reasonable investigation enabling [counsel] to make informed decisions about how best to represent [the] client.' This includes investigating all reasonable lines of defense, especially `the defendant's most important defense.'" Davis, 152 Wn.2d at 721 (quoting In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001)).
While the record does not contain extensive documentation of counsel's trial preparation some five years ago, we cannot say that this, by itself, establishes inadequate preparation. We address specific claimed deficiencies elsewhere, but Taylor's general claim of inadequate preparation fails.
B. Suppression of the "Confession"
Relying on the Declaration of Dr. Richard Leo, Taylor argues that Sergi did not counter Detective Gardner's testimony that Taylor incriminated himself during this interrogation. He argues that had Sergi employed such an expert, he could have shown that Taylor's statements (1) resulted from a psychologically coercive police interrogation method; and (2) were not admissions but amounted to nothing more than agreeing to a hypothetical while denying the allegations. He argues that Sergi had no defense against Detective Gardner's testimony other than to question him about what Detective Gardner wrote in his report. He argues that this complete lack of investigation severely prejudiced his defense because not only did Detective Gardner describe Taylor's statements in detail but the State repeated several times that Taylor admitted having the opportunity to commit the offenses. Had the jury heard expert testimony, he argues, it would likely have given little or no weight to Taylor's "confession."
The State counters that Sergi's decision to show that Detective Gardner's interrogation preceded the rape allegations and was thus limited to the single count of child molestation was a legitimate trial tactic. Further, the State points to Dr. Leo's conclusion that Taylor did not admit anything and, at best, made ambiguous statements. It argues that Sergi made this argument during closing argument. Finally, it argues that not retaining an expert was not prejudicial as "[t]rial counsel knew of, questioned on, and argued these same issues." Resp't's Br. at 9.
No court in this State has directly ruled on the admissibility of expert testimony to attack the reliability of a confession. In In re Pers. Restraint of Bradford, 140 Wn. App. 124, 132, 165 P.3d 31 (2007), Division Three noted that such testimony "might not be admissible" with no further discussion. In 82 A.L.R.5th 591, the author noted:
Expert testimony as to the reliability of a defendant's confession is normally admissible provided the testimony meets the general requirements for expert testimony admissibility. For example, in U.S. v. Hall, 974 F. Supp. 1198, 47 Fed.R.Evid. Serv. 844, 82 A.L.R.5th 801 (C.D. Ill. 1997), judgment aff'd on other grounds, 165 F.3d 1095 (7th Cir. 1999), reh'g and suggestion for reh'g en banc denied, (Feb. 16, 1999) and cert. denied, 527 U.S. 1029, 119 S.Ct. 2381, 144 L.Ed.2d 784 (1999), the court held that a social psychologist could testify that false confessions do exist, that they are associated with the use of certain police interrogation techniques, and that certain of those techniques were used in the defendant's interrogation, but that he could not testify as to whether the interrogation methods used in this case caused the defendant to falsely confess.
The Hall court discussed in this annotation severely limited the scope of the expert's testimony:
The Court cautions Defendant, however, that it will hold Dr. Ofshe to his word that he will only testify to the correlation between false confessions and the various factors espoused by him. Thus, he can testify that false confessions do exist, that they are associated with the use of certain police interrogation techniques, and that certain of those techniques were used in Hall's interrogation in this case. Dr. Ofshe cannot explicitly testify about matters of causation, specifically, whether the interrogation methods used in this case caused Hall to falsely confess. Without experimental verification, such testimony would be speculative and prejudicial. Dr. Ofshe will simply provide the framework which the jury can use to arrive at its own conclusions.
U.S. v. Hall. 974 F. Supp. 1198, 1205 (C.D. Ill., 1997). As Hall was decided under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), there is disagreement among the courts about whether such testimony would be admissible under the Frye standard. See State v. Free, 351 N.J.Super. 203, 214, 798 A.2d 83 (2002) (discussing Hall and finding it unpersuasive).
See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Washington courts still adhere to Frye and reject Daubert. State v. Copeland 130 Wn.2d 244, 260, 922 P.2d 1304 (1996).
One author has suggested that such expert testimony may be constitutionally required in light of the many false confession cases that are being discovered through DNA testing. Nadia Soree, Comment, When The Innocent Speak: False Confessions, Constitutional Safeguards, and The Role of Expert Testimony, 32 Am.J.Crim.L. 191-263 (Spring 2005). She relies in part on Dr. Richard Leo's co-authored work: Richard J. Ofshe Richard A. Leo, Coercion: An Interdisciplinary Examination of Coercion, Exploitation, and the Law, 74 Denv.U. L.Rev. 979, 997-1000 (1997).
It is readily apparent from the trial testimony that Taylor's statements to Detective Gardner were an important part of the State's case. The State characterized these statements as admissions and argued that Taylor admitted having the opportunity to commit the allegations. While the State charged the rape allegations after Taylor gave his statement and as a result of KH's later disclosures, Taylor's "admission" that he had an opportunity to be alone with KH is "opportunity" evidence that he committed the later disclosed rapes. Further, Detective Gardner repeatedly noted that Taylor went from "total denial, to maybe it could have, I don't remember, . . . and then vacillating back and forth to where gee, I don't remember, to it could have happened." Report of Proceedings 128. It is also apparent that Sergi limited his defense to cross-examining the detective but not in attacking his interrogation method and with it the reliability of the so-called admissions.
Taylor did not directly admit the charged offenses; he only admitted that it was hypothetically possible that he was the perpetrator. The pivotal evidence in the case was from KH. What the jury made of Taylor's statements is unclear; what is clear is that the jury believed KH. Whether Taylor's counsel should have been aware of testimony like Dr. Leo's is also unclear from this record. Even with this knowledge, as trial counsel he may have concluded that expert testimony would only have highlighted the statements made to the detective and done more harm than good. We cannot say that Taylor's trial counsel was deficient for not obtaining and offering such expert testimony in this case.
C. Failure to Investigate Taylor's Prior Contact With a Mental Health Professional
Taylor next argues that Sergi's representation was deficient because he did not investigate or counter the inference that Taylor had counseling for sexual deviancy issues. In his declaration, Taylor explains that when he was 19 years old he left home without letting his family know that he had gone to Montana. When he returned, he had counseling sessions that had nothing to do with sexual deviancy.
The State responds that Sergi was able to use Taylor's statement to Taylor's advantage by showing that (1) Detective Gardner failed to investigate the statement and thus failed to show that it was related in any way to the current offenses and (2) Taylor was honest and forthcoming with personal information. While acknowledging that Sergi could have done a better job, the State argues that "even a lame cross-examination will seldom, if ever, amount to a Sixth Amendment violation." In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965 P.2d 593 (1998) (citing Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997), cert. denied, 522 U.S. 1129, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998)).
Detective Gardner testified at trial that Taylor told him during the interview that in the past he had seen a psychologist "for doing impulsive things and being rebellious towards my parents and family." RP 127. During cross-examination, Sergi simply confirmed that Detective Gardner did not ask Taylor any questions about why he saw a psychologist. RP 135. Taylor argues that this left a strong possibility that the jury could infer that he was admitting guilt, admitting sexual deviancy problems, and admitting that he had a guilty conscience. He argues that this undue prejudice resulted from Sergi's complete failure to investigate. If Sergi had simply asked him why he went to counseling, spoken with the psychologist, and called him as a witness, the jury would clearly have seen that this issue 5 had nothing to do with the present case. In fact, during closing arguments, the prosecutor emphasized that Taylor told Detective Gardner "[t]here is a possibility [he committed the acts]. I have been to the psychologist in the past for doing impulsive things and being rebellious towards my parents and family." RP 336.
While defense counsel certainly could have further pursued this issue by perhaps calling the psychologist or Taylor as a witness, it appears that the evidence in the record would have changed little. Taylor's testimony apparently would be that behavior he described to Detective Gardner as impulsive and rebellious and for which he received counseling was simply running away from home. Taylor claims this relatively innocuous explanation would have rebutted the inference that the counseling was for sexual abuse. However the prosecutor drew no such inference; the argument was that admitting to impulsive and rebellious acts while being interviewed for possible sexual abuse is suspicious. This argument could have been made with or without Taylor's suggested testimony, and we see no inadequacy of counsel in failing to further pursue this issue.
D. Failure to Investigate and Challenge KH's Statements
Taylor next argues that Sergi completely failed to mount a defense to KH's accusatory statements. He explains that there were glaring problems in the investigation and that Sergi did nothing more than cross-examine Detective Gardner based on his police reports. He argues that Sergi should have investigated the circumstances surrounding the multiple disclosures and, in particular, the last disclosures of penetration and whether these resulted from coaching, parental interference, or false memories. At a minimum, he argues, Sergi should have requested that an expert be appointed to examine these concerns and, potentially, to assist in suppressing the statements or subjecting Detective Gardner to rigorous cross-examination.
The State responds that Sergi's approach to the disclosures was a legitimate trial tactic. He tried to argue that Taylor lacked an opportunity to commit the offenses, that he was forthcoming with Detective Gardner, and that KH's testimony was inconsistent and so lacking in detail to be incredible.
Notably absent from Taylor's petition is any declaration showing what an expert would have testified about the evolving nature of KH's disclosures and the role of the police, prosecutors, and counselors in bringing this about. This issue is thus wholly speculative and lends little support to Taylor's petition other than to show that Sergi did nothing to discredit the disclosures based on their timing and circumstances. As Taylor points out, the disclosure process, by its very nature, is generally a subject for vigorous cross-examination because the disclosing child has spoken with parents, friends, counselors, lawyers, and police throughout the process. While Sergi could have done more in this regard, it is pure speculation to say that Sergi's failings prejudiced Taylor.
E. Failure to Argue For Admission of Documentary Evidence
Taylor next argues that Sergi should have sought admission of gas station credit card receipts and time slips from work to support his defense that he lacked opportunity to commit the charged offenses. This evidence, he argues, would have substantiated the testimony of Kimberly Taylor, Shirley McDougal, and Stanley Taylor about Taylor's travel schedule and time away from McDougal's home. When asked if he was going to offer the receipts and time slips, Sergi simply said that he was not. Taylor argues that the State's hearsay objection would have failed because these are business records and thereby admissible under ER 803(a)(6). He argues that Sergi's failure to know the evidence rules and failure to even attempt to admit this evidence was inexcusable.
The State responds that we already rejected this claim and should not reconsider it. On appeal, Taylor raised this issue pro se and we dismissed it because evidence of Taylor's work schedule was before the jury in that Kimberly, McDougal, and Stanley Taylor testified about it. See In re Pers. Restraint of Vandervlugt, 120 Wn.2d 427, 432, 842 P.2d 950 (1992) (court will not reconsider claim rejected on direct appeal absent showing that it will serve the ends of justice). We think the issue before us is sufficiently different than that raised on appeal and so we consider it.
First, Taylor raised this issue in his pro se brief without the assistance of counsel. Second, he failed to show that the evidence was anything but cumulative. At the same time, we did not consider this evidence in terms of Sergi's overall lack of investigation and defense tactics. This evidence was directly related to the prosecution's suggestion that the defense witnesses had colluded in their testimony, had a financial motive to keep Taylor out of jail, and needed Taylor's income to pay the mortgage and support his new child.
While we agree that we should reexamine this issue in this petition, we do not find Taylor has demonstrated inadequate representation. The work records were cumulative of defense witness testimony and, even though the State questioned the veracity of the other evidence, the fact remains that these records only served to limit, not eliminate times when Taylor had the opportunity to commit the offenses.
III. Effective Assistance of Appellate Counsel
Taylor next argues that he was denied his right to effective appellate counsel as there were meritorious issues that appellate counsel failed to raise and that a reasonable probability existed that the result would have differed had counsel 8 raised the issues. See Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 945 P.2d 196 (1997).
The State responds that because petitioner here fails to raise any meritorious issues, this claim necessarily fails. We agree.
IV. Cumulative Error
Finally, Taylor asserts that an accumulation of errors throughout the proceedings deprived him of a fair trial. Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995).
The cumulative error doctrine applies when there have been several trial errors that, when combined, denied the defendant a fair trial, although none of them alone would justify reversal. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because Taylor has not established that multiple errors occurred at trial, reversal under the cumulative error doctrine is not warranted. "It is well settled that a litigant is entitled to a fair trial but not a perfect one, for there are no perfect trials." In re Pers. Restraint of Elmore, 162 Wn.2d 236, 267, 172 P.3d 335 (2007) (quoting Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)). Taylor had a fair trial and thus his claim fails.
The petition is denied.
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J. and QUINN-BRINTNALL, J., concur.