Opinion
No. 51469-5-I
Filed May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No: 96-1-00335-1. Judgment or order under review. Date filed: 10/30/2002. Judge signing: Hon. George Bowden.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Sean T. Morin (Appearing Pro Se), Doc# 912839, Wa State Penitentiary, 1313 N. 13th Ave, Walla Walla, WA 99362.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA 98273-3867.
Following a jury trial, Sean Morin was convicted of one count of first degree robbery, one count of first degree burglary, and one count of indecent liberties by forcible compulsion. Morin's conviction was affirmed on appeal. Morin then unsuccessfully filed a post-conviction motion in superior court seeking to vacate his indecent liberties conviction based on discovery violations. Rejecting the contentions raised by Morin and his attorney on appeal, we affirm.
FACTS
In 1996, Morin broke into a room occupied by a 95-year-old woman at a retirement center in Anacortes, stole the woman's wallet, and covered her mouth to stop her from screaming. When police arrived on the scene, the victim was in bed with her pajama bottoms pulled down around her knees and Morin was fleeing out of a window in the room. The victim, who was legally blind and bleeding from where Morin had covered the victim's face to keep her quiet, was visibly distraught. The victim accused Morin of touching her genital area. The victim was taken to a hospital for medical care and treatment. Morin was charged with first degree robbery, first degree burglary, and indecent liberties with forcible compulsion.
At the jury trial, the State did not call the victim, but instead relied upon her excited utterances and other statements she made during her medical treatment. Photographs of the victim were also admitted into evidence. Morin was found guilty as charged. Given Morin's criminal history, the trial court sentenced Morin to life in prison without possibility of parole under Washington's Persistent Offender Accountability Act.
Morin challenged his conviction by direct appeal. This court affirmed Morin's conviction and mandatory life sentence. The mandate was issued on January 5, 2001.
State v. Morin,100 Wn. App. 25, 995 P.2d 113, rev. denied, 142 Wn.2d 1010 (2000).
Morin then moved in superior court to vacate the judgment and sentence on the ground that the State had failed to disclose material exculpatory evidence to the defense. Morin argued that the State failed to disclose the contents of certain interviews a former elected prosecutor of Skagit County had had with the victim in violation of Brady v. Maryland. Supporting his motion, Morin submitted affidavits from the former prosecutor, David Needy, and Morin's two trial attorneys. The superior court transferred the matter to this court for consideration as a personal restraint petition.
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Unable to resolve the factual questions presented in the petition, we transferred the matter to the Skagit County Superior Court for a determination on the merits pursuant to RAP 16.11 and .12. In doing so, we noted that 'final determination of the issues presented will depend on a number of facts: what the victim told the prosecutor; the circumstances, including her medical condition, surrounding her statement or statements; what was disclosed to the defense; and how material the statements would have been to the defense.'
At the evidentiary hearing, Mr. Needy testified that he interviewed the victim on two separate occasions. The victim gave a detailed account of what happened in the course of the first interview. During the second interview, which occurred after the victim's health had deteriorated and she had been moved to a nursing home for additional care, the victim made several statements that were inconsistent with many of her prior statements. According to Mr. Needy, the victim generally denied that anything had happened to her. The victim stated that she had not been touched sexually and that no crime had occurred. Mr. Needy did not disclose these remarks to the defense. The prosecutor who tried Morin's case, Ms. Thomas, and Morin's two trial attorneys, Mr. Gaer and Mr. Broadbent, also testified. At the conclusion of all the testimony, the superior court found that the exculpatory statements made by the victim during her second interview with Mr. Needy should have been disclosed to the defense. Based on this and other findings of fact, the superior court determined that Morin had established a Brady violation. The superior court vacated Morin's indecent liberties conviction and ordered a new trial.
Morin and the State both moved for reconsideration. In addition, the parties filed several new motions, including one filed by Morin to vacate his first degree robbery conviction. Another evidentiary hearing was held, and Mr. Needy, Prosecutor Thomas, and Morin's two trial attorneys were again called to testify. The State also was allowed to supplement the record with the victim's medical records. Following the evidentiary hearing, the superior court granted the State's motion for reconsideration based on the medical records, vacated its prior ruling, and reinstated Morin's conviction for indecent liberties by forcible compulsion. The superior court also denied Morin's motion to vacate his first degree robbery conviction based on alleged discovery violations. The court entered findings of fact and conclusions of law in support of its decision. This appeal followed.
DECISION
Morin contends that his due process rights were violated when the former prosecutor, Mr. Needy, failed to take notes of his second interview with the victim. Thus, Morin argues his indecent liberties conviction should be reversed and dismissed. We disagree.
Morin's argument necessarily assumes that Mr. Needy had a duty to take notes of his interviews with the victim. Morin points out that Mr. Needy could no longer recall with any degree of certainty everything the victim told him during the interviews. Criminal discovery, however, is governed by CrR 4.7. The rule only requires the disclosure of written or recorded statements in existence. Morin has cited no authority that requires the State to prepare or cause a writing to be prepared for inspection. In any event, 'the failure to preserve evidence does not violate the defendant's due process rights if the defendant can obtain comparable evidence by other reasonably available means.' Here, there was evidence comparable to the statements made by the victim at the second interview. The superior court found that the statements made by the victim to Mr. Needy were duplicative of what was already contained in the victim's medical records and that those records had been given to the defense well before trial. And while Morin assigns error to these findings of fact, they are supported by substantial evidence in the record and, therefore, are treated as verities on appeal. Under the circumstances, Mr. Needy's failure to take notes during his second interview of the victim did not involve the unconstitutional destruction of material exculpatory evidence.
See State v. Hutchinson, 111 Wn.2d 872, 878-79, 766 P.2d 447 (1989).
State v. Burden, 104 Wn. App. 507, 513, 17 P.3d 1211 (2001).
There is a reference on one report, numbered page 70, that suggests the victim denied having any trauma or sexual contact.
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Morin next contends the State failed to disclose exculpatory evidence as required under Brady. Thus, Morin argues his indecent liberties conviction should be vacated. We disagree, because there is no reasonable possibility that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
In re Personal Restraint of Benn, 134 Wn. 2d 868, 916, 952 P.2d 116 (1998).
As previously noted, the superior court in this case found that the medical records contained information that was essentially no different from the kinds of statements the victim later provided to Mr. Needy during the second interview. Because the substance of the victim's denials of sexual contact or injury were available to the defense well before trial, Morin has not shown that the outcome of his trial would have been different had the victim's remarks to Mr. Needy been disclosed to the defense. The trial court properly reinstated Morin's conviction for indecent liberties by forcible compulsion.
Morin also raises several claims in a 'Pro Se Brief of Appellant' and 'Statement of Additional Grounds/Argument for Review.' Morin, pro se, argues that his conviction for indecent liberties by forcible compulsion should be vacated based on a Brady violation and the destruction of exculpatory evidence. These claims appear to be virtually the same as issues raised by Morin's appointed counsel on appeal. For similar reasons, we again reject the contentions.
While former RAP 10.1(d), which provided for a Pro Se Supplemental, has been replaced by RAP 10.10, which provides for a Statement of Additional Grounds for Review, a commissioner of this court, in a notation ruling dated January 12, 2005, accepted both for review purposes.
Morin argues that he was denied a fair trial due to the ineffectiveness of his counsel and prosecutorial misconduct. These claims, being raised years after Morin's direct appeal was mandated, are untimely.
RCW 10.73.090; Benn, 134 Wn.2d at 938-39.
Morin also argues that the attorney who represented him during the evidentiary hearings was ineffective by failing to conduct a more thorough investigation, and by withdrawing after promising to represent him throughout the proceedings. In Washington, we employ the Strickland test for determining the effectiveness of counsel. To satisfy this two-prong test, a defendant bears the burden of proving both that trial counsel's performance was deficient and that the deficiency prejudiced the defense. In applying the test, courts indulge in a strong presumption that counsel's performance was effective. The record here shows that counsel vigorously pursued Morin's interests during the time he represented Morin. Morin has not established any deficiency in his performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Strickland, 466 U.S. at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995).
Morin argues that the superior court erred in denying his motion to vacate his first degree robbery conviction. The superior court denied the motion even though four pages of medical records were never disclosed to the defense and one of those pages contained a statement from the victim that a reddened area on her face had been there for a long time. The superior court found that the evidence presented at trial 'inescapably' showed that the victim had suffered a fresh injury and that the victim's statement in the medical report 'appears, almost unequivocally, to refer to what . . . appears to be a naturally occurring reddened area of her face consistent with aging.' We cannot reweigh this evidence. 'A reviewing court defers to the trier of fact on issues of the persuasiveness of the evidence, witness credibility, and conflicting testimony.' In denying the motion to vacate, the superior court found:
It appears the State only copied and distributed one side of a two sided medical report.
State v. Nieto, 119 Wn. App. 157, 165, 79 P.3d 473 (2003).
Given the clear and unequivocal photographic evidence of an injury sustained by the victim and consistent with all of the testimony that that injury was sustained that evening, the medical record referencing the reddened area on the victim's face was not inconsistent with any of the evidence presented and the defense was not prejudiced in not having obtained that record.
The superior court properly denied Morin's motion to vacate his first degree robbery conviction.
Affirmed.
BAKER, ELLINGTON and APPELWICK, JJ., Concur.