Opinion
No. 37725-0-II.
October 13, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-04745-1, Katherine M. Stolz, J., entered April 16, 2008.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Ronald Eric Stovall appeals his conviction for failure to register as a sex offender. We affirm.
Facts
The State charged Stovall, with one count of failure to register as a sex offender, stating that "on or about the 24th day of April, 2007," Stovall failed to comply with the registration requirements of RCW 9A.44.130. CP 1. On the day trial was scheduled to begin, defense counsel moved to "set this matter over" because Stovall had just informed her that he wanted to call a doctor as a witness in his defense. RP (Apr. 10, 2008) at 5. The court noted that the case had been pending for eight months. At the State's request, the court asked defense counsel for a proffer of the doctor's testimony. Defense counsel responded that she understood the doctor would testify that Stovall was "unable to walk at the time" and consequently was "unable to be mobile enough to make it to register." RP (Apr. 10, 2008) at 6. The court ruled that it would proceed with the trial but would sign a subpoena for the doctor's records and for the witness to testify.
Five days later, following several preliminary matters not relevant here, the State finally presented its evidence to the jury on April 15, 2008. Gay Lynn Wilke testified that she was employed with the Pierce County Sheriff's Department as an office assistant for the Sex and Kidnap Offender Registration Unit. Her duties involved inputting the registration data and maintaining the registration files for all registered sex offenders. She explained that sex offenders who are released from prison and move to Pierce County are required to register within 24 hours at the sheriff's department located in the County-City Building. When they register, they are advised that if they become transient or homeless, they must notify the sheriff's department of that occurrence within two days and report back every week. The sheriff's department keeps an electronic database and a paper file record of these weekly reportings.
According to Wilke, Stovall first registered as a transient with the sheriff's department on March 8, 2007, and subsequently reported on March 15 and March 23. Stovall was supposed to report again on March 30 but did not return. Nor did he contact the sheriff's department by either phone or letter.
Andrea Shaw testified that she was employed with the Pierce County Sheriff's Department as an office assistant for the Court Security Unit and her primary duty was to register sex offenders. She testified that when a sex offender registers as a transient, he is required to report every seven days and is given a business card that informs him of the date he must return. On March 23, 2007, Shaw assisted Stovall who was registered as a transient and she gave him a business card that indicated the date he was to return. She could not recall whether Stovall reported again. Shaw testified that if a registrant is unable to report due to a medical emergency, he could contact the sheriff's department and he "wouldn't be held for failing to register if [he] were . . . in a facility such as a hospital." RP (Apr. 15, 2008) at 64.
Stovall also testified. He said that in March 2007, he was homeless and living in his car in Lakewood. He said that, at that time, he was suffering from a strangulated hernia that limited his mobility and caused debilitating pain. Although Stovall realized that he had to report back on March 30, 2007, he said that his medical condition kept him from doing so, and that at the time he was just trying to survive. Stovall testified that he was arrested for failing to register on October 17, 2007. He said that some two months later, on December 20, 2007, he was transported to Tacoma General Hospital, where he had surgery to address his medical condition.
The defense called no other witnesses, informing the court that "[w]e were not able to reach the physician." RP (Apr. 15, 2008) at 78-79. But the record reflects that the doctor was served with a subpoena. Following testimony, the court informed the jury that by stipulation between the parties, "it is true beyond a reasonable doubt that as of April 24, 2007, the defendant had been convicted of a felony sex offense and was aware he had a duty to register as a sex offender." RP (Apr. 15, 2008) at 79. The jury found Stovall guilty as charged.
Discussion Ineffective Assistance of Counsel
Stovall contends that his trial counsel was ineffective for failing to investigate and present expert testimony that would assist in his defense. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. In re Pers. Restraint of Hutchinson, 147 Wn.2d 197, 206, 53 P.3d 17 (2002); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. In re Hutchinson, 147 Wn.2d at 208. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (if either part of the test is not satisfied, the inquiry need go no further). In weighing the two prongs of deficient performance and prejudice, we begin with a strong presumption that counsel's representation was effective and we must base our determination on the record below. In re Hutchinson, 147 Wn.2d at 206. McFarland, 127 Wn.2d at 335. The defendant alleging ineffective assistance of counsel must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. In re Hutchinson, 147 Wn.2d at 206; McFarland, 127 Wn.2d at 336. If the defendant's claim rests on evidence or facts not in the existing trial record, filing a personal restraint petition is his appropriate course of action. In re Hutchinson, 147 Wn.2d at 206-207; McFarland, 127 Wn.2d at 335.
Here, Stovall has failed to meet the prejudice prong. In re Hutchinson controls this issue. In that case, the defendant submitted nothing more than the pretrial summaries of the opinions of experts he anticipated calling at trial. In re Hutchinson, 147 Wn.2d at 208. The record included no signed affidavits or reports from those experts, thus the favorableness and admissibility of the witnesses' testimony was uncertain. In re Hutchinson, 147 Wn.2d at 208. Our Supreme Court concluded that absent the witnesses' affidavits regarding the substance of the testimony that they would have offered at trial, the defendant "has not met his burden of showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In re Hutchinson, 147 Wn.2d at 208 (internal quotation marks, emphasis and citation omitted). The same is true here. Stovall contends there is a reasonable probability that the doctor would have testified that Stovall could not function because he was incapacitated and that the expert's testimony would have supported Stovall's defense. But without an affidavit by which this court may assess that testimony, Stovall's contentions remain mere speculation. Accordingly, he has failed to meet the prejudice prong, and his assertion of ineffective assistance fails. In re Hutchinson, 147 Wn.2d at 208.
Stovall cites In re Pers. Restraint of Davis, 152 Wn.2d 647, 722, 101 P.3d 1 (2004); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002); and Lord v. Wood, 184 F.3d 1083, (9th Cir. 1999), cert. denied, 528 U.S. 1198 (2000); for the proposition that not conducting a reasonable investigation is especially egregious when defense counsel fails to consider potentially exculpatory evidence. Those cases indeed so hold, but they do not require a different result here. In each case, the reviewing court assessed the prejudice to the defendant based on affidavits or statements of what testimony the witnesses would have given at trial. See In re Davis, 152 Wn.2d at 724, 725 n. 247, and 726; Rios, 299 F.3d at 812, 813 n. 23; Lord, 184 F.3d at 1095. As noted, that requirement for assessing prejudice is absent, and Stovall's ineffective assistance claim fails.
Statement of Additional Grounds (SAG)
In a SAG, Stovall contends that the prosecutor breached an agreement not to bring up Stovall's criminal history during trial when the State mentioned that Stovall had been convicted of a sex offense. But, as noted, Stovall stipulated that he had been convicted of a felony sex offense and that stipulation was read to the jury by agreement of the parties. Stovall has not shown how he was prejudiced by the prosecutor's mention of a fact that Stovall agreed to place before the jury.
In his SAG, Stovall also contends that he did not receive a fair trial due to courtroom errors, noting that a juror entered the courtroom when the juror was not supposed to. The record indicates that during trial one juror wandered back into the courtroom before the jury was called from the jury room. The juror was promptly sent back to the jury room. On the record, the court asked if the defense had any concerns. Defense counsel said that he did not because the juror had not seen the defendant cuffed, nor were any unadmitted exhibits within plain view. Stovall has failed to show any prejudice from the incident. State v. Miles, 73 Wn.2d 67, 70, 436 P.2d 198 (1968) (defendant is entitled to a fair trial, not a perfect trial).
Finally, Stovall's SAG raises the same ineffective assistance claim addressed by his appointed appellate counsel. We addressed that issue above and need not discuss it further. RAP 10.10(a).
Affirmed.
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.
HUNT, J. and QUINN-BRINTNALL, J., Concur.