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State v. Berry

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1037 (Wash. Ct. App. 2007)

Opinion

No. 57711-5-I.

October 1, 2007.

Appeal from a judgment of the Superior Court for King County, No. 05-1-09953-1, Laura C. Inveen, J., entered February 6, 2006.


Affirmed by unpublished per curiam opinion.


Randall Berry believed his 12 year old daughter had been sexual assaulted by neighborhood boys. According to Berry, he asked his daughter to reenact the incident in order to find out the details, including showing him how she had touched the boys and gotten on top of them. The girl told her mother about the sexual contact and Berry was arrested. He was subsequently charged and convicted by a jury of second degree child molestation. He appeals claiming the admission of improper opinion evidence and ineffective assistance of counsel. We affirm.

FACTS

Randall Berry's daughter, R.J., was born in August 1993. Berry lived out of state and would see R.J. every year or two. In August 2005, an incident occurred in an alley near a vacant house. Two neighborhood boys took R.J.'s bicycle and would not give it back. One of the boys would not return the bicycle until she touched the other boy's penis "for a long time." The boy grabbed her hand and made her touch his "private area." A neighbor saw the incident and told R.J. to go home. Later, R.J. saw the boys at the community center and they told others that she had engaged in sexual activities with them. R.J. denied these claims and argued with the boys and some girls who had joined the group. R.J.'s cousin tried to protect her because he was afraid the girls were going to beat up R.J. Instead, the boys beat up her cousin, so R.J. tried to help by hitting the boys. She received some scratches as a result of the altercation. R.J.'s mother found out about the fight and the incident in the alleyway and put R.J. on "restriction."

Soon after, R.J. discovered that Berry was in town. Berry went to R.J.'s house to visit her, and she wanted to spend time with him. They went to the house were Berry was staying and waited for a ride to his brother's house. At the house, R.J. and Berry talked and R.J. read magazines. R.J. sat on a small, two-seater couch while Berry was lying down on a three-seat couch. Berry took a nap on the couch. He testified that because he was tossing and turning due to the heat in the house, his basketball shorts rode up and exposed part of his penis. R.J. then made a comment to the effect that she could see his penis. According to Berry, when he realized he was exposed, he got up and walked around and discovered that R.J. had a blood clot in her eye.

Berry testified that he then realized the assault had been serious and understood that R.J. had not told him everything that happened with the boys and the fight. He then asked her to demonstrate what the boys had made her do. "I said show me what happened. You don't even have to look my way. I put my hands on my penis. I said, just take me and show me what happened. I said, did you do anything, did they make her jack them off. And she put her hands on me for like two seconds." R.J. also told Berry that the boys made her get on top of them. Berry again asked her to demonstrate. "I said, show me exactly what you did . . . I want to know specifically in detail. Because once I go to the authority for those boys, I want to actually know what happened." R.J. got on top of him and then immediately got up. She also told him that one of the boys got on top of her and Berry reenacted the scene by getting on top of her. R.J. began crying and told Berry she was crying because she was afraid he would tell her mother what she had done with the boys.

During his testimony, Berry admitted that his penis had been erect because he had smoked marijuana. He also told the jury that at the time he did not know he had done anything wrong. Berry claims he "was really mad" and he "wasn't in my right state of mind" after seeing her injury. On the stand, he acknowledged that he had made a mistake and regretted his bad parenting decision. However, he emphasized that his actions only reflected concern for his daughter and a desire to get information to take to the authorities.

R.J.'s version of the events differed significantly. She testified she talked with her father about the incident with the boys early in the visit. Then, about thirty minutes later, while she was sitting on the couch reading magazines she saw her father's penis. She stated that her father was awake and was "playing with himself." She told the jury that he mumbled her name and other words she could not understand. She tried to finish her magazine quickly so her father would have to get up to get her a new one. When she finished the magazine, he did find another for her to read and then began touching himself again. Eventually, Berry came and sat next to R.J. on the couch. He started massaging her back. She said Berry also rubbed her chest under her shirt, over her bra and told her that only he, doctors and her mom could touch her there. She testified that he put her legs on top of his shorts and moved her legs back and forth on his penis. He then made her lie next to him and put her hand on different parts of his body until he reached his hard penis. According to R.J., Berry made her "jack him off" to show her what the boys had done to her in the alley. Although Berry did not ejaculate, he showed her where semen would come out of his penis. Then he put R.J. on top of him and moved her back and forth. Finally, he put her on the floor and got on top of her, at which point he saw that she was crying. In response to questioning, R.J. said that the boys had not gotten on top of her or made her get on top of them in the alley.

Berry was arrested and charged with second degree child molestation. While in custody, he was interviewed on video by Detective Hotnit. During the interview, Berry admitted he had reenacted the alley incident, but claimed his actions were only for the purpose of discovering what had happened to his daughter. During the interview, Detective Hotnit repeatedly accused Berry of lying and told Berry that he believed R.J. did not lie. A DVD of this interview was admitted as evidence by stipulation of defense counsel. The jury watched the recording of the interview during Detective Hotnit's testimony. When cross-examining Hotnit, defense counsel elicited further statements that the detective believed that Berry had lied to him during the interview. After hearing testimony from Hotnit, Berry, R.J., and others, the jury convicted Berry of second degree child molestation.

DISCUSSION

I. Opinion Testimony

Berry contends that the interview and cross-examination of Detective Hotnit constitute improper opinion evidence in violation of his right to trial by jury. "No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference." State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). This prohibition exists "[b]ecause issues of credibility are reserved strictly for the trier of fact." City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993). Admission of improper opinion testimony may be constitutional error requiring reversal. State v. Saunders, 120 Wn. App. 800, 813, 86 P.3d 232 (2004).

However, we need not determine whether the interview and Detective Hotnit's cross-examination amount to improper opinion testimony. Even if error occurred, the doctrine of invited error precludes review. Invited error bars review because a party cannot set up an error at trial and then complain on appeal. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984)). This prohibition applies even to constitutional issues. State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979). "The Court held that the invited error doctrine was a `strict rule' to be applied in every situation where the defendant's actions at least in part cause the error." State v. Summers, 107 Wn. App. 373, 381-82, 28 P.3d 780 (2001) (citing State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999)).

In this case, defense counsel's actions contributed to any potential improper opinion testimony. During pretrial proceedings, defense counsel stipulated to the admissibility of the DVD without redaction. The defense attorney requested an opportunity to consult with Berry because "we may be stipulating to the admissibility of those statements and thereby avoiding the necessity of the 3.5 hearing." Counsel consulted with Berry and then agreed on the record that Berry had been in custody when the statements were made, had received Miranda warnings, and had made voluntary statements. The interview was admitted in its entirety as a result of the defense stipulation as the court concluded that "based upon that agreement or stipulation, I will find that the statements are admissible in evidence." Stipulation to the admissibility of evidence is invited error which cannot be appealed. See, State v. Korum, 157 Wn.2d 614, 649, 141 P.3d 13 (2006) (stipulation to the admissibility of all terms and conditions of a plea agreement was invited error).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

In addition to agreeing to the admission of the DVD, defense counsel elicited the testimony during which Detective Hotnit stated unequivocally that Berry had lied to him during the interview. After the jury saw the video of the interview, defense counsel asked Hotnit, "[n]ow, you also, in this interview with Mr. Berry, said repeatedly, you're not telling me the whole truth?" The detective responded, "[b]ecause he wasn't." Soon after, counsel followed up with "[t]hese are judgments that you're making as you're interviewing Mr. Berry and you're expressing that to him?" Detective Hotnit said, "No, sir, he's lying to me." Hotnit's opinion as to Berry's veracity was given in response to direct questioning by defense counsel. The prosecutor never asked Detective Hotnit for an opinion of Berry's honesty during the interview and Hotnit did not volunteer this information. The State also did not inquire into the detective's opinion about R.J.'s truthfulness during her interviews. If improper opinion testimony was given, it was invited by defense counsel's question on cross-examination and not subject to review. See, State v. Vandiver, 21 Wn. App. 269, 273, 584 P.2d 978 (1978) (statements elicited on cross-examination were invited error precluding appeal).

II. Ineffective Assistance of Counsel

On appeal, Berry claims that his counsel was ineffective for failing to request redaction of the interview to remove Hotnit's prejudicial opinions and soliciting Hotnit's statements about Berry's veracity. To prevail on his claim of ineffective assistance of counsel, Berry must meet both prongs of a two-prong test — deficiency and prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

The appellate court presumes proper representation. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). Berry has the "heavy burden of showing that his attorney? `made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland, 466 U.S. at 687.) He may meet this burden by establishing that, given all the facts and circumstances, his attorney's conduct failed to meet an objective standard of reasonableness. State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996). However, "[d]eficient performance is not shown by matters that go to trial strategy or tactics." Hendrickson, 129 Wn.2d at 77-78. In addition, Berry must show that this deficient performance resulted in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." Id. at 78.

Defense counsel did not object to admission of the interview, but stipulated to admission in its entirety. Berry argues that the failure to request redaction of the DVD was deficient performance. Decisions concerning when and whether to object are examples of trial tactics that will only constitute ineffective assistance in egregious circumstances. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). To show ineffective assistance based on a failure to object, "the defendant must show (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct, (2) that an objection to the evidence would likely have been sustained, and (3) that the result of the trial would have been different had the evidence not been admitted." State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998) (internal citations omitted). Berry has not demonstrated any of these requirements. Instead he merely states "[i]n a case that boiled down to a credibility contest, there can be no tactical reason for not removing from the jury's consideration the experienced detective's opinion that Berry was guilty. In light of the case law prohibiting such opinions, a timely motion to redact would have been granted."

However, Berry's attorney may have had legitimate trial strategy for the admission of the entire interview, including the accusations of dishonesty. The majority of Berry's actions were not in dispute at trial. He admitted that he had his daughter reenact her sexual encounter in order to find out what she had done with the boys. Berry's defense was to negate the required element that he had engaged in the contact for sexual gratification. He claimed the reenactment was solely to learn what had happened between his daughter and the boys. During cross-examination, defense counsel highlighted Berry's consistency in this claim despite accusations of dishonesty during the interview. "And it's also fair to say that when you confronted him with your opinion of his dishonesty, he never, after repeated questioning, acknowledged that he was sexually aroused during the time period that he was with his daughter discussing these subjects?" Hotnit agreed that Berry had never admitted sexual arousal. Counsel also asked whether Berry "indicated to [Hotnit] repeatedly that his motivation for whatever happened that afternoon was because of what he learned had happened to her on the play ground several days earlier?" Hotnit agreed to this as well. The defense successfully used the interview to demonstrate that Berry consistently reiterated the reason for the reenactment. Stipulation of the DVD in its entirety, without objection or request for redaction, combined with cross-examination testimony from Hotnit, served the defense strategy of denying sexual gratification in order to negate this element of child molestation in the second degree. This cannot support a claim of ineffective assistance of counsel. In addition, Berry cannot show prejudice resulting from the interview and cross-examination testimony. Hotnit testified that accusing a suspect of dishonesty is a police tactic used during questioning. The jury had the opportunity to hear Berry's claims of confusion about Hotnit's line of questioning. Defense counsel elicited testimony from Berry to resolve the seemingly inconsistent reports of his actions that Hotnit used to form the opinion that Berry had lied during interview. Berry stated "I was being honest with him. He was trying to make me say something that wasn't even there, pulling something out of me that I couldn't give him."

Berry admitted to his actions, relying only on his testimony that those actions were not sexually motivated. The defense used the interview and cross-examination to bolster Berry's credibility by showing his consistency. The prosecution never referred to the opinions expressed during the video or solicited additional opinions from Hotnit — there was no attempt to highlight that Berry had lied to Hotnit during the interview. Instead, the defense drew attention to the opinion testimony in support of Berry's steadfast assertions that the reenactment was only to determine what had happened between his daughter and the boys. The jury had two versions of the story and chose not to believe Berry. There is no basis to conclude that this outcome would have differed without the opinion testimony in the DVD or Detective Hotnit's cross-examination. As a result, Berry cannot show the prejudice required for a successful claim of ineffective assistance of counsel.

We affirm.


Summaries of

State v. Berry

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1037 (Wash. Ct. App. 2007)
Case details for

State v. Berry

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. RANDALL E. BERRY, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Oct 1, 2007

Citations

140 Wn. App. 1037 (Wash. Ct. App. 2007)
140 Wash. App. 1037