Opinion
No. 30587-9-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-01705-5. Judgment or order under review. Date filed: 06/27/2003. Judge signing: Hon. Rosanne Nowak Buckner.
Counsel for Appellant(s), Sheri Lynn Arnold Attorney at Law, PO Box 7718, Tacoma, WA 98406-0718.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Lance Burch, whose first trial ended in a mistrial, appeals his conviction of two counts of first degree child molestation after a second trial. He argues that the trial court erred by not holding a child competency rehearing before allowing the victims to testify in the second trial. We affirm.
FACTS
Lance and Pam Burch have two minor female grandchildren, V.C. and G.C., who live with their father and stepmother, Todd Cottingham and Nicole Jennings. The girls were eight and six years old, respectively, between April and November 2001. The children spent two to three weekends per month at their grandparents' home.
In 1999, during a hiking trip, Burch slipped and fell onto some rocks, shattering bones in his right leg and right shoulder. As a result, he had multiple surgeries, including a knee replacement surgery. During the events pertinent to this case, Burch was recovering from his accident.
In November 2001, V.C. complained to Jennings of a rash in her pubic hair area. Jennings applied hydrocortisone cream, but over the next several days, the rash worsened, spreading to V.C.'s neck, chest, and hands. Jennings and Cottingham took V.C. to the Mary Bridge Hospital.
On the way to the hospital, Jennings asked V.C. whether anyone had touched her in her genital area. V.C. answered in the affirmative but refused to say who had touched her. Trying to elicit a response from V.C., Jennings named people V.C. knew. V.C. said 'yes' only when she heard Burch's name. 1 Report of Proceedings (RP) (2/26,27/28/02) at 160. When Jennings asked V.C. how Burch had touched her, V.C. stated that when she and Burch were alone in his house, Burch put his finger in her genital area.
The doctors at the hospital later determined that V.C.'s rash resulted from a streptococcal infection unrelated to any sexual contact.
Upon arriving at the hospital, Jennings and Cottingham told the hospital personnel about V.C.'s statements, and Ann Hallstrom, a Mary Bridge Hospital social worker, interviewed V.C., who repeated her earlier statements. Hallstrom reported the interview to the emergency department physician, the Eatonville police, and Child Protective Services (CPS).
V.C. told Hallstrom: '[Burch] puts me on his lap and takes his fingers and then spreads me down there and puts his fingers in and out. This happens if my grandma is sick or not around.' RP (2/26,27,28/02) at 75. When asked whether Burch ever put anything else inside her, V.C. answered negatively.
In December 2001, G.C. told Jennings and Cottingham that Burch had touched her genital area on multiple occasions. In January 2002, both children underwent physical examinations. A pediatric nurse practitioner at Harborview Sexual Assault Center interviewed the children briefly before examining them. V.C. repeated her earlier statements, but G.C. reported no abuse. Later physical examinations revealed no injuries, infection, or any signs of abuse.
In mid-April 2002, a Mary Bridge Hospital forensic interviewer talked with G.C., who stated that Burch had touched her genital area. In November 2002, another forensic child interviewer talked with V.C.V.C. stated that, on multiple occasions, Burch touched her 'private parts' when she was visiting his home and that the touching occurred when she and Burch were left alone in the home. 1 RP (5/13/14/03) at 39.
The State charged Burch with two counts of first degree child molestation. Before a jury trial on the charges, the court held a hearing under RCW 9A.44.120 to determine the competency of the two child witnesses and the reliability of hearsay statements the State planned to offer at trial. The trial court found both victims competent to testify at trial and their hearsay disclosures credible.
On March 14, 2003, the trial court declared a mistrial due to jury deadlock. A different superior court judge presided over the second trial. That trial court did not hold a second child competency rehearing before trial. But the children testified and the court admitted their hearsay disclosures to the interviewers into evidence.
Burch did not request a second competency hearing. No evidence in the record indicates that the second court reviewed or referred to the first child competency or hearsay admissibility hearing.
Burch appeals from his conviction on the two charges.
ANALYSIS Competency and Admissibility
Burch first contends that the trial court erred in not holding a second hearing to determine the children's competency to testify and the reliability of their hearsay statements before the second trial. He asserts that the trial court failed to make specific competency, reliability, and admissibility findings.
Burch did not raise this issue at trial. Thus, his argument is waived to the extent that it is based on evidentiary law. RAP 2.5 (failure to object at trial precludes appellate review of alleged error, absent a manifest error affecting a constitutional right).
Moreover, the court at the first trial held a competency hearing and found the children to be competent, thus minimizing the likelihood that they were incompetent to testify at the retrial.
And to the extent his argument raises a manifest constitutional error, it fails. Here, during the second trial, the children testified and subjected themselves to cross-examination about the events and the statements they made to the interviewers. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177 (2004) (in all criminal prosecutions, the defendant has the right to be confronted with the witnesses against him) (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)); State v. Clark, 139 Wn.2d 152, 159, 985 P.2d 377 (1999) (relying on United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988)). Thus, the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness's demeanor satisfied the constitutional requirements here. Owens, 484 U.S. at 560.
Burch does not identify his basis for a constitutional claim. Nevertheless, we assume it is based on the confrontation clause. U.S. Const. amend. VI; Wash. Const., art. I, sec. 22.
Ineffective Assistance of Counsel
Burch contends that he received ineffective assistance of trial counsel because his attorney failed to call Burch's treating physicians as witnesses.
Burch also argues that he received ineffective assistance of trial counsel because his attorney did not request a child competency rehearing and child hearsay rehearing. But because we hold that the trial court did not err by not holding a child competency rehearing or a child hearsay rehearing, we do not address this issue.
A criminal defendant receives constitutionally inadequate representation only if: (1) the defense attorney's deficient performance fell below an objective standard of reasonableness, and (2) such deficient performance prejudiced the defendant. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). The test for whether a criminal defendant was denied effective assistance of counsel is if, after considering the entire record, it can be said that the accused was afforded effective representation and a fair and impartial trial. State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). If defense counsel's conduct could be legitimately characterized as trial strategy, then it cannot serve as a basis for a claim of ineffective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992).
Failure to investigate or interview witnesses, or to properly inform the court of the substance of their testimony, is a recognized basis on which a claim of ineffective assistance of counsel may rest. State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991). But the decision to call a witness is generally a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981) (citing State v. Wilson, 29 Wn. App. 895, 626 P.2d 998 (1981)).
The presumption of counsel's competence can be overcome by showing, among other things, that counsel failed to conduct appropriate investigations, either factual or legal, to determine what matters of defense were available, or failed to allow himself enough time for reflection and preparation for trial. Byrd, 30 Wn. App. at 799 (citing State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302 (1978)).
Here, Burch does not argue that his trial counsel failed to investigate or to interview the other doctors. And Burch does not establish what his doctors might have said. The record is devoid of any affidavits of witnesses as to what they could have testified to. Therefore, Burch's contention that the testimony of his doctors would have helped his case is pure speculation. Thus, Burch has not met his burden in showing that his counsel was ineffective. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995) (presumption of effective representation can be overcome only by showing of deficient representation based on the record established in the proceedings below).
In his Statement for Additional Grounds under RAP 10.10, Burch raises other arguments. He argues that: (1) the prosecutor threatened Burch's family about Burch's refusal to entertain plea deals, (2) the defense counsel and prosecutor arranged for Burch's conviction, (3) the trial judge demonstrated prejudice against him, and (4) V.C.'s and G.C.'s parents taught them to lie. He fails to present any evidence to support these contentions and we decline to review them.
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.
QUINN-BRINTNALL, C.J., and HUNT, J., Concur.