Opinion
No. 36836-6-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-01832-0, Robert A. Lewis, J., entered October 5, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and QuinnBrintnall, JJ.
A jury convicted Keith Latimer of two counts of first degree child molestation. Latimer argues on appeal that he received ineffective assistance of counsel. He argues that his attorney should have objected to the admission of a photograph of the victim when she was eight years old, and that he should have objected and moved to strike a witness's comment that implied an opinion of Latimer's guilt. Latimer also raises several issues in his statement of additional grounds (SAG). Because defense counsel's decisions are attributable to trial strategy and Latimer's SAG claims have no merit, we affirm the convictions.
FACTS
Lisa Metcalf married Latimer in September 2000. Metcalf brought two sons and one daughter, JL, into the marriage. While married, Metcalf, Latimer, one of her sons, and JL all lived together in Battleground, Washington. They divorced four years later in April 2004, but continued to have a relationship.
At some point in March 2005, JL disclosed to Metcalf that Latimer had touched her inappropriately during the period that they had been married. JL told her mother that on two occasions, when she was eight or nine years old, Latimer had rubbed her vagina and breasts after she had crawled into bed with them.
Prior to telling Metcalf, JL told her stepsister and two of her friends about the inappropriate touching.
Metcalf confronted Latimer with the allegations. Latimer denied that he ever intentionally touched JL. Latimer stated that if the touching had occurred, he must have been asleep. Metcalf did not report the allegations to police. Instead, shortly thereafter, Metcalf took JL to see a psychologist, Dr. Niems, for evaluation and treatment for social difficulties. Metcalf informed Dr. Niems of the possible abuse.
When questioned by Dr. Niems, JL initially denied the incidents. JL continued to provide conflicting information to Dr. Niems "[vacillating] back and forth." Report of Proceedings (RP) (Aug. 21, 2007) at 143. At one point JL "began to detail [what happened with Latimer] and then I stopped her . . . because I anticipated that a CPS investigation would occur." RP (Aug. 21, 2007) at 148. Dr. Niems reported the incident to child protective services.
The State charged Latimer with two counts of first degree child molestation. The first trial ended in a hung jury. The second trial ended in a jury conviction for both counts of molestation. The trial court sentenced Latimer to serve a minimum of 72 months in prison. This appeal follows.
Maximum sentence is life in prison.
ANALYSIS
I. Effective Assistance of Counsel
We review an ineffective assistance of counsel claim de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). Effective assistance of counsel is guaranteed by both U.S. Const. amend. VI and Wash. Const. art. I, § 22 (amend. x). State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
To establish an ineffective assistance of counsel claim, a defendant must meet a two-part test: (1) he must show that counsel's performance was deficient by an objective standard of reasonableness, and (2) he must show that the deficient performance prejudiced the defense such that, but for the deficient conduct, the outcome of the proceeding would have differed. Strickland, 466 U.S. at 687; State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). A defendant need not show that counsel's deficient conduct more likely than not altered the outcome of the case, but only that there is a reasonable probability that the outcome would have differed sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693-94. A defendant must make a showing as to both prongs and must also overcome a strong presumption that defense counsel's conduct was effective. Strickland, 466 U.S. at 687; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
A. Photo of Victim
Latimer argues that his counsel should have objected when the State entered into evidence a photo of JL when she was eight years old. Latimer contends that the only point of the photo was to show JL while "very young in an effort to horrify the jury and appeal to their emotions rather than their capacity for reason." Appellant's Br. at 6. We disagree with Latimer.
Deciding whether and when to object to the admission of evidence is "a classic example of trial tactics." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). We presume effective representation, and Latimer may not rely on matters that are within trial strategy or tactics to prove deficient performance. Hendrickson, 129 Wn.2d at 77-78.
At the time the State offered the photo of JL, it also offered two other photos, exhibits 1 and 3, photos of JL with various family members taken around roughly the same time. On the three photos, defense counsel stated: "[w]ell, I'm not sure of the relevancy, Your Honor, but I really have no objection. . . ." RP (Aug. 20, 2007) at 56. Defense counsel then began to re-cross examine JL using all three photos as part of his examination. He asked JL to name the people in the photos, to identify the person taking the photos, and other questions surrounding where she lived when the photos were taken. Defense counsel questioned JL's memory of past events through the photographs.
Latimer does not assign error to the admission of exhibits 1 or 3, just exhibit 2.
The full colloquy:
Defense Counsel: Well, I'm not sure of the relevancy, Your Honor, but I really have not objection. I can't —
The Court: Are you objecting on relevance grounds or not?
Defense Counsel: I'm not going to object.
RP (Aug. 20, 2007) at 56.
Because defense counsel used the photos in his examination of JL, it appears that not objecting to their admission was a trial tactic or strategy. As noted above, a defendant may not rely on matters that are within trial strategy or tactics to prove deficient performance. Hendrickson, 129 Wn.2d at 77-78. Accordingly, we deny his appeal on this ground.
B. Non-Responsive Answer
During questioning at trial, Tawana Ketchum, Latimer's ex-girlfriend after his divorce from Metcalf, gave a non-responsive answer that expressed her opinion that Latimer was guilty of the crime. Latimer claims that his attorney should have objected to the comment and that he was prejudiced because of his attorney's failure. The State argues that defense counsel chose to not object to the statement as a matter of trial strategy; we agree with the State.
Ketchum's statement — "he did it" — occurred during the course of defense questioning about the fact that Latimer had never admitted the crime to her. RP (Aug. 21, 2007) at 180. Ketchum testified that when asked about the allegations, Latimer "laughed" and told her "I'd like to see them prove it." RP (Aug. 21, 2007) at 176. Defense counsel pushed Ketchum on cross examination to agree that "what he was saying was, he was denying those charges; isn't that correct?" RP (Aug. 21, 2007) at 180. Ketchum responded, "I don't believe he was denying or giving out any information. He did it." RP (Aug. 21, 2007) at 180. Directly after that defense counsel questioned her about her outburst asking, "[h]e made the statement?" RP (Aug. 21, 2007) at 180. Ketchum responded by stating, "[h]e made the statement, I'd like to see them prove it, as he was laughing at me going down the stairs." RP (Aug. 21, 2007) at 181.
Defense counsel could have objected to Ketchum's statement, but chose instead to immediately question her about the assertion. This course of action was reasonable. Ketchum had not yet provided any testimony alleging that Latimer confessed to her and it is likely that defense counsel saw her statement as an opportunity to point that out to the jury. Ketchum said "he did it," but when asked if he had actually made that statement, Ketchum could not say that he did. RP (Aug. 21, 2007) at 180.
As with the preceding section, a defendant may not rely on matters that are within trial strategy or tactics to prove deficient performance. Hendrickson, 129 Wn.2d at 77-78. Questioning Ketchum after her assertion that "he did it" instead of objecting, clearly falls within trial strategy and we deny Latimer's appeal on this ground.
C. No Prejudice
Even if Latimer's counsel's performance in the above instances was deficient by an objective standard of reasonableness, he still cannot show that but for the deficient conduct, the outcome of the proceeding would have differed. The jury heard from Metcalf, JL, several witnesses whom JL told about the touching, Dr. Niems and Latimer, himself. Even if defense counsel had prevailed in excluding the photo, exhibit 2, we must assume that exhibits 1 and 3 — other photos of JL as a child — would still be in evidence (as Latimer has not assigned error to their admission). Remove the photo and the one non-responsive statement and the trial testimony does not change markedly; the jury's outcome would have likely stayed the same. For the above reasons, we affirm Latimer's convictions.
II. Statement of Additional Grounds
Latimer's SAG is essentially a letter to this court. There is little organization and he tends to ramble on in a narrative for some pages. What follows are the issues that he appears to discuss; none have merit.
A. Issues Addressed by Appellate Counsel
Latimer mentions several times that his case would have resulted in a different finding had his attorney "done his job and object to the statements, and the pictures submitted to the court as exhibits, along with a more thorough cross examination of Ms. Ketchem." SAG at 6. Latimer's appellate counsel addressed these issues in its brief, thus, we need not address this issue separately.
B. Sufficiency of the Evidence
Latimer contends that this was a "weak case with absolutely no evidence whatsoever, (medical or physical) just hearsay." SAG at 5. Because, as we have discussed, the case against Latimer was strong, we deny his appeal on this ground.
C. Matters Outside the Record
Matters outside the record cannot be addressed on direct appeal. McFarland, 127 Wn.2d at 338 n. 5. Latimer writes a narrative detailing how his relationships with Metcalf and Ketchum ended, and how the two women conspired to convict him and "ruin [his] life because [he] didn't stay in the relationship with either of them." SAG at 4. Latimer even states in the preface to his narrative that these were the things that "the jury did not hear but should have . . ." SAG at 2. Indeed, much of Latimer's narrative contains information not presented at trial, thus, we cannot review the issues he attempts to raise on appeal.
Further, Latimer argues that the result would have been different had testimony from the first trial been included. Latimer states: "If a person was to compare the testimony from the first trial to that of the second, you would find a considerable amount of significant testimony was left out. . . ." SAG at 1. Latimer also notes that the first trial ended in a 9-3 split and that a "15 person swing" from the first trial to the second "is so lopsided to be accurate or true." SAG at 1. Latimer contends that "[s]omething just wasn't right." SAG at 1. We review only those materials presented to us on appeal and so we cannot review this truncated claim.
Latimer also contends that he encouraged his attorney to "establish certain points" in cross-examination of Ketchum but that his attorney did not listen. SAG at 1. This too, is outside the record and we will not consider it on appeal.
We affirm the convictions.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.