Opinion
No. 60093-1-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-01384-9, Andrea A. Darvas, J., entered May 29, 2007.
Affirmed by unpublished per curiam opinion.
Jose Orellana appeals his conviction for child molestation and the trial court's decision denying his motion for a new trial based on ineffective assistance of counsel. Orellana contends that but for defense counsel's failure to interview various witnesses, present alibi and impeachment evidence, and extensively cross-examine a child witness, the result of his trial for child rape and child molestation would have been different. Because trial counsel's tactical decisions were reasonable and consistent with the defense theory of the case and because Orellana cannot demonstrate prejudice, we affirm.
FACTS
The State charged Jose Orellana with two counts of first degree child rape and two counts of first degree child molestation based on reports by nine-year-old M.P., the daughter of Orellana's girl friend Karina P. Orellana and Karina began living together in 2001 with her daughter M.P., her son, and Orellana's two sons. Karina and Orellana had a son together in 2004.
At trial, Karina's mother, Antelia Medina, testified that M.P. spent the night at her house on January 1, 2005. When Medina found M.P. crying in the bathroom and asked the reason, M.P. said that her "privates really, really hurt." 2 Verbatim Report of Proceedings (VRP) (June 22, 2006) at 20. Medina asked if anyone had touched her and M.P. said that Jose had touched her privates with his hands under her underwear on her mother's birthday, December 15, and "a long, long time ago . . . and then he started doing it again." Id. at 22. The next morning, Medina told Karina and they went to the Federal Way Police Department and provided statements to Officer Daniel Cash.
Ashley Wilske, a child interview specialist with the King County prosecutor's office, testified about her interview with M.P. The State played a video recording of the interview, in which M.P. indicated that when she was six or seven, Orellana touched the inside of her "private spot" under her clothes with his hand, and it hurt, and he told her not to tell anyone. Exhibit 9 at 8. M.P. stated that he touched her two other times when she was seven or eight and on one occasion made her touch his private spot with her hand. She also described a time a couple of days before Christmas when he touched her private spot over her clothes.
Kimberly Martinez testified that after Orellana was arrested, M.P. came to Colorado to live with her and her husband, Luis Martinez, M.P.'s biological father. In Colorado, Kimberly Martinez took M.P. for a medical exam and M.P. began therapy with Nancy Tanner. Martinez testified that when M.P. told her that Orellana had touched her with his penis, she confirmed that M.P. reported that information to her therapist, who then contacted police.
M.P. testified that Orellana touched her vagina with his hands the first time when she was six or seven years old; she did not recall whether he touched her over or under her clothes or for how long. She stated that it happened more than once, but she did not specify any dates other than New Year's Eve. M.P. also testified that she told Martinez that Orellana put "his private" in "her private" because she felt safe with Martinez and that she remembered that it happened but could not remember what day it happened. 1 VRP (June 26, 2006) at 6.
Officer James Nelson testified about the statements Orellana made following his arrest. According to Nelson, Orellana stated that M.P. was manipulative and promiscuous and often got into his bed with him. He stated that about a year earlier, he woke up once to find M.P. in his bed when he thought he was touching Karina, but that he did not remember touching M.P. in December 2004.
The State also presented testimony from Cheryl Roy, the nurse who examined M.P. in Colorado. Roy testified that M.P. reported that Orellana touched her inside her vagina under her clothes after her mother's birthday and then about four days later in December 2004 when he put his finger in her vagina and put her hand on his "private."
Finally, Detective Tony Clayton of Grand Junction Police Department in Colorado testified that he interviewed M.P. on May 11, 2005. The State also presented a video of the interview. M.P. told Clayton that Orellana put his penis in her vagina about five times. She stated that the last time was "New Years 2005," at "probably four o'clock, after school." Exhibit 10, at 12, 18.
The defense case included testimony from Karina, Orellana, Jennifer Neves, and Brenda Lee. According to Karina, Medina tried to control her and did not like Orellana. Karina suggested that Medina was manipulating M.P. to make up the allegations, and she testified that Medina prevented her from speaking with M.P. before or after their trip to the police department.
Orellana testified that at the time of his arrest and subsequent statement, he was experiencing significant pain in his shoulder from a work injury such that he did not read the statement before signing it. He claimed that he told Officer Nelson that he had never touched M.P., even accidentally. He also testified that whenever M.P. spent time with Medina, M.P. would question whether she should call him "Daddy" or spend time with him.
Lee, a nurse who examined M.P. in November 2004 and January 2005, testified that she did not find any evidence of sexual assault.
The jury found Orellana guilty of one count of child molestation occurring in December 2004 and was unable to reach a verdict on the other three counts. Orellana retained new counsel and filed a motion for a new trial based on ineffective assistance of counsel. After a hearing, the trial court denied the motion for a new trial stating,
[E]ven if I assume that [defense counsel's] failure to interview various witnesses or failure to call various witnesses was deficient performance, I don't think I can find under the totality of the circumstances that there's a reasonable probability that absent those errors, the outcome of the trial would have been different.
VRP (Apr. 27, 2007) at 31.
Orellana appeals, contending that trial counsel was ineffective and that the trial court abused its discretion by denying his motion for a new trial.
ANALYSIS
We review a trial court's decision on a motion for new trial based on ineffective assistance of counsel for a manifest abuse of discretion. State v. West, 139 Wn.2d 37, 42, 983 P.2d 617 (1999). To prove ineffective assistance of counsel, Orellana must demonstrate that counsel's performance was deficient and that prejudice resulted from that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); West, 139 Wn.2d at 42. Prejudice is established if there is a reasonable probability that, but for counsel's errors, the outcome would have been different. State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991).
Because we strongly presume that defense counsel's conduct constituted sound trial strategy, Orellana must demonstrate, in light of the entire record, that no legitimate strategic or tactical reasons support the challenged conduct. State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The decision whether to call a witness is generally a matter of trial tactics. State v. Hayes, 81 Wn. App. 425, 442, 914 P.2d 788 (1996). A decision to refrain from introducing evidence inconsistent with the defense theory of the case also involves strategic or tactical considerations. In re Pers. Restraint of Howerton, 109 Wn. App. 494, 508, 36 P.3d 565 (2001).
Orellana contends that trial counsel rendered ineffective assistance of counsel when he failed to (1) interview therapist Nancy Tanner and consider calling her to testify, (2) introduce evidence of investigations by Child Protective Services (CPS), (3) interview Efren and Mario Espinosa Garcia, (4) adequately cross-examine M.P., (5) interview Officer Cash, (6) interview Kimberly and/or Luis Martinez, and (7) present testimony of Carla Barlew or Joseph Reese.
Orellana argues that if trial counsel had interviewed Tanner, he would have discovered her use of "play therapy," a therapy method that has been criticized for creating false allegations. He could have then called Tanner to testify about her methods and used studies critical of those methods to undermine the accuracy of M.P.'s allegations. But counsel knew that M.P. reported additional incidents to Tanner, including a claim of penile penetration. And after Tanner resisted his attempts to contact her, counsel successfully moved to exclude Tanner from testifying unless she disclosed her therapy notes and submitted to an interview. Under these circumstances, counsel's decision to cease efforts to interview Tanner and thereby avoid additional detailed testimony of M.P.'s allegations was reasonable.
Orellana next faults trial counsel for failing to introduce evidence of CPS investigations instigated by Medina and her daughter Zoraida, who had accused Orellana of domestic violence, sexual assault, and neglect. Orellana now contends that counsel should have presented evidence of their claims, the investigation, and the dismissal of the claims as unfounded or unsubstantiated to impeach Medina and to demonstrate her bias against him. But such a strategy would have allowed Medina to testify about other bad acts by Orellana. Trial counsel's decision to avoid allowing the jury to hear additional negative allegations was reasonable, particularly in light of the fact that both Karina and Orellana testified about Medina's bias against Orellana.
Orellana also argues that counsel should have interviewed Efren and Mario Espinosa Garcia, brothers who lived in Orellana's house during the time the alleged acts occurred. Efren could have testified that he was shopping with Orellana on December 23, 2004, the only day before Christmas that Orellana was not working. Both Efren and Mario could have testified about the dynamics of the relationship between Karina, Orellana, and Medina, and countered any allegations of domestic violence. But M.P. did not specify that any act leading to the charges occurred on December 23 at any particular time that Efren could claim he was shopping with Orellana. Without such an allegation, counsel cannot be faulted for deciding not to pursue Efren's testimony. Given a reasonable strategic decision to avoid allegations of other acts of violence or abuse in the home, counsel's failure to explore the brothers' knowledge of family dynamics does not constitute deficient performance.
Orellana next complains that trial counsel failed to adequately cross-examine M.P. to reveal her numerous inconsistent and contradictory statements. On direct examination, M.P. testified very generally and repeatedly stated that she did not remember various details included in her prior reports. Defense counsel began his cross-examination by asking M.P. questions about the specific place she first revealed the incidents to her grandmother. M.P. started crying. After a recess, she returned to the stand with a large pink teddy bear. Defense counsel said without objection from the State, "This has been very hard for you. I don't want to make it any harder. I'm not going to ask you any further questions." 1 VRP (June 26, 2006) at 72. Given M.P.'s vague testimony, the obvious inconsistencies in her other reports, and the potential for antagonizing the jury by vigorously questioning a ten-year-old girl who did not claim detailed memories, defense counsel's strategic decision to end cross-examination was reasonable.
Also, Orellana argues that counsel rendered deficient performance by failing to interview Officer Cash, who had retired and moved to Australia. He contends that counsel should have determined whether Officer Cash had proper training for interviewing child victims and whether he followed appropriate interview protocols. But the record reveals that based on defense counsel's pretrial motions, the trial court ruled that the State must produce him for an interview or stipulate that M.P.'s statements to Officer Cash would be admissible only for impeachment. Counsel's strategy to limit the State's use of additional evidence was reasonable.
Next, Orellana contends that counsel should have interviewed Kimberly and Luis Martinez to explore their potential bias and determine whether they had information to support the defense theory that Medina coached M.P. to make the allegations. But based on the circumstances of this case and information provided by Karina and Orellana, defense counsel could have reasonably concluded that both Kimberly and Luis Martinez were hostile to Orellana. Thus, he could have reasonably decided that additional interviews would only reveal the defense strategy without producing any useful information.
Finally, Orellana complains that defense counsel failed to call Carla Barlew or Joseph Reese to testify about Orellana's work schedule in December, specifically December 15 and three of the four days before Christmas. He claims that a failure to present such alibi evidence constitutes deficient performance. But our review of the record reveals that M.P. did not claim that the abuse occurred on a particular day at a particular time. Even if these witnesses could have testified that Orellana was not in the home for some hours of certain days included in the charging period, they could not have established a complete or effective alibi. Defense counsel reasonably decided to focus the jury's attention on a different defense theory.
In sum, the record demonstrates that defense counsel presented a consistent theory of the case and made reasonable strategic choices to present evidence supporting that theory and to forego certain other potentially prejudicial tactics. Moreover, our review of the record reveals that defense counsel aggressively litigated various pretrial matters, made objections to the State's evidence, presented testimony and evidence, and effectively argued the defense theory in closing. Orellana fails to demonstrate deficient performance.
We also agree with the trial court that Orellana has failed to establish prejudice. Orellana contends that the trial court failed to properly apply the standard for determining prejudice. But the record reveals that the trial court quoted the proper standard orally at the hearing and in the written order. The trial court then reviewed the evidence presented at trial and specifically considered whether there was a reasonable probability that the outcome of the trial would have been different but for counsel's assumed errors.
The State's case was a credibility contest between M.P. and Orellana. Orellana contends that defense counsel's errors deprived him of opportunities to challenge M.P.'s veracity by (1) presenting alibi evidence, (2) challenging the interview methods of Nancy Tanner and Officer Cash, (3) more thoroughly cross-examining M.P., and (4) supporting the coaching theory with CPS evidence demonstrating Medina's bias. But Orellana cannot demonstrate prejudice here.
First, M.P. did not consistently identify a particular date or time in December when the abuse occurred. Instead, the testimony offered at trial included the following possible dates: Karina's birthday (December 15); after Karina's birthday and about four days later; a couple of days before Christmas; New Year's Eve; and New Year's at about four o'clock after school. Although the potential alibi witnesses could testify to parts of some of the days at issue, they could not rule out all the possible times suggested by the State's evidence. Under these circumstances, the presentation of these witnesses could have compromised the defense theory actually presented — that the allegations were a result of coaching. See, e.g., State v. Brown, 55 Wn. App. 738, 748, 780 P.2d 880 (1989) ("In cases where the accused child molester virtually has unchecked access to the victim, neither alibi or misidentification is likely to be a reasonable defense. The true issue is credibility.").
Second, defense counsel hoped to prevent the State from presenting two additional witnesses, Nancy Tanner and Officer Cash, rather than interview them and then challenge their child interviewing methods at trial. Again, given the defense theory that the allegations resulted from coaching by family members, it is not clear how the testimony of these additional witnesses could have changed the outcome of the trial.
Third, defense counsel's decision to forego an extensive cross-examination of M.P. was consistent with the defense theory of the case and had the potential to increase the credibility of the defense with the jury. Counsel was able to point out the inconsistencies in M.P.'s story in closing argument and lessen the impact of the State's theme that Orellana was victimizing M.P. at trial. Nothing in the record indicates that had counsel continued the cross-examination, M.P. would have admitted that the abuse occurred only at a particular time or that she was coached.
And fourth, if defense counsel had presented evidence of the CPS investigations to demonstrate Medina's bias, the trial court would have allowed Medina to testify about the basis for her complaints. Even if defense counsel had called other witnesses to rebut Medina's testimony, the strategy would have required the jury to consider evidence of additional bad acts attributed to Orellana.
In light of this record, Orellana fails to demonstrate prejudice. The trial court did not abuse its discretion in denying the motion for a new trial.
Affirmed.