STATE v. WATKINS (2006)

PUBLISHED IN PART

 ¶ 1 Jury instructions must more than adequately convey the law.   They must make the relevant legal standard “manifestly apparent to the average juror.” ¹  Here, the unanimity instruction given to the jury arguably does not meet this standard.   But we are bound by precedent from the supreme court that expressly approves the unanimity instruction given in this case.   Accordingly, we must reject the argument of Jermaine Watkins that the instruction in this case failed to protect his constitutional right to a unanimous jury.   There being no other basis to reverse, we affirm the judgment and sentence.

¶ 2 In 1994, Jermaine Watkins began dating Katina Harris.   At the time, Harris had twin girls from a prior  relationship, T.H. and A.H.   They were two years old.   Shortly after the couple began dating, Harris became pregnant with Watkins' son, and Watkins moved in with Harris and her two daughters.   Watkins had three children with Harris, but they never married.   Watkins acted as and considered himself to be the father of all five of Harris' children.   T.H. and A.H. considered Watkins their father and referred to him as “daddy.”

¶ 3 In May 2004, T.H. and A.H. told Harris that they were being sexually molested by Watkins.   Harris reported the abuse, and Watkins was arrested.   The arresting officers read Watkins his Miranda ² rights.   Watkins initially denied the allegations and then confessed to having oral sex with the girls every other month.   Watkins was again advised of his rights, waived them, and gave a taped statement, confessing to having oral sex with T.H. and A.H. four times each and having sexual intercourse with A.H. once.

¶ 4 The State charged Watkins with four counts of Rape of a Child in the First Degree.   Watkins moved to suppress his confession.   The trial court found that Watkins' statements were admissible.

¶ 5 At trial, both T.H. and A.H. testified that Watkins repeatedly had oral sex with them and would touch their breasts and bottoms on multiple occasions.   The court admitted into evidence Watkins' taped confession and allowed the State to play it for the jury.   Watkins denied the allegations and argued that his confession was coerced and false.   The State proposed and the court gave the unanimity instruction that is at issue in this case.   The jury convicted Watkins as charged.

¶ 6 Watkins appeals.

UNANIMITY INSTRUCTION

¶ 7 Watkins argues the trial court denied him his constitutional right to a unanimous jury verdict by failing  to give a proper unanimity instruction.   Specifically, he claims that the unanimity instruction given in this case fails to make manifestly clear that the jury must be unanimous as to the act that serves as a basis for conviction.   Because we are bound by express authority from the state supreme court that approves the instruction given in this case, we are compelled to disagree.

 ¶ 8 A defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed.³  In multiple acts cases where several acts could form the basis of one count charged, either the State must elect the act on which it will rely for conviction, or the court must instruct the jury to agree unanimously, beyond a reasonable doubt, on a specific criminal act.⁴

 ¶ 9 In State v. LeFaber, the state supreme court stated that the standard for clarity in a jury instruction is higher than for a statute.⁵  Courts may resolve ambiguous wording in a statute by utilizing rules of construction, but jurors lack such interpretative tools.⁶  Accordingly, a jury instruction must be manifestly clear to the average juror.⁷

¶ 10 WPIC 4.25, a unanimity instruction, provides a pattern instruction that is designed to provide the constitutional protection addressed in Kitchen ⁸ and Petrich: ⁹

There are allegations that the defendant committed acts of _ on multiple occasions.   To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been  proved beyond a reasonable doubt.   You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.

¶ 11 Here, the State proposed and the court gave a different unanimity instruction to which Watkins did not object.   That instruction was based on State v. Noltie ¹⁰ and reads as follows:

There are allegations that the defendant committed multiple acts of Rape of a Child in the First Degree against T.H․ [sic] Although the twelve of you need not agree that all of the acts have been proved, to convict the defendant of Count I or Count II you must unanimously agree that at least one separate act of Rape of a Child in the First Degree pertaining to each count has been proved beyond a reasonable doubt.¹¹

Substantially identical instructions were given for Counts III and IV, which involved acts against A.H.

 ¶ 12 The State argues that because Watkins failed to object to the proposed unanimity instruction, he waived his right to challenge the instruction on appeal.   We disagree.

 ¶ 13 If a defendant fails to object at trial, an error may be raised for the first time on appeal if it “invades a fundamental right of the accused.” ¹²  A unanimity instruction that does not adequately inform the jury of the applicable law violates a defendant's constitutional right to a unanimous jury verdict.¹³

 ¶ 14 The State does not contend that an arguably erroneous jury instruction fails to qualify as a manifest error affecting a constitutional right.   We conclude that Watkins' claim properly falls within the jurisprudence that permits us to examine the claim although it is raised for the first time on appeal.¹⁴

 ¶ 15 Moving to the substance of the claim, Watkins argues that the unanimity instruction that the trial court gave does not make it manifestly clear that the jury must unanimously agree as to which particular act or acts have been proven beyond a reasonable doubt.   He advances several reasons why we should disregard State v. Noltie, the supreme court case that expressly approved the unanimity instruction given in this case.

¶ 16 There, Noltie was convicted of one count of statutory rape and one count of indecent liberties.¹⁵  On appeal, he claimed, among other things, that the information charging him was unconstitutional because it failed to specify which of several alternative means of statutory rape the State intended to prove at trial.¹⁶

¶ 17 In rejecting this argument, the supreme court held that the prosecution was not required to elect from among alternative means of committing a crime when it prepared a charging document.   The court went further by stating that there was no violation of jury unanimity either.   Specifically, the court quoted the instruction given in that case:

[T]o convict the defendant of Count I or Count II you must unanimously agree that at least one separate act of sexual intercourse pertaining to each count has been proved beyond a reasonable doubt.[17]

Thereafter, the court expressly stated that this instruction “complies with the mandate of State v. Petrich and State v.  Kitchen.   The defendant's right to a unanimous jury verdict was not violated.” ¹⁸

¶ 18 Here, the trial court gave the following instruction:

Although the twelve of you need not agree that all of the acts have been proved, to convict the defendant of Count I or Count II you must unanimously agree that at least one separate act of Rape of a Child in the First Degree pertaining to each count has been proved beyond a reasonable doubt.19

It is identical to the instruction given in Noltie.   Watkins argues that this instruction fails to meet the standard in LeFaber that requires that the instruction must make the legal standard “manifestly clear to the average juror.”   More specifically, he argues that a plain reading of the instruction does not make clear that the jurors must unanimously agree on the same act or acts as the basis for conviction.

¶ 19 We agree that the instruction does not appear to adequately insure jury unanimity.   Instructing the jury to unanimously agree on “at least one separate act ” for each count arguably does not make it manifestly clear that the jury must agree on the same act for each count.   All the jurors could agree that one separate act was committed without necessarily agreeing that the same act was the basis for conviction.

¶ 20 Watkins also argues that we should distinguish Noltie on the basis that its approval of the wording used in the instruction in this case is dicta and therefore not binding legal precedent.   That may be.   We also note that the argument that Watkins makes here was not made in Noltie.

 ¶ 21 Nevertheless, we believe the better practice in light of the supreme court's express approval of this instruction is for that court to address the issue.   We are bound to follow supreme court precedent even if we may disagree with it.

¶ 22 We note that there are several cases, all of which are prior to LeFaber, that approve of jury instructions that  arguably do not make manifestly clear to the average juror the correct legal standard.   The State argues that these cases support affirming the trial court's use of the challenged instruction.   But all of those cases have different wording than the text here.   They are not very helpful in addressing the precise issue now before us.

¶ 23 In State v. Newman, a multiple acts case, the trial court instructed the jury that for each count, “[A]ll twelve jurors must agree that the same incident of sexual contact has been proved beyond a reasonable doubt.” ²⁰  This court held that the State was not required to elect the particular acts it relied upon for each count because the jury was given unanimity instructions that were substantially the same as the instruction approved in Noltie.²¹

¶ 24 In State v. Noel, the court instructed the jury that “you must unanimously agree that at least one particular act has been proved beyond a reasonable doubt.” ²²  This court grammatically analyzed the instruction stating that “[t]he phrase one particular act, in conjunction with the plural you, asks the jury as a whole to focus on a single act.” ²³  We decided that the ordinary reasonable juror would read the instruction to mean the jury must unanimously decide that the same act has been proved beyond a reasonable doubt.²⁴  This court noted that although the instruction is not misleading, there is still room for improvement.²⁵  The dissent stated that ordinary jurors are more likely to read the instruction as a whole, and when read as a whole  it does not adequately instruct the jury that it must agree on the same underlying act.²⁶

¶ 25 The trial court in State v. Ellis gave the same instruction given in State v. Noel.²⁷ Relying on Noltie and Noel, the court held that the unanimity instruction marginally but adequately insured jury unanimity on each count, although it failed to use the language from Petrich.²⁸  The court found that, as an ordinary juror would read the instruction, it communicates that each juror must agree that the same act has occurred.²⁹

¶ 26 To summarize, although the instruction now before us arguably does not protect Watkins' right to a unanimous jury verdict, we conclude that we are compelled to follow the express dictates of State v. Noltie as to that instruction.

¶ 27 We affirm the judgment and sentence.

¶ 28 The remaining issues of this opinion are not of sufficient precedential value.   Accordingly, pursuant to RCW 2.06.040, the remainder of this opinion shall not be published.

ER 403

¶ 29 Watkins argues that the trial court violated his constitutional right to present a complete defense by excluding evidence of his prior false admission.   We hold that the trial court properly exercised its discretion in excluding the evidence under ER 403.

¶ 30 The Sixth Amendment to the United States Constitution and the Washington State Constitution, article 1, section 22, grant criminal defendants the right to present evidence in one's defense.30  However, a criminal defendant does not have a constitutional right to have irrelevant evidence admitted in his or her defense.31  Admission of evidence is within the sound discretion of the trial court and will not be reversed absent a showing of abuse of discretion.32

¶ 31 Before admitting evidence, the trial court must determine that the evidence is relevant, which means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  33  ER 401 only requires a showing of minimal logical relevancy. 34  Although evidence is relevant, it may still be excluded under ER 403 if:

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.[35]

¶ 32 Several days into trial, defense counsel disclosed to the court that she had just been informed that Watkins may have given a false confession in a homicide case in 1995.   After further investigation, the parties discovered that in 1995 the police interviewed Watkins during a homicide investigation, not as a suspect, but as a witness.   Several people had placed Watkins at the scene of a crime.   But when questioned by two detectives about his presence there, Watkins denied having been present.   He stated that he had heard what happened from his cousins.   Watkins provided the detectives with a taped statement, and also offered to take a polygraph.   The Tukwila Police Department was unable to locate Watkins' taped statement.   Watkins failed the polygraph, but admitted that he was at the scene of the murder and heard a gunshot when the victim was killed.   When questioned about the results of the polygraph, Watkins said that he lied to the polygraph examiner, and he was not at the scene during the time of the murder.   Watkins stated that he felt pressured into telling the polygraph examiner what he wanted to hear.   The detective told Watkins that people do not lie to get themselves into trouble.   Watkins changed his story again and said he was present, then later stated he was not.

¶ 33 Here, Watkins moved to admit his 1995 statements, arguing that they explained his state of mind at the time of his confession in this case and also explained why he would falsely confess.   The trial court carefully reviewed the arguments and proffered evidence and found that Watkins' statements to the detectives did not rise to the level of a false confession.   The trial court found that the only possible relevance of the 1995 statements is that Watkins felt pressured to tell the detectives in the homicide case answers he felt they wanted to hear and also felt pressured to give the information to the officers in this case.

¶ 34 The court distinguished this case from the homicide case stating:

In the Tukwila instance, however, we have a very different set of circumstances.   One is that this information, whether it's false or not false at the time it was given, was given to a[n examiner] during a polygraph examination which we don't have here.   Two is, as indicated earlier, we still don't know which was the truth, whether he was there or not there.   Three, what his motivations were for changing his story.   Four, whether the statements made were in fact either inculpatory or exculpatory.[36]

¶ 35 The court conducted a 403 balancing test and found that the minimal relevance was substantially outweighed by misleading the jury, confusing the jury, and potential prejudice to the parties.   Accordingly, the court excluded the evidence.

¶ 36 We must decide whether Watkins' 1995 statements are relevant and, if so, whether they should have been excluded under ER 403.

¶ 37 Here, Watkins confessed to the police officers that he had oral sex with T.H. and A.H. He now claims he made the statements because he felt pressured to tell them what they wanted to hear.   Watkins' 1995 statements are relevant to show that because he felt pressured to lie to the detectives in the homicide investigation, it is more probable that he would likewise feel pressured to tell the detectives what they wanted to hear in this case.

¶ 38 Although the statements are relevant, the trial court correctly pointed out several reasons why they are only minimally so.   First, we do not know which statements were false and whether Watkins' statements were inculpatory or exculpatory.   Second, Watkins never confessed to a crime, but only stated that he was at the scene of one.

¶ 39 Watkins asserts that when balancing the probative value of evidence against the dangers of confusion or prejudice, the general rule requires the balance be struck in favor of admissibility.37  Watkins relies on State v. Young to argue that “ER 403 does not extend to the exclusion of crucial evidence relevant to the central contention of a valid defense.”  38  That case is distinguishable.

¶ 40 There, Bradley Young was driving two friends home, when one friend grabbed the steering wheel causing the truck to crash, killing the passengers. 39  Young was charged with two counts of vehicular homicide.   He made an offer of proof that three witnesses would testify that the friend who grabbed the wheel had on four prior occasions recently grabbed the steering wheel away from the driver.   The trial court excluded the evidence under ER 403.40  The court of appeals reversed, holding that the friend's conduct on the night of the accident was highly probative and crucial to Young's theory of defense, that it was his friend and not he who caused the accident.41

¶ 41 Here, Watkins' defense was that his confession was coerced.   But unlike Young, the excluded statements were not crucial to Watkins' defense because they did not include a prior false confession.   Also, admitting the statements would have required a mini-trial with the detectives and Watkins testifying to a collateral issue and could have been unfairly prejudicial to Watkins. “Confusion of the issues warrants exclusion of relevant evidence if admission of the evidence would lead to litigation of collateral issues.” 42

¶ 42 In sum, we conclude that the trial court properly exercised its discretion to exclude the evidence under ER 403.   The probative value of the statements is substantially outweighed by the likelihood of confusion of issues, misleading the jury, and unfair prejudice.

¶ 43 Because of our resolution of the issue on the basis of ER 403, we need not address the State's argument that the evidence should have also been excluded under ER 404(b).  We also need not address the harmless error test.

INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 44 Watkins also argues he was deprived his constitutional right to effective assistance of counsel.   We disagree.

¶ 45 The test to establish ineffective assistance of counsel is whether “(1) defense counsel's performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant.”  43  For the first prong, scrutiny of counsel's performance is highly deferential and courts apply a strong presumption of reasonableness.44  If defense counsel's conduct can be characterized as trial strategy or tactics, it does not constitute deficient performance.45  The second prong requires the defendant to show that there is a reasonable probability that the outcome of the trial would have been different absent counsel's deficient performance.46  Ineffective assistance of counsel is a mixed question of law and fact that we review de novo.47

Expert Witness

¶ 46 Watkins argues that his counsel was ineffective for failing to adequately investigate the case and for not retaining an expert witness to challenge the reliability of his confession in this case.   We hold that this claim is without merit.

¶ 47 The Sixth Amendment requires defense counsel to conduct a reasonable investigation.48  A reasonable investigation is one that allows counsel to make informed decisions about how best to represent the defendant, which includes investigating all reasonable lines of defense.49  Defense counsel's decision whether or not to call witnesses generally falls within trial strategy and will not support a claim of ineffective assistance of counsel.50

¶ 48 Here, there is nothing in the record to suggest that counsel failed to conduct an adequate investigation prior to trial.   Presumably, if Watkins had disclosed to counsel prior to trial the matters on which he now rests his claim, counsel would have investigated the matter.   Counsel immediately began an investigation once informed three days into the trial that Watkins may have previously falsely confessed to a crime.   There is no reason to believe that counsel would not have investigated the claim had she been timely informed of it.   In short, we see no deficient performance by counsel.

¶ 49 Watkins relies on State v. Thomas 51 to argue that defense counsel failed to conduct a reasonable investigation by not obtaining an expert witness, which resulted in deficient performance that was prejudicial.   In that case, defense counsel obtained an expert to support its theory of diminished capacity based on voluntary intoxication to the charge of attempting to elude a pursuing police vehicle.52  However, the witness called to testify as an “expert” was not properly qualified and was only an alcohol counselor trainee.53  The trainee was not allowed to testify as an expert and no other expert was called.   The supreme court held that defense counsel's performance was deficient because counsel failed to conduct a reasonable investigation, which requires a minimal investigation into an expert's qualifications.54

¶ 50 Unlike Thomas, defense counsel in this case conducted a reasonable investigation after first being informed three days into trial about the 1995 homicide investigation.   Although counsel did not learn of the homicide investigation until after trial started, the moment she learned of it she brought it to the attention of the court and began an investigation.   She immediately obtained a subpoena duces tecum for the police records, attempted to contact the detectives, and assigned an investigator to obtain the records and interview the detectives.   Counsel's performance was not deficient.

¶ 51 Watkins asserts that had defense counsel promptly learned of the 1995 investigation, she likely would have obtained an expert knowing there was not one, but two false statements.   We disagree.

¶ 52 First, Watkins never confessed to a crime, and it is unclear whether he knew his statements were even inculpatory.   Second, Watkins testified that his confession in this case was coerced and false, and defense counsel argued this theory during closing argument.

¶ 53 Although counsel did not obtain an expert, nothing in the record indicates she failed to conduct a reasonable investigation or that her performance fell below an objective standard of reasonableness.

Hue and Cry

¶ 54 Hue and cry is a case law exception to the hearsay rule and allows the State to introduce evidence in sexual assault cases that the victim made a timely complaint to someone after the assault.55  The rule excludes details of the complaint, including the identity of the offender and the nature of the act, and only admits evidence that will establish whether or not a complaint was timely.56

¶ 55 Here, the State moved, without objection, to admit T.H. and A.H.'s complaint of the rape to their mother under hue and cry.   Watkins argues the statements were not admissible because they were disclosed 10 days after the last occurrence, and therefore not timely.

¶ 56 The hue and cry doctrine requires that the victim complain to someone within a reasonable time after the abuse.57  Because 10 days is within a reasonable time to report abuse, we conclude that the statements are admissible under hue and cry.   There was no deficient performance by counsel by not objecting to this testimony.

¶ 57 Watkins also argues that the State exceeded the scope of the hue and cry doctrine by questioning Harris about the details of the act, and defense counsel should have objected.   In applying the hue and cry rule, the witness' testimony about what the victim told them may include the general nature of the act.58

¶ 58 Here, Harris stated that T.H. told her that “he was sticking his penis in her mouth.”   This testimony is beyond the general nature of the act and violates the scope of hue and cry.   Although defense counsel should have objected, Watkins cannot show prejudice.   Not only did T.H. testify regarding the abuse, Watkins confessed to having oral sex with T.H. There is no reasonable probability that the outcome of the trial would have been different had counsel objected.

¶ 59 Finally, Watkins argues that defense counsel elicited highly prejudicial hearsay statements during cross-examination by questioning Harris about the identity of the offender.   The State did not inquire into the identity of the offender.   On cross-examination, defense counsel asked Harris:

Q. At that time did she say who she had been touched by?

A.  Yes.

Q. She used the name?

A. Yes.

Q. How did she say it?

A. She said:  Daddy did it.

Q. Okay. Exactly how did she say Daddy did it?   What was [sic] the words?

A. I asked her if she had been touched in any way that she didn't like, and she said yes.   And I asked her when and how, and she told me that it happened all the time and that he was sticking his penis in her mouth.

Q. Okay. You're making reference to “he.”   Is she using any names at the time?

A. She said Daddy was sticking his penis in her mouth.59

¶ 60 A witness' reference to the defendant's identity when testifying about the victim's complaint constitutes harmless error where the defendant's identity is not at issue.60  Although defense counsel improperly elicited Watkins' identity during cross-examination, the error was harmless because there was never a dispute over the offender's identity.   Watkins is the only person the girls refer to as daddy.   Thus, Watkins cannot show prejudice.

¶ 61 In sum, Watkins fails in his burden to show that counsel was ineffective.

CUMULATIVE ERROR

¶ 62 Watkins argues that reversal is required because cumulative error denied him his constitutional right to a fair trial.   We disagree.

¶ 63 Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal because the combined effects of the errors denied the defendant a fair trial.61  Because the trial court did not err with respect to its rulings, we conclude that cumulative error does not apply.

¶ 64 We affirm the judgment and sentence.

FOOTNOTES

1.   State v. LeFaber, 128 Wash.2d 896, 900, 913 P.2d 369 (1996).

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

3.   State v. Kitchen, 110 Wash.2d 403, 409, 756 P.2d 105 (1988).

4.   State v. Petrich, 101 Wash.2d 566, 572, 683 P.2d 173 (1984);  State v. Noltie, 116 Wash.2d 831, 842-43, 809 P.2d 190 (1991).

5.   LeFaber, 128 Wash.2d at 902, 913 P.2d 369.

6.   Id.

7.   Id. at 900, 913 P.2d 369.

8.   110 Wash.2d 403, 756 P.2d 105.

9.   101 Wash.2d 566, 683 P.2d 173.

10.   116 Wash.2d 831, 809 P.2d 190.

11.   Clerk's Papers at 34 (Instruction 14) (emphasis added).

12.   State v. Levy, 156 Wash.2d 709, 719, 132 P.3d 1076 (2006).

13.   Kitchen, 110 Wash.2d at 409, 756 P.2d 105 (a defendant has a constitutional right to a unanimous jury verdict);  see Levy, 156 Wash.2d at 719, 132 P.3d 1076 (citing State v. Becker, 132 Wash.2d 54, 64, 935 P.2d 1321 (1997) (a reviewing court will “consider a claimed error in an instruction if giving such instruction invades a fundamental right of the accused.”);  State v. Lampshire, 74 Wash.2d 888, 892-93, 447 P.2d 727 (1968) (because a comment on the evidence invades a constitutional provision, failure to object does not foreclose raising the issue on appeal)).

14.   State v. Ellis, 71 Wash.App. 400, 404, 859 P.2d 632 (1993);  RAP 2.5(a)(3).

15.   Noltie, 116 Wash.2d at 833, 809 P.2d 190.

16.   Id. at 841, 809 P.2d 190.

17.   Id. at 843, 809 P.2d 190 (emphasis added).

18.   Id. (citations omitted).

19.   Clerk's Papers at 34 (emphasis added).

20.   63 Wash.App. 841, 846, 822 P.2d 308 (1992) (emphasis added).

21.   Id. at 850, 809 P.2d 190.

22.   51 Wash.App. 436, 438, 753 P.2d 1017 (1988) (emphasis added).

23.   Id. at 440, 753 P.2d 1017.

24.   Id. at 440-41, 753 P.2d 1017.

25.   Id. at 441 n. 3, 753 P.2d 1017.

26.   Id. at 442, 753 P.2d 1017 (Winsor, J., dissenting).

27.   Ellis, 71 Wash.App. 400, 859 P.2d 632.

28.   Id. at 406, 859 P.2d 632.

29.   Id.

30.   State v. Hudlow, 99 Wash.2d 1, 14, 659 P.2d 514 (1983).

31.   Id. at 15, 659 P.2d 514.

32.   State v. Castellanos, 132 Wash.2d 94, 97, 935 P.2d 1353 (1997).

33.   ER 401.

34.   Washington Practice, ER 401(3)(a) comments (citing State v. Bebb, 44 Wash.App. 803, 814, 723 P.2d 512 (1986), aff'd, 108 Wash.2d 515, 740 P.2d 829 (1987)).

35.   (Emphasis added.)

36.   Report of Proceedings (March 2, 2005) at 115.

37.   Appellant's Brief at 25 (citing State v. Young, 48 Wash.App. 406, 413, 739 P.2d 1170 (1987)).

38.   Young, 48 Wash.App. at 413, 739 P.2d 1170 (citing United States v. Wasman, 641 F.2d 326 (5th Cir.1981)).

39.   Id. at 408, 739 P.2d 1170.

40.   Id. at 409, 739 P.2d 1170.

41.   Id. at 413, 739 P.2d 1170.

42.   United States v. Dennis, 625 F.2d 782, 796-97 (8th Cir.1980).

43.   State v. James, 48 Wash.App. 353, 359, 739 P.2d 1161 (1987) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. Sardinia, 42 Wash.App. 533, 540, 713 P.2d 122 (1986)).

44.   State v. Thomas, 109 Wash.2d 222, 226, 743 P.2d 816 (1987).

45.   State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996).

46.   Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

47.   In re Pers. Restraint of Fleming, 142 Wash.2d 853, 865, 16 P.3d 610 (2001).

48.   In re Pers. Restraint of Davis, 152 Wash.2d 647, 735, 101 P.3d 1 (2004).

49.   Id. at 721, 101 P.3d 1.

50.   Thomas, 109 Wash.2d at 230, 743 P.2d 816.

51.   109 Wash.2d 222, 743 P.2d 816.

52.   Id. at 225-27, 743 P.2d 816.

53.   Id. at 229, 743 P.2d 816.

54.   Id. at 231, 743 P.2d 816.

55.   State v. Murley, 35 Wash.2d 233, 236-37, 212 P.2d 801 (1949);  State v. Ackerman, 90 Wash.App. 477, 481, 953 P.2d 816 (1998).

56.   Murley, 35 Wash.2d at 237, 212 P.2d 801.

57.   State v. Ferguson, 100 Wash.2d 131, 144, 667 P.2d 68 (1983) (Dore, J., dissenting) (clarifying clearly established rule).

58.   State v. Ragan, 22 Wash.App. 591, 597, 593 P.2d 815 (1979) (the court allowed testimony by a witness who said the victim reported that he was raped by a man);  State v. Fleming, 27 Wash.App. 952, 958-59, 621 P.2d 779 (1980) (allowing testimony from witness that victim reported she was raped).

59.   Report of Proceedings (February 23, 2005) at 73-74 (emphasis added).

60.   Ferguson, 100 Wash.2d at 136, 667 P.2d 68;  State v. DeBolt, 61 Wash.App. 58, 63, 808 P.2d 794 (1991).

61.   State v. Coe, 101 Wash.2d 772, 789, 684 P.2d 668 (1984).

COX, J.