IN RE: Personal Restraint Petition of Jack B. SHERWOOD. (2003)

PUBLISHED IN PART

Jack Sherwood was convicted of possession of cocaine, delivery of cocaine, and bail jumping.   His convictions were affirmed on appeal.   Thereafter, it came to light that a chemist at the Washington State Patrol Crime Laboratory had been using the heroin sent to the lab for analysis.   Sherwood contends that the chemist's misconduct should have been disclosed, that nondisclosure violated his due process rights, and that he is entitled to a new trial.   The chemist did not test the drugs in Sherwood's case,  however, and there is no reason to believe his misconduct had any effect on Sherwood.   We therefore deny Sherwood's petition.   We address other issues in the unpublished part of this opinion.

FACTS

In March of 1998, Jack Sherwood was arrested and charged with one count possession of a controlled substance.   He failed to appear for trial, and was charged with an additional count of bail jumping.   He was brought to trial in September 1998.   Chemist James Boaz of the Washington State Patrol crime laboratory testified that the substance Sherwood possessed and delivered was cocaine.   A jury found Sherwood guilty on all counts.   We affirmed.¹

Sometime in 1998, Boaz had observed that his colleague, Michael Hoover, was assigning himself a disproportionately large share of heroin cases.   Boaz also noticed that Hoover was reassigning heroin cases from Boaz to himself by removing paperwork from Boaz's file drawers.   At some point before October 1998, Boaz began to lock up his request files.   Boaz also came to suspect Hoover of “dry labbing,” a practice whereby a single test result is applied to numerous samples.   Between 1998 and 2000, Boaz and another colleague documented various suspicious behaviors and work practices by Hoover. They reported their concerns to the lab supervisor.   The State Patrol investigated and videotaped Hoover scraping drug residue from evaporation dishes into vials and hiding them on his person or around his workstation.   Confronted with this evidence, Hoover admitted he frequently used heroin from the lab.   In July 2001, he pled guilty to charges of evidence tampering and official misconduct. Sherwood filed this personal restraint petition after learning of Hoover's misconduct.

 DISCUSSION

Sherwood contends the State's failure to disclose Hoover's misconduct violated due process.   He also contends Hoover's tampering with evidence at the crime lab compromised the chain of custody in his case.   He seeks a new trial under the standards for newly discovered evidence.

Under Brady v. Maryland, due process is violated when, irrespective of good faith, the prosecution suppresses material evidence favorable to a defendant.²  There are three components of a Brady violation:  the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching;  the evidence must have been suppressed by the State, either willfully or inadvertently;  and the evidence must be material, that is, suppression of the evidence must have resulted in prejudice to the accused.³  Prejudice occurs “ ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’  ” ⁴ To be material, therefore, the evidence must be such that it undermines confidence in the outcome.⁵  Prejudice is determined by analyzing the evidence withheld in light of the entire record.⁶

A new trial will be granted on the basis of newly discovered evidence only when the evidence (1) will probably change the result of the trial;  (2) was discovered after the trial;  (3) could not have been discovered before trial by the exercise of due diligence;  (4) is material;  and (5) is not  merely cumulative or impeaching.⁷  These same factors apply when a personal restraint petition is brought pursuant to RAP 16.4(c)(3) which permits relief if “[m]aterial facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction.” ⁸

Sherwood contends that as employees of the crime lab, both Hoover and Boaz had a duty to disclose Hoover's misconduct, and that their failure to do so violated due process.   He relies on State v. Roche,⁹ a case involving heroin tested by Hoover, wherein we held that Hoover's conduct broke the chain of custody.¹⁰  But in Roche, Hoover was the examining chemist.   The cocaine in Sherwood's case was tested by Boaz, not Hoover, and there is no evidence whatever to indicate that Hoover ever handled the Sherwood evidence.   There is thus no evidence that Hoover's misconduct affected the chain of custody for evidence analyzed by Boaz.

Sherwood cannot show that evidence of Hoover's misconduct would probably have changed the result in his trial.   We thus find no Brady violation, and deny his request for a new trial.¹¹

The balance of this opinion has no precedential value and will not be published, but will be filed for public record pursuant to RCW 2.06.040.

FACTS

The following facts are relevant to Sherwood's other claims.   Judy Barnes, an informant who had provided reliable information to police in the past, arranged with the Lynnwood Police Department to purchase cocaine from Sherwood.   For this service she was paid $200.   Barnes was searched before she met with Sherwood and was given a $100 bill to use for the purchase.   Police watched as Sherwood walked from a motel and entered a nearby restaurant to meet Barnes.   Minutes later, Barnes left the restaurant and gave police a packet, which was later found to contain cocaine.

Sherwood was arrested with the $100 bill from Barnes on his person.   While he was being booked, a guard saw him try to conceal a packet of cocaine.   A contemporaneous search of Sherwood's motel room resulted in seizure of several documents.

At trial, Sherwood argued Barnes had duped him into accepting the $100 buy money so that she could get her payment from the police.   Sherwood contended Barnes had hidden her own cocaine on her person, had escaped detection during the pre-buy search, and then showed it to police and claimed it came from Sherwood.

Standard of Review

Sherwood must show “as to each claimed constitutional error which he did not raise on direct appeal, that he was actually prejudiced by the error.”  12  To the extent he raises issues that are not of constitutional magnitude, Sherwood must show “that the claimed error ‘constitutes a fundamental defect which inherently results in a complete miscarriage of justice.’ ” 13

Ineffective Assistance of Counsel

When a defendant claims he has been deprived of the Sixth Amendment right to effective assistance of counsel, we begin with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.14  Sherwood must establish his counsel's conduct fell below an objective standard of reasonableness, but for which the outcome would probably have been different.15

Sherwood first contends his attorney should have investigated exactly what benefits Barnes received from her cooperation with police.   He contends that such efforts would have led to Harold Bain. Bain had been arrested in another case in which Barnes acted as a confidential informant.   Bain's affidavit states that Barnes told him she became an informant because police promised not to press drug charges against her, and that police were pressuring her “to do whatever she could to bust Jack [Sherwood].” 16

Bain's uncorroborated statement about what Barnes allegedly told him is the only evidence that Barnes was working off any charges.   At Sherwood's trial, both Barnes and the detective in charge of the controlled buy testified that Barnes' cooperation was given in exchange for a $200 payment.   Detective Richardson also submitted an affidavit in which he denies Barnes ever worked off any charges.

Barnes' affidavit is inadmissible hearsay.   Sherwood argues that it falls within an exception for evidence of state of mind, and suggests it proves Barnes' state of mind.   But it is unclear how Barnes' statement recounting her recitation of facts can be evidence of her state of mind.   The statement Barnes allegedly made does not reveal any bias on Barnes' part against Sherwood, and no other relevance to Barnes' state of mind is apparent.17  Rather, Sherwood seeks to use Bain's statement to impeach Barnes about the benefits received for her testimony, thereby creating a Brady issue.   For this purpose, however, the statement is simply inadmissible hearsay.18  Sherwood has shown neither a Brady violation nor ineffective assistance of counsel regarding Barnes.

Sherwood also contends his attorney should have interviewed Charlotte Bliss, thereby discovering that Bliss did not consent to the search of Sherwood's motel room, and should then have moved to suppress the documentary evidence seized there.   Documents found in the room included a superior court order continuing the trial date in a matter entitled State v. Sherwood, three motel receipts in Sherwood's name with telephone charges, and a notice from the Department of Licensing requiring payment of several fines to reinstate Sherwood's license.   The superior court order and Department of Licensing letter were admitted as relevant to the bail jumping charge, and the motel receipts were admitted to show Sherwood's identity and control over the motel room.

On direct appeal, Sherwood made a similar argument, as to the bail jumping charge only.   We held that he failed to show prejudice from admission of the documents.   Sherwood now argues the documents were prejudicial as to the possession and delivery charges.   We disagree.   Motel receipts dated months apart, phone bills of under $50, and evidence of unpaid traffic fines would not make a jury more likely to convict a person of drug crimes and bail jumping.   The trial continuance order did not identify the nature of the charges, and the jury already knew that multiple charges had been brought against Sherwood.   Further, the independent evidence of Sherwood's participation in the controlled buy was substantial, and included the officers' observations, Sherwood's possession of the marked buy money, and Sherwood's possession of two packets of cocaine.   Sherwood has not shown that suppression of the documents would likely have led to a different result on the drug charges.   He was not denied a fair trial by ineffective assistance of counsel.

Benefits to Informant

Sherwood contends the State violated his due process rights under Brady by failing to disclose benefits granted to informant Barnes in exchange for her cooperation with police.   His allegation that Barnes cooperated with police in order to work off pending drug charges is based entirely on the uncorroborated hearsay statement of Harold Bain. As previously discussed, Bain's affidavit is inadmissible as evidence of Barnes' arrangement with police.   The State denies there was any such deal and denies it suppressed any such evidence.   In the absence of admissible evidence, Sherwood establishes no Brady violation.

Sherwood also contends the prosecutor should have disclosed that she arranged to delay service of a bench warrant for Barnes' arrest for failure to appear or pay a driving with suspended license fine.   Sherwood argues that this was relevant to impeaching Barnes's testimony, and shows that Barnes was receiving more than just money for her information and testimony.   Sherwood relies on Benn v. Lambert,19 in which the court found a Brady violation where the State failed to disclose evidence that (among other things) the prosecutor had elected not to file charges against an informant on multiple occasions, and had also postponed issuing a warrant for the informant's arrest on probation violations.

Here, there is no evidence the State forbore to file charges against Barnes.   She was admittedly a drug user, but that fact was known to Sherwood.   As to the warrant, the prosecutor did not postpone issuance of a warrant.   Rather, she took steps to delay its execution for one week, until Barnes' scheduled appearance date.   We agree with Sherwood that this was a benefit to Barnes and should have been disclosed.   But the benefit was minor, and there is no indication it provided Barnes with a motive to lie in her testimony.20  Unlike the situation in Benn, this was not just one of many significant benefits the prosecution failed to disclose;  it was the only undisclosed benefit, and has no significance in the total picture here.   It is therefore not material in the constitutional sense,21 and failure to disclose it did not prejudice Sherwood.

Missing Witness Instruction

Sherwood contends that because Detective Richardson could not remember which of four prison guards searched Barnes prior to the controlled buy, the court was required to give a missing witness instruction.22  To raise this non-constitutional issue, Sherwood must show that the alleged error was a fundamental defect that resulted in a complete miscarriage of justice. 23

The missing witness doctrine holds that where “ ‘evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and ․ he fails to do so,-the jury may draw an inference that it would be unfavorable to him.’  ” 24 The missing witness inference is not available where the testimony of the witness would be unimportant or cumulative.25  Nor does the doctrine apply where the witness is equally available to both parties.26

The witness was not missing, and was not in the control of the State.   Sherwood could have interviewed all four of the guards who regularly performed searches, or even called all four to testify.   Sherwood was not entitled to a missing witness instruction.   Further, it is likely the testimony would have been cumulative.   Barnes and Detective Richardson both testified that the search took place, and a second police officer testified that such searches were routine.

Confrontation Violation

On direct appeal, we held that the trial court erred in admitting Detective Richardson's hearsay testimony that the guard who searched Barnes reported that Barnes did not have any drugs or money on her person.   In the face of overwhelming untainted evidence, however, we concluded this error was harmless.   Sherwood raises this issue again, and contends he may relitigate it because on direct appeal we did not apply the constitutional error standard of review, under which an error must be “harmless beyond a reasonable doubt.”  27  We need not resolve whether Sherwood may raise this issue now, because the error was harmless under either standard.

Proof of Prior Convictions

Sherwood's maximum sentence was increased due to a prior drug conviction from 120 to 144 months under RCW 69.50.408.   Sherwood argues that his sixth amendment and due process rights were violated by the State's failure to charge and prove his prior conviction before a jury.28  This argument is foreclosed by the Supreme Court's decision in Almendarez-Torres v. United States.29

Ineffective Assistance of Counsel on Appeal

Sherwood argues that his counsel was ineffective on direct appeal for failing to raise the missing witness instruction, confrontation clause violation, and sentencing issues.  “In order to prevail on an appellate ineffective assistance of counsel claim, petitioners must show that the legal issue which appellate counsel failed to raise had merit and that they were actually prejudiced by the failure to raise or adequately raise the issue.” 30  As discussed above, none of the cited issues has merit.   Sherwood was not prejudiced by his counsel's failure to raise them.31

Sherwood's personal restraint petition is denied.

FOOTNOTES

1.   State v. Sherwood, noted at 98 Wash.App. 1058, 2000 WL 16932 (2000).

2.   Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

3.   Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

4.   Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

5.   Benn v. Lambert, 283 F.3d 1040, 1057 (9th Cir.), cert. denied, 537 U.S. 942, 123 S.Ct. 341, 154 L.Ed.2d 249 (2002).

6.   Benn, 283 F.3d at 1057.

7.   State v. Williams, 96 Wash.2d 215, 223, 634 P.2d 868 (1981).

8.   State v. Harper, 64 Wash.App. 283, 292-93, 823 P.2d 1137 (1992).

9.   114 Wash.App. 424, 59 P.3d 682 (2002).   Sherwood also relies on Roche's adoption of the Snohomish County Prosecutor's Office policy memorandum (Downes memorandum) which required dismissal of all drug possession cases that did not have both a positive field test and a good confession as to the identity of the substance.  Roche, 114 Wash.App. at 439, 59 P.3d 682.   The Downes memorandum, however, applied only to cases in which Hoover had conducted the drug tests.

10.   Roche, 114 Wash.App. at 437, 59 P.3d 682.

11.   See Williams, 96 Wash.2d at 222-23, 634 P.2d 868.

12.   In re Personal Restraint of Rice, 118 Wash.2d 876 at 884, 828 P.2d 1086 (1992).

13.   Rice, 118 Wash.2d at 884, 828 P.2d 1086 (quoting In re Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990)).

14.   In re Personal Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

15.   Pirtle, 136 Wash.2d at 487, 965 P.2d 593.

16.   Personal Restraint Petition, App. G at 2.

17.   See ER 803(a)(3).

18.   See ER 801(d)(1).

19.   283 F.3d 1040, 1057 (9th Cir.), cert. denied, 537 U.S. 942, 123 S.Ct. 341, 154 L.Ed.2d 249 (2002).

20.   See Benn, 283 F.3d at 1058.

21.   See Brady, 373 U.S. at 87, 83 S.Ct. 1194;  see also State v. Blackwell, 120 Wash.2d 822, 828, 845 P.2d 1017 (1993) (mere possibility undisclosed evidence might have helped the defense or might have affected the outcome of the trial does not establish materiality in the constitutional sense).

22.   The “missing witness” instruction reads as follows:If a party does not produce the testimony of a witness who is [within the control of] [or] [peculiarly available to] that party and as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness, and if that party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such an inference is warranted under all the circumstances of the case.11 Washington Pattern Jury Instructions:  Criminal 5.20, , at 130 (2d ed.1994).

23.   See Rice, 118 Wash.2d at 884, 828 P.2d 1086.

24.   State v. Blair, 117 Wash.2d 479, 485-86, 816 P.2d 718 (1991) (quoting State v. Davis, 73 Wash.2d 271, 276, 438 P.2d 185 (1968)).

25.   Blair, 117 Wash.2d at 489, 816 P.2d 718.

26.   Blair, 117 Wash.2d at 490, 816 P.2d 718.

27.   Lilly v. Virginia, 527 U.S. 116, 140, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

28.   See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

29.   523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (constitutionally permissible to increase statutory maximum penalty by judicial finding of prior conviction).

30.   In re Maxfield, 133 Wash.2d 332, 344, 945 P.2d 196 (1997) (citing In re Personal Restraint of Lord, 123 Wash.2d 296, 314, 868 P.2d 835 (1994)).

31.   For these reasons, we also reject Sherwood's claim of cumulative error.

ELLINGTON, J.