Appeal from Superior Court of King County. Docket No: 94-1-01415-0. Date filed: 09/21/94. Judge signing: Hon. John M. Darrah.
Petition for Review Denied July 8, 1997,
Authored by H. Joseph Coleman. Concurring: Faye C. Kennedy, Walter E. Webster.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- Ted Williams appeals his conviction for first degree rape of a child and first degree child molestation. The trial court ruled that Williams' prior convictions could be used for impeachment if he testified at trial. Williams did not take the witness stand. He claims that he was denied effective assistance of counsel because his failure to testify precluded appellate review of the ER 609 ruling. He also claims that his attorney was ineffective by asking a defense witness if Williams had ever molested her child, raising an inference of doubtful tactical value. Williams also appeals his exceptional sentence, which was based on the fact that he violated a condition of his release pending sentencing for another child molestation conviction. Because Williams has failed to show ineffective assistance, we affirm his conviction. We also affirm his exceptional sentence because the violation of a no-contact order during the commission of a crime is a proper aggravating factor.
Williams became romantically involved with SS in August 1993. SS lived with her 10-year-old daughter, MJ. By the beginning of October 1993, Williams began spending the night regularly at SS's apartment. One night, SS went upstairs and saw Williams coming out of MJ's bedroom with a bottle of rubbing alcohol. Williams explained that he was fixing something in MJ's room, but her lights were off when he came out into the hall.
On September 1, 1993, Williams had entered an Alford plea to a charge of third degree child molestation. SS was not aware of this conviction. As a condition of Williams' release from custody pending sentencing, the court ordered that he have no contact with minors. On October 22, 1993, the court sentenced Williams to 13 months of incarceration. SS believed that Williams was incarcerated for a drug offense. But in January 1994, SS's hair dresser told her that Williams was in fact serving a sentence for child molestation. On the hair dresser's advice, SS asked MJ if Williams had ever touched her, and MJ told her that Williams had come into her room on several nights and put his fingers inside her vagina.
The State charged Williams with three counts of rape of a child in the first degree and, alternatively, three counts of child molestation in the first degree. The court ruled that Williams' prior convictions for possession of a controlled substance and child molestation could be used to impeach Williams if he took the stand, stating:
On the 609 issue, I'm satisfied that I've taken all the factors into consideration. All except one, really, are on the side of admission, particularly on the state's issue to have that evidence available.
One factor that weighs against it is the type of case, the same offense. And for that reason, I simply will require that if it is referred to, it is referred to as a nameless felony. The court also ruled that SS could not testify that the hair dresser told her of Williams' incarceration for molesting a child. SS could only state that a trusted friend had given her good reason to question MJ about Williams.
Williams did not testify at trial. His attorney called three witnesses in an attempt to establish an alibi defense. Ellan Starks, who was also romantically involved with Williams from September to November 1993, testified that she was constantly with Williams during the relevant time. After establishing that Starks' daughter had previously been molested, defense counsel asked if her daughter had ever complained about Williams and whether Starks believed Williams had ever molested her daughter. Because the prosecutor's objections to both questions were sustained, Starks was not permitted to answer. Defense counsel also called Michael Carter, Williams' co-worker, who corroborated Starks' testimony that she and Williams were often together in the fall of 1993. Chad Buggs, a long-time friend of Williams', testified that Williams had slept at his apartment almost every night from late August to October 1993.
The jury returned a guilty verdict on one count of first degree rape of a child and two counts of second degree child molestation. At sentencing, the court imposed an exceptional sentence, adding 100 months to the top of the standard range of each count. *fn1 The court based its sentence on the fact that by molesting MJ, Williams had violated the conditions of his release pending sentencing in the earlier child molestation case. The court found that this demonstrated a greater disregard for the law and enhanced culpability, creating a substantial and compelling reason to deviate from the standard sentencing range.
We first address whether defense counsel's failure to call the accused to testify constitutes ineffective assistance of counsel because the defendant, by not testifying, is precluded from appealing an allegedly erroneous ER 609 ruling allowing impeachment by prior convictions. See State v. Brown, 113 Wash. 2d 520, 539-40, 782 P.2d 1013, 80 A.L.R.4th 989 (1989). Williams claims that because the court did not conduct a sufficient balancing of prejudice and probative value on the record, the ER 609 ruling was clearly reversible but for his failure to testify. He argues that a reasonable attorney would have realized this and preserved the issue for appeal. We disagree. The decision not to call Williams to the stand was an objectively reasonable tactical choice that avoided damaging impeachment by Williams' prior convictions.
The effective assistance of counsel is guaranteed to all criminal defendants by the Sixth Amendment to the U.S. Constitution and Washington constitution article 1, section 22. The purpose of the guarantee is to ensure a fair and impartial trial. E.g., State v. Osborne, 102 Wash. 2d 87, 99, 684 P.2d 683 (1984). To prevail on an ineffective assistance claim, the defendant must satisfy the 2-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The defendant must show: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; State v. Thomas, 109 Wash. 2d 222, 225, 743 P.2d 816 (1987). Regarding the first prong, there is a strong presumption that counsel's performance was reasonable, which can be overcome only be a showing that it fell below an objective standard of reasonableness considering all the circumstances. Thomas, 109 Wash. 2d at 226. The prejudice requirement of the second prong is met only by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Williams has failed to show that the decision not to call him to the stand was unreasonable. The decision to call a witness is generally a matter of trial tactics that will not support an ineffective assistance claim. Thomas, 109 Wash. 2d at 230; State v. Byrd, 30 Wash. App. 794, 799, 638 P.2d 601 (1981). A defendant who merely follows counsel's tactical advice not to testify cannot later complain that his attorney was ineffective. State v. King, 24 Wash. App. 794, 799, 638 P.2d 601 (1981). A criminal defendant does have an absolute right to testify on his behalf, however, and this right cannot be abrogated by defense counsel. King, 24 Wash. App. at 499. If the record supported Williams' assertion that counsel prevented him from testifying against his wishes, a basis for reversal would exist. But while Williams alleges that this occurred in his pro se brief, there is no support for this assertion in the record. *fn2 The determination of counsel's competence must be made solely from the record on appeal. State v. White, 81 Wash. ...