Appeal from Superior Court of King County. Docket No: 90-1-07512-1. Date filed: 03/30/92. Judge signing: Hon. Ricardo Martinez.
Rehearing Denied July 8, 1997,
Authored by H. Joseph Coleman. Concurring: Walter E. Webster, Faye C. Kennedy.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- Kenneth Dows was convicted of first degree rape with a deadly weapon after a jury trial in which he was represented by Robert Egger. Egger has subsequently been diagnosed as suffering from advanced Alzheimer's disease. Dows appeals his conviction and the denial of his motion for a new trial, arguing that he was denied the effective assistance of counsel. Because there is insufficient evidence to establish that Egger's performance was constitutionally deficient, we affirm Dows' conviction.
On the night of June 30, 1990, M.A. attended a Charlie Musselwhite concert at the Ballard Firehouse. At around 12:30 a.m., M.A. saw a man showing pictures of himself with Musselwhite to other concert attendees.
After the man unsuccessfully tried to play with Musselwhite's band, he gave Musselwhite his name, phone number, and address. The man left the bar before the concert ended.
When the concert was over, M.A. walked outside and saw the same man in a large maroon car. The man offered M.A. a ride, but she declined and walked away. While M.A. was trying to find her car, the man drove by again. Minutes later, he appeared on foot and put his arm around M.A. When M.A. rebuffed his advances, the man held a knife to her ribs. He then raped and beat M.A. repeatedly.
M.A. told the police that she had seen her assailant showing photographs during the concert. She described the rapist as a 5'5", slender man. Being a portrait artist, M.A. drew a sketch depicting the rapist with blond hair and a bushy beard. She also said that he had been wearing jeans, a white shirt, and a gold watch. Musselwhite informed the police that the man with the photographs had been Dows. M.A. later identified Dows in a photo montage.
The State charged Dows with first degree rape and a deadly weapon allegation. Trial was set for January 6, 1992. On January 3, 1992, Dows' appointed counsel withdrew when Dows retained Egger. Although he had only three days to prepare for trial, Egger felt ready when trial began. Because Dows had a number of prior convictions, Egger stated that Dows would not take the stand.
At trial, M.A. testified that she had no doubts that Dows was the man who had raped her. At one point on direct examination, she referred to the photo montage as consisting of "mug shots," violating a court order granting Egger's motion in limine. Egger immediately requested a sidebar. He elected not to move for a mistrial because he felt the case was going well. Dows agreed but was allowed to make a statement that he hoped the court would assure a fair trial. Egger did not ask the court to admonish M.A., reasoning that it would merely highlight that the police had a mug shot of Dows on file. Egger later subjected M.A. to a lengthy cross examination. His questions focused on various inconsistencies in M.A.'s statements, such as the color of the rapist's car and watch and the fact that Dows is 5'10" rather than 5'5".
The State called six other witnesses to testify, and Egger waived cross examination of all but John Baptise, the promoter at the Ballard Firehouse. Egger elicited admissions that there may have been a number of men with beards at the Musselwhite concert and that Baptise could not positively identify Dows. Egger did not cross-examine M.A.'s boyfriend, Musselwhite, a police officer, a police detective, or an emergency room doctor.
After the State rested, Egger called Dows' sister, mother, and brother. The sister and mother testified that Dows had been at his sister's wedding earlier in the day of June 30, 1990, and that he had worn a blue blazer, a tie, and slacks. Todd Dows, the defendant's brother, testified that he had met Dows at a tavern in the early evening of June 30, 1990. Todd stated that he and his brother had been at the Lion's Lair tavern for most of the evening. He testified that they had driven Dows' gold car to the Ballard Firehouse at about 11:00 p.m. and that he waited in the car while Dows went inside for half an hour.
According to Todd, the two of them returned to the Lion's Lair at about midnight and remained together until 2:30 a.m.
Egger also called Anne Harper, who had been Dows' appointed counsel before Dows hired Egger. Harper testified that at a pretrial interview, M.A. had confused some of the events of her recent rape with a prior rape in 1978. In closing argument, Egger argued that this confusion allowed an inference that M.A. ...