FILED
CO117‘,1" OF APPEALS DIV I
VAStittiGIC.1!
ST/SE OF
2011 VIM -1 11: 01
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 73850-0-1
)
Respondent, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
DERRIUS D. FORCHA-WILLIAMS, )
)
Appellant. ) FILED: May 1, 2017
)
MANN, J. — Derrius Forcha-Williams was charged with one count of first degree
rape, second degree assault, and the lesser included offenses of second degree rape
and third degree assault. At trial, the victim, P.C., testified inconsistently about the
types of intoxicants she consumed the day of the assault. When confronted with the
inconsistent statements, she stated she did not remember making them. Forcha-
Williams was found guilty of second degree rape. Forcha-Williams argues on appeal
that he was denied effective assistance of counsel when his attorney failed to follow the
correct procedure necessary to allow impeachment of P.C. We disagree and affirm the
trial court.
No. 73850-0-1/2
I
In December 2012, P.C. was homeless. On the morning of December 3, 2012, a
man, later identified as Forcha-Williams orally and vaginally raped P.C. in the dumpster
area behind a restaurant in Federal Way. During the course of the attack, Forcha-
Williams put P.C. in a chokehold from behind, kicked her, hit her several times in the
body, and hit her in the right eye.
After Forcha-Williams left the dumpster area, P.C. went into a nearby Jack in the
Box. One employee took P.C. to the bathroom while another called 911. After giving a
formal statement to a police officer, P.C. was transported by ambulance to the hospital.
At the hospital, Detective Kristopher Krusey asked P.C. if she was "intoxicated or
impaired from using any kind of drug or alcohol." P.C. told Krusey that "she had a few
beers that morning" and that "she had recently used OxyContin earlier that night and
also took an unknown blue pill that was given to her by an unknown subject not involved
in the sexual assault." Urinalysis and blood testing two hours after the incident
indicated that amphetamine, cocaine, and cannabis were present in her system. No
other detectable substance was found, such as alcohol or oxycodone. The
deoxyribonucleic acid (DNA)analysis of P.C.'s rape kit revealed the presence of DNA
from only two people: P.C. and Forcha-Williams. The forensic scientist testified that the
probability of selecting an unrelated individual from the U.S. population with a matching
profile was 1 in 3.4 sextillion.
In February 2013, the police arrested Forcha-Williams. The State charged
Forcha-Williams with one count of rape in the first degree and one count of assault in
the second degree.
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Before trial, Forcha-Williams sought to admit P.C.'s recent drug and alcohol use,
arguing the recent drug use was relevant to P.C.'s ability to accurately perceive and
remember the alleged incident. The State conceded P.C.'s recent drug use was
relevant to P.C.'s perception and memory of the events. The trial court agreed and
admitted evidence of P.C.'s use of intoxicants near the time of the alleged incident. In
her trial testimony, P.C. acknowledged consuming methamphetamine, cocaine, and
alcohol the day before the alleged incident. P.C. testified that she did not consume any
intoxicating substances after 6 p.m. the evening before the alleged incident. P.C.
denied feeling the effects of the drugs at the time of the incident.
During cross-examination, defense counsel questioned P.C. about her use of
intoxicants in the hours before the alleged incident, asking if she remembered talking to
Krusey, and if she remembered telling one of the officers that she "had a few beers,"
"had had some Oxy," and "had taken a blue bill" that morning. P.C. said that she did
not remember telling an officer that she had consumed any beers, done "Oxy", or had
taken a "blue pill." In addition, she was unable to say what the blue pill would have
been, responding, "[t]he only blue pill I know of is not for women." She also stated that
she does not do "Oxy." P.C. was not asked to confirm or deny whether she made the
statements to Krusey. Defense counsel did not attempt to admit extrinsic evidence of
the prior inconsistent statements at that time.
Throughout P.C.'s testimony, she was unable to remember several events from
that day, such as riding in an ambulance and being photographed by officers. P.C. did
add that her not remembering "doesn't mean it didn't happen." On redirect examination,
P.C. also indicated that she did not remember whether she had anything to drink on the
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No. 73850-0-1/4
day of or the day before the incident. Only that, at the time of the incident, she was not
feeling the effects of any drugs or alcohol.
Krusey testified two days after P.C. On cross-examination, defense counsel
questioned Krusey about what P.C. had told him at the hospital. Krusey was asked
whether P.C. told him that she had used drugs or alcohol on the morning of the incident.
Krusey confirmed that P.C. told him that she had consumed "a few beers that morning."
The prosecutor objected to Krusey's testimony as hearsay. The objection was
sustained. The prosecution did not move to strike the testimony, and the jury was not
instructed to disregard it.
Defense counsel requested a hearing outside the presence of the jury. Defense
counsel argued that his questions to Krusey were proper impeachment under ER 607
because P.C. either denied her statements to Krusey or claimed she did not have an
independent memory of them. The trial court confirmed its original ruling sustaining the
prosecutor's objection, and ruled that because P.C. testified only that she did not recall
making the statements, any impeachment was on the collateral matter of P.C.'s
memory. Defense counsel never requested for P.C. to be recalled as a witness so that
proper foundation could be established to admit extrinsic evidence of her inconsistent
statements.
At the end of trial, the jury found Forcha-Williams guilty of the lesser offense of
second degree rape. Forcha-Williams appeals.
II
Forcha-Williams argues on appeal that he was denied effective assistance of
counsel when his attorney failed to follow the correct procedure necessary to allow
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No. 73850-0-1/5
impeachment of P.C. using her prior inconsistent statements regarding the type of
intoxicants she was on the morning of the attack. We disagree.
Every accused person has a constitutional right to the effective assistance of
counsel. U.S. Const. Amend. VI; Const. art. 1, § 22; Strickland v. Washington, 466 U.S.
668,685-86, 104 S. Ct. 2052, 80L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17,
32, 246 P.3d 1260 (2011). The burden is on the defendant to demonstrate his counsel
was constitutionally ineffective. Grier, 171 Wn.2d at 33. We review ineffective
assistance of counsel challenges de novo. State v. Mitchell, 190 Wn. App. 919, 927-28,
361 P.3d 205 (2015), review denied, 185 Wn.2d 1024, 377 P.3d 709(2016).
To prevail on a claim of ineffective assistance, Forcha-Williams must show (1) his
attorney's representation was deficient and (2) Forcha-Williams was prejudiced,
meaning there is a reasonable probability that the result of the trial would have been
different absent the challenged conduct. Strickland, 466 U.S. at 687-88.
Performance is deficient if it falls "below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. A defendant alleging ineffective
assistance must overcome "a strong presumption that counsel's performance was
reasonable." State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). "When
counsel's conduct can be characterized as legitimate trial strategy or tactics,
performance is not deficient." Kyllo, 166 Wn.2d at 863. "A criminal defendant can rebut
the presumption of reasonable performance by demonstrating that 'there is no
conceivable legitimate tactic explaining counsel's performance." Grier, 171 Wn.2d at
33(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80(2004)). "A fair
assessment of attorney performance requires that every effort be made to eliminate the
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No. 73850-0-1/6
distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time."
Strickland, 466 U.S. at 689.
To satisfy the prejudice prong, the defendant must establish that "there is a
reasonable probability that, but for counsel's deficient performance, the outcome of the
proceedings would have been different." Kyllo, 166 Wn.2d at 862. "A reasonable
probability is a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694. The defendant "need not show that counsel's deficient
conduct more likely than not altered the outcome in the case." State v. Thomas, 109
Wn.2d 222, 226, 743 P.2d 816(1987)(quoting Strickland, 466 U.S. at 693)).
The trial court here ruled that defense counsel could not admit extrinsic evidence
of P.C.'s prior statements to Krusey because defense counsel only asked P.C. whether
she "remembered" telling Krusey that she had consumed a couple of beers that
morning, used OxyContin earlier that night, and had taken an unknown blue pill. The
trial court found that because counsel did not specifically ask P.C. whether she had
made the prior statement, any extrinsic evidence would only be on the "collateral matter
of her inability to recall."
"Evidence offered to impeach is relevant only if(1) it tends to cast doubt on the
credibility of the person being impeached, and (2)the credibility of the person being
impeached is a fact of consequence to the action." State v. Allen S., 98 Wn. App. 452,
459-60, 989 P.2d 1222(1999). To impeach a witness with a prior inconsistent
statement under ER 613(b), the witness must be given an opportunity to admit or deny
the statement and to explain it. This can be done either before or after the extrinsic
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No. 73850-0-1/7
evidence is introduced. State v. Horton, 116 Wn. App. 909, 916,68 P.3d 1145(2003)
(citing State v. Johnson, 90 Wn. App. 54, 950 P.2d 981 (1998)). If the witness is asked
before the extrinsic evidence is admitted, and admits making the prior statement,
extrinsic evidence of the statement is cumulative and thus inadmissible. State v.
Babich, 68 Wn. App. 438, 443, 842 P.2d 1053(1993). If the witness denies making the
prior statement, extrinsic evidence of the statement is admissible unless it concerns
only a collateral matter. If the witness is not asked about the statement during direct or
cross-examination, impeachment may still be accomplished at a later point so long as
arrangements are made for the witness to be recalled. Horton, 116 Wn. App. at 915-16.
This court held in Horton that a defense counsel's failure to comply with
ER 613(b) regarding the use of extrinsic evidence for a prior inconsistent statement,
may fall below an objective standard of reasonableness depending on the particular
facts and circumstances of the case. Horton, 116 Wn. App. at 917.
The defendant in Horton was charged with rape of a 13-year-old child, S.S. A
medical examination of S.S. found "penetrating trauma to the hymen." Horton, 116 Wn.
App. at 911. Prior to trial, S.S. told a Child Protective Services(CPS) investigator that
she had been having sexual intercourse with a boy. Defense counsel also interviewed
one of S.S.'s friends that reported that S.S. had been bragging about having sexual
intercourse with a boy, M.P. Horton, 116 Wn. App. at 913. At trial, the prosecutor
asked S.S. whether she had engaged in sexual intercourse with any person other than
the defendant. She responded:"No." Horton, 116 Wn. App. at 913. Defense counsel
then asked S.S. during cross-examination to confirm that she had told the prosecutor
during direct examination that she had not engaged in sexual intercourse with anyone
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No. 73850-0-1/8
other than the defendant. Defense counsel did not ask S.S. to explain or deny her prior
statements to the CPS investigator or her friend, nor did she ask the court to have S.S.
remain in attendance. Horton, 116 Wn. App. at 913.
In Horton, the defense counsel wanted to call the CPS investigator and S.S.'s
friend to relate S.S.'s pretrial statements about sexual activity with M.P. The trial court
sustained the State's motion to exclude the testimony because defense counsel had not
complied with ER 613(b). Horton, 116 Wn. App. at 914. On appeal, the court held that
defense counsel's failure to properly impeach the victim fell below the objective
standard for reasonableness. Horton, 116 Wn. App. at 916-17. The court held,
"noncompliance with ER 613(b) was entirely to Horton's detriment; . . . compliance with
ER 613(b) would have been only to his benefit; and thus.. . counsel's noncompliance
could not have been a strategy or tactic designed to further his interests." Horton, 116
Wn. App. at 916-17.
Forcha-Williams contends that, like Horton, defense counsel's failure to follow the
proper procedure to admit the extrinsic evidence, and failure to recall P.C. in order to do
so, was constitutionally deficient performance. But here, unlike Horton, defense
counsel asked P.C. during cross-examination whether she remembered telling one of
the officers that she "had a few beers," "had some Oxy," and "had taken a blue bill" that
morning. P.C. said that she did not remember telling an officer that she had consumed
any beers, done "Oxy", or had taken a "blue pill." Defense counsel correctly laid the
foundation for Krusey's subsequent extrinsic evidence testimony. While Forcha-
Williams does not assign error to the trial court's decision, arguably, the trial court erred
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No. 73850-0-1/9
in sustaining the State's objection and not admitting Krusey's testimony to impeach P.C.
on her inconsistent statements.
This case is consistent with this court's decision in State v. Newbern, 95 Wn.
App. 277, 293-94, 975 P.2d 1041 (1999). In Newbern, the State followed a similar
impeachment process as the defense counsel attempted in this case. The State
questioned the witness about prior inconsistent statements she made in an interview,
and, in response, the witness claimed to have no memory of the interview. Newbern,
95 Wn. App. at 282. The trial court then permitted the State to impeach this witness
with extrinsic evidence by calling the other party to the interview to testify about what
had been said, and play a recording of the interview. Newbern, 95 Wn. App. at 282.
On appeal, the court reasoned that when a witness's prior statement is
inconsistent with her testimony at trial, but the witness responds by saying that she
does not remember making the statement, extrinsic evidence of the prior statement
remains admissible for impeachment purposes. Newbern, 95 Wn. App. at 293-94.
"This is because the purpose of using prior inconsistent testimony to impeach is to allow
an adverse party to show that the witness tells different stories at different times."
Newbern, 95 Wn. App. at 293. "Even if a witness cannot remember making a prior
inconsistent statement, if the witness testifies at trial to an inconsistent story, the need
for the jury to know that this witness may be unreliable remains compelling." Newbern,
95 Wn. App. at 293.
In this case, the trial court erroneously focused on the form of defense counsel's
question,"do you remember saying" compared to "did you say," and held that the form
of the question meant the only available evidence for impeachment went to P.C.'s ability
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No. 73850-0-1/10
to remember the interview. Such a differentiation is unnecessary. Either way, defense
counsel asked P.C. about the statements during cross-examination and afforded her the
opportunity to confirm, deny, or explain those statements in accordance with ER 613(b).
In response, she said she did not remember making the statements, and at one point
went further saying she does not "do oxy." P.C. testifying that she did not remember the
interview is the functional equivalent of a denial for the purposes of impeachment, and
defense counsel should have been permitted to admit extrinsic evidence after P.C. left
the stand to impeach her credibility regarding her inconsistent story. Because defense
counsel followed the proper impeachment process, his actions were not deficient.
Forcha-Williams also contends that defense counsel's conduct was deficient
because he failed to remedy the ruling by recalling P.C. so that he might question her in
the way described by the trial court, then admit the extrinsic evidence. Forcha-Williams
argues that this case is similar to Horton, as "there [was] no conceivable legitimate
tactic explaining counsel's performance." Grier, 171 Wn.2d at 33; Horton, 116 Wn. App.
at 916-17. We disagree.
Defense counsel's conduct did not fall "below an objective standard of
reasonableness" because defense counsel could reasonably have determined that
recalling P.C. was unnecessary. The jury was already aware of the evidence that P.C.
had told a detective that she had consumed beer, OxyContin, and a blue pill on the
morning of the incident. While P.C. testified that she did not remember making the
statement, she also testified that she did not remember doing several other things that
were uncontested facts, such as riding in an ambulance and being photographed by
officers. Moreover, when defense counsel questioned Krusey about the interview,
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No. 73850-0-1/1 1
Krusey was able to confirm that P.C. told him that she had consumed several beers
before the prosecutor could object. That statement was not stricken from the record.
"When an objection is sustained with no further motion to strike the testimony and no
further instruction for the jury to disregard the testimony, the testimony remains in the
record for the jury's consideration." State v. Stackhouse, 90 Wn. App. 344, 361, 957
P.2d 218 (1998).
Likewise, defense counsel's conduct can reasonably be characterized "as
legitimate trial strategy or tactics" as the defense could have determined that recalling
P.C. to the stand might have harmed the defense more than it would have helped.
KvIlo, 166 Wn.2d at 863. Recalling P.C. would have allowed defense counsel the
opportunity to again impeach her credibility, however, it would also give the State an
opportunity to have P.C. explain why she may not remember the interview, which would
likely encourage more highly prejudicial testimony about the severity of the attack and
her injuries.
Forcha-Williams also cannot demonstrate that he was prejudiced by the entirety
of this evidence not being admitted. As stated above, substantial evidence made it into
the record and was available for the jury to consider. Evidence in the record had
already fulfilled the purpose of demonstrating P.C.'s lack of memory and inconsistency
in relaying the facts to detectives and at trial. The evidence was not available for any
other purpose, such as to prove that P.C. had taken these intoxicants. Prior
inconsistent statements are offered solely to show the witness is not truthful, such
evidence may not be used to argue that the facts contained in the prior statement are
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No. 73850-0-1/12
substantively true.1 State v. Burke, 163 Wn.2d 204, 219, 181 P.3d 1 (2008).
Considering all of the evidence, Forcha-Williams has failed to demonstrate there is a
reasonable probability that, had defense counsel found a way to admit the evidence in
its entirety, the outcome of the proceedings would have been different.
Ill
Finally, Forcha-Wlliams asks that no costs be awarded on appeal. Appellate
costs are generally awarded to the substantially prevailing party on review. However,
when a trial court makes a finding of indigency, that finding remains throughout review
"unless the commissioner or clerk determines by a preponderance of the evidence that
the offender's financial circumstances have significantly improved since the last
determination of indigency." RAP 14.2. Here, Forcha-Williams was found indigent by
the trial court. If the State has evidence indicating that Forcha-Williams' financial
circumstances have significantly improved since the trial court's finding, it may file a
motion for costs with the commissioner.
We affirm.
r(414.tet
WE CON :
Even if it could, the record also included urinalysis and blood testing that indicated that
amphetamine, cocaine, and cannabis were present in P.C.'s system, but no other detectable substance
was found, such as alcohol or oxycodone. This evidence explicitly refuted any statement by P.C. that she
had consumed any of the intoxicants she listed to Detective Krusey.
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