In re Meredith

In re the Personal Restraint Petition of: GARY DANIEL MEREDITH Petitioner.

No. 46671-6-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

March 5, 2019

UNPUBLISHED OPINION

MELNICK, J. — Gary Meredith filed this personal restraint petition (PRP) for relief from his convictions for rape of a child in the second degree and communicating with a minor for immoral purposes.

Meredith asserts that his restraint is unlawful because (1) the trial court erroneously denied his for cause challenge of a juror, (2) the trial court erroneously admitted his prior convictions, (3) the limiting instruction on the prior convictions was insufficient, (4) the trial court erroneously denied his motion to sever the counts, (5) his offender score was erroneously calculated, (6) the State engaged in prosecutorial misconduct, (7) he received ineffective assistance of trial and appellate counsel, and (8) the trial court's errors amounted to cumulative error. In the alternative, Meredith petitions us for an evidentiary hearing. We deny Meredith's PRP and his request for an evidentiary hearing.

FACTS

I. FACTUAL BACKGROUND¹

In 1996, the State charged Meredith with rape of a child in the second degree and communication with a minor for immoral purposes. BL (age 12) was the victim of the rape charge, and AB (age 13) was the victim of the communication charge.

A jury convicted Meredith of both counts. Meredith then absconded and did not appear for his scheduled sentencing hearing in July 1996. The court issued a bench warrant for Meredith's arrest. Twelve years later, Meredith was arrested and extradited to Washington. In November 2008, the trial court entered judgment and imposed a 198-month sentence.

II. PRETRIAL MOTIONS AND VOIR DIRE

Both parties made several pretrial motions. The State moved to admit Meredith's prior convictions for rape in the third degree and assault in the third degree with sexual motivation. The State argued the convictions were admissible both as an element of communicating with a minor and under ER 404(b). Meredith argued that his prior convictions were admissible only for sentencing purposes and were inadmissible under ER 404(b). The trial court granted the State's motion, ruling that the prior convictions were admissible under both of the State's theories. The court ruled the evidence could be used to prove absence of mistake or identity, preparation, and motive.

Meredith moved to sever the counts based on the court's earlier ruling to admit his prior convictions. He argued that the prior convictions had nothing to do with the rape of a child count. After hearing arguments, the court denied the motion, but allowed additional briefing by Meredith on his motion to reconsider. After the court reviewed the additional briefing, it again denied the severance motion. Based on this ruling, Meredith asked for a limiting instruction.

After the parties' pretrial motions, voir dire occurred over a period of three days. Both parties requested that the court seat 12 jurors and two alternates. The trial court stated that its usual practice was to seat 14 jurors and, prior to deliberations, draw two alternates randomly from the entire panel.

During voir dire, juror 32 expressed uncertainty about his ability to be impartial because Meredith had prior sex convictions. When asked by Meredith whether juror 32 would want himself to be a juror on this case if he was sitting where Meredith was, he stated, "No, I don't think so." Report of Proceedings (RP) (voir dire, May 6, 1996) at 237. Meredith challenged juror 32 for cause.

The State asked juror 32 whether, despite the life experiences he brought to court, he would commit to following the court's instructions on the law, including instructions on how to consider the prior convictions. Juror 32 answered: It would be "[p]retty hard . . . to follow the Court's instructions," but that he "would strive to" do so. RP (voir dire, May 6, 1996) at 237. The State also asked whether he would judge the case solely on the evidence, knowing that he would hear about the prior convictions. Juror 32 replied:

That's something I would have to think about, go through all the evidence, which way to go. But one thing that I don't like about it is why do we have to have all this stuff, there is no reason for it.

. . . .. . . [A]gain, I would have to deliberate after all the evidence has come in, and when we get to the jury room, see if he is telling the real truth.

RP (voir dire, May 6, 1996) at 237-38.

The State again asked juror 32 if he would follow the court's instructions, listen to the testimony, and judge the case solely on the evidence, even if the evidence bothered him. Juror 32 responded, "Yes." RP (voir dire, May 6, 1996) at 238. Meredith then asked juror 32 if he might find himself judging the case solely based on the prior convictions. Juror 32 answered, "It's quite possible that after the evidence came in, maybe it could be changed to where I could come and be impartial." RP (May 6, 1996) at 239. Meredith clarified and asked if he was already leaning toward a decision, to which juror 32 replied, "Yes." RP (voir dire, May 6, 1996) at 239.

The State objected to Meredith's challenge for cause, and the court denied Meredith's challenge. Juror 32 sat as a juror during the trial; however, because of illness, the court excused him prior to deliberations. Neither party objected.

III. TESTIMONY OF RUSSELL AND SIPES

On the night of BL's rape, Dr. Bobbi Sipes and nurse Michelle Russell conducted a sexual assault examination. It included a physical examination, pelvic examination, pubic combing, and nail parings.

Russell conducted a blue-light examination on BL's skin but found nothing. Sipes agreed with Russell's results on this examination.

Meredith attempted to question Russell about the presence of secretions outside the body in sexual assault examinations, and the State objected. Outside the presence of the jury, Meredith argued that he should be given latitude to ask about the significance of that finding in relation to other sexual assault cases. The State argued that the presence or absence or likelihood there would be secretions on other sexual assault victims invites the jury to speculate what the blue-lightfindings should have been. Because the fact that the blue-light examination did not produce any findings was now before the jury, the State argued it was up to the parties to argue the significance of that finding. The trial court disallowed this line of questioning.

Russell also found a "pooling of secretions" consistent with semen in BL's vagina. 6 RP (May 9, 1996) at 498. BL also told Sipes that before Meredith sexually assaulted her, she had not had sexual intercourse since July. Sipes testified that her observations were consistent with "non-specific findings" for sexual intercourse. 6 RP (May 9, 1996) at 500.

Sipes collected six samples from the pelvic examination and submitted three to the hospital laboratory and three to the police. She testified that the hospital laboratory report showed the secretions in BL's vagina contained semen with nonmotile sperm. She testified that the presence of semen indicated BL had intercourse within three days of her examination.

Meredith attempted to ask Russell if the purpose of the samples was for deoxyribonucleic acid (DNA) analysis, and the trial court sustained the State's objection. Meredith argued that according to the record provided, swabs were taken for purposes of DNA analysis. The State argued that DNA analysis is controlled by the police, and whether or not DNA analysis was conducted on the swabs was outside Russell's knowledge or control. The trial court did not allow testimony on this subject.

During the examination, Sipes noticed redness on one of BL's inner thighs. She also discovered "a superficial abraded area with [a] superficial laceration in the . . . posterior fornix, which is the area between the vaginal opening and the anus." 6 RP (May 9, 1996) at 498. Sipes testified that both injuries occurred within 24 hours of the examination.

Sipes also reviewed the hospital's laboratory report which showed semen in the vaginal secretion. Sipes testified that semen is generally recovered from the vaginal vault up to three days following intercourse. She also testified that intercourse could have occurred at any period of time within the stated three days, but she could not tell, by reasonable medical certainty, as to exactly when the intercourse occurred.

As with Russell, Meredith asked Sipes whether the swabs were taken for purposes of DNA testing, to which Sipes replied, "Yes." 6 RP (May 9, 1996) at 504. The State objected. The court sustained the objection and instructed the jury to disregard the question and answer.

IV. JURY INSTRUCTIONS AND CLOSE OF TRIAL

The trial court considered the parties' proposed jury instructions. Meredith's proposed instructions did not include a limiting instruction regarding the prior conviction evidence; however, he objected to the limiting instruction proposed by the State. He argued that the limiting instruction did not sufficiently explain the purpose of the prior conviction evidence. The trial court gave the following limiting instruction to the jury:

Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant's guilt. Such evidence may be considered by you in deciding Count II and for no other purpose.

PRP Resp., App. F (Instr. 14).

Meredith made several motions including a renewal of his motion to sever the counts. The court denied the motions.

The jury convicted Meredith of both charges.

V. SENTENCING

On November 21, 2008, the court held a sentencing hearing. The State submitted a certified copy of Meredith's prior convictions and argued that the current convictions were not the same criminal conduct. Meredith argued that the current convictions should be treated as the same criminal conduct for purposes of calculating his offender score.

The trial court...