In re Pers. Restraint of Chung

IN THE MATTER OF THE PERSONAL RESTRAINT OF: AARON CHUNG, Petitioner.

No. 81221-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 19, 2021

UNPUBLISHED OPINION

ANDRUS, A.C.J. -- In this personal restraint petition, Aaron Chung seeks relief from his conviction for assault of a child in the third degree. Chung asserts that his trial counsel was ineffective in failing to object to the State's use of a peremptory strike to remove an Asian-American juror and in failing to interview or present the testimony of certain witnesses. Chung further asserts a reversible confrontation clause violation. Because Chung has not established that defense counsel provided constitutionally inadequate representation or that his constitutional right to confrontation was violated, we deny his personal restraint petition.

FACTS

Aaron Chung and his ex-wife, Stacie Ly, have three children together. After their divorce, Chung moved back in with his parents. Chung saw his children on Wednesdays and every other weekend. Chung's parents, I-Lin Chung and Sue Chung, helped care for the children during their visits.

In February 2016, Chung's children were spending the weekend with Chung at their grandparents' house. Chung's daughter, J.C., was six years old and Chung's sons, K.C. and L.C., were three and four years old at the time. J.C. testified at trial that Chung took her aside in a hallway and accused Ly of stealing money from him. J.C. said "that's not true" and called her father a liar. J.C. said Chung responded by punching her in the forehead, causing her to fall backwards and hit her head on the hardwood floor. When J.C. got back to her feet, Chung told her not to tell anyone what happened. J.C. subsequently told the investigating detective that her grandparents were standing behind Chung when the incident occurred and that they "didn't help me at all." J.C. said her younger brothers tried to help her by punching and kicking Chung's legs, but he gave them a timeout.

Ly testified that the following day, J.C. started crying while waiting for the school bus. When Ly asked J.C. what was wrong, J.C. said her head hurt because "Daddy punched me." Later that day, J.C.'s pediatrician Dr. Joyce Wu, diagnosed J.C. with a head injury without loss of consciousness and a concussion. Dr. Wu testified that her diagnosis was based on J.C.'s reports of a persistent headache, taking an unusually lengthy nap, and crying at the bus stop. Dr. Wu testified that her physical examination of J.C. was predominately normal and that she saw no need for a radiological exam. Dr. Wu reported Chung to Child Protective Services (CPS).

Dr. Katherine Koss, a doctor who conducted a follow-up examination of J.C. about a week later, testified that J.C.'s headache had persisted and that Ly reported J.C. was sleeping more than usual. Dr. Koss agreed that J.C.'s symptoms were consistent with concussion. Bellevue Police Detective Ellen Inman and forensic childinterview specialist Shana McLeod also testified regarding J.C.'s description of the incident.

Chung's father, I-Lin Chung, disputed J.C.'s version of events. He testified that nothing unusual occurred during the visit, he did not hear or observe the incident J.C. described, J.C. seemed fine when she left, and he did not observe any signs that J.C. had suffered a head injury.

The State charged Chung with second degree assault of a child. At trial, the State also requested a lesser included offense instruction on third degree assault of a child. During closing, defense counsel argued that J.C.'s testimony regarding her grandparents' and brothers' behavior during the incident was not credible or reliable and that the physical medical finding of no bruises or bumps was not consistent with the assault charge.

The jury found Chung not guilty of second degree assault, and convicted him of the lesser included charge of third degree assault. In addition to sentencing Chung to 10 days in jail and 10 days of community service, the court prohibited Chung from having any contact with his children for five years, subject to modification and review based upon future progress in family court proceedings.

On direct appeal, this court rejected Chung's claim that his counsels' performance was deficient because they did not request a lesser included offense of fourth degree assault, but remanded for resentencing regarding the scope and duration of the no contact orders pertaining to Chung's children. State v. Chung, No. 76650-3-I, slip op. at 1 (Wash. Ct. App. Jan 14, 2019) (unpublished),https://www.courts.wa.gov/opinions/pdf/766503.pdf. This timely personal restraint petition followed.

ANALYSIS

To successfully challenge a judgment and sentence by means of a personal restraint petition, a petitioner must establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a "complete miscarriage of justice." In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). If a personal restraint petitioner makes a successful ineffective assistance of counsel claim, he or she has necessarily met the burden to show actual and substantial prejudice. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).

A. Ineffective Assistance of Counsel

Chung asserts that he received ineffective assistance of counsel in several instances during his trial.¹ Under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution, a defendant is guaranteed the right to effective assistance of counsel in criminal proceedings. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). To establish ineffective assistance of counsel, a defendant must demonstrate: (1) representation falling below an objective standard of reasonableness and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The inquiry ends if a defendant fails to establish either element. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). "The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). We strongly presume that counsel's conduct was reasonable, and so the defendant bears the burden of proving that the challenged action was not a legitimate trial strategy. Strickland, 466 U.S. at 689; State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).

Juror Exclusion

Chung argues that his trial attorneys were deficient because they failed to object to the State's use of a peremptory strike to remove Juror 3, who Chung asserts was the sole Asian-American juror. He contends that the empaneled jury appeared to include no racial diversity and did not represent a jury of his peers.

"The Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." Batson v. Kennedy, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Under Batson, courts apply a three-part test to determine the propriety of a peremptory challenge. Id. at 96-98. First, the defendant must makeout a prima facie case of racial discrimination. Id. at 96-97. "[I]n Washington, this first step of the Batson test also includes a bright-line rule that the trial court must recognize a prima facie case of discriminatory purpose when a party strikes the last member of a racially cognizable group." State v. Jefferson, 192 Wn.2d 225, 232, 429 P.3d 467 (2018) (citing City of Seattle v. Erickson, 188 Wn.2d 721, 734, 398 P.3d 1124 (2017)). Second, if the defendant establishes a prima facie case, the burden shifts to the State to provide a race-neutral explanation for the challenge. Batson, 476 U.S. at 97. Third, the trial court would have determined whether an objective observer, aware of the history of explicit race discrimination in America and aware of how that impacts our current decision-making in implicit ways, could view race or ethnicity as a factor in the use of the peremptory challenge. Jefferson, 192 Wn.2d at 249-50.

Chung has not provided the Court with a transcript or a recording of the voir dire or any of the juror questionnaires the trial court used. From what the parties have provided, we cannot conclude that counsel could have made a prima facie case of racial discrimination or that counsel's decision not to raise a Batson challenge to Juror 3 was deficient performance. First, while the parties appear to agree that Juror 3 identified herself in voir dire as having been born in Taiwan and may have been the only Asian-American in the venire as Chung indicates in his declaration, there is evidence that this juror would not have necessarily been sympathetic to Chung. In Juror 3's jury questionnaire, the juror checked "somewhat agree" to two statements: "I think that when a child makes an accusation of abuse, it probably happened" and "Anyone who ends up being charged with child abuse is probably guilty." According tothe State, Chung's counsel had the assistance of a jury consultant during voir dire. It is quite probable that defense counsel, in discussing Juror 3 with the jury consultant, chose not to object to the removal of Juror 3 under Batson because of these questionnaire responses. Without seeing how other jurors answered these same questions in the written questionnaires, or reviewing how other jurors answered questions orally during jury selection, we cannot conclude there was deficient performance.

In addition, Chung must establish that had counsel made a Batson objection, there is a reasonable probability the objection would have been sustained and the trial judge would have denied the peremptory strike. Chung has not made...