State v. McVey

STATE OF WASHINGTON, Respondent, v. TYLER JUSTIN MCVEY, Appellant.

In the Matter of the Personal Restraint Petition of TYLER JUSTIN MCVEY, Petitioner.

Nos. 53345-6-II, 53631-5-II

Court of Appeals of Washington, Division 2

September 15, 2020

UNPUBLISHED OPINION

WORSWICK, J.

Tyler McVey was convicted of first degree child rape and first degree child molestation. In this consolidated case, we consider McVey's direct appeal and personal restraint petition (PRP), both raising ineffective assistance of counsel arguments. In his direct appeal, McVey contends that the trial court erred by denying his CrR 7.8 motion for relief from judgment because he received ineffective assistance of counsel when his trial counsel failed to interview a potential eyewitness and failed to call that witness to testify at trial. In his PRP, McVey contends that he received ineffective assistance of counsel because his trial counsel failed to share discovery with McVey and did not call McVey to testify at trial. We disagree with all of McVey's contentions, affirm the trial court's denial of his motion for relief from judgment, and deny his PRP.

FACTS

I. Background Facts

When ES was four years old her father, Jason Seevers, had full custody of her, but she frequently visited her mother, Kecia Johnson, at Johnson's home. At the time, Johnson's boyfriend, McVey, and her stepfather, Mark Schmidt, often stayed at her home. During ES's visits, when Johnson left for work, McVey would watch ES. Schmidt was incapable of watching ES due to a previous stroke. After one visit to Johnson's house, ES told Seevers that McVey touched her and she did not like it. When Seevers's wife handed ES a doll and asked ES where McVey had touched her, ES pointed at the middle of the doll's groin. ES later told a forensic interviewer that McVey had put his hand inside her body.

The State charged McVey with one count of first degree rape of a child and one count of first degree child molestation. At trial, McVey chose not to testify. McVey's trial counsel did not call any defense witnesses and, during his closing argument, argued primarily that ES fabricated the allegations against McVey at the encouragement of her father as part of an ongoing child custody battle with Johnson. The jury returned guilty verdicts on both counts.

II. CrR 7.8 Motion

After our court affirmed McVey's convictions following his first appeal, McVey filed a CrR 7.8 motion for relief from judgment. In his motion, McVey argued that he received ineffective assistance of counsel during his trial. The trial court ordered an evidentiary hearing on McVey's motion.

David Haller testified at the CrR 7.8 hearing. He explained that McVey's trial counsel, Robert Brungardt, had hired him as a private investigator and asked him to attempt to make contact with Schmidt. Although Haller did not make contact with Schmidt in person, he did exchange text messages with someone who said he was Schmidt. Haller asked Schmidt if he could see ES and McVey while waiting for ES's father to pick her up on the day in question, and Schmidt replied "[N]o." 1 Report of Proceedings (RP) at 101. Haller also contacted Johnson and asked if she had discussed the events with Schmidt. Johnson told Haller that Schmidt told her he had not seen anything unusual that day but he did not have ES and McVey in his sight for the entire time. Haller testified that in the course of his investigation, he learned that Schmidt had moved to Florida, but he was unable to obtain an address for him.

Brungardt also testified at the hearing. Brungardt testified that McVey had told him Schmidt could be an alibi witness, which is why Brungardt directed Haller to attempt to locate Schmidt. Brungardt recalled that ES had stated that Schmidt had been in his room at the time of the rape. Brungardt explained that he did not believe Schmidt would be a helpful witness based on Schmidt's statement that he did not have direct sight of McVey and ES during the relevant time period. Brungardt was also aware that Schmidt had health issues from a previous stroke that limited his ability to communicate, which factored into his decision not to pursue him further as a witness. Instead, Brungardt chose to pursue an alternative defense theory focusing on child custody issues.

Brungardt testified about his pretrial conversations with McVey. Brungardt recalled discussing the report of ES's forensic interview with McVey and explaining to McVey that Brungardt had listened to the audio of the interview. Brungardt also testified that he had multiple conversations with McVey about McVey's right to testify during trial. At the time of their conversations, Brungardt made McVey aware of his investigation into the case including listening to the forensic interview. Brungardt testified, "I never and have never told a client that he or she should not testify." 1 RP at 150.

Schmidt also testified at the CrR 7.8 hearing. Schmidt had significant difficulty testifying audibly and answered each question by nodding "yes" or "no." Schmidt acknowledged that he had lived at Johnson's home with ES, but shook his head "no" when asked if he lived there when ES said McVey touched her inappropriately. Schmidt shook his head "no" when asked if he ever saw McVey touch ES inappropriately. 2 RP at 172. Schmidt shook his head "no" when asked if ES ever told him that McVey touched her inappropriately. 2 RP at 178. Schmidt shook his head "no" when asked if he remembered the day of the incident between ES and McVey. 2 RP at 184. Schmidt did not remember if he was at Johnson's house on the day of the incident and did not have any direct knowledge of whether the allegations did or did not occur.

Schmidt did not recall whether he exchanged text messages with Haller. Schmidt acknowledged that the phone number Haller messaged belonged to him. Schmidt could not recall whether he had ever talked to a lawyer other than McVey's counsel for the CrR 7.8 hearing or if he ever spoke to law enforcement regarding the incident with ES.

Following the CrR 7.8 hearing, the trial court entered written findings of fact and conclusions of law. The court found the State's witnesses credible. The trial court also found that Schmidt's previous stroke adversely affected his cognitive function, ability to communicate, and his memory. The trial court found that Schmidt had difficulty answering yes or no questions appropriately, struggled to answer simple questions, and expressed a lack of comprehension. Due to contradictions in Schmidt's testimony and his lack of comprehension, the trial court found that Schmidt's testimony was unbelievable and that, had he been called to testify at trial, a jury would have given his testimony no weight, such that there was no reasonable probability that testimony from Schmidt would have affected the outcome of trial. Based on these findings, the trial court concluded that McVey could not show that he was prejudiced by Brungardt's decision not to further investigate Schmidt or call Schmidt as a witness at trial, and the trial court denied McVey's motion for relief from judgment.

McVey appeals the trial court's denial of his motion for relief from judgment.

ANALYSIS

I. Legal Principles

We review a superior court's denial of a CrR 7.8 motion for relief from judgment for abuse of discretion. State v Robinson, 193 Wn.App. 215, 217, 374 P.3d 175 (2016). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds, or when no reasonable judge would have reached the same decision. Robinson, 193 Wn.App. at 217-18; State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). We review the findings of fact on a CrR 7.8 motion for substantial evidence. State v. Ieng, 87 Wn.App. 873, 877, 942 P.2d 1091 (1997). Substantial evidence is a sufficient quantity of evidence to persuade a rational, fair-minded person that a finding is true. State v. Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011). We defer to the trier of fact on credibility issues. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Unchallenged findings of fact are verities on appeal. State v. Stewart, 12 Wn.App. 2d 236, 240, 457 P.3d 1213 (2020).

Under CrR 7.8(b)(5), a court may grant relief from judgment for "[a]ny other reason justifying relief from the operation of the judgment." Ineffective assistance of counsel can provide the basis for vacating a judgment under CrR 7.8(b)(5). See State v. Martinez, 161 Wn.App. 436, 441, 253 P.3d 445 (2011).

"We review ineffective assistance of counsel claims de novo." State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). Ineffective assistance of counsel is a two-prong inquiry. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective assistance of counsel claim, a defendant must show that defense counsel's performance was deficient, and the deficient performance prejudiced the defendant. Grier, 171 Wn.2d at 33. A failure to prove either prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

There is no ineffective assistance when counsel's complained of actions are trial tactics or go to the theory of the case. Grier, 171 Wn.2d at 33. There is a strong presumption that defense counsel's conduct was not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Because of this presumption, "the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." McFarland, 127 Wn.2d at 336.

To be effective, trial counsel must investigate the case. State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015). Counsel's duty includes making reasonable investigations or making a reasonable decision that renders...