State v. Parker

STATE OF WASHINGTON, Respondent, v. ANTHONY DEWAYNE PARKER, Appellant.

No. 73667-1-I

Court of Appeals of Washington, Division 1

October 19, 2015

UNPUBLISHED

Cox J.

Anthony Parker appeals his judgment and sentence on convictions of multiple counts of assault, human trafficking, promoting prostitution, burglary, kidnapping, unlawful possession of a firearm, witness tampering, and firearm enhancements. He fails in his burden to show that his trial counsel had actual conflicts of interest. Thus, we reject his ineffective assistance of counsel claim. Further, there is a nexus between his convictions of human trafficking and promoting prostitution and the firearm enhancements. And his statement of additional grounds for review does not warrant relief. Accordingly, we affirm the judgment and sentence in this appeal.

In the consolidated personal restraint petition, Parker asserts multiple claims. With one exception, none requires further consideration. His claim that there was an illegal search and seizure of another's cell phones that violated his privacy rights in his messages on that cell phone requires appointment of counsel and a reference hearing. Accordingly we transfer the petition to the superior court for appointment of counsel to represent Parker on the illegal search and seizure issue only. The court shall also conduct a reference hearing pursuant to RAP 16.12, enter findings of fact, and transmit such findings to this court for further action. We otherwise dismiss the petition.^[1]

The State charged Parker with 11 offenses. Most of the offenses involved J.H. as the alleged victim. Parker allegedly assaulted and kidnapped J.H. and committed the crimes of promoting prostitution and human trafficking while acting as her pimp. These charges were accompanied by firearm allegations.

After a lengthy trial, the jury convicted Parker of all charges. The jury also found by special verdict that he was armed with a firearm. The trial court sentenced him accordingly.

Parker appeals.

He subsequently filed a personal restraint petition. Division Two of this court consolidated his petition for decision with this appeal. As of the filing of this decision, no counsel represents Parker for his personal restraint petition.

INEFFECTIVE ASSISTANCE OF COUNSEL

Parker argues that his counsel provided ineffective assistance of counsel due to two alleged conflicts of interest. We disagree.

Both the federal and state constitutions provide the right to counsel.^[2] The right to counsel includes the right to effective assistance of counsel.^[3] This also includes the right to counsel free from conflicts of interest.^[4]

The defendant bears the burden to show that an actual conflict of interest adversely affected counsel's performance.^[5] The mere possibility of a conflict of interest does not warrant reversal.^[6] Instead, the defendant must demonstrate an "actual" conflict of interests, a situation where "'counsel actively represented conflicting interests.'"^[7]

"'Whether the circumstances demonstrate a conflict under ethical rules is a question of law, which is reviewed de novo.'"^[8]

Here Parker argues that his attorney had two conflicts of interests. Because Parker fails to show that either alleged conflict was an actual conflict of interest, we hold that he fails in his burden to show ineffective assistance of counsel.

Representation of Other Clients

Parker first argues that his counsel's representation of other clients created an actual conflict of interest. We disagree.

Under RPC 1.7(a), "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1)the representation of one client will be directly adverse to another client; or

(2)there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."^[9]

The legal practice of Parker's defense counsel at trial included estate planning and advice to several non-profits. As part of this practice, counsel recommended that his clients donate to certain charities. One charity that he recommended was a non-profit that Officer Taylor, the State's expert witness at trial, had helped to create. After learning that a different police officer had allegedly embezzled funds from the non-profit, Parker's counsel stopped advising his clients to donate to the non-profit.

Here the trial court noted that it failed to see how the alleged conflict would be an actual conflict of interest or impede counsel's ability to cross-examine the State's expert witness. In response, Parker's counsel argued that it would create the appearance of a conflict of interest, or the appearance that he was not vigorously cross-examining the witness. But he conceded that it would not be an actual conflict of interest.

We conclude that Parker's counsel did not have any actual conflict of interest. His description of events fully supports that there was no actual conflict of interest, as does his candid representation to the court. We need not decide whether there was any apparent conflict of interest because that is not the material standard.

None of counsel's clients was connected to the present case. And counsel had advised his clients to stop donating to the non-profit connected to the witness at trial. The fact that he had formerly advised clients to donate money to an organization with which this witness was involved fails to create an actual conflict of interest. There simply is no showing that counsel's representation of other clients had any directly adverse impact on representing Parker.

We note that Parker's counsel extensively cross-examined Officer Taylor at trial. This cross-examination included the non-profit and the investigation into its finances. Thus Parker cannot show that his counsel was actively representing the interests of his other clients rather than Parker's interests.

Parker argues that his counsel's other clients had "a philanthropic interest in supporting an organization whose primary goal was combating human trafficking." Thus, by representing Parker, counsel was acting against the interest of his clients.

This argument conflicts with both this record and the law. Counsel expressly stated that he advised the other clients against further donations to the nonprofit at issue. Even if we assume that counsel's clients had a general interest in preventing human trafficking, this fails to meet the requirements for an actual conflict of interest under RPC 1.7. Thus, Parker cannot show that his counsel's representation was materially limited by his other clients' interests.

Witness Against Client

Parker also argues that his counsel had a conflict of interest because he could have been called as a witness against Parker. Because this record shows otherwise, we disagree.

Under RPC 3.7, "A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness." The State may call the defense counsel as a witness only if "counsel's testimony is both necessary and unobtainable from other sources."^[10]

Here, there was no conflict of interest. Parker's counsel was not likely to be a necessary witness at this criminal trial because the State expressly chose not to call him as a witness.

The alleged conflict of interest rose from Parker's purported witness tampering. The State discovered that Parker had mailed someone on the defense's witness list letters instructing him on what to testify to. The State decided to call this witness in its case-in-chief to introduce these letters.

Parker's counsel moved to withdraw, stating that there was "a remote chance" he would be called as a witness against Parker. He indicated that his private investigator had spoken with this witness and written a report. But counsel had not personally spoken with the witness.

In response, the State stated on the record that it did not plan to call either Parker's counsel or his private investigator as witnesses. It noted that it planned to call only the witness to whom Parker sent the letters. The trial court denied the motion.

Nothing in this record shows that the State ever changed its position about calling defense counsel as a witness at trial. Thus, Parker's counsel was not likely to be a necessary witness and never was, in fact, a witness against his client. There was simply no actual conflict of interest.

Additionally, even if the State had wished to call Parker's counsel as a witness, it would have been unable to do so. To call him as a witness, the State would have needed to prove that his testimony was both necessary and otherwise unobtainable. Here, the State presented the testimony of the witness who had received the letters. Thus, Parker's counsel's testimony would not have been either necessary or otherwise unobtainable.

Parker argues that his counsel was either an "unwitting accomplice" and "critical witness, " or an "actual accomplice" to the witness tampering. But both claims are incorrect. As explained previously, counsel was not a necessary witness. He was not a witness at all.

Additionally, nothing in the record indicates Parker's counsel was actually involved, or alleged to be actually involved, with the witness tampering. To the contrary, the State noted that it "ha[d] no concerns about [Parker's counsel] being involved in any of this." Parker fails to point to anything in this record to suggest otherwise.

FIREARM ENHANCEMENTS

Parker also argues that the court erred when it added firearm enhancements to his sentences for human trafficking and promoting prostitution. Because there was a...