Petition for Writ of Certiorari — Shafer v. Miller-Stout

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Supreme Court, U.S.

(1) FILED

No. 04-601 SEP 13 2004

In The

Supreme Court of the Gnited States

DARRELL LEE SHAFER,

Petitioner,

vs.

MAGGIE MILLER-STOUT,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

BEVAN J. MAXEY

MAXEY LAW FIRM

1835 West Broadway Avenue

Spokane, WA 99201

(509) 326-0338

Attorney for Petitioner,

Darrell Lee Shafer

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. THE CHALLENGED DECISION OF THE PANEL OF

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT WHICH WAS ENTERED ON

MAY 4, 2004, AND WHICH DECISION ERRONE-

OUSLY AFFIRMED THE EARLIER RULING OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON WHEREIN

PETITIONER SHAFER’S PETITION FOR WRIT OF

HABEAS CORPUS IN A CRIMINAL CASE, DI-

RECTLY CONFLICTS WITH THE DECISION OF

THE UNITED STATES SUPREME COURT IN

BRECHT V. ABRAHAMSON, 507 U.S. 619, 113 S.Ct.

1710, 123 L.Ed.2d 353 (1993). SHOULD THE SU-

PREME COURT, IN TERMS OF FEDERAL DUE

PROCESS AND FUNDAMENTAL FAIRNESS, RE-

SOLVE THIS CONFLICT AND IMPORTANT MAT-

TER OF MAINTAINING FEDERAL PRECEDENT

CONCERNING THOSE PRECISE STANDARDS

AND GUIDELINES ASSOCIATED WITH A DECI-

SION BY THE COURT AS TO WHETHER TO

GRANT OR DENY A FEDERAL WRIT OF HA-

BEAS CORPUS IN A CRIMINAL CASE?

2. THIS CASE ALSO CONCERNS MATTERS OF EX-

CEPTIONAL IMPORTANCE SPECIFICALLY _IN-

VOLVING THE PUBLIC INTEREST AND WELFARE.

IN THIS REGARD, THE CHALLENGED DECISION

OF NINTH CIRCUIT IN THIS MATTER DIRECTLY

CONTRAVENES ESTABLISHED FEDERAL PRECE-

DENT, BY ALLOWING AND SANCTIONING (A) THE

ADMISSION OF EXPERT TESTIMONY WHICH IS

IMPROPER UNDER THE SEMINAL DECISION

FIRST ENTERED IN FRYE V. UNITED STATES, 293

F. 1013 (D.C. Cir. 123), AND ITS PROGENY; (B) THE

DENIAL OF FEDERAL DUE PROCESS IN TERMS

OF THE PROHIBITION AGAINST A THIRD PARTY

QUESTIONS PRESENTED - Continued

TESTIFYING AND VOUCHING FOR THE CREDI-

BILITY AND VERACITY OF THE COMPLAINING

WITNESS AND THEREBY INVADING THE PROV-

INCE OF THE JURY AS ENUNCIATED IN SUCH

DEFINITIVE DECISIONS AS IN SNOWDEN V.

SINGLETARY, 135 F.3d 732 (11th Cir.), cert. denied,

525 U.S. 963, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998);

AND (C) THE CUMULATIVE EFFECT OF SUCH

ERRORS WHICH RESULTED IN THE DENIAL OF

THOSE FEDERAL RIGHTS GUARANTEED AN AC-

CUSED UNDER THE PRINCIPLES OF DUE PROCESS

AND FUNDAMENTAL FAIRNESS IN A CRIMINAL

PROCEEDING. SHOULD THE SUPREME COURT

ONCE AGAIN RESOLVE THESE ADDITIONAL

ERRORS EFFECTING DUE PROCESS AND THE

PUBLIC INTEREST WHICH HAVE CREATED BY

THE SUBJECT DECISIONS OF THE NINTH CIR-

CUIT AND DISTRICT COURT AND WHICH CON-

TRAVENE FEDERAL LAW AS ESTABLISHED AND

CONFIRMED BY THIS COURT AND AS OTHER-

WISE APPLIED CONSISTENTLY BY THE CIR-

CUIT AND DISTRICT COURTS?

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI................. 1

CITATION TO OPINIONS BELOW. .......................... 1

STATEMENT OF BASIS FOR JURISDICTION. ............. 3

CONSTITUTIONAL PROVISIONS INVOLVED ....... 4

STATUTORY PROVISIONS INVOLVED .................. 4

ESR ESS COU REE GMIIED Kccencosttinciccanicccoseseneossens 5

I Se seioccissncsisdincacpttiehaneclanticadicnmanenacicnis 5

Statement of Facts and Procedural History........... 6

REASONS FOR GRANTING THE WRIT.................. 9

CE i aicatscsisnkinsstnienenbassisiadineiiideandusiaseniniiina 17

SEE ction tates App. i

TABLE OF AUTHORITIES

Page

CASES

Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct.

1710, 123 L.Ed.2d 353 (1993)................ssssssccscooesees passim

Daubert v. Merrell Dow Pharmaceutical, Inc., 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)....9, 11

Ewing v. Williams, 596 F.2d 391 (9th Cir. 1979) ........ 10, 16

Frye v. United States, 293 F. 1013 (D.C.Cir. 1923)....... 9,11

Lambright v. Stewart, 220 F.3d 1022 (9th Cir.

OD isisiicitinnscaniinandniticstaitnnidakeinulnpininabiagidaiabaaniiniionn 10, 14, 16

Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992) ............ 10, 16

Mancuso v. Olivarez, 292 F.3d 939 (9th Cir. 2002)........... 12

Osborne v. Wainwright, 720 F.2d 1237 (11th Cir.

SII icicnsivcnsacisatinabiaciisinncsniinanasiiiisindsabiensiatiosdeneudiadeuiaimeiie 12

Snowden v. Singletary, 135 F.3d 732 (11th Cir.),

cert. denied, 525 U.S. 963, 119 S.Ct. 405, 142

Mm Rf fs eRe 8, 10, 18, 14, 15

State v. Black, 109 Wn.2d 336, 745 P.2d 12 (1987)........... 11

United States v. Amaral, 488 F.2d 1148 (9th Cir.

ERR Renee oie ene ase nM Tha De DRM aT aR ee aE 11

United States v. Azure, 801 F.2d 336 (8th Cir. 1986) ... 10, 13

United States v. Binder, 769 F.2d 595 (9th Cir.

ID ssicsnscnnnsecnesvnnsanninianiinnusniandisiiaicnenninsiinchnsbihinimnnuitsnaianns 9

TABLE OF AUTHORITIES — Continued

Page

United States v. Tucker, 716 F.2d 576 (9th Cir.

ST aatiieicicsiiisidebibaseetonaacbitghshédiaimpidiecuiitiniadantnsablauadiieds 10, 16

United States v. Velarde, 214 F.3d 1204 (10th Cir.

SN sstidaciciésddbadvhebnasibakatsbdtibascinthRandabiiniuissctanice 11, 13, 14, 15

United States v. Young, 470 U.S. 4, 105 S.Ct. 1038,

es I FED aticinieslidivnananniaphoxianbnnschnchiokeai 10, 14, 16

STATUTES

ee a sicgieanicceidetinnnstehiakednbncabhannanbchanssblenania’s 4,17

Se ne NN cicindeh a cn sitsthsiinsnaihbheieinseih id dadacidnicidadaclgciabionnanshhonsapice 4

ee stabi cidilisssptnnsnotannblesaibanendscoincisapsiniteteenicnnndaanh 4

Be CTRAD, FED tsthssccensisccontnsatnarsasvinscarstanty ay Bite ae

RULES

CM MUD CUTE TEI Tes iiicensstaraseviicncosnsncnsxcctinnszaxanne 9

U.S. Supreme Court Rule 10(a). iinictelrsaedncckanannicistaaeniniadiin 17

U.S. Supreme Court Rule 10(C)...............ceceeceeseeereteeeeees 17

Federal Rules of Appellate Procedure 22(a) ...................000 4

Federal Rules of Appellate Procedure 35(a) ...............:s:0006 4

Federal Rules of Appellate Procedure 40....................000000 4

CONSTITUTIONAL PROVISIONS

ee «MI Bisiicnssiictsnexcanstnananic spaceaihiabiiadcabcsansiadasbisak’ 4,10

er: BN, Fi a ssincsiinicascnshthsinsceiccinsiccnenbantnsicabaneaianes 4,10

PETITION FOR WRIT OF CERTIORARI

Petitioner, DARRELL LEE SHAFER, respectfully

prays that a writ of certiorari be issued to review the

judgment of the United States Court of Appeals for the

Ninth Circuit entered on May 4, 2004, wherein the Court

affirmed the final judgment of the United States District

Court, Eastern District of Washington, terminating the

subject cause and thereby dismissing the subject petition

for writ of habeas corpus on February 7, 2003. [Appendices

A-C & M]}.

CITATION TO OPINIONS BELOW

Federal Court Opinions:

A. The opinion and order of the United States Court

of Appeals for the Ninth Circuit affirming the February 7,

2001, judgment of the United States District Court,

Eastern District of Washington, is unofficially reported at

Shafer v. Miller-Stout, No. 03-35254 (9th Cir. May 4,

2004). [Appendix A].

B. The judgment entered by the United States

District Court, Eastern District of Washington, wherein

the subject petition for writ of habeas corpus was denied is

unofficially reported at Shafer v. Miller-Stout, No. CS-00-

419-CI (E.Wash. February 7, 2003). [Appendix B).

_ C. The order adopting report and recommendation

entered by the United States District Court, Eastern

District of Washington, is unofficially reported at Shafer v.

Miller-Stout, No. CS-00-419-CI (E.Wash. February 7,

2003). [Appendix C].

D. The certificate of appealability issued by the

United States District Court, Eastern District of Washing-

ton, is unofficially reported at Shafer v. Miller-Stout, No.

CS-00-419-FVS (E.Wash. March 17, 2003). [Appendix D]}.

Underlying State Court Opinions:

E. The certificate of finality issued by the Washing-

ton State Court of Appeals, Division III, concerning order

dismissing personal restraint petition, is unofficially

reported in In the Matter of the Application for Relief from

Personal Restraint of Shafer, No. 18972-4-III (January 18,

2001). [Appendix E].

F. The order entered by the Supreme Court of the

State of Washington, denying motion to modify commis-

sioner’s ruling and motion to add new grounds for relief, is

unofficially reported in In the Personal Restraint Petition

of Shafer, No. 70139-3 (January 9, 2001). [Appendix F.

G. The ruling denying review entered by the Su-

preme Court of the State of Washington is unofficially

reported in In the Personal Restraint Petition of Shafer,

No. 70139-3 (October 27, 2000). [Appendix G].

H. The order dismissing personal restraint petition

entered by the Washington State Court of Appeals, Divi-

sion-III, is unofficially reported in In the Matter of the

Application for Relief from Personal Restraint of Shafer,

No. 18972-4-III (July 27, 2000). [Appendix H].

J. The mandate issued by the Washington State Court

of Appeals, Division III, is unofficially reported in State v.

Shafer, No. 16072-6-III (February 3, 1999) [Appendix I].

J. The order denying petition for discretionary

review entered by the Supreme Court of the State of

Washington is unofficially reported in State v. Shafer, No.

67051-0 (January 6, 1999). [Appendix J].

K. The unpublished opinion entered by the Washing-

ton State Court of Appeals, Division III, affirming judg-

ment and sentence is unofficially reported in State v.

Shafer, No. 16072-6-III (June 9, 1998) [Appendix K].

L. The judgment and sentence entered by the Supe-

rior Court of Yakima County, State of. Washington, is

unofficially reported in State v. Shafer, No. 95-1-01068-2

(September 13, 1996) [Appendix L].

Federal Opinion Denying Rehearing:

M. The order of the United States Court of Appeals

for the Ninth Circuit denying petition for rehearing en

banc is unofficially reported at Shafer v. Miller-Stout, No.

03-35254 (9th Cir. June 14, 2004). [Appendix M].

STATEMENT OF BASIS FOR JURISDICTION

Petitioner seeks review of the decision of the United

States Court of Appeals for the Ninth Circuit entitled

Shafer v. Miller-Stout, No. 03-35254 (9th Cir. May 4, 2004)

[Appendices A & M], pertaining to the affirmance of the

underlying judgment of the United States District Court,

Eastern District of Washington [Appendices B-D], concern-

ing the subject habeas corpus relief sought by petitioner

with respect to the underlying decisions entered by the

courts of the State of Washington [Appendices E-L]. On

May 17, 2004, Petitioner timely filed a petition for rehear-

ing en banc with the Court of Appeals. Said petition for

rehearing was denied on June 14, 2004. [Appendix M].

The United States Court of Appeals for the Ninth

Circuit had jurisdiction over the appeal and the petition

for rehearing en banc by virtue of 28 U.S.C. §2253, and

Rules 22(a), 35(a) and 40 of the Federal Rules of Appellate

Procedure (FRAP). The United States District Court,

Eastern District of Washington, also had jurisdiction over

this cause under 28 U.S.C. §2254 following the timely

filing of a petition for writ of habeas corpus by Petitioner

with the District Court on November 17, 2000. This Court

now has jurisdiction of this petition for writ of certiorari

under 28 U.S.C. §1254.

—

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion [Appendix N] provides, in pertinent part:

No person shall ... be deprived of life, lib-

erty, or property, without due process of law;....

The Fourteenth Amendment to the United States

Constitution [Appendix O] provides, in pertinent part:

... No State shall ... deprive any person of life,

liberty, or property without due process of

law;....

STATUTORY PROVISIONS INVOLVED

28 U.S.C. §2254 [Appendix P] provides, in pertinent

part:

(d) an application for a writ of habeas cor-

pus on behalf of a person in custody pursuant to

the judgment of a State court shall not be

thle Caebeat APES Vase AA ae PAS RY

a CA NS NR tilbic aa asi cE! 2

9) \

granted with respect to any claim that was adju-

dicated on the merits in State court proceedings

unless the adjudication of the claim —

(1) resulted in a decision that was

contrary to, or involved an unreason-

able application of, clearly established

Federal law, as determined by the Su-

preme Court of the United States;....

STATEMENT OF THE CASE

Overview of Case:

This is a criminal matter in which Petitioner was

charged and convicted in Washington state court of the

alleged offenses of child rape and attempted molestation of

three girls. Petitioner was sentenced to 360 months

imprisonment and is presently in the custody of the

Washington State Department of Corrections. After

exhausting all state remedies, petitioner sought federal

habeas corpus relief. Following the denial of his writ for

habeas in United States District Court, Eastern District of

Washington, and his subsequent appeal to the United

States Court of Appeals for the Ninth Circuit, petitioner is

now before this Court seeking issuance of a writ of certio-

rari. For sake of brevity, as well as for the convenience of

this Court, the following abbreviations are used in terms

of citation to the underlying record: [ER — ] refers to the

pertinent page numbers in the excerpts of record originally

filed with the Ninth Circuit in this matter; and [App. — ]

refers to the pertinent appendix attached to this petition

for writ of certiorari.

Statement of Facts and Procedural History:

In 1996, Petitioner was convicted by a jury in the

Superior Court of Yakima County, Washington, of child

rape and molestation of three alleged victims and was

sentenced to 360 months imprisonment. [ER 17-23; App.

K-L, QJ]. At trial, the prosecution had relied upon the

testimony of two expert witnesses concerning the credibil-

ity of alleged victims. [ER 311-46, 368-423, 531; App. Q].

Dr. Roy Simms, a pediatrician, was one of these witnesses.

[ER 26, 28, 311-46, 531; App. K and Q]. He had conducted

a physical examination of one of the girls. [ER 26, 28, 311-

46; App. K and Q]. While Dr. Simms found no evidence of

physical trauma, he was nonetheless permitted to testify

that the girl’s statements supported a medical diagnosis of

sexual abuse. [ER 328, 531; App. Q].

The other expert witness for the State was Robyn

Light. [ER 26-27, 368-423, 531; App. K and Q]. Ms. Light

had served as an investigator and manager of the victim-

witness unit of the Yakima County Prosecutor’s Office. [ER

26-27, 368-71; App. K and Q]. Over defense objection

including, inter alia, the lack of any scientific basis or

foundation for her testimony, Ms. Light was nonetheless

permitted to testify concerning her opinion that children

are incapable of describing events in terms of their sensory

perception and detail unless they have actually experi-

enced the events they describe. [ER 26-32, 234-35, 368-

423, 531-32; App. K-and Q]. Her testimony was similarly

challenged by the defense on the basis she never, in fact,

interviewed any of the girls; rather, Ms. Light had only

reviewed a report of sheriff’s detective Edmond West

Campbell concerning the girls’ alleged statements to him

and believed those alleged statements contained sensory

details consistent with sexual abuse. [ER 26-32, 234-35,

368-423, 531-32; App. K and Q].

Finally, over defense objection, the prosecution was

allowed to call Detective Campbell to testify concerning

the victims’ supposed statements to him. [ER 27, 407-08,

424-71, 444; App. K and Q]. This was notwithstanding the

fact, the State had presented Ms. Light’s testimony, and

also the testimonies of the complaining witnesses and

others to who the girls had alleged confided about their

abuse. [ER 27, 68-91, 93-309, 348-67, 407-08, 444; App. K

and Q].

Petitioner appealed his conviction to the Washington

State Court of Appeals, Division III. [App. K and Q]. The

state appellate court concluded that Ms. Light’s testimony

was admissible insofar as, in its view, she had neither

commented directly upon Petitioner’s guilt nor the verac-

ity of the complaining witnesses so as to usurp the prov-

ince of the jury in determining witness credibility. [ER 30-

32; App. K and QJ]. The testimony of Dr. Simms was a

different matter. [ER 32; App. K and Q]. The appellate

court held that his testimony on abuse was improper since

it was based merely on the statements of the girl he

examined. [ER 32; App. K and Q]. Nevertheless, this error

was deemed harmless in light of other evidence. [ER 24-

41; App. K and Q].

After exhausting all other available state court reme-

dies [ER 42-62; App. E-J, Q], Petitioner timely filed a

petition for writ of habeas corpus under 28 U.S.C. §2254

with the United States District Court, Eastern District of

Washington. [ER 1-14]. Said petition was later denied by

order and judgment entered on February 7, 2003 [ER 530-

46; App. B-C, Q]. In distinguishing the subject petition for

writ of habeas corpus from the facts in a similar sexual

abuse case, l.e., Snowden v. Singletary, 135 F.3d 732 (11th

Cir.), cert. denied, 525 U.S. 963, 119 S.Ct. 405, 142 L.Ed.2d

329 (1998), the District Court opined that the evidence

“against Mr. SHAFER was far stronger than the case

against Mr. Snowden.” [ER 535; App. C and Q]. In this

vein, the Court concluded, notwithstanding serious issues

of credibility which arose concerning such other testimony

as Petitioner’s former girlfriend, Lisa Ulrey, and the

mother of one of the alleged victims who was an admitted

drug addict and convicted felon, and who was also then in

jail facing criminal charges herself in this matter [ER 191-

92, 535; App. C and Q], that any error associated with the

testimonies of Dr. Simms and Ms. Light were harmless

under the standards set forth in Brecht v. Abrahamson,

507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). [ER

535; App. C and Q]. Specifically, the District Court stated

that “the testimony (sic) of Dr. Simms and Ms. Light

pale[d] in comparison to Ms. Ulrey’s testimony.” [ER 535;

App. C and Q]. Consequently, the Court determined that it

was unlikely that any constitution error associated with

federal due process “had a substantial and injurious effect

upon the verdict” as required in Brecht. [ER 535; App. C

and Q].

A certificate of appealability was issued on March 17,

2003, allowing Petitioner to appeal the issues whether the

decision of the District Court should be reversed and

whether habeas corpus relief should have been granted in

terms of Petitioner’s due process rights under the United

States Constitution having been violated with respect to

the challenged testimonies of Dr. Simms and Ms. Light.

[ER 549-51; App. D and Q]. Said certificate was confirmed

by order of the United States Court of Appeals for the

aioe ai

Ninth Circuit on June 17, 2003. [App. Q]. Thereafter, and

without elaboration as to its reasoning concerning the

same, the Court of Appeals simply affirmed the judgment

of the District Court by order entered on May 4, 2004.

[App. A]. Petitioner then filed a motion for rehearing-en

banc which was later denied by order entered by the Court

of Appeals on June 14, 2004. [App. M]. This petition for

writ of certiorari follows that decision.

REASONS FOR GRANTING THE WRIT

Issuance of the requested writ of certiorari to the

United States Court of Appeals for the Ninth Circuit is

necessary in this case to secure and maintain uniformity

of the decisions of this Court as envision under the provi-

sions of Supreme Court Rule 10. The challenged panel

decision of the Court of Appeals which was entered on May

4, 2004 [App. A], and which erroneously affirmed the

earlier decision of the District Court dismissing Peti-

tioner’s petition for writ of habeas corpus in a criminal

case, directly and unequivocally conflicts with the decision

of the United States Supreme Court in Brecht v. Abra-

hamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353

(1993), and, therefore, the intervention of this Court is

required so as to secure and maintain uniformity of federal

law as established by this Court. See, 28 U.S.C.

§2254(d)(1). Furthermore, and as discussed below, this

case involves questions of exceptional importance and

public interest including (a) areas of evidence which are

improper for expert testimony under Frye v. United States,

293 F. 1013 (D.C. Cir. 1923); see also, Daubert v. Merrell

Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.Ct. 2786,

125 L.Ed.2d 469 (1993); United States v. Charley, 189 F.3d

1251 (10th Cir. 1999); (b) the denial of federal due process

and fundamental fairness as confirmed by this Court in

terms of the prohibition against a third party testifying

and vouching for the credibility and veracity of the com-

plaining witness and thereby invading the province of the

jury alone to make such a determination as enunciated in

the seminal decisions in Snowden v. Singletary, 135 F.3d

732 (11th Cir.), cert. denied, 525 U.S. 963, 119 S.Ct. 405,

142 L.Ed.2d 329 (1998); United States v. Azure, 801 F.2d

336 (8th Cir. 1986); see also, Lambright v. Stewart, 220

F.3d 1022 (9th Cir. 2000), citing United States v. Young,

470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); United

States v. Binder, 769 F.2d 595 (9th Cir. 1985); United

States v. Samara, 643 F.2d 701 (10th Cir. 1981); and (c) the

cumulative effect of such error which results in similar

prejudice to the defendant and an indisputable denial of

due process and fundamental fairness in a criminal

proceeding. Mak v. Blodgett, 979 F.2d 614 (9th Cir. 1992);

United States v. Tucker, 716 F.2d 576 (9th Cir. 1983);

Ewing v. Williams, 596 F.2d 391 (9th Cir. 1979).

More specifically, and contrary to the challenged

opinions of the Court of Appeals and District Court [App.

A-C & M, the due process rights of Petitioner, as guaran-

teed under the Fifth and Fourteenth Amendments to the

United States Constitution, were indisputably violated by

the improper admission of the testimonies of Dr. Roy

Simms and Robyn Light. [ER 311-46, 368-423]. Further,

said violations did in fact result in prejudicial error in

terms of said error having had a substantial and injurious

effect or influence the jury’s guilty verdict as enunciated in

Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710,

123 L.Ed.2d 353 (1993). There is no question Petitioner

demonstrated that the challenged state court rulings [App.

See

on mt at th Ta NR rte Pe ee

D-L, Q], were “contrary to, or involved an unreasonable

application of, clearly established Federal law, as deter-

mined by the Supreme Court.” 28 U.S.C. §2254(d)(1).

With respect to Ms. Light, it is clear that the errors

associated with her testimony were of constitutional

magnitude in terms of violation of due process. Without

question, an expert may not testify unless qualified, and

that expert’s proffered testimony is scientifically reliable

and will assist the jury in understanding the issues.

United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir.

1973); see also, State v. Black, 109 Wn.2d 336, 341-42, 348,

745 P.2d 12 (1987). The government bears the burden of

proving that an admission of expert testimony which is

without such requisite foundation is harmless. United

States v. Velarde, 214 F.3d 1204, 1211 (10th Cir. 2000).

Further, expert testimony will not be permitted if it

invades the province of the jury. Jd.

Here, Ms. Light’s testimony was not based upon any

recognized scientific principle and, over defense objection

[ER 368-423; App. K and Q], no foundation for the same

was ever presented at trial. Frye v. United States, 293 F.

1013, 1014 (D.C. Cir. 1923); see also, Daubert v. Merrell

Dow Pharmaceutical, Inc., 509 U.S. 579, 592, 113 S.Ct.

2786, 125 L.Ed.2d 469 (1993); United States v. Charley,

189 F.3d 1251, 1266-67 (10th Cir. 1999). In this regard,

novel scientific theories are admissible only if they are

sufficiently established to have gained general acceptance

in the scientific community. Jd. Ms. Light’s purported

theories and opinions concerning the alleged truthful-

ness of children’s statements which entail “sensory

details” were both novel and, perhaps more accurately

described as nothing short of conjecture and speculation

on her part rather than based upon any recognized or

reliable scientific fact or principle. Jd. Given the material-

ity and highly significant nature of Ms. Light’s expert

testimony to the prosecution’s case against SHAFER,

there can be no question that her testimony constituted a

denial of due process. Osborne v. Wainwright, 720 F.2d

1237, 1238 (11th Cir. 1983).

Furthermore, even if it could somehow be said the

admission of Ms. Light’s testimony simply entailed an

evidentiary error and did not rise to the level of constitu-

tional error, her testimony was nevertheless unreliable,

not based upon any established scientific principles and, in

light of the remaining evidence, rendered the trial of

Appellant both arbitrary and fundamentally unfair so as

to violate federal due process. See, Mancuso v. Olivarez,

292 F.3d 939, 956 (9th Cir. 2002). In this regard, Ms.

Light’s testimony concerning the presence of “sensory

details” was based solely upon out-of-court statements

which the complaining witnesses had made to a third

party, the investigating detective, Edmond West Campbell.

[ER 389, 397-416; App. K and Q]. Ms. Light never spoke

directly to the children. [ER 374; App. K and Q]. She was

not present at the interviews. Thus, she was not privy to

the method, manner or mode of Detective Campbell’s

technique in eliciting information from the children which

may or may not have been coercive or suggestive in na-

ture. [ER 374, 389, 397-416, 421-23; App. K and Q].

Equaily important, Ms. Light never had the opportu-

nity to either view or consider the demeanor of the alleged

victims during Detective Campbell’s interviews of them.

[ER 374, 389, 397-416, 421-23; App. K and Q]. On cross-

examination, Ms. Light readily conceded the totally unreli-

able nature of her supposed scientifically-based opinions

and expert testimony. [ER 374, 389, 397-416, 421-23; App.

Ser Sea a te Ac ds Ae tl ee OE

K and Q]. For this reason alone, the trial court should

never have been permitted her to testify in the first

instance concerning so-called “sensory details.” Moreover,

the simple fact that the trial court gave the jury certain

cautionary instructions concerning Ms. Light’s alleged

theories and opinions concerning “sensory details,” and the

possible lack of evidentiary foundation for such theories

and opinions, those corrective measures, if they can

honestly be called that, were simply too little too late.

Common sense dictates that once the bell of Ms. Light’s

prejudicial testimony was rung, it could not be unrung by

way of any curative instruction to the jury.

Furthermore, in terms of constitutional error involv-

ing a blatant violation of federal due process, the subject

testimony of Ms. Light erroneously invaded the province of

the jury in determining the credibility of the complaining

witnesses. See generally, Snowden v. Singletary, 135 F.3d

732 (11th Cir.), cert. denied, 525 U.S. 963, 119 S.Ct. 405,

142 L.Ed.2d 329 (1998); see also, Verlarde, 214 F.3d at

1211; Charley, 189 F.3d at 1267. Needless to say, by

denying certiorari in Snowden, this Court established that

decision as controlling under federal law. See, 28 U.S.C.

§2254(d)(1). In this vein, said testimony of Ms. Light

improperly vouched for the credibility of the child wit-

nesses or, at least as the State Appeals Court recognized,

had the direct effect of buttressing their credibility in the

eyes of the jury. Stated differently, the jury “may well have

relied on the [expert opinion of Ms. Light] and surren-

der[ed] their own common sense in weighing the testi-

mony” of the child witnesses. United States v. Azure, 801

F.2d 336, 340-41 (8th Cir. 1986).

In fact, just as had occurred in Snowden, the prosecu-

tion in this case repeatedly emphasized the importance of

Dr. Simms’ and Ms. Light’s testimonies in substantiating

the trustworthiness of the otherwise questions claims of the

complaining witnesses. [ER 473-92; App. K and Q]. Thus,

the basic tenets of federal due process and fundamental

fairness were without a doubt violated. Lambright v.

Stewart, 220 F.3d 1022, 1029 (9th Cir. 2000) (citing United

States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84

L.Ed.2d 1 (1985)); United States v. Binder, 769 F.2d 595,

602 (9th Cir. 1985); United States v. Samara, 643 F.2d 701,

705 (10th Cir. 1981).

Moreover, when the remaining evidence in this case is

considered, it is clear that the inflammatory, prejudicial

nature of Ms. Light’s testimony substantially and injuri-

ously effected or influenced the jury’s verdict in this case.

Brecht, 507 U.S. at 638. Contrary to the District Court’s

judgment in this case [ER 530-45; App. B and C], as well

as the apparent basis for the challenged decision of the

Court of Appeals [App. A and M], this case is without

question analogous to Snowden v. Singletary, supra. See

also, United States v. Velarde, supra. The fact Ms. Light’s

evidence may or may not have been as “sweeping” as in

Snowden is of no consequence. Her testimony had the

unqualified effect of buttressing the complaining wit-

nesses’ credibility in the eyes of the jury and, thus, consti-

tuted error of constitutional magnitude. See, Binder, 769

F.2d at 602; see also, Lambright, 220 F.3d at 1029. Fur-

thermore, when examined in context, it is far more likely

Ms. Light’s testimony could have readily been perceived by

the jury as 100% proof of the truthfulness of the girls. In

comparison, the expert testimony in Snowden was far less

compelling or sweeping in that regard. There, the expert

witness testified “that 99.5% of children tell the truth,”

and that he “had not personally encountered an instance

where a child had invented a lie about abuse.” Snowden,

135 F.2d at 737. Based upon this testimony, the Court of

Appeals granted habeas corpus relief. Snowden, 135 F.2d

at 737-39; see also, Velarde, at 1211-12. Hence, the clear

import of Snowden cannot be ignored in this case. Id.

Second, the District Court’s reliance upon the testi-

mony of Ms. Ulrey in concluding that any error associated

with Ms. Light’s testimony was harmless, is glaringly

misplaced. The Court of Appeals overlooked crucial facts in

this regard [App. A and M], as did the District Court in its

underlying decision [App. B and C]. At best, the trustwor-

thiness of Ms. Ulrey’s testimony is highly questionable at

the very least in terms of her awaiting criminal sentencing

and also in terms of her likely motive of revenge against

Petitioner in testifying as she did. [App. K and Q]. Fur-

thermore, even if her testimony concerning the alleged

abuse of her daughter was in any sense compelling as the

District Court suggests in its decision [ER 535; App. K and

Q], it is clear this evidence alone does not corroborate all

the charges brought against the Petitioner in terms of all

acts purportedly committed against all three alleged

victims. Given the questionable nature of the remaining

evidence against Petitioner, including that of Ms. Ulrey

which the District Court relied upon, the violation of

federal due process in terms of the Ms. Light’s testimony

cannot be deemed harmless insofar as that testimony can

only be fairly described as having substantially and

injuriously effected or influenced the jury’s guilty verdict.

Brecht, 507 U.S. at 638. The credibility of all three chil-

dren’s stories went to the heart of the prosecution’s case

against Petitioner. Snowden, 135 F.2d at 738; see also,

Velarde, 214 F.3d at 1211-212. As a result, Petitioner is

entitled to the requested habeas corpus; the State Appeals

Court concerning Ms. Light’s testimony “was contrary to,

or involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court.”

28 U.S.C. §2254(d)(1). Thus, the petition for writ of habeas

corpus should have been granted; the Court of Appeals

was simply wrong in not reversing the District Court. Jd.

Even assuming, arguendo, that the foregoing constitu-

tional challenges associated with Ms. Light’s testimony

were alone insufficient to constitute prejudicial error

under Brecht, 507 U.S. at 638, the cumulative effect of

such error, when considered with the further improper

admission of Dr. Simms’ testimony, certainly constituted

such prejudicial error requiring habeas corpus relief. See,

Mak v. Blodgett, 979 F.2d 614, 622 (9th Cir. 1992); see also,

United States v. Tucker, 716 F.2d 576, 595 (9th Cir. 1983);

Ewing v. Williams, 596 F.2d 391, 395 (9th Cir. 1979).

These combined errors were of constitutional magnitude;

they had a substantial and injurious effect upon the

verdict of the jury in this case as envisioned in Brecht, 507

US. at 638. Id.

The State Appeals Court treated this error as being

constitutional in magnitude. [App. K and Q]. Suffice it to

say, this determination is now res judicata and the law of

this case. Likewise, this Court in Young, 470 U.S. at 18-19,

also recognized that “vouching for the credibility of a

witness” necessarily invades the province of the jury and

denies federal due process. See also, Lambright, 220 F.3d

at 1029. Thus, federal habeas corpus relief should have

been granted. Jd.; see also, 28 U.S.C. §2254(d)(1). Hence,

the relief now requested should be granted as well.

CONCLUSION

Pursuant to Rules 10(a) and 10(c) of the Rules of the

Supreme Court of the United States, and 28 U.S.C. §1254,

Petitioner, DARRELL LEE SHAFER, respectfully requests

that this Court accept his petition for writ of certiorari and

that a writ be issued by this Court to the United States

Court of Appeals for the Ninth Circuit to review the

latter’s opinions and orders in the case at bar.

DATED this 13 day of September, 2004.

Respectfully submitted,

BEVAN J. MAXEY

Attorney and Counsel of Record

for Petitioner Shafer

App. i

TABLE OF CONTENTS

APPENDICES

Page

Federal Opinions:

Appendix A: Order [United States Court of

Appeals-for the Ninth Circuit] unofficially re-

ported at Shafer v. Miller-Stout, No. 03-35254

CHa Cee BRIN i Fi arc isscetisiictencasahnsctneiavanaconencuentidd App. 1

Appendix B: Judgment [United States District

Court, Eastern District of Washington] unoffi-

cially reported at Shafer v. Miller-Stout, No. CS-

00-419-CI (E.Wash. February 7, 2003) ................... App. 2

Appendix C: Order Adopting Report and Recom-

mendation [United States District Court, East-

ern District of Washington] unofficially reported

at Shafer v. Miller-Stout, No. CS-00-419-CI

(EE. Wasa. February 7, BOOB). ..ccecccsccrscicssccsscascosssdsvics App. 3

Appendix D: Order [United States District Court,

Eastern District of Washington] unofficially re-

ported at Shafer v. Miller-Stout, No. CS-00-419-

FVS (E.Wash. March 17, 20038) ..............ceeeeeeeee App. 20

Underlying State Court Opinions:

Appendix E: Certificate of Finality [Washington

State Court of Appeals, Division III] unofficially

reported in In the Matter of the Application for

Relief from Personal Restraint of Shafer, No.

18972-4-III (January 18, 2001)... eee App. 23

Appendix F: Order [Supreme Court of the State of

Washington] unofficially reported in Jn the Per-

sonal Restraint Petition of Shafer, No. 70139-3

GE Ty Tints ccelnssdhtintieat App. 24

App. li

TABLE OF CONTENTS

APPENDICES - Continued

Page

Appendix G: Ruling Denying Review [Supreme

Court of the State of Washington] unofficially

reported in Jn the Personal Restraint Petition of

Shafer, No. 70139-3 (October 27, 2000)................ App. 25

Appendix H: Order [Washington State Court of

Appeals, Division III] unofficially reported in In

the Matter of the Application for Relief from Per-

sonal Restraint of Shafer, No. 18972-4-III (July

Be, OED. chtedhssskcnttictacrinnaeiaaamaaa App. 30

Appendix I: Mandate [Washington State Court of

Appeals, Division III] unofficially reported in

State v. Shafer, No. 16072-6-III (February 3, .

SD. ihintnsctennisaneiviemnanesneavaenaaceamanmmatenl App. 41

Washington] unofficially reported in State v.

Shafer, No. 67051-0 (January 6, 1999)................. App. 43

Appendix K: Unpublished Opinion [Washington

State Court of Appeals, Division III] unofficially

reported in State v. Shafer, No. 16072-6-III (June

i BE sin scncnccscedienallilnnincicasibeasalielananieiiaenanaiaaanae App. 44

Appendix L: Judgment and Sentence [Superior

Court of Yakima County, State of Washington]

unofficially reported in State v. Shafer, No. 95-1-

01068-2 (September 13, 1996).............. ee eeeeeeeee App. 60

Federal Opinion Denying Rehearing:

Appendix M: Order [United States Court of

Appeals for the Ninth Circuit] unofficially re-

ported at Shafer v. Miller-Stout, No. 03-35254

CORR Cio ND. BG, TWO isn ciccssactacccrsstnneniin App. 73

hes pow as

App. iii

TABLE OF CONTENTS

APPENDICES - Continued

Page

Constitutional Provisions Involved:

Appendix N: Fifth Amendment/United States

ia a ala pinewnibvesecctensesennensee App. 74

Appendix O: Fourteenth Amendment/United

oi ssa ccstansentencentedecenesaces App. 75

Statutory Provisions Involved:

Appendix P: 28 U.S.C. §2254(d)(1) ...... eee App. 17

Other:

Appendix Q: Opening Brief of Appellant [Partial-

Statement of Facts] dated August 14, 2003, and

filed in cause no. 03-35254 with the United

States Court of Appeals for the Ninth Circuit......App. 80

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 03-35254

CT/AG#; CV-00-00419-CI

DARRELL LEE SHAFER

Petitioner-Appellant

MAGGIE MILLER-STOUT

Respondent-Appellee

(Filed June 25, 2004)

APPEAL FROM the United States District Court for

the Eastern District of Washington (Spokane).

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for the

Eastern District of Washington (Spokane) and was duly

submitted. )

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of

the said District Court in this cause be, and hereby is

AFFIRMED.

Filed and entered May 4, 2004

App. 2

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DARRELL LEE SHAFER, )

Petitioner, } NO. CS-00-419-Cl

v. ) JUDGMENT

MAGGIE MILLER-STOUT, (Filed Feb 07, 2003)

Respondent. )

DECISION BY THE COURT:

This action came to hearing before the Court. The ~

issues have been heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that the Report

and Recommendation is ADOPTED; Darrell Lee Shafer’s

- Petitition [sic] is DENIED and Judgment is entered.

DATED this 7th day of February, 2003.

JAMES R. LARSEN

District Court Executive/Clerk

/s/ (Ilegible]

Deputy Clerk

cc: all counsel

App. 3

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DARRELL LEE SHAFER, No. CS-00-419-CI

Petitioner, ORDER ADOPTING

‘ REPORT AND

RECOMMENDATION

MAGGIE MILLER-STOUT,

(Filed Feb. 7, 2003)

Respondent.

DARRELL LEE SHAFER has filed a petition for a

writ of habeas corpus. His petition was referred to United

States Magistrate Judge Cynthia Imbrogno, who recom-

mends that it be dismissed. For the reasons set forth

below, the Court adopts her recommendation.

BACKGROUND

Mr. Shafer was convicted by a jury in Yakima County

Superior Court of five counts of First Degree Rape of a

Child, RCW 9A.44.073, two counts of First Degree Child

Molestation, RCW 9A.44.083, and one count of Attempted

First Degree Child Molestation, RCW 9A.44.083 and

9A.28.020. He received 360-month terms of imprisonment

on two counts of First Degree Rape of a Child. He received

lesser terms of imprisonment on the remaining counts. He

is serving all terms of imprisonment concurrently.

Mr. Shafer appealed his convictions and sentences.

The Washington Court of Appeals affirmed. He petitioned

the Supreme Court of the State of Washington to grant

discretionary review. His request was denied. Mandate

was issued on January 6, 1999. On December 22, 1999, he

sought post-conviction relief by filing a Personal Restraint

App. 4

Petition (“PRP”) with the state Court of Appeals. The

Chief Judge dismissed his PRP. The state Supreme Court

denied discretionary review.

On June 22, 2001, Mr. Shafer filed a petition for a

writ of habeas corpus. 28 U.S.C. § 2254. His petition is

governed by the Antiterrorism and Effective Death Pen-

alty Act. Under the AEDPA, Mr. Shafer is entitled to relief

only if the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court.”

28 U.S.C. § 2254(d)(1).

EXPERT TESTIMONY

At Mr. Shafer’s trial, the prosecutor offered the

opinions of two expert witnesses. One was Dr. Roy Simms,

a pediatrician. He had conducted a physical examination

of one of the complaining witnesses, a nine year old girl

named Danielle. (Verbatim Report of Proceedings at 548-

50.) Dr. Simms testified, without objection, that his

“[djiagnosis [was] sexual abuse.” Jd. at 564. The other

expert was Robyn Light. She is employed by the Yakima

County Prosecuting Attorney. She manages the victim-

witness unit and she serves as a senior investigator. Id. at

611-14. Ms. Light testified about a number of issues.

Among other things, she opined that children are incapa-

ble of describing events in terms of their senses — 1.e., by

using the language of taste, touch, sight, smell or hearing

— unless they actually have experienced the events they

are describing. Jd. at 619. Ms. Light referred to details

such as these as “sensory details.” Jd. Ms. Light had not

interviewed the complaining witnesses who testified

against Mr. Shafer. They had been interviewed by another

App. 5

law enforcement officer. The prosecutor asked Ms. Light to

review the statements that the complaining witnesses had -

made to the other officer and to indicate whether their

statements contained sensory details. Over Mr. Shafer’s

repeated objections, Ms. Light quoted numerous state-

ments that, in her opinion, contained sensory details. See,

e.g., id. at 639-46 and 652-56. Although the trial judge

overruled Mr. Shafer’s objections, he did give a number of

limiting instructions during the course of Ms. Light’s

testimony. Id. at 636-37, 639-40, 643-44, 646-47, and 654.

On appeal, the Washington Court of Appeals evalu-

ated the disputed expert testimony under Washington

Rule of Evidence 702, concluding that Ms. Light’s testi-

mony helped the jury understand the significance of

sensory details in the statements made by the complaining

witnesses. In addition, the state Court of Appeals noted

that Ms. Light had not commented directly upon Mr.

Shafer’s guilt or the complaining witnesses’ veracity. As a

result, the state appellate court upheld the admissibility of

Ms. Light’s testimony under Rule 702. State v. Shafer, No.

16072-6-III, 1998 WL 303864, at *4 (Wn. App. June 9,

1998). The testimony of Dr. Simms was a different matter.

Since his diagnosis of sexual abuse was based exclusively

upon statements he obtained from Danielle during the

course of the physical examination, the state Court of

Appeals ruled that his diagnosis should have been ex-

cluded. Jd. However, in view of the “overwhelming un-

tainted evidence” provided by other witnesses, the state

Court of Appeals concluded that the error was harmless.’

* The state court cited State v. Florczak, 76 Wn. App. 55, 74-75, 882

P.2d 199 (1994), as part of its harmless error analysis. By doing so, the

(Continued on following page)

eee

App. 6

Mr. Shafer claims the state appellate court erred in

refusing to vacate his convictions based upon the allegedly

erroneous admission of Dr. Simms’s and Ms. Light’s

testimony. Magistrate Judge Imbrogno does not agree.

Insofar as Ms. Light is concerned, she has concluded the

state appellate court correctly rejected Mr. Shafer’s allega-

tion that Light vouched for the credibility of the complain-

ing witnesses. For one thing, Ms. Light never stated

directly that the girls were credible or that Mr. Shafer was

guilty. For another thing, the trial judge repeatedly

cautioned the jury regarding the limited admissibility of

Ms. Light’s testimony. Insofar as Dr. Simms is concerned,

Magistrate Judge Imbrogno has concluded that the state

appellate court properly ruled that the admission of his

testimony was harmless. Besides the factors cited by the

state court, she notes that Dr. Simms did not identify

Danielle’s alleged assailant.

Mr. Shafer objects to Magistrate Judge Imbrogno’s

conclusions on a number of grounds. Among other things,

he argues that Ms. Light’s testimony should have been

excluded under Washington Rule of Evidence 702, that her

testimony was fundamentally unreliable; that Dr. Simms

and Ms. Light vouched for the credibility of the complain-

ing witnesses; that Magistrate Judge Imbrogno failed to

consider the compound effect of their testimony; and that

the limiting instructions given by the trial judge only

made things worse.

The standard governing this claim is clear. “A writ of

habeas corpus will be granted for an erroneous admission

court implied that the error in admitting Dr. Simms’s testimony was of

constitutional magnitude.

App. 7

of evidence only where the ‘testimony is almost entirely

unreliable and . . . the factfinder and the adversary system

will not be competent to uncover, recognize, and take due

account of its shortcomings,” Mancuso v. Olivarez, 292

F.3d 939, 956 (9th Cir.2002) (quoting Barefoot v. Estelle,

463 U.S. 880, 899, 103 S.Ct. 3383, 3398, 77 L.Ed.2d 1090

(1983)). Thus, it matters not whether the state Court of

Appeals properly upheld the admissibility of Ms. Light’s

testimony under the Washington Rules of Evidence. See,

e.g., Dillard v. Roe, 244 F.3d 758, 766 (9th Cir.2001) (“We

need not decide ... whether the admission of [the dis-

puted] was error under California law.”). To obtain habeas

relief, Mr. Shafer “must show that the error rendered [his]

trial so arbitrary and fundamentally unfair that it violated

federal due process.” Mancuso, 292 F.3d at 956 (internal

punctuation and citations omitted). In an effort to satisfy

that standard, Mr. Shafer cites a number of cases in which

courts of appeal have addressed allegations of improper

vouching. Magistrate Judge Imbrogno declined to follow

these cases on the ground that Mr. Shafer failed to estab-

lish that their holdings reflect clearly established federal

law as determined by the Supreme Court. Under the

AEDPA, this is an important issue. The decision of a state

court may not be overturned on habeas review simply

because it is inconsistent with the ruling of a circuit court

of appeals. Moore v. Calderon, 108 F.3d 261, 264 (9th

Cir.1997). Furthermore, even if the cases cited by Mr.

Shafer have some persuasive authority, Van Tran uv.

Lindsey, 212 F.3d 1143, 1154 (9th Cir.), cert. denied, 531

U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000), they do

little to support his request for habeas relief. This can be

seen by reviewing the facts of Snowden v. Singletary, 135

F.3d 732 (11th Cir.), cert. denied, 525 U.S. 963, 119 S.Ct.

405, 142 L.Ed.2d 329 (1998). In that case, an expert

App. 8

testified “that 99.5% of children tell the truth,” and that he

“had not personally encountered an instance where a child

had invented a lie about abuse.” 135 F.3d at 737. The

expert’s testimony was especially troublesome because the

prosecution’s case against Mr. Snowden was based almost

entirely upon the statements of three young children. Id.

at 738. Mr. Shafer’s case is much different. To begin with,

neither Dr. Simms nor Ms. Light made the type of sweep-

ing statements that occurred in Snowden. In addition, the

case against Mr. Shafer was far stronger than the case

against Mr. Snowden. One crucial distinction between the

two cases is the testimony of Lisa Ulrey, Mr. Shafer’s

former girlfriend. She testified that, on more than one

occasion, she was present when he sexually abused her

daughter Danielle. (Verbatim Report of Proceedings at

431-440.) Not only is her account of her daughter’s ordeal

very powerful, but also the jury had reason to credit her

testimony. At the time Ms. Ulrey testified, she was in the

Yakima County Jail. She had pleaded guilty to two counts

of being an accomplice to the First Degree Rape of a Child.

She fully expected to be sentenced to two, consecutive ten-

year terms of imprisonment. Jd. at 427-28. Although she

freely conceded that she previously had been convicted of

serious crimes and that she was a drug addict, she ap-

pears to have held up well under cross-examination.”

Thus, even if the admission of both Dr. Simms’s and Ms.

Light’s testimony was error of constitutional magnitude, it

* The following exchange is illustrative:

Q_ [by defense counsel] Why was it important for you to

have your sentencing after [Mr. Shafer’s] trial?

A Because I want to see him rot in heil.

(Verbatim Report of Proceedings at 452.)

App. 9

is unlikely that the error had a substantial and injurious

effect upon the verdict. See Brecht v. Abrahamson, 507

U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Padilla

v. Terhune, 309 F.3d 614, 621-22 (9th Cir.2002) (discuss-

ing Supreme Court jurisprudence concerning harmless

error standard). Quite frankly, the testimony of Dr. Simms

and Ms. Light pales in comparison to Ms. Ulrey’s testi-

mony. Given this reality, Mr. Shafer cannot demonstrate

that the Washington Court of Appeals’ rulings regarding

the testimony of Dr. Simms and Ms. Light were “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court.”

INTIMIDATION OF DEFENSE WITNESSES

Prior to sentencing, Mr. Shafer moved for a new trial.

(Verbatim Report of Proceedings at 1017.) He claimed that

Edmond “Ed” Campbell, a detective with the Yakima

County Sheriffs Office, contacted four persons who would

have testified on his behalf and discouraged them from

attending his trial. The trial judge denied Mr. Shafer’s

motion because he had not provided any evidence to

support his allegations of witness tampering. Jd. at 1062.

Mr. Shafer did not seek direct review of the judge’s ruling.

However, he did challenge it in his PRP. He attempted to

support his allegation of witness tampering by attaching

affidavits to a brief.‘ One of the affidavits was from his

mother, Onieta Shafer. She recounted statements made by

* This is not to say Ms. Light’s testimony would be admissible

under Federal Rule of Evidence 702.

* The brief is Exhibit 11 in the “Submission of Relevant State

Court Record.”

App. 10

Diane Binge-Cameron, who allegedly told Mr. Shafer’s

mother that she knew that someone other than Mr. Shafer

had molested the children. Besides this affidavit, Mr.

Shafer also submitted affidavits from Richard Baugher,

Lynda Bass, and Robert C. Bass. All three said they were

contacted by Detective Campbell and Mr. Shafer’s trial

attorney. According to all three, both Detective Campbell

and Mr. Shafer’s trial attorney told them that their testi-

mony would not be helpful. The Chief Judge of the Wash-

ington Court of Appeals rejected Mr. Shafer’s allegations

of witness tampering because he did not “provide compe-

tent proo* of this claim beyond mere conclusory or hearsay

allegations.” (Order Dismissing Personal Restraint Peti-

tion at 8-9.) Mr. Shafer argues that the Chief Judge erred

by refusing to grant relief on this ground. Magistrate

Judge Imbrogno does not agree. She says the evidence Mr.

Shafer has submitted in support of this claim is insuffi-

cient, to the extent it is admissible, to warrant habeas

relief. Furthermore, she says Mr. Shafer does not qualify

for an evidentiary hearing under 28 U.S.C. § 2254(e).

One of the potential witnesses whom Detective Camp-

bell aliegedly contacted was Ms. Binge-Cameron. The

comments attributed to her by Mr. Shafer clearly are

hearsay. He has failed to cite any authority that requires a

state court to grant post-conviction relief based upon

hearsay for which no evidence of trustworthiness exists.

Cf. Murtishaw v. Woodford, 255 F.3d 926, 958 (9th

Cir.2001) (stale hearsay in an affidavit insufficient to

warrant habeas relief), cert. denied, _ _ U.S. ___, 122 S.Ct.

1313, 152 L.Ed.2d 222 (2002). A second potential witness

was Mr. Baugher. He would have provided character

testimony. The third and fourth potential witnesses were

the Basses. Mr. Shafer did not inform the state appellate

App. 11

courts just what they would have said at his trial. It now

appears they would have testified that Mr. Shafer is a

man of good character and that Lisa Ulrey, their adopted

_daughter, is a woman of bad character.” Thus, the testi-

mony of the Basses was not unlike that of Mr. Baugher.

All three were potential character witnesses whom Mr.

Shafer’s trial attorney decided not to call. Significantly,

Mr. Shafer has failed to cite any authority that requires a

state court to grant post-conviction relief based upon a

defense attorney’ decision to refrain from presenting

cumulative testimony regarding his client’s character.

In evaluating Magistrate Judge Imbrogno’s recommen-

dation on this issue, the Court assumes Detective Campbell

contacted the four potential witnesses listed above. How-

ever, since it is undisputed that Mr. Shafer’s trial attorney

decided not to call these four persons as witnesses, Mr.

Shafer is not entitled to habeas relief on this ground.

EFFECTIVE ASSISTANCE

Mr. Shafer claims that his trial attorney did not provide

effective assistance. Magistrate Judge Imbrogno has con-

cluded that Mr. Shafer properly exhausted two ineffective

assistance claims, viz., that his trial attorney failed to

impeach Maria, one of the complaining witnesses, and that

his trial attorney failed to subpoena Diane Binge-Cameron,

Richard Baugher, Lynda Bass, and Robert C. Bass.

* While Mr. Shafer submitted affidavits from the Basses to the

state appellate courts indicating that they had been contacted by

Detective Campbell, their affidavits did not indicate what they would

have said had Mr. Shafer’s trial attorney decided to call them as

witnesses. Mr. Shafer attempted to fill this gap in the record by

attaching affidavits from the Basses to his habeas petition.

App. 12

Insofar as the alleged failure to impeach Maria is

concerned, Magistrate Judge Imbrogno notes that the

Washington Court of Appeals evaluated the merits of this

claim under Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), which sets forth the

governing standard. The issue, then, is whether the Court

of Appeals resolved this claim in a manner that reflects an

unreasonable application of the Strickland standard.

Williams v. Taylor, 529 U.S. 362, 404-06, 120 S.Ct. 1495,

1519-20, 146 L.Ed.2d 389 (2000) (O’Connor, J., concur-

ring); Van Tran, 212 F.3d at 1150 (summarizing Justice

O’Connor’s discussion of the phrase “unreasonable appli-

cation”). Magistrate Judge Imbrogno has concluded that

the Court of Appeals did not err. As she points out, the

state court reviewed the Verbatim Report of Proceedings,

noting that Mr. Shafer’s trial attorney did not need to

impeach Maria with a prior inconsistent statement be-

cause, during cross-examination, she provided him with

favorable answers to his questions. State v. Shafer, No.

16072-6-III, 1998 WL 303864, at *6 (Wn. App. June 9,

1998). Furthermore, counsel’s cross-examination appears

to have been effective. On this particular count, the jury

convicted Mr. Shafer of molestation rather than rape. Jd.

Insofar as the alleged failure to subpoena witnesses is

concerned, Magistrate Judge Imbrogno notes that Mr.

Shafer first raised his claim in his PRP. The Chief Judge

of the state Court of Appeals rejected it. However, in doing

so, he evaluated the merits of this claim under the Strick-

land standard. The issue, then, is whether he resolved this

claim in a manner that reflects an unreasonable applica-

tion of the Strickland standard. Once again, Magistrate

Judge Imbrogno has concluded that he did not err. As she

points out, Mr. Shafer failed to provide the Chief Judge

App. 13

with evidence from which he could have determined that

the disputed witnesses would have had an impact upon

the outcome of Mr. Shafer’s trial. At most, Mr. Shafer

provided the Chief Judge with conclusory allegations of

ineffective assistance, and the Chief Judge cannot be

faulted for failing to act upon these.

SUFFICIENCY OF THE EVIDENCE

On direct appeal, Mr. Shafer challenged the suffi-

ciency of the evidence. The state Court of Appeals evalu-

ated Mr. Shafer’s contentions in light of the principles set

forth in Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct.

_ 2781, 2788-89, 61 L.Ed.2d 560 (1979), concluding that

each count upon which the jury convicted Mr. Shafer was

supported by evidence sufficient to support the conviction.

State v. Shafer, No. 16072-6-III, 1998 WL 303864, at *4-*5

(Wn. App. June 9, 1998). Mr. Shafer renewed this chal-

lenge in his PRP. The Chief Judge examined Mr. Shafer’s

contentions in light of State v. Green, 94 Wn.2d 216, 616

P.2d 628 (1980), which discusses and applies Jackson.

Thus, both Mr. Shafer’s direct and collateral challenges

regarding the sufficiency of the evidence were evaluated

under the correct legal standard as established by the

Supreme Court. After reviewing the record, Magistrate

Judge Imbrogno has concluded that the state appellate

court’s rulings are not vulnerable to attack under § 2254.

Mr. Shafer objects only to her conclusion regarding Count

IV. This count alleged that, between December of 1994

and March of 1995, Mr. Shafer had sexual intercourse

with Danielle, who was less than twelve years old, at a

house located at 806 Southern Avenue, Selah, Washing-

ton. (Verbatim Report of Proceedings at 862-63.) Mr.

Shafer argues that Danielle denied this allegation during

a> ea ita a Sas NRE RIN MONA SY ve Cin Bh 8 os in

Pe PE a.) ee Pd Pare be Oe ee ad

App. 14

her testimony. Jd. at 519. According to Mr. Shafer, the

only evidence that supports this conviction is the testi-

mony of Detective Campbell. Jd. at 690. Mr. Shafer sub-

mits that Danielle’s recantation fatally undermines this

conviction on Count IV.

The issue raised by Mr. Shafer’s argument is whether

the state Court of Appeals applied Jackson in an unrea-

sonabie manner. In that regard, it is significant that the

United States Supreme Court has never held that, in

assessing the sufficiency of the evidence, a reviewing court

must give greater weight to a victim’s testimony at trial

than to her pretrial statements to a law enforcement

officer when her pretrial statements are admitted as

substantive evidence at trial. To the contrary, it is clearly

established that a reviewing court must defer to the

factfinder’s determinations regarding the credibility of

witnesses. See Hayes v. Woodford, 301 F.3d 1054, 1084

(9th Cir.2002). Consequently, insofar as Count IV is

concerned, Magistrate Judge Imbrogno correctly concluded

that the state appellate court’s resolution of Mr. Shafer’s

sufficiency-of-the-evidence claim was not unreasonable

during either direct or collateral review.

REPETITIVE TESTIMONY

At trial, a number of witnesses related statements

made by the complaining witnesses. Mr. Shafer argued on

direct appeal and in his PRP that the repetition of their

statements denied his right to a fair trial. The state Court

of Appeals rejected this argument, noting that not all of

the statements were repetitive and that the trial judge

had taken steps to prevent undue repr ition. State v.

Shafer, No. 16072-6-III, 1998 WL 303864, at *5-*6 (Wn.

App. 15

App. June 9, 1998). As Magistrate Judge Imbrogno points

out, Mr. Shafer is not entitled to habeas relief based upon

the allegedly erroneous adinission of evidence unless “the

error rendered the trial sv arbitrary and fundamentally

unfair that it violated federal due process.” Mancuso, 292

F.3d at 956 (internal punctuation and citations omitted).

Mr. Shafer has failed to cite any authority indicating that

the state appellate court’s resolution of this issue was

inconsistent with clearly established Federal law as

determined by the Supreme Court.

ADMISSION OF PARTY OPPONENT

Mr. Shafer complains that the trial court improperly

admitted testimony that Mr. Shafer threatened Danielle

and her mother. The state Court of Appeals upheld the ©

admission of Mr. Shafer’s threats under Washington Rule

of Evidence 801(d)(2). Significantly, Mr. Shafer has failed

to cite a single instance in which the United States Su-

preme Court has ruled that the admission of such testi-

mony implicates a defendant’s right to due process.

NEWLY DISCOVERED EVIDENCE

Mr. Shafer was convicted and sentenced in 1996. In

1999, Danielle’s father, Randy Ulrey pleaded guilty to a

charge of Second Degree Rape of a Child. He admitted

that, during October of 1998, he had engaged in sexual

intercourse with Danielle. By this time, the Washington

Court of Appeals had affirmed Mr. Shafer’s conviction.

However, he had yet to seek post-conviction relief in state

court. In his PRP, Mr. Shafer alleged that Mr. Ulrey’s

admission demonstrated that he was the one who had

been abusing Danielle all along. Mr. Shafer sought state

App. 16

post-conviction relief on essentially two grounds. He

argued that his trial attorney had failed to investigate Mr.

Ulrey aggressively enough and that Mr. Ulrey’s plea

constituted newly discovered evidence. The Chief Judge of

the state Court of Appeals rejected both contentions.

With respect to the reasonableness of counsel’s per-

formance, the Chief Judge noted that he had called Mr.

Shafer’s sister, Barbara Sisk, as a witness. Ms. Sisk

testified that she had discussed the issue of sexual abuse

with Danielle. (Verbatim Report of Proceedings at 790.)

Ms. Sisk insisted that Danielle never accused Mr. Shafer

of abuse. Jd. Instead, according to Ms. Sisk, Danielle

indicated that Mr. Ulrey and another person were the

perpetrators. Jd. Given this testimony, the Chief Judge

concluded that Mr. Shafer’s trial attorney had made a

reasonable effort to establish that Mr. Ulrey was the true

offender.

With respect to whether Mr. Ulrey’s guilty plea

constituted newly discovered evidence, the Chief Judge

noted that this issue was governed by a five-part test.

Among other things, Mr. Shafer had to demonstrate that

Mr. Ulrey’s admissions were of such significance that, in

all probability, they would have changed the outcome of

the trial. The Chief Judge concluded that Mr. Shafer could

not satisfy this requirement given the strength of the

prosecution’s case.

Mr. Shafer petitioned for review of the Chief Judge’s

decision by the Washington Supreme Court. A commis-

sioner denied Mr. Shafer’s petition. Among other things,

he observed that Mr. Ulrey’s statement on plea of guilty

“proves only that [Danielle] was raped by a man other

than Mr. Shafer in 1998. Even if that abuse began earlier,

App. 17

it does not-mean that [Danielle] was molested by only one

man or otherwise contradict [Danielle’s] testimony against

Mr. Shafer.” (Ruiing Denying Review at 4.).

In petitioning for federal habeas relief, Mr. Shafer

again cites Mr. Ulrey’s plea of guilty. Magistrate Judge

Imbrogno has construed Mr. Shafer’s reliance upon Mr.

Ulrey’s guilty plea as an effort to assert a free-standing

claim of innocence. See, e.g., Turner v. Calderon, 281 F.3d

851, 872 (9th Cir.2002). This effort cannot succeed, she

observes, because Mr. Ulrey’s admission that he raped

Danielle in 1998 is not inconsistent with the jury’s deter-

mination that Mr. Shafer raped her in 1994 and 1995. Mr.

Shafer objects to this conclusion. He argues that law

enforcement officers and prosecutors in Yakima County

refused to investigate Danielle’s alleged assertion to Ms.

Sisk that it was Mr. Ulrey who was abusing her. He

insists that their refusal to investigate Mr. Ulrey, instead

of him, has resulted in the conviction of an innocent man.

However, despite the passion with which Mr. Shafer

makes this argument, he has failed to demonstrate a flaw

in the Magistrate Judge’s analysis.

SENTENCE

Mr. Shafer was sentenced to a term of 30 years

imprisonment. This-was an exceptional sentence under

state law. Mr. Shafer argues that this sentence was

imposed in viclation of his right to due process, especially

as clarified by Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000). Magistrate Judge

Imbrogno disagrees. To begin with, she notes that most of

the grounds upon which Mr. Shafer relies to attack the

validity of his sentence involve issues of state law, which

App. 18

are not cognizable in a federal habeas proceeding. In

addition, she points out that he may not invoke Apprendi.

This second point is the only one to which Mr. Shafer

objects. He argues that he should be allowed to assert an

‘Apprendi claim.

Mr. Shafer’s conviction became final on January 6,

1999. Apprendi was decided on June 26, 2000. Since, as

Magistrate Judge Imbrogno observes, Apprendi is a new

constitutional rule of criminal procedure, it cannot be

applied retroactively on collateral review unless it fits

within the exceptions set forth in Teague v. Lane, 489 U.S.

288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Magistrate

Judge Imbrogno has concluded that Apprendi does not fit

within the Teague exceptions. In that regard, she correctly

anticipated the Ninth Circuit’s holding on this issue.

United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th

Cir.2002).

VALIDITY OF RCW 9A.44.073

In his Personal [Restraint] Petition, Mr. Shafer

alleged that RCW 9A.44.073, one of the statutes which he

was charged with violating, is invalid because it lacks an

enacting clause. The Chief Judge rejected this contention

as frivolous. Magistrate Judge Imbrogno has determined

that Mr. Shafer did not properly exhaust this claim and

that it now is barred. She is correct. While Mr. Shafer’s

petition for discretionary review referred generally to the

Fourteenth Amendment, this reference was too vague to

give the Washington Supreme Court a full and fair oppor-

tunity to address any constitutional infirmity in RCW

9A.44.073. Duncan v. Henry, 513 U.S. 364, 365-66, 115

S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam).

App. 19

IT IS HEREBY ORDERED:

Darrell Lee Shafer’s petition for a writ of habeas

corpus is denied.

IT IS SO ORDERED. The District Court Executive is

hereby directed to enter this order and furnish copies to

Mr. Shafer and to counsel for his custodian. z

DATED this 6th dav of February, 2003.

/s/ Fred Van Sickle

Fred Van Sickle

Chief United States

District Judge

App. 20

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DARRELL LEE SHAFER,

Petitioner, No. CS-00-419-FVS

v. ORDER

MAGGIE MILLER-STOUT (Filed Mar 17, 2003)

Respondent.

THIS MATTER came before the Court based upon

the petitioner’s motion for appointment of counsel. The

petitioner is representing himself; the respondent is

represented by Assistant Attorney General Diana M.

Sheythe.

BACKGROUND

Darrell Lee Shafer petitioned for a writ of habeas

corpus. 28 U.S.C. § 2254. He sought habeas relief upon a

number of grounds: the improper admission of expert

testimony; intimidation of defense witnesses; ineffective

assistance of counsel; insufficiency of the evidence to

support his convictions; improper admission of repetitive

testimony; improper admission of hearsay; newly discov-

ered evidence; sentencing errors; and the unconstitutional-

ity of one of the statutes which he violated. On February 7,

2003, the Court denied relief and dismissed Mr. Shafer’s

habeas petition. Mr. Shafer filed a notice of appeal on

February 19, 2003.

App. 21

CERTIFICATE OF APPEALABILITY

Mr. Shafer may not appeal the order denying habeas

relief unless he qualifies for a certificate of appealability

(“COA”) under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). 28 U.S.C. § 2253 (c) (1) (A). He is

eligible for a COA only if he has made a “substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253 (c) (2). In Slack v. McDaniel, 529 U.S. 473, 120

S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court

clarified this standard, explaining that the showing

required to satisfy the requirements of § 2253 (c) depends

upon whether a claim was dismissed on the merits or on

procedural grounds. If a claim was dismissed on the

merits, “[t]he petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Id. at 484, 120

S.Ct. at 1604. By contrast, if a claim was dismissed on

procedural grounds, the petitioner must demonstrate, “at

least, that jurists of reason would find it debatable

whether the petition states a valid-claim of the denial of a

constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its

procedural ruling.” Jd. A few of Mr. Shafer’s claims were

dismissed on procedural grounds; most were dismissed on

the merits. However, the only claim that arguably has

merit is Mr. Shafer’s allegation that his right to due

process was violated by the improper admission of expert

testimony. Insofar as this claim is concerned, jurists of

reason could disagree with the Court’s ruling. Thus, the

Court will issue a COA with respect to this one claim.

App. 22 Bi

APPOINTMENT OF COUNSEL

Mr. Shafer is being treated for Hepatitis “C.” As a

result, he urges the Court to appoint counsel to represent

him on appeal. This request will be denied. Mr. Shafer

does not have a constitutional right to have an attorney

appointed to prosecute an appeal of the Court’s order

dismissing his habeas petition. See Bonin v. Vasquez, 999

F.2d 425, 429 (9th Cir.1993). Nor does his illness consti-

tute a special circumstance justifying the appointment of

an attorney. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a) (2)

(B) (district court may appoint counsel in the “interests of

justice” in § 2254 action); Weygandt v. Look, 718 F.2d 952,

954 (9th Cir.1983) (per curiam).

IT IS HEREBY ORDERED:

1. Mr. Shafer is granted a COA with respect to one

issue, viz., whether his right to due process was violated

by the improper admission of expert testimony at his trial.

2. Mr. Shafer’s motion for appointment of counsel

(Ct. Rec. 56) is DENIED.

IT IS SO ORDERED. The District Court Executive is

hereby directed to enter this order and furnish copies to

Mr. Shafer and to counsel for the respondent.

DATED this 16th day of March, 2003.

/s/ Fred Van Sickle

Fred Van Sickle

Chief United States

District Judge

App. 23

APPENDIX E

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

In the Matter of the ) CERTIFICATE OF

Application for Relief ) FINALITY

From Personal Restraint of: No. 18972-4-III

DARRELL L. SHAFER, ) ‘adhe Cunt Bo.

Petitioner. ) 95-1-01068-2

The State of Washington to: The Superior Court of the

State of Washington, in and

for Yakima County

This is to certify that the Order Dismissing Personal

Restraint Petition of the Court of Appeals of the State of

Washington, Division III, filed on July 27, 2000 became

final on January 9, 2001, no further review having been

requested.

cc: Darrell L. Shafer

Lauri M. Boyd

[SEAL] In testimony whereof, I have hereunto

set my hand and affixed the seal of said

Court at Spokane, this 18th day of

January, 2001.

/s/ Patricia L. Crandall

Clerk of the Court of Appeals,

State of Washington Division III

App. 24

APPENDIX F

THE SUPREME COURT OF WASHINGTON

In re the Personal Restraint)

Petition of: ) ORDER

DARRELL LEE SHAFER, ) No. 70139-3

Petitioner. ) C/A No. 18972-4-III

Department I of the Court considered this matter at

its January 9, 2001, Motion Calendar and unanimously

agreed that the following order be entered.

IT IS ORDERED:

That Petitioner's Motion to Modify Commissioner’s

Ruling and Motion to Add New Grounds for Relief are

denied.

DATED at Olympia, Washington this 9th day of

January, 2001.

/s/ (Iegible]

CHIEF JUSTICE

App. 25

APPENDIX G

THE SUPREME COURT OF WASHINGTON

In re the Personal Restraint

Petition of NO. 70139-3

DARRELL LEE SHAFER, RULING DENYING

Petit; REVIEW

etitioner.

Darrell Shafer moves for discretionary review of an

order of the Chief Judge of Division Three of the Court of

Appeals dismissing his personal restraint petition. RAP

16.14(c); RAP 13.5(b).

Mr. Shafer was sentenced to an exceptional term of

360 months in prison based on convictions for repeatedly

raping and molesting his girlfriend’s daughter, D., molest-

ing D.’s friend M., and attempting to molest M.’s sister, A.

Mr. Shafer claims that his trial counsel represented him

ineffectively, that the trial court made several erroneous

evidentiary rulings, that the statutes under which he was

convicted are invalid, that the evidence is insufficient to

support his convictions, that the trial court erred in

imposing an exceptional sentence, and that a guilty plea

by another man mandates vacation of Mr. Shafer’s convic-

tions. Several of these contentions were rejected on appeal,

and they all lack merit.

In June 1995, Mr. Shafer’s girlfriend, L.U., told police

that he had been sexually abusing D. for the past year.

L.U. also said that Mr. Shafer had touched D.’s friends. M.

and A. L.U. admitted she was present during Mr. Shafer’s

abuse of D. and pleaded guilty to two counts of complicity

to first degree rape of a child.

App. 26

D. gave several statements which corroborated her

mother’s allegations. And M. and A. said Mr. Shafer

touched them with his hands and a purple vibrator one

time when they spent the night with D.

Mr. Shafer was charged with seven counts of first

degree rape of a child (six involving D. and one involving

M.), seven alternative counts of first degree child molesta-

tion, and one independent count of child molestation

involving A. The charged incidents allegedly occurred

when D. was 9, M. was 8, and A. was 10. After finding all

three girls competent to testify, the trial court held a

hearing to determine the admissibility of their hearsay

statements under RCW 9A.44.120. The court allowed the

State to present statements the girls made to their school

counselor, a social worker, and two investigating officers,

as well as additional statements D. made to her mother

and father. All three girls also testified, as did L.U., who

told the jury she was present when Mr. Shafer repeatedly

raped and molested D. L.U. and D. both also testified that

Mr. Shafer threatened to kill them if they reported the

abuse.

The State also called Dr. Roy Simms, who testified

that he examined D. and found no physical trauma, but

also that he diagnosed sexual abuse based on her state-

ments. Robyn Light testified as an expert in interviewing

child victims of sexual abuse. She said skilled interviewers

look for “sensory details” in a child’s statement to deter-

mine whether an allegation of sexual abuse warrants

further investigation. Ms. Light also examined D.’s state-

ment to the investigating detective and pointed to several

sensory details it contained.

App. 27

Mr. Shafer did not take the stand, but his sister

testified to D.’s reputation for untruthfulness, and a

longtime friend testified that he trusted Mr. Shafer to be

alone with his own children, and never saw Mr. Shafer

acting unnaturally toward D.

The jury found Mr. Shafer guilty of five of the rape

counts, two alternative molestation counts, and attempted

molestation. The court sentenced Mr. Shafer to excep-

tional terms of 360 months on two of the counts, and to

concurrent standard range terms on the rest.

On appeal, Mr. Shafer claimed the trial court errone-

ously allowed expert testimony from Dr. Simms and Ms.

Light, multiple repetitions of the children’s out-of-court

statements, and testimony that Mr. Shafer threatened D.

and L.U. He also challenged the sufficiency of the evidence

and the performance of his trial counsel. And in a pro se

supplemental brief, Mr. Shafer accused the prosecutor and

the trial judge of misconduct and claimed that substitution

of certain jury instructions during deliberations and a

delay in his sentencing violated due process. The Court of

Appeals affirmed, and this court denied review.’

Mr. Shafer subsequently filed this personal restraint

petition, renewing and in some instances expanding upon

the claims he made on appeal. He also raised several

additional issues involving evidence outside the record.

That evidence includes newspapers accounts of Mr.

Shafer’s record fishing catch, affidavits from his mother

relating her recollections of trial and her discussions with

* State v. Shafer, 91 Wn. App. 1022 (1998), review denied, 137

Wn.2d 1003 (1999).

App. 28

third persons,’ and copies of a statement on plea of guilty

in which D.’s father (Mr. U.) pleaded guilty to second

degree rape of a child for engaging in sexual intercourse

with her during the month of October 1998.

An issue that was rejected on the merits on appeal

will not be reconsidered in a personal restraint petition

unless the petitioner shows the ends of justice would be

served thereby. Jn re Jeffries, 114 Wn.2d 485, 489, 789

P.2d 731 (1990); In re Gentry, 137 Wn.2d 378, 388, 972

P.2d 1250 (1999). Also, simply “‘revising’ a previously

rejected legal argument ... neither creates a ‘new’ claim

nor constitutes good cause to reconsider the original

claim.” In re Jeffries, 114 Wn.2d at 488. I agree with the

Chief Judge that Mr. Shafer has not identified any inter-

vening change in the law or other reason why the ends of

justice require reconsidering the various arguments he

made on appeal.

The Chief Judge also properly found no merit in Mr.

Shafer’s new claims. As the Chief Judge explained, when a

petitioner seeks relief based on facts outside the record, he

must show he has admissible evidence to prove those facts.

In re Rice, 118 Wn.2d 876, 886, 828 P.2d 1086. (1992).

Much of the evidence Mr. Shafer submitted consists of his

mother’s description of her conversations with third

persons, which is inadmissible hearsay. Mr. U.’s statement

on plea of guilty is admissible as a statement against his

penal interest. But it proves only that D. was raped by a

man other than Mr. Shafer in 1998. Even if that abuse

? Mr. Shafer concedes that he and his mother recall trial differ-

ently than the transcript recorded. Specifically, they claim D. testified

that he never touched her.

App. 29

began earlier, it does not mean that D. was molested by

only one man or otherwise contradict D.’s testimony

against Mr. Shafer. Also, the newspaper accounts of Mr.

Shafer’s fishing successes during the period of the charged

crimes do not necessarily place him outside Yakima

County during that period and were, in any event, avail-

able during trial. This is not “newly discovered evidence.”

In re Lord, 123 Wn.2d 296, 319-20, 868 P.2d 835 (1994).

Mr. Shafer’s remaining arguments, including his

challenges to his exceptional sentence and to the statute

under which he w2 _:harged, are frivolous for the reasons

explained in the Cmef Judge’s order.

Mr. Shafer has not shown that the Chief Judge erred

in dismissing his personal restraint petition or that review

is otherwise merited under RAP 13.5(b). The motion for

discretionary review is denied.

/s/ {Megible]

COMMISSIONER

October 27, 2000

App. 30

APPENDIX H

The Court of Appeals

of the

State of Washington

Division III

In the Matter of the )

Application for Relief ) No. 18972-4-III

From Personal Restraint ) ORDER DISMISSING

ok - ) PERSONAL RESTRAINT

DARRELL L. SHAFER, ? PETITION

Petitioner. ) (Filed Jul. 27, 2000)

Darrell L. Shafer seeks relief from personal restraint

imposed upon his Yakima County convictions for five

counts of first degree rape of a child, two counts of first

degree child molestation, and one count of attempted first

degree child molestation. Mr. Shafer previously filed a

direct appeal and this court affirmed. See State v. Shafer,

slip opinion no. 16072-6-III (Wa. Ct. App. 1998).

As a personal restraint petitioner, Mr. Shafer must

show not only error, but also actual and substantial

prejudice resulting from alleged constitutional errors, or,

for alleged nonconstitutional errors, a fundamental defect

that inherently results in a miscarriage of justice, In re

Personal Restraint of Cook, 114 Wn.2d 802, 810, 812, 792

P.2d 506 (1990). The petition must be supported by facts,

not merely conclusory allegations, Cook, 114 Wn.2d at 813-

14. The supporting evidence must be based on “more than

speculation, conjecture, or inadmissible hearsay,” and

failure to meet this burden calls for dismissal of the

petition, Jn re Personal Restraint of Rice, 118 Wn.2d 876.

App. 31

886, 828 P.2d 1086 (1992), cert. denied, 506 U.S. 958, 113

S. Ct. 421, 121 L. Ed. 2d 344 (1992).

Several of Mr. Shafer’s contentions have already been

addressed in the appeal. These include (1) the court erred

in admitting the expert testimony of Robyn Light and Dr.

Roy Simms, and their opinions invaded the province of the

jury; (2) the evidence was insufficient to support the guilty

verdicts for the five first degree rape of a child convictions

against victim D.; (3) the court erred in allowing repetitive

hearsay testimoxy from six state witnesses regarding

victim D.’s accounts of sexual abuse; and, (4) his speedy

sentencing rights were violated. Issues considered and

rejected on their merits in the appeal will not be reconsid-

ered absent a showing “the ends of justice would be served

by reexamining the issue[s].” In re Personal Restraint of

Gentry, 137 Wn.2d 379, 388, 972 P.2d 1250 (1999). Mr.

Shafer has made no such showing; these issues will not be

reconsidered.

Mr. Shafer also contends he received ineffective

assistance from trial counsel. To establish ineffective

assistance of counsel, Mr. Shafer must show that his

attorneys performance was deficient and that he was

prejudiced by the deficiency. Strickland v. Washington, 466

U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984); State v.

Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 5638 (1996).

The first element of Strickland is met by showing that

counsel’s performance was not reasonably effective under

prevailing professional norms. The second test is met by

showing a reasonable probability that, but for counsel’s

unprofessional errors, the result would have been differ-

ent. There is a strong presumption that counsel’s perform-

ance was reasonably effective. State v. Thomas, 109 Wn.2d

222, 226, 743 P2d 816 (1987).

App. 32

Mr. Shafer first says counsel was ineffective for failing

to subpoena and call certain witnesses, including one

expert. But Mr. Shafer does not specify how he was preju-

diced by counsel’s decisions not to pursue the witnesses.

He provides no competent evidence to indicate how any

particular witness would have helped his case. His claim

therefore fails for lack of evidentiary support, In re Per-

sonal Restraint of Rice, 118 Wn.2d at 886. Moreover, a

decision to call or not to call, or even interview, a witness

is a matter of legitimate trial tactics and will not support a

claim of ineffective assistance of counsel. State v. Thomas,

109 Wn.2d at 230; State v. Piche, 71 Wn.2d 583, 590, 430

P.2d 522 (1967), cert denied, 390 U.S, 912, 88 S. Ct. 838, 19

L. Ed. 2d 888 (1968).

Mr. Shafer additionally claims counsel was ineffective

for failing to adequately investigate allegations that the

real perpetrator of the crimes was Randy U. — the father of

victim D. This claim also fails. The record shows the

defense did present this theory through a witness who

testified D. never said Mr. Shafer abused her, but did say

Mr. U. abused her. The jury found Mr. Shafer guilty

irrespective of allegations against Mr. U. Mr. Shafer fails

to show that counsel performed deficiently in this regard.

In the same vein, Mr. Shafer contends he is entitled to

a new trial based upon newly discovered evidence that

following Mr. Shafer’s trial Mr. U. pleaded guilty to sexu-

ally abusing D. Newly discovered evidence is grounds for

relief if there are material facts “which have not been

previously presented and heard, which in the interest of

justice require vacation of the conviction.... ” RAP

16.4(c)(3). To prevail on this claim, Mr. Shafer must show

that the evidence (1) will probably change the result of the

trial; (2) was discovered since the trial; (3) could not have

App. 33

been discovered before trial by the exercise of due dili-

gence; (4) is material; and (5) is not merely cumulative or

impeaching. In re Personal Restraint of Lord, 123 Wn.2d

296, 319-20, 868 P.2d 835 (1994). Mr. Shafer’s claim fails

because the evidence of Mr. U.’s alleged abuse was pre-

sented at trial and is in that sense cumulative to the trial

testimony. And the fact of Mr. U.’s guilty plea is unlikely to

change the result of the trial due to strength of the evi-

dence against Mr. Shafer on each count.

Next, Mr. Shafer contends the evidence was insuffi-

cient to support the first degree child molestation convic-

tion involving victim M. (count VII) and the attempted

first degree child molestation conviction involving victim

A. (count VIII) because there was no physical evidence of

abuse. In reviewing challenges to the sufficiency of the

evidence this court is guided by State v. Green, 94 Wn.2d

216, 616 P.2d 628 (1980), which requires that the evidence

and all reasonable inferences therefrom be viewed in a

light most favorable to the State. Corroborative physical

evidence is not required in child sex crime cases. See State

v. Swan, 114 Wn.2d 613, 790 P.2d 610 (1990), cert. denied,

498 U.S. 1046, 111 S. Ct. 752, 112 L. Ed. 2d 772 (1991).

The State’s evidence shows that in Yakima County on

or between March and May 1995, Mr. Shafer rubbed 9-

year-old M.’s vagina with his hands and a purple vibrator.

During the same timeframe, he grabbed 10-year-old A.’s

hand and tried to force her to touch his penis. (See RP 345-

50, 394-95, 692-93, 869-71, 980-81). This is sufficient

evidence for the jury to find Mr. Shafer guilty of both

crimes beyond a reasonable doubt.

Mr. Shafer next contends the court erred in allowing

the first three State’s witnesses to testify that D. told them

App. 34

Mr. Shafer had also sexually abused M. and A. Each of the

three witnesses did so testify without objection. Mr. Shafer

makes no showing that the testimony relating to charged

conduct that the State in fact proved at trial through other

properly admitted evidence was in any way unduly preju-

dicial. See State v. Harris, 48 Wn. App. 279, 285, 738 P.2d

1059, review denied, 108 Wn.2d 1036 (1987).

Mr. Shafer next contends the couri erred in denying

several motions for mistrial. The court’s denial of a mis-

trial motion is reviewed for abuse of discretion. State v.

Mak, 105 Wn.2d 692, 701, 718 P.2d 407, cert. denied, 479

U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986). The test

is whether the defendant was denied a fair trial. State v.

Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983).

Mr. Shafer’s first alleged ground for a mistrial oc-

curred when his girlfriend Lisa U., with whom he was

living when he committed the crimes, repeatedly referred

to him as a drug user. First, she volunteered during the

State’s direct examination that she was a drug user and

inferred that he was too. The court admonished the jury to

disregard testimony potentially implicating Mr. Shafer in

drug use. (RP 435, 442). Ms. U. repeated similar comments

during her cross examination, once stating that she and

Mr. Shafer were using an eight ball per day, (RP 454).

Defense counsel did not move to strike that answer. Ms. U.

later stated during cross examination that Mr. Shafer was

doing as many drugs as she was. (RP 457). The court did

instruct the jury to disregard that comment. In these

circumstances where the State did not specifically elicit

any improper comments, the court did not abuse its

discretion in denying the mistrial motion. (RP 468-69).

App. 35

Mr. Shafer’s second alleged ground for a mistrial

occurred when the prosecutor asked victim D. on redirect

if she testified truthfully when she told the jury what had

happened with Mr. Shafer. D. answered “Yes,” (RP 602).

The court sustained the objection as outside the scope of

cross examination and instructed the jury to disregard D.’s

answer. Contrary to Mr. Shafer’s contention, this did not

invade the province of the jury. The court did not abuse its

discretion in denying the mistrial motion.

Mr. Shafer’s next alleged ground for a mistrial ap-

pears to instead be a challenge to the sufficiency of the

State’s evidence to take the case to the jury. As discussed

in the direct appeal and the analysis, supra, the State

presented sufficient evidence to support each challenged

conviction.

Mr. Shafer’s next alleged ground for a mistrial oc-

curred during the State’s closing argument when the

deputy prosecutor, in asserting lack of motive for D. to

fabricate the abuse charges, also stated that D.’s mother

(Ms. U.) anticipates serving “two ten year prison terms,

back to back” for her own involvement in the crimes.

Counsel moved for a mistrial on the basis the deputy

prosecutor, who was also involved in Ms. U.’s plea agree-

ment, knew Ms. U. would not receive that much prison

time and was therefore misleading the jury. (RP 912-13)

The deputy prosecutor’s statement was an exact reflection

of Ms. U.’s testimony. (RP 412) In denying the mistrial

motion, the court stated the influence of Ms. U.’s testi-

mony was for the jury to decide, but that the particular

sentence would be up to the sentencing judge. (RP 913-14)

Mr. Shafer shows no abuse of discretion. Mr. Shafer’s final

alleged ground for a mistrial stemmed from the previous

ground, except that the court denied the State’s motion for

App. 36

a mistrial based on the deputy prosecutor’s claim that

defense counsel personally attacked her credibility in front

of the jury. Mr. Shafer shows no prejudice to him.

Mr. Shafer fails to show that any of his claimed

irregularities were of a magnitude to prejudice his right to

a fair trial. He shows no abuse of discretion in the denial

of his mistrial motions. State v. Mak, 105 Wn.2d at 701.

Mr. Shafer next contends the court erred in denying

his post-trial motion for new trial. Again, the abuse of

discretion standard governs review. State v. Copeland, 130

Wn.2d 244, 294, 922 P.2d 1304 (1996).

Mr. Shafer’s first alleged ground for a new trial was

claimed juror misconduct. The issue arose during delibera-

tions when defense counsel apprised the court that a juror

purportedly discussed specifics of the case with an ac-

quaintance not involved in the trial and said Mr. Shafer

was guilty. The judge thoroughly examined the juror on

the record and was satisfied that the juror made no such

communications and did nothing to prejudice Mr. Shafer. -

(RP 997-1002) Mr. Shafer makes no showing to the con-

trary.

Mr. Shafer’s next alleged ground for a new trial was

that the court erred in allowing the State to amend count

VIII from first degree child molestation to attempted first

degree child molestation after it rested its case. CrR 2.1(d)

provides that the court may permit an information to be

amended at any time before the verdict if the defendant’s

substantial rights are not prejudiced. Here, the record

reflects the court properly allowed the amendment of

count VIII to a lesser charge to conform to the State’s

proof. See State v. Schaffer, 120 Wn.2d 616, 620-21, 845

P.2d 281 (1993).

App. 37

Mr. Shafer’s next alleged ground for a new trial was

claimed witness tampering by the deputy prosecutor and a

police detective. In denying the motion, the court ruled Mr.

Shafer had produced no proof of such conduct. Now, in his

petition and supporting documents, Mr. Shafer also fails to

provide competent proof of this claim beyond mere conclu-

sory or hearsay allegations. In re Personal Restraint of

Rice, 118 Wn.2d at 886.

Finally, to the extent Mr. Shafer also alleges judicial

misconduct, the claim fails for the same reasons. All of Mr.

Shafer’s alleged grounds for a new trial lack merit.’

Next, Mr. Shafer contends the court erred in imposing

an exceptional sentence based upon the aggravating

factors of (1) abuse of position of a trust relationship with

the child victim D. to facilitate the acts of abuse; (2)

ongoing pattern of sexual abuse of D. by repeated acts over

a prolonged period of time; and, (3) the operation of the

multiple offense policy of RCW 9.94A.400 results in a

presumptive sentence that is clearly too lenient in light of

the purposes of the SRA.

This court engages in a 3-step inquiry when reviewing

an exceptional sentence: (1) whether the trial court’s

reasons supported by the record, (2) whether the stated

reasons justify an exceptional sentence as a matter of law,

and (3) whether the trial court abused its discretion by

imposing a sentence that is clearly excessive. See State v.

Grewe, 117 Wn.2d 211, 214-15, 813 P.2d 1238 (1991). Mr.

Shafer’s challenges are under steps 1 and 3.

* Two additional grounds mentioned by Mr. Shafer — claimed

improper testimony of Dr. Simms and violation of his speedy sentencing

rights — were addressed in the direct appeal and will not be revisited.

App. 38

The court first found that Mr. Shafer lived with and

had a close relationship with the mother of D. during

August 1994 to May 1995. The court additionally found

that Mr. Shafer used his position as the boyfriend of the

child’s mother to gain and maintain access to D. and used

his authority to subject D. to multiple acts of sexual abuse.

These findings are amply supported by the record and in

turn provide a valid legal basis for an exceptional sentence

for abuse of position of trust. (See RP 425, 429-39, 447,

482, 487-88). See also State v. Fisher, 108 Wn.2d 419, 427,

739 P.2d 683 (1987) (relationship with one in same house-

hold indicates trust relationship); State v. PB.T., 67 Wn.

App. 292, 304, 834 P2d 1051, review denied, 120 Wn.2d

1021 (1993) (that crime committed while trust relationship

existed permits inference defendant used that position to

facilitate crime).

Next, the court found that Mr. Shafer engaged in

numerous acts of sexual abuse of D. over a prolonged

period of time. The incidents of abuse occurred many times

over the course of about a year and included conduct for

which Mr. Shafer was not charged. (See RP 279, 285, 431-

34, 477, 484, 512-13, 515-16, 532, 534, 645-46). The record

thus supports this finding, which in turn provides a legal

basis for an exceptional sentence for an ongoing pattern of

sexual abuse of the victim manifested by multiple inci-

dents over a prolonged period of time. See State v. Brown,

55 Wn. App. 738, 755-56, 780 P.2d 755-56, review denied,

114 Wn.2d 1014 (1990).

Next, based upon Mr. Shafer’s criminal history, the

court calculated his offender score at “23” for each crime.

This invokes the multiple offense factor, which is a valid

aggravating circumstance and was listed as such at the

time Mr. Shafer committed his crimes. See current RCW

App. 39

9.94A.390(2)(i), and former RCW 9.94A.390(2)(g). Applica-

tion of this factor is proper “when there is some extraordi-

narily serious harm or culpability resulting from multiple

offenses which would not otherwise be accounted for in

determining the presumptive sentencing range.” State v.

Fisher, 108 Wn.2d at 428. This inquiry is automatically

satisfied when a defendant’s high offender score is com-

bined with multiple current offenses resulting in a stan-

dard range that imposes no additional penalty for some

crimes. State v. Stephens, 116 Wn.2d 238, 243, 803 P.2d

319. (1991).

Here, with an offender score of “23” based on his eight

current sex crimes and a prior criminal history of one

forgery conviction and one conviction for possession of

heroin, Mr. Shafer’s offender score exceeded “9 or more”

with consideration of just three of the current crimes, Mr.

Shafer would therefore receive no additional punishment

for five of the crimes if he received a standard range

sentence. Thus, the court did not err in applying the

multiple offense policy as an aggravating factor in this

case. State v. Stephens, 116 Wn.2d at 243-44.

Regarding the length of the exceptional sentence, it is

not clearly excessive unless it is clearly unreasonable, i.e.,

it was imposed on untenable grounds or for untenable

reasons or is a sentence that no reasonable person would

have imposed. State v. Ritchie, 126 Wn.2d 388, 392-93, 894

P2d 1308 (1995). Mr. Shafer’s 360-month sentence is 80

months over of the high end of the standard range for the

first degree rape of a child crimes. The sentence was

within the court’s discretion.

Mr. Shafer next contends the court has violated his

_ due process rights by requiring him to undergo polygraph

App. 40

testing as a condition of community placement. To the

contrary, a trial court has authority to impose monitoring

conditions such as polygraph testing on sex offenders, See

State v. Riles, 135 Wn.2d 326, 342, 957 P.2d 655 (1998).

Mr. Shafer’s final contention is that the Revised Code

of Washington is invalid law for lack of enacting clauses.

Accordingly, he says the trial court lacked jurisdiction over

his case in the first instance. These arguments are frivo-

lous. The Revised Code of Washington is a compilation of

the state’s session laws. RCW 1.04.020. Although the

Revised Code omits titles and enactment clauses, they are

still part of the session laws. RCW 1.08.017. The statutes

under which Mr. Shafer was convicted are all part of

legislation that contained a title and enactment clause.

See Laws of 1988, ch. 145 §§ 2, 5; Laws of 1990 ch. 3; Laws

of 1994, ch. 271 § 303. Mr. Shafer’s jurisdiction arguments

therefore fail.

Mr. Shafer has not carried his burden under In re

Personal Restraint of Cook.

Accordingly, the petition is dismissed pursuant to RAP

16.11(b).

DATED: July 27, 2000

/s/ Frank L. Kurtz

FRANK L. KURTZ

CHIEF JUDGE

App. 41

APPENDIX I

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

STATE OF WASHINGTON, )

Respondent, MANDATE

v. ) No. 16072-6-III

DARRELL LEE SHAFER, ) Yakima County No.

| ) 95-1-01068-2

Appellant. )

The State of Washington to: The Superior Court of the

State of Washington, in

and for Yakima County

This is to certify that the opinion of the Court of Appeals

of the State of Washington, Division III, filed on June 9,

1998 became the decision terminating review of this

court in the above-entitled case on January 6, 1999. The

cause is mandated to the Superior Court from which the

appeal was taken for further proceedings in accordance

with the attached true copy of the opinion.

cc: Darrell Shafer

Kenneth E. Kanev

Lauri M. Boyd

Hon. Stephen M. Brown

Washington State Board of Prison Terms and Paroles

Department of Corrections

[SEAL]

App. 42

In testimony whereof, I have hereunto

set my hand and affixed the seal of said

Court at Spokane, this 3rd day of

February, 1999.

/s/ Patricia L. Crandall

Clerk of the Court of Appeals,

State of Washington Division III

App. 43

APPENDIX J

THE SUPREME COURT OF WASHINGTON

STATE OF WASHINGTON, )

)

Respondent, No. 67051-0

* ORDER

DARRELL L. SHAFER,

) C/A NO. 16072-6-III

Petitioner. )

All five members of Department I of the Court consid-

ered the matters set on its January 5, 1999, Motion

Calendar, and unanimously agreed that the following

order be entered. Therefore, Chief Justice Barbara Dur-

ham directed that this order be entered:

IT IS ORDERED:

That the Petition for Review is denied.

App. 44

APPENDIX K

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

STATS OF WASHINGTON, ) No. 16072-6-III

Respondent, Division Three

Vv ) Panel Six

DARRELL LEE SHAFER ) UNPUBLISHED OPINION

) ‘

Appellant. FILED JUN 09 1998

SCHULTHEIS, C.J. — Darrell Shafer was convicted

of five counts of rape of a child, two counts of molestation

and one count of attempted molestation. On appeal he

contends (1) the testimony of two expert witnesses was

improper and invaded the province of the jury; (2) the

verdict is not supported by the evidence; (3) the admission

of repetitive hearsay complaints of sexual abuse was

unfairly prejudicial; and (4) he had ineffective assistance

of counsel. Mr. Shafer argues pro se that his untimely

sentencing date and the substitution of certain jury

instructions during deliberations denied him due process.

He also alleges prosecutorial and judicial misconduct. We

affirm.

Early in June 1995, Lisa U. reported to the Yakima

police that her boyfriend, Mr. Shafer, had been sexually

abusing her daughter, D. During interviews several days

later with two police officers and a Child Protective Ser-

vices social worker, D described numerous sexual contacts

involving Mr. Shafer’s hands, mouth, penis and a purple

vibrator. She also stated that Mr. Shafer had “touched” her

two friends, sisters A and M. Both A and M were then

App. 45

interviewed, and they described an incident when they

had spent the night with D at Mr. Shafer’s trailer. They

claimed he touched them with his hands and the purple

vibrator. All these incidents had occurred during the

previous year, when D was 9, M was 8, and A was 10.

Mr. Shafer was arrested and charged in late June

1995 with three counts of first degreesr™ne of a child (RCW

9A.44.073) or alternatively, three ceunts of first degree

child molestation (RCW 9A.44.083).' This information was

amended in August 1995 to seven counts of first degree

rape of a child, with seven alternative counts of first

degree child molestation, and one independent count of

first degree child molestation. A competency hearing was

held in October 1995 and the three children were found

competent to testify at trial.

After a series of continuances, trial began in January

1996. The court first held a hearing pursuant to RCW

9A.44.120 and State v. Ryan, 103 Wn.2d 165, 691 P.2d 197

(1984), to determine whether out-of-court statements by D,

A and M could be presented at trial.’ Noting that all three

* Lisa U. also was arrested and pleaded guilty to two counts of :

accomplice to first degree rape of a child.

* The statute provides, in part, that .

“A statement made by a child when under the age of ten describing

any act of sexual contact performed with or on the child by another [or]

describing any attempted act of sexual contact with or on the child by

another ... not otherwise admissible by statute or court rule, is

admissible in evidence in . . . criminal proceedings . . . if:

“(1) The court finds, in a hearing conducted outside the presence

of the jury, that the time, content, and circumstances of the statement

provide sufficient indicia of reliabikty; and

“(2) Thechild...

“(a) Testifies at the proceedings.”

~ (Continued on following page)

ennai

App. 46

children were scheduled to testify and that their state-

ments appeared to be reliable, the court ruled the state-

ments admissible. At trial, Randy U. (D’s father), Lisa U.,

the girls’ school counselor, the social worker, the two

investigating police Officers and the three girls testified.

Dr. Roy Simms testified that he found no trauma to D’s

body, but that her statements supported his diagnosis of

sexual abuse.

Additionally, the State presented the testimony of

Robyn Light, an expert in interviewing child victims of

sexual abuse. Ms. Light testified that skilled interviewers

look for “sensory details” to determine whether a sexual

abuse allegation should be further investigated. Ms. Light

did not interview D, A or M herself, but she examined the

statements recorded by Detective Edmond Campbell.

(Detective Campbell had not yet testified.) When the State

asked Ms. Light if she detected sensory details in Detec-

tive Campbell’s interviews, defense counsel obiected,

arguing that this line of questions concerned the credibil-

ity of the child witnesses and invaded the province of the

jury. The trial court overruled the objection but gave four

limiting instructions during this testimony. These instruc-

tions cautioned the jury that the facts relied on by Ms.

Light may or may not be in the record, and the facts

should only be considered as the basis for her opinion. The

jury was also instructed that her opinion was relevant

only to show whether or not each child’s interview was

consistent with Ms. Light’s theories. Ms. Light related

numerous instances of specific sexual conduct and graphic

RCW 9A.44.120. Ryan, 103 Wn.2d at 175-76, musters a set of factors

used to determine the reliability of the child’s out-of-court statements.

App. 47

details contained in Detective Campbell’s interviews of D,

A and M.

Following Ms. Light’s testimony, the State called

Detective Campbell to the stand. In response to defense

objections and concerned that repetition of the victims’

out-of-court statements could unfai:ly prejudice Mr.

Shafer, the court ruled that the detective could not read

from his record, but must summarize the information. He

connected particular sexual acts with each victim, the time

frame and the physical location. The State then rested.

The defense offered only two character witnesses.

Following an unsuccessful motion to dismiss, the defense

rested. The State then moved to again amend the informa-

tion, changing Count VII to attempted first degree child

molestation. Over defense objection, the motion was

granted.

The jury instructions were crafted to relate each count

with a specific victim, time range and address. After

deliberations had begun, the jury sent an inquiry to the

court noting that two counts were identical and one count

did not mention which victim was involved. Counsel from

both parties met with the trial court and agreed to with-

draw two of the original instructions (Numbers 19 and 23)

and substitute three corrected instructions (Numbers 19.1,

23.1 and 23.2). Later, before the verdict was given, defense

counsel challenged a juror for contacting a third party and

discussing the case. The trial court questioned the juror

and decided there was no evidence the juror had been

affected by any outside conversations or information. After

the guilty verdict, the court polled the jurors and all

declared that no juror had injected outside information

into the deliberations.

App. 48

Citing abuse of a position of trust and the operation of

the multiple offense policy, RCW 9.94A.390(2), the trial

court imposed an exceptional sentence of 360 months. The

exceptional sentence is not challenged on appeal.

Mr. Shafer first assigns error to the admission of the

expert testimony of Ms. Light and Dr. Simms. He contends

Ms. Light’s testimony impermissibly bolstered the credibil-

ity of the child witnesses and argues Dr. Simms based his

diagnosis of sexual abuse entirely on his perception of D’s

truthfulness. Both experts, he asserts, improperly offered

opinions on ultimate issues of fact.

Expert testimony is admissible pursuant to ER 702 if

(1) the witness is qualified as an expert by experience,

training or education; (2) the witness’s opinion is based on

a theory generally accepted in the scientific community;

and (3) the testimony is helpful to the trier of fact. State v.

Black, 109 Wn.2d 336, 341, 745 P.2d 12 (1987). If the

expert’s testimony does not concern novel theories or

technical matters, it need not meet the stringent require-

ments for general scientific acceptance. State v. Ortiz, 119

Wn.2d 294, 311, 831 P.2d 1060 (1992). The opinion may be

based on the witness’s training, experience, professional

observations and acquired knowledge. Ortiz, 119 Wn.2d at

311; State v. Jones, 71 Wn. App. 798, 815, 863 P.2d 85

(1993), review denied, 124 Wn.2d 1018 (1994). The expert

qualifications of Ms. Light and Dr. Simms are not chal-

lenged on appeal. Neither of them presented novel or

sophisticated theories, Ms. Light’s opinion regarding the

* Novel scientific theories are admissible only if they are suffi-

ciently established to have gained general acceptance in the scientific

community. Frye v. United States, 293 F. 1013, 1014, 34 A.L.R. 145

(D.C. Cir. 1923); State v. Black, 109 Wn.2d 336, 342, 745 P.2d 12 (1987).

App. 49

sensory details of alleged sexual abuse was based an over

4,000 interviews she had conducted with children. Our

focus, accordingly, is on the “helpfulness” of the expert

opinions.

Generally, expert evidence is helpful if it concerns

matters beyond the common knowledge of the layperson

and does not mislead the jury. State v. Jones, 59 Wn. App.

744, 751, 801 P.2d 263 (1990), review denied, 116 Wn.2d

1021 (1991). Such evidence is not considered helpful if its

prejudicial nature is great. Black, 109 Wn.2d at 348. While

opinion testimony need not be excluded merely because it

encompasses an ultimate issue of fact. State v. Sanders, 66

Wn. App. 380, 387, 832 P.2d 1326 (1992), no witness may

testify as to the guilt of a defendant, whether by direct

statement or inference. Black, 109 Wn.2d at 348. Neither

may an expert usurp the exclusive function of the jury to

weigh the evidence and determine credibility. Jones, 59

Wn. App. at 749 (quoting State v. Fitzgerald, 39 Wn. App.

652, 657, 694 P.2d 1117 (1985)).

Ms. Light testified that a skilled interviewer looks to

see if a child includes sensory details when describing E

alleged incidents of sexual abuse. She told the jury chil- ;

dren are incapable of describing the sights, sounds, smells

and feelings that accompany specific acts unless they have

directly experienced those acts. She then recited numerous

examples of sensory details gleaned from Detective Camp-

bell’s interviews with D and M. In effect, she implied that

D’s and M’s allegations of sexual abuse were truthful '

because they included multiple sensory details.

At one time, Washington courts might have frowned

on such testimony. In Black, a social worker testified,

that the alleged victim fit a profile for rape victims. The

EE 4

App. 50

Supreme Court held that this expert opinion unfairly

prejudiced the accused by implying the complainant was

telling the truth and indirectly offering an opinion on the

accused’s guilt. Black, 109 Wn.2d at 348-49. More recently,

however, trial courts have given greater latitude to expert

testimony that tends to corroborate the testimony of child

sexual abuse victims. See, e.g., State v. Holland, 77 Wn.

App. 420, 891 P.2d 49, review denied, 127 Wn.2d 1008

(1995); State v. Florczak, 76 Wn. App. 55, 882 P.2d 199

(1994), review denied, 126 Wn.2d 1010 (1995). In Holland,

the appellate court held that because the credibility of the

victim had been put in issue, an expert could testify it was”

not uncommon for a sexual abuse victim to delay report-

ing.” 77 Wn. App. at 427. A social worker in Florczak

testified that several symptoms, suffered by an alleged

victim “could be correlated with a child who has been

sexually ‘abused.’” 76 Wn. App. at 73. The appellate court

held that this observation that the child exhibited behav-

ior typical of a group was not a conclusion that the child

had in fact been sexually abused or that the defendant was

guilty. Id. Accordingly, the expert’s testimony did not

invade the jury’s province to weigh the evidence and make

credibility determinations. Id.

When viewed in the light of these recent opinions, Ms.

Light’s expert opinion may be considered helpful to the

jury and not unfairly prejudicial. She testified that inter-

viewers look for sensory details when deciding whether “a

sex abuse allegation [is] something that [they] want to

* The credibility of the victim is the central issue in most sexual

abuse cases, because the testimony of the victim and the accused are

usually in direct conflict. Jones, 59 Wn. App. at 749 (citing Black, 109

Wn.2d at 338; Fitzgerald, 39 Wn. App. at 657).

App. 51

continue to investigate.” She then recounted all the details

she considered “sensory” in the interviews of D and M.

Because she did not make a direct tomment on the defen-

dant’s guilt or the victims’ veracity, the jury was left to

decide whether the details sufficiently supported the

credibility of the victims and whether Mr. Shafer commit-

ted the offenses. City of Seattle v. Heatley, 70 Wn. App.

573, 577-80, 854 P.2d 658 (1993), review denied, 123 Wn.2d

1011 (1994).

Dr. Simms, on the other hand, presented an inadmis-

sible diagnosis of sexual abuse.” He offered no scientific

basis for his opinion: the physical examination provided no

evidence of abuse (although it did not rule out abuse) and

his diagnosis was based entirely on the medical history he

obtained from D. A doctor’s diagnosis of sexual abuse is

inadmissible if based only on the statements of an alleged

victim. State v. Carlson, 80 Wn. App, 116, 125, 906 P.2d

999 (1995) (citing Florczak, 76 Wn. App. at 73-74; State v.

Alexander, 64 Wn. App. 147, 154, 822 P.2d 1250 (1992);

Fitzgerald, 39 Wn. App. at 656-57)). See also State v.

Pittman, 88 Wn. App. 188, 197-98, 943 P.2d 713 (1997)

(expert testimony must have an adequate foundation

based an scientific evidence). In light of the overwhelming

untainted evidence provided by D, M, A, D’s father and

mother, Ms. Light, Detective Campbell and the school

counselor, however, we find that Dr. Simms’s erroneously

° D’s statements made to Dr. Simms in the course of his physical

examination and treatment were properly admitted pursuant to ER

803(a)(4) and are not challenged on appeal (except as unnecessarily

repetitive). Mr. Shafer assigns error only to the admission of Dr.

Simms’s diagnosis of sexual abuse.

App. 52

admitted diagnosis was harmless. See Florczak, 76 Wn.

App. at 75.

Mr. Shafer next contends the evidence is insufficient

to support the guilty verdict on the five charges of rape

involving victim D. He argues the evidence does not

support the essential element of penetration required for

each of these convictions.

A defendant who claims insufficiency of the evidence

admits the truth of the State’s evidence and recognizes

that all reasonable inferences will be interpreted in the

State’s favor. State v. Myers, 1383 Wn.2d 26, 37, 941 P.2d

1102 (1997); State v. Partin, 88 Wn.2d 899, 906-07, 567

P.2d 1136 (1977). The test is whether any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt. Myers, 133 Wn.2d at 37; State

uv. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105, cert.

denied, 516 U.S. 843 (1995). The elements of a crime may

be established by either direct or circumstantial evidence,

and one type of evidence is no more valuable than the

other. State v. Thompson, 88 Wn.2d 13, 16, 558 P.2d 202,

appeal dismissed, 434 U.S. 898 (1977); State v. Brooks, 45

Wn. App. 824, 826, 727 P.2d 988 (1986).

First degree rape of a child, the charge in disputed

counts I, II, IV, V and VI, requires proof of sexual inter-

course with a child less than 12 years old.” RCW

9A.44.073(1). Sexual intercourse is defined as any pene-

tration, “however slight” of the vagina or anus or any

sexual contact of the sex organs of one person and the

mouth or anus of another. RCW 9A.44.010(1). Sexual

* The perpetrator also must be at least 24 months older than the

child and not married to the child. RCW 9A.44.073(1).

mel

App. 53

contact means touching the sexual or intimate parts of

another person for sexual gratification. RCW 9A.44.010(2).

A child’s complaint of pain during sexual contact supports

a reasonable inference of penetration. State v. Biles, 73

Wn. App. 281, 284-85, 871 P.2d 159, review denied, 124

Wn.2d 1011 (1994). Vaginal penetration requires proof

that the defendant penetrated, at a minimum, the victim’s

labial lips. State v. Bishop, 63 Wn. App. 15, 19, 816 P.2d

738 (1991), review denied, 118 Wn.2d 1015 (1992).

We find circumstantial or direct evidence of penetra-

tion in the record to support each of the five convictions for

rape of D. Additionally, each count is specifically limited to

a particular time frame and location. D, D’s mother and/or

Detective Campbell (testifying as to D’s hearsay state-

ments during his interviews) described actual or inferred

penetration of D’s labia by Mr. Shafer’s fingers, penis or

vibrator (counts I, II, V and VI). Although D’s mother

originally testified she shut her eyes whenever Mr. Shafer

put his penis to D’s vagina, she admitted she heard her

daughter struggle and scream and later remembered

seeing the vibrator and Mr. Shafer’s penis go into her

daughter. Detective Campbell testified that D told him Mr.

Shafer put his penis in her mouth (count IV). Viewing the

evidence and the inferences in the light most favorable to

the state, we find that sufficient evidence supports the

jury’s verdict on each count.

Mr. Shafer next contends the trial court erred by

allowing six witnesses to repeat D’s accounts of sexual

abuse. He claims the statements of these witnesses were

cumulative and prejudicial.

Before trial, the court examined D’s hearsay state-

ments to determine their reliability pursuant to RCW

Pie Sd cd the ‘

App. 54

9A.44.120. The statute specifically authorizes the admis-

sion of such statements when the child is available and

competent to testify. RCW 9A.44.120. Mr. Shafer does not

challenge the admissibility of D’s out-of-court statements;

he merely contends their repetition was unnecessarily

cumulative.

It is true that statements admissible under the child

hearsay statute are still subject to analysis under ER 403,

which permits exclusion of evidence if its probative value

is substantially outweighed by the danger of prejudice

caused by needless presentation of cumulative evidence.

State v. Bedker, 74 Wn. App. 87, 93, 871 P.2d 673, review

denied, 125 Wn.2d 1004 (1994). The trial court here

carefully exercised its discretion to avoid cumulative

evidence. Early on, it noted its desire to keep repetition at

a minimum. After a police officer introduced some of D’s

hearsay statements, the court told the parties (in camera)

it was aware of the concerns regarding needless repetition

and promised to balance the relevance of each statement

with its prejudicial effect under ER 403.

The school counselor, the social worker and one of the

officers were allowed to repeat statements D made to

them. Each of these witnesses provided slightly different

information and they were not merely repetitive. Randy U.

stated only that D told him Mr. Shafer had been “messing”

with her private parts. Because Ms. Light recited almost

every sensory detail contained in Detective Campbell’s

report, the detective’s testimony was stringently limited.

Concerned that repetition of the details would be unneces-

sarily prejudicial, the court ordered him to summarize D’s

statements. Ms. Light’s testimony, although loaded with

incriminating detail, was not offered for the proof of the

App. 55

statements and did not tie specific acts to particular times

and places. All in all, the court’s careful exercise of discre-

tion to admit some statements and exclude others was not

abused.

Mr. Shafer also assigns error to the trial court’s

decision to allow D and Lisa U. to testify that he threat-

ened to kill them. These statements were not hearsay and

were admissible under ER 801(d)(2) as admissions of a

party opponent. See State v. Anderson, 44 Wn. App. 644,

651, 723 P.2d 464 (1986), review dismissed as moot 109

Wn.2d 1015 (1997). Mr. Shafer’s contention that the court

erred in admitting D’s hearsay statements that he abused

A and M is also without merit. He failed to object to this

testimony at trial and admits the error is nonconstitu-

tional. Accordingly, his argument will not be considered on

appear RAP 2.5(a); State v. Riley, 121 Wn.2d 22, 31, 846

P.2d 1365 (1993).

Mr. Shafer next contends he had ineffective assistance

of counsel. During the pretrial competency hearing, M

stated that Mr. Shafer did not penetrate her body with his

body or the vibrator. At trial, however, she testified on

direct that he put the “massager” inside her “private.” He

contends his trial counsel should have cross-examined M

with her prior inconsistent statement and that the failure

to do so requires reversal of his conviction for first degree

child molestation of M.

To establish ineffective assistance of counsel, Mr.

Shafer must show that his attorney’s performance was

deficient and that he was prejudiced by the deficiency.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129

Wn.2d 61, 77-78, 917 P.2d 563 (1996). We strongly

App. 56

presume counsel’s performance was reasonably effective.

State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).

Conduct that may be characterized as legitimate trial

tactics will not serve as the basis for a claim of ineffective

assistance of counsel. Hendrickson, 129 Wn.2d at 77-78.

Here, although Mr. Shafer’s trial counsel did not try to

impeach M with her prior inconsistent statement, he did

not need to. During his cross-examination he asked her if

the massager went “all the way inside” her. She said no.

He then asked if Mr. Shafer just rubbed it on the outside.

She nodded yes. Finally, he asked if the massager went

inside her anus. Again, she said no. Clearly he did not

need to mention her prior inconsistent testimony because

he was able to elicit the answers he wanted anyway.

Further, even if he had failed to impeach her statement on

direct that the vibrator entered her private, the error

evidently was not prejudicial. He was, after all, convicted

only of child molestation, which does not require the

element of penetration.

Mr. Shafer raises several additional issues pro se.

First, he contends the trial court erred in altering some of

the instructions after the jury had begun deliberations,

violating his due process rights. He further argues the

discussions of the instructions were unauthorized ex parte

communications between the jurors and the prosecutor or

court. Finally, he contends the trial court violated his

constitutional right to a speedy sentencing.

Contrary to Mr. Shafer’s argument, it is within the

sound discretion of the trial court to give supplemental

instructions to the jury during deliberations. State v. Ng,

App. 57

110 Wn.2d 32, 42, 750 P.2d 632 (1988); CrR 6.15(f)(1).’ Mr.

Shafer contends the jury communicated ex parte with the

prosecutor when it sent its inquiry to the prosecutor while

the trial judge was out of town. Receipt of the jury’s

inquiry note was not a “communication.” Further, the

comments of the trial court when it was presenting the

substitute instructions to the jury indicate that defense

counsel and the prosecutor considered the jury note

together when it was received. Both counsel and the trial

judge worked together to draft the substitute instructions

and neither party objected to the instructions when they

were presented to the jury. Mr. Shafer’s insistence that the

trial judge and the prosecutor revised the instructions

again the next day without the presence of defense counsel

is unsupported by the record: Although he claims his

mother heard the judge order the return of “the Jury

papers” for rewording, the instructions in the record are

identical to the ones read to the jury the day before.

Accordingly, even if error had occurred, there was no

prejudice. State v. Ashcraft, 71 Wn. App, 444, 463-64, 859

P.2d 60 (1993) (citing State v. Caliguri, 99 Wn.2d 501, 508-

09, 664 P.2d 466 (1983)).

Mr. Shafer’s speedy sentencing issue is also without

merit. At the time of his verdict on February 5, 1996,

the trial court ordered a presentence investigation- and

” The rule provides that

“(1) After retirement for deliberation, if the jury desires to be

informed on any point of law, the judge may require the officer having

them in charge to conduct them into court. Upon the jury being brought

into court, the information requested, if given, shall be given in the

presence of, or after notice to the parties or their counsel. Any addi-

tional instruction upon any point of law shall be given in writing.” CrR

6.15(f).

hie nsncatince Ps a ee

App. 58

acknowledged that the investigative report would not be

ready in less than 40 days. Six months later, at the sen-

tencing hearing, his counsel admitted the “vast majority of

the delay” in sentencing was due to his own schedule.

Arguing that he could not waive his client’s right to a

speedy sentencing, he asked for a dismissal of the case or a

sentence within the standard range. The State responded

that the delay was not willful and was attributable to

conflicts in the schedules of both parties as well as of the

court. Noting that the emphasis should be on a careful

presentence investigation and the availability of all

parties rather than on speed, the court found that Mr.

Shafer was not prejudiced by the delay.

While speedy sentencing rights are guaranteed by

statute and court rule, State v. Ellis, 76 Wn. App. 391, 394-

95, 884 P2d 1360 (1994), an extension of the time for

sentencing is discretionary with the trial court. State v.

Garibay, 67 Wn. App. 773, 777, 841 P.2d 49 (1992). Only a

delay in sentencing that is purposeful or oppressive will

constitute a violation of a defendant’s speedy sentencing

rights. Ellis, 76 Wn. App. at 394 (citing Pollard v. United

States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393

(1957)). The court must consider the length and reason for

the delay, whether the defendant asserted his or her right,

and the extent of prejudice to the defendant. Ellis, 76 Wn.

App. at 394. CrR 7.1 requires the court to set a date for

sentencing in compliance with RCW 9.94A.110, which

requires a sentencing hearing within 40 days after convic-

tion. Ellis, 76 Wn. App. at 394-95. The hearing date maybe

extended for good cause on a motion by either party or the

court. RCW 9.94A.110; Ellis, 76 Wn. App. at 395.

Mr. Shafer asserted his right to a speedy sentencing

at his sentencing hearing and argues on appeal he was

App. 59

prejudiced by the delay because he was forced to wait in

the county jail, where he was denied access to cigarettes,

television, radio, newspapers and outside -exercise. The

record contains no evidence that either party or the court

moved for an extension of time pursuant to RCW

9.94A.110. In Ellis, the appellate court found that a delay

of almost two years, caused entirely by the trial court and

the prosecutor, was oppressive. 76 Wn. App. at 395. The

six-month delay here, admittedly the fault of Mr. Shafer’s -

counsel as weil as due to the busy schedules of the court

and prosecutor, does not appear as prejudicial. Unlike the

case in Ellis, Mr. Shafer’s sentencing did not fall “through

the cracks.” 76 Wn. App. at 393. Apparently the court here

delayed sentencing until it was confident the presentence

investigation had been given sufficient time and the

parties were available. We find no abuse of judicial discre-

tion.

Affirmed.

A majority of the panel has determined this opinion

will not be printed in the Washington Appellate Reports,

but it will be filed for public record pursuant to RCW

2.06.040.

/s/ John Schultheis

Schultheis, C.J.

WE CONCUR:

/s/ Sweeney, J.

Sweeney, J.

/s/ Kurtz, J.

Kurtz, J.

App. 60

APPENDIX L

SUPERIOR COURT OF THE

STATE OF WASHINGTON, COUNTY OF YAKIMA

STATE OF WASHINGTON ) No. 95-1-01068-2_

Plaintiff. JUDGMENT AND

- | SENTENCE (FELONY)

DARRELL LEE SHAFER _ ) ‘Filed Aug. 6, 1996)

Defendant. ) HEARING

SID NO.: WA 13339773. _) File No

Motor Vehicle Involved:

Yes 0 No O

D.L. #

—_—~/”

1. A sentencing hearing in this case was held: 08/06/96

(DATE) DOB: 02/07/59 M/F-M_ Race: W

2. Present were:

DARRELL LEE SHAFER _ , Defendant

GEORGE TREJO , Defendant’s Lawyer

PATRICIA D. POWERS » Deputy Prosecuting Attorney

3. Count(s) have been dismissed

by the court.

4. Defendant was asked if there was any legal cause

why judgment should not be pronounced, and none

was shown.

II. FINDINGS

Based on testimony heard, statements by defendant

and/or victims, argument of counsel, the presentence

report and case record to date, the court finds:

(X)

App. 61

CURRENT OFFENSE(S): The defendant was found

guilty on FEBRUARY 05, 1996 (DATE)

&) by jury verdict

Osby plea of guilty

(1) by court trial

Count No. I __

Crime: FIRST DEGREE RAPE OF A CHILD

RCW: 9A.44.073

Date of Crime: btn August 1994-Dec. 1994

Law Enforcement Incident No. YAKIMA S.O. 95-10093

Count No. I

Crime: FIRST DEGREE RAPE OF A CHILD

RCW: 9A.44.073

Date of Crime: btn Dec. 1994-March, 1995

Law Enforcement Incident No. YAKIMA S.O. 95-10093

Count No. Ii

Crime: FIRST DEGREE CHILD MOLESTATION

RCW: 9A.44.083

Date of Crime: btn Dec. 1994-March, 1995

Law Enforcement Incident No. YAKIMA S.O. 95-10093

Count(s) Includes a special verdict/finding for

use of a deadly weapon/sexual motivation, attached

hereto.

Count(s) Current offenses encompassed the

same criminal conduct and count as one crime in de-

termining the offender score.

Additional current offenses are attached in Appendix A.

CRIMINAL HISTORY: Prior criminal history used in

calculating the offender score (RCW 9.94A.3.60) is:

App. 62

CRIME SENTENCING ADULT/ CRIME CRIME

DATE JUVENILE DATE TYPE

FORGERY 02/24/92 A NV

POSSESSION

OF HEROIN O5A-H93 A NV

( ) Additional criminal history is attached in Appendix

3. OTHER CURRENT CONVICTIONS Under other

cause number used to determine offender score.

CRIME CAUSE NUMBER

NONE

KIM M. EATON, YAKIMA COUNTY CLERK

SENTENCING OFFENDER OFFENSE MAXIMUM

DATA SCORE SCORE RANGE TERM

Count 210-280

No. ::3 23 xl months LIFE

Count 210-280

No. i ee 23 xI months LIFE

Count 149-198

No. III: 23 x months LIFE

(x) Additional current offense(s) sentencing information

is attached in Appendix C:

5. EXCEPTIONAL SENTENCE: (xx) Substantial and

compelling reasons exist which justify a sentence

(above) (belew) the standard range for Count(s)

I II _. See Appendix D.

App. 63

Ill. JUDGMENT

IT IS ADJUDGED that defendant is guilty of the crime(s)

of: COUNT #1 — FIRST DEGREE RAPE OF A CHILD

COUNT #II_ FIRST DEGREE RAPE OF A CHILD

COUNT #IlI — FIRST DEGREE CHILD MOLESTATION

COUNT #IV — FIRST DEGREE RAPE OF A CHILD

COUNT #V — FIRST DEGREE RAPE OF A CHILD

IV. ORDER

SEE ATTACHED APPENDIX (I)

IT IS ORDERED that the defendant serve the determinate

sentence and abide by the conditions set forth below.

1. THE DEFENDANT shall pay the financial obliga-

tions as set forth in APPENDIX E. The defendant

shall be under the jurisdiction to this court and the

Department of Corrections, Community Corrections

Office, Yakima, or such other office as may be desig-

nated for up to 10 years for purposes of payment of

the financial obligations. During the time payments

remain due, the Office may order the defendant to re-

port to a community corrections officer, remain within

prescribed geographical boundaries, and/or notify the

office of changes in address and employment.

2. OTHER orders and conditions follow on the attached

pages of this judgment. File #A-663-95-alt

DARRELL LEE SHAFER

DEFENDANT'S NAME

WA 13339773

SID NUMBER

App. 64

CONFINEMENT OVER ONE YEAR

1. Defendant is sentenced to a term of total confinement in

the custody of the Department of Corrections as follows:

I 198 Months for count

360 286 Months for Count No. No.: VII.

II 148 Months for Count

360 288 Months for Count No. No.: VIII

198 Months for Count No. III

— 280 Months for Count No. IV

280 Months for Count No. V

280 Months for Count No. VI

(X) The terms in Counts I, IJ, WI IV _V Vi VII VIII are

concurrent for a total term of 280 360 Months,

The a ee ae ive total

term of 660 Months.

( ) The sentence herein shall run (concurrently) (con-

secutively) with the sentence in

(X) Defendant shall comply with the mandatory provisions of

RCW 9.94A.120(8b) and all of those in RCW 9.94A.120(8c)

exeept AS CONTAINED IN APPENDIX (H)

(X) DEFENDANT SHALL PAY ALL FINANCIAL OBLI- -

GATIONS AS ORDERED IN THE ATTACHED FI-

NANCIAL ORDER.

Credit is given for 397 days served.

The following Appendices are attached to this Judg-

ment and Sentence and are incorporated by reference:

(X) A. Additional Current Offenses.

ADDITIONAL CURRENT CONVIC-

TIONS ATTACHED AS APPENDIX

<3 oe

( ) B. Additional Criminal History

(%) APPENDIX H

App. 65

(X) C. Current Offense(s) Sentencing Information.

(X) D. Exceptional Sentencing Findings of Fact

and Conclusions

(X) E. Financial Order.

Date: August 06,1996 /s/S.M. Brown

(JUDGE) (JUDGE PRO

TEM)

Presented by Approved as to form:

Deputy Prosecuting Attorney for Defendant

Attorney WSBA # 6825

THE STATE OF WASHINGTON

WARRANT OF COMMITMENT

To: the Sheriff of Yakima County.

The defendant DARRELL LEE SHAFER has been con-

victed in the Superior Court of the State of Washing-

ton of the crime(s) of: CT. #1 -FIRST DEGREE RAPE

OF A CHILD; CT. #II — FIRST DEGREE RAPE OF A

CHILD; CT. #III -— FIRST DEGREE CHILD MOLES-

TATION; CT. #IV — FIRST DEGREE RAPE OF A

CHILD; COUNT #V — FIRST DEGREE RAPE OF A

CHILD; CT. #VI — FIRST DEGREE RAPE OF A

CHILD; CT. #VII — FIRST DEGREE CHILD MO-

LESTATION; CT. #VIII - ATTEMPTED FIRST DE-

GREE CHILD MOLESTATION

and the Court has ordered that the defendant be punished

as set out in the attached Judgment and Sentence. Defen-

dant shall receive credit for time served as ordered.

YOU, THE SHERIFF, ARE COMMANDED to take

and deliver the defendant to the proper officers of the

Department of Corrections.

YOU, THE OFFICERS OF THE DEPARTMENT OF

CORRECTIONS ARE COMMANDED to receive the

App. 66

defendant for classification, confinement and place-

ment as ordered in the Judgment and Sentence.

[SEAL]

By the Direction of the

DATE: August 06, 1996 Honorable

Stephex. M. Brown

(JUDGE) (GUBGEPRO

FEM)

ADDRESS OF DEFENDANT:

KIM M. EATON

Clerk

By: /s/ Tracy [Ilegible]

APPENDIX A: Additional Current Offenses

COUNTNO:: _ IV

CRIME: FIRST DEGREE RAPE OF A CHILD

RCW: 9A.44.073

DATE OF CRIME: between December, 1994 — March, 1995

LAW ENFORCEMENT NO.: YAKIMA S.O. 95-10093

COUNTNO.:: V

CRIME: FIRST DEGREE RAPE OF A CHILD

RCW: 9A.44.073

DATE OF CRIME: between March and May, 1995

LAW ENFORCEMENT NO.: YAKIMAS. O. 95-10093

COUNTNO.:: _ VI

CRIME: FIRST DEGREE RAPE OF A CHILD

RCW: 9A.44.073 a :

App. 67 -

DATE OF CRIME: between March and May, 1995

LAW ENFORCEMENT NO.: YAKIMA S&S. O. 95-10093

COUNTNO.: _ VII

CRIME: FIRST DEGREE CHILD MOLESTATION

RCW: 9A.44.083

DATE OF CRIME: between March and May, 1995

LAW ENFORCEMENT NO.: YAKIMA S.O. 95-10093

COUNT NO.: _ Vill

CRIME: ATTEMPTED FIRST DEGREE

CHILD MOLESTATION

RCW: 9A.44.083/9A.28.020

DATE OF CRIME: between March and May, 1995

LAW ENFORCEMENT NO.: YAKIMAS. O. 95-10093

APPENDIX C

ADDITIONAL CURRENT OFFENSES

SENTENCING INFORMATION

DEFENDANT: CAUSE NUMBER:

DARRELL LEE SHAFER 95-1-01068-2

SENTENCING OFFENDER OFFENSE

MAX.

DATA SCORE SCORE RANGE TERM

Count 210-280

No.: IV 23 XI MOS. LIFE

Count 210-280

No.: V 23 XI MOS. LIFE

Count 210-280

No.: VI 23 XI MOS. LIFE

Count 149-198

No.: VII 23 X MOS. LIFE

111.75-

Count 148.50

No. VIll 23 X MOS. 10 YRS.

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON IN AND FOR

YAKIMA COUNTY

STATE OF WASHINGTON, )

Plaintiff, NO. 95-1-01068-2

vs. FINANCIAL ORDER

DARRELL LEE SHAFER, ) APPENDIX E

Defendant. )

SID NO.: WA 13339773

The defendant having been found guilty of a felony

and represented by George Trejo, an attorney. The court

has considered the total amount owing, the defendant’s

past, present, and future ability to pay legal financial

obligations, including the defendant’s financial re-

sources and the likelihood that the defendant’s status

will change. The court finds the defendant has the

ability or likely future ability to pay the financial obliga-

tions imposed herein:

IT IS ORDERED:

Defendant shall pay the following costs, assess-

ments, fines and restitution to the Yakima County

App. 69

Superior Court Clerk, Rm. 323 Yakima County Court-

house, Yakima, WA.

$100.00 (subject to modification) Restitution Distributed

to:

$500.00 Victim Assessment; $691.90 Court Costs; $

Attorney Recoupment;

~ Fine; $ Interpreter Costs; $ Court

Appointed Expert Fees;

X_ The Department of Corrections shall establish a

payment schedule and the Department may immediately

issue a Notice of Payroll Deduction.

____ In addition to the above costs the court finds that

defendant has the means to pay for the cost of incarcera-

tion and is ordered to pay such costs at the statutory rate.

____ Restitution shall be paid at the rate of $ per

month.

____ Restitution payments shall be completed by

Costs and assessments shall be paid in 180 days after

restitution is paid in full. All other fees shall be paid in

270 days after restitution is paid in full.

Defendant shall report within 24 hours of release to

the Department of Corrections, 210 No. 2d St. Yakima,

WA. Defendant shall pay supervision costs in an amount

to be determined by the community corrections officer if

defendant has been placed on community supervision.

Payments shall be made to the Department of Corrections.

App. 70

The financial obligations listed herein shall bear

interest from the date hereof until paid in full at the rate

applicable to civil judgments.

Dated: August 06, 1996 /s/ $.M. Brown

Judge/Judge Pro Tem

APPENDIX H

DARRELL LEE SHAFER NO. 95-1-01068-2

DEFENDANT

COMMUNITY PLACEMENT, RCW 9.944.120

Community placement is ordered for a community

placement eligible offense (e.g., sex offense, serious violent

offense, second degree assault, any crime against a person

with a deadly weapon finding, Chapter 69.50 or 69.52

RCW offense), and standard mandatory conditions are

ordered. Community Placement is ordered for the period of

time provided by law. The defendant shall:

1. report to and be available for contact with the as-

signed community corrections officer as directed;

2. work at Department of Corrections-approved educa-

tion, employment and/or community service;

3. not consume controlled substances except pursuant to

lawfully issued prescriptions;

4. not unlawfully possess controlled substances while in

community custody;

5. pay supervision fees as determined by the Depart-

ment of Corrections. The residence location and living

arrangements are subject to the prior approval of the

iia ate

App. 71

Department of Corrections while in community

placement.

[ ] Defendant shall not possess or own any firearms.

[x] The defendant shall not consume any alcohol.

[x] Defendant shall have no contact with the victims for

the duration of his life. wax ~

[ ] Defendant shall remain [ ] within [ ] outside of a

specified geographical boundary, to-wit:

[ ] The defendant shall participate in the following crime

related treatment or counseling services:

[x] The defendant shall report for urinalysis and evalua-

tion as ordered by the Department of Corrections.

This is to assure compliance with conditions of super-

vision.

[x] The defendant shall have no contact whatsoever with

any minor children for the remainder of his life unless

appreved ordered by the court, and—his-eommunity

eorreetions officer.

[x] The defendant will attend and participate in a crime

related treatment counseling program if ordered to do

so by his community corrections officer.

[x] The defendant shall pay restitution towards victim’s

counseling.

[x] The defendant shall be available for polygraph

examination at the request of the community correc-

tions officer, at client’s expense.

[x] The defendant shall not purchase possess, or view

any type of pornographic material, to include video

tape materials or 1-900 sex lines.

App. 72

[x] The defendant will complete the sex offender registra-

tion requirements within 24 hours after release from

incarceration.

APPENDIX I

DEFENDANT: DARRELL LEE SHAFER

CAUSE NO. 95-1-01068-2

IT IS ADJUDGED that the defendant is guilty of the

crime(s) of: COUNT #VI-FIRST DEGREE RAPE OF

A CHILD COUNT #VII-FIRST DEGREE CHILD

MOLESTATION COUNT #VIII-ATTEMPTED FIRST

DEGREE CHILD MOLESTATION

App. 73

APPENDIX M

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARRELL LEE SHAFER, __ | N®- 93-35254

mer D.C. No. CV-00-00419-ClI

Petitioner-Appellant, Eastern District of

Vv. Washington, Spokane

MAGGIE MILLER-STOUT, ORDER

Respondent-Appellee. | (Filed Jun. 14, 2004)

Before: CANBY, WARDLAW, and GOULD, Cirzuit Judges. .

The Petition for Rehearing is DENIED.

The full court has been advised of the Petition for

Rehearing En Banc and no judge of the court has re-

quested a vote on the Petition for Rehearing En Banc. Fed.

R. App. P. 35. Appellant’s Petition for Rehearing En Banc

| is also DENIED.

App. 74

APPENDIX N

U.S. Constitution: Fifth Amendment

Fifth Amendment — Rights of Persons

Amendment Text | Annotations

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty,-or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

(iii

App. 75

APPENDIX O

CONSTITUTION OF THE

UNITED STATES OF AMERICA

AMENDMENT XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868

Section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United.

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor to

deny to any person within its jurisdiction the equal protec-

tion of the laws.

Section 2.

Representatives shall be apportioned among the several

States according to their respective numbers, counting the

whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for

the choice of Electors for President and Vice-President of

the United States, Representatives in Congress, the

executive and judicial officers of a State, or the members of

the Legislature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years of age,

and citizens of the United States, or in any way abridged,

except for participation in rebellion, or other crime, the

basis of representation therein shall be reduced in the

proportion which the number of such male citizens shall

bear to the whole number of male citizens twenty-one

years of age in such State.

App. 76

Section 3.

No person shall be a Senator or Representative in Con-

gress, or Elector of President and Vice-President, or hold

any office, civil or military, under the United States, or

under any State, who, having previously taken an oath, as

a member of Congress, or as an officer of the United

States, or as a member of any State Legislature, or as an

executive or judicial officer of any State, to support the

Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may by a

vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insur-

rection or rebellion, shall not be questioned. But neither

the United States nor any State shall assume or pay any

debt or obligation incurred in aid of insurrection or rebel-

lion against the United States, or any claim for the loss or

emancipation of any slave; but all such debts, ae

and claims shall be held illegal and void.

Section 5.

The Congress shall have the power to enforce, by appro-

priate legislation, the provisions of this article.

App. 77

APPENDIX P

UNITED STATES CODE ANNOTATED

TITLE 28

JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

§ 2254. State custody; remedies in Federal courts

[See main volume for text of (a)]

(b)(1) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of

a State court shall not be granted unless it appears that —

(A) the applicant has exhausted the remedies

available in the courts of the State; or

(B\i) there is an absence of available State cor-

rective process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts

of the State.

(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon

the requirement unless the State, through counsel, ex-

pressly waives the requirement.

[See main volume for text of (c)]

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of

App. 78

a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly es-

tablished Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

(e)(1) Ina proceeding instituted by an application for

a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing

evidence.

(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall

not hold an evidentiary hearing on the claim unless the

applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable;

(ii) a factual predicate that could not have

been previously discovered through the exercise

of due diligence; and

(B) the facts underlying the claim would be suf-

ficient to establish by clear and convincing evidence

App. 79

that but for constitutional error, no reasonable fact-

finder would have found the applicant guilty of the

underlying offense.

(f) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to sup-

port the State court’s determination of a factual issue

made

ae |

App. 80

APPENDIX Q

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 03-35254

DARRELL LEE SHAFER,

Petitioner/Appellant,

vs.

MAGGIE MILLER-STOUT,

Respondent/Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT EASTERN DISTRICT OF WASHINGTON

OPENING BRIEF OF APPELLANT,

DARRELL LEE SHAFER

* * *

STATEMENT OF THE FACTS

In 1996, Appellant SHAFER was convicted by a jury

in the Superior Court of Yakima County, State of Washing-

ton, in connection with the alleged rape and molestation of

three (3) young girls. [ER 1-11]. As a result of that convic-

tion, he received a sentence of three hundred and sixty

o (360) months imprisonment. [ER 17-23, 25-26]. At Mr.

SHAFER’s trial, the prosecution relied upon the testimony

of two (2) expert witnesses concerning the alleged credibil-

ity of the three (3) alleged victims and the alleged truth-

fulness of those child witnesses concerning the alleged

App. 81

criminal acts by Appellate. [ER 311-46, 368-423, 531]. One

such expert witness was Dr. Roy Simms, a pediatrician.

[ER 26, 28, 311-46, 531]. He had conducted a physical

examination of one of the complaining witnesses, a nine-

year old. [ER 26, 28, 311-46]. While he found no corrobo-

rating physical trauma to the girl’s body, he nonetheless

testified that her statements supported his diagnosis of

sexual abuse. [ER 328, 531].

The other expert witness for the State was Robyn

Light. [ER 26-27, 368-423, 531]. Ms. Light serves as an

investigator with the Yakima County Prosecutor’s Office,

and manages the victim-witness unit of that office. [ER 26-

27, 368-371]. Ms. Light was permitted to testify at trial

concerning her opinion that children are incapable of

describing events in terms of their senses unless they have

actually experienced the events they are describing and,

although she had never interviewed any of the complain-

ing witnesses, she had reviewed the children’s alleged out-

of-court statements to a Yakima County Sheriff’s Detec-

tive, Edmond West Campbell, and believed that those

purported statements contained sensory details consistent

with the girls’ allegations. [ER 26-32, 368-423, 531].

While the defense vehemently objected to this opinion

testimony of Ms. Light, the trial court nevertheless over-

ruled Appellant’s objections, thereby allowing her to testify

concerning the presence of said “sensory details” in Detec-

tive Campbell’s reports of his interviews [ER 26-30, 234-

35, 377-79, 381, 387, 396-403, 409-13, 532], but instead

instructed the jury that the facts relied upon by Ms. Light

may or may not be in the record, and those facts should

only be considered as the basis for her opinion. [ER 27,

393-94, 396-97, 400-01, 403-04, 410-11, 532]. The jury was

also instructed that Ms. Light’s opinion testimony was

App. 82

relevant only to show whether or not each child’s interview

was consistent with her theories concerning sensory

details. [ER 27, 393-4, 396-97, 400-01, 403-04, 410-11].

With respect to these alleged details, Ms. Light related

numerous instances of specific sexual conduct and graphic

descriptions as set forth in the Detective Campbell’s

interview statements regarding all three (3) child wit-

nesses. [ER 389, 397-404, 409-16].

Following Ms. Light’s testimony, the prosecution

called Detective Campbell. [ER 424-71]. In response to the

defense objections that the repetition and cumulative

effect of the alleged victims’ alleged out-of-court state-

ments to the detective would unfairly prejudice Mr.

SHAFER, the trial court ruled that the detective could not

directly read from his record and notes, which Ms. Light

had relied upon, but could summarize for the jury the

information contained therein. [ER 27, 407-08, 444]. The

State then rested [ER 471], having earlier presented the

testimonies of the three (3) complaining witnesses in

addition to other alleged witnesses, including a school

counselor and the parents of one of the alleged victims.

[ER 68-91, 93-146, 146-87, 187-261, 261-72, 272-309, 348-

67]. During the prosecution’s closing argument, and also

on its rebuttal, the State continually and repeatedly

emphasized to the jury the great significance of the testi-

monies of both Dr. Simms and Ms. Light in terms of being

compelling evidence of the trustworthiness of the claims

made by three (3) complaining witnesses against Appel-

lant SHAFER. [ER 473-92].

Following his conviction, judgment and sentence, Mr.

SHAFER filed an appeal with the Washington State Court

of Appeals, Division III. [ER 1-2, 7-8, 11-12]. On appeal,

the state appellate court evaluated the disputed expert

(ee

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baci Loh hist adh inca 9h oe ak Re wen

2) BRR gr apres eer

App. 83

testimony under Rule 702 of the Washington Rules of

Evidence (ER) and concluded that Ms. Light's testimony

assisted the jury in understanding the significance of

sensory details in the statements purportedly made by the

complaining witnesses. [ER 30-32]. In addition, the Wash-

ington Court of Appeals concluded that Ms. Light had

neither commented directly upon Mr. SHAFER’s guilt nor

the complaining witnesses’ veracity and, accordingly, she

had not usurped the exclusive function of the jury to weigh

the evidence and determine credibility. [ER 30-31]. As a

result, the Washington appellate court upheld the admis-

sibility of Ms. Light’s testimony under ER 702. [ER 31-32].

However, the Court did note in its unpublished opinion,

entered on June 9, 1998, under appeal no. 1672-6-III, that

Ms. Light had, in effect, implied by her opinion testimony

that the allegations of sexual abuse of the children were in

fact truthful. [ER 30].

The testimony of Dr. Simms was a different matter.

[ER 32]. The Washington appellate court held that his

testimony in terms of his diagnosis of sexual abuse had

been improperly admitted insofar as that diagnosis was

based upon nothing more than the statements of the

alleged victim who he had examined. [ER 32]. However,

notwithstanding this determination of error, the Court of

Appeals concluded that such error was harmless beyond a

reasonable doubt under the standard set forth in State v.

Florczak, 76 Wn.App. 55, 75, 882 P2d 199 (1994), review

denied, 126 Wn.2d 1010 (1995), given the remaining

evidence against Mr. SHAFER which included the testi-

monies of the three alleged victims, the father and mother

[7.e., Lisa Ulrey] of one of the alleged victims, the investi-

gating police detective and the school counselor. [ER 32].

Consequently, after disposing of other issues raised on

App. 84

appeal, Mr. SHAFER’s conviction, judgment and sentence,

were upheld by the Washington Court of Appeals. [ER 24-

41).

Mr. SHAFER then filed a petition for discretionary

review with the Washington State Supreme Court which was

later denied on January 5, 1999. [ER 42]. A mandate con-

cerning the case was issued on February 3, 1999. [ER 43].

Mr. SHAFER subsequently filed a personal restraint

petition with the Washington State Court of Appeals,

Division III, seeking post-conviction relief. That petition

was denied on July 27, 2000. [ER 44-55]. Subsequently, on

October 27, 2000, the Washington State Supreme Court

denied discretionary review of that decision of the state

appellate court. [ER 56-60]. A subsequent motion to modify

this decision of the state supreme court was also denied on

January 9, 2001. [ER 61). A certificate of finality was then

issued by Washington State Court of Appeals, Division III,

on July 18, 2001. [ER 62]. :

A petition for writ of habeas corpus, under the provisions

of 28 U.S.C. §2254, was originally filed with the United

States District Court, Eastern District of Washington, on

November 17, 2000. [ER 1-6]. An amended petition was filed

by Appellant on February 15, 2001. [ER 7-10]. A second

amended, or superseding, petition was filed with the District

Court on June 22, 2001. [ER 11-14]. Said petition for writ of

habeas corpus was later denied by order entered by the

District Court on February 7, 2003. [ER 530-46].

In distinguishing the present petition from the facts of

a similar sexual abuse case, lt.e., Snowden v. Singletary,

135 F.3d 732 (11th Cir.), cert. denied, 525 U.S. 963, 119

S.Ct. 405, 142 L.Ed.2d 329 (1998), the District Court opined

that the evidence “against Mr. SHAFER was far stronger

App. 85

than the case against Mr. Snowden.” [ER 535]. In this vein,

the District Court referred to the testimony of Lisa Ulrey, Mr.

SHAFER’s former girlfriend, and the mother of oné of the

alleged victims, in concluding that any error associated with

the testimonies of Dr. Simms and Ms. Light to be harmless

by the standard set forth in Brecht v. Abrahamson, 507 U.S.

619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). [ER 535]. Ms.

Ulrey testified that, on more than one occasion, she was

present when Mr. SHAFER had allegedly abused her daugh-

ter. [ER 195-204, 535].

In the District Court’s view, “the testimony (sic) of Dr.

Simms and Ms. Light pale[d] in comparison to Ms. Ulrey’s

testimony” [ER 535], notwithstanding the fact that Ms.

Ulrey was then being held in the Yakima County Jail

while awaiting sentencing on two (2) counts of being an

accomplice to first degree rape of a child, admitted she was

a drug addict, and had also been convicted of other serious

crimes in the past. [ER 191-92, 535]. Consequently, the

District Court ruled that “even if the admission of both Dr.

Simms’s (sic) and Ms. Light’s testimony was error of

constitutional magnitude, it is unlikely that the error had

a substantial and injurious effect upon the verdict.” [ER

535]. A judgment to this effect was entered by the District

Court on February 7, 2003. [ER 546].

Following this decision dismissing Mr. SHAFER’s

request for habeas corpus relief, the District Court issued

a certificate of appealability on March 19, 2003. [ER 549-

51}. Said certificate of appealability was confirmed by this

Court on June 17, 2003. This appeal follows. [ER 547].

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.