# Petition for Writ of Certiorari — Shafer v. Miller-Stout > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1530%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1053 ## Text Supreme Court, U.S. (1) FILED No. 04-601 SEP 13 2004 K In The Supreme Court of the Gnited States a Ld DARRELL LEE SHAFER, Petitioner, vs. MAGGIE MILLER-STOUT, Respondent. a vy On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit , vv PETITION FOR WRIT OF CERTIORARI & vv 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 ii 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 iv 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 Vv 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 1 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]. 2 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 3 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]. ry v 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]. 4 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. & v — 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;.... & Vv 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;.... @ 7 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. 6 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 8 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 9 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. ry Vv 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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. é vy 17 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 v. 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) eo 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 77 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 co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1530%3A1. Public record. Not legal advice.