State Of Washington v. Mark Shewmaker

• Court: Court of Appeals of Washington
• Decided: December 18, 2017
• Docket: 74925-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 74925-1-1 Respondent, ) ) DIVISION ONE v. ) ) MARK DALE SHEWMAKER, ) UNPUBLISHED OPINION ) CA) Appellant. ) FILED: December 18, 2017 )

BECKER, J. — The appellant, Mark Shewmaker, represented himself in a

trial on charges of molesting his minor daughter, NS. We affirm his conviction.

FACTS

The victim, NS, was born in 1999. She and her brother, MS, are the minor

children of Shewmaker and Jacki Shewmaker. Shewmaker and Jacki divorced in

2000. The children lived with Jacki. Occasionally, Shewmaker came to Jacki's

house to supervise them when Jacki was away.

The charges were supported by the testimony of NS that on specific

occasions in 2011, Shewmaker forced her to share a bed with him; rubbed her

breasts, buttocks, vaginal area, and thighs; forced her to touch his penis; and

pulled aside her swimsuit, exposing her crotch. Shewmaker has an adult

daughter, AK,from a previous marriage to Robin Shewmaker. AK was allowed

to testify that she was also molested by Shewmaker when she was a child. She No. 74925-1-1/2

testified that Shewmaker forced her to share a bed with him; prohibited her from

wearing a bra or underwear to bed; rubbed her breasts, buttocks, and vaginal

area; and subjected her to oral sex and other forms of abuse. AK testified that

these allegations were investigated in 2002, but charges were dismissed

because of her reluctance to appear in court.

Shewmaker's first trial, in which he was pro se with standby counsel,

resulted in a mistrial due to a hung jury. In his second trial, he again represented

himself, this time without standby counsel. The jury in the second trial convicted

him of two counts of child molestation in the first degree. He was sentenced to

80 months' imprisonment.

PERFORMANCE OF APPOINTED INVESTIGATOR

Shewmaker first contends that the ineffective performance of his

appointed investigator prevented him from preparing a meaningful defense. At

Shewmaker's request, he was assigned an investigator who was authorized to

perform approximately 50 hours of services to aid Shewmaker in his trial

preparation. Shewmaker claims that the investigator failed to interview witnesses

and instructed Robin to lie about her availability to testify in person.

As a preliminary matter, we note that appellant treats the investigator's

alleged misconduct as if it were an undisputed fact. He assigns error in the

following way: "Mr. Shewmaker was deprived of the right to meaningful self-

representation under the Sixth Amendment and Article I, § 22 where the

investigator appointed to assist him refused to conduct an investigation and told

a witness to lie to the court and her domestic violence advocate."

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This assignment of error fails to comply with the requirement in RAP

10.3(a)(4)for a "separate concise statement of each error a party contends was

made by the trial court, together with the issues pertaining to the assignments of

error." (Emphasis added.) By avoiding the requirement to identify action or

inaction by the trial court, appellant presents the issue as if it can be decided in

the abstract. We take this opportunity to emphasize the importance of making

proper assignments of error in an appellant's brief. The role of the appellate

court is to review trial court decisions, not to review abstract issues. The rules of

appellate procedure are designed to facilitate deciding the law in the context of

how the particular issue was brought to the attention of the trial court and how

the trial court handled it. Assignments of error must be included in the

appellant's brief so that the reviewing court can pinpoint the time and place in the

record at which the trial court allegedly committed error, either by ruling or failing

to rule. Shewmaker's assignment of error does not allege error by the trial court.

And the portions of the record he cites do not support a claim that the court

deprived him of his right to meaningful self-representation.

1. Alleged failure to interview witnesses

Shewmaker first contends the investigator refused to conduct an

investigation. Specifically, he claims that the investigator failed to carry out

interviews with prospective defense witnesses.

Before an investigator was assigned, the prosecutor agreed to facilitate

two interviews by Shewmaker of witnesses who were available by telephone on

August 10, 2015. On that morning, the parties were in court. Shewmaker

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waived his right to interview the two witnesses "at this time" as he was waiting to

see if the public defender office would assign an investigator who could help him

with the interviews.' The trial court warned Shewmaker there was no guarantee

an investigator would be able to conduct the interviews at a later date and if he

declined to go forward with the interviews arranged for that morning, he risked

losing his opportunity to conduct the interviews. Shewmaker confirmed that he

was waiving his right to interview the witnesses and if an investigator was not

assigned or could not do the interviews, he would "proceed at the court's

discretion."2

After an investigator was assigned to assist him, Shewmaker raised

concerns about the investigator's performance in a hearing on November 30,

2015. Shewmaker said he had completed all his discovery and witness

interviews, but he complained that the investigator spent very little time with him

and he needed the investigator to help him locate defense witnesses and serve

subpoenas on them.3 The trial court pointed out that Shewmaker had phone

privileges that would allow him to contact the witnesses himself. Shewmaker

said he was too embarrassed to call them. The trial court suggested that

Shewmaker should get over his embarrassment. As the discussion went on, the

problem of contacting witnesses worked itself out as it became clear that the

State was going to subpoena some of the witnesses and Shewmaker lacked any

1 Report of Proceedings(Aug. 10,2015) at 252-53. 2 Report of Proceedings(Aug. 10,2015) at 254-55. 3 Report of Proceedings (Nov. 30,2015) at 398-402.

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basis for expecting others to give relevant and admissible testimony or else had

no idea how to find them.4

So far as the record reveals, there was no further discussion of the

investigator's alleged refusal to assist with investigation. Shewmaker does not

explain what he thinks the trial court should have done differently on August 10,

2015, or on November 30, 2015.

2. Alleged instruction to lie

Shewmaker's second contention, that the investigator instructed a witness

to lie, is based on events that occurred during trial, on December 15 and 16,

2015. Shewmaker had subpoenaed his ex-wife Robin, the mother of AK. The

State had learned from victim advocate Wendy Ross that Robin, who was in Oak

Harbor, did not drive and did not want to take a cab or ride with a detective. On

December 15, Ross was sworn in and asked to describe her recent telephone

conversations with Robin. According to Ross, Robin said she had a long

standing agoraphobic disorder that made her fearful and hysterical to the point of

being almost suicidal at the prospect of leaving her home. Robin hoped that

rather than coming to court in person, she could testify by Skype, a

telecommunications application that facilitates video and audio conference calls

using the internet.5

Shewmaker asked the court to issue a material witness warrant for Robin.

The court declined, finding nothing material in Shewmaker's lengthy description

4 Report of Proceedings (Nov. 30, 2015) at 410-14. 5 Report of Proceedings (Dec. 15, 2015) at 1757-59.

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of Robin's expected testimony. The court told Shewmaker it was up to him to

figure out how to get his witness to court the next day. That evening,

Shewmaker asked the investigator to drive to Oak Harbor to pick up Robin and

bring her to court.

The next morning, Ross informed the court that the previous evening, she

had received a call from Robin, reporting that she had just received a call from

the investigator. Ross said Robin told her the investigator said Oak Harbor was

too far away for him to travel and she should just say she told him she refused to

come.6 At this point, the trial judge said that she had already reconsidered her

previous ruling that Shewmaker had to get Robin to court to give her testimony.

The judge said she had informed Robin by e-mail at 8:45 a.m. that she could

fulfill her obligation under the subpoena by testifying via Skype.7 Shewmaker

does not assign error to this decision.

The judge said her decision to let Robin testify by Skype was not affected

by Ross' account of what Robin said about the investigator telling her what to

say. The prosecutor asked if the court was "inclined to require any information

from the defense investigator about the conversation." The judge responded

"No. Again, that does not impact this trial because I made my decision and

informed Ms. Shewmaker of that before I heard what he said to her. It doesn't

change my position. It doesn't change her availability because she's always said

she's been available for Skype."8

6 Report of Proceedings(Dec. 16, 2015) at 1827-32. 7 Report of Proceedings(Dec. 16, 2015) at 1828. 8 Report of Proceedings (Dec. 16, 2015) at 1832.

6 No. 74925-1-1/7

This record shows there is no basis for Shewmaker's assertion that his

investigator's misconduct deprived him of a meaningful right to self-defense. The

trial court was provided with hearsay information that the investigator instructed

Robin to say she refused an offer of transportation to the courthouse. The trial

court found it was unnecessary to look into that issue further because it was

moot. Regardless of what Robin and the investigator said to each other, the

most Shewmaker was entitled to was to present Robin's testimony by Skype, and

that opportunity was afforded to him.

Shewmaker argues that the investigator's alleged misconduct entitles him

to a new trial. His argument is based on State v. Silva, 107 Wn. App. 605, 613,

27 P.3d 663(2001). The pro se defendant in Silva was in custody pretrial and

during trial. The defendant appealed his conviction to this court, arguing that the

trial court erred by failing to ensure that he had access to an investigator. We

recognized that under article 1, section 22 of the Washington State Constitution, a

pretrial detainee who has exercised his constitutional right to represent himself

must be afforded a right of reasonable access to State provided resources that

will enable him to prepare a meaningful pro se defense. Silva, 107 Wn. App. at

622. We recognized that access to an investigator might be required in some

cases, but it was not an absolute right. The defendant in Silva did not show he

was prejudiced by the lack of an investigator:

There is no authority holding that the right of self-representation embodies a right to have an investigator assigned to the defendant. This is not to say that the services of an investigator may never be constitutionally required. Whether an investigator must be appointed to ensure adequate preparation of a meaningful pro se defense must be determined by the trial court after considering the

7 No. 74925-1-1/8

needs of the case. The record in this case does not establish that Silva needed an investigator to prepare his defense, nor has Silva demonstrated that he was prejudiced by the lack of one. We therefore decline to hold that Silva was deprived of adequate resources on this basis.

Silva, 107 Wn. App. at 624.

Shewmaker similarly fails to establish that he was prejudiced by the

allegedly deficient performance of his investigator. He does not demonstrate that

his defense was prejudicially impacted by the investigator's alleged refusal to

locate witnesses or by the investigator's alleged effort to get Robin to lie and say

she refused to let the investigator give her a ride to court.

At oral argument, Shewmaker asserted that Robin's statement to Ross

that the investigator instructed her to lie was such serious evidence of

misconduct that it should be considered structural error. A structural error

necessarily renders a trial unfair and is thus subject to automatic reversal without

considering whether the error was harmless. Neder v. United States, 527 U.S. 1,

8-9, 1198. Ct. 1827, 144 L. Ed. 2d 35 (1999). Structural error has been found in

a very limited class of cases involving constitutional error. Neder, 527 U.S. at 8.

This case does not belong in that class. A showing of prejudice is required in

any ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S.

668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment." Strickland, 466

U.S. at 691. It would be anomalous to have a different rule for investigators.

This court requires a showing of prejudice as a predicate for a claim of

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deprivation of the right to State provided resources necessary to prepare a

meaningful pro se defense. Silva, 107 Wn. App. at 624. Because Shewmaker

has failed to show prejudice, his assignment of error pertaining to the

investigator's performance is denied.

PRIOR ACTS

Shewmaker next claims that the trial court erred by admitting three

separate categories of prior bad act evidence: (1) AK's testimony that she was

molested by Shewmaker 15 years earlier, introduced to establish a common

scheme;(2)testimony that Shewmaker physically abused AK, subjected her to

oral sex, and made her watch as he raped Jacki; and (3) MS's testimony that he

and the family dog were physically abused by Shewmaker.

Shewmaker opened the door to the evidence of prior acts. "'A party who

is the first to raise a particular subject at trial may open the door to evidence

offered to explain, clarify, or contradict the party's evidence." State v. Jones,

144 Wn. App. 284, 298, 183 P.3d 307(2008), quoting 5 KARL B. TEGLAND,

WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67 (5th ed.

2007). Before opening statements, Shewmaker requested that all of AK's

allegations, including forced oral sex, be admitted. In his opening remarks,

Shewmaker acknowledged that he had abused his son and the dog. And he

admitted that he had been accused of molesting AK. After Shewmaker informed

the court that he planned to refer to the alleged rape of Jacki, the trial court ruled

the door had been opened for the State to raise the issue as well. Because

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Shewmaker opened the door to the challenged evidence, he cannot now be

heard to argue the court erred by admitting it.

Even if Shewmaker had not opened the door to evidence of his prior bad

acts, he does not demonstrate that the court erred by admitting it.

Shewmaker contends the trial court misinterpreted the standard for

weighing probative value against prejudice. The interpretation of an evidentiary

rule is reviewed de novo as a question of law. State v. DeVincentis, 150 Wn.2d

11, 17,74 P.3d 119 (2003). Admission of evidence is reviewed for abuse of

discretion. DeVincentis, 150 Wn.2d at 17.

Testimony that Shewmaker molested AK was properly admitted under the

ER 404(b) exception for evidence establishing a common scheme or plan. The

facts are similar to the facts in DeVincentis. Consistent with DeVincentis, the trial

court found that AK's allegations were established by a preponderance of the

evidence, they established a common scheme or plan, the acts of molestation

she alleged were substantially similar to the acts alleged by NS, and the

evidence was substantially more probative than prejudicial. The record provides

no reason to doubt that the trial court knew that evidence of prior sexual

misconduct can be highly prejudicial. In this case, it was also highly probative.

We find no error in the court's interpretation and application of the evidentiary

rules.

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PROSECUTORIAL MISCONDUCT

Shewmaker next alleges prosecutorial misconduct. In each instance of

alleged misconduct, Shewmaker failed to object. Failure to object to misconduct

in the trial court constitutes waiver on appeal unless the misconduct is so flagrant

and ill-intentioned that it evinces an enduring and resulting prejudice incurable by

a jury instruction. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937(2009).

First, during voir dire, the prosecutor asked prospective members of the

jury whether they could think of a strategic reason why someone might choose to

be self-represented in a case of child molestation. Receiving no response, the

prosecutor prompted by asking who would be questioning the alleged victim. On

the third try, this question elicited the answer,"the one who is accused of doing

the act is the one who is questioning them."9 The prosecutor moved on to a new

line of questioning.

Voir dire that tends to suggest a defendant has questionable motives for

acting pro se may impinge on the right of self-representation. But the State has

the right to ask questions designed to assure that jurors are not prejudiced

against either party. We cannot say on this record that the prosecutor's

questions crossed the line from eliciting bias to evoking it. If Shewmaker had

objected, any prejudice could have been cured by an instruction.

The second instance of alleged misconduct occurred during the testimony

of Tami Beck. NS had disclosed Shewmaker's abusive conduct to Beck, who

was the mother of a friend of NS. On redirect examination, Beck admitted that

9 Report of Proceedings (Dec. 3, 2015) at 766-67. 11 No. 74925-1-1/12

she was a rape victim herself. Shewmaker argues that the State intentionally

elicited this statement from Beck in an impermissible effort to bolster her

credibility. Even assuming this to be so, the jury could have been instructed to

disregard her remark had Shewmaker objected.

The third instance occurred when the State called Beck as a rebuttal

witness. Shewmaker's defense rested on the theory that his ex-wives, children,

and Beck were conspiring against him. Anticipating that Shewmaker would

argue in closing that Beck learned of AK's allegations from NS, the prosecutor

notified the court that Beck would be called on rebuttal to testify that she had

learned of AK's allegations from Jacki. The trial court ruled Beck's testimony was

admissible, and Shewmaker declined a limiting instruction. Shewmaker argues

that the prosecutor's questions to Beck distracted the jurors. This is unlikely.

Shewmaker fails to demonstrate any prejudice that an instruction could not have

cured.

In summary, we reject the claim of prosecutorial misconduct. We also

reject Shewmaker's claim of cumulative error. The doctrine of cumulative error

does not apply where the errors are few and have little or no effect on the

outcome of the trial. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006),

cert. denied, 551 U.S. 1137 (2007).

Shewmaker raises seven additional grounds for review under RAP 10.10.

Having examined the portions of the record pertaining to each ground, we

conclude none of them warrant appellate review. There is no reason to suppose

the trial court erred in its rulings.

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Affirmed.

WE CONCUR: