          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


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In re Personal Restraint of:                )      NO. 67889-2-1                       <=>

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                                            )      DIVISION ONE                        C_

      CHARLES MADU MOMAH,
                                            )      UNPUBLISHED OPINION
                      Petitioner.                                                            >-Unn
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                                            )      FILED: January 21, 2014                   —w p—
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       Lau, J. — Charles Momah filed this personal restraint petition challenging his              ~

convictions in King County Superior Court No. 04-1-05925-5 KNT, seeking a new trial

based on ineffective assistance ofcounsel, newly discovered evidence, Brady1 violations,
violation of his constitutional right to privacy, juror misconduct, improper courtroom closure,

and cumulative error. In order to obtain collateral relief by means of a personal restraint

petition, Momah must demonstrate either an error of constitutional magnitude that gives

rise to actual prejudice or a nonconstitutional error that inherently results in a "complete
                                                                                             0OEAST T OFUC RT
miscarriage of justice." In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d

506 (1990). Bare assertions and conclusory allegations do not warrant relief in a

personal restraint proceeding. In re Pers. Restraint of Rice. 118 Wn.2d 876, 886, 828

P.2d 1086 (1992). Because Momah fails to establish grounds for relief, the petition is

denied.



       1 Bradv v. Maryland. 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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       A jury convicted Momah as charged of third degree rape of HP, indecent liberties

with SS, indecent liberties with CB, and second degree rape of RB. HP claimed she

asked Momah to see her at his office after hours on August 12, 2003, so he could

prescribe emergency contraception and that he raped her on his examining table. HP

testified that Momah threatened to have her son taken away if she told anyone, a result

she feared because she was addicted to prescription drugs. Momah testified that they had

consensual sex and that he also prescribed pain medications as HP requested.

       SS, who received treatment from Momah between September 2002 and August

2003, testified that during one exam, Momah put his fingers into her vagina and then

rubbed her clitoris with a circular pressure in a manner that made her feel uncomfortable

and shocked. CB testified that Momah's behavior became increasingly inappropriate over

the course of several appointments between 2001 and early 2003. CB claimed that

Momah eventually used the ultrasound wand like a sex toy. Momah claimed he had had

sex with CB at a time when she was not a patient but denied any impropriety during her

exams.


         RB testified that during an exam, Momah gave her an intravenous (IV) of fentanyl

and then touched her breasts and clitoris inappropriately and used the ultrasound wand

inappropriately in her vagina and her rectum. Momah denied any improper touching and

testified that he did not have access to fentanyl and had not administered an IV for years.

         Ineffective Assistance of Trial Counsel

         In his petition, Momah first contends that trial counsel provided ineffective

assistance by failing to properly interview and then call to testify at trial several witnesses

to impeach the State's witnesses. To establish ineffective assistance, Momah must show

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that counsel's performance was deficient and that prejudice resulted from the deficiency.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). Appellate courts presume that counsel

was competent and followed a reasonable trial strategy. Strickland. 466 U.S. at 689-90.

Prejudice requires "a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different." Strickland. 466 U.S. at 694,104

S. Ct. 2052; Thomas, 109 Wn.2d at 226. If one of the two prongs of the test is absent,

we need not inquire further. Strickland. 466 U.S. at 697; State v. Foster, 140 Wn. App.

266, 273, 166 P.3d 726 (2007).

       Momah contends that Lynn Butler, a nurse anesthetist who provided anesthesia

services when Momah performed surgeries, would have testified about Momah's lack of

access to fentanyl, her own careful management and records of drugs stored in a

locked drawer in his office, and her role in RB's surgery. Jennifer Sloan, who waited for

RB during her appointment, would have testified as to the length of RB's exam and that

RB did not say that anything unusual happened or appear to be under the influence of

anesthetic drugs thereafter.

       Momah also claims that his attorney should have called Cinnamon Krall,

Stephanie Watson, Michelle Fjeld, and Carnarvus Kidd. These women were Momah's

employees and/or patients during various time frames, who would have testified about

one or more of the following topics: (1) Momah never said or did anything

inappropriate; (2) Momah always wore gloves during exams; (3) Momah always insisted

on having an employee in the exam room; (4) office inventory did not include IV

equipment or fentanyl; (5) HP called frequently, asked about Momah's marital status

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and possessions, came to the office without an appointment, and attempted to be alone

with Momah in the exam room; (6) HP was irate and irrational after Momah told her she

needed drug counseling; and (7) Harish Bharti, an attorney on a civil case against

Momah, made outrageous false statements about Momah and encouraged former

patients to join the lawsuit by focusing on potential monetary proceeds.

       In addition, Momah claims that defense counsel should have investigated and

offered the following evidence to impeach RB and HP: (1) documents including a letter

to the Department of Health, insurance records, and her civil complaint, indicating RB

had only one exam before her surgery, contrary to her claims at trial; (2) evidence

demonstrating that a police search of Momah's office revealed no fentanyl or IV

equipment; and (3) DNA tests of HP's vaginal swab excluding her boyfriend and

evidence that HP had recently filled a prescription for oral contraception to contradict

her claim at trial that she met Momah to obtain emergency contraception.

       Even assuming that counsel could have presented the described testimony and

evidence without risking damaging impeachment or the admission of other unhelpful

evidence, Momah fails to establish either deficient performance or resulting prejudice.

The record reveals that defense counsel aggressively cross-examined and impeached

each of the State's witnesses and Momah does not contend otherwise. The fact that

other potential impeachment material existed does not, by itself, render counsel's efforts

constitutionally deficient. Although the proposed evidence could, at best, cast doubt on

certain tangential details presented by State witnesses, Momah fails to establish that

counsel failed to identify or produce any witness or evidence to directly contradict the

essential details of the criminal conduct they described. None of the identified

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witnesses could testify to being present at any of the four incidents giving rise to the

charges. The defense theory of the case was that the State's witnesses manufactured

unbelievable allegations against Momah in order to profit from a civil lawsuit against

him. Counsel argued that Momah was not required to prove his innocence. In this

context, reasonable counsel could have legitimately chosen to focus on the motives,

biases, and lack of credibility of the State's witnesses rather than present general

testimony and evidence regarding Momah's office policies or usual behavior. Momah's

ineffective assistance claim fails.

       Newly Discovered Evidence

       Newly discovered evidence is grounds for relief in a personal restraint petition if

those facts, "in the interest of justice," require vacation of the conviction or sentence.

RAP 16.4(c)(3). To prevail here, Momah must show that the evidence: "'(1) will

probably change the result of the trial; (2) was discovered since the trial; (3) could not

have been discovered before trial by the exercise of due diligence; (4) is material; and

(5) is not merely cumulative or impeaching.'" In re Pers. Restraint of Lord. 123 Wn.2d

296, 319-20, 868 P.2d 835 (1994) (quoting State v. Williams. 96 Wn.2d 215, 223, 634

P.2d 868 (1981)). The absence of any one of these five factors justifies the denial of a

new trial. State v. Macon. 128 Wn.2d 784, 800, 911 P.2d 1004 (1996).

       Momah contends that the following evidence is newly discovered and justifies a

new trial: (1) Harish Bharti's "orchestration of witnesses and fabrication of testimony" in

civil litigation against Momah and his brother, Dennis (First Amended Personal Restraint

Petition at 30-31) (formatting omitted); (2) Momah's medical chart regarding RB; and
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(3) RB's trial testimony in her civil suit against Momah. But Momah fails to demonstrate

that any of these items require a new trial.

       First, Momah has not produced any material evidence that Bharti influenced or

fabricated the factual allegations made by HP, SS, CB, or RB at Momah's criminal trial.

Momah's speculation and conjecture based on Bharti's alleged actions in civil litigation

involving other patients of Momah or his brother does not justify relief here. At most,

Bharti's misconduct in other cases could only constitute impeachment evidence. See,

e.g., In re Pers. Restraint of Delmarter, 124 Wn. App. 154,163-64,101 P.3d 111 (2004)

(misconduct of crime lab chemist during other tests in other cases could constitute only

impeachment evidence).

       Next, Momah claims that the medical chart contradicted RB's testimony and

corroborated his testimony as to the dates, times, and number of his examinations of RB.

But nothing in the chart would have contradicted RB's factual allegations as to the

elements of the charged crime. At best, the chart could be used to impeach RB as to her

recollection of specific dates and times of appointments, a subject of intense cross-

examination at trial. Although the absence of the chart allowed the prosecutor to argue

that Momah's detailed testimony about his treatment of RB was not credible, Momah fails

to establish that its production at trial would have probably changed the result of the trial.

       Similarly, Momah fails to establish that RB's testimony at the later civil trial

constitutes material evidence that would probably change the outcome of his criminal trial.

In particular, Momah contends that RB did not testify about an IV offentanyl, "implicitly

recanting" her testimony from the criminal trial. First Amended Personal Restraint Petition

at 37. A reliable recantation may generally be considered newly discovered evidence

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warranting a new trial. Macon, 128 Wn.2d at 799-800; State v. Savaria, 82 Wn. App. 832,

838, 919 P.2d 1263 (1996), overruled on other grounds by State v. C.G., 150 Wn.2d 604,

80 P.3d 594 (2003) (new evidence directly contradicting a key witness's uncorroborated

testimony on an element of the offense may support granting a new trial). But RB's

testimony at the civil trial was not a recantation. RB never testified that Momah did not

rape her during an exam. Inconsistencies regarding specific details, such as the use of

fentanyl, serve only to cast doubt on the credibility or accuracy of RB's testimony, which is

merely impeachment. Momah fails to establish grounds for a new trial.

       Suppression of Material Evidence

       Momah next contends that the State violated the requirements of due process and

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to

provide Sloan's telephone number to defense counsel prior to trial. To establish a Brady

violation, Momah must demonstrate that the State suppressed evidence and that the

defense could not have obtained the evidence using reasonable diligence. See Strickler v.

Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L Ed. 2d 286 (1999); State v.

Thomas, 150 Wn.2d 821, 851, 83 P.3d 970 (2004). There is only a Brady violation ifthe

State failed to disclose the evidence before it was too late for Momah to make use of it.

Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001).
       During defense counsel's cross-examination of RB, the prosecutor stated that he

had not spoken to Sloan but that he believed that his paralegal had Sloan's number and

would provide it to defense counsel. Momah now contends, "It is not clear whether the

prosecutor provided the number. .. ," and that "this claim may require discovery and an

evidentiary hearing." Br. in Support of Personal Restraint Petition at 34. These conclusory

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allegations are insufficient to justify a reference hearing. Rice, 118 Wn.2d at 886.

Moreover, Momah fails to explain or demonstrate why the defense could not have

obtained Sloan's telephone number using reasonable diligence. Momah fails to establish

grounds for relief under Brady.

       Admission of Medical Files


       Momah argues that the trial court erred by refusing to suppress the medical files

seized from his office after determining that the police exceeded the scope of a valid

search warrant for the records of HP and two other women not relevant here. Evidence


obtained in violation of the privacy protections of the federal and state constitutions must

be excluded. State v. Afana. 169 Wn.2d 169, 179-80, 233 P.3d 879 (2010). But, "[ujnder

the independent source exception, evidence tainted by unlawful governmental action is not

subject to suppression under the exclusionary rule, provided that it ultimately is obtained

pursuant to a valid warrant or other lawful means independent of the unlawful action."

State v. Gaines. 154 Wn.2d 711, 718, 116 P.3d 993 (2005).

       Momah argues that the trial court improperly denied the motion to suppress based

on the inevitable discovery doctrine, which is not a valid exception to the exclusionary rule

in Washington. State v. Winterstein, 167 Wn.2d 620, 636, 220 P.3d 1226 (2009). But the

trial court properly applied the independent source exception to admit the evidence. State

v. Hilton, 164 Wn. App. 81, 89, 261 P.3d 683 (2011). Here, the trial court found that, each

of the women, other than HP, involved in the trial, including the three remaining victims

and the witnesses providing testimony admitted under ER 404(b), independently contacted

the police after the initial seizure and signed releases granting the police access to their

medical files. Verbatim Report of Proceedings (Oct. 6, 2005) at 38-39. Thereafter, the

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police searched for the individual file of each woman who had provided a release. Hilton.

164 Wn. App. at 91-92 (relevant factual inquiry under independent source exception

focuses on what police were doing and what motivated them to take the action they did to

determine whether lawfully obtained evidence was tainted by earlier unlawful action).

Because the warrant authorized the search for HP's records and the independent reports

and releases from the other women authorized the police to obtain their records, the trial

court properly applied the independent source exception and denied the motion to

suppress. Momah fails to establish grounds for relief.

       Ineffective Assistance of Appellate Counsel

       Momah claims appellate counsel provided ineffective assistance by failing to

challenge the admission of the medical files. To prevail on an ineffective assistance of
appellate counsel claim, Momah must demonstrate the merits of issues counsel failed to
argue or argued inadequately. JLord, 123 Wn.2d at 314. Because he fails to demonstrate
merit in such a challenge, this claim also fails.

       Juror Misconduct

       Momah has presented declarations from two jurors to support his claim that a juror

introduced extrinsic evidence into deliberations and was racially biased. In particular, a

juror who revealed during voir dire that she had 32 years of experience as a nurse, stated
her beliefs during deliberations that (1) RB accurately described the effects of fentanyl;
(2) photos ofinstruments thrown into a drawer demonstrated conditions that are not
professional or normal in a medical office; (3) receptionists do not normally act as
chaperones in medical exams; (4) doctors must be extremely negligent to lose hospital
privileges; and (5) Momah is intimidating because he is "big and black."

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       Generally, when evaluating a claim of juror misconduct, a court may not consider

matters that inhere in the verdict, including the weight accorded to the evidence by

individual jurors or the jurors' intentions or beliefs. State v. Jackman, 113 Wn.2d 772,

777-78, 783 P.2d 580 (1989). The mental processes, both individual and collective, by

which jurors reach their conclusions are all factors inhering in the verdict. Jackman, 113

Wn.2d at 777-78. Nonetheless, criminal defendants are also constitutionally entitled to a

fair trial before an unbiased and unprejudiced jury. State v. Jackson, 75 Wn. App. 537,

543, 879 P.2d 307 (1994) (where defendant makes prima facie showing of a juror's actual

bias, the trial court violates due process by denying motion for new trial without conducting

an evidentiary hearing).

       A jury is expected to bring its opinions, insights, common sense, and everyday life

experience into deliberations. State v. Briggs, 55 Wn. App. 44, 58, 776 P.2d 1347 (1989).

Extrinsic evidence, by contrast, includes highly specialized information that is outside the

realm of a typical juror's general life experience. Richards v. Overlake Hosp. Med. Ctr.. 59

Wn. App. 266, 274, 796 P.2d 737 (1990). Where a prospective juror's specialized

background is known to the parties who nonetheless allow the juror to serve, that juror's

introduction of specialized information in evaluating the evidence during deliberation is not

misconduct. Richards, 59 Wn. App. at 273-74 (juror who revealed medical background

during voir dire did not inject extrinsic evidence into deliberations by offering her

specialized analysis and opinion of evidence admitted at trial).

       Here, the juror revealed her medical background during deliberations. The reported

statements are based solely on the juror's opinions and life experience. Momah does not

suggest that the jurorconsulted any outside resource during trial. Momah fails to

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demonstrate misconduct. Similarly, Momah fails to demonstrate racial bias. The record

reveals that the juror at issue recognized and disapproved of racism during voir dire. The

witnesses testified to being intimidated by Momah's size, and the attorneys discussed his

size and appearance during voir dire and argument. The juror's accurate description of

Momah's physical appearance in this context does not constitute a prima facie showing of

actual bias. Momah fails to establish grounds for relief.

       Courtroom Closure


       Momah contends that the trial court violated his constitutional right to a public trial

but acknowledges that the Supreme Court rejected his arguments in his direct appeal.

State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009). "A claim rejected on its merits on

direct appeal will not be reconsidered in a subsequent personal restraint petition unless

the petitioner shows that the ends of justice would be served thereby." In re Pers.

Restraint of Jeffries, 114 Wn.2d 485, 487, 789 P.2d 731 (1990). Because Momah does

not request reconsideration here, we do not address this claim.

       Cumulative Error

       Momah claims that the cumulative error was so prejudicial as to deprive him a fair

trial. Given his failure to demonstrate any error, we reject this claim.

       Denied.




WE CONCUR:




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