                                                                          FILED
                                                                     FEBRUARY 13, 2018
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                             DIVISION THREE

IN THE MATTER OF THE PERSONAL                  )
RESTRAINT OF                                   )         No. 34017-1-111
                                               )
CASMER JOSEPH VOLK.                            )
                                               )         UNPUBLISHED OPINION
                                               )
                                               )
                                               )
                                               )

       FEARING, C.J. -After his conviction for rape of a child, petitioner Casmer Volk

filed this personal restraint petition. The petition contends that Yolk's trial attorney

performed ineffectively by failing to adequately investigate the State's case, by

neglecting to consult forensic and juvenile memory experts and by forsaking the

presentation of important evidence. Volk asks this court to grant him a new trial. After

reviewing the findings emanating from a reference hearing, we agree with Volk and grant

a new trial.

                                           FACTS

       This prosecution arises from Casmer Yolk's relationship with Larry Hart, a four-

year-old at the time of the charged crime. Larry Hart and his parent's names are

pseudonyms.
No. 34017-1-III
In re Personal Restraint of Volk


       On April 28, 2011, Thomas and Sarah Hart left Larry in the care of their friend

and daycare provider, Diedre Cleary, while the couple vacationed in Oregon. Cleary

lived with her boyfriend, now husband, Casmer Volk.

       On April 30, 2011, Diedre Cleary took young Larry Hart to the local hospital,

where a physician prescribed an antibiotic to treat a recurring ear infection. Larry soon

suffered diarrhea, a common side effect from the antibiotic. Rectal bleeding and anal

irritation sometimes accompany severe diarrhea. On May 1, Casmer Volk, without the

presence of another, cared for Larry for two hours.

       When Thomas and Sarah Hart returned from vacation later on May 1, Casmer

Volk and Diedre Cleary brought Larry home. The next morning, May 2, Larry cried to

his mother Sarah and declaimed: "my butt hurts." State v. Volk, No. 30707-7-III, Report

of Proceedings (RP) at 135-36. Sarah wondered if Larry ached from diaper rash. Upon

inspection, the mother observed Larry's reddened and inflamed anus. Sarah applied

petroleum jelly to her son's anus, but he protested. When Sarah asked Larry:"' [W]hat

happened? Why does your butt hurt?"' Larry answered: "'Cas hurt me."' RP at 138.

"Cas" is a nickname for Casmer Volk. Sarah quizzed her son: "'how did [Cas] hurt

you?'" Larry replied: "' he put macaroni, lots of cream up my butt and his pee pee in my

butt."' RP at 138.

      Sarah Hart awaited to confront Casmer Volk with Larry's allegations until Yolk's

return of a borrowed car seat. On Yolk's visit to the Hart residence, Larry stood near the

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In re Personal Restraint of Volk


front door as Volk arrived. Larry commented to Volk: '"you hurt me."' RP at 142.

After Volk left the residence, Sarah arranged transportation for herself and Larry to the

hospital.

       On May 2, 2011, Registered Nurse and Sexual Assault Nursing Examiner Megan

Day met Larry and Sarah Hart in an examination room. Nurse Day uttered: "' Hi, how

are you doing today?'" Larry replied, "' My butt hurts. He-that guy named Cas he put

macaroni in my butt and lots of cream and he put his pee pee in my butt and it hurts.'"

RP at 174. Larry repeated this statement several times in response to Day's open-ended

questions. Upon inspection, Nurse Day found blood in Larry's underwear and around his

scrotum. Day observed redness around the boy's anus.

       With the assistance of a physician, Nurse Megan Day inserted an anoscope into

Larry's rectum, performed swabs from various body parts, and inspected anal tissue, but

could not find a source of rectal bleeding. Larry cried in pain during the procedure.

Nurse Megan Day delivered the physical evidence she collected to law enforcement.

       On May 2, Kittitas County Sheriffs Detective Darren Higashiyama visited the

hospital examination room, knelt on one knee beside Larry, and introduced himself.

Without prompting, Larry remarked: "'I have something to tell you."' RP at 344.

Detective Higashiyama asked: "' [W]ell, what is that?'" The young boy responded:

'" Cas put macaroni, lots of cream, and his pee pee in my butt."' RP at 344.



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In re Personal Restraint of Volk


        On May 4, 2011, Ellensburg Police Detective Sergeant Brett Koss interviewed

Larry Hart, at the police station, with the assistance of a social worker and victim's

advocate. Sarah Hart joined them later in the interview to help calm Larry. Larry

contradicted himself at times, but he mostly reiterated his earlier statements in response

to open-ended questions. For example, when Sergeant Koss inquired:"' So, can you tell

me what happened that made your butt hurt?'" Larry replied: "' Cas ... put his pee pee

in my butt."' State v. Volk, No. 30707-7-111, slip op. at 4 (Wash. Ct. App. Feb. 4, 2014)

(unpublished), http://www.courts.wa.gov/opinions/pdf/307077.unp.pdf. Nevertheless, in

moments of apparent confusion or coyness, Larry later equivocated on whether he told

the truth or a lie.

       During the police station interview and following Larry Hart's equivocations, his

mother Sarah Hart intervened by directing Larry to "tell them what you told mommy. I'll

give you a piece of gum .... Remember I said if you come down here and talk to people

we'll go to the dollar store." Memorandum in Support of Petition for Relief from

Personal Restraint (Memo), Appendix 3, Exhibit 11, at PV000586. The mother then, in

the presence of Larry, recounted her memory of what her son earlier reported to her.

       On May 11, 2011, Child Sexual Assault Forensic Interviewer Lisa Larrabee

interviewed Larry in the presence of Sarah Hart. Larry again reiterated his prior

statements in response to open-ended questions. For example, when Larrabee stated:

"'Now I want to talk to you about why you came to talk to me today,"' Larry replied,

                                             4
No. 34017-1-III
In re Personal Restraint of Volk


"' Cas hurt me. . . . He put his pee pee in my butt and stuck a whole lot of cream and put

macaroni in my butt . . . . The cream first and then the macaroni and then his pee pee.' "

State v. Volk, No. 30707-7-III, slip op. at 4 (alterations in original). Larrabee asked

Larry: "' What did it feel like when [Cas] put his pee pee in your butt?'" State v. Volk,

No. 30707-7-III, slip op. at 5 (alterations in original). The boy answered: "'Like, it felt,

like, soft, like soft and warm. . . . Like, like, it was all the way in my butt.'" State v.

Volk, No. 30707-7-III, slip op. at 5 (alterations in original). Larrabee asked Larry:

"' And, and what was [Cas] doing with his feet and legs when his pee pee was in your

butt?'" State v. Volk, No. 30707-7-III, slip op. at 5 (alterations in original). The

youngster answered, "'He was going like this."' State v. Volk, No. 30707-7-III, slip op.

at 5. Larry demonstrated by gyrating his hips in a circular movement. Larry explained

further, '"My hands were down on the ground.... 'Cause, 'cause I was bending over; I

was in ... a bed."' State v. Volk, No. 30707-7-III, slip op. at 5 (alterations in original).

Following these disclosures, Larrabee praised Larry by exclaiming: "'you know you just

did a really good job.'" Memo, Appendix 3, Exhibit 6, at 5 (emphasis omitted).

       Law enforcement forwarded evidence, including Larry's Black Ranger underwear,

swabs of Larry's genitals and anus, and other underwear and diapers worn by the boy

during his stay at Diedre Cleary's home, to the Washington State Patrol Crime

Laboratory for testing. We do not know if the underwear is the same underwear that

Larry wore on the date of the alleged rape. The laboratory found no sperm on any item.

                                               5
No. 34017-1-111
In re Personal Restraint of Volk


The Black Ranger underwear tested ppsitive for P-30, a genetic marker that typically

indicates the presence of semen, the ejaculate fluid that surrounds sperm but does not

itself contain any deoxyribonucleic acid (DNA) or sperm. Without the presence of

sperm, semen's human source canno.t be identified. A specimen of semen commonly

includes sperm unless the man who produced the specimen is infertile or has had a

vasectomy.

       In May 2011, the State of Washington charged Casmer Volk with first degree

child rape. The State also alleged the aggravating circumstance that Volk committed the

crime knowing that Larry was vulnerable or incapable of resistance. After holding a

competency hearing, the trial court ruled Larry Hart was not competent to testify.

       During the first trial, the State's experts, including Megan Inslee, a forensic

scientist with the Washington State Patrol, testified that she could not conclusively tie

Casmer Volk to the semen on Larry's underwear, but she also could not exclude Volk as

a source. The State contended that Volk must be the source of the semen as Larry,

Larry's brother, and Diedre Cleary's male children were too young to produce sperm or

semen and the only other possible source would be Thomas Hart, Larry's father. Since

Thomas sired biological children and Volk fathered none, the State posited that Volk

must maintain a low sperm count, with the conclusion that only Volk could be

responsible for the semen without sperm found on the Black Ranger underwear.

       At the conclusion of the first trial, the jury deadlocked. The trial court declared a

                                              6
No. 34017-1-III
In re Personal Restraint of Volk


mistrial.

       Prior to the second trial, Casmer Volk, having listened to the State's arguments

during the first trial, performed research about P-30. He, in part, wished to refute the

State's claim that P-30 indicates the presence of semen and absence of sperm. On

November 1, 2011, Volk sent his trial counsel a link to an online article about P-30,

which article read:

               No studies have been performed to assess the PSA [P-30] levels in
       the tissues and secretions of pre-pubescent children. Therefore, the
       presence of PSA from a high sensitivity (4 ng/mL) test cannot conclusively
       identify the presence of semen, so care must be taken with the interpretation
       of such results.

Ref. Hearing Ex. 115. During a later reference hearing, trial counsel acknowledged

receipt of this link from Volk. Counsel then told Volk: "in the event we need to proceed

to trial on this case we need to talk about retaining the services of some expert witness

pertaining to the sperm situation." Ref. Hearing Ex. 118. Yolk's counsel retained no

expert, however.

       Following the first trial, Casmer Volk wished to refute the State's argument that he

was the likely contributor of the sperm-free semen. Volk produced a semen sample at a

Sacred Heart Medical Center clinic. Sacred Heart physician William Dittman analyzed

the sample for its sperm count and concluded Volk carried active sperm in normal

quantity.

       Before the second trial, the trial court conducted another competency hearing and

                                             7
No. 34017-1-III
In re Personal Restraint of Volk


ruled that an older Larry was now competent to testify. After voir dire in the second trial,

the State commented, outside the presence of the jury, that the defense could not gain

admission as an exhibit of the sperm court report without the accompanying testimony of

an expert. In response, defense counsel reserved the right to enter the report into

evidence.

      During the second trial, the State elicited the following testimony from Larry Hart:

              Q.   Why are you here today?
              A.   To tell the truth.
              Q.   To tell the truth about what, [Larry]?
              A.   About Cas.
              Q.   What about Cas?
              A.   Cas hurt me.

             Q. How did Cas hurt you?
             A. He put cream in my butt. He put cream in my butt and his pee
      pee in my butt and macaroni in my butt.

RP at 42.

      Other State witnesses included Thomas and Sarah Hart, Larry's sibling, Nurse

Megan Day, Detective Darren Higashiyama, Detective Brett Koss, Lisa Larrabee, and the

technicians at the Washington State Patrol Laboratory who conducted the tests on Larry's

samples. The State also showed the jury videos of Larry's interviews respectively with

Koss and Larrabee.

      Lisa Larrabee testified to her interview with Larry Hart and the difficulties

inherent in interviewing young children for details of an alleged crime. Larrabee


                                              8
No. 34017-1-111
In re Personal Restraint of Volk .


remarked that a child's fatigue, hunger, or desire for the interview to end may result in

the child rendering inappropriate and implausible answers to questions posed. Larrabee

opined, nonetheless, that, despite these impediments, a child can still impart credible

information. Larrabee testified that a child's best answer, even one full of implausible

details, "doesn't mean they're [sic] deliberately telling falsehoods." RP at 427.

       The State also called Troy Swarthout as a witness during the second trial. Before

posting bail, Casmer Volk reposed in the same jail pod as Swarthout, a convicted felon

who had previously assisted Kittitas County law enforcement as a confidential informant.

Swarthout testified that Volk and he conversed while in jail. He averred that Volk asked

him if use of a condom prevents the depositing of DNA evidence. Swarthout further

declared that Volk accused Larry's mother of being a "vindictive bitch." RP at 323.

       Defense counsel called no witnesses other than Casmer Volk, who proclaimed his

innocence. Volk testified that, while in jail, he called Sarah Hart a bitch and denounced

her to Troy Swarthout for coercing Larry to falsely accuse him. He conceded he might

have mentioned DNA, but denied mentioning, to Swarthout, a condom. Defense counsel

asked Volk whether he held an opinion on whether he could produce sperm. After Volk

responded affirmatively, his counsel asked him how he knew. Volk responded that he

underwent a test. Following the State's objection, counsel asked Volk to reiterate his

belief that he generated sperm. Defense counsel never referred to Dr. William Dittman' s

report or attempted to submit the report into evidence.

                                             9
No. 34017-1-111
                                                                                             I
In re Personal Restraint of Volk


       The jury found Casmer Volk guilty of first degree rape of a child and also found

the presence of the aggravating circumstance of Larry's vulnerability. On the basis of

this aggravator, the trial court imposed an exceptional sentence. The court sentenced

Volk to a total of twenty-eight years' imprisonment, ten years above the standard range.

The court never entered written findings articulating its reasons for the exceptional

sentence. Volk appealed.

       This court upheld Casmer Yolk's conviction in State v. Volk, noted at 179 Wn.

App. 1024 (2014 ), reversed some community custody conditions, remanded for revision

of other conditions, and declined to remand to require entry of written findings for the

exceptional sentence. Volk successfully petitioned the Washington Supreme Court for

review of the trial court's failure to enter written findings of fact in support of its

exceptional sentence. State v. Volk, 180 Wn.2d 1013, 327 P.3d 54 (2014). The Supreme

Court remanded the case for entry of written findings of fact and conclusions of law.

State v. Friedlund, 182 Wn.2d 388, 341 P.3d 280 (2015). On May 12, 2015, the trial

court entered written findings supporting its exceptional sentence, while declining Yolk's

request to reconsider the length of the sentence.

                                        PROCEDURE\

       Casmer Volk filed a personal restraint petition. He claimed his trial counsel

breached his constitutional right to assistance of counsel because counsel failed to

provide expert testimony and failed to submit, as an exhibit, the report of his normal

                                               10
No. 34017-1-III
In re Personal Restraint of Volk


sperm count. As part of his petition submittal, Volk included a declaration of Dr. Greg

Hampikian, who opined that his review of the Washington State Patrol Crime

Laboratory's results make it unlikely the P-30 came from semen. The declaration

observed that the P-30 was found high on the waistband of the Black Ranger underwear,

a place semen would not naturally be found following a rape. Hampikian stated the P-30

may have come from another bodily fluid and transferred innocuously to Larry Hart's

underwear.

        In response to Casmer Yolk's personal restraint petition, this court ordered a

reference hearing. This court asked the trial court to entertain evidence for the purpose of

gaining answers to the following questions:

                 Did [trial counsel] consider using experts in his preparation for the first
        trial (why or why not), and (2) did Mr. Volk or his family make [trial counsel]
        aware of Dr. Dittman and/or other prospective witnesses prior to the second
        trial, and, if so, identify the proposed witnesses, the general nature of their
        expected testimony, and [trial counsel's] thought processes.

Order for Reference Hearing, In re Personal Restraint of Volk, No 34017-1-III (Wash.

Ct. App. March 29, 2017).

        During the reference hearing, Casmer Volk introduced documents from his trial

counsel's file that showed consideration of the use of defense experts. In tum, counsel

testified:

               I believed we would prevail based on-demonstrating that there was
        not proof beyond a reasonable doubt in the evidence that was going to be
        submitted by the prosecution and our response to it.

                                                 11
No. 34017-1-III
In re Personal Restraint of Volk



Reference Hearing Report of Proceedings (RHRP) at 81. Counsel summarized his

thoughts preceding the second trial:

               I [Trial counsel] thought under the circumstances, a hung jury from a
       tactical, procedural perspective, in light of what the state had presented and
       our defense and our explanation and the observation of the tapes of the
       young child and his recant of testimony, and changing a modifying testimony
       as-as well as the scope of the examination of the experts and my-
       consultation with several of the jurors who I reached by phone who indicated
       there was absence of scientific evidence, I was-or factors in their-their
       holding out for not guilty, I felt we were okay.
               [Casmer Yolk's reference hearing counsel]: So your plan was to try
       the case the second way-excuse me-the second time the same way.
               [Trial counsel]: Yes.

RHRP at 81-82.

       During the reference hearing, trial counsel denied an accusation that he refrained

from expert testimony solely because of the cost, though he agreed cost was a

consideration. Counsel admitted being unaware of State v. Punsalan, 156 Wn.2d 875,

133 P.3d 934 (2006), which permits payment of expert witnesses from public funds for

an indigent defendant represented by retained counsel.

      During the second trial, Casmer Yolk testified to the sperm testing that confirmed

his producing sperm, but no expert corroborated that testimony. Trial counsel, during the

reference hearing, testified that he deemed Yolk's testimony sufficient to inform the jury

of Yolk's production of sperm. Nevertheless, counsel conceded an expert could give

greater weight to the scientific data. Counsel reiterated that he adjudged expert testimony


                                            12
No. 34017-1-III
In re Personal Restraint of Volk


as unnecessary for the second trial because of the poor quality of Larry Hart's testimony,

although counsel admitted that Larry's testimony improved at the second trial due to his

increased age.

        During the comprehensive reference hearing, the trial court entertained testimony

from Casmer Volk and his mother, Phyllis Volk. Both testified that he or she notified

trial counsel of two experts before the second trial. DNA expert, William Dittman,

would have testified that DNA did not identify Volk as the perpetrator. Remember the

State's own expert stated that she could not confirm Volk as the perpetrator based on

DNA evidence.

        At the close of the reference hearing, Casmer Volk mentioned that trial counsel

failed to order a transcript of the first trial for use as an impeachment tool at the second

trial. Volk contended that trial counsel's file evidenced that, by the beginning of the

second trial, counsel had assessed a need for expert testimony, but failed to act on this

assessment. Volk argued that counsel performed with gross deficiency by his reliance on

the first trial ending in a hung jury. Volk also emphasized that trial counsel omitted use

of experts based on costs, despite public funds being available for payment of the costs.

        After the reference hearing, the trial court entered thorough written findings of

fact:

                1. Did [trial counsel] consider using experts in his preparation for
        the first trial? Answer, [trial counsel's] memory is uncertain. He was,
        however, aware the State intended to present expert evidence. [Trial

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No. 34017-1-111
In re Personal Restraint of Volk


      counsel] believed the poor quality of the victim's testimony was to the
      advantage of Defendant Volk. Further, there was no DNA identification of
      Mr. Volk linking him to the crime. Thus, [trial counsel] believed it was not
      necessary to use any experts.
              2. Did Mr. Volk or his family make [trial counsel] aware of Dr.
      William Dittman, Jr., and/or other prospective witnesses prior to the second
      trial? Answer, yes. The witnesses identified were Mr. Howard Coleman
      and Dr. Dittman. Dr. Dittman's proposed testimony would have been to
      establish Mr. Volk was capable of producing sperm. Mr. Coleman was a
      forensic DNA expert. [Trial counsel] states he suspected he thought about
      calling Mr. Coleman but did not. It was something he would have thought
      about in his preparation for trial. Mr. Coleman had been contacted by the
      Volk family approximately one week before the second trial.
              3. [Trial counsel] was aware of the potential need for expert
      testimony regarding the discovery of semen on the child's clothing, the
      nature of the semen and the possible sources of the semen.
              4. [Trial counsel] was aware that DNA testing did not identify Mr.
      Volk as a contributor of the semen.
              5. [Trial counsel] testified the decision not to present at trial the
      scientific evidence made available to him pretrial by Mr. Volk (i.e.,
      PSA/P30 analysis and testing regarding Mr. Yolk's fertility) would not be
      hurtful to Mr. Yolk's case. Dr. Dittman's proposed testimony would have
      been that Mr. Volk produced sperm. Mr. Volk testified at trial that he
      could produce sperm. [Trial counsel] admitted the challenge to Mr. Yolk's
      testimony would have been more significant than the challenge to Dr.
      Dittman's testimony.
              6. [Trial counsel] did not consult any expert on the issues regarding
      the source or presence of semen. [Trial counsel] could not recall his
      thinking about the need for an expert on the presence of semen.
              7. [Trial counsel] testified money is always a factor in retaining an
      expert. To what extent money was a factor in his decision not to retain an
      expert is unclear. [Trial counsel] was unaware of the decision in State v.
      Punsalan, 156 Wn.2d 875 (2006), holding that public funds for experts are
      also available to those with private attorneys. To [trial counsel's]
      knowledge, the defendant owned part of a family business, as well as his
      own home. Both [trial counsel] and Mr. Volk testified that they had never
      discussed the defendant's finances. [Trial counsel] did no research
      factually or legally as to public or private funding of an expert in this case.
      Phyllis Volk, the defendant's mother, testified that she told [trial counsel] it

                                            14
 No. 34017-1-111
 In re Personal Restraint of Volk


        would be better to spend the money for an expert than later to regret not
        doing so.
                 8. [Trial counsel] does not recall today what discussions or thoughts
        he had regarding the consultation of an expert regarding whether the
        presence of PSA was also necessarily associated with the presence of
        semen.
                 9. Based on the absence of DNA in the first trial together with the
        testimony and tapes of the victim, [trial counsel] felt the hung jury from the
        first trial was an acceptable outcome although he hoped for an acquittal.
        Given the outcome of the first trial, his strategy for the second trial would
        be the same strategy as used in the first trial.
                 10. [Trial counsel] does not recall that he ordered transcription of
        any testimony in the first trial. He testified that he would have placed any
        such transcript in his file and that he did send petitioner's counsel, David
        Marshall, a complete copy of his file. Thus, he testified, the absence of any
        such transcript in the file received by Mr. Marshall likely means he ordered
        none.

Order Re Reference Hearing Re Personal Restraint Petition, In re Personal Restraint

Petition of Volk, No. 11-1-00084-1 (Kittitas County Super. Court, Wash. June 23, 2017).

                                    LAW AND ANALYSIS

        Casmer Volk contends that his trial counsel performed ineffectively and the

ineffective assistance of counsel caused him prejudice. He requests that this court grant

him a new trial. We agree with Volk and grant him a new trial. In light of the trial

court's findings at the reference hearing and the affidavits supporting Yolk's personal

, restraint petition, we conclude that counsel deficiently performed by failing to investigate

and find relevant scientific evidence, by not consulting with forensic or medical experts

in defense of Volk, and by omitting expert testimony. We adjudge such deficient

performance as harmful to Volk.

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No. 34017-1-111
In re Personal Restraint of Volk


          To obtain relief on collateral review based on constitutional error, the petitioner

must demonstrate by a preponderance of the evidence that he was actually and

substantially prejudiced by an error. In re Personal Restraint ofDavis, 152 Wn.2d 647,

671-72, 101 P .3d 1 (2004 ). If a personal restraint petitioner supports an ineffective

assistance of counsel claim, he necessarily fulfills his burden to show actual and

substantial prejudice. In re Personal Restraint of Crace, 174 Wn.2d 835, 846-47, 280

P.3d 1102 (2012).

       The Sixth Amendment to the United States Constitution guarantees an accused the

right to legal counsel in criminal trials. Like the federal constitution, Washington's

Constitution also grants an accused, in a criminal prosecution, the right to appear by

counsel. WASH. CONST. art. I, § 22. The right to counsel under the state and federal

constitutions are coextensive. State v. Long, 104 Wn.2d 285, 288, 705 P.2d 245 (1985).

       The constitution guarantees the accused more than an attorney who sits next to

him at counsel table. To meaningfully protect an accused's right to counsel, an accused

is entitled to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The right to effective assistance of

counsel is recognized not for its own sake, but for the effect it has on the ability of the

accused to receive a fair trial. State v. Wehbe, 122 Wn. App. 683, 694, 94 P.3d 994

(2004).

       Courts apply a two pronged test to determine if counsel provided effective

                                                16



                                                                                                I
No. 34017-1-III
In re Personal Restraint of Volk


assistance: (1) whether counsel performed deficiently, and (2) whether the deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. at 687. To

satisfy the first prong of deficient performance, the accused must show that, after

considering all the circumstances, counsel's performance fell below an objective standard

of reasonableness. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

The defendant carries the burden to show deficient performance. State v. Grier, 171

Wn.2d 17, 33, 246 P.3d 1260 (2011). This court gives great deference to trial counsel's

performance and begins the analysis with a strong presumption counsel performed

effectively. State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233 (2015).

      In general, trial strategy and tactics cannot form the basis of a finding of deficient

performance. State v. Johnston, 143 Wn. App. 1; 16, 177 P.3d 1127 (2007). A criminal

defendant can rebut the presumption of reasonable performance by demonstrating that no

conceivable legitimate tactic explains counsel's performance. In re Personal Restraint of

Caldellis, 187 Wn.2d 127, 141, 385 P.3d 135 (2016); State v. Reichenbach, 153 Wn.2d

126, 130, 101 P.3d 80 (2004). Not all defense counsel's strategies or tactics are immune

from attack. In re Personal Restraint of Caldellis, 187 Wn.2d at 141. The relevant

question is not whether counsel's choices were strategic, but whether they were

reasonable. Roe v. Flores-Ortega, 528 U.S. 470,481, 120 S. Ct. 1029, 145 L. Ed. 2d 985

(2000); State v. Grier, 171 Wn.2d at 34 (2011).

      Courts cannot exhaustively define the obligations of counsel or form a checklist

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No. 34017-1-111
In re Personal Restraint of Volk


for judicial evaluation of attorney performance. Strickland v. Washington, 466 U.S. at

688 ( 1984 ). Nevertheless, effective representation entails certain basic duties, such as the

overarching duty to advocate the defendant's cause and the more particular duty to assert

such skill and knowledge as will render the trial a reliable adversarial testing process.

Strickland v. Washington, 466 U.S. at 688; In re Personal Restraint of Yung-Cheng Tsai,

183 Wn.2d 91,100,351 P.3d 138 (2015).

       Casmer Volk argues that his trial counsel performed deficiently when failing to

call Dr. William Dittman or some other expert as a witness or at least investige with an

expert the critical subject of semen. Ordinarily, the decision whether to call a witness is a

matter of legitimate trial tactics and will not support a claim of ineffective assistance of

counsel. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981). The presumption of

counsel's competence can be overcome, however, by showing counsel failed to conduct

appropriate investigations to determine what defenses were available, adequately prepare

for trial, or subpoena necessary witnesses. State v. Jury, 19 Wn. App. 256, 263-64, 576

P .2d 1302 (1978).

       We deem State v. Maurice, 79 Wn. App. 544,903 P.2d 514 (1995) informative.

The trial court convicted Gregory Maurice of vehicular homicide. As part of a personal

restraint petition, Maurice submitted an affidavit from an accident reconstructionist that

the car malfunctioned. Maurice contended that his attorney performed ineffectively by

failing to investigate the vehicle's malfunction. This court remanded for a hearing to

                                             18
No. 34017-1-111
In re Personal Restraint of Volk


determine the truth of the affidavit.

       In Eaddy v. State, 845 So. 2d 961 (Fla. Dist. Ct. App. 2003), the reviewing court

granted Anthony Eaddy post-conviction relief on the allegation that his counsel failed to

hire a DNA expert to explain evidence. In Byrd v. Trombley, 580 F. Supp. 2d 542 (E.D.

Mich. 2008), aff'd, 352 F. App'x 6 (6th Cir. 2009), the federal court granted the

defendant habeas corpus relief on the ground that his defense counsel failed to investigate

and present expert medical testimony that could have led to an acquittal on criminal

sexual misconduct.

       Casmer Volk' s trial counsel failed to advance a reasonable defense strategy when

he failed to speak in advance of trial with an expert witness about the nature of P-30 and

about Yolk's sperm count. Counsel failed to advance a reasonable strategy when he

failed to call to testify an expert to confirm Yolk's normal sperm count. The State

emphasized to the jury that the presence of P-30 meant the presence of semen, and, in this

instance, the semen lacked sperm. The State mentioned that Volk never fathered children

and thus he was the only suspect for having semen in Larry's underwear. Any jury

would question Yolk's self-serving testimony that his semen sample contained sperm in

normal amounts. A jury would wonder why, if Yolk's testimony was true, the defense

did not call a physician or other witness with a scientific background to confirm Yolk's

declaration. Trial counsel possessed a report as to Yolk's sperm count, but counsel did

not even attempt to admit the report as an exhibit.

                                             19
No. 34017-1-III
In re Personal Restraint of Volk


       In preparation for the second trial, Casmer Volk and his family forwarded

information to trial counsel indicating P-30 could be found in bodily fluids other than

semen. Counsel took no steps in response to this information and did not even question

the State's expert about the information.

       The first trial's ending in a hung jury did not excuse the failure of trial counsel. A

hung jury meant that some jurors deemed Casmer Volk guilty. Scientific evidence could

have persuaded such jurors otherwise. Defense counsel's engaging in the same tactics in

the second trial that he employed in the first trial does not render counsel's conduct

reasonable. Volk did not want a second hung jury. He desired an acquittal.

       The dissenting opinion suggests that the State's expert witness supported Casmer

Yolk's defense. State expert, Megan Inslee, a forensic scientist with the Washington

State Patrol, testified that she could not conclusively tie Casmer Volk to the semen on

Larry's underwear, but she also could not exclude Volk as a source. William Dittman

would have provided significantly stronger testimony favoring Volk.

       The cost of the expert witness did not excuse trial counsel from soliciting the

assistance of an expert. The State would have paid for the witness. Trial counsel

unreasonably failed to know of a Washington decision that imposed the cost of an expert

on the State when the defendant was indigent regardless of whether the defendant hired

private counsel. In addition, Yolk's family told trial counsel that family members would

pay for the cost of an expert. In a declaration, trial counsel implied that he did not pursue

                                             20
No. 34017-1-III
In re Personal Restraint of Volk


an expert because of unpaid legal bills.

       In his personal restraint petition, Casmer Volk also contends that his trial counsel

additionally performed deficiently by failing to consult with an. expert in child memory

and suggestibility. We do not address this argument, because we grant a new trial on

other grounds.

       To establish ineffective assistance of counsel, Casmer Volk must also establish

that the ineffective assistance prejudiced him. Prejudice is established when there is a

reasonable probability that, but for counsel's errors, the result of the trial would have

been different. In re Personal Restraint ofBrett, 142 Wn.2d 868,873, 16 P.3d 601

(2001 ). A reasonable probability is a probability sufficient to undermine confidence in

the outcome. Stricklandv. Washington, 466 U.S. at 694 (1984); In re Personal Restraint

of Caldellis, 187 Wn.2d at 141 (2016). If this court is convinced a petitioner has proved

actual prejudicial error, the court should grant the personal restraint petition without

remanding the cause for another hearing. In re Personal Restraint of Hews, 99 Wn.2d

80, 88,660 P.2d 263 (1983). Because of the State's emphasis on the semen found on the

underwear, because of the need for expert testimony to rebut the State's contention that

the semen on the underwear belonged to Volk, and because of an earlier hung jury, our

confidence in the outcome of the second trial is undermined.




                                             21
                                                                                              I
                                                                                              i
No. 34017-1-III
In re Personal Restraint of Volk


                                     CONCLUSION

       We grant Casmer Yolk's personal restraint petition. We remand for a new trial on

the charge against Volk.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                          Fearing, C.J.         I

I CONCUR:




Siddoway, J . ( )




                                            22
                                      No. 34017-1-III

       KORSMO, J. (dissenting)-Having a different, or even a better, way to try a case

does not mean that trial counsel performed ineffectively at trial. Counsel achieved a

hung jury in the first trial and could reasonably expect to do no worse at the retrial, thus

making the decision to retry it in the same manner a valid tactic. Since Mr. Volk has not

shown that anything was wrong with that approach, this personal restraint petition (PRP)

necessarily fails.

       In its seminal case on ineffective assistance of counsel, the United States Supreme

Court noted:

       There are countless ways to provide effective assistance in any given case.
       Even the best criminal defense attorneys would not defend a particular
       client in the same way.

Stricklandv. Washington, 466 U.S. 668,689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Mr. Volk brought this PRP arguing, in essence, that his trial counsel did not further

investigate and retry this case in a different manner by calling unnecessary experts. Volk

needed to do more than that. He had to show that counsel's defense at the retrial was so

significantly below professional standards that confidence in the verdict was undermined.

Id., at 694. He failed to make that showing here.
No. 34017-1-III
In re PRP o/Casmer Volk-Dissent


       The defense did not need to call a DNA expert. The State's expert had already

testified at the first trial that the only DNA recovered did not tie Volk to the crime. A

redundant expert would not help the defense. 1

       The majority also contends that an expert to talk about PSA2 would have been

useful. Perhaps. Or perhaps not. The evidence called to trial counsel's attention simply

pointed out that there were no studies concerning the ability of children the victim's age

to produce PSA. It neither rejected nor supported the possibility, thus making such

evidence unhelpful to the jury. The defense expert also would have confirmed that the

PSA found on the waistband of the victim's underwear was transferred there. Again, that

evidence is unilluminating since that both sides believed that to be the case. Further




       1
          The majority also focuses on the irrelevant fact that defense counsel was unaware
that the State might pay for experts at the retrial. This point is irrelevant due to the fact
that defense counsel never rejected the experts due to cost. Counsel recognized that the
marginal utility of the expert testimony did not justify the cost of calling the expert, but
neither his testimony nor the court's reference hearing findings indicated that counsel
rejected using experts because of expense to Mr. Volk. Nor did Mr. Volk argue that he
was unable to pay for the experts-the majority even notes that Yolk's family offered to
pay for an expert. It also is unclear from the record of the appeal whether or not trial
counsel was appointed or retained, although Mr. Volk was declared indigent for purposes
of his appeal. Volk did not claim indigency in this action and paid the filing fee and has
been represented by retained counsel. Finally, the State will only pay for experts whose
testimony is "necessary to an adequate defense." CrR 3.l(f)(l); State v. Kelly, 102
Wn.2d 188,200,685 P.2d 564 (1984). These experts were not shown to be necessary to
the defense. This issue is an irrelevancy.
        2
          Prostate-specific antigen.

                                             2
                                                                                                I
1
I
j
I
     No. 34017-1-111
II   In re PRP of Casmer Volk-Dissent


     confirmation of that fact did not help the defense. One is left to wonder what use expert

I!   testimony about PSA would have been.

             The majority also faults defense counsel for not ordering a verbatim report of the

     first trial, although neither the majority nor the defense explain how that fact was of

     consequence to the second trial. 3 Mr. Volk could easily point to a change in testimony if

     there was one. He has not.

             Both Mr. Volk and the majority exaggerate the importance of the PSA/DNA

     testimony to the prosecution. In 24 pages of closing argument at the second trial, about

     three pages of the prosecutor's argument discusses the scientific evidence. State v. Volk,

     No. 30707-7-111 Report of Proceedings (RP) at 650-652. Similarly, three pages of

     defense counsel's 24 page closing argument focus on the scientific evidence. Id. at 678-

     680. Defense counsel hammered how the forensic evidence supported finding his client

     not guilty, while the prosecutor struggled to explain that the evidence did not torpedo his

     case.

             However, the bulk of the closing arguments were spent on other topics. The

     prosecutor focused on the victim's initial disclosure statement and the lack of credibility

     of the adult witnesses in the case. The defense likewise argued that the statement of the


             3The clerk's papers (CP) from the direct appeal, file No. 30707-7-111, show that at
     least a partial verbatim report was prepared for the second trial. The emergency room
     physician's testimony from the first trial was introduced in written form for the second
     trial. CP at 107-120.

                                                  3
No. 34017-1-111
In re PRP ofCasmer Volk-Dissent


then-four-year-old victim was at odds with the physical evidence and that the defendant's

large penis would have caused injury if the child's testimony was accurate. RP at 666-

676. This was not a case of overemphasis on the scientific evidence by either party, but

simply fairly typical arguments that the evidence either did or did not advance each

party's case.

       Defense counsel did a fine job in closing argument. He repeatedly distinguished

his style from that of the prosecutor, which he very gently criticized as "flamboyant and

bombastic," even referencing unnecessary "fire crackers and fireworks put on by the

prosecutor in final statement." RP at 661, 664. Those observations are important

because all this case boils down to is a difference in style. Mr. Volk thinks that his

attorney should have more aggressively sought scientific evidence to challenge the

prosecutor. However, there simply was no need. I imagine all members of this panel

have tried cases in which counsel tried to convince a jury that the evidence meant more

than it really did. Juries see through those types of arguments all the time, to the

detriment of the overzealous attorney's client. That was counsel's approach here. The

prosecutor tried to argue that the absence of DNA evidence did not ruin his case. In

contrast, the defense pointed out that the prosecutor still bore the burden of proof and

could not meet it under these circumstances despite the slide show used in closing




                                             4
No. 34017-1-III
In re PRP ofCasmer Volk-Dissent


argument. He correctly argued that the prosecutor's argument about the evidence did not

hold water. There simply was nothing wrong with the defense's trial of the case. 4

      Mr. Volk has successfully convinced the majority that his counsel failed to rebut

an argument by the prosecutor that had failed to convince the jury the first time around.

Might it have been better to have prepared differently for the retrial? Possibly. However,

there simply was nothing wrong with trial counsel deciding that what had not worked for

the prosecutor the first time was unlikely to work better the second time around. Mr.

Volk needed to show that approach was erroneous. He has not done so.

      The PRP should be dismissed.




      4A point also supported by the fact that the PRP does not allege prosecutorial
misconduct as a basis for any relief.

                                             5
