                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            July 30, 2019


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    In the Matter of the                                              No. 51541-5-II
    Personal Restraint of

    CHARLES VERDEL FARNSWORTH, JR.

                                Petitioner.
                                                               UNPUBLISHED OPINION



          WORSWICK, P.J. — Charles Farnsworth Jr., seeks relief from personal restraint imposed

as a result of his 2012 conviction for first degree robbery, which resulted in a life sentence without

possibility of parole. Farnsworth filed an amended personal restraint petition and a supplemental

petition, which we consider herein.1

                                       AMENDED PETITION

          Issue 1: James McFarland’s Testimony

          Farnsworth and James McFarland were both charged with first degree robbery and both

faced life sentences without possibility of parole. McFarland agreed to plead guilty to first degree

robbery and first degree theft, with an agreement that if he testified against Farnsworth, the State

would move to vacate the robbery conviction. McFarland testified against Farnsworth, but during

cross-examination denied that he had pleaded guilty to both robbery and theft and testified that he

had only pleaded guilty to theft. Farnsworth sought to impeach McFarland with McFarland’s plea




1
 Consideration of Farnsworth’s petitions was delayed by motions brought in this court and in our
Supreme Court.
No. 51541-5-II


agreement, but the trial court denied his request to admit the plea agreement. Farnsworth argues

that the trial court erred in refusing to admit the plea agreement.

        This issue was addressed in Farnsworth’s direct appeal. State v. Farnsworth, 185 Wn.2d

768, 781-85, 790, 374 P.3d 1152 (2016). And a majority of justices held that any error was

harmless. Farnsworth, 185 Wn.2d at 785. Farnsworth attempts to recast his argument into

prosecutorial misconduct and ineffective assistance of counsel issues. But those issues previously

decided cannot be recast in a new manner unless the interests of justice require relitigation of the

issue. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013); In Re Pers. Restraint

of Jeffries, 114 Wn.2d 485, 488, 789 P.2d 731 (1990); see also In re Pers. Restraint of Stenson,

142 Wn.2d 710, 720, 16 P.3d 1 (2001). Thus, unless he shows that the interests of justice require

relitigation, Farnsworth cannot raise these arguments again in this petition. In re Pers. Restraint

of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994). He makes no such showing; he merely asserts

that he received an unfair trial.

        Even if we were to consider Farnsworth’s argument, both prosecutorial misconduct and

ineffective assistance of counsel require a showing of prejudice. State v. Emery, 174 Wn.2d 741,

755, 761, 278 P.3d 653 (2012). The Supreme Court’s holding that any error was harmless therefore

precludes relief on the revised claims. Farnsworth, 185 Wn.2d at 783-84; Emery, 174 Wn.2d at

754-61. Accordingly, Farnsworth does not demonstrate a ground for relief from restraint.

        Issue 2: Prosecutorial Misconduct – Failure to Correct and Inability to Impeach
        McFarland’s Testimony

        Farnsworth argues that the prosecutor committed misconduct by not “correcting”

McFarland’s testimony about his plea agreement. But he does not demonstrate that the prosecutor



                                                  2
No. 51541-5-II


has any such duty. McFarland’s plea agreement testimony was during cross-examination by

Farnsworth’s counsel, so the State did not suborn perjury.

        Farnsworth also claims ineffective assistance of counsel in not raising this issue and the

issue of not being allowed to impeach McFarland with two police reports 2 at trial and on appeal.

But his trial counsel attempted to impeach McFarland with the plea agreement and the police

reports. Moreover, his appellate counsel raised the impeachment issue in his direct appeal, and

Farnsworth does not show that appellate counsel’s not raising the second prosecutor’s failure to

correct testimony issue constitutes ineffective assistance. He does not demonstrate a ground for

relief from restraint.

        Issue 3: Prosecutorial Misconduct – Presenting False Evidence

        Farnsworth argues that it was prosecutorial misconduct to present false evidence about the

circumstances of his prior convictions regarding his wearing of a wig and glasses and that it was

ineffective assistance of counsel not to raise this issue with the courts at trial and on appeal. But

the State did not present any evidence about the prior convictions. While it mentioned these

convictions during opening statements, it elected not to introduce this evidence during trial. And

both trial and appellate counsel raised this issue.

        Issue 4: Prosecutorial Misconduct – During Opening Statement

        Farnsworth argues that the prosecutor committed misconduct by mentioning the evidence

of the circumstances of the prior convictions during opening statements. But this issue was also

rejected in his direct appeal and cannot be raised again in this petition. Farnsworth, 185 Wn.2d at



2
 The trial court sustained the prosecutor’s objection to the use of the police report for impeachment
on grounds of hearsay.

                                                  3
No. 51541-5-II


785-86; Lord, 123 Wn.2d at 303. Farnsworth also argues that he received ineffective assistance

of counsel when counsel failed to address the alleged prosecutorial misconduct. But, again, he

cannot recast his argument as ineffective assistance of counsel claims. Stenson, 142 Wn.2d at 720.

         Issue 6:3 Judicial Bias

         Farnsworth argues that the trial judge was biased against him and violated the appearance

of fairness doctrine when it (1) denied the admission of McFarland’s plea agreement, (2) did not

allow him to impeach McFarland with the police reports, (3) allowed the prosecutor to use

evidence of the circumstances of his prior convictions, (4) allowed the prosecutor to present

testimony by McFarland about rude gestures and comments Farnsworth made, and (5) allowed the

prosecutor to make references to the circumstances of his prior convictions in her opening

statement. All issues except (4) are addressed above, and none shows bias or an appearance of

unfairness. As to (4), this issue was rejected in his direct appeal and cannot be raised again here.

Farnsworth, 185 Wn.2d at 786-87; Lord, 123 Wn.2d at 303.

         Issue 7: Ineffective Assistance of Appellate Counsel – Misrepresentation of Evidence

         Farnsworth argues that his appellate counsel provided ineffective assistance of counsel in

“failing to address the Supreme Court’s misrepresentation of the evidence of [his] prior

convictions.” Am. Pet. at 35. But that alleged misrepresentation pertained to evidence of the

circumstances of Farnsworth’s prior convictions that, although mentioned in opening statements,

was not presented by the prosecutor. Farnsworth does not demonstrate any prejudice.




3
    Farnsworth’s amended petition did not contain an issue numbered 5.
                                                 4
No. 51541-5-II


       Issue 8: Right to Present a Defense

       Farnsworth argues that his right to present a defense was violated when the prosecutor

rested without presenting the evidence of the circumstances of Farnsworth’s prior convictions that

she mentioned in her opening statement. But he fails to show how the prosecutor’s decision not

to introduce that evidence violated his right to present a defense.

       Issue 9: Ineffective Assistance of Trial Counsel – Loss of Evidence

       Farnsworth argues that his first trial counsel’s deficient performance led to “loss of a

crucial witness and a three minute portion of exculpable video evidence.” Am. Pet. at 37. But he

does not demonstrate who that witness was or that there was exculpatory evidence available.

       Issue 10: Ineffective Assistance of Standby Counsel

       Farnsworth argues that his standby counsel provided ineffective assistance of counsel

through “unauthorized collaboration with the prosecution.” Am. Pet. at 40. We address this

argument below in the Supplemental Petition Issue B section.

       Issue 11: Ineffective Assistance of Trial Counsel – Failure to Object

       Farnsworth argues that his trial counsel provided ineffective assistance of counsel when he

did not object to testimony regarding Farnsworth’s statements made while refusing to provide a

handwriting exemplar.       To establish ineffective assistance of counsel, Farnsworth must

demonstrate that his counsel’s performance fell below an objective standard of reasonableness and

that as a result of that deficient performance, the result of his case probably would have been

different. Emery, 174 Wn.2d at 755. We presume strongly that trial counsel’s performance was

reasonable. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011). Farnsworth does not show

deficient performance. His statements were volunteered, not the result of custodial interrogation.


                                                  5
No. 51541-5-II


There was no federal Fifth Amendment objection that his counsel could have raised. Farnsworth

does not demonstrate ineffective assistance of trial counsel.

       Issue 12: Ineffective Assistance of Standby Counsel – Failure to be Present

       Farnsworth argues that he received ineffective assistance of standby counsel when that

counsel was not present at the jail when the State attempted to obtain his handwriting exemplar.

A defendant is not constitutionally entitled to standby counsel, and Farnsworth has not shown that

standby counsel has any duty to be present for an attempt to obtain a handwriting exemplar

pursuant to court order. See State v. Silva, 107 Wn. App. 605, 625, 27 P.3d 663 (2001). Thus,

Farnsworth does not demonstrate ineffective assistance of standby counsel.

       Issue 13: Reiteration of Prior Claims

       Farnsworth reiterates the claims made in issues 2 and 7, which we rejected above.

       Issue 14: Cumulative Error

       Farnsworth argues that cumulative error denied him a fair trial. The cumulative error

doctrine applies when several errors occurred at the trial level, none of which alone warrants

reversal, but the combined errors effectively denied the defendant a fair trial. Yates, 177 Wn.2d at

65-66. After reviewing this record, we hold that Farnsworth has not shown an accumulation of

error that would warrant reversal under the cumulative error doctrine.

                                 SUPPLEMENTAL PETITION

       Issue A: Ineffective Assistance of Trial Counsel – Loss of Evidence

       Farnsworth argues that he received ineffective assistance of counsel from his first trial

counsel. But this argument was raised and rejected in issue 9, above.




                                                 6
No. 51541-5-II


       Issue B: Ineffective Assistance of Standby Counsel – E-mail

       Farnsworth argues that he received ineffective assistance of counsel from his standby

counsel. Farnsworth had prepared motions that he wanted standby counsel to file for him. After

counsel did so, he wrote an e-mail to the Department of Assigned Counsel and to the prosecutor

informing them that Farnsworth did not want him to continue as standby counsel because

Farnsworth believed that counsel was mocking him in court. Counsel requested that new standby

counsel be assigned. Farnsworth then was appointed a third attorney. Farnsworth does not show

that the e-mail constituted deficient performance or resulting prejudice.

       Farnsworth also argues that standby counsel was ineffective in not filing his motion for a

line-up identification. But Farnsworth’s motion did not identify what witnesses should be required

to participate, and so his motion could not have been granted. Farnsworth does not demonstrate

ineffective assistance by standby counsel.

       Issue C: Ineffective Assistance of Standby Counsel – Failure to be Present

       Farnsworth argues that his second standby counsel provided ineffective assistance of

counsel. This argument is raised and rejected in issue 12, above.

       Issue D: Prosecutorial Misconduct – Failure to Correct and Inability to Impeach
       McFarland’s Testimony

       Farnsworth argues that the prosecutor committed misconduct when she aided McFarland’s

perjury. This argument is raised and rejected in issue 2, above.

       Issue E: Prosecutorial Misconduct During Opening Statement.

       Farnsworth argues that the prosecutor committed misconduct when she mentioned the

circumstances of Farnsworth’s prior convictions. This argument is raised and rejected in issues 3

and 4, above.

                                                 7
No. 51541-5-II


        Issue F: Exculpatory Evidence

        Finally, Farnsworth submits a declaration stating that there are two witnesses who could

have exculpated him. Farnsworth must present evidence showing that his factual allegations are

based on more than speculation, conjecture, or inadmissible hearsay. In re Pers. Restraint of Rice,

118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Here, the declaration consists of mere hearsay

statements. His declaration is not sufficient to establish his entitlement to a new trial. Rice, 118

Wn.2d at 886.

        Farnsworth does not present any grounds for relief from restraint. We therefore deny his

petition.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     WORSWICK, P.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




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