IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Personal Restraint 

of

GUSTAVO JEREMY MCDONALD,

 Petitioner.

No. 84711-2-I

UNPUBLISHED OPINION

BOWMAN, J. — Gustavo Jeremy McDonald seeks relief through this 

personal restraint petition (PRP) from his jury conviction for one count of first 

degree rape of a child. He argues his trial attorney was ineffective for failing to 

interview or thoroughly cross-examine a forensic interviewer pretrial, failing to 

object to witness vouching at trial, and failing to call an expert on child memory. 

We deny his petition. 

FACTS

In fall 2015, eight-year-old J.L. told her mother that McDonald, her stepgreat-grandfather, sexually assaulted her. J.L.’s mother called the police, who 

investigated the allegations and facilitated a child forensic interview with Heidi 

Scott.

About two weeks later on October 13, 2015, Scott interviewed J.L. about 

her disclosure and brought a facility dog to the interview. J.L. told Scott that the 

assault occurred about two years earlier when she was in the first grade. During 

that time, she often stayed at her great-grandparents’ apartment. On the day of 
No. 84711-2-I/2

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the assault, J.L.’s great-grandmother Irma Maldonado went to the store while J.L. 

watched a movie in McDonald’s bedroom. After Maldonado left, McDonald 

entered the bedroom, asked J.L. about the color of her underwear, and told her 

to take them off. J.L. complied, and McDonald orally sexually assaulted her. J.L. 

immediately told Maldonado about what happened when she returned from the 

store. Maldonado then confronted McDonald1 but did not report the incident to 

J.L.’s parents or the police. Maldonado told J.L. not to tell anyone about what 

happened. 

In 2018, the State charged McDonald with one count of first degree child 

molestation. McDonald hired attorney Courtney Will to represent him. As part of 

discovery, Will received a video and transcript of Scott’s forensic interview with

J.L. At the beginning of the interview, Scott tells J.L. that she can invite the 

facility dog “up there with you” on the couch. J.L. then talks about having 

puppies of her own. When Scott asks what kind of puppies, J.L. explains she 

does not actually have puppies, but “I imagine in my dream so, and I’m gonna 

have a new puppy soon.” 

Will then interviewed J.L. on October 4, 2019. During the interview, J.L. 

told Will that she eventually disclosed the assault to her mother when she 

“started having nightmares about it.” Based on this information and J.L.’s earlier 

statement to Scott that she dreamed about having a puppy, Will developed a 

theory that J.L. misremembered the rape and “mistook a dream for reality.” Will 

 

1 J.L. told Scott that she could hear Maldonado “screaming” and “yelling” at 

McDonald in Spanish.
No. 84711-2-I/3

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researched “memory, suggestibility, and source monitoring”2 and consulted an 

expert in the field. 

On March 8, 2020, the prosecutor disclosed new witness statements to 

Will. The prosecutor told Will:

1. I asked J.L. what her answer would be if someone had 

suggested that this incident was a dream. J.L. stated that it 

was not a dream. She stated she know[s] the difference 

between a dream and reality and that she doesn’t feel the 

actual touching in a dream. . . .

2. I spoke with Heidi Scott about her training and experience 

about susceptibility of children and she talked to me about 

source monitoring. She indicated source monitoring is more 

applicable to children ages [three] to [five] where susceptibility 

is higher. Source monitoring is not as much of a concern when 

the child is [eight years old]. 

On March 9, 2020, Scott testified at a child hearsay evidentiary hearing. 

She explained how she conducts forensic interviews in general and, specifically,

her interview with J.L. Will cross-examined Scott about her experience and 

knowledge related to memory and source monitoring. That same day, the State 

amended the charge to rape of a child in the first degree. After the evidentiary 

hearing, Will decided not to separately interview Scott. And he chose not to 

retain an expert on memory for trial.

The case proceeded to a jury trial in October 2020. During trial, J.L. 

testified in detail about the rape. The State also called J.L.’s mother, a

Lynnwood Police Department officer and detective, an advanced registered

 

2

In support of his PRP, McDonald provides the declaration of board certified 

forensic psychologist Caroline Carr, who describes “source monitoring” as “the set of 

cognitive processes in which memories are attributed to a particular source of origin” and 

a person’s ability “to accurately identify the source of a given memory.” 
No. 84711-2-I/4

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nurse practitioner, and Scott. Scott testified about her forensic interview with J.L. 

And she testified about how juvenile memory recall and source monitoring impact 

her interview process. The State played the video of Scott’s interview with J.L. 

for the jury.

On cross-examination, Will asked Scott about her training and education 

related to memory and source monitoring. Scott could not remember many 

specific articles or studies from her training, nor could she answer Will’s 

questions about the psychological concepts associated with memory. Scott 

explained that her expertise is in forensic interviewing, not psychology. Scott 

admitted that she could not determine whether J.L.’s disclosure flowed from a 

false memory.

The jury found McDonald guilty of first degree rape of a child. The court 

sentenced McDonald to a standard-range indeterminate sentence of 102 months 

to life in prison. McDonald appealed, challenging as unconstitutionally vague a 

community custody condition that prohibited him from forming relationships with 

families who have minor children.3 We agreed with McDonald and remanded for 

the trial court to modify the condition.4

McDonald then timely filed this PRP. 

ANALYSIS

McDonald argues that Will was ineffective because he failed to “properly 

investigate and refute testimony presented by the [S]tate concerning memory, 

 

3 State v. McDonald, No. 82086-9-I (Wash. Ct. App. Nov. 22, 2021)

(unpublished), https://www.courts.wa.gov/opinions/pdf/820869.pdf. 

4 McDonald, No. 82086-9-I, slip op. at 1-2. 
No. 84711-2-I/5

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suggestibility, and source monitoring errors in children,” failed to object to witness 

vouching at trial, and did not call an expert witness on memory. We address 

each of his arguments in turn.

1. Standard of Review

Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173 

Wn.2d 123, 132, 267 P.3d 324 (2011). A petitioner may seek relief through a 

PRP when he is under “unlawful [ ] ‘restraint.’ ” RAP 16.4(a).5 A petitioner 

seeking relief from an alleged constitutional error must show by a preponderance 

of the evidence that the error actually and substantially prejudiced him. In re 

Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004); In re Pers. 

Restraint of Sandoval, 189 Wn.2d 811, 821, 408 P.3d 675 (2018).

The Sixth Amendment to the United States Constitution and article I, 

section 22 of the Washington Constitution guarantee effective assistance of 

counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (citing 

Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984)). An ineffective assistance of counsel claim presents mixed 

questions of law and fact that we review de novo. State v. K.A.B., 14 Wn. App.

2d 677, 707, 475 P.3d 216 (2020) (citing State v. Linville, 191 Wn.2d 513, 518, 

423 P.3d 842 (2018)). To establish ineffective assistance of counsel, a petitioner 

must show (1) that defense counsel’s performance was deficient and (2) that the 

deficient performance resulted in prejudice. Strickland, 466 U.S. at 687. If a 

 

5 Under RAP 16.4(b), a petitioner is under “restraint” when, as here, he “has 

limited freedom” because he “is confined . . . resulting from a judgment or sentence in a 

criminal case.”
No. 84711-2-I/6

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petitioner fails to satisfy either of the Strickland prongs, we need not address the 

other. Id. at 697.

Under Strickland, a petitioner proves deficient representation by showing 

that defense counsel’s representation fell “ ‘below an objective standard of 

reasonableness based on consideration of all the circumstances.’ ” State v. 

Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting State v. McFarland, 

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). The petitioner must overcome 

the strong presumption that trial counsel’s representation was reasonable. State 

v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To rebut this presumption, a 

petitioner must show that “there is no conceivable legitimate tactic explaining 

counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d

80 (2004). If we can characterize trial counsel’s conduct as legitimate trial 

strategy or tactics, it does not constitute deficient representation. Kyllo, 166 

Wn.2d at 863. 

To determine whether deficient performance resulted in prejudice, we 

apply the same standard in a PRP as we do on appeal. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 845-47, 280 P.3d 1102 (2012). That is, a successful 

ineffective assistance of counsel claim satisfies the PRP’s actual prejudice 

requirement. Id. at 846-47. To show prejudice, a petitioner must show that there 

is a reasonable probability that “ ‘but for counsel’s deficient performance, the 

outcome of the proceedings would have been different.’ ” Estes, 188 Wn.2d at 

458 (quoting Kyllo, 166 Wn.2d at 862); Strickland, 466 U.S. at 694. 
No. 84711-2-I/7

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2. Failure to Investigate

McDonald argues that Will was ineffective for failing to adequately 

investigate his case because he did not interview Scott before trial or thoroughly 

cross-examine her at the child hearsay hearing. We disagree. 

An attorney’s failure to investigate or interview a particular witness can 

amount to deficient performance. State v. Jones, 183 Wn.2d 327, 339-40, 352 

P.3d 776 (2015). “[A] defendant seeking relief under a ‘failure to investigate’ 

theory must show a reasonable likelihood that the investigation would have 

produced useful information not already known to defendant’s trial counsel.” 

Davis, 152 Wn.2d at 739. We “will not defer to trial counsel’s uninformed or 

unreasonable failure to interview a witness.” Jones, 183 Wn.2d at 340. But if 

trial counsel investigates the case and makes an informed and reasonable 

decision not to interview or call a particular witness, we defer to that decision as 

a strategic choice. Id. 

In a declaration filed with McDonald’s PRP, Will explains that he chose not 

to interview Scott because he had a video and transcript of her forensic interview 

with J.L. and expected her testimony at trial to be limited to that interview. He 

also says he “was able to preview Ms. Scott’s trial testimony” through crossexamination at the child hearsay hearing, so he “did not anticipate that a pretrial 

interview . . . was needed for an effective defense.” 

Because Will’s decision not to interview Scott was informed by his review 

of the video and transcript of J.L.’s forensic interview and the information he 
No. 84711-2-I/8

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gained from cross-examining Scott at the pretrial hearing, we defer to his

reasonable strategic choice.

6

Still, McDonald argues that Will’s cross-examination at the child hearsay 

hearing was deficient. He contends Will should have used the hearing to 

“explore the scope of Ms. Scott’s expertise, her opinions or the bases for the 

same.” But the record shows that Will did question Scott about her knowledge 

and experience with memory, source monitoring, and suggestibility: 

Q. Then in some of your training and experience you talked

about, was there any training that you had or have had in the field 

of memory?

A. Well, generally memory as it pertains to child interviewing is 

incorporated in some of that training.

Q. What is that?

A. So types of memory — do you mean the training?

Q. Both.

A. So in forensic interviewing often the memory set of script

versus episodic free recall is all wrapped up into the research

presented.

Q. And do you have specific literature that you rely on?

A. In regard to memory outside of forensic interviewing or as a 

whole?

Q. Do you have — do you have memory outside of forensic

interviewing?

A. It is hard to answer specifically, because it is all intertwined 

within forensic interviewing, how to elicit different memory sets as 

previously regarding script and episodic on the most basic levels.

Q. But that is the actual literature on that that you have, that you 

review and research for that?

A. Correct.

Q. And I didn’t see anything in your CV [(curriculum vitae)]

either about source monitoring; do you get into that as well?

A. Correct. It is all encompassed within the realm of child

interviewing.

Q. You have literature that you refer to for that specific type of 

training?

A. For source monitoring, correct.

 

6 We note that Will also interviewed J.L. in October 2019 and consulted a

memory expert as part of his investigation.
No. 84711-2-I/9

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As stated above, Will reviewed Scott’s CV, which showed her training and 

work experience. And he knew from the State’s March 8, 2020 disclosure that 

Scott knew about source monitoring, but she believed that it was “more 

applicable to children ages [three] to [five] where susceptibility is higher” and “not 

as much of a concern when the child is [eight years old].” 

McDonald fails to show that a pretrial interview of Scott or a more 

thorough cross-examination would have produced useful information not already 

known to Will. We reject McDonald’s challenge to Will’s investigation as 

ineffective.

3. Failure to Object to Witness Vouching

McDonald claims Will was ineffective for failing to object to portions of 

Scott’s trial testimony that he alleges improperly vouched for J.L. We disagree.

A petitioner alleging ineffective assistance of counsel for failure to object 

must show that the court would likely have sustained the objection. Davis, 152 

Wn.2d at 714.7 A witness may not vouch for the credibility of a victim because 

credibility is the province of the jury. State v. Warren, 134 Wn. App. 44, 52-53, 

138 P.3d 1081 (2006) (quoting State v. Jones, 71 Wn. App. 798, 812, 863 P.2d

85 (1993)), aff’d, 165 Wn.2d 17, 195 P.3d 940 (2008). In determining whether 

testimony rises to the level of impermissible vouching, we look to (1) the type of 

witness involved, (2) the specific nature of the testimony, (3) the nature of the 

charges, (4) the nature of the defense, and (5) other evidence before the trier of 

fact. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007). 

 

7 A petitioner must also show that the failure to object fell below prevailing 

professional norms. Davis, 152 Wn.2d at 714.
No. 84711-2-I/10

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At trial, Will questioned Scott on cross-examination about how dreams 

could impact a child’s memory. So, on redirect examination, the prosecutor 

asked Scott “whether or not [J.L.]’s responses are particularly suggestible or 

would indicate that she was particularly suggestible.” Scott answered, “No.” This 

led to the following exchange:

Q Okay. And would you agree that you can’t tell

whether or not [J.L.] was having a false memory or not in this case?

A No. I don’t make that determination.

Q Okay. And you indicated that the source monitoring 

you discussed in terms of a child forensic interview is different than 

what is learned in the field of psychology.

Can you tell us what you mean? What’s the

difference?

A Yeah. So I’m not analyzing the child’s statements in 

terms of, like, a psychological perspective. I’m a trained forensic 

interviewer and I use these techniques to help formulate questions 

that I ask. I don’t determine or dive into the sources of the memory 

unless something triggers as especially concerning. I might ask 

more specific questions about that one topic. But again, I’m not a 

psychologist. I’m a forensic interviewer.

Q And you also discussed source confusion and it being 

common in young children.

A Yes.

Q What is the age group that you’re referring to?

A Preschool age. Three to five.

Q Three to five. Okay.

Were there any examples during your interview with

[J.L.] as to show that she was confused about the source of her 

information?

A No. She was able to provide narrative responses and 

then also differentiate a few times where other sources came from.

Q Okay. And you also mentioned some of the signs that 

you’re looking for, as far as suggestibility is how a child recalls 

sensory memories.

Can you tell us more about that?

A Yes. So in general, children who provide more details 

that speak to sensory information, like “I heard this” or “I saw this,”

that also helps differentiate between — or help with suggestibility.

They’re not just taking on a statement. They’re able to provide that

information and describe it, so describing, like, the stomping and 

the language that [Maldonado] spoke in. All of those things aren’t 
No. 84711-2-I/11

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something that a child with a false memory typically would 

remember.

Q So are you saying that the details of the sensory

feelings are important to help distinguish whether or not it could be 

a false memory?

A Again, I don’t make that determination, but in

interviewing, yes, that’s what we use to help when a child makes a 

statement and I’m asking for more information. If they’re not able to 

provide more information or more details or any sensory 

information, that might be a cause of concern for me of where that 

information is coming from. Was it just something that they’re told 

and able to repeat and not produce any additional details on their 

own accord? Yes.

Q Did you have any concerns as to [J.L.]’s ability to 

provide sensory details in this interview?

A I didn’t have any concerns.[8]

McDonald argues that Scott’s statement, “All of those things aren’t

something that a child with a false memory typically would remember,” amounts 

to “improper opinion testimony vouching for [J.L.]’s credibility.” But, viewed in 

context, Scott’s testimony related to how she conducts forensic interviews, not 

whether she believed J.L.’s testimony. 

Scott was testifying as a child forensic interviewer. So, Scott described 

her training and experience in questioning children and how she applied that 

training and experience to her interview with J.L. The challenged statement 

describes Scott’s belief that she did not need to ask J.L. additional sensory

questions to confirm the source of her memory because J.L.’s description of the 

incident was sufficiently detailed. Testimony about how and why Scott asked 

certain questions in the interview was relevant to assessing the integrity of her

forensic interview process. See Kirkman, 159 Wn.2d at 930-31 (a detective’s 

 

8 Emphasis added.
No. 84711-2-I/12

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testimony about how he “ ‘tested [a victim]’s competency and her truthfulness’ ” 

in a child interview was “ ‘merely provid[ing] the necessary context that enabled 

the jury to assess the reasonableness of the . . . responses’ ”)9(quoting State v. 

Demery, 144 Wn.2d 753, 764, 30 P.3d 1278 (2001)). The testimony was not an 

opinion about J.L.’s credibility. Indeed, Scott testified both before and after the 

statement that as a forensic interviewer, she does not determine whether J.L. 

“was having a false memory.”10 

Because the challenged statement does not amount to witness vouching, 

McDonald fails to show that the court would have sustained an objection. As a 

result, Will was not ineffective for choosing not to object to the testimony.

4. Failure to Call Expert Witness

Finally, McDonald argues that Will was deficient for not calling a memory 

and source monitoring expert because such an expert could have refuted Scott’s 

testimony and “explain[ed] the broader topics of memory and source confusion 

so critically at issue in this case.” Again, we disagree. 

The right to effective assistance of counsel includes a right to experts 

when necessary for an adequate defense. State v. Punsalan, 156 Wn.2d 875, 

878, 133 P.3d 934 (2006). But determining which witnesses to call at trial is 

something “ ‘presumed to be a matter of legitimate trial tactics.’ ” State v. 

 

9 Second alteration in original. 

10 We note that it was also a reasonable strategic choice for Will not to object and 

emphasize damaging testimony sandwiched between Scott’s testimony that she could 

not say whether J.L.’s disclosure flowed from a false memory. So, even if the testimony 

were inadmissible, McDonald fails to show how there was no “ ‘legitimate trial strategy or 

tactics’ ” behind Will’s failure to object. Davis, 152 Wn.2d at 714 (quoting State v. 

McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002)). 
No. 84711-2-I/13

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Bogdanov, 27 Wn. App. 2d 603, 634, 532 P.3d 103511 (quoting In re Pers. 

Restraint of Lui, 188 Wn.2d 525, 545, 397 P.3d 90 (2017)), review denied, 2 

Wn.3d 1008, 539 P.3d 4 (2023). A petitioner must overcome the presumption of 

competence “by showing counsel failed to conduct appropriate investigations to 

determine what defenses were available, adequately prepare for trial, or 

subpoena necessary witnesses.” Davis, 152 Wn.2d at 742. 

Here, the record shows that Will reviewed the video and transcript of J.L.’s 

forensic interview; interviewed J.L.; questioned Scott at the child hearsay 

hearing; researched the fields of memory, source monitoring, and suggestibility;

and consulted a memory expert. Only then did he decide not to call an expert 

witness. Instead, Will decided that cross-examination of Scott would best 

forward McDonald’s defense and undermine the State’s case-in-chief. This was 

not unreasonable. See Lui, 188 Wn.2d at 545 (finding that it was not 

unreasonable for trial counsel to challenge the State’s expert testimony solely via 

cross-examination). 

In support of his argument that Will’s choice not to call an expert witness 

was unreasonable, McDonald provides the declarations of criminal defense 

attorney Amy Muth and psychologist Dr. Carr. In Muth’s opinion, “it [is]

imperative to have a memory expert” when, as here, the defense is “the 

complainant dreamed the assault.” And Dr. Carr declares that she “could have 

testified” that memory errors exist in children well beyond the preschool years

and applied her knowledge of source monitoring and suggestibility to J.L.’s 

 

11 Internal quotation marks omitted. 
No. 84711-2-I/14

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accounts of the rape and other discovery. But the declarations do not show that 

Will’s choice was unreasonable. 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.” Strickland, 466 U.S. at 689. And 

a “fair assessment of attorney performance requires that every effort be made to 

eliminate the distorting effects of hindsight.” Id. 

In any event, Will successfully elicited from Scott that she could not say 

whether J.L.’s disclosure resulted from a dream. And Dr. Carr does not assert 

that she could have testified J.L.’s disclosure did flow from a false memory. 

Will’s decision not to call an expert witness was informed and reasonable. 

McDonald fails to show ineffective assistance of counsel.

12 As a result, 

we deny his petition. 

WE CONCUR:

 

12 Because McDonald fails to show his attorney was deficient, we do not reach 

Strickland’s prejudice prong. 466 U.S. at 697.