IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re Personal Restraint of: CHARLES MADU MOMAH, Petitioner. ) NO. 67889-2-1 ) DIVISION ONE r-o <=>JSC_



# COURT OF STATE 0 ) UNPUBLISHED OPINION ) FILED: January 21, 2014 33» >-Unn

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o— en z<: 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 reliefby means of a personal restraint 

### petition, Momah must demonstrate either an error ofconstitutional magnitude that gives rise to actual prejudice or a nonconstitutional error that inherently results in a "complete 

### miscarriage ofjustice." Inre 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. Inre 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.

### 1Bradv v. Maryland. 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).67889-2-1/2 

### A jury convicted Momah as charged of thirddegree 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 ifshe told anyone, a result she feared because she was addicted to prescription drugs. Momah testified thatthey 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 circularpressure in a mannerthat made her feel uncomfortable and shocked. CB testified that Momah's behavior became increasingly inappropriate over 

### the course ofseveral 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 herrectum. Momah denied any impropertouching and testified that he did not have access to fentanyl and had not administered an IV foryears. Ineffective Assistance ofTrial Counsel 

### In his petition, Momah first contends thattrial counsel provided ineffective assistance byfailing to properlyinterview and then call totestify at trial several witnesses 

### toimpeach the State's witnesses. To establishineffective assistance, Momah mustshow
-2-67889-2-1/3 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 "areasonable probabilitythat, but forcounsel'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. Ifone ofthe two prongs ofthe 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 testifiedas to the length of RB's exam and that RB did not say that anything unusual happened orappearto 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, whowould have testified about
one or more of the following topics: (1) Momah never said or did anything 

### inappropriate; (2) Momah always wore glovesduring exams; (3) Momah always insisted
on having an employee in the exam room; (4)office inventory did not includeIV 

### equipmentorfentanyl; (5) HP called frequently, asked aboutMomah'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 ofMomah'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 riskingdamaging impeachment or the admission ofother unhelpful evidence, Momah fails to establish either deficient performance or resulting prejudice. 

### The record reveals that defense counsel aggressively cross-examined and impeached each ofthe 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 ofthe criminal conduct they described. None ofthe identified
-4-67889-2-1/5 witnesses could testify to being present at any ofthe four incidents giving rise to the 

### charges. The defense theory ofthe 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 ofthe 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 reliefin a personal restraintpetition if those facts, "inthe interest of justice," require vacation ofthe 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 merelycumulative orimpeaching.'" In re Pers. Restraint ofLord. 123Wn.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 ofthese five factorsjustifies 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 newlydiscovered and justifies a 

### newtrial: (1)Harish Bharti's "orchestration ofwitnesses and fabrication oftestimony" in 

### civil litigation against Momah and hisbrother, Dennis (FirstAmended Personal Restraint Petition at 30-31) (formatting omitted); (2) Momah's medical chartregarding RB; and67889-2-1/6 

### (3) RB's trial testimony in her civil suit against Momah. But Momah fails to demonstrate that any ofthese 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 criminaltrial. Momah's speculation and conjecture based on Bharti's alleged actions incivil litigation involving other patients of Momah or his brother does not justify reliefhere. At most, Bharti's misconduct inother cases could onlyconstitute impeachment evidence. See, e.g., Inre Pers. Restraint ofDelmarter, 124 Wn. App. 154,163-64,101 P.3d 111 (2004) 

### (misconduct of crime lab chemistduring othertests in othercases could constitute only impeachment evidence). Next, Momah claims that the medical chart contradicted RB's testimony and 

### corroborated his testimonyas to the dates, times, and number of his examinations ofRB. 

### Butnothing in the chartwould have contradicted RB'sfactual allegations as to the elements of the charged crime. At best, the chart could be used to impeach RB as to her recollection of specificdates and times of appointments, a subject of intense crossexamination at trial. Although the absence ofthe chart allowed the prosecutorto argue 

### that Momah's detailed testimonyabout his treatment ofRB was notcredible, Momah fails to establish that itsproduction attrial would have probablychanged the result of the trial. 

### Similarly, Momah fails to establish that RB'stestimony at the latercivil trial constitutes material evidence that would probably change the outcome of his criminal trial. 

### In particular, Momah contends thatRB did nottestify about an IV offentanyl, "implicitly recanting" hertestimony from the criminal trial. FirstAmended PersonalRestraint Petition at 37. A reliable recantation may generally be considered newlydiscovered evidence
-6-67889-2-1/7 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 ofthe offense may support granting a new trial). But RB's testimony at the civil trialwas not a recantation. RB nevertestified 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 ofdue process and Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to 

### provideSloan's telephone number to defense counsel priortotrial. 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 itwas too late for Momah to make use ofit. 

### Bossv. Pierce, 263 F.3d 734, 740(7th Cir. 2001). During defense counsel's cross-examination ofRB, the prosecutor stated that he had notspoken to Sloan but that he believed that his paralegal had Sloan's number and would provide itto defense counsel. Momah now contends, "It is not clear whetherthe 

### 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
-7-67889-2-1/8 allegations are insufficientto 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 ofthe privacy protections ofthe 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 pursuantto a valid warrant or other lawful means independent ofthe unlawful action." State v. Gaines. 154 Wn.2d 711, 718, 116 P.3d 993 (2005). Momah argues thatthe trial court improperly denied the motion to suppress based
on the inevitable discovery doctrine, which is not a valid exception to the exclusionary rule 

### inWashington. 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 trialcourtfound that, each ofthe women, otherthan HP, involved inthe trial, including the three remaining victims 

### and the witnesses providingtestimony 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 ofProceedings (Oct. 6, 2005) at 38-39. Thereafter, the
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### police searched forthe individual file ofeach woman who had provided a release. Hilton. 164Wn. App. at 91-92 (relevant factual inquiry under independent source exception 

### focuses on what policewere 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 fromthe otherwomen authorized the police to obtain their records, the trial 

### courtproperly applied the independent source exception and denied the motion to suppress. Momahfails to establish grounds forrelief. Ineffective Assistance ofAppellate Counsel 

### Momah claims appellate counselprovided ineffective assistance byfailing to 

### challengetheadmission ofthemedicalfiles. To prevail on anineffective assistance of appellate counsel claim, Momah mustdemonstrate themerits ofissues counselfailed to argue orargued inadequately. JLord, 123Wn.2d at314. Because hefails todemonstrate merit insuch a challenge, this claim also fails. Juror Misconduct 

### Momah has presented declarations from twojurorstosupporthisclaim that ajuror introduced extrinsic evidence into deliberations and was racially biased. In particular, a 

## jurorwho revealed during voirdirethatshehad 32years ofexperience as anurse, stated herbeliefs during deliberations that (1) RB accurately described theeffects offentanyl; (2) photos ofinstruments thrown into adrawerdemonstrated conditions that arenot professional ornormal in amedical office; (3) receptionists donot normally act as 

### chaperones in medical exams; (4) doctors mustbeextremely negligentto lose hospital privileges; and(5) Momah isintimidating because he is"big andblack."
-9-67889-2-1/10 Generally, when evaluating a claim ofjuror misconduct, a court may not consider matters that inhere inthe verdict, including the weight accorded to the evidence by individualjurors or thejurors' 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 whichjurors reach their conclusions are allfactors inhering inthe verdict. Jackman, 113 Wn.2d at 777-78. Nonetheless, criminal defendants are also constitutionally entitled to a fair trial before an unbiased and unprejudicedjury. State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994) (where defendant makes prima facie showing of ajuror's actual bias, the trial court violates due process by denying motion for new trial without conducting
an evidentiary hearing). 

### A jury isexpected 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 typicaljuror's general life experience. Richards v. Overlake Hosp. Med. Ctr.. 59 Wn. App. 266, 274, 796 P.2d 737 (1990). Where a prospectivejuror's specialized 

### background is known to the parties who nonetheless allowthe juror to serve, that juror's introduction ofspecialized information in evaluating the evidence during deliberation is not misconduct. Richards, 59 Wn. App. at 273-74 (juror who revealed medical background 

### during voirdire did not injectextrinsicevidence into deliberations byoffering her specialized analysis and opinion ofevidence admitted at trial). 

### Here, the juror revealed her medical backgroundduring deliberations. The reported statements are based solely on the juror's opinions and life experience. Momahdoes not 

### suggestthat 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 thejuror at issue recognized and disapproved ofracism 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. Thejuror'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 ofjustice would be served thereby." In re Pers. Restraint ofJeffries, 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 thatthe cumulative errorwas 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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