IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE MATTER OF THE 

PERSONAL RESTRAINT OF:

TRAYVON R. CAIL,

Petitioner.

No. 80199-6-I

DIVISION ONE

UNPUBLISHED OPINION

ANDRUS, A.C.J. — In this personal restraint petition, Trayvon Cail challenges the 

judgment and sentence entered upon his convictions for attempted murder in the first 

degree, murder in the first degree, and robbery in the first degree. Cail asserts that his 

trial counsel was ineffective in (1) failing to secure a plea bargain, (2) advising him to 

waive a jury trial, (3) failing to properly investigate his case, and (4) failing to prepare him 

to testify. Because Cail has not established that defense counsel provided constitutionally 

inadequate representation, we deny his personal restraint petition.

FACTS

Trayvon Cail, Myles Dorsey, and Dejon Reynolds grew up in the same 

neighborhood in South Central Los Angeles. In late February 2013, the three men 

traveled from Los Angeles to Seattle in a van that had been rented by Cail’s wife. The 

purpose of the trip was to sell oxycodone pills. Dorsey spent a considerable amount of 
No. 80199-6-I/2

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time in Seattle while growing up, and had family and friends in the area. After the sale 

was complete, Cail and Reynolds returned to Los Angeles to pick up some more pills 

while Dorsey stayed with his sister in Tacoma. A few days later, Cail and Reynolds came 

back to the Seattle area in an SUV rented by Cail’s wife. Cail and Dorsey exchanged text 

messages regarding Dorsey’s efforts to locate a buyer. 

On March 9, 2013, Dorsey contacted his friend Jermaine Smith to ask if he wanted 

to buy some pills. The following day, Dorsey and Smith made plans for Smith to purchase 

1500 oxycodone pills for $18 each. Smith asked Dorsey to meet him at his home in 

SeaTac that evening to conduct the transaction. Smith was aware that an unknown 

person was involved in the deal, but he was not worried because he trusted Dorsey. 

About a year earlier, Smith had purchased prescription pills through Dorsey without 

incident. 

Around midnight, Dorsey sent a text message to Smith saying they had arrived, 

and Smith came out to greet them. Smith’s friend David Fashaw was at Smith’s house 

because the two had just played a basketball game with their adult league recreational 

team. Dorsey and Cail exited the car, while Reynolds remained in the driver’s seat. They 

went inside Smith’s house and talked for a few minutes. Fashaw, who was unaware of 

the planned drug deal, remained seated and did not participate in the conversation. 

When Cail pulled a baggie of pills from his pocket, Smith said the pills were not the 

kind he wanted. Cail said “I’ll be right back” and stepped outside. About a minute later, 

Cail returned and asked to see the money. As Smith pulled $10,000 from his coat 

pockets, Cail took out a gun and shot Fashaw and Smith in the head. Fashaw was killed, 
No. 80199-6-I/3

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but Smith survived. Smith heard someone say “Whatcha doing? Get the money” before 

Dorsey and Cail fled. 

Around 2:30 am, Smith’s girlfriend Ashley Langer found Smith on his kitchen floor, 

paralyzed but still able to communicate. She called 911 and tried to stop the bleeding. 

When the 911 operator asked who did it, Smith’s voice could be heard in the background 

saying “Myles Dorsey.” But when King County Sheriff’s Office (KCSO) Detective Jason 

Houck arrived at the scene, Smith told him the shooter was “the dude with Myles Dorsey.” 

Smith also told Langer he had been shot by Myles Dorsey’s friend. Smith did not know 

Cail’s name. Smith was transported to Harborview Medical Center, where he was 

hospitalized for a month. 

On March 13, 2013, KCSO Detective Jake Pavlovich went to Harborview and 

presented Smith with a montage containing Dorsey’s photograph and the photographs of 

five other men. Cail, who had not yet been identified as a suspect, was not included in 

the montage. Smith described the shooter as about 6 feet tall, with a moustache and an 

afro and wearing a black hoodie. Smith thought that two of the photographs could be the 

shooter, but he was not sure. Smith correctly identified Myles Dorsey in one of the 

photographs. 

On March 15, 2013, Dorsey came forward to police and named Cail as the shooter

and Reynolds as the driver. Dorsey said he was unaware that Cail had a firearm or that 

he intended to shoot or rob anyone. When Cail shot Smith and Fashaw without warning, 

Dorsey feared he would be shot next. In his rush to leave, Dorsey left behind two cell 

phones. After fleeing, Dorsey called a cab and left the area. Photographs from a 

surveillance camera inside the taxi showed Dorsey appearing distraught. Cell phone 
No. 80199-6-I/4

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records show that Cail attempted to call Dorsey six times in rapid succession shortly after 

the shooting but the calls went unanswered. 

Cail was arrested in Los Angeles on March 20, 2013. Reynolds was arrested the 

following day. Cail admitted he drove to Seattle with Dorsey and Reynolds in a white 

minivan, returned alone to Los Angeles, and then drove back to Seattle with Reynolds in 

an SUV rented by his wife. However, he denied any involvement in a drug transaction or 

the shooting in Seattle.1 A search of Cail’s house revealed 9 mm ammunition, the same 

caliber used in the shooting. No fingerprints or DNA matching Cail’s were found in Smith’s 

house. Tire tracks in the area where Cail’s car was allegedly parked were consistent with 

the car Cail’s wife rented for the March trip to Seattle, but a forensic examiner could not 

conclusively state they were made by the same tires. 

 Meanwhile, on March 18, 2013, Detective Pavlovich returned to Harborview and 

showed Smith a six-photograph montage containing a photograph of Cail obtained from 

a driver’s license issued three years earlier. Smith thought a couple of the other 

photographs might depict the shooter, but he was not sure. When shown Cail’s 

photograph, Smith said “I don’t think it was him.” On March 28, 2013, Detective Pavlovich 

presented another six-photograph montage to Smith which included Cail’s recent booking 

photo. This time, when shown Cail’s photograph, Smith thought it “[c]ould be him; I’m not 

sure.” 

The State charged Cail with attempted murder in the first degree, murder in the 

first degree, and robbery in the first degree, all with firearms enhancements. Cail was 

 1 Although the trial court ruled that Cail’s interview statement was voluntary and admissible, the 

State elected not to present it at trial. 
No. 80199-6-I/5

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initially represented in the pretrial period by three public defenders. Cail then chose to 

retain John Crowley, who took over the case in January 2015. 

The case was continued multiple times, partially because of the need to locate and 

interview witnesses. Dorsey proved difficult to locate throughout the pretrial period. Four 

days before trial began, the State obtained a material witness warrant to compel his trial 

testimony. Around the same time, Crowley retained an investigator who interviewed 

Dorsey, Smith, and Langer during trial. 

Trial began on May 24, 2016. On May 31, 2016, Crowley informed the court that 

Cail wished to voluntarily waive his right to a jury trial. After conducting a colloquy on the 

record, the court accepted Cail’s written waiver, and the case proceeded by bench trial. 

Thirty-eight witnesses testified at trial, including Smith, Dorsey, and Langer. Smith 

and Dorsey both identified Cail as the shooter and testified regarding the details of the 

drug deal and subsequent events. Text messages between Cail and Dorsey and between 

Dorsey and Smith corroborated Smith and Dorsey’s testimony regarding the events that 

led up to the shooting. Police testified regarding the subsequent investigation, including 

Smith’s inability to conclusively identify Cail as the shooter via photographic montages 

prior to trial. 

Monica Hawkins, a 21-year old single mother who had been visiting Cail in jail, 

testified that Cail asked her to provide perjured alibi testimony in exchange for cash. 

Hawkins said she stopped communicating with Cail because his family did not provide as 

much money as they had promised. The State obtained a material witness warrant to 

compel her testimony at trial. 
No. 80199-6-I/6

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Cail testified in his own defense. He admitted that he traveled to the Seattle area 

in a rental car in late February 2013, but claimed that the purpose of the trip was to sell 

marijuana seeds, not prescription pills. Cail stated that he sold the seeds with Dorsey’s 

help, paid Dorsey and Reynolds out of the proceeds, and returned to Los Angeles with 

Reynolds to get more marijuana seeds. Cail then returned to Seattle and remained there 

from March 8 to March 11 to conduct another cannabis transaction. He claimed nothing 

out of the ordinary occurred during that trip and the text messages he exchanged with 

Dorsey on the night of the shooting had nothing to do with pills. When asked what he 

was doing at the time of the shooting, Cail claimed he was waiting to meet Dorsey in the 

parking lot of a strip club near Smith’s house. He testified Dorsey did not show up or 

answer Cail’s calls, so Cail gave up and returned to Los Angeles. Cail denied any role in 

the shootings. 

On cross-examination, Cail admitted that he tried to bribe Hawkins to provide him 

with an alibi. When asked about a series of recorded jail calls suggesting that Cail had 

asked his brothers to prevent Dorsey from testifying at trial, Cail claimed that he did not 

remember doing so and insisted his conversations had been misinterpreted.

On July 8, 2016, the court convicted Cail as charged. The court expressly found 

that the testimony of the State’s witnesses, including Smith and Dorsey, was credible 

whereas Cail’s testimony was not credible. At sentencing, the court dismissed the 

robbery count and sentenced Cail to 240 months on count I and 320 months on count II,

to be served consecutively, plus mandatory firearm enhancements of 60 months on both 

counts, for a total term of 680 months of confinement. The court specified that the 

evidence against Cail was “overwhelming” and that the crime was “cold and 
No. 80199-6-I/7

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premeditated.” Cail, however, professed his innocence and blamed Crowley for his 

convictions. On direct appeal, this court affirmed Cail’s convictions in an unpublished 

opinion. See State v. Cail, No. 75963-9-I, 2018 WL 1907514.

After his convictions, Cail filed a Washington State Bar Association grievance 

against Crowley asserting primarily that Crowley had a conflict of interest because he had 

previously represented Dorsey’s brother. The bar association concluded that Crowley’s 

representation did not create a conflict of interest and dismissed the grievance. A few 

months later, Crowley resigned in lieu of disbarment based on alleged misconduct in 

several other cases. 

Cail then retained new counsel and filed this timely personal restraint petition 

alleging that Crowley provided ineffective assistance of counsel. In support of his petition, 

Cail attached (1) his own declaration, (2) a report from attorney expert Peter Mazzone, 

and (3) a report from identification expert Dr. Dan Reisberg. 

ANALYSIS

To successfully challenge a judgment and sentence by means of a personal 

restraint petition, a petitioner must establish either (1) actual and substantial prejudice 

arising from constitutional error, or (2) nonconstitutional error that inherently results in a 

“complete miscarriage of justice.” In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 

P.2d 506 (1990). If a personal restraint petitioner makes a successful ineffective 

assistance of counsel claim, he or she has necessarily met the burden to show actual 

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

P.3d 1102 (2012).
No. 80199-6-I/8

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Under the Sixth Amendment to the United States Constitution and article I, section 

22 of the Washington State Constitution, a defendant in a criminal proceeding is 

guaranteed the right to effective assistance of counsel. Strickland v. Washington, 466 

U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective 

assistance of counsel, a defendant must demonstrate both (1) that counsel's 

representation fell below an objective standard of reasonableness and (2) resulting 

prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the 

result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 

334-35, 899 P.2d 1251 (1995). If a defendant fails to establish either element, the inquiry 

ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). A reasonable 

probability is “a probability sufficient to undermine confidence in the outcome.” Strickland, 

466 U.S. at 694. The reasonableness of counsel's performance is to be evaluated from 

counsel's perspective at the time of the alleged error and in light of all the circumstances. 

In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). A reviewing court 

“approaches an ineffective assistance of counsel argument with a strong presumption 

that counsel’s representation was effective.” Id. at 673. To rebut this presumption, the 

defendant has the burden to establish that there are no legitimate strategic or tactical 

reasons explaining counsel’s performance. McFarland, 127 Wn.2d at 335-36.

Plea Negotiations 

Cail first argues that Crowley provided ineffective assistance of counsel regarding

plea negotiations and sentencing consequences. Specifically, in a declaration filed in 

support of his petition, Cail asserted as follows:

Mr. Crowley never informed me of my potential sentencing exposure and 

possible maximum sentence if I . . . was convicted as charged. I also was 
No. 80199-6-I/9

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unaware of the existence of the firearm enhancements and had no idea that 

the enhancements would be mandatory and each one imposed 

consecutively if I was convicted. Had I known that I was facing a bare 

minimum of nearly 47 years of incarceration with a standard range of 563.25 

months (47 years) to 710.75 months (59 years) and would likely be 

sentenced at the middle or top of the range if convicted at trial, I would have 

pushed harder to negotiate a plea resolution. Knowing what I know now—

and what Mr. Crowley failed to advise me—I would have accepted a plea 

deal involving up to 360 months (30 years) of incarceration. 

The right to effective assistance of counsel extends to the plea bargaining process. 

Lafler v. Cooper, 566 U.S. 156, 162, 132 S. Ct. 1376, 182 L. Ed.2d 398 (2012); State v. 

Estes, 188 Wn.2d 450, 463, 395 P.3d 1045 (2017). Effective assistance in plea 

bargaining includes “assisting the defendant in making an informed decision as to 

whether to plead guilty or to proceed to trial.” Estes, 188 Wn.2d at 464 (quoting State v. 

A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010). While there is no per se rule requiring 

defense counsel to pursue plea negotiations in every case, failure to do so may constitute 

ineffective assistance if the conduct falls below an objective standard of reasonableness. 

State v. Holm, 91 Wn. App. 429, 437, 957 P.2d 1278 (1998). 

To establish prejudice in this context, “a defendant must show the outcome of the 

plea process would have been different with competent advice.” Lafler, 566 U.S. at 163. 

More specifically, a defendant must establish

that but for the ineffective advice of counsel there is a reasonable probability 

that the plea offer would have been presented to the court, [ ] that the court 

would have accepted its terms, and that the conviction or sentence, or both, 

under the offer's terms would have been less severe than under the 

judgment and sentence that in fact were imposed.

Lafler, 556 U.S. at 164. 

Cail asserts that In re Pers. Restraint of McCready, 100 Wn. App. 259, 996 P.2d 

658 (2000) is dispositive, but that case is distinguishable. In McCready, the petitioner 
No. 80199-6-I/10

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was convicted of first degree assault with a firearm enhancement after rejecting the 

State’s plea offer of second degree assault. 100 Wn. App. at 261. The petitioner claimed 

that he would have accepted the plea offer had he known that he faced a mandatory 

minimum 10-year sentence. 100 Wn. App. at 261. The McCready court concluded that 

the defense counsel’s failure to advise him of the consequences of rejecting the plea offer 

constituted ineffective assistance of counsel. 100 Wn. App. at 262. But here, unlike in 

McCready, the State never offered Cail a plea deal. 

In his reply brief, Cail relies on Estes for the proposition that the lack of a plea offer 

is irrelevant to the analysis. In Estes, the defendant proceeded to trial and was sentenced 

to life as a persistent offender. 188 Wn.2d at 456. The Estes court held that defense 

counsel was ineffective because he failed to research and properly advise the defendant 

of his possible sentencing repercussions during the plea bargaining process. 188 Wn.2d 

at 460-62. The court further held that the defendant was prejudiced—even though he 

declined to negotiate—because he lacked knowledge about a key matter in his case and 

the record showed the State’s willingness to reach a different outcome. 188 Wn.2d at 

465-66. Thus, there was a reasonable probability that the result of the proceeding would 

have been different but for counsel’s performance. 188 Wn.2d at 466. 

But here, unlike in Estes, there is no evidence indicating that Crowley lacked 

knowledge of Cail’s potential sentencing consequences and no evidence that the State 

was willing to negotiate a different outcome. In light of the strength of the State’s case, it 

is purely speculative to suppose that the results of the proceeding would have been 

different but for counsel’s actions. This is particularly so given that the hypothetical plea 

offer Cail now claims he would have accepted is limited to no more than 30 years of 
No. 80199-6-I/11

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confinement.2 Here, Cail’s total standard range for count I (the attempted murder of 

Smith) plus the mandatory firearm enhancement was 263.25-330.75 months, and his total 

standard range for count II (the murder of Fashaw) plus the mandatory firearm 

enhancement was 300-380 months. Under RCW 9.94A.589(1)(b), both crimes, as 

serious violent offenses, must be served consecutively. Thus, in order for Cail to have 

obtained a plea offer in which the maximum sentence was 30 years of imprisonment, the 

State would have had to agree to let Cail plead guilty to a lesser offense. No such showing 

has been made here. See State v. Crawford, 159 Wn.2d 86, 100, 147 P.3d 1288 (2006) 

(holding that defendant did not prove prejudice where there was no evidence that the 

prosecutor would have allowed him to plead guilty to a lesser offense). Even if Crowley

failed to sufficiently explain Cail’s possible sentencing exposure, Cail has not established 

prejudice. 

Jury Trial Waiver

Cail next argues that Crowley provided ineffective assistance by misleading him 

into waiving his constitutional right to a jury trial. In his declaration, Cail asserted that 

Crowley convinced him he would have a better chance at a bench trial because the judge, 

an Asian-American former civil rights attorney, would look more favorably on him than an 

all-white jury would. Cail’s attorney expert Peter Mazzone opined that there was no 

legitimate tactical reason to waive a jury trial in an identification case where all 12 jurors 

would have to agree on Dorsey’s credibility and also on Smith’s in-court identification of 

Cail as the shooter in order to convict. 

 2 The total standard range for count I plus the mandatory firearm enhancement was 263.25-330.75 

months, and the total standard range for count II plus the mandatory firearm enhancement was 300-380 

months. 
No. 80199-6-I/12

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A defendant may waive his right to a jury trial provided that the record shows the 

waiver was knowing, intelligent, and voluntary. State v. Pierce, 134 Wn. App. 763, 771, 

142 P.3d 610 (2006). A written jury trial waiver “is strong evidence that the defendant 

validly waived the jury trial right.” Pierce, 134 Wn. App. at 771. Because an extensive 

on-the-record colloquy is not required, “the right to a jury trial is easier to waive than other 

constitutional rights.” State v. Benitez, 175 Wn. App. 116, 128-29, 302 P.3d 877 (2013). 

Waiver of the right to a jury trial can be a tactical decision. State v. Ashue, 145 Wn. App. 

492, 506, 188 P.3d 522 (2008) (citing State v. Likakur, 26 Wn. App. 297, 303, 613 P.2d 

156 (1980)). “Our Supreme Court has stated that whether the accused should waive his 

or her right to a trial by jury is ʽwithin the area of judgment and trial strategy and as such 

rests exclusively in trial counsel.’” Ashue, 145 Wn. App. at 506 (quoting State v. Thomas, 

71 Wn.2d 470, 471, 429 P.2d 231 (1967)).

The State contends that Crowley’s advice to waive his right to a jury, although 

unusual in a murder case, was neither unreasonable nor prejudicial. Under the 

circumstances presented here, we agree. Crowley sought to undermine Smith’s 

identification of Cail as the shooter by cross-examining him on the weaknesses in the 

photographic montage process. Crowley could have reasonably believed that a judge 

would be more receptive to technical arguments about the montage process than a jury. 

Moreover, Dorsey had still not appeared in Seattle after seven days of trial despite the 

material witness warrant. Cail had an incentive to forge ahead with a bench trial, hoping 

Dorsey would not appear. If Dorsey failed to do so, then the only evidence the State 

would have had to place Cail in Smith’s house was Smith’s ambiguous identification of 

Cail as the shooter. And it would not be unreasonable for trial counsel to advise a client 
No. 80199-6-I/13

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that jurors may harbor bias against an African-American man in a case of this nature. 

See State v. Berhe, 193 Wn.2d 647, 657, 444 P.3d 1172 (2019) (noting the “common and 

pervasive evil” of implicit and explicit racial bias among jurors). Cail has not overcome 

the presumption that Crowley’s performance can be characterized as legitimate trial 

strategy or tactics.

Nor has Cail established prejudice. Cail faced a strong case. First, Dorsey and 

Smith both testified Cail was the shooter. Second, cell phone records and texts 

corroborated their testimony and significantly contradicted Cail’s version of events. Cail 

admitted he was in Seattle and in close proximity to Smith’s house on the night of the 

shooting. The car he rented matched the car eye witnesses saw in Smith’s driveway that 

night. Third, Cail’s attempts to bribe Hawkins into providing false alibi testimony and the 

jail phone calls in which he enlisted help to prevent Dorsey from appearing at trial 

damaged his credibility. Based on this overwhelming evidence, Cail has not shown a 

reasonable probability that a jury would have acquitted him.

Witness Identification

Cail next argues that Crowley’s representation was deficient because he failed to 

consult with an identification expert to attack Smith’s identification of Cail. To support this 

claim, Cail submitted the declaration Dr. Dan Reisberg, who opined that he could have 

assisted the defense by (1) calling into doubt Smith’s in-court identification of Cail after 

failing to previously identify him in two different photographic montages, (2) rebutting the 

State’s assertion that Smith’s responses to the photographic montages carried little 

weight, and (3) to impugn the State’s assertion that Smith’s in-court identification was 
No. 80199-6-I/14

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reliable. Cail contends that such expert testimony would have changed the result of his 

case. 

Generally, “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. Maurice, 

79 Wn. App. 544, 552, 903 P.2d 514 (1995). “[W]hen eyewitness identification is a key 

element of the State’s case, the trial court has discretion to admit expert testimony on the 

subject to assist the jury in assessing its reliability.” State v. Sanchez, 171 Wn. App. 518, 

572-73, 288 P.3d 351 (2012) (citing State v. Cheatam, 150 Wn.2d 626, 649, 81 P.3d 830 

(2003)). 

Here, even assuming without deciding that Crowley’s failure to hire an identification 

expert was deficient, Cail has not demonstrated prejudice because Dorsey, not Smith, 

was the key witness. Dorsey knew Cail personally. He testified that he had previously 

engaged in drug deals with Cail and that he and Cail had traveled to Seattle together for 

the purpose of selling drugs. Although Cail claimed he came to Seattle to sell marijuana 

seeds rather than pills, he admitted to coming to Seattle with Dorsey and being in contact 

with him during the trip. 

Because Cail could not credibly claim that Dorsey misidentified him, his only option 

was to assert that Dorsey lied in order to protect himself or another unknown individual. 

However, Dorsey’s testimony was corroborated by considerable circumstantial evidence, 

including witness testimony and cell phone records. And the court found that Dorsey’s 

testimony was credible whereas Cail’s was not. 

Cail asserts that the 911 call transcript shows that Smith initially identified Dorsey 

as the shooter, then changed his story after police responded to the scene. But Smith 
No. 80199-6-I/15

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testified at trial that he named Dorsey during the 911 call because “[Dorsey] was the one 

that brought the guy there, so—I didn’t know the other guy’s name, so I just said, in case 

I died, I wanted people to know they need to go find Myles Dorsey.” And Langer and 

police witnesses testified that Smith consistently identified “Myles Dorsey’s friend” as the 

shooter as he lay wounded waiting for medics to take him to the hospital. Although 

Smith’s in-court identification of Cail as the shooter aided the State’s case by 

corroborating Dorsey’s testimony, it was not critical. And the record shows that Crowley 

thoroughly cross-examined Smith regarding his identification of Smith and alleged flaws 

in the photographic montage identification process, including some points similar to those 

recommended by Dr. Reisberg. Thus, Cail has not shown that identification expert 

testimony would probably have changed the result of his trial. 

Cail further argues that Crowley should have brought a motion to suppress Smith’s 

in-court identification of Cail as the shooter.3 He contends that Smith’s description of the 

shooter was inconsistent with Cail’s appearance and that the out-of-court montage 

procedures and Smith’s in-court identification of Cail were overly suggestive. 

Failure to bring a motion to suppress is not per se deficient performance. 

McFarland, 127 Wn.2d 322 at 336. To establish prejudice, a defendant must show that 

a motion to suppress would likely have been granted. Id. at 333-34. An impermissibly 

suggestive identification procedure violates due process if it creates a substantial 

likelihood of irreparable misidentification. State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 

58 (2002). Here, even if we assume without deciding that the court would have granted 

 3 Although Dr. Reisberg’s report criticizes the montage identification process, Cail acknowledges 

that the montages were useful to his defense, and does not appear to argue that Crowley should have 

moved to suppress them. 
No. 80199-6-I/16

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a motion to suppress Smith’s in-court identification of Cail as the shooter, Cail has not 

shown prejudice. Smith’s unequivocal testimony that Dorsey was not the shooter, and 

Smith’s testimony otherwise corroborating Dorsey’s version of events, would not have 

been suppressed in any event. Smith’s testimony was corroborated by other witnesses, 

including Langer and police who responded to the scene. And the court found Dorsey’s 

testimony credible. Thus, the result of the case would not have differed even if Smith’s 

in-court identification was suppressed. 

Witness Investigation and Preparation

Cail asserts that Crowley was ineffective for failing to interview key witnesses. He 

contends that Crowley’s failure to investigate ultimately forced him to testify at trial without 

preparation. 

Courts “can certainly defer to a trial lawyer's decision against calling witnesses if 

that lawyer investigated the case and made an informed and reasonable decision against 

conducting a particular interview or calling a particular witness.” State v. Jones, 183 

Wn.2d 327, 340, 352 P.3d 776 (2015). “Failure to investigate or interview witnesses, or 

to properly inform the court of the substance of their testimony, is a recognized basis upon 

which a claim of ineffective assistance of counsel may rest.” State v. Ray, 116 Wn.2d 

531, 548, 806 P.2d 1220 (1991). However, “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 647 at 739. 

Cail contends that Crowley was ineffective for failing to locate and interview Dejon 

Reynolds. But as the State points out, Reynolds was a suspect and likely accomplice to 
No. 80199-6-I/17

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the crime and therefore had a Fifth Amendment right not to testify. Moreover, Cail offered 

no evidence as to what Reynolds’ testimony might be. Without evidence as to what a 

witness would testify to, a defendant cannot establish that the result of his trial would be 

different if the witness had testified. See State v. Johnson, 180 Wn. App. 318, 325, 327 

P.3d 704 (2014).

Cail also contends that Crowley was ineffective in failing to interview and call three 

of his family members for the purpose of impeaching Dorsey with testimony that he and 

Cail grew up together and were not merely acquaintances as Dorsey had claimed. 

However, given the limited probative value of such testimony and the opportunity for the 

State to elicit potentially damaging testimony on cross-examination, Cail has not shown 

that the failure to call these witnesses was deficient or prejudicial. 

Cail further argues that Crowley should have located and interviewed his alleged 

alibi witness Monica Hawkins prior to trial, and that his failure to do so forced Cail to place 

her in the uncomfortable position of testifying against him at trial. But Cail does not 

explain how this would have changed the result of his trial, given that the State compelled 

her testimony against him as a material witness. 

Finally, Cail asserts that Crowley was ineffective for failing to tell him that he would 

be called to testify and failing to prepare him to do so. The record does not support this 

assertion. In his opening statement, Crowley expressly informed the court that Cail would 

testify. Accordingly, his opening statement was built on facts that could be established 

only through Cail’s testimony. Crowley made similar statements in open court in Cail’s 

presence, five days before Cail was called to testify. Nor has Cail shown how better 
No. 80199-6-I/18

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witness coaching could have changed the outcome of the trial. Cail has not shown 

deficient performance or prejudice regarding witness investigation or preparation. 

Cail asserts that relief is mandated given Crowley’s many deficiencies and the 

resulting prejudice. But Cail has not met his burden to show that his counsel was 

constitutionally ineffective. His petition therefore must be dismissed. 

WE CONCUR: