State Of Washington v. Derrius D. Forcha-williams, 73850-0

Background

Victim (P.C.) was assaulted and raped in December 2012; DNA linked only defendant Derrius Forcha-Williams to the assault. Forcha-Williams was charged with first-degree rape and second-degree assault; jury convicted him of second-degree rape.
At the hospital P.C. told Detective Krusey she had "a few beers," used OxyContin, and took an unknown blue pill that morning; toxicology two hours later showed amphetamine, cocaine, and cannabis but not alcohol or oxycodone.
At trial the court admitted evidence of P.C.'s recent intoxicant use as relevant to perception/memory. On cross, P.C. testified she did not remember telling officers about beer/Oxy/blue pill and denied using Oxy; she could not recall several other uncontested events.
Defense counsel questioned Krusey about P.C.'s hospital statements; the prosecutor objected as hearsay, objection was sustained, no motion to strike and no admonition to the jury. Krusey had already testified before the objection was sustained that P.C. said she had a few beers.
Trial court ruled extrinsic evidence of P.C.'s prior inconsistent statements was inadmissible because defense counsel had asked whether P.C. "remembered" the statements rather than if she "said" them, and defense did not recall P.C. to the stand or otherwise lay the exact ER 613(b) foundation. Defense did not request to recall P.C.
On appeal Forcha-Williams argued ineffective assistance because counsel failed to follow the procedure to admit extrinsic prior inconsistent statements; the Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Forcha-Williams)	Held
Whether defense counsel rendered constitutionally ineffective assistance by failing to secure admission of P.C.'s prior inconsistent statements	Counsel's conduct was reasonable; jury already heard Krusey's testimony and record showed P.C.'s inconsistent memory; recalling P.C. risked harmful testimony	Counsel was deficient for not following ER 613(b) procedure (asking the witness to confirm/deny or recalling her), like in Horton, and that failure prejudiced the defense	Court held counsel's performance was not deficient: defense had functionally complied with impeachment procedure (asking if she "remembered" the statements), Krusey's statement remained before the jury, and recalling the witness could have been harmful; defendant failed to show prejudice
Whether failure to recall P.C. before admitting extrinsic evidence was per se deficient strategy	The State argued recalling P.C. was unnecessary and potentially harmful; admissible impeachment value already before jury	Forcha-Williams argued recalling was required to preserve and admit extrinsic evidence and no reasonable tactical explanation existed	Court held counsel could reasonably decide not to recall; tactic was legitimate and not presumptively deficient
Whether extrinsic evidence of prior inconsistent statements was admissible when witness says she does not remember making them	The State maintained any impeachment need was satisfied by testimony and Krusey's statements; the judge's exclusion was debatable but cured by existing record	Forcha-Williams argued Newbern/Horton support admission when witness disclaims memory and that exclusion undermined defense	Court explained Newbern supports admissibility when a witness claims lack of memory; here defense had afforded opportunity to confirm/deny and Krusey's testimony (not struck) left the jury able to assess inconsistency
Whether defendant was prejudiced by the trial court ruling and counsel's choices	State: no reasonable probability of a different result given overwhelming forensic evidence and toxicology refuting P.C.'s specific contentions	Defendant: exclusion of extrinsic impeachment undermined ability to challenge victim credibility and perception	Court: no prejudice shown — ample evidence (DNA, toxicology, other testimony) meant admission of excluded evidence would not likely change outcome

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance + prejudice)
State v. Grier, 171 Wn.2d 17 (burden on defendant to show counsel was ineffective; strong presumption of reasonable performance)
State v. Kyllo, 166 Wn.2d 856 (counsel conduct characterized as strategy is not deficient)
State v. Horton, 116 Wn. App. 909 (failure to comply with ER 613(b) may be deficient depending on facts)
State v. Newbern, 95 Wn. App. 277 (prior inconsistent statement remains admissible for impeachment when witness claims lack of memory)
State v. Burke, 163 Wn.2d 204 (prior inconsistent statements are impeachment only; not substantive proof of facts)