State of Washington v. Roy E. Cooley, 33576-3

Background

Defendant Roy Cooley was convicted of first-degree rape of a child based primarily on testimony from the child, the child’s mother (ex-girlfriend of Cooley), a forensic interviewer, and investigators.
The child’s mother delayed reporting the allegations and testified she ultimately believed her son — including a statement she "believed him one hundred percent."
Defense theory: mother coached or contaminated the child’s memory (including exposure to a pornographic home video); defense elicited expert testimony on memory suggestibility.
At trial defense counsel did not object to several contested evidentiary and argumentative items (mother’s vouching, certain prosecutor comments, and confusing testimony by an officer about who decides charges).
On appeal Cooley argued (1) improper vouching by the mother, (2) a judicial comment on the evidence via an officer’s testimony, (3) multiple instances of prosecutorial misconduct (vouching, burden-shifting, attacking defense counsel), and (4) ineffective assistance for failing to object.
The Court of Appeals majority affirmed, concluding errors (if any) were not manifest constitutional errors or were curable by objection; a dissent would have granted a new trial, finding the mother’s vouching and cumulative errors prejudicial.

Issues

Issue	State (Respondent) Argument	Cooley (Appellant) Argument	Held
1) Mother’s alleged vouching for the child’s testimony	Mother’s statements that she believed her son were harmless or consistent with the defense theme and not prejudicial; defense strategy justified not objecting	Mother’s testimony that she believed the child ("one hundred percent") impermissibly vouched for credibility and invaded jury’s role	Not manifest constitutional error; admission harmless or consistent with defense strategy; claim rejected
2) Alleged judicial comment via officer testimony about who decides charging	Officer’s confusing remarks did not explicitly state a court approved the rape charge; not clearly improper or manifest	Officer’s statement that decisions were made by "the Court" could imply judge approved the felony charge — an unconstitutional judicial comment on the evidence	Not manifest error; no clear, explicit judicial comment; review denied
3) Prosecutorial misconduct (vouching, burden-shifting, impugning defense counsel)	Many prosecutor statements were ambiguous or reasonable inferences from evidence; objections/curative instructions would have addressed any harm	Prosecutor vouched for witnesses, shifted burden of proof (e.g., faulting defendant for not exposing himself to investigators), and misstated law in closing, causing incurable prejudice	Majority: not subject to review absent objection unless error manifest; errors not shown to be flagrant/manifest; claims fail. Dissent: several comments were prejudicial and would warrant new trial
4) Ineffective assistance for failure to object	Counsel’s conduct could be strategic given defense theory; record does not show deficient performance or prejudice on direct appeal	Failure to object to clearly improper testimony and argument was deficient and prejudiced Cooley	Majority: no deficient performance shown on record; not proven on direct appeal; claim rejected; dissent suggests PRP might be appropriate

Key Cases Cited

State v. Kirkman, 159 Wn.2d 918 (manifest constitutional error / actual prejudice standard)
State v. Sutherby, 138 Wn. App. 609 (prohibits lay witness vouching for child’s truthfulness)
State v. Emery, 174 Wn.2d 741 (failure to object limits appellate review; curative instruction doctrine)
State v. Fleming, 83 Wn. App. 209 (prosecutor may not shift burden to defendant)
State v. Quaale, 182 Wn.2d 191 (opinion on guilt invades jury function)
State v. Dunn, 125 Wn. App. 582 (expert/vouching testimony can be manifest constitutional error)
State v. Johnson, 152 Wn. App. 924 (lay witness vouching for child reversible as manifest error)
State v. Belgarde, 110 Wn.2d 504 (prosecutorial misconduct review standard when no contemporaneous objection)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance—performance and prejudice standards)
State v. Guloy, 104 Wn.2d 412 (harmless beyond a reasonable doubt standard for constitutional error)