IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
PEPPER NICOLE PRIGGER,
FILED: August 1, 2011
Ellington, J. — In her efforts to retain custody of her son, Pepper Prigger
submitted perjured statements describing an alleged assault by her son’s father
during a visitation exchange. She was convicted of three counts of perjury and one
count of bribery. She contends she was denied counsel of her choice, denied
effective assistance of counsel, and that the State’s evidence was insufficient as a
matter of law. We disagree and affirm.
Pepper Prigger and Kelly Gregerson have a child, Hunter, born in May 2007.
Prigger and Gregerson separated in September 2007 and a custody battle ensued in
Thurston County. Under the temporary parenting plan, Gregerson had custody of
Hunter with visitation for Prigger. Their relationship was acrimonious and they used a
service for peaceful exchanges of the child. After a hearing on the final parenting
plan, the court orally announced its ruling adverse to Prigger on February 9, 2009.
Final orders were pending. Prigger sought reconsideration.1
On March 9, 2009, because of a snowstorm, Gregerson and his wife, Christin,
drove their four-wheel drive from Olympia to the Smokey Point AM/PM in Arlington to
collect Hunter after a visit with Prigger. During the exchange at the AM/PM, Prigger
attempted to use a handheld recorder, to which Gregerson objected. Prigger insisted
that Gregerson inspect a scratch on Hunter’s arm and state into her handheld
recorder that the scratch was not infected. Prigger asked the clerk in the AM/PM to
do the same.
Two days later, Prigger met Riannah Rammage in the Snohomish County
courthouse and helped her as she filed papers in her own parenting case. Prigger
told Rammage about the AM/PM incident. According to Rammage, Prigger said she
needed someone to claim to be a witness to the events. Prigger prepared a typed
statement, directed to the Thurston County Superior Court, in which Rammage
attested under penalty of perjury that she was at the AM/PM on March 9 and observed
a man grab an object from a woman’s hand and smash it with his foot. When the
woman bent down to pick it up, the man shoved her to the ground. Prigger and
Rammage went to a Kinko’s and had the statement notarized on April 9. Prigger later
testified the statement (which she claimed to be true) was “a necessity” in her effort to
convince the court to reconsider its decision on the final parenting plan.2
We do not have the record of the Thurston County file. We rely on the
Report of Proceedings (Mar. 5, 2010) at 17–19.
On April 19, Prigger gave Rammage’s statement to Arlington police and
submitted her own typed statement, under penalty of perjury, claiming that Gregerson
threw her recorder on the ground and broke it with his foot and that when she tried to
pick it up, he pushed her to the ground. She was requested to and did submit a fivepage handwritten statement on a police department form, which she also signed
under penalty of perjury.
Rammage submitted another statement to police on April 30. According to
Rammage, Prigger drove her to the police department and dictated as she drove.
Rammage wrote the statement in the car and took it inside. This statement repeated
the earlier allegations. It was signed under penalty of perjury.
Arlington police opened an investigation of Gregerson for domestic violence
assault and began interviews. They obtained a contemporaneous photograph of the
parking lot and established that the slot Rammage and Prigger claimed had been
occupied by Rammage’s red car was actually occupied all day by a white car
belonging to an employee of the AM/PM. On April 20, police showed the photograph
Rammage was living with Heather Moseley and her family. Prigger had helped
her move there and was a frequent visitor. On May 21, Prigger arrived and asked
Moseley and her son each to write a statement saying she had not done anything
wrong. Heather understood the statements would be used in the custody case and
the criminal investigation. In exchange for the written statements, Prigger offered
$2,500 per month and said they would be taken care of. Moseley and her son
Rammage confessed to police that her statements were not true and wrote a
new statement to that effect.
Prigger was charged with three counts of perjury (one for her own statement
and one as an accomplice for each of Rammage’s two statements) and one count of
bribing a witness (Moseley). Rammage was granted immunity and testified. A jury
convicted Prigger as charged.
Right to Counsel of Choice at Trial
Prigger was represented by appointed counsel. Both parties were ready for
trial on February 19, but there were no courtrooms available and the court continued
the matter until February 26. Both parties said they would be ready. When the case
was called, however, Prigger’s counsel asked for a week’s continuance in order for
Prigger to see if she could hire a private attorney. The State objected, noting that
Rammage had been arrested on a material witness warrant and was present, and
appointed counsel was not available the following week. The court conducted an in
camera review of a statement from Prigger describing her disagreement with counsel,
which related to the use of an exhibit at trial.
The exhibit in question was an unsigned letter Prigger allegedly found on her
doorstep. The letter implied the Gregersons were bribing Rammage to change her
testimony. A previous continuance had been granted to permit the defense to
compare fingerprints on the document and to permit the State to do an independent
examination. Initial results of the fingerprint comparisons were inconclusive, and
Prigger wanted Rammage to provide another set. Appointed counsel planned to
argue that Rammage changed her testimony to avoid being charged with a crime, not
because of influence of the Gregersons, and declined to further pursue the letter.3
The court declined to continue the trial, finding that the disagreement
concerned trial strategy, did not justify a change of counsel, and the motion was
untimely. Prigger raised the same issue again on the first day of trial and asked for a
mistrial on the third day. The court did not change its ruling.
Prigger asserts this denied her right to counsel of her choice and that the trial
court applied the wrong analysis. We disagree.
The right to counsel of choice is not a right to cause undue delay in the
proceedings.4 “In the absence of substantial reasons, a late request should generally
be denied, especially if the granting of such a request may result in delay of the trial.”5
Here, a material witness was in custody, appointed counsel was competent and
prepared but unavailable thereafter, and arrangements for private counsel to
represent Prigger had not been finalized. Prigger had not actually retained counsel
and wanted a week’s continuance to try to do so. Had she failed, her appointed
attorney would no longer be available to start trial. Had she succeeded, new counsel
The exhibit had been delivered to the State by Prigger in a condition that
prevented forensic analysis. The court ultimately ruled the exhibit inadmissible.
State v. Price, 126 Wn. App. 617, 633, 109 P.3d 27 (2005); State v. Roth, 75
Wn. App. 808, 824, 881 P.2d 268 (1994).
State v. Chase, 59 Wn. App. 501, 506, 799 P.2d 272 (1990) (quoting State v.
Garcia, 92 Wn.2d 647, 655-56, 600 P.2d 1010 (1979)).
would necessarily have needed time to prepare.
Defendants who can afford to retain counsel have a qualified right to counsel of
their choice.6 But the aim of the Sixth Amendment is to guarantee an effective
advocate, not to ensure that each defendant will have counsel of choice.7 A request
for counsel of choice must be timely asserted; a request made on the day of trial is not
Prigger contends her conflict with her appointed attorney as to the defense
theory was a substantial reason.9 The trial court characterized it as a disagreement
about trial strategy, while Prigger asserts it was her right to determine her defense,
citing United States v. Gonzalez-Lopez.10 But Gonzalez-Lopez did not involve or
discuss substitute counsel of choice, and certainly did not involve an untimely motion
for substitution. Rather, the issue there was whether the district court’s erroneous
disqualification of chosen counsel was harmless.
The trial court did not abuse its discretion in denying Prigger’s untimely motion
for a continuance to attempt to arrange for mew counsel.
Right to Counsel of Choice at Sentencing
On the day of sentencing, Prigger again sought to continue the proceedings
Roth, 75 Wn. App. at 824.
Price, 126 Wn. App. at 631.
Chase, 59 Wn. App. at 506.
See id. at 506.
548 U.S. 140, 144, 126 Sup. Ct. 2557, 165 L. Ed. 2d. 409 (2006)
(government had conceded erroneous disqualification of chosen counsel; court
rejects government’s argument that defendant must show nonchosen counsel was
ineffective and affirms circuit court’s holding that error not harmless).
because she had retained a private attorney who could appear in approximately two
weeks. The court denied the motion, noting its untimeliness, that Prigger was
represented by skilled counsel, that she had requested an early sentencing date, and
that witnesses had come from Thurston County.
The same analysis applies here. Prigger did not have the right to delay the
proceedings by waiting until the last moment to seek counsel of her choice.
Prigger contends the evidence was not sufficient to support her perjury
convictions. A person is guilty of perjury in the second degree if, “with intent to
mislead a public servant in the performance of his or her duty, he or she makes a
materially false statement, which he or she knows to be false under an oath required
or authorized by law.”11
Prigger submitted her own statement and persuaded Rammage to submit two
statements about the March 9 AM/PM incident. All the statements were certified or
declared to be true under penalty of perjury. All the statements were materially false.
Prigger argues only that the documents did not qualify as statements under oath
because they did not include the date and/or place of execution.
Prigger’s handwritten statement was submitted on an Arlington Police
Department form bearing the department address, and recites it was signed April 19,
2009 in Arlington. Rammage’s first statement recites it was signed on April 9, 2009 in
Snohomish County, Washington. Rammage’s handwritten statement, also on an
Arlington Police Department form bearing the department address, recites it was
signed April 30, 2009 at the Arlington Police Department. The statements satisfy the
Prigger also contends the State failed to present sufficient evidence of the
crime of bribing a witness, thus violating due process.12 The question for this court is
whether, viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
RCW 9A.72.090 provides:
(1) A person is guilty of bribing a witness if he or she offers, confers, or
agrees to confer any benefit upon a witness or a person he or she has
reason to believe is about to be called as a witness in any official
proceeding or upon a person whom he or she has reason to believe
may have information relevant to a criminal investigation or the abuse or
neglect of a minor child, with intent to:
(a) Influence the testimony of that person. . . .
The court instructed the jury on both alternative means. Each required the jury
to find beyond a reasonable doubt that Prigger (1) offered, conferred, or agreed to
confer a benefit on Moseley; (2) acted with intent to influence Moseley’s testimony;
and (3) the acts occurred in the state of Washington. Under one alternative, the jury
also had to find beyond a reasonable doubt that Prigger had reason to believe
Moseley was about to be called as a witness in an official proceeding. For the other,
State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005).
State v. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006) (quoting State v.
Hughes, 154 Wn.2d 118, 152, 110 P.3d 192 (2005)).
An “official proceeding” includes a court proceeding. RCW 9A.72.010(4).
the jury had to find that Prigger had reason to believe Moseley might have information
relevant to a criminal investigation and intended to influence her testimony.
Moseley testified that on May 21, 2009, Prigger asked her to sign a statement
that would show Prigger had not done anything wrong and would help Prigger regain
custody of her son. Prigger offered Moseley $2,500 per month if she would sign such
a statement. Moseley refused because she knew nothing about the AM/PM incident.
Prigger emphasizes that Moseley was not a witness to the AM/PM incident, and
argues the State did not present evidence from which the jury could find that Prigger
had reason to believe Moseley was about to be called as a witness in an official
proceeding, or had reason to believe Moseley had information relevant to a criminal
investigation, or acted to influence Moseley’s testimony.
The fact Moseley was not a witness to the incident is the point of the State’s
case. As with Rammage, Prigger wanted Moseley to become a witness on her behalf
by making false statements. Moseley testified Prigger offered her $2,500 per month
indefinitely in exchange for a statement that would help Prigger in her custody
proceedings, which meets the statutory definition for “official proceedings,” and would
allege Prigger had done nothing wrong. Such a statement would also support
Prigger’s claims of assault, which resulted in a criminal investigation of Gregerson.
The jury could certainly find that Prigger intended to influence any testimony Moseley
might give, since Prigger apparently intended to write the statement herself. The jury
could also find Prigger expected Moseley’s statement to influence the custody case,
bolster her assault claims,15 and help her avoid a perjury prosecution, which it could
have done only if Moseley became a witness in an official proceeding and claimed to
have information, true or false, relevant to a criminal investigation. The inferences
available from the evidence were sufficient to support both alternative means.
Right to Effective Assistance of Counsel
Effective assistance of counsel is guaranteed under the federal and state
constitutions.16 To establish a claim of ineffective assistance, a defendant must show
deficient performance and prejudice. Prejudice is demonstrated when the defendant
proves there is a substantial likelihood the jury’s verdict would have been different
absent the error.17
Prigger’s claim arises out of testimony elicited by the prosecutor from Riannah
Rammage. On direct examination, Rammage stated she had received a letter from
the prosecutor advising her she would not be prosecuted for perjury if she testified
truthfully, but would be if she testified falsely. She also stated the court had granted
her immunity, and that one of the police officers had told her it was important that she
tell him the truth. The point of these questions was the sequence of events—that
Rammage’s recantation of her original statement was not induced by any promises
from police or the prosecutor. Prigger contends this constituted improper vouching
and that her counsel was ineffective in failing to object.
In the written statement she gave police, Prigger referred to the possibility of
criminal charges against her son’s father, stating “if he weren’t a [law enforcement
officer] he would be in jail [without] any question.” Ex. 2 at 5.
See In re Pers. Restraint of Woods, 154 Wn.2d 400, 420, 114 P.3d 607
Id.; State v. Ish, 170 Wn.2d 189, 200, 241 P.3d 389 (2010).
As Prigger points out, evidence of a promise to testify truthfully is ordinarily
irrelevant and constitutes vouching.18 Prigger suggests the testimony that the court
granted Rammage immunity could be interpreted as announcing the court’s view of
credibility. But assuming the failure to object was deficient, Prigger does not establish
that the verdict would likely have been different absent the error. The jury was
properly instructed as to its duty to determine credibility and of the court’s duty to
make no comment on evidence.19 Rammage’s testimony was strongly corroborated,
while Prigger’s version of events was shown to be inconsistent with the other
evidence. Prigger does not show the verdict would likely have been different had
Prigger also claims her counsel should have impeached Moseley with her prior
third degree theft conviction. The prosecutor acknowledged the conviction and the
court ruled it admissible. Defense counsel did not, however, mention it in examining
the witness. Instead, cross-examination focused on prior inconsistent statements
related to the case.
Counsel is presumed competent, and Prigger must show there was no
legitimate strategic or tactical reason for failing to use the conviction to impeach. But
counsel may have reasonably decided that Moseley’s inconsistent statements in this
case were more valuable for impeachment than a third degree theft conviction, and
Prigger does not show that counsel was deficient. In any event, Prigger’s claim fails
See Ish, 170 Wn.2d at 196; State v. Green, 119 Wn. App. 15, 24, 79 P.3d
See Clerk’s Papers at 45-47.
because she shows no prejudice resulting from the omission.
Statement of Additional Grounds
In her statement of additional grounds, Prigger makes one additional argument:
that she was ordered to pay the costs of her appointed attorney. She contends she
did not have counsel of her choice and should not be required to pay those costs.
The costs are allowed by RCW 9.94A.760.