In thе Matter of the Personal Restraint of BRIAN KEITH LORD, Petitioner.
No. 60000-7
En Banc.
February 24, 1994.
123 Wn.2d 296
C. Danny Clem, Prosecuting Attorney and Pamela B. Loginsky, Irene K. Asai, Jeffrey M. Wolf, and Donald J. Porter, Deputies, for respondent.
Lord was convicted in 1987 of the rape, kidnapping, and aggravated first degree murder of 16-year-old Tracy Parker. The jury found insufficient mitigating circumstances to merit leniency, and Lord was sentenced to death. A summary of the pertinent facts can be found in State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991), cert. denied, 121 L. Ed. 2d 112 (1992). Lord‘s conviction and death sentence were affirmed. Lord, at 837. Through new counsel, Lord now files this PRP and supplement which raises some 67 issues, many of which are repetitious of those rejected in his initial appeal.
After addressing the standard of review for personal restraint petitions, we will address each of Lord‘s new claims in chronological order, beginning with pretrial issues and continuing through the penalty phase. Pertinent facts will be set forth in connection with the particular issues to which they relate. The issues already considered in Lord‘s direct appeal will be dealt with last.
Before beginning our analysis of the substance of Lord‘s petition, however, we must comment on its scope. The PRP filеd by Lord‘s appointed counsel is 387 pages long and includes a 430-page appendix. In response, the State filed a 333-page brief along with an additional 400 pages of appendix. Lord then filed a 50-page reply brief. These briefs are in addition to those filed on the direct appeal, as well as the numerous motions filed in connection with this action.
The “process of ‘winnowing out weaker arguments . . . and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy“. Smith v. Murray, 477 U.S. 527, 536, 91 L. Ed. 2d 434, 106 S. Ct. 2661 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983)). Here, appointed counsel has thrown the chaff in with the wheat, ignoring their duty under
STANDARD OF REVIEW
As a threshold matter, it is important to note that a personal restraint petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue. In re Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986). The petitioner may raise new issues, however, including both errors of constitutional magnitude and nonconstitutional errors which constitute a fundamental dеfect and inherently result in a complete miscarriage of justice. In re Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990); In re Hews, 99 Wn.2d 80, 87, 660 P.2d 263 (1983). To obtain relief with respect to either constitutional or nonconstitutional claims, the petitioner must show that he was actually and substantially prejudiced by the error. In re Cook, supra at 810; In re St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992). To obtain an evidentiary hearing, the petitioner must demonstrate that he has competent, admissible evidence to establish facts which would entitle him to relief. In re Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992), cert. denied, 121 L. Ed. 2d 344 (1992).
PRETRIAL ISSUES
1. Information. Lord claims that the amended information is defective because it charges him, in one count, with aggravated first degree murder “and/or” first degree felony murder. Clerk‘s Papers (CP) (Mar. 15, 1988), at 200. Lord does not claim the information omitted any of the elements of either of these crimes. Rather, he claims the “and/or” language rendered the information invalid under
Golladay is not on point. The defendant there was accused of first degree murder committed with premeditated intent, and the information charged two different means of committing the offense. The jury returned a general verdict of guilty. This court reversed the conviction because there was insufficient evidence to support one of the means. However, aggravated first degree murder and first degree felony murder are not different means of committing the same offense, nor are they greater and lesser offenses. State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). They are, rather, two different offenses. Irizarry, at 593-95. Thus, for the jury to be instructed on both offenses, the State must include both charges in the information. Irizarry, at 594-95. This is precisely what the State did here. Neither separating the charges into two counts nor using “and” instead of “and/or” would have provided any additional or better notice to Lord or his attorney that Lord was accused both of felony murder and aggravated murder.
2. Death Penalty Notice. Lord claims the death penalty notice is invalid because it was filed the same day as the amended information charging him with aggravated first degree murder. Lord argues that the timing of the notice proves the Kitsap County Prosecutor does not exercise discretion in seeking the death penalty, but does so automatically upon the filing of an aggravated murder charge.2
This issue is patently frivolous. The decision to impose the death penalty requires the prosecutor to make the “subjective determination of whether there is ‘reason to believe that there are not sufficient mitigating circumstances to merit leniency‘“. In re Harris, 111 Wn.2d 691, 694, 763 P.2d 823 (1988) (quoting
3. Venue. Lord claims the trial court erred in changing venue from Kitsap County to Pierce County rather than to a county in eastern Washington where the victim‘s disappearance and murder had not been so heavily publicized. Lord‘s argument is without merit. The parties did not experience any publicity-related difficulty in selecting a jury in Pierce County. Few of the 55 prospective jurors who were questioned recalled any details about the case, and those who did generally recalled only the initial search for a missing girl. Most of the questioning on voir dire dealt with the jurors’ attitudes toward the death penalty. Even with the challenges for cause granted on that issue, and the parties’ 30 peremptory challenges, a panel of 12 jurors and 3 alternates was selected after questioning only 55 members of the venire. The trial court did not violate Lord‘s rights by holding the trial in Pierce County. See State v. Rupe, 108 Wn.2d 734, 750-52, 743 P.2d 210 (1987) (capital defendant validly retried in Thurston County, where crime and first trial had both occurred), cert. denied, 486 U.S. 1061 (1988).
4. Waiver of Presence. Lord claims he did not validly waive his right to be present during the April 28 and May
The core of the constitutional right to be present is the right to be present when evidence is being presented. United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985) (per curiam). Beyond that, the defendant has a “right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge . . . .‘” Gagnon, 470 U.S. at 526 (quoting Snyder v. Massachusetts, 291 U.S. 97, 78 L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575 (1934)). The defendant therefore does not have a right to be present during in-chambers or bench conferences between the court and counsel on legal matters, United States v. Williams, 455 F.2d 361 (9th Cir.), cert. denied, 409 U.S. 857 (1972), at least where those matters do not require a resolution of disputed facts. People v. Dokes, 79 N.Y.2d 656, 595 N.E.2d 836, 584 N.Y.S.2d 761 (1992) (right to be present during hearing on admissibility of prior conviction).
All of the proceedings during which Lord was absent meet that description. During the pretrial hearing on April 28, 1987, the court deferred ruling on an ER 609 motion, granted defense counsel‘s motion for funds to get Lord a haircut and clothing for trial, settled on the wording of the jury questionnaires and the pretrial instructions, and set a time limit on the testing of certain evidence. During the May 20, 1987, proceeding, the court announced its rulings on evidentiary matters which had previously been argued, ruled that the jurors could take notes, and directed the State to provide the defense with summaries of its witnesses’ testimony. To the extent the various sidebar conferences and in-chambers hearings can be identified, they too involved only discussion between the court and counsel on matters of law. Lord had no constitutional right to be
5. “Ex Parte” Contacts. Lord claims the trial judge had improper ex parte contacts with nonparties regarding discovery matters. This issue is patently frivolous. With both parties’ consent, the trial judge contacted the attorney for the Washington State Patrol in an attempt to facilitate the production of documents regarding an internal investigation into the State Crime Laboratory‘s examination of certain evidence in Lord‘s case. Since these contacts were made with both parties’ consent, and provided Lord with documents relevant to his cross examination of prosecution witnesses, we can find no prejudice. Moreover, ex parte communications by the trial judge can be held harmless. Rushen, 464 U.S. at 117-18.
JURY SELECTION
6. “Presumption of Life“. Lord contends, without supporting argument, that the trial court erroneously prevented defense counsel “from asking jurors about the presumption of life“. PRP, at 355. A juror in a capital case is subject to challenge for cause if his “views [on capital punishment] would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.‘” Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 100 S. Ct. 2521 (1980)).
The record shows that each prospective juror was repeatedly informed, during the voir dire process, of the State‘s burden of proving insufficient mitigating circumstances to merit leniency. See, e.g., Report of Proceedings (RP), at 30-31, 94. Counsel were permitted to question all of the jurors regarding their understanding of this concept and willingness to follow it. Lord does not explain how this procedure was inadequate to enable counsel to ascertain the jurors’ views regarding “the presumption of life” or why it was essential to ask that specific question. The court‘s own questioning and that permitted by counsel was clearly adequate to enable both parties to intelligently exercise their challenges based on jurors’ views of the death penalty.
7. Challenge for Cause Denied. Lord also claims the trial court erroneously denied his challenge for cause to juror James Raymond. Raymond said he was “for the death penalty“. RP, at 660. When asked if he would be absolutely committed to vote for the death penalty before the penalty phase began, however, he said “[n]о“. RP, at 663. He also answered “[n]o, ma‘am” when asked if his views regarding the death penalty were such that he would automatically vote for that penalty without regard to the evidence developed during trial. RP, at 663. Raymond stated he would be willing to consider mitigating circumstances presented or argued in the penalty phase, and he could not think of any particular type of case in which he could not consider mitigating factors.
The trial court concluded that Raymond “would be open to all the facts presented during [the penalty] phase” and was not, therefore, subject to challenge for cause. RP, at 697. Since that conclusion is based on the court‘s applicatiоn of the correct rule of law and its assessment of Raymond‘s demeanor and credibility, it must be given considerable deference. Wainwright, 469 U.S. at 427-29. Although Raymond‘s initial understanding of the procedures involved in a capital trial was confused, the record as a whole demonstrated that his “views [on capital punishment] would [not] ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.‘” Wainwright, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. at 45). The trial court‘s ruling is not, therefore, erroneous.
8. Challenges for Cause Not Made. Lord next claims that defense counsel represented him ineffectively by failing to challenge jurors Richard Birnel, Gary Kopf, and Patricia Raether based on their views regarding the death penalty. Lord was not prejudiced by counsel‘s failure to challenge these jurors unless such challenges for cause would have been granted. See Kimmelman v. Morrison, 477 U.S. 365, 375, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986) (to prevail on ineffectiveness claim involving counsel‘s failure to raise legal issue, defendant must show that issue has merit). As explained above, such a challenge need only be granted if it
Juror Birnel said he “wouldn‘t be convinced ahead of time” either for or against the death penalty, indicated that he would give consideration to all mitigating circumstances, and could only “reluctantly” vote for the death penalty if the State proved there were insufficient mitigating circumstances to merit leniency. RP, at 715, 716, 721. Originally, Birnel indicated his initial support for imposition of the death penalty for premeditated murder committed to conceal a rape or kidnapping. However, following an explanation of the instructions that would be given in the case, Birnel indicated he would not vote for the death penalty unless “the prosecutor proves there are no mitigating circumstances . . . .” RP, at 731. Later, defense counsel asked Birnel if he would start out committed to vote for the death penalty after the State proved premeditated murder. RP, at 734. Birnel said “no” and explained that there would be a penalty phase and he “would have to listen and see what the State has to say, if they prove it or don‘t prove it“. RP, at 734-35.
Similarly, in response to a question from counsel, juror Kopf said he would automatically vote for the death penalty if Lord was convicted of premeditated murder done during a kidnapping or rape. RP, at 1008. When asked, “[w]ithout considering whether or not there‘s any mitigating circumstances?“, Kopf answered, “[n]o, you have to” consider mitigating circumstances before deciding on a sentence. RP, at 1008.
Juror Raether also indicated in response to a question from defense counsel that she would vote for the death penalty for a person convicted of a premeditated murder. When informed of the law she would be required to apply, however, she said, “I don‘t want to take anybody‘s life from them, and once I knew what the law was I could probably put my feelings aside“. RP, at 1297-98. She also answered
Each of these jurors evidenced an openness to consideration of all the facts, a fundamental acceptance of their duty to make an independent and thorough evaluation of the facts, and a willingness to follow their instructions and oath. Lord has not shown that a challenge to any of these jurors would have been successful.
9. Minor on Jury. Lord claims one of the jurors was 17 years old and therefore not qualified to act as a juror. This argument, which is based on what appears to be either an error in transcription or a misstatement by the prosecutor,4 is patently frivolous. According to the juror questionnaires, the youngest person summoned for jury duty was born in 1964; the youngest of the panel was born in 1960, and was 27 at the time of trial. Thus, Lord‘s claim is baseless.
10. State‘s Peremptory Challenges. Lord claims the State‘s use of peremptory challenges to remove jurors who did not favor the death penalty denied him his right to a jury representing a fair cross section of the community. The Supreme Court has held that the equal protection clause of the Fourteenth Amendment prohibits the use of peremptory challenges to exclude members of a racial group.5
11. Juror Misconduct. Lord contends that juror Manuel Rosario falsely answered voir dire questions regarding his awareness of pretrial publicity. On his written questionnaire, Rosario said he worked as a press operator for the Tacoma News Tribune. In response to the question, “[h]ave you heard anything about this case?” Rosario checked the box labeled “[n]o“. PRP app. 53, at 9. He also answered “[n]o” to the question whether he had heard anyone talk about the case or express any opinion about it. PRP app. 53, at 9. During his individual voir dire, the court asked Rosario, “[n]ow that you‘ve had a couple days to think about it, do you recall hearing or seeing anything about the case?” RP, at 412. Rosario said “[n]o, ma‘am” and confirmed that he had not heard anything about the case except what had been described to the panel prior to voir dire. RP, at 412.
In February of 1993, defense investigator Paul Henderson telephoned Rosario and asked him several questions regarding Lord‘s trial. According to Henderson‘s affidavit, Rosario said:
I was questioned about this during the jury selection. I said I had read about the crime in the Tacoma newspaper but I hadn‘t formed an opinion on the guilt or innocence. I had no in-depth background on the case — none whatsoever. I said this during the jury selection.
PRP app. 54. Henderson also states that “Mr. Rosario explained that he has worked for many years as a pressman for the Tacoma News-Tribune and further stated that he read accounts of the murder in that newspaper“. PRP app. 54.
GUILT PHASE ISSUES
12. Assistance of Counsel. Lord claims he was represented ineffectively in several respects both at the trial court level and on appeal. We have already considered numerous challenges brought by Lord relating to his representation at the trial court level, and find his challenges to that phase of his representation to be both repetitive and a transparent attempt to relitigate issues already decided on appeal. See Lord, 117 Wn.2d at 883-86. His challenge to appellate counsel, which we will consider, is simply that his attorneys did not raise all of the issues Lord now raises and that some of the issues which were raised were not argued in precisely the way Lord‘s present counsel
13. Scope of Cross Examination. Lord claims defense counsel‘s cross examination of four prosecution witnesses (Don Phillips, Rex Harvey, Sonny Belgard, and Robert Machinski) was improperly limited. Lord‘s claims with respect to the first three of these witnesses were rejected on direct appeal, Lord, at 869-70, 873-75, and need not be discussed again now. The only new claim is that Lord should have been permitted to impeach Machinski with his Texas felony conviction.
Machinski tied Lord to the orange U-Haul blanket on which blood matching the victim‘s type had been found. Defense counsel wanted to impeach Machinski‘s credibility with his 1983 Texas conviction. In an offer of proof conducted by the prosecutor, Machinski admitted that he had been convicted of attempted burglary in 1983. He also said his civil rights had been restored when he was dismissed from probation in 1987. The court asked Machinski to get
As a threshold matter, it is questionable whether there was even a “conviction” for the trial court to have admitted as impeachment evidence under ER 609.7 Cf. State v. Dixon, 17 Wn. App. 804, 565 P.2d 1207 (dismissed conviction not admissible for impeachment), review denied, 89 Wn.2d 1012 (1977). The trial court itself specifically excluded the evidence under ER 609(c), which renders inadmissible convictions which have “been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure . . . .” Moreover, Machinski testified that, although he considered himself a friend of Lord‘s, he contacted the police on his own after reading a newspaper article about Tracy Parker‘s murder and the discovery of an orange blanket. Based on the evidence before it, the trial court does not appear to have committed any error on this issue.
14. Other Possible Suspects. Lord claims the trial court erred in excluding evidence that (a) other individuals had refused to give hair samples or take polygraph examinations when the police asked them to do so, (b) one of Parker‘s neighbors owned a blue pickup truck which was not seen after Parker disappeared, (c) Parker‘s boyfriend wanted to have sex with her, (d) Parker had expressed
15. Waiver of Right To Testify. Lord claims he did not validly waive his right to testify in the guilt phase. After the defense forensic expert completed his testimony, the court asked counsel if the defense had any other witnesses. Counsel said no. The court then asked if Lord was going to testify. Counsel again said no and explained that “we have spent a number of hours talking to Mr. Lord about his testifying, and, based on our advice, he is not going to“. RP, at 7153. The court asked Lord if he understood that, if he chose not to testify, the jury could be advised not to consider that choice against him. Lord said he understood. He also confirmed that based on his attorneys’ advice he had chosen not to testify.
Lord claims the trial court‘s “lack of adequate colloquy with [him] failed to ensure that his waiver” of his right to testify “was knowing and voluntary“. PRP, at 235. As evidence that he did not wish to waive that right, Lord points to a portion of the allocution statement he made to the jury during the penalty phase. He told the jury he “didn‘t get to testify, my lawyers thought that was the wrong thing for me to do, which I wanted to but I was told not to, and I just would have liked to have been able to testify to be able to say my part of the story . . .” RP, at 7845. Lord asks this court to order an evidentiary hearing to determine if he voluntarily waived his right to testify in the guilt phase or was coerced to do so by his attorneys.
16. Guilt Phase Instructions. Lord claims the guilt phase instructions misdefined “premeditation” and did not preserve his right to a unanimous verdict. Lord‘s challenge to the court‘s premeditation instruction is patently frivolous. This pattern instruction, which set forth the statutory definition of premeditation, has already been held to be adequate. State v. Benn, 120 Wn.2d 631, 657-58, 845 P.2d 289 (1993); Rice, 110 Wn.2d at 603.
The unanimity issue was raised on direct appeal. Lord argued that the “to convict” instruction on aggravated murder did not ensure a unanimous verdict on all elements of the offense because the jury was not required to agree as to whether the crime had been committed during a first or second degree rape or attempted rape on the one hand or a first or second degree kidnapping or attempted kidnapping on the other. This court held that the jury‘s additional verdicts finding Lord guilty of felony murder based on both rape and kidnapping cured this deficiency. Lord, 117 Wn.2d at 876-81. Lord now argues that our analysis was flawed because a finding of first degree felony murder can rest on either a completed or an attempted first or second degree rape or
Lord is correct that the definition of first degree felony murder includes attempted crimes (
As the State notes, the other aggravating factor charged and instructed here is that the murder was committed to conceal the commission of “a crime” or to conceal the identity of any person committing “a crime“.
17. Prosecutorial Misconduct. Lord claims the prosecutor violated his right to due process by failing to disclose that prosecution witness Rex Harvey was in violation of his probation. In a sworn statement, Harvey stated:
I received several рrobation violations in early 1987 after my release from the Kitsap County Jail. No action was taken on the probation violations until after I testified in the Brian Keith Lord trial and after that trial was completed. The Kitsap County Prosecuting Attorney Danny Clem constantly reminded me that I was on probation each time that I met with him before the trial. . . I specifically recalled Clem telling me . . . prior to the trial that if I didn‘t cooperate, “I‘m going to burn you.”
PRP app. 22, at 1-2. Lord has also provided this court with a notice to Harvey that he had violated the conditions of his
Lord requests an evidentiary hearing to determine whether any threats or promises were actually made. Such a hearing is required if the defendant has stated with particularity facts which, if proved, would entitle him to relief. In re Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992), cert. denied, 506 U.S. 958 (1992). Such relief would only be available if the failure to disclose such information “deprives the defendant of a fair trial“. United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). The trial was not fair “if there is a reasonablе probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different“. Bagley, 473 U.S. at 682. The jury was informed of Harvey‘s five convictions for theft by deception, and his credibility to that extent had been impeached. Moreover, Harvey particularly stated in his affidavit that he refused to change his testimony despite any alleged coercion on the part of the prosecutor. In sum, Lord has not shown that the prosecution‘s acts denied him a fair trial.
18. Newly Discovered Evidence. Lord alleges that he has new evidence which was previously undiscoverable and which would affect either his conviction or his sentence. Newly discovered evidence is grounds for relief in a personal restraint petition if those facts “in the interest of justice require” vacation of the conviction or sentence. RAP 16.4(c)(3). The standard applied under this rule is the same as that applied to motions for new trial made on the same ground. See In re Jeffries, 114 Wn.2d 485, 493, 789 P.2d 731 (1990) (citing State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)). Under that test, the defendant must show:
One piece of “new evidence” Lord presents is a report prepared by Dr. Edward Blake in March of 1992. Except with respect to Dr. Blake‘s DNA analysis (which was not exculpatory), the examination was based on prоcedures and tests available prior to Lord‘s trial. Blake simply re-tested certain exhibits and expressed disagreement with some of the State Crime Laboratory‘s conclusions. Thus, in addition to the fact that this evidence was available before trial, it is also only cumulative or impeaching.
Lord also offers a Washington State Patrol interoffice communication regarding the internal investigation of Donald Phillips, the crime lab employee who tested the suspected crime scene and subsequently filed false reports to his superiors regarding the procedures he used. The defense was informed before trial of Phillips’ testing error and his false statements to his superiors. This court dealt with this problem at length in its decision on direct appeal. Lord, at 863-69. The only new allegations Lord now makes deal with the point at which the prosecutor‘s office actually learned of Phillips’ misconduct. This is immaterial; the significant fact is that the misconduct was revealed, and Lord was able to cross-examine Phillips about his testing procedures and his false report to his superiors.
PENALTY PHASE
19. Criminal History. We rejected on direct appeal a number of Lord‘s claims regarding the introduction and use of his criminal history in the penalty phase. Lord, 117 Wn.2d at 896-97, 889-95. Lord now claims that his juvenile adjudication of guilt is not a “conviction” at all and is therefore inadmissible under State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982), State‘s cert. granted and remanded, 463 U.S. 1203 (1983), defendant‘s cert. denied, 463 U.S. 1212 (1983), adhered to on remand, 101 Wn.2d 631, 683 P.2d 1079 (1984). He also raises other evidentiary challenges to the admission of the juvenile matter and accuses his prior attorneys of representing him ineffectively by not raising these issues. Although most of his contentions on this issue are merely reworked versions of his original arguments on appeal,8 we will consider the Bartholomew issue and his challenge to the false imprisonment conviction.
Lord has submitted several appendices to show that California law does not treat juvenile adjudications as “convictions“.9 PRP apps. 1-6. It does not matter if the adjudication is technically a “conviction“, however. One of the “rele-
Lord also did not challenge the admission of the false imprisonment conviction on direct аppeal. He now claims the conviction is constitutionally invalid. As with the juvenile adjudication, Lord relies on perceived deficiencies in the record of the conviction; he makes no affirmative claim of ignorance of his rights, the elements of the crime, or the penalties he was facing. Lord has, therefore, failed to meet his burden of proof on this issue. In re Harris, 111 Wn.2d 691, 696-98, 763 P.2d 823 (1988) (rejecting similar challenge to prior conviction admitted in penalty phase of capital case), cert. denied, 490 U.S. 1075 (1989). We find no error in the admission of either conviction in the penalty phase.
20. Evidence. Lord claims the trial court erred in admitting the guilt phase exhibits in the penalty phase. This argument is patently frivolous. It is well settled that all evidence which is admissible in the guilt phase is also admissible in the penalty phase. Bartholomew, 101 Wn.2d at 643; State v. Mak, 105 Wn.2d 692, 720-21, 718 P.2d 407 (1986), cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991), aff‘d, 970 F.2d 614 (9th Cir. 1992), cert.
21. Penalty Phase Instructions. Lord claims the penalty phase instructions improperly permitted the jury to treat his dangerousness as an aggravating factor, erroneously permitted “double counting” of aggravating factors, erroneously allowed the jury to consider “any relevant factors” instead of “relevant mitigating factors“, required the jury to find more than one mitigating factor in order to vote against the death penalty, improperly required the jury to reach a unanimous verdict, and omitted reference to the “presumption of leniency“.
“[T]he proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction” in an improper manner. Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990). However, “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Boyde, 494 U.S. at 378 (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973)).
This court has already rejected similar challenges to indistinguishable instructions given in other death penalty cases. In re Rice, 118 Wn.2d 876, 894-96, 828 P.2d 1086 (unanimity, more than one mitigating factor), cert. denied, 121 L. Ed. 2d 344 (1992); State v. Mak, 105 Wn.2d 692, 740-60, 718 P.2d 407 (presumption of leniency, unanimity, “relevant factors“, double counting of factors), cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991), aff‘d, 970 F.2d 614 (9th Cir. 1992), cert. denied, 113 S. Ct. 1363 (1993); State v. Jeffries, 105 Wn.2d 398, 421, 717 P.2d 722 (“relevant factors“), cert. denied, 479 U.S. 922 (1986); State v. Rupe, 108 Wn.2d 734, 763, 743 P.2d 210 (1987) (“relevant factors“, unanimity), cert. denied, 486 U.S. 1061 (1988); State v. Campbell, 103 Wn.2d 1, 27-28, 691 P.2d 929 (1984) (“relevant factors“), cert. denied, 471 U.S. 1094 (1985); State v. Rupe, 101 Wn.2d 664, 701, 708-10, 683 P.2d 571 (1984) (“relevant factors“); State v. Frampton, 95 Wn.2d 469, 489, 627 P.2d 922 (1981) (“future dangerousness” is not unconstitutionally vague). The instructions, taken as a whole, appear adequate.
Lord contends, however, that the Ninth Circuit has found that instructions identical to those given here contained an incorrect statement of law which, taken alone, might have improperly suggested that the jury had to reach a unanimous outcome in the penalty phase. Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992), cert. denied, 113 S. Ct. 1363 (1993). It is instruction number 6 upon which the dispute centered in Mak, and which Lord now contests. Lord‘s argument is patently frivolous. The instruction given in Lord‘s trial differs significantly from that given in Mak. Lord‘s instruction 6 read as follows:
You must answer one question. All twelve of you must agree before you answer the question “yes” or “no“. If you do not unanimously agree then answer “unable to unanimously agree“. Fill in the answer to the question in the verdict form to express your decision . . .
(Italics ours). CP, at 675. The addition of the italicized language in the above instruction cures the problems found by the Ninth Circuit in Mak.10 Thеse instructions, taken as a whole, allowed each individual juror to consider any factor he or she felt was mitigating whether or not any of the other jurors agreed it had been proved or was mitigating. See Campbell v. Kincheloe, 829 F.2d 1453, 1466 (9th Cir. 1987) (noting that Washington‘s statute “imposes no limits on the mitigating evidence a capital defendant may introduce“), cert. denied, 488 U.S. 948 (1988). These instructions were entirely proper and did not prejudice the defendant in any way.
23. Death by Hanging. Lord contends that hanging is an unconstitutional method of execution. This court rejected identical contentions in State v. Frampton, 95 Wn.2d 469, 512-14, 627 P.2d 922 (1981) (opinions of Rosellini, J., and Stafford, J.); State v. Rupe, 101 Wn.2d 664, 701, 683 P.2d 571 (1984); and State v. Campbell, 112 Wn.2d 186, 192, 770 P.2d 620 (1989). Other state courts have also concluded that hanging does not involve the infliction of pain beyond that necessary for the extinguishment of human life. DeShields v. State, 534 A.2d 630 (Del. 1987), cert. denied, 486 U.S. 1017 (1988); State v. Coleman, 185 Mont. 299, 605 P.2d 1000 (1979), cert. denied, 446 U.S. 970 (1980); State v. Kilpatrick, 201 Kan. 6, 439 P.2d 99 (1968). Having already decided that death by hanging is not an unconstitutional punishment, we need not now revisit the issue. Moreover, we note that Lord will not be hanged if he selects the lethal injection alternative,
1. Expenditure for Experts. Lord requests this court to authorize an expenditure of public funds to enable him to hire a jury consultant to determine whether the jury instructions were understandable, an investigator to locate and interview numerous witnesses, and a fetal alcohol syndrome expert to determine if trial counsel was ineffective by failing to present mitigating evidence on this issue. Lord contends that he needs to hire these persons in order to meet his burden of showing that he has competent, admissible evidence to support his claims of error. See In re Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992), cert. denied, 506 U.S. 958 (1992). He cites no authority, however, which suggests that expert services must be provided in postconviction proceedings.
At the trial court level, the appointment of experts is treated as part of the defendant‘s constitutional right to the assistance of counsel. Ake v. Oklahoma, 470 U.S. 68, 84, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985); CrR 3.1. There is no absolute constitutional right to counsel in postconviction proceedings, even in death penalty cases. Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Thus, the
RAP 16.15(g) gives the appellate court discretion to appoint counsel for a personal restraint petitioner and also to authorize “payment of such othеr expenses as may be necessary to consider the petition in the appellate court“. This rule permits this court to authorize expenditures for expert witnesses and other services. In fact, the court autho-
Specifically, Lord wants to hire a fetal alcohol syndrome expert in order to seek information to support his claim of ineffective assistance of counsel. Motion To Employ Fetal Alcohol Syndrome Expert (Feb. 10, 1993), at 1. Lord‘s trial counsel spoke to several of Lord‘s family members and were aware he had psychological problems, and they called a neuropsychologist in the penalty phase to describe those problems. Since there is no evidence that counsel had reason to believe that Lord‘s mother drank while she was pregnant with Lord, counsel‘s failure to tie Lord‘s psychological problems to the fetal alcohol syndrome would not, as a matter of law, be considered unreasonable or ineffective. See Burger v. Kemp, 483 U.S. 776, 794-95, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1987). His requested expenditure for a fetal alcohol syndrome expert is denied.
Lord also wishes an expert jury consultant to assist сounsel in supporting their contention that the jury instructions are too confusing for the average juror to understand. Lord made a very similar claim on direct appeal and submitted a computer-generated evaluation of the jury instructions which concluded that they were extremely difficult to comprehend. This court held that the complexity of the instructions was not objected to at trial, did not constitute an error of constitutional magnitude, and therefore could not be raised for the first time on appeal. Lord, 117 Wn.2d at 881. This court also noted that virtually identical instructions had previously been found to be satisfactory. Lord, 117 Wn.2d at 881 n.13. An expert‘s conclusion that the instructions are confusing would not change the nature of Lord‘s claim so as to allow him to raise it in a postconviction proceeding. Moreover, “[t]he individual or collective thought processes leading to the verdict ‘inhere in the verdict’ and cannot be used to impeach a jury verdict.” State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988); State v. Whitney, 96 Wn.2d 578, 580 n.1, 637 P.2d 956 (1981); State v. Crowell, 92 Wn.2d 143, 146, 594 P.2d 905 (1979). Thus, one of Lord‘s own jurors could not impeach the verdict by claiming he or she misunderstood the instructions. State v. McKenzie, 56 Wn.2d 897, 900, 355 P.2d 834 (1960). It would be somewhat anomalous to allow the verdict to be impeached with evidence that members of the public who were not jurors, but who participated in an empirical study of jury instructions, would have misunderstood the same instructions.12 Lord‘s request to expend funds to hire a jury consultant is denied.
Finally, Lord wants funds to employ an investigator to “acquire information about the full scope” of the internal investigation of Donald Phillips. Motion To Employ Investigator (Feb. 10, 1993), at 1. How the internal investigation of Phillips’ misconduct was handled is irrelevant to Lord‘s guilt or innocence or to any penalty phase issue. His request to expend funds to hire this expert is denied.
2. State‘s Motion To Strike. The State asks this court to strike appendices 2, 3, 4, 18, and 54 to Lord‘s petition, references to these appendices throughout the petition, argument based on “judicially forbidden post-verdict contact with jurors“, and citations to two Louisiana cases the State claims were unpublished decisions. State‘s Motion To Strike (Feb. 16, 1993), at 2. The appendices in question contain statements of California attorneys regarding the legal effect of a juvenile court adjudication of guilt, opinions of two Washington attorneys regarding the conflict of interest issue, and investigator Paul Henderson‘s conversation with juror Rosario. Since none of the attorneys’ statements proved necessary (or even particularly helpful) to the disposition of any legal issue, no purpose would be served in striking them. With respect to Henderson‘s declaration, there is in fact no court order prohibiting contact with Lord‘s jurors. There is,
ISSUES ALREADY RAISED ON APPEAL
This court has given full consideration to every issue raised by the petitioner. Nonetheless, we find many of the issues raised in this PRP to be obvious attempts to get this court to reconsider issues it had already addressed on direct appeal. “Simply ‘revising’ a previously rejected legal argument neither creates a ‘new’ claim nor constitutes good cause to reconsider the original claim“. In re Jeffries, 114 Wn.2d 485, 488, 789 P.2d 731 (1990). As the Ninth Circuit recently explained, a “petitioner may not create a different ground [for relief] merely by alleging different facts, asserting different legal theories, or couching his argument in different language“. Campbell v. Blodgett, 982 F.2d 1321, 1326 (9th Cir. 1992), reh‘g denied, amended and superseded, 997 F.2d 512 (1993). A personal restraint petition is not meant to be a forum for relitigation of issues already considered on direct appeal, but rather is reserved for consideration of fundamental errors which actually prejudiced the prisoner. See In re Runyan, 121 Wn.2d 432, 453-54, 853 P.2d 424 (1993). We find that the following issues were adequately considered in the direct appeal, do not constitute fundamental errors which sufficiently prejudice the petitioner such that reconsideration is necessary, and may be summarily disposed of now.
1. Continuance. Lord claims that the trial court violated his right to due process and to effective assistance of counsel by denying a defense motion for a continuance and allowing “the prosecution to continue its discovery during trial and allow[ing] evidence developed during this period to be admitted into evidence“. PRP, at 250. On direct appeal, Lord also assigned error to the trial court‘s failure to limit discovery once trial started. This was among the “number of other issues” which this court reviewed and found not to “merit individual attention“. Lord, 117 Wn.2d at 916.
After examining the record and investigating Lord‘s claims, we find nothing new of substance to consider. Defense counsel vigorously defended Lord, and we do not find that any of these newly raised allegations, even if proved, would rise to the level of a fundamental error necessitating retrial or resentencing. In sum, petitioner has neither raised any substantially new issues regarding the competence of his representation at trial, nor has he been able to show any prejudice resulting from the same.
3. Hammer and Trace Evidence. Lord claims the trial court erred in admitting evidence regarding the hammer, the trace evidence connecting Lord with the murder, and the charts summarizing the trace evidence.13 These
4. Alcohol and Marijuana Use. Lord claims the trial court erred in admitting evidence of his alcohol and marijuana use. This issue was raised as an ER 403 and 404(b) issue on direct appeal. This court found no error. Lord, 117 Wn.2d at 872-73. Lord now claims the same rulings denied him due process of law. We find no independent merit to his contention.
5. Sufficiency of the Evidence. Lord claims the State failed to prove all the elements of aggravated first degree murder. Lord challenged the sufficiency of the evidence of identity, premeditation, and reliability of the State‘s evidence on direct appeal. This court found sufficient evidence to prove that he committed a premeditated murder and that the victim was raped, thus making the killing an aggravated first degree murder. Lord, 117 Wn.2d at 882-83. The court declined to “inquire further as to if the evidence was also sufficient to establish kidnapping“. Lord, 117 Wn.2d at 883. The court also rejected Lord‘s challenges to the reliability of the State‘s scientific evidence. Lord, 117 Wn.2d at 850-54. Although he has refashioned his claim based on California case law, it remains the same proposition rejected on appeal.
6. Scope of Cross Examination. Lord claims the trial court improperly limited the scope of cross examination as to prosecution witnesses Rex Harvey, Don Phillips and Sonny Belgard. These contentions were considered and rejected on direct appeal. Lord, 117 Wn.2d at 869-70, 873-75.
7. Prosecutorial Misconduct. Lord alleges prosecutorial misconduct based on statements made by the prosecutor in the penalty phase closing argument. This court rejected Lord‘s challenge to the prosecutor‘s penalty phase argument on direct appeal. Lord, 117 Wn.2d at 904-05.
8. Penalty Phase Evidence. Lord claims it was error to preclude him from presenting evidence of other similar
9. Cross Examination at Allocution. Lord claims the trial court erred in allowing the prosecutor to cross-examine Lord after he exercised his right of allocution. This court rejected this contention on direct appeal. Lord, 117 Wn.2d at 897-900.
10. Passion or Prejudice. Lord claims his death sentence is the result of passion or prejudice. This court held otherwise on direct appeal. Lord, 117 Wn.2d at 915.
11. Criminal History. Lord claims error in admitting his criminal history in the penalty phase and in allowing cross examination of his father on that subject. Both of these issues were dealt with and rejected on direct appeal. Lord, 117 Wn.2d at 896-97, 889-95.
12. Cumulative Errors. Finally, Lord contends that, even if none of the claimed errors set forth in his 387-page personal restraint petition by themselves require reversal, the cumulative error was so prejudicial as to require a new trial. See Walker v. Engle, 703 F.2d 959, 963 (6th Cir.) (errors may cumulatively produce a trial that is fundamentally unfair), cert. denied, 464 U.S. 962 (1983). This issue was raised and rejected on direct appeal, albeit as a question of passion or prejudice. Lord, 117 Wn.2d at 915. This PRP has similarly failed to demonstrate an accumulation of error of such magnitude that resentencing or retrial is necessary.
CONCLUSION
After thoroughly considering each and every claim brought by petitioner Brian Keith Lord, and conducting a complete and independent evaluation of the record and supporting evidence, we can find no reversible error in either
ANDERSEN, C.J., and BRACHTENBACH, DOLLIVER, SMITH, GUY, JOHNSON, and MADSEN, JJ., concur.
UTTER, J. (dissenting) — Errors at the penalty phase of a capital case are subject to heightened judicial scrutiny. State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991), cert. denied, 121 L. Ed. 2d 112 (1992). Applying this heightened scrutiny, I believe the errors made during the penalty phase denied Lord a fundamentally fair sentencing proceeding.
The trial court erred in sending the State‘s evidentiary chart into the jury room, in permitting the State to introduce evidence about the circumstances surrounding Lord‘s prior convictions, in cross-examining him after allocution, and in instructing the jury it needed to be unanimous before answering “yes” or “no” to the question whether the death penalty should be imposed. I have already discussed these issues at length in my dissent in Lord‘s direct appeal, see Lord, 117 Wn.2d at 918-46, and only briefly reiterate my concerns here. Finally, I disagree with the majority that death by hanging is permissible in Washington.
SUMMARY CHART
The majority finds the defendant‘s argument that the summary chart should not have been introduced at the penalty phase frivolous. As grounds for this characterization of the argument, the majority notes that in Lord‘s direct appeal this court held the chart‘s introduction was not reversible error at the guilt phase. The majority also cites the general rule that exhibits which are introduced at the guilt phase may be introduced at the penalty phase. Majority, at 322 (citing State v. Bartholomew, 101 Wn.2d 631, 643, 683 P.2d 1079 (1984)); State v. Mak, 105 Wn.2d 692, 720-21, 718 P.2d 407 (1986), cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom.
The majority‘s citatiоns do not support the conclusion that Lord‘s argument is “patently frivolous“. It is true a majority of this court held it was not reversible error to send the chart into the jury room at the guilt phase. See State v. Lord, 117 Wn.2d 829, 861-62, 822 P.2d 177 (1991), cert. denied, 121 L. Ed. 2d 112 (1992). The majority did however recognize that generally charts should not be sent into the jury room. See Lord, 117 Wn.2d at 861. Concluding the chart‘s presence in the jury room at the guilt phase was not reversible error does not dispose of the question whether sending the chart into the jury room in the penalty phase is reversible.
Even assuming the majority is correct as to the guilt phase, I believe the effect of the chart‘s admission at the penalty phase must be independently evaluated. Such separate analysis is appropriate because we examine the penalty phase of a capital case with heightened scrutiny. See Lord, 117 Wn.2d at 888 (citing Johnson v. Mississippi, 486 U.S. 578, 584, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988)); State v. Bartholomew, 101 Wn.2d at 638 (citing Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977)); Caldwell v. Mississippi, 472 U.S. 320, 329, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985).
It is true that evidence admissible in the guilt phase is generally admissible in the penalty phase. See, e.g., Bartholomew, 101 Wn.2d at 643. Nevertheless, matters that are highly prejudicial and of questionable relevance that should be excluded in criminal trials under ER 403 should not be admitted in the penalty phase of a capital case. See Bartholomew, 101 Wn.2d at 641.
A court examining a due process challenge to the admissibility of evidence should evaluate whether the probative value of the evidence outweighs its prejudice to the accused:
When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then the use of such evidence by a state may rise to the posture of the denial of fundamental fairness and due process of law.
The State‘s chart was not relevant to the jury‘s deliberations in the penalty phase. There, the relevant inquiry is whether there are sufficient mitigating circumstances to merit leniency. See
Under these circumstances, the erroneous admission of the State‘s summary chart, which consisted of irrelevant and prejudicial matters, denied Lord a fundamentally fair proceeding and therefore denied him due process of law.
SCOPE OF EVIDENCE OF PRIOR CONVICTIONS
The trial court also erred in permitting the State to introduce before the jury evidence about the circumstances of Lord‘s prior murder and unlawful imprisonment convictions.
In the penalty phase, the State elicited testimony that the victim in Lord‘s juvenile adjudication for murder was a close family friend, was shot with two guns, and was shot in the stomach while she was using the telephone to summon help. Report of Proceedings, at 7731-32, 7780-81, 7863. The State also elicited testimony that the victim of Lord‘s unlawful imprisonment conviction was his 13- or 14-year-old sister-in-law, that he assaulted her in his automobile, and that she sustained injury at his hands. See Report of Proceedings, at 7736-38.
As I already indicated in my dissent in Lord, the State used the statement by Lord‘s father that Lord was a “good boy” to introduce evidence of his prior bad acts. Such evidence could not have been properly admitted in a criminal trial under the Rules of Evidence. See ER 405. Lord‘s father was not introducing character evidence about his son. He was rather expressing his affection for him, making rebuttal evidence improper. State v. Lord, 117 Wn.2d 829, 927-30, 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 121 L. Ed. 2d 112 (1992).
The State‘s introduction of statements about Lord‘s prior bad acts violated
The trial court also erred in permitting the State to cross-examine Lord after his allocution. For the reasons set forth in my dissent in Lord‘s direct appeal, doing so is improper. See Lord, 117 Wn.2d at 936-39 (Utter, J., dissenting).
JURY UNANIMITY WITH RESPECT TO IMPOSING THE DEATH PENALTY
Finally, the Ninth Circuit has held that an instruction suggesting the jury must be unanimous before finding insufficient mitigating circumstances to merit leniency constitutes error. See Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992), cert. denied, 113 S. Ct. 1363 (1993). In Mak the instruction was “All twelve of you must agree before you answer a question ‘yes’ or ‘no.‘” In this case, the instructional infirmity was similar. The court instructed the jury as follows: “You must answer one question ‘yes’ or ‘nо‘. If you do not unanimously agree then answer ‘unable to unanimously agree‘“. (Italics mine.) Clerk‘s Papers, at 675. In view of the Mak court‘s disapproval of this type of instruction, I believe the flaw in the instruction here, combined with the other errors indicated above, denied Lord a fundamentally fair sentencing proceeding. Accordingly, I would reverse his sentence and remand for a new sentencing proceeding consistent with the law as set forth here.
DEATH BY HANGING
I also take exception to the majority‘s citation of State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981) for the propo-
Frampton is not controlling because its discussion of hanging is dicta. Likewise not binding is the comment in State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984) that Frampton “rejected the argument that death by hanging was unconstitutional“. 101 Wn.2d at 701. Itself dictum, this statement does not alter the fact that the discussion in Frampton is dicta. State v. Campbell, 112 Wn.2d 186, 192, 770 P.2d 620 (1989) is not controlling either. Campbell only refused to reconsider Frampton, which we have already seen did not establish controlling law on the constitutionality of hanging.
It is, moreover, critical to understand that the court‘s discussion of hanging in Frampton was in part based on a misapprehension that death was rapid and virtually painless because the spinal cord was severed in the drop, a condition that was thought to produce almost instantaneous loss of consciousness and death shortly thereafter. More recent medical and scientific evidence reveals this assumption to be false. In most сases, the spinal cord is not severed, and death can be relatively slow and agonized. See State v. Dodd, 120 Wn.2d 1, 30, 838 P.2d 86 (1992) (Utter, J., dissenting); see also, e.g., R. James & R. Nasmyth-Jones, The Occurrence of Cervical Fractures in Victims of Judicial Hanging, 54 Forensic Sci. Int‘l 81, 90-91 (1992); I. Gray & M. Stanley, A Punishment in Search of a Crime 22-29 (1989); An Unnatural Way To Die, New Scientist, Oct. 27, 1983, at 278.14
[No. 60137-2. En Banc. February 24, 1994.]
SEATTLE ENDEAVORS, INC., ET AL, Respondents, v. MICHAEL R. MASTRO, ET AL, Petitioners.