In re Woods

• Decision Date: 16 June 2005
• Docket Number: No. 71780-0.,71780-0.
• Citation: 114 P.3d 607,154 Wash.2d 400
• Court: Washington Supreme Court
• Parties: In re the Matter of the Personal Restraint of Dwayne WOODS, Petitioner.

114 P.3d 607

154 Wash.2d 400

In re the Matter of the Personal Restraint of Dwayne WOODS, Petitioner.

No. 71780-0.

Supreme Court of Washington, En Banc.

Argued June 3, 2004.

Decided June 16, 2005.

Judith Michele Mandel, Tacoma, Lenell Rae Nussbaum, Seattle, for Petitioner.

Kevin Michael Korsmo, Spokane, for Respondent.

ALEXANDER, C.J.

¶ 1 In 1997, a jury in Spokane County Superior Court found Dwayne Anthony Woods guilty of two counts of aggravated first degree murder, one count of attempted first degree murder, and one count of attempting to elude a police vehicle. Based on determinations made by that same jury, the trial court imposed the death penalty against Woods. This court affirmed the convictions and sentence for two counts of aggravated first degree murder and one count of attempted first degree murder.¹ State v. Woods, 143 Wash.2d 561, 23 P.3d 1046 (2001). We now consider Woods' amended personal restraint petition, as well as numerous motions that Woods and the State filed during the pendency of this matter which we passed to the merits. We find that the issues Woods has raised to be without merit and, thus, deny Woods' amended personal restraint petition.

I. FACTS AND PROCEDURAL HISTORY²

¶ 2 In his direct appeal, Woods raised many issues regarding the guilt and penalty phases of his trial. One of his main contentions on appeal was that the trial court erred in denying his trial counsel's motion for a continuance between the guilt and penalty phases of the trial in order to enable the attorneys to have his competency assessed. He noted that his trial attorneys had contended that his competency was called into question because he had instructed them to not present any mitigating evidence at the penalty phase of the trial. We rejected Woods' contention on the basis that there was no factual basis for the assertion that Woods was incompetent. Woods, 143 Wash.2d at 608,23 P.3d 1046. Woods' appellate counsel also argued that the trial court did not conduct a sufficient "`colloquy'" with Woods to ensure that he "`knowingly, voluntarily, and intelligently'" waived his right to present mitigating evidence at the penalty phase. Id. at 608, 609, 23 P.3d 1046. We rejected that argument, as well as others, and affirmed Woods' convictions and the sentence of death.

¶ 3 Following conviction and sentence, counsel was appointed to prepare and file a personal restraint petition for Woods. Upon the filing of the petition on July 11, 2002, a stay of execution was granted. After Woods filed his personal restraint petition, this court ordered a re-transcription of portions of the trial record. Following the re-transcription, Woods filed an amended personal restraint petition. The State then moved to strike all unverified claims from Woods' amended petition. We ultimately struck 7 of Woods' 18 claims based on his failure to verify these claims.

¶ 4 Woods has filed various motions, including motions for discovery, appointment of various experts, depositions of experts, and an evidentiary hearing. The State has also filed several motions. We have previously ruled on some motions and deferred ruling on seven others.³

II. ISSUES

¶ 5 1. Whether Woods was denied due process, equal protection, his constitutional right to appeal, his right to counsel, and access to the courts because of the trial court's failure to provide a comprehensive trial record on appeal.

¶ 6 2. Whether Woods was denied due process, equal protection, access to the courts when the cost of hours of investigation and expenses incurred were not paid for at public expense.

¶ 7 3. Whether Woods was denied due process, a fair trial, and the right to an impartial and unbiased jury.

¶ 8 4. Whether Woods was denied a fair trial and the right of confrontation because the jury allegedly received extrinsic evidence.

¶ 9 5. Whether Woods was denied due process when he was allegedly seen in restraints by the jury.

¶ 10 6. Whether Woods was denied effective assistance of counsel at trial.

¶ 11 7. Whether Woods was denied his right to a jury trial when factual evidence was allegedly removed from the jury's consideration.

¶ 12 8. Whether Woods was denied due process when the State allegedly failed to reveal potentially exculpatory evidence to the defense.

¶ 13 9. Whether Woods is entitled to a new trial based on alleged newly discovered evidence of Dr. Brown's malfeasance in the state crime laboratory.

¶ 14 10. Whether Woods was denied due process, his right to be present, and to a public trial when certain proceedings were held in chambers and at sidebar without him.

¶ 15 11. Whether Woods was denied due process and protection against self-incrimination when the court allegedly admitted a compelled statement.

III. ANALYSIS

STANDARD OF REVIEW

¶ 16 In order to prevail on a personal restraint petition, a petitioner must establish that there was a constitutional error that resulted in actual and substantial prejudice to the petitioner, or that there was a nonconstitutional error that resulted in a fundamental defect which inherently results in a complete miscarriage of justice. In re Pers. Restraint of Isadore, 151 Wash.2d 294, 298, 88 P.3d 390 (2004). This threshold requirement is necessary to preserve the societal interest in finality, economy, and integrity of the trial process. It also recognizes that the petitioner has had an opportunity to obtain judicial review by appeal. We now turn to the claims raised by Woods in his amended petition.

1. COMPREHENSIVE TRIAL RECORD

¶ 17 Woods first contends that he was denied due process, equal protection, his constitutional right to appeal, his right to counsel, and access to the courts because of the trial court's failure to provide a comprehensive trial record on appeal. Woods asserts that because of this error this court should recall its mandate and reopen his direct appeal. Although Woods had earlier sought this relief by motion, he included this claim in his amended personal restraint petition because at the time the amended petition was filed, this court had yet to rule on the motion. Following the filing of the amended petition, we did, however, deny Woods' motion to recall mandate and reopen direct appeal. See Supreme Court Order (May 8, 2003). We are not inclined to revisit that decision.

¶ 18 Although Woods' motion to recall mandate and reopen direct appeal was earlier denied, we recognize that, due to the incomplete transcription of the trial record, Woods was unable to raise certain issues in his direct appeal. Any prejudice that Woods may have suffered as a consequence of the incomplete transcription of the record on appeal, can, however, be mitigated by our application of the more lenient standard of review applicable to direct appeal to the new issues Woods discovered and raised following the re-transcription. In re Pers. Restraint of Frampton, 45 Wash.App. 554, 563, 726 P.2d 486 (1986) (in dicta, recognizing that a court reviewing a personal restraint petition may resolve appealable issues on the merits if the record were sufficient). Of the numerous issues that Woods has raised in his amended petition, we are of the view that only issue 10, relating to his right to be present at certain in-chambers and sidebar conferences between the trial court and counsel, warrants our review on the standard applicable to direct appeals.

2. FUNDING FOR INVESTIGATIVE SERVICES AND ATTORNEY FEES

¶ 19 Woods next claims that his right to due process was violated by this court's failure to order sufficient public funding for certain expert and investigative services. Woods also contends that because these services were not fully funded, his right to equal protection was denied.

¶ 20 Due process protects against the deprivation of life, liberty, or property. U.S. CONST. amend. XIV, § 1; WASH. CONST. art. I, § 3. "The threshold question in any due process challenge is whether the challenger has been deprived of a protected interest in life, liberty or property." In re Pers. Restraint of Cashaw, 123 Wash.2d 138, 143, 866 P.2d 8 (1994). Aside from the due process clause, liberty interests may be created by statutes or regulations. Id. at 144, 866 P.2d 8.

¶ 21 If a personal restraint petitioner requests, counsel will be appointed for his or her first personal restraint petition in a capital case provided he or she is found to be indigent. See RCW 10.73.150(3); RAP 16.25. No corollary statute mandates the provision of expert or investigative services at public expense. Such services are, however, to be afforded to a petitioner if he or she establishes that there is a substantial reason to believe that the services will produce information that would support relief. See RAP 16.26, 16.27. Absent the showing of a substantial reason for such services, provision of the services at public expense is not authorized. See In re Pers. Restraint of Gentry, 137 Wash.2d 378, 392, 972 P.2d 1250 (1999). There is no authority for "appointment of investigators or experts to identify or develop grounds for challenging convictions or sentences." Id.

¶ 22 At various times, Woods moved this court to authorize payment from the public purse for experts, investigators, and discovery. Woods claimed in support of these motions that it was necessary for him to depose certain employees of the state crime laboratory, conduct deoxyribonucleic acid (DNA) review, interview jurors and a witness, and fully investigate his ineffective assistance of counsel claim. We granted many of Woods' requests for services, including his request for additional payments for the providers of these services.⁴ Although we denied payment for some investigative services, we did so because, in our view, Woods failed to make the requisite showing that there was a substantial reason to believe that the additional services would provide information that would support relief.⁵See RAP 16.26, 16.27.

¶ 23 Woods' contention that his right to due process was violated...