965 P.2d 593 (Wash. 1998), 64300-8, Matter of Pirtle

Docket Nº:64300-8.
Citation:965 P.2d 593, 136 Wn.2d 467
Opinion Judge:JOHNSON
Party Name:In the Matter of the Personal Restraint Petition of Blake PIRTLE.
Attorney:Finer & Pugsley, Jeffrey K. Finer, Charles Stuart Dorn, Spokane, Allen, Hanson & Maybrown, Todd Maybrown, Seattle, for Petitioner., James R. Sweetser, Spokane County Prosecutor, Kevin Korsmo, Deputy Spokane County Prosecutor, Spokane, for Respondent.
Case Date:October 01, 1998
Court:Supreme Court of Washington

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965 P.2d 593 (Wash. 1998)

136 Wn.2d 467

In the Matter of the Personal Restraint Petition of Blake PIRTLE.

No. 64300-8.

Supreme Court of Washington, En Banc.

October 1, 1998

As Amended on Denial of Reconsideration December 7, 1998.

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[136 Wn.2d 471] Finer & Pugsley, Jeffrey K. Finer, Charles Stuart Dorn, Spokane, Allen, Hanson & Maybrown, Todd Maybrown, Seattle, for Petitioner.

James R. Sweetser, Spokane County Prosecutor, Kevin Korsmo, Deputy Spokane County Prosecutor, Spokane, for Respondent.

JOHNSON, Justice.

Blake Pirtle, petitioner, was sentenced to death for the aggravated first degree murders of Tod Folsom and Dawnya Calbreath. We affirmed his conviction and sentence, and the United States Supreme Court denied his petition for a writ of certiorari. State v. Pirtle, 127 Wash.2d 628, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996). Pirtle now presents this amended personal restraint petition (PRP), 1 raising [136 Wn.2d 472] new issues and renewing several issues addressed and rejected on direct appeal. We deny petitioner's personal restraint petition.


The facts of the crimes and the evidence presented in this case are fully recounted in State v. Pirtle, 127 Wash.2d 628, 904 P.2d 245 and will not be revisited except as is necessary to resolve the arguments presented in this personal restraint petition.


(1) Was Pirtle's counsel ineffective due to a conflict of interest?

(2) Did the prosecutor fail to disclose impeaching evidence?

(3) Did Darin Wheeler seek incriminating information from Pirtle after Wheeler met with police?

(4) Did the prosecutor commit misconduct when he asked Pirtle's sister whether she killed anybody after she was "coming down" from drugs?

(5) Did the trial court violate Pirtle's constitutional rights by excluding him from various in-chambers conferences?

(6) Did the prosecutor improperly fail to disclose Pirtle's one-sentence statement to Deputy Walker during Pirtle's arrest?

(7) Was Pirtle denied effective legal representation during the trial's guilt phase?

(8) Was Pirtle denied effective legal representation during the trial's penalty phase?

(9) Was Pirtle denied effective legal representation during his appeal?

(10) Did the trial court err by failing to call a mistrial following alleged jury misconduct? [136 Wn.2d 473]

11) Did the trial court err in allowing family members to sit too close to the jury?

(12) Did an accumulation of errors violate Pirtle's constitutional rights?

(13) Is execution by hanging cruel and unusual punishment?

(14) Is execution by lethal injection cruel and unusual punishment?


Standard of Review

To obtain relief through a PRP, a petitioner must show he or she was actually and substantially prejudiced by a violation of his or her constitutional rights or by a fundamental error of law. In re Personal Restraint of Cook, 114 Wash.2d 802, 810, 792 P.2d 506 (1990); In re Personal Restraint of Lord, 123 Wash.2d 296, 303, 868 P.2d 835 (1994). If the petitioner makes a prima facie showing of error, but the issue cannot be resolved on the existing record, the case

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must be transferred to the superior court for an evidentiary hearing. RAP 16.11(b). An evidentiary hearing will be ordered only if the petitioner demonstrates he or she has competent, admissible evidence establishing facts which would require relief. In re Personal Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086 (1992). The petitioner may not renew an issue which was raised and rejected on direct appeal unless the interests of justice require the issue be reexamined. Lord, 123 Wash.2d at 303, 868 P.2d 835.

To the extent the materials listed by the State are hearsay and incompetent evidence, the motion is granted. 2 [136 Wn.2d 474] Issue 1: Was Pirtle's Counsel Ineffective Due to a

Conflict of Interest?

Pirtle claims his Sixth Amendment right to effective assistance of counsel, his Eighth Amendment right to a reliable penalty hearing, and his Fourteenth Amendment right to due process of the law were violated because he asserts his trial counsel also represented three of the State's primary witnesses in separate matters. Pirtle maintains his attorneys were working under a conflict of interest because three of the State's trial witnesses, Shawn Botner, Craig Ladwig and Darin Wheeler, were previously represented (and one allegedly at the time of trial) by other members of the Spokane Public Defender's Office.

Pirtle contends this conflict of interest resulted in the denial of effective assistance of counsel in several ways. First, the conflict impaired trial counsel's ability to conduct an appropriate investigation. Second, the conflict impaired counsel's ability to prepare for the cross-examination of these State witnesses. Third, the conflict ultimately resulted in counsel's deficient performance at the guilt phase and penalty phase of Pirtle's trial. 3 As noted above, the testimony of the State's witnesses, particularly Botner and Wheeler, entails the central claims of Pirtle's PRP.

In dealing with issues involving ineffective assistance of counsel arising from divided loyalty, a petitioner must establish he or she was prejudiced: "[p]rejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.' " Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting [136 Wn.2d 475] Cuyler v. Sullivan, 446 U.S. 335, 350, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). An "actual" conflict of interest arises if the attorney's duties to another materially limit the representation of his client. 4 State v. White, 80 Wash.App. 406, 411-12, 907 P.2d 310 (1995) (citing State v. Byrd, 30 Wash.App. 794, 798, 638 P.2d 601 (1981)).

A. Shawn Botner and Craig Ladwig. In the guilt phase of Pirtle's trial, the

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potential for a conflict of interest did not go unaddressed. After being informed that the State would call two jailhouse informants, Botner and Ladwig, from the Spokane County jail, Pirtle's attorney, Donald Westerman, informed Pirtle of this fact. Shortly thereafter, on January 15, 1993, the court held a hearing for Pirtle to waive his speedy trial rights. During the course of that hearing, Westerman notified the court that the State may have listed two witnesses, Botner and Ladwig, previously represented in unrelated matters by the Spokane Public Defender's Office. Westerman stated he had never represented these witnesses and had no knowledge of their background. He also stated he felt there was no conflict of interest.

The trial court conducted a colloquy with Pirtle, where he was informed that certain persons on the State's witness list may have been clients of the Spokane Public Defender's Office. The court asked Pirtle if, knowing the potential ramifications of having these witnesses testify, "do you wish to continue with the Public Defender's Office and Mr. Westerman's representation?" Jan. 15, 1993 Hearing at 7-8. In response, Pirtle said, "[y]es I do. I'm very [136 Wn.2d 476] pleased with my lawyer, and I--I mean, we [have] been waitin' eight months now to get discovery and everything. I don't want to spend another eight months with a new lawyer." Id. at 7-8.

Thus, Pirtle agreed to continue with his counsel after being expressly advised that the Spokane Public Defender's Office, but neither of his personal attorneys, had represented certain prosecution witnesses. There is no other evidence supporting Pirtle's allegations that his appointed counsel's allegiance to him was impaired. To the contrary, Pirtle's counsel stated he did not think there was a conflict. Id. at 4-7. Pirtle has not established that the alleged conflict of interest adversely affected appointed counsel's performance. 5 See Strickland, 466 U.S. at 692, 104 S.Ct. 2052.

B. Darin Wheeler. Pirtle argues his waiver was inadequate because a conflict still existed between Pirtle's attorneys and witness Wheeler. Pirtle argues the trial court's January 15, 1993 colloquy neglected to provide Pirtle with any notice "of the hazards of having an attorney with divided loyalties represent him" because Wheeler allegedly sought a deal, with the assistance of attorney George Caplan from the Spokane Public Defender's Office, in exchange for his testimony against Pirtle. Brief in Support of First Amended Personal Restraint Petition (Pirtle Brief) at 42.

Spokane police spoke with Wheeler about the Pirtle case while Wheeler served time with Pirtle at the Spokane County jail for unrelated crimes. The police report discussing this meeting between Wheeler and the Spokane Police Department stated that Wheeler wanted to talk to attorney Caplan from the Spokane Public Defender's Office about cutting a deal. Pirtle maintains Wheeler then contacted Caplan in order to make a deal. Pirtle argues an actual conflict of interest existed because Caplan would have worked with Wheeler on the same case as Pirtle's appointed trial counsel. [136 Wn.2d 477]

Pirtle's argument, however, is based solely on speculation about what might have happened. The record does not support his contention. There is no evidence that Wheeler followed through on his statement that he wanted to make a deal. After his meeting with the police, Wheeler returned to jail, served the remainder of his sentence, and was released. In fact, Detective Rick Grabenstein, who initially met with Wheeler on October...

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