In re Biggs
| Decision Date | 27 April 2023 |
| Docket Number | 37306-l-III |
| Parties | In re the Matter of Personal Restraint of Zachary Joseph Biggs. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Pending before this court is a personal restraint petition by which Zachary Biggs seeks to vacate his convictions on two counts of rape in the first degree and a felony violation of a domestic violence protection order. We deny the petition.
In 2015, Asotin County Superior Court Judge Scott Gallina, after a bench trial, convicted Biggs of the three charges. In April 2018, this court affirmed the convictions. The Washington State Supreme Court denied review on October 3, 2018. The United States Supreme Court denied certiorari on May 28 2019.
On October 3, 2019, Zachary Biggs filed a pro se CrR 7.8 motion in superior court. The superior court transferred the motion to this court to handle as a personal restraint petition. This court subsequently remanded the matter for two reference hearings. The superior court appointed counsel for Biggs at the time of the first reference hearing. This counsel continues to represent Biggs today. During the first reference hearing, counsel raised new contentions. Both reference hearing judges entered findings of fact, on which we now rely.
We now hold that time bars the additional assigned errors raised by counsel. We also hold that Biggs' initial contentions lack merit.
This prosecution involves alleged rape of a wife by her husband. Zachary and Stacey Biggs were married with children. We often refer to Zachary Biggs as "Biggs" and Stacey Biggs as "Stacey." In November 2013, Stacey separated from Biggs out of concern for her husband's aberrant behavior. Biggs had falsely claimed to neighbors that Stacey their newborn baby, and Biggs had recently been raped.
In December 2013, Stacey filed for divorce and procured a protection order to preclude Zachary Biggs from contacting her. Biggs moved to his mother's abode.
Stacey occasionally saw Zachary Biggs thereafter. Biggs behaved normally and politely during these encounters. At a filling station, Biggs gentlemanly told Stacey that his mother had fallen ill and that he consequently had not been eating.
On the afternoon of December 10, 2013, Stacey delivered a child to Biggs' mother's house. Stacey noted that the mother presented in fine health, contrary to Biggs' claim, but the home lacked food. Stacey left, but confronted guilt for not bringing spare groceries to Biggs. Stacey returned to her mother-in-law's home, at 8 p.m., bearing groceries. In the meantime, Biggs' mother had departed the house for work.
As Stacey approached the back door of Zachary Biggs' mother's abode the night of December 10, Biggs opened the door. Biggs inquired of Stacey: "'What are you doing here?'" Report of Proceedings (RP) at 191, State v. Biggs, No. 33721-9-III. Stacey replied "'Oh, I brought you some food.'" RP at 191. Biggs interjected: "'Are the boys with you?'" RP at 191. Stacey responded: "'No.'" RP at 191. Biggs instantly placed a chokehold on Stacey's neck and threw her to the floor. He pounced on Stacey and yelled in her face: "'Why are you here?'" RP at 191. "'Who sent you?'" RP at 191. Biggs demanded Stacey enter his room. Once the two entered the room, Biggs shut and locked the door.
Zachary Biggs flung Stacey on the bed and repeatedly instructed her to remain silent. Biggs, with his forearm, applied pressure to Stacey's neck while she lay trapped on the bed. Biggs held a machete and again interrogated Stacey as to who sent her to his mother's home. He repeatedly threatened her. Stacey pleaded with Biggs to release her to return home. In trial testimony, Stacey recalled Biggs menacingly sneering:
You ain't going home. I'm going to kill you. I'll have the kids. I'll hide your body before this is all over and done with, and, before anybody knows you're missing, I'll be gone and so will you.
While entrapping Stacey Biggs on the bed, Biggs claimed that individuals in masks had impersonated him. Biggs pushed and pulled on Stacey's lips, nose, and eyes, and dug into her face. Biggs declared that he needed to confirm the body he attacked was Stacey's corpus. Biggs also insisted to Stacey that he witnessed her performing oral sex on other men. Biggs informed Stacey that she would be dead by night. Biggs then held a large sharpening stone in his right hand and threatened to bash Stacey's face if she did not cooperate with him.
Zachary Biggs demanded sex from Stacey while holding a machete to her neck. Biggs grabbed Stacey's hair and forced her face to his groin. Stacey performed oral sex until nearly retching. During the sexual assault, Biggs named the women with whom he engaged in sexual conduct during the couple's separation. Biggs released Stacey.
After releasing Stacey from his grip, Zachary Biggs carped to Stacey: "'[y]ou're not doing it like I showed you.'" RP at 202. Biggs regrabbed Stacey by her hair and placed her on the hard floor. Biggs uttered: "'[i]f you don't make love to me like my wife I'm going to stab you.'" RP at 203. Biggs then vaginally raped Stacey on the floor. Biggs reached to retrieve his machete. Stacey pleaded with him that she had been in a car accident and intercourse on a hard floor hurt her back. She cried in pain. After threatening her again, Biggs allowed Stacey to move to the bed.
Under duress, Stacey submitted to Zachary Biggs again while the two lay on the bed a second time. Stacey did not think she would leave the bedroom alive.
After nearly three hours, Zachary Biggs ended the assault and allowed Stacey to dress. Biggs asked Stacey to drive him to a store so he could purchase a cigar. Stacey complied. At the store, Biggs threatened Stacey with death if she reported his conduct. He then acted as if checking his watch, although not wearing one, and remarked:
Yeah, about this time tomorrow I'll probably be in jail. And that's all right; I'll do my time. 'Cause when I get out I'll come find you, I'll sneak in the middle of the night and I'll slice your throat. Or I'll come out to your work, wait for you to get off and run your ass and your car into the river and I'll kill you.
On December 11, 2013, Stacey Biggs told coworkers of the rape after her colleagues inquired about her disquietude. Coworkers reported the rape to law enforcement.
Asotin County Sheriff Deputy Jeffrey Polillo spoke with Zachary Biggs about the alleged rape at Biggs' request. Biggs was then incarcerated in jail on other charges. Biggs and Deputy Polillo knew each other from prior law enforcement contacts and had a relationship of mutual respect. When Biggs requested the conversation, Deputy Polillo did not know of Stacy Biggs' rape allegation.
During the jail interview between Zachary Biggs and Deputy Jeff Polillo, Biggs related a story about possessing evidence that people were clones, claimed that he once saw someone at a casino identical to him, asserted that the clone-makers had drugged him to take a mold of his face for the clones, and reported that, when he awoke from the drug trip, he discovered a Twizzler candy rope inserted into his rectum. Biggs asked Polillo how Stacey Biggs could accuse him of rape "when she came to my house wanting to fuck me." RP at 306.
One year after Zachary Biggs' trial, the Asotin County sheriff terminated Deputy Jeff Polillo's employment for misconduct. Biggs then sought information relating to Deputy Polillo's termination, but the sheriff denied the request due to a restraining order, in a lawsuit initiated by Polillo, preventing the release of Polillo's personnel file to third parties. According to Deputy Prosecuting Attorney Curt Liedkie, the incident, for which the sheriff fired Polillo, occurred after Zachary Biggs' trial.
The State of Washington charged Zachary Biggs with two counts of rape in the first degree and one count of felony violation of a domestic violence court order. The charges alleged that Biggs bore a deadly weapon when committing the crimes against a family or household member.
Attorney Noel Pitner first represented Zachary Biggs in the prosecution. Pitner performed few services before Biggs procured his removal and began to represent himself. Before his removal, Pitner procured a ruling directing a competency evaluation of Biggs.
In 2018, two years after Zachary Biggs' trial, the State of Washington suspended Noel Pitner for two years from practicing law. The state of Idaho also suspended Pitner's license to practice. The misconduct that precipitated the suspension occurred after Pitner's representation of Biggs.
Dr. Daniel Lord-Flynn of Eastern State Hospital conducted a competency examination of Zachary Biggs and determined that Biggs possessed capacity to understand the court proceedings and participate in his own defense. Dr. Lord-Flynn diagnosed Biggs with a personality disorder.
After the exit of Noel Pitner as counsel for Zachary Biggs, the superior court appointed John Fay as stand-by attorney for Biggs. Biggs eventually agreed to Fay serving fully as his counsel, and Fay represented Biggs through his trial.
In 2012, the Washington State Supreme Court created the Standards for Indigent Defense (SID). These standards created recommended minimum experience requirements and maximum case load limits for criminal defense attorneys providing indigent defense services. Although being stated in mandatory terms, the preamble to the SID declares that the standards provide "guidance" only.
Standards 14.2(B) and (D) list minimum experience requirements for lawyers who represent defendants charged with Class A felonies and sex offenses. Attorneys on Class A felonies must have two years of criminal law experience and have "been trial...
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