In re Caldellis

• Decision Date: 15 December 2016
• Docket Number: No. 89585-6,89585-6
• Citation: 385 P.3d 135,187 Wash.2d 127
• Court: Washington Supreme Court
• Parties: IN RE the Personal Restraint of Noel Evan CALDELLIS, Petitioner.

187 Wash.2d 127

385 P.3d 135

IN RE the Personal Restraint of Noel Evan CALDELLIS, Petitioner.

No. 89585-6

Supreme Court of Washington, En Banc.

Argued Oct. 18, 2016

Filed Dec. 15, 2016

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 S.W. Morrison St., Ste. 1025, Portland, OR, 97205-3813, B. Renee Alsept, Attorney at Law, P.O. Box 61712, Vancouver, WA, 98666-1712, for Petitioner.

Mary Kathleen Webber, Snohomish County Prosecutor's Office, MSC 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, for Respondent.

González, J.¶1 Noel Caldellis shot into a crowd of people outside a party, killing one. He was charged with first degree murder "[u]nder circumstances manifesting an extreme indifference to human life" under RCW 9A.32.030(1)(b). The jury was given a to-convict instruction modeled on the relevant pattern jury instruction, which itself was modeled on subsection (1)(b). After Caldellis's trial, the pattern jury committee amended the relevant pattern instruction to require an additional "element" that "the defendant knew of and disregarded the grave risk of death." Among other things, Caldellis contends his conviction should be set aside because the jury was not required to find this new "element" in his case. We hold that the instruction given in Caldellis's trial included the required elements of the crime and was sufficient. Caldellis also asks for an evidentiary hearing to develop the factual basis for some of his claims. We conclude he has not made the requisite showing for such a hearing. Accordingly, we dismiss his personal restraint petition as meritless.

BACKGROUND

¶2 One fall night in September 2006, Caldellis and a group of friends were driving to a house party in Seattle where they expected to watch two people fight.¹ On their way to the party, the group stopped at a store to buy food and get directions. Two members of the group got into a heated argument. One pulled a handgun. Caldellis stepped in and took the gun away.

¶3 Eventually, the group arrived at the party. As Caldellis and his friends approached the house, approximately 30 people flooded outside, yelling profanities and racial slurs. A brawl immediately broke out. One witness testified that he saw someone run up to Caldellis as if to attack him and that Caldellis dodged and punched the attacker. Caldellis then pulled out a gun and fired it twice in the air. He waved the gun briefly before firing at least two horizontal—and ultimately fatal—shots into a group of people. One witness testified she saw "somebody fall" to the ground "in the driveway." 11 Verbatim Report of Proceedings (VRP) (Nov. 26, 2007) at 1605, 1604.

¶4 After shots were fired, Caldellis and others left in their cars. In the "pandemonium" of the fighting and gunshots, many of the partygoers rushed back into the house and called the police. 8 VRP (Nov. 19, 2007) at 1118. Snohomish County police officers arrived at the house and found Jay Clements lying on the ground with two gunshot wounds

.

¶5 The next day, police arrested Caldellis. After being advised of his constitutional rights, Caldellis admitted that he had taken the gun with him to the party and brandished it when the fighting began. He also told the police that he fired two shots into the air and then fired into a crowd of people. Caldellis recalled that he did such a "stupid" thing because he was drunk. 12 VRP (Nov. 27, 2007) at 2013.

¶6 The State charged Caldellis with murder and assault. At trial, Caldellis argued self-defense as to the assault charges and that he fired the fatal shot accidentally because he feared he would be attacked. Caldellis was convicted of first degree murder based on extreme indifference to life and two counts of second degree assault. The jury found he committed these crimes while armed with a firearm. Caldellis appealed, and in an unpublished decision, the Court of Appeals affirmed his murder conviction and reversed the assault convictions for reasons that are not before us. State v. Caldellis , noted at 151 Wash.App. 1012, 2009 WL 2151856.

¶7 In 2011, Caldellis filed a timely personal restraint petition (PRP) challenging his first degree murder conviction. Caldellis argues that the prosecutor committed misconduct and violated due process of law by stating the law permits conviction on less proof than legally required and improperly commented on Caldellis's right not to testify. He also contends his trial counsel provided ineffective assistance for failing to propose an instruction containing all elements of murder by extreme indifference, propose a self-defense instruction for that charge, notice jury members and the judge sleeping and move for a mistrial, and object to and move for a mistrial based on the prosecutor's remarks. Finally, he contends his murder conviction should be reversed or he should be given a reference hearing based on his claim that the judge and jurors slept during his trial.²

¶8 In 2013, the acting chief judge of the Court of Appeals dismissed the petition in a 17-page ruling. The order did not explicitly state that Caldellis's petition was frivolous, but under the Rules of Appellate Procedure, only frivolous PRPs are dismissed by order of a single judge. Order of Dismissal, In re Pers. Restraint of Caldellis , No. 67090–5–1 (Wash. Ct. App. Oct. 25, 2013) (appended to Mot. for Discr. Review, In re Pers. Restraint of Caldellis , No. 89585–6 (Wash. Nov. 25, 2013)) (citing RAP 16.11(b) ); In re Pers. Restraint of Khan , 184 Wash.2d 679, 684, 363 P.3d 577 (2015). Caldellis moved for discretionary review, arguing procedurally that his case should have been either referred to a panel of judges for consideration on the merits or remanded to the Court of Appeals for an evidentiary hearing. On the merits, Caldellis renewed the majority of his claims for relief. We accepted review. In re Pers. Restraint of Caldellis , 186 Wash.2d 1024, 367 P.3d 1083 (2016).

ANALYSIS

1. RAP 16.11 (b) AND NONFRIVOLOUS PETITIONS

¶9 The acting chief judge dismissed Caldellis's petition under RAP 16.11(b). Under this rule, the chief judge or acting chief judge of the Court of Appeals may dismiss a PRP if it is "frivolous." If the PRP is not frivolous and can be decided on the record, the chief judge "will" refer the petition to a panel of judges for consideration on the merits. RAP 16.11 (b). In Khan , we held that "a personal restraint petition is frivolous where it fails to present an arguable basis for collateral relief either in law or in fact, given the constraints of the personal restraint petition vehicle." 184 Wash.2d at 686–87, 363 P.3d 577 (citing Neitzke v. Williams , 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L.Ed. 2d 338 (1989) ). A petition that raises issues grounded on an arguable basis for relief and is not procedurally barred is not frivolous under RAP 16.11(b). Id. at 687, 363 P.3d 577. Caldellis's PRP was not referred to a panel under RAP 16.11(b), thus we infer the chief judge found it to be frivolous. As will be discussed below, Caldellis's jury instruction and prosecutorial misconduct claims presented arguable bases for relief and were not procedurally barred. Therefore, it was error to dismiss his PRP as frivolous under RAP 16.11(b) instead of referring it to a panel of judges for determination on the merits. However, this error is not grounds for relief on the underlying PRP or grounds for a do-over at the Court of Appeals. As with Khan , we elect to reach the merits ourselves. See id. (citing RAP 13.5A(a)(1); RAP 13.4(b) ).

2. JURY INSTRUCTIONS AND INEFFECTIVE ASSISTANCE OF COUNSEL

¶10 Caldellis contends that he was denied due process because the to-convict instruction omitted an allegedly essential knowledge element, that he "knew of and disregarded" the grave risk of death. Mot. for Discr. Review at 3-9. Caldellis also argues his trial and appellate counsel were ineffective in failing to propose a "correct" instruction and for failing to raise the issue on direct review. Id. at 6.

¶11 Elements of a crime are the constituent parts of a crime, usually consisting of conduct, knowledge, and causation. See State v. Fisher , 165 Wash.2d 727, 754, 202 P.3d 937 (2009) (quoting BLACK'S LAW DICTIONARY 559 (8th ed. 2004)). "At common law it was said that ‘to constitute a crime against human laws, there must be, first, a vitious will; and, secondly, an unlawful act consequent upon such vitious will.’ " State v. Eaton , 168 Wash.2d 476, 481, 229 P.3d 704 (2010) (quoting 5 WILLIAM BLACKSTONE, COMMENTARIES *21). A trial court must instruct the jury on all essential elements of the charged crime. State v. Linehan , 147 Wash.2d 638, 653–54, 56 P.3d 542 (2002). Failure to do so relieves the State of its burden of proving every element of the crime beyond a reasonable doubt. Id. This is reversible error unless the court is convinced, beyond a reasonable doubt, that the error did not contribute to the verdict. State v. Brown , 147 Wash.2d 330, 340–41, 58 P.3d 889 (2002) (quoting Neder v. United States , 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L.Ed. 2d 35 (1999) ).

¶12 The first degree murder by extreme indifference statute states in relevant part:

(1) A person is guilty of murder in the first degree when:

....

(b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person.

RCW 9A.32.030(1)(b).

¶13 In Caldellis's case, the trial court gave the following instruction on murder by extreme indifference:

(1) That on or about the 3rd day of September, 2006, the defendant discharged a firearm;

(2) That the conduct of the defendant created a grave risk of death to another person;

(3) That the defendant engaged in that conduct under circumstances manifesting an extreme indifference to human life;

(4) That Jay Daniel Clements died as a result of defendant's acts; and

(5) That the acts occurred in the State of Washington.

Resp. to PRP, Ex. 2, at 7 (Instr. 4).

¶14 This instruction was...