In re Elmore, 70233-1.

• Court: United States State Supreme Court of Washington
• Citation: 162 Wn.2d 236,172 P.3d 335
• Decision Date: 21 November 2007
• Docket Number: No. 70233-1.,70233-1.
• Parties: In the Matter of the Personal Restraint Petition of Clark Richard ELMORE, Petitioner.

172 P.3d 335 In the Matter of the Personal Restraint Petition of Clark Richard ELMORE, Petitioner. No. 70233-1. Supreme Court of Washington, En Banc. November 21, 2007.

[172 P.3d 339]

Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Seattle, WA, Meredith Martin Rountree, Owen & Rountree LLP, Austin, TX, for Petitioner/Appellant.

Michael T. Mitchell, Seattle, WA, Laura D. Hayes, Bellingham, WA, David Stuart McEachran, Bellingham, WA, for Appellee/Respondent.

MADSEN, J.

¶ 1 Petitioner Clark Elmore pleaded guilty to aggravated first-degree murder with special circumstances. The State proved the absence of sufficient mitigating circumstances justifying leniency to the satisfaction of the jury, and Judge David Nichols sentenced Elmore to death May 3, 1996. This court affirmed Elmore's conviction and sentence in State v. Elmore, 139 Wash.2d 250, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000). Elmore has now filed this personal restraint petition, primarily focusing on claims of ineffective assistance of counsel. In addition, Elmore alleges (1) misconduct based on a juror's response during voir dire regarding his history of being a victim of sexual assault, (2) the proportionality review conducted by this court was unreliable, (3) the charging documents violated Elmore's due process rights where it was unclear which sexual offense constituted one of the aggravating circumstances, and (4) unlimited jury access to a tape recorder during deliberations denied him due process.

¶ 2 The case was remanded to the superior court for a reference hearing to determine whether counsel's failure to consult with and to present mental health experts in mitigation fell below an objective standard of reasonableness, including whether any legitimate

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strategic or tactical reasons supported the decisions not to consult and call such experts. Elmore and the State submitted supplemental briefs following the reference hearing. Further consideration by this court was deferred pending State v. Cross, 156 Wash.2d 580, 132 P.3d 80, cert. denied ___ U.S. ___, 127 S.Ct. 559, 166 L.Ed.2d 415 (2006).

¶ 3 After full review, we now hold that Mr. Elmore has failed to establish that he is under an unlawful restraint and deny his petition for relief.

FACTS¹

¶ 4 Clark Elmore was charged with aggravated murder in the first degree and two counts of rape in the second degree arising out of the rape and murder of his stepdaughter, Kristy Ohnstad. Elmore confessed that, en route to Kristy's school, he turned off onto a dirt road alongside Lake Samish, parked his van, and raped Kristy. After the rape, he choked her into unconsciousness and then placed his belt around her neck and tightened it. He inserted a long needle-like instrument in her ear, put a plastic bag over her head, and hit her in the head with a hammer several times causing her death. After the killing, he carried her body into the woods and covered her with plastic.

¶ 5 Elmore participated in the search for his stepdaughter. When he realized her body would soon be found, he fled to Oregon. After approximately 24 hours he returned to Bellingham and surrendered to the police. He waived his right to an attorney and spoke with authorities for approximately three hours. In his confession, Elmore admitted he thought about killing Kristy many times, whenever she brought up the fact that he had sexually molested her at an earlier age.

¶ 6 At his first appearance, Elmore stated that he did not want an attorney and attempted to plead guilty. The trial court declined the plea, set the matter over, and appointed Jon Komorowski as counsel. Mr. Komorowski, as lead counsel, promptly assembled a defense team, including cocounsel Douglas Hyldahl, investigator Michael Sparks, mental health advisor Roxanne Jarvinen, and legal assistant Susan Donato.

¶ 7 The State indicated to counsel that it was considering the death penalty. Mr. Komorowski requested, and received, a continuance of the time for filing a notice of special proceedings to prepare a mitigation report.² Mr. Sparks, the defense investigator, compiled a report which included information about Elmore's background, his family's destitute circumstances, and his father's alcoholism and abusive behavior. The report also detailed Elmore's decision to drop out of high school after 11th grade and join the military, his minor criminal offenses including theft and forgery, and his habit of marrying early and often. The report described Elmore as a loner who engaged in recreational drug use. It also revealed that, although Elmore rarely held a steady job, he was a capable mechanic and that he had a long-term, stable relationship with Sue Ohnstad, the victim's mother.

¶ 8 The mitigation report apparently was unpersuasive and the State elected to seek the death penalty. The State alleged two aggravating circumstances: (1) that the murder was committed to conceal a crime and (2) that the murder was committed in the course of, in furtherance of, and in immediate flight from the crime of rape. Elmore entered a plea of guilty to aggravated murder and one count of rape and the matter was set for a special sentencing proceeding.

¶ 9 In preparation for the sentencing trial, Mr. Komorowski consulted with a trial consulting firm on nearly every aspect of the case, including mitigation, jury selection, themes, and theories. The firm selected mock jurors to hear the case. After analyzing film of the mock trials, the firm found that the jurors responded well to remorse and acceptance of responsibility rather than mental health mitigation evidence. Trial

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Court Findings of Fact (FOF) at 15 (Sept. 10, 2004 reference hearing).

¶ 10 Further investigation was conducted by the defense team between Elmore's guilty plea and his sentencing trial. The team took trips to Walla Walla to meet with Elmore and to Springfield, Oregon, where they attempted to contact people from Elmore's past and to collect records. Mr. Komorowski was aware that Elmore suffered numerous serious head injuries throughout his life, including an incident where Elmore's brother accidentally hit him on the head with an ax.³ Additionally, the team learned that Elmore had been exposed to Agent Orange in Vietnam, that he worked with chemicals as a mechanic most of his life, that he grew up near an airport that had a history with crop-dusting, and that he was knocked unconscious at least twice in his life. FOF at 17-19.

¶ 11 The defense team did not retain mental health experts prior to advising Elmore to plead guilty. However, in preparation for the sentencing trial, counsel retained Dr. Ronald Kleinknecht, a licensed clinical psychologist in Washington State since 1971. He has served as a consultant to the Whatcom County Public Defender's Office since the early 1980s. Dr. Kleinknecht has testified in capital cases, although he had never testified in the sentencing phase of a death penalty case prior to Elmore's case. FOF at 21. Dr. Kleinknecht's postdoctoral work was primarily in neuropsychology, and he took classes in neurology. However, he did not believe his task in Elmore's case was to assess neuropsychological deficits. FOF at 22. Rather, he believed his task was to determine if Elmore suffered from a mental illness, whether he was competent to stand trial, whether he was insane, and whether he had diminished capacity. FOF at 22. Mr. Komorowski testified that he hired Dr. Kleinknecht to assist the trial team in communicating with Elmore. Mr. Komorowski wanted to know whether the communication difficulties he had experienced with Elmore stemmed from mental health deficiencies. FOF at 21-22.

¶ 12 Dr. Kleinknecht met with Elmore four times over a period of six months in 1995. He conducted a general screening to look for major mental disorders and on more than one occasion he administered the Minnesota Multiphasic Personality Inventory (MMPI). Dr. Kleinknecht was given information on Elmore's background, including work history, education, and family history of mental illness, significant hospitalizations, and clinical records. FOF at 22-23.

¶ 13 The MMPI did not reveal signs of a major mental disorder, schizophrenia, or psychotic-like disorders. According to Dr. Kleinknecht, if there were clinically significant brain damage, he would have expected it to manifest through difficulty in abstract thinking, poor memory, inability to use higher mental processes, and inability to hold objects. He found Elmore a reasonably good historian and found it significant that Elmore had been an automobile mechanic, which requires the ability to hold different parts in the mind at the same time and envision them operating together. FOF at 23-24. Dr. Kleinknecht did not observe any serious impairment in Elmore's cognitive skills, although he did not conduct specific tests. FOF at 24.

¶ 14 Dr. Kleinknecht was not given information about Elmore's lifelong exposure to neurotoxins or his series of head injuries. FOF at 23. According to Dr. Kleinknecht, if he had been given this information, he would have likely referred Elmore for neurotoxic testing. Neuropsychological testing is an accepted method for evaluating whether a person has functional neuropsychological deficits. Dr. Kleinknecht testified that meeting and talking to a person is not a perfect assessment tool for determining brain dysfunction. FOF at 25.

¶ 15 Dr. Kleinknecht referred the trial team to Dr. Ronald Roesch to follow up on his finding of antisocial personality disorder revealed in the MMPI results and to examine Elmore for possible psychopathy. FOF at 25. Dr. Ronald Roesch is a licensed clinical psychologist, a professor of psychology, and

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the director of the Mental Health Law and Policy Institute at Simon Frasier University. FOF at 25-26. Mr. Komorowski testified that he hired Dr. Roesch because of his background in forensics and in evaluating psychopathy and...