In re Marshall

• Decision Date: 22 May 2023
• Docket Number: 81659-4-I
• Parties: In the Matter of the Personal Restraint Petition of: STEVEN MAURICE MARSHALL, Petitioner.
• Court: Washington Court of Appeals

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In the Matter of the Personal Restraint Petition of: STEVEN MAURICE MARSHALL, Petitioner.

No. 81659-4-I

Court of Appeals of Washington, Division 1

May 22, 2023

UNPUBLISHED OPINION

CHUNG J.

Steven Marshall was convicted of murder in the first degree with a firearm enhancement and unlawful possession of a firearm in the second degree, which this court affirmed on direct appeal. He subsequently filed this personal restraint petition (PRP) claiming ineffective assistance of counsel based on representation before and during trial. He also argues that ineffective assistance should be presumed because of his attorney's subsequent resignation in lieu of discipline from the state bar association. Marshall fails to establish either that counsel was deficient or that he was prejudiced by counsel's representation. Therefore, we deny his petition.

FACTS

A jury found Marshall guilty of one count of murder in the first degree with a firearm enhancement and one count of unlawful possession of a firearm in the second degree for the murder of Ryan Prince. These convictions were affirmed by this court on direct appeal. State v. Marshall No. 76119-6-I (Wash.Ct.App. Mar. 25, 2019) (unpublished) https://www.courts.wa.gov/opinions/pdf/761196.pdf.

The underlying facts and procedural history were set out in Marshall's direct appeal as follows:

Ryan Prince helped Michael Helsel-Perkins (Perkins) build medical marijuana dispensaries and manage the dispensaries' employees. Prince lived with Perkins and Perkins's girlfriend, Chelsea Dew, at a house in Renton.

Dew . . . found Prince on the floor in his bedroom with a bloody face and blankets covering his body. Dew called 911. Prince was pronounced dead at the scene. Police collected a pair of broken Burberry-brand eyeglasses on the front porch which Dew testified did not belong to her, Perkins, or Prince. Both Marshall's brother and ex-wife testified that Marshall sometimes wore Burberry glasses. The only latent print on the glasses matched Marshall's thumb. Someone had removed the alarm system's DVR^[1] from the downstairs closet. Police found $27,000 in cash in Prince's backpack in his bedroom.

Police also found a 40-caliber bullet embedded in the bathroom closet, a 40-caliber shell casing just outside the house, a 22-caliber casing in a groove between planks on the porch and on the downstairs landing, a 380-caliber casing in the dining room, and a 40-caliber casing in the dining room. A medical examiner performed an autopsy on Prince and determined that he died from multiple gunshot wounds. She found four gunshot wounds and recovered three bullets from Prince's body.

Police found Prince's cell phone off the side of the road near his house. On Prince's phone they discovered a photograph of a vehicle taken at 8:10 p.m. the night of his murder. The license plate number belonged to a Chrysler PT Cruiser registered to Allison Sierra, Marshall's ex-wife. She testified that Marshall had been the full-time driver of the PT cruiser since September 2013. She stated that he had been driving it on February 14, 2014, when she last saw him before the incident.

On February 22, the police stopped and arrested Marshall while he was driving a Dodge Durango registered to a girlfriend, Shamarra Scott. Police seized "several" cellular phones from Marshall's person and another that was on the ground near the driver's door of the Dodge. They found a 40-caliber SIG Sauer handgun in a backpack on the front passenger seat. They also found an envelope, an identification card, and a prescription pill bottle with Marshall's name in this backpack. Marshall's DNA (deoxyribonucleic acid) was found on the magazine and ammunition inside the gun. Testing showed that this gun fired the 40-caliber bullet and shell casings found at Prince's house.

Police also searched the contents of Marshall's cell phones and the cell phone of Ryan Erker, Marshall's co-defendant. Marshall and Erker exchanged several text messages and calls with one another using these phones. Their text messages suggested that Erker was monitoring Perkins's dispensaries and attempting to locate his house. On February 6, 2014, Erker sent Marshall a message stating, "Brother, I think I've got the address we've been looking for! I'm having it checked tonight. . . . Keep your fingers crossed. This is the big one." On February 12, Erker texted Marshall, "We know where the honey pot is, so we got time, bro." Marshall responded, "Yeah. We'll put it off for another day. Let's shoot for tomorrow."

Cell tower evidence showed primarily Erker's phone and sometimes Marshall's phone connected to the tower closest to Prince's house periodically between February 7 and 17, 2014. Neither phone had connected to the tower closest to Prince's house before February 7. And neither phone connected to that tower after February 17. On February 17, between 8:00 p.m. and 8:40 p.m., Erker and Marshall placed multiple calls to each other. Each of their phones connected to the cell tower closest to Prince's house for some of these calls. At 8:13 p.m., both Erker's and Marshall's cellular numbers connected to the tower closest to Prince's house. Erker called Marshall several times between 8:37 p.m. and 8:41 p.m. All these calls connected to a tower west of the tower closest to Prince's house.

The jury found him guilty of first degree murder and returned a special verdict finding that he was armed with a firearm during the crime. At a bifurcated bench trial, the trial court found Marshall guilty of second degree unlawful possession of a firearm.

Marshall, No. 76119-6-I, slip op. at 2-5. The court sentenced Marshall to concurrent prison terms of 374 months for the murder and 16 months for the unlawful firearm possession, and an additional 60 months for the firearm enhancement which was run consecutively, for a total of 434 months in prison.

In his direct appeal, Marshall argued the court had violated his right to access the courts by refusing to hear pro se motions he had filed on his own behalf. Id. at 6-14. He claimed the court then erred by admitting testimony about his pro se motions in violation of ER 403. Id. at 14. He also alleged prosecutorial misconduct when the prosecutor elicited a lay witness opinion about Marshall's guilt. Id. at 15-20. In a statement of additional grounds, Marshall asserted that (1) the police conducted an illegal stop, seizure, and interrogation of his ex-wife, Allison Sierra; (2) Sierra's interrogation violated spousal privilege; (3) the State illegally intercepted his mail to and from the jail without a warrant; (4) trial counsel was deficient for not moving to suppress evidence from Sierra's cell phone; (5) trial counsel was deficient for not challenging a juror whose friend had died in a home invasion; (6) trial counsel was deficient for not requesting lesser-included offense instructions; and (7) a witness's testimony regarding a statement by Marshall's co-defendant violated his Sixth Amendment right to confront witnesses. Id. at 20-22.

On direct appeal, regarding his pro se motions, we held that Marshall had no right to "hybrid" representation or to file motions on his own behalf while represented by counsel, and also that he had not properly preserved his ER 403 claim. Id. at 12. We concluded that Marshall failed to object to the alleged prosecutorial misconduct and any misconduct was not so flagrant and ill- intentioned that it could not have been cured by a jury instruction. Id. at 19-20. We also rejected Marshall's additional grounds. Id. at 20-22.

Marshall's convictions became final on August 23, 2019. He timely filed this personal restraint petition on July 17, 2020.

DISCUSSION

This court will grant a personal restraint petition (PRP) if a petitioner is subject to unlawful restraint. RAP 16.4(a). Relevant to Marshall's PRP, restraint is unlawful if it violates the Constitution of the United States or the Constitution or laws of the State of Washington. RAP 16.4(c)(2). Relief by way of a collateral challenge to a conviction is extraordinary, and a petitioner must meet a high standard before this court will disturb an otherwise settled judgment. In re Pers. Restraint of Coats 173 Wn.2d 123, 132, 267 P.3d 324 (2011).

A collateral challenge may raise both constitutional and nonconstitutional errors. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335 (2007). For a PRP based on a constitutional error, a petitioner must show that a constitutional error occurred and the error resulted in actual and substantial prejudice. In re Pers. Restraint of Williams, 198 Wn.2d 342, 353, 496 P.3d 289 (2021). A petitioner who alleges unlawful restraint based on nonconstitutional error must demonstrate a fundamental defect resulting in a complete miscarriage of justice. Elmore, 162 Wn.2d at 251.

I. Issues Previously Addressed on Direct Appeal

As a general rule, a collateral attack on a criminal conviction cannot simply be a reiteration of issues resolved at trial or on direct appeal. In re Pers. Restraint of Gentry 137 Wn.2d 378, 388-89, 972 P.2d 1250 (1999). "The petitioner in a personal restraint petition is prohibited from renewing an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue." In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004). Instead, a PRP petitioner "should raise new points of fact and law that were not or could not have been raised in the principal action." Gentry, 137 Wn.2d at 388-89. A "new" issue is not created merely by supporting a previous ground for relief with different factual allegations or with different legal arguments. Davis, 152 Wn.2d at 671. Similarly, a petitioner cannot recast an issue previously resolved on direct...