In re Yates

• Decision Date: 14 March 2013
• Docket Number: No. 82101–1.,82101–1.
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint Petition of Robert Lee YATES, Jr., Petitioner.

177 Wash.2d 1

296 P.3d 872

In the Matter of the Personal Restraint Petition of Robert Lee YATES, Jr., Petitioner.

No. 82101–1.

Supreme Court of Washington, En Banc.

March 14, 2013.

Ronald Dean Ness, Attorney at Law, Port Orchard, WA, Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, Steven Witchley, Ellis Holmes & Witchley PLLC, Seattle, WA, for Petitioner.

Kathleen Proctor, Donna Yumiko Masumoto, Karen Anne Watson, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

Timothy Norman Lang, Paul Douglas Weisser, Attorney General's Office, Olympia, WA, for Other Parties.

OWENS, J.

¶ 1 This is Robert Yates's first personal restraint petition following our decision affirming his death sentence. Yates's petition includes 25 grounds for relief raising a host of legal issues, including jury summons and excusal procedures, ineffective assistance of counsel, juror bias, and public trial rights. None of Yates's claims of error clearly merit either oral review by this court or a reference hearing. Yates's personal restraint petition is therefore dismissed.

STATEMENT OF FACTS

¶ 2 The details of Yates's crime are adequately set forth in our opinion in State v. Yates, 161 Wash.2d 714, 728–33, 168 P.3d 359 (2007), and need not be restated in full here. In brief, in 2000 Yates pleaded guilty in Spokane County Superior Court to 13 counts of aggravated first degree murder and one count of attempted first degree murder. Id. at 732, 168 P.3d 359. As a result, he was sentenced to 408 years in prison. Id. In 2002, Yates was convicted of two counts of aggravated first degree murder in Pierce County and was sentenced to death. Id. at 732–33, 168 P.3d 359. We affirmed Yates's Pierce County conviction and death sentence in 2007. Id. at 794, 168 P.3d 359. Yates filed this timely personal restraint petition in 2008. Additional facts will be developed as necessary to address specific issues raised by Yates.

ISSUES PRESENTED ¹

¶ 3 1. Were Yates's constitutional rights violated by Pierce County's jury summons and excusal procedures and the rate of juror pay?

¶ 4 2. Does the process of death qualification violate the Washington Constitution?

¶ 5 3. Was Yates's right to a public trial violated?

¶ 6 4. Were Yates's constitutional rights violated based on juror misconduct?

¶ 7 5. Was Federal Bureau of Investigation Special Agent Mark Safarik's testimony admissible, and did trial and appellate counsel provide effective assistance on this issue?

¶ 8 6. Was Yates's right to effective assistance of counsel violated?

¶ 9 7. Was the jury unconstitutionally prevented from giving meaningful effect to Yates's mitigation evidence by the questions presented to the jury required by the death penalty statute (often called “the statutory questions”) or the prosecutor's argument, and did trial and appellate counsel provide effective assistance on this issue?

¶ 10 8. Did the State engage in improper argument regarding Yates's future dangerousness, and did Yates receive effective assistance of counsel on this issue?

¶ 11 9. Did this court properly conduct proportionality review on direct appeal, and is this court's method of proportionality review unconstitutional?

¶ 12 10. Is Washington's death penalty arbitrary in violation of the Eighth Amendment to the United States Constitution?

¶ 13 11. Does the cumulative error doctrine apply?

ANALYSIS

I. Rules Governing Review of a Personal Restraint Petition in a Capital Case

A. Standard of Review

¶ 14 When considering a timely personal restraint petition, courts may grant relief to a petitioner only if the petitioner is under an unlawful restraint, as defined by RAP 16.4(c). RAP 16.4(a). Additionally, the availability of collateral relief is limited in two ways. See In re Pers. Restraint of Davis, 152 Wash.2d 647, 670–72, 101 P.3d 1 (2004)( Davis I). First, “[t]he 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.” Id. at 671, 101 P.3d 1 (footnotes omitted). The interests of justice are served by reconsidering a ground for relief if there has been “an intervening change in the law ‘or some other justification for having failed to raise a crucial point or argument in the prior application.’ ” In re Pers. Restraint of Stenson, 142 Wash.2d 710, 720, 16 P.3d 1 (2001) (internal quotation marks omitted) (quoting In re Pers. Restraint of Gentry, 137 Wash.2d 378, 388, 972 P.2d 1250 (1999)( Gentry II)). A petitioner may not avoid this requirement “merely by supporting a previous ground for relief with different factual allegations or with different legal arguments.” Davis I, 152 Wash.2d at 671, 101 P.3d 1. Second, new issues must meet a heightened showing before a court will grant relief. For alleged constitutional errors, “[a] petitioner has the burden of showing actual prejudice ...; for alleged nonconstitutional error, he must show a fundamental defect resulting in a complete miscarriage of justice.” In re Pers. Restraint of Elmore, 162 Wash.2d 236, 251, 172 P.3d 335 (2007)( Elmore II). The petitioner must make these heightened showings by a preponderance of the evidence. See Davis I, 152 Wash.2d at 671–72, 101 P.3d 1.

B. Available Relief

¶ 15 We have three available options when reviewing a personal restraint petition: (1) dismiss the petition, (2) transfer the petition to a superior court for a full determination on the merits or a reference hearing, or (3) grant the petition. In re Pers. Restraint of Hews, 99 Wash.2d 80, 88, 660 P.2d 263 (1983); seeRAP 16.11(b), 16.12. Dismissal is necessary where a petitioner fails to make a prima facie showing of actual prejudice, for alleged constitutional errors; or, for alleged nonconstitutional errors, a fundamental defect resulting in a complete miscarriage of justice. See In re Pers. Restraint of Cook, 114 Wash.2d 802, 813–14, 792 P.2d 506 (1990). Granting the petition is appropriate if the petitioner has proved actual prejudice or a fundamental defect resulting in a complete miscarriage of justice. See In re Pers. Restraint of Pierce, 173 Wash.2d 372, 377, 268 P.3d 907 (2011); Hews, 99 Wash.2d at 88, 660 P.2d 263. Finally, a hearing is appropriate where the petitioner makes the required prima facie showing “but the merits of the contentions cannot be determined solely on the record.” Hews, 99 Wash.2d at 88, 660 P.2d 263;seeRAP 16.11(b).

¶ 16 To establish a prima facie showing required for a reference hearing, a petitioner must offer “the facts underlying the claim of unlawful restraint and the evidence available to support the factual allegations.” In re Pers. Restraint of Rice, 118 Wash.2d 876, 885–86, 828 P.2d 1086 (1992) ( PRP of Rice ). Mere “[b]ald assertions and conclusory allegations” are insufficient to justify a reference hearing. Id. at 886, 828 P.2d 1086. For “matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief”; if the “evidence is based on knowledge in the possession of others,” the petitioner may either “present their affidavits” or present evidence to corroborate what the petitioner believes they will reveal if subpoenaed.²Id. The corroboration must be more than mere speculation or conjecture. Id.

II. Claimed ErrorsA. Jury Summons and Excusal Procedures and Juror Pay (Claims 11–13) ³

¶ 17 Yates contends that his constitutional rights were violated by Pierce County's juror summons, excusal, and pay procedures. Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has a right to “a jury drawn from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The principle underlying this requirement is that the jury cannot serve its function “to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and ... professional or perhaps overconditioned or biased response of a judge” if “distinctive groups are excluded from the pool.” Id. at 530, 95 S.Ct. 692. At the same time, “[t]he fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.” Id. at 537–38, 95 S.Ct. 692.

¶ 18 A prima facie showing of violating the Sixth Amendment fair-cross-section requirement consists of three elements:

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). This is the challenger's burden. State v. Cienfuegos, 144 Wash.2d 222, 231–32, 25 P.3d 1011 (2001). If the challenger makes the prima facie showing, the State must demonstrate “a significant state interest.” Duren, 439 U.S. at 367–68, 99 S.Ct. 664. That interest must be “manifestly and primarily advanced by those aspects of the jury-selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.” Id.

¶ 19 Yates makes three claims alleging violation of the fair-cross-section principle of the Sixth and Fourteenth Amendments. Yates fails to establish a prima facie showing as to any of those three claims. In addition, Yates asserts an Eighth Amendment violation based on the same facts underlying his fair-cross-section claims. The Eighth Amendment claims are discussed together after discussion of the three Sixth Amendment claims.

1. Jury...