Personal Restraint of Lord, Matter of

• Decision Date: 24 February 1994
• Docket Number: No. 60000-7,60000-7
• Citation: 123 Wn.2d 296,868 P.2d 835
• Parties: In the Matter of the PERSONAL RESTRAINT OF Brian Keith LORD, Petitioner.
• Court: Washington Supreme Court

Page 296

123 Wn.2d 296

868 P.2d 835

In the Matter of the PERSONAL RESTRAINT OF Brian Keith LORDPetitioner.

No. 60000-7.

Supreme Court of Washington En Banc.

Feb. 24, 1994.

As Amended March 10, 1994.

Mair, Camiel & Kovach, Peter A. Camiel; and Sheryl Gordon McCloud(appointed), Seattle, for petitioner.

C. Danny Clem, Pros.Atty., and Pamela B. Loginsky, Irene K. Asai, Jeffrey M. Wolf, and Donald J. Porter, Deputy Pros.Attys., Port Orchard, for respondent.

DURHAM, Justice.

PetitionerBrian Keith Lord brings this personal restraint petition (PRP) challenging his aggravated first degree murder conviction and death sentence.We deny the petition and remand for immediate issuance of a death warrant in accord with RCW 10.95.160(2).

Lord was convicted in 1987 of the rape, kidnapping, and aggravated first degree murder of 16-year-old Tracy Parker.The jury found insufficient mitigating circumstances to merit leniency, and Lord was sentenced to death.A summary of the pertinent facts can be found in State v. Lord, 117 Wash.2d 829, 822 P.2d 177(1991), cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112(1992).Lord's conviction and death sentence were affirmed.Lord, 117 Wash.2d at 837, 822 P.2d 177.Through new counsel, Lord now files this PRP and supplement which raises some 67 issues, many of which are repetitious of those rejected in his initial appeal.

After addressing the standard of review for personal restraint petitions, we will address each of Lord's new claims in chronological order, beginning with pretrial issues and continuing through the penalty phase.Pertinent facts will be set forth in connection with the particular issues to which they relate.The issues already considered in Lord's direct appeal will be dealt with last.

Before beginning our analysis of the substance of Lord's petition, however, we must comment on its scope.The PRP filed by Lord's appointed counsel is 387 pages long and includes a 430-page appendix.In response, the State filed a 333-page brief along with an additional 400 pages of appendix.Lord then filed a 50-page reply brief.These briefs are in addition to those filed on the direct appeal, as well as the numerous motions filed in connection with this action.

The "process of 'winnowing out weaker arguments ... and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy".Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434(1986)(quotingJones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987(1983)).Here, appointed counsel has thrown the chaff in with the wheat, ignoring their duty under RPC 3.1 to present only meritorious claims and contentions and leaving it for this court to cull the small number of colorable claims from the frivolous and repetitive.¹ In all, the 1,200-plus pages of briefing filed here far exceeds zealous advocacy and borders on abuse of process.We hereby provide notice that such behavior will not be tolerated in the future.

STANDARD OF REVIEW

As a threshold matter, it is important to note that a personal restraint petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue.In re Taylor, 105 Wash.2d 683, 688, 717 P.2d 755(1986).The petitioner may raise new issues, however, including both errors of constitutional magnitude and nonconstitutional errors which constitute a fundamental defect and inherently result in a complete miscarriage of justice.In re Cook, 114 Wash.2d 802, 812, 792 P.2d 506(1990);In re Hews, 99 Wash.2d 80, 87, 660 P.2d 263(1983).To obtain relief with respect to either constitutional or nonconstitutional claims, the petitioner must show that he was actually and substantially prejudiced by the error.In re Cook, 114 Wash.2d at 810, 792 P.2d 506;In re St. Pierre, 118 Wash.2d 321, 329, 823 P.2d 492(1992).To obtain an evidentiary hearing, the petitioner must demonstrate that he has competent, admissible evidence to establish facts which would entitle him to relief.In re Rice, 118 Wash.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344(1992).

PRETRIAL ISSUES

1. Information.Lord claims that the amended information is defective because it charges him, in one count, with aggravated first degree murder "and/or" first degree felony murder.Clerk's Papers (CP)(Mar. 15, 1988), at 200.Lord does not claim the information omitted any of the elements of either of these crimes.Rather, he claims the "and/or" language rendered the information invalid under State v. Golladay, 78 Wash.2d 121, 470 P.2d 191(1970).In a challenge to this information, Lord has the "burden ... to establish the charging document failed to notify him he might be convicted [of either felony murder or aggravated murder] and that the failure to so inform him prejudiced him in the preparation of his defense".In re St. Pierre, 118 Wash.2d at 329-30, 823 P.2d 492.

Golladay is not on point.The defendant there was accused of first degree murder committed with premeditated intent, and the information charged two different means of committing the offense.The jury returned a general verdict of guilty.This court reversed the conviction because there was insufficient evidence to support one of the means.However, aggravated first degree murder and first degree felony murder are not different means of committing the same offense, nor are they greater and lesser offenses.State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432(1988).They are, rather, two different offenses.Irizarry, at 593-95, 763 P.2d 432.Thus, for the jury to be instructed on both offenses, the State must include both charges in the information.Irizarry, at 594-95, 763 P.2d 432.This is precisely what the State did here.Neither separating the charges into two counts nor using "and" instead of "and/or" would have provided any additional or better notice to Lord or his attorney that Lord was accused both of felony murder and aggravated murder.

2.Death Penalty Notice.Lord claims the death penalty notice is invalid because it was filed the same day as the amended information charging him with aggravated first degree murder.Lord argues that the timing of the notice proves the Kitsap County Prosecutor does not exercise discretion in seeking the death penalty, but does so automatically upon the filing of an aggravated murder charge.²

This issue is patently frivolous.The decision to impose the death penalty requires the prosecutor to make the "subjective determination of whether there is 'reason to believe that there are not sufficient mitigating circumstances to merit leniency' ".In re Harris, 111 Wash.2d 691, 694, 763 P.2d 823(1988)(quotingRCW 10.95.040), cert. denied, 490 U.S. 1075, 109 S.Ct. 2088, 104 L.Ed.2d 651(1989).Although a policy of seeking the death penalty in every aggravated murder case would be an abrogation of that duty and, in that sense, an abuse of discretion, seeHarris, 111 Wash.2d at 693-94, 763 P.2d 823, Lord has made no showing that the Kitsap County Prosecutor does in fact seek the death penalty in every aggravated murder case.

3. Venue.Lord claims the trial court erred in changing venue from Kitsap County to Pierce County rather than to a county in eastern Washington where the victim's disappearance and murder had not been so heavily publicized.Lord's argument is without merit.The parties did not experience any publicity-related difficulty in selecting a jury in Pierce County.Few of the 55 prospective jurors who were questioned recalled any details about the case, and those who did generally recalled only the initial search for a missing girl.Most of the questioning on voir dire dealt with the jurors' attitudes toward the death penalty.Even with the challenges for cause granted on that issue, and the parties' 30 peremptory challenges, a panel of 12 jurors and 3 alternates was selected after questioning only 55 members of the venire.The trial court did not violate Lord's rights by holding the trial in Pierce County.SeeState v. Rupe, 108 Wash.2d 734, 750-52, 743 P.2d 210(1987)(capital defendant validly retried in Thurston County, where crime and first trial had both occurred), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934(1988).

4.Waiver of Presence.Lord claims he did not validly waive his right to be present during the April 28 and May 20, 1987, proceedings and during numerous unspecified in-chambers hearings and sidebar conferences.Lord also contends that a capital defendant cannot waive his right to be present and that, even if such waivers are permissible, the record does not show he made a knowing, intelligent, and voluntary waiver.

The core of the constitutional right to be present is the right to be present when evidence is being presented.United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486(1985)(per curiam).Beyond that, the defendant has a "right to be present at a proceeding 'whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge....' "Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484(quotingSnyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575(1934)).The defendant therefore does not have a right to be present during in-chambers or bench conferences between the court and counsel on legal matters, United States v. Williams, 455 F.2d 361(9th Cir.), cert. denied, 409 U.S. 857, 93 S.Ct. 140, 34 L.Ed.2d 102(1972), at least where those matters do not require a resolution of disputed facts.People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836(1992)(right to be present during hearing on admissibility of prior conviction).

All of the proceedings during which Lord was absent meet that description.During the pretrial hearing on April 28,...