Petition of Jeffries
| Decision Date | 07 April 1988 |
| Docket Number | No. 53397-1,53397-1 |
| Parties | In the Personal Restraint Petition of Patrick James JEFFRIES, Petitioner. |
| Court | Washington Supreme Court |
Brian Reed Phillips, Everett, for petitioner.
David H. Bruneau, Clallam County Prosecutor, Port Angeles, for respondent.
State v. Jeffries, 105 Wash.2d 398, 717 P.2d 722, cert. denied, --- U.S. ----, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986), was this petitioner's direct appeal of his murder conviction. There we affirmed his conviction and death sentence. Then, we subsequently denied his first personal restraint petition without opinion. 1 In this, petitioner's second personal restraint petition, he raises yet additional matters and it is these which we address by this opinion.
The particulars of the murders committed by the petitioner are dealt with in our opinion on the direct appeal. The chronicle of events underlying this case commenced on January 15, 1983. It was then that the victims, a retired couple residing in Clallam County, opened their home to Patrick James Jeffries who had recently been released from a Canadian penal institution. They allowed Mr. Jeffries, the petitioner herein, to sculpt wood in their woodworking shop while he stayed with them. A little over 2 months later, the bodies of the victims were found buried in shallow graves near their home. They had been shot with .22 caliber bullets--the husband 7 times and the wife 10. At trial, a jury convicted the petitioner of two counts of aggravated murder in the first degree and he was sentenced to death.
The jury based the conviction on the following two statutory aggravating circumstances:
(7) The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime;
(8) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;
RCW 10.95.020 (part). The trial court instructed the jury on both of these aggravating circumstances and informed the jury that it could convict on either theory, so long as the verdict was unanimous. By special and general verdicts, the jury found petitioner guilty on both counts charged and under both aggravating circumstances.
At the penalty phase of the trial, the State's case in chief consisted of an opening statement and a motion to incorporate all of the evidence from the guilt phase of the trial. The trial court granted the motion. By a motion in limine, defense counsel was successful in keeping petitioner's After opening statements had been made in the penalty phase of the case, defense counsel called the petitioner's brother to testify as a witness. The brother identified several wood carvings petitioner had made. Defense counsel informed the court that several other potential defense witnesses were available, but that the petitioner did not want them to testify. As counsel explained:
extensive criminal record out of evidence. His motion for a directed verdict, however, was denied
To my client's steadfast belief that he's completely opposed to defense counsel offering any information by way of mitigation that goes towards, in his words, begging for leniency or mercy, these people were prepared to say things based on their knowledge and perceptions of the Defendant, however, as his counsel, we are willing to abide by his desires.
Thereupon the trial court itself engaged the petitioner in colloquy on the subject:
(Italics ours.)
Before the closing arguments of counsel at this phase of the case, the petitioner exercised his right of allocution under former CrR 7.1. 2 He utilized the occasion to tell the jury that the murder victims were his friends and that he did not kill them.
Then, during closing arguments at the penalty phase of the case, the prosecuting attorney made passing reference to post-sentencing procedures, including mention of the fact that the petitioner "will get appeals". By its special verdict at the close of that part of the case, the jury found that there were not sufficient mitigating circumstances to merit leniency. The trial court in due course sentenced the petitioner to pay the supreme penalty for his crimes.
Three principal issues are raised by this petition. In considering such issues, of course, we keep in mind that the central issue in a personal restraint proceeding alleging constitutional errors is whether the petitioner has shown that the alleged errors worked to the petitioner's actual and substantial prejudice. 3
ISSUE ONE. Did trial defense counsel fail to provide effective assistance of counsel by acceding to the petitioner's request not to present mitigating evidence at the penalty phase of the case?
ISSUE TWO. Did the trial court's instructions, and verdict forms used, permit the jury to reach a verdict in violation of the law's requirement that the verdict in a criminal case be unanimous?
ISSUE THREE. Did the prosecuting attorney commit prejudicial misconduct when, in closing argument, he referred to the defendant's right to appeal?
ISSUE ONE.
CONCLUSION. Petitioner was not denied effective assistance of counsel. Trial defense counsel very clearly exercised reasonable professional judgment in deciding what evidence to present.
In determining whether a criminal defendant has been denied effective assistance of counsel, we will consider the entire record, and then ask whether "it can be said that the accused was afforded effective representation and a fair and impartial trial." 4 To establish ineffective assistance of counsel, two independent showings must be made: first, that counsel's performance was deficient, and second, that the deficiency prejudiced the defense. 5 This 2-part test applies to both the penalty and guilt phases of the trial. 6
In this case, defense counsel located four witnesses who were willing and able to testify on behalf of the petitioner at the penalty phase of the trial. The witnesses were his brother, two nieces, and his Canadian parole officer. The petitioner, however, was flatly opposed to their providing any testimony, the only exception being that he would allow his brother to provide a testimonial foundation for admitting the petitioner's wood carvings into evidence. After discussion with the petitioner, defense counsel agreed to abide by his wishes and informed the court of their decision. As set forth above, the trial court closely questioned petitioner personally on the matter to ensure that this was the course he wanted to follow. Petitioner now claims he was denied effective assistance of counsel because defense counsel failed to present any mitigating evidence.
The United States Supreme Court recently considered a similar claim and held that because defense counsel's decision not to develop and present any mitigating evidence at a capital sentencing proceeding was supported by his "reasonable professional judgment", the defendant was not denied effective assistance of counsel. Burger v. Kemp, --- U.S. ----, ---- - ----, 107 S.Ct. 3114, 3125-26, 97 L.Ed.2d 638, 657-58 (1987). Relying on the guidelines contained in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court found no deficiency leading to a breakdown in the adversarial process. 7 In Burger, defense counsel chose not to call as witnesses the defendant's mother, an attorney who had befriended the defendant and a psychologist. They would have testified to the defendant's "exceptionally unhappy and unstable childhood." 8
Similarly, the evidence which was not presented in this case would have described the petitioner's childhood, work experience and contributions to art. Defense counsel's stated reason for failing to put the witnesses on the stand was to follow the petitioner's own wishes in the matter. It is also clear to us, however, that if the witnesses had testified, petitioner's extensive prior record of criminal convictions may well have been put before the jury in rebuttal, particularly had his parole officer testified. Almost certainly this real possibility entered into defense counsel's decision. As it was, defense counsel was successful in keeping petitioner's extensive criminal record out of evidence.
Even had defense counsel based his decision not to call the witnesses solely on petitioner's request, abiding by that request would not imply that reasonable professional judgment was absent. Obviously, defense counsel's judgment may include the wishes of a defendant.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.
Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, quoted in Burger, --- U.S. at ---- -...
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