State v. Schierman

• Citation: 192 Wash.2d 577,438 P.3d 1063
• Decision Date: 05 May 2015
• Docket Number: NO. 84614-6,84614-6
• Parties: STATE of Washington, Respondent, v. Conner Michael SCHIERMAN, Appellant.
• Court: Washington Supreme Court

192 Wash.2d 577

438 P.3d 1063

STATE of Washington, Respondent,

v.Conner Michael SCHIERMAN, Appellant.

NO. 84614-6

Supreme Court of Washington.

May 5, 2015

April 12, 2018

Suzanne Lee Elliott, Attorney at Law, 705 2nd Ave. Ste. 1300, Seattle, WA, 98104-1797, for Appellant.

Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, Erin Hairopoulos Becker, United States Attorney's Office, 700 Stewart St. Ste. 5220 Seattle, WA, 98101-4438, Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, for Respondent.

Margaret Ji Yong Pak, Enslow Martin PLLC, 701 5th Ave. Ste. 4200, Seattle, WA, 98104-7047, Sarah A. Dunne, U.S. Department of Education, 915 2nd Ave. Ste. 3310, Seattle, WA, 98174-1000, Nancy Lynn Talner, Attorney at Law, 901 5th Ave. Ste. 630, Seattle, WA, 98164-2008, Amicus Curiae on behalf of American Civil Liberties Union of Washington (ACLU).

GORDON McCLOUD, J.

¶1 Conner Schierman was convicted of four counts of aggravated first degree murder and sentenced to death. He appeals his convictions and sentences on multiple grounds. For the reasons given below, we affirm all of his convictions. As further discussed below, a majority of this court also rejects Schierman's challenges to his death sentence.

¶2 However, I would hold that two critical, erroneous evidentiary rulings during Schierman's penalty phase proceedings require reversal of that death sentence. That would ordinarily require a remand for a resentencing hearing. I therefore go on to conduct our court's statutorily required proportionality review. I conclude that imposition of the death penalty on Schierman violates our state statutory guaranty against disproportionate capital sentencing. For the reasons given in this opinion, I would reverse Schierman's death sentences and remand for imposition of the only statutorily permissible penalty: four consecutive sentences of life in prison without the possibility of parole.

FACTS

¶3 On the morning of July 17, 2006, officials responded to a fire at the home of Leonid and Olga Milkin, a married couple. When firefighters eventually extinguished the flames, they found the bodies of Olga, Olga's sister Lyuba, and Leonid and Olga's two young sons, Andrew and Justin. The women's bodies appeared to have been undressed or partially undressed at the time of the fire. At the time of the fire, Leonid¹ was stationed overseas. An investigation revealed that someone had used accelerants to set the fire, and autopsies revealed that each victim had been stabbed to death before the fire began.

¶4 On the morning of the fire, witnesses observed someone who looked like the defendant, Conner Schierman, carrying a gas can in front of the Milkin home. Police contacted Schierman and observed that he had scratches and cuts on his face, head, and neck. Schierman told them that he had intervened in a domestic dispute in the early morning hours of July 17 and had been hurt in the process. Police subsequently discovered a videotape of Schierman filling a gas can at a nearby AMPM on the morning of the fire. Eventually, Schierman agreed to come to the police station, where he made three taped statements.

¶5 In his third statement, Schierman admitted to being in the Milkin home. He said that he woke up on the morning of July 17 covered in blood, lying in an upstairs bedroom in the Milkins' home and unable to remember how he had gotten there. He stated that he walked around the house, discovered the four bodies, showered and changed his clothes, and decided to bum down the house.

¶6 That statement to police was largely consistent with a later statement that Schierman made to defense expert Dr. Andrew Saxon. Schierman told Dr. Saxon that he started drinking in the early evening of July 16, continued drinking all evening, and went into an alcoholic blackout

some time during that night. He said that he woke up bloody on a strange bed some time during the morning of July 17, and discovered a woman's body in a pool of blood. But Schierman also told Dr. Saxon that he moved the woman's body and continued to drink while he stayed in the house.

¶7 Eventually, forensic investigators discovered Schierman's DNA (deoxyribonucleic acid) in the Milkin home. Investigators also found a pair of gloves in the home, which a witness identified as belonging to Schierman. When Leonid was permitted to return to his house, he found a fire-damaged knife, which he did not recognize, in the remaining debris. Police discovered that Schierman had purchased an identical knife several months earlier. Leonid also discovered a pair of men's shoes, recovered from an undamaged section of the basement. Schierman had purchased an identical pair the previous November. Finally, police also found three empty vodka bottles in a backpack in Schierman's bedroom.

¶8 The State charged Schierman with four counts of aggravated murder in the first degree and one count of arson in the first degree. Jury selection began on November 13, 2009, and the jury panel was seated two months later, on January 12, 2010.

¶9 The guilt phase of the trial lasted another three months. The defense conceded that Schierman committed arson, but argued that he panicked and set fire to the house to avoid being accused of murders that he did not commit. Schierman was convicted as charged. The penalty phase lasted almost one month; the jury voted to impose the death penalty.

¶10 The facts relevant to each of Schierman's assignments of error are summarized in the appropriate section below.

GUILT PHASE ISSUES

I. Some of the Trial Court's Juror Eligibility Determinations Violated Schierman's Right To Presence (under the Sixth and Fourteenth Amendments and Article I, Sections 3 and 22); Any Error, However, Was Harmless

¶11 Schierman argues that two separate phases of juror selection violated his right to presence. The first phase to which he assigns error lasted from late September 2009 to mid-November 2009. During that time, counsel met with King County's jury services manager to review, and sometimes agree to, potential jurors' preliminary hardship excusal requests. Schierman was not present during these meetings.

¶12 The second phase of juror selection to which Schierman assigns error took place on January 12, 2010, the last day of voir dire. During this phase, counsel met with the trial judge in chambers, where counsel argued, and the judge ruled on, several for-cause juror challenges. Schierman was not present.

¶13 Schierman argues that excluding him from both phases violated his right to presence under the Sixth and Fourteenth Amendments to the United States Constitution, and article I, sections 3 and 22 of the Washington State Constitution. We conclude that he had no right to presence when his attorneys reviewed juror declarations in the nonadversarial setting of the jury administrator's office. We conclude that he did have a right' to presence during the hearing on for-cause challenges, but that the error does not require reversal. Because the facts concerning these proceedings are relevant to both the presence claim (discussed here) and the courtroom closure claim (discussed below), we describe those facts here.

A. Facts

1. Preliminary Excusals for Hardship (Late September to Mid-November 2009)

¶14 The documents in the record on this appeal show that in late September 2009, jury summonses were issued to 3,000 people, directing them to report for service on November 13, 2009. A summons recipient could respond by confirming that he or she would appear or by submitting a declaration that he or she was unqualified or unable to serve. The recipients were told that their responses were made under penalty of perjury. Judge Gregory Canova directed the jury services manager for King County, Gregory Wheeler, to review declarations of hardship with the prosecutor and defense counsel.

¶15 Per King County Superior Court's general policy, potential jurors could get hardship excusals for disability, age, a severe financial burden, or prior jury service, or because the potential juror was a single parent with young children not attending day care. Due to the anticipated length of Schierman's trial, it was also contemplated that jurors might be excused for reasons that normally warrant only a deferral, e.g., travel plans, employment, or school. Wheeler conducted a preliminary review of the potential juror responses and created two stacks of excusal requests: one for "those that were clearly meant to be excused per court policy" and one for "requests noting a hardship of a less-than-obvious nature." Clerk's Papers (CP) at 21347-48. He then met separately with the prosecution and defense regarding both categories of hardship request.

¶16 If everyone agreed that a declaration stated a "hardship" as defined by official court policy, Wheeler excused the potential juror without further review by the court. If the parties disagreed, Wheeler saved the disputed hardship request so that Judge Canova could review it at a hearing. This process went on between October 19 and November 6, 2009.

¶17 The particular proceedings from which Schierman claims he was excluded were the times when his lawyers, without the State's lawyers,² went to an administrative office in the courthouse to look at either hard copies of or a computer screen displaying summoned jurors' e-mailed hardship requests (for reasons not clear on this record, the screen could not be downloaded).³ Schierman says that he was never present at any of these early hardship excusal reviews or conferences. The State does not dispute that assertion. Schierman was present, however, at all the hearings over disputed hardship requests. Thus, there is no claim that Schierman was deprived of the right to presence at any court proceeding or at any noncourt adversarial proceeding. Instead, Schierman claims only that he was excluded from office visits where attorneys looked at a screen or...