Opinion

Harris by and Through Ramseyer v. Blodgett

853 F. Supp. 1239
1994 WL 195371

Court: District Court, W.D. Washington
Filed: May 17, 1994
Status: Published
Author: Bryan
On the bench: Bryan
Cited by: 45 cases
Authority: More cited than 91.0%

overturning a sentence of death in part because the sentence violated the federal constitution and our proportionality statute

How later courts described this case

overturning a sentence of death in part because the sentence violated the federal constitution and our proportionality statute
deciding that the “failure to object to improper prosecutorial argument” did not create “a reasonable probability that, but for [the] deficiency, the result ... would have been different”
granting relief solely on the basis of ineffective assistance of counsel
“The duty to investigate is not eliminated by the client’s own conclusions or admissions of guilt, because the client’s beliefs may not coincide with the necessary elements of proof to establish guilt in law.”

Written by the judges who cited it.

The opinion

AMENDED

DECISION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW; and ORDER GRANTING WRIT OF HABEAS CORPUS

BRYAN, District Judge.

INDEX TO DECISION

Introduction. 1247

Factual and Procedural Background. 1248

Issues Presented . 1251

Standard of Review. 1252

Discussion of Issues. 1253

ISSUE

1. Whether Harris received effective assistance of counsel before trial, during trial, and on post conviction proceedings, including appeal 1253 The Standard for Effective Assistance of Counsel. 1253

1. Deficiency of Performance. 1254

2. Prejudice to Defense. 1254

Ground A. Counsel did not conduct a thorough investigation of facts surrounding the charge and possible defenses. 1255

Counsel failed to adequately prepare for trial. 1255 Ground B.

Counsel failed to adequately consult with his client and to inform him on important issues and decisions regarding his defense. 1258 Ground C.

Counsel failed to investigate Harris’s mental and emotional status, including mental capacity and incompetence to stand trial. 1259 Ground D.

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Ground E. Counsel failed to challenge admissibility of Harris’s Statements . 1261

Ground F. Counsel failed to properly protect Harris’s rights when the October 22, 1984 statement was made and admitted at trial, and during Harris’s testimony during the guilt phase ... 1261

Ground G. Counsel should have attempted to mitigate with prosecutor before the prosecutor decided to seek the death penalty 1264

Ground H. Counsel failed to conduct proper voir dire. 1264

Ground I. Counsel failed to object to inadmissible evidence. 1265

Ground J. Counsel failed to develop a viable defense strategy. 1265

Ground K. Counsel failed to propose, or except to, jury instructions .. 1266

Ground L. Counsel failed to object to improper comments by prosecutor during closing arguments in penalty phase. 1267

Ground M. Counsel’s closing argument in the guilt phase was deficient 1267

Ground N. Counsel failed to present available evidence during penalty phase. 1268

Ground O. Counsel failed to raise or preserve meritorious issues in appellate proceedings. 1271

Ground P. Counsel failed to advise Harris of a conflict of interest.... 1271

ISSUE NO. 2. Whether the admission of prior convictions in 1969 for manslaughter and assault during the penalty phase violated petitioner’s right to due process. 1274

ISSUE NO. 3. Whether Washington’s capital punishment statute is unconstitutional because it allows consideration of an unconstitutionally obtained prior conviction during the penalty phase. 1277

ISSUE NO. 4. Whether petitioner’s incompetency prevented a fair trial. 1278

ISSUE NO. 5. Whether the state failed to disclose exculpatory evidence. 1280

ISSUE NO. 6. Whether Harris’s constitutional rights were violated when his pretrial statement of October 22,1984 was made and admitted at trial 1281

ISSUE NO. 6a. Whether Harris properly waived his Fifth Amendment right to remain silent. 1282

ISSUE NO. 7. Whether Harris’s Fifth Amendment right against self incrimination was violated by the admission, at trial, of statements made by Harris to police during the investigation. 1283

ISSUE NO. 8. Whether the prosecutor’s decision to seek the death penalty denied Hams due process, equal protection, and was cruel and unusual punishment. 1284

ISSUE NO. 9. Whether, during closing arguments in the penalty phase, the prosecutor committed error by attempting to minimize the jury’s sense of responsibility for punishment. 1285

ISSUE NO. 11. Whether the Washington State Supreme Court performed an inadequate proportionality review, thereby violating petitioner’s due process rights. 1286

ISSUE NO. 16. Whether there is any constitutional infirmity resulting from the disparity of Harris’s death sentence and his co-defendant’s acquittal . 1291

ISSUE NO. 17. Whether the inconsistent verdicts are unconstitutional. 1292

ISSUE NO. 18. Whether Jury Instructions No. 2 and 5, given during the penalty phase, erroneously encouraged the jury to reach a unanimous verdict on all issues. 1292

ISSUE NO. 19. Whether death by hanging is unconstitutional as cruel and unusual punishment. 1293

ISSUE NO. 20. Whether the requirement that petitioner choose between methods of execution is unconstitutional as cruel and unusual punishment 1293

CONCLUSION 1293

LEGEND

I. STATE COURT RECORD

Yol.. “Volume”

CP. .“Clerk’s Papers”

VRP.. ‘Verbatim Report of Proceedings”

Plaintiffs Ex. ..“State Trial Exhibits”

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II. U.S. DISTRICT COURT RECORD

Evid.TR..“Testimony of Murray Anderson”

Parkhurst Evid.TR..“Testimony of Sgt. Parkhurst”

Stip. Facts No...“Stipulation of Facts, Appendix A.”

Cease Dep. ..“Deposition of Richard Cease”

Haist Dep... “Deposition of Thomas Haist”

THIS MATTER comes before the court on Benjamin A. Harris’s Petition for Writ of

Habeas Corpus.

The court has considered all pleadings filed in support of and in response to the petition, the evidence adduced at an evidentiary hearing held on Monday, December 20, 1993, including the depositions of Thomas Haist, Richard Cease, John Pet-rich, M.D. and Allen W. Traywick, Ph.D. The court heard oral arguments of counsel at that hearing and at prior hearings on motions. The court also considered the state court record filed herein, Volumes 1 to 12, trial exhibits, and the U.S. District Court file. The parties entered into a Stipulation of Facts with accompanying documents, filed on October 25, 1993, which is fully incorporated herein by this reference. The Stipulation is attached hereto as Appendix A.

INTRODUCTION

This is not a search for legal technicalities. It is not a search for justification to take, or save, a life. It is not a case about the legal, moral, or social implications of the death penalty. It is not a review of a state case for simple legal error. Neither the question of Harris’s guilt nor the advisability of a death sentence will be reexamined here.

This is a review of a state proceeding to determine if federal constitutional requirements were met, and to determine the affect of any constitutional violations on the state proceedings. It is appropriate, under the law, to undertake this procedural review for any person who has lost freedom as a result of a criminal conviction in any court in the United States. Even if petitioner is guilty in fact, and even if he should be put to death, American law says that such a conviction and sentence will not stand unless, and until, the conviction and sentence are determined to be in accord with the U.S. Constitution.

The writ of

habeas corpus

was first written into English law in 1679, although it existed informally before that time.

See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d,

Sec. 4261 at 271 (citations omitted). The writ may be sought in any situation where an individual challenges another’s authority to restrain his or her liberty. Commonly referred to as “The Great Writ,” it has been declared “both the symbol and guardian of individual liberty.”

Peyton v. Rowe,

391 U.S. 54, 58 , 88 S.Ct. 1549, 1551 , 20 L.Ed.2d 426 (1968) (citations omitted).

Modern federal procedure for a writ of

habeas corpus

is codified in 28 U.S.C. Sec. 2241 ,

et seq.

As a result of its development in American law, the writ has three primary characteristics: First, it is largely used to provide post-conviction relief. Second, it requires

“prompt

adjudication of the validity of the challenged restraint.”

Peyton,

391 U.S. at 59 , 88 S.Ct. at 1552 (citations omitted). Third, the federal courts are authorized to look behind the state court record, and may conduct a fact finding hearing to determine the merits of alleged constitutional violations.

Id.

(citations omitted).

Legal scholars have long debated the merits of a procedure whereby a federal court can examine into a state court system’s adjudication of an individual’s crimes and sentence:

Support for broad federal habeas review stems from our devotion to individual justice, the symbolic value of the writ as the hallmark of democracy under law, the safety-valve effect of providing an additional forum for testing constitutional claims as well as a belief that the federal judiciary is often in the best position to further these interests. Arguments against broad application of the writ include its tendency to foster inefficient, repetitive judicial consideration of the same issue. The writ’s interference with finality in the criminal process together with the lack of comity inherent in federal district court review of the

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decisions of a state supreme court also weigh against widespread application of the writ.

Allen, Schachtman & Wilson, Federal Habe-as Corpus and Its Reform: An Empirical Analysis,

13 Rutgers L.J. 675 , 678 (1982). This court does not intend to continue the debate, or to comment on the worthiness of either position.

When a person’s life may be taken, an exacting constitutional scrutiny is required. The U.S. Supreme Court has demanded that the review “aspire to a heightened standard of reliability.... This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.”

Ford v. Wainwright,

477 U.S. 399, 411 , 106 S.Ct. 2595, 2602 , 91 L.Ed.2d 335 (1986).

Constitutional provisions at issue in this case include the accused’s right to have the effective assistance of counsel for his defense (Sixth Amendment); the accused’s right to refuse to be a witness against himself (Fifth Amendment); the accused’s right to a fair trial and to due process of law (Fifth and Fourteenth Amendment); the accused’s right to equal protection of the laws (Fourteenth Amendment); and the accused’s right to be free from the infliction of cruel and unusual punishment (Eighth Amendment).

FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Court History

This statement summarizes the historical facts and events in this case to the present. It is not intended to be an exhaustive statement of all significant facts but sets the stage for more detailed fact-finding and discussion.

In the early morning hours of June 14, 1984, the body of Jimmie Lee Turner was found outside 2134 South Hosmer, Tacoma, Pierce County, Washington. Vol. 3, CP 978. An information filed on July 27,1984 charged Gregory Lee Bonds with aggravated murder in the first degree. Vol. 3, CP 979. Benjamin Harris was arrested as a material witness on July 30, 1984. Vol. 3, CP 984, 989. He was released on his personal recognizance after administrative booking and was ordered to make daily contact with Tacoma Police Officers Antonson or Parkhurst. Vol. 3, CP 989. Harris was taken to the Calico Cat Motel by Tacoma Police officers for security. Vol. 3, RP 30. Harris took two polygraph examinations given by agents of the Tacoma Police Department, on August 7, 1984 and on August 8,1984. Vol. 2, VRP 31. Harris was arrested immediately following the second polygraph examination. Vol. 1, VRP 32.

On August 10, 1984 Benjamin Harris appeared in court and an amended information was filed, charging Harris and Bonds with aggravated murder in the first degree. Vol 1, CP 1013-14. Counsel was appointed to represent Harris on August 13,1984. Vol. 3, CP 1018. On August 16, 1984, the Prosecuting Attorney filed a Notice of Special Sentencing Proceeding to Determine Whether the Death Penalty Should be Imposed on Harris. Vol. 3, CP 1019. The Prosecuting Attorney noted in this document that “Presentation of mitigating circumstances is the responsibility of the defendant.

See State v. Bartholomew,

101 Wash.2d 631, 643 , 683 P.2d 1079 (1984). No mitigating circumstances have been brought to the attention of this office.” Vol. 3, CP 1020. A duplicate, but separate, notice was also filed for Bonds. Trial for both defendants was set for September 24, 1984.

On August 28, 1984, counsel for Bonds filed a motion for severance. Vol. 3, CP 1042-49. Harris joined in that motion. Vol. 3, CP 1058-60. At the same time, the state filed a motion to set aside a trial continuance that had been obtained by counsel for Bonds. (The trial date for Bonds had been continued to November 12, 1984.) On September 26, 1984, the trial court denied the state’s motion to set aside Bonds’ continuance and granted the defendants’ motion for severance. Vol. 3, CP 1125-27. Harris’s trial was continued to October 15, 1984. Vol. 3, CP 1083.

A hearing was held on September 20,1984 pursuant to Washington Superior Court Criminal Rule 3.5 (commonly referred to as a “CrR 3.5 hearing”). The hearing was to determine the admissibility of oral statements made by Harris before his arrest, and

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statements in letters he sent to Sgt. Park-hurst of the Tacoma Police Department after his arrest. The court orally ruled that all statements, oral and written, which were the subject of the hearing, were voluntary and admissible at trial. Vol. 3, CP 1088. Formal findings of fact and conclusions of law were entered on October 18,1984, four days before trial. Vol. 3, CP 1169-73. Therein, trial court formally ruled that all statements made by Harris were freely and voluntarily made, that when the investigation focused on Harris, he was properly advised of his

Miranda

rights, and that all letters sent by Harris to Sgt. Parkhurst before and after- his arrest were voluntary and unsolicited by Parkhurst. The court further ruled that all statements and letters were admissible at trial. Vol. 3, CP 1173.

On September 28, 1984, Harris’s counsel filed a motion for a mental examination of Harris, with a supporting affidavit and memorandum of authorities. U.S.D.C., Ex. 1; Vol. 3, CP 1133-41. Counsel’s affidavit de-tañed extensive difficulties in communicating with Harris, and significant concern regarding his ability to assist in his defense. The motion was granted. Vol. 3, CP 1145-46. The court appointed qualified members of the staff of Western State Hospital to examine and diagnose Harris’s mental condition and to report to the court as specified in RCW 10.77.060. The report was to contain an opinion as to Harris’s capacity to understand the proceedings against him and to assist in his defense, whether he perceived the moral qualities of the acts with which he was charged, and whether further examination and testing was required.

Id.

This was not an independent defense examination. Harris was transferred to Western State Hospital for the examination.

On October 8, 1984, Harris was returned to the Pierce County Jaü and the results of examining team at Western State Hospital were disclosed. Vol. 3, CP 1158-59. A letter opinion was filed in the trial record and stated that the defendant was competent to stand trial, was able to assist in his defense, was aware of the charges against him, was able to perceive the nature and quality of his act at the time of the alleged offense, and did not require future testing or evaluation. Vol. 3, CP 1159. The opinion did not address diminished capacity, general mental and emotional status, nor other matters that could have assisted counsel in defending a capital case. Counsel learned after the guilt phase but before the penalty phase that some of the testing done was not scored and was not included in the opinion. Vol. 3, CP 1196-98.

On October 11, 1984, Harris’s counsel filed a motion for continuance of the trial and for examination of the defendant by his own expert. Vol. 3, CP 1162-63. On October 17, 1984, an order was entered granting a trial continuance from October 15, 1984, to October 22, 1984. In the order, the court found that Harris’s counsel was engaged in another ongoing criminal trial and that the defendant desired to be evaluated by an expert of his own choosing. Vol. 3, CP 1167-68. The court record does not reflect any further order regarding evaluation of Harris by his own expert. The issue of funding was not raised by defense counsel. Harris was not examined by the independent expert before trial.

On the morning of October 22, 1984, the day set for trial, Harris, at the suggestion and recommendation of counsel, met with prosecuting attorneys and police officers. Evid.TR 20-21. Harris was accompanied by his counsel, and gave a recorded, detaüed statement of his version of the events, including an admission that he fired one of the two fatal shots at Turner. Vol. 1, VRP 69-92; Plaintiffs Trial Ex. 14. Trial began in the afternoon of October 22, 1984 and continued to the morning of October 26, 1984. A verdict of guñty to the charge of aggravated murder in the first degree was entered by the jury in the afternoon of the same day. Vol. 3, CP 1178. The penalty phase was scheduled to begin on the morning of October 31, 1984.

The penalty phase was held on October 31, 1984, lasting from 9:40 a.m. to 11:02 a.m. Vol. 3, CP 1195. The jury returned with its verdict, finding “no sufficient mitigating circumstances to merit leniency” in the afternoon of the same day. Vol. 3, CP 1190,1195. Sentencing was set for November 5, 1984.

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Harris filed a motion in arrest of judgment or, in the alternative, for a new trial on November 5, 1984. Vol. 3, CP 1196-98. Sentencing was continued to November 19, 1984. Vol. 3, CP 1199. The motion for a new trial focused on the fact that, because certain diagnostic data was not scored by the evaluators at Western State Hospital, Harris’s mental examination was incomplete. The defendant argued that this data may have contained relevant information on Harris’s competency to stand trial and on mitigating factors regarding his mental state when the crime was committed. Vol. 3, CP 1196-98. The- deposition of Dr. Kathleen Mayers was ordered and the hearing on the motion was set over to December 10, 1984. Vol. 4, CP 1507. An order was entered requiring the defendant to make an offer of proof regarding evidence of a mental disturbance before the December 10th hearing. The order also granted defendant’s request to authorize Dr. Allen W. Traywick and Dr. Mayers access to the Pierce County Jail for further testing and evaluation of Harris. Vol. 4, CP 1517-18.

On November 13, 1984, Bonds’ trial began, starting with pretrial motions. Vol. 4, CP 1533. On November 26, 1984, Harris testified for the state. The record does not reflect that any accommodations were offered to Harris in exchange for his testimony. The jury returned a verdict of not guilty on December 6, 1984. Vol. 4, CP 1564-65.

The hearing on Harris’s motion for a new trial was again continued to December 26, 1984, due to scheduling conflicts. Vol. 4, CP 1571-72. The hearing was then again set over to January 9, 1985, to allow preparation of the deposition transcript of Dr. Traywick. Vol. 4, CP 1576. After hearing, the motion was denied and formal Findings of Fact and Conclusions of Law were entered on January 21, 1985. Vol. 4, CP 1662-67. The court found that the defendant had the opportunity to obtain his own psychological expert to evaluate his mental condition before trial and failed to do so. The court further found that the testimony of Ray Meeks was the essentially the same in both the Harris and the Bonds trials, and the acquittal of Bonds had no relevance to the Harris case.

Id.

Judgment and Sentence of death was entered on January 14, 1985. Vol. 4, CP 1578-80. The trial judge, as required by RCW 10.95.120, completed and filed the “Report of the Trial Judge” on January 15, 1985. Vol. 4, CP 1648-60.

B. Appellate History

A Notice of Appeal to the Washington Supreme Court was filed on February 11, 1985. Vol. 4, CP 1670. Trial counsel was appointed for the appeal. Vol. 4, CP 1679. In a published opinion,

State v. Harris,

106 Wash.2d 784 , 725 P.2d 975 (1986), the Washington Supreme Court affirmed the conviction and the death sentence. The opinion included the mandatory death sentence review required by RCW 10.95.100. 106 Wash.2d at 789, 797-99 , 725 P.2d 975 . The first death warrant was entered on December 15,1986. Vol. 5, CP 1917. New counsel was appointed for Harris on February 23, 1987, Vol. 6, CP 2264. A petition for writ of

certiorari

was filed in the U.S. Supreme Court Vol. 6, CP 2267-2304 and was denied by that court on March 23,1987. Vol. 6, CP 2305.

Harris filed his first state personal restraint petition in the Washington Supreme Court on September 7, 1987, raising numerous issues. Vol. 7, CP 2332-2690. His petition was denied in

In re Harris,

111 Wash.2d 691 , 763 P.2d 823 (1988). Vol. 8, CP 3022-49. Harris filed a second state personal restraint petition on December 2, 1988, attacking the constitutional validity of his guilty plea to the 1969 manslaughter charge. On December 8, 1988, counsel for Harris filed a motion to stay further proceedings pending determination of competency and for appointment of a mental health professional to examine Harris. Vol. 8, CP 3069-76. The Washington Supreme Court issued an order on March 8, 1989,

inter alia,

denying the motion for stay, authorizing the appointment of a mental health professional, and denying the second personal restraint petition without prejudice. Vol. 8, CP 3089-90.

A second petition for writ of

certiorari

was filed in the U.S. Supreme Court and was denied on May 15, 1989. Vol. 8, CP 3098. Harris refiled his second state personal re

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straint petition [third petition in chronological order], raising the identical issues, on May 19, 1989. Vol. 11, CP 3996-4008. The Washington Supreme Court denied the petition with prejudice on May 10,1990. Vol. 11, CP 4024-25. Petitioner’s motion for reconsideration was denied by the court on June 7, 1990. Vol. 11, CP 4103-04.

On May 30,1989, a hearing was held in the trial court to set a date for execution, and to determine if Harris was competent to be executed. Vol. 9, VRP 3151-3233. Harris presented evidence and argument that he was not competent to be executed. At the conclusion of the hearing, the court found the defendant competent to be executed and an execution date was set for July 11, 1989. Vol. 9, VRP 3231-32. The death warrant was entered on May 30, 1989. Vol. 9, CP 3287. Notice of appeal to the Washington Supreme Court was filed on June 2, 1989. Vol. 9, CP 3286. On June 15, 1989, oral argument was heard by the trial court on Harris’s motion to vacate the order setting execution date. Vol. 9, CP 3234-83. The motion was denied at the conclusion of the hearing. Vol. 9, CP 3282.

Harris filed a motion for stay of execution pending appeal/personal restraint petition and petition for discretionary review on June 20,1989. Vol. 9, CP 3295-3374. On June 30, 1989, the Washington Supreme Court granted the petition for discretionary review and set the matter for oral argument on September 26, 1989. Vol. 9, CP 3439-41. Along with the appeal, counsel for Harris filed a third state personal restraint petition [fourth petition in chronological order] to the Washington Supreme Court on July 24,1989. Vol. 10, CP 3446-3521. This petition attacked the validity of the competency hearing held in the trial court oh May 30, 1989.. The Supreme Court denied the petition and appeal in a published opinion,

State v. Harris,

114 Wash.2d 419 , 789 P.2d 60 (1990). Vol. 10, CP 3953-92.

Harris filed a fourth state personal restraint petition [fifth petition in chronological order], raising an issue of improper jury instructions in the sentencing phase, pursuant to

Mak v. Blodgett,

970 F.2d 614 (9th Cir.1992). Vol. 12, CP 4105-35. In an unpublished order, the Washington Supreme Court denied that petition on March 16,1993, as an abuse of the writ. Vol. 12, CP 4180-84. On March 16, 1993, petitioner’s state remedies were thoroughly exhausted.

C. Federal Court History

On June 13, 1989, Harris filed a petition for writ of

habeas corpus,

a motion for stay of execution, and other administrative motions in United States District Court for the Western District of Washington. The matter was assigned to the undersigned judge. Oral argument on the motion for stay of execution was heard on June 22, 1989. The court orally granted the motion for stay. A written order of stay was entered on July 6,1989, delaying further federal proceedings until final resolution of the third state personal restraint petition/appeal pending before the Washington Supreme Court.

In July, 1990, the court was advised by Harris’s counsel that he was concerned that Harris could not understand, and assist with, the federal habeas corpus proceedings because of his mental condition. After consideration of memoranda from both parties on the issue of competency, the court granted petitioner’s motion for appointment of an expert and ordered an evidentiary hearing. The hearing was held on September 20,1990. Findings of Fact and Conclusions of Law were entered on November 21, 1990, determining that Harris was not competent to litigate his

habeas

petition without assistance. A Guardian ad Litem was appointed for Harris.

These proceedings were again stayed on August 24, 1992 to allow the Washington Supreme Court the opportunity to consider petitioner’s fourth state personal restraint petition. Proceedings in this court resumed following the final exhaustion of Harris’s state remedies by the decision of the Washington Supreme Court on March 16, 1993.

ISSUES PRESENTED

Harris’s petition for

habeas corpus

presents the following issues:

1. Whether Harris received effective assistance of counsel before trial, during trial,

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and on post conviction proceedings, including appeal.

2. Whether the admission of Harris’s 1969 convictions for manslaughter and assault during the penalty phase violated his constitutional right to due process.

3. Whether Washington’s capital punishment statute is unconstitutionally defective because it allows consideration of an unconstitutionally obtained prior conviction during the penalty phase.

4. Whether Harris’s incompetency prevented a fair trial.

5. Whether the state failed to disclose exculpatory evidence to defense counsel.

6. Whether Harris’s constitutional rights were violated when his pretrial statement of October 22, 1984 was made, and when it was admitted at trial.

6a. Whether Harris properly waived his Fifth Amendment protection against self incrimination during the guilt phase.

7. Whether Harris’s Fifth Amendment right against self incrimination was violated by the admission, during the guilt phase, of statements made by Harris to police during the investigation.

8. Whether the state’s decision to seek the death penalty denied Harris due process and equal protection, and constituted cruel and unusual punishment.

9. Whether, during closing arguments in the guilt phase, the prosecutor committed error by attempting to minimize the jury’s sense of responsibility for Harris’s punishment.

11. Whether the Washington Supreme Court performed an inadequate proportionality review, thereby violating Harris’s due process rights.

16. Whether there is any constitutional infirmity resulting from the disparity of Harris’s death sentence and his co-defendant’s acquittal.

17. Whether the inconsistent verdicts are unconstitutional.

18. Whether Jury Instructions No. 2 and 5, given during the penalty phase, erroneously encouraged the jury to reach a unanimous verdict on all issues.

19. Whether death by hanging is unconstitutional as cruel and unusual punishment.

20. Whether the requirement that Harris choose between methods of execution is unconstitutional as cruel and unusual punishment.

STANDARD OF REVIEW

General Standard for Federal Review of State Court Proceedings

Habeas corpus relief is available to “persons whom society has grievously wronged and for whom belated liberation is little enough compensation.”

Fay v. Noia,

372 U.S. 391, 441 , 83 S.Ct. 822, 850 , 9 L.Ed.2d 837 (1963). For petitioners, such as Harris, who are in custody pursuant to a state court judgment of conviction, a writ of habeas corpus may be granted by a federal court if the petitioner can show “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. Sec. 2254 (a). The court is directed to “dispose of the matter as law and justice require.” 28 U.S.C. See. 2243.

A petitioner is entitled to habeas relief if unconstitutional trial error is found to have “had substantial and injurious effect or influence in determining the jury’s verdict ... and resulted in ‘actual prejudice’.”

Brecht v. Abrahamson,

— U.S.-, 113 S.Ct. 1710, 1712 , 123 L.Ed.2d 353, 373 (quoting

United States v. Lane,

474 U.S. 438, 449 , 106 S.Ct. 725, 732 , 88 L.Ed.2d 814 (1986)). Other unconstitutional errors are found “in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” “The existence of such defects — deprivation of the right to counsel, for example — requires automatic reversal because they infect the entire trial process.”

Brecht, Id.

at 367, 113 S.Ct. at 1717 (quoting

Arizona v. Fulminante,

499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)).

Before coming to federal court, the petitioner is required to exhaust all remedies available in the state courts by raising all issues which support his contention that he is in custody illegally. 28 U.S.C. Sec. 2254 (b)

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and (c). Harris has exhausted his state remedies on all issues. In fact, this proceeding has been much delayed while he did so.

Findings of fact, made by either the state trial court or state appellate court after a full, fair, and adequate hearing, are presumed to be correct and are binding on the federal court. 28 U.S.C. Sec. 2254 (d).

Sumner v. Mata,

449 U.S. 539, 546 , 101 S.Ct. 764, 768-69 , 66 L.Ed.2d 722 (1981). Factual findings may be determined in federal court, or may be set aside in federal court, in certain circumstances enumerated in 28 U.S.C. Sec. 2254 (d). Several of those circumstances are applicable in this case. In pertinent part, the statute states as follows:

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the fact finding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concluded that such factual determination is not fairly supported by the record: ...

The burden falls on the petitioner to show by convincing evidence that any factual determinations made by the state court are erroneous. 28 U.S.C. Sec. 2254 .

The statutory presumption of correctness does not apply to purely legal questions or mixed questions of law and fact.

Chaney v. Lewis,

801 F.2d 1191, 1194 (9th Cir.1986) (citations omitted);

Sumner v. Mata,

455 U.S. 591, 597 , 102 S.Ct. 1303, 1306-07 , 71 L.Ed.2d 480 (1982) (and citations in n. 9). Legal questions and mixed questions of law and fact, including the determination of the legal and/or constitutional effect of factual findings, are entitled to a complete and independent

de novo

review.

Chaney v. Lewis,

801 F.2d at 1194-95 (and cases cited therein);

Sumner v. Mata,

455 U.S. at 597 , 102 S.Ct. at 1306-07 . “In deciding this question [mixed questions of law and fact], the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard.”

Sumner v. Mata, id. See also Reiger v. Christensen,

789 F.2d 1425 (9th Cir.1986). An example of a mixed question of law and fact is the determination of effective assistance of counsel, a major question presented in this case.

Reiger v. Christensen,

789 F.2d at 1428 ;

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

DISCUSSION OF ISSUES

ISSUE NO. 1. Whether Harris received effective assistance of counsel before trial, during trial, and on post conviction proceedings, including appeal.

In his first issue, Harris claims that his counsel’s trial and appellate performance amounted to a denial of his Sixth Amendment right to effective assistance of counsel. He has claimed many deficiencies. They are discussed individually herein as Grounds AP, following an overview of the standard of review.

The Standard for Effective Assistance of Counsel

The right to effective assistance of counsel is found in the Sixth Amendment to the U.S. Constitution. The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This right was comprehensively discussed in

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

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In the

Strickland

case, the U.S. Supreme Court observed that the right to counsel is crucial to a fair trial because “access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution.” 466 U.S. at 685 , 104 S.Ct. at 2063 (citations omitted). Any claim of ineffective assistance must be judged against this benchmark: “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”

Strickland

at 686 , 104 S.Ct. at 2064 . The court established a two part test to make this determination; to be successful the defendant must sustain his burden of proof on both parts.

First, the defendant must show that counsel’s performance was deficient. This required showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This required showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.

466 U.S. at 687 , 104 S.Ct. at 2064 .

1. Deficiency of Performance

To succeed on the first part of the test, referred to as “deficiency of performance”

(Mak v. Blodgett,

970 F.2d 614, 618 (9th Cir.1993)), the defendant must show that “counsel’s representation fell below an objective standard of reasonableness ... considering all the circumstances ... under prevailing professional norms.”

Strickland,

466 U.S. at 687-88 , 104 S.Ct. at 2064-65 ;

Mak, id.

A reviewing court “must be highly deferential” to counsel’s performance; make “every effort ... to eliminate the distorting effects of hindsight,” and must maintain “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ... and might be considered sound trial strategy.”

Strickland, id.

at 689, 104 S.Ct. at 2065 .

2. Prejudice to Defense

To succeed on the second part of the test, referred to as the “prejudice to defense”

{Mak,

970 F.2d at 619 ), the petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland,

466 U.S. at 694 , 104 S.Ct. at 2068 . Reasonable probability is defined as “a probability sufficient to undermine confidence in the outcome.”

Id.

A reviewing court must evaluate “the totality of the evidence before the judge or jury”.

Id.

at 695 , 104 S.Ct. at 2069 . In a capital case, the reviewing court must apply this balancing test:

When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

Id.; Mak,

970 F.2d at 619-20 .

An objective standard of attorney performance, under prevailing professional norms at the time of this case, can be found in the ABA Standards for Criminal Justice, 2nd ed. (1980). (A third edition was published in 1992 and is not significantly different from the second edition.) The American Bar Association’s (“ABA”) project to establish “desirable or acceptable” standards of practice for criminal justice began in 1963. The overall goal is “to represent a just balance between the goals of effective administration of criminal justice and proper regard for the constitutional rights of the accused and society.” Introduction, at xxix. These standards are regularly used by courts as guidelines in determining whether an attorney’s performance falls below reasonable professional standards.

See Strickland,

466 U.S. at 688 , 104 S.Ct. at 2064-65 ;

United States v. Blaylock,

20 F.3d 1458 (9th Cir.1994);

Jeffries v. Blodgett,

988 F.2d 923, 940 (9th Cir.1993).

The ABA’s description of the role of defense counsel is instructive.

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The basic duty the lawyer for the accused owes to the administration of justice is to serve as the accused’s counselor and advocate with courage, devotion, and to the utmost of his or her learning and ability and according to law.

ABA Standard 4—1.1(b). In the commentary, it is stated, “[o]nce a case has been undertaken, a lawyer is obliged not to omit any essential honorable step in the defense, without regard to compensation or the nature of the appointment.”

Id.

at 4.8.

The record reflects that no findings of fact have been made by any state court regarding Harris’s claims of ineffective assistance of counsel. Pursuant to 28 U.S.C. Sec. 2254 (d)(1), this court is not bound by a presumption of factual correctness, may consider the evidence, and make factual determinations. Therefore, this discussion of Issue No. 1 contains extensive findings of fact. Fed. R.Civ.P. 52(a).

The court has grouped two of Harris’s grounds for his claim of ineffective assistance of counsel into one for ease of discussion. Several general principles apply to Grounds A and B.

Ground A. Counsel did not conduct a thorough investigation of facts surrounding the charge and possible defenses.

Ground B. Counsel failed to adequately prepare for trial.

Harris argues that his counsel did not conduct an adequate or thorough investigation of the facts surrounding the charge against him, including possible defenses. Petitioner contends that counsel did not conduct an independent investigation of the events before, during or after the murder. Petitioner alleges that counsel did not obtain an investigator to discover mitigating facts, an independent ballistics expert to examine the bullets and victim’s wounds, or an expert for a social history evaluation. Harris contends that, as a result of this inadequate trial preparation, counsel had no theory of defense, that he was unprepared for effective cross examination, filed inadequate pretrial motions, and was deficient in conducting both the guilt and penalty phases of the trial.

The state generally disputes petitioner’s allegations, and argues that Harris is simply unable to prove them to be true. The state argues that because counsel had known Harris for many years, he was well acquainted with his social and mental history. The state points to various inconsistent statements by Harris himself which complicated counsel’s task in determining a clear trial strategy, other than a general denial. The state concludes that Harris fails to show that he was prejudiced or that the result in the case would have been different if counsel had done more hands-on investigation.

The duty to investigate is part of a defendant’s right to reasonably competent counsel. “The principle is so fundamental that the failure to conduct a reasonable pretrial investigation may in itself amount to ineffective assistance of counsel.”

United States v. Tucker,

716 F.2d 576 , 583 n. 16 (9th Cir.1983) (citing

McQueen v. Swenson,

498 F.2d 207, 217-18 (8th Cir.1974)). The ABA states the duty as follows:

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty.

ABA Standard 4-4.1. The investigatory process should begin immediately on appearance as counsel for a defendant. ABA Standard 4-3.2(a) states:

As soon as practicable the lawyer should seek to determine all relevant facts known to the accused. In so doing, the lawyer should probe for all legally relevant information without seeking to influence the direction of the client’s responses.

The commentary to this standard states:

An adequate defense cannot be framed if the lawyer does not know what is likely to

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develop at trial ... In criminal litigation, as in other matters, information is the key guide to decisions and action. The lawyer who is ignorant of the facts of the ease cannot serve the client effectively.

P. 4.33.

The duty to investigate is not eliminated by the client’s own conclusions or admissions of guilt, because the client’s beliefs may not coincide with the necessary elements of proof to establish guilt in law. The client may not be aware of the significance of facts regarding intent, mitigation, suppression of evidence, or impeachment of witnesses that only an independent investigation can uncover.

See

ABA Standard 4-4.1, Commentary at 4.54.

This obligation cannot be short cut because of counsel’s professional experience or his prior personal experience with the defendant. Counsel’s experience and knowledge are not admissible evidence. “The most able and competent lawyer in the world can not render effective assistance in the defense of his client if his lack of preparation for trial results in his failure to learn of readily available facts which might have afforded his client a legitimate justiciable defense.”

McQueen v. Swenson,

498 F.2d 207, 217 (8th Cir.1974) (citations omitted).

See also United States v. Tucker, supra.

“The effectiveness of advocacy is not to be measured solely by what the lawyer does at the trial; without careful preparation, the lawyer cannot fulfill the advocate’s role.” Commentary to ABA Standard 4-4.1.

The parties have stipulated to several key facts pertaining to these issues: Stip. Facts No. 11 verifies that counsel did not obtain an expert to prepare a social history. Stip. Facts No. 12 verifies that counsel did not retain an investigator to interview witnesses. Stip. Facts No. 69 states that the police reports provided to counsel contained the names of 32 individuals with knowledge of the events pertaining to the murder. Nineteen of these individuals testified at the guilt phase. Stip. Facts No. 70 states that counsel interviewed only 3 of those individuals before trial: Ray Meeks, Valerie Stevens, and Annie Sue Bayless.

Counsel did not obtain an independent evaluation of the ballistic evidence or the forensic evidence in the case. Such an investigation may have led to information useful in creating a defense to the charges, especially since two individuals were charged with the murder. Sgt. Parkhurst, the investigating police officer, did not believe that two .individuals shot Turner, because of the locations of the bullet entries on Turner’s body. Stip. Facts No. 84. Since the first shot was lethal, Sgt. Parkhurst believed that Turner would have fallen immediately, thereby making it impossible for Bonds to pass the gun to Harris to take a second shot. Stip. Facts No. 85, Parkhurst Evid.TR at 6-7. This information was contained in the police reports and autopsy, which were provided to counsel but was not elicited at trial. Stip. Facts Nos. 82 and 83. The need for an independent fact investigation was critical because Harris was the person who initiated police contact, provided evidence to the police, such as the bullets from the gun used to kill Turner, and kept up that contact until he caused them to turn their investigatory attention to him. Stip. Facts Nos. 29, 31, 32, and 33. Such an investigation was even more critical because Harris gave different versions of the murder at different times. Some of the most inculpatory versions may have been subject to attack, as stated above and in Grounds D, E, F, G, and N,

infra.

In addition to those individuals named in the police reports, Stip. Facts Nos. 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, and 81 describe various available individuals who had knowledge of events pertaining to the murder, or of Harris’s social and mental history. None of these individuals were interviewed by counsel and none of the information they had, either for defense at the guilt phase, or mitigation at the penalty phase, was presented by the defense. Counsel made the decision not to interview individuals whose names were provided to associate counsel by Harris. Haist Dep. at 11-12. Counsel did meet with Sgt. Parkhurst on two occasions before the CrR 3.5 hearing. Evid.TR at 13. Counsel, however, did not conduct the CrR 3.5 hearing on behalf of Harris. Associate counsel rep

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resented Harris at that hearing.

See

Ground F,

infra.

Counsel’s failure to interview witnesses deprived him of the opportunity of making

an informed assessment of the strengths and weaknesses of the government’s case without attempting to ascertain specifically what the testimony of the government’s witnesses would be. In general, [counsel’s] ability to cross-examine the government’s witnesses effectively was seriously compromised by his failure to interview them, since he would have little idea as to the specific areas of testimony which could be challenged.

United States v. Tucker,

716 F.2d at 883 . Counsel’s lack of knowledge about the testimony of witnesses is seen throughout the trial.

See, e.g.,

Vol. 1, VRP 247-48; Vol. 1, VRP 402 (no cross examination of medical examiner re ballistic evidence); Vol. 1, VRP 468-69; 475-78; 486 (no discovery of Meeks’ deals with prosecutor for his testimony); Vol. 2, 617-18 (no knowledge of Sylvia Harris’s testimony).

Because of his poor preparation, counsel did not appear to fully understand the implications of Harris’s 22 October 1994 statement that he fired the second shot at Turner. Based on forensic evidence, police believed that Turner was killed by only one man. Parkhurst Evid.TR at 6-7; Stip. Facts No. 85 and Ex. G to Stip. Facts. Counsel testified that his trial strategy changed after hearing this statement. He testified that he was surprised with Harris’s new version of the events and he was essentially left without a theory of defense. There was no reason to allow Harris to make this statement as part of a reasonable defense strategy and to have suggested or allowed it was not competent. Cease Dep. at 41-42.

See

Grounds C and F,

infra.

One means of evaluating counsel’s performance in this case is to compare the activities of counsel for the co-defendant, Bonds. For example, the record reflects that a series of written pretrial motions were filed in the Bonds case. These were: Motion for Examination Pursuant to RCW 10.77.060(1) (Vol. 3, CP 1122-24); Motion to Sever Defendants for Purposes of Trial (joined by Harris after its filing) (Vol. 3, CP 1042-49); Motion for Change of Venue, or in the Alternative for Individual Voir Dire (Vol. 3, CP 1216-18); Motion re Unconstitutionality of RCW 10.95.-060(4) (Vol. 3, CP 1224-30); Motion to Quash Jury Panel (Vol. 3, CP 1272-76); Motion re Excusing for Cause a Juror Who is Opposed to Capital Punishment on Religious Grounds (Vol. 4, CP 1389-1411); Motion for Dismissal for Improper Prosecutorial Discretion and Violations of Due Process and Equal Protection (Vol. 3, CP 1202-06); Motion to Dismiss Based Upon the Unconstitutionality of RCW 10.95.040 and RCW 10.95.060(4) “as applied” (Vol. 4, CP 1412-21); Motion re Admissibility of Video Tape [Bonds’ counsel prepared a video tape, reenacting the murder] (Vol. 3, CP 1208-15); Motion to Dismiss [for Violation of 5th Amendment] (Vol. 3, CP 1231^45); Motion re Unconstitutionality of RCW 2.36.-010 (Vol. 3, CP 1219-23); Motion for Order Allowing Copy of Benjamin Harris Testimony (Vol. 3, CP 1207); and various motions

in limine (see

Order at Vol. 4, CP 1499). Harris’s counsel filed three written pretrial motions: Motion for Mental Examination (Vol. 3, CP 1138-41); Motion for Continuance of Trial Date and for Examination of Defendant by Defendant’s Own Expert (Vol. 3, CP 1162-63); and Request for CrR 3.5 Hearing

(see

order at Vol. 3, CP 1072).

Another example is to compare the time representations of Harris’s counsel with those of counsel for Bonds. Since both individuals were charged with the same offense, the cases were based on the same evidence. In an unrelated affidavit, Bonds’s counsel stated:

Finally, presentation of the penalty phase requires massive preparation by defense counsel. Such is not humanly possible at the same time as preparing for defense of the guilt phase. Some of the most basic and fundamental issues of life are required to be aired and argued to their fullest. Your affiant, while working literally seven days a week on this matter, has not had sufficient time to marshall that testimony, nor consider the appropriate strategies and arguments to present to the jury.

Vol. 3, CP 1281. A review of Harris’s counsel’s time sheet indicates that he spent a total

*1258

of only approximately 14 hours investigating and interviewing witnesses. Ex. J to Stip. Facts.

It is inconceivable to this court that so little time was spent in pretrial investigation and preparation for a capital murder case. Counsel’s investigation and preparation for trial fell below the objective standard of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.

Ground C. Counsel failed to adequately consult with his client and to fully inform him on important issues and decisions regarding his defense.

Harris argues that his counsel failed to spend enough time with him discussing pretrial motions, information learned from discovery, developments through investigation, trial strategy and tactics (including whether he would testify at trial), the overall defense theory, and the advantages and disadvantages of admitting to murder.

The state responds that Harris erroneously relies solely on counsel’s billing statement, which is reflected in Stip. Facts No. 96 and Ex. J to Stip. Facts. That statement shows that counsel spent a total of one hour and 48 minutes consulting with Harris before the trial began. According to the state, this billing statement of the time spent by counsel on this case is inaccurate and does not reflect the true amount of time spent. The state contends that counsel routinely did not bill for his total time on a case.

The most fundamental element of competent representation of any client is the establishment of trust and confidential relationship. ABA Standard 4-3.1(a). This is especially true in criminal defense and is paramount in a capital ease. Without this relationship, “the client may withhold essential information from the lawyer. Important evidence may not be obtained, valuable defenses neglected, and perhaps, most significant, the lawyer may not be forewarned of evidence that will be presented by the prosecution.” Commentary to ABA Standard 4-3.1. Even when a lawyer seeks input from the client on recommended strategic or tactical decisions affecting the client’s rights, the client’s reliance on counsel’s expertise and full and careful advice is critical.

See

ABA Standard 4-5.2 and commentary.

The amount of client consultation required depends on the circumstances, charges, and facts of each individual case. At a minimum, “the consultation should be sufficient to determine all legally relevant information known to the defendant.”

United States v. Tucker,

716 F.2d at 882 n. 12 (citing The ABA Standards for Criminal Justice, Standard 4-3.2). An attorney should contact the defendant immediately and “spend quite a bit of time with the individual at that early stage.” Cease Dep. at 14-15. Continual contact with the defendant thereafter is necessary to firmly establish a trusting relationship.

Id.

at 16. If defense counsel is faced with a client who does not follow his advice or has communication problems, the attorney should made a record, either in court or in his file, detailing the problem and his efforts to deal with the problem. Such a record is necessary 1) to protect the attorney from later attacks on his effectiveness and competency; 2) to assist the client; and 3) to notify the court that some curative action may be necessary to protect the client’s rights. Cease Dep. at 31-32; ABA Standard 4-5.2(c) and commentary.

Stip. Facts No. 96 states that counsel billed for time with the defendant as follows: August 13, 12 minutes; October 11, 6 minutes; October 19, 90 minutes. Ex. J reflects additional time on August 8, 1984 of 1.4 hours and on August 9, 1984 of .8 hours. These latter two dates occurred after Harris’s arrest but before his arraignment on the murder charge.

Counsel testified at the evidentiary hearing that it was difficult to talk to Harris while he was incarcerated because Harris believed the jail was bugged.

He didn’t want to say a lot of things to me in the jail. We did have communication when we were in court. I would get the opportunity to talk to him before and after,

*1259

sometimes quite lengthy. He—Q. How lengthy? A. Oh, five minutes, perhaps ten minutes type thing as to what we were doing, where we were going.

Evid.TR at 14. Counsel recalled that he spoke with Harris on the telephone “maybe two or three, maybe as many as four or five” times.

Id.

at 15. Counsel made no effort to find another means of communicating with Harris in order to relieve Harris’s paranoid fears. Such accommodations are highly recommended in ABA Standard 4-3.1.

Counsel was assisted by attorneys employed in his office, particularly one associate. Evid.TR at 6. Although there is no documentary information regarding the amount of time the associate spent with Harris, the associate testified that he met with Harris at the jail to review information he learned from the police reports, less than ten times, probably three or four times. Haist Dep. at 55. He stated that he was unable to accomplish that purpose because Harris did not rationally respond to his specific questions; that Harris would shift to irrelevant subjects.

Id.

at 9-10.

In spite of this limited contact, counsel made the decision on how the trial would proceed from the defense perspective.

Id.

at 30. This included the initial decision to place Harris on the witness stand, to which Harris was “resigned.”

Id.

at 41. There was no lengthy witness preparation before placing Harris on the witness stand in the guilt phase.

Id.

at 37. In fact, the associate testified that counsel believed that Harris was incapable of testifying to anything, because of his inability to assist with his defense before trial.

Id.

at 38.

The court is aware that counsel may have spent more than the documented one hour and 48 minutes consulting with Harris after charges were filed. Rather than come forward with supplemental time records reflected additional hours of consultation, counsel explained that Harris had little substantial information to contribute to his defense. As is discussed in Ground D,

infra,

Harris’s mental condition made meaningful consultation extremely difficult. If counsel had spent more personal time with Harris, he may have become convinced that Harris suffered from significant mental and/or emotional dysfunction, and may have acted differently. The court is also aware that the associate consulted with Harris, but counsel spent little time with the associate exchanging information gained from the associate’s visits with Harris. Haist Dep. at 18-19, 21.

Counsel’s failure to adequately consult with his client fell below the objective standard of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.

Ground D. Counsel failed to Investigate Harris’s mental and emotional status, including mental capacity and incompetence to stand trial.

Harris argues that counsel did not interview numerous witnesses available to testify regarding his delusional mental state. Counsel did not seek or obtain medical and academic records which detailed his troubled childhood and youth, delusional thinking, and suicide attempts. As a result, Harris contends, the evaluating experts at Western State Hospital were not fully informed of his true history. Therefore, Harris argues, his counsel did not have accurate information to assess whether Harris was competent to stand trial or whether a defense of insanity or diminished capacity was appropriate.

The state argues that Harris is unable to prove that he fit the criteria for incompetency to stand trial, and that a defense based on insanity or diminished capacity would not have appropriate. The state finds no fault with counsel’s decision to forego trial preparation on these issues..

Harris’s legal expert opined that in an aggravated murder ease, it is mandatory to hire a psychiatrist to assist counsel for several reasons: to advise on the propriety of placing the defendant on the witness stand; to assist with fact investigation and determination of what areas to pursue or not pursue; and to explain any bizarre behavior of the defendant. Cease Dep. at 20-25. These de-

*1260

fíciencies amounted to ineffective assistance of counsel. Cease Dep. at 29. While the court does not conclude that a defense psychiatrist is necessary in

every

aggravated murder ease, certainly one was necessary in this case.

In the Harris case, there were two distinct purposes warranting an investigation of insanity, diminished capacity or incompetence: as a defense to the charges in the guilt phase, and as mitigating evidence in the penalty phase. Stip. Fact No. 14 indicates that counsel was aware of Harris’s history of emotional problems and that counsel had similar communication problems with Harris during his representation in a criminal matter in May, 1968. Stip. Facts No. 50 verifies that counsel did not attempt to locate educational and medical records for Harris; Stip. Facts Nos. 51, 52, 53, 54, 55, 56, 57, 58, and 59 detail the types of records available from various sources, and their content.

See also Lockett v. Ohio,

438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).

In evaluating counsel’s performance in this case, the court must apply the two part test of

Strickland v. Washington,

466 U.S. 668, 687-88, 694 , 104 S.Ct. 2052, 2064-65, 2068 , 80 L.Ed.2d 674 (1984): 1) that counsel’s performance fell below objectively reasonable standard; and 2) that there is a reasonable probability that the result of the proceedings would have been different.

When a lawyer fails to present evidence in the penalty phase of a capital case, the conclusion that his performance is deficient does not always follow. Counsel, after adequate investigation, may believe that the presentation of other evidence would open the door to damaging rebuttal evidence from the prosecutor,

(Campbell v. Kincheloe,

829 F.2d 1453 (9th Cir.1987)), or might be inconsistent with the overall defense strategy

(Burger v. Kemp,

483 U.S. 776 , 107 S.Ct. 3114 , 97 L.Ed.2d 638 (1987);

Harris v. Vasquez,

949 F.2d 1497 (9th Cir.1990)). Here, however, failure to advance mitigation evidence at the penalty phase was deficient and prejudicial. Cease Dep. at 49.

It cannot be said that absolutely no mitigating evidence was presented in the Harris case. Counsel offered Harris’s testimony explaining his two prior convictions. Vol. 2, VRP 681-89. Harris gave some positive details that he had complied with the terms of probation for two years after the manslaughter conviction; that he graduated from high school; that he worked at Boeing as an inspector and at Safeway as a night stock clerk; that he was married for 11 months and had one male child; and was divorced. Harris testified that his son lived with his mother for several years, later with Harris and Harris’s mother, and after Harris’s mother died in December, 1983, the boy lived with Harris and Abel Lawrence, his stepfather. Harris testified that the boy had been in some criminal trouble and that Harris had supported the boy until Harris suffered a hand injury. He testified about other jobs in which he had been employed, such as foundry work, warehouseman, laborer for General Services Administration. He explained that his hand injury was disabling and prevented him from full employment. Harris spoke of his feelings regarding Turner’s death. “It’s something that should have been avoided. In fact, I was shot at, that night, twice.” “Q. Well, do you have any personal sorrow for it? A. Absolutely.” Vol. 2, VRP 804.

Counsel also called Reverend Earnest S. Brazil, a local minister who testified that he had known Harris for 18-20 years. Rev. Brazil testified that, as a child, Harris and his family attended church regularly but that Harris has not done so since the death of his mother. Brazil stated that Harris seemed “a very nice young man, quiet, respectable, especially toward seniors, as such. And he always have had high respect for me.” Vol. 2, VRP 806. Brazil also stated that he thought Harris was not totally irredeemable and that would be some things Harris could contribute to society if he were incarcerated. Vol. 2, VRP 690-91. None of this evidence was particularly meaningful or effective. It was clear that Rev. Brazil did not know Harris well.

Harris now presents numerous witnesses and documentary evidence which counsel did not present at the penalty phase. There is a large volume of information detailing mental and emotional problems beginning in the first grade of school. Harris has a well documented history of delusional thinking, paranoia, suicidal tendencies, substance abuse, and depression. Stip. Facts Nos. 71 through 81 show that counsel did not interview various family members and thus did not know the full scope of Harris’s delusional beliefs. Harris now presents numerous letters which he wrote to counsel, police officers, court, family members which are re-

*1270

píete with nonsensical information and bizarre beliefs. Ex. H to Stip. Facts. Harris was not evaluated by his own psychological expert as to his mental state. The evaluating team at Western State Hospital was not presented with Harris’s full psychological full background. Positive aspects of Harris’s personality were not explored or presented. The dismissal of the manslaughter conviction, complete with the positive reasons for it, was not presented to the jury.

In Washington, each member of the jury must be convinced that there are no sufficient mitigating circumstances to merit leniency. ROW 10.95.060(4). Thus, one juror can prevent the death penalty. If the defendant can show that counsel’s deficient performance by failing to present other mitigating evidence would have allowed any juror to vote against the death penalty, then he has shown that the result would have been different. This is known as the “effeet-on-one-juror approach,” which was first approved in

Kubat v. Thieret,

867 F.2d 351, 371 (7th Cir.1989), and recently adopted in

Mak v. Blodgett,

970 F.2d at 621 . The Ninth Circuit determined that this approach is consistent with the

Strickland

analysis.

“Strickland

does not stand for the proposition that a court cannot consider the effect of counsel’s deficient performance on a single juror, but rather that the court cannot consider the possibility that a juror would render a decision not based on the law but based on that juror’s idiosyncrasies.”

Id.

There is a reasonable probability that the admission of mitigating evidence about Harris would have caused one or more jurors to believe that death was not the appropriate punishment. This conclusion follows from consideration of the type and content of the available mitigation evidence, and is strengthened by consideration of counsel’s other deficiencies in performance. Certainly, the testimony of many witnesses as to Harris’s successful work history and disability affecting his employability would have bolstered Rev. Brazil’s conclusory statement that Harris could still contribute to mankind. Presentation, after appropriate pretrial investigation, of Harris’s delusional beliefs, mental history, and mental status would have given the jury an additional explanation for Harris’s motive for the murder — that it was an irrational act, and not based on car tampering and debt. Generally, car tampering and debt, even if true, do not lead to murder.

Presentation of this additional evidence would also have allowed the jury to reconsider the impact of some of the evidence admitted in the guilt phase. Counsel’s original strategy of general denial was destroyed by Harris’s admission to the murder the morning of trial. Harris’s statement was unreliable because of his mental condition, and because it was not consistent with available forensic evidence. Admission of that statement in the guilt phase set the stage for the jury in the penalty phase to find that Harris was a liar and a murderer. Counsel, in his closing argument to the jury in the guilt phase removed any shadow of a doubt that Harris was anything less than that.

Allowing admission of the prior conviction of manslaughter without admission of its subsequent dismissal and without a definition of manslaughter fell below objective standards of reasonableness. That evidence led the jury to an erroneous view of Harris’s criminal history, which was capitalized on by the prosecutor without objection.

There is no showing that these failures of counsel were based on a reasoned decision or that submission of mitigation evidence would have resulted in harmful rebuttal evidence. Counsel simply failed to present available evidence, and as a result his representation fell below the objective standard of reasonableness. Such failure is violative of the Sixth Amendment.

See, e.g., Deutscher v. Whitley,

884 F.2d 1152, 1159-62 (9th Cir.1989);

Mak v. Blodgett,

970 F.2d at 621 . Under these circumstances, Harris’s death sentence was almost inevitable.

See, e.g., Evans v. Lewis,

855 F.2d 631, 637 (9th Cir.1988).

Counsel’s failure to present available mitigating evidence during the penalty phase fell below the objective standards of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the penalty phase would have been different, that

*1271

is, the deficiency undermines confidence in the outcome.

Ground O. Counsel failed to raise or preserve meritorious issues in appellate proceedings.

Harris contends that counsel did not raise all the appropriate issues in the direct appeal and therefore, he has been prejudiced in obtaining appellate relief.

A corollary issue is whether, in his motion to withdraw before the appellate proceedings began, counsel should have advised the court that Harris’s strongest ground for appeal may be ineffective assistance of counsel. Counsel’s motion to withdraw did not state any reasons. Vol. 4, CP 1661. The motion was considered in two separate hearings, on January 25, 1985 (Vol. 2, VRP 928-32), and on April 11, 1985 (Vol. 2, VRP 935-40). Counsel was not present at either hearing. Harris was represented by the associate. Although the associate did indicate that there may be an ineffective assistance of counsel claim, no specific reasons for withdrawal were presented to the trial court. The ineffective assistance claim, perhaps Harris’s strongest claim of error, should have been a ground for appeal.

The court also notes that counsel did not correct several inaccuracies in the trial court’s report to the Washington Supreme Court. Vol. 4, CP 1648-60. These inaccuracies are that Harris had high intelligence (CP 1649); very poor work record (p. 3); no reference to the dismissal of the manslaughter conviction (CP 1650) or correction to the statement that counsel had “gotten him off with manslaughter” (CP 1656); no note of the co-defendant Bonds and his disposition (CP 1652); and no clarification of the statement “This was the first of four or five that defendant was contracting to have killed. He has killed before and would do it again.” (CP 1660). These inaccuracies appeared to have been accepted as facts, although there is no clear support for them in the evidence. Counsel’s failure to correct these errors is significant because the trial court’s report can be characterized as factfinding.

See Burden v. Zant,

498 U.S. 433, 436-37 , 111 S.Ct. 862, 864-65 , 112 L.Ed.2d 962 (1991).

Counsel also failed to make an adequate record regarding the proportionality review in the Washington Supreme Court.

Counsel’s failure to raise or preserve meritorious issues in appellate proceedings fell below the objective standards of reasonableness and amounted to a deficient performance. There is not, however, a reasonable probability that, but for this deficiency, the result of the appellate proceedings would have been different.

Ground P. Counsel failed to advise Harris of a conflict of interest.

Harris argues that he and many members of his family had been provided legal services by counsel and counsel’s law firm since the early 1960s. Stip. Facts No. 13. Those services included criminal charges against Harris in May, 1968 (Stip. Facts No. 14); representation of Mrs. Harris by counsel’s partner for a dissolution of marriage in 1968 (Stip. Facts No. 15); criminal charges against Harris for an alleged assault on Mrs. Harris in May, 1969 (Stip. Facts No. 16); criminal charges for murder against Harris in 1968 resulting in a plea to manslaughter (Stip. Facts Nos. 17 and 18); and probate proceedings on behalf of the estate of Bessie M. Robinson Lawrence, Harris’s mother, representing Lawrence, the administrator and widower of Mrs. Lawrence beginning in December, 1983 (Stip. Facts Nos. 21, 22, 12).

Harris’s mother died intestate on December 10, 1983. Stip. Facts No. 20. The probate proceedings continued during the time of counsel’s representation of Harris in the instant case. Harris argues that he and Lawrence had a hostile relationship and Harris believed that Lawrence and other family members conspired in many ways, including the aggravated murder charges, so that he would be eliminated as a heir of any portion of his mother’s estate. Stip. Facts Nos. 24, 28, and 41.

Harris contends that counsel was aware of the animosity between Harris and Lawrence. Stip. Facts Nos. 25, 26, and 49. Harris contends that the legal interests of his stepfather, other family members and himself were adverse, and may explain counsel’s fail

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ure to interview or call family members to testify during the penalty phase of his trial. He also argues that counsel’s failure to put forth evidence of Harris’s troubled family background and relationships, including school and medical records, effectively protected other family members from public and unpleasant scrutiny. Harris adds that counsel failed to seriously evaluate Harris’s statements that the murder charges were brought as a result of a family conspiracy because counsel either believed the family had more credibility than Harris, or that Harris’s fabrication of these events and beliefs was part of his regular delusional mental state, accepted as normal by counsel. As a result, Harris argues, there was a conflict of interest which deprived him of a fair trial and effective assistance of counsel.

The state disputes the allegations that counsel’s representation of Harris’s stepfather in probate proceedings amounted to a conflict of interest. The state argues that because- Harris was an heir to his mother’s estate and Lawrence, as the administrator of the estate, acted in a fiduciary capacity, there was no adverse legal interest between the two men. The state also argues that Harris has not shown that counsel’s representation of Harris was adversely affected by the personal interests of Lawrence.

The Sixth Amendment mandates that a criminal defendant receive effective representation of counsel that is free from conflicts of interests.

Wood v. Georgia,

450 U.S. 261 , 101 S.Ct. 1097 , 67 L.Ed.2d 220 (1981) (conflict found where defendant’s employer paid defendant’s counsel);

Cuyler v. Sullivan,

446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) (conflict of interest with simultaneous representation of prosecution witness and defendant). In a criminal context, the need to protect the criminal defendant from conflict of interest is greater than in a civil case. This is attributed in part to the clients’s stress when confronted with the enormity of the criminal justice system. “[T]he client will be eager to obtain any representation as soon as possible and thus will not be particularly cautious in evaluating a potential conflict even when it has been disclosed.” ABA Standard 4-3.4; Commentary at 4.40. The responsibility thus weighs heavily on both attorneys and trial courts, who are obligated to protect defendants against conflicts of interest.

Id.

If an error is determined, prejudice to the defendant is presumed.

Holloway v. Arkansas,

435 U.S. 475, 490 , 98 S.Ct. 1173, 1181-82 , 55 L.Ed.2d 426 (1978). The reasoning behind this high standard is aptly stated in

Holloway v. Arkansas, supra.

[I]n a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to

refrain

from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible.

435 U.S. at 490-91 , 98 S.Ct. at 1182 (emphasis in original).

Conflict of interest issues are governed in part by the Code of Professional Conduct for lawyers and cases applying and interpreting the code. Generally, a potential conflict of interest may exist if 1) an attorney’s representation of a client is directly adverse to another client, or 2) an attorney gained confidential information or secrets from a previous client that might be material to the new client’s case. If a potential conflict of interest arises, a lawyer is obligated to fully disclose the material facts of the potential conflict to the client and obtain the client’s written consent to representation after the disclosure.

See

Rules for Professional Conduct, Rules 1.7, 1.8, 1.9 and 1.10. In 1983 and 1984, the rules of professional responsibility were essentially the same, but they were known as the Canons of Professional Ethics. The canons pertaining to a lawyer’s duties when a potential conflict of interest exists were Canons 6 and 37. Canon 6 stated:

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Adverse Influences and Conflicting Interests. It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.

It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.

The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.

Canon 37 stated:

Confidences of a client. It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.

See Kurbitz v. Kurbitz,

77 Wash.2d 943, 944 , 468 P.2d 673 (1970).

Generally, a lawyer owes a client a duty of loyalty that goes beyond the case at issue. The ABA Model Rules of Professional Conduct, Rule 1.7 advises that a lawyer “ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated.”

State v. Hatfield,

51 Wash.App. 408 , 412 n. 1, 754 P.2d 136 (1988). A conflict of interest may be established by “reasonable inference. In this field [legal profession], conduct should not be weighed with hairsplitting nicety.”

Id.

77 Wash.2d at 946 , 468 P.2d 673 . The burden of proving a conflict of interest is not on the client. Rather, the attorney’s right to practice law gives way in cases where there is a question, in order to protect the public interest.

Id.

(quoting

Chugach Elec. Ass’n v. United States Dist. Court for Alaska,

370 F.2d 441 , 444 (9th Cir.1966)). The

Chugach Elec,

decision further held that actual knowledge possessed by an attorney which might be adverse to a client is not the test. “It is sufficient that an appearance of conflicting interests has been made.” 77 Wash.2d at 947 , 468 P.2d 673 .

Two general factors were considered when analyzing conflict of interest issues in the

Kurbitz

decision. One, “whether the matters embraced within the pending suit involving an attorney’s former client are substantially related to matters on which the attorney or someone in his association previously represented the former client”; and two, “if the attorney in the present litigation did not formerly represent the adverse client, but had access to confidential information which is material to the present suit....” 77 Wash.2d at 947 , 468 P.2d 673 (citations omitted). There, the court found a conflict of interest where a lawyer and his law firm represented at various times the following entities belonging to the same family: a husband and wife for a loan against the wife’s mother’s estate, the wife’s mother’s estate, and the wife in a divorce proceeding. A conflict of interest can arise where a lawyer represents an administrator of an individual’s estate and a claimant of the estate.

Id.

The conflict can be resolved when, after full disclosure, the claimant and the administrator agree on the disposition of the claim.

In re Estate of Rakestraw,

28 Wash.App. 585, 586 , 624 P.2d 1175 (1981).

In a criminal context, conflict of interests commonly arise where a lawyer has the opportunity to represent two or more co-defendants. Those rules do not apply here. However, the simultaneous representation of a defendant and a witness with opposing interests can create a conflict of interest situation.

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In re Richardson,

100 Wash.2d 669, 677 (1983) (and cases cited therein).

Here, Harris’s arguments of conflict of interests arise in more than one context. His arguments regarding counsel’s simultaneous representation of Lawrence and Harris can be analogized to that of a personal representative of an estate and a claimant to an estate with an adverse interest.

See, e.g., In re Estate of Rakestraw,

28 Wash.App. 585 , 624 P.2d 1175 (1981). The parties have stipulated that Harris had concerns about the probate of his mother’s estate and believed that Lawrence and other family members did not want him to share in the estate. Stip. Facts Nos. 24, 25, 28, 64, and 74. The parties have also stipulated that counsel and the police were well aware of Harris’s irrational beliefs. Stip. Facts Nos. 25, 41. The adversity between Lawrence and Harris is well documented and at times there were rumors of an attempt on Lawrence’s life. Stip. Facts Nos. 39, 40, 46, and 47. Harris made allegations that his mother had executed a will before her death, that she did not advise her husband of the will but told Harris where it was located. Stip. Facts Nos. 42 and 44. Harris believe that counsel was investigating the existence of the will. Stip. Facts No. 45. These facts appear to demonstrate that Lawrence and Harris had very different, and adverse, views of the distribution and administration of Mrs. Lawrence’ estate. The estate was approximately valued at $150,000 in January, 1984.

See

Ex. B to Stip. Facts.

If Harris’s arguments are viewed from the standpoint of the simultaneous representation of a defendant and a witness, adverse interests can be demonstrated. Counsel failed to interview and call available and willing family members to testify to mitigating circumstances on behalf of Harris. As cautioned in

Holloway v. Arkansas,

435 U.S. at 490-91 , 98 S.Ct. at 1181-82 , the prejudice stemming from conflicting interests may be demonstrated by an attorney’s failure to undertake certain tasks. Counsel’s restraint may have its genesis in confidential information gained through his representation of Lawrence, or Mrs. Linda Harris Carson (Harris’s ex wife who was represented in the divorce by counsel’s partner). Harris did express his concern about counsel’s representation of him on appeal. Harris accepted, at the trial court’s urging, counsel’s appointment, but only after conditioning his acceptance on counsel’s pledge not to listen to his family during the pendency of the appeal. Vol. 2, VRP 938-40.

It should be noted that counsel was appointed by the court, and was not retained by Harris. It should also be noted that, at least after Harris started blaming Lawrence for his troubles, an

apparent

conflict of interest existed. A careful review of the record does not demonstrate that counsel received any written consent from Harris regarding possible conflicts of-interest or that counsel advised the trial court of the possibility of conflicts. Because of counsel’s failure, the trial court was not able to make inquiry. No state court has addressed the facts pertaining to this issue on their merits. It is very difficult to determine whether an

actual

conflict of interest existed in 1984. It is clear, however, that counsel was ethically obligated to take some affirmative action.

Counsel’s failure to advise Harris of a conflict of interest fell below the objective standards of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.

Conclusion — Issue No. 1

Harris’s Sixth Amendment right to effective assistance of counsel was violated by counsel’s deficient performance during the guilt and penalty phases. As a result of this constitutional error, there was substantial and injurious effect or influence in determining the jury’s verdicts. This conclusion is based on the prejudice of individual, specific deficiencies and on the cumulative effect of all deficiencies.

ISSUE NO. 2: Whether the admission of prior convictions in 1969 for manslaughter and assault during the penalty phase violated petitioner’s right to due process.

This issue will be addressed in three parts. The first part of this issue pertains to the

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notice requirement set forth in Washington’s Evidence Rule, ER 609(b). Harris contends that his due process rights were violated because he did not receive advance notice from the prosecutor of the prosecutor’s intent to submit his prior convictions in the penalty phase. He argues that, as a result, he was deprived of his opportunity to contest their constitutional validity.

In the second part of this issue, petitioner contends that his due process rights were violated because the judgment and sentence for the prior conviction of manslaughter was based on an invalid plea of guilty and should not have been admitted.

See

Plaintiffs Ex. 1, penalty phase. (The judgment and sentence for the crime of Assault in the Third Degree was based on a jury verdict of guilty.

See

Plaintiffs Ex. 2. This conviction was not appealed, and there is no basis for any collateral attack on the conviction itself.)

The third aspect of this issue is whether there were any constitutional violations pertaining to the application of Washington’s Rules of Evidence, which permitted the admission of these convictions in the penalty phase. ER 803(a)(22). Although this aspect was not specifically raised by the parties, it is appropriate to address it summarily.

A. Failure of the Prosecutor to comply with ER 609(b)

The record reflects that the two pri- or convictions were over 10 years old at the time of trial. They were admitted into evidence during the state’s presentation in the penalty phase, without objection from defense counsel.

See

Vol. 2, VRP 795. ER 609(b), in pertinent part, states: “evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.” The court has carefully reviewed the entire state court record in this case and can find no advance written notice that the prosecutor intended to use these two prior convictions during the penalty phase.

However, ER 609 only pertains to the impeachment of a witness’ credibility.

See

ER 609(a). Since the prior convictions were not admitted for impeachment purposes, this rule does not apply. Therefore, there was no constitutional error.

B. Deprivation of due process by admission of unconstitutional prior conviction

Harris contends that his due process rights under the Fifth and the Fourteenth Amendments were violated by the unopposed admission of his 1969 prior convictions in the penalty phase. The judgment and sentence for both of these convictions were exhibits in the penalty phase, and constituted the prosecutor’s entire case. Plaintiffs Ex.s 1 and 2, Phase II, Vol. 2, VRP 794-95.

The Washington Supreme Court has determined that, during the state’s presentation of evidence in the penalty phase of a capital case, there are three classes of nonstatutory aggravating evidence. “Specifically, evidence of nonstatutory aggravating factors must be limited to defendant’s criminal record, evidence that would have been admissible at the guilt phase, and evidence to rebut matters raised in mitigation by the defendant.”

State v. Bartholomew,

101 Wash.2d 631, 642 , 683 P.2d 1079 (1984). Contrary to petitioner’s arguments, Harris’s criminal history may be admissible in the penalty phase regardless of whether it would be admissible during the guilt phase. A discussion of the various rules of evidence follows in See. C.

Harris next contends that his plea of guilty to the manslaughter conviction was invalid because there was no evidence at the time of the plea of guilty, that 1) he was aware of his right not to incriminate himself, to remain silent and/or not to plead guilty; 2) he was aware of the nature of the charges against him; and 3) there was a factual basis for the prior charges.

The state argues that Harris was represented by the same counsel as in his capital case, and that counsel was well aware of the circumstances of the plea. The state contends that, on the face of the Judgement and Sentence itself, the trial court ascertained that defendant understood the enumerated rights and was fully advised.

See

Plaintiffs

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Ex. 1, penalty phase. Therefore, the state argues that there is no factual basis to petitioner’s allegations of due process violations.

In order to collaterally attack a prior conviction by plea of guilty, the petitioner must show that the guilty plea proceedings did not include a constitutionally valid waiver of all rights. “A guilty plea, which works as a waiver of numerous constitutional rights, cannot be truly voluntary if the defendant ‘has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.’”

Marshall v. Lonberger,

459 U.S. 422, 431 , 103 S.Ct. 843, 849 , 74 L.Ed.2d 646 (1983) (quoting

Henderson v. Morgan,

426 U.S. 637, 645, n. 13 , 96 S.Ct. 2253, 2257, n. 13 , 49 L.Ed.2d 108 (1976)). The U.S. Supreme Court elaborated further on the concept of voluntariness in the

Marshall

decision. A guilty plea cannot be considered voluntary as an intelligent admission “unless the accused has received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’”

Marshall, id.

459 U.S. at 436 , 103 S.Ct. at 852 (quoting

Smith v. O’Grady,

312 U.S. 329, 334 , 61 S.Ct. 572, 574 , 85 L.Ed. 859 (1941)). When the defendant is represented by counsel, he is presumed to be fully informed of the charges against him.

Id.

This court has reviewed the state court record in the manslaughter case. The petitioner presented the entire state court file for that case.

See

Vol. 11, CP 4028-4100. Although Harris states that he was unaware of the nature of the charges and the law in relation to the facts of the case

(see

Vol. 9, CP 3110-11), he has not shown convincing evidence that he suffered any constitutional violations when the plea was accepted in state court. Therefore, there was no constitutional error.

C. Washington’s Rule of Evidence regarding admission of Prior Convictions

Harris contends that his due process rights pursuant to the Fifth and the Fourteenth Amendments were violated by the admission of his prior convictions. The Fifth Amendment states, in pertinent part, “No person ... shall be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment, in pertinent part, states: “... nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Any proceeding in which evidence is allowed must be “trustworthy, reliable, and not unreasonably prejudicial.”

State v. Bartholomew,

101 Wash.2d at 640 , 683 P.2d 1079 (citing ER 403). A document showing the prior conviction may be introduced into evidence pursuant to ER 803(a)(22). A prior conviction as evidence of aggravating factors in the penalty phase of a capital case may be admitted into evidence as long as it complies with the rules of evidence.

State v. Bartholomew,

101 Wash.2d at 640-42 , 683 P.2d 1079 .

ER 102 states the purpose of the Rules of Evidence: “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” Evidence must be relevant, that is “having any tendency to make the existence of any fact that is of consequence to the determination the action more probable or less probable than it would be without the evidence.” ER 401. Not all relevant evidence will be admitted, however. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” ER 403.

Consideration of the validity of a prior conviction based on a guilty plea should have been made in a pretrial hearing in the trial court.

See, e.g.,

CrR 4.5. The fact that such a pretrial hearing was not held in this case deprives any reviewing court of the benefit of determination of facts.

This matter is complicated by the subsequent vacation of the manslaughter conviction. On June 27, 1972, the trial court considered a request that Harris’s plea of guilty

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to manslaughter be withdrawn. After consideration of the report of the probation officer, the trial court “ordered that the defendant be permitted to withdraw the finding or pleas of ‘Guilty’ to the crime of manslaughter, and entered a plea of ‘Not Guilty’ herein.”

See

Ex. A to Stip.Faets. The trial court further ordered “that the above-entitled cause be, and the same is hereby dismissed and the defendant is discharged from further attendance herein and is released from all penalties and disabilities resulting from the filing of said charge.”

Id.

Therefore, at the time the conviction was placed before the jury in the penalty phase of the murder trial, the manslaughter charge had been dismissed! This fact was not placed in evidence.

There are some similarities between this case and the case of

Johnson v. Mississippi

486 U.S. 578 , 108 S.Ct. 1981 , 100 L.Ed.2d 575 (1988). There, in the trial court, the prosecutor presented as his sole evidence of aggravating circumstances in the penalty phase of a capital ease, a prior conviction of the defendant. 486 U.S. at 585 , 108 S.Ct. at 1986 . That prior conviction had been reversed by the Mississippi Supreme Court. The Supreme Court acknowledged that the sentencing jury’s belief that the defendant had been convicted of a prior felony could have been decisive between a life sentence and a death sentence.

Id.

at 586 , 108 S.Ct. at 1986-87 . The court held that because the jury was allowed to consider “materially inaccurate” evidence, the defendant’s Eighth Amendment right had been violated and the death sentence was reversed.

Id.

at 590 , 108 S.Ct. at 1988-89 .

Certainly, the legal effect of the 1972 dismissal should have been determined, or, at least, it should have been presented to the jury along with the judgment and sentence, to comply with the rules of evidence and due process. The record does not indicate that the legal effect of the dismissal was investigated by either defense counsel or the prosecutor. (This failure is also considered herein in Issue No. 1,

supra.)

Additionally, there was no definition of manslaughter presented to the jury. In 1969, the elements of manslaughter were

the unintentional killing of a person without excuse or justification, by one committing an unlawful, but not a felonious act_ One may be convicted of manslaughter if he causes the death of another by doing some act in a negligent manner, and gross negligence is not necessary to be shown.

State v. Sill,

47 Wash.2d 647, 651 , 289 P.2d 720 (1955) (citations omitted). The prosecutor in his closing argument, characterized the manslaughter conviction as follows: “I presented in my evidence the prior criminal convictions of Harris. Suffice to say that Harris has killed before. Turner was not the first.” Vol. 2, VRP 815. Although Harris explained the circumstances of this charge in his direct testimony in the penalty phase, without instruction on the elements of manslaughter, the jury was very likely to come to the erroneous conclusion that any killing is murder. As a result, the jury was presented with only one part of the truth of Harris’s criminal record of the prior conviction of manslaughter.

Harris’s due process rights were violated because the evidence of his manslaughter conviction was admitted into evidence without pretrial consideration of the validity of the conviction or the effect of the later dismissal, and because the jury was presented with only part of the record pertaining to the conviction. Harris’s due process rights in this regard were also violated in the appellate proceedings. As a result of this constitutional error, there was a substantial and injurious effect or influence on the jury’s verdict.

ISSUE NO. 3: Whether Washington’s capital punishment statute is unconstitutional because it allows consideration of an unconstitutionally obtained prior conviction during the penalty phase.

Harris argues that 'the Washington death penalty statute violates his due process rights because it allows the use of prior convictions, even though they would have been inadmissible during the guilt phase. Harris relied on his interpretation of

State v. Bartholomew,

101 Wash.2d 631 , 683 P.2d

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1079 (1984) to support this contention. He reargues his claim that because his 1969 convictions were beyond the permissible 10 year period established in ER 609(b), they were inadmissible on that basis. Harris contends that because defense counsel did not have advance notice from the prosecutor that he intended to introduce the 1969 convictions, counsel had no opportunity to attack their validity or to present the dismissal of the manslaughter conviction.

The state continues to maintain that Harris’s claim is meritless because he is unable to successfully show any constitutional defect in the manslaughter guilty plea proceedings. The state essentially relies on its arguments made regarding Issue No. 2,

supra.

The Washington Supreme Court in

State v. Bartholomew, supra,

considered a constitutional attack on ROW 10.95.060(3). The court held that under due process, “the concept of fairness” requires that only reliable evidence, which meets the requirements of the rules of evidence, can be admitted in the penalty phase of a capital case. 101 Wash.2d at 640 , 683 P.2d 1079 . The court found that the portion of RCW 10.95.060(3) which states “evidence of the defendant’s previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity” to be offensive to state due process considerations.

Id.

at 641 , 683 P.2d 1079 . (The due process provisions of the Washington State Constitution are generally more liberally construed than the U.S. Constitution.

Id.

at 639 , 683 P.2d 1079 (and cases cited therein).)

The ruling in

Bartholomew, supra,

essentially addresses Harris’s third claim. His previous criminal activity included convictions for assault and manslaughter. For these reasons and those stated above in Issue No. 2, there is no constitutional error in the use of prior convictions.

ISSUE NO. 4: Whether petitioner’s incompetency prevented a fair trial.

Harris claims that he was not competent to stand trial. He alleges his due process rights were violated because the trial court failed to hold a competency hearing before his trial. He further contends that the opinion of the evaluating team at Western State Hospital was inadequate because it was based on incomplete information. It was learned by counsel immediately before the commencement of the penalty phase that Dr. Mayers had failed to score one of Harris’s tests. Harris cites numerous facts and information available to counsel before trial that were not discovered by counsel and were not presented to the trial court. Harris contends this information was directly relevant to the question of his competency. He argues that it would have demonstrated that he was not competent to stand trial.

The state disputes that there was any real evidence that Harris was incompetent. The state argues that the postconviction hearing on petitioner’s motion for a new trial on raised this ground before the trial court. The testimony there, and the ruling of the trial court, demonstrates that the incomplete testing analysis had no impact on the experts’ pretrial opinion regarding his competency. Without any other evidence to raise a suspicion that Harris was not fully competent, the state contends that trial court had no duty to hold a competency hearing.

The federal test for competency to stand trial is “whether the criminal defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’”

Drope v. Missouri,

420 U.S. 162, 172 , 95 S.Ct. 896, 904 , 43 L.Ed.2d 103 (1975) (quoting

Dusky v. United States,

862 U.S. 402 , 402, 80 S.Ct. 788, 789 , 4 L.Ed.2d 824 (1960). It is incumbent on the trial court to determine competency of a criminal defendant whenever a good faith doubt is entertained, or should be entertained.

Evans v. Raines,

800 F.2d 884, 888 (9th Cir.1986) (citation omitted). The trial court must assess competency of the defendant, on the record and based on the in-court conduct of the defendant himself, and on the credibility and demeanor of both expert and fact witnesses.

Evans, id.

at 887. A trial court’s failure to carry out this duty may leave irreparable damage.

Id.

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Although this question presents a mixed question of law and fact, the determination of competency to stand trial is one where the presumption of correctness applies.

Evans, id.; Miller v. Fenton,

474 U.S. 104, 112-13 , 106 S.Ct. 445, 451 , 88 L.Ed.2d 405 (1985);

Maggio v. Fulford,

462 U.S. 111, 117 , 103 S.Ct. 2261, 2264 , 76 L.Ed.2d 794 (1983). This determination may be overturned only if it is not “fairly supported by the record.” 28 U.S.C. Sec. 2254 (d)(8);

Mag-gio, id.

This is so because the trial court is

‘[f]ace to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate methods of ascertaining the truth ... How can we say the judge is wrong? We never saw the witnesses ...’

Maggio,

462 U.S. at 118 , 103 S.Ct. at 2264 (quoting

United States v. Oregon Medical Society,

343 U.S. 326, 339 , 72 S.Ct. 690, 698 , 96 L.Ed. 978 (1952)).

It is undisputed that the trial court did not conduct a competency hearing. Certainly, in hindsight, it would have been better if the trial court had held such a hearing.

See Drope,

420 U.S. at 177 , 95 S.Ct. at 906 . This issue is complicated by defense counsel’s failure to request a competency hearing before either the guilt or penalty phase, and failure to follow up in his request for appointment of an independent expert to evaluate Harris. He also failed to present to the trial court and the evaluating team at Western State Hospital other available information regarding Harris’s mental state, both before and after the date of the offense.

See

Stip.Facts Nos. 56-62.

The court has examined the state court record to determine what information was presented to the trial court regarding Harris’s competency. The record indicates that the trial court first learned of the competency question from Harris’s counsel. Vol. 3, CP 1133-41. The affidavit filed by counsel indicated communication problems with Harris, his refusal to heed counsel’s direction to discontinue correspondence with police, court, prosecutors and witnesses; counsel’s concern that Harris did not fully comprehend the seriousness of the charges against him; and counsel’s belief that Harris was unable to assist with his defense. Ex. 1 The trial court granted defendant’s motion for mental examination. Vol. 3, CP 1145-46. Thereafter, the trial court received the letter opinion of the evaluating team at Western State Hospital, which stated that Harris was competent to stand trial. Vol. 3, CP 1158-59. The trial court did not indicate any unusual behavior by the defendant during any court appearances. Defense counsel sought and obtained a week’s continuance to obtain an independent evaluation of Harris but Harris was not examined until after conviction and sentencing. Harris’s counsel did not further raise the competency issue before trial. With this information before the court, it is not surprising that the judge apparently felt the issue of competency was closed.

The question of Harris’s competency was first considered on its merits in the course of the motion for a new trial. Vol. 3, CP 1196-98. The trial court was advised for the first time that the pretrial evaluation and opinion was based on incomplete test data. An independent examiner, Dr. Allen Traywick was appointed to evaluate Harris and Dr. Mayers was order to reexamine him. Following a hearing on the motion for a new trial, the trial court entered findings of fact and conclusions of law. Vol. 4, CP 1662-67. The findings included that no psychological evidence was presented to the jury (F/F No. XI); that both Dr. Traywick and Dr. Mayers diagnosed Harris has having an antisocial personality with paranoid disorder (F/F No. XV); and that neither expert found any evidence of insanity, incompetency or that he acted under the influence of extreme mental disturbance at the time of the murder (F/F No. XVI).

In short, there were no obvious indications of incompetence within the knowledge of the trial court, either before or after trial, on which the court could base a good faith belief that Harris was incompetent. There is no support in the record for Harris’s claim that his due process rights were violated by the trial court’s failure to hold a competency hearing. There are, however, obvious ques

*1280

tions of effective assistance of counsel.

See

Issue No. 1, Grounds A, B, C,„and D. If available information regarding Harris’s mental health history and Harris’s strange behavior following the murder had been made known to the trial court, there may have been a duty to hold a competency hearing. There was no constitutional error in failing to hold such a hearing, and Harris’s incompetence at the time of trial has not been proved here.

ISSUE NO. 5: Whether the state failed to disclose exculpatory evidence.

In petitioner’s fifth ground for habe-as corpus relief, Harris alleges that the prosecutor possessed exculpatory information which was not disclosed to defense counsel before trial. Specifically, he alleges the prosecutor knew that his evaluation at Western State Hospital before trial was based on incomplete test data. He contends that the prosecutor did not disclose this information until after the completion of the penalty phase. He further alleges that the prosecutor had other information obtained from his ex-wife regarding his delusional state beginning in 1967.

The state argues that this claim is merit-less. The state claims that the petitioner’s counsel was told before the penalty phase about the incomplete test data. The state disputes that the missing information had any exculpatory value. The state makes no response to Harris’s allegations regarding the prosecutor’s contact with his ex-wife.

The state’s constitutional requirement to disclose exculpatory evidence originated in

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). The

Brady

decision requires that the state disclose “evidence that is both favorable to the accused and ‘material either to guilt or to punishment.’ ”

United States v. Bagley,

473 U.S. 667, 674 , 105 S.Ct. 3375, 3379 , 87 L.Ed.2d 481 (1985) (quoting

Brady,

373 U.S. at 87 , 83 S.Ct. at 1197 ). The requirement is based on the constitutional right to due process and to a fair trial.

United States v. Agurs,

427 U.S. 97, 108 , 96 S.Ct. 2392, 2399-2400 , 49 L.Ed.2d 342 (1976).

Exculpatory evidence includes impeachment evidence, “so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.”

United States v. Bagley,

473 U.S. at 676 , 105 S.Ct. at 3380 . Material evidence is defined as

evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.

Id.

at 682 , 105 S.Ct. at 3383 .

This issue was raised by Harris’s counsel before the trial court. The state’s position here is supported by an affidavit filed by the deputy prosecutor in response to these similar complaints.

See

Vol. 4, CP 1502-06. In that affidavit, the deputy prosecutor detailed the series of events: his first awareness of the uncompleted test scores, his communication of this information to defense counsel before the beginning of the penalty phase of the-trial, and the fact that defense counsel did not seek a continuance in order to contact Dr. Mayers.

Id.

These statements were not disputed by defense counsel. Vol. 3, CP 1197-98.

Harris cannot convincingly establish that the state withheld this exculpatory evidence from him. Because of this conclusion, the court need not reach the question of whether that evidence was material.

Harris presented a summary of a conversation his investigator had with Harris’s ex-wife, Linda Carson.

See

Sec. 3, Ex. C to Supplemental Exhibits to Petitioner’s Motion to Expand the Record. In that summary, Ms. Carson, is described as stating that she spoke with a prosecutor before Harris’s trial and told him about Harris’s instability and “craziness”. She was never contacted again. Other than this reference, the court can find no other factual support for petitioner’s contention. Again, discovery of this potentially exculpatory evidence was a responsibility of competent defense counsel. There was no constitutional error.

*1281

ISSUE NO. 6: Whether Harris’s constitutional rights were violated when his pretrial statement of October 22,1984 was made and admitted at trial.

Harris argues that his statement to police and prosecutors on the morning of October 22, 1984, the first day of trial, was involuntary. He contends that he did not knowingly and intelligently waive his Fifth Amendment right to remain silent when he gave the statement. He also contends that the statement was intended for plea negotiation and was therefore inadmissible under Washington’s ER 410. Harris contends his Fifth, Sixth, and Fourteenth Amendment rights were violated.

The state responds by citing to the transcript of the statement. The state points out that the statement was given in the presence of, and on the advise of, counsel, that Harris was read his

Miranda

rights, that he affirmed that he understood them; and that he effectively waived those rights.

This issue will be discussed in two sub-parts: A) voluntariness of the statement; and B) plea negotiation.

A. Voluntariness of the statement

When a defendant’s inculpatory statement is used against him at trial, the state must prove that it is a

product of a rational intellect and a free will. The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.

U.S. v. Leon Guerrero,

847 F.2d 1363, 1365 (9th Cir.1988) (citations omitted). Indications of involuntariness include situations where the statement is obtained “by any sort of threats of violence, [or] by any direct or implied promise, however slight, [or] by the exertion of any improper influence.”

Id.

at 1366 (citations omitted).