State v. Schierman

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SUSAN L CARLSON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 84614-6

Respondent, EN BANC

V.

CONNER MICHAEL SCHIERMAN, Filed 1 2 2018

Appellant.

GORDON McCLOUD,J.—Conner Schierman was convicted of four counts

ofaggravated first degree murder and sentenced to death. He appeals his convictions

and sentences on multiple grounds. For the reasons given below, we affirm all of

his convictions. As further discussed below, a majority of this court also rejects

Schierman's challenges to his death sentence.

However, I would hold that two critical, erroneous evidentiary rulings during

Schierman's penalty phase proceedings require reversal ofthat death sentence. That

would ordinarily require a remand for a resentencing hearing. I therefore go on to

conduct our court's statutorily required proportionality review. I conclude that

imposition of the death penalty on Schierman violates our state statutory guaranty

State V. Schierman (Conner), No. 84614-6

against disproportionate capital sentencing. For the reasons given in this opinion, I

would reverse Schierman's death sentences and remand for imposition of the only

statutorily permissible penalty: four consecutive sentences of life in prison without

the possibility of parole.

FACTS

On the morning of July 17, 2006, officials responded to a fire at the home of

Leonid and Olga Milkin, a married couple. When firefighters eventually

extinguished the flames, they found the bodies of Olga, Olga's sister Lyuba, and

Leonid and Olga's two young sons, Andrew and Justin. The women's bodies

appeared to have been undressed or partially undressed at the time of the fire. At

the time of the fire, Leonid' was stationed overseas. An investigation revealed that

someone had used accelerants to set the fire, and autopsies revealed that each victim

had been stabbed to death before the fire began.

On the morning of the fire, witnesses observed someone who looked like the

defendant, Conner Schierman, carrying a gas can in front ofthe Milkin home. Police

contacted Schierman and observed that he had scratches and cuts on his face, head,

and neck. Schierman told them that he had intervened in a domestic dispute in the

early morning hours ofJuly 17 and had been hurt in the process. Police subsequently

'First names are used when needed for elarity.

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discovered a videotape of Schierman filling a gas can at a nearby AMPM on the

morning of the fire. Eventually, Schierman agreed to come to the police station,

where he made three taped statements.

In his third statement, Schierman admitted to being in the Milkin home. He

said that he woke up on the morning of July 17 covered in blood, lying in an upstairs

bedroom in the Milkins' home and unable to remember how he had gotten there. He

stated that he walked around the house, discovered the four bodies, showered and

changed his clothes, and decided to bum down the house.

That statement to police was largely consistent with a later statement that

Schierman made to defense expert Dr. Andrew Saxon. Schierman told Dr. Saxon

that he started drinlcing in the early evening of July 16, continued drinking all

evening, and went into an alcoholic blackout some time during that night. He said

that he woke up bloody on a strange bed some time during the moming of July 17,

and discovered a woman's body in a pool of blood. But Schierman also told Dr.

Saxon that he moved the woman's body and continued to drink while he stayed in

the house.

Eventually, forensic investigators discovered Schierman's DNA

(deoxyribonucleic acid) in the Milkin home. Investigators also found a pair of

gloves in the home, which a witness identified as belonging to Schierman. When

Leonid was permitted to retum to his house, he found a fire-damaged knife, which

State V. Schierman (Conner), No. 84614-6

he did not recognize, in the remaining debris. Police discovered that Schierman had

purchased an identical knife several months earlier. Leonid also discovered a pair

of men's shoes, recovered from an undamaged section of the basement. Schierman

had purchased an identical pair the previous November. Finally, police also found

three empty vodka bottles in a backpack in Schierman's bedroom.

The State charged Schierman with four counts of aggravated murder in the

first degree and one count of arson in the first degree. Jury selection began on

November 13, 2009, and the jury panel was seated two months later, on January 12,

2010.

The guilt phase ofthe trial lasted another three months. The defense conceded

that Schierman committed arson, but argued that he panicked and set fire to the house

to avoid being accused of murders that he did not commit. Schierman was convicted

as charged. The penalty phase lasted almost one month; the jury voted to impose

the death penalty.

The facts relevant to each of Schierman's assignments of error are

summarized in the appropriate section below.

State V. Schierman (Conner), No. 84614-6

Guilt Phase Issues

I. Some of the Trial Court's Juror Eligibility Determinations Violated

Schierman's Right To Presence (under the Sixth and Fourteenth

Amendments and Article I, Sections 3 and 22); Any Error, However,

Was Harmless

Schierman argues that two separate phases ofjuror selection violated his right

to presence. The first phase to which he assigns error lasted from late September

2009 to mid-November 2009. During that time, counsel met with King County's

jury services manager to review, and sometimes agree to, potential jurors'

preliminary hardship excusal requests. Schierman was not present during these

meetings.

The second phase of juror selection to which Schierman assigns error took

place on January 12, 2010, the last day of voir dire. During this phase, counsel met

with the trial judge in chambers, where counsel argued, and the judge ruled on,

several for-cause juror challenges. Schierman was not present.

Schierman argues that excluding him from both phases violated his right to

presence under the Sixth and Fourteenth Amendments to the United States

Constitution, and article I, sections 3 and 22 of the Washington State Constitution.

We conclude that he had no right to presence when his attorneys reviewed juror

declarations in the nonadversarial setting of the jury administrator's office. We

State V. Schierman (Conner), No. 84614-6

conclude that he did have a right' to presence during the hearing on for-cause

challenges, but that the error does not require reversal. Because the facts concerning

these proceedings are relevant to both the presence claim (discussed here) and the

courtroom closure claim (discussed below), we describe those facts here.

A. Facts

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

November 2009)

The documents in the record on this appeal show that in late September 2009,

jury summonses were issued to 3,000 people, directing them to report for service on

November 13, 2009. A summons recipient could respond by confirming that he or

she would appear or by submitting a declaration that he or she was unqualified or

unable to serve. The recipients were told that their responses were made under

penalty of perjury. Judge Gregory Canova directed the jury services manager for

King County, Gregory Wheeler, to review declarations of hardship with the

prosecutor and defense counsel.

Per King County Superior Court's general policy, potential jurors could get

hardship excusals for disability, age, a severe financial burden, or prior jury service,

or because the potential juror was a single parent with young children not attending

day care. Due to the anticipated length ofSchierman's trial, it was also contemplated

that jurors might be excused for reasons that normally warrant only a deferral, e.g.,

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State V. Schierman (Conner), No. 84614-6

travel plans, employment, or school. Wheeler conducted a preliminary review of

the potential juror responses and created two stacks of exeusal requests: one for

"those that were clearly meant to be excused per court policy" and one for "requests

noting a hardship of a less-than-obvious nature." Clerk's Papers(CP)at 21347-48.

He then met separately with the prosecution and defense regarding both categories

of hardship request.

If everyone agreed that a declaration stated a "hardship" as defined by official

court policy. Wheeler excused the potentialjuror without further review by the court.

If the parties disagreed. Wheeler saved the disputed hardship request so that Judge

Canova could review it at a hearing. This process went on between October 19 and

November 6, 2009.

The particular proceedings from which Schierman claims he was excluded

were the times when his lawyers, without the State's lawyers,^ went to an

administrative office in the courthouse to look at either hard copies of or a computer

screen displaying summoned jurors' e-mailed hardship requests (for reasons not

clear on this record, the screen could not be downloaded).^ Schierman says that he

^ It appears that the two sets of lawyers met with Wheeler at different times.

^ The record does not contain any transcripts concerning the development or

execution of this procedure. The documents are silent about these topics. Nor do we have

anything to supplement our understanding of how this off-the-record review of paper and

electronic documents was developed or carried out, since this is a direct appeal.

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State V. Schierman (Conner), No. 84614-6

was never present at any ofthese early hardship excusal reviews or conferences. The

State does not dispute that assertion. Schierman was present, however, at all the

hearings over disputed hardship requests. Thus, there is no claim that Schierman

was deprived of the right to presence at any court proceeding or at any noncourt

adversarial proceeding. Instead, Schierman claims only that he was excluded from

office visits where attorneys looked at a screen or papers for information.

Appellant's Opening Br. at 17-18("The judge made it clear that he would not review

the individual hardship requests if the parties were in agreement. . . . Schierman

was never present when the attorneys dealt with these hardship requests."(emphasis

added)).

Following this preliminary procedure,the venire was sworn,on the record, on

November 13, 2009. On that day, prospective jurors completed the questionnaire

"designed to let [them] tell the court and the lawyers about [themselves] and about

[their] views on a variety of issues." Verbatim Report ofProceedings(VRP)(Nov.

13, 2009) at 9.

2. Far-Cause Challenges in Chambers (January 12, 2010)

The record tells us quite a bit more about the challenges for cause conducted

in chambers—with both sets of attorneys, the judge, and the court reporter, but

without Schierman—^than it tells us about what occurred during the preliminary

hardship excusal reviews. The facts ofthe in-chambers challenges are as follows.

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State V. Schierman (Conner), No. 84614-6

On January 11, 2010, the last day scheduled for voir dire, 70 potential jurors

remained in the pool. At the end of that day, Schierman challenged six jurors for

cause: Jurors 25, 44, 58, 76, 104, and 171. The court heard argument from both

parties on those challenges, but deferred ruling so that the parties could further

question the six jurors on the following day.

On the following day, the State questioned Jurors 25 and 58. When that

questioning was over, Judge Canova stated, in open court, that he would rule "back

in[] chambers" on a number of hardship and for-cause challenges to potential jurors:

The next thing is that counsel and I are going to go with the court

reporter briefly back into chambers, I'm going to rule on a number of

requests for hardship that have been received by the court, I'm also

going to rule on a number of challenges for cause that are before the

court, that is, requests to excuse jurors for different reasons from

counsel. That will take less than ten minutes, and at the conclusion of

that I will advise all of you who have been excused, if anyone, and we

will then proceed to have counsel exercise their peremptory challenges,

that is the selection of the jury will follow.

VRP(Jan. 12, 2010) at 15-16.

The minute entry for that same day confirms:

Defendant and respective counsel present

Voir dire continues

Court and counsel meet in chambers re hardship and challenges

Court excuses # 424, 356, 265, 218, 172, 168, 130, 104, 79, 25 (and

208 separately)

State V. Schierman (Conner), No. 84614-6

As counsel exercise written peremptory challenges, the Court

preliminarily instructs and admonishes the potential jurors.

CP at 10402.

Following the judge's statement and the docket notation about meeting with

"counsel" in chambers regarding challenges for cause, counsel from both sides went

into chambers with the judge and the court reporter.'^ In chambers, the judge asked

the State's position on jurors 25 and 58. The State opposed a for-cause challenge to

both jurors. The judge nevertheless dismissed jurors 25 and 58 for cause because

they indicated that they would hold it against Schierman if he did not testify. The

defense also challenged jurors 76, 171, 104, and 44 for cause based on statements

that they would not "consider alcohol as contributing to mental state or lesser mental

state." VRP(Jan. 12,2010)at 20. Judge Canova denied all four challenges because

he did not think thejurors' statements indicated an inability to be "fair and impartial"

jurors. Id. at 20-22. He also granted hardship requests to Jurors 49, 79, 130, 172,

265, 356, and 424. He denied hardship requests to Jurors 104, 168, 218, 267, and

A written record was also made. The minute entry says that Schierman was present

in the courtroom, but that "[cjourt and counsel me[t] in chambers." CP at 10402. The last

comment by the judge before the chambers conference was "With that. Counsel, if you'll

please retire with me to chambers." VRP (Jan. 12, 2010) at 16. The State does not argue

that Schierman was present at this proceeding.

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State V. Schierman (Conner), No. 84614-6

285. The judge, lawyers, and court reporter then went back out to the open

courtroom, and the judge explained what had just occurred in chambers:

The following jurors have been excused: Juror number 424,juror

number 356, juror number 265, juror number 218, juror number 172,

juror number 168,juror number 130,juror number 104,juror number

79,juror number 58,juror number 49,juror number 25. These jurors

are not excused because ofperemptory challenges. That will come later

on this morning.

VRP (Jan. 12, 2010) at 42.

Ultimately, one of the six jurors to whom the defense raised (and lost) a

challenge for cause in chambers, in Schierman's absence, did sit on Schierman's

jury: Juror 76.

B. Analysis

A criminal defendant has a right, under the due process clause of the

Fourteenth Amendment,to be present "at any stage of the criminal proceeding that

is critical to its outcome if his presence would contribute to the fairness of the

procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d

631 (1987);In re Pers. Restraint ofLord, 123 Wn.2d 296, 306, 868 P.2d 835(1994)

{Lord II). Article I, section 22 of Washington's Constitution also guarantees the

right to "appear and defend in person."^

^ This court has held that article I, section 22"arguably" provides broader protection

than the federal due process clause does. State v. Irby, 170 Wn.2d 874, 885 n.6, 246 P.3d

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State V. Schierman (Conner), No. 84614-6

We first address Schierman's right-to-presence challenge to the preliminary

hardship determinations, and then his right-to-presence challenge to the for-cause

juror challenges in chambers.

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

November 2009)

The State argues that if excluding Schierman from the preliminary hardship

conferences was error, it was not of constitutional magnitude and therefore may not

be raised for the first time on appeal under Rules of Appellate Procedure (RAP)

2.5(a)(3).

RAP 2.5(a)(3) does not apply in its usual fashion on appeal of a death penalty

case. This court has held that we apply this procedural rule more liberally in such

cases, including to asserted guilt phase errors raised for the first time on appeal.

State V. Lord, 117 Wn.2d 829, 849, 822 P.2d 177 (1991){Lord I) (citing State v.

Jeffries, 105 Wn.2d 398,418, 717 P.2d 722(1986)).

It is clear, however, that there is no constitutional right to presence at the

noncourt, nonadversarial office visits to view juror declarations that are at issue here.

Thus, regardless of whether we consider this claim on its merits or under RAP

2.5(a)(3)'s gatekeeping inquiry—^which requires that an asserted error "clearly

796 (2011). It has also held that a claim under article I, section 22 must be examined

separately from a claim under the due process clause ofthe Fourteenth Amendment to the

United States Constitution. Id. at 885.

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State V. Schierman (Conner), No, 84614-6

implicate^ a constitutional interest," State v. Kalebaugh, 183 Wn.2d 578, 584, 355

P.3d 253 (2015)—^the claim fails.

In support of his argument that the constitutional right to presence attaches to

preliminary hardship determinations, Schierman relies primarily on this court's

decision in State v. Irby, which recognized a defendant's right to presence atfar-

cause eligibility determinations made a/ter jurors submitted written answers to juror

questionnaires. 170 Wn.2d 874, 884, 246 P.3d 796 (2011). Significantly, Irby

explicitly distinguished those postquestionnaire determinations from preliminary

hardship determinations, referring to the latter as "proceedings that courts have held

a defendant does not have the right to attend." Id. at 882(emphasis added).^ In this

respect, Irby is consistent with case law from other jurisdictions, which generally

distinguishes between dismissals that are unrelated to the facts and issues in the

® The facts in Irby obscure this distinction somewhat; substantively, the speeifie

dismissals at issue in Irby addressed both hardship (e.g.,"77 has a business hardship") and

eause ("36, 48, 49 and 53 had a parent murdered"), yet this eourt held that they were all

part of"'the work of empanelling the jury.'" 170 Wn.2d at 878, 883-84 (quoting Gomez

V. United States, 490 U.S. 858, 873, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989)). But

crueially, the Irby majority based that holding on the faet that the e-mail exehange at issue

occurred after the venire was swom and the members completed their questionnaires, and

on the fact that the e-mail exehange addressed some for-eause dismissals. Id. at 884 ("In

Irby's ease, 'the work of empaneling the jury' began on January 2 . . .[and] was ongoing

when the trial judge e-mailed Irby's attorneys and the prosecutor about potentially

dismissing 10 jurors, not only for hardship, but because 4jurors had parents who had been

murdered.").

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State V. Schierman (Conner), No. 84614-6

defendant's case (e.g., for schedule conflicts, illness, etc.), and dismissals that

implicate facts and issues particular to the case (e.g., for bias, taint, etc.).^ In this

case, the process of defense lawyers reviewing juror declarations—in hard copy or

electronic form—did not even rise to the level of a hardship excusal hearing. It was

a preliminary review of documents, after which the lawyers advised the court about

whether they even wanted a hearing. Thus, with respect to the review ofdeclarations

regarding preliminary hardship determinations, Schierman's right-to-presence claim

does not implicate any constitutional interest.^

Finally, Schierman argues that even if a defendant's right to presence does not

normally attach to preliminary hardship evaluations, it attached to the hardship

evaluations here because they were conducted according to a special procedure.

^ See, e.g.. City ofMandan v. Baer, 1998 ND 101, 578 N.W.2d 559, 563-64(before

the prospective juror reports for service, court may excuse prospective juror for illness or

hardship outside the defendant's presence); Porter v. State, 289 Md. 349, 358, 424 A.2d

371 (1981)(defendant has no right to presence at court's consideration ofhardship excuses,

since these are "unrelated to juror impartiality or disqualification"); People v. Marks, 152

Cal. App. 4th 1325, 1334, 62 Cal. Rptr. 3d 322(2007)(defendant has a right to presence

at proceeding to determine the suitability, though not the availability, of potential juror).

^ Schierman does not argue that our state constitution is more protective ofthis right.

This court has held that article I, § 22 is more protective than the Sixth Amendment in the

context of a confrontation clause challenge, State v. Martin, 171 Wn.2d 521,532,252 P.3d

872 (2011), and the right to self-representation. State v. Rafay, 167 Wn.2d 644, 222 P.3d

86(2009). But our case law on the right to presence during jury selection does not address

any distinction between the state and federal constitutional right. See In re Pers. Restraint

ofPirtle, 136 Wn.2d 467, 483-84, 965 P.2d 593 (1998); Lordll, 123 Wn.2d at 306.

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State V. Schierman (Conner), No. 84614-6

Appellant's Opening Br. at 24-25. He seems to refer to the fact that Judge Canova

separately reviewed any disputed hardship requests with the parties. Id. But

Schierman was present any time the judge conducted such a review. He was absent

only from his own lawyers' meetings with an administrator to review documents.

2. Far-Cause Challenges in Chambers (January 12, 2010)

Schierman next argues that his right to presence was violated when, in his

absence, counsel argued and the court ruled on several for-cause juror challenges.

a. Preservation of error

Under Irby, the constitutional right to presence clearly attaches to for-cause

challenges during voir dire. 170 Wn.2d at 883-84. The State does not dispute this.

Instead, the State argues that even if an "error affecting a constitutional right"

occurred here, this error was not "manifest" within the meaning of that rule. RAP

2.5(a)(3). We disagree. As noted above, RAP 2.5(a)(3) does not apply in is usual

fashion in a death penalty case. Lord I, 117 Wn.2d at 849 {citing Jeffries, 105 Wn.2d

at 418). But even if it did, its prerequisites are satisfied in this instance.^ In order to

show that an error is "manifest" under RAP 2.5(a)(3), Schierman must make "a

'plausible showing . . . that the asserted error had practical and identifiable

consequences in the trial of the case,"' meaning that '"given what the trial court

^ We note that the State did not raise RAP 2.5(a)(3) in our prior case addressing the

right to presence at juror eligibility determinations. Consequently, that case does not

discuss the rule's application in that context. See Irby, 170 Wn.2d at 885-86.

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State V. Schierman (Conner), No. 84614-6

knew at the time, the court could have corrected the error.'" Kalebaugh, 183 Wn.2d

at 584(quoting State v. O'Hara, 167 Wn.2d 91,99-100, 217 P.3d 756(2009)). The

error in this case meets that standard: the trial judge should have known not to hold

for-cause challenge arguments in the defendant's absence, and he could easily have

heard those arguments from the bench instead. Thus,the record is sufficient to allow

us to determine the merits of Schierman's claim. O'Hara, 167 Wn.2d at 99("Tfthe

facts necessary to adjudicate the claimed error are not in the record on appeal, . . .

the error is not manifest.'"(quoting State v. Kirkman, 159 Wn.2d 918,935, 155 P.3d

125 (2007))).

b. Merits

We conclude that the trial court committed constitutional error in excluding

Schierman from the discussion and rulings on six for-cause challenges. Irby, 170

Wn.2d at 884-85 (defendant's absence from a "portion ofjury selection" violated

constitutional right to presence); State v. Slert, 181 Wn.2d 598, 609, 334 P.3d 1088

(2014)(plurality opinion)(remanding for Court of Appeals to determine whether

violation of right to presence under Irby was harmless beyond a reasonable doubt),

rev'd, 186 Wn.2d 869, 383 P.3d466 (2016).

The State argues that Schierman had no right to presence at the in-chambers

proceeding because that proceeding "[did] not require a resolution ofdisputed facts."

Br. ofResp't at 36. It contends that for-cause challenges are strictly'"legal matters'"

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State V. Schierman (Conner), No. 84614-6

to which the right to presence does not attach. Id.(quoting Lord II, 123 Wn.2d at

306).

We disagree. For-cause challenges are not strictly legal arguments (to which

a defendant arguably cannot contribute), but involve a factual component. They

require the court to scrutinize jurors' answers and behavior for indications of bias

that may be subtle. Federal precedent in other contexts supports this view. E.g.,

Uttechtv. Brown, 551 U.S. 1, 9-10, 127 S. Ct. 2218, 167 L. Ed. 2d 1014(2007)(in

determining whether juror can be impartial, the trial court must evaluate juror's

demeanor; this judgment is entitled to deference). We hold that the trial court erred

when it heard for-cause challenges outside Schierman's presence.

c. Harmless error

In Irby, this court presumed prejudice stemming from the right-to-presence

violation at issue; accordingly, it placed the burden on the State to show that "the

jurors who were excused in [the defendant's] absence . . . had no chance to sit on

[the]jury." 170 Wn.2d at 886. In adopting this test,Irby departed substantially from

both federal constitutional law and our state precedent on the right to presence. Prior

to Irby, this court did not place exactly the same burden on the State. E.g., State v.

Caliguri, 99 Wn.2d 501, 509, 664 P.2d 466 (1983). Instead, before we applied

constitutional harmless error analysis to a violation of a defendant's right to

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State V. Schierman (Conner), No. 84614-6

presence, we required the defendant to "first raise at least the possibility of

prejudice."" Id.(emphasis added).

Schierman contends that we should apply Irby's presumption of prejudice

(even absent"at least the possibility of prejudice")in this case, but the relevant facts

in Irby are considerably different from the facts at issue here. Irby, 170 Wn.2d at

886. In Irby, counsel considered prospective jurors' answers to written

questionnaires and then, without consulting the defendant, agreed to dismiss several

jurors without further questioning—some for hardship and some for cause. Id. at

877-78. Thus, in Irby, the defendant had absolutely no opportunity to "'give advice

or suggestion'" on this portion of the jury selection process. Id. at 883 (quoting

Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 (1934),

overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489,

12 L. Ed. 2d 653 (1964)). Nor did he have any way of determining, after the fact,

how the excused jurors' "alleged inability to serve [might have been] . . . tested by

questioning in [his] presence." Id. at 886. In that circumstance, it makes sense to

burden the State with proving that even absent the constitutional violation, no

excluded juror could have been seated. To put this another way, it does not make

sense to burden the defendant with proving the unknowable.

This case is different. Here, Schierman was present for all of the juror

questioning—thus, he was present when counsel "tested" these jurors' eligibility to

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State V. Schierman (Conner), No. 84614-6

serve. Id. He also knew about the in-chambers argument in advance and raised no

objection to its occurrence. In this respect, Schierman's absence from the in-

chambers hearing is distinguishable from the facts in Irby and all ofthe authority on

which that decision relied. Instead, it is more similar to the situation in Slert, where

such facts militated in favor of finding any error harmless. 186 Wn.2d at 875-76

(factual differences from Irby compelled a conclusion different from the conclusion

in Irby).

Further, Schierman does not specifically allege any prejudice resulting from

the error here. Nor is any prejudice evident from the record. As noted above, the

two jurors who were excused after the for-cause challenges (jurors 25 and 58) were

both excused at the defendant's behest. And of the four jurors whom the defense

challenged unsuccessfully, only Juror 76 ultimately sat on Schierman's jury.

Schierman does not explain how defense decisions on peremptory challenges were

handled. Thus, although we conclude that the trial court erred in hearing for-cause

challenges outside Schierman's presence, on this record we find the error harmless.

Id. at 883 (citing Commonwealth v. Owens, 414 Mass. 595, 600-02, 609 N.E.2d

1208 (1993) (error to exclude defendant from sidebar voir dire in which judge asked

whether the defendant's race would affect the potential juror's deliberation, whether the

potential juror would give relatively more weight to the testimony of a police officer,

whether the potential juror would have difficulty rendering an impartial verdict in a case

involving drugs and guns, and whether the potential juror would prefer not to sit on the

jury) and United States v. Gordon, 264 U.S. App. D.C. 334, 829 F.2d 119, 124 (1987)

(error to exclude defendant from entire voir dire)).

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State V. Schierman (Conner), No. 84614-6

11. Conducting Certain Juror Eligibility Determinations in a Closed

Proceeding Implicates the Right to a Public Trial (under the Sixth

Amendment and Article I, Section 22); the Closure in This Case,

However, Was De Minimis and Thus Does Not Warrant Reversal

Schierman argues that his right to a public trial, under the Sixth Amendment

to the United States Constitution and article I, section 22 of the Washington State

Constitution, was violated when counsel met privately with the jury services

manager to make preliminary hardship excusal determinations(from late September

2009 to mid-November 2009). He also argues that his public trial right was violated

when counsel challenged several jurors for cause in chambers on the final day of

voir dire (January 12, 2010). He asserts that the remedy for each error is reversal of

his convictions.

A. Preliminary hardship determinations

1. Facts

The preliminary hardship excusal determinations are described in Section

I.A.I above.

2. Analysis

We recently held in State v. Russell that the public trial right does not attach

to "work sessions" in which attorneys, parties, and the court "review juror

questionnaires for hardship." 183 Wn.2d 720, 730-32, 357 P.3d 38 (2015). We

explained that hardship determinations—^which decide "whether a juror is able to

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State V. Schierman (Conner), No. 84614-6

serve at a particular time or for a particular duration"—differ fundamentally from

peremptory or for-cause challenges—which determine a particular juror's ability to

serve as a neutral factor in a particular case. Id. at 730. And we concluded that

hardship determinations do not implicate the concerns underlying the public trial

right, at least where no juror was excused for hardship without further (on-the-

record) proceedings unless all parties agreed. M at 731.

The preliminary hardship determinations in Schierman's case were identical

in all relevant respects to the work sessions in Russell. Thus, Russell controls and

Schierman's public trial right challenge to these determinations fails—^regardless of

whether we hold that the error was not preserved for review or the closure does not

constitute error.

B. For-cause challenges

1. Facts

The in-chambers juror challenges for cause are described in Section I.A.2

above.

2. Analysis

a. Preservation of error

As discussed in Section II.A.2.a above, a claim of courtroom closure can be

raised for the first time on appeal.

21

State V. Schierman (Conner), No. 84614-6

b. Merits

The State argues that the public trial right does not attach to the proceeding at

issue here—a proceeding that entailed both arguments and rulings on for-cause juror

challenges. It contends that the public trial right attaches to juror questioning, but

not to counsel's for-cause challenges or the trial court's rulings thereon. In support

ofthat argument,the State asserts that the proceeding at issue here was "functionally

a sidebar." Br. of Resp't at 54-55.

We reject this argument and reaffirm that the public trial right attaches to juror

challenges and the rulings thereon. We recently reiterated that it is '"well settled

that the right to a public trial . .. extends to jury selection,' and . .. reaffirm[ed] that

the right attaches to .. . for cause and peremptory challenges." State v. Love, 183

Wn.2d 598, 605, 354 P.3d 841 (2015)(first alteration in original)(citation omitted)

(quoting State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005)). It

necessarily follows that the right to a public trial extended to the hearing on for-

cause challenges in this case.

As we have explained in numerous recent cases, the public trial right attaches

to proceedings that have historically occurred in open court and that implicate "the

core values" underlying that right. State v. Sublett, 176 Wn.2d 58, 72, 292 P.3d 715

(2012) (plurality opinion). These values include "'ensur[ing] a fair trial, . . .

remind[ing] the prosecutor and judge of their responsibility to the accused and the

22

State V. Schierman (Conner), No. 84614-6

importance of their functions, . . . encourag[ing] witnesses to come forward, . . .

discourag[ing] perjury,' . . . promot[ing] confidence in the judiciary,"*' and

providing an outlet for the public's "concern, outrage, and hostility."*^ Juror

challenges plainly implicate several of these values. These challenges and rulings

can reflect racial, ethnic, and other forms of bias in jury selection. See Davis v.

Ayala, _ U.S. _, 135 S. Ct. 2187, 2194-95, 192 L. Ed. 2d 323 (2015); Batson v.

Kentucky, 476 U.S. 79, 83, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Conducting

them in open court, where the public can monitor the parties' use of challenges, thus

contributes to the fairness of the proceedings and promotes confidence in the

judiciary. This is perhaps never more important than in a contentious, notorious

criminal case like this one, where community "concern, outrage, and hostility" are

at their highest.*^ When a proceeding has historically occurred in public and

implicates these values, it is not a "sidebar."*'*

*'/« re Det. ofMorgan, 180 Wn.2d 312, 325, 330 P.3d 774(2014)(quoting Sublett,

176 Wn.2d at 72 and citing State v. Momah, 167 Wn.2d 140, 148, 217 P.3d 321 (2009)).

^^Press-Enter. Co. v, Superior Court, 478 U.S. 1, 13, 106 S. Ct. 2735, 92 L. Ed. 2d

1 (1986).

13

Id.

"* State V. Smith, 181 Wn.2d 508, 516 n.lO, 334 P.3d 1049 (2014)(holding that

"merely characterizing something as a 'sidebar' does not make it so," and explaining that

a proceeding is not a sidebar if it triggers the public trial right under the experienee and

logie test).

23

State V. Schierman (Conner), No. 84614-6

Consistent with these principles and with our opinion in Love, we hold that

the public trial right attached to the proceeding at issue here. The trial court therefore

erred when it heard and ruled on six for-cause juror challenges in a closed

proceeding.

In addition to arguing that the public trial right did not attach to the proceeding

in question, the State argues in the alternative that any error in closing the for-cause

challenges was de minimis, "so insignificant that it does not rise to the level of a

constitutional violation." Br. of Resp't at 57. This kind of error occurs when a

closure implicates the values underlying the public trial right—^when it involves

proceedings to which that right attaches—but does not undermine those values to an

extent that warrants the remedy ofautomatic reversal. Peterson v. Williams, 85 F.3d

39,43(2d Cir. 1996).

This argument presents us with a question offirst impression. To be sure, we

have rejected de minimis arguments in past cases. And one such case. State v.

Shearer, contained broad dicta purporting to completely reject "the possibility of de

minimis violations" of the public trial right under any circumstances. 181 Wn.2d

564, 573, 334 P.3d 1078 (2014) (plurality opinion). But we have in fact never

considered a de minimis error argument as applied to a proceeding like the one at

issue here: a proceeding that involved no witness testimony, no questioning of

potential jurors, and no presentation of evidence. Instead, all of our cases rejecting

24

State V. Schierman (Conner), No. 84614-6

that argument involved the determination of facts behind closed doors. State v.

Frawley, 181 Wn.2d 452, 455-58, 334 P.3d 1022 (2014) (plurality opinion)

(individual jurors questioned in chambers); Shearer, 181 Wn.2d at 567-68

(individual jurors questioned in chambers); In re Pers. Restraint of Morris, 176

Wn.2d 157, 161, 288 P.3d 1140 (2012) (plurality opinion) (individual jurors

questioned in chambers); State v. Paumier, 176 Wn.2d 29,33,288 P.3d 1126(2012)

(individual jurors questioned in chambers); State v. Wise, 176 Wn.2d 1, 7, 288 P.3d

1113(2012)(individual jurors questioned in chambers); State v. Strode, 167 Wn.2d

222, 224, 217 P.3d 310 (2008)(plurality opinion)(individual jurors questioned in

chambers); State v. Easterling, 157 Wn.2d 167, 172, 137 P.3d 825 (2006) (pretrial

motions to sever and dismiss closed so counsel could discuss "specifics" that he was

reluctant to discuss in open court); Brightman, 155 Wn.2d at 510-11 ('"first two or

three days'" ofjury selection, including juror questioning, closed to the public); In

re Pers. Restraint of Orange, 152 Wn.2d 795, 801-02, 100 P.3d 291 (2004)(entire

voir dire process closed to the public); State v. Bone-Club, 128 Wn.2d 254, 256-57,

906 P.2d 325 (1995)(pretrial suppression hearing closed).

This distinction matters to the public trial right analysis. As explained above,

the proceeding at issue here implicated several of the concerns underlying the right

to a public trial: public jury selection (including for-cause challenges) contributes to

oversight of the lawyers and the judge, reminding them of the significance of their

25

State V. Schierman (Conner), No. 84614-6

duties and serving as a cheek on their biases; promotes confidence in the judiciary;

and serves as an outlet for community concern. See In re Det. ofMorgan, 180 Wn.2d

312, 325, 330 P.3d 774(2014); Press-Enter. Co. v. Superior Court,478 U.S. 1, 106

S. Ct. 2735,92 L. Ed. 2d 1 (1986){c^oimg Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555, 570, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)). But because that

proceeding involved no juror statements, witness testimony, or presentation of

evidence, another purpose underlying the public trial right is not implicated:

'"diseourag[ing] peijury." Morgan, 180 Wn.2d at 325 (quoting Sublett, 176 Wn.2d

at 72). Nor is it clear how arguing the for-eause challenges in public could have

encouraged any witnesses to come forward. See id. Thus, unlike the closures we

have held to be reversible error in the past, the closure at issue here—although

error—did not fundamentally taint the process by which the court established the

facts necessary to assemble the jury or decide the case. Cf. Wise, 176 Wn.2d at 18

(granting the remedy ofa new trial for the erroneous closure of a portion ofvoir dire

because "[hjere, we cannot know what the jurors might have said differently if

questioned in the courtroom").

To properly address this kind of error, we must strike a careful balance.

On one hand, we must craft a rule that avoids the outcome warned against in

Justice Stephens's concurrence/dissent: the conflation of specific procedural rights

with a vague right to fundamentally '"fair"' proceedings. Concurrence/dissent at 17

26

State V. Schierman (Conner), No. 84614-6

(quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 145, 126 S. Ct. 2557, 165

L. Ed. 2d 409 (2006)). The temptation created by that approach, to excuse

procedural violations as harmless after the fact, leads predictably to the result that

procedural rights become entirely unenforceable. We agree with the

concurrence/dissent that this outcome poses unacceptable risks to our system of

justice, and that certain de minimis analyses from other jurisdictions exemplify this

problem. E.g., Gibbons v. Savage, 555 F.3d 112, 114, 121 (2d Cir. 2009)(holding

closed proceeding in which potential jurors were questioned about their impartiality

was de minimis violation); United States v. Al-Smadi, 15 F.3d 153, 154-55(10th Cir.

1994)(holding that 20-minute closure of trial was de minimis solely because it was

inadvertent). We stress that our current precedent, which today's decision does not

disturb, forecloses the possibility of de minimis violations involving juror

questioning or witness testimony.

On the other hand, we must also avoid enforcing the public trial right in a

manner so rigid and mechanistic that we do more harm than good to the values

underlying that right. The rule contemplated by Shearer's dicta, which purports to

preclude the possibility of de minimis error under any circumstances, would result

in that harm, for two reasons. First, a rule requiring automatic reversal for every

erroneous closure, no matter how inconsequential to the ultimate fairness ofthe trial,

is more likely to diminish than promote public confidence in the judiciary. This is

27

State V. Schierman (Conner), No. 84614-6

no doubt why the United States Supreme Court has held that where the public trial

right is concerned, "the remedy should be appropriate to the violation." Waller v.

Georgia, 467 U.S. 39, 50, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).^^ Second, a rule

that completely forecloses the possibility of de minimis violations will often force

appellate courts to choose between two undesirable outcomes: on one hand, a

reversal that is a clear windfall for the defendant and waste ofresources for everyone

else; on the other, a holding that the public trial right does not attach at all to the

proceeding in question. The policy implications of such a rule are troubling: it

creates an incentive for appellate courts to find more and more proceedings exempt

from Sixth Amendment and article I, section 10 protections altogether. This is no

doubt why there is no jurisdiction we are aware ofthat has adopted a rule completely

rejecting the doctrine of de minimis closures.

In light ofthese competing concerns, we hold that the doctrine of de minimis

error can apply to the proceeding at issue in this case, which involved no juror

Waller shows that sometimes even structural errors do not warrant the remedy of

a new trial. 467 U.S. 39. There, the United States Supreme Court held that the closure of

a seven-day preliminary suppression hearing was a constitutional error and that the

defendant "should not be required to prove specific prejudice in order to obtain relief." Id.

at 49. But it also denied the remedy of a new trial. Instead, the Court remanded for a new

suppression hearing and ordered a new trial only if the second,public suppression hearing

resulted in the exclusion of evidence admitted in the first trial. Id. at 50. Thus, Waller

illustrates the fact that a new trial is not always the remedy for the structural error of

courtroom closure. See also Weaver v. Massachusetts, U.S. , 137 S. Ct. 1899, 1909,

198 L. Ed. 2d 420 (2017)(noting that Waller did not grant the remedy of a new trial

"despite the structural aspect of the violation").

28

State V. Schierman (Conner), No. 84614-6

questioning, witness testimony, or presentation of evidence. We also hold, for the

reasons given below, that the closure at issue here was a de minimis error and

therefore does not warrant the remedy of automatic reversal.

As noted above and elaborated in Justice Yu's concurrence/dissent, the de

minimis error inquiry asks to what extent the particular closure in question

undermined the values furthered by the public trial right. Peterson, 85 F.3d at 43.

While this inquiry is necessarily case specific, courts applying it have considered the

length of and reason for the closure (e.g., whether it was inadvertent), Brightman,

155 Wn.2d at 517(collecting cases); the substance ofthe closed proceedings. United

States V. Ivester, 316 F.3d 955,960(9th Cir. 2003); and whether that substance was

contemporaneously transcribed or timely memorialized in open court, Peterson, 85

F.3dat43.

In this case, the closure was brief and, although it was not inadvertent, it was

also not objected to. While a defendant need not object to a courtroom closure in

order to preserve the issue for direct appeal, the lack of objection is some indication

that the trial remained fundamentally fair. Accord Weaver v. Massachusetts, U.S.

, 137 S. Ct. 1899, 1910, 198 L. Ed. 2d 420(2017)(erroneous courtroom closure

does not necessarily compromise the fundamental fairness of a trial). As discussed

at length above, the proceeding at issue here involved no factual determinations and

thus did not implicate the purposes of the public trial right relating to the

29

State V. Schierman (Conner), No. 84614-6

establishment of critical facts. And finally, the proceeding was simultaneously

transcribed and then immediately memorialized again in open court. VRP (Jan. 12,

2010)at 41("Now that everyone is back,I'm going to read offthe numbers ofjurors

who have been excused at this point."). These measures, while not a substitute for

real-time public observation, certainly served to remind the court and counsel of

their responsibilities and provide a check on possible bias, thereby ensuring the

fairness of the proceedings.

The remaining purposes of the public trial right are to promote public

confidence in the judiciary and ensure an outlet for community emotions. Public

confidence in—or,for that matter, basic understanding of—^the judiciary would not

be well served if counsel routinely examined jurors in public but then retired to

chambers to characterize and argue about these jurors' expressions, answers, and

demeanor. And real-time observation is certainly a better outlet for community

"concern, outrage, and hostility," Press Enter., 478 U.S. at 13, than review of a cold

record is. But in this case, the 10-minute meeting in chambers, which was

contemporaneously memorialized and publicly announced immediately afterward,

and occurred without testimony and without objection, cannot be said to have

meaningfully undermined public confidence or participation in the judicial system.

Indeed, it is more realistic to say that reversing four convictions for aggravated

murder resulting from a months-long trial on the basis of a 10-minute in-chambers

30

State V. Schierman (Conner), No. 84614-6

discussion^—^which the parties apparently agreed to and which resulted in no

testimony, no evidence, and no secrets—^would be more likely to diminish public

confidence in the judiciary.

For these reasons, we adopt a limited de minimis exception to our rule of

automatic reversal for all violations of the public trial right. We reject Shearer's

dicta foreclosing the possibility of de minimis violations altogether, and we hold that

the 10-minute closure at issue here—^to which there was no objection and which

involved no juror questioning, witness testimony, or presentation of evidence, and

was simultaneously transcribed and immediately afterward memorialized in open

court—^was a de minimis violation ofthe right to a public trial.

III. The Trial Court Did Not Violate Schierman's Right to Counsel under

the Sixth Amendment or Article I, Section 22 When It Excused

Approximately 100 Jurors for Hardship and Two Jurors for Age-

Related Reasons

Schierman argues that his right to counsel under the Sixth Amendment to the

United States Constitution and article I, section 22 of the Washington State

Constitution was violated when a defense paralegal agreed to the excusal of

approximately 100 prospective jurors for hardship. He also argues that his right to

counsel was violated when the jury coordinator excused two jurors for age-related

reasons. We reject both of these challenges.

31

State V. Schierman (Conner), No. 84614-6

A. Facts

1. Hardship excusal ofapproximately 100jurors after consultation

with paralegal

On October 19, 2009—^the first day on which Wheeler (the jury services

coordinator) reviewed hardship requests with counsel—a defense paralegal from

Connick's office came to the courthouse and met with Wheeler. Wheeler believed

that the paralegal was an attorney from defense counsel's office, although the

paralegal did not actually state that she was an attorney. Wheeler told the paralegal

that the State did not object to granting hardship requests for approximately 100

individuals. The paralegal agreed that those individuals could be excused on behalf

of the defense. Wheeler excused the 100.

Approximately 30 minutes later, Conniek found out what his paralegal had

done and e-mailed the court that there had been a mistake. The e-mail stated that

the defense did not agree to the dismissals. By that time, however, the court had

already dismissed the 100 jurors.

On October 20,2009,the trial eourt held an in-chambers eonference to address

the issue. At the conference, Conniek was, according to the court, "quite candid in

acknowledging that it had been his mistake in communicating with his paralegal."

VRP(Oct. 28,2009) at 7. Defense counsel gave "no indication that the defense was

32

State V. Schierman (Conner), No. 84614-6

planning to pursue any remedy, to the extent there might be one, for the mistake."

Id.

2. Jury coordinator's excusal oftwojurorsfor age-related reasons

On Friday, October 16, 2009,jury coordinator Patricia Rials sent an e-mail to

Wheeler informing him that two potential jurors "were excused for Age Related

Reasons." CP at 24703. The e-mail stated that one excused juror was 84 years old

and the other was 88, and also explained that the excusal "was done via telephone .

. . no back-up information." Id.(alteration in original).

B. Analysis

A criminal defendant has the constitutional right to counsel at all "critical

stages" of the proceedings. State v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90

(2005).

1. Hardship excusal ofapproximately 100jurors after consultation

with defense paralegal

Schierman argues that preliminary hardship excusal determinations are a

critical stage of the criminal proceedings. He does not cite any authority; he makes

only the broad argument that "[jjury selection is a critical stage." Appellant's

Opening Br. at 36.

The State argues that the right to counsel cannot attach to a determination that

may be delegated to court staff. More specifically, it argues that a hardship excusal

33

State V. Schierman (Conner), No. 84614-6

cannot be a "critical stage" of the criminal proceedings because it involves no

"judicial decisionmaking." Br. of Resp't at 65.

Schierman is correct that the "critical stage" determination does not turn on

the presence or absence ofjudicial decision-making. E.g., United States v. Wade,

388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149(1967)(right to counsel attaches to

postindictment lineup). However,ifthe right to counsel is claimed for a nonjudicial

proceeding, that proceeding constitutes a '"critical stage'" only if"the accused [is]

confronted . . . by the procedural system, or by his expert adversary, or by both."

United States v. Ash, 413 U.S. 300, 311, 93 S. Ct. 2568, 37 L. Ed. 2d 619(1973).

The necessary corollary of this rule is that if the accused is not in front of a

judge, not confronted by the procedural system, not confronted by the adversary, and

not really confronted at all, then the right to counsel does not attach. In this case,

the trial court established a hardship determination procedure that afforded both

parties an opportunity to object. One of the steps in that procedure was that the

lawyers could view juror hardship determinations—some of which came in online

and some of which came in on paper—in the jury administrators' office. The State

and the defense did go to that office, but they went separately. They looked at

declarations there,just as they might look at declarations in the privacy oftheir own

offices. Then, based on their record review,they informed the administrator and the

judge about whether a hearing was necessary. Every time a party requested a

34

State V. Schierman (Conner), No. 84614-6

hearing, the request was granted. Thus, this is not a situation where the State was

represented at an adversarial proceeding and the defendant was not.

Even if it were, the invited error doctrine prohibits a party from appealing on

the basis of an error that he or she "set up" at trial. City ofSeattle v. Patu, 147 Wn.2d

717, 720, 58 P.3d 273 (2002)(citing State v. Pam, 101 Wn.2d 507, 511, 680 P.2d

764(1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315,893 P.2d

629(1995)). In this case, defense counsel both caused the error and failed to request

any remedy when given the opportunity. Thus,the error was invited and Schierman

cannot raise it now, on appeal.

2. Jury coordinator's excusal oftwojurorsfor age-related reasons

Schierman's assignment of error to these dismissals is contradicted by the

record. The e-mail from Rials to Wheeler identified the two excused jurors by name.

CP at 24703. On October 22, 2009, defense counsel sent an e-mail to Wheeler

identifying these same two jurors by name and agreeing to their excusal for

"adv.age." CP at 25068.

35

State V. Schierman (Conner), No. 84614-6

IV. The Trial Court Did Not Err, under This Court's Decisions in

Dearbone^^ and Luvene)'^ by Permitting the State To File a New Notice

of Special Sentencing Proceeding in November 2009

RCW 10.95.040(1) provides, "If a person is charged with aggravated first

degree murder as defined by RCW 10.95.020, the prosecuting attorney shall file

written notice of a special sentencing proceeding to determine whether or not the

death penalty should be imposed when there is reason to believe that there are not

sufficient mitigating circumstances to merit leniency." RCW 10.95.040(2) provides

that the notice must be filed "within thirty days after the . . . arraignment." In

Dearbone and Luvene, this court held that RCW 10.95.040(2) requires strict

compliance.

Schierman argues that before the State filed the notice of special sentencing

proceeding in his case, it failed to charge him with aggravated first degree murder

""as defined by RCW 10.95.020" because it omitted some ofthe language describing

the aggravating factor alleged. RCW 10.94.040(1)(emphasis added). He argues

that the notice of special sentencing proceeding was therefore invalid under

Dearbone and Luvene. We reject this argument.

State V. Dearbone, 125 Wn.2d 173, 177, 883 P.2d 303 (1994).

1^ State V. Luvene, 127 Wn.2d 690, 719, 903 P.2d 960(1995).

36

State V. Schierman (Conner), No. 84614-6

A. Facts

The State charged Schierman on July 24,2006, with four counts ofaggravated

first degree murder and one count of first degree arson. Count I alleges that

Schierman premeditatedly caused the death of Olga and "that further aggravating

circumstances exist, to-wit: there was more than one victim; Contrary to RCW

9A.32.030(l)(a) and 10.95.020(10)." CP at 1. Counts II, III, and IV allege similarly

that Schierman murdered Lyuba, Justin, and Andrew. They also included the

following language:

[The State accuses Schierman] of the crime of Aggravated Murder in

the First Degree, a crime of the same or similar character and based on

a series of acts connected together with another crime charged herein,

which crimes were part ofa common scheme or plan, and which crimes

were so closely connected in respect to time, place and occasion that it

would be difficult to separate proof of one charge from proof of the

other, committed as follows: ....

Id. (boldface omitted). The remainder of each count alleged the existence of

aggravating circumstanees: "to-wit: there was more than one victim; Contrary to

RCW 9A.32.030(l)(a) and 10.95.020(10), and against the peace and dignity of the

State of Washington." CP at 2.

On October 20, 2006, at defense counsel's request, the court extended the

deadline for filing the notice of intent to seek the death penalty to January 31, 2007.

The State filed the notice on January 30, 2007.

37

State V. Schierman (Conner), No. 84614-6

At an omnibus hearing on October 23, 2009, the State notified the court and

the defense that the charging information contained a "scrivener's error . . . with

respect to the aggravating factor." VRP (Oct. 23,2009)at 126. The State explained

that although the information cited to the correct statute where it alleged the

existence of aggravating circumstances, it omitted part of the statutory language.

The information alleged that there was "more than one victim; Contrary to . . .

[ROW] 10.95.020(10)," CP at 1-2, but the full language of RCW 10.95.020(10)

reads: "There was more than one victim and the murders were part ofa common

scheme or plan or the result ofa single act ofthe person"(Emphasis added.) The

State moved to amend the information to add the missing language.

The court heard argument on that motion on November 3, 2009. The State

admitted its error but argued that the amendment would not prejudice the defense,

since "there ha[d] never been . . . any question in this case as to which aggravating

factor was alleged." VRP(Nov. 3, 2009)at 100. The defense objected that it would

be prejudiced ifthe State were permitted to amend the information. It argued that it

would have conducted discovery differently had it known that the State would allege

that the murders were part of a common scheme or plan, the result of a single act of

the person, or both.

The court granted the State's motion to amend the information, concluding

that the defense would not be prejudiced since if the amendment changed the

38

State V. Schierman (Conner), No. 84614-6

charging instrument at all, it would only add to the State's burden. The court's order

states that the "Amended information corrects [a] scrivener's error." CP at 6764.

The amended information is identical to the original information except that it

alleges the full aggravating circumstance listed in RCW 10.95.020(10): "There was

more than one victim and the murders were part ofa common scheme or plan or the

result ofa single act ofthe person." CP at 6766-68 (emphasis added).

The State filed a new death penalty notice on the same day (November 3,

2009). CP at 6769. The defense filed a motion to strike that notice, arguing that the

original notice of special proceedings had been based on a faulty charging

information and that it was now too late to file another notice. The court denied that

motion, ruling that the original charging information had properly pleaded the

aggravating circumstance listed at RCW 10.95.020(10).

B. Analysis

Schierman argues that the original information did not properly charge him

with aggravated first degree murder, that the original notice of special sentencing

proceeding was therefore invalid, and that the subsequent notice of special

sentencing proceeding was therefore untimely. Accordingly, he argues that the State

never filed a valid notice of special sentencing proceeding and that it therefore may

not seek the death penalty. He relies on Dearbone and Luvene.

39

State V. Schierman (Conner), No. 84614-6

We disagree. Schierman does not point to any defect in the content or timing

ofthe original notice ofspecial sentencing proceeding. He identifies instead a defect

in the information, i.e., that it failed to specifically allege that the murders were "part

of a common scheme or plan or the result of a single act ofthe person." CP at 6764-

68. That is not a defect in the death notice. And,in fact, the information did contain

the "common scheme or plan" language—just not in the usual place. Its failure to

include the "single act of the person" language is not a defect in the content, filing,

or service ofthe death notice. ROW 10.95.020(10). We therefore reject Schierman's

argument that the notice of special sentencing proceeding was invalid.

V. The Trial Court Misunderstood the Standard Applicable to the

Defense's For-Cause Juror Challenges, But It Did Not Violate

Schierman's Rights to Due Process and an Impartial Jury (under the

Sixth and Fourteenth Amendments)

The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a criminal defendant the right to trial by an impartial jury. Morgan v.

Illinois, 504 U.S. 719, 726, 112 S. Ct. 2222, 119 L. Ed. 2d 492(1992). In a capital

case, the trial court must ensure that the jury is composed of members who can apply

the State's death penalty law impartially. State v. Brown, 132 Wn.2d 529, 598,940

P.2d 546(1997).

Schierman argues that the trial court violated his right to an impartial jury by

applying unequal standards in its death qualification rulings. He contends that the

40

State V. Schierman (Conner), No. 84614-6

court applied a harsher standard—more likely to result in a juror's dismissal—^when

a juror expressed opposition to, as opposed to approval of, the death penalty.

A. Facts

On December 1, 2009, defense counsel challenged Juror 25 for cause, arguing

that the juror's questionnaire responses indicated he would not consider mitigating

factors during the penalty phase if Schierman were found guilty of aggravated,

premeditated first degree murder. The trial court and defense counsel then debated

the standard applicable to "disqualification of a juror for cause because of their

favoring the death penalty." VRP (Dec. 1, 2009) at 56.

The trial court opined that under Morgan, a juror could not be disqualified on

the basis of his or her support for the death penalty unless "the person really has an

automatic reaction . . . [and] will impose the death penalty if [the defendant] is

convicted of a particular crime regardless of any . . . mitigating circumstances." Id.

The court also opined that a different standard applied to jurors who opposed the

death penalty. It rejected defense counsel's for-cause challenge because it concluded

that Juror 25's questionnaire responses indicated that he would consider mitigating

circumstances "if we reach a sentencing phase." Id. at 60.

Defense counsel objected, arguing that Juror 25's responses indicated that he

would consider mitigating circumstances only "insofar as [they] relate[] to the

offense itself." Id. at 61. Defense counsel also objected to the court's interpretation

41

State V. Schierman (Conner), No. 84614-6

oiMorgan. The following day, defense counsel filed a written motion arguing that

the correct standard for disqualifying a juror because of his or her views on the death

penalty was '"whether the juror's views would 'prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath."" CP at 6972(boldface omitted)(quoting Morgan, 504 U.S. at 728 (quoting

Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985))).

Counsel argued that this standard, articulated by the United States Supreme Court in

Witt, applied to both pro- and anti-death-penalty jurors. In this motion, the defense

asked the court to disqualify for cause Jurors 14, 20, and 25.

In response, the State filed a motion arguing that different standards apply to

jurors who oppose and jurors who favor the death penalty. According to the State,

jurors who oppose the death penalty may be excluded on that basis whenever their

opposition would "substantially impair them from performing their duties," but

jurors vjhofavor the death penalty may be excluded on that basis only when they

"would automatically impose the death penalty." CP at 6977.

On December 8, 2009, the trial court issued a lengthy oral ruling on the

parties' motions and the meaning ofthe Morgan decision. It concluded that its prior

rulings were correct, and that United States Supreme Court precedent applicable in

this state under Brown, 132 Wn.2d at 598, established different standards for

disqualifying pro-death-penalty and anti-death-penalty jurors. The court specifically

42

State V. Schierman (Conner), No. 84614-6

agreed with the view expressed in footnote 5 to Justice Scalia's dissent in Morgan'.

that the majority's holding resulted in a "double standard" for capital jury

qualification. VRP (Dec. 8, 2009) at 226; see also Morgan, 504 U.S. at 750 n.5

(Scalia, J., dissenting).

On December 22, 2009,the trial court excluded Juror 302 on the ground that

her anti-death-penalty sentiments rendered her ineligible under the Witt standard.

Defense counsel again objected that the application of different disqualification

standards to pro- and anti-death-penalty jurors violated "fundamental fairness."

VRP (Dec. 22, 2009) at 82-83. The court declined to address the issue further.

Schierman argues that the trial court's application of this '"asymmetrical

standard'" resulted in the seating oftwo jurors who were "substantially impaired" in

their ability to be impartial(Jurors 59 and 140), and the erroneous exclusion ofJuror

280. Appellant's Opening Br. at 47, 55.

1. Juror 59

On December 8,2009,the defense challenged Juror 59 for cause, arguing that

that juror believed the defense had the burden to prove mitigation and that he would

consider only limited mitigating evidence, such as "a psychiatrically diagnosed

condition." VRP (Dec. 8, 2009) at 103-04. The trial court rejected the challenge

43

State V. Schierman (Conner), No. 84614-6

under both the Morgan standard'^—which it believed applied to jurors who favored

the death penalty—and the Witt standard—which it assumed applied "for the sake

of discussion." Id. at 106-09. The court specifically noted that Juror 59 admitted he

knew little about the law and said that he would follow the court's instructions. Id.

at 108. It also concluded that Juror 59 "was fine with the presumption of life being

the presumed sentence in the penalty phase . . . and . . . would follow that

presumption." Id. at 108-09. Ultimately, Juror 59 was dismissed before the jury

began its deliberations.

2. Juror 140

The challenge to Juror 140 proceeded similarly to the challenge to Juror 59.

The defense moved to disqualify Juror 140 because her questionnaire responses

indicated that she thought the defendant should get the death penalty "if he is

convicted." VRP(Dec. 9,2009)at 40. The trial court rejected the challenge because

it concluded that Juror 140 had, on further questioning by counsel for both parties,

shown herself to be capable of applying the law as instructed by the court.

Juror 140's responses to counsel's in-person questions were somewhat

ambiguous. In response to questions by defense counsel. Juror 140 stated that she

As indicated by my analysis below,there is no such thing as a "Morgan standard"

for excluding jurors in a capital case. VRP (Dec. 8, 2009) at 106. We use that term,

although it is incorrect, because it is useful shorthand for the trial court's rulings on this

issue.

44

State V. Schierman (Conner), No. 84614-6

didn't think "where [a defendant] came from in their own life and circumstances"

should make any difference at sentencing, provided the defendant was "convicted of

intentional, premeditated[] murder." Id. at 32. She also agreed that if a defendant

were convicted of premeditated murder, "then . . . the death penalty is the only

appropriate penalty for a guilty murderer like that." Id. at 32-33. In response to

questions by the State, however. Juror 140 stated that even if a defendant were

convicted of premeditated murder,"he might not need death, you know,there might

be hope ... for this person." Id. at 37. She also agreed that she was "okay with the

... idea ...[tjhat [a defendant convicted of aggravated premeditated murder] could

spend the rest of[his] days in prison," instead offacing execution, because she didn't

"know the whole story yet" and stated that she "can't go with what my heart tells

me,I've got to listen to the facts ofthe whole thing and be open." Id. at 38-40. She

repeatedly emphasized the possibility that a person who committed premeditated

murder might be truly sorry and "better himself." Id. at 38. She stated that she was

"open to the idea" that "fairness or mercy" could play a role in sentencing "because

we don't know the whole story yet." Id. at 39. She also stated her willingness to

apply a presumption in favor of life in prison without parole.

As with Juror 59, the trial court concluded that Juror 140 should not be

disqualified under either the ''Morgan" (automatic death penalty) standard or the

Witt(substantial impairment) standard. Id. at 44-45, 48.

45

State V. Schierman (Conner), No. 84614-6

3. Juror 280

In response to questioning by the court, Juror 280 stated that she would

probably have difficulty imposing the death penalty because "the death penalty is

definitely finite, and there's no going back. I also think that it's kind of arbitrary,

from kind of state to state, and perhaps maybe if you have more money you might

get a better judgment." VRP (Dec. 21, 2009) at 22. She clarified that she could

impose the death penalty under "really clearcut. . . circumstances where ... if the

person was let out they would kill again." Id. In response to questioning by defense

counsel. Juror 280 indicated that she might have trouble following the court's

instructions during the penalty phase because her personal "bar [to imposing the

death penalty] may be different than what the court instructs." Id. at 29. She then

repeated that her "bar" was that the death penalty should be imposed only on a

"person . . . likely to kill again." Id. at 30.

The trial court granted the State's for-cause challenge to Juror 280, finding

that her approach to the death penalty would add to the State's burden ofproof:"She

has [her ability to impose the death penalty] narrowed down to one very, very limited

set of facts and that set of facts clearly, in the court's view, would substantially

impair her ability to follow the court's instructions as to the law to be applied in this

case." Id. at 39.

46

State V. Schierman (Conner), No. 84614-6

B. Analysis

In the death-qualification context, the State, as well as the defendant, is

entitled to an "impartial jury." State v. Hughes, 106 Wn.2d 176, 185-86, 721 P.2d

902(1986)('"The guarantee of impartiality cannot mean that the state has a right to

present its case to the jury most likely to return a verdict of guilt, nor can it mean

that the accused has a right to present his case to the jury most likely to acquit. But

the converse is also true. The guarantee cannot mean that the state must present its

case to the jury least likely to convict or impose the death penalty, nor that the

defense must present its case to the jury least likely to find him innocent or vote for

life imprisonment.'"(quoting Smith v. Balkcom,660 F.2d 573,579(5th Cir. 1981))).

The United States Constitution and Washington's constitution provide the same

degree of protection for the impartial jury trial right in the death-qualification

context. Brown, 132 Wn.2d at 598.

For the reasons that follow, we conclude that the trial court erred when it ruled

that different disqualification standards apply to jurors who oppose, and jurors who

favor, the death penalty. But we also conclude that this error did not deprive

Schierman of his state and federal constitutional right to an impartial jury.

1. The trial court erred when it ruled that different disqualification

standards apply to pro- and anti-death-penaltyjurors

In Witt, the United States Supreme Court held that a prospective juror may be

dismissed for cause "because of his or her views on capital punishment" if those

47

State V. Schierman (Conner), No. 84614-6

views would '"prevent or substantially impair the performance of his [or her] duties

as a juror.'" 469 U.S. at 424. In embracing that standard, the Court rejected

statements in an earlier case, Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770,

20 L. Ed. 2d 776 (1968), to the effect that a potential juror could not be dismissed

for his opposition to the death penalty unless he '"states unambiguously that he

would automatically vote against the imposition of capital punishment no matter

what the trial might reveal.'" Witt, 469 U.S. at 418 n.2(emphasis omitted)(quoting

Maxwell v. Bishop, 398 U.S. 262, 265, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970) and

citing Boulden v. Holman, 394 U.S. 478, 482, 89 S. Ct. 1138, 22 L. Ed. 2d 433

(1969)).

Contrary to the trial court's ruling in Schierman's case, Witfs "substantial

impairment" standard governs for-cause dismissals based on either opposition to or

support for the death penalty. See Morgan, 504 U.S. at 728-29; Ross v. Oklahoma,

487 U.S. 81, 85, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988). There is no separate,

stricter requirement that protects "death-prone jurors" from dismissal unless they

admit that they would "automatically" vote for the death penalty. Witt, 469 U.S. at

418 n.2.

Morgan did not change that. Rather, it reaffirmed and elaborated the Court's

earlier holding, in Ross, that a juror is per se ineligible under the Witt standard if he

48

State V. Schierman (Conner), No. 84614-6

or she will automatically vote to impose the death penalty upon a defendant's

conviction in a capital case:

A juror who will automatically vote for the death penalty in every case

will fail in good faith to consider the evidence of aggravating and

mitigating circumstances as the instructions require him to do. Indeed,

because such a juror has already formed an opinion on the merits, the

presence or absence of either aggravating or mitigating circumstances

is entirely irrelevant to such a juror. Therefore, based on the

requirement of impartiality embodied in the Due Process Clause of the

Fourteenth Amendment, a capital defendant may challenge for cause

any prospective juror who maintains such views. Ifeven one such juror

is empaneled and the death sentence is imposed, the State is disentitled

to execute the sentence.

Morgan, 504 U.S. at 729(emphasis added).

Indeed, the standard for juror exclusion was not even at issue in Morgan—^the

case concerned only the defendant's entitlement to ask certain questions during voir

dire. The Morgan Court rejected the argument that "general fairness and 'follow the

law' questions ... are enough to detect those in the venire who automatically would

vote for the death penalty," reasoning that a juror might sincerely believe that his or

her "dogmatic views" are fair, impartial, and consistent with the law. Id. at 734-35.

It therefore held that such questions do not suffice, under the Fourteenth

Amendment, to protect the defendant's right to an impartial jury. U.S. CONST.

amend. XIV.

Thus, Morgan holds only that a juror who will refuse to consider mitigation

at all is "substantially impaired" (and therefore ineligible to serve) as a matter of

49

State V. Schierman (Conner), No. 84614-6

law, and that "general fairness" questions are insufficient to identify such jurors.^^

Contrary to the State's assertions, Morgan never held that a potential juror who

harbors doubts about the death penalty is easier to exclude than a potential juror who

is inclined to impose that sentence. Justice Scalia's footnote to the contrary appears

The State cites dicta from. United States v. Mitchell, 502 F.3d 931, 954 (9th Cir.

2007),to support its contention that the Witt(substantial impairment)standard applies only

to jurors who oppose the death penalty. Br. ofResp't at 90-91. Our review ofthe relevant

cases reveals many more that txQdX Morgan as an application of—rather than an altemative

to—Witt. See United States v. Whitten,610 F.3d 168,185(2d Cir. 2010)("In capital cases,

a juror is constitutionally unqualified if he has 'views on capital punishment' that would

'prevent or substantially impair the performance of his duties as ajuror in accordance with

his instructions and his oath.' [Under Morgan, t]hat category includes 'those prospective

jurors who would always impose death following conviction.'" (first emphasis added)

(citation omitted)(quotingMorgan,504 U.S. at 728,733-34); Williams v. Bagley,380 F;3d

932, 953 (6th Cir. 2004)("As a general rule, a defendant may excuse a juror for cause if

'the juror's views would prevent or substantially impair the performance of his duties as a

juror in accordance with his instructions and his oath.' Applying this ride in the capital

context, '[a]juror who will automatically vote for the death penalty in every case will fail

in good faith to consider the evidence of aggravating and mitigating circumstances'" and

may be excluded on that basis,(emphasis added)(alteration in original)(citation omitted)

(quoting Morgan, 504 U.S. at 728-29)); Nicklasson v. Roper, 491 F.3d 830, 838 n.7 (8th

Cir. 2007) (under Morgan, juror who would automatically impose the death penalty

following conviction does not qualify as impartial under the Witt (substantially unpaired)

standard); United States v. Brown, 441 F.3d 1330, 1353 n.lO (11th Cir. 2006)("Death-

qualification is the process by which jurors in a capital case are screened ... to ensure that

none has an opposition to the death penalty so strong that it would prevent or substantially

impair their performance as jurors in the sentencing phase. A juror who could never vote

for the death penalty, regardless of the court's instructions, or a jiuor who would

automatically vote for death in every case, is removed for cause. See Morgan . . ., 504

U.S.[at] 728-29.").

50

State V. Schierman (Conner), No. 84614-6

in dissent and is incorrect, and the trial court erred in adopting its interpretation of

the majority's decision.^*^

The full text of that footnote is as follows:

If, as the Court claims, this case truly involved "the reverse" ofthe principles

established in Witherspoon v. Illinois, 391 U. S. 510[, 88 S. Ct. 1770, 20 L.

Ed. 2d 776](1968),... then it is difficult to understand why petitioner would

not be entitled to challenge, not just those jurors who will "automatically"

impose the death penalty, but also those whose sentiments on the subject are

sufficiently strong that their faithful service as jurors will be "substantially

impaired"—the reformulated standard we adopted in ... Witt, 469 U. S. 412.

. . . The Court's failure to carry its premise to its logical conclusion suggests

its awareness that the premise is wrong.

Morgan, 504 U.S. at 750 n.5 (Scalia, J., dissenting)(emphasis omitted).

When the trial court endorsed this portion of the dissent, it noted that the Morgan

majority "[did] not respond at all to this simply stated analysis." VRP (Dec. 8, 2009) at

226. We disagree. The Morgan majority opinion makes very clear that the same

(substantial impairment) standard applies to jurors opposed to and in favor of the death

penalty. See, e.g., Morgan, 504 U.S. at 734-35 (Witherspoon . . . would be in large

measure superfluous were this Court convinced that... general ['follow the law'] inquiries

could detect those jurors with views preventing or substantially impairing their duties in

accordance with their instructions and oath. But such jurors—^whether they be unalterably

in favor of, or opposed to, the death penalty in every ease—by definition are ones who

cannot perform their duties in accordance with law, their protestations to the contrary

notwithstanding."). Morgan presented only one issue: whether a trial court may prevent

defense counsel from asking potential jurors if they would "automatically" impose the

death penalty upon conviction. Id. at 721. The Court had no occasion to consider what

other inquiries—also designed to identify "substantial impairment"—a defendant might be

constitutionally entitled to make.

It should also be noted that the State's brief contains a misstatement relating to this

issue. The State asserts that the Witt Court explicitly limited its holding to for-eause

challenges by the prosecution: "In fact, in the footnote appended to its 'prevent or

substantially impair' sentence in Witt, the Court wrote:'

[W]e simply modify the test stated

in Witherspoon's footnote 21 to hold that the State may exclude from capital sentencing

juries that "class" of veniremen whose views would prevent or substantially impair the

51

State V. Schierman (Conner), No. 84614-6

2. The trial court's error did not deprive Schierman ofhis state and

federal constitutional right to an impartialjury; thus, he is not

entitled to relief

a. Juror 59: even if the trial court erred by refusing to dismiss

Juror 59, this error does not entitle Schierman to relief

because Juror 59 was excluded before deliberations began

Schierman acknowledges that Juror 59 was excused before closing arguments,

but argues that the mere fact of his seating "demonstrates how prejudicial the court's

misreading ofthe law was to [the defense]." Appellant's Opening Br. at 55.

Where a trial court erroneously denies a defendant's for-cause challenge and

the defendant is forced to use a peremptory challenge to cure the trial court's error,

his rights are not violated so long as he is subsequently convicted by ajury on which

no biased juror sat. United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S.

Ct. 11A, 145 L. Ed. 2d 792(2000); State v. Fire, 145 Wn.2d 152, 154, 34 P.3d 1218

(2001). Juror 59 was not excluded through peremptory challenge, but he was

excluded before Schierman's jury began deliberations. Under the reasoning of

Martinez-Salazar and Fire, a trial court's erroneous denial of a for-cause challenge

performance of their duties in accordance with the instructions or their oaths.'" Br. of

Resp't at 88 (alteration in original)(quoting Witt, 469 U.S. at 424 n.5). Read in context,

however, the reference to "the State" in the Witt footnote clearly indicates trial courts and

state legislatures—it is not a reference to the prosecution. Witherspoon, the subject ofthe

footnote in Witt, addressed a state statute that made any person with '"conscientious

scruples against capital pruhshment'" subject to for-cause removal from a capitaljury pool.

391 U.S. at 512(quoting former III. Rev. Stat. ch. 38, § 743 (1959)).

52

State V. Schierman (Conner), No. 84614-6

is not independent grounds for relief. Fire, 145 Wn.2d at 165 (citing Martinez-

Salazar, 528 U.S. 324). Rather,the defendant is entitled to relief only when the trial

court's error actually resulted in the seating of a biased juror. Id.

The trial court's refusal to dismiss Juror 59 for cause did not result in Juror 59

actually deliberating in Schierman's case. Nor does Schierman allege that the

refusal indirectly resulted in the seating of any biased juror. Rather, he asserts that

it illustrates the prejudicial nature of the trial court's views on for-cause dismissals.

This argument asks us to assume that prejudice resulted from the court's application

of an asymmetric juror-exclusion standard. Under Fire, we cannot make that

presumption. Id. Thus, even if the trial court erred in seating Juror 59, this error

does not entitle Schierman to relief.

b. Juror 140: the trial court did not abuse its discretion by

refusing to dismiss Juror 140 for bias

Unlike Juror 59, Juror 140 did deliberate in Schierman's case. But the record

does not indicate that Juror 140's seating resulted from the trial court's legal error.

Although the trial court erred in ruling that different standards apply to defense and

prosecution for-cause challenges in a capital case, it explicitly stated that Juror 140

could be seated under either standard. Thus, it concluded that Juror 140's views on

capital punishment would not '"prevent or substantially impair the performance of

[her] duties as a juror.'" Witt, 469 U.S. at 424.

53

State V. Schierman (Conner), No. 84614-6

That conclusion is reviewed for abuse of discretion. State v. Cross, 156

Wn.2d 580, 595, 132 P.3d 80(2006). Juror 140 stated that she would not be able to

decide whether death was the appropriate penalty until she heard all the facts. She

stated that she would be able to consider mitigating circumstances and apply the

presumption in favor of life without parole. The trial court did not abuse its

discretion in concluding that Juror 140 was not substantially impaired in her ability

to follow the court's instructions and apply the law.

c. Juror 280: the trial court did not abuse its discretion when it

dismissed Juror 280 for bias

Juror 280 explicitly stated that her views on the death penalty would probably

prevent her from following the court's instructions. In context, this meant that she

would not consider imposing the death penalty unless the State proved that

Schierman would kill again if released.

In Cross,this court affirmed the trial court's exclusion of a juror who said that

he '"would have a hard time'" voting to impose the death penalty because the

defendant had paraplegia and used a wheelchair. This court reasoned that the

"challenge raise[d] a difficult question because ... Cross was entitled to ask the jury

to grant him mercy on the grounds of his physical state." Id. at 596-97. But it

concluded that the trial court did not abuse its discretion by excluding the juror;"The

trial judge clearly concluded that Juror 8 was not meaningfully willing or able to

54

State V. Schierman (Conner), No. 84614-6

consider the death penalty given the specific evidence in the case. It was not an

abuse of discretion to exclude this juror." Id. at 597.

In light ofthis holding in Cross, we conclude that the trial court did not abuse

its discretion by excluding Juror 280. In this case, Juror 280 told the trial court that

she would probably not consider voting to execute Schierman unless the State

proved that he would likely kill again. In Cross, Juror 8 told that court that he would

probably not vote to impose the death penalty because the defendant had a disability.

Given the deferential standard ofreview applicable and the concept of"impartiality"

this court adopted in Hughes, 106 Wn.2d at 185-86, we cannot conclude that the trial

court committed reversible error by excluding Juror 280.

VI. Cumulative Error in Jury Summoning and Selection Did Not Violate

Schierman's Right to a Fair and Impartial Jury

The errors that occurred during jury selection do not individually warrant

reversal. In this case, they do not rise to the level of cumulative error in the overall

jury selection process.

VII. The Trial Court Did Not Violate Due Process Protections by Permitting

the State To Argue That There Was Circumstantial Evidence of Sexual

Motivation

Schierman argues that the trial court violated due process protections by

permitting the State to argue that there was circumstantial evidence of a sexual

motivation for the murders. We disagree.

55

State V. Schierman (Conner), No. 84614-6

A. Facts

On December 30, 2009, the State served the defense with a "Supplemental

Memorandum And Materials In Support Of Admission Of Crime Scene And

Autopsy Photographs That Include Images Of The Victims." CP at 7200 (italics

omitted). The memorandum contained a list of photographs and corresponding

expert witness "Declaration[s]" interpreting the images therein. CP at 7231.

According to the defense, some ofthe interpretations suggested the State's intent to

"assert[] some type of sexual motivation." CP at 7201-02. Of particular concern

was medical examiner Dr. Richard Harruffs description of photograph 2548, which

read as follows: "Shows the victims' legs are spread apart, in all likelihood not a

result of the fire but probably reflects positioning prior to the fire; this photo also

shows a flashlight in the debris." CP at 7232. The defense believed this description

contradicted statements Dr. Harruff made in a 2007 defense interview to the effect

that he found nothing unusual about the posing of the victims' bodies and attributed

their positioning to the "thermal effect" of the house fire. CP at 7203-04 (boldface

omitted). It also argued that any attempt by the prosecution to present a sexual

motivation theory directly conflicted with the State's earlier stipulation that "there

is no physical evidence of sexual assault of any of [the] victims." CP at 7202

(underline omitted).

56

State V. Schierman (Conner), No. 84614-6

The defense moved the court to sanction the prosecution, strike the jury pool,

and continue the trial, arguing that it needed time to respond to what it deemed a

completely new theory by the prosecution.^' The trial court set arguments on the

issue for January 19, 2010, one week after jury selection was scheduled to begin.

When defense counsel argued that the motions should be decided before jury

selection began, the trial court ordered that "there will be no evidence presented of

sexual motivation or sexual assault, consistent with this Court's prior rulings and the

prior representations of counsel for the State that that was not an issue in the case."

VRP (Jan. 11, 2010) at 7. The court then stated that it would await the State's

briefing and the defense reply before addressing the matter further.

When the State filed its motion in response, it asserted that it had never agreed

not to pursue a sexual motivation theory. Instead, it said it had agreed only that

"there is no phvsical evidence of sexual assault." CP at 7347(boldface omitted). It

also argued that the defense had known "for literally years" about the circumstantial

evidence of a sexual motive, and that there was no legitimate reason for defense

CP at 7201 ("As a result of the [State's] non-diselosure .. . the defense is foreed

to proeeed to trial unprepared."), 7209 ("the jury pool has not been death qualified with

respect to [a sexual motivation] aggravator"); VRP (Jan. 11, 2010) at 3-4 ("the [jury]

selection process is .. . constitutionally defective . . . particularly given the late disclosure

of discovery that we received from the prosecutor on December the 30th ...[that] changes

the whole picture .... No one has been asked about anything related to the subject matter

contained within this new discovery. The entire process is flawed."). The State opposed

the motion.

57

State V. Schierman (Conner), No, 84614-6

counsel to suddenly express concern over the State's intent to pursue this line of

argumentation. The State cited

the defendant's sexual comments,on the night ofthe murder, about one

of the women across the street; the defendant's sexual banter in his

email communications late into the night ofJuly 16,2006;the condition

of Olga's body, which was found naked, on her back and with her legs

spread; the condition of [Lyuba]'s body, which was found virtually

naked, with the one article of remaining clothing, her tank top, pushed

above her breasts; and the presence of a probable fire trailer consisting

of women's underwear in Alia Botvina's^^ bedroom in the basement.

CP at 7348 (footnotes omitted).

The trial court denied the defense motion for sanctions, for a continuance, and

to strike the jury pool. It rejected defense counsel's argument that voir dire would

have been conducted differently if the defense had known about the sexual

motivation theory. The trial court instead agreed with the State that the defense had

received ample notice that there was "circumstantial evidence of a sexual motive."

VRP (Jan. 19, 2010) at 147. This evidence was, according to the trial court, crime

scene photos showing that Olga's and Botvina's bodies had been found nude or

mostly nude, the presence at the crime scene of a "probable fire trailer consisting of

women's underwear," and allegations that the defendant made sexual comments

about one of the victims. Id. at 148-49. The trial court also ruled that the State had

Alia Botvina is Lyuba's sister who lived in the Milkin's basement; she was not at

home at the time the murders took plaee.

58

State V. Schierman (Conner), No. 84614-6

not offered, and would not be allowed to present, any expert testimony regarding

such a motive. Finally, the trial court ruled that the defense could re-interview Dr.

Harruff on the contradiction between his initial statements and subsequent

declaration regarding the positioning of the victims' bodies.

B. Analysis

The State argues that it never misled the defense regarding its intent to argue

sexual motivation, and that it stipulated that there was no evidence of sexual assault

only to prevent the defense from independently testing vaginal swabs taken from the

adult victims. The record supports that contention. CP at 4448-56 ("State's

Memorandum in Opposition to Defendant's Motion to Independently Test Extracts

from Vaginal Swabs(Y-STR Testing)").

Further, with the exception of Dr. Harruffs statement regarding the

positioning of the victims' legs, Schierman does not allege that the State withheld

any sexual-motivation-related evidence. The trial court permitted the defense to re-

interview Dr. Harruff about his statement prior to trial, and Dr. Harruff ultimately

offered no testimony that the victims' legs were positioned apart.

As for the trial court's statement that the prosecution would not be allowed to

argue a sexual motivation theory, we agree with the State that this was a "passing

comment.. . based on a misunderstanding—later corrected." Br. of Resp't at 125.

As the trial court explained when it ruled on this issue, the State never requested any

59

State V. Schierman (Conner), No. 84614-6

"special finding" of a "sexual motivation." VRP (Jan. 19, 2010) at 149-50. In that

respect, IhQ fact of sexual motivation was not at issue in the case, but this did not

mean that the State agreed not to argue any sexual motivation theory. Schierman

argues now that he "reasonably understood the prosecutor's stipulation [regarding

sexual assault] to mean that sexual motivation would not be an issue at trial."

Appellant's Reply Br. at 36(emphasis added). But that is not a reasonable response

to the State's stipulation regarding sexual assault.

VIII. The Evidence Was Sufficient To Support the State's Sexual Motivation

Argument

Schierman argues that by presenting its sexual motivation theory, the State

made prejudicial statements unsupported by the evidence. We disagree; the State's

sexual motivation theory was supported by sufficient circumstantial evidence.

A. Facts

Sean Winter, a man who shared a duplex with Schierman and another tenant,

Isaac Way, at the time of the murders, testified that Schierman engaged in sexual

conversation on various occasions. He stated that when Schierman moved into the

house, he asked if there were "any good-looking women" in the neighborhood and

then specifically asked about "the blonde across the street." VRP (Feb. 9, 2010) at

85. Winter also said that Schierman engaged in "locker room talk . . . about girls"

on the night before the murders, and made a sexual comment in a Russian accent,

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referring to Olga. Id. at 90, 105. Winter testified that on the night before the

murders, Schierman had a pornographic video and made ajoke about giving a friend

a "blowup doll." VRP (Feb. 10, 2010) at 52-54, 66.

Todd Taylor, a computer forensic technician, testified that Schierman had a

Myspace chat with someone on the night before the murders, in which he sent and

received messages of a sexual nature.

Several witnesses also testified that women's undergarments were found

strewn around a basement bedroom in the Milkin home. There was evidence of

forced entry through the back basement door of the home. Dr. Harruff, the medical

examiner, testified that Olga's and Lyuba's bodies had been found nude or mostly

nude, and Kim Duddy, a forensic scientist, testified that Lyuba's clothing had been

removed after she was killed. That clothing was found stuffed into a microwave

oven vent. Finally, there was evidence that Schierman had an injury on his neck that

resembled a ligature mark, and testimony that a necklace identified as Schierman's

had Olga's DNA on it. The forensic expert who testified about the DNA explained

that he expected to find Schierman's DNA on the whole necklace, but any "foreign

biology . . . only on a portion of the necklace," and that his test results bore these

expectations out. VRP (Feb. 17, 2010) at 29-30, 41-42. He also explained that

foreign DNA could occur on a portion of the necklace "ifthe necklace was grabbed

in some way." Id. at 29.

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In the guilt phase closing argument, the prosecutor suggested that Schierman

had destroyed evidence of a sexual nature: "Why pour gasoline on the victims'

bodies? What does he know about those bodies that he doesn't want discovered?"

VRP(Apr. 8,2010)at 75. The prosecutor also referenced most ofthe evidence noted

above:

Well, we know what was going on Sunday evening. I talked about the

comment he knew about the women across the street, he knew about

the locker room talk, the joke about the blow-up doll, the defendant

bringing out the pornographic movie, Jenna Jamison movie,the e-mail

at 9:37 at night, 10:00, a sex party, there's nothing wrong with that,

people talk, that's not a condemnation, but taken together, what does it

tell us?

We know what's on the floor of Alla's bedroom, we know where

the bodies were found and how they were found inside that room at the

top of the stairs. Olga completely naked, leaving Lyuba only with her

tank-top on.

We know what the evidence tells us. We know there was trace

evidence found on the pajamas that were taken from the microwave,

Lyuba's DNA and the defendant's DNA,and there was trace evidence

recovered from underneath Lyuba's body.

Id. at 77-78. In addition, the prosecutor also suggested that the location of the

ligature mark—high on Schierman's neck—indicated that Schierman "may have

been prone on top ofsomebody else, and who might that person have been? Whose

DNA is on this necklace? Conner Schierman and Olga Milkin." Id. at 78-79.

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State V. Schierman (Conner), No. 84614-6

Finally, in the penalty phase, the prosecutor elicited testimony from

Schierman's friend Christopher O'Brien that Schierman had referred to the "hot

chick" across the street. VRP (Apr. 21, 2010) at 84.

B. Analysis

Schierman is correct that counsel, in closing argument to the jury, may not

make prejudicial statements that are unsupported by the evidence. State v. Rose,62

Wn.2d 309,312,382 P.2d 513(1963). But counsel may argue "'the facts in evidence

and reasonable inferences'" therefrom. State v. Dhaliwal, 150 Wn.2d 559, 577, 79

P.3d 432 (2003) (quoting State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306

(1985)). Here, almost every statement that Schierman challenges is a direct

reference to testimony elicited in the trial.

The authority on which Schierman relies holds only that counsel may not

argue a theory for which there is no evidence. Rose, 62 Wn.2d at 310, 312

(prosecutor committed misconduct when he referred to the defendant as a'"drunken

homosexual'" even though the State's own witnesses testified that the defendant had

not appeared drunk); State v. Boehning, 127 Wn. App. 511, 518-23, 111 P.3d 899

(2005)(prosecutor committed misconduct by arguing that the jury could infer that

child witness's out-of-court statements were even more damaging to defendant than

her in-court statements were).

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State V. Schierman (Conner), No. 84614-6

Schierman appears to suggest that the State needed expert testimony to

support its "sexual conclusions" because these conclusions were so prejudicial.

There is no support for this argument in the case law.^^

IX. The Presence of Soldiers in Uniform at the Trial, Coupled with

Testimony That Leonid Was Deployed in a Combat Zone When the

Murders Occurred, Did Not Violate Fourteenth Amendment Due

Process Protections or Sixth Amendment Rights to Confrontation and

an Impartial Jury

The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a criminal defendant the fundamental right to a fair trial. In re Pers.

Restraint of Woods, 154 Wn.2d 400,417, 114 P.3d 607(2005), overruled in part on

other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482

(2006). That right may be violated where the "courtroom arrangement" created a

risk that "'impermissible factors'" would influence the jury. Holbrook v. Flynn,475

U.S. 560, 570, 106 S. Ct. 1340,89 L.Ed. 2d 525(1986){quotingEstelle v. Williams,

425 U.S. 501, 505,96 S. Ct. 1691,48 L. Ed. 2d 126(1976)). Schierman alleges that

two factors, in combination, rendered his trial inherently unfair: (1) Leonid's

Schierman cites House v. Bell, 547 U.S. 518, 521, 540-41, 126 S. Ct. 2064, 165

L. Ed. 2d 1 (2006), an "actual innocence" case in which the Supreme Court noted that

"[wjhen identity is in question, motive is key." House held that new DNA evidence,

proving that semen on the victim's clothing did not come from the petitioner, was material

even though "neither sexual contact nor motive were elements ofthe offense." Id. at 540.

It does not address the relationship between closing argument and the record.

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State V. Schierman (Conner), No. 84614-6

testimony that he was deployed in Iraq at the time ofthe murders and(2)the presence

of uniformed military personnel in the courtroom audience.

A. Facts

Leonid, Olga's husband and Andrew and Justin's father, was a United States

soldier stationed in Iraq at the time ofthe murders. On October 28,2009,the defense

filed "Defendant's Motion to Preclude Soldiers in Fatigues from Attending

Proceedings." CP at 6443. It stated that defense counsel expected that uniformed

soldiers would attend the trial, and that this expectation was "based on prior

experience on this case, where the usual practice has been for soldiers in fatigues to

sit in the courtroom, behind the prosecutor's table, close to and in full view [of]

jurors who will not only decide whether Schierman committed the offense, but also

whether he will live or die." CP at 6444. Defense counsel requested in the

alternative that the court permit videotaping ofthe courtroom audience.

The trial court heard oral arguments on the motion on November 5, 2009. At

that hearing, defense counsel noted that Leonid had been appearing in uniform,

acknowledged that "he ha[d] every right to do so," and requested that the court

instruct the prosecution not to tell the jury that Leonid had been deployed in Iraq

when the murder took place. VRP (Nov. 5, 2009) at 9. The defense requested that

the jury be told only that Leonid was out of the country at the time. The State

opposed all of the defense motions related to military service.

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State V. Schierman (Conner), No. 84614-6

The trial court denied the motion to exclude soldiers in uniform from the

courtroom. It reasoned that "the limited presence of military personnel" did not

infringe on Schierman's constitutional rights because it was not a comment on guilt

or irmocence. Id. at 20. It also denied defense counsel's alternative motion to permit

videotaping.

The trial court did, however, limit "references to [Leonid]'s status as follows:

That he was in the military, on active duty at that time, and stationed outside of the

United States at the time ofthese crimes." VRP (Jan. 20,2010)at 14. The trial court

thus excluded evidence that he was stationed in Iraq.

That order was violated almost immediately. At trial, Leonid was the State's

first witness. At first, he testified that he was a soldier stationed at Fort Lewis, but

then later stated that when the murders occurred he "came back on emergency leave

from Iraq, from overseas." Id. at 100, 108. This violated the in limine ruling in

Schierman's favor; defense counsel did not call further attention to it, though—^he

did not object when the violation occurred. Later, the State asked Leonid about his

communications with his wife while he was stationed overseas. Leonid responded

that "[sjometimes my base would be mortared, and that [would] knock out

communications." Id. at 167. The defense objected that the testimony was

irrelevant. The trial court overruled the objection, and Leonid continued, "[A]lso,

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State V. Schierman (Conner), No. 84614-6

whenever soldiers would get killed, a complete communication blackout would be

imposed on our base." Id.

After the jury was excused, defense counsel renewed its objection and referred

to the in limine ruling, asserting that the State was "back-dooring in the fact that

[Leonid] was fighting overseas." Id. at 170. The trial court asked the prosecutor to

explain the relevance of questions about Leonid's communications with his wife.

The prosecutor claimed these questions were relevant "to establish what type of

communication was available from inside the Milkin residence, were there land

lines, were there cell phones?" Id. at 171. But the prosecutor also apologized to

defense counsel and the court.

The court directed the prosecutor to have another discussion with Leonid

regarding the limits on his testimony. It also told Leonid that if he made further

references to his service in Iraq, the court would instruct the jury that he was in

violation of a court order. The defense moved for a mistrial and, in the alternative,

for a limiting instruction. The court denied the motion for a mistrial, finding that

"the nature ofthe restrictions is not such that a violation ofthem ... rises to the level

of creating unfair prejudice to the defendant for violating his rights to a fair trial."

Id. at 175.

The court did give a limiting instruction, though. The following day. Judge

Canova admonished the jury to disregard all testimony "regarding [Leonid] being

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State V. Schierman (Conner), No. 84614-6

stationed in a combat zone in July of 2006." VRP (Jan. 21, 2010) at 12. Defense

counsel stated for the record that "there are three friends of[Leonid] in uniform in

court, and he appeared yesterday in court in uniform." Id. at 8.

About one month later, defense counsel renewed its objection to the presence

of soldiers in uniform: "Throughout this trial we've had two ordinarily uniformed

military people not only sitting in court, but sitting outside ... as jurors come in. . .

. It happens every day, and . . . they sit directly on a bench in front of the doors, as

the jurors come in." VRP (Feb. 18, 2010) at 10. The court disagreed with that

characterization:"For the record,I have not noticed individuals sitting in front ofthe

doors of the courtroom in military fatigues or otherwise in military uniform except

The defense offered an alternative instruction stating:

The court has previously ruled that the nature and location of Leonid

Milkin's military service in July 2006 is irrelevant. The prosecutor pursued

a line of questioning yesterday regarding phone contact between Leonid

Milkin and Olga Milkin while in the military. The answers elicited by the

prosecutor regarding the location and nature of Mr. Milkin's military service

w[ere] irrelevant to these proceedings and violated the court's prior order.

The questions and answers regarding the nature and location of Mr. Milkin's

military service is stricken and the jury is instructed to disregard such

testimony.

CP at 7395-96. Judge Canova rejected the proffered language, stating that he did "not want

those kinds of personal references as to opposing counsel. They are completely

unprofessional and inappropriate, and if I hear those kinds of comments again from either

side, that are personal attacks on opposing counsel, you will be subject to sanctions for

contempt of court." VRP (Jan. 21, 2010) at 7.

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State V. Schierman (Conner), No. 84614-6

on one or two occasions, including one day earlier this week." Id. at 10-11. It

declined to change its prior ruling on the issue, concluding that there was no

indication that any courtroom spectators had improperly influenced the jury.

Schierman argues that these events deprived him of his Fourteenth

Amendment right to due process and Sixth Amendment rights to confrontation and

an impartial jury.

B. Analysis

A defendant alleging that the "courtroom arrangement" rendered his trial

unfair bears the burden of showing that the courtroom arrangement was inherently

prejudicial. Holbrook,475 U.S. at 570.^^ A trial court's determination that spectator

conduct is not inherently prejudicial is reviewed for abuse of discretion. State v.

Lord, 161 Wn.2d276, 283-84, 165 P.3d 1251 (2007){Lordlll).

Schierman cites three lines of cases in support of his argument that the

presence of uniformed soldiers was inherently prejudicial, in violation of his fair trial

right. First, he cites cases holding that the appearance ofabnormal security measures

can deprive a defendant of due process. Appellant's Opening Br. at 80-81 (citing

Holbrook, 475 U.S. at 572; State v. Jaime, 168 Wn.2d 857, 233 P.3d 554 (2010)).

A defendant can also prevail by showing that the courtroom arrangement resulted

in actual prejudice. Norris v. Risely, 918 F.2d 828, 830 (9th Cir. 1990), overruled in part

on other grounds by Carey, 549 U.S. 70. Schierman does not cite any evidence of actual

prejudice.

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State V. Schierman (Conner), No. 84614-6

Second, he cites cases holding that conduct by courtroom spectators can constitute

an implicit statement, in violation of the Sixth and Fourteenth Amendments to the

United States Constitution, that the defendant is guilty. Id. at 81 (citing Norris v.

Risely, 918 F.2d 828, 833 (9th Cir. 1990), overruled in part on other grounds by

Carey, 549 U.S. 70). Finally, he cites cases holding that a defendant charged with

an offense against a law enforcement officer was denied a fair trial when large

numbers of the victim's colleagues attended the trial in uniform. Id. at 83 (citing

Woods V. Dugger,923 F.2d 1454(11th Cir. 1991); Shootes v. Florida, 20 So. 3d 434

(Fla. Dist. Ct. App. 2009); United States v. Johnson, 713 F. Supp. 2d 595, 616-17,

643-44(E.D. La. 2010)).

The first line of cases is not on point. The record in Schierman's case does

not indicate that the military officers who attended his trial appeared to be courtroom

security.

The second line of cases is on point, but distinguishable under Washington

precedent. In Norris, the defendant's rape trial was attended daily by at least three

women wearing buttons that read,'"Women Against Rape.'" 918 F.2d at 830-31.

The Ninth Circuit held that this deprived the defendant of a fair trial because it

conveyed a message that he was guilty: "Just as the compelled wearing of prison

garb during trial can create an impermissible influence on the jury throughout trial,

the buttons' message, which implied that Norris raped the complaining witness,

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State V. Schierman (Conner), No. 84614-6

constituted a continuing reminder that various spectators believed Norris's guilt

before it was proven, eroding the presumption of innocence." Id. at 831.

This court distinguished Harris in Woods, where this court denied relieffrom

the petitioner's death sentence, holding that he was not deprived of a fair trial when

the victim's family members wore "remembrance ribbons" in the courtroom. 154

Wn.2d at 416-18. The Woods court concluded that the ribbons were a tribute to the

victim and an expression of mourning, rather than a comment on the defendant's

guilt. Id. This court reaffirmed that holding in Lord III, distinguishing trial

spectators' "silent displays of affiliation" with the victim—in that case, the wearing

of buttons displaying an in-life photograph ofthe deceased—from spectator conduct

that "explicitly advocate[s] guilt or innocence." 161 Wn.2d at 287-90.

The wearing of military uniforms by some spectators at Schierman's trial is,

like the wearing of buttons or ribbons in Lord III and Woods, a display of affiliation.

Applying that precedent, we hold that the wearing of a military uniform is

distinguishable from the wearing of"Women Against Rape" buttons in Harris, and

that it did not violate Schierman's right to a fair trial.

Finally, the third line of cases Schierman cites is distinguishable by the

number of uniformed spectators involved. The defendant in Dugger was convicted

of killing a prison guard and sentenced to death. 923 F.2d at 1455. His trial took

place in a small town whose economy centered on the prison where the crime

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State V. Schierman (Conner), No. 84614-6

occurred. Id. at 1455-57. The trial received a great deal of publicity and was

attended daily by a full courtroom of spectators, about half of whom were prison

guards in uniform. Id. at 1458-59. The Eleventh Circuit held that these elements

combined to create an atmosphere that deprived the defendant of his Sixth

Amendment right to a fair trial. Id. at 1460.

In Shootes, the defendant was charged with assaulting a narcotics officer. 20

So. 3d at 436. During the final stages of the trial, between 35 and 70 uniformed

narcotics officers were present in the courtroom, constituting at least half of the

spectators. Id. Further complicating matters, the nature of the narcotics officers'

uniforms was an issue in the trial because the defendant argued that he had not

known his victim was an officer. Id. at 439. Distinguishing cases in which the

officers were fewer in number and less visible to the jury, the Florida Court of

Appeals held that the law enforcement presence violated the defendant's Sixth and

Fourteenth Amendment rights to a fair trial. Id.

Finally, in Johnson, the defendant was charged with shooting a security

officer during a bank robbery; he was convicted and sentenced to death. 713 F.

Supp. 2d at 603. During the testimony of an officer present at the robbery, more

than 40 uniformed members of the "Sherriffs Office" attended the trial. Id. at 616.

Defense counsel objected and asked the court to instruct the officers not to appear in

uniform. Id. The court denied the request. Id. Upon the defendant's motion for a

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State V. Schierman (Conner), No. 84614-6

new trial, the court recognized that in light of relevant precedent, it should have

granted the defense motion to prohibit law enforcement officers from attending the

trial in uniform. M at 617. It concluded that the error did not deprive the defendant

of a fair trial since it resulted in only one day of significant police presence, but that

it was "a small part[] ofthe overall totality of circumstances justifying a new penalty

hearing." Id.

To the extent that we have a record regarding the presence of uniformed

soldiers in the courtroom, that record indicates that there were at most two or three

uniformed soldiers attending the trial on any given day. It does not indicate that the

jury was exposed to the kind of show of force at issue in Dugger, Shootes, and

Johnson. Given the small number of spectators who attended Schierman's trial in

military uniform, the jury is likely to have assumed, at most, that a few of Leonid's

colleagues were in the courtroom to support Leonid. This situation, even in

combination with the erroneous admission of testimony that Leonid served in Iraq,

is readily distinguishable from the facts in Dugger,Shootes, and Johnson. In those

cases, the overwhelming presence of law enforcement in the courtroom, combined

with the nature ofthe charges, signaled to the jury that the many spectators "wanted

a conviction." Shootes, 20 So. 3d at 439 {citing Dugger,923 F.3d at 1460).

For these reasons, the trial court did not abuse its discretion in denying the

motion to prohibit military uniforms in the courtroom. Even in combination with

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State V. Schierman (Conner), No. 84614-6

Leonid's improper testimony about his service in Iraq, the limited military presence

at Schierman's trial did not result in inherent prejudice in the guilt phase.

X. The Guilt Phase Jury Instructions Did Not Violate Fourteenth

Amendment Due Process Protections

Schierman argues that the trial court violated Fourteenth Amendment due

process clause protections when it denied three separate defense requests for jury

instructions. U.S. Const, amend. XIV. He assigns error to (1) the denial of the

defense's proposed instructions differentiating between "premeditation" and

"intent," (2) the denial of the defense's proposed instructions on voluntary

intoxication, and (3) the denial of the defense's request for a manslaughter

instruction.

A. Schierman's proposed instruction differentiating between

"premeditation" and "intent"

1. Facts

The trial court gave the standard pattern jury instruction on "[pjremeditation":

WPIC 26.01.01. 11 Washington Practice: Washington Pattern Jury

Instructions: Criminal 26.01.01 (3d ed. 2008) (WPIC). CP at 7834. That

instruction reads as follows:

Premeditated means thought over beforehand. When a person, after

any deliberation, forms an intent to take human life, the killing may

follow immediately after the formation ofthe settled purpose and it will

still be premeditated. Premeditated must involve more than a moment

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State V. Schierman (Conner), No. 84614-6

in point oftime. The law requires some time, however long or short, in

which a design to kill is deliberately formed.

Id. The defense objected to that instruction on the ground that it could not be

distinguished from the WPIC on "intent"

Any intent must involve more than "a moment in time" and WPICs

26.01.01 and 10.01 have no discernible difference. Murder 1° requiring

premeditation and Murder 2° requiring intent (i.e., acting with

"objective or purpose") have no difference - both Murder 1° and

Murder 2° require a "thinking it over beforehand" to accomplish "a

result that constitutes a crime." Accordingly, the defense requests the

United States Supreme Court's definition in [Fisher v. United States,

328 U.S. 463, 467 n.3, 66 S. Ct. 1318, 90 L. Ed. 1382(1946)] with the

emphasis on prior deliberation.

CP at 7653.

The defense proposed three alternative instructions on "premeditation." The

first read as follows:

Deliberation is consideration and reflection upon the preconceived

design to kill; turning it over in the mind; giving it second thought.

Although formation of a design to kill may be instantaneous, as

quick as thought itself, the mental process of deliberating upon such a

design does require that an appreciable time elapse between formation

ofthe design and the fatal act within which there is, in fact deliberation.

The law prescribes no particular period oftime. It necessarily varies

according to the peculiar circumstances of each case. Consideration of

a matter may continue over a prolonged period—hours, days or even

longer. Then again, it may cover but a brief span of minutes. If one

forming an intent to kill does not act instantly, but pauses and actually

WPIC 10.01 defines "intent" as "aeting with the objeetive or purpose to

aeeomplish a result that constitutes a crime." 11 WPIC 10.01, at 217.

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State V. Schierman (Conner), No. 84614-6

gives second thought and consideration to the intended act, [he] [she]

has, in fact, deliberated. It is the fact of deliberation that is important,

rather than the length oftime it may have continued.

CP at 7652(alterations in original).

The defense alternatively proposed the following addition to the WPIC

"premeditation" instruction:

It is not enough that a person intended to kill or had the opportunity

to deliberate; premeditation requires that the person actually engage in

the process of reflection and meditation.

Premeditation may be proved by circumstantial evidence only where

the circumstantial evidence is substantial.

CP at 7814 (boldface omitted).

Finally, the defense proposed a third alternative:

Premeditation must involve more than a moment in point of time; but,

mere opportunity to deliberate is not sufficient to support a finding of

premeditation.

Rather, premeditation is the deliberate formation ofand reflection upon

the intent to take a human life and involves the mental process of

thinking beforehand, deliberation, reflection, weighing or reasoning for

a period of time, however short.

CP at 7815. The court refused all of these alternatives and, over defense objection,

gave the standard WPIC "premeditation" instruction. VRP (Feb. 7, 2010) at 13-17.

2. Analysis

A jury instruction is proper if it permits each party to argue its theory of the

case, is not misleading, and properly informs the jury ofthe applicable law. State v.

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State V. Schierman (Conner), No. 84614-6

Clark, 143 Wn.2d 731,771,24 P.3d 1006(2001)(quoting State v. Rice, 110 Wn.2d

577, 603, 757 P.2d 889 (1988), vacated in part on other grounds by Rice v. Wood,

77 F.3d 1138 (9tli Cir. 1996)). A trial court's refusal to give a jury instruction is

reviewed for abuse of discretion if it is based on a factual determination. State v.

Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). It is reviewed de novo if it

is based on a legal conclusion. Id.

This court has upheld the WPIC on premeditation in numerous cases, rejecting

the precise argument that Schierman makes here. Clark, 143 Wn.2d at 111 (citing

Lord II, 123 Wn.2d at 317); State v. Benn, 120 Wn.2d 631, 657-58, 845 P.2d 289

(1993) {Benn I), aff'd in part and rev'd in part, 161 Wn.2d 256, 165 P.3d 1232

(2007){Benn II); Rice, 110 Wn.2d at 770-71. This court has held that Washington's

pattern instructions on '"premeditation"' and '"intent,"' at least when used in

combination, make the distinction between these concepts "abundantly clear." Rice,

110 Wn.2d at 603-04. It has also held that WPIC 26.01.01 properly defines

"premeditation," accurately states the law, and is not misleading. Clark, 143 Wn.2d

at 771.

Schierman acknowledges this line of cases, but asks this court to "reconsider

the pattern instructions because they do not differentiate between intent and

premeditation in any meaningful way." Appellant's Opening Br. at 89.

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State V. Schierman (Conner), No. 84614-6

Schierman timely objected and offered his own instructions on this point.

Schierman's proposed instructions are good alternatives to the pattern instruction;

certainly, the trial court would not have erred by giving any of those alternative

instructions. But Schierman does not offer any argument that this court has not

previously addressed, and he does not show that our prior precedent on this issue is

incorrect and harmful. We therefore decline his invitation to overrule that precedent.

Alternatively, Schierman argues that his Fourteenth Amendment right to due

process was violated when the State used a baseball analogy in closing argument to

explain the difference between "intent" and "premeditation." Id. at 90-93; U.S.

Const, amend. XIV. Schierman does not allege that this analogy constituted

prosecutorial misconduct, and he does not cite any authority for the assertion that it

resulted in a due process violation. We therefore reject it.

B. Schierman's proposed instruction on voluntary intoxication

1. Facts

The defense proposed the following instruction on voluntary intoxication:

The prosecution must prove that the defendant committed

Aggravated First Degree Murder with premeditation and/or Murder in

the Second Degree with intent. The defendant contends that he did not

have the required intent and mental state due in whole or part to his

intoxication. However, the defendant does not need to prove that he

did not have the required intent and mental state.

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State V. Schierman (Conner), No. 84614-6

If you have a reasonable doubt about whether the defendant

committed the crime with premeditation, intent, criminal recklessness

or criminal negligence, you must find the defendant not guilty.

CP at 7654. The court denied that request and gave the standard WPIC on voluntary

intoxication instead:

No act committed by a person while in a state of voluntary

intoxication is less criminal by reason of that condition. However,

evidence ofintoxication may be considered in determining whether the

defendant acted with intent or premeditation.

CP at 7849. The defense objected to the first sentence of that instruction, arguing

that it "seems to contradict and vitiate the next line." VRP (Apr. 7, 2010) at 17-18.

The court rejected that argument because the WPIC mirrored the language in RCW

9A.16.090, the Washington criminal code statute addressing voluntary intoxication.

Id. at 18.

2. Analysis

Schierman contends that the trial court should have omitted the first sentence

ofthe WPIC on voluntary intoxication because that sentence renders the instruction

"Montradictorv and lalmbiguous." Appellant's Opening Br. at 93. He is correct

that there is some tension between the first sentence, implying that intoxication is

not relevant to the question ofguilt, and the second sentence,stating that intoxication

"may be" relevant to guilt. CP at 7849. But he does not show that the trial court

erred. He contends that the trial court should instead have borrowed language from

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State V. Schierman (Conner), No. 84614-6

this court's decision in State v. Coates, 107 Wn.2d 882, 735 P.2d 64(1987), which

interpreted the voluntary intoxication statute. Coates, however, neither held nor

implied that there is anything wrong with the WPICs on voluntary intoxication. It

held only that neither party bears the burden of proof on voluntary intoxication. Id.

at 891. In reaching that conclusion, the Coates court actually approved of a jury

instruction that exactly tracked the language of Washington's voluntary intoxication

defense statute, RCW 9A.16.090, which provides:

No act committed by a person while in a state of voluntary intoxication

shall be deemed less criminal by reason of his condition, but whenever

the actual existence ofany particular mental state is a necessary element

to constitute a particular species or degree of crime, the fact of his

intoxication may be taken into consideration in determining such

mental state.

Id. at 889.

Schierman also argues that the voluntary intoxication instruction should have

"appl[ied] to the aggravating factor of common scheme or plan." Appellant's

Opening Br. at 94. The State correctly points out that Schierman did not request any

instruction to this effect.

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State V. Schierman (Conner), No. 84614-6

C. Denial of defense's request for lesser included offense instruction

on manslaughter

1. Facts

The defense requested lesser included offense instructions on first and second

degree manslaughter. CP at 7641-51. The requested first degree manslaughter

instruction read as follows:

To convict the defendant of the crime of Manslaughter in the

First Degree, each of the following elements of the crime must be

proved beyond a reasonable doubt:

(1) That on the 17th day of July, 2006, Conner Michael

Schierman inflicted sharp force injury to [the victim];

(2) That Conner Michael Schierman's acts were reckless;

(3) That [the victim] died as a result of Conner Michael

Schierman's acts; and

(4) That the acts occurred in the State of Washington.

CP at 7643. The requested second degree manslaughter instruction was similar.

The trial court denied the requests, finding that they were not supported by

the evidence: "[T]he court's view[] is that there is no evidence to support the giving

of the lesser degree for manslaughter in the first degree and manslaughter in the

second degree, certainly not to the exclusion ofthe charged offense, which is murder

in the first degree." VRP (Apr. 7, 2010) at 11-12.

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State V. Schierman (Conner), No. 84614-6

Schierman argues that evidence of his intoxication raised an inference that he

committed manslaughter: "[T]he defense presented evidence that Schierman was

severely intoxicated at the time of the offense. The jury could have found that this

reckless intoxication diminished Schierman's ability to act intentionally, or even to

knowingly disregard a risk of harm." Appellant's Opening Br. at 97.

Schierman presented his intoxication evidence primarily through the

testimony of Dr. Andrew Saxon, an addiction psychiatrist at the Veteran's Affairs

Medical Center in Seattle. Dr. Saxon interviewed Schierman in November 2006 and

February 2007 regarding the events of July 16 and 17, 2006 (the time of the

murders). He also reviewed Schierman's medical and addiction treatment records.

In the interviews, Schierman told Dr. Saxon that he had consumed one 375-

milliliter bottle of vodka at work on July 16, 2006, and taken three or four more

bottles home with him. Based on Schierman's self-reporting, and on the fact that

detectives had recovered three empty vodka bottles from Schierman's bedroom three

days after the murders. Dr. Saxon formed the "opinion" that Schierman drank

heavily on the evening of July 16, 2006. VRP (Apr. 1, 2010) at 106-07.

Two witnesses who saw Schierman on July 16, 2006, testified that if

Schierman was drinking that night, he hid it from them. Schierman's roommate at

the time, Way,testified that although he had not seen Schierman drinking that night,

he later remembered Schierman acting "more outgoing than usual, more jovial,"

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State V. Schierman (Conner), No. 84614-6

when he arrived home on the evening of July 16, 2006, and thought that this might

have been a sign of intoxication. VRP (Feb. 10, 2010) at 169. Way also testified

that when detectives arrived on Tuesday, July 18, to question Schierman and

examine his injuries. Way began to suspect that Schierman had relapsed into

drinking. Id. at 177. While Schierman was at the hospital having his injuries

examined. Way entered Schierman's room and found a champagne bottle cork and

an alcoholic energy drink, which Way regarded as evidence that Schierman had, in

fact, started drinking again. Id. Finally, Way testified that he confronted Schierman

after his return from the hospital, and that Schierman then admitted to a relapse. Id.

at 181.

Schierman's housemate. Winter, testified that Schierman was "lively" and

"seemed happy" on the night of July 16, 2006, and that he saw Schierman drinking

a glass of orange juice with ice in it that night. VRP (Feb. 9, 2010) at 159-61.

From the transcript of the hearing on Schierman's guilt phase jury

instructions, it is clear that the trial court was deeply skeptical of Schierman's

intoxication evidence. Indeed, the court stated that it did not think Schierman was

legally entitled to the voluntary intoxication instruction, but that it would

nevertheless give that instruction "out of an abundance of caution":

The court did conclude . . . that while technically the court does not

believe the evidence at this point meets the standard set by the case law

requiring, among other things, substantial evidence of drinking and a

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State V. Schierman (Conner), No. 84614-6

connection between the amount of alcohol consumed . . . [and] the

ability of the defendant to form the requisite intent . . . [or]

premeditation....

. . . [0]ut of an abundance of caution,... I'm going to give it. .

. [because of] the nature of the consequences of the court's

interpretation being erroneous.

VRP (Apr. 7, 2010) at 7-9.

2. Analysis

Schierman argues that the trial court committed reversible error by denying

his request for the manslaughter instruction. The State disagrees, contending that no

error occurred and that if any did, it was harmless beyond a reasonable doubt. We

agree with Schierman that the trial court erred when it refused to give the

manslaughter instruction, but we conclude that the error was harmless beyond a

reasonable doubt.

A party is entitled to have the jury instructed on a lesser included offense if

that offense satisfies the two-pronged test this court established in State v. Workman,

90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Under the first prong {Workman's,

legal prong), the offense must consist solely of elements necessary to conviction of

a greater offense charged. Id. at 448. Under the second prong {Workman's factual

prong), the evidence must support an inference that only the lesser offense was

committed, to the exclusion ofthe greater offense charged. Id.

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State V. Schierman (Conner), No. 84614-6

In this case, the State concedes that Workman''s legal prong is met, since first

and second degree manslaughter consist solely of elements necessary to conviction

of first degree (premeditated) murder. Br. of Resp't at 157 (citing State v. Warden,

133 Wn.2d 559, 562-63, 947 P.2d 708(1997); State v. Berlin, 133 Wn.2d 541, 550-

51, 947 P.2d 700 (1997); see also State v. Jones, 95 Wn.2d 616, 621, 628 P.2d 472

(1981) (if prosecution proves intent, it necessarily proves recklessness and

negligence); State v. Bowerman, 115 Wn.2d 794,806,802 P.2d 116(1990)("mental

elements of recklessness and criminal negligence are lesser included mental states

of intent").

The State argues, however,that the requested manslaughter instructions failed

Workman's factual prong because "the evidence overwhelmingly established that

Schierman acted . . . with premeditated intent." Br. of Resp't at 162. Alternatively,

it argues that any error in denying the manslaughter instruction was harmless

because by rejecting a conviction for second degree murder, the jury necessarily

rejected any lesser conviction as well. Id.

A trial court's refusal to give instructions to a jury is reviewed for abuse of

discretion if it is based on a factual determination. Walker, 136 Wn.2d at 772. Here,

the trial court made a factual determination that the evidence did not support an

inference that Schierman committed manslaughter (a reckless or negligent

85

State V. Schierman (Conner), No. 84614-6

homicide) to the exclusion of either intentional (second degree) or premeditated

(first degree) murder.

Although the trial court denied Schierman's request for instructions on first

and second degree manslaughter, it did instruct the jury on second degree murder

and voluntary intoxication. Taken together, these three rulings indicate that the trial

court believed the evidence supported an inference that Schierman was too

intoxicated to premeditate the murders, but not an inference that he was too

intoxicated to intend the murders. Schierman argues that this was error: since the

evidence supported giving the voluntary intoxication instruction, which told the jury

that intoxication might diminish intent, the trial court should have instructed the jury

on manslaughter—a homicide offense with a lesser mental state (recklessness or

negligence) than intent to kill.

The case law supports Schierman's position on this point. In State v. Colwash,

15 Wn. App. 530, 531-33, 550 P.2d 57 (1976), aff'd, 88 Wn.2d 468, 564 P.2d 781

(1977), the defendant was convicted of second degree murder, which the evidence

showed he committed "by stabbing [the victim] with a knife." The court instructed

the jury that the homicide was neither excusable norjustifiable, but that"intoxication

could be considered in determining the presence ofintent." Id. at 531. It also denied

the defendant's request for a manslaughter instruction. Id. at 532.

86

State V. Schierman (Conner), No. 84614-6

The Court of Appeals reversed the convietidn in Colwash, holding that the

defendant was entitled to the manslaughter instruction because "[t]he giving of an

intoxication instruction created for the jury a question as to whether defendant

possessed the requisite premeditation and/or intent to kill required for murder." Id.

This court affirmed the Court of Appeals. Colwash, 88 Wn.2d at 470-71. We

reached the same conclusion in Berlin, where the defendant was found holding a

shotgun and standing over his dead friend after an evening of heavy drinking. 133

Wn.2d at 549. We upheld the defendant's right to a manslaughter instruction,

reasoning that "ample evidence was offered of Berlin's drinking to the point of

potentially impairing his ability to form the requisite intent to kill." Id. at 552. And

although Warden, 133 Wn.2d 559, involved a diminished capacity defense instead

ofa voluntary intoxication instruction, its reasoning supports Schierman's argument

in this case.^^ In that case, the defendant "disguised herself as a delivery person and

The State argues that Warden is inapposite because in that case, the defense

presented expert testimony that posttraumatic stress disorder diminished the defendant's

capacity for intent. But we do not require a defendant to present expert testimony in order

to establish that alcohol affected his or ability to acquire a requisite mental state. State v.

Thomas, 109 Wn.2d 222, 231-32, 743 P.2d 816 (1987)(expert testimony "not absolutely

necessary in order for a court to give an intoxication instruction"); Jones,95 Wn.2d at 622-

23 (defendant's testimony that he drank '"nine or eleven' beers," combined with

eyewitness testimony describing defendant's slurred speech, glassy eyes, and stint in the

'"dmnk tank'" on the night ofthe offense, entitled the defendant to a voluntary intoxication

instmction in murder case).

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State V. Schierman (Conner), No. 84614-6

gained entry into [the victim's] residence," demanded money, broke a mason jar

over the victim's head, and then stabbed the victim to death with a butcher knife she

found in a kitchen drawer.^^ A defense expert testified that Warden suffered from

PTSD (posttraumatic stress disorder) resulting in dissociative episodes, and that he

believed "[she] lacked that the mental capacity to form the intent to kill." Id. at 564.

We held that Warden was therefore entitled to an instruction on manslaughter in

addition to second degree murder. Id.

In this case, testimony that Schierman was in an alcoholic blackout when the

murders occurred created the same factual question that existed in Colwash, Berlin,

and Warden: whether, ifthe defendant did commit the acts charged, he or she did so

with the conscious intent necessary to constitute intentional, as opposed to reckless

or negligent, murder. This is why the trial court—albeit, in an "abundance of

caution"—gave the voluntary intoxication instruction. VRP(Apr. 7, 2010) at 8-9.

Consistent with our precedent on this issue, we hold that the trial court erred

when it refused Schierman's request for a manslaughter instruction.

We also hold, however, that this error was harmless.

As the State points out, the jury convicted Schierman of first degree

premeditated murder, despite the fact that it also received an instruction on the lesser

State V. Warden, noted at 106 Wn. App. 1055, 2001 WL 747659, at *1 (appeal

after remand).

88

State V. Schierman (Conner), No. 84614-6

included offense of second degree intentional murder. The State argues that this

verdict implicitly rejects every lesser offense included in first degree premeditated

murder, and that we can therefore be sure that a manslaughter instruction would have

made no difference.

We recently rejected a similar argument in State v. Condon, where the

defendant was charged with first degree premeditated murder and first degree felony

murder, the trial court erroneously refused an instruction on the lesser included

offense ofsecond degree intentional murder, and the jury convicted the defendant of

premeditated murder (the greatest crime charged) instead of first degree felony

murder. 182 Wn.2d 307, 313, 326, 343 P.3d 357 (2015). In holding that the trial

court's instructional error was not harmless, we rejected the argument that simply

by instructing the jury on the definitions of premeditation and intent, the trial court

effectively emphasized the legal distinction between first degree premeditated and

second degree intentional murder. Compare State v. Condon,noted at 174 Wn. App.

1041, 2013 WL 1628247, at *7 ("[t]he instructions given with respect to

[premeditated murder and felony murder] did not draw the jury's attention to the

difference between premeditation and intent"), with Condon, 182 Wn.2d at 333-34

(Gonzalez, J., dissenting)(pointing out that the jury was actually instructed on the

definitions of "intent" and "premeditation," and arguing that this sufficed to draw

the jury's attention to the difference).

89

State V. Schierman (Conner), No. 84614-6

With respect to this harmless error analysis, we find Schierman's case

distinguishable from Condon. In Schierman's case, the relevant legal distinction

was between intentional murder(committed by a person whose level ofintoxication

prevented him from premeditating his offenses) and reckless or negligent murder

(committed by a person whose intoxication prevented him even from intending those

offenses). Unlike the instructions given in Condon, the instructions given in

Schierman's case called the jury's attention to this distinction—and to the defense

theory that Schierman was in a state of alcoholic blackout when the murders

occurred.

This is because even though Schierman's jury was not instructed on

manslaughter, it was instructed on voluntary intoxication. That instruction

specifically called the jury's attention to Schierman's intoxication evidence, and it

specifically told the jury that it could consider this evidence when deciding whether

the defendant had premeditated or intended the murders. Having heard this

instruction, the jury nevertheless found that Schierman premeditated the murders—

that is, it found that he committed the murders with the most conscious and culpable

mental state. On this record, and given these instructions, there is only one possible

explanation for that verdict: the jury did not credit the theory that an alcoholic

blackout diminished Schierman's capacity to premeditate. There is no possibility

that a manslaughter instruction would have led the jury to a different conclusion.

90

State V. Schierman (Conner), No. 84614-6

For the foregoing reasons, we conclude that the trial court erred when it

refused to instruct the jury on manslaughter, but that this error was harmless. Having

found only one instructional error and that this error is harmless, we also reject

Schierman's argument that cumulative instructional error warrants reversal of his

conviction.

Penalty Phase Issues

Schierman raises several challenges to his death sentence. We hold that in

most respects, the experienced trial court judge correctly applied a complicated set

of constitutional and evidentiary rules to a contentious and emotionally charged

proceeding.

However, I disagree with the trial court's decisions to exclude important

mitigating evidence proffered by defense expert witnesses. I conclude that those

errors require reversal of the death sentences. And they would ordinarily require a

remand to permit the State to proceed to a new sentencing phase. But this court is

also required by statute to analyze whether imposing a sentence of death in each

particular case is proportionate. I further conclude that the sentences ofdeath violate

Washington's prohibition on disproportionate capital sentencing. For that reason, I

would reverse the sentences of death and remand with instructions to impose the

only lawful sentence available for these crimes: four consecutive sentences of life

in prison without possibility of parole.

91

State V. Schierman (Conner), No. 84614-6

1. The Exclusion of Certain Mitigating Evidence Violated Schierman's

Right to Due Process and Protection against Cruel Punishment under

Article I, Sections 3 and 14 ofthe Washington State Constitution

A. The trial court erred by excluding Dr. Cunningham's expert

testimony on lack offuture dangerousness in prison

1. Facts

In opening statements during the penalty phase,the defense mentioned for the

first time that it planned to call Dr. Mark Cunningham, a clinical and forensic

psychologist, to testify regarding Schierman's lack of future dangerousness in

prison. The State objected that the defense had never disclosed its intent to call Dr.

Cunningham to testify on any topic other than the phenomenon of alcoholic

blackout. The defense submitted an offer of proof later that evening. This offer

summarized Dr. Cunningham's proposed testimony on future dangerousness and

mentioned a Microsoft PowerPoint presentation.

The next day, the trial court found that the defense had no "possible . . .

legitimate basis ... for this incredibly untimely disclosure of an absolutely new and

previously unrelated scope of expert testimony." VRP (Apr. 20, 2010) at 15-16.

The trial court did not, however, penalize Schierman for his lawyers' lateness: it

specifically denied a motion to exclude Dr. Cunningham's testimony due to untimely

disclosure. Instead, it postponed ruling on admissibility and directed the defense to

provide the State with a copy of the proposed PowerPoint presentation.

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State V. Schierman (Conner), No. 84614-6

That presentation, "Conner Schierman: Violence Risk Assessment March

2010," consisted of 42 slides summarizing and applying data culled from Dr.

Cunningham's research on inmates incarcerated throughout the United States. CP

at 8302. Many of the slides depicted rates of violence among various groups of

inmates in different state and federal prisons. Overall, they conveyed the message

that inmates sentenced to death or life without parole are less likely than other

inmates to commit violent acts in prison. The presentation culminated in three slides

titled "Individualized Actuarial Likelihood of Conner Schierman Committing a

Prison Assault," and several slides listing the "Available Measures to Control

Disruptive or Violent Inmates" in Washington Department of Corrections (DOC)

facilities. CP at 8307-08.

Slides 36, 37, and 38 were all titled "Individualized Actuarial Likelihood of

Conner Schierman Committing a Prison Assault." Id. The first slide compared

Schierman with inmates in the Florida DOC,the second compared him with capital

offenders in Texas, and the third compared him with "capital offenders who obtained

relief from death sentences 1989-2008." Id. Slide 36 stated that among the Florida

inmates studied, ''''Inmates matching [Schierman] were in the lowest 15% of risk

classification," and had only a "4.5% [rate of] potentially violent misconduct." CP

at 8307. The second two slides stated that 0 percent of inmates ''matching

[Schierman]" committed serious assaults. CP at 8308.

93

State V. Schierman (Conner), No. 84614-6

As discussed above, the State moved to exclude Dr. Cunningham's

presentation and testimony due to late disclosure and lack of relevance. The trial

court did not exclude this evidence for late disclosure.

The trial court instead excluded it for lack ofrelevance. It accepted the State's

argument on this point, which rested on Morva v. Commonwealth,278 Va. 329,350-

351, 683 S.E.2d 553 (2009). In that case, the Supreme Court of Virginia held that

the same Dr. Cunningham could not provide capital penalty phase testimony about

the Virginia DOC's "security interventions" because they were not relevant to the

defendant's "character, history, and background." Morva, 278 Va. at 350-51. The

trial court acknowledged that testimony on future dangerousness was "clearly . . .

allowed" since lack of future dangerousness is a "statutorily listed mitigat[ing]

circumstance." VRP(Apr. 29, 2010)at 22. But it concluded that the majority ofthe

slides in Dr. Cunningham's presentation were "generic" and thus irrelevant. Id. at

24.

The trial court did not fully explain what it meant by calling the excluded

slides "generic." Id. at 24. But when it limited Dr. Cunningham's testimony on this

basis, the court cited the Virginia case, Morva, with approval:

I quote from the decision in Morva versus The Commonwealth

of Virginia, which is, again, found at page 11 of the State's brief....

94

State V. Schierman (Conner), No. 84614-6

There the Court, while considering the scope of Dr.

Cunningham's proffered testimony on this same issue, noted as

follows:

"To be admissible, evidence relating to a prison environment

must connect the specific characteristics of the particular defendant to

his future adaptability in the prison environment. It must be evidence

peculiar to the defendant's character history and background in order

to be relevant to the future dangerousness inquir[y].

"Conditions of the prison life and the security measures utilized

in the maximum security facility are not relevant to the future

dangerousness inquiry, unless such evidence is specific to the defendant

on trial and relevant to that specific defendant's ability to adjust in

prison life."

That is a quote taken from page 350 ofthe Morva opinion.

With that in mind, the court is appropriately limiting Dr.

Cunningham's testimony on future dangerousness to those factors; that

is, factors which are tailored to Mr. Schierman's situation, his

background, everything that would relate to, in Dr. Cunninham's

opinion, his ability to not present a risk of violence in the future, impose

a risk of danger to other[s], without possibility of parole or life in the

Washington State [DOC].

The vast majority of Dr. Cunninham's slides are generic. They

are not, in the Court's view, at all helpful to the jury's understanding of

this issue.

They are not within the scope that I have outlined, by my

reference to the quotation from . . . Morva versus the Commonwealth

of Virginia.

Id. at 23-24.

95

State V. Schierman (Conner), No. 84614-6

This passage clearly indicates that when the trial court excluded the "vast

majority" of Dr. Cunningham's testimony, it was applying the rule from Morva-?'^

the rule that a defendant's diminished opportunity to commit acts of violence due to

prison security measures is inadmissible in a capital penalty phase proceeding

because it is irrelevant to the defendant's character, history, or background.^®

Morva, 278 Va. at 350-51.

The court's ruling left the defense with 16 full slides and one partial slide.

These slides covered topics such as "Why Conner Schie

This text is long and has been trimmed here. Open the source document for the complete record.