In Re the Personal Restraint of Jeffries

789 P.2d 731, 114 Wash. 2d 485, 1990 Wash. LEXIS 37

• Court: Washington Supreme Court
• Decided: April 5, 1990
• Docket: 56153-2
• Status: Published

Opinions

Dore, J.

— This is Patrick James Jeffries' third personal restraint petition challenging his 1983 aggravated first degree murder convictions and death sentence. The court has now considered the petition, the parties' briefs, and the State's motion to dismiss the petition as repetitive. See RAP 16.4(d). We have also reviewed the trial transcript. For the reasons discussed below, we grant the State's motion in part and dismiss the petition in its entirety.

Procedural Background

Petitioner was represented at trial by attorneys Mark Mestel and Walter Sowa. Attorney Brian Phillips, who practices in the same office as Mr. Mestel, represented petitioner on appeal¹ and in one of his two previous personal restraint petitions.² Mr. Sowa acted as counsel in the other personal restraint proceeding, which was filed while the direct appeal was still pending.³ In the present petition, attorneys Phillips and Stephanie Ross raise some 29 issues, most of which were rejected on their merits in one or more of the prior proceedings. (See appendix for a list of all 29 issues with citations to the portions of our prior opinions addressing the renewed claims.)

A claim rejected on its merits on direct appeal will not be reconsidered in a subsequent personal restraint petition unless the petitioner shows that the ends of justice would be served thereby. In re Taylor, 105 Wn.2d 683, 687, 717 P.2d 755 (1986). Nor may a prisoner bring "more than one petition for similar relief" absent a showing of "good cause". RAP 16.4(d). A successive petition seeks "similar relief" if it raises matters which have been "previously heard and determined" on the merits or "if there has been an abuse of the writ or motion remedy". In re Haverty, 101 Wn.2d 498, 503, 681 P.2d 835 (1984) (quoting Sanders v. United States, 373 U.S. 1, 15, 17, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963)). We will discuss these concepts in more detail in connection with petitioner's renewed claims and those he contends are new.

Renewed Claims

Petitioner does not claim to have good cause for renewing the vast majority of the previously rejected issues. He contends only that approximately seven of these issues either have been "so substantially revised" as to constitute "new" claims or are supported by "new and persuasive authority". Brief of Petitioner, at 2.⁴ A material intervening change in the law would constitute good cause to permit a successive petition under RAP 16.4(d). In re Taylor, supra at 688 (quoting Sanders v. United States, supra at 16-17). Simply "revising" a previously rejected legal argument, however, neither creates a "new" claim nor constitutes good cause to reconsider the original claim. As the Supreme Court observed in Sanders, "identical grounds may often be proved by different factual allegations. So also, identical grounds may be supported by different legal arguments, . . . or be couched in different language, ... or vary in immaterial respects". (Citations omitted.) Sanders v. United States, supra at 16. Thus, for example, "a claim of involuntary confession predicated on alleged psychological coercion does not raise a different 'ground' than does one predicated on physical coercion". Sanders, at 16.

Petitioner's "revised" arguments in support of his previously rejected claims similarly do not constitute new or different grounds for relief. Additionally, the case law he cites as "new" is for the most part inapposite.

His renewed challenge to the proportionality of his death sentence, however, does involve intervening developments in our approach to proportionality review. Petitioner's direct appeal was only the second case in which we were required to conduct the proportionality review required by RCW 10.95.130. See State v. Campbell, 103 Wn.2d 1, 25, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985); Jeffries I, at 430.⁵ The several capital cases we have decided since that time have given us both a larger database of potentially "similar cases" and an opportunity to refine our proportionality analysis. See State v. Rupe, 108 Wn.2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); State v. Rice, 110 Wn.2d 577, 627, 757 P.2d 889 (1988), cert. denied, 109 S. Ct. 3200 (1989); State v. Harris, 106 Wn.2d 784, 799, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987); State v. Mak, 105 Wn.2d 692, 755, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). Since application of that analysis in petitioner's case would serve the ends of justice, we will address the merits of this issue. See In re Taylor, supra at 688 (issue decided on direct appeal will be addressed in subsequent personal restraint petition if to do so would serve the ends of justice).⁶

Petitioner contends that his sentence is disproportionate to the prison terms imposed in numerous aggravated first degree murder cases in which the State did not seek the death penalty. The proportionality of a particular defendant's death sentence does not depend upon the State's seeking the death penalty in every case, however, or even in some threshold proportion of cases. The charging decision must be based, in each case, on the prosecutor's assessment of the State's ability to prove there are insufficient mitigating circumstances to merit leniency. RCW 10.95.040(1); State v. Campbell, supra at 25; State v. Bartholomew, 104 Wn.2d 844, 849, 710 P.2d 196 (1985). A jury's decision to impose a death sentence must similarly be based on the jurors' determination that the State has met its burden of proof. See RCW 10.95.060(4), .080(1); State v. Mak, supra.

The purpose of proportionality review is not to second-guess evidentiary determinations or value judgments inherent in prosecutors' charging decisions or juries' verdicts in other cases. The purpose is instead to ensure that a death sentence is not "affirmed where death sentences have not generally been imposed in similar cases, nor where it has been 'wantonly and freakishly imposed.'" State v. Rupe, supra at 767 (quoting State v. Harris, supra at 798). A proper definition of the universe of "similar cases" is essential to a meaningful determination of these questions and requires a careful examination of the circumstances of the crimes and the defendants' personal characteristics. State v. Rupe, supra at 768-70; State v. Rice, supra at 625-28. Simply comparing numbers of victims or other aggravating factors may superficially make two cases appear similar, where in fact there are mitigating circumstances in one case to explain either a jury's verdict not to impose the death penalty or a prosecutor's decision not to seek it. See State v. Mak, supra at 724-25 (mitigating circumstances shown as to one of two codefendants convicted of the same murders).

One of the cases petitioner and the dissent cite as "similar" provides a good example of this point. State v. Kin-caid, 103 Wn.2d 304, 306-11, 692 P.2d 823 (1985). In Kincaid, the State did not seek the death penalty against a defendant who killed his wife and sister-in-law. While the number of victims may suggest that Kincaid is a "similar case", there are several pertinent distinguishing features. The killings in Kincaid were committed following an emotional marital breakup rather than in the course of another crime. Additionally, the defendant attempted to kill himself after the murders, and he presented a diminished capacity defense at trial which led the jury to convict him only of second degree murder for one of the killings. Considering all of the pertinent facts, we do not find Kincaid to be "similar" to the present case for purposes of proportionality review. See State v. Rupe, supra at 769; State v. Rice, supra at 626 (.Kincaid not included in the universe of "similar" multiple murder cases).

With respect to the proven aggravating factors — multiple premeditated murders committed during another felony— Rupe and Rice are both "similar" to the present case. State v. Rupe, supra at 769; State v. Rice, supra at 626. Indeed, the similarities between this case and Rupe make the universe of similar cases we defined there equally pertinent here. It is therefore unnecessary to reexamine reported murder cases or the reports filed pursuant to RCW 10.95-.130 in order to define the appropriate universe. We also decline to reconsider petitioner's proportionality claims based on assertedly similar new murder cases. Engaging in that inquiry would result in a never ending sentence review.

Considering the universe of similar cases we considered in Rupe in upholding his death sentence, petitioner's sentence is also neither excessive nor disproportionate. His artistic talent does not distinguish him from Rupe, who was involved in community service projects prior to his crimes. Moreover, unlike petitioner, Rupe relied on a lack of prior criminal history as a mitigating factor. Rupe, at 770.

In sum, petitioner's death sentence is neither excessive nor disproportionate when compared to the death sentences this court has since upheld in similar cases.

"New" Issues

As noted above, we will not consider even a "new" issue raised in a successive petition if the petitioner abuses the writ by raising that issue. In re Haverty, supra at 503 (following Sanders v. United States, supra).7

Contrary to the suggestions on page 499 of Justice Brachtenbach's concurring/dissenting opinion, we are not creating "a per se rule that the advancing of new issues in successive petitions constitutes an abuse of the [writ]". We hold only that, if the petitioner was represented by counsel throughout postconviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was "available but not relied upon in a prior petition". Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). Not every "new" issue will meet this description. If the claim is based upon newly discovered evidence, for example, or upon intervening case law, it would not have been "available" in the prior petition. If, on the other hand, counsel was fully aware of the facts supporting the "new" claim when the prior petition was filed, and there are no pertinent intervening developments, raising the "new" claim for the first time in a successive petition constitutes needless piecemeal litigation and, therefore, an abuse of the writ. See Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir. 1989).

We now apply this test to each of the claims petitioner describes as new. (We identify and number these issues as they appear in petitioner's brief.)

"5. Newly discovered evidence." Brief of Petitioner, at 88. This claim involves evidence that the manager of a travel agency in Sequim saw three "very sinister looking" men in a big Buick with California license plates on the morning of March 19, 1983 (the last day the victims were seen alive.) Clerk's Papers, at 34. One of the men came inside the travel agency and asked for an address on Barr Road Extension and showed the manager a telephone number. She did not know where Barr Road Extension was and offered to call the number for the man. He grabbed the paper back and drove to a nearby gas station, presumably to get directions. Clerk's Papers, at 35.

Defense counsel presented this evidence to the trial court in 1983, in support of an unsuccessful motion for new trial. Report of Proceedings 15C, at 23. The issue was therefore available to petitioner and his attorneys when he filed his first and second personal restraint petitions. To raise the issue for the first time in his third petition is an. abuse of the writ.

Additionally, "newly discovered evidence" is grounds for relief in a personal restraint proceeding only if " [m]aterial facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction [or] sentence . . .". RAP 16.4(c)(3). The evidence petitioner relies upon was "presented and heard" by the trial court more than 6 years ago and does not "in the interests of justice require vacation" of his conviction or death sentence.

Such relief would be merited only if, among other things, the evidence would have been admissible at trial and would probably have changed the outcome. E.g., State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981). In order to present the evidence of the three "sinister looking" men at trial, petitioner would first have had to lay a foundation tending to clearly point to those men as the guilty parties. State v. Mak, supra at 716. In its oral ruling denying the motion for new trial, the trial court noted that "Barr Road Extension is not the Barr Road, the place of these crimes" and that there was "absolutely no evidence at all that . . . there was a Buick with California plates at or near the scene of the crime". Report of Proceedings 15C, at 23. As we pointed out on appeal, there was a great deal of evidence placing petitioner at the scene of the crimes and in possession of the victims' money and property the day following their disappearances. Jeffries I, at 401-09.

"6. Prejudicial testimony: petitioner in jail." Brief of Petitioner, at 96. This issue involves a prosecution witness' statement that he first heard of petitioner when petitioner was in jail in Canada. Report of Proceedings 4C, at 113. Defense counsel immediately objected to this remark and moved for a mistrial. The trial court directed the jury to disregard the remark, using language suggested by defense counsel, but denied the motion for a mistrial. As with the newly discovered evidence issue, this claim, which was known to trial counsel, was available to petitioner in the prior personal restraint proceedings. He is abusing the writ by raising the issue only now.⁸

"9. Mitigating circumstances (plural)." and 'TO. Having in mind the crime." Brief of Petitioner, at 107, 121. These two claims involve the jury interrogatory required by RCW 10.95.060(4): "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?" Petitioner contends that the use of the plural "circumstances" required the jury to find at least two mitigating circumstances in order to vote against the death penalty. He also argues that beginning the inquiry with the phrase "having in mind the crime" invalidly limits the jury's consideration of mitigating factors to circumstances relating to the crime itself, thus eliminating consideration of factors relating to the defendant's personal characteristics.

Petitioner did not make these particular arguments at trial, on appeal, or in his previous personal restraint petitions, although he was aware of the wording of the jury interrogatory on appeal and challenged it on other grounds at that time. Jeffries I, at 420-23. The legal theories underlying his present challenges to the same interrogatory are not based on intervening case law, and could have been identified and argued when he filed the prior petitions. This also is an abuse of the writ.⁹

"14. Waiver of right to counsel." Brief of Petitioner, at 161. Petitioner next claims he invalidly waived his right to counsel in the penalty phase by requesting counsel not to present some available evidence in mitigation. Although this argument was not raised in either of the previous personal restraint petitions, petitioner relied on the same facts in his second petition to support a claim that his attorneys represented him ineffectively by acceding to his wish not to present evidence in mitigation. See Jeffries III, at 331-35 (rejecting that argument). Since the related theory of an invalid waiver of counsel was available when the prior petition was filed, petitioner's attempt to create a "new" ground for relief by reframing a previously rejected claim constitutes an abuse of the writ.¹⁰

"29. Adamson procedural bar." Brief of Petitioner, at 282. Petitioner's final "new" claim is premised on an amicus curiae brief the State of Washington and other western states filed in support of Arizona's petition for certiorari in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988). Amici apparently expressed concern that, if the Ninth Circuit's decision invalidating Arizona's death penalty statute is upheld, other statutes, including Washington's, would be vulnerable to similar attacks. Petitioner contends that the State is now proeedurally barred from arguing in support of Washington's death penalty statute. Since this claim is based on circumstances which arose after petitioner's first two petitions were dismissed, it could not have been raised in those proceedings.

The claim is also frivolous. The asserted procedural bar can have no effect unless it is tied to petitioner's own renewed challenges to Washington's death penalty statute; there is no reason for the State to argue the validity of the statute unless it is challenged.¹¹ We rejected several challenges to the statute in one or more of petitioner's prior proceedings, and he has not shown "good cause" to reconsider those issues. RAP 16.4(d). To the extent he is now relying on Adamson as cause to reconsider those arguments, his reliance is misplaced. The Ninth Circuit acknowledged that the pertinent portions of the invalid Arizona statute are different from Washington's statute, which it had previously upheld. Adamson v. Ricketts, supra at 1043 n.51 (distinguishing Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987).

Conclusion

With respect to all but one of petitioner's renewed claims,¹² we dismiss the petition for a failure to show good cause as required by RAP 16.4(d). Five additional issues¹³ are dismissed as an abuse of the writ. As to the proportionality issue,¹⁴ the petition is dismissed on the merits. The "Adamson bar" issue¹⁵ presents no additional substantive claim and does not constitute good cause to renew any other claims.

Appendix

Using petitioner's numbering, these are the claims he raises in the present proceeding. The issues he characterizes as new are designated with asterisks.

(1) "Failure to change venue/juror misconduct." Brief of Petitioner, at 3. Rejected in Jeffries I, at 409-10, Jeffries II, and Jeffries III, at 346 & n.6.

(2) "Insufficient evidence: aggravating circumstance." Brief of Petitioner, at 26. Rejected in Jeffries I, at 407-08, and Jeffries III, at 345.

(3) "Failure to define aggravating circumstances." Brief of Petitioner, at 63. Rejected in Jeffries I, at 418-20, and Jeffries III, at 345.

(4) "Failure to require unanimous verdict, guilt phase." Brief of Petitioner, at 78. Rejected in Jeffries III, at 336-40.

*(5) "Newly discovered evidence." Brief of Petitioner, at 88. Not previously raised in an appellate court.

*(6) "Prejudicial testimony: petitioner in jail." Brief of Petitioner, at 96. Not previously raised in an appellate court.

(7) "Weapons unrelated to charged offense." Brief of Petitioner, at 99. Rejected in Jeffries I, at 412-13.

(8) "Failure to prosecute by indictment." Brief of Petitioner, at 106. Rejected in Jeffries I, at 423-24.

*(9) "Mitigating circumstances (plural)." Brief of Petitioner, at 107. Not raised in this manner previously.

*(10) "Having in mind the crime." Brief of Petitioner, at 121. Not raised in this manner previously.

(11) "Jury inappropriately allowed to consider any relevant factors." Brief of Petitioner, at 126. Rejected a very similar argument in Jeffries I, at 422.

(12) "Failure to require jury to articulate mitigating circumstances; jury's determination not rationally reviewable." Brief of Petitioner, at 135. Rejected in Jeffries I, at 426-27.

(13) "Proportionality review: A. No methodology for conducting review; B. Sentence disproportionate." Found sentence proportionate in Jeffries I, at 430.

*(14) "Waiver of right to counsel." Brief of Petitioner, at 161. Not previously raised.

(15) "Ineffective assistance of counsel." Brief of Petitioner, at 170. Rejected in Jeffries III, at 331-35.

(16) "Prosecutorial misconduct during penalty phase closing argument, comments on: failure to testify, appeals, system gives due process, opinion of guilt, eye for an eye." Brief of Petitioner, at 202. Rejected in part in Jeffries I, at 415-17, and in remaining part in Jeffries III, at 340.

(17) "Prosecution allowed to seek different punishment for same crime." Brief of Petitioner, at 224 (erroneously listed as a second issue 16). Rejected in Jeffries I, at 428.

(18) "Prosecutor's discretion to seek death not guided." Brief of Petitioner, at 237. Raised in Jeffries I, as part of prosecutorial discretion argument rejected at page 428 (see Brief of Appellant, cause 50062-2, at 183-93).

(19) "Unequal administration of the law." Brief of Petitioner, at 250. Same as issues 17 and 18.

(20) "Jury not asked if death appropriate sentence." Brief of Petitioner, at 253. Indistinguishable from claim, rejected in Jeffries I, at 425, that statute creates invalid mandatory death penalty. See issue 22 below.

(21) "Failure to require unanimous verdict, penalty phase." Brief of Petitioner, at 260. Rejected in Jeffries I, at 421.

(22) "Death penalty mandatory where no mitigating circumstances." Brief of Petitioner, at 264. Rejected in Jeffries I, at 425.

(23) "Burden of proof placed on petitioner in penalty phase." Brief of Petitioner, at 264. Rejected in Jeffries I, at 426.

(24) "Failure to instruct regarding petitioner not testifying." Brief of Petitioner, at 265. Rejected in Jeffries I, at 423.

(25) "Jury not instructed that it could consider sympathy." Brief of Petitioner, at 267. Rejected in Jeffries I, at 423.

(26) "Failure to instruct jury not to consider vengeance." Brief of Petitioner, at 271. Rejected in Jeffries I, at 423.

(27) "Failure to instruct on presumption of mitigating circumstances." Brief of Petitioner, at 279. Rejected in Jeffries I, at 422.

(28) "Report of trial judge." Brief of Petitioner, at 279. Rejected in Jeffries I, at 427-28.

*(29) "Adamson procedural bar." Brief of Petitioner, at 282. Not previously raised.

Callow, C.J., and Andersen, Durham, and Smith, JJ., concur.

1 State v. Jeffries, 105 Wn.2d 398, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986) (Jeffries I).

2 In re Jeffries, 110 Wn.2d 326, 752 P.2d 1338, cert. denied, 109 S. Ct. 379 (1988) (Jeffries III).

3 In re Jeffries, cause 53397-1 (Jeffries II).

4 The list of issues petitioner sets forth in the introduction to his opening brief as new, revised, or supported by new authority does not correspond exactly with the manner in which he presents the issues in the argument portion of the brief. We have examined all of petitioner's issues in order to determine whether they were raised in any of the prior proceedings. See appendix.

5 While proportionality review is required by RCW 10.95.130, it is not required by the Eighth Amendment. Pulley v. Harris, 465 U.S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984).

6 This does not mean that any refinement in our analytical approach to a legal issue will justify reconsideration of a previously rejected claim. Whether the ends of justice would be served by reconsideration will depend upon the nature of the issue raised, the extent to which the refinement constitutes a change in the law, and the seriousness of the consequences of error.

7 This rule applies only to successive personal restraint petitions. A constitutional issue that was available but not relied upon on appeal may be raised in the first personal restraint petition. In re Hews, 99 Wn.2d 80, 660 P.2d 263 (1983).

8 Petitioner suggests that Johnson v. Mississippi, 486 U.S. 578, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988) justifies his decision to raise this issue now and to renew a claim of juror misconduct involving the alleged discovery of his prior robbery conviction. We cannot agree. The defendant's prior conviction in Johnson was admitted at trial, with the attendant approval of the trial court, and was used as one of the statutory aggravating factors to support the death penalty. When the defendant thereafter prevailed in a postconviction proceeding challenging the prior conviction, the Supreme Court held that the death sentence must also be vacated. Here petitioner has not proven any constitutional infirmity in his prior conviction. Nor was the conviction admitted at trial to prove any statutory or nonstatutory aggravating factors.

9 Additionally, to the extent petitioner is simply revising his previously rejected challenges to the interrogatory, he is not raising a new ground for relief within the meaning of RAP 16.4(d).

10 Moreover, this court's holding that petitioner was adequately represented by counsel necessarily defeats the contention that he waived either his right to counsel or his right to effective assistance.

11 Since admissions on legal points are not binding on this court, e.g., Folsom v. Spokane Cy., 111 Wn.2d 256, 261-62, 759 P.2d 1196 (1988), the State’s amicus brief creates no procedural bar in any event.

12 Issues numbered 1 through 4, 7, 8, 11, 12, and 15 through 28 in petitioner's brief. See appendix.

13 Issues numbered 5, 6, 9, 10, and 14 in petitioner's brief. See appendix.

14 Petitioner's issue number 13.

15 Petitioner's issue number 29.