Personal Restraint Petition Of Steven Maurice Marshall

• Court: Court of Appeals of Washington
• Decided: May 22, 2023
• Docket: 81659-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint No. 81659-4-I Petition of: DIVISION ONE STEVEN MAURICE MARSHALL, UNPUBLISHED OPINION Petitioner.

CHUNG, J. — Steven Marshall was convicted of murder in the first degree

with a firearm enhancement and unlawful possession of a firearm in the second

degree, which this court affirmed on direct appeal. He subsequently filed this

personal restraint petition (PRP) claiming ineffective assistance of counsel based

on representation before and during trial. He also argues that ineffective

assistance should be presumed because of his attorney’s subsequent

resignation in lieu of discipline from the state bar association. Marshall fails to

establish either that counsel was deficient or that he was prejudiced by counsel’s

representation. Therefore, we deny his petition.

FACTS

A jury found Marshall guilty of one count of murder in the first degree with

a firearm enhancement and one count of unlawful possession of a firearm in the

second degree for the murder of Ryan Prince. These convictions were affirmed No. 81659-4-I/2

by this court on direct appeal. State v. Marshall, No. 76119-6-I (Wash. Ct. App.

Mar. 25, 2019) (unpublished),

https://www.courts.wa.gov/opinions/pdf/761196.pdf.

The underlying facts and procedural history were set out in Marshall’s

direct appeal as follows:

Ryan Prince helped Michael Helsel-Perkins (Perkins) build medical marijuana dispensaries and manage the dispensaries’ employees. Prince lived with Perkins and Perkins’s girlfriend, Chelsea Dew, at a house in Renton. .... Dew . . . found Prince on the floor in his bedroom with a bloody face and blankets covering his body. Dew called 911. Prince was pronounced dead at the scene. Police collected a pair of broken Burberry-brand eyeglasses on the front porch, which Dew testified did not belong to her, Perkins, or Prince. Both Marshall’s brother and ex-wife testified that Marshall sometimes wore Burberry glasses. The only latent print on the glasses matched Marshall’s thumb. Someone had removed the alarm system’s DVR[1] from the downstairs closet. Police found $27,000 in cash in Prince’s backpack in his bedroom. Police also found a 40-caliber bullet embedded in the bathroom closet, a 40-caliber shell casing just outside the house, a 22-caliber casing in a groove between planks on the porch and on the downstairs landing, a 380-caliber casing in the dining room, and a 40-caliber casing in the dining room. A medical examiner performed an autopsy on Prince and determined that he died from multiple gunshot wounds. She found four gunshot wounds and recovered three bullets from Prince’s body. Police found Prince’s cell phone off the side of the road near his house. On Prince’s phone they discovered a photograph of a vehicle taken at 8:10 p.m. the night of his murder. The license plate number belonged to a Chrysler PT Cruiser registered to Allison Sierra, Marshall’s ex-wife. She testified that Marshall had been the full-time driver of the PT cruiser since September 2013. She stated that he had been driving it on February 14, 2014, when she last saw him before the incident. On February 22, the police stopped and arrested Marshall while he was driving a Dodge Durango registered to a girlfriend,

1 Digital video recorder.

2 No. 81659-4-I/3

Shamarra Scott. Police seized “several” cellular phones from Marshall’s person and another that was on the ground near the driver’s door of the Dodge. They found a 40-caliber SIG Sauer handgun in a backpack on the front passenger seat. They also found an envelope, an identification card, and a prescription pill bottle with Marshall’s name in this backpack. Marshall’s DNA (deoxyribonucleic acid) was found on the magazine and ammunition inside the gun. Testing showed that this gun fired the 40-caliber bullet and shell casings found at Prince’s house. Police also searched the contents of Marshall’s cell phones and the cell phone of Ryan Erker, Marshall’s co-defendant. Marshall and Erker exchanged several text messages and calls with one another using these phones. Their text messages suggested that Erker was monitoring Perkins’s dispensaries and attempting to locate his house. On February 6, 2014, Erker sent Marshall a message stating, “Brother, I think I’ve got the address we’ve been looking for! I’m having it checked tonight. . . . Keep your fingers crossed. This is the big one.” On February 12, Erker texted Marshall, “We know where the honey pot is, so we got time, bro.” Marshall responded, “Yeah. We’ll put it off for another day. Let’s shoot for tomorrow.” Cell tower evidence showed primarily Erker’s phone and sometimes Marshall’s phone connected to the tower closest to Prince’s house periodically between February 7 and 17, 2014. Neither phone had connected to the tower closest to Prince’s house before February 7. And neither phone connected to that tower after February 17. On February 17, between 8:00 p.m. and 8:40 p.m., Erker and Marshall placed multiple calls to each other. Each of their phones connected to the cell tower closest to Prince’s house for some of these calls. At 8:13 p.m., both Erker’s and Marshall’s cellular numbers connected to the tower closest to Prince’s house. Erker called Marshall several times between 8:37 p.m. and 8:41 p.m. All these calls connected to a tower west of the tower closest to Prince’s house. ... The jury found him guilty of first degree murder and returned a special verdict finding that he was armed with a firearm during the crime. At a bifurcated bench trial, the trial court found Marshall guilty of second degree unlawful possession of a firearm.

Marshall, No. 76119-6-I, slip op. at 2-5. The court sentenced Marshall to

concurrent prison terms of 374 months for the murder and 16 months for the

3 No. 81659-4-I/4

unlawful firearm possession, and an additional 60 months for the firearm

enhancement which was run consecutively, for a total of 434 months in prison.

In his direct appeal, Marshall argued the court had violated his right to

access the courts by refusing to hear pro se motions he had filed on his own

behalf. Id. at 6-14. He claimed the court then erred by admitting testimony about

his pro se motions in violation of ER 403. Id. at 14. He also alleged prosecutorial

misconduct when the prosecutor elicited a lay witness opinion about Marshall’s

guilt. Id. at 15-20. In a statement of additional grounds, Marshall asserted that

(1) the police conducted an illegal stop, seizure, and interrogation of his ex-wife,

Allison Sierra; (2) Sierra’s interrogation violated spousal privilege; (3) the State

illegally intercepted his mail to and from the jail without a warrant; (4) trial counsel

was deficient for not moving to suppress evidence from Sierra’s cell phone;

(5) trial counsel was deficient for not challenging a juror whose friend had died in

a home invasion; (6) trial counsel was deficient for not requesting lesser-included

offense instructions; and (7) a witness’s testimony regarding a statement by

Marshall’s co-defendant violated his Sixth Amendment right to confront

witnesses. Id. at 20-22.

On direct appeal, regarding his pro se motions, we held that Marshall had

no right to “hybrid” representation or to file motions on his own behalf while

represented by counsel, and also that he had not properly preserved his ER 403

claim. Id. at 12. We concluded that Marshall failed to object to the alleged

prosecutorial misconduct and any misconduct was not so flagrant and ill-

4 No. 81659-4-I/5

intentioned that it could not have been cured by a jury instruction. Id. at 19-20.

We also rejected Marshall’s additional grounds. Id. at 20-22.

Marshall’s convictions became final on August 23, 2019. He timely filed

this personal restraint petition on July 17, 2020.

DISCUSSION

This court will grant a personal restraint petition (PRP) if a petitioner is

subject to unlawful restraint. RAP 16.4(a). Relevant to Marshall’s PRP, restraint

is unlawful if it violates the Constitution of the United States or the Constitution or

laws of the State of Washington. RAP 16.4(c)(2). Relief by way of a collateral

challenge to a conviction is extraordinary, and a petitioner must meet a high

standard before this court will disturb an otherwise settled judgment. In re Pers.

Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011).

A collateral challenge may raise both constitutional and nonconstitutional

errors. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335

(2007). For a PRP based on a constitutional error, a petitioner must show that a

constitutional error occurred and the error resulted in actual and substantial

prejudice. In re Pers. Restraint of Williams, 198 Wn.2d 342, 353, 496 P.3d 289

(2021). A petitioner who alleges unlawful restraint based on nonconstitutional

error must demonstrate a fundamental defect resulting in a complete miscarriage

of justice. Elmore, 162 Wn.2d at 251.

5 No. 81659-4-I/6

I. Issues Previously Addressed on Direct Appeal

As a general rule, a collateral attack on a criminal conviction cannot simply

be a reiteration of issues resolved at trial or on direct appeal. In re Pers. Restraint

of Gentry, 137 Wn.2d 378, 388-89, 972 P.2d 1250 (1999). “The petitioner in a

personal restraint petition is prohibited from renewing an issue that was raised

and rejected on direct appeal unless the interests of justice require relitigation of

that issue.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1

(2004). Instead, a PRP petitioner “should raise new points of fact and law that

were not or could not have been raised in the principal action.” Gentry, 137

Wn.2d at 388-89. A “new” issue is not created merely by supporting a previous

ground for relief with different factual allegations or with different legal

arguments. Davis, 152 Wn.2d at 671. Similarly, a petitioner cannot recast an

issue previously resolved on direct appeal by claiming ineffective assistance of

counsel. In re Pers. Restraint of Benn, 134 Wn.2d 868, 906, 952 P.2d 116

(1998)). “Simply recasting an argument in that manner does not create a new

ground for relief or constitute good cause for reconsidering the previous rejected

claim.” Id.

Marshall’s petition renews or recasts several issues previously reviewed

and rejected by this court. On direct appeal, Marshall claimed “deficient

performance on the ground that his trial counsel did not ask the trial court to

suppress the evidence from [his ex-wife’s] phone” and, relatedly, “that the police

conducted an illegal pretextual stop, an illegal seizure, and an illegal custodial

interrogation of [his ex-wife].” Marshall, No. 76119-6-I, slip op. at 21, 23. We

6 No. 81659-4-I/7

reviewed Marshall’s claim and noted, “ ‘A defendant may challenge a search or

seizure only if he or she has a personal Fourth Amendment privacy interest in the

area searched or the property seized.’ ” Id. at 21 (quoting State v. Goucher, 124

Wn.2d 778, 787, 881 P.2d 210 (1994)). We then determined that “[b]ecause the

stop and interrogation of [Marshall’s ex-wife] and the search of her cell phone

implicate [her] privacy interest, not Marshall’s, he does not have standing to

challenge this conduct under the Fourth Amendment.” Id. at 21. Here, Marshall

again alleges trial counsel was deficient for both failing to move to exclude

evidence and failing to object to the same evidence because it was found based

on the search warrant obtained with Sierra’s assistance. We decline to revisit this

issue as it was previously addressed in his direct appeal.

Marshall also claims counsel was deficient by failing to object to the

introduction of his pro se motions as evidence. On direct appeal, Marshall

challenged “the trial court’s admission of [his] pro se legal motions as substantive

evidence of guilt.” Id. at 6. While the court rejected this claim because this

specific objection was not properly preserved, it also noted that Marshall’s factual

assertion—that the court admitted the motions themselves as evidence—was

itself erroneous. Id. at 13. While one of Marshall’s girlfriends testified that

Marshall sent her several proposed motions to type up and submit to the court,

the motions themselves were not in evidence. Id. at 9. We will not review an

issue that was addressed on direct review and is now recast as ineffective

assistance of counsel.

7 No. 81659-4-I/8

Finally, Marshall alleges ineffective assistance because trial counsel

“failed to object to the Crawford [2] violations when the court allowed improper

hearsay statements of Mr. Erker.” Additionally, Marshall contends that counsel

failed to file a motion that would have excluded “hearsay testimony of Erker.” But

Marshall does not identify the hearsay testimony at issue. The direct appeal did,

however, address a confrontation clause challenge to testimony of Paul Steve,

who had bought and sold cars for Erker. Id. at 5, 24. Steve testified that Erker

called to ask him to sell a PT Cruiser because it had been used in a crime and

said that “one of the guys owns the car.” 3 Id. at 18, 24. This court declined to

consider the claim because the record did not support that Steve provided the

quoted testimony. Id. at 25. To the extent Marshall challenges that statement

again, we do not review it, as it was raised on direct review. And because

Marshall fails to provide any evidence or legal argument in support of any

allegedly improper hearsay statements, as required by RAP 10.3(a)(6), we

decline to revisit the issue. 4

II. Additional Ineffective Assistance of Counsel Claims

Marshall does, however, also raise claims of ineffective assistance of

counsel on some issues not previously raised. Under the Sixth Amendment to

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

Constitution, a defendant in a criminal proceeding is guaranteed the right to

2 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (out-

of-court testimonial statements by witnesses are inadmissible under the confrontation clause unless the witness is unavailable and the defendant had prior opportunity to cross-examine). 3 A PT Cruiser was photographed at Prince’s house at the time of his murder. Id. at 18. 4 RAP 10.3(a)(6) requires argument in support of the issues presented for review,

including citations to legal authority and references to the relevant facts.

8 No. 81659-4-I/9

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 32, 246

P.3d 1260 (2011). “If a personal restraint petitioner makes a successful

ineffective assistance of counsel claim, he has necessarily met his burden to

show actual and substantial prejudice” as required to demonstrate unlawful

restraint. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102

(2012).

For claims of ineffective assistance, the question is whether counsel’s

conduct “so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Strickland, 466

U.S. at 686. The court in Strickland set out a two-part test for ineffective

assistance of counsel claims:

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

Id. at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)

(adopting Strickland test in Washington). “The threshold for the deficient

performance prong is high, given the deference afforded to decisions of defense

counsel in the course of representation.” Grier, 171 Wn.2d at 33. A defendant

alleging ineffective assistance must overcome “a strong presumption that

9 No. 81659-4-I/10

counsel’s performance was reasonable.” State v. Kyllo, 166 Wn.2d 856, 862, 215

P.3d 177 (2009).

To succeed on a claim of ineffective assistance of counsel, the defendant

must demonstrate that defense counsel’s representation fell below an objective

standard of reasonableness and the deficient representation resulted in

prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

We strongly presume that counsel’s representation was effective. Grier, 171

Wn.2d at 33. Prejudice requires that “there is a reasonable probability that,

except for counsel’s unprofessional errors, the result of the proceeding would

have been different.” McFarland, 127 Wn.2d at 335. Because the defendant

must show both deficiency and prejudice, a failure to demonstrate either one will

end the inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489 (2018).

Effective representation entails certain basic duties, such as the

overarching duty to advocate the defendant’s cause and the more particular duty

to assert such skill and knowledge as will render the trial a reliable adversarial

testing process. Strickland, 466 U.S. at 668; In re Pers. Restraint of Tsai, 183

Wn.2d 91, 100, 351 P.3d 138 (2015). Counsel’s representation is not required to

conform to the best practices or even the most common custom, as long as it is

competent representation. Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct.

770, 788, 178 L. Ed. 2d 624 (2011). If defense counsel’s conduct can be

characterized as legitimate trial strategy, it cannot be the basis for an ineffective

assistance of counsel claim. State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220

10 No. 81659-4-I/11

(1991), abrogated on other grounds by State v. Crossguns, 199 Wn.2d 282, 505

P.3d 529 (2022).

However, a defendant can rebut the presumption of reasonable

performance by demonstrating that no conceivable legitimate tactic explains

counsel’s performance. In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 141,

385 P.3d 135 (2016); State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80

(2004). The relevant question is not whether counsel’s choices were strategic,

but whether they were reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481, 120

S. Ct. 1029, 145 L. Ed. 2d 985 (2000); Grier, 171 Wn.2d at 34. This court

evaluates the reasonableness of counsel’s performance from “ ‘counsel’s

perspective at the time of the alleged error and in light of all the circumstances.’ ”

Davis, 152 Wn.2d at 673 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384,

106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)).

A. Failure to Move to Suppress Warrants

Marshall claims that his counsel was ineffective because he did not move

to suppress two categories of evidence obtained through search warrants.

Failure to bring a motion to suppress is not per se deficient performance.

McFarland, 127 Wn.2d at 337. “Counsel may legitimately decline to move for

suppression on a particular ground if the motion is unfounded.” State v. Nichols,

161 Wn.2d 1, 14, 162 P.3d 1122 (2007). The defendant has the burden to rebut

the strong presumption that counsel’s representation was effective. McFarland,

127 Wn.2d at 337. To show prejudice, a defendant must demonstrate that the

motion to suppress would have been granted if made. Id. at 337 n.4.

11 No. 81659-4-I/12

1. Evidence Obtained Based on Sierra as State’s “Agent”

Marshall argues his trial counsel was ineffective because he did not ask

the trial court to suppress the evidence obtained pursuant to a search warrant.

According to Marshall, the warrant “was illegally obtained not for incorrect

information contained therein, but for information police intentionally omitted.”

Specifically, he notes the affidavit supporting the warrant did not disclose that

Sierra acted as the State’s “agent” by accompanying detectives to several

locations and allowing detectives to listen to her call with Marshall on

speakerphone.

The Washington State Constitution and the Fourth Amendment to the

United States Constitution protect privacy interests against unreasonable search

and seizure. State v. Bowman, 198 Wn.2d 609, 617, 498 P.3d 478 (2021). As a

result, warrantless searches and seizures are generally per se unreasonable.

Reichenbach, 153 Wn.2d at 131. Protection from unreasonable search and

seizure applies to “those privacy interests which citizens of this state have held,

and should be entitled to hold, safe from governmental trespass absent a

warrant.” State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). If no private

affair is disturbed, then no violation of the constitutional protection exists. State v.

Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007).

Marshall alleges Sierra acted as an agent of the police in order to obtain

information used in the warrant. 5 “Law enforcement officers cannot use private

5 To the extent Marshall is concerned about the State’s basis for stopping and speaking

with Sierra, he does not have standing to challenge this conduct, because these actions implicate Sierra’s Fourth Amendment and state privacy interests, not his. “Fourth Amendment rights are

12 No. 81659-4-I/13

citizens to obtain evidence without a search warrant where a search warrant

would otherwise be required.” State v. Swenson, 104 Wn. App. 744, 754, 9 P.3d

933 (2000). The defendant bears the burden of proving that a private citizen was

acting as an agent of the government. Id. Factors used to determine whether a

private citizen acted as an instrumentality of the government include whether the

government knew of and acquiesced to the intrusive conduct and whether the

citizen intended to assist law enforcement efforts. Id.

Neither of the police actions involving Sierra required a warrant. Sierra

and a police officer drove down a public street to identify Marshall’s brother’s

house. Marshall had no expectation of privacy in the identification of a relative’s

house from a public street; therefore, a warrant was not required. Similarly, no

warrant was required for an officer to listen to Sierra’s call with Marshall. One

party to a phone call may provide the necessary consent. State v. Corliss, 123

Wn.2d 656, 663-64, 870 P.2d 317 (1994) (informant tilted phone receiver so

officer could hear). 6

Because the police actions to which Marshall objects did not require a

warrant, Sierra’s participation did not “obtain evidence without a search warrant

personal rights which may not be vicariously asserted.” State v. Goucher, 124 Wn.2d 778, 787, 881 P.2d 210 (1994) (citations omitted). “A defendant may challenge a search or seizure only if he or she has a personal Fourth Amendment privacy interest in the area searched or the property seized.” Id. On direct appeal, Marshall alleged “that the police conducted an illegal pretextual stop, an illegal seizure, and an illegal custodial interrogation of [Marshall’s ex-wife]” and that the “police interrogation of [Marshall’s ex-wife] violated his privacy right because the spousal privilege statute protects him.” This court rejected these claims, holding that spousal privilege did not apply to an ex-wife and that Marshall had no standing to challenge the search and seizure of another individual. Marshall, No. 76119-6-I, slip op. at 21. 6 Listening to the call also did not violate any constitutional privacy right or the

Washington Privacy Act, RCW 9.73.030(1)(a). A call is not “intercepted” when an officer listens through the speaker along with the person participating in the call. Corliss, 123 Wn.2d at 662.

13 No. 81659-4-I/14

where a search warrant would otherwise be required.” Swenson, 104 Wn. App. at

754. Sierra was not acting as an agent of the government in violation of

Marshall’s constitutional rights. Marshall makes no attempt to show that had his

counsel filed a motion for a hearing to suppress the “fruits” of the warrant on the

basis that it did not declare Sierra to be the “State’s agent,”7 the court would have

granted such a motion. Absent such a showing, Marshall cannot meet his burden

to establish counsel’s failure to file a fruitless motion caused him prejudice.

2. Cellular Phone Records

When police arrested Marshall, they “seized ‘several’ cellular phones from

[his] person and another that was on the ground near the driver’s door of the

Dodge.” Marshall, No. 76119-6-I, slip op. at 21. The State obtained a warrant

authorizing the search of Marshall’s phones for evidence related to the crime.

The phones contained multiple text messages between Marshall and Erker

appearing to discuss the planned burglary. The warrant also authorized the State

to gather information from Marshall’s cell phone carrier for information on his

account, including the location history. Separately, the State seized Erker’s cell

phone, which had photographs and text messages exchanged with Marshall

about the location of several medical marijuana dispensaries associated with

Prince’s employer. 8

7 Additionally, the affidavit to the warrant detailed Sierra’s participation in the drive to

identify Marshall’s brother’s house. 8 The State represents that Erker’s phone was seized pursuant to a valid warrant. As

discussed in the direct appeal, Marshall lacks standing to assert any Fourth Amendment violation related to a warrant for the search of Erker’s device.

14 No. 81659-4-I/15

Marshall contends that counsel was deficient for not filing a motion to

suppress “cell phone data illegally obtained from Marshall’s phone” and failing to

object to evidence “illegally obtained without a warrant from Marshall’s cell

phone.” He also alleges that trial counsel was deficient because he did not move

to suppress either his or Erker’s “cell phone records.” 9 Marshall claims that

“these records were critical . . . because they established Marshall’s a [sic]

conversation regarding the victim in the vicinity of the victim’s home” and

“[w]ithout these records, the state would not have been able to determine

Marshall’s participation.” According to Marshall, the warrant was overbroad and

trial counsel was deficient for failing to challenge it.

Marshall provides extensive discussion of the law as it pertains to warrant

specificity. 10 But he fails to apply this law to the particulars of the warrant in this

case. He makes no reference to the language of the search warrant to

demonstrate overbreadth or any other reason to suppress evidence obtained as

a result of the warrant. Without more than a recitation of relevant law, Marshall

cannot show that the trial court would have granted a motion to suppress as

9 The State argues that the issue of whether trial counsel should have moved to suppress

the warrant for overbreadth is untimely raised because it was not raised in Marshall’s PRP but only in a supplemental brief after appointment of counsel. RCW 10.73.090 provides that “[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.” The pro se initial petition raises the question of whether trial counsel was ineffective for failing to seek to suppress the warrant entirely and for failing to object to the cell phone evidence. Thus, the issue of whether trial counsel should have moved to suppress the same evidence on the same basis is sufficiently similar that we consider the issue timely raised. 10 Marshall seriously misrepresents both the facts and the holding of State v. McKee, 3

Wn. App. 2d 11, 24, 413 P.3d 1049 (2018). McKee is not an ineffective assistance case, and the court’s reversal was not based on ineffective assistance for failure to move to suppress. Id. at 29. Rather, McKee had filed a motion to suppress, and on appeal, raised a Fourth Amendment challenge. Id. at 20. In any case, Marshall fails to explain how the court’s analysis of overbreadth applies to the facts in this case.

15 No. 81659-4-I/16

needed to establish ineffective assistance of counsel on this basis. Factual

evidence, rather than conclusory allegations, is required. Williams, 198 Wn.2d at

352. Bare allegations without persuasive reasoning or reference to the record

cannot demonstrate actual and substantial prejudice to obtain relief from

personal restraint. In re Pers. Restraint of Pheth, 20 Wn. App. 2d 326, 332, 502

P.3d 920 (2021).

Without explaining how the law applies to the specific facts of his case,

Marshall cannot establish that the court would have granted a motion to suppress

the cell phone evidence. Thus, counsel was not deficient for failing to make the

motion or object to admission of the evidence. Because he does not demonstrate

deficient performance, Marshall cannot establish ineffective assistance of

counsel regarding the cell phone evidence.

B. Failure to Object to Other Evidence

Marshall alleges that his trial attorney provided ineffective assistance of

counsel by failing to object to the admission of numerous pieces of evidence,

including DNA evidence from a gun, Burberry eyeglasses located at the scene,

photos recovered from Erker’s phone, a weight bar, and DVR cables.

When a defendant claims ineffective assistance based on counsel’s failure

to challenge the admission of evidence, the defendant must show (1) an absence

of legitimate strategic or tactical reasons supporting the challenged conduct,

(2) that an objection to the evidence would likely have been sustained, and

(3) that the result of the trial would have been different had the evidence not

16 No. 81659-4-I/17

been admitted. See State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364

(1998).

Marshall argues that the admission of these pieces of evidence was

irrelevant and unfairly prejudicial. Relevant evidence “means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” ER 401. All relevant evidence is admissible except as

limited by law. ER 402. However, relevant evidence may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” ER 403.

1. Gun DNA Evidence

Marshall argues that defense counsel should have moved to suppress

evidence relating to the .40 caliber11 SIG Sauer handgun that was located in his

vehicle at the time of his arrest. 12 He contends that the evidence was both

irrelevant and unfairly prejudicial because the gun and its magazine contained

the DNA of six different people on them. 13

The weapon was recovered from a backpack on the front seat of

Marshall’s vehicle at the time of his arrest and matched the .40 caliber shell

casings found at the scene. Marshall, No. 76119-6-I, slip op. at 4. Marshall

11 Although the opinion from Marshall’s direct appeal refers to the caliber of the bullets

without a decimal, in keeping with the convention used in the parties’ briefing and the trial transcript, which indicates the bullet’s diameter, we refer to the bullets with the decimal. 12 Marshall’s initial petition incorrectly refers to this as “the gun found at the crime scene.” 13 It is unclear whether Marshall believes it was the weapon itself or the testimony about it

that was inadmissible, or both.

17 No. 81659-4-I/18

contends that information is irrelevant because no .40 caliber bullets were found

in Prince’s body, and the cause of death was multiple gunshots from .380 and

.22 caliber weapons.

Prince suffered four gunshot wounds, and the medical examiner

recovered three bullets from his body. Id. at 3. One bullet struck and exited

Prince’s body. Id. Police recovered only one bullet, a .40 caliber embedded in the

bathroom closet in the room where Prince was killed. Id. at 3-4. Testing showed

that the gun found in Marshall’s backpack fired that bullet. Id. at 4.

If nothing else, the weapon recovered from Marshall’s backpack was

relevant because it placed Marshall at the crime scene. The State also argues

that the testimony regarding the DNA mixture on the gun was relevant to

demonstrate the thoroughness of the investigation and that it could not have

prejudiced Marshall to have evidence of other individuals’ DNA on the weapon as

well. While Marshall claims the DNA evidence was confusing, he provides no

further argument that any of the gun-related evidence was unfairly prejudicial.

Ultimately, Marshall fails to meet his burden to show a reasonable probability that

an objection to the gun DNA evidence would have been sustained, or that it

would have led to a different outcome.

2. Burberry Glasses

Marshall argues that trial counsel should have moved to suppress the

Burberry eyeglasses located at the crime scene. He contends the glasses were

irrelevant because the DNA testing on them was inconclusive and contained

partial DNA samples from multiple individuals. The State counters that the

18 No. 81659-4-I/19

glasses themselves were relevant because they were identified by a witness as

belonging to Marshall and were found at the crime scene with only Marshall’s

fingerprint on them. As such, testimony regarding inconclusive DNA testing of the

glasses did not prejudice Marshall, but instead allowed him to argue that

someone else must have carried his glasses to the scene. Counsel’s use of this

evidence in closing demonstrates a legitimate strategic or tactical reason not to

move to suppress the evidence. Marshall cannot establish deficiency in this

regard to support his claim of ineffective assistance of counsel. See Davis, 152

Wn.2d at 758 (“Performance is not deficient when counsel’s decision not to

object to comments introduced into evidence can be characterized as legitimate

trial strategy or tactics.”).

3. Photographs from Erker’s Cell Phone

The evidence recovered from Erker’s phone included text messages

between Erker and Marshall planning the burglary, as well as photographs of

several marijuana dispensaries affiliated with Prince’s employer. The State also

relied on cell phone location data from Erker’s cell phone provider in the days

before and after the murder to place him in the proximity of the crime scene.

Marshall argues that he received ineffective assistance because his trial

counsel “failed to object to the admission of photos found on Erker’s phone.” He

claims that there was nothing in the record to show their relevance, and the

evidence was more prejudicial than probative. The record reflects that the State

relied on the photographs to show that Erker and Marshall were working together

to plan the burglary. The evidence was highly relevant and probative. Because

19 No. 81659-4-I/20

Marshall fails to show that an objection to admission of Erker’s photographs

would have likely been sustained, he fails to establish that counsel was deficient

for failing to object.

4. Weight Bar and DVR Cables

Marshall also contends that trial counsel should have objected to evidence

regarding a weight bar and DVR cables as irrelevant. Apart from a single passing

reference in Marshall’s initial petition, he makes no argument regarding the

weight bar, and therefore fails to show that the evidence was either irrelevant or

unfairly prejudicial. 14

The DVR cables were found in a closet under the stairs at Prince’s house.

The outside of the house was equipped with a video surveillance system, which

was wired to a DVR in the closet. The police discovered the cables, but the DVR

was missing. Marshall argues the DVR cables were irrelevant because there

were no fingerprints or DNA evidence connecting them to him. The cables

provided evidence that the DVR for the surveillance system had previously been

located in the closet but had been removed. Introduction of the left-behind cables

was not prejudicial given the other testimony about removal of the DVR.

Because this challenged evidence was relevant and not unfairly

prejudicial, Marshall fails to show that an objection would have been sustained or

that the result of the trial would have been different. As such, he fails to establish

14 Prince’s body was discovered in his bedroom with the weight bar near his head. The

weight bar was normally in Prince’s bathroom with his weight set. The State argued the weight bar was used to strike Prince’s neck, shattering his hyoid bone.

20 No. 81659-4-I/21

ineffective assistance of counsel for failing to object to evidence of the weight bar

or DVR cables.

C. Alleged Deficiencies in Pre-Trial Preparation

Marshall alleges that his trial counsel was ineffective due to an overall lack

of investigation and pre-trial preparation. In order to rebut the presumption that

counsel’s performance was reasonable, a defendant bears the burden of

establishing the absence of any “conceivable legitimate tactic explaining

counsel’s performance.” Grier, 171 Wn.2d at 42 (quoting Reichenbach, 153

Wn.2d at 130).

In addition to the failure to file certain pretrial motions as alleged above,

Marshall claims that counsel failed to interview witnesses, 15 failed to hire an

investigator or experts, and had only limited contact with his client before trial.

The State contends that Marshall fails to establish any new information that

would have been discovered by witness interviews or a professional investigator,

or that expert witnesses were necessary or what they would have said. The State

also argues that Marshall fails to establish any reasonable probability that the

outcome of the trial would have been altered by any additional investigation.

Marshall’s arguments are undermined by the actual record. While his

argument implies that no such interviews or investigation were done by anyone,

the record reflects that his counsel at trial, John Crowley, was not the original

attorney on Marshall’s case. More than a year after the arraignment, and after

15 Marshall complained that counsel failed both to interview Erker or call him as a witness

at trial.

21 No. 81659-4-I/22

substantial defense investigation and interviews had been completed by his two

original attorneys, Marshall successfully moved to discharge them and retained

Crowley to represent him. Upon accepting the representation, Crowley would

have had access to Marshall’s prior counsel’s case file and the entirety of the

State’s discovery. Marshall does not identify any information that was not

discovered that might have changed the outcome of the trial. Nor does he specify

any witnesses who were not interviewed or who would have testified and

changed the outcome of the trial. Marshall has demonstrated neither deficiency

nor prejudice relating to Crowley’s case preparation.

D. Medical Condition

Marshall contends that trial counsel concealed a medical condition that

caused him to fall asleep twice during trial. He cites as evidence a motion

Crowley filed seeking a brief continuance to deal with an “ongoing medical

condition,” as well as personal declarations of Marshall himself and his mother

asserting that they witnessed Crowley during trial with his eyes closed, appearing

to be asleep. According to his mother, the judge also looked directly at Crowley

while he was sleeping “but said nothing about it.” Marshall hypothesizes that this

undisclosed medical condition explains Crowley’s other alleged deficiencies as

well.

The record reflects that on the first day of trial, Marshall’s trial counsel filed

a motion for a continuance or recess from trial so that he could seek treatment

for an ongoing medical condition. However, by the time the parties appeared that

day, all agreed that the trial calendar would allow for brief recesses as needed for

22 No. 81659-4-I/23

Crowley to attend any necessary medical appointments. Crowley did not pursue

the motion to continue the trial.

First, we note that Marshall’s contention that Crowley improperly hid his

condition is belied by Sierra’s declaration, in which she states that after she

reported to Marshall that Crowley said he was ill, Marshall told her “Crowley had

told him the same thing.” More importantly, counsel is not required to disclose

sensitive health information to clients. Crowley did not “conceal” his health

condition, as Marshall had no right to this information.

Marshall alleges that it was this medical condition that led Crowley to fall

asleep during trial. Allegations of sleeping counsel are serious, and if proven,

may support a finding of deficient performance. In re Pers. Restraint of Lui, 188

Wn.2d 525, 540, 397 P.3d 90 (2017); Caldellis, 187 Wn.2d at 145 n.6 (listing

cases where counsel was found deficient for having fallen asleep during critical

portions of trial). However, to prevail on an ineffective assistance claim, Marshall

must prove prejudice as well as deficient performance.

Marshall does not identify any specific critical moment where Crowley was

sleeping, nor does he explain how he was harmed. 16 The judge, who had the

best view of the courtroom and counsel’s behavior, did not admonish Crowley for

a lack of attentiveness or sleeping, and there is no obvious sign in the record that

16 In his bar grievance, Marshall stated, “Mr. Crowley dosed [sic] off during trial on two

different occasions. The first time was on 10/3/16, during Shavon[ne] Parker’s testimony. I noticed he was sleep [sic] when the state offered an exhibit and brought it to Mr. Crowley I had to call his name to get his attention. He also dosed [sic] off again on 10/6/16 at 11:55 a.m. a few minutes before break during Ms. Geil’s testimony as well, the firearm specialist.” The trial transcripts do not reflect any instances of Crowley sleeping. However, the record does show Crowley conducted significant cross-examination of both Parker and Geil, including re-cross of Parker.

23 No. 81659-4-I/24

counsel was actually sleeping or otherwise not engaged in the trial. Crowley

made objections and cross-examined witnesses during the State’s case.

Compare Lui, 188 Wn.2d at 541 (noting that the judge is in the best position to

assess courtroom behavior and provide appropriate admonishments to both

jurors and counsel if there are signs of inattentiveness). Even if Crowley fell

asleep at points during the trial, Marshall has failed to show that Crowley’s

performance resulted in prejudice, as required to establish ineffective assistance

of counsel.

E. Disciplinary Investigation

Approximately ten months after Marshall’s sentencing, an investigation by

the Washington State Bar Association’s Office of Disciplinary Counsel (ODC) led

to the filing of formal charges of professional misconduct against Marshall’s trial

attorney, Crowley. The charges stemmed from complaints from four of Crowley’s

former clients, alleging various instances of lack of communication,

misrepresentation, failure to file documents, and financial malfeasance. ODC’s

final statement of charges against Crowley identified 20 different alleged

violations. 17 The grievances spanned a time period between July 2011 and June

2016. Marshall himself had filed a bar grievance against Crowley in December

2016, after his sentencing. However, Marshall’s allegations were not included in

17 The charges included multiple violations of the following Rules of Professional

Conduct: 1.2 (Scope of Representation / Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15A (Safeguarding Property), 1.16 (Declining or Terminating Representation), 3.2 (Expediting Litigation), 4.1 (Truthfulness in Statements to Others), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct).

24 No. 81659-4-I/25

ODC’s statement of charges against Crowley. In July 2017, Crowley voluntarily

resigned his membership in the state bar in lieu of discipline.

In his personal restraint petition, Marshall contends that Crowley “took

Marshall’s money, lied to Marshall, and never filed any of the motions he

promised to file,” similar to his behavior in other clients’ matters as charged by

ODC. Marshall relies on In re Pers. Restraint of Brett, 142 Wn.2d 868, 884, 16

P.3d 601 (2001) (Talmadge, J., concurring), to argue that “counsel’s

representation of a client falls below an objective standard of reasonableness as

a matter of law when the lawyer is disbarred for conduct contemporaneous in

time with representation and that conduct affects their representation of that

client.”

However, this is not an accurate statement of court’s holding in that

case. 18 Brett does not stand for the proposition that, as a matter of law, counsel’s

representation falls below a standard of reasonableness when the lawyer is

disbarred for contemporaneous conduct. Rather, the majority opinion held that

Brett received ineffective assistance, during both the guilt and penalty phases of

his murder trial, based on specific actions19 that were held, individually and in

combination, to establish ineffective assistance of counsel. Id. at 882-83. Only

18 Nor is the quotation accurate technically, as it adds and omits material without

indicating the alterations to the original. 19 The Brett court stated, “[W]e conclude that when counsel knew or had reason to know

of a mental defect or illness affecting their client in a possible death penalty case, counsel could and should have: (1) promptly sought the appointment of cocounsel; (2) presented a mitigation package to the prosecutor before a death penalty notice was filed; (3) promptly investigated relevant mental health issues; (4) sought a timely appointment of investigators; (5) sought a timely appointment of qualified mental health experts; and (6) adequately prepared for the penalty phase by having relevant mental health issues fully assessed and by retaining, if necessary, qualified mental health experts to testify accordingly.” Id. at 882.

25 No. 81659-4-I/26

the concurrence suggested that disbarment for contemporaneous conduct that

affected the attorney’s representation of a capital defendant could alone be

sufficient. Id. at 884 (Talmadge, J., concurring).

Here, Crowley was under investigation and resigned his bar membership;

he was never actually disciplined. Disciplinary investigation does not establish

per se ineffective assistance of counsel, particularly when the investigation is

about representation in another case. Rather, to prevail on a claim of ineffective

assistance of counsel, the petitioner must demonstrate both deficient

performance and resulting prejudice in their case. Marshall has not provided

evidence of deficiency in his defense. Crowley’s performance may have been

deficient in contemporaneous cases, 20 but none of Marshall’s allegations support

a claim of ineffective assistance of counsel in this case.

F. Cumulative Error

Marshall argues that even if no single instance of ineffective assistance of

counsel denied him a fair trial, the court should still conclude the cumulative

effect of the alleged errors deprived him of his constitutional right to counsel.

“The accumulation of errors may deny the defendant a fair trial and therefore

warrant reversal even where each error standing alone would not.” State v.

Davis, 175 Wn.2d 287, 345, 290 P.3d 43 (2012), abrogated on other grounds by

State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). However, the doctrine does

not apply when “the errors are few and have little or no effect on the outcome of

20 Indeed, inattention to some clients could allow counsel to provide more attention to

other clients such as Marshall.

26 No. 81659-4-I/27

the trial.” State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). When there

is overwhelming evidence of the defendant’s guilt, cumulative errors do not

require reversal. In re Pers. Restraint of Cross, 180 Wn.2d 664, 691, 327 P.3d

660 (2014), abrogated on other grounds by Gregory, 192 Wn.2d 1.

Marshall’s cumulative error claim relies on the existence of errors that we

have determined did not occur. Moreover, there was overwhelming evidence of

Marshall’s guilt. In the direct appeal, we summarized the evidence of guilt 21 as

follows:

Marshall’s and Erker’s text messages establish that they located Prince’s home, referred to it as the “honey pot,” and intended to carry out a plan that required them to locate his home. Cell phone data shows them near Prince’s house in the days leading up to the murder and at the time of the murder. In addition, police found Burberry eyeglasses with only Marshall’s fingerprint at the scene, witnesses testified that they had seen him wear Burberry glasses, and a Facebook picture shows him wearing Burberry glasses. Sierra testified that since September 2013 Marshall had been the primary user of her PT Cruiser, which was photographed at Prince’s house at the time of his murder. And Steve testified that Erker asked him to sell that PT Cruiser on the night of the murder because it had been used in a crime. Further, the gun located in Marshall's backpack fired the bullet and some of the cartridge casings found at the scene. After the murder, Marshall told Bailey that he had “fucked up.” And only after Scott received a letter from Marshall stating that police treated her poorly did she file a declaration making this claim.

Marshall, No. 76119-6-I, slip op. at 17-18. In light of this overwhelming evidence,

Marshall’s counsel’s alleged deficiencies neither individually nor cumulatively

require reversal.

21 This summary of evidence appears in this court’s analysis of prosecutorial misconduct,

where it determined that the prosecutor committed misconduct by intentionally eliciting an opinion about guilt. Marshall, No. 76119-6-I, slip op. at 17. This court held that despite the lack of eyewitnesses and though the primary issue was identity, “the other evidence of Marshall’s guilt was sufficiently abundant that an instruction could have cured any resulting prejudice.” Id.

27 No. 81659-4-I/28

We deny Marshall’s personal restraint petition.

I CONCUR:

28 In the Matter of the Personal Restraint Petition of Marshall, No. 81659-4-I

HAZELRIGG, A.C.J. (concurring) — I join my colleagues as to the analysis

and outcome set out in the majority, but write separately to emphasize and respond

to three particular points raised in Steven Marshall’s petition.

I. No Requirement for Subsequent Counsel to Re-Interview Witnesses

There is no duty for defense counsel to repeat the interviews or other

investigatory work completed by a prior attorney on the case. Qualified and

competent defense attorneys may and often do rely on the investigatory materials

arising from the pretrial efforts of the prior counsel in a criminal case, e.g., witness

interview transcripts, photographs and other recordings, and consultations with

experts. At oral argument before this court, when asked whether there was court-

appointed counsel who undertook investigative efforts before John Crowley was

retained, Marshall stated, “not that I’m aware of.”1 After the State confirmed that

there were attorneys handling the case before Crowley, Marshall was asked “if

prior counsel conducted interviews, is your suggestion for our holding in this case

. . . that subsequent counsel would be required to re-interview?” Marshall

responded, “Absolutely.” 2 Though Marshall seemingly backtracked from this

position upon further inquiry from the panel, such a position requires additional

attention.

1 Wash. Court of Appeals oral argument, In re Pers. Restraint of Marshall, No. 81659-4-I

(Nov. 1, 2022), at 8 min., 24 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2022111106. 2 Wash. Court of Appeals oral argument, supra, at 20 min., 10 sec. No. 81659-4-I/2

“To provide constitutionally adequate assistance, ‘counsel must, at a

minimum, conduct a reasonable investigation enabling [counsel] to make informed

decisions about how best to represent [the] client.’” In re Pers. Restraint of Brett,

142 Wn.2d 868, 873, 16 P.3d 601 (2001) (emphasis and alterations in original)

(quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)). “The degree and

extent of investigation required will vary depending upon the issues and facts of

each case.” State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010). In certain

circumstances, defense counsel may decide “that particular investigations are

unnecessary.” In re Pers. Restraint of Rice, 118 Wn.2d 876, 889, 828 P.2d 1086

(1992). The decision not to investigate a particular issue or witness is “assessed

for reasonableness under all the circumstances.” Id.

The record before us establishes that Marshall was charged via information

in February 2014 and was represented by Marc Stenchever and Steve Adams until

May 2015. On March 19, 2015, Marshall moved to discharge counsel; at that point,

his attorneys had interviewed two representatives of the medical examiner’s office.

The trial court denied the motion without prejudice. On April 29, 2015, Marshall

again moved to discharge his counsel. At the hearing on the motion, Adams

explained that he and Stenchever were actively investigating Marshall’s case: “We

were in interviews yesterday for three times [sic]. Co-counsel, Mr. Erker’s counsel,

has requested 10 or 15 other interviews coming up within the next few weeks.

We’re doing our best to actively investigate this case.” The court again denied the

motion to discharge. On May 5, 2015, Marshall moved once more to discharge

-2- No. 81659-4-I/3

counsel and the trial court granted the motion, allowing Adams and Stenchever to

withdraw and substituting Crowley, whom Marshall had retained to represent him.

As the majority explains, Marshall’s court-appointed attorneys had already

conducted multiple interviews and were actively investigating the case up until their

discharge. When Crowley was retained, he would have had access to all the

materials contained in Marshall’s case file, including results of the defense

investigation up to that point, and discovery from the State under CrR 4.7(a).

Investigators retained by prior counsel may be subpoenaed by the attorney

conducting trial and serve as impeachment witnesses for the defense. Nothing in

the record suggests these materials were insufficient for Crowley to make informed

decisions regarding his representation of Marshall and meet the standard of

reasonable investigation.

The majority also properly notes that Marshall fails to identify any witnesses

who should have been interviewed, but were not, together with an explanation of

how such interviews would have improved his defense, or any experts who should

have been retained and how they would have bolstered his defense theory. More

critically, creation of a rule or standard that, in order to provide effective assistance,

subsequent counsel must repeat witness interviews already completed by the prior

attorney would upend public defense in our state and create unnecessary hardship

for named victims and civilian witnesses. Such a requirement would exponentially

prolong existing backlogs in our trial courts across the state, which have already

ballooned as a result of the COVID-19 3 pandemic. The practical implications of a

3 2019 novel coronavirus infectious disease.

-3- No. 81659-4-I/4

rule like the one Marshall appeared to seek here would only serve to further delay

justice for the accused and victims of crimes. In addition to failing to satisfy the

legal test for such a challenge, the policy arguments against Marshall’s claim as

presented are insurmountable.

II. Defense Counsel Entitled to Privacy with Regard to Health Information

Marshall’s initial petition avers “Crowley concealed this [medical] condition

from Marshall” and that the condition caused Crowley to “doze off during trial at

least twice.” This assertion suffers from several fatal flaws. The first is that

Marshall provides no evidence, much less argument beyond the bare conclusion,

that connects the allegation that Crowley was asleep during trial to any health

issue. Further, as noted by the majority, the record demonstrates that Crowley

did, in fact, disclose some facts about his medical condition to Marshall and his

former spouse, Allison Sierra, such that the two later discussed the matter and

compared the information Crowley had conveyed. More critically, Marshall fails to

provide any authority in support of his claim that Crowley had any sort of affirmative

duty to disclose his protected health information to his clients.

Lawyers often deal with health conditions, both minor and serious, while still

effectively representing their clients, and whether such conditions were disclosed

to the clients has no bearing on counsel’s diligence or effectiveness. As the

majority notes, clients have no right to their attorney’s protected health information.

Though defense counsel is required to withdraw from representation when a

medical condition materially impairs their ability to represent the client, there is no

obligation for counsel to disclose the details of that condition to the client. RPC

-4- No. 81659-4-I/5

1.16(a)(2). Legal professionals do not forfeit their right to privacy as to their

protected health information by virtue of entering a notice of appearance in a case.

Hiring someone to take on legal representation does not entitle the client to

personal details of their advocate’s life. This remains true in the context of

assertions of ineffectiveness of counsel. Marshall concedes in his briefing that the

focus is on counsel’s “performance,” not the presence of a disability. State v.

Lopez, 190 Wn.2d 104, 119, 410 P.3d 1117 (2018). Since Lopez was issued, this

author has not observed that the litigation of ineffective assistance claims has

encroached upon counsel’s right to privacy. But that is not a reason to be less

vigilant in disallowing such encroachment. As one justice cautioned in Lopez, it

would have grave unintended consequences for the provision of robust public

defense were it to transpire that counsel should “expect that their mental health or

personal stress level will be part of an ineffectiveness and/or malpractice claim.”

Id. at 134 (Yu, J., dissenting). I agree. The Rules of Professional Conduct

governing an attorney’s duty as an officer of the court, when their private health

concerns impact representation, properly balances the competing needs of

protecting both clients and lawyers. Accordingly, it is wholly irrelevant whether

Crowley disclosed the specifics of his health condition to Marshall.

III. Disciplinary Investigation in One Matter Does Not Render Counsel Ineffective in Others

Finally, an attorney who is under investigation, formally charged, or

ultimately disbarred by the Washington State Bar Association (WSBA) for conduct

that occurred contemporaneously with the representation at issue is not per se

-5- No. 81659-4-I/6

ineffective. Such situations do not even give rise to a prima facie showing of

ineffective assistance of counsel which is, by design, a fact-specific inquiry which

considers the performance of counsel in light of the facts and procedural posture

of the case. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1

(2004) (reviewing court evaluates reasonableness of counsel’s performance “in

light of all the circumstances” (quoting Kimmelman v. Morrison, 477 U.S. 365, 384,

106 S.Ct. 2574, 91 L.Ed.2d 305 (1986))).

Marshall relies heavily on Justice Talmadge’s concurrence in Brett to

support his argument on this issue. In his concurrence, Justice Talmadge opined

that, in a capital case, “we should find that counsel’s representation of a client falls

below an objective standard of reasonableness as a matter of law when that lawyer

is disbarred for conduct contemporaneous in time with their representation of a

capital defendant and that conduct affects their representation of that client.” Brett,

142 Wn.2d at 884 (Talmadge, J. concurring) (emphasis added). Brett’s attorney,

Irving Lee Dane, was disbarred for “conduct that was contemporaneous with his

representation of Brett.” Id. Dane submitted a declaration in another case

regarding the conduct for which he was disbarred and admitted he was struggling

with depression, bipolar disorder, and overall concentration. Id. These issues

were present while Dane represented Brett. Id. The concurrence asserted that

disbarment under those circumstances was sufficient to show ineffective

assistance of counsel as to Dane’s representation of Brett. Id. at 885. However,

as the majority here makes clear, the Brett majority disagreed: the ultimate holding

makes no reference of Dane’s disbarment nor does it acknowledge the

-6- No. 81659-4-I/7

concurrence’s proposed rule. See 142 Wn.2d at 882-83. Further, as emphasized

above, even the concurrence conceded a negative impact on the representation

was essential.

As a preliminary matter, in the context of a criminal case that guarantees to

the accused the presumption of innocence at all stages of the proceedings from

arrest and charging up to the point a verdict is reached, it is an interesting

proposition to suggest that this court should apply a presumption against the

subject of a WSBA investigation. Further, such a holding would, as with several

others sought by Marshall in this petition, disrupt the entirety of the criminal legal

system in our state as it would be ripe for abuse. Under his proposal, to secure

reversal based on ineffective assistance of counsel, all one would need to do is

ask a friend or cell mate or anyone else to file a Bar complaint against defense

counsel. Crowley was investigated based on allegations presented to the WSBA.

He resigned in lieu of disbarment, so no conclusions were reached by the WSBA

Office of Disciplinary Counsel. The Brett concurrence is not controlling authority,

nor is it even persuasive given the practical implications it raises.

-7-