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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.
                                          2
State V. Schierman (Conner), No. 84614-6


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.,


                                          6
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.
                                            7
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.

                                         8
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.

                                           10
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

                                            11
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.
                                           12
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.").



                                             13
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.

                                             14
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.
                                            15
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'"
                                          16
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



                                          17
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
                                           18
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)).

                                           19
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


                                         20
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,

                                          60
State V. Schierman (Conner), No. 84614-6


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.

                                         61
State V. Schierman (Conner), No. 84614-6


      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.




                                        62
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).




                                           63
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.
                                           64
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.
                                         65
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,



                                          66
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
                                           67
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.


                                            68
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.
                                           69
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,
                                          70
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
                                            71
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
                                         72
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
                                           73
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


                                          74
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.
                                         75
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.

                                          76
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.



                                        77
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.




                                         78
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


                                          79
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.




                                         80
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.



                                         81
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,"

                                         82
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

                                         83
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.

                                         84
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).



                                             87
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.


                                         92
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 Schierman is likely to make a

positive prison adjustment," CP at 8302(italics omitted); Schierman's"Employment

in Community," CP at 8303; "Constructive Activities in Confinement," "Positive

Adjustment to Custody," and "Continuing Relationships with Family and Friends,"

CP at 8304; and rates ofinmate assault and homicide in Washington DOC facilities.

They also included a slide listing five personal characteristics that reduced

Schierman's risk of violence and a slide explaining that "[pjast violence in the




          We do not understand the eoncurrence/dissent's contrary               assertion.
Concurrence/dissent at 13-14. It is plainly incompatible with the record.

         Interestingly, the trial court also seems to have believed that information about
prison conditions generally was relevant to Schierman's future dangerousness so long as it
pertained to Washington DOC facilities. See CP at 8306 (slide ruled admissible, depicting
rates of inmate homicide and assault in Washington DOC facilities).
                                           96
State V. Schierman (Conner), No. 84614-6


community is not strongly or consistently associated with prison violence." CP at

8306-07.


      But the ruling excluded all the slides containing the data, culled from prisons

throughout the United States that formed the factual basis for Dr. Cunningham's

actuarial analysis and conclusion that Schierman posed a statistically low risk of

committing violence in prison.      Among the slides excluded were the three

"individualized . . . actuarial" likelihood slides comparing Schierman with the

inmates from other jurisdictions and concluding that he was unlikely to commit any

acts of violence in prison. VRP (Apr. 29, 2010) at 25.

      The day after the trial court excluded most of Dr. Cunningham's testimony

and evidence on future dangerousness, the defense filed a declaration from Dr.

Curmingham explaining actuarial methodology and asking the court to reconsider its

ruling. The declaration explained that "there is no individualized assessment of a

particular person that does not rest on group data of one sort or another." CP at

8266. It explained the importance of the excluded factual data on which Dr.

Cunningham's opinion rested by stating, among other things, that "the statistical

prevalence of a particular behavior over a set period of time ... is the fundamental

group statistic in risk assessment and is considered to be the single most important

piece of data necessary in making an accurate risk estimate." CP at 8267-68. It also

explained that "[wjithout this anchor of a comparative reference point, individual
                                         97
State V. Schierman (Conner), No. 84614-6


risk estimates at capital sentencing may be little more than speculation." CP at 8268.

Finally, Dr. Curmingham's declaration also summarized his qualifications, including

awards he had won for his scholarship.

      The trial court denied the motion to reconsider.         It reasoned that "Dr.


Curmingham is still allowed to testify to the group rates, which he feels are necessary

as a concept. The group rates, however,are limited to the group behavior as reflected

from statistics for the[DOC]in the State of Washington, not the[DOCs]in the State

of Florida, or Texas, or anywhere else." VRP (Apr. 30, 2010) at 3.

      After this ruling and another excluding a second PowerPoint presentation

offered in support of Dr. Curmingham's testimony on a different issue (discussed

below), the defense decided not to call Dr. Curmingham. During closing argument,

the State asserted that Schierman had a problem with authority and would have

contact with other inmates in prison.

                2. Analysis

                    a. The defense properly preserved the trial court's exclusion of
                       Dr. Curmingham's testimony on future dangerousness for
                       review

      The State argues that any error related to Dr. Curmingham's risk assessment

testimony is unpreserved because Dr. Curmingham did not testify. Citing State v.

Brown, 113 Wn.2d 520, 533-40, 782 P.2d 1013 (1989), State v. Mezquia, 129 Wn.

App. 118, 127-32, 118 P.3d 378 (2005), and State v. Kimp, 87 Wn. App. 281, 283-

                                         98
State V. Schierman (Conner), No. 84614-6


85, 941 P.2d 714 (1997), the State asserts that "Schierman's offer of proof alone

does not preserve any error." Br. of Resp't at 174.

      The authority on which the State relies is inapposite: it all addresses the

erroneous admission of evidence, rather than its exclusion. Brown, 113 Wn.2d at

539-40 (defendant must testify in order to preserve claim that prior conviction

evidence was erroneously admitted for impeachment purposes under ER 609(a));

Mezquia, 129 Wn. App. at 127-31 (defendant must make offer of proof to preserve

alleged error in admitting rebuttal evidence under ER 404(b)); Kimp, 87 Wn. App.

at 281 (admission of impeachment evidence under ER 608(b) not reviewable unless

witness testifies). The reasoning underlying these holdings is that in the context of

impeachment or rebuttal evidence, an appellate court cannot review the trial court's

ER 403 determination without reference to the witness's actual or proposed

testimony. Brown, 113 Wn.2d at 535-36; Mezquia, 129 Wn. App. at 128-29; Kimp,

87 Wn. App. at 284.

      That reasoning does not apply here. Dr. Cunningham made a detailed offer

of proof, and the court thoroughly explained its reasons for excluding much of the

proposed testimony. The record is sufficient to review Schierman's claim that this

exclusion was error.




                                        99
State V. Schierman (Conner), No. 84614-6


                   b. The trial court erred in excluding Dr. Cunningham's
                      testimony on Schierman's lack of future dangerousness in
                      prison
      The exclusion of evidence generally lies within the trial court's discretion, but

a trial court abuses its discretion if it excludes evidence under the wrong legal

standard. Reese v. Stroh, 128 Wn.2d 300, 310,907 P.2d 282(1995). In addition, as

discussed above,the erroneous exclusion of mitigating evidence in the penalty phase

of a capital trial violates state and federal constitutional guaranties. U.S. Const.

amends. VIII, XIV; Const, art. I, §§ 3, 14. Such constitutional claims are legal

issues reviewable de novo. In this case, the trial court applied the wrong standard to

exclude Dr. Cunningham's testimony. Hence, it both abused its discretion and

committed legal error.

      As noted above,the trial court relied on the Virginia Supreme Court's decision

mMorva,278 Va. at 350-51,to exclude Dr. Cunningham's evidence. But the Morva

court applied Virginia precedent holding that "a court should exclude evidence

concerning the defendant's diminished opportunities to commit criminal acts of

violence in the future due to the security conditions in the prison." Id. Under

Virginia capital sentencing law, evidence of prison conditions that apply equally to

all prisoners is deemed irrelevant to '"the defendant's character, prior record, or the

circumstances of his offense.'" Cherrix v. Commonwealth, 257 Va. 292, 309, 513

S.E.2d 642(1999)(quoting             v. Ohio,438 U.S. 586,605 n.l2, 98 S. Ct. 2954,

                                         100
State V. Schierman (Conner), No. 84614-6


57 L. Ed. 2d 973 (1978)); see also Morva, 278 Va. at 350("Our precedent is clear

that a court should exclude evidence concerning the defendant's diminished

opportunities to commit criminal acts of violence in the future due to the security

conditions in the prison.").

      Washington law is different. We do not follow the rule applied in Virginia,

according to which testimony about prison security is irrelevant. Indeed, lack of

future dangerousness is a statutory mitigating factor in our state, RCW 10.95.070(8),

and ability to function well in the structured prison setting is relevant and admissible

on that point. Cf. In re Pers. Restraint ofElmore, 162 Wn.2d 236, 262, 172 P.3d

335 (2007); State v. Finch, 137 Wn.2d 792, 863-66, 975 P.2d 967(1999)(plurality

opinion). Moreover, Virginia's contrary rule arguably conflicts with Lockett, 438

U.S. at 605, Skipper v. South Carolina, 476 U.S. 1, 4-5, 106 S. Ct. 1669, 90 L. Ed.

2d 1 (1986), and Tennard v. Dretke, 542 U.S. 274, 287, 124 S. Ct. 2562, 159 L. Ed.

2d 304 (2004), which all hold that a defendant must be permitted to present any

relevant evidence that might support a sentence less than death.^'

      Further,the trial court misunderstood the Virginia court's reasoning in Morva.

Under the rule applied in that case, courts are generally prohibited from admitting



        For an example of a law review note making this argument, see Lara D. Gass,
Note, Virginia's Redefinition of the "Future Dangerousness" Aggravating Factor:
Unprecedented, Unfounded, and Unconstitutional, 70 WASH.&LeeL.Rev. 1887(2013).

                                          101
State V. Schierman (Conner), No. 84614-6


any evidence of prison conditions at the penalty phase, because "evidenee of the
effectiveness of general prison security ... is not relevant to the issue of[the unique

defendant's] future dangerousness." Morva, 278 Va. at 351. But in Sehierman's

case, the trial court didn't limit Dr. Cunningham's testimony because it related to

prison conditions, generally, as opposed to Sehierman's characteristies, specifically.

Instead, it excluded testimony based on data from other states. Nothing in Morva's,

reasoning supports that ruling.

                    c. The trial court may not exclude Dr. Cunningham's actuarial
                       evidence unless it finds that the validity of this evidence is
                       "seriously in doubt"

      The State argues for the first time on appeal that Dr. Cunningham's testimony

was properly excluded under ER 703^^ because it was not based on any validated

actuarial instrument. Br. of Resp't at 174. It relies on In re Detention ofMcGary,

175 Wn. App. 328, 340,306 P.3d 1005 (2013), which upheld the exclusion ofexpert

testimony (in a non-death-penalty case) based on an actuarial instrument that only

six experts used. The McGary court concluded that because so few experts used it.



          ER 703 provides that "[t]he facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or data need
not be admissible in evidence." Under ER 703,"an expert witness must have a reasonable
basis of information about the subject before offering his or her expert opinion." In re
Pers. Restraint ofKeefe, 159 Wn.2d 822, 831, 154 P.3d 213 (2007).

                                           102
State V. Schierman (Conner), No. 84614-6


"the test was not reasonably relied upon . . . and thus not sufficiently reliable to

support [the witness'] opinion." Id. at 341.

       The State is correct that expert testimony may be excluded—^under the regular

ER 703 standard—ifit is based on an actuarial method that is not "reasonably relied

upon by experts in the [relevant] field." ER 703. See In re Det. of Thorell, 149

Wn.2d 724, 756, 72 P.3d 708 (2003)(challenges to the admissibility of actuarial

evidence "are to be assessed under ER 702 and 703"). Under Bartholomew II,

however, ER 703 does not apply in its typical fashion during the penalty phase of a

capital case. State v. Bartholomew, 101 Wn.2d 631, 646, 683 P.2d 1079 (1984)

{Bartholomew 11).^^

       Because the State did not challenge Dr. Cunningham's testimony on this basis

in the trial court, the record contains no discussion ofthis testimony's reliability and

we are therefore unable to address the State's new argument for exclusion for the

first time on appeal.^"^ If we remanded for resentencing, however, the trial court

would certainly retain discretion to evaluate Dr. Cunningham's actuarial testimony


          While Bartholomew II did not cite ER 703 specifically, the precedent it applied
dealt with the admissibility of polygraph evidence, which is generally excludable, absent
stipulation, "on the ground that the technique has not attained general scientific
acceptability." 101 Wn.2d at 646;State v. Renfro,96 Wn.2d 902,905,639 P.2d 737(1982)
(citing State v. Descoteaiix, 94 Wn.2d 31, 614 P.2d 179 (1980)).

         We recognize that we can affirm on any ground that is apparent from the record.
The reliability of Dr. Cunningham's methodology, however, is not apparent fi:om this
record.

                                          103
State V. Schierman (Conner), No. 84614-6


for reliability. But the applicable reliability standard is the one we adopted in

Bartholomew II, not the one listed in ER 703. The Bartholomew II standard is

minimal reliability, discussed above. Thus,the trial court should determine whether

the validity of Dr. Cunningham's actuarial analysis is "seriously in doubt." State v.

Rupe, 101 Wn.2d 664, 691, 683 P.2d 571 (1984)(plurality opinion)(recognizing

that "relaxed evidentiary rules" apply to the admission of mitigating evidence in

death sentencing proceedings, and that mitigating polygraph evidence can therefore

be excluded only where its "trustworthiness is seriously in doubt"). The trial court

can apply the Bartholomew II "seriously in doubt" test, but not the Virginia Morva

rule.


                    d. The trial court's error in excluding Dr. Cunningham's
                       evidence on lack of future dangerousness requires reversal

        The State does not argue that any error in limiting Dr. Cunningham's evidence

on lack of future dangerousness was harmless. I can certainly understand why. Dr.

Cunningham's presentation was the defense's best evidence that Schierman posed

little threat offuture dangerousness. It was the only evidence on this issue that came

from a neutral source (an expert rather than a friend or family member). See State

V. Barry, 25 Wn. App. 751,761,611 P.2d 1262(1980)(noting the "special credence

often attached to expert testimony"). And the trial court's ruling gutted Dr.

Cunningham's presentation by excluding its most persuasive aspect: the data

                                         104
State V. Schierman (Conner), No. 84614-6


underlying Dr. Cunningham's conclusion that Schierman posed little threat offuture

dangerousness in prison. Without that data, Dr. Cunningham's presentation would

have appeared to be weak, unsupported opinion testimony. Given the importance of

the excluded evidence, combined with the State's(unrebutted)suggestion to the jury

in penalty phase closing argument that Schierman's dangerousness supported a death

sentence, this exclusion constituted reversible error.

             B. The trial court erred by excluding Dr. Cunningham's testimony
                regarding diminished control

                1. Facts


      Along with the future dangerousness presentation included in its April 20,

2010, offer of proof, the defense offered a second PowerPoint presentation by Dr.

Cunningham.       This presentation was titled "Conner Schierman: Adverse

Developmental Factors March 2010," and generally expressed the idea that

Schierman had "diminished . . . control" due to his traumatic childhood and the

legacy of substance abuse in his family. CP at 8271-84. The first three slides in the
presentation juxtapose two columns of questions, one titled "Criminal

Responsibility" and the other titled "Moral Culpability." CP at 8288. In the

"Criminal Responsibility" column, four questions appear: "Could he control

himself? Did he have a choice? Did he know right from wrong? [and] What did he

do?" Id. In the "Moral Culpability" column, five related questions appear: "What

                                         105
State V. Schierman (Conner), No. 84614-6


diminished his control? What shaped the choice? What shaped his morality and

value system? How did we get here? [and] How was he damaged?" CP at 8288.

These slides were followed by several more depicting the word "Choice" on a line

whose downward slope becomes more extreme as the presentation progresses. CP

at 8288-99. As the slope becomes more extreme, an upward-pointing vector on the

left hand of each slide grows longer; it is labeled "Damaging or Impairing Factors."

Id. A corresponding downward-pointing vector on the right side also grows longer;

it is labeled "Moral Culpability." Id.

      Later in the presentation, the slides depict a tower of positive words and

phrases, such as "Stability," "Consistency," and "Positive Peer Relationships," atop

a foundation labeled with various family and developmental circumstances. CP at

8291-92. In some ofthe slides, the foundation is labeled with neutral circumstances:

"No family history of addiction or psychological disorder[,] No childhood

maltreatment or violence exposure[,] No developmental abandonment or

instability." CP at 8292. In these slides, the foundation is level and the tower

standing   straight.     In   other      slides,   the   foundation   reads, "Family

addiction/psychological disorder[,] Childhood maltreatment and violence[,]

Developmental abandonment & instability." Id. In those slides, the foundation is

slanted and the tower of positive words and phrases is tilting precariously. CP at

8291-92.

                                           106
State V. Schierman (Conner), No. 84614-6


      Still later in the presentation, the slides list adverse developmental influences

specific to Schierman—e.g., "Father's alcohol and drug abuse," CP at 8294,

"Chronic parental marital conflict," CP at 8295, and "Physical and Emotional Abuse

by Father," CP at 8297.

      The State objected to this evidence, arguing that it raised "mental defenses,

such as diminished capacity," that Schierman "disavowed" during the guilt phase.

CP at 8140-41.


      The trial court agreed. Once again, it criticized the defense for late disclosure.

But, once again, the trial court refrained from punishing Schierman for his lawyers'

error. It did not exclude the "Adverse Developmental Factors" presentation on the

ground that it was untimely disclosed. Instead, citing Oregon v. Guzek, 546 U.S.

517, 126 S. Ct. 1226, 163 L. Ed. 2d 1112 (2006), the court ruled that "diminished

capacity goes to the issue[s] of intent and premeditation," which had already been

decided in the guilt phase. VRP (Apr. 30, 2010) at 9. It concluded that Dr.

Cunningham could not testify that any "adverse developmental factors" had

diminished Schierman's self-control because this would be tantamount to a

diminished capacity defense and therefore inconsistent with the guilt phase verdict.

Id. at 8-12.


      The court did rule that Dr. Cunningham could testify to "the issues relating to

moral culpability."    Id. at 10.     According to the court, these issues were
                                         107
State V. Schierman (Conner), No. 84614-6


"[Schierman's] development as a child, boy and adolescent[,] . . . [h]is addiction[]

issues, both alcohol and drugs,[and] his alcohol treatment and recovery." Id.

      As noted above, after the trial court excluded so much of Dr. Cunningham's

presentations that the defense decided not to call him, the defense entered the

"Adverse Developmental Factors" PowerPoint into the record. Id. at 11.

                 2. Analysis

                    a. Schierman properly preserved for review the trial court's
                       exclusion of Dr. Cunningham's testimony on diminished
                       control

      The State argues that Schierman failed to preserve any error relating to this

exclusion because he did not call Dr. Cunningham to testify. This argument fails for

the reasons given in my discussion of Dr. Cunningham's testimony on future

dangerousness.

      The State also argues that any error is unpreserved because Schierman failed

to make an adequate offer of proof. ER 103(a)(2) provides that a party may not

appeal a ruling excluding evidence unless "the admission affects a substantial right

and 'the substance of the evidence was made known to the court by offer or was

apparent fi-om the context within which questions were asked.'" Benn II, 161 Wn.2d

at 268.


       This argument fails as well. It is clear from the slides that were proffered that

Dr. Cunningham intended to testify that certain "Adverse Developmental Factors"—
                                          108
State V. Schierman (Conner), No. 84614-6


specifically, a family history of addiction or psychological disorder, childhood

maltreatment or violence exposure, and developmental abandonment or instability—

tended to reduce Schierman's capacity for self-control and sound moral decision-

making.^^ CP at 8288, 8290-93. To preserve a claim that evidence was erroneously

excluded, a party need only make an offer of proofthat reveals the general substance

ofthe proposed testimony. State v. Ray, 116 Wn.2d 531, 539, 806 P.2d 1220(1991)

(to preserve issue under ER 103(a)(2), record must reveal substance, but not details,

of proposed testimony). The "Adverse Developmental Factors" presentation meets

this standard. Accordingly, I address this assignment of error on its merits.

                    b. The trial court erred in excluding Dr. Cunningham's evidence
                       on diminished control; it was not inconsistent with the guilt
                       phase verdict
      The jury in Schierman's case was instructed to consider at the penalty phase:

      [whether, a]t the time of the murder, the capacity of the defendant to
      appreciate the wrongflilness of his or her conduct or to conform his or
      her conduct to the requirements of the law was substantially impaired
      as a result of mental disease or defect.




           The State asserts that Cunningham "struck . . . as irrelevant" a "list of issues
related to legal responsibility" shown on three of the disputed PowerPoint slides. Br. of
Resp't at 180. That assertion is misleading. The slide in question Juxtaposes the "Criminal
Responsibility" and "Moral Culpability" columns and superimposes a circle with a line
through it over the "Criminal Responsibility" column. CP at 8288. This is clearly intended
to illustrate the distinction between guilt phase and penalty phase considerations—it does
not characterize any testimony as irrelevant.
                                           109
State V. Schierman (Conner), No, 84614-6


CP at 8318. This mitigating factor is codified at RCW 10.95.070(6). It is one of

eight statutory "[f]actors which the jury may consider in deciding whether leniency

[is] merited" in a capital sentencing proceeding. RCW 10.95.070.

      The trial court excluded diminished capacity evidence, citing Guzek. The

issue presented in Guzek, however, was "whether the State may limit the innocence-

related evidence [the defendant] can introduce at [the capital sentencing] proceeding

to the evidence he introduced at his original trial." 546 U.S. at 519(emphasis added).

The evidence in question was new alibi testimony, previously available to the

defendant but not offered during the guilt phase. Id. at 523. The Guzek Court held

that the Constitution does not bar the State from excluding such evidence in the

sentencing proceeding. Id. The Guzek holding rested on three rationales: (1)

sentencing concerns '"''how, not whether, a defendant committed the crime,"(2)the

admission of new innocence-related evidence resembles a (disfavored) collateral

attack, and (3) at the sentencing phase, the defendant could still introduce (through

transcripts) any innocence-related evidence he introduced in the guilt phase. Id. at

526-27.


      Unlike the defendant in Guzek, Schierman did not seek to collaterally attack

his conviction. As Schierman points out, a defendant can commit a murder with

intent and premeditation while also being impaired—diminished—in his ability to

appreciate the wrongfulness of his conduct or conform his conduct to the
                                         110
State V. Schierman (Conner), No. 84614-6


requirements of the law. Indeed, the legislature must have contemplated that exact

scenario when it enacted RCW 10.95.070(6)—^because that subsection allows the

jury to consider that mitigating factor only after finding that the defendant

committed intentional, premeditated murder.^^

      Because diminished self-control or decision-making is a relevant mitigating

factor in a capital sentencing proceeding, the trial court erred in excluding Dr.

Cunningham's testimony under Guzek.

                    c. The trial court's error in excluding Dr. Cunningham's
                       presentation on diminished control requires reversal

      Like Dr. Cunningham's presentation on lack of future dangerousness, Dr.

Cunningham's presentation on diminished control was among the most persuasive

mitigating evidence offered during the penalty phase. The vast majority ofthe other

mitigation witnesses were friends or family as opposed to neutral experts. And Dr.

Cunningham was the only expert who offered admissible evidence on Schierman's

limited capacity for self-control, something that our legislature has specifically

identified as relevant in a capital sentencing proceeding. Given the significance of



          The State also argues that the mitigating faetor provided in RCW 10.95.070(6)
refers to an insanity defense, and that the exclusion of testimony regarding diminished
capacity therefore did not impair Schierman's ability to establish this mitigating factor.
This argument is meritless. As explained above, Schierman was not attempting to relitigate
the questions of intent or premeditation by presenting a diminished capacity defense.
Instead, he was attempting to present expert testimony linking his criminal conduct to
developmental influences, in contrast to conscious choice.
                                          Ill
State V. Schierman (Conner), No. 84614-6


this potentially mitigating evidence, the trial court's error in excluding it requires

reversal.


      The erroneous exclusion of Dr. Cunningham's evidence (on both lack of

future dangerousness and diminished self-control) necessitates reversal of

Schierman's death sentence. Since I am the only one who would reverse the death

sentence, though, I address Schierman's additional penalty phase claims.

             C. The trial court erred by excluding Dr. Mark McClung's testimony
                regarding past brain injury

                1. Facts

      On April 27, 2010, the defense offered a letter by Dr. Mark McClung, a

forensic psychiatrist, stating that past brain injury might have diminished

Schierman's capacities for self-control and anger management. Dr. McClung based

this opinion on an MRI (magnetic resonance imaging) scan of Schierman's brain,

conducted in July 2009; a review of that MRI by Dr. Wendy Cohen;

neuropsychological testing conducted by Dr. Paul Connor in April of 2010; and Dr.

McClung's personal interviews with Dr. Cohen and Dr. Connor.

       Along with Dr. McClung's letter, the defense filed three documents:(1) the

MRI scan report,(2)an affidavit by Dr. Richard Adler stating that the MRI reflected

a 1997 concussion and that this was "not the first incidence of brain injury suffered

by Conner Schierman," CP at 8249-50, and(3)a letter from Dr. Connor to Dr. Adler


                                         112
State V. Schierman (Conner), No. 84614-6


explaining that Schierman had probably suffered multiple head injuries during his

life. Dr. Connor based this opinion on the fact that "Schierman and his family have

reported a number of incidents of domestic violence in which he was struck in the

head by his biological father." CP at 8257.

      The State objected to Dr. McClung's testimony on the grounds that it was

offered too late and did not meet the          standard for scientific reliability. The

transcript of the argument on this issue indicates that just as the penalty phase

proceedings were beginning, Dr. Adler "discovered what he considered to be

significant information related to a prior brain trauma" in Schierman's medical

records, that defense counsel then marshalled several experts to investigate this

discovery, and that the defense finally offered Dr. McClung's opinion about one

week after the penalty phase proceedings began. VRP (Apr. 28, 2010) at 57-58.

      Dr. McClung's letter addressed the issue of brain injury in the following,

somewhat noncommittal terms:


      Mr. Schierman's brain injury may have had no impact on his
      subsequent emotions or behavior. However, it is possible that it had an
      impact on subsequent mood problems and intensity of substance abuse.
      When Mr. Schierman was intoxicated, the brain injury may have
      contributed to worsening any problems with loss of inhibitions,
      interpreting his surroundings, and controlling anger/aggression.
      Violent offending is correlated with increased incidence of brain injury
      in offender; however, specific cause-and-effect has not been
      established in all but a few specific cases.


        Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
                                         113
State V. Schierman (Conner), No. 84614-6



CP at 8260.


      As with Dr. Cunningham's testimony, the State objected to Dr. McClung's

testimony on the ground that it was offered too late to permit any meaningful cross-

examination. However, as with Dr. Cunningham's testimony, the court did not

exclude Dr. McClung's testimony due to late disclosure. Instead, it excluded that

testimony as speculative,"based upon a faulty foundation," and not "expressed to a

reasonable degree of medical certainty." VRP (Apr. 29, 2010)at 20, 6.

                2. Analysis
      As noted above, the trial court provided two different reasons for excluding

Dr. McClung's testimony. First, it concluded that the testimony lacked an adequate

factual foundation. Second, it ruled that the testimony did not meet the threshold for

admitting expert opinion since it was not expressed to a reasonable degree ofmedical

certainty.

      With respect to the first conclusion—^that Dr. McClung's testimony lacked an

adequate factual foundation—I disagree. At the hearing on Dr. McClung's

testimony, the trial court spent close to 13 minutes examining the "chain of other

experts and their evaluations" that Dr. McClung relied on in forming his opinion.

Id. at 7-20. This examination contains medical judgments that the court was not

qualified to make.     As noted above. Dr. McClung relied on Dr. Connor's


                                         114
State V. Schierman (Conner), No. 84614-6


neuropsychological testing report, which included Dr. Connor's opinion that

Schierman had probably suffered multiple head injuries, at the hands of his

biological father, prior to the 1997 concussion. According to Dr. Connor,the earlier

injuries were significant because they likely worsened the effects of the 1997

concussion: "It is well documented that multiple head injuries ha[ve] a cumulative

effect such that in each subsequent injury, the negative impacts are often greater than

would be expected from one head injury in isolation."         CP at 8257. The trial court

rejected this theory, ruling that there was no "foundation" for any expert's

conclusion that Schierman had suffered multiple head injuries. VRP(Apr.29,2010)

at 20.


         It is not entirely clear why the court reached that conclusion. Certain parts of

the transcript indicate that the court believed the MRI conclusively proved that

Schierman had suffered only one brain injury.^^ (According to the offer of proof,

the MRI revealed that Schierman had suffered at least one, but not necessary only




         In his affidavit in support ofDr. McClung's proposed testimony. Dr. Adler stated
that "the effect(s) of the 1997 [concussion reflected in the MRI] was/were likely made
more serious by precedent head trauma." CP at 8250.

          VRP(Apr. 29,2010)at 8("Dr. Cowen's re-evaluation ofthe MRI[]... concludes
that... there was evidence of a prior insult — that is singular"), 15 ("[Dr. Adler] does seem
to ignore [Dr. Cowen's] conclusion, as Dr. Connor did, that there was evidence of one, a,
prior injury or insult... shown in the rereading ofthe MRI.").


                                            115
State V. Schierman (Conner), No. 84614-6


one, concussion.) But the majority of the court's comments on the issue indicate

that it just didn't think that Schierman's father hit Schierman hard enough or often

enough in the head to sustain any expert's conclusion that Schierman had suffered

multiple head injuries.'^®

       This medical conclusion exceeded the trial court's expertise. Both Schierman

and his sister told Dr. Cunnningham about an incident in which their biological

father picked Schierman up and slammed him face first into a brick hearth. This

occurred when Schierman was 9 or 10 years old.                    Schierman also told Dr.

Cunningham that his father often shook him so hard that his head flopped back and

forth, and that his father threw him against walls and kicked him down stairs.

Schierman's mother reported that Schierman's father slapped him so hard that it left

marks.


       It is not clear whether Dr. McClung would have testified that these prior

injuries likely worsened the effects of Schierman's documented 1997 concussion—

his proposed testimony did not explicitly endorse that particular portion of Dr.




          E.g., id. at 13-14("[In his interview with Dr. Cunningham,[t]he defendant relates
this incident that his sister [also] related . . . where their father grabbed the defendant and
threw him face first on to the brick hearth. The defendant relates . . . that he was about. .
. 9 or 10 at the time . . . and was dizzy after that and disoriented for a little while. There is
no detail about how long that effect lasted.'"(emphasis added)), 9("[Schierman's mother]
only reports one incident . . . when the defendant was in the third grade, his biological
father . . . slapped him in the face, hard enough that it left marks"(emphasis added)).
                                              116
State V. Schierman (Conner), No. 84614-6


Connor's report. But, as a forensic psychiatrist, he was qualified to offer such

testimony. The trial court, by contrast, was not qualified to assess the probable

medical consequences of Schierman's childhood abuse. Therefore, it should not

have excluded Dr. McClung's testimony for inadequate "foundation." Id.

       The trial court's second ruling—that Dr. McClung's opinion was inadmissible

because it was not expressed to a reasonable degree of medical certainty—^presents

a more complicated legal question. Under normal (non-capital-sentencing phase)

evidentiary standards, expert medical opinion testimony is inadmissible unless it is

expressed to a "reasonable[]medical certainty" or "reasonable medical probability."

Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 606-07, 260 P.3d 857

(2011). Schierman—understandably—does not argue that Dr. McClung's proposed

testimony met this standard. Instead, he argues that the "reasonable medical

certainty" standard does not apply to mitigating expert testimony in a capital

sentencing proceeding. Appellant's Opening Br. at 124.^^^ This is a question offirst

impression for this court.


          Schierman cites State v. Ellis, 136 Wn.2d 498, 963 P.2d 843 (1998), arguing that
it established a low bar for the admission of"expert testimony on diminished capacity," at
least in capital cases. Appellant's Opening Br. at 124. Ellis does not stand for that
principle. In Ellis, the trial court excluded a significant amount of expert testimony on
diminished capacity on a pretrial motion in limine. 136 Wn.2d at 522-23. The Ellis court
held that the exclusion was premature, and that the trial court should have evaluated it
under ER 702, 401, and 402 instead of applying the nine separate factors articulated in
State V. Edmon, 28 Wn. App. 98, 621 P.2d 1310 (1981). Ellis, 136 Wn.2d at 522-23.

                                          117
State V. Schierman (Conner), No. 84614-6


      The "reasonable medical certainty" or "reasonable degree of probability"

requirement for expert opinion testimony is partly a matter of relevance.          Under

ER 401, "relevant evidence" is evidence that tends to make the existence of a

material fact more or less probable, and, in a normal adjudication of criminal or civil

liability, expert opinion does not satisfy this standard unless it is expressed to a

reasonable degree of probability."^^        Neither the Eighth nor the Fourteenth

Amendment to the United States Constitution prohibits the exclusion of mitigation

evidence on the ground that it is irrelevant."^"^ But the question remains: What makes

an expert opinion relevant to the ultimate determination that ajury must make under



Nothing in Ellis undermines the "reasonable medical certainty" standard for expert medical
testimony.

         Lord III, 161 Wn.2d at 295 n.l6 ("If the expert cannot express an opinion to a
reasonable degree of probability, then his or her opinion does not make the material issue
more or less likely . . . . Such testimony amounts to speculation." (citing State v. Phu
Huynh,49 Wn. App. 192, 198, 742 P.2d 160(1987))); Torno v. Hayek, 133 Wn. App. 244,
250, 135 P.3d 536 (2006)(medical testimony not helpful to the trier of fact unless "based
upon a more probable than not basis" (citing Carlos v. Cain, 4 Wn. App. 475, 477, 481
P.2d 945 (1971))); ER 401 ('"Relevant evidence' means evidence having any tendency to
make the existence of any [material] fact. . . more probable or less probable than it would
be without the evidence.").

      '^3eR401.

          State V. Davis, 175 Wn.2d 287, 318-19, 290 P.3d 43(2012){Davis II)(upholding
trial court's exclusion of several witness's mitigation testimony as irrelevant); State v.
Gregory, 158 Wn.2d 759, 856-57, 147 P.3d 1201 (2006)(trial court properly excluded as
irrelevant evidence regarding sentences imposed for other defendants' crimes), overruled
in part on other grounds by State v. W.R., 181 Wn.2d 757, 336 P.3d 1134(2014).

                                           118
State V. Schierman (Conner), No. 84614-6


Washington's death penalty statute—^the determination of whether the jury is

"convinced beyond a reasonable doubt that there are not sufficient mitigating

circumstances to merit leniency?" RCW 10.95.060(4).

      In this case, Dr. McClung offered to testify that Schierman's brain injury

might, but might not, have impacted his behavior. CP at 8260. The State is correct

that this testimony does not make thefact of Schierman's diminished control more

probable; it just establishes the possibility of that diminished control. Thus, in a

normal adjudication of criminal or civil liability. Dr. McClung's testimony would

be properly excluded as irrelevant.

      But, as the State argued in State v. McEnroe, the jury's determination under

RCW 10.95.060(4) is not purely factual. 181 Wn.2d 375, 383-84, 333 P.3d 402

(2014). Instead, that determination involves considerations of"mercy,leniency, and

other nonfactiial matters." Id. at 386 (emphasis added). In this respect, the jury's

decision in a capital sentencing phase proceeding is fundamentally different from its

decision in a normal civil or criminal case.


      In light of this difference, the "reasonable medical certainty" standard should

not be applied to mitigating expert testimony in a capital sentencing proceeding.

When the jury is answering the question posed under RCW 10.95.060(4)—^whether

it is "convinced beyond a reasonable doubt that there are not sufficient mitigating

circumstances to merit leniency"—^the Eighth and Fourteenth amendments to the

                                        119
State V. Schierman (Conner), No. 84614-6


United States Constitution require that it be allowed to consider all evidence that

'''might serve "as a basis for a sentence less than death.'"" Tennard,542 U.S. at 288

(emphasis added){o^otingSkipper, A16 U.S. at 5(quotingZocAref?,438 U.S. at 604)).

Thus, in Washington, a capital defendant must be allowed to present any penalty

phase evidence that might create reasonable doubt about the conclusion that

"leniency"—a sentence of life in prison without parole instead of death—is not

warranted.


      Dr. McClung's testimony clearly satisfied that standard. While Dr. McClung

did not testify that prior brain injury probably impaired Schierman's capacities, he

did testify that it possibly impaired Schierman's capacities. Some jurors might

consider that possibility to be a circumstance meriting leniency. Thus, even if Dr.

McClung's testimony did not establish a probability of diminished capacity, it still

might serve as a basis to impose a sentence less than death.         Dr. McClung's

testimony is therefore relevant mitigating evidence in the penalty phase. The

cumulative effect of excluding all of this science in the penalty phase was not

harmless.


             D. Schierman's other assignments of error

                1. Facts

       Just before the penalty phase began, the defense submitted a new list of

mitigation witnesses. It listed 79 people and summarized each one's proposed

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


testimony.       The summaries referred generally to Schierman's personal

characteristics and/or emotional relationship with the witness."^^ The State moved to

exclude most of these witnesses as cumulative.


       The trial court ruled that the defense could select up to 12 ofthe listed family

members and 2 teachers or school counselors to testify as to Schierman's character.

It ruled that the defense could select up to 15 ofthe remaining lay witnesses to testify

as to Schierman's character, but that these witnesses could testify about Schierman's

history of alcohol blackouts only to the extent that the defense experts did not cover

this subject. Finally, the court ruled that the defense could call just one treatment

professional from the Lakeside-Milam Recovery Center(Lakeside-Milam).

       The trial court also limited the scope of the lay witness testimony. It ruled

that lay witnesses could testify to the facts that Schierman's parents divorced and

Schierman's father was abusive, but could not offer opinions as to how these things

affected Schierman. The court clarified that Schierman's mother could testify about

"[ojbserved behaviors . . . that she may associate with [Schierman's father's]



         E.g., CP at 26426 (cousin, Derek Huotari, would testify "about their childhood
[and that] [Schierman] cared about them and treated people respectfully [and] loved
animals"), 26427 (cousin Seth Justesen would testify "regarding his experience of
[Schierman's] family over the years and his feeling of connectedness to [Schierman] as a
friend and family member), 26431 (friend ofKinsey Schierman(Schierman's sister) would
testify "to [Schierman's] treating her like a sister and looking out for her [and that s]he felt
safe with him"), 26430 (former employer would testify that [Schierman] was "a hard
worker, car[ed] for animals and [was] a team player").
                                             121
State V. Schierman (Conner), No. 84614-6


absence," but that lay witnesses generally were not qualified to opine on the

psychologieal effects of divorce or abuse on a child. VRP(Apr. 13, 2010) at 29-30.

The court also ruled that no witness could testify about the impact of Schierman's

execution on other people.

      The defense moved for reconsideration, submitted a more detailed offer of

proof regarding the excluded witnesses, and requested the addition of two new

categories of witness: "family counselors" and "corrections officers." CP at 7899.

In response, the court ruled that the defense could add seven new mitigation

witnesses: the Reverend David Tinney (a "Friend" on the first witness list, CP at

7934), Ed Morrison (a family counselor not on the first witness list), two additional

family members from the first witness list, and three new witnesses from the

department of"adult juvenile detention" (not on first witness list). VRP (Apr. 15,

2010) at 104. This meant that the trial court permitted Schierman to call, in total, 37

character witnesses out of73 proposed character witnesses.

      On April 19, the defense offered the testimony of Eldon Vail, the secretary of

the Washington DOC, regarding the resources and programming available to

offenders sentenced to life without parole in Washington. The court agreed that

Vail's testimony was "certainly relevant . . . on the statutory mitigating

circumstances of future dangerousness or lack thereof," but ruled that if Vail



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


testified, another defense mitigation witness, James Aiken, could not. VRP (Apr.

19, 2010) at 22.

      Aiken's testimony covered the same general topic and thus was just as

relevant as Vail's. Aiken is a security consultant to numerous prison systems; the

defense offered his testimony on "an inmate's overall adjustment to confinement as

well as current/future danger to society" and "Mr. Schierman's classification records

from the King County Correctional Facility in Seattle." CP at 7920, 7943, 26422.

Consistent with its limitation on Dr. Cunningham's evidence, the trial court ruled

that Aiken could testify only as to his knowledge of prisons in Washington State.

VRP(Apr. 19, 2010)at 22. But it also ruled that Vail was "in a much better position

to testify on that than is Mr. Aiken," and excluded Aiken's testimony as

cumulative—z/Vail were to testify. Id.

      On April 22, 2010, in response to the State's motion, the trial court excluded

testimony by Kinsey Schierman "regarding the effects of. . . her father's anger or

his unpredictable behavior on her." VRP (Apr. 22, 2010) at 15. It ruled, however,

that Kinsey could testify regarding "any observation she made of the impacts, not

her interpretation of the impact, but actual observations of impacts . . . [that her

father's] behaviors had on the defendant." Id. at 16.

      On April 26, 2010,the trial court limited the testimony of Schierman's uncle,

Michael Christensen.     Christensen would have testified that he was a former

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


corrections officer, that he had observed Schierman "reach[ing] out to his family . .

. from the correctional setting," and that he viewed this as a positive thing. VRP

(Apr. 26, 2010) at 11. The court ruled that Christensen could testify "to the same

scope that other family witnesses have been allowed to testify," but that he could not

"relat[e] his own employment to [Schierman's] situation and how he thinks that

[Schierman] will . . . do." Id. at 14.

       On the same day,the trial court ruled that no mitigation witnesses could testify

as to what their children did for a living or how many grandchildren they had. The

court stated that it was making that ruling in response to a "pattern throughout the

examination of... both family and friends witnesses." Id. at 13.

       Ultimately, Schierman called 33 mitigation witnesses."^^

       Finally, Schierman presented 23 photographs through the mitigation

testimony of his sister, Kinsey. The defense offered 54 more photos of Schierman

through Schierman's mother. The trial court limited these additional photographs to


         VRP (Apr. 20, 2010) at 43 (Dean Dubinsky), 132 (Keith O'Brien), 151 (Amy
Hawkinson); VRP (Apr. 21, 2010) at 10 (James Ilika), 54 (Mark Nowak), 63 (Chris
O'Brien), 93 (Marilyn Lagerquist), 138 (Eldon Vail), 161 (Lori Huotari), 179 (Corrine
Cross), 190 (Michelle Brask); VRP (Apr. 22, 2010) at 34 (Timothy Driver), 44 (Candace
Budhram), 89 (Michael Holley), 100 (Charlotte Zachary-Klutchnikova), 106 (Kinsey
Schierman); VRP (Apr. 26, 2010) at 15 (Jaime Yantis), 27 (Gail Justesen), 36 (Michael
Christensen), 40 (Linda Schierman), 62 (Seth Justesen), 69 (Kimberly Yantis), 72 (Isaac
Way), 108 (Jerry Walsh), 115 (Roni Uyeda), 124 (Corey Anne Louis Kelman), 136 (Lois
Tallman); VRP (Apr. 27, 2010) at 24 (Karl McGavran), 35 (Phyllis Roderick), 44(Linda
Kesler), 51 (Lugenia Allen-Brablik), at 63 (Wendy Dubinsky); Def.'s Lx. 11 (Jim
Tallman).
                                         124
State V. Schierman (Conner), No. 84614-6


12. The court also ruled that the defense could present only 12 pieces ofSchierman's

artwork, either live or in photographs. The court denied defense counsel's request

to present a single photograph showing more than 12 pieces of artwork.

                2. Analysis

      Schierman argues that the trial court committed eight errors in excluding or

limiting this mitigation testimony. We address each alleged error separately.

                   a. Exclusion of mitigation character witness testimony as
                      cumulative

      Schierman contends that it was error to exclude mitigation witnesses on the

ground that their testimony was cumulative. He cites his cousin Erica Akingcoye's

proposed testimony as an example of excluded evidence that "would have gone to

Schierman's ability to form strong social bonds with others, and to touch their lives

in positive ways." Appellant's Opening Br. at 129 (citing CP at 7893). Schierman

argues that this type of testimony "says something about the person [he] was when

he was not drinking or taking drugs." M at 130. He also argues that such testimony

should not be excluded as cumulative because "[t]o a large extent, the sheer number

of witnesses was the very point: a person who has touched and enhanced the lives of

many people will likely be seen as more deserving of leniency." Id.

      We know of no case holding that a trial court erred by excluding mitigating

character evidence as cumulative in a capital sentencing proceeding. But neither do



                                        125
State V. Schierman (Conner), No. 84614-6


we know of any case in which a trial court preemptively limited the number of

mitigation character witnesses who could testify.

       We do not resolve this issue here. Schierman offered character testimony by

47 non-family-member witnesses,            and the trial court excluded 30 of these

witnesses as cumulative.'^^ He also offered the testimony of26 family members,and

the trial court excluded 12 of them. VRP (Apr. 13, 2010) at 32-33; VRP (Apr. 15,

2010) at 104. In all, therefore, the trial court deprived Schierman of mitigating

character testimony by 42 individuals—^more than half of all the penalty phase


         There are eases, however, affirming a trial court's exclusion of written character
evidence as cumulative oflive witness testimony. E.g.,People v. Pearson,56 Cal. 4th 393,
470, 297 P.3d 793, 154 Cal. Rptr. 3d 541 (trial court did not violate defendant's right to
due process by excluding three reference letters, describing defendant as reliable and
hardworking, as "cumulative of other testimony regarding defendant's character presented
during the penalty phase"), cert, denied, 134 S. Ct. 198 (2013); State v. Wise, 879 S.W.2d
494, 521-22(Mo. 1994)(no denial of due process where trial court excluded letter from
corrections officer describing defendant's talent in music, poetry, and writing; because
other witnesses had testified to these qualities, letter was properly excluded as cumulative),
overruled on other grounds by Joy v. Morrison,254 S.W.3d 885(Mo.2008);Fox v. State,
1989 OK CR 51,779 P.2d 562,572(where defendant presented 54 witnesses"who testified
that his life had meaning to them and who felt that he should be sentenced to life
imprisonment rather than being given the death penalty," five additional affidavits
containing similar statements were "needless ... cumulative evidence"; trial court did not
deny defendant due process protections by excluding affidavits).

       CP at 7933-35(31 "Friends," five "School" witnesses, and 10"Work" witnesses),
7899(Morrison).

        VRP (Apr. 13, 2010) at 33 (ruling that Schierman could present 15 non-family-
member lay witnesses); VRP (Apr. 15,2010) at 104(allowing Schierman to add Reverend
Tinney and Morrison).



                                            126
State V. Schierman (Conner), No. 84614-6


witnesses offered by the defense. And it did so not because these witnesses offered

irrelevant or unreliable testimony, but because it determined that their testimony

would delay the proceedings.

      But Schierman then chose to forgo calling even the character witnesses he was

permitted to call. We therefore conclude that he did not preserve this claimed error

for review.


                    b. Exclusion of testimony about mitigation witnesses' lives and
                        families

      Schierman asserts that the trial court prohibited mitigation witnesses from

discussing their own lives and families. He argues that this was error because those

witnesses' "loving ...[and] pro-social" lives were relevant in assessing the value of

their testimony on Schierman's behalf. Appellant's Opening Br. at 130-31.

      The trial court, however, did not generally prohibit witnesses from

"discussing their own lives and family relationships," as Schierman suggests. Id. at

130. Instead, the trial court stated once—apparently in response to testimony from

certain mitigation character witnesses—^that witnesses could not testify about how

many grandchildren they had or what their children did for a living.



        See CP at 7921-22 (State's "Memorandum in Support of Motion to Exclude
Cumulative Defense Penalty Phase Witnesses," arguing that witnesses should be excluded
because "jurors have been repeatedly advised ... that this trial will conclude by late-March
or early April").

                                            127
State V. Schierman (Conner), No. 84614-6


        Moreover, Schierman fails to identify any particular testimony that he was

unable to present as a result ofthis ruling. In fact, on April 27,the day after the court

issued this ruling, a friend of Schierman's from the Lakeside-Milam testified that

she had six grandchildren and that the eldest was being deployed to Afghanistan in

July.

        This issue does not entitle Schierman to relief.

                     c. Exclusion of lay opinion testimony about the effects of abuse
                        and divorce

        Schierman argues that the trial court erred by excluding lay testimony

regarding the way he was affected by domestic violence and divorce. Citing State

V. Claflin, 38 Wn. App. 847, 854, 690 P.2d 1186 (1984), he argues that such

testimony is admissible under the Rules of Evidence. He implies that even if it

weren't admissible under the Rules of Evidence, such testimony would still be

admissible in the penalty phase of a capital case.

        The trial court, however, did not actually exclude testimony about

Schierman's behavior following his parents' divorce or his father's abuse. Indeed,

Schierman's mother, stepfather, and sister all testified about the way abuse and

divorce affected Schierman. VRP (Apr. 20, 2010) at 44, 70 (Dean Dubinsky

testifying that Schierman's childhood trauma led him to have emotional and

substance abuse problems); VRP (Apr. 22,2010) at 108-12(Kinsey testifying about


                                          128
State V. Schierman (Conner), No. 84614-6


physical and emotional abuse; testifying that she "noticed more of a change in

[Schierman] just shortly after the separation"); VRP (Apr. 27, 2010) at 83-88

(Wendy Dubinsky testifying about the effect that abuse and divorce had on

Schierman).

      Thus, regardless of some trial court comments seeming to exclude testimony

on this topic, most of it was,in fact, admitted. Ultimately, Timothy Driver testified

that when he coached Schierman in high school, he saw signs in Schierman's

behavior that "it was .. . uncomfortable for him at home at that time." VRP (Apr.

22,2010)at 40. This is consistent with the summary provided in the defense's April

9, 2010, supplemental disclosure. And after the defense filed its motion for

reconsideration, the court ruled that Morrison could testify. Although Morrison was

ultimately unavailable, the defense substituted Phyllis Roderick, Schierman's junior

high school counselor. Roderick testified that Schierman "was a child who was

angry at dad and mom over what was going on[,]. . . who was slipping into what I

was concerned might be a depression[,]...[and who] struggl[ed] between wanting

to be the kid that he was and that need to . . . also be the caretaker for the family."

VRP (Apr. 27, 2010) at 41.

      As for the other proffered witnesses, only Schierman's mother, Linda

Schierman, testified.   But she testified consistently with the summary in the

supplemental disclosure, describing her family's legacy ofalcoholism and the abuse

                                         129
State V. Schierman (Conner), No. 84614-6


that Schierman suffered at the hands ofhis biological father. Thus,it does not appear

that the court's ruling on lay opinion actually had any limiting effect on Linda

Schierman's testimony.

      Finally, although Stephanie Overland and Joshua Parker did not testify, we

cannot tell from the record why the defense did not call them. As explained above,

the defense called only 12 of the 14 family member witnesses that the trial court

ultimately permitted. Both Overland and Parker were family members and thus

could have testified.


                   d. Forcing Schierman to choose between Eldon Vail and James
                        Aiken


      Schierman argues that the trial court erred by forcing him to choose between

Aiken and Vail. He contends that Aiken could have offered his perspective on

prisons outside Washington State, to which Schierman might one day be transferred.

The State argues that this error is unpreserved because Schierman failed to object to

the court's April 19 ruling.

      The State is correct. And, in any event, Aiken's testimony would have been

entirely cumulative of Vail's. The defense offered both Aiken and Vail as experts

on Schierman's probable conditions of confinement in the Washington State DOC.

Vail had much more direct experience with Washington's prisons than Aiken did.




                                        130
State V. Schierman (Conner), No. 84614-6


                      e. Exclusion of Kinsey Schierman's testimony regarding her
                        own abuse

      Schierman argues that the trial court erred by prohibiting Kinsey Schierman

from testifying about the way she was affected by her father's abuse.

      The State argues that the trial court acted within its discretion when it

determined that Kinsey's experience was not relevant. It argues that the jury could

not assume that their father's abuse affected Kinsey and Schierman in similar ways

because "Kinsey was four years younger than Schierman, testified that she suffered

an alcohol addiction but was successful in recovery, and apparently was not violent

toward others," and because her gender and personality were different from

Schierman's. Br. ofResp't at 191 (citing VRP (Apr. 22, 2010)at 107, 115).

      We agree with the State that this relevance determination was within the trial

court's discretion.


                      f. Exclusion of Michael Christensen's testimony about his
                         experience as a corrections officer
      Schierman argues that the trial court erred by limiting Christensen's

testimony. Christensen is both Schierman's uncle and a former corrections officer,

and the defense offered his opinion testimony on Schierman's adjustment to life in

prison.

      The court ruled that Christensen could testify about his relationship with

Schierman, as a family member, but could not "relat[e] his own employment to

                                        131
State V. Schierman (Conner), No. 84614-6


[Schierman's] situation and how he thinks that [Schierman] will... do, or has done

because of his own prior or current employment." VRP (Apr. 26, 2010) at 14. The

court explained that that testimony "is neither relevant [nor] probative of the issues

present in the penalty [phase] ofthis case." Id. at 11.

      The trial court erred here for the same reason it erred in excluding Dr.

Cunningham's actuarial testimony regarding future dangerousness. The cumulative

effect of exclusion of all this mitigating evidence also weighs in favor ofreversal of

the death sentences..


                   g. Exclusion of testimony about the effect of an execution on
                      family members
      Schierman argues that he should have been allowed to present testimony on

the effect of his execution on his friends and family. But he failed to object to the

court's ruling. Because there was no objection, there was no colloquy on this issue.

Nor was there any relevant offer of proof, so the record does not indicate what

evidence Schierman would have presented regarding the effect of his execution on

his friends or family. See CP at 7889-900, 26422-33 (summarizing proposed

mitigation witness testimony; omitting any reference to the impact of Schierman's

execution on his friends or family). For this reason, any error is not"manifest" under

RAP 2.5(a)(3). Kalebaugh, 183 Wn.2d at 584(error not "manifest," for purposes of

RAP 2.5(a)(3), unless there is a "'plausible showing by the [appellant] that the


                                         132
State V. Schierman (Conner), No. 84614-6


asserted error had praetical and identifiable consequences in the trial'") (alteration

in original)(internal quotation marks omitted)(quoting O'Hara, 167 Wn.2d at 99)).

                      h. Photographs
         In his opening brief, Schierman implies that the trial court admitted only 12

of his many offered photographs of his life. The State points out, correctly, that the

court actually admitted 35 of Schierman's photographs. Schierman does not explain,

in either his opening or his reply brief, how he was prejudiced by the 35-photograph

limit.    When the trial court excluded 42 of the photographs offered through

Schierman's mother, it ruled that the photographs were "not relevant or probative in

that quantity" because many of them depicted Schierman at the same life stages.

VRP (Apr. 26, 2010) at 149. With respect to Schierman's artwork, the trial court

ruled that Schierman could present 12 separate pieces. Schierman asked to display

a single image ofhis artwork "in such a way that it could bejust observed en mass[e],

as opposed to individual pieces," presumably because in that way he could present

more than 12 individual pieces. Id. at 151. The trial court denied this request.

         The trial court acted within its discretion in placing these minimal limits on

Schierman's photographs and artwork.




                                           133
State V. Schierman (Conner), No. 84614-6


      II.    The Admission of Certain Victim Impact Testimony Did Not Violate
             Schierman's Rights to Due Process or Protection against Cruel
             Punishment

      Schierman challenges the trial court's admission oftwo types ofvictim impact

evidence:(1) a memorial service video tribute to the four victims and (2)testimony

by several of the victims' family members regarding their immigration from the

former Soviet Union and the importance of Christianity to them and to the adult

victims. He argues that the admission of this evidence violated the Eighth and

Fourteenth Amendments to the United States Constitution and article I, sections 3

and 14 ofthe Washington State Constitution.

             A. Facts


                1. Memorial service video

      On April 15, 2010, the State offered as penalty phase evidence "a video that

was prepared for purposes of a memorial service by the [victims'] family, which

provides . . . moving images of the four victims in this case . . . [and is] about 15

minutes long." VRP (Apr. 15, 2010) at 110. The defense objected that the State

should be limited to one "in-life" photograph ofeach victim, arguing that "memorial

services are beyond the boundaries ofevidence that should be otherwise admissible"

because they tend to "inflame the passions of[the]jury." /J. at 111.

      The trial court noted that the State had listed the video in its discovery

materials in December 2009, and asserted that it was "a little late to be objecting to

                                         134
State V. Schierman (Conner), No. 84614-6


it now." Id. at 112. But once again,the court gave the defense more time; it allowed

the defense until noon the following day to submit specific objections in writing.

The defense then argued that the video was "well crafted, and it . . . make[s] it

extremely difficult for [the defense] to put on mitigation." VRP (Apr. 19, 2010) at

8.


      The State countered that the memorial video was admissible because its

"focus on family, the focus on faith, the focus on children, is exactly who these

people were, in a way that... is unusual for people perhaps in our society, and for

that reason [the video] truly give[s] the most meaningful glimpse of who these

people . .. were." Id. at 4. The State also suggested that ifthe court concluded that

the video's music soundtrack was inflammatory, the video could be played without

sound.


      The court ruled that the video was largely admissible under State v. Gregory,

in which this court held that victim impact evidence is admissible in the penalty

phase of a capital case, so long as it does not'"so infect[] the sentencing proceeding

as to render it fundamentally unfair.'" 158 Wn.2d 759, 852, 147 P.3d 1201 (2006)

(quoting Payne v. Tennessee, 501 U.S. 808, 831, 111 S. Ct. 2597, 115 L. Ed. 2d 720

(1991)(O'Connor, J., concurring)), overruled in part on other grounds by State v.

W.J., 181 Wn.2d 757, 336 P.3d 1134(2014). The trial court concluded that the only

objectionable part ofthe memorial video was the soundtrack, and ruled that the video
                                         135
State V. Schierman (Conner), No. 84614-6


must therefore be played silently. The court excluded the music because "in the

court's view,[it] does magnify tremendously the ~ both,the religious, spiritual, and,

as the case law [has] held, inappropriate attempts to influence through those means

the jury's decision in this case." VRP (Apr. 19, 2010) at 10.

                2. Victimfamily member testimony
      The State presented four witnesses during the penalty phase: Lybov Botvina

(the mother of Olga and Lyuba), Pavel Milkin (the father of Leonid), Yelena

Shidilovsky (the sister of Olga and Lyuba), and Leonid (the husband of Olga and

father of Andrew and Justin).

      All ofthese witnesses testified about their relationship to the victims and their

sense ofloss. Lybov and Pavel testified that both oftheir families came to the United

States as political refugees, sponsored by the Catholic Church, because they were

persecuted in the former Soviet Union for their Christianity. Leonid testified that he

was 13 when his family immigrated to the United States, and that he spoke no

English when they arrived. The prosecutor asked Lybov whether she ever wished

that she had not come to the United States "because of what happened." VRP (Apr.

19, 2010) at 124. She answered, "Yeah, that's what my husband say, iff would

know,I will lose my girl, I would have stayed in Ukraine no matter what." Id.




                                         136
State V. Schierman (Conner), No. 84614-6


      Lybov and Yelena testified that Lyuba and Olga were deeply religious.

Leonid testified that Olga was extremely active in their church. The prosecutor

asked Lybov whether the murder had shaken her faith. She replied:

      You know, we have [a] very deep belief, we are Christian and we came
      from Ukraine, where Christianity was underground, and so it did not
      shake my faith, no, it doesn't, because I have belief I will meet him in
      heaven on the last day, because they are with Jesus.

Id. at 124. The prosecutor asked Yelena,"How important was faith in Olga's life?"

Id. at 152. She answered:


      Just like it was earlier said by my mom, we grew up, and pretty much
      the reason why we left the former Soviet Union is because ofreligious
      persecution, and as a result we knew that this is something ~ fi-eedom
      to really believe in God freely is something absolutely amazing and we
      should really treasure that, and knowing that you can fireely go on
      Sunday to church was absolutely a privilege, and having a Bible, read
      the Bible, as well, and so for her that was just the cornerstone, this was
      something that was an important part of her . . . daily life. I'm not
      talking about Sundays, I'm talking about the conversation I had with
      her at some point when I was working during the work hours.

      I called her and asked [a] simple question, what are you doing? She
      said, "I'm just reading my Bible," and that's not something to brag
      about, that's just... the fact that that was her life, to read the Bible and
      really believe according to the principles and be a good example.
      That's why she was absolutely loved and adored by people around her.
      She had a lot of friends.


Id. at 152-53.




                                         137
State V. Schierman (Conner), No. 84614-6


             B. Analysis
      In Booth V. Maryland, 482 U.S. 496, 501-02, 107 S. Ct. 2529, 96 L. Ed. 2d

440 (1987), overruled in part by Payne, 501 U.S. 808, the United States Supreme

Court held that the Eighth Amendment to the United States Constitution prohibited

the presentation of victim impact evidence to a capital sentencing jury. The Booth

Court reasoned that victim impact testimony was inherently inflammatory, was

virtually impossible to rebut, and created a risk of arbitrary sentencing decisions. Id.

at 505, 509. Two years later, in South Carolina v. Gathers, 490 U.S. 805, 810, 109

S. Ct. 2207, 104 L,Ed. 2d 876(1989), overruled in part by Payne,501 U.S. 808,the

Court extended Booth's holding to apply to the prosecutor's remarks.

      The Court overruled Booth and Gathers in Payne, reasoning that the states

have always been free to punish crime according to the harm that results:

      Victim impact evidence is simply another form or method ofinforming
      the sentencing authority about the specific harm caused by the crime in
      question, evidence of a general type long considered by sentencing
      authorities. We think the Booth Court was wrong in stating that this
      kind of evidence leads to the arbitrary imposition of the death penalty.
      In the majority of cases, . . . victim impact evidence serves entirely
      legitimate purposes. In the event that evidence is introduced that is so
      unduly prejudicial that it renders the trial fundamentally unfair, the Due
      Process Clause of the Fourteenth Amendment provides a mechanism
      for relief.




                                          138
State V. Schierman (Conner), No. 84614-6


501 U.S. at 825. The Payne Court, however, expressly declined to overrule Booth's,

holding that victims' family members may not testify to their opinions about the

defendant, the crime, or the appropriate sentence. Id. at 830 n.2.

      In State v. Gentry, this court adopted Payne's, reasoning and rejected the

defendant's argument that article I, sections 3 and 14 of the Washington State

Constitution prohibited the presentation of victim impact evidence to a capital

sentencing jury. 125 Wn.2d 570, 618-33, 888 P.2d 1105 (1995). The Gentry court

held that the addition of the victims' rights amendment (article I, section 35)to our

state constitution expanded the category of evidence that is admissible in a death

sentencing proceeding under Bartholomew II, 101 Wn.2d 631. The court cautioned,

however,that the trial court must always weigh the probative value ofvictim impact

evidence against its potential for prejudice, and that it must exclude '"irrelevant

information or inflammatory rhetoric that diverts the jury's attention jfrom its proper

role or invites an irrational, purely subjective response.'" Gentry, 125 Wn.2d at 632

(quotingPeop/e v. Raley,2 Cal. 4th 870,916,830 P.2d 712,8 Cal. Rptr. 678(1992)).

      The testimony at issue in Gentry was given by the victim's father. Id. at 617.

He testified "about the victim's interests, and her plans for the future[, and about]..

. the effects of his young daughter's murder on his work, his emotions and his

family." Id. This court held that the testimony was properly admitted at the

sentencing phase. Id.

                                         139
State V. Schierman (Conner), No. 84614-6


      Schierman acknowledges that the Eighth Amendment to the United States

Constitution no longer bars victim impact evidence, but he argues that the evidence

admitted in his case violated due process protections by '"injecting arbitrary factors

into [the] capital sentencing hearing.'" Appellant's Opening Br. at 147 (quoting

State V. Barnard, 608 So. 2d 966, 968 (La. 1992). He also argues that even if the

federal constitution does not bar the victim impact evidence admitted in his case,

Washington's more protective constitution does. WASH. CONST, art. I, §§ 3, 14.

      Since the addition of the victims' rights amendment to the Washington State

Constitution, however, this court has always looked to federal precedent to

determine the scope of victim impact evidence admissible under our state due

process and cruel punishment clauses.^' To be sure, Washington's constitution

imposes more stringent restrictions on all of the State's evidence at a special

sentencing proceeding, and these restrictions apply with full force to victim impact

evidence. E.g., Gregory, 158 Wn.2d at 854(because the Rules ofEvidence apply to



          Gregory, 158 Wn.2d at 854-55 (concluding that even if vietim's statement that
defendant's crime was "'unspeakable' improperly characterized the crime in violation of
Booth,[482 U.S. 496], and [State v.] Pirtle,[127 Wn.2d 628, 672, 904 P.2d 245 (1995)],"
any error was harmless under Washington Constitution's due proeess and eruel punishment
clauses because the statement"was fleeting compared with those made in Booth'')-, Gentry,
125 Wn.2d at 625-29 (holding that the due proeess and cruel punishment clauses of
Washington's constitution (article I, §§ 3, 14) can be harmonized with the victim's rights
amendment (artiele I, § 35) only by permitting victim impact evidence in a capital
sentencing proceeding, and concluding that such evidence is "relevant," under
Washington's death penalty statute, for the same reasons it was deemed relevant in Payne).
                                          140
State V. Schierman (Conner), No. 84614-6


State's evidence at special sentencing proceeding, victim impact evidence must

comply with hearsay rule). But Washington's constitution imposes no stricter limits

on victim impact evidence, specifically, than the federal constitution does.

                1. Memorial service video

      No Washington case directly addresses the issue, but Schierman contends that

courts in other jurisdictions have rejected victim impact evidence similar to the

State's video in his case. He cites United States v. Sampson, 335 F. Supp. 2d 166,

192(D. Mass.2004),Salazarv. State, 118 S.W.3d 880,882-85(Tex. Ct. App.2003),

andPeople v. Prince,40 Cal. 4th 1179,156 P.3d 1015,57 Cal. Rptr. 3d 543(2007)).

      In Salazar, 118 S.W.3d at 882-85, a noncapital case, the Texas Court of

Appeals remanded for resentencing because the prosecution showed a 17-niinute

video "tribute" to the victim's life.     The appellate court deemed the video

inflammatory, in violation ofthe defendant's due process rights, because it featured

'"highly emotional and moving background music'" and images of the adult victim

as a baby and young child. Id. at 884. In Prince, 40 Cal. 4th at 1291, the court

approved the use of a 25-minute video interview of the victim by a local television

station. It distinguished that video, which it described as "a calm, even static,

discussion of[the victim's] accomplishments and interests," from videos containing

music or images ofthe victim as an infant or young child. Id. at 1287. And in State

V. Hess, 207 N.J. 123, 158-59, 23 A.3d 373 (2011), the New Jersey Supreme Court

                                        141
State V. Schierman (Conner), No. 84614-6


held that defense counsel erred by failing to object to the admission of a 17-minute,

professionally produced video featuring music,images ofthe victim's childhood and

tombstone, and the superimposed text of poems scrolling over the images.

      In response, the State relies primarily on People v. Kelly, approving the use of

a 20-minute video, set to background music by Enya, depicting the victim from

infancy until her death at age 19. 42 Cal. 4th 763, 793-99,68 Cal. Rptr. 3d 531, 171

P.3d 548(2007). The Kelly decision repeatedly emphasizes the need for trial courts

to be "very cautious" in admitting videotape victim impact evidence, but concludes

that the video in question was "not unduly emotional" and "was relevant to the

penalty determination[ because i]t humanized [the victim]." Id. at 797-99. The

decision acknowledges that the background music was probably "irrelevant" and

"emotional," and it appears to disapprove of a "theatric" image of people on

horseback at the end of the video, but it concludes that these elements, even if

erroneously admitted, were harmless. Id. at 798.

      Thus, the case law on victim impact videos, including Kelly, generally

distinguishes between objective representations (admissible) and stylized

productions (inflammatory). It also distinguishes between information about the

victim's life (admissible) and tributes to the victim (inflammatory).

      The memorial video presented in this case contains four basic elements: many

still images ofthe victims, many moving images ofthe victims, a few captions with
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State V. Schierman (Conner), No. 84614-6


phrases like "you are gone, but not forgotten," and a few images of clouds and

coastlines. It also contains a few images of the two adult victims as children.

      The captions and images of nature are the kind ofstylized elements that courts

have deemed inflammatory and therefore inadmissible. E.g., Hess, 207 N.J. at 158-

59; Salazar, 118 S.W.3d at 884. And the images ofthe adult victims as children are

also problematic. Hess, 207 N.J. at 158-59; Salazar, 118 S.W.3d at 884. But in this

case, the emotional impact of those fleeting elements is negligible compared with

the impact ofthe many still and moving images ofthe two child victims. And courts

applying Payne have held that moving images and video photomontages are

admissible as victim impact evidence in a capital case. E.g., State v. Gray, 887

S.W.2d 369, 389(Mo. 1994)(videotape of victim at family's Christmas admissible

"to show the victims are individuals whose deaths represent a unique loss to society

and to their family and that the victims are not simply 'faceless strangers'"(quoting

Payne, 501 U.S. at 825)); State v. Leon, 142 Idaho 705, 707, 710, 132 P.3d 462

(Idaho Ct. App. 2006)(4 1/2-minute DVD (digital video disk) containing video and

photographic images of victim and victim's children was admissible victim impact

evidence). But see Sampson, 335 F. Supp. 2d at 191-93 (27-minute video featuring

200 still photographs of the victim from victim's life, beginning at infancy, would

have been inadmissible even without evocative musical soundtrack because it

"provided much more than a 'quick glimpse' of the victim's life").
                                         143
State V. Schierman (Conner), No. 84614-6


      In light of our precedent allowing the State to present victim impact evidence,

the trial court did not err by admitting the video without sound.

                2. Victimfamily member testimony

                   a. Preservation of error

      The State argues that we should decline to reach the issue ofthe victim impact

testimony because Schierman did not object to this testimony at trial. The State

contends that the defendant is required to preserve such an error under Gregory, 158

Wn.2dat 853 n.43.


      We reject the State's argument and reach the merits of this issue. First, we

construe procedural rules more liberally in a capital case. Lord I, 117 Wn.2d at 849

(citing Jeffries, 105 Wn.2d at 418). Second, this court has addressed unpreserved

challenges to the admission of victim impact evidence in the past. See Gregory, 158

Wn.2d at 853 n.43 (noting that defendant failed to preserve state, as opposed to

federal, constitutional challenges to the admission ofvictim impact evidence; stating

that "to the extent that we evaluate these arguments, we do so under RAP 2.5(a)'s

limitations"; and addressing the state constitutional arguments).

                    b. Merits

       Schierman argues that the victim impact testimony was irrelevant and

inflammatory under Gentry because it emphasized "the victims' goodness, beauty,



                                         144
State V. Schierman (Conner), No. 84614-6


piety, and glorious struggle to free themselves from community oppression so that

they could practice their Christian religion." Appellant's Opening Br. at 151.

      The State argues that many cases have approved victim impact testimony

referring to the victim's religious activities. The State is correct. See United States

V. Mitchell, 502 F.3d 931, 989-90 (9th Cir. 2007) (approving victim impact

testimony that the victim was the person responsible for teaching family's children

about their Navajo heritage, traditions, and practices); United States v. Bernard, 299

F.3d 467, 479-80 (5th Cir. 2002) (approving victim impact testimony regarding

victim's religious activities and survivors' reliance on faith; disapproving one

witness' appeal to defendants to "put their faith in Jesus Christ for the forgiveness

oftheir sins," but finding error harmless); People v. Vines, 51 Cal. 4th 830,251 P.3d

943,124 Cal. Rptr. 3d 830(2011)(approving testimony by mother ofvictim's young

son that she told her son the victim was in heaven with Jesus; approving testimony

that victim attended church);People v. Pollock,32 Cal. 4th 1153,1181,89 P.3d 353,

13 Cal. Rptr. 3d 34(2004)(approving testimony as to the victim's participation in

Bible study classes, but specifically noting that witnesses did not testify about

"[victim's] specific religious beliefs . . . [or] suggest that religious doctrines should

guide or affect the penalty determination process"); Pickren v. State, 269 Ga. 453,

454-55, 500 S.E.2d 566 (1998)(approving testimony as to the impact of victim's

death on his church community); State v. Reeves, 337 N.C. 700, 722-23, 448 S.E.2d

                                          145
State V. Schierman (Conner), No. 84614-6


802 (1994)(approving testimony that victim was a good person, who would do

anything for anyone and always went to church).

      Courts have also admitted victim impact testimony involving immigration and

persecution. People v. Virgil, 51 Gal. 4th 1210, 1274-75, 253 P.3d 553, 126 Gal.

Rptr. 3d 465(2011)(approving victims' sister's testimony that victim fled Cambodia

to escape Communism when victim was 10 years old); People v. Valencia, 43 Gal.

4th 268, 74 Gal. Rptr. 3d 605, 180 P.3d 351 (2008)(approving victim's parents'

testimony that when victim was still alive, he sent them money and clothing to help

alleviate their poverty in Mexico; approving victims' mother's testimony that she

was very proud of victim for graduating from high school since she had never

learned to read or write).

       We hold that the victim impact testimony in this case did not violate

constitutional protections. We decline to adopt a rule that says some victims'

stories—^particularly those involving religion, immigration, or persecution—are too

compelling to be admissible.


         Finally, Schierman asserts that the presence of uniformed military personnel in
the courtroom, combined with Leonid's testimony that he was stationed in Iraq when the
murders occurred,"rendered the death sentence arbitrary and capricious in violation of the
Eighth Amendment and Article 1, § 14." Appellant's Opening Br. at 84. Schierman cites
no authority for this argument. In the portion ofthis opinion that addressed the guilt phase
of Schierman's trial, we concluded that the presence of uniformed officers, even in
combination with Leonid's testimony, did not render Schierman's trial unfair. We know
of no authority suggesting that we should reach a different conclusion under the Eighth
Amendment and article I, § 14.
                                            146
State V. Schierman (Conner), No. 84614-6


      III.   The Trial Court Did Not Violate Schierman's Right to Due Process or
             Protection Against Cruel Punishment When It Permitted the State to
             Cross-Examine Schierman's Stepfather on the Contents ofSchierman's
             Rehabilitation Treatment Journal

      Schierman challenges the trial court's ruling allowing the State to cross-

examine his stepfather, Dean Dubinsky, about selected passages in a journal

Schierman kept while undergoing treatment at the Lakeside-Milam. The trial court

permitted this cross-examination as rebuttal to Dubinsky's testimony that he never

worried about the possibility that Schierman might harm another person when he

was intoxicated. Schierman argues that the treatment journal's prejudicial effect

outweighed its rebuttal value, and that the cross-examination therefore violated the

constitutional rules adopted in Bartholomew I and II. State v. Bartholomew, 98

Wn.2d 173, 654 P.2d 1170(1982){Bartholomew I), vacated by 463 U.S. 1203, 103

S. Ct. 3530, 77 L. Ed. 2d 1383 (1983), aff'd on remand by Bartholomew II, 101

Wn.2d 631.


             A. Facts

      On April 19, 2010,the first day ofthe penalty phase, the defense asked the

court to limit the State's cross-examination of mitigation witnesses as follows:

      "[Wje'd move to exclude cross-examination by the State with respect
      to ... other bad acts without foundation .... I can give an example.

             What I'm concerned about is a particular witness gets up,family
      or friend, indicates that their experience with [Schierman] has been a
      good one and they find him to have certain characteristics and
      background, and the State gets up and asks a series of questions like
                                        147
State V. Schierman (Conner), No. 84614-6


      without foundation regarding other bad acts, for example if you knew
      that he beat somebody up, would that change your opinion, or if he did
      this or that, would that change your opinion. So I'm concerned about.
      . . the, if you will, do you still beat your wife kind of questions.

VRP (Apr. 19, 2010) at 44.

      The State responded that it had "an abundance of foundation" to ask about

prior bad acts,"from the defendant's own writings and his descriptions to others of

his past life." Id. at 45. The defense disagreed, but only because the State could not

"establish foundation as to any personal knowledge by any of these witnesses." Id.

at 46 (emphasis added).

      The court rejected that argument on the ground that the State did not need to

establish that any mitigation witness was personally aware of an alleged specific

prior instance of bad or violent conduct. Instead, the court ruled, the State needed

to establish only that it had a "good faith basis" to believe that the prior bad act in

fact occurred: "One is not required to assume or know in advance whether the

witness is aware of the prior bad act, there simply has to be a good faith basis for

asking about the act itself." VRP (Apr. 19, 2010) at 46-47.

      The defense explained that it was particularly concerned about questioning

based on a "treatmentjournal" that Schierman had kept while he was a patient at the

Lakeside-Milam, a drug and alcohol addiction treatment facility. Id. at 47. The

court asked the defense,"What's the basis for moving to exclude any references to


                                         148
State V. Schierman (Conner), No. 84614-6


the defendant's own version of events?" Id. The defense repeated that the journal

described incidents about which no mitigation witness had direct, personal

knowledge. The court again rejected the argument that such knowledge was a

necessary foundation for questioning witnesses about the contents of the joumal.^^

      The following day, the defense called Schierman's stepfather, Dubinsky, as

its first mitigation witness. Dubinsky testified that Schierman had emotional

problems stemming from his childhood, and that this led him to use alcohol and

drugs. He explained that"[Schierman] and Kinsey[, Schierman's sister,] came from

an alcoholic home," that Schierman was smart but had low self-esteem, and that

Schierman had apparently attempted suicide before Dubinsky began dating

Schierman's mother. VRP (Apr. 20, 2010) at 49-60. He also testified that

Schierman was extremely protective of his mother and sister, a characteristic that

Dubinsky attributed to "the previous lives with their father." Id. at 56.

      Dubinsky described Schierman's last two years of high school as difficult,

mainly because ofSchierman's depression, which he also attributed to psychological

abuse by Schierman's father. But he explained that Schierman's outlook improved




         In his opening brief, Schierman asserted that "[t]he defense objected to the
introduction of information from the journal[,] citing State v. Bartholomew [II]."
Appellant's Opening Br. at 156. But in his reply brief, Schierman concedes that defense
counsel did not cite to Bartholomew I and II when objecting to the admission of the
treatmentjoumal.
                                         149
State V. Schierman (Conner), No. 84614-6


when he entered an alternative high school. When asked to describe Schierman

when he graduated from high school, Dubinsky said that "he was full of promise."

Id. at 65.


       Shortly after Schierman enrolled in college, however, his relationship with his

mother and Dubinsky began to deteriorate and he moved out oftheir home. During

this period, Schierman lived with his father briefly. By the time Schierman was 23,

Dubinsky believed that he was drinking excessively on a daily basis. Finally, after

Schierman showed up at his family's home carrying a gun and threatening suicide,

he entered a 28-day inpatient treatment program at Lakeside-Milam.

       Dubinsky testified that Schierman responded well to treatment. At the end of

the 28 days, Schierman moved into a group home for recovering addicts.

       Near the end of Dubinsky's direct examination, defense counsel asked him if

he ever feared that Schierman would harm another person while he was intoxicated.

Dubinsky testified that he did not because although he had "heard .. . maybe one or

two stories about [Schierman] being in a fight at a bar or something .... He didn't

have the history of hurting people or hurting things, or doing things that were

violent." Id. at 104(emphasis added). Defense counsel then prompted Dubinsky to

address the treatment journal, which "may or may not have described assaultive

behavior." Id. at 105. Dubinsky stated that he had first learned of the journal "the

other day," and had asked defense counsel to show him a copy of it in preparation

                                         150
State V. Schierman (Conner), No. 84614-6


for his testimony. Id. Dubinsky testified that Schierman had never been violent or

assaultive toward anyone else in Dubinsky's presence.

      On cross-examination, the prosecutor handed Dubinsky a collection of

photocopied papers, "marked for identification as State's Exhibit Number 2," and

asked if he recognized them. M at 115. He said he did not. The prosecutor indicated

that they were excerpts ofthe treatmentjournal and asked Dubinsky if he'd seen the

journal. Dubinsky explained that he had "asked the defense attorneys ifI could have

some information about the journal [and tjhey sent me some excerpts on line." Id.

at 115-16. He clarified that the excerpts were typed, whereas the photocopies he'd

just been handed were handwritten.

      The prosecutor then questioned Dubinsky about particular passages in the

journal, referring him to specific numbered pages and asking whether they'd been

included in the excerpts he'd seen online. In these excerpts, Schierman described

"stealing cigarettes and clothes and getting in fights," id. at 117-18; being "a really

good actor," id. at 118-19;"mak[ing] short work of—as in beating up —^his father,

id. at 120; inadvertently exposing his pets to the residual cocaine and ecstasy in his

sweat; and using hallucinogens and "beating the shit out of a homeless person that

[he] thought was an alligator," id. at 122-23. Dubinsky indicated that he had seen

most of these excerpts in the materials provided by defense counsel, but could not



                                         151
State V. Schierman (Conner), No. 84614-6


remember seeing the excerpt about stealing cigarettes and clothes, and had not been

provided the excerpt about cocaine and ecstasy.

      The prosecutor asked Dubinsky whether he'd seen an excerpt in which

Schierman described putting the back of his father's head through a wall and

knocking him unconscious. In the excerpt, Schierman stated that he "gave his

[father's] right hand a good couple sto[m]ps till I hear bones break," and later told

his father that he'd punched a hole in the wall in a drunken rage. Id. at 124.

Dubinsky acknowledged that this episode had been included in the journal excerpts

provided to him. He then stated:

      [Jjust to be upfront with you, I don't recall [Schierman's father] ever
      having a broken hand and I don't remember ~ he never called to discuss
      with us about an assault like this that would have taken place. I would
      have imagined that there would have been some sort of
      communications, parent to parent, if there was something like this
      going on.

Id.


      Finally, the prosecutor asked Dubinsky about an excerpt in which Schierman

stated that he'd had "several close calls with police, often with handcuffs on, in the

back of a cruiser, yet I never was arrested." Id. at 125. Dubinsky said that the

excerpt had been provided to him in the defense materials and did not match his

experience with Schierman: "I would imagine he would have ended up in jail or we

would have gotten a phone call or there would be some sort of write-up by the police


                                         152
State V. Schierman (Conner), No. 84614-6


officer, but, no . . .   Id. He made similar comments about two more excerpts in

which Schierman described "an ass whooping at the hands of a telescoping, steel

baton . . . [but] no arrest still," and a fight in which "I sent one guy to the ER and

just about broke another guy'[s] neck." Id. at 126.

              B. Analysis

                  1. Preservation oferror
       Schierman acknowledges that the prosecution may rebut testimony by a

capital defendant's mitigation witness, but he argues that the journal was

inadmissible because it was more prejudicial than probative. First, he argues that

the journal was not relevant rebuttal evidence because Dubinsky "never made

sweeping statements about Schierman's peacefulness." Appellant's Opening Br. at

166. Second, Schierman argues that the journal was unreliable. The State argues

that Schierman failed to preserve any such error because he did not cite Bartholomew

I and II or argue that the journal was more prejudicial than probative when

challenging its admission in the penalty phase proceeding.

       The State is correct that Schierman neither cited Bartholomew I and II nor

objected to the journal's admission on the ground that the journal was irrelevant or

more prejudicial than probative. Instead, he sought to exclude the journal on the

ground that none of his mitigation witnesses had personal knowledge of the events



                                         153
State V. Schierman (Conner), No. 84614-6


(fictional or otherwise) recounted in the journal. Thus, defense counsel did not

preserve the errors that Schierman now raises.

      Under RAP 2.5(a)(3), this court may decline review of an unpreserved error

unless the error is both "manifest" and "truly of constitutional dimension." O'Hara,

\61 Wn.2d at 98. We have said that an error is of constitutional magnitude only if

it deprives the defendant of an actual constitutional guaranty. Id. at 99, 103

(contrasting errors of constitutional magnitude, such as jury instructions that shift

the burden of proof, and errors of nonconstitutional magnitude, such as failure to

instruct on a lesser included offense). But the limitation on aggravating evidence in

a capital penalty phase proceeding was established by Bartholomew I and II and was

clearly based on our state constitution. Thus,the admission of aggravating evidence

in violation of Bartholomew I and II is an error of constitutional magnitude.^'^



        To the extent that this holding conflicts with certain statements in Lord I, 117
Wn.2d at 895, we disavow Lord I. In that case, this court held that it would not consider
an unpreserved challenge to the admission of penalty phase testimony regarding the age of
a girl the defendant victimized in a prior offense. Id. It reasoned that the defendant"does
not specify how the age of the victim especially prejudiced him and, thus, was
constitutional error." Id. (emphasis added). This misstates our precedent on RAP
2.5(a)(3). In equating "prejudice" with "constitutional magnitude," the Lord I court
purported to rely on State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492(1988). 117 Wn.2d
at 895. But Scott does not equate those concepts—on the contrary, it defines errors of
"constitutional magnitude" just as they are defined in O'Hara, 167 Wn.2d at 98-99: as
errors that deprive the defendant of a constitutional guaranty. See 110 Wn.2d at 689-91
(declining review under RAP 2.5 not because defendant failed to show prejudice, but
because alleged error did not violate constitutional guaranty).

                                           154
State V. Schierman (Conner), No. 84614-6


      Whether the admission of the treatment journal was "manifest" error under

RAP 2.5(a)(3) is a more difficult question. To prove that an unpreserved error is

manifest, an appellant must make a '"plausible showing . . . that the asserted error

had practical and identifiable consequences in the trial.'" Kalebaugh, 183 Wn.2d at

584 (quoting O'Hara, 167 Wn.2d at 99). And a practical and identifiable error is

one that '"the [trial] court could have corrected,'" given what it knew at the time.

Id.(quoting O'Hara, 167 Wn.2d at 100).

      In this case, that standard is satisfied as to two of the alleged but unpreserved

errors regarding the treatment journal—^the ruling that the journal's references to

specific instances of conduct were relevant rebuttal evidence (under ER 402) and

the ruling that this evidence was more probative than prejudicial(ER 403). These

are legal questions, which we can resolve—and the trial court could have

addressed—by comparing the content of Dubinsky's testimony on direct

examination with the content of the treatment journal the State sought to use on

cross-examination. But that standard is not met with respect to the other error that

Schierman alleges—^the trial court's (implicit) determination that the treatment

journal was sufficiently reliable for the State to have a good faith basis to use it,

particularly in the penalty phase proceeding. Because the defense failed to challenge

the journal as unreliable (or otherwise insufficient to provide the State with a good

faith base for cross-examination), the record contains no colloquy on this issue. We
                                         155
State V. Schierman (Conner), No. 84614-6


cannot now guess what that colloquy would have revealed if it had actually occurred.

Nor could the trial court have corrected a problem about which it was unaware. We

therefore address the merits of only the first two issues: relevance and probative

value versus prejudicial effect.

                2. We reject Schierman's claim that the specific instances of
                   conduct described in the treatmentjournal were inadmissible
      In Lord I, this court held that the scope ofrebuttal evidence in a penalty phase

proceeding was broad, but still limited by Bartholomew II's balancing of probative

value against prejudicial effect: "defense witnesses may be cross-examined

concerning anything relevant to a matter raised in mitigation by the defendant,

subject to the balancing test." 117 Wn.2d at 889-93,892. The Lordl court explained

that Bartholomew II's rebuttal rule was "analogous to the rules of evidence

concerning testimony about defendant's character":

             When a defendant presents evidence of his character, the State
       may inquire further to determine the reliability of that evidence. A
       defendant's character witness may be cross-examined about his
       personal knowledge of specific incidents of misconduct.. . .

                   The scope of cross-examination is sufficiently
             broad to make it dangerous for the defendant to call
             character witnesses unless the defendant has led a good
             life. A character witness may not only be asked whether
             he "has heard" this or that about the defendant, but he may
             also be asked "Do you know" this or that about the
             defendant.




                                         156
State V. Schierman (Conner), No. 84614-6


117 Wn.2d at 892-93 (quoting 5 Karl B. Tegland, Washington Practice:

Evidence Law AND Practice, § 125, at 45 (3ded. 1989)).

      In State v. Brett, 126 Wn.2d 136, 185-89, 892 P.2d 29 (1995), vacated and

remanded, 142 Wn.2d 868, 16 P.3d 601 (2001), this court reaffirmed the rebuttal

evidence rule stated in Bartholomew II and Lord I. It held that evidence of the

defendant's prior uncharged crimes was admissible to rebut a mitigation witness's

testimony that the defendant'"respected people'" and "was 'a real gentleman'." Id.

at 188. Dubinsky's testimony was similar to that offered in Brett, Dubinsky stated

that Schierman had no history of hurting people or acting violently, VRP (Apr. 20,

2010) at 104. Under Lord I, the State could rebut this testimony with specific

instances of Schierman's conduct, to the extent that the evidence was responsive to

the assertions about his nonviolent character and more probative than unfairly

prejudicial. 117 Wn.2d at 892; see generally State v. Kelly, 102 Wn.2d 188, 193-

94, 685 P.2d 564 (1984)(regarding admission of evidence of accused's character

under ER 404(a)(1) and cross-examination as to "specific instances of conduct" per

ER 405(a)). The State basically did this. Most of the specific instances of conduct

that it cited in Schierman's journal were instances of violent or abusive behavior.

Thus, the State's use of the journal fell within the boundaries of ER 404(a)(1) and

ER 403 and was not barred by Bartholomew II.



                                       157
State V. Schierman (Conner), No. 84614-6


      Finally, Schierman argues that Lord I and Brett are distinguishable because in

both ofthose cases,the specific instances ofthe defendant's prior conduct addressed

on cross-examination were "well known to the defense witness." Appellant's Reply

Br. at 62. (This alleged error is preserved.) This is incorrect. In Brett, 126 Wn.2d

at 187, the State was permitted to ask a mitigation witness about a prior uncharged

assault committed by the defendant, even though the witness did not learn of that

assault until he was subpoenaed. The events described in Schierman's treatment

journal were no less well known to Dubinsky, who first read excerpts from the

journal the night before giving his mitigation testimony.

      IV.    The Trial Court Did Not Violate Schierman's Right to Due Process or
             Protection against Cruel Punishment(under the Eighth and Fourteenth
             Amendments to the United States Constitution and Article I, Sections
             3 and 14 of the Washington State Constitution) When It Prohibited
             Defense Counsel from Using Other Specific Instances of Conduct
             Described in the Treatment Journal on Redirect Examination of
             Schierman's Stepfather
      After the State cross-examined Dubinsky about the specific instances of

violence contained in Schierman's treatment journal, defense counsel attempted to

rehabilitate Dubinsky by asking him about other portions of the journal containing

specific instances of lawful and prosocial conduct. The trial court sustained the

State's objection. It did so by ruling that the defense could not question Dubinsky

about any passage in the journal that Dubinsky had not previously read—^not by

ruling that the defense could not inquire into nonresponsive specific instances of
                                        158
State V. Schierman (Conner), No. 84614-6


prosocial conduct. Schierman contends that this ruling violated his state and federal

rights to due process and to present mitigating evidence.

             A. Facts


      On redirect, defense counsel called Dubinsky's attention to a portion of the

treatment journal labeled page 3379, which was included among the photocopied

pages marked as State's exhibit 2, and asked if it "look[ed] like addresses where

[Schierman was] maybe seeking jobs or doing something like that?" VRP(Apr. 20,

2010) at 128. The State objected on grounds of foundation, and the court sustained

the objection.

      Defense counsel stated that the State had already laid the foundation: "[The

prosecutor] has shown you what has been marked as... State's exhibit number two."

Id. at 129. Counsel then asked Dubinsky to read from page 3379. The State again

objected that it was hearsay without foundation.

      The court sustained the objection: "[Tjhere was no foundation. This witness

has not indicated he's ever seen that portion ofthe journal. The questions from [the

prosecutor] were about the excerpts ofthe journal which had been sent to this witness

by defense counsel yesterday, that he had reviewed." Id.

      Defense counsel then asked Dubinsky whether he'd seen three different pages

of the journal; Dubinsky answered that he had not seen any of the pages. Finally,

defense counsel asked whether "the select references that [the prosecutor] has

                                        159
State V. Schierman (Conner), No. 84614-6


chosen to excerpt from this journal ... change[d Dubinsky's] opinion ... about how

this tragedy has impacted your family and [Schierman]?" Id. at 131. The court

sustained the State's objection on grounds of relevance.

            B. Analysis

      Schierman argues that the defense "had a right" at trial "to introduce more

positive aspects of [the treatment journal]" after the State "cherry pick[ed] those

[passages] where Schierman described anger or violence." Appellant's Opening Br.

at 168. The State counters that Schierman could have introduced the treatment


journal through other witnesses, but could not simply have Dubinsky "read for the

jury portions of a document as to which he has no knowledge." Br. ofResp't at 226.

      The State is correct. Dubinsky's testimony on direct examination included

evidence of Schierman's (the "accused['s]," per BR 404(a)(1)) character,

specifically his character trait of nonviolence while drunk. It was admissible under

Bartholomew II (even if it had not been admissible under the Rules of Evidence).

The State's inquiry into specific instances of Schierman's violence on cross-

examination was permissible to impeach Dubinsky's testimony that Schierman was

not violent when drinking—it tended both to rebut this testimony and call into

question Dubinsky's credibility. Thus, it was admissible under BR 405(a) and not

barred by Bartholomew II. Lord I, 117 Wn.2d at 892-93.



                                        160
State V. Schierman (Conner), No. 84614-6


       By contrast, introducing various "positive aspects" ofthe treatmentjournal—

such as Schierman's apparent attempts to find employment—did not rebut or clarify

anything the State elicited on cross-examination. Thus, we cannot say that the trial

court abused its discretion in excluding redirect examination on these subjects.^^

State V. Hinkley, 52 Wn.2d 415,419, 325 P.2d 889(1958)(trial court has discretion

to admit or exclude testimony on redirect that "is not strictly rebuttal of testimony

elicited by cross-examination").

       V.     The Trial Court's Decision To Allow Broad and Irrelevant Cross-
              Examination of Christopher O'Brien Was Error, But the Error Was
              Harmless

       During the penalty phase, the defense called Schierman's friend Christopher

O'Brien. He testified that Schierman was friendly, well liked, and serious about his

addiction recovery. The court then permitted the State to cross examine O'Brien

about statements he made to detectives investigating the murders. The State asked

O'Brien whether he relayed incriminating statements that a third party, Mark Nanna,

made about Schierman. Schierman argues that this line of questioning violates the

constitutional rules adopted in Bartholomew I and II by introducing aggravating

evidence that was both irrelevant and hearsay.


          As the trial court suggested, the positive aspects of Schierman's life reflected in
the treatment journal might well have been admissible through other witnesses; they
constitute aspects of his character that might weigh in favor of a life sentence and might
even have been admissible under ER 106 to help complete the jury's understanding of the
joumal. But the defense did not pursue either ofthese routes in the trial court.
                                            161
State V. Schierman (Conner), No. 84614-6


             A. Facts

      Schierman called O'Brien as a mitigation witness. O'Brien testified that he

met Schierman in late 2000 and that the two became close friends. He testified that

their relationship became more distant when Schierman began using drugs, but

improved when Schierman completed treatment. He described Schierman as

friendly, well liked, and energetic, and stated that Schierman took his treatment and

recovery seriously and appeared to be doing well when O'Brien last saw him before

the murders. O'Brien also testified that he still tried to visit Schierman regularly and

that Schierman always appeared to be in good spirits and happy to see him.

      On cross-examination, the prosecutor asked O'Brien about the arguably

contradictory statements he had made to detectives following the murders. These

statements related to Schierman's drinking, the strain it had put on their friendship,

and Schierman's tendency to be friendly and flirtatious when he drank, but they did

not touch directly on Schierman's general friendliness, energy, or treatment

progress. The prosecutor then asked O'Brien whether he remembered calling a

detective at the Kirkland Police Station and "telling him that you needed to get

something off your chest?" VRP (Apr. 21, 2010) at 82. O'Brien responded that he

had told the detective he had "some information that he might be able to use." Id.

He said that he was not "trying to help either side, but if there was a possibility that



                                          162
State V. Schierman (Conner), No. 84614-6


it could help clear [Schierman's] name, if it would show that he was not in

possession of anything, that's where I was headed." Id. at 83.

      The prosecutor asked O'Brien whether he remembered telling the detective

"that there was somebody that we would want to talk [to] because the defendant had

a bucketful of knives?" Id. O'Brien answered that he did not remember "a bucketful

of knives," but had told the detective that a person named Mark Galante (then Mark

Nanna)had helped Schierman move and might be able to provide some information.

Id.


      The prosecutor asked O'Brien if he remembered telling the detectives about a

comment Schierman made "about the quote, hot chick across the street, washing her

car in a bikini?" Id. at 84. O'Brien answered that he had told the detectives that

"Mark had mentioned something along those lines." Id. The prosecutor repeated

the question two more times, and O'Brien stated that he could not remember his

exact statement to the detectives. The prosecutor then read the following from a

Kirkland Police Department detail marked as State's exhibit 4:

      Nanna told O'Brien that Schierman had a bucketful of knives and that
      he observed Schierman playing with a knife similar to the first knife
      found at the crime scene, and Nanna also said that Schierman made a
      comment about the quote, hot chick, unquote, across the street, washing
      her car in a bikini. O'Brien also provided me with contact numbers for
      each person on our list for the previous week, including Nanna.




                                        163
State V. Schierman (Conner), No. 84614-6


Id. at 85-86. O'Brien acknowledged that the notes refreshed his memory of the

statement he had given to the detectives. He said that they reflected "what[Nanna]

had told me." Id. at 86.


         After a briefredirect followed by a recess, the defense moved to strike the last

question and answer in O'Brien's cross-examination, arguing that Narma's

statements were hearsay.        The court denied the motion, concluding that the

statements were not offered for the truth of the matter asserted, but instead to

"indicate that Mr. O'Brien had heard them from Mr. Nanna, allegedly statements

made by the defendant, and that, in fact, those statements were then conveyed to the

police." Id. at 89-90. The court found that this was an appropriate subject for cross-

examination given that O'Brien was called as a character witness for the defense

who had contacted police with information about Schierman after the murders and

then "tr[ied] to be as vague as he could about his recall of [that contact]" on the

witness stand. Id. at 89.


         The defense then requested a limiting instruction telling the jury that the

statements were not offered as proof of the matter asserted. The court said that if it

gave such an instruction, it would also instruct the jury that the statements were

offered "to reflect the fact that this witness was testifying that these statements had

been made by the defendant to this other individual and then conveyed to him." Id.

at 90.

                                           164
State V. Schierman (Conner), No. 84614-6


      The defense objected to the last part of that proposed instruction. Id. at 91.

The court then stated that it would


      advise the jury that the . . . testimony Mr. O'Brien related to statements
      by Mr. Mark Nanna are not admitted for the truth ofthe matters asserted
      by Mr. Nanna to Mr. O'Brien, they are only admitted for the limited
      purpose of considering Chris O'Brien's testimony that [Nanna] had
      made these statements to him.


Id. at 92. The defense agreed to that instruction.

       On April 27, 2010,the defense filed a written motion to strike the portion of

O'Brien's testimony that addressed Nanna's alleged statements.           The motion

included a transcript of the defense interview of the detective who interviewed

Nanna about the statements. The transcript showed that Nanna had denied making

any statements about a bucket of knives or a hot chick. The defense argued that the

State lacked a good faith basis for asking about the statements, and that the

statements were therefore irrelevant and prejudicial.

      The court heard argument on the motion the following day. The State argued

that it had a good faith basis for asking O'Brien about Nanna's alleged statements,

because it had determined that Nanna was trying to protect Schierman (and that his

statements to detectives could therefore not be trusted). The defense argued that

Nanna's statements were irrelevant because O'Brien did not deny giving any

information to detectives.




                                         165
State V. Schierman (Conner), No. 84614-6


      The court found that the State had a good faith basis for asking about Nanna's

statements and denied the motion. It reasoned that the State's "extensive questioning

was required because clearly Mr. O'Brien was attempting to deny or minimize the

information he had earlier provided to detective[s] . . . and when finally confronted

with that follow-up report,... Mr. O'Brien was backpedaling as fast as he could, in

the Court's opinion." VRP (Apr. 28, 2010) at 22-23.

      The court also ruled that defense counsel could call the detective who


interviewed Nanna, for "purposes of examining him regarding his . . . attempt[s]. .

. to verify or refute or follow up on the statements that Mr. O'Brien told him were

made by Mr. Nanna." Id. at 24. The defense ultimately did not call that detective.

               B. Analysis

      Schierman argues that O'Brien's statements to the police "had no rebuttal

value" because they did not contradict anything O'Brien said on direct examination:

"the court suggested that the prosecutor's rebuttal was appropriate because O'Brien

was reluctant to acknowledge his role in the investigation. But that reasoning is

circular: it assumes that the prosecutor had a good reason in the first place for

questioning O'Brien about his dealings with the police." Appellant's Opening Br.

at 177, 180.

      This argument goes much farther than any made in the trial court. At trial,

defense counsel did not object that O'Brien's contacts with police were irrelevant.

                                        166
State V. Schierman (Conner), No. 84614-6


Instead, defense counsel objected only to the portion of that questioning in which

the prosecutor actually read from the investigating officers' notes—^the portion that

quoted the statements attributed to Narma—and did so only on the basis that these

statements were hearsay. For this reason, we must consider whether to review

Schierman's unpreserved claim that O'Brien's contacts with police were irrelevant.

      Schierman also argues, as did defense counsel in the trial court, that the

statements attributed to Nanna were inadmissible hearsay.

      Because we reach the merits of Schierman's first argument—^that O'Brien's

decision to contact police was not relevant to rebut O'Brien's mitigation

testimony—and because we agree with Schierman on this issue, we do not decide

whether Nanna's statements were inadmissible hearsay.

                1. Relevance ofO'Brien 's decision to contactpolice

                   a. Preservation of error

      The prosecutor began his cross-examination by asking O'Brien whether he

remembered calling a detective at the Kirkland Police Station and "telling him that

you needed to get something off your chest?" VRP(Apr. 21, 2010)at 82. This line

of questioning implies the following evidentiary rule: when a witness offers

mitigating character testimony in a capital sentencing proceeding, that witness's

decision to furnish the police with information tending to show the defendant's guilt

is inherently relevant in rebuttal. Defense counsel did not challenge that assumption

                                        167
State V. Schierman (Conner), No, 84614-6


in the trial court, but Schierman does now.         He argues that it violates the

constitutional rules adopted in Bartholomew I and II and Lord 1.

      An appellate court may decline to review an unpreserved error unless the error

is both "manifest" and "truly of constitutional dimension." O'Hara, 167 Wn.2d at

98. But the erroneous admission of aggravating penalty phase evidence is always of

"constitutional dimension" if the claim is that it violates Bartholomew I and II. Id.

We also conclude that relevance of O'Brien's decision to contact police is a question

of law that the trial court could have addressed on the record before it at the time of

trial without need for any other evidence, testimony, or other information. We

therefore reach the merits of Schierman's claim that O'Brien's decision to contact

police was not relevant rebuttal evidence.

                    b. Merits

      The question presented is whether a capital penalty phase mitigation witness'

decision to provide the police with incriminating information about the defendant

rebuts that witness' testimony on the topic of the defendant's friendliness, energy,

and treatment progress. Our only cases on the scope of mitigation witness cross-

examination are Lord I and Brett. In those cases, the State was permitted to cross-

examine mitigation witnesses about the defendant's prior uncharged or juvenile

offenses. Lord I, 117 Wn.2d at 889; Brett, 126 Wn.2d at 185.




                                         168
State V. Schierman (Conner), No. 84|514-6


      In Lord I, this court analogized Bartholomew I and IPs limits on mitigation-

rebuttal to "the rules ofevidence concerning testimony about defendant's character."

117 Wn.2d at 891-92 (quoting ER 405(a)). Ultimately, Lord I held that testimony

that the defendant"fled from police and violated his probation" was relevant to rebut

his father's testimony that he was "a 'good boy'." Id. at 893-94. In Brett, the

prosecution cross-examined mitigation witnesses about the defendant's juvenile

crimes,including first degree kidnapping and assault. 126 Wn.2d at 187. This court

approved the cross-examination as "relevant to rebut . . . mitigation witness[]

testimony that [the defendant] was not a threatening person and/or that it was

surprising that he took a person's life." Id. at 188. It also held that evidence of prior

uncharged crimes was relevant to rebut another mitigation witness's testimony that

the defendant "'respected people'" and was "'a real gentleman'." Id.

      This case is distinguishable from Lord I and Brett in that O'Brien did not claim

that Schierman was a good or trustworthy person. Instead, he claimed only that

Schierman was well liked, took his addiction treatment seriously, and maintained a

friendship with O'Brien even after his incarceration. For this reason, questioning

O'Brien about his decision to contact the police was outside the scope ofpermissible

cross-examination under Lord I and Brett (applying BR 404 and 405). O'Brien's

decision to contact police—arguably showing his suspicions about Schierman's

guilt—does not rebut his testimony that Schierman was well liked, took treatment
                                          169
State V. Schierman (Conner), No. 84614-6

                       f

seriously, or maintained a friendship with O'Brien after being incarcerated, all of

which is relevant to the penalty phase determination as opposed to the question of

guilt. We therefore hold that the trial court erred by permitting the State to cross-

examine O'Brien about his decision to contact detectives. We agree with the State,

however, that this error alone would not warrant reversal because the jury already

knew that Schierman owned knives and was attracted to women.

      VI.    Even Implicitly Comparing a Jury That Would Let Schierman Live to
             Those VHio Stood Silent during the Holocaust Would Constitute
             Improper Prosecutorial Argument

      Schierman argues that the prosecutor committed misconduct warranting

reversal when he(1)compared the crime to the Holocaust and(2)impugned defense

counsel's integrity.

             A. Comparing crime to the Holocaust and referencing 9/11

                1. Facts

      In his penalty phase opening statement, the prosecutor told the jury that it, "in

this case more than any other,[was] truly the conscience of the community." VRP

(Apr. 19, 2010) at 58. He repeated certain questions he asked the jury in his guilt

phase opening statement: "Was this a mass killing? Was this mass murder?" And

he told the jury, "That question, in large measure, has been answered with your

verdict." Id. at 65.




                                         170
State V. Schierman (Conner), No. 84614-6


      In his penalty phase closing argument, the prosecutor repeated to the jury that

it was the conscience ofthe community; defense counsel objected and the objection

was overruled.


      Near the end of the argument, the prosecutor brought up the DNA evidence

collected from the Milkin home:


             . . . It identified the genetic profiles of Olga, [Lyuba], Justin,
      Andrew, and ... Conner Schierman, based upon their inherited genetic
      identity, based upon their genetic history, what they had received from
      their parents . . . and so on.

             The genetic history of all that came before[] is the genetic
      profiles of all of the DNA profiles that we have in this case. But the
      DNA,if you think about it, also tells you something else. It gives you
      a measure of what has been lost forever. It tells you of the future that
      is obliterated.


VRP(May 3, 2010) at 63-64. The prosecutor then summarized a Ray Bradbury

short story titled "A Sound of Thunder." Id. at 64. When he finished, he asked:

             What is the point ofthat story?

             Let me tell you. The idea that even small events can change
      history . .. the butterfly effect. .. . The point is that what this man has
      done, what this defendant has done, doesn't affect just those four lives.
      It doesn't affectjust those four families. It doesn't affectjust those who
      loved the victims in this case.


            This man, in killing those four people, literally changed and
      destroyed history. Destroyed the future of a family. Not only [what]
      Olga and [Lyuba] would have become, but what Justin and Andrew
      could have become. The defendant changed the history of those who
      would have come from Olga and [Lyuba] and Justin and Andrew.


                                         171
State V. Schierman (Conner), No. 84614-6


             Remember that quote, "destroy this one life and you destroy a
      race, a people, an entire history of life."

            We will never know what might have become or what might
      have come from Olga, [Lyuba], Justin and Andrew. We will never
      know what the future might have been, but we do know this, that the
      defendant removed for all time an entire history of life by what he had
      done on July 16, 2006.

             The second point that I want to make before I sit down,I will talk
      to you about this idea, the second reason why I would suggest to you
      that the appropriate punishment is death.

             I talked to you about the impact of what the defendant did on the
      future. It is also appropriate for how he committed the murders. I
      would suggest to you that it is not too much of an exaggeration to say
      that the many ways, if you are living in [the] age ofterror, this is an age
      of post September 11th, 2001. We now have a Department of
      Homeland Security. We now have terror alerts. We now have terror
      alert levels and terror alert colors. I would suggest to you that terror is
      a word that is used.

               [Defense counsel objected; the court overruled the objection.]

                . . . Terror is a word, ladies and gentleman, almost too casual in
         its use to describe the things that we use [it] to describe. But what is
         real terror?


               Well, there is the simple dictionary definition, "terror is a state
         of intense over-powering fear, a nightmare, and fear is dread, terror,
         horror and panic."

VRP(May 3, 2010) at 67-69.

         The prosecutor then described, in vivid detail, the terror that the four victims

must have felt. Afterward, the following exchange regarding the Holocaust took

place:

                                           172
State V. Schierman (Conner), No. 84614-6


          [PROSECUTOR]: There is a plaque outside of the holocaust
      museum in Washington, D.C.,[which] says the following, "thou shalt
      not be a victim" ~


            [DEFENSE COUNSEL]: Objection, your Honor.

            [DEFENSE COCOUNSEL]: Objection.

                THE COURT: Overrule the objection. This is argument.

            [DEFENSE COUNSEL]: Reference to the holocaust.

             THE COURT: Overrule the objection. This is argument. The
      jury has been instructed.

            [PROSECUTOR]: That plaque says that "thou shall not be a
      victim, thou shall not be a perpetrator, above all that thou shall not be
      a bystander."

                You are not bystanders, for that, I thank you.

Id. at 73-74.


      The court then excused the jury. Defense counsel again objected to "analogies

to the Holocaust and the 9-11 ... terror attacks," and moved for a mistrial. Id. at 75.

The court again overruled the objection:

                THE COURT: Counsel, the comments, while arguably
      inappropriate, relating to the quote from the Holocaust museum plaque
      did not liken this case to the Holocaust. The quote was given in that
      context to give it, obviously, some sort of foundation.

                The comment earlier about terror to which [counsel] objected . .
      . was not, again, in the context of terrorism and likening this. It was
      simply a relationship explained of what terror was, what terror is and
      how it was experienced in this case.


                                           173
State V. Schierman (Conner), No. 84614-6




            I will cautio[n] the counsel for the state, however, to be
      circumspect in any [of] the arguments along these very same lines.

Id. at 75-76.


      Just before the jury returned, the court asked defense counsel whether it was

"requesting or making a motion to strike that portion of [the prosecutor's] final

closing arguments?" Mat 78. Defense counsel answered affirmatively. When the

jury returned, the court gave the following instruction:

            I want to advise the jury that the court has ordered to be stricken
      from the record the last comments in closing arguments made by [the
      prosecutor], relating to the Holocaust museum and a plaque apparently
      outside of the museum.


                That, and all references to that are stricken from the record. You
      are instructed to disregard all ofthe related comments made at that part
      ofthe closing arguments.

Id. at 78. Defense counsel then began closing argument.

                   2. Analysis
      Schierman argues that the prosecutor appealed to the jury to be the

"conscience of the community" in his case, and that this appeal was designed to

inflame the jury because it was coupled with references to the Holocaust and

September 11. Appellant's Opening Br. at 189.




                                           174
State V. Schierman (Conner), No. 84614-6


       In a capital sentencing proceeding in Washington, the State may argue the

virtues of the death penalty.^^ In State v. Davis, this court found no misconduct

where the prosecutor argued that '"if our courts of law ... are unwilling to impose

the ultimate penalty where appropriate, it sows the seeds of anarchy [and] it invites

the lynch law,'" and exhorted the jury not to '"violate the social contract between

us.'" 141 Wn.2d 798, 870-73 & n,396, 10 P.3d 977 (2000) {Davis I)(emphasis

omitted), aff'd, 175 Wn.2d 287,290 P.3d 43(2012){Davis 11).^^ It also approved of

the prosecutor's argument that

       "when a society is unwilling to overlook the abhorrent acts ofsomeone
       like the defendant, and recognize that the death penalty is the only
       appropriate response, that represents civilized society and we put the
       focus where it belongs, afailure to impose a death penalty in a case
       like this, in other words, it cheapens all ofour lives."



        See Finch, 137 Wn.2d at 841 (citing State v. Bautista-Caldera, 56 Wn. App. 186,
783 P.2d 116(1989); State v. Coleman,74 Wn. App. 835, 876 P.2d 458 (1994)).

          Because the defense did not object to the allegedly improper statements in Davis
1, on appeal the defendant bore the burden ofshowing that the prosecutor's statements were
"'so flagrant and ill intentioned that [they] evince[d] an enduring and resulting prejudice
that could not have been neutralized by an admonition to the jury.'" 141 Wn.2d at 872
(quoting Gentry, 125 Wn.2d at 640). That heightened standard does not apply in this case
because (1) Schierman objected and (2) we have tempered that standard somewhat since
Davis I was decided. See Emery, 174 Wn.2d at 762 (where defense failed to object to
alleged prosecutorial misconduct, "[r]eviewing courts should focus less on whether the
prosecutor's misconduct was flagrant or ill intentioned and more on whether the resulting
prejudice could have been cured")). But the analysis in Davis I is nevertheless relevant
because this court found the statements at issue were not improper and thus did not reach
the question of prejudice. 141 Wn.2d at 871-74.



                                           175
State V. Schierman (Conner), No. 84614-6


Id. at 873 n.398. Davis I held that these arguments, even in combination, did not

"inflame the jury." Id. at 873 & n.402.

       But there are certain arguments that a prosecutor may not make in a capital

sentencing proceeding. These include religious appeals,^^ arguments that diminish

the jury's sense of responsibility for its verdict,^^ and arguments that emphasize the

prosecutor's exercise of discretion in seeking the death penalty.^® The prosecution

is also prohibited, in a death penalty sentencing phase argument, from seeking a

verdict based on "emotion,"^' or on "passion or prejudice," RCW 10.95.130(2)(c).


          See, e.g., Sandoval v. Calderon, 241 F.3d 765, 778-79 (9th Cir. 2000)(finding
reversible error where the prosecutor paraphrased the New Testament in his penalty phase
argument, telling the jury,'"Let every person be in subjection to the goveming authorities
for there is no authority except from God and those which are established by God,"' and
arguing that execution might save the defendant's soul). Sandoval condemned the State's
invocation of religious authority in a capital sentencing phase proceeding because (1) it
tainted the jury's deliberations with "concepts of vengeance" incompatible with the
"refined approach" our constitution requires and (2) it tended to diminish the jury's sense
of responsibility for its verdict. Id. at 116-11\ see also Bennett v. Angelone, 92 F.3d 1336,
1346 (4th Cir. 1996) (prosecutor's penalty phase religious argumentation "confusing,
unnecessary, and inflammatory," but not reversible error).

         Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985),
vacated on other grounds, 479 U.S. 1075 (1987).

         See, e.g., Shurn v. Delo, 111 F.3d 662, 667 (8th Cir. 1999) (disapproving
prosecutor's capital sentencing phase argument that "emphasized his position of authority
and expressed his personal opinion on the propriety ofthe death sentence").

         E.g., State V. Taylor, 944 S.W.2d 925, 937 (Mo. 1997)(prosecutor committed
misconduct when he urged the jury to '"put your emotion into'" the penalty phase
deliberations and "'get mad'" at the defendant (emphasis omitted) (citing Gardner v.
Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977)); King v. State, 623

                                            176
State V. Schierman (Conner), No. 84614-6


       Given the nature of the jury's decision in a capital sentencing proceeding,

courts have struggled to draw the line between impermissible "emotional" appeals

and permissible arguments with emotional overtones. See, e.g.. State v. Kleypas,

212 Kan. 894, 1110, 40 P.3d 139(2001)(collecting cases illustrating division over

the propriety of prosecutor's argument that jury "should show a defendant the same

mercy that the defendant gave to the victim"), overruled on other grounds by State

V. Marsh, 278 Kan. 520, 102 P.3d 445 (2004). Courts faced with this task have

reached widely divergent decisions.^^ Some have even rejected the idea that emotion

can or should be excluded from a capital sentencing jury's deliberations.^^



So. 2d 486, 488 (Fla. 1993)(prosecutor committed misconduct in capital penalty phase
argument when he "admonish[ed] the jurors that 'they would be cooperating with evil and
would themselves be involved in evil just like' [the defendant] if they recommended life
imprisonment").

         Compare State v. Artis, 325 N.C. 278, 323-25, 384 S.E.2d 470(1989)(in penalty
phase, prosecutor did not commit misconduct when he asked the jurors to hold their breath
for four minutes so they could appreciate the victim's suffering as she was strangled to
death), vacated on other grounds, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604
(1990), with Collier v. State, 101 Nev. 473, 480-81, 705 P.2d 1126 (1985)(prosecutor's
statement that "the coroner 'had to carry [the victim] out of that store in a body bag and
bury him someplace because [the defendant] decided that his son wouldn't have a father'
was "manifestly improper").

      "E.g., People V. Smith, 30 Cal. 4th 581, 634, 68 P.3d 302, 134 Cal. Rptr. 2d 1
(2003)(explaining that "emotion need not, indeed, carmot, be entirely excluded from the
jury's moral assessment"); Tucker v. Zant, 724 F.2d 882, 888-89 & n.7 (11th Cir. 1984)
(stating that the prosecutor may "arous[e] the emotions ofthe jury with statements that are
supported by the evidence and relate to issues of an inherently emotional nature that are
crucial to the jury's sentencing decision," but noting that "[e]ven an emotional appeal that

                                            177
State V. Schierman (Conner), No. 84614-6


      Under our mandatory statutory review, however, this court must '"vacate

sentences that were the product of appeals to the passion or prejudice of the jury.'"

Davis II, 175 Wn.2d at 373 (quoting Cross, 156 Wn.2d at 634). Thus, in this case,

we must evaluate the prosecutor's reference to the Holocaust and September 11 in

light of the prosecutor's "total argument, the issues in the case, the evidence

addressed in the argument,and the instructions given to the jury," Brown,132 Wn.2d

at 561, paying special attention to whether that argument appealed to the "passion

or prejudice ofthe jury," Id. at 564.

       We hold that, in the context of the prosecutor's total argument, the reference

to September 11 is not an attempt to analogize Schierman to a political terrorist or

the murders of the Milkin family to the civilian deaths on September 11, 2001.

Rather, it seems that the prosecutor invoked September 11 as part of a meditation on

the meaning ofthe word "terror." VRP(May 3, 2010)at 67-69. He argued that that

word is used "almost too casual[ly]" today, and invited the jury to imagine the "real

terror" that the Milkin family must have felt when they were attacked. Id. at 69. The

circumstances of the defendant's crime are relevant to the jury's decision at the

penalty phase in a capital case—indeed, the jury is required to consider them. Rice,



falls within this standard may be impermissible if it is unreasonably inflammatory"); Rice,
110 Wn.2d at 606-07 (in special sentencing proceeding, prosecutor may narrate the crime
and ask the jurors to imagine the victims' experience, even though such an argument is "an
emotional event").
                                           178
State V. Schierman (Conner), No. 84614-6


110 Wn.2d at 606-08. The prosecutor's reference to September 11 was a segue into

his description of the victims' suffering. It was not misconduct.

      The Holocaust reference is different. The prosecutor did not just analogize

the murders ofthe Milkin family to the Nazi murders ofthe victims ofthe Holocaust.

Instead, the prosecutor quoted from a Holocaust museum plaque about the

immorality of remaining a "bystander." VRP(May 3, 2010) at 74. The message to

the jurors was that they had a moral duty to take meaningful affirmative action in

response to Schierman's holocaust, or else they would suffer the same moral guilt

as those who stood silent and thereby effectively collaborated during the Nazi

Holocaust. The prosecutor's implicit message was thus, essentially, that only a

bystander such as a Nazi sympathizer would vote for life without parole instead of

the death penalty.

      That was,to say the least, an argument that appealed to passion and prejudice.

Other courts overwhelmingly disapprove of a prosecutor's Holocaust analogy in

closing argument—although we find no case in which a court has reversed a

conviction or death sentence because a prosecutor employed that tactic. See, e.g..

People V. Tiller, 94 111. 2d 303, 320, 447 N.E.2d 174, 68 111. Dec. 916 (1982)

(prosecutor's analogy of defendant's crimes to "the Nazi holocaust" was error, but

not reversible in light of overwhelming evidence of guilt); Wiggins v. State, 193 So.

3d 765, 806(Ala. Crim. App. 2014)(in capital sentencing proceeding, prosecutor's
                                        179
State V. Schierman (Conner), No. 84614-6


argument that Albert Einstein stated, after escaping the Holocaust, that "'[i]t's not

the evil people we have to fear,[but] the good people who see evil and do nothing,'"

did not render proceedings fundamentally unfair); Commonwealth v. Henry,524 Pa.

135, 157-58,569 A.2d 929(1990)("strongly discourag[ing]" counsel's comparison,

in capital sentencing phase argument, of defendant to "'[t]he people responsible for

the Holocaust, Charles Manson, and many, many others,"' but finding comment

"within the bounds of 'oratorical flair'" permitted in arguments at the sentencing

stage).

      But although the prosecutor's Holocaust reference was improper, it does not

require reversal. As noted above, there is no case in which a court has reversed a

conviction or death sentence because a prosecutor employed that tactic. Consistent

with these other jurisdictions, we hold that the prosecutor's Holocaust analogy was

misconduct but insufficiently prejudicial, standing alone, to warrant reversal.

             B. Impugning defense counsel's integrity

                1. Facts

      In his closing argument, defense counsel told the jury that "there is a death

penalty sentencing proceeding in the Bible." VRP(May 3, 2010) at 133. He then

recounted the parable in which Jesus tells a crowd of people preparing to execute an

accused adulterer, "'[H]e who is without sin among you, let him first cast the stone

on her.'" Id. at 135.


                                        180
State V. Schierman (Conner), No. 84614-6


       After discussing the parable for a few pages, defense counsel pointed out for

the jury "some differences between the procedure that was followed and the law that

had to be applied to the sentencing in the City of Jerusalem nearly 2000 years ago

and the law that Judge Canova has mentioned to you." Id. at 138-39. He asked the

jury to consider the absence of a prosecutor in the biblical text:

             One thing that is not present with the transcript according to [the
      gospel of] John ofthat trial is any indication that there was a prosecutor
      there, much like the prosecutor . . . that you have just heard.

                Who knows had there been a prosecutor like [this prosecutor]
      reminding everybody of the harm or horror that had been done, who
      knows what the outcome may have been, who knows that the result may
      have been different, that woman would have died under the pile of
       rocks.


            The episode would be one more [of a] million . . . episodes of
       man's inhumanity to man that would never have made it into the Bible
       and none of us would have heard from it.

Id at 141.


       In rebuttal, the prosecutor responded to defense counsel's biblical reference

as follows:


             I heard with interest the biblical story given by [defense counsel]
       towards the end of his comments, in which he said that he expressed
       some surprise, did you know that there was a trial in the [N]ew
      [T]estament. It is the trial that is described by, I guess in the [Gjospel
      of John, regarding Mary Magdalen.

             There is another trial, which is the trial of the crucifixion of
       Christ, which is the whole focus of the New Testament. That


                                          181
State V. Schierman (Conner), No. 84614-6


         notwithstanding, I found it very interesting [but] I could have objected
         at any point to that.

               Having the prosecutor being compared to the person, [w/zo] I
         guess is Satan [because he] would oppose Christ in that little parable
         may be offensive or not, but I didn't object, because I wanted to see
         how far that [defense counsel] had to go to convince you to pause or
         question.

               I don't think that he has convinced himself. To compare me, as
         the person, who deposed [sic] a biblical story like that, I think that is all
         I need to say about the credibility or the weight that you should give it.

Id. at 149-50(emphasis added).

                     2. Analysis
         A prosecuting attorney's remarks, even if improper, are not grounds for

reversal if they were invited by defense counsel. Gentry, 125 Wn.2d at 643-44.

Remarks are invited if they are "a pertinent reply" and are not "so prejudicial that a

curative instruction would be ineffective." Id.

         In Gentry, this court held that a prosecutor's penalty phase reference to the

biblical story of David and Goliath was "invited ... by defense counsel's extensive

use of Biblical stories during his own closing argument." Id. at 644.

         Whether defense counsel in this case actually compared the prosecutor to

Satan—a determination this court cannot make without venturing into scriptural

interpretation—defense counsel certainly invited the responsive remarks now at

issue.



                                             182
State V. Schierman (Conner), No. 84614-6


       VII. Statutory Review

       Washington's death penalty statute requires this court to consider four

questions when reviewing a sentence of death:

          (a)Whether there was sufficient evidence to justify the affirmative
       finding to the question posted by RCW 10.95.060(4);'^^'^^ and
          (b)Whether the sentence of death is excessive or disproportionate to
       the penalty imposed in similar cases, considering both the crime and
       the defendant...;[and]
          (c)Whether the sentence of death was brought about through
       passion or prejudice; and
          (d)Whether the defendant had an intellectual disability within the
       meaning of RCW 10.95.030(2).

RCW 10.95.130(2).

       Schierman does not argue that the evidence was insufficient to support the

jury's finding under RCW 10.95.060(4) or that he has an "intellectual disability"

within the meaning of RCW 10.95.030(2)(d). He does argue that his sentence was

disproportionate and that it resulted from passion or prejudice.

       Schierman contends that his death sentence is disproportionate because the

death penalty is meted out randomly in Washington, where, for example, Gary

Ridgway was convicted of killing 48 people but received only a life sentence while

Schierman, who killed far fewer people, was sentenced to death. He acknowledges



          Under RCW 10.95.060(4), the jury must "retire to deliberate upon the following
question:'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?'"
                                           183
State V. Schierman (Conner), No. 84614-6


that this court rejected that argument in Davis II, 175 Wn.2d 287, and Cross, 156

Wn.2d at 630, but he argues that those cases were wrongly decided. For the reasons

given below, I agree.

             A. Washington's      proportionality     review    statute    (RCW
                10.95.130(2)(b)) is a prophylactic measure designed to prevent the
                constitutional violations recognized in Furman v. Georgia^^

      Washington's death penalty statute requires this court to determine "[wjhether

the sentence of death is excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the defendant."                    RCW

10.95.130(2)(b).'''' If the court answers yes to that question, the sentence must be

invalidated. RCW 10.95.140(l)(b). When this court conducts a proportionality

review, it considers the penalties imposed in all cases of aggravated first degree

murder, regardless of whether the prosecutor pursued the death penalty or whether

the fact-finder ultimately imposed it. This court has described this review as

comparing the case at bar to all "death eligible cases." Cross, 156 Wn.2d at 630.




     "408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

        The statute defines "similar cases" as "cases reported in the Washington Reports
or Washington Appellate Reports since January 1, 1965, in which the judge or jury
considered the imposition of capital punishment regardless of whether it was imposed or
executed, and cases in which reports have been filed with the supreme court under RCW
10.95.120." RCW 10.95.130(2)(b). In turn, RCW 10.95.120 requires trial judges to
submit reports with information on the defendant, the victim, and the crime in all cases
where the defendant is convicted of aggravated first degree murder.
                                          184
State V. Schierman (Conner), No. 84614-6


      Our legislature enacted ROW 10.95.130(2)(b)in response to the United States

Supreme Court's decision in Furman, 408 U.S. 238, which prohibited sentencing

procedures that create a substantial risk that death will be imposed in an arbitrary

and capricious manner. State v. Harris, 106 Wn.2d 784,798, 725 P.2d 975 (1986).

Furman and its progeny do not require a proportionality review in death penalty

cases,Lewis v. Jeffers, 497 U.S.764,779,110 S. Ct. 3092,111 L. Ed. 2d 606(1990),

but they do require proportionality in sentencing.             Thus, Washington's

proportionality review statute serves a prophylactic purpose: to prevent the death

penalty from being imposed "'wantonly and freakishly,"'Harris, 106 Wn.2d at 798

(internal quotation marks omitted)(quoting Moore v. State, 233 Ga. 861, 864, 213

S.E. 2d 829 (1975)), in violation of the constitutional principles announced in

Furman. The statute is intended to carry out the Furman Court's directive, see id.,

but it also goes farther than Furman.

             B. In four decades, this court has never applied a consistent standard
                for proportionality under RCW 10.95.130(2)(b)

      In Harris, one ofthe earliest cases applying RCW 10.95.130(2)(b), this court

acknowledged that the statute's plain language "provides little guidance to determine

at what point a death sentence becomes proportionate or disproportionate." Id. But

the Harris court noted that in Georgia, a state with an identical proportionality

review statute, "the test for proportionality is whether death sentences have been


                                        185
State V. Schierman (Conner), No. 84614-6


imposed 'generally in similar cases." Id. at 798 (emphasis added)(quoting Moore,

233 Ga. at 864). The Georgia Supreme Court case on which Morrw relied contrasted

a sentence imposed "'generally'" with a sentence imposed '"wantonly and

freakishly'":

       "This court is not required to determine that less than a death sentence
       was never imposed in a case with some similar characteristics. On the
       contrary, we view it to be our duty under the similarity standard to
       assure that no death sentence is affirmed unless in similar cases
       throughout the state the death penalty has been imposed generally and
       not 'wantonly and freakishly imposed.'"

Id.(quoting Moore,233 Ga. at 864(quoting Fiirman, 408 U.S. at 310(Stewart, J.,

concurring))).

       This court reiterated iMrrw'"generally" standard in State v. Rupe, 108 Wn.2d

734, 767, 743 P.2d 210(1987)("a death sentence must not be affirmed where death

sentences have not generally been imposed in similar cases"), and Rice, 110 Wn.2d

at 625 ("[ojccasional aberrational outcomes do not require a reversal... so long as


          After approving of the Georgia standard, the Harris court employed a very brief
proportionality analysis. It first noted the difficulty ofdetermining what subset of all death-
eligible murders are comparable to a given defendant's, for purposes of proportionality
review. 106 Wn.2d at 798 (citing Jeffries, 105 Wn.2d at 431 (Utter, J., dissenting)). It
then compared the murder at bar—a contract killing—to other contract killings prosecuted
in Washington since 1981. Id. at 798-99. Of these, there were three where in each case
the prosecutor declined to pursue the death penalty. Id. Nevertheless, the Harris court
found that the death penalty had not been imposed on Harris "wantonly and freakishly" for
three reasons:(1) because in one of the other contract killing cases, the trial judge "said if
the State had requested the death penalty it would have gotten it,"(2) because Harris had
participated in the killing he solicited, and(3) because Harris had received a fair trial, had
a prior conviction for manslaughter, and had intended to kill multiple victims. Id. at 799.
                                             186
State V. Schierman (Conner), No. 84614-6


the death sentence has been imposed generally in similar cases"). But it did not

clearly articulate any standard for determining when a death sentence had been

"generally" imposed in similar cases.

      In Rupe, this court began by noting that there had been eight death eligible

cases in Washington, including Rupe's, in which the jury found "two of the [three]

aggravating factors found in [Rupe's] case." 108 Wn.2d at 768. Because death

sentences were imposed in four of these cases, this court concluded that Rupe's

sentence was not disproportionate in light ofhis offense. Id. at 769-70. This analysis

suggests a statistical approach in which this court asks whether a death sentence has

been imposed in some critical mass of cases possessing a certain characteristic (in

Rupe,the same set of aggravating circumstances).

      But the rest of the Rupe analysis rejects a statistical approach. After

evaluating Rupe's crime in tenns ofaggravating circumstances,the court considered

Rupe's personal characteristics. It acknowledged that his respect in the community

and lack of a criminal record made him unusual among death eligible defendants,

most of whom had extensive criminal histories. Id. at 770. But it did not then

undertake the kind of statistical analysis it had applied with respect to the

aggravating factors. Instead, it held that "[sjimply because the majority of those

eligible for the death sentence under our statutes have criminal backgrounds, or

backgrounds marred by other conditions, does not mean that one who has a
                                         187
State V. Schierman (Conner), No. 84614-6


background like Rupe's is thereby ineligible for the death sentence." Id. After

observing that Rupe had committed "exceedingly cold-blooded, calculated

murders," that "nothing about Rupe or his background ... excuse[s] him from facing

the consequences of his actions," and that Rupe had received a fair trial, the court

affirmed the death sentence. Id.


      A year later, in Rice, this court began its proportionality review by noting that

"[o]f all the comparison cases, only [Rupe's] case involved the same three

aggravating factors" as Rice's. 110 Wn.2d at 625-26. This weighed heavily in the

court's analysis since the court had upheld Rupe's death sentence largely on the basis

of aggravating factors. Id. at 626. The court also observed that "Rice's crime is ...

similar in nature to those committed in two other cases recently before this court in

which we affirmed death sentences." Id. By "similar in nature," the court appeared

to refer to the fact that, like Rice, the defendants in these cases killed at least one

victim in order to cover up other murders. Id. As in Rupe,the court noted that Rice's

personal characteristics were primarily mitigating: Rice had mental illness and no

criminal history. Id. at 626-27. Nevertheless, this court held that under Rupe,"[a]

lack of prior criminal history does not by itself render a death sentence

disproportionate." Id. at 627. And it held that Rice's mental illness did not render

his death sentence disproportionate because even though the death penalty was not

imposed in any of the four other death eligible cases in which "there [was] credible
                                         188
State V. Schierman (Conner), No. 84614-6


evidence of mental disorder or diminished capacity," other factors in those cases,

such as the defendant's youth or a single juror's opposition to the death penalty,

"likely caused the jury to grant leniency." Id. at 627-28.

      Shortly after the Rice decision. Justice Utter wrote a dissent championing the

kind of statistical analysis exemplified by the Rupe court's treatment of aggravating

circumstances. Lord I, 117 Wn.2d at 939-45. Justice Utter argued that a death

"sentence is excessive and disproportionate if it has not 'generally been imposed in

similar cases,"' and maintained that "[a] sentence is not 'generally' imposed unless

it is imposed in at least 50 percent ofthe similar cases." Id.

      The Lord I majority rejected that analysis, reasoning that disproportionality

review is not concerned "with . . . [tjechnical inconsistencies in a line-by-line

comparison :


      Indeed, the jury is directed to tailor its decision to the individual
      circumstances of the crime. A jury could decline to impose the death
      penalty because a particular defendant deserves mercy. However, the
       decision to afford one defendant mercy, and yet not another, does not
       violate the constitution.


117 Wn.2dat910.


      Because one can never predict when a jury will show mercy, the Lord I

majority concluded that "[rjequiring precise unifonnity [of punishment] . . . would

effectively eliminate the death penalty." Id. The majority then went on to apply a

proportionality analysis that can best be summarized as follows: a death sentence is
                                         189
State V. Schierman (Conner), No. 84614-6


not disproportionate if, considering the defendant's crime and personal

characteristics, any other similar or less aggravated offense has ever resulted in a

death sentence. M at 911-14.


       After Lord I, this court sometimes reiterated Harris'^ "generally" standard in

its proportionality review.^^ More often and more recently, however, it has omitted

any reference to that standard, stating instead that the purpose of proportionality

review is to prevent only the "wanton and freakish" imposition ofa death sentence.^^

             C. Since Lord I, our proportionality review has always considered the
                same four factors, but we have analyzed those factors in widely
                varying ways

      In addition to rejecting the dissent's "at least 50 percent"^° standard for

proportionality review, the Lord I court rejected the notion that any two death-

eligible crimes can ever be truly comparable;

             Lord would have us review his case as a forensic scientist
      analyzes fingerprints, looking for a specified number ofidentity points.

        Davis 1,141 Wn.2d at 880;Brown, 132 Wn.2d at 555;State v. Elmore, 139 Wn.2d
250, 308, 985 P.2d 289 (1999); State v. Elledge, 144 Wn.2d 62, 80, 26 P.3d 271 (2001);
Benn I, 120 Wn.2d at 679; State v. Dodd, 120 Wn.2d 1, 26, 838 P.2d 86(1992).

      69 Davis II, 175 Wn.2d at 348; State v. Yates, 161 Wn.2d 714, 788, 168 P.3d 359
(2007); Cross, 156 Wn.2d at 630; In re Pers. Restraint ofStenson, 153 Wn.2d 137, 148,
102 P.3d 151 (2004); State v. Woods, 143 Wn.2d 561, 615-16, 23 P.3d 1046 (2001),
overruled in part by Carey, 549 U.S. 70; State v. Sagastegui, 135 Wn.2d 67, 92-94, 954
P.2d 1311 (1998);State v. Stenson, 132 Wn.2d 668,759,940 P.2d 1239(1997);Firtle, 127
Wn.2d at 684-88; Gentry, 125 Wn.2d at 654-58.

      '"^Lordl, 117 Wn.2dat939.

                                         190
State V. Schierman (Conner), No. 84614-6


      Only ifone can conclusively determine that each swirl,ridge, and whorl
      is present in both samples is a match declared. We decline to do this.
      Crimes, particularly the brutal and extreme ones with which we deal in
      death penalty cases, are unique and cannot be matched up like so many
      points on a graph.

Id. at 910. Nevertheless, the court held that it could assemble pools of comparable

cases, for purposes of proportionality review, by searching for '"family

resemblances'." Id. at 911 (quoting LuDWiG Wittgenstein, Philosophical

Investigations §§ 65-67(2 ed. 1958)).

      The Lord I court identified four points of comparison in its search for family

resemblances: "the nature of [the defendant's] crime, the number of aggravating

factors, his prior convictions[,] and [his] personal history." Id. at 914. It upheld

Lord's death sentence after identifying(1)two death sentences imposed on offenders

who, like Lord, killed only one victim, (2) three death sentences imposed on

offenders whose crimes, like Lord's, entailed three or fewer aggravating

circumstances, (3) four death sentences imposed on offenders whose victims

suffered less than Lord's did, and (4) two death sentences imposed on offenders

younger than Lord. /J. at 911-14.

      Since the Lord I decision, this court has consistently considered the same four

factors when performing a proportionality review: the nature of the offense, the

statutory aggravating circumstances found,the defendant's criminal history, and the



                                        191
State V. Schierman (Conner), No. 84614-6


defendant's personal circumstances.^' But the manner in which it has analyzed these

factors has varied.


      In one case, this court listed and described each of the death eligible cases it

considered comparable to the defendant's—including all those in which the death

penalty was not imposed—and inquired whether death sentences were rare (to the

point of being arbitrary) within that specific pool. Benn I, 120 Wn.2d at 681-92. In

another, this court "rank[ed]" the defendant and his crime, with respect to the four

comparability factors, and concluded that the death penalty is not disproportionate

where the ranking is high, meaning that the facts were particularly bad relative to



          See, e.g., Yates, 161 Wn.2d at 789-91 (crime involved "calculated cruelty" to
multiple victims; two "disturbing" aggravating circumstances; extensive criminal history,
including prior murders; defendant had stable and happy childhood, no mental disorders,
and was not young); Cross, 156 Wn.2d at 631-34 (defendant killed multiple family
members and showed "a marked level of cruelty," single aggravating factor, no criminal
history, defendant abused as a child and diagnosed with personality disorders); Elledge,
144 Wn.2d at 80 (victim's suffering, single aggravating circumstance, extensive criminal
history, no mitigating circumstances); Davis I, 141 Wn.2d at 881-84 (victim's conscious
suffering, three aggravating factors, extensive criminal history including violent crimes,
defendant abused as a child and diagnosed with personality disorders); Elmore, 139 Wn.2d
at 308-10 (crime involved rape and torture; two aggravating circumstances; criminal
history involving burglary, forgery, and larceny; defendant abused as a child); Brown, 132
Wn.2d at 556-59 (crime involve rape and torture, four aggravating factors, extensive and
violent criminal history, defendant abused as a child and diagnosed with personality
disorders); Benn I, 120 Wn.2d at 689 (multiple adult victims, single aggravating factor,
mitigating circumstances including close relationship with family and severe personality
disorders); Dodd, 120 Wn.2d at 26-27 (multiple child victims, multiple statutory
aggravating factors, victim suffering, prior convictions, and mitigating circumstances—
here, a personality disorder).



                                          192
State V. Schierman (Conner), No. 84614-6


most other death eligible cases. State v. Pirtle, 127 Wn.2d 628, 687-88, 904 P.2d

245 (1995)(death sentence upheld because nature of crime, number of aggravating

factors, and defendant's criminal history all made case "among the most serious" of

all death eligible offenses). In two cases, this court simply stated, without any

specific references to other death-eligible cases, that it had reviewed all of those

cases    and   concluded     that the     present defendant's        sentence     was    not

disproportionate.^^

        Most frequently, this court has eschewed a comprehensive survey of death-

eligible cases, instead asking only if the death penalty has ever been imposed in any




         Stenson, 132 Wn.2d at 760 ("[w]e have compared this ease an all the
circumstances of the Defendant and his crime with other first degree aggravated murders
which have and have not received the death penalty . . . [and] we conclude the sentence
was neither excessive nor disproportionate"); Brett, 126 Wn.2d at 213 "[ajfter carefully
reviewing the totality of similar eases, we hold . . . [tjhere is no unique or distinguishing
characteristic of the Defendant or of this crime which makes imposition of the death
penalty wanton and freakish").


                                            193
State V. Schierman (Conner), No. 84614-6


case with similar or worse facts.^^ But this court has also sometimes combined that

analysis with other approaches in a single proportionality review.^"^




         Yates, 161 Wn.2d at 789-91 (death sentence not disproportionate because, with
respect to each of four comparability factors, defendant's crime was similar to or worse
than one in which the death penalty had been imposed and upheld); Cross, 156 Wn.2d at
630-34 (death sentence not disproportionate because crime involved a "marked level of
cruelty" similar to three prior eases in which death was imposed; this is true even though,
with respect to every comparability factor, some similar or worse crimes had resulted in a
life sentence); Davis I, 141 Wn.2d at 884 (death sentence not disproportionate because
defendant's "case is sufficiently similar to other cases in which the death penalty has been
imposed and upheld on appeal");Elmore, 139 Wn.2d at 308("Ifthe facts ofElmore's case
are similar to some of the facts taken from cases in which the death penalty was upheld,
the proportionality review is satisfied."); Sagastegui, 135 Wn.2d at 93-94 (death sentence
not disproportionate because defendant's crime resembled, with respect to each ofthe four
comparability factors, five crimes for which death sentences had been imposed in the past);
Brown, 132 Wn.2d at 562("Appellant's crime is at least as vicious as those committed in
other cases in which we upheld imposition of the death penalty after proportionality
review."); Gentry, 125 Wn.2d at 656-57 (death sentence not disproportionate because
defendant's crime was similar, in terms of certain comparability factors, to the crimes
committed in Lord I, Rice, and Dodd).

         E.g.,Elledge, 144 Wn.2d at 81-83 (death sentence not disproportionate in light of
the nature of the crime because defendant's "crime was' at least as vicious and brutal as
others in which the death penalty was imposed"; death sentence not disproportionate in
light of defendant's prior manslaughter conviction because "[ojver half of. . . defendants
[with prior manslaughter convictions] were sentenced to death"); Woods, 143 Wn.2d at
617-18(death sentence not disproportionate in light ofstatutory aggravating circumstances
because presence of three aggravators put defendant's crime in "top 21 percent of[death-
eligible] crimes"; death sentence not disproportionate in light of nature of the crime
because crime was similarly brutal to that in Stenson, a case in which the death penalty was
imposed and upheld).

                                            194
State V. Schierman (Conner), No. 84614-6


            D. Our proportionality review has become so deferential that it fails to
               serve the protective purpose the legislature intended

      While this court's decisions have varied in their approach to proportionality

review, a few consistent holdings have emerged. Each of them helps to illustrate

why this court is unlikely ever to find a death sentence disproportionate—and,hence,

why the proportionality review statute is being improperly construed in favor ofthe

State rather than in favor ofthe defendant.

      First, if the defendant shows cruelty to his victims (the nature of the crime), a

death sentence is proportionate even if no other comparability factor weighs in favor

of that finding. Cross, 156 Wn.2d at 631-34(death sentence proportionate where at

least one victim consciously suffered, aggravating circumstances weighed neither

for nor against a finding of proportionality, the defendant lacked a significant

criminal history, and the defendant's personal history "contain[ed] elements that

both tend to support the jury's verdict and argue in favor of mercy").

      Second, a death sentence is not disproportionate simply because it is imposed

on a defendant with serious mental illness and no significant criminal history. Id. at

593, 630, 633-34.




                                         195
State V. Schierman (Conner), No. 84614-6


       Third,juries do not impose death sentences in an arbitrary, wanton,or freakish

manner simply because no one can predict when a jury will show mercy.

       Finally, the death penalty is not imposed in an arbitrary, wanton, or freakish

manner simply because prosecutors make plea deals or consider the wishes of the

victims' families and thus spare the lives of prolific serial killers but not the lives of

those with far fewer victims.^^

       The latter two holdings stem primarily from this court's decisions in Cross,

156 Wn.2d 580, and Davis II, 175 Wn.2d 287.

       In Cross, the defendant argued that "the death penalty in Washington is

effectively standardless" if it permits Ridgway to receive a life sentence while

others, who kill far fewer victims, are sentenced to death. 156 Wn.2d at 620. That

argument split this court 5 to 4. The dissent agreed and concluded that, in light of



          Davis II, 175 Wn.2d at 359-60 & n.35 (in one case very similar to Davis', life
sentence could be explained by the fact that two jurors found mitigating circumstances
meriting leniency after "a '[vjery emotional' special sentencing proceeding"; in another
very similar case, life sentence could be explained by the presence of a lone dissenting
juror who had concealed his '"strong philosophical opposition'" to the death penalty during
voir dire (alteration in original)); Brett, 126 Wn.2d at 213 ('"the isolated decision of ajury
to afford mercy does not render unconstitutional death sentences imposed on defendants
who were sentenced under a system that does not create a substantial risk of arbitrariness
or caprice'" (quoting Gregg v. Georgia, 428 U.S. 153, 203, 96 S. Ct. 2909, 49 L. Ed. 2d
859 (1976))).

          Davis II, 175 Wn.2d at 357 (different sentences imposed for similar crimes may
be explained by prosecution's decision to offer a plea due to family's wishes or lack of
direct evidence); Cross, 156 Wn.2d at 634(life sentence imposed for Ridgway's crimes "is
not sufficient reason to find capital sentences always disproportionate").
                                            196
State V. Schierman (Conner), No. 84614-6


Ridgway's and other mass murderers' life sentences—specifically, those imposed

on Benjamin Ng, Kwan Fai Mak, David Rice, and Robert Yates—"[n]o rational

explanation exists to explain why some individuals escape the penalty of death and

others do not." Id. at 651. The Cross dissent would have held that Washington's

death penalty violated the proportionality imperative because "the penalty of death

is not imposed generally in similar cases" and is instead "like lightning, randomly

striking some defendants and not others." Id. at 652.

       The Cross majority rejected this argument, concluding that a prosecutor's

decision to extend a plea deal in exchange for information is "highly rational" and

upholding Cross's death sentence because he showed a marked level of cruelty to

his victims. 156 Wn.2d at 622, 631-34. But the majority also acknowledged that

"the death penalty has not been sought in [several] cases at least as brutal." Id. at

632.


       Six years later, this court reaffirmed and expanded on this holding in Davis II.

175 Wn.2d at 350-62. Three justices dissented, arguing that "Ridgway is [only] a

notable entry in a long list of murderers who escaped death for crimes comparable

to those that support death sentences." Id. at 377 (Fairhurst, J., dissenting), 388-89

(Wiggins, J., concurring in dissent). The dissent analyzed dozens of death eligible

cases comparable to Davis' and concluded that, with respect to every single

comparability factor, the vast majority of defendants received sentences of life
                                         197
State V. Schierman (Conner), No. 84614-6


without parole. Id. at 377-86. The Davis II majority affirmed the death sentence

because it found plausible explanations for several ofthese sentences—explanations

like the defendant's youth or diminished capacity, the prosecution's lack of direct

evidence, the presence of a single juror who was adamantly opposed to the death

penalty, or the prosecutor's disqualification for an overlooked conflict. Id. at 357-

60. But, as the dissent noted, this ignored RCW 10.95.130(2)(b)'s requirement that

we affirm a death sentence only if that sentence is generally "imposed in similar

cases :



             The majority suggests that our death penalty system is
      proportional because death and life sentences can be explained by
      factors beyond the crime and the defendant, such as the strength of the
      State's case, the wishes of the victim's family, or facts known to the
      defendant about other, unsolved cases. In concluding that these factors
      make the death penalty proportional, the majority again ignores the
      language of RCW 10.95.130(2)(b), mistaking the question of whether
      a sentence is appropriate in an individual case for whether the sentence
      is generally imposed in similar cases. But the statute requires us to
      analyze the death penalty, a punishment unique in its severity and
      irrevocability, on a system-wide level.

             When one takes the broad, statutorily directed perspective,
      factors that appear rational at an individual level become irrational. ..
      . [Wjhen viewed as part of a system of deciding who dies and who
      lives, these same factors create irrational, perverse results. A murderer
      is more likely to escape death if he has concealed the details of an
      unsolved crime or fortuitously picked a victim whose family opposes
      the death penalty.

Id. at 387(emphasis added).



                                        198
State V. Schierman (Conner), No. 84614-6


      Schierman argues that a majority ofthis court should adopt the "well-reasoned

dissents" in Davis II and Cross. Appellant's Opening Br. at 201. I agree. This

court's approach to proportionality review no longer comports with our legislature's

protective intent in enacting ROW 10.95.130(2)(b).

      The history of proportionality review demonstrates that we have no single

clear interpretation of ROW 10.95.130(2)(b). Instead, for the past 35 years we have

applied continually shifting interpretations—interpretations that allowed us to keep

affirming death sentences even as they grew more and more statistically rare. When

questions arose about the proper interpretation ofthe proportionality review statute,

we consistently resolved those questions in favor ofthe State. See Cross, 156 Wn.2d

at 636-37 (acknowledging uncertainty over whether the legislature intended this

court to include in the comparison database death penalty sentences later reversed,

but resolving that "doubt" adversely to the defendant); Lord I, 117 Wn.2d at 909-10

(acknowledging that RCW 10.95.130(2)(b)"'provides little guidance to determine

at what point a death sentence becomes . . . disproportionate,"' but rejecting Justice

fitter's standard because "it would effectively eliminate the death penalty"(quoting

Harris, 106 Wn.2d at 798)).

      In the end, given how rarely death sentences were actually sought or imposed

in these cases, we could find those sentences proportionate only by ignoring most or

all of the comparability factors in our analysis. E.g., Davis II, 175 Wn.2d at 354-55
                                         199
State V. Schierman (Conner), No. 84614-6


(finding death sentence proportionate even though, with respect to every

comparability factor, the number of life sentences imposed vastly exceeded the

number of death sentences imposed); Cross, 156 Wn.2d at 631-34 (affirming death

sentence even though (1)"the death penalty has not been sought in cases at least as

brutal," (2) the single aggravating circumstance of multiple victims as part of a

common scheme or plan does not weigh either for or against finding of

proportionality, (3) the defendant had minimal criminal history, and (4) the

defendant suffered childhood abuse and had diagnosed personality disorders). And

that is exactly what we would need to do again, to affirm the death penalty in this

case since, for purposes of the proportionality analysis, Schierman's case is similar

to Cross


      I agree with Schierman that this precedent is incon-ect: it fails to fulfill ROW

10.95.130(2)(b)'s prophylactic purpose and it interprets an ambiguous penal statute

in favor of the State, rather than the defendant. I also agree that it is harmful: it

results in the disproportionate imposition of the death penalty. I would therefore

hold for the reasons articulated in the dissents to Davis II and Cross that imposing



         There was evidenee of victim suffering (marked cruelty), the jury found the same
single aggravating eireumstanee (multiple victims as part of a common scheme or plan),
the defendant had minimal criminal history (in Schierman's case, no criminal history), and
the defendant offered evidence of childhood abuse as a mitigating factor at the penalty
phase.

                                          200
State V. Schierman (Conner), No. 84614-6


death sentences on Schierman for these crimes is impennissibly disproportionate in

violation of RCW 10.95.130(2)(b).^»

      Consistent with the logic of our statutory proportionality review, this

conclusion is limited to Schierman's sentence. It may be difficult to imagine a case

in which a death sentence would survive a properly conducted proportionality

review, but that hypothetical question is not before us. Nor is the constitutionality

of the death penalty, which Schierman has not separately briefed. See

concurrence/dissent at 21 n.lO.


                                   CONCLUSION


      A majority of this court affirms Schierman's convictions. A majority of this

court, in separate opinions, also declines to reverse Schierman's sentences of death.

I would reverse his death sentences due to errors in the exclusion of mitigating

evidence and also because that penalty is impermissibly disproportionate under

RCW 10.95.130(2)(b). I would remand with instructions to impose the only



         The concurrence/dissent concludes that we may not overrule the proportionality
analysis applied in Davis II and Cross unless Schierman supplies some "new information
or argument." Concurrence/dissent at 21. This is incorrect: so long as the "incorrect and
harmful" standard is satisfied, we may certainly overtum precedent by adopting the logic
of a prior dissent. Compare Berlin, 133 Wn.2d at 547-48 (overruling State v. Lucky, 128
Wn.2d 111, 912 P.2d 483 (1996), as "incorrect and harmful" because that decision
"effectively" overruled sound precedent and precluded too many lesser included defense
instructions), with Lucky, 128 Wn.2d at 736-39 (Johnson, J., dissenting) (criticizing the
Lucky majority for improperly abrogating precedent and virtually eliminating the
availability of lesser included offense instructions).
                                          201
State V. Schierman (Conner), No. 84614-6


sentences permitted by our state proportionality law in this case: four consecutive

terms of life in prison without possibility of parole.




                                          202
State V. Schierman (Conner), No. 84614-6




                                           C.'




 WE CONCUR:




                                     203
State V. Schierman (Conner M.)



                                        No. 84614-6


       MADSEN,J.(concurring in lead opinion)—I agree with Justice Gordon

McCloud's lead opinion discussion of the guilt phase issues. I agree with the Justice

Yu's concurring opinion discussion ofthe penalty phase issues. I write separately

because while I agree with the lead opinion that Conner Schierman's sentence of death is

disproportionate, I do not agree that our prior cases must be overturned. Rather, I find

the statistics bear out that the sentence in this case is disproportionate as compared to the

penalty imposed in similar cases.

                                     Statutory Review

       RCW 10.95.130(2)(b) requires this court to decide "[w]hether the sentence of

death is excessive or disproportionate to the penalty imposed in similar cases." "Similar

cases" are defined as "cases reported in the Washington Reports or Washington

Appellate Reports since January 1, 1965, in which the judge or jury considered the

imposition of capital punishment regardless of whether it was imposed or executed, and

cases in which reports have been filed with the supreme court." Id.

       In 2006,1 joined the dissent in State v. Cross, 156 Wn.2d 580, 132 P.3d 80(2006).

In that same year, the Washington State Bar Association issued a final report ofits death

penalty subcommittee. See WASH.State Bar Ass'n,Final Report of the Death

Penalty Subcommittee of the Committee on Public Defense (2006). The report

noted that between 1981 and 2006, there were 300 aggravated murder convictions. Of

that group, 270 were death eligible. In 80 cases, the prosecutor filed the death notice, and
No. 84614-6
Madsen, J., concurring


in 30 cases, the juries imposed death.^ Nineteen ofthose death sentences were reversed

on appeal and, on remand,the defendants were sentenced to life without parole. Only 5

executions have taken place since 1981. Three ofthe individuals executed did not appeal

their death sentences and essentially were "volunteers."

       Since 2006, the landscape has changed. We have a more complete set oftrial

court reports. At least 80 additional death eligible cases have been recorded (cases in

which a person is convicted of aggravated first degree murder).^ The death penalty was

given in only 5 cases: Conner Schierman, Byron Scherf, Joseph McEnroe, Cecil Davis,

and Allen Gregory.^ Currently, there are 8 individuals on death row, 5 of whom

committed their crimes in the 1990s and 1 who committed his crime in 1988.


       Based on the information that is now ayailable and considering the statutory

review required by the legislature, I find the sentenee of death in this case

disproportionate to the penalties imposed in similar cases.

       I would affirm the conviction in this case but reverse the sentence of death.




^ These numbers are neeessarily approximate since the trial reports were not completed in all
required cases in 2006.
^ This number is derived from trial reports filed with our court. Trial judges are statutorily
required to submit trial reports to the Washington State Supreme Court "[i]n all cases in which a
person is convicted of aggravated first degree murder." ROW 10.95.120.
^ Davis and Gregory were resentencing proceedings.
                                                2
No. 84614-6
Madsen, J., concurring
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)




                                           No. 84614-6


        YU,J.(concurring in part and dissenting in part) — The majority ofthis

court correctly concludes that petitioner Conner Michael Schierman's convictions

should be affirmed, and this opinion fully concurs with the opinion of Justice

Gordon McCloud regarding the guilt phase of Schierman's trial.

        However,the trial court did not err in its evidentiary rulings at the penalty

phase and Schierman's sentence is not statutorily disproportionate. I therefore

respectfully dissent in part for the reasons expressed below.

                                           ANALYSIS


A.      Schierman's convictions are properly affirmed

        Justice Gordon McCloud's opinion correctly analyzes and decides the issues

relating to the guilt phase of Schierman's trial. By further discussing the de

minimis standard that a majority of this court now adopts for reviewing alleged

public trial right violations, this opinion does not intend to imply any inconsistency
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

between itself and the opinion of Justice Gordon McCloud on that issue. See lead

opinion at 22-31.

        1.     Our prior rejection of de minimis closures is incorrect and harmful

        Stare decisis plays a critical role in our justice system by ""'promot[ing] the

evenhanded, predictable, and consistent development of legal principles,

foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and

perceived integrity of the judicial process.'"" State v. Barber, 170 Wn.2d 854,

863, 248 P.3d 494(2011)(quoting Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d

588 (1997)(quotingPaywe V. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115

L. Ed. 2d 720 (1991))). There is perhaps no context in which these concerns are

more salient than in the judicial interpretation and application of constitutional

rights. The decision to disavow our constitutional precedent is a weighty one,

which must be accompanied by a full and honest account ofthe reasons that our

precedent is '"incorrect and harmful.'" Id. (quoting In re Rights to Waters of

Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)).

               a.      Our precedent is incorrect because it misapprehends the nature
                       of a de minimis inquiry

        Our precedent rejects the possibility of a de minimis closure and instead

assumes that every closure not justified by a Bone-Club^ analysis on the record, no



       'State V. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

matter how trivial, violates the public trial right and requires automatic reversal as

structural error. This precedent is incorrect because it is based on the assumption

that in order to determine whether a closure is de minimis, we would be required to

determine whether the closure caused prejudice to the defendant. State v. Shearer,

181 Wn.2d 564, 573, 334 P.3d 1078(2014)(Owens, J., lead opinion)

("recognizing de minimis violations based on the lack ofprejudice to the defendant

would conflict with our precedent that public trial rights violations are structural

errors and not subject to a harmlessness analysis"(emphasis added)). However, a

de minimis inquiry does not require any analysis of whether there was prejudice to

the defendant. Instead, a de minimis inquiry considers whether the values

underlying the public trial right have been undermined.

        Our precedent is unquestionably correct that it is usually impossible to

determine whether structural error has resulted in prejudice to a particular

defendant. In most cases, structural errors "'defy analysis by "harmless-error"

standards' because they 'affec[t] the framework within which the trial proceeds,'

and are not 'simply an error in the trial process itself" United States v. Gonzalez-

Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 165 L. Ed. 2d 409(2006)(alteration in

original)(quoting Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246,

113 L. Ed. 2d 302(1991)). In proceedings infected by structural error, there are no

untainted proceedings to use as a comparison point for determining whether the
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

error was harmless. Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S. Ct. 2078, 124

L. Ed. 2d 182(1993). Therefore,"[h]armless-error analysis in such a context

would be a speculative inquiry into what might have occurred in an alternate

universe." Gonzalez-Lopez, 548 U.S. at 150.

        Our precedent is also correct that public trial violations are properly

classified as structural error, even though "in some cases an unlawful closure might

take place and yet the trial still will be fundamentally fair from the defendant's

standpoint." Weaver v. Massachusetts, 582 U.S.          , 137 S. Ct. 1899, 1910, 198

L. Ed. 2d 420(2017). Therefore, if a de minimis inquiry did consider whether an

unjustified closure caused prejudice to the defendant, our precedent would be

correct in rejecting it.

        However, a properly conducted de minimis inquiry is entirely unrelated to

any showing of prejudice or lack of prejudice to the defendant. Instead, as

explained by a seminal federal case,

       [A]triviality standard, properly understood, does not dismiss a
       defendant's claim on the grounds that the defendant was guilty
       anyway or that he did not suffer "prejudice" or "specific injury," It is,
       in other words, very differentfrom a harmless error inquiry. It looks,
       rather, to whether the actions of the court and the effect that they had
       on the conduct ofthe trial deprived the defendant—^whether otherwise
       innocent or guilty—ofthe protections conferred by the Sixth
        Amendment.
State V. Schierman,'^Q.^A6\A-6
(Yu, J., concurring in part and dissenting in part)

Peterson v. Williams, 85 F.3d 39, 42(2d Cir.)(emphasis added), cert, denied, 519

U.S. 878 (1996).^ The test adopted by the Second Circuit in Peterson considers the

specific facts of an unjustified closure to determine whether the closure

undermined "the values furthered by the public trial guarantee." Id. at 43. If so,

then there was a public trial violation regardless of whether there was prejudice to

the defendant. Id. at 42.


        Our precedent is thus incorrect because it rejects the possibility of a de

minimis closure based on a misunderstanding of what it means.

                b.     Our precedent is harmful because it requires automatic reversal
                       based on de minimis closures


        Our rigid treatment of every courtroom closure not preceded by a Bone-Club

analysis as a public trial violation amounting to structural error requiring automatic

reversal is clearly harmful. It

       leads to delayed justice and additional costs, not all of which are
       quantifiable but which are nevertheless onerous. These can include
       the time and effort ofthe courts, the prosecuting agencies, and the
       defense attorneys, often public defenders, who must retry the cases;
       the burdens, including possible distress and anxiety, placed on another
       jury; the burdens placed on victims and other witnesses who must go
       through the process of another trial; the losses in relevant evidence
       that come with long-delayed presentation, when witnesses' memories
       are not as clear as at the time of the original trial; and the dollar costs
        of the new trials.



      ^ The Supreme Court of the United States has never rejeeted the possibility of a de
minimis closure despite such federal appellate cases recognizing the possibility. See State v.
Sublett, \16 Wn.2d 58, 116, 292 P.3d 715 (2012)(Madsen, C.J., concurring).
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

State V. Sublett, 176 Wn.2d 58, 103, 292 P.3d 715 (2012)(Madsen, C.J.,

concurring). Such costs and burdens are, of course, often implicated when any

criminal conviction is reversed. But the harms resulting from our inflexible

approach to public trial issues simply cannot be justified in light of the flawed

reasoning underlying our rejection of the possibility of de minimis closures in

which the public trial right was not actually violated.

        This case is certainly not the first one in which it has been pointed out that

our public trial jurisprudence is incorrect and harmful. See, e.g., State v. Njonge,

181 Wn.2d 546, 563, 334 P.3d 1068(2014)(Gonzalez, J., concurring); State v.

Smith, 181 Wn.2d 508, 533-38, 334 P.3d 1049(2014)(Wiggins, J., concurring);

Sublett, 176 Wn.2d at 114-28(Madsen, C.J., concurring); State v. Paumier, 176

Wn.2d 29, 43-57, 288 P.3d 1126(2012)(Wiggins, J., dissenting). However,this

case perfectly illustrates why we must now disavow it. A majority ofthis court

agrees that justice demands we affirm Schierman's convictions, but a differently

comprised majority of this court unanimously agrees that our precedent precludes

us from doing so. In this direct conflict between justice and precedent,justice

must prevail.




                                                 6
State V, Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

        2.      We adopt the de minimis inquiry established by federal appellate
               courts


        Because our precedent is incorrect and harmful, a majority of this court now

disavows it and adopts "the wise and widely-accepted Peterson test.. . [t]o

determine whether a closure was too trivial to implicate the Sixth Amendment

guarantee" to a public trial. United States v. Ivester, 316 F.3d 955,960 (9th Cir.

2003)(citing Braun v. Powell, 227 F.3d 908,919 (7th Cir. 2000); United States v.

Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994));.see lead opinion at 28-29.

Determining whether a closure was de minimis requires the court to carefully

consider the specific facts surrounding the closure and to determine whether, in

light of those facts, the purposes of the public trial right were undermined.

Peterson, 85 F.3d at 42-44.

        To a limited extent, this test for de minimis closure resembles the logic

prong ofthe experience and logic test, as both consider the purposes underlying the

public trial right. See State v. Russell, 183 Wn.2d 720, 732, 357 P.3d 38 (2015).

However,the logic prong uses a categorical, forward-looking approach that

considers the purposes ofthe public trial right in order to determine whether the

type of proceeding at issue implicates the public trial right. Id. at 730. The test for

de minimis closure, meanwhile, uses a case-by-case, backward-looking approach

that assumes the public trial right is implicated by the proceeding, and then asks
State V. Schierman,^o.M6\A-6
(Yu, J., concurring in part and dissenting in part)

whether, in light of the particular facts presented in the individual case, an

unjustified closure actually undermined those purposes. Peterson, 85 F.3d at 42.

        The de minimis test thus does not degrade the public trial right or encourage

closed proceedings because it can never exempt an entire category of proceedings

from the presumption that all proceedings must occur in open court. It is merely

an analytical tool applied on review that will always depend on the particular

circumstances presented. This must be so because no two trials are identical and

no trial is perfect. "[A] trial is a uniquely human affair and can be only as flawless

as the judges and lawyers who conduct it. We strive for perfection but rarely attain

it. Humans are imperfect." Paumier, 176 Wn.2d at 44(Wiggins, J., dissenting).

        3.     In this case, the closure of discussions regarding for-cause challenges
                was de minimis


        As stated above, the test for whether an unjustified courtroom closure is de

minimis is whether, in light ofthe specific facts appearing in the record, the

closure actually undermined the purposes of the public trial right.^ Peterson, 85

F.3d at 43. These purposes are well established:'"to ensure a fair trial, to remind

the prosecutor and judge oftheir responsibility to the accused and the importance



         ^ To reiterate, this is a different inquiry from that presented hy the logic prong ofthe
experience and logic test. It is already established that for-cause challenges implicate the public
trial right generally. State v. Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015). Applying the de
minimis test, meanwhile, requires us to determine whether the purposes of the public trial right
were actually undermined in this particular case.

                                                  8
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

of their functions, to encourage witnesses to come forward, and to discourage

perjury.' It also affirms the legitimacy of the proceedings and promotes

confidence in the judiciary." In re Det. ofMorgan, 180 Wn.2d 312, 325, 330 P.3d

774(2014)(citation omitted)(quoting Sublett, 176 Wn.2d at 72).

        To determine whether these purposes were in fact undermined under the

circumstances presented, we must carefully consider the record. In making this

determination, courts may look to the length of time the courtroom was closed, the

reason the courtroom was closed, whether the public actually learned what

occurred during the closed proceeding, and whether the closed proceedings related

to the ultimate question of guilt or innocence. See Ivester, 316 F.3d at 960; Braun,

227 F.3d at 919; Peterson, 85 F.3d at 43-44. However, no single factor is either

necessary or sufficient. "[T]he methodology employed by the trial court must be

the focal point of appellate review." Braun, 227 F.3d at 918.

        Here, the only proceedings relating to for-cause challenges that occurred in

chambers were brief arguments by the parties(many of which had already been

made in open court the day before) and the court announcing its decisions(which

were repeated in open court immediately afterward). See Verbatim Report of

Proceedings(VRP)(Jan. 11, 2010) at 263-67; VRP (Jan. 12, 2010) at 16-22, 42.

Encouraging witnesses to come forward and discouraging perjury were not

implicated, and given how brief the closure was as compared to the entire voir dire
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

process (to say nothing ofthe entire trial process), it cannot be said the closure, in

itself, actually undermined the purposes ofthe public trial right. VRP (Jan, 12,

2010) at 16 (estimating the in-chambers proceedings would take "less than ten

minutes"). And while the closure was not inadvertent, the court here clearly had

no intention of shielding either counsels' arguments or its own decisions from

public scrutiny—a complete record of the proceedings was contemporaneously

transcribed by a court reporter and is publicly available. Id. This served to remind

the participants of their functions and responsibilities at the time, and to affirm the

legitimacy of the proceedings going forward.

        Courtroom closures not justified by di Bone-Club analysis are never

advisable, but that does not mean they are always structural error requiring

automatic reversal either. In this case, the closure was de minimis and did not

violate the public trial right. Therefore, in accordance with the lead opinion,

Schierman's convictions are affirmed.


B.      Schierman does not show error in the penalty phase

        Without question,"the experienced trial court judge correctly applied a

complicated set of constitutional and evidentiary rules to a contentious and

emotionally charged proceeding," and the lead opinion correctly analyzes the vast

majority of Schierman's penalty-phase arguments. Lead opinion at 90. However,

the trial court did not err in its rulings on the scope of expert testimony that would


                                                 10
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

be allowed by Drs. Mark Cunningham and Mark McClung, and Schierman's

sentence is not statutorily disproportionate.

         1.    Proffered testimony by Dr. Cunningham

        Schierman claims that his sentence should be reversed because the trial court

limited a belatedly disclosed expansion of expert testimony from Dr. Cunningham,

a proposed defense witness who was ultimately never called to testify.

Schierman's argument mischaracterizes the record and draws erroneous

conclusions from the effect ofthe trial court ruling. The trial court did not err.

        It must be recognized at the outset what trial court decision we are

reviewing. Well before trial, Dr. Cunningham was properly disclosed as a

potential mitigation witness. The disclosure indicated that his testimony would be

"concordant with his interviews of[Schierman] in so far as they relate to Alcoholic

Blackout/Propensity/History." Clerk's Papers(CP)at 26403. At the completion of

the guilt phase, the defense filed a supplemental disclosure, again specifying Dr.

Cunningham's testimony would "relate to alcoholic blackout." Id. at 26424.

However, in opening statements for the penalty phase, defense counsel stated for

the first time that Dr. Cunningham would "testify with respect to what type of

criminal behavior is predictive of an inmate's prison behavior" and would include

testimony related to future prison behavior. VRP (Apr. 19, 2010) at 86. The State

objected to the expanded scope of Dr. Cunningham's proposed testimony on two


                                                 11
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

grounds: violation ofthe court's discovery orders and relevance. The trial court

denied the State's motion and allowed the proposed expansion of the testimony,

subject to a relevancy determination. Schierman is thus seeking reversal based on

a trial court ruling that was largely in his favor.

        Worth noting is that the trial court would have been justified in excluding all

of the expanded testimony based on defense counsel's "blatant and intentional"

violation of the court's discovery orders. VRP(Apr. 20, 2010) at 16. Defense

counsel never provided an adequate explanation for its failure to timely disclose

the full intended scope of Dr. Cunningham's proposed testimony, and the court

observed that the only apparent explanation for the defense's "incredibly untimely

disclosure," id., was "for tactical reasons," id. at 15. However, the trial court

ultimately ruled that it would allow the expanded testimony from Dr. Cunningham

regarding future dangerousness, including testimony and opinion about

Schierman's development as a child and adolescent, his addictions, his alcohol

treatment and recovery, and his institutional adjustment in jail, to the extent they

were relevant. VRP(Apr. 30, 2010) at lO.'^




        '' On the issue of future dangerousness, extensive witness testimony was presented
regarding Schierman's conduct in jail while he was awaiting trial, including testimony from two
jail witnesses, and family and friends who testified. Also, Eldon Vail, former secretary ofthe
Department of Corrections, testified extensively for the defense specific to the prison security
Schierman would face if incarcerated.


                                                 12
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

        Nevertheless, Schierman argues that the trial court erred in limiting part of

Dr. Cunningham's proposed testimony by basing its decision on Morva v.

Commonwealth, 278 Va. 329, 683 S.E.2d 553 (2009). This argument is simply

wrong. Morva would have directed the trial court here to exclude Dr.

Curmingham's expanded testimony entirely, and that is not what happened here.

        In Morva, the Virginia Supreme Court upheld the trial court's exclusion of

all of Dr. Cunningham's testimony, including the risk assessment specific to the

defendant and the Virginia prison system. The court concluded:

        It is true that, in this case, unlike Porter [v. Commonwealth, 276 Va.
        203, 661 S.E.2d 415 (2008)], Dr. Cunningham proposed to provide
        testimony that concerns Morva's history and background, prior
        behavior while incarcerated, age and educational attainment, and such
        factors might bear on his adjustment to prison. However, other
        testimony Dr. Cunningham proposed to give, and to rely upon in
        giving a prison risk assessment for Morva, such as potential security
        interventions that "could be brought to bear" upon Morva, and the
        rates of assaults in the Virginia Department of Corrections, is, by
        statute, not relevant to the determination the jury has to make
        concerning Morva's future dangerousness and therefore would not be
        admissible evidence.


Morva, 278 Va. at 350. Based on this holding, the argument that the trial court

here applied Morva's analysis is not supportable. While the State cited Morva in

support of its motion to exclude all of Dr. Cunningham's late-disclosed testimony,

the trial court denied total exclusion, allowing Dr. Cunningham's relevant




                                                 13
State V. Schierman, No. 84614-6
(Yu, J., concuiTing in part and dissenting in part)

testimony that specifically related to Schierman, including the prison risk

assessment pertaining specifically to him.

        What Schierman takes issue with is the trial court decision excluding some

of Dr. Cunningham's proposed testimony relating to other inmates incarcerated in

other state prisons based on relevancy. That decision was not error. Our statute

focuses the relevancy inquiry under ROW 10.95.070(8), where the jury is directed

to consider "[wjhether there is a likelihood that the defendant will pose a danger to

others in the future." (Emphasis added.) The focus ofthe allowable evidence thus

plainly centers on the defendant and his circumstances. Eighth and Fourteenth

Amendment to the United States Constitution's jurisprudence similarly supports

the trial court's decision to limit Dr. Cunningham's future dangerousness

testimony.^ Even recognizing a relaxed standard applicable in capital proceedings

and allowing wide latitude for the admission oftestimony, any proposed testimony

or expert opinion must relate to the defendant and his or her circumstances to be

relevant.


        The trial court here reviewed each proposed, newly disclosed Microsoft

PowerPoint slide and excluded some based on relevancy because some individual



       ^ "[T]he Eighth and Fourteenth Amendments require that the sentencer . .. not be
precluded from considering, as a mitigatingfactor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978)(second emphasis added).

                                                 14
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

slides had nothing to do with Schierman personally and involved prison statistics

from other states. Meanwhile, the trial court indicated it would allow Dr.

Curmingham to testify that past violence in the community is not strongly

associated with prison violence and that the severity ofthe crime is not a good

predictor of prison adjustment.^ CP at 8306(contents of slide 26). The trial judge

        also permitted [Dr. Cunningham] to testify that serious violence is
        rare in prison (slides 27-28), to the low rates ofinmate assaults and
        homicide in the Washington [Department of Corrections](slides 29-
        30), and to the number and proportion ofinmates convicted of
        homicide in Washington prisons (slide 31). CP 8306-07; 109RP 24-
        25. The court also permitted testimony as to slide 35, which states
        that nothing about Schierman increased his risk of serious violence in
        prison, and listed five specific factors that decreased his risk of serious
        violence. CP 8307; 109RP 25.

Br. of Resp't at 171. This was entirely appropriate because the inquiry

focuses on "Mr. Schierman's likelihood of presenting future dangerous[ness]

or being involved in the future dangerous acts while confined in the
                                      1



 Washington State Department of Corrections." VRP(Apr. 30, 2010)at 3

(emphasis added).

        The record thus shows that the trial court properly Concluded that the

relevant testimony would be limited to Schierman's ability to adjust to



        ^ The defense chose not to call Dr. Cunningham to testify, so we have no record of what
actual testimony he would have presented. We need not reach the State's argument that
Schierman waived any objection to the trial court's limitation of Dr. Cunningham's testimony
because Schierman's objections are without merit.


                                                 15
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

incarceration, consistent with RCW 10.95.070(8)'s directive that the jury can

consider the "likelihood that the defendant will pose a danger to others in the

future." The trial court's exclusion of some of Dr. Cunningham's proposed

testimony was not erroneous.

        2.     Proffered testimony by Dr. McClung

        The trial court properly excluded Dr. McClung's testimony regarding

traumatic brain injury. "Before allowing an expert to render an opinion, the trial

court must find that there is an adequate foundation so that an opinion is not mere

speculation, conjecture, or misleading." Johnston-Forbes v. Matsunaga, 181

Wn.2d 346, 357, 333 P.3d 388 (2014). Here, the factual foundation for Dr.

McClung's proffered testimony was inadequate.

        Because Dr. McClung's proposed testimony was "premised upon a chain of

other experts and their evaluations," the trial court correctly considered the

foundation of each link in that chain. VRP (Apr. 29, 2010) at 7. The first link in

the chain was a report by Dr. Wendy Cohen, which concluded that the scan was

"suggestive of a prior insult which involved a compon[e]nt of hemorrhage." CP at

8252. Dr. Cohen did not opine that Schierman's brain scan indicated that he had

 suffered multiple traumatic head injuries, or even raise that possibility.

        The next link in the chain of expert evaluations was a letter by Dr. Paul

 Connor, dated April 24, 2010. Dr. Connor concluded, based on Schierman's


                                                 16
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

medical records, that the prior head injury Dr. Cohen found was consistent with a

concussive head injury Schierman suffered while playing football in 1997. Id. at

8257. Dr. Connor then noted that "Schierman and his family have reported a

number of incidents of domestic violence in which he was struck in the head by his

biological father." Id. From these reports, Dr. Connor concluded that "it would

appear that Mr. Schierman has experienced multiple head injuries in his life." Id.

Dr. Connor did not elaborate on the extent of domestic violence, describe any

particular incident, or suggest that any act of domestic violence by Schierman's

father may have contributed to the hemorrhaging noted by Dr. Cohen.

Nevertheless, Dr. Connor concluded "that a history of multiple head trauma[s] is a

more parsimonious etiology than that of[nonverbal learning disorder]." Id.

(boldface omitted).

        The next day, Dr. Richard Adler provided the final link in the chain of

expert opinions that formed the basis for Dr. McClung's proposed testimony. Dr.

Adler opined that Schierman suffered '"[pjost-concussion syndrome'" after his

1997 football injury. Id. at 8249(quoting Denise Garvey, When Can Teens Return

to Sports After a Head Injury?, 4 PROCEEDINGS OF UCLA HealthCare 47

(Winter 2000). [http://perma.cc/JS9R-VN9D]. However, Dr. Adler's declaration

also states that post-concussion syndrome occurs "'[a]fter a history of head trauma

with LOC [loss of consciousness] and post-injury amnesia.'" Id. (second alteration


                                                 17
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

in original)(quoting Garvey,supra, at 47). The trial court thus did not make an

unqualified medical judgment about the necessary level of severity for prior head

injuries—Dr. Adler, a licensed medical doctor, provided that information.

        However, the trial court correctly concluded that there was no factual

evidence that Schierman had a history of multiple head trauma with loss of

consciousness and post-injury amnesia. The foundation for Dr. McClung's

proposed testimony depended on such a history.

        Even as applied to proffered mitigating evidence in the penalty phase of a

capital case,"the trial court maintains its traditional authority 'to exclude, as

irrelevant, evidence not bearing on the defendant's character, prior record, or the

circumstances of his offense.'" State v. Davis, 175 Wn.2d 287, 318, 290 P.3d 43

(2012)(quoting Lockett v. Ohio, 438 U.S. 586,604 n.l2, 98 S. Ct. 2954, 57 L. Ed.

2d 973 (1978)).^ Furthermore,'"mitigating evidence' is not defined as any

evidence, regardless of its content or relevance, that would disincline the jury to

impose the penalty of death. Mitigating evidence is that which 'in fairness and

mercy, may be considered as extenuating or reducing the degree of moral

culpability.'" State v. Pirtle, 127 Wn.2d 628, 671, 904 P.2d 245(1995)(quoting

State V. Bartholomew, 101 Wn.2d 631, 647, 683 P.2d 1079(1984)).



        ^ The limits on this traditional authority are the same under both the state and federal
eonstitutions. Davis, 175 Wn.2d at 318 n.l2.


                                                 18
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

        Dr. McClung's proposed testimony might be properly considered as

extenuating or reducing the degree of moral culpability as applied to a person who

did have a history^ of multiple head trauma with loss of consciousness and post-

injury amnesia.^ However, without any foundational evidence that Schierman had

such a history, the proposed testimony was irrelevant. The trial court therefore did

not err in excluding Dr. McClung's testimony due to its inadequate foundation.

        3.      Statutory capital sentence review

        Because the trial court did not err in its evidentiary rulings, Schierman's

sentence should be affirmed if it passes a statutory capital sentence review, which

requires the court to address four issues:

               (a) Whether there was sufficient evidence to justify the
        affirmative finding to the question posed by ROW 10.95.060(4);^^^ and

             (b) Whether the sentence of death is excessive or
       disproportionate to the penalty imposed in similar cases, considering
       both the crime and the defendant. For the purposes of this subsection,
       "similar cases" means cases reported in the Washington Reports or
       Washington Appellate Reports since January 1, 1965, in which the
       judge or jury considered the imposition of capital punishment
       regardless of whether it was imposed or executed, and cases in which
       reports have been filed with the supreme court under RCW 10.95.120;


       ^ It only "might" be properly considered because Dr. McClung was also unable to reach
any conclusion about whether any prior head injuries Schierman may have suffered actually had
any impact on his behavior or mental processes. See CP at 8259-60.
        ^ RCW 10.95.060(4) provides,"Upon conclusion of the evidence and argument at the
special sentencing proceeding, the jury shall retire to deliberate upon the following question:
'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?'"


                                                 19
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)



               (c) Whether the sentence of death was brought about through
        passion or prejudice; and

               (d) Whether the defendant had an intellectual disability within
        the meaning of RCW 10.95.030(2).

 RCW 10.95.130(2). As correctly noted by the lead opinion, the arguments in this

case focus on the second and third issues, which are whether Schierman's sentence

is disproportionate or was brought about through passion and prejudice. Lead

opinion at 182.

        Schierman does little to highlight specific facts about himself, his crimes, or

comparable cases indicating that "the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases, considering both the

crime and the defendant." RCW 10.95.130(2)(b). Instead, he argues, and the lead

opinion agrees, that "Washington's death penalty is imposed in a wanton and

freakish manner," such that every capital sentence in Washington should be found

statutorily disproportionate. Appellant's Opening Br. at 198; see lead opinion at

181-200. However, as Schierman recognizes, this court has already rejected that

argument, and he provides no new information or argument that could justify




                                                 20
State V. Schierman,^o. 84614-6
(Yu, J., concurring in part and dissenting in part)

revisiting our precedent.'^ Appellant's Opening Br. at 198 (citing Davis, 175

Wn.2d at 353-54).

        When conducting a statutory disproportionality review,"[t]he goal is to

ensure that the sentence, in a particular case, is proportional to sentences given in

similar cases; is not freakish, wanton, or random; and is not based on race or other

suspect classifications."'' State v. Cross, 156 Wn.2d 580, 630, 132 P.3d 80(2006)

{emphasis added). To do this,"we must consider at least(1)the nature ofthe

crime,(2)the aggravating circumstances,(3)the defendant's criminal history, and

(4)the defendant's personal history, as well as any additional substantive

challenges to the proportionality of the sentence." Davis, 175 Wn.2d at 348.

        The nature of Schierman's crimes was indisputably horrific. At a time when

he knew that Olga Milkin's husband was deployed overseas, Schierman entered

her home and killed her along with her two sons, who were three and five years

old, and her sister, who was a college student. Olga Milkin and her sister were

stripped oftheir clothing and stabbed repeatedly in the head and neck. Both were

stabbed in the neck from the front with such force that the knife actually damaged


         This court has shown it is firmly committed to carefully considering new information
regarding the constitutionality of capital punishment. See Order, State v. Gregory, No. 88086-7
(Wash. Nov. 21,2017). That issue is simply not presented here. Schierman does not provide any
new information or any new arguments, and the relevant portions of his briefing do not engage in any
meaningful analysis of any constitutional provisions. See Appellant's Opening Br. at 197-202;
Appellant's Reply Br. at 72-75.
        '' Schierman is white, and there is no indication that race or any other suspect
classification was implicated at any point in these proceedings.

                                                 21
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

their spines, and there was evidence that they attempted to fight back, indicating

that they endured significant conscious suffering before they died. One of the

children was stabbed through the throat from one side to the other, and the other

child's throat was cut so deeply that he was nearly decapitated. When Schierman

woke up in the Milkins' home and found himself covered in blood with four dead

bodies, he took a shower, changed his clothes, and attempted to bum the house

down in order to destroy the evidence. The nature ofthese crimes is at least as

brutal as others in which we have upheld a capital sentence. See id. at 349-51.

        The only aggravating factor submitted to the jury was that "[tjhere was more

than one victim and the murders were part of a common scheme or plan." RCW

10.95.020(10). However,"[t]he nature ofthe aggravating circumstances, as well

as the number, is important to consider." Davis, 175 Wn.2d at 351. As applied to

the particular facts presented, the nature ofthis aggravating circumstance goes

beyond the minimal statutory requirements—Schierman's crimes ended the lives

of a young mother and her two small children while their father was deployed

overseas, as well as the children's aunt who was there to help while their father

was gone. He literally destroyed the Milkin family and their home.

        Schierman's lack of prior convictions and difficult personal history neither

require nor prevent a finding of disproportionality. Id. at 353; Cross, 156 Wn.2d at

633-34; State v. Rupe, 108 Wn.2d 734, 770, 743 P.2d 210(1987). But in light of


                                                 22 '
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)

the evidence showing Schierman planned these crimes for a time when the victims

were particularly vulnerable because Mr. Milkin was deployed overseas, the

ruthless nature of the murders themselves, and Schierman's subsequent efforts to

destroy the evidence by burning the Milkins' house down, Schierman's sentence is

not disproportionate to the penalty imposed in similar cases.

        Schierman also contends that his sentence was brought about by passion and

prejudice because the State's case "emphasize[d] that the victims were so 'worthy'

that Schierman deserved death regardless of the constraints of the law."

Appellant's Opening Br. at 203. However, he largely points to aspects of the

State's case that were either entirely proper or harmless. Lead opinion at 55-63

(circumstantial evidence of sexual motivation), 64-72(Mr. Milkin's military

service), 135-39, 143-45 (the Milkins' persecution, immigration, and religious

faith). Thus,"[w]e have already addressed and rejected these claims." Davis, 175

Wn.2dat374.


        In addition, Schierman raises the fact that the jury was shown "many, many

gruesome photographs." Opening Br. of Appellant at 203. Schierman does not

specify which photographs he is referring to, but both autopsy and crime scene

photographs may be admitted subject to evidentiary rules. State v. Yates, 161

Wn.2d 714, 768, 168 P.3d 359(2007)(autopsy photographs admissible so long as

they are accurate and more probative than prejudicial); Cross, 156 Wn.2d at 618


                                                23
State V. Schierman,']:^o. 84614-6
(Yu, J., concurring in part and dissenting in part)

("Generally, photographs taken by police of a crime scene will be admissible so

long as the entry was lawful."). Schierman provides no explanation of how the

photographs the jury saw here made an improper appeal to passion or prejudice in

this particular case.

        Finally, the State's references to the Holocaust were improper. See lead

opinion at 169-173. However,the court instructed the jury to disregard those

statements, and when considered in the context of the entire trial and all the

evidence presented, it cannot be said that they necessarily so inflamed the passions

or prejudices of the jury that its sentencing verdict must be reversed.

                                        CONCLUSION


        This opinion is not intended to either endorse or criticize the wisdom or

constitutionality of capital punishment generally, nor is it intended to express any

views about the appropriate resolution of any challenges to capital punishment that

have been raised in other cases. However, based on the record and issues

presented in this case, Schierman's convictions and sentence should be affirmed.




                                                 24
State V. Schierman, No. 84614-6
(Yu, J., concurring in part and dissenting in part)




                                                  25
State V. Schiennan (Conner Michael)
(Stephens, J., dissenting in part, concurring in part)




                                     No. 84614-6




       STEPHENS, J. (dissenting in part, concurring in part)—In criminal

prosecutions, both the Sixth Amendment to the United States Constitution and article

I, section 22 ofthe Washington Constitution protect the defendant's right to an open,

public trial. Violation of this right has long been recognized as a structural error,

generally requiring reversal of the conviction and a new trial. Here, the State

recognizes a closure occurred when for-cause juror challenges were considered in

chambers. And this court unanimously agrees that our precedent requires reversal of

the conviction based on this structural constitutional error. Nonetheless, a majority

ofthe court—comprised ofthe lead opinion and Justice Yu's concurrence—departs

from precedent and disregards the error here as too "trivial" or "de minimis" to

warrant any remedy. Recognizing that this court has consistently and repeatedly

rejected this situational analysis in past cases, the new majority proclaims that

reversing Schierman's conviction due to the violation of his public trial right is too
State V. Schierman (Conner Michael),~Ho. 84614-6
(Stephens, J., dissenting in part, concurring in part)



high a price to pay for following precedent, and thus we must choose between

precedent and justice. See concurrence at 6-7("A majority of this court agrees that

justice demands we affirm Schierman's convictions, but every member of the court

unanimously agrees that our precedent precludes us from doing so. In this direct

conflict between justice and precedent,justice must prevail.").
                               I




       I respectfully dissent.^ I fail to see the justice in changing our law to avoid

giving relief for a constitutional violation to a man whose conviction the majority

believes must be affirmed. Once we start down this path, it will become quite easy

to dismiss as trivial or de minimis any number of constitutional errors so long as we

convince ourselves that the trial, on the whole, was fair, or more generally that

"justice demands we affirm." Id.

       Recognition of a triviality standard inevitably results in trivializing

constitutional violations, as the history of this standard in other jurisdictions bears

out. While the triviality or de minimis notion began as an attempt to avoid reversal

based on brief, inadvertent courtroom closures that seemed inconsequential, it has




       ^ This case involves both an appeal and our statutorily required capital sentence
review under RCW 10.95.130. Because the decision ofthe court on the appeal is to affirm
Conner Schierman's conviction, my dissent does not relieve me ofthe obligation to engage
in the statutory review. Based on our precedent, I concur in the opinion of Justice Yu that
Schierman's capital sentence was validly imposed.

                                             -2-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



proven impossible to restrain. It is an ersatz doctrine that has no standards and offers

no more guidance than a sniff test for courts to determine when a public trial right

violation is "bad enough" to warrant a remedy. To now adopt it as a rule of decision

in a case involving a deliberate, ordered closure will produce only confusion and

lead to inconsistent results.       We should adhere to established precedent, and

recognize that justice demands a remedy in the face of a public trial violation. The

proper remedy is to reverse Schierman's conviction and remand for a full public

trial.


                                       DISCUSSION


   I. We Should Adhere to Our Public Trial Precedent Because It Is Neither
         Incorrect Nor Harmful


         Both the State and the majority recognize that we have, many times,

considered and rejected adoption of a triviality or de minimis doctrine, and have

consistently adhered to the remedy required for a structural constitutional error:

reversal and a new trial.^ Importantly, our cases are based not only on the principles


         ^ We have recognized that the requirement for a "new trial" is shorthand for the mle
of automatic reversal. See State v. Njonge, 181 Wn.2d 546,554 n.3, 334 P.3d 1068 (2014).
In isolated situations in which a public trial error occurs in a pretrial proceeding that can
be repeated without any effect on the trial, the lesser remedy ofinvalidating that proceeding
maybe appropriate. Id. (citing Waller v. Georgia, 467 U.S. 39,49, 104 S. Ct. 2210, 81 L.
Ed. 2d 31 (1984)(ordering new suppression hearing, with new trial necessary "only if a
new, public suppression hearing results in the suppression of material evidence not

                                             -3-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



underlying article I, section 22 of our state constitution, but also on decisions from

the United States Supreme Court interpreting the Sixth Amendment to the United

States Constitution. See, e.g.. Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81

L. Ed. 2d 31 (1984); Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed.

2d 675 (2010).        These decisions provide defendants a minimum level of

constitutional protection we are not free to disregard.

       Consistent with our own and United States Supreme Court precedent, we

decided a trio of cases in 2012 that reaffirmed that a violation ofthe public trial right

is structural error, prejudice is presumed, and a new trial is required. In those cases,

a minority of the court argued our precedent was incorrect and harmful and urged

the adoption ofa de minimis exception ofsome kind.In re Pers. Restraint ofMorris,

\16 Wn.2d 157, 288 P.3d 1140 (2012) (plurality opinion); State v. Paumier, 176

Wn.2d 29,288 P.3d 1126(2012); State v. Wise, 176 Wn.2d 1,288 P.3d 1113(2012).

Yet, we rejected those arguments. We recognized that the right to a public trial is at

the core of our system of justice, and a violation of this right does not require

showing that something else went wrong, i.e., that the trial was otherwise unfair.


suppressed at the first trial, or in some other material change in the positions of the
parties")). Where it is not certain that the invalid proceeding will have no effect on the
trial, however, a new trial is required. See State v. Bone-Chib, 128 Wn.2d 254, 262, 906
P.2d 325(1995).

                                             -4-
State V. Schierman (Conner Michael),^o. 84614-6
(Stephens, J., dissenting in part, concurring in part)



Most recently in 2014, we again confronted the argument for a de minimis exception.

State V. Shearer, 181 Wn.2d 564, 573 & n.2, 334 P.3d 1078 (2014) (plurality

opinion) (noting that, even prior to the 2012 cases, the court had rejected a de

minimis standard as inconsistent with the structural nature ofpublic trial error(citing

State V. Easterling, 157 Wn.2d 167, 180, 137 P.3d 825 (2006))). We again rejected

it, observing that, time and time again, we have resisted calls to water down the

constitutional right to a public trial in the interest of expediency or based on the

perception that a closure was inconsequential. Id?

       Today's lead opinion has found no new arguments to demonstrate that our

public trial precedent is incorrect and harmful. The lead opinion does not even

attempt to offer reasons and simply rejects what it characterizes as ''Shearer's dicta

foreclosing the possibility of de minimis violations altogether." Lead op. at 31. This

is not even an accurate description of our precedent, which fully recognizes that not



       ^ The lead opinion suggests that none of our prior cases address the situation
presented here because they all involved "the determination offacts behind closed doors."
Lead opinion at 24-25. Contrary to the lead opinion's insistence that "[t]his distinction
matters to the public trial analysis," id. at 25, we have rejected drawing a line between legal
or ministerial issues on the one side and the resolution of disputed facts on the other. In
State V. Siiblett, a clear majority of this court recognized that such a distinction "will not
adequately serve to protect defendants' and the public's right to an open trial." 176 Wn.2d
58, 72, 292 P.3d 715 (2012) (lead opinion of Johnson, J.); see also id. at 138 ("The
legal/factual distinction is simply out of place in the context of the right to a public trial")
(Stephens, J., concurring).


                                              -5-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



every court proceeding implicates the public trial right or constitutes a closure.

Shearer made this clear, though the majority misreads our discussion in that case of

when the public trial right attaches as somehow supporting its adoption ofa triviality

exception. See id. at 26; of. Shearer, 181 Wn.2d at 573 ("'[N]ot every interaction

between the court, counsel, and defendants will implicate the right to a public trial,

or constitute a closure if closed to the public.'"(quoting State v. Sublett, 176 Wn.2d

58, 71, 292 P.3d 715 (2012)(plurality opinion) (adopting "experience and logic"

test))).

       Justice Yu's concurrence proffers reasons, but they are not new; as the

concurrence acknowledges, prior dissents have argued, unsuccessfully, that our

public trial jurisprudence is incorrect and harmful. See concurrence at 6(citing State

V. Njonge, 181 Wn.2d 546, 563, 334 P.3d 1068 (2014)(Gonzalez, J., concurring);

State V. Smith, 181 Wn.2d 508, 533-38, 334 P.3d 1049 (2014) (Wiggins, J.,

concurring); Sublett, 176 Wn.2d at 114-28(Madsen,C.J., concurring);Paumier, 176

Wn.2d at 43-57 (Wiggins, J., dissenting)). The concurrence repeats the refrain that

our precedent is incorrect because it wrongly equates the de minimis standard with

proof of prejudice or harm. See id. at 3. Adherents to the standard insist that

evaluating whether a court closure is too trivial to undermine the "values" of the




                                             -6-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



public trial right is not, in fact, a harmless error inquiry. See id. at 3-5; Peterson v.

Williams, 85 F.3d 39,42(2d Cir.), cert, denied, 519 U.S. 878 (1996). The apparent

distinction is that a prejudice analysis considers the defendant's ultimate guilt or

innocence, while a triviality analysis considers only whether the defendant was

deprived of the protections conferred by the public trial right. Concurrence at 3-5.

This distinction is semantic at best. While it is true that the triviality doctrine does

not invoke that aspect of harmless error review that considers trial error harmless in

the face of overwhelming untainted evidence of guilt, that is not the sum total of

harmlessness review. Fully understood, such review necessarily asks whether the

defendant suffered a cognizable harm from deprivation ofthe constitutional right at

issue. As one commentator has aptly observed, requiring defendants to demonstrate

that a closure tangibly subverted the-core values of the public trial right amounts to

a harmless error review that is inconsistent with controlling Sixth Amendment

precedent:

              The triviality doctrine also approaches harmless error analysis,
       requiring more of defendants than Waller and Presley allow. . . . Although
       these courts [that embrace the de minimis standard] have been careful to
       distinguish this standard from harmless error analysis, the test still demands
       much more of defendants than the Supreme Court has deemed reasonable
       when dealing with the intangible benefits of structural error rights. A
       defendant in a triviality jurisdiction does not have to show a reasonable
       possibility that the outcome of the trial would have been different (i.e.,
       prejudice), but he does have to show some kind ofspecific injury manifested


                                             -7-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



       through the undermining of one of four chosen Sixth Amendment values. If
       he cannot, then the closure was trivial—^in other words, harmless. While
       these courts do not require a showing of prejudice, they do require that
       defendants show that the closure was not harmless.


Kristin Saetveit, Close Calls: Defining Courtroom Closures Under the Sixth

Amendment,68 Stan.L.Rev.897,924-25(2016)(footnote omitted). We have been

correct—^until today—^to consistently reject the de minimis doctrine on this basis.

       Justice Yu's concurrence also argues that our public trial precedent is harmful

principally because it requires us to reverse Schierman's conviction and order a new

trial. See concurrence at 6-7. That the seemingly unworthy, as well as the worthy,

may reap the benefit of the law is no reason to find it harmful. Moreover, Justice

Yu adheres to precedent classifying public trial violations as structural error, even

when an unlawful closure might not render a trial fundamentally unfair. See id. at 4

(quoting Weaver y. Massachusetts, 582 U.S.               , 137 S. Ct. 1899, 1910, 198 L. Ed.

2d 420 (2017)). Given the clear message—^not called into question by today's

majority—^that trial courts must engage in the analysis under Waller and State v.

Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995) before considering any closure, I

am baffled that the concurrence considers our "rigid" adherence to this analysis

harmful. Concurrence at 5. It seems to me that the real harm will come from sending

mixed messages, as today's majority does. Trial judges will understandably be



                                             -8-
State V. Schierman (Conner Michael),         84614-6
(Stephens, J., dissenting in part, concurring in part)



confused by the message to maintain open courtrooms unless a closure is justified

under the proper analysis, yet to go ahead and close a proceeding when it appears

"nothing of significance" will happen. Gibbons v. Savage, 555 F.3d 112, 121 (2d

Cir. 2009) (holding closed portion of voir dire violated Sixth Amendment but

refusing to reverse based on triviality doctrine because "nothing of significance

happened during the part of the session that took place in the courtroom")"^. The

surest way to incentivize trial courts to sedulously protect public trial rights is to

make it count when they fall short. See Saetveit, supra, at 931 ("Appellate courts

are bending over backwards to avoid reversal, when, in actuality, retrials would

encourage more consistent application of Waller's test at the trial level. That,in turn,

would reduce the frequency of these appeals and reversals, as trial judges would

more often avoid violating the right in the first place. A fuller conception of Waller's




        The Second Circuit was the first to embrace the triviality or de minimis exception.
See Peterson, 85 F.3d 39. In Gibbons, the court concluded that nothing of significance
happened during an aftemoon of voir dire in which the public, including the defendant's
mother, were excluded from the courtroom, in part because individual jurors were being
questioned privately in a room adjacent to the courtroom during that time. Id. at 114, 121.
Of course, under subsequent case law, the private questioning ofjurors outside the open
courtroom, in the absence of a demonstrated need under the Waller or Bone-Club analysis,
is itself an unlawful closure. See In re Pers. Restraint ofOrange, 152 Wn.2d795,100P.3d
291 (2004). It is therefore ironic that the court in Gibbons relied on this separate closure
(which it ex ante deemedjustified) as the reason nothing significant took place in the closed
courtroom.



                                             -9-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



test would thus lead to a more unified doctrine, stronger protection of the right and

more up-front consideration of countervailing concerns in particular cases."

(footnote omitted)).

       In sum, our public trial jurisprudence is neither incorrect nor harmful, and

there is no call to revisit our precedent in this case. That a bare majority ofthis court

now prefers the triviality standard we have, time and again, rejected, is not a

sufficient basis to adopt that standard today. Not only is a course change

unwarranted, but as explained below, it is also unwise.

   II. The Triviality or De Minimis Doctrine Offers No Clear Guidance for Courts,
       Stands in Tension with Controlling United States Supreme Court Precedent,
       and Produces Unjust and Inconsistent Results

       Neither the lead opinion nor Justice Yu's concurrence tells us much about how

the triviality or de minimis doctrine works in practice. Examination of some cases

invoking the exception sheds light on its reach. The doctrine purports to isolate the

tangible values of the public trial right, and then asks the defendant to make a fact-

based showing that they were harmed.^ For example, since one of the values is to


       ^ Based on Peterson, most courts number the values of a public trial at four, citing
the passage in Waller extolling the importance of open courts. See, e.g.,Peterson, 85 F.3d
at 43 (citing Waller, 467 U.S. at 46-47 and listing as nonexhaustive the values of (1)
ensuring a fair trial,(2)reminding the prosecutor and judge of their responsibilities to the
accused and the importance of their role,(3) encouraging witnesses to come forward, and
(4) discouraging perjury). This reflects a reductionist reading of Waller, which does not


                                            -10-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



encourage honest testimony, a triviality analysis asks whether any testimony took

place during closed proceedings. See, e.g., Gibbons,555 F.3d at 121 (holding values

of encouraging witnesses to come forward and discouraging perjury were not

implicated by closed voir dire because no witnesses testified). It also looks at the

length of the closure, when it occurred (for example, during voir dire or midtrial),

and whether it was inadvertent. See, e.g., Peterson, 85 F.3d at 41 (finding error

trivial when bailiff inadvertently kept courtroom locked during 15-20 minutes of

witness's testimony); State v. Brown, 815 N.W.2d 609 (Minn. 2012)(finding error

trivial when judge locked courtroom during reading ofjury instructions in order to

keep the jury attentive).

       Not surprisingly, courts have gone in various directions applying the doctrine.

The same closure has been found trivial by one court, but reversible in the absence

ofa Waller analysis by another. Compare Peterson,85 F.3d at 43(applying triviality

standard to courtroom closure during witness testimony), with Tinsley v. United




purport to reduce the value of openness to a meager list, but more broadly explains that
'"judges, lawyers, witnesses, and jurors will perform their respective functions more
responsibly in an open court than in secret proceedings.'" 467 U.S. at 46 n.4(quoting Estes
V. Texas, 381 U.S. 532, 588, 855 S. Ct. 1628, 14 L. Ed. 2d 543 (1965) (Harlan, J.,
concurring)). Indeed, Waller suggests no list is possible, as "the benefits of a public trial
are frequently intangible, difficult to prove, or a matter ofchance,[yet] the Framers plainly
thought them nonetheless real." Id. at 49 n.9.

                                            -11-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



States, 868 A.2d 867, 871, 875 (D.C. 2005)(requiring full Waller test to examine

closure of courtroom during witness testimony). The Ninth Circuit has deemed a

closure trivial based on the conclusion that "questioning the jurors to determine

whether they felt safe is an administrative jury problem" with "no bearing on

Ivester's ultimate guilt or innocence," confirming the blurry line between this

doctrine and harmless error review. United States v. Ivester, 316 F.3d 955,960(9th

Cir. 2003). Another court has invoked the doctrine without specific reliance on any

of the identified values of a public trial, based simply on the conclusion that the

closed proceeding was, overall, fair. See People v. Vaughn,491 Mich. 642,668-69,

821 N.W.2d 288 (2012) (referencing Gibbons to conclude that "[bjecause the

closure of the courtroom was limited to a vigorous voir dire process that ultimately

yielded a jury that satisfied both parties, we cannot conclude that the closure

'seriously affected the fairness, integrity, or public reputation of judicial

proceedings'" (quoting People v. Carines, 460 Mich. 750, 774, 597 N.W.2d 130

(1999))).

       Over time, the triviality or de minimis exception has moved far beyond its

initial application to cases of partial closures, such as the exclusion of a particular

individual, or inadvertence in failing to unlock the courtroom door. See United




                                            -12-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



States V. Gupta, 650 F.3d 863, 874(2d Cir. 2011)(Gupta I)(Parker, J., dissenting)

(identifying 18 cases applying triviality exception to partial or inadvertent closures)),

opinion vacated and superseded, 699 F.3d 682 (2d Cir. 2011)(Gupta II). Courts

have even disagreed on whether key factors such as inadvertence are actually

important to deem a closure trivial, or instead "constitutionally irrelevant" to the

analysis. Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004); of. United States v.

Al-Smadi, 15 F.3d 153, 154(10th Cir. 1994)(holding "[t]he denial of a defendant's

Sixth Amendment right to a public trial requires some affirmative act by the trial

court meant to exclude persons from the courtroom").

       The Gupta I case perfectly illustrates the unpredictability of a triviality

analysis. In its 2011 opinion, the Second Circuit panel applied its precedent from

Peterson and Gibbons to conclude that closure of the entire voir dire was a trivial

error because Gupta had not shown how any ofthe relevant Sixth Amendment values

were implicated. Gupta I,650 F.3d at 868-69 & n.3(quoting Gibbons that'"nothing

of significance happened'" during the closure, as "neither Gupta nor the dissent has

identified any specific events which occurred during voir dire here that are

distinguishable from Gibbons, and which might, as a consequence, suggest that the

proceedings were unfair or that the prosecutor and judge were unaware of their




                                            -13-
State V. Schierman (Conner Michael),^o. 84614-6
(Stephens, J., dissenting in part, concurring in part)



responsibility to the accused and the importance of their functions—-i.e., that the

proceedings subverted the two relevant values underlying the public trial

guarantee"). Following a petition for certiorari to the United States Supreme Court

and rehearing En Banc in the Second Circuit, the panel vacated its opinion and

reversed course. See Gupta II, 699 F.3d at 682 n.*. In Gupta II, the panel found the

conclusion directly opposite its prior holding to be obvious: "Whatever the outer

boundaries of our 'triviality standard' may be (and we see no reason to define these

boundaries in the present context), a trial court's intentional, unjustified closure of a

courtroom during the entirety of voir dire cannot be deemed 'trivial.'" Id. at 689.

       Beyond being rudderless, the triviality standard demands of a defendant proof

that will generally be unavailable. As noted, it places upon the defense the burden

ofshowing that an unlawful closure in fact undermined some or all ofthe core values

ofthe public trial right. See Peterson, 85 F.3d at 42; concurrence at 8. This requires

evidence, which may not be available when a closure is unaccompanied by a

transcript or other record. In rejecting application of a harmless error standard to

public trial error, the United States Supreme Court in Waller recognized that "'it

would be difficult to envisage a case in which [the defendant] would have evidence

available of specific injury.'" 467 U.S. at 49 n.9 (quoting United States ex rel.




                                            -14-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



Bennett v. Riindle, 419 F.2d 599, 608 (3d Cir. 1969)). Critics have thus recognized

that the triviality test encounters the same difficulty as harmless error review and is

in tension with Waller. See Zach Cronen, Note, Criminal Law: Behind Closed

Doors: Expanding the Triviality Doctrine to Intentional Closures—State v. Brown,

40 Wm. Mitchell L. Rev. 252, 279 (2013)("By looking for a tangible piece of

evidence to weigh for or against a trivial closure, courts are inching closer to a

harmless error analysis."); Recent Case, Criminal Law-—Sixth Amendment—Second

Circuit Affirms Conviction Despite Closure to the Public ofa Voir Dire—^United

States V. Gupta, 650F.3d863(2d Cir. 2011), 125 Harv.L.Rev. 1072,1075(2012)

{('Gupta [I] renders the triviality doctrine akin to the harmless error doctrine and thus

comes into tension with Waller.").

       The purpose of this dissent is not to catalogue the boundless possibilities the

triviality doctrine offers for appellate courts to avoid reversing convictions marred

by public trial error. Even this small sampling of case law confirms that the doctrine

offers little guidance, as no single consideration is dispositive or any public trial

value sufficient in and ofitself. See Peterson, 85 F.3d at 44(refusing to say how the

triviality exception may play out beyond the facts ofthe case); Gupta II, 699 F.3d at

689 (refusing to define doctrine's boundaries); concurrence at 7-8 (recognizing the



                                            -15-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



de minimis test "uses a case-by-case, backward-looking approach"). In sum, the

triviality doctrine operates as an ad hoc, post hoc, sniff test. Its sole purpose is to

allow appellate courts to excuse public trial violations when the trial, on the whole,

seems fair enough.

       Albeit subtly, the majority in this case recognizes that the United States

Supreme Court has never embraced the triviality doctrine as consistent with its

public trial jurisprudence under the Sixth Amendment. See concurrence at 5 n.2

(stating the inverse proposition: "The Supreme Court ofthe United States has never

rejected the possibility of a de minimis closure"). The recent decision in Weaver,

which recognized the petitioner must show prejudice to establish an ineffective

assistance of counsel claim in a collateral attack on a conviction, does not

foreshadow the Supreme Court's eventual adoption of a triviality test. While the

court there rejected the argument that an unjustified closure necessarily renders a

trial "fundamentally unfair," this was in the context of rejecting an automatic

prejudice rule for purposes of an ineffective assistance of counsel claim. See

Weaver, 137 S. Ct. at 1911. The court in Weaver adhered to its precedents in Waller

and Presley, reaffirming that although courtroom closures may be justified in some

circumstances, it is "'still incumbent upon' the trial court 'to consider all reasonable




                                            -16-
State V. Schierman (Conner Michael),^o. 84614-6
(Stephens, J., dissenting in part, concurring in part)



alternatives to closure [under the Waller test].'" Id. at 1909 (quoting Presley, 588

U.S. at 215-16). As noted, critics have recognized the obvious tension between

adherence to the Waller test and application ofa triviality analysis, in that the former

requires a preclosure examination ofjustified reasons to close a proceeding, while

the latter eschews this requirement to excuse a closure after the fact.

       Furthermore, application of a triviality test is inconsistent with United States

Supreme Court precedent that refuses to reduce specific Sixth Amendment

protections to a generalized "fairness" inquiry; the Court has warned that this

approach

       in effect reads the Sixth Amendment as a more detailed version of the Due
       Process Clause—and then proceeds to give no effect to the details. It is true
       enough that the purpose ofthe rights set forth in that Amendment is to ensure
       a fair trial; but it does not follow that the rights can be disregarded so long as
       the trial is, on the whole, fair. What the Government urges upon us here is
       what was urged upon us (successfully, at one time,see Ohio v. Roberts, 448
       U.S. 56,100 S. Ct. 2531,65 L. Ed. 2d 597[](1980)) with regard to the Sixth
       Amendment's right of confrontation—a line of reasoning that "abstracts
       from the right to its purposes, and then eliminates the right." Maryland v.
       Craig, 497 U.S. 836, 862[, 110 S. Ct. 3157, 111 L. Ed. 2d 666] (1990)
       (Scalia, J., dissenting).

United States v. Gonzalez-Lopez, 548 U.S. 140, 145, 126 S. Ct. 2557, 165 L. Ed. 2d

409(2006).

       Today's majority justifies its decision to adopt the triviality exception in the

interest ofdoing justice (i.e., not reversing otherwise valid convictions) and avoiding


                                             -17-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



the rigid structural error rule. What it fails to appreciate, however, is that the

structural error analysis compelled under the Sixth Amendment by Waller, and under

article I, section 22 of our state constitution by Bone-Club, is not a rigid rule. As

explained below, these cases fully allow courts to meaningfully assess when it is

possible to close proceedings consistent with the constitutional guaranty of a public

trial. But, unlike the triviality doctrine, they provide a principled analysis that

safeguards the public trial right.

   III. The Weil-Established Standards for Evaluating Closures under Waller and
        Bone-Club Provide the Flexibility Courts Need without Diminishing the
        Public Trial Right

       The majority's motivation for embracing the triviality standard appears to be

a desire to avoid a rigid, inflexible rule of automatic reversal in the face of

inconsequential closures. There is no such rule. Behind the seemingly draconian

label of "structural error" is the real public trial doctrine that has developed since

Waller. This doctrine is flexible and takes into account the competing values that

face a trial court in deciding whether to close a particular proceeding.

       Waller and Bone-Club recognize that the defendant's right to a public trial is

not absolute but may give way to other values, including the right to a fair trial or




                                            -18-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)



the interest in inhibiting disclosure of sensitive information. See Waller 467 U.S. at

45. This court in Bone-Cliib set forth the necessary analysis:

              "1. The proponent of closure or sealing must make some showing [of
       a compelling interest], and where that need is based on a right other than an
       accused's right to a fair trial, the proponent must show a 'serious and
       imminent threat' to that right.
              "2. Anyone present when the closure motion is made must be given
       an opportunity to object to the closure.
              "3. The proposed method for curtailing open access must be the least
       restrictive means available for protecting the threatened interests.
              "4. The court must weigh the competing interests of the proponent of
       closure and the public.
              "5. The order must be no broader in its application or duration than
       necessary to serve its purpose."

128 Wn.2d at 258-59 (alteration in original)(quoting Allied Daily Newspapers of

Wash. V. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)); see also

Waller, 467 U.S. at 48-49(applying similar analysis).

       The Bone-Club analysis provides a sound rule of decision for trial courts to

determine when a closure is justified—an analysis that cannot be made after the fact.

See 128 Wn.2d at 261. The majority's adoption ofan ex ante triviality standard only

muddies the waters by suggesting to trial courts that in addition to engaging in a

Bone-Club analysis, they should consider whether an appellate court will deem a

closure made without such analysis too trivial to warrant reversal in any event. Such

a message to the trial bench is entirely unhelpful at this juncture in our public trial



                                            -19-
State V. Schierman (Conner Michael),         84614-6
(Stephens, J., dissenting in part, concurring in part)



jurisprudence. By now, every trial judge certainly knows the required analysis, so

the need to have a backward-looking "escape valve" is less compelling than it may

have seemed in 1996 when the second circuit first announced the triviality exception

to avoid reversal in the face of a brief, inadvertent closure.

       We do a disservice to our trial beneh when we keep throwing out new ideas.

We should apply our precedent with a steady hand rather than making every appeal

of a public trial issue a post hoc attempt to rationalize an unlawful closure that, in

many cases, could have been lawfully made upon full consideration of the relevant

factors under Waller and Bone-Club.

                                      CONCLUSION


       The court should adhere to settled precedent under both the Sixth Amendment

and article I, section 22 of the Washington Constitution, and apply the

eonstitutionally required remedy for the trial court's violation ofSchierman's public

trial right: reversal of his conviction and remand for a new trial.

       Because that is not the decision ofthe eourt, however,Ijoin in that portion of

Justice Yu's eoncurring opinion upholding Schierman's capital sentence upon

review ofthe required considerations under RCW 10.95.130.




                                             -20-
State V. Schierman (Conner Michael), No. 84614-6
(Stephens, J., dissenting in part, concurring in part)




                                                         y




                                             -21-
State V. Schierman, No. 84614-6
Fairhurst, C.J., dissenting




                                   No. 84614-6


      FAIRHURST, C.J. (dissenting)—I agree with the dissent on the guilt phase

issue and would reverse. However, because a majority ofthe court would affirm the

guilt phase, the court must perform its statutory death sentence review. I agree with

Justice   Gordon   McCloud's      opinion that the     penalty is impermissibly

disproportionate under RCW 10.95.130(2)(b).
State V. Schierman, No. 84614-6
Fairhurst, C.J., dissenting
