                                                                                                         FILED
                                                                                                COLIRT 0F APPEALS
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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

Personal Restraint Petition of                                                No. 42318 9 II
                                                                                        - -


MARVIN SIDES FAIRCLOTH,

                                      Petitioner.


                                                                          PUBLISHED OPINION




          WORSWICK, C. . — Marvin Sides Faircloth killed his father, Frank Faircloth, and was
                     J


convicted of first degree murder in 1996. We affirmed his conviction in 1998 and dismissed his
first   personal   restraint   petition (PRP) in        2005.   Marvin then filed this PRP, alleging that his

recently recovered memories are newly discovered evidence entitling him to a new trial.

Because Marvin's recovered memories would not probably change the result of his trial, they are

not newly discovered evidence. We deny Marvin's petition because it is time barred.




1 Because Marvin and Frank Faircloth share the same last name, we refer to them by their first
names     for   clarity, intending   no   disrespect.
No.42318 9 II
         - -



                                               FACTS


         Marvin lived with Frank, his adopted father, and two other foster children, Keith Murphy

and Bryce West. On February 26, 1995, Frank caught Marvin and Murphy .huffing"paint and
                                                                       "

told them that they would have to move out of the house the next day. Frank left the room, went

downstairs, and fell asleep. Shortly after Frank left their room, Marvin and Murphy decided to

kill him. Murphy grabbed a Jack Daniels bottle, Marvin grabbed a spear type object, and the
                                                                       -

two headed downstairs to Frank's bedroom.


         Over a 25-
                  minute period of time, Frank fought for his life by running from room to room

while Murphy and Marvin disconnected the telephone and attacked him with knives, the whiskey

bottle, a hammer, a long pole with a spike on the end, and a table leg. Over an extended period

of time, West heard banging and crashing coming from downstairs, and he heard Frank

repeatedly screaming for him to call the police. During the attack, Marvin stopped, went up to

West's room, and smoked       a   cigarette. Marvin threatened to kill West if West left his room.

After Marvin left West's room, West heard more banging and crashing, and Frank continued

screaming. Finally, the screaming stopped and Marvin made West come downstairs to help

clean up the mess. While West was cleaning up, Marvin and Murphy took Frank's body out to

the woods, knocked out the teeth, and burned the body. After Marvin and Murphy left the house,

West went down the street and called the police.

         The State charged Marvin with first degree murder. Before trial, he clearly represented to

the court that he was pursuing a diminished capacity defense and that he was not pursuing self-

defense based on battered child syndrome because self defense was not supported by the facts.
                                                      -

At   trial,Marvin's expert testified that Marvin had   a   long history of being the   victim of abuse that
No.42318 9 II
         - -



resulted in posttraumatic stress disorder, which prevented him from being able to premeditate the

murder. There was no evidence of any abuse by Frank introduced at trial.

       The jury convicted Marvin of first degree murder, and the trial court imposed an

exceptional sentence. We affirmed Marvin's conviction and denied his previous PRP. Marvin

filed this PRP alleging that he recently recovered memories of Frank's abuse which are newly

discovered evidence entitling him to a new trial.
                                          ANALYSIS


       The State argues that Marvin's petition is time barred under RCW 10. 3.which
                                                                        090,
                                                                          7

requires criminal defendants to file collateral attacks against their judgment and sentence within

one year of their judgment becoming final. Marvin argues that his petition is not time barred
because RCW 10. 3.
            100(
               1 provides an exception for newly discovered evidence. Under RCW
               7 )

100(
10. 3.Marvin must show that his recovered memory meets the five requirements of
   1
   7 ),




2 We assume without deciding that Marvin's recovered memory is the type of evidence that we
can consider for the purposes of overcoming the time bar under the exception in RCW
100(
10. 3.provided that the recovered memories meet the five requirements for newly
       1
       7 ),
discovered evidence. See RCW 4.6.tolling statute of limitations until victims of childhood
                                 340 (1
sexual abuse discovered the act or injury from the act).
3
  The State also argues that Marvin's petition should be dismissed as a mixed petition because
Marvin raised an ineffective assistance of counsel claim in his reply to the State's original
response to his CrR 7. motion. In re Pers. Restraint of Hankerson, 149 Wn. d 695, 700, 72
                      8                                                      2
P. d 703 (2003).But the trial court certified the CrR 7. motion ( hich is limited to the newly
   3                                                     8          w
discovered evidence claim) to this court as a PRP and because we do not consider additional
issues or arguments raised in a reply brief or supplemental briefing, we do not consider Marvin's
ineffective assistance claim as part of this PRP. CrR 7. (
                                                        c)(  2);
                                                             8 State v. Wilson, 162 Wn. App.
409, 417 n. , 253 P. d 1143, review denied, 173 Wn. d 1006 (2011). Therefore, we do not
          5        3                              2
consider Marvin's petition a mixed petition.

                                                3
No. 42318 9 II
          - -



newly discovered       evidence outlined below.   Because Marvin cannot meet the requirements to

show that his recovered memories are newly discovered evidence,his petition is time barred.
        There are five requirements that must be met for newly discovered evidence to warrant a

new trial. State v. Eder, 78 Wn. App. 352, 357, 899 P. d 810 (1995).The evidence must ( )
                                                     2                                1 be

such that it would probably change the result of the trial, 2) discovered after the trial, 3)
                                                            ( be                           ( not

have been discoverable before the trial through the exercise of due diligence, 4) material and
                                                                               ( be

admissible, and (5) be cumulative or impeaching. Eder, 78 Wn. App. at 357. Absence of
                   not

any of the five factors is sufficient to   deny   a new   trial. Eder, 78 Wn. App. at 357. Here,


Marvin's first recovered memory was not discovered after trial, but was known to him during

trial; therefore, it   cannot be considered   newly discovered   evidence.   And Marvin's second


recovered memory of an incident of rape would not probably change the result of the trial,thus it

does not meet the first requirement for newly discovered evidence.

        Marvin reports two separate recovered memories. Marvin's first recovered memory is of

an episode of Frank Faircloth manually assaulting his genitals while Marvin lay asleep in his
bed in Frank Faircloth's home." Decl. of Dr. Brown, p. 4, Ex. A to Mot. for Relief From J.,

Pers. Restraint Petition ofFaircloth, No. 42318 9 II Wash. Ct. App.,
                                                - - (              Jan. 12, 2011). Marvin's


4
 We note that a showing that the recovered memories meet the five criteria for newly discovered
evidence does not, alone, entitle Marvin to a new trial. To overcome the time bar, Marvin would
also have to show that he acted with reasonable            diligence in bringing his   PR- .
                                                                                         P     RCW
100(
10. 3. Furthermore, overcoming the time bar is not sufficient for us to grant Marvin a
       1
       7 ).
new trial. After overcoming the time bar, Marvin must meet the high standard required for us to
grant relief in a collateral attack to a conviction. In re Pers. Restraint of Finstad, 177 Wn. d
                                                                                             2
501, 506, 301 P. d 450 (2013).Typically, this means a petitioner must show either that he or
               3              "
she was actually and substantially prejudiced by constitutional error or that,his or her trial
suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a
complete miscarriage of justice."Finstad, 177 Wn. d at 506. However, because Marvin cannot
                                                   2
meet the criteria for newly discovered evidence, we do not reach these subsequent issues.

                                                   El
No. 42318 9 II
          - -



expert, Dr. Laura Brown, reports that Marvin first began remembering this incident after

approximately a week in county jail; however, Marvin did not report the memory in 1995

because he felt intensely ashamed and afraid of being labeled gay."Decl. of Dr. Brown, p. 4,

supra. Marvin's memory of this assault does not meet the requirements for newly discovered

evidence because it was not discovered after the trial. According to his expert, Marvin recovered

the memory well before trial, during the first week that he was incarcerated after the murder

which was approximately a year before Marvin's trial began in February 1996. Because the

memory itself is the evidence that Marvin claims is newly discovered, we consider it

discovered"at the time he remembered it,not the time he     reported   it.   Accordingly, Marvin's

first recovered memory regarding the incident of molestation was not discovered after trial and,

therefore, is not newly discovered evidence that warrants a new trial. See Eder, 78 Wn. App. at

357.


       Marvin's second recovered memory is of an incident "in which Frank Faircloth anally

raped him while Marvin was under the influence of substances." Decl. of Dr. Brown, p. 4 5,
                                                                                        -

supra. According to Marvin,the rape occurred about five months before the murder. Dr.Brown

recounts Marvin's recollection of the memory:

             Marvin has been able to recall that, on that occasion, during a period when
       he was drunk as well as intoxicated from paint fumes, he approached Frank
       Faircloth and told him to do with him what he wanted. This statement occurred
       after what Marvin now believes to have been a period of many months of Frank
       pressuring him to make himself sexually available to Frank. Marvin reported that
       he then lost consciousness and/ r recollection for
                                     o                      period of time. His next
                                                            a

       recollection of what occurred during that episode is of Frank Faircloth anally
       raping him, lying on top of him, Marvin feeling intense pain in his anus. He then
       has no further recollection of that episode until finding himself waking on the
       couch in the living room of the house some time later in the night, in pain and
       bleeding rectally.

Decl. of Brown, p.5,supra.

                                                5
No. 42318 9 II
          - -



       Marvin first began recovering the memory of the rape in 2000, well after his conviction.

Although disturbing, Marvin's recovered memory would not probably have changed the result of

Marvin's trial. Therefore, it does not meet the requirement for newly discovered evidence.

       Marvin presents two arguments to support his contention that introducing his recovered

memory would have    probably changed       the result of trial.     First, he argues that it would have

provided additional support for his diminished capacity defense based on posttraumatic stress

disorder. Second, Marvin argues that he would have been able to assert self -
                                                                            defense based on

battered child syndrome. Neither argument supports the contention that the newly discovered

evidence would probably have changed the result of trial.

       Newly discovered evidence must be such that it will probably change the result of trial.

Eder, 78 Wn. App.    at 357.     When determining whether the newly discovered evidence will

probably change the result of trial,we do not consider what effect the newly discovered evidence

may have on the defendant's case, but rather we weigh the newly discovered evidence against

the strength of the State's evidence. See State v. Peele, 67 Wn. d 724, 732, 409 P. d 663 (1966).
                                                               2                  2

When the State has presented "convincing evidence of guilt and the defendant little or no

evidence of innocence, a   new   trial should not be   granted ...   upon the offer of any new evidence

unless it appears that the newly discovered evidence is of such significance and cogency that it

will probably change the result of the trial."
                                             Peele, 67 Wn. d at 732.
                                                         2

       In light of the strength of the State's evidence, Marvin's argument that his recovered

memory would have prevented the jury from finding premeditation and, thus, resulted in

conviction for the lesser offense of second degree murder fails.              Here, the State presented

evidence that Marvin tortured Frank with multiple weapons for more than 20 minutes. The State

also presented evidence that while Frank was still alive, Faircloth stopped the attack, went
                                                   M
No. 42318 9 II
          - -



upstairs to smoke a cigarette, and warned West not to contact the police. "[
                                                                          P] remeditation is `the

deliberate formation of and 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. "'   State v. Finch, 137 Wn. d 792, 831, 975 P. d 967 (1999)
                                                             2                  2

internal quotation marks omitted) quoting State v. Pirtle, 127 Wn. d 628, 644, 904 P. d 245
                                  (                              2                  2

1995)). State's evidence proving premeditation is overwhelming. Accordingly, Marvin's
      The

recovered memory is not "of such significance and cogency" that it would probably result in

conviction for second degree murder rather than first degree murder.

         Second, Marvin argues that his recovered memory would have supported a self -
                                                                                     defense

claim based on battered child syndrome. Even assuming that one incident of rape would support

presenting a self -
                  defense claim based on battered child syndrome, such a claim would not

probably change the result of the trials Evidence of abuse and battered child syndrome can be
admitted to support a claim of self defense. State v. Janes, 121 Wn. d 220, 238 41, 850 P. d
                                    -                              2            -        2

495 (1993).However, t] the defendant is a victim of a battering relationship is not alone
                    "'[ hat

                                                defense to
sufficient evidence to submit the issue of self -            a   jury. "' Janes, 121 Wn. d at 240 41
                                                                                       2          -

quoting State v. Walker, 40 Wn. App. 658, 665, 700 P. d 1168 (1985)). defense requires
                                                    2               Self-

that the defendant reasonably perceived imminent danger of great personal injury. Janes, 121

Wn. d at 236; RCW 9A. 6.
  2               050.
                    1                  Generally, "[ elf-
                                                  s] defense finds its basis in necessity and

5
 Battered child syndrome is based on "a prolonged pattern of physical, emotional and sexual
abuse." State v. Janes, 121 Wn. d 220, 233, 850 P. d 495 (1993). Evidence of a prolonged
                              2                   2
battering relationship with the victim is necessary to claim self -
                                                                  defense related to battered child
syndrome. State v. Riker, 123 Wn. d 351, 362 63, 869 P. d 43 ( 1994) excluding expert
                                2            -        2              (
testimony extending battered woman syndrome principles outside of the relationship with the
batterer because it has not gained acceptance in the scientific community). But because
Marvin's proposed self - defense claim would not probably change the result of the trial, we do
not reach the question of whether the evidence would be admissible. Eder, 78 Wn. App. at 357.

                                                 7
No. 42318 9 II
          - -



generally ends with the cessation of the exigent circumstance which gave rise to the defensive

act."
    Janes, 121 Wn. d at 237 (citing United States v. Peterson, 483 F.d 1222, 1229 (D. .Cir.
                 2                                                  2               C

1973)).

        Here, the State presented evidence that prior to the murder, Frank caught Marvin and

Murphy huffing paint and told them they would have to leave the house. Then, Frank left the

room, went downstairs, and went to sleep. In short, Frank did not demonstrate any threatening

behavior at the time of the murder. Because Frank told Marvin he would have to leave the


house, Marvin      was    being removed from      any   subsequent   threat of violence and abuse.      In


addition, Marvin's recovered memory established one episode of abuse that occurred five

months prior to the murder; Marvin provided no evidence that Frank's statement to Marvin

telling him to leave the house was part of a pattern. that would imply an imminent threat to
Marvin. See Janes, 121 Wn. d at 237. Therefore, the State presented convincing evidence that
                         2

Marvin did not reasonably perceive an imminent threat of great bodily harm from the victim at

the time of the murder. Janes, 121 Wn. d at 236 37.
                                     2          -

          In addition, Marvin and Murphy continued to attack Frank after he was incapacitated, .

lying   on   the floor   screaming   and   calling for help. Any possible threat that Frank posed to

Marvin ended at that time, and Marvin was no longer acting out of necessity. Janes, 121 Wn. d
                                                                                          2

at 237.   Accordingly, Marvin's      recovered memory does not establish     a        defense claim that is
                                                                                 self -
No.42318 9 II
         - -



sufficiently convincing to overcome the State's evidence that there was no imminent threat at the

time of the murder.

       Due to the overwhelming strength of the State's case supporting first degree murder,

Marvin's recovered memory is not evidence that would probably change the result of his trial.

Accordingly, Marvin's recovered memory fails to meet one of the required criteria for being

newly discovered evidence that warrants a new trial. Eder, 78 Wn. App. at 357. As a result,

Marvin's petition is time barred and we deny it.



                                                        WORSWICK, C. .
                                                                   J
We concur:



I

HUNT, J.


MAXA,J.




6 We also note that Marvin admits that he could have presented a battered child syndrome
defense at his original trial, even without the recovered memory, but chose not to do so. Marvin
cannot use the newly discovered evidence exception as a guise to present a time barred
ineffective assistance of counsel claim or to get a second opportunity to pursue a trial strategy
which the defendant   originally   abandoned   or   chose not to pursue.   Evidence is not newly
discovered when it strengthens an argument or defense that could have been presented at trial but
was not.
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