    /F I L.E ·,,
           IN CLERKS OFFICE
                                                                      This opinion was filed for record
                                                                      at <j?,'.pp ctro Q .      e '2J   2..0r1.~
-......e COURT, STATE OF~I!9JOM                                               -~
i        DATE    JUN 2 b 20l't
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        IN THE SUPREME COURT OF THE STATE OF WASHINGTON



        In the Matter of the Personal            )                   No. 79761-7
        Restraint of                             )
                                                 )                     En Bane
        DAYVA CROSS,                             )
                                                 )
                       Petitioner.               )         Filed     JUN 2 6 2014
                                                 )




             WIGGINS, J.-ln 2001, Dayva Cross pleaded guilty to the aggravated first

    degree murders of his wife and two of her three daughters.                 A unanimous jury

    sentenced him to death. Cross's direct appeal before this court was unsuccessful.

    State   v.   Cross, 156 Wn.2d 580, 132 P.3d 80 (2006) (Cross). Cross subsequently filed

    a timely personal restraint petition, alleging multiple constitutional errors. The court

    decided Cross's Alford plea issues by separate opinion. In re Pers. Restraint of Cross,

    178 Wn.2d 519, 309 P.3d 1186 (2013) (holding that death sentence could be

    predicated on Alford1 plea). The remaining issues raised by Cross in his personal

    restraint petition are decided herein.

             The core issues before us are (1) whether admission of Cross's custodial

    statements to Officers Greg Silcox and Bonnie Soule and Detective Jim Doyon


    1   North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
No. 79761-7

violated the Fifth Amendment to the United States Constitution; (2) whether there was

cumulative error; (3) whether Cross's attorneys rendered ineffective assistance of

counsel; and (4) whether our death penalty statute is unconstitutional.

        We reject all of Cross's claims and dismiss the personal restraint petition

because Cross has not shown actual and substantial prejudice resulting from any

alleged error or deficient conduct.         We hold that the Miranda 2 violations were

harmless, there was no cumulative error, any deficient performance by counsel was

nonprejudicial, and our death penalty statutes are constitutional.

                                            FACTS

         On March 9, 1999, Cross struck his wife, Anoutchka, in the face during an

argument. The next morning, Anoutchka's 13-year-old daughter, M.B., woke to the

sounds of Cross brutally and repeatedly stabbing her mother and her elder sister, 18-

year-old Salome, to death. Cross then forced his way into the bedroom M.B. shared

with her 15-year-old sister, Amanda, and killed Amanda. Cross kept M. B. confined at

knifepoint for five hours while he drank wine and watched television. M.B. escaped

after he fell asleep. Cross was arrested without incident that afternoon.

         Initially, Cross pleaded not guilty by reason of insanity but subsequently

withdrew his not guilty plea and entered an Alford plea for the first degree aggravated

murders of his wife and two of her three daughters. See Alford, 400 U.S. 25; State v.

Newton, 87 Wn.2d 363, 552 P.2d 682 (1976). The trial judge accepted Cross's plea




2   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                               2
No. 79761-7

after a probing inquiry, which included a competency evaluation at Western State

Hospital and review of extensive argument and evidence.

       The penalty phase of trial followed. The jury heard and considered testimony

from experts, from Cross's family, and from friends and family of his victims and

unanimously found beyond a reasonable doubt that mercy was not warranted. Cross

was sentenced to death. Cross appealed directly to this court; we affirmed Cross's

conviction and his death penalty sentence. Cross, 156 Wn.2d 580. Cross then timely

filed this personal restraint petition.

                  PERSONAL RESTRAINT PETITION STANDARDS

       We are reluctant to disturb a settled judicial decision where the petitioner has

already had an opportunity to appeal to a disinterested judge. See In re Pers. Restraint

of Cook, 114 Wn.2d 802, 809, 792 P.2d 506 (1990). Accordingly, a personal restraint

petitioner must first establish by a preponderance of the evidence that a constitutional

error has resulted in actual and substantial prejudice.           In re Pers. Restraint of

Stockwell, 179 Wn.2d 588, 607, 316 P.3d 1007 (2014); see also In re Pers. Restraint

of/sadore, 151 Wn.2d 294,298-99, 88 P.3d 390 (2004); State v. Sandoval, 171 Wn.2d

163, 168,249 P.3d 1015 (2011).

       For alleged nonconstitutional error, a petitioner must show "a fundamental

defect resulting in a complete miscarriage of justice." In re Pers. Restraint of Elmore,

162 Wn.2d 236, 251, 172 P.3d 335 (2007). These threshold requirements reinforce

the court's interest in finality of the trial process. In re Pers. Restraint of Stockwell, 179

Wn.2d at 596-97. But where the petitioner has not had a prior opportunity for judicial

review, the petitioner need show only that he is restrained under RAP 16.4(b) and that


                                              3
No. 79761-7


the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of Grantham, 168

Wn.2d 204, 212, 227 P.3d 285 (201 0).

         Here, Cross essentially claims four constitutional errors:        (1) improper

admission of custodial statements in violation of his Fifth Amendment privilege against

self-incrimination, (2) cumulative error in violation of the due process clause (U.S.

CONST. amends. V, XIV), (3) ineffective assistance of counsel in violation of his right

to assistance of counsel under the Sixth Amendment to the United States Constitution,

and (4) that his death sentence is cruel and unusual punishment in violation of the

Eighth Amendment to the United States Constitution. 3 Cross has had an opportunity

for prior judicial review of these claims; errors asserted in the petition appear in the

trial court record and were reviewable by our court on his direct appeal. Thus, Cross

must show actual and substantial prejudice resulting from these alleged constitutional

errors. In other words, he must show by a preponderance of the evidence that he was

more likely than not harmed by the errors. See In re Pers. Restraint of Crace, 174

Wn.2d 835, 845, 280 P.3d 1102 (2012).

                                       ANALYSIS

    I.   Cross's Custodial Statements to Officers Silcox and Soule

         Cross argues that admission of his custodial statements to Officers Silcox and

Soule violated the Fifth Amendment to the United States Constitution (no person "shall

be compelled in any criminal case to be a witness against himself ... "). On direct


3 Cross also argues that his death sentence contravenes article I, section 14 of the
Washington Constitution. And, Cross argues, because the death penalty is arbitrarily and
capriciously applied, his death sentence violates his right to due process under the Fifth
Amendment.


                                            4
No. 79761-7

appeal, Cross made a similar claim. Ordinarily, a "petitioner in a personal restraint

petition is prohibited from renewing an issue that was raised and rejected on direct

appeal unless the interests of justice require relitigation." In re Pers. Restraint of

Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004) (footnotes omitted). But, if petitioner's

first attempt to raise an issue does not trigger any judicial consideration of it and there

is no reasonable basis to conclude that the issue's merits were previously heard and

determined, the issue may be raised again. In re Pers. Restraint of Greening, 141

Wn.2d 687, 700, 9 P.3d 206 (2000). Here, Cross assigned error to the admission of

all of his custodial statements on direct appeal, but this court's decision addressed

only Cross's statements to Detective Doyon. Cross, 156 Wn.2d at 619. Thus, Cross

may raise this issue in his petition. We find that it was a violation of Cross's Fifth

Amendment right to admit his custodial statements made to Officers Soule and Silcox.

But we deny Cross's petition because the error was harmless. 4

    A. Relevant Facts 5

        On the afternoon of the murders, officers arrested Cross and placed him in a

patrol car. On the way to the station, Cross was advised of his constitutional rights

pursuant to Miranda, 384 U.S. 436.               Cross acknowledged that he understood his


4 This is not a case in which the court has reframed an issue and then resolved it as reframed. Instead,
the court overlooked an issue raised by the defendant on direct appeal and the issue remains
unresolved. Thus, despite Cross's failure to raise the Fifth Amendment issue in his motion for
reconsideration, we address the issue here and apply the harmless error standard as a matter of our
discretion, noting that this is a death penalty case; our "'duty to search for constitutional error with
painstaking care is never more exacting than it is in a capital case."' Kyles v. Whitley, 514 U.S. 419,
422, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (quoting Burger v. Kemp, 483 U.S. 776, 785, 107 S.
Ct. 3114, 97 L. Ed. 2d 638 (1987)).

5 Thefollowing facts appear in the trial judge's written findings of facts and conclusions of law following
defense counsel's CrR 3.5 motion to suppress the defendant's statements. They are undisputed facts.


                                                    5
No. 79761-7

rights. At the station, Officer Silcox advised Cross of his Miranda rights for a second

time. After acknowledging once more that he understood his rights, Cross stated, "I

don't want to talk about it."     Silcox walked away and then returned to offer Cross a

glass of water.        Taking pity on Cross, Silcox said, "Sometimes we do things we

normally wouldn't do, and we feel bad about it later." Cross did not drink the glass of

water.        Cross then said, "I fucking had it.   How can you feel good about doing

something like this. I can't find a job, they want a thousand dollars in fucking child

support. I fucking had it. And my ex-wife is fucking lucky, because she was next on

the list.''

         Officer Soule was present when Cross stated he did not want to talk about it.

Cross was then moved into a holding cell. Soule approached Cross in the cell and

asked, "Do you want to talk about it?" Cross responded with the same statement-

that he had "fucking had it" with the child support and that his ex-wife was next on the

list. About three and a half hours later, Cross met with his attorney. Because Cross

was classified as a high-security inmate, Cross was escorted to one side of a room

partitioned by glass. He communicated with his att9rney, who sat on the other side of

the glass partition, via a telephone. There was a small opening in the glass partition

above the counter, called the "pass-through slot," to exchange documents.         Once

Cross was inside the room, he was left alone and the door was closed with the officers

stationed outside. The officers could not overhear any conversation between Cross

and his attorney. At some point during the conversation, the attorney signaled to

correction officers that Cross needed to sign some documents. There is a policy that

inmates are not allowed to possess pens, so Officer Rosalind Deede stood by while


                                               6
No. 79761-7


Cross signed the documents and passed them through to his attorney. The attorney

slid a copy back to Cross. At this time, Officer Marshall Coolidge entered the room,

thinking they were getting ready to take Cross back to his cell because the interview

was over. When the documents were passed back through the slot to Cross, Cross

yelled, "I don't need that. I don't give a fuck. The motherfuckers are all dead. I killed

them. My life is over." Both Officers Deede and Coolidge heard the statement. In

addition, the statement was loud enough to be heard outside the closed door.

      On April 6, 2000, before Cross entered his guilty plea, his counsel moved to

suppress all of Cross's custodial statements. But on May 1, 2000, defense counsel

conceded that Cross's tape-recorded statements to Detective Doyon were admissible

under CrR 3.5. 6 Thus, the only issues remaining were whether Cross's statements to

Officers Silcox and Soule, and those heard by Corrections Officers Coolidge and

Deede, were admissible. On September 7, 2000, the judge made findings of facts

and conclusions of law, ultimately admitting all of Cross's custodial statements. The

judge found that Cross had not invoked his right to remain silent, Silcox's comment

was not interrogation, and Cross validly waived his Miranda rights. On October 23,




6 In Cross's direct appeal, in the written findings of fact and conclusions of law on the motion
to suppress, the trial judge found that "defense counsel conceded that the interview with
Detective Doyon was properly admissible." Cross, 156 Wn.2d at 619 n.12. But we assumed
this was scrivener's error because Cross's trial counsel had filed a motion to suppress and
counsel's subsequent concession of this issue was ambiguous. /d. However, upon further
review of the record and in light of declarations filed in support of Cross's personal restraint
petition, it appears this was not scrivener's error. Cross's appellate attorneys Mark Larranaga
and Richard Warner both recall withdrawing their motion to suppress Cross's statements to
Detective Doyon. Their declarations clarify any ambiguity in the record. Thus, we find that
defense counsel did concede that Cross's custodial statements made to Detective Doyon
were admissible.


                                               7
No. 79761-7

2000, Cross entered his Alford plea of guilty. Cross's custodial statements were used

as evidence in the sentencing phase.

    B. Standard of Review

       Whether Cross unequivocally invoked his Miranda rights is a mixed question of

law and fact. Cf State v. Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004) (whether

or not a suspect is seized by police for Miranda purposes is a mixed question of law

and fact) (citing State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996)).

Accordingly, we defer to the trial court's findings of fact but review its legal conclusions

from those findings de novo. 7 See State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d

363 (1997); see also State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002) (citing

State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).                 This same binary

standard of review applies when determining whether officers are engaged in

"interrogation" for Miranda purposes. 8 United States v. Poole, 794 F.2d 462, 465 (9th


7 In Cross, 156 Wn.2d at 619, we purported to review the trial court's decision to admit Cross's
custodial statements for abuse of discretion. But we, in fact, properly accepted unchallenged
facts in the record as verities and reviewed de novo the trial court's legal rulings. See id. at
620-21 (reviewing the transcript of the interview; no mention of deference). To be clear,
consistent with federal courts, we recognize that Miranda issues involve a mixed question of
law and fact; legal conclusions are subject to de novo review. See State v. Daniels, 160
Wn.2d 256, 261, 156 P .3d 905 (2007) (Miranda claims are issues of law that we review de
novo; !Jnchallenged findings of fact are binding on appeal); see a/so Thompson v. Keohane,
516 U.S. 99, 121, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995) (state court "in custody" rulings
subject to de novo review); cf United States v. Narvaez-Gomez, 489 F.3d 970, 973 (9th Cir.
2007) (this court reviews a trial court's legal conclusions on Miranda waivers de novo and
findings of fact underlying those conclusions for clear error); accord State v. Campos-Cerna,
154 Wn. App. 702, 708, 226 P.3d 185 (2010); United States v. Becerra-Garcia, 397 F.3d
 1167, 1172 (9th Cir. 2005); United States v. Rodriguez, 518 F.3d 1072, 1076 (9th Cir. 2008);
State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004) (reviewing whether a defendant is "in
custody" for Miranda purposes de novo).

8 In State v. Walton, 64 Wn. App. 410, 414, 824 P.2d 533 (1992), a Washington appellate
court held that the issue of interrogation is factual, subject to a clearly erroneous standard.


                                               8
No. 79761-7

Cir. 1986). Because neither party has assigned error to any of the trial court's findings

of fact, our review is limited to a de novo determination of whether the trial court

derived proper conclusions of law from its findings. If we determine there was error,

the state bears the burden of showing that the error was harmless beyond a

reasonable doubt. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).

    C. An Invocation of Miranda Rights Must Be Unequivocal

       In Miranda, 384 U.S. at 457-58, the Supreme Court established a conclusive

presumption that all confessions or admissions made during a custodial interrogation

are compelled in violation of the Fifth Amendment's privilege against self-

incrimination. This presumption is overcome only upon a showing that law

enforcement officials informed the suspect of his or her right to remain silent and right

to an attorney and that the suspect knowingly and intelligently waived those rights. /d.

at 479. A suspect may choose to invoke these rights at any time prior to or during

questioning. 9 /d. at 472-73.

       If the suspect's invocation of his right is equivocal, then officers may carry on

questioning. Davis v. United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 120 L.




Accord State v. Denney, 152 Wn. App. 665, 671, 218 P.3d 633 (2009). However, the clearly
erroneous standard under Walton is no longer good law because the Ninth Circuit case upon
which it relies, United States v. Booth, 669 F.2d 1231 (9th Cir.1981), was overruled by United
States v. Poole, 794 F.2d 462 (9th Cir. 1986) (district court's determination on issue of
interrogation is subject to de novo review).
9The Supreme Court has subsequently held that an invocation of the right to remain silent
and an invocation of the right to counsel are treated similarly in that an unequivocal invocation
of either right is sufficient to terminate an interrogation. Berghuis v. Thompkins, 560 U.S. 370,
381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (201 0) (citing Michigan v. Mosley, 423 U.S. 96, 103,
96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)).


                                               9
No. 79761-7

Ed. 2d 362 (1994). They are not required to clarify whether or not the suspect actually

meant to invoke Miranda. /d. However, if the invocation is unequivocal, the police

must stop their questioning immediately. They may not resume discussion with the

suspect until the suspect reinitiates further communication with the police, or a

significant period of time has passed and officers reissue a fresh set of Miranda

warnings and obtain a valid waiver. Miranda, 384 U.S. at 473-74; see Michigan v.

Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).

      An invocation of Miranda rights is unequivocal so long as a "reasonable police

officer in the circumstances" would understand it to be an assertion of the suspect's

rights. Davis, 512 U.S. at 459. This test encompasses both the plain language and

the context of the suspect's purported invocation. Smith v. Illinois, 469 U.S. 91, 93,

105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). Plain language can be, on its own, telling.

For instance, a suspect invoked his Miranda rights when he clearly stated, '"I would

rather not talk about it."' State v. Gutierrez, 50 Wn. App. 583, 589, 749 P.2d 213 (1988

(emphasis omitted)). By contrast, merely announcing an intent not to say anything

incriminating is not an invocation of the right to remain silent. State v. Walker, 129 Wn.

App. 258, 274, 118 P.3d 935 (2005).

       Courts must also consider the circumstances leading up to the alleged

invocation. For instance, when a suspect says, "'Maybe I should talk to a lawyer"' and

subsequently clarifies, "[']No, I'm not asking for a lawyer,"' the suspect has not invoked

his Miranda rights and questioning may continue. Davis, 512 U.S. at 455 (alteration in

original). But a court may not rely on context arising after the suspect's invocation to

retroactively cast doubt on a facially clear and unequivocal invocation of Miranda


                                            10
No. 79761-7


rights. Smith, 469 U.S. at 99. In Smith, the defendant was advised of his right to have

counsel present and told the police, "'Uh, yeah, I'd like to do that."' /d. at 93 (emphasis

omitted).   Rather than cutting off discussion, the police finished reading Smith his

Miranda rights and asked him, "'Do you wish to talk to me at this time without a lawyer

being present?"'    Smith answered, '"Yeah and no, uh, I don't know what's what,

really."' /d. The trial court seized on Smith's latter statement as proof that Smith's

invocation of Miranda was equivocal and admitted evidence of Smith's statements to

police. The Supreme Court disagreed, holding that "[w]here nothing about the request

or the circumstances leading up to the request would render it ambiguous, all

questioning must cease." /d. at 98 (emphasis added).           In other words, what the

accused said after invoking his Miranda rights might be relevant to waiver but it was

not relevant to the invocation itself. /d.

   D. Cross Unequivocally Invoked His Right To Remain Silent

       It was objectively unreasonable for the trial court to conclude that Cross did not

invoke his right to remain silent. In response to being read his Miranda rights, Cross

told Silcox, "I don't want to talk about it." There is nothing equivocal or ambiguous

about this statement. Indeed, it is difficult to imagine a clearer refusal. Any reasonable

police officer, knowing that the exercise of the right to silence must be "scrupulously

honored," would have understood that when Cross said he did not want to talk about

"it", he meant he did not want to talk about the murders. See Emspak v. United States,

349 U.S. 190, 194, 75 S. Ct. 687, 99 L. Ed. 997 (1955) ("no ritualistic formula or

talismanic phrase is essential in order to invoke the privilege against self-

incrimination").


                                             11
No. 79761-7

      Moreover, the circumstances leading to Cross's statement indicate that Cross

unequivocally invoked his right to remain silent. Cross told officers that he did not

want to talk immediately after Officer Silcox read him his Miranda rights. Neither party

disputes that Cross understood his rights. Thus, when Cross said "I don't want to talk

about it," he knowingly invoked his right to remain silent. That Cross spoke with the

detective after he invoked his rights is irrelevant. Cross's invocation of his Miranda

right to remain silent was clear and unequivocal.

   E. Silcox Did Not Scrupulously Honor Cross's Invocation of His Right To Remain
       Silent

      Although it is a closer call, it was also objectively unreasonable for the trial court

to conclude that Silcox's comment that "sometimes we do things we normally wouldn't

do and feel bad about it later" was not interrogation. Unlike the comment in Rhode

Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980), Silcox's

comment was redolent of the very recent and horrific murders and, thus, appeared

reasonably likely to elicit an incriminating response. Officers Silcox and Soule did not

abide by Cross's clear refusal to talk, and the statements Cross made to them should

not have been admitted.

       "Interrogation" can be express questioning, or any words or actions reasonably

likely to elicit an incriminating response. Innis, 446 U.S. at 301-02. The test for the

latter category focuses primarily on the suspect's perceptions, rather than the officer's

intent. "This focus reflects the fact that the Miranda safeguards were designed to vest

a suspect in custody with an added measure of protection against coercive police

practices, without regard to objective proof of the underlying intent of the police." /d.



                                            12
No. 79761-7

at 301. On the other hand, incriminating statements that are not responsive to an

officer's remarks are not products of interrogation. State v. Bradley, 105 Wn.2d 898,

904, 719 P.2d 546 (1986).

      In Innis, officers were discussing the missing shotgun from the robbery while

driving the defendant to the station. 446 U.S. at 291. One officer stated that there

were "'a lot of handicapped children running around in this area"' because a school

was located nearby, and "'God forbid one of them might find a weapon with shells and

they might hurt themselves."' /d. Innis, apparently worried for the children, interrupted

the officers and asked them to turn back so he could show them where the gun was

located. /d. The Supreme Court explained that "interrogation" reflects a measure of

compulsion above and beyond that inherent in custody itself. /d. at 301. Police cannot

be held accountable for the unforeseeable results of their words or actions. /d. at 302.

Because there was nothing in the record to suggest that the officers were aware that

Innis was "peculiarly susceptible to an appeal to his conscience concerning the safety

of handicapped children" and because officers' comments were not particularly

"evocative," the Court held that the offhand remarks were not reasonably likely to elicit

an incriminating response. /d. at 302-03.

       Here, while there was no express questioning, Officer Silcox subjected Cross

to the "'functional equivalent of questioning."' /d. at 302. Unlike the comment in Innis,

Officer Silcox spoke directly to Cross.     She could tell that he was upset, almost

certainly because of the murders, which had just occurred that morning. The comment

was evocative in that it referred to the recent killings, which were brutal and emotional

and involved Cross's family.     This is true even if Silcox's intent was to express


                                            13
No. 79761-7


sympathy. Thus, the trial court erred in ruling that Silcox's comment was no different

than the statement made in Innis.

      Indeed, the comment "sometimes we do things we normally wouldn't do"

appears reasonably likely to elicit an incriminating response. The comment implies

that Cross committed the murders. While there are several possible responses to

Silcox's comment, all are incriminating. See Innis, 446 U.S. at 301 n.5 ("incriminating

response" is any response-inculpatory or exculpatory-that prosecution may seek

to introduce at trial). For example, Cross could have remained silent, which could be

evidence of his guilt; Cross could have denied committing the murders or feigned

ignorance, which could have cast doubt on his character for honesty; or Cross could

have done as he did and responded with what was essentially a confession. An

officer's comment is designed to elicit an incriminating response when a suspect's

choice of replies to that comment are all potentially incriminating.

      Cross did not offer an irrelevant outburst unresponsive to Officer Silcox's

comment. Cross specifically responded to Silcox's comment "sometimes we do things

we normally wouldn't do and we feel bad about it later" by asking, "[H]ow can you feel

good about doing something like this."       Thus, although Silcox's remark was not

phrased as a question, it reasonably elicited an incriminating response.

       We hold that Silcox failed to scrupulously honor Cross's invocation of his right

to remain silent. Silcox's statement constituted interrogation. Because Cross had

previously invoked his Miranda rights, we hold that Silcox's statement was an

improper reexamination.




                                           14
No. 79761-7


   F. Cross Did Not Subsequently Waive His Miranda Rights

      Cross did not waive his Miranda rights because he never initiated further

discussions with the police after he stated, "I don't want to talk about it." The State

must prove the waiver of a Miranda right by a preponderance of the evidence. State

v. Wheeler, 108 Wn.2d 230, 237-38, 737 P.2d 1005 (1987). If a defendant fails to
unequivocally invoke his Miranda rights, a waiver may be inferred when a defendant

freely and selectively responds to police questioning. State v. Gross, 23 Wn. App.

319, 597 P.2d 894 (1979) (although suspect refused to sign waiver, court could infer

waiver from suspect's understanding of his rights and from his voluntary conversation

with officers on all four occasions); accord Cross, 156 Wn.2d at 621. However, once

an accused has unequivocally invoked his Miranda rights, waiver occurs only when

the accused initiates further discussions with the police and knowingly and intelligently

waives the right invoked. Smith, 469 U.S. at 95 (citing Edwards        v. Arizona, 451 U.S.

477, 486 n.9, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981 )). Here, Cross never initiated

further discussions with the police after he stated, "I don't want to talk about it." Rather,

Silcox reapproached Cross.

       Officer Soule also improperly reapproached Cross while he was in his holding

cell to ask, "[D]o you want to talk about it?" Cf. Smith, 469 U.S. at 93 (detectives

improperly carried on conversation by repeating Smith's Miranda rights to him and

asking if he understood). Officer Soule heard Cross invoke his right to remain silent.

Instead of waiting an appropriate amount of time and then reissuing a fresh set of

Miranda warnings, Soule immediately approached Cross in his holding cell and asked

if Cross wanted to talk. Cf. Mosley, 423 U.S. at 104-05 (defendant's Miranda rights


                                             15
No. 79761-7

not violated because reinterrogation was by a different officer about a different crime

and began two hours later, and new warnings were given). There was no reason for

Soule to believe that Cross had subsequently waived his right to remain silent.

Accordingly, Soule was required to "scrupulously honor" Cross's right to remain silent

and should not have persisted in questioning Cross or in asking Cross whether he

would like to talk about the murders. That Cross responded to Soule's question is not

proof of waiver. See United States v. Womack, 542 F.2d 1047, 1050-51 (9th Cir. 1976)

(where the government asserts waiver, it bears a heavy burden of proving its claim;

this burden is not discharged by the mere fact that statements were eventually

obtained from an accused). Thus, we hold that Cross did not subsequently waive his

right to remain silent to Officers Silcox or Soule after he unequivocally stated, "I don't

want to talk about it."

   G. It Was Harmless Error To Admit Cross's Custodial Statements to Silcox and
      Soule

       However, we deny Cross's petition because it was harmless error to admit

Cross's custodial statements to Officers Silcox and Soule. Constitutional errors are

harmless if the untainted evidence is so overwhelming that it necessarily leads to the

same outcome. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985). Here, even

excluding Cross's statements to Officers Silcox and Soule, we hold that the error is

harmless because it appears beyond a reasonable doubt that the same result would

have been reached. Cross's quasi-confession-"! fucking had it. How can you feel

good about doing something like this"-is not even as prejudicial as his subsequent

outburst-"! don't give a fuck. The motherfuckers are all dead. I killed them. My life



                                            16
No. 79761-7


is over." At least two officers overheard Cross yell the second statement, and it was

properly admitted. 10     In addition, M.S.'s testimony that she witnessed Cross kill

Amanda and heard her mother's dying screams established this as an egregious

killing. See RCW 10.95.030(2).

       Admission of Cross's statements regarding his frustration with paying child

support and his ex-wife being next on the list were also harmless.                     The State

presented evidence to negate the mitigating factors of mental illness and lack of

planning. M.B. testified that after the murders, Cross told her that he was going to kill

his ex-wife next. So, that portion of Cross's statement came in via her testimony. And,

the trial court admitted the child support order, so the jury was aware that Cross owed

alimony.   In addition, Dr. Wheeler, the State's expert, reviewed the circumstances

surrounding the murders and opined that Cross did not appear to suffer from mania

or delusions and that there was evidence of planning. Dr. Wheeler pointed out Cross's

increased substance abuse, stress from child support debt, partial unemployment,

and increasing conflict with his wife regarding money-related issues. In fact, Cross

indicated to Dr. Wheeler that he was thinking of robbing a bank as an alternative to




1°Cross yelled this second statement after his attorney returned documents to him through
the pass-through slot in the conference room. The trial court concluded correctly that these
statements were not the product of any in-custody interrogation, nor were they provoked by
any comment, statement, or conduct by the Department of Adult Detention personnel.
Accordingly, Cross's right to remain silent was not violated. In addition, the trial court correctly
found that Cross's Fifth Amendment right to counsel was not violated by the presence of the
corrections officers. Although there were a number of officers near the attorney-client
conference room, there was no intrusion into the defendant's right to have a private
conference with his counsel; the room was secure and the door was closed. No one heard
anything until the door was opened and Cross loudly volunteered his statement. Thus, the
statements overheard by Officers Deede and Coolidge were properly admitted.


                                                17
No. 79761-7

murder. This is evidence that there was some forethought to the murders and that

Cross was acting clearly and with intention, not as a result of mental illness.

       In light of the gruesome nature of the attacks, the fact that Cross held M.B.

hostage and refused her pleas to call an ambulance for Amanda, Cross's many violent

outbursts in court, and M.B.'s testimony recounting the brutal murder, we hold that the

jury would have found that Cross deserved a death sentence even excluding the

statement to Officer Silcox. Likewise, admitting his statement to Officer Soule was

harmless error because Cross's statement to Soule was identical to his statement to

Silcox, and so it had no different effect on the jury.

       We also hold that admission of the custodial statements was harmless with

regard to Cross's decision to enter the Alford plea. There is no evidence that Cross

would have refused to enter the plea had the statements been excluded. Cross has

not moved to withdraw his Alford plea, and we held that Cross's plea was voluntary

and intelligent. In re Pers. Restraint of Cross, 178 Wn.2d at 529-30. Thus, admission

of Cross's custodial statements to Silcox and Soule was harmless error.

 II.   Cross's Custodial Statements to Detective Doyon

       Once a constitutional       challenge has been affirmatively withdrawn or

abandoned, the challenge will not be considered on appeal. State v. Valladares, 99

Wn.2d 663, 672, 664 P.2d 508 (1983). Here, trial counsel withdrew their challenge to

the taped-recorded statement to Detective Doyon. Thus, we will not consider any

challenges to the admissibility of these statements.




                                             18
No. 79761-7

Ill.   Cumulative Error

       Cross contends that he was denied due process under the cumulative error

doctrine. The cumulative error doctrine applies where a combination of trial errors

denies the accused of a fair trial, even where any one of the errors, taken individually,

would be harmless. In re Det. of Coe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012). The

test to determine whether cumulative errors require reversal of a defendant's

conviction is whether the totality of circumstances substantially prejudiced the

defendant and denied him a fair trial. State v. Gallegos, 286 Kan. 869, 190 P.3d 226

(2008). In other words, petitioner bears the burden of showing multiple trial errors and

that the accumulated prejudice affected the outcome of the trial.         United States v.

Solorio, 669 F.3d 943, 956 (9th Cir. 2012) (no cumulative error when defendant

identifies only one error). There is no prejudicial error under the cumulative error rule

if the evidence is overwhelming against a defendant. State     v.   Cofield, 288 Kan. 367,

203 P.3d 1261 (2009). We hold that Cross has not met his burden of showing an

accumulation of error of sufficient magnitude to warrant a retrial. State v. Yarbrough,

151 Wn. App. 66, 97-98, 210 P.3d 1029 (2009).

       Without reference to facts, Cross summarily concludes that there was

cumulative error. But, as discussed below, most of Cross's claims fail. And Cross

does not specifically address the cumulative prejudicial impact of admitting his

custodial statements to Officers Silcox and Soule. Thus, he has not met his burden

of proof.

       Moreover, Cross's case is unlike cases in which cumulative errors were found

sufficient to deny the defendant a constitutionally fair trial. See, e.g., State v. Coe,


                                            19
No. 79761-7

101 Wn.2d 772, 789, 684 P.2d 668 (1984) (cumulative error where trial errors included

discovery violations, prior bad acts improperly admitted, hypnotized witnesses, and

unduly prejudicial cross-examination, among others). Here, the only errors were the

admission of Cross's statements to Officers Silcox and Soule. But, those errors were

harmless, either alone or cumulatively, because the evidence is overwhelming against

Cross.    There was evidence of planning, even without reference to the custodial

statements, because of the location and severity of the wounds, the evidence of

domestic violence leading up to the murders, the planning and use of the murder

weapons, the evidence of secondary assault, the statements Cross made to M.B.,

and the evidence of the forced entry. Cross, 156 Wn.2d at 627-28. There was also

evidence of a common scheme or plan because Cross killed three people at nearly

the same time, with the same weapons, in the same home. /d. at 629. Examining the

errors in the context of the record as a whole, we find that Cross has not met his

burden of proving that the cumulative effect of the above errors substantially

prejudiced him and thus deprived him of a fair trial.

IV.      Ineffective Assistance of Counsel Claims

         Cross also asserts numerous ineffective assistance of counsel claims. These

claims all fail, either because trial counsels' performance did not fall below an objective

standard of reasonableness or because there was no resulting prejudice.

      A. Relevant Facts

         During the penalty phase, Cross offered evidence of four mitigating factors: his

near-lack of criminal history, the "extreme mental disturbance" he was under at the




                                            20
No. 79761-7

time of the murders, the fact that he was unlikely to be a danger to others in the future,

and his underlying mental disease or defect.

       Immediately upon accepting the case, Cross's attorneys, Richard Warner and

Mark Larranaga, began preparing a mitigation defense based on Cross's poor mental

health. Cross has a long history of mental illness. He had one prior criminal conviction

for misdemeanor reckless endangerment, followed by voluntary hospitalization in

1988. He left hospitalization against medical advice but sought outpatient treatment

again in the 1990s.     He has attempted suicide at least two times since the 1999

killings. In his first suicide attempt, two days after his arrest, Cross fractured his skull

and cervical column and injured his brain and spine, rendering him a paraplegic.

       During trial, Cross became increasingly opposed to presenting expert testimony

on his mental health. He and his counsel clashed over this strategy question-his

counsel believed Cross's best chance to avoid a death sentence was his poor mental

health. Due to this conflict, Cross made multiple motions to fire his attorneys, proceed

prose, or have different counsel appointed.

       After extensive briefing and argument, the trial judge ruled that appointment of

independent counsel was not necessary. The trial court further held that whether

mental health expert testimony would be used was a question of strategy for counsel.

We affirmed both of these rulings on direct appeal. Cross, 156 Wn.2d at 607-10.

       Cross also denied premeditating the murders, and there was evidence that he

believed this would be powerful mitigating evidence.           In his Alford plea, Cross

specifically denied premeditating the murders. And during trial, Cross continued to




                                             21
No. 79761-7

argue lack of premeditation to the sentencing jury as a mitigating factor. Cross, 156

Wn.2d at 604.

      The jury was instructed that they could grant him mercy based on any of these

factors or any other evidence they believed to be mitigating. A unanimous jury decided

that there were insufficient mitigating circumstances to merit leniency.

      In Cross's personal restraint petition, he submits Warner's and Larranaga's

declarations, essentially stating that they were ineffective, along with declarations

from two Washington attorneys opining that defense counsel provided ineffective

assistance of counsel. The two attorneys based their opinions on a review of Warner's

and Larranaga's declarations and a partial review of the record.

   B. Strickland Test

      To prevail on an ineffective assistance of counsel claim, a criminal defendant

must demonstrate (1) deficient performance by counsel and (2) resulting prejudice.

Stricklandv. Washington, 466 U.S. 668,687,104 S. Ct. 2052,80 L. Ed. 2d 674 (1984).

If the court finds either prong has not been met, it need not address the other prong.

/d. at 700; accord State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990).

       To establish deficient performance, the defendant must show that trial counsel's

performance fell "below an objective standard of reasonableness." Strickland, 466

U.S. at 688; see also State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978)

(discussing development of a more objective standard akin to that used in legal

malpractice cases).     We evaluate the reasonableness of a particular action by




                                           22
No. 79761-7

examining the circumstances at the time of the act. 11 "A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to

evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at

689. To establish prejudice in a penalty phase, defendant must show that "there is a

reasonable probability that, absent the errors, the sentencer ... would have concluded

that the balance of aggravating and mitigating circumstances did not warrant death."

/d. at 695; see also In re Pers. Restraint of Davis, 152 Wn.2d at 702.

       Courts presume counsel's representation was effective. Strickland, 466 U.S. at

689; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The presumption

is rebutted if there is no possible tactical explanation for counsel's action. State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Legitimate trial tactics or

strategy cannot form the basis for an ineffective assistance of counsel claim. State v.

Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994). With these principles in mind, we

turn to Cross's specific claims of ineffective assistance of counsel, roughly in the order

they occurred pretrial and at trial.

     C. Defense Counsels' Inexperience

       Cross argues that his trial attorneys were insufficiently experienced to represent

him in a capital case.     This claim fails because counsel met the requirements of




11 We give weight to trial counsel's recollections of an action or event. But we will scrutinize
attorneys' belated assessments of the reasonableness of their actions.



                                               23
No. 79761-7


Superior Court Special Proceedings Rules-Criminal Rule 2 (SPRC 2) and

additionally satisfied relevant American Bar Association (ABA) guidelines.

        SPRC 2 imposes minimum qualification requirements on attorneys in capital

cases. 12 Specifically, at the time Cross's trial attorneys were appointed, SPRC 2

provided, "[A]t least one counsel at trial must have five years' experience in the

practice of criminal law, be familiar with and experienced in the utilization of expert

witnesses and evidence, and be learned in the law of capital punishment by virtue of

training or experience." Former SPRC 2 (1997) (emphasis added). The Supreme

Court recruits and maintains a list of attorneys qualified for appointment by virtue of

training or experience. /d. In appointing counsel for trial, the trial court will consider

this list; however, the court will have the final discretion in appointment of counsel in

capital cases. /d.

       Here, Cross incorrectly argues that Larranaga and Warner were not qualified

to represent him because neither had previously tried a capital case or had significant

capital experience. SPRC 2 does not require counsel to have previously tried a capital

case and, instead, acknowledges that an attorney may obtain qualification by virtue

of training. Larranaga and Warner had both received training at seminars on capital

defense.    Warner attended five continuing legal education courses on capital

punishment prior to the trial court's qualification determination. Larranaga attended a

capital case defense seminar in 1999. In addition, both attorneys attended a capital



12SPRC 2 was amended in 2003. For purposes of reviewing whether Larranaga and Warner
were qualified as counsel for Cross in his death penalty trial, this opinion refers to the pre-
2003 SPRC 2.


                                              24
No. 79761-7


defense training early in the Cross proceedings. Thus, both were trained in the law

of capital punishment.

      Cross also unconvincingly argues that Larranaga and Warner were unqualified

because neither was on the list of attorneys qualified for appointment in death penalty

trials. At the time of the appointment, SPRC 2 vested final appointment discretion in

the trial judge. While former SPRC 2 directed the trial judge to consider the list in

making the appointment, it did not require the trial judge to choose from the list. Also,

to be listed, an attorney must apply and be found qualified. Thus, it is equally (if not

more) likely that absence on the list is due to failure to apply, not lack of qualification.

It would be another case if Cross were able to show that Warner and Larranaga had

recently applied and were denied admission to the list for lack of qualification.

However, Cross has made no such showing.             Indeed, as of December 29, 1999,

Richard Warner was admitted on the list of attorneys qualified to represent capital

defendants at the triallevel. 13 That neither of the attorneys appeared on the list at the

exact moment of their appointment does not render them per se unqualified,

especially given their demonstrated prior experience trying complex criminal cases.

       Larranaga and Warner met all additional requirements under SPRC 2. Both

had extensive trial experience. Warner had practiced criminal law exclusively for the

previous 10 years and had handled 40 felony trials, including a first degree murder

trial. Larranaga had practiced criminal law exclusively for six years previous to Cross's



13Cross's arraignment hearing before Judge Spearman was held at Harborview Medical
Center on March 22, 1999. Attorneys Larranaga and Warner represented Cross at this
hearing and continued to represent Cross until sentencing on July 22, 2001.


                                             25
No. 79761-7

trial and had handled serious felony cases for the previous three and a half years,

including two first degree murder cases.            Each had significant experience with

competency issues and expert witnesses, including psychological and psychiatric

experts.

       The trial judge reviewed Warner's and Larranaga's prior experience, training,

and legal writing samples, and properly concluded that "each counsel is qualified

pursuant to SPRC 2."        See SPRC 2 (the trial judge shall retain responsibility for

appointing counsel for trial). As an additional safeguard, the trial judge found that trial

counsel met several requirements set forth in the 1989 ABA Guidelines 14 for the

Appointment and Performance of Defense Counsel in Death Penalty Cases (ABA

Guidelines). 15

       Cross also claims deficient performance due to lack of adequate supervision

because no attorneys in the office had capital trial experience. But supervision is not

required where the attorneys themselves are qualified.              Moreover, as discussed


14The relevant ABA guidelines are those in effect at the time of trial. See In re Pers. Restraint
of Yates, 177 Wn.2d 1, 41, 296 P.3d 872 (2013) (citing Bobby v. Van Hook, 558 U.S. 4, 7,
130 S. Ct. 13, 175 L. Ed. 2d 255 (2009)).
15  Regarding prior experience, the 1989 ABA Guidelines emphasized quantitative measures
of attorney experience, such as exact years of litigation experience and number of jury trials.
For example, counsel should have prior experience as lead counsel in at least nine prior jury
trials, including serious and complex cases. ABA GUIDELINES 5.1 (1 )(A)(iii), at 5. Counsel
must have been lead counsel in at least three murder or aggravated murder cases, or
alternatively, out of the nine required jury trials, each counsel must have tried one murder or
aggravated murder trial and an additional five felony trials. /d. The trial court found that both
Warner and Larranaga met these criteria. An additional ABA criteria, not reflected in SPRC
2 but which the trial court found "pertinent and relevant," was that each counsel attend training
within one year of their appointment at a continuing legal education (CLE) seminar focusing
on death penalty cases. Here, each counsel had attended a capital defense seminar within
one year of their appointment and additionally attended another CLE, "Life Over Death,"
during early proceedings in this case.


                                               26
No. 79761-7

earlier, prior capital experience is not a prerequisite to qualification. Seattle attorney

Jeffrey Robinson's opinion that lack of supervision could have compromised the

defense's preparation is germane, but it must be weighed against the ample evidence

that Larranaga and Warner were qualified and the trial court's assessment that "there

can be no legitimate assertion that counsel has not been thoroughly and completely

competent in its presentation of this case with all of its complexities in both the guilt

and penalty phase."

        Thus, in view of former SPRC 2 and the ABA Guidelines in effect at the time,

we hold that it was not deficient performance for Warner or Larranaga to accept

appointment as Cross's counsel. Cross's claim that trial counsel's inexperience gave

rise to ineffective assistance of counsel fails.

      D. Failure To Appoint Lead Counsel

         Cross argues that his trial counsel were prejudicially ineffective because no

lead counsel was ever officially appointed. This claim fails because both attorneys

were qualified and the division of labor between attorneys was reasonable.

         While SPRC 2 does not require that either of the two assigned counsel be

designated "lead," ABA Guidelines suggest that one of the two attorneys in a capital

defense case be designated and act as the lead counsel. ABA Guidelines 2.1 cmt. at

41.     But ABA Guidelines are not controlling; they are only a guide as to what

reasonable means, not a definition. Bobby v. Van Hook, 558 U.S. 4, 8, 130 S. Ct. 13,

175 L. Ed. 2d 255 (2009) (Court of Appeals improperly treated ABA Guidelines not

merely as evidence of what reasonably diligent attorneys would do but as inexorable

commands with which all capital defense counsel must fully comply).                 Under


                                             27
No. 79761-7

Strickland, the relevant inquiry regarding deficient performance remains whether

counsel's conduct fell outside the range of reasonable professional conduct.

Strickland, 466 U.S. at 688-89.

      Here, Cross argues unconvincingly that the failure to appoint lead counsel

amounted to deficient performance. To support this contention, Cross offers a single

attorney's tentative opinion that failure to appoint a lead counsel, coupled with

apparent lack of adequate supervision, "seems to have compromised the preparation

of the defense in this case." However, we find that failure to designate a lead counsel

in the case did not result in ineffective representation because both counsel were

sufficiently qualified to represent Cross.    Moreover, the division of labor between

Larranaga and Warner was reasonable. In general, Larranaga worked on the legal

issues and handled expert witnesses; Warner tended to work on social and

psychological issues.

      Nor has Cross demonstrated prejudice. The trial court lauded counsel's

performance with respect to preparation, advocacy on behalf of Cross, quality of

briefing, and legal and analytical skills. Counsel was judged to be "thoroughly and

completely competent." There is no evidence that appointing a lead counsel would

have rendered a more favorable outcome for petitioner. Thus, we reject Cross's claim

of ineffective assistance of counsel for failure to appoint lead counsel.

   E. Failure To Conduct a Thorough Pretrial Investigation
       Cross claims that counsel failed to conduct a thorough pretrial factual

investigation. Specifically, Cross argues that the defense team should have hired

additional investigative help and located certain witnesses. Both claims fail.


                                             28
No. 79761-7

      Trial counsel did hire additional investigative help. Just two weeks after the

murders, they hired a mitigation specialist, Teresa McMahill, who had ample

experience with capital cases. In any case, Cross cannot show resulting prejudice.

There is no evidence that hiring additional investigative help would have resulted in

the discovery and admission of mitigating or exculpatory evidence.

      Cross also argues that counsel's investigation was deficient because the

investigation team failed to locate several important witnesses, specifically (1) Dr.

Robert Thompson, a psychiatrist who treated Cross from 1995 to 1997; (2) Dr.

Grindlinger, a psychiatrist who treated Cross in the 1980s while Cross was residing in

Pennsylvania; and (3) Carl Watt, Cross's brother.

      This claim fails because counsel did locate the two doctors and incorporated

information obtained from them into expert witness testimony for the defense. A

defense investigator spoke with Dr. Thompson early in the proceedings, and Dr.

Thompson sent the defense his handwritten treatment notes of Cross. In addition, the

court reviewed records from Cross's 1988 commitment to Divine Providence Hospital

in Pennsylvania where Dr. Grindlinger was the treating psychiatrist.       At Cross's

competency hearing, Dr. Hart testified that he had reviewed records from

Pennsylvania before coming to the conclusion that Cross was competent.            This

implies that defense counsel knew of the doctors and made reasonable efforts to

obtain relevant information from them.

       Moreover, the decision not to call Drs. Thompson and Grindlinger falls within

the province of tactical decisions by defense counsel. In re Pers. Restraint of Benn,

134 Wn.2d 868, 900, 952 P.2d 116 (1998) (counsel is not required to call all available


                                          29
No. 79761-7

witnesses); see a/so In re Pers. Restraint of Davis, 152 Wn.2d at 742 (decision

whether to call a witness generally presumed to be a matter of trial strategy or tactics);

State v. Mannering, 150 Wn.2d 277, 287, 75 P.3d 961 (2003) (decision not to call

defense expert witness was trial tactic). This is especially true because defense

counsel ultimately presented related testimony. Thus, deciding not to call two doctors

whose testimonies would likely have been redundant was a strategic choice.

       In any case, there was no prejudice. The trial court reviewed Cross's psychiatric

evaluations from the late 1980s and mid-1990s before finding Cross competent to

plead guilty. And there was no prejudice with regard to the death sentence because

the sentencing jury heard Drs. Thompson's and Grindlinger's evaluations and experts

at trial explained the evidence.    Notably, Dr. Grindlinger averred that he "had no

independent recollection" of his work with Cross outside of the written evaluations. In

other words, anything to which Dr. Grindlinger would have testified was contained in

his reports. Thus, Cross fails to show that counsel was ineffective for failing to locate

and interview Drs. Thompson and Grindlinger.

       Nor was it ineffective not to call Carl Watt to testify, and in any event we find no

resulting prejudice. Speculation that Carl "might have been helpful" or that he "may

possess important information regarding Mr. Cross's development and mental health

issues" does not meet the standard for personal restraint petitions. Cross fails to show

that had attorneys called Carl as a witness, Carl would likely have provided

competent, admissible evidence establishing facts that would require relief.          In re

Pers. Restraint of Pirtle, 136 Wn.2d 467, 473, 965 P.2d 593 (1998).




                                            30
No. 79761-7


      Cross's defense team, which consisted of two attorneys, two investigators, and

a mitigation specialist, conducted prompt and adequate investigation in this case.

This is unlike cases in which almost no work was done to develop mitigation evidence.

See, e.g., Wiggins v. Smith, 539 U.S. 510, 523-46, 123 S. Ct. 2527, 156 L. Ed. 2d 471

(2003) (counsel's failure to adequately investigate prior to deciding not to introduce

mitigating evidence in capital case constituted ineffective assistance); Williams v.

Taylor, 529 U.S. 362, 395-96, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (investigation

for mitigation began one week before trial; there was no effort to seek records because

the attorney erroneously believed them to be inadmissible); Silva v. Woodford, 279

F.3d 825, 838-40 (9th Cir. 2002) (attorney refused to investigate mitigating factors

because there was a threat of misbehavior from defendant); State v. Jury, 19 Wn. App.

256, 264, 576 P.2d 1302 (1978) (counsel made virtually no factual investigation of the

events leading to defendant's arrest, nor did he properly support either his motion for

continuance or motion for new trial with any affidavits).          Here, the trial court

commended counsels' investigative efforts: "Current counsel have thoroughly

investigated and explored all potential evidence, witnesses, and mitigation."

Furthermore, at trial, Cross expressed "no dissatisfaction with the quality or

preparedness of his counsel, or with the avenues of mitigation they had explored."

       Accordingly, we find that the investigation team was adequately comprised to

handle the task and their investigation was reasonable under the Strickland standard.

We reject Cross's claim of ineffective assistance of counsel for failure to hire additional

investigative help and failure to locate specific witnesses.




                                            31
 No. 79761-7

    F. Conceding the Admissibility of Cross's Custodial Statements to Detective
       Doyon

       Petitioner claims that trial counsel were ineffective when they conceded the

 admissibility of Cross's tape-recorded statements to Detective Doyon. We reject this

 claim because allowing Cross's taped statement into evidence was a legitimate trial

 tactic. As the State points out, the taped statement provided defense counsel with

 evidence of several mitigating circumstances:      Cross's (1) lack of planning, (2)

 remorse, and (3) prior incidents of domestic violence between Cross and Anouchka.

       Indeed, the taped statement showed lack of planning. When Doyon asked

· Cross what happened, Cross replied, "Ah, I just flipped out, man." The interview also

 explored how events in Cross's life were spiraling out of control-his oldest son was

 in prison, he was under a tremendous amount of financial strain, and the day before

 the murders he learned that his daughter had just broken up with her husband. Cross

 stated, "I'm goin' nuts. I just can't take it." When Doyon asked if he had planned the

 murders, Cross responded, "It just came out." Thus, during the interview, Cross

 admitted to the murders but denied premeditation and planning. Defense counsel

 also used the tape to show Cross's remorse. Last, during the interview, Cross denied

 any previous domestic violence incidents other than slapping Anouchka the night

 before the murders.    Thus, we find that it was not deficient performance for trial

 counsel to concede admissibility of the tape-recorded statements.

        In addition, Cross cannot show prejudice. There is no evidence that he would

 have withdrawn his guilty plea had the statements not been admitted. And the core

 issue during the penalty phase was whether there were sufficient mitigating factors to



                                           32
No. 79761-7

warrant mercy.    Compared with the gruesome nature of the attacks, the interview

painted Cross in a relatively harmless way.

     G. Failing To Inform the Judge at the Competency Hearing That Cross Was
       Brain-Injured

       Cross claims that defense counsel was prejudicially ineffective for failing to

inform the judge at the time of his competency hearing that Cross had suffered brain

injury. This claim fails because the judge was informed of Cross's medical conditions

before finding him competent to stand trial, withdraw his not guilty by reason of insanity

(NGI) plea, and enter his Alford plea.

        The judge was fully aware of Cross's mental condition.               Cross's defense

counsel properly raised the issue of Cross's competency early on in the proceedings.

The trial judge ruled that Cross could be evaluated by an expert of his choosing and

by Western State Hospital. Subsequently, Dr. Hart (a Western State psychologist),

Dr. Gage (a Western State psychiatrist), and Dr. Muscatel (a defense psychologist)

met with Cross for over an hour to determine whether Cross was competent to

proceed, with special emphasis placed on his understanding of the legal proceedings

before him and his ability to assist his counsel with defense.              All three doctors

additionally reviewed Cross's prior medical history and concluded that Cross was

competent. 16




16Dr. Hart testified that Cross understood the charges against him. He opined that although
Cross had some difficulty remembering certain details about the murders, limited amnesia of
that sort is not a critical part of legal competency. Cross was not insane, he was not psychotic,
and he was not depressed enough to interfere with his competency. He understood the
seriousness of the death penalty. Dr. Muscatel also reviewed Cross's records and then met


                                               33
No. 79761-7

      The judge learned specifically about the brain injury Cross suffered as a result

of his suicide attempt very early in the proceedings. And at the competency hearing,

the judge reviewed all of Cross's medical records, including records pertaining to his

brain injury. 17 Thus, we find no deficient performance because defense counsel

informed the court of Cross's potential incompetence due to a brain injury and no

prejudice because Cross was properly adjudged competent.

      Cross next claims that failure to notify the judge of a childhood brain injury was

ineffective assistance of counsel because it led to the judge failing to comply with

RCW 10.77.060(1 )(b). This claim also fails because there is no prejudice. The judge

was not required to appoint a developmental disabilities professional under the statute

because there was no evidence that Cross suffered from a developmental disability. 18

A developmental disability must originate before an individual turns 18 and must be

"attributable to intellectual disability, cerebral palsy, epilepsy, autism, or another




with Cross for about 75-90 minutes. He opined similarly that Cross was competent to stand
trial and to enter his Alford plea.
17 Records included Cross's 1988 treatment records from Divine Providence Hospital in
Williamsport, Pennsylvania; a 1988 psychological assessment performed by Dr. Keeley; tests
administered by Dr. Keeley; a psychiatric evaluation by Dr. Grindlinger; progress notes from
Divine Providence Hospital and a discharge summary; psychological reports by Doctors
Wheeler, McClung, Woods, and Young; transcripts of the telephonic interview with
psychologist Dr. Murray Hart; Cross's current Rorschach testing and his Minnesota
Multiphasic Personality Inventory plus the raw data; and Cross's 1995 to 1997 treatment
records from Dr. Thompson.
18 According to the statute, when a defendant enters an NGI defense or when there is
evidence that calls into question the defendant's competency, the judge must appoint an
expert to evaluate and report on the mental condition of the defendant. Specifically, if any
party advises the court that the defendant may be developmentally disabled, at least one of
the experts or professional persons shall be "a developmental disabilities professional." RCW
10.77.060(1 )(b).


                                             34
No. 79761-7

neurological or other condition of an individual found by the secretary to be closely

related to an intellectual disability." RCW 71A.10.020(4). Here, evidence of Cross's

alleged childhood brain injury resulting from a high fever was inconclusive. And

notably, the defense conceded that Cross did not suffer from an intellectual disability.

Thus, Cross was not prejudiced by the failure to invoke the procedures set forth in

RCW 10.77.060(1) because the statute does not apply where the defendant is not

developmentally disabled.

      Cross also argues that trial counsel provided ineffective assistance by failing to

seek additional neuropsychological testing.       Following his first suicide attempt,

Harborview Medical Center performed magnetic resonance imaging and X-rays on

Cross's neck, as well as computed tomography scan on his head. And it was Cross

who refused to allow Harborview Medical Center to conduct further neurological

testing (beyond the initial screening tests) to ascertain whether he suffered any

cognitive deficits. Thus, we find that defense counsel timely apprised the trial court of

Cross's mental health history, causing the trial court to further investigate Cross's

intellectual abilities to the extent permitted by Cross. After an extensive inquiry, the

trial court found Cross was competent to withdraw his NGI plea, enter an Alford plea,

and stand trial. Thus, we reject this ineffective assistance of counsel claim.

   H. Failing To Advise Cross of Consequences of Entering an Alford Plea

       Cross claims that it was ineffective assistance of counsel when his attorneys

failed to affirmatively advise him or failed to request rulings that would have apprised

him of consequences of entering an Alford plea-omissions that might have affected

Cross's decision to enter an Alford plea. Specifically, Cross claims his counsel should


                                           35
No. 79761-7


have advised him that entering an Alford plea (1) would preclude him from challenging

premeditation and "common scheme or plan" and (2) would not preclude counsel from

presenting mental health evidence over Cross's objection.

        The Strickland test applies to claims of ineffective assistance of counsel in the

plea process. In re Pers. Restraint of Peters, 50 Wn. App. 702, 703, 750 P.2d 643

(1988) (citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203

(1985)). In the context of a guilty plea, the defendant must show that counsel failed to

substantially assist him in deciding whether to plead guilty and that but for counsel's

failure to properly advise him, he would not have pleaded guilty. State v. McCollum,

88 Wn. App. 977, 982, 947 P.2d 1235 (1997).

        Here, Cross's claims fail because there is no evidence that Cross would have

refused to enter his Alford plea; the trial court properly found that Cross's plea was

voluntary, intelligent, and knowingly given. In re Pers. Restraint of Cross, 178 Wn.2d

at 529-30. Notably, Cross has never moved to withdraw his plea. Thus, we reject

these ineffective assistance of counsel claims.

   I.   Allowing Cross To Make an Inconsistent Statement to the Court when
        Entering His Alford Plea

        Cross also argues counsel was ineffective when they allowed him to make a

false statement to the court contemporaneous with his Alford plea. It is not clear

whether Cross was insincere or truthful when he stated that he believed there was a

substantial likelihood that a jury would find him guilty of premeditated murder. But,

even assuming that Cross lied to the court, we find no deficient performance because




                                            36
No. 79761-7


a reasonably competent attorney would not have known with sufficient certainty that

Cross was lying under the circumstances.

      A mandatory duty to withdraw, disclose, or take other steps arises only when

the lawyer "knows" that the client intends to or did commit perjury. Ethics opinions

suggest that lawyers should have a high degree of certainty before acting on client

perjury. ABA Standing Comm. on Ethics & Prof'l Responsibility, Formal Ethics Op.

87-353 ( 1987) (lawyer should know that client intends to commit perjury from client's

stated intention and not based on mere suspicion); Ethics Advisory Comm. of Nat'l

Ass'n of Criminal Defense Lawyers, Formal Ethics Op. 92-2 (adopted Nov. 7, 1992)

(criminal defense lawyer should not act on belief that client intends to commit perjury

unless lawyer knows this to be so beyond reasonable doubt). A mere inconsistency

in the client's story or between two proffered defenses is generally insufficient to

conclude that the client will offer false testimony. See Nix v. Whiteside, 475 U.S. 157,

190-91, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986); Johnson    v.   United States, 404 A.2d

162, 164 (D.C. 1979) (mere fact that defendant's intended trial testimony was

inconsistent with his prior statements was insufficient to establish that defendant's

testimony would be perjurious). In addition, to avoid undermining the relationship of

trust and confidence between a lawyer and the accused, the lawyer should generally

resolve doubt in favor of the client. See Randolph N. Stone, Between a Rock and a

Hard Place: Responding to the Judge Qr Supervisor Demanding Unethical

Representation, in ETHICAL PROBLEMS FACING THE CRIMINAL DEFENSE LAWYER, 1, at

10 (Rodney J. Uphoff ed., 1995).




                                           37
No. 79761-7

         Here, Cross's attorneys properly resolved doubt in favor of Cross. That is, they

chose to believe Cross when he said he believed there was a substantial likelihood

that a jury would find him guilty of premeditated murder. There is no evidence that

Cross had indicated to his attorneys an intent to lie prior to making the statement. It

is entirely plausible that Cross simply. had a change of heart. Larranaga's belated

assessment that Cross would have "said whatever he needed to say in order to have

the plea accepted" is speculation and tainted by hindsight. Thus, allowing Cross to

make the statement did not fall below an objective standard of reasonableness.

         In addition, there is no resulting prejudice because a judge may accept an

Alford plea if the plea is made voluntarily, competently and with an understanding of

the nature of the charge and the consequences of the plea, and if the judge is satisfied

that there is a factual basis for the plea. In re Pers. Restraint of Cross, 178 Wn.2d at

521. Whether a plea was voluntarily and competently made depends on multiple

sources of evidence.       In In re Personal Restraint of Cross, id. at 529, this court

considered Cross's other statements on his plea, the extensive colloquy between

Judge DuBuque and Cross when he entered his plea, and the fact that Cross

admitted to killing the three women to conclude that his Alford plea was properly

admitted. In other words, even if Cross did lie about his belief in that one moment,

that by itself does not invalidate his Alford plea given his other statements on the

record. There is no prejudice, and we reject this ineffective assistance of counsel

claim.




                                             38
No. 79761-7


   J. Failing To Argue Lack of Premeditation and Common Scheme or Plan

      Cross claims that trial counsel provided ineffective assistance of counsel when

they ignored    his desire to challenge premeditation         and   instead   conceded

premeditation in opening argument and at trial. He also claims that it was prejudicially

ineffective for counsel to fail to argue lack of common scheme or plan.

      We find that counsel did argue to the jury that Cross lacked premeditation.

Cross, 156 Wn.2d at 601, 604 (noting that Cross argued extensively that he lacked

premeditation). In his opening statement, defense counsel read Cross's guilty plea

where he admitted to the killings but maintained that he acted without premeditated

intent. Later, defense counsel argued that Cross did not plan the murders-that he

exploded in anger, had no list, made no effort to escape, packed no bags, and stashed

no money. Although planning and premeditation stand for different degrees and

manner of forethought, many of Cross's arguments about preplanning approximated

an argument that he lacked premeditation.

       Likewise, counsel argued lack of common scheme or plan.            For example,

Cross's Alford plea stated that Cross did "not believe that the three murders were part

of any common scheme or plan or the result of a single act." Moreover, evidence that

Cross did not plan often demonstrated lack of a common scheme or plan-if the

murders were spontaneous, there could be no scheme or plan. Thus, Cross's claim

of ineffective counsel fails because counsel did argue lack of premeditation and

common scheme or plan; there was no deficient performance.




                                           39
No. 79761-7

   K. Failing To Argue the Brain Injury Evidence

         Cross also argues that counsel's failure to develop evidence of his childhood

brain damage was both deficient and prejudicial because it could have been

"powerful" mitigation evidence.    We hold that there was no deficient performance

because counsel had no obligation to argue the childhood brain injury evidence.

Although defense counsel must initiate reasonable evaluation of a defendant's mental

condition when there is a question as to the defendant's competency, there is no duty

to argue specific injuries. This is especially true here because evidence of Cross's

alleged childhood brain injury resulting from high fever was inconclusive. Trial counsel

was unable to locate any medical records suggesting Cross suffered from brain

damage at the time he committed the murders.          In fact, the state's investigation

indicated that Cross's brain injury was more likely the result of Cross's jail suicide

attempt. Thus, counsel could reasonably have made a strategic determination to

focus on other mitigating evidence. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260

(2011) (performance not deficient when counsel's conduct can be characterized as

legitimate trial strategy).

         Also, we find no prejudice because Cross cannot show that there is a

reasonable probability the outcome would have been different had counsel argued the

brain injury.    As discussed, the childhood brain injury evidence was scant and

uncertain. There is no evidence that the jury would have accepted this as proof of a

mitigating circumstance. Accordingly, we reject this ineffective assistance of counsel

claim.




                                           40
No. 79761-7

   L. Objecting To Appointment of Independent Counsel

      Cross argues that his trial counsel was prejudicially ineffective for objecting to

appointment of independent counsel. This issue was rejected on direct appeal and

is, thus, procedurally barred.

      On direct appeal, Cross argued that the trial court erred in denying his motion

for appointment of independent counsel. Cross, 156 Wn.2d at 605. We held that the

conflict between Cross and his attorneys did not amount to violation of Cross's right

to counsel and the trial court did not commit error when it failed to appoint independent

counsel. /d.

       Cross now argues that defense counsel's objection to appointment of

independent counsel constitutes ineffective assistance of counsel. Cross contends

that there was an irreconcilable conflict between himself and trial counsel. Cross did

not want to present any evidence of his mental health; trial counsel did, feeling that it

would be Cross's strongest defense. This was the same conflict complained of on

direct appeal. What was formerly a substitution of counsel issue has been recast as

a claim that objection to appointment of counsel was ineffective assistance of counsel.

Because identical grounds for relief can be supported by different legal arguments or

couched in different language, simply recasting an argument in this manner does not

create a new ground for relief or constitute good cause for reconsidering a previously

rejected claim. In re Pers. Restraint of Benn, 134 Wn.2d at 906 (citing In re Pers.

Restraint of Jeffries, 114 Wn.2d 485, 488, 789 P.2d 731 (1990)). Cross may notre-

raise this issue. In re Pers. Restraint of Davis, 152 Wn.2d at 671; In re Pers. Restraint

of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994).


                                           41
No. 79761-7


        Even if Cross was not barred from making this claim, Cross's claim would still

fail because there was no deficient performance.       We held on direct appeal that

independent counsel was not necessary. Cross, 156 Wn.2d at 605. So, objecting to

appointment of independent counsel was not unreasonable.          Indeed, as the State

points out, there appear to have been legitimate tactical reasons to oppose the

appointment. Inserting a new lawyer into the case could have exacerbated the rift

between Cross and his counsel. Also, the two trial attorneys had already worked with

Cross for almost two years when the issue of independent counsel arose; it would

have been time consuming to update new attorneys on all of the mitigation evidence.

Counsels'     belated   realizations-that    they   made   a   mistake   opposing   the

appointment-are tainted by hindsight and cannot serve as a basis for evaluating

actions at the time they were executed.

      Thus, we reject petitioner's claim that objecting to appointment of independent

counsel amounted to ineffective assistance of counsel because it is procedurally

barred and because it fails on the merits.

   M. Presenting the Gun Ownership Evidence

      Cross argues that counsel was prejudicially ineffective for eliciting unfairly

prejudicial testimony of gun ownership. He argues that because the prosecution was

barred from offering evidence of Cross's constructive possession of guns, defense

counsel's affirmative introduction of this evidence constituted deficient performance.

This claim rests on an improperly broad reading of State v. Rupe, 101 Wn.2d 664, 683

P.2d 571 (1984 ).




                                             42
No. 79761-7

      In Rupe, 101 Wn.2d at 704, we explained that because gun ownership is

constitutionally protected behavior, it "cannot be the basis of criminal punishment." It

follows that the "State can take no action which will unnecessarily 'chill' or penalize

the assertion of a constitutional right and the State may not draw adverse inferences

from the exercise of a constitutional right."        /d. at 705 (emphasis added) (quoting

United States   v.   Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968)).

      Rupe does not apply here because it was not the State who introduced

allegedly irrelevant and prejudicial evidence of gun ownership, but the defense.

During the penalty phase, defense counsel elicited testimony from Detective Gulla

that officers had recovered a shotgun and a rifle in Cross's master bedroom. Thus,

we hold that there is no Rupe violation; the right to due process applies only when

state action deprives an individual of a liberty or property interest. See Cross, 156

Wn.2d at 601; Bang D. Nguyen         v.   Dep't of Health, Med. Quality Assurance Comm'n,

144 Wn.2d 516, 522-23, 29 P.3d 689 (2001 ).

       Moreover, the introduction of the gun ownership was a reasonable trial tactic

designed to emphasize how little planning Cross put into the murders. That is, if Cross

had planned, he might have used the guns. It was not unreasonable or deficient for

defense counsel to overlook Rupe in deciding to present the gun evidence to show

lack of planning. 19       We reject petitioner's claim that counsel was prejudicially

ineffective for eliciting the testimony of gun ownership.



19 Petitioner argues that strategic decisions are entitled to deference only if they are "made
after thorough investigation of law and facts." Strickland, 466 U.S. at 690-91. And if such
investigations are less than complete, strategic choices are reasonable "precisely to the


                                                43
No. 79761-7

   N. Eliciting Testimony Regarding D.J. Watt's Jail Time

      Cross argues that counsel was prejudicially ineffective for undermining D.J.

Watt's credibility by bringing up his criminal history and for failing to object when the

State further questioned D.J. Watt about his jail time. This claim fails because counsel

could have reasonably decided to elicit testimony that D.J. Watt was arrested to show

Cross's stressors leading up to the murders, and there was no prejudice.

      On direct examination, defense counsel elicited testimony from Cross's son,

D.J. Watt, that D.J. was in jail in 1995 and that he was arrested while living with his

father in 1998. Petitioner argues that there appears to be no strategic reason for

calling forth this testimony, and this allowed the prosecution to discredit D.J. by twice

emphasizing the fact that D.J. was in prison.

       Petitioner's claim fails because counsel could have reasonably decided to elicit

testimony that D.J. Watt was arrested to show that Cross was under a lot of stress. It

appears that one of the defense strategies was to show that Cross cycled through

periods of depression and psychosis, leading to violence. Thus, there was no deficient

performance.

       Moreover, there was no prejudice. On cross-examination, the prosecutor asked

D.J. how he learned that Cross had murdered his family. D.J. replied, "A parole officer

called and told me." We agree with the State that this answer is confusing because a

"parole officer" is a state official who supervises someone in the community. In fact,

D.J. was in jail at the time. Thus, the prosecutor simply asked D.J. to clarify where he


extent that reasonable professional judgments support the limitations on investigation." /d.
Here, defense counsel's investigations into the law were not lacking.


                                            44
No. 79761-7

was when he learned about the murders. Prosecutors did not unduly focus on D.J.'s

criminal record.   Thus, we reject petitioner's claim that counsel was prejudicially

ineffective for bringing up the D.J. Watt's criminal history.

   0. Eliciting Testimony Regarding Cross's Uncharged Acts of Domestic Violence

       Cross claims that counsel was prejudicially ineffective for (1) failing to make a

record of the side bar conference where the trial court ruled on the admissibility of

domestic violence evidence and (2) affirmatively eliciting testimony from Crystal Watt

and D.J. Watt regarding Cross's prior acts of domestic violence. Both of these claims

fail because the trial court properly ruled that this evidence was admissible.

       Prior to calling Crystal Watt to testify, the judge held a sidebar conference to

determine the scope of permissible cross-examination of Crystal Watt. There is no

record of this sidebar aside from some cursory notes by the judge. As a result of

discussions at sidebar, the trial judge ruled that the prosecution could cross-examine

Crystal regarding acts of domestic violence against Cross's first wife, Irene.

Petitioners now argue that had trial attorneys made a record of their objections at

sidebar, Cross could have successfully challenged the trial court's ruling on direct

appeal.

       Petitioner's claim fails; there is no deficient performance.         At least one

Washington appellate court has reasoned that "U]ust as an appellate lawyer is not

considered ineffective for failing to raise every conceivable non-frivolous claim of error,

a trial lawyer cannot be faulted for failing to make a record of every such allegation."

City of Tacoma v. Durham, 95 Wn. App. 876, 882, 978 P.2d 514 (1999). Thus, Cross's




                                             45
No. 79761-7

trial lawyers did not fall below the standard of reasonableness by failing to make a

record of the sidebar conference.

      In any case, there was no resulting prejudice because the trial court properly

admitted the domestic violence testimony as rebuttal evidence. We have held that

because of its unreliability, evidence of uncharged crimes is not permitted in the

State's case in chief.   State   v.   Bartholomew, 101 Wn.2d 631, 641, 683 P.2d 1079

(1984) (Bartholomew II) (quoting State         v.   Bartholomew, 98 Wn.2d 173, 196-97, 654

P.2d 1170 (1982) (Bartholomew 1), vacated on other grounds by 463 U.S. 1203, 103

S. Ct. 3530, 77 L. Ed. 2d 1383 (1983), aff'd on remand by Bartholomew II). But during

a special sentencing proceeding, the prosecution may offer rebuttal evidence if it is

"relevant to a matter raised in mitigation by the defendant" and '"the rebuttal value of

the evidence outweighs the prejudicial effect."' State       v.   Lord, 117 Wn.2d 829, 891-92,

822 P.2d 177 (1991) (quoting Bartholomew II, 101 Wn.2d at 643).

      Here, the domestic violence evidence tended to rebut mitigation evidence that

Cross was a good person. Crystal testified that Cross could "be a good guy" and "a

good person." Testimony that Cross regularly hit his wife and children rebutted these

assertions. Cf. Lord, 117 Wn.2d at 893-94 (testimony that Lord failed to follow terms

of his probation and had eluded police directly rebutted Lord's father's testimony that

Lord was a "'good boy"'); State        v.   Brett, 126 Wn.2d 136, 189, 892 P.2d 29 (1995)

(testimony regarding Brett's uncharged criminal activities admissible because it

rebutted testimony that Brett "'respected people"' and '"was a gentleman"'). This

testimony also rebutted Cross's claim that his 1988 reckless endangerment conviction

was an isolated event associated with psychosis.


                                                    46
No. 79761-7

      Moreover, there is no prejudice because defense used this testimony to show

that Cross cycled in and out of violence, triggered by stress and depression. See

State v. Vy Thang, 145 Wn.2d 630, 647-48, 41 P.3d 1159 (2002) (generally, parties

may not favorably rely on evidence and then assign its use as error). For instance,

Crystal Watt testified on direct that when Cross was verbally and physically abusive,

he also showed signs of depression-i.e., he did not leave the house for years, put

blankets on the windows, wore dark sunglasses indoors, and paced back and forth all

night. The testimony regarding domestic violence was not cumulative or graphic in

nature. It did not describe acts overly similar to the crime being charged. Also, the

jury was aware of Cross's 1988 reckless endangerment conviction, which was far

more prejudicial because that incident involved Cross assaulting his wife with a knife.

On balance, testimony concerning Cross's familial interactions, including acts of

domestic violence, was relevant and necessary to give the jury a complete picture of

Cross.    Thus, we find that the prejudicial effect of the challenged testimony was

outweighed by its probative value as rebuttal evidence; the evidence was properly

admitted under Bartholomew.

         Cross's second related claim is that counsel was prejudicially ineffective for

questioning Crystal and D.J. Watt about Cross's prior acts of domestic violence. This

claim also fails. Once the trial court properly ruled that the prosecution could cross-

examine Crystal Watt regarding Cross's acts of domestic violence, defense counsels'

decision to partially defuse the subject by bringing it up on direct examination is best

characterized as a trial strategy. Thus, we reject this claim. We also hold that it was

not ineffective assistance of counsel to fail to object when the prosecutor cross-


                                           47
No. 79761-7

examined the witnesses about Cross's acts of domestic violence because the trial

court had already ruled this line of questioning was proper.

   P. Eliciting Testimony That Cross Had Quit His Job To Avoid Paying Child
      Support

          Cross argues that counsel was prejudicially ineffective for disclosing that Cross

had quit his job to avoid paying child-support. This claim fails because introducing

this evidence was a reasonable trial tactic-it showed Cross's stressors leading up to

the murders.

          Evidence of mounting child support payments was relevant to Cross's mental

state leading up to the murders. Indeed, in opening statement, trial counsel presented

a theory of Cross's deterioration, outlining myriad reasons for Cross's downward

spiral:    bouts of domestic violence with his first wife, Irene; in-patient psychiatric

treatment; a divorce from Irene; custody battles over their two children; the death of

his mother; his second marriage failing; and the financial strain he was in due to his

child-support obligations. The overall strategy was to show that Cross's stressors

were cyclical-and the cycle that began in late 1996 exploded in the unplanned

murders of Cross's wife and two of his step-daughters. This was a legitimate trial

tactic because at least one juror may have sympathized with Cross's overall plight,

exacerbated by intense financial stress, and spared him the death penalty.

          Also, it is effective advocacy to anticipate adverse testimony by introducing it

first. See Thang, 145 Wn.2d at 646-48. Here, defense counsel tried to exclude or

limit evidence of Cross's child support obligations.        The trial court ruled that the

evidence was relevant and admissible.          Thus, counsel made a legitimate tactical



                                              48
No. 79761-7

decision to use the evidence to show Cross's frustration and stress leading up to the

murders. We reject petitioner's claims that counsel was prejudicially ineffective for

proactively eliciting testimony that Cross quit his job to avoid paying child support.

   Q. Failing To Object, Ask for a Curative Instruction, or Move for Mistrial when the
      State Elicited Opinions from Experts That Cross Malingered

       Cross claims that trial counsel was prejudicially ineffective for failing to object,

ask for a curative instruction, or move for mistrial when the prosecutor elicited opinions

from mental health experts that Cross might be malingering his psychotic symptoms.

We hold that there was no deficient performance.

       Because malingering is generally beyond the ordinary understanding of lay

persons, it is a proper subject for expert opinion. See Johnson v. Weyerhaeuser Co.,

134 Wn.2d 795, 803, 953 P.2d 800 (1998) (malingering can be established through

expert and nonexpert opinion). Expert opinions and the basis for these opinions are

admissible if they are helpful to the trier of fact. State v. Ellis, 136 Wn.2d 498, 517,

963 P.2d 843 (1998); ER 702.        Here, an opinion whether Cross was malingering

helped the jury to determine if there were sufficient mitigating circumstances (mental

disturbance) to merit leniency. Thus, the prosecutor could properly question experts

on whether Cross malingered, and it was not unreasonable for defense counsel to

allow it.

        Furthermore, defense counsel brought up the issue of malingering so the state

was permitted to respond and present rebuttal evidence. See, e.g., State v. Gentry,

125 Wn.2d 570, 642-44, 888 P.2d 1105 (1995) (rebuttal provoked by defense

counsel's own use of a biblical analogy). Defense counsel first presented evidence



                                            49
No. 79761-7


that Cross did not malinger through Dr. Young's testimony. In response to Dr. Young's

testimony, state experts, based on independent examinations of Cross, testified that

Cross likely malingered. Thus, we find that the prosecutor fairly responded to defense

counsel's presentation of a mitigating factor (extreme mental disturbance). Defense

counsel was not ineffective for failing to object when the prosecutor elicited testimony

that Cross malingered because the prosecution's questions were not objectionable.

      Moreover, there was no resulting prejudice. There was evidence that Cross

malingered; Cross himself testified that he lied to doctors. Moreover, the jury was

instructed that they were not bound by expert opinions and were, thus, free to decide

for themselves, based on all of the evidence, whether Cross malingered. Thus, we

hold there was no prejudice and we reject this ineffective assistance of counsel claim.

   R. Failing To Request Certain Jury Instructions

       In order to find that Cross received ineffective assistance of counsel based on

the trial counsel's failure to request a jury instruction, this court must find that Cross

was entitled to the instruction, that counsel's performance was deficient in failing to

request the instruction, and that the failure to request the instruction prejudiced Cross.

See State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001 ).

   1. Instruction That Jurors May Consider Whether There Was Premeditation

       First, Cross claims that counsel was prejudicially ineffective for failing to request

an instruction that jurors could consider whether there was premeditation. On direct

appeal, we left open the issue of whether it was ineffective assistance of counsel to

fail to request this instruction. We acknowledged that "a law abiding jury might not

have felt it could question an element of the underlying crime to which Cross pleaded


                                            50
No. 79761-7


guilt[y] as a mitigating factor." Cross, 156 Wn.2d at 605 n.6. Lack of premeditation

was central to Cross's defense.       Indeed, Cross explicitly denied premeditating the

murders in his Alford plea and consistently maintained that he did not deserve, the

death penalty because he did not premeditate the killings. Thus, we find that it was

deficient performance for counsel to fail to request this instruction because a

reasonable attorney would have recognized that jurors would not feel free to disregard

an element of a crime to which Cross pleaded guilty.

      We also find that if Cross's attorneys had requested the instruction, it would

likely have been given in light of the uncertainty surrounding the distinction between

premeditation and planning, 20 and given that the trial court told Cross he could

continue to argue lack of premeditation notwithstanding his entering an Alford plea.

State v. Washington, 36 Wn. App. 792,793,677 P.2d 786 (1984) (defendant is entitled

to jury instruction supporting his theory of the case if there is substantial evidence in

the record supporting his theory).

       However, there is no prejudice because Cross cannot show a reasonable

probability that he was harmed. We explained on direct appeal that Cross could and




20It is not entirely clear whether Cross truly understood the difference between premeditation
and planning. For instance, during the plea colloquy, the trial court asked if Cross understood
the difference between premeditation as an element of first degree murder and planned acts.
Cross responded, "That I planned. And premeditate doesn't necessarily mean-for
premeditated, you have to sit there and plan it out for a long period of time." From this, it
seems Cross did not understand what premeditation was. At other times, however, Cross
seemed to understand that planning demands a greater degree of forethought. For example,
Cross believed he had a good chance the jury would not sentence him to death because he
had not planned-i.e., extensively plotted out-the murders. The terms "planning" and
"premeditation" were used interchangeably at trial at critical moments. But as we explain,
Cross could and did argue both lack of planning and premeditation, so there was no prejudice.


                                              51
No. 79761-7


did present evidence of lack of premeditation and that under the instructions given,

jurors had an adequate vehicle for considering the evidence because they were

broadly instructed to consider all mitigating factors. Cross, 156 Wn.2d at 604. And

even assuming the jury did not feel it could consider evidence that Cross did not

premeditate, they could consider evidence that he did not plan, which was also

mitigating. Thus, Cross cannot show that failure to request this instruction prejudiced

him.

   2. Instruction To Explain the Nature and Effect of an Alford Plea

       Second, Cross claims that counsel was prejudicially ineffective for failing to

request an instruction to explain the nature and effect of an Alford plea. This was not

ineffective assistance of counsel because there was no prejudice. Both parties at trial

referred to the Alford plea as a guilty plea, and defense counsel used the fact that

Cross entered a "guilty plea" to show that he was taking responsibility for his actions.

It would not have helped Cross for the jury to know that technically, a defendant who

enters an Alford plea does not acknowledge guilt but instead merely concedes there

is sufficient evidence to support a conviction. This tends to refute defense counsel's

argument that Cross was taking responsibility for his actions. Moreover, there is no

evidence that the jury misunderstood what an Alford plea was or that an explanatory

instruction would have changed their decision. Thus, there was no prejudice.

       We also find that no prejudice resulted from counsel's failure to make a motion

in limine to preclude argument regarding the form of Cross's plea because the State

never argued the form of the plea. The State argued that the actual language of the

plea-" I do not believe I acted with premeditated intent. I also do not believe that the


                                           52
No. 79761-7

three murders were part of any common scheme or plan or the result of a single act"-

suggested that Cross did not accept responsibility for his crimes. And even if this

amounted to arguing the form of the plea, there is no evidence that making the motion

would have changed the outcome of the case. Defense argued several mitigating

factors, and the jury rejected all of them.

   3. Instruction That Jurors May Not Consider the Cost of Medical Care when
      Deciding Whether to Impose the Death Penalty

       Third, Cross claims that counsel was prejudicially ineffective for failing to

request an instruction that jurors could not consider the cost of medical care when

deciding whether to impose the death penalty. This claim fails because there is no

evidence that the jury considered medical costs when they decided to impose the

death penalty. Indeed, the jurors were instructed that they should impose the death

penalty only if they were convinced beyond a reasonable doubt that there were not

sufficient mitigating circumstances.     The mitigating circumstances listed did not

include the cost of lifelong detainment. Cross has not shown a reasonable probability

that the jury would have ruled differently had they received such an instruction.

Accordingly, we reject Cross's claims that counsel's failure to request certain jury

instructions constituted ineffective assistance of counsel.

    S. Failing To Object to or Move To Correct Alleged Errors in Prosecution's
       Closing Arguments

       Defense counsel's failure to object to a prosecutor's closing argument will

generally not constitute deficient performance because lawyers "do not commonly

object during closing argument 'absent egregious misstatements."' In re Pers.

Restraint of Davis, 152 Wn.2d at 717 (quoting United States v. Necoechea, 986 F.2d


                                              53
No. 79761-7


1273, 1281 (9th Cir. 1993)). But, this does not mean that all failures to object are

decidedly reasonable under Strickland. 466 U.S. at 688. If a prosecutor's remark is

improper and prejudicial, failure to object may be deficient performance. Gentry, 125

Wn.2d at 643-44 (it is prosecutorial misconduct if conduct is both improper and

prejudicial).

   1. "Guilt Trip" Statements

       Cross's first two claims involve prosecutor's "guilt trip" remarks. Both of these

claims fail because the statements were not improper and prejudicial. Thus, failure to

object was not deficient performance.

       It is prosecutorial misconduct for a prosecutor to make any argument that

diminishes the juror's sense of personal responsibility in deciding whether to inflict

capital punishment. Caldwell    v.   Mississippi, 472 U.S. 320, 329-30, 105 S. Ct. 2633,

86 L. Ed. 2d 231 (1985). Appellate courts have reversed death sentences where an

improper comment in closing argument minimized the jury's role in determining

whether to issue a death sentence. See, e.g., Antwine      v.   Delo, 54 F.3d 1357 (8th Cir.

1995) (statement that defendant would be "put to death instantaneously" minimized

the burden of sentencing someone to death by inferring that the death would be

painless and easy); see also Frye     v.   Commonwealth, 231 Va. 370, 395 (1986) (death

sentence set aside for prosecutorial misconduct where prosecutor told jurors that the

"'load is not on your shoulders"').

       Here, in closing argument, the prosecutor told jurors, "You can't let the

defendant make you feel guilty for the decision he puts you in the position of making."

We find that this comment does not minimize the burden of sentencing someone to


                                               54
No. 79761-7

death, especially when taken in context. See Gentry, 125 Wn.2d at 640 (court must

consider context).     Immediately prior to making the "guilt trip" statement, the

prosecution reminded jurors that their "decision cannot be based on passion or

prejudice." Immediately after, the prosecution emphasized that whatever decision the

jurors came to "must be based on logic, thoughtfulness, and the use of good common

sense." Prosecutors never delegated the responsibility for imposing the death penalty

on anyone other than the jury and instead advised jurors that "[the death penalty],

because of its severity, should be used sparingly and cautiously." Thus, we hold that

the comment, while imprecise, 21 was not improper, and failing to object was not

deficient performance.

      Petitioner's second claim involves the prosecutor's statement: "[D]on't let the

defense guilt trip you because of the immensity of the task .... [Y]ou should feel no

guilt for being members of the community doing a civic duty. That was a play on your

sympathy and emotion." Citing Viereck v. United States, 318 U.S. 236, 247, 63 S. Ct.

561, 87 L. Ed. 734 (1943), petitioner argues that this statement was improper because

it suggested that by returning a verdict of death, jurors were simply "doing a civic duty."

       But, Viereck is distinguishable. In his closing remarks to the jury, the prosecutor

in Viereck "indulged in an appeal wholly irrelevant to any facts or issues in the case,

the purpose and effect of which could only have been to arouse passion and

prejudice." Viereck, 318 U.S. at 247. In a prosecution for violation of the Foreign



21Petitioner's argument that it was technically the State who put jurors in this position,
because the State has the option of seeking the death penalty, is hairsplitting and misses the
point of Caldwell.


                                             55
No. 79761-7

Agents Registration Act of 1938, 22 U.S.C. §§ 611-621, the prosecutor began his

closing argument by cautioning jurors that '"this is war"' and that '"there are those who,

right at this very moment, are plotting your death ... ; plotting our death .... "' /d. at

348 n.3. He continues:

       "It is a fight to the death. The American people are relying upon you
       ladies and gentlemen for their protection against this sort of a crime, just
       as much as they are relying upon the protection of the men who man the
       guns in Bataan Peninsula, and everywhere else. They are relying upon
       you ladies and gentlemen for their protection. We are at war. You have a
       duty to perform here.

             "As a representative of your Government I am calling upon every
       one of you to do your duty."

/d. The court reasoned that "[a]t a time when passion and prejudice are heightened

by emotions stirred by our participation in a great war," there is no doubt that these

comments were improper and should have been interrupted by the court without

waiting for objection. /d. at 248.


       By contrast, here, the prosecutor did not implore the jurors to return a death

penalty as their civic duty, nor did he make irrelevant comments for the sole purpose

of arousing passion and prejudice. Rather, he repeated defense counsel's sentiment

regarding the immensity of the task facing the jurors. The statement here does not

approach the level of impropriety in Viereck.      We find that while the prosecutor's

statements were a bit unpolished, they were not egregious misstatements and failure

to object was not deficient performance.

       In addition, there is no resulting prejudice as to both comments. Cross has not

demonstrated a reasonable probability that objecting to these remarks would have

changed the sentence.       The comments were a few lines in a 75-page closing

                                            56
No. 79761-7


argument. Thus, we reject Cross's ineffective assistance of counsel claim for failure

to object to these "guilt trip" remarks.

   2. Suggesting Cross Took Three Lives in Exchange for Life Imprisonment

       Cross next takes issue with the statement: "You must consider what Mr. Cross

took. What did he take without cause, without justification of right? He took from

Anouchka and Solome and Amanda their right to life, liberty and the pursuit of

happiness. But all he offers in return is the loss of his liberty."   We hold that this was

not improper and failure to object was not deficient performance.

       A prosecuting attorney has a duty to the public '"to act impartially in the interest

only of justice."' State   v.   Monday, 171 Wn.2d 667, 676 n.2, 257 P.3d 551 (2011 ).

Arguments intended to "incite feelings of fear, anger, and a desire for revenge" that

are '"irrelevant, irrational, and inflammatory"' are improper appeals to passion or

prejudice. State v. Elledge, 144 Wn.2d 62, 85, 26 P.3d 271 (2001) (quoting BENNETT

L. GERSHMAN, TRIAL ERROR AND MISCONDUCT§ 2-6(b)(2), at 171-72 (1997)); see State

v. Reed, 102 Wn.2d 140, 147, 684 P.2d 699 (1984) (prosecutor may not make heated

partisan comments in order to procure a conviction at all hazards).

       The comment at issue here does not rise to the level of impropriety that

characterizes improper appeals to passion or prejudice.          Cf. State     v.   Warren, 165

Wn.2d 17, 27, 195 P.3d 940 (2008) (stating three times in closing that proof beyond a

reasonable doubt '"doesn't mean you give the defendant the benefit of the doubt"');

Reed, 102 Wn.2d at 145-46 (prosecutor referred to defendant as a "liar" four times,

stated defense had no case, and implied defense witnesses should not be believed

because they were from out of town and drove fancy cars); State           v.   Powell, 62 Wn.


                                             57
No. 79761-7

App. 914, 918, 816 P.2d 86 (1991) (prosecutor stated that verdict of not guilty would

send a message that children who reported sexual abuse would not be believed,

thereby declaring an '"open season on children'll); United States        v.   McRae, 593 F.2d

700, 706 (5th Cir. 1979) ('"turn him loose, and we'll send him down in the elevator with

you and his gun"'). While the suggestion that Cross exchanged three human lives for

life imprisonment might incite an emotional response on the part of the jury, it was

limited to the circumstances of the crime. See Brett, 126 Wn.2d at 214 ("[a]rguments

which may evoke an emotional response are appropriate if ... restrict[ed] ... to the

circumstances of the crime"). Prosecutor's statements were neither flagrant nor ill

intentioned. Thus, it was not deficient for counsel to fail to object; we reject this

ineffective assistance of counsel claim.

       3. Commenting on Expert Testimony

          Cross contends also that his counsel was ineffective for failing to object to the

prosecutor's statement (1) that neither of the prosecution's two expert witnesses

believed that Cross's depression was a legitimate mitigating factor and, on rebuttal,

(2) that during defense counsel's closing argument, counsel had put little to no weight

in their own experts' testimony.

          We find no resulting prejudice arising from prosecutor's opinion that neither of

its experts believed Cross's depression was a legitimate mitigating factor. It is true

that a witness may not opine whether the proffered evidence provides a 11 Valid 11 or
11
     legitimate 11 mitigating factor without invading the province of the jury in the penalty

phase of a capital case. See generally State        v.   Black, 109 Wn.2d 336, 348, 745 P.2d

12 (1987) (experts may not invade province of jury). But here, it is a prosecutor, not


                                               58
No. 79761-7

a witness, speaking. And the jury instructions made clear that attorney remarks were

not evidence and that the jury should disregard any remark, statement, or argument

not supported by the evidence or law as stated by the court. Thus, there was no

prejudice.

      Cross's second claim also fails.      While it is improper for a prosecutor to

personally vouch for the credibility of any witness (Brett, 126 Wn.2d at 175), merely

stating that defense attorneys appear to place weight on State expert testimony is not.

Also, there is no prejudice because the jurors were told that they are "the sole judges

of the credibility of the witnesses and of what weight is to be given the testimony of

each." Accordingly, we reject these ineffective assistance of counsel claims.

   4. Representing That "Under the Influence of Extreme Mental Disturbance"
      Requires Causation

       Cross argues that his lawyers were prejudicially ineffective for permitting the

State to argue that the mitigating factor of "extreme mental disturbance" requires a

causal connection between the mental disturbance and the murder. This claim fails

because the State argued a reasonable interpretation of the statute and the jury was

properly instructed to consider all mitigating evidence.

       RCW 10.95.070 lists several mitigating factors, one of which is that the "murder

was committed while the defendant was under the influence of extreme mental

disturbance." RCW 10.95.070(2). In closing argument, defense counsel argued that

the mental disturbance mitigating factor applied because Cross suffered from major

depression at the time of the murders. In rebuttal, the prosecution argued that it did

not apply because Cross's depression did not cause him to commit the murders.



                                           59
No. 79761-7

      An attorney may argue a reasonable interpretation of the law.                Here, a

reasonable reading of "while under the influence" is that the mental disturbance must

influence or cause the defendant's conduct. See State v. Davis, 175 Wn.2d 287, 347,

290 P.3d 43 (2012) (sufficient evidence to support jury's findings that there were not

sufficient mitigating circumstances because expert testimony tended to show

defendant's diminished mental capacity did not cause him to commit the crime).

Indeed, the State illustrates the absurdity of the petitioner's position: merely requiring

temporal concurrence would mean that persons who suffer from arachnophobia (fear

of spiders) would be entitled to invoke the statutory mitigating factor for killing, even if

the killing has nothing to do with spiders. Thus, it was not deficient performance to

permit the State to argue a reasonable interpretation of the statute.

       In any case, there was no prejudice. Under the instructions given, reasonable

jurors would believe they could consider any relevant mental health evidence as

mitigating. Moreover, asking for a clarifying instruction may have actually harmed

Cross more than helped him because the instruction likely would have stated that the

statute requires causation. As it was, some jurors may have accepted the defense's

position that only temporal concurrence was required. Thus, Cross has not shown a

reasonable probability that objecting to the statement or that requesting a clarifying

instruction would have affected the outcome of the trial.

   5. Representing That "History of Criminal Activity" Included Defendant's
      Uncharged Criminal Acts

       Petitioner argues that defense counsel was prejudicially ineffective for

permitting the State to argue that the statutory mitigating factor of "history of criminal



                                             60
No. 79761-7


activity" included uncharged acts of domestic violence.              We find no deficient

performance because defense counsel was not required to object or to request a

clarifying instruction. Moreover, there was no prejudice.

       In the State's closing argument, the prosecutor acknowledged that Cross had

very few convictions but then suggested that he had "quite a bit of history of violence"

because there was evidence he hit his first and second wives. Thus, they argue that

the statutory mitigating factor of "no significant history of prior criminal activity" did not

apply to Cross. The defense countered that "criminal activity" meant convictions, and

Cross only had one misdemeanor conviction 10 years ago. So this mitigating factor

applied.

        Petitioner now argues that it was ineffective assistance of counsel to allow the

prosecution to advance its line of reasoning because evidence of a defendant's prior

criminal activity, other than convictions, is not admissible in the State's case in chief.

Bartholomew I, 98 Wn.2d at 199, aff'd on remand by Bartholomew II, 101 Wn.2d at

644; see RCW 10.95.060(3).          But Bartholomew interprets RCW 10.95.060, which

concerns the admission of evidence, whereas RCW 10.95.070 lists statutory

mitigating factors.

        In Delo   v.   Lashley, 507 U.S. 272, 278, 113 S. Ct. 1222, 122 L. Ed. 2d 620

(1993), the Supreme Court reviewed a similar mitigating factor statute in Missouri.

Mo. REV. STAT. § 565.032(3)(1) (statutory mitigating factor shall include the defendant

has no significant history of criminal activity). The Court explained that the statutory

mitigating factor refers not only to arrests or convictions, but more broadly to "'criminal

activity."'   Delo, 507 U.S. at 278.     Thus, we find that the state's position was a


                                              61
No. 79761-7

reasonable statement of the law and defense counsel's failure to object was not

deficient performance.

      In any case, we find no resulting prejudice because Cross cannot show a

reasonable probability that the outcome would have differed had counsel objected.

Reasonable jurors would believe that Cross's relatively clean criminal record could be

considered as mitigation evidence.

      Likewise, the failure to request an instruction clarifying the ·meaning of "criminal

activity" was not deficient performance because the requested instruction would not

have been given. Bartholomew and its progeny hold that evidence of nonstatutory

aggravating factors must be limited to a defendant's record of convictions, evidence

that would have been admissible at the guilt phase, and evidence to rebut matters

raised in mitigation by defendant. Bartholomew II, 101 Wn.2d at 641-42; see also

Lord, 117 Wn.2d at 890; State v. Pirtle, 127 Wn.2d 628, 666, 904 P.2d 245 (1995);

State v. Stenson, 132 Wn.2d 668, 745, 940 P.2d 1239 (1997); State v. Roberts, 142

Wn.2d 471, 14 P.3d 713 (2000).        Thus, Bartholomew deals with admissibility of

evidence. Here, as discussed above, the testimony regarding Cross's prior acts of

domestic violence was properly admitted as rebuttal evidence.         Once evidence of

nonadjudicated criminal acts is properly admitted, the jury can consider it as evidence

of "prior criminal activity" under RCW 10.95.070(1 ). That is, once the evidence is

deemed admissible under Bartholomew, it is proper fodder for proving an aggravating

factor. As the state convincingly argues, the admission of rebuttal evidence would be

pointless if the prosecutor could not argue its relevance, especially when defense

counsel argues in closing that Cross's prior history of criminal activity is de minimis.


                                           62
No. 79761-7

The Bartholomew rule generally barring admission of nonadjudicated criminal acts

does not extend to bar argument on properly admitted rebuttal evidence. Thus, it was

not deficient performance for Cross's trial counsel to fail to request an instruction that

would not have been given.

         Moreover, even had counsel requested the instruction and even had the judge

granted the request, Cross has not shown a reasonable probability that the jury would

have concluded that the balance of aggravating and mitigating circumstances did not

warrant death. Accordingly, we reject this ineffective assistance of counsel claim.

      T. Conclusion

         Cross fails to show that the specific acts or omissions complained of fell outside

the wide range of professional competent assistance, resulting in prejudice. Thus,

under Strickland, Cross's ineffective assistance of counsel claims fail.

 V.      Constitutionality of the Death Penalty

      Cross claims that Washington's death penalty statute violates the state and federal

constitutions because it is arbitrarily applied. See ch. 10.95 RCW. On Cross's direct

appeal, we rejected identical claims. Cross, 156 Wn.2d at 622-26. Cross may not

raise an issue in a personal restraint petition that was raised and rejected on direct

appeal, unless the interests of justice require relitigation of that issue. In re Pers.

Restraint of Davis, 152 Wn.2d at 671; In re Pers. Restraint of Lord, 123 Wn.2d at 303.

A petitioner can show that the interests of justice require relitigation of an issue by

showing either that there has been an intervening change in the law or there is '"some

other justification for having failed to raise a crucial point or argument in the prior

application."' Gentry, 137 Wn.2d at 388 (internal quotation marks omitted) (quoting In


                                             63
No. 79761-7


re Pers. Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986)). Cross fails

to make either showing.

   A. Violation of Article I, Section 14 of the Washington Constitution and the Fifth
      and Eighth Amendments to the United States Constitution

        On direct appeal, we rejected Cross's claim that Washington's death penalty is

arbitrarily applied and, thus, violates the Eighth Amendment prohibition against "cruel

and unusual punishment." U.S. CONST. amend. VIII. There have been no intervening

changes in the law that would require reconsideration of the issue, so this claim is

barred.

        We have consistently recognized that a "sentencing scheme must not allow the

death penalty to be wantonly or freakishly imposed, it must direct and limit jury

discretion, to minimize the risk of arbitrary or capricious action, and it must allow

particularized consideration of relevant aspects of the character and record of each

defendant, and the circumstances of the offense, before imposition of the sentence."

State   v.   Dodd, 120 Wn.2d 1, 13 n.2, 838 P.2d 86 (1992) (citing Gregg v. Georgia, 428

U.S. 153, 188-89, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Woodson v. North Carolina,

428 U.S. 280, 304-05, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)); accord State    v.   Yates,

161 Wn.2d 714, 792, 168 P.3d 359 (2007). On Cross's direct appeal, we held that

Washington's death penalty statute meets this standard. Cross, 156 Wn.2d at 623.

We explained that eight statutory protections, along with statutorily mandated

proportionality review, "prevent[ ] arbitrary and capricious application of the death

penalty." !d. at 623-24. Our statutes "properly constrain prosecutorial discretion in

seeking the death penalty; they properly direct the jury to consider appropriate factors;



                                             64
No. 79761-7

and they provide for meaningful mandatory appellate review in every case." /d. at

623. Thus, this claim is barred.

         Because Cross cannot establish that chapter 10.95 RCW violates the Eighth

Amendment, his claim that the statute violates article I, section 14 of the Washington

State Constitution is also unavailing. See Dodd, 120 Wn.2d at 22 (concluding that

"[t]he Gunwa/1 factors do not demand that we interpret Con st. art. 1, § 14 more broadly

than the Eighth Amendment").

         Petitioner's other arguments are unconvincing. Once again, Cross points out

that mass murderers such as Gary Ridgway are sentenced to life without parole, while

defendants convicted of allegedly less grievous crimes, like Cross, are put to death.

Cross's reliance on Ridgway's life sentence is no more availing now than it was on

direct appeal. See also Yates, 161 Wn.2d at 792.

         Cross points to ABA findings, released in October of 2007, that state death

penalty systems are deeply flawed. The ABA studied eight states to reach its findings.

Notably, Washington was not one of them. 22 Of the states studied, some did not

require any proportionality review at all, and, in those that did, the review tended to be

cursory and included only cases where death was imposed, leaving out potentially

important cases where death was sought but not imposed and where death could

have been, but was not, sought. See ABA MORATORIUM IMPLEMENTATION PROJECT,

STATE DEATH PENALTY ASSESSMENTS: KEY FINDINGS (2007). 23 By contrast, our statute


22The ABA studied Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and
Tennessee.
23   Available at http://www.abanet.org/moratorium/assessmentproject/keyfindings.doc.


                                              65
No. 79761-7

requires that trial judges submit reports in all cases where a person is convicted of

aggravated first degree murder. RCW 10.95.120. Using these reports, a reviewing

court must determine whether the sentence of death is excessive or disproportionate

to the penalties imposed in "similar cases." RCW 10.95.130(1 )(b). "Similar cases"

means cases in which the judge or jury considered the imposition of capital

punishment, regardless of whether it was imposed or executed. /d.

      Cross also argues that in light of the Gary Ridgeway experience, prosecutors

in Washington are declining to seek the death penalty in countless cases and the

result is arbitrary imposition of the death penalty. We rejected this line of reasoning

in Yates because "one prosecutor's discretion [cannot] render 10.95 RCW

unconstitutional."   Yates, 161 Wn.2d at 793.    Thus, Cross fails to show that the

interests of justice require reconsideration of his argument that Washington's death

penalty is arbitrary, in contravention of the Eighth Amendment.

   B. Violation of the Due Process Clause

      Cross also argues that because the death penalty is applied arbitrarily and

capriciously, his death sentence violates his Fifth Amendment right to due process.

As discussed above, our statutes provide for adequate protections and meaningful

mandatory review of death sentences. Specifically, a reviewing court will conduct a

proportionality review based on four key factors: the nature of the crime, the

aggravating circumstances, the defendant's criminal history, and the defendant's

personal history.    Cross, 156 Wn.2d at 630-31.     In Pirtle, 127 Wn.2d at 683, we

rejected a due process challenge to our proportionality review, noting that the court

has "an explicit framework for analysis." Thus, Cross's claim fails.


                                          66
No. 79761-7

     C. Constitutionality of Washington's Letha/Injection Protocol

        In his placeholder petition, Cross argued that Washington's lethal injection

protocol is unconstitutional. 24     However, this claim is moot because in 2010,

Washington changed its lethal injection protocol from three drugs to one drug. See

Brown   v.   Vail, 169 Wn.2d 318, 237 P.3d 263 (201 0) (ruling on consolidated claims of

three death row inmates, Darold Stenson, Cal Brown, and Jonathan Gentry, that

Washington's three-drug lethal injection protocol is unconstitutional).

                                       CONCLUSION

        Cross has not shown actual and substantial prejudice from any of the actions

of which he complains. We dismiss his petition.




24 On March 6, 2009, this court granted, in part, Cross's discovery request for information
relating to Washington's three-drug lethal injection protocol. On April 3, 2009, we granted a
stay on all outstanding issues raised in this case, pending resolution of the Alford plea issues.
On Nov. 6, 2009, we denied the State's request to lift the stay regarding the legality of
Washington's lethal injection protocol and granted parties leave to renew the motion to lift the
stay once we decided whether to retain Supreme Court No. 83474-1, regarding petitioners
Brown, Stenson, and Gentry. We retained the case and filed an opinion in July 2010. Brown
v. Vail, 169 Wn.2d 318, 237 P.3d 263 (201 0).

                                               67
No. 79761-7




     WE CONCUR.



                       P.t




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