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  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ~F
                                                             ~
  In the Matter of the Personal Restraint of ) No. 74135-7-I ~

  RAYMOND WESLEY GARLAND,                                                                   )   DIVISION ONE
                                                                                            )
                                           Petitioner.                                      )   UNPUBLISHED OPINION
                                                                                            )
                                                                                            )   FILED: April 18, 2016
___________________________________________________________________________________________ )
             APPELWICK, J.                —     Garland was convicted of second degree murder, second

degree manslaughter, and second degree assault after shooting two men and

killing one of them. His conviction was affirmed on appeal. In a personal restraint

petition, Garland argues that he received ineffective assistance of both trial and

appellate counsel. He asserts, for the first time, that the trial court abused its

discretion by admitting evidence suggesting that he was affiliated with a gang, that

his verdict is inconsistent, that the trial court erred when it did not conduct the

appropriate inquiry before allowing his attorney to withdraw before sentencing, and

that he is entitled to a new trial based on cumulative error. We deny the petition.

                                                                          FACTS

              On November 11, 2004, Raymond Garland met friends at a local bar called

 Bleacher’s. State v. Garland, 169 Wn. App. 869, 871, 282 P.3d 1137 (2012).
No. 741 35-7-1/2


Shortly after midnight, Garland and a friend were talking in the Bleacher’s parking

lot when several cars pulled in. ki. at 871-72. One of the cars lightly struck a

telephone pole while parking. ki. Garland made a comment to the driver about

striking the pole, and an argument ensued. ki. at 872.

       Earl “Keyon” Brock was the driver who struck the pole. j~ Brock was with

his girlfriend, Shelley Dominick, his cousin, Karltin Marcy, Dominick’s sister, Lisa

Loggins, and another couple, Tim Valentine and Lisa Lambert. ki. Most of them

had been drinking, at least moderately, at a party earlier that night. Id.

       Dominick, Marcy, Loggins, Valentine, and Lambert all stated that Brock got

into an argument with Garland. Id. Shortly thereafter, Brock was fatally shot in the

chest and Marcy sustained a bullet wound to the groin. Id. The witnesses did not

know Garland. See id. But, Valentine and Lambert recalled that the shooter had

a neck tattoo and that the shooter had said his first name was Ray.            After

contacting the police, both Valentine and Lambert later identified Garland from a

photomontage.      ki.   Marcy also identified Garland as the shooter from a

photomontage. Id. at 873.

       Police arrested Garland on November 17, 2004. Id. The State charged

Garland with first degree murder, first degree assault, first degree unlawful

possession of a firearm, and second degree assault. j~ The State also alleged

that Garland committed each of these crimes with a deadly weapon (a firearm).

ki. After twice amending the information, the State eventually brought four charges

to trial: premeditated murder or, in the alternative, murder as the result of extreme

indifference to human life; second degree murder; first degree assault (for the


                                              2
No. 74135-7-1/3


injury to Marcy); and first degree unlawful possession of a firearm. jçj~ The State

alleged that Garland committed the first three charges while armed with a deadly

weapon, a firearm. ki.

       On January 24, 2007, Garland’s trial began. Id. at 874. Garland waived his

right to a jury trial on the unlawful possession of a firearm charge. iç[~ The trial

court declared a mistrial on March 23 after the jury had been reduced to 11

members. kL

       Garland’s second trial began on August 21, 2007, and again, Garland

waived his right to a jury trial on the first degree unlawful possession of a firearm

charge. ki. On September 24, Garland asked the assigned trial judge to recuse

in light of newly discovered information about alleged threats to the trial judge from

Garland’s family and associates. Id. The trial court declared a second mistrial and

immediately recused. j~

       Garland’s third trial began on August 10, 2009. kI. Garland again waived

his right to a jury on the unlawful possession of a firearm charge. j~ On October

26, the jury found Garland guilty of second degree manslaughter, second degree

murder, and second degree assault.         ki.       The jury also found that Garland

committed all three crimes while armed with a firearm. Id. On May 3, 2010, the

trial court found Garland guilty of first degree unlawful possession of a firearm.   ]4,
       Garland appealed. See ki. at 871. In that appeal, Garland argued that the

trial court abused its discretion when it allowed the State to impeach him with his

trial counsel’s opening statements from the two previous mistrials. j4~ at 874-75.

He also argued that the trial court violated the appearance of fairness doctrine. j~


                                                 3
No. 741 35-7-1/4


at 871. On August 8, 2012, Division Two affirmed Garland’s convictions.           ]~ at
871, 894.

         Garland filed this personal restraint petition (PRP) on July 17, 2013. He

filed a supplemental opening brief with additional arguments on November 6,
2014.1

                                    DISCUSSION

         A petitioner may request relief through a PRP when he or she is under

unlawful restraint.2 In re Pers. Restraint of Monschke, 160 Wn. App. 479, 488, 251

P.3d 884 (2010). The Washington Supreme Court has limited collateral relief

available through a PRP, because it undermines the principles of finality of

litigation, degrades the prominence of trial, and sometimes deprives society of the

right to punish admitted offenders. ki. The availability of collateral relief is limited

in two ways. In re Pers. Restraint of Yates, 177 Wn.2d 1, 16, 296 P.3d 872 (2013).

First, the petitioner in a PRP is prohibited from renewing an issue that was raised

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

that issue. Id. at 17. Second, new issues must meet a heightened showing before

a court will grant relief. Id. For alleged constitutional errors, a petitioner has the

burden of showing actual prejudice. Id. For alleged nonconstitutional errors, the

        The panel granted Garland an opportunity to submit supplemental briefing
         1
to preserve an argument that appellate costs should not be awarded to the State.
The panel defers to the commissioner for a determination on the question of
appellate costs should the State request them. We confer upon the commissioner
the authority to deny the State’s request on the basis of indigency in accordance
with the factors outlined in State v. Sinclair, 72102-0, 216 WL 393719, at *6*7
(Wash. Ct. App. Jan. 27, 2016)
       2 Garland is under “restraint” as he is confined under a judgment and
sentence resulting from a decision in a criminal proceeding. RAP 16.4(b).

                                               4
No. 74135-7-115


petitioner must show a fundamental defect resulting in a complete miscarriage of

justice.           The petitioner must make these heightened showings by a

preponderance of the evidence. ~

       When reviewing a PRP, this court has three options: (1) dismiss the

petition,3 (2) remand the petition for a full hearing on the merits or for a reference

hearing pursuant to RAP 16.11(a) and RAP 16.12, or(3) grant the petition without

remanding the cause for further hearing. Monschke, 160 Wn. App. at 488; Yates,

177 Wn.2d at 17. Dismissal is necessary where a petitioner fails to make a prima

fade showing of actual prejudice, for alleged constitutional errors; or, for alleged

nonconstitutional errors, a fundamental defect resulting in a complete miscarriage

of justice.     Yates, 177 Wn.2d at 17-18.    A hearing is appropriate where the

petitioner makes the required prima facie showing, but the merits of the

contentions cannot be determined solely on the record. jç~ at 18.

           To establish a prima facie showing required for a reference hearing, a

petitioner must offer the facts underlying the claim of unlawful restraint and the

evidence available to support the factual allegations.       ~ at 18.      Mere bald

assertions and conclusory allegations are insufficient to justify a reference hearing.

ki. For matters outside the existing record, the petitioner must demonstrate that

he has competent, admissible evidence to establish the facts that entitle him to

relief. j~ The evidence must be more than mere speculation or conjecture. j4.




      ~ RAP 16.11 (b) states that the chief judge can dismiss a PRP or a panel of
judges may deny a PRP.

                                              5
No. 741 35-7-1/6


        Garland raises multiple issues through his PRP. He argues that his trial

counsel was ineffective for failing to convey a plea offer, by acting unethically, and

by failing to research the law during his third trial.     Garland asserts that his

appellate counsel was ineffective for failing to raise claims regarding the defects

of a trespass order and search warrant used to search his mother’s house.

Garland contends that the trial court abused its discretion by admitting evidence

suggesting that he belonged to a gang. He also asserts that his verdicts were

inconsistent, that the trial court failed to make the proper inquiry before allowing

his attorney to withdraw, and that he is entitled to a new trial based on the

cumulative error doctrine.

   I.   Ineffective Assistance of Counsel

        Garland argues that his trial counsel was ineffective. Effective assistance

of counsel is guaranteed by both the federal and state constitutions. In re Pers.

Restraint of Woods, 154 Wn.2d 400, 420, 114 P.3d 607 (2005). A successful

ineffective assistance of counsel claim requires the defendant to show that

counsel’s performance was deficient and that the defendant was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 674 (1984). The representation was deficient if it fell below an

objective standard of reasonableness based on consideration of all the

circumstances. In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d I

(2004). Where an ineffective assistance of counsel claim is raised in a PRP, if the

petitioner meets his burden under Strickland, the petitioner has necessarily met

his burden to show actual and substantial prejudice as is required to satisfy the


                                              6
No. 74135-7-1/7


standard for a PRP. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280

P.3d 1102 (2012).

      The court approaches an ineffective assistance of counsel argument with a

strong presumption that counsel’s representation was effective. Davis, 152 Wn.2d

at 673. A petitioner can rebut this presumption by proving that his attorney’s

representation was unreasonable under prevailing professional norms and that the

challenged action was not sound strategy. Id. The reasonableness of counsel’s

performance is to be evaluated from counsel’s perspective at the time of the

alleged error and in light of all the circumstances. j~ We review claims of

ineffective assistance of counsel de novo. Monschke, 160 Wn. App. at 490.

      A. Ineffective Assistance of Trial Counsel   —   Plea Offer

       Garland argues that he received ineffective assistance of trial counsel,

because his trial attorney unreasonably failed to convey a plea offer that would

have resulted in dismissal of a firearm enhancement and a sentence 10 years less

than the sentence imposed after trial.

       The right to effective assistance of counsel extends to the plea bargaining

stage of a criminal prosecution. Laflerv. Cooper,_U.S._, 132 S. Ct. 1376, 1384,

182 L. Ed. 398 (2012). Defense counsel is under an ethical duty to discuss plea

negotiations with his or her clients. State v. James, 48 Wn. App. 353, 362, 739

P.2d 1161 (1987). If the attorney did not discuss the plea negotiations, a breach

of this duty occurred, indicating deficient performance. ~

       If a defendant’s right to effective assistance of counsel in considering

whether to accept a plea bargain is denied, prejudice can be shown if loss of the


                                            7
No. 74135-7-1/8


plea opportunity led to a trial resulting in conviction on more serious charges or on

the imposition of a more severe sentence. Lafler, 132 S. Ct. at 1387. As to the

uncertainty of whether plea bargain negotiations would have resulted in a

consummated bargain, the standard is whether there is a reasonable probability

that but for an attorney’s error, a defendant would have accepted a plea

agreement. James, 48 Wn. App. at 363-64.

       Thus, whether Garland’s trial attorney was ineffective turns on whether his

attorney failed to communicate a plea offer, whether there is a reasonable

probability that Garland would have accepted the plea offer, and whether Garland

can show that his trial resulted in a conviction on a more serious charge or the

imposition of a more serious sentence.

       The plea offer in question is from November 2008. It was made in between

Garland’s second mistrial and the beginning of his third trial. Plea negotiations

took place in an e-mail conversation between defense counsel, Barbara Corey,

and Pierce County Deputy Prosecutor, Stephen Penner.

       On November 13, 2008 at 8:21 a.m., Corey e-mailed Penner and informed

him that she would welcome the opportunity to discuss a possible resolution of the

case. Corey questioned the veracity of the State’s evidence and proposed a guilty

plea to second degree manslaughter and dismissal of another assault case against

Garland. Corey also stated that Garland’s mother would agree not to pursue an

unrelated civil claim against the Pierce County Sherriff’s Department.

       Penner responded on November 21, 2008 at 2:43 p.m. He stated that the

best deal he could offer Garland was to amend the charge for Brock’s death to


                                             8
No. 74135-7-1/9


murder in the second degree (felony murder) with a firearm enhancement and

amend the charge for Marcy to assault in the second degree with no firearm

enhancement. He noted that if Garland took the deal, Garland’s total time served

for both this case and another assault case would be 225 months.4 Penner asked

Corey to communicate the offer to Garland. Corey responded that same day at

3:13 p.m.—half an hour later. She said that it was not a “terribly bad offer,” but

she countered with manslaughter in the first degree and “[a]greement the same on

the other assault case.” She said that she could “sell” her counter-proposal.

Penner responded on November 25, 2008 at 4:23 p.m. informing Corey that he

could not reduce the charge to manslaughter and that murder in the second degree

was his last and best offer. Penner told Corey that if Garland wished to accept

that deal that she should set the plea date, but if not, that they should go to trial.

Ten minutes later Corey responded only, “Happy Turkey Day to you and your

family. B.” Nothing in the record indicates that Corey explicitly rejected the State’s

counter offer on November 25, 2008 or on a later date.

       Garland argues that the timing on the e-mail communications is evidence

that Corey did not communicate the plea offer. Garland argues that nothing about




       ~ Had Garland accepted the State’s November 2008 plea offer and had the
court sentenced Garland based on the charges in the guilty plea, Garland would
have received a 225 month sentence. After going to trial, Garland was convicted
of murder in the second degree, assault in the second degree, and unlawful
possession of a firearm in the first degree. He was sentenced to 346 months. The
State does not refute that Garland’s trial resulted in a conviction on a more serious
charge or the imposition of a more serious sentence than the terms of the plea
offer.

                                              9
No. 74135-7-1/10


the e-mail correspondence shows that defense counsel had communicated or

intended to communicate with Garland about pleading guilty.

       In response, the State submitted a declaration from Corey. Corey stated

that it was Garland’s position during the entire time she represented him that he

would never plead guilty to any murder charge. She maintained that Garland’s

goal was an acquittal or, at most, a manslaughter conviction. She noted that the

only offer that the prosecutor made in this case (after the second mistrial) was an

offer that Garland adamantly rejected.

       But, Corey also references a plea offer from November 2009 in her

declaration—not the November 2008 offer. That plea offer was in reference to an

unrelated assault case under a different cause number. Thus, it is unclear from

Corey’s declaration which case she was referring to when she noted that Garland

adamantly rejected the “only offer.”

       Garland then submitted a declaration clarifying that Corey never told him

about the plea offer made by the prosecutor “before [his] third trial”—presumably

referencing the November 2008 plea offer. He stated that had Corey told him

about the plea offer, he would have taken it. Garland noted that it was possible

that he told Corey he would never plead guilty to murder. But, that if he did say

that, it was early on, before he went through two mistrials.

       As Garland correctly points out in his reply brief, Corey does not specifically

address in her declaration whether she communicated the November 2008 pretrial

plea offer to Garland. To address the lack of specificity in Corey’s declaration and




                                             10
No. 74135-7-I/Il


the parties’ differing interpretations of the November2008 e-mails, Garland argues

that the case must be transferred to the superior court for a reference hearing.

       In order to support a request for a reference hearing, a petitioner must state

in his petition the facts underlying the claim of unlawful restraint and the evidence

available to support the factual allegations. In re Pers. Restraint of Rice, 118

Wn.2d 876, 885-86, 828 P.2d 1086 (1992). This does not mean that every set of

allegations which is not meritless on its face entitles a petitioner to a reference

hearing. ki. at 886. Rather, the petitioner must state with particularity facts which,

if proven, would entitled him to relief. Id. The purpose of a reference hearing is to

resolve genuine factual disputes, not to determine whether the petitioner actually

has evidence to support his allegations. ki. Thus, a mere statement of evidence

that the petitioner believes will prove his factual allegations is not sufficient. Id.

       Garland argues that he has provided sufficient evidence supporting his

position that Corey never communicated the 2008 pretrial plea offer. He cites to

jail visit and phone logs showing a lack of contact between Corey and Garland

after the November 2008 plea offer was made, declarations of Garland’s family

members stating that they did not learn of any plea offers until after trial, and billing

records to support his assertion that the offer was never communicated.

       The pretrial plea offer was communicated to Corey on November 21, 2008.

Garland’s third trial commenced on August 10, 2009. Garland, 169 Wn. App. at

874. Garland does not cite to anything in the record indicating that Corey explicitly

rejected the State’s plea offer prior to communicating the offer to Garland and prior

to the commencement of trial. Rather, he assumes that because Corey did not


                                               11
No. 74135-7-1/12


accept the offer on November 25, 2008, that she rejected it.           But, this is an

improper and unsupported assumption. The offer, by its terms, was left open on

November 25 and could have been accepted by noting a plea date before trial.

Any evidence that there was communication between Corey and Garland between

November 25, 2008 and August 19, 2009 is relevant to whether Corey

communicated the settlement offer to Garland.5

       Corey’s billing records indicate that she spoke with Garland on the phone

at least once after the State made the plea offer—on December 12, 2008.6 Her

billing entry does not indicate the nature of the phone call. The fact of the call

leaves open the possibility that Corey communicated the plea offer to Garland on

that date and that ~ rejected it on that date.

       Garland next points to his investigator’s billing records to prove that the offer

was never actually communicated.           He first notes that Corey’s declaration

indicated that she met with Garland only when the investigator was present. He

then claims that the investigator’s detailed billing records show that no plea

agreement was ever communicated to Garland during their meetings.                  The

       ~ Even if Corey erroneously rejected the State’s first counter-proposal in the
November 2008 e-mail exchange, that error was harmless, because the State
made the same offer again after Corey countered with manslaughter in the first
degree. And, at oral argument, Garland conceded that the only plea offer he is
claiming was not properly communicated was the last offer communicated by the
State during the November 2008 e-mail negotiations.
        6 And, Corey spoke with Garland’s mother three times before trial began—
December 17, 2008, January 19, 2009, and February 25, 2009. Corey kept in
close communication with Garland’s mother throughout Garland’s legal
proceedings. In fact, the November 2008 plea discussions imply that Corey had
authority from Garland’s mother to initiate the negotiations. This is evident from
Corey’s offer, which included the promise that Garland’s mother would withdraw
her civil lawsuit against the Pierce County Sherriff’s Department.

                                              12
No. 74135-7-1/13


investigator’s single billing entry referencing a meeting with Garland after the plea

offer and before trial does not state that a plea was discussed.7 But then, mere

absence of a reference does not give rise to an inference that a plea offer was not

discussed. The investigator had no duty to detail the substance of their discussion

and the investigator’s other billing entries did not specify what was discussed

during every meeting with Garland. In fact, most of the investigator’s entries simply

say some variation of “met with client.” Therefore, the investigator’s billing records

do not prove that Corey never discussed plea offers with Garland.

       Corey declared that she communicated “every plea offer” to Garland. The

billing records of Corey and the investigator establish that Corey and Garland had

contact during which Corey could have communicated the plea offer. Garland has

provided only bald assertions, conclusory allegations, and speculative evidence

that Corey never communicated the November 2008 plea offer to him.                We

approach an ineffective assistance of counsel argument with a strong presumption

that counsel’s representation was effective. Davis, 152 Wn.2d at 673. Therefore,

Garland has failed to show both that he is entitled to a reference hearing to prove

that Corey never communicated the offer and that Corey’s performance was

deficient. See Rice, 118 Wn.2d at 886 (we seek to avoid the time and expense of

a reference hearing when the petition has no apparent basis in provable fact).

Therefore, we need not discuss whether Garland was actually prejudiced. ~

re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012) (stating


      ~ On August 9, 2009, the investigator went to the jail and “discussed strategy
with Ray.”

                                             13
No. 74135-7-1/14


that a court need not consider both prongs of Strickland if a petitioner fails on one).

We hold that Garland has failed to show that trial counsel was ineffective by not

communicating a plea offer.

       B. Ineffective Assistance of Trial Counsel   —   Ethical Violations

       Next, Garland argues that his trial attorney was ineffective, because she

violated her duty of candor toward the tribunal and violated her discovery

obligations. He argues that her behavior constituted a per se unreasonable trial

strategy.

       Garland’s argument relates to Corey’s representation to both the trial court

and the State about what Garland’s defense would be during his third trial. On

March 25, 2005, before his first trial, Garland indicated in an omnibus order that

the general nature of his defense would be self-defense. On January 13, 2006,

Garland indicated in another omnibus order that his defense was both general

denial and self-defense. Before the third trial commenced, Garland filed a notice

of defense. It stated that, consistent with the previous omnibus orders, Garland’s

defense would be general denial and/or self-defense.

       Garland’s first trial began on January 24, 2007. Garland, 169 Wn. App. at

874. Garland’s second trial began on August 21, 2007. kI. His third trial began

on August 10, 2009. kI.

       During the first two trials, Corey gave her opening statement immediately

following the State’s opening statement. In opening statements during both the

first and second trial, Corey told the jury that both Garland and Brock had guns on

the night of the incident. See Garland, 169 Wn. App. at 876-77.


                                              14
No. 74135-7-1/15


       During the third trial in August 2009, the defense reserved its opening

statement. Id. at 877. In preliminary discussion outside of the jury’s presence, the

trial court asked whether, in light of Garland’s failure to submit proposed jury

instructions before trial, “‘are there going to be any theories that have not been

advanced such that the State has to be considering them?’          “   j~   Garland

responded that he continued to endorse”’general denial and/or a self-defense.’”

Id. When further pressed as to whether any new theories would be advanced that

the State should be aware of prior to delivering its opening statement, Garland

again said, “‘No.’”

       Garland reserved his opening statement until after the State had rested its

case. After the State rested, Corey began her opening statement by stating that

there was only one gun involved in the incident and that it was not Garland’s:

              “Good morning, ladies and gentlemen. November 11th, 2004,
       was, in fact, [Garland’s] birthday. [Garland] was 21 that day. It was
       to be a day of celebration. The day of celebration turned into a
       horror, a nightmare. [Garland] was terrorized by Mr. Brock and Mr.
       Marcy, who pulled a gun on him in the parking lot of Bleacher’s.
       There was a struggle for the gun. The gun went off. [Garland] was
       grabbing the hand of Mr. Brock and Mr. Marcy, trying to keep himself
       from being shot.”
Garland, 169 Wn. App. at 877-78 (alterations in original). She also represented

that because Garland was terrified, he decided to struggle for the gun. j~ at 878.

She said that Garland lunged at Brock and they had a physical fight over the gun.

Id. Corey represented that it was during the physical struggle that Garland heard

ashot go off. j.çj..




                                             15
No. 74135-7-1/16


       Garland testified during the third trial.          Id. at 879.   Garland testified

consistently with the version of the facts Corey presented during her opening

argument in the third trial—the “struggle for the gun,” accident version.             j~

Specifically, on cross-examination, Garland testified that there was a struggle over

one gun and that Garland did not have his own gun that night. Id. Immediately

after Garland’s testimony, outside of the presence of the jury, the State asked that

it be allowed to impeach Garland with the prior inconsistent statement of his

attorney in the two prior mistrials. j~ at 880. Following argument, the trial court

ruled that the State could impeach Garland with Corey’s earlier inconsistent

opening statements to a degree. j.ç~ at 882.

       The State then continued its cross-examination of Garland:

       “Q.       All right. So I will ask it again. You were in court on January
                 24th of 2007, and again on August 21st, 2007 when [defense
                 counsel] made certain statements about the case, correct?

       “A.       Yes.

       “Q.        All right. And both of those times [defense counsel] stated
                 that you had your own gun that night, correct?

       “A.       Yes.

       “Q.       And both times [defense counsel] stated that Mr. Brock
                 produced a revolver and pointed it at you, isn’t that correct?

       “A.       Yes.

       “Q.       And both times [defense counsel] stated that you then took
                 out your own gun and shot Mr. Brock; isn’t that correct?

       “A.       Yes, that’s correct, she stated that.”

Id. at 884-85.



                                                16
No. 74135-7-1/17


       After Garland was convicted in the third trial, he appealed.   j4 at 871. He
argued that the trial court erred in allowing the State to impeach him with his

counsel’s opening statements from two prior proceedings that ended in mistrials.

Id. In Garland, the Court of Appeals concluded that the trial court did not abuse its

discretion in allowing limited impeachment of Garland through use of his counsel’s

opening statements of fact in the first two trials. Id. at 894.

       Now, in his PRP, Garland argues that his trial counsel was ineffective,

because she violated various ethical rules when she misrepresented the general

nature of Garland’s defense in response to a direct inquiry from the trial court.

       Under the Strickland standard, breach of an ethical standard does not

necessarily make out a denial of the Sixth Amendment guarantee of assistance of

counsel. Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988,89 L. Ed. 123 (1986).

A lawyer’s ethical violations do not make the lawyer per se ineffective. Burt v.

Titlow,_U.S._, 134 S. Ct. 10, 18, 187 L. Ed. 348 (2013).

       Garland claims that Corey’s actions—failing to disclose the accident

defense when explicitly asked by the court—constituted a violation of several

ethical standards and court rules.8 Garland argues that a reasonable trial strategy

       8  RPC 3.3 (requiring candor to the tribunal), RPC 8.4(c) (stating that an
attorney may not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation), RPC 8.4(d) (stating that an attorney may not engage in
conduct prejudicial to the administration of justice), RPC 3.4(c) (stating that a
lawyer may not knowingly disobey an obligation under the rules of a tribunal), RPC
3.4(d) (stating that a lawyer may not fail to make a reasonably diligent effort to
comply with a legally proper discovery request by an opposing party), RPC 3.4(e)
(stating that an attorney may not allude to any matter that will not be supported by
admissible evidence), CrR 4.7(b)(2)(xiv) (court rule governing discovery in trial
stating that an accused person may be required to state the general nature of the
defense).

                                              17
No. 741 35-7-1/18


cannot be premised upon a violation of a discovery obligation and multiple ethical

rules. As a result, Garland argues that counsel’s performance was deficient.

      The State concedes that if the facts are as Garland represents them, then

Garland’s petition properly criticizes Corey’s lack of candor to the court. But, it

contends that even if Corey purposely deceived the State and violated the duty of

candor to the court, her performance is not necessarily constitutionally deficient.

The State argues that Garland fails to demonstrate how Corey’s unethical conduct

affected the jury’s verdict. The State notes that the jury was not aware of Corey’s

representations to the court about Garland’s defense.

       Garland responds that he was prejudiced by Corey’s lack of candor,

because if Corey had been candid in disclosing the nature of Garland’s defense,

the trial court would likely have rejected the State’s request to impeach him with

counsel’s earlier opening statements. He contends this is so, because the trial

court’s remarks during its ruling show concern about issues of fairness and the

prejudice to the State caused by Corey’s dishonesty.           He argues that the

impeachment evidence was prejudicial, and that it is irrelevant that the jury

remained ignorant of Corey’s misrepresentations to the court.

       But, the trial court ultimately allowed the State to impeach Garland based

on the relevant impeachment law and argument of the parties, not as a sanction

for defense counsel’s behavior.      When the State first requested to impeach

Garland with the prior opening statements, the trial court ruled that it would recess

for a week to allow both parties to fully brief the issue. Garland, 169 Wn. App. at

880. The trial court then heard argument on the issue. During Garland’s argument,


                                             18
No. 74135-7-1/19


he worked to distinguish the impeachment case law cited by the State. The trial

court concluded that because the case law stood for the fact that it is acceptable

to impeach with a lawyer’s inconsistent statement made during pretrial discovery,

that it would certainly allow for impeachment based on a lawyer’s opening

statement made at a mistrial. Thus, the trial court’s ultimate ruling considered

relevant case law.

       And, the trial court’s focus on fairness was not related only to defense

counsel’s tactic to withhold its change in strategy. Instead, the trial court’s fairness

concerns focused on the discrepancy between the statements made during the

different trials. The court opined:

               And you know, I believe there’s a bigger argument than that
       at stake here, and that’s just the fairness and integrity of this whole
       system. What if people from the public look in on this case, that know
        nothing about the history, or anything else, and what will the jurors
       think in the two cases when they find out, okay, in one case, they say
       one thing, and then they turn around in the next case and say
       something entirely different and nobody points it out? That’s not fair.
       That’s no way to resolve a legal dispute. That’s no way to advance
       the truth seeking function. These things have to be brought to the
       jury. You just can’t get away with saying one thing and then turning
       around and saying the almost exact opposite at a later time.
       Thus, the trial court’s ruling allowing the State to impeach Garland with

counsel’s prior opening statement was not based upon only the trial court’s

concern about the prejudice to the State caused by Corey’s misrepresentation of

the defense. Presumably the trial court would have reached the same ruling based

on the case law and fairness even if Corey had disclosed the “accident theory”

earlier. Garland is unable to show that he was prejudiced by Corey’s alleged




                                              19
No. 74135-7-1/20


ethical violations. We hold that Corey’s alleged ethical violations did not render

her assistance ineffective.

        C. Ineffective Assistance of Trial Counsel   —   Changing Defenses

        Next, Garland argues that his trial counsel was ineffective for changing

defenses—maintaining that Garland did not have his own gun on the night of the

incident—without first researching the law.        Garland argues that had Corey

adequately researched the law, she would have known that Garland could be

impeached with her prior inconsistent opening statements.9 Implicit in Garland’s

argument is that Corey was ineffective for failing to inform him of a risk of the new

trial strategy.

        Reasonable conduct for an attorney includes carrying out the duty to

research the relevant law. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177

(2009).     Failing to research or apply relevant law will constitute deficient

performance if it falls below an objective standard of reasonableness based on

consideration of all the circumstances. Id. at 868-69.



        ~ This issue is directly linked to Garland’s argument in his direct appeal that
the trial court erred when it allowed the State to impeach him with his counsel’s
statements from two prior proceedings. Garland, 169 Wn. App. at 871. A petitioner
generally may not renew a previously determined issue simply by recasting it as
an ineffective assistance of counsel claim. In re Pers. Restraint of Stenson, 142
Wn. 2d 710, 720, 16 P.3d 1 (2001). But, the Garland court specifically invited
Garland to bring an ineffective assistance claim against his attorney in a PRP on
this basis. Garland, 169 Wn. App. at 893 n.h (“Garland has not raised an
ineffective assistance of counsel claim in this appeal. Thus, we do not address
whether a communication breakdown or other tactical decisions leading to
Garland’s impeachment in trial or whether any of counsel’s conduct constituted
ineffective assistance. We note that Garland may bring such a claim in a [PRP]
under RAP 16.4.”).

                                             20
No. 74135-7-1/21


       Garland begins by arguing that, “[i]t is well-established that an accused

person may be impeached with prior statements made by defense counsel.” By

beginning with that assertion, Garland makes an underlying, speculative

assumption necessary to support his claim that defense counsel’s performance

was deficient. Garland assumes that his defense counsel did not research the

“well-established” law. This court approaches an ineffective assistance of counsel

argument with a strong presumption that counsel’s representation was effective.

Davis, 152 Wn.2d at 673.

       Garland argues that it is clear that Corey did not research the law, because

she was caught off guard and expressed surprise when the court ruled that the

State could impeach Garland using the prior opening statements.            But, an

expression of surprise is not inconsistent with the demeanor of any attorney who

loses a motion, no matter how well-researched or how uninformed.           Garland

provides only speculative evidence and fails to rebut the strong presumption that

counsel’s representation was effective.

       But, even if Garland presented evidence indicating that Corey failed to

research the issue, Garland would still need to show that Corey’s research would

have produced Washington law dictating that her strategy to change defenses was

ill-advised.

       In the direct appeal, the Garland court stated that whether the State may

use trial counsel’s opening statement from prior proceedings to impeach a

defendant was an issue of first impression in Washington. 169 Wn. App. at 874-

75.   It specifically noted that in Washington little precedential authority was


                                            21
No. 74135-7-1/22


available to assist it in making its decision. Id. at 875. In order to make its decision,

the Garland court turned to authority from another jurisdiction—one case from the

Second Circuit, United States v. McKeon, 738 F.2d 26 (2d Cir. 1984). Id. at 889.

The Garland court noted that neither party briefed the McKeon decision. 169 Wn.

App. at 889.     The Garland court applied the McKeon test to determine the

admissibility of the opening statements. ki. at 892-93. It concluded on the facts in

Garland’s case, the trial court did not abuse its discretion in allowing limited

impeachment of Garland. Id. 894. Notably, the Garland court did not conclude

that opening statements from other trials are per se admissible to impeach a

defendant. Rather, it concluded only that the trial court, in this instance, did not

abuse its discretion. ki.

       Additionally, Garland cites to Kyllo for his assertion that a failure to research

relevant law falls below an objective standard of reasonableness. In Kyllo, the

court held that where existing Washington case law indicates that a pattern jury

instruction is flawed, counsel’s failure to research or apply relevant law may

constitute deficient performance.        166 Wn.2d at 868-69.          The Kyllo court

specifically reasoned that there were “several” relevant Washington cases

available at the time of trial that counsel should have discovered. 166 Wn.2d at

866-869. The Kyllo court distinguished Kyllo’s case from State v. Studd, 137

Wn.2d 533, 973 P.2d 1049 (1999). kI. at 866. In Studd, the court concluded that

where there is no case law indicating that a pattern jury instruction misstates the

law, it is not deficient performance for defense counsel to propose such an

instruction.   See 137 Wn.2d at 551.          The Studd court noted that in those


                                               22
No. 74135-7-1/23


circumstances, counsel can hardly be faulted for requesting a jury instruction

based upon a then-unquestioned pattern jury instruction. Id.

       Washington case law available at the time of Garland’s third trial indicated

that a defendant could be impeached with his opening statement from the same

trial (State v. Rivers, 129 Wn.2d 697, 708-09, 921 P.2d 495 (1996)) and by the

admission of statements made by counsel previously at an omnibus hearing (State

v. Dault, 19 Wn. App. 709, 717-18, 578 P.2d 43 (1978); State v. Acosta, 34 Wn.

App. 387, 391-92, 661 P.2d 602 (1983), reversed on other grounds by, 101 Wn.2d

612, 683 P.2d 1069 (1984)). Garland argues that there is little reason to suppose

Rivers would have been decided differently if counsel’s statement had been made

during a prior trial rather than earlier in the same trial. But, no case law had

discussed using a statement of counsel in one trial for impeachment of the client

in a different trial. Thus, additional research would not have informed Corey that

switching to the accident theory for the third trial was flawed.1°

       We conclude that defense counsel’s performance was not deficient when

Garland, determining an issue of first impression in Washington, had not yet been

decided. An attorney’s failure to anticipate a change in the law does not constitute

ineffective assistance of counsel. See In re Pers. Restraint of Benn, 134 Wn.2d



       10  This does not mean that Corey was oblivious that there were risks
involved with changing theories for the third trial. Corey’s declaration states that
she discussed the dangers of shifting defenses with Garland prior to the third trial.
Corey stated that Garland understood the risks perfectly, but that he wanted to
take the risk. By contrast, in his declaration, Garland asserts that Corey never told
him that he could be impeached with her opening statements from the first two
trials.

                                             23
No. 74135-7-1124


868, 939, 952 P.2d 116 (1998) (an ineffective assistance claim fails on the merits

because counsel cannot be faulted for failing to anticipate a change in the law).

   II. Ineffective Assistance of Appellate Counsel

       Garland argues that his appellate counsel provided ineffective assistance

by failing to raise meritorious claims regarding warrants used to search Garland’s

mother’s house. He claims the warrants were unsupported by probable cause and

supported by affidavits containing material omissions made with reckless

disregard for the truth. He contends that appellate counsel should have challenged

the trial court’s denial of a motion to suppress evidence obtained through execution

of the search warrants.

       Pierce County Sheriff Detective Deborah Heishman was the lead detective

investigating the shooting.    A month or two prior to the shooting, Detective

Heishman had investigated another case in which Garland was the suspect.

During the earlier investigation, she unsuccessfully attempted to find Garland. But,

during the course of that investigation, she contacted and had a confrontation with

Margaret Cook, Garland’s mother, at her house in Tacoma. At that time, Detective

Heishman went looking for Garland at Cook’s house, because it was listed as

Garland’s address in the Department of Licensing (DCL) records. Cook provided

Detective Heishman oral consent to enter her residence and look for Garland.

Cook told Detective Heishman that Garland did not live with her at the Tacoma

address and that Garland had phone and utility bills in his name at another




                                            24
No. 74135-7-1/25


address.11 Cook eventually revoked her consent to allow Detective Heishman to

search the residence.

      This caused a confrontation between the two women.            Cook filed a

complaint about Detective Heishman with the Pierce County Sherriff Department’s

Internal Affairs department.   Cook alleged that when she revoked consent for

Detective Heishman to enter her home, Detective Heishman grabbed Cook’s arm.

Cook’s complaint was pending with Internal Affairs throughout Detective

Heishman’s investigation into the shooting.

      While Detective Heishman was investigating the other incident for which

Garland was a suspect, Cook was in the process of moving from Tacoma to

Graham, Washington. After the shooting at issue here, Detective Heishman did

not know where Garland lived. Therefore, she prepared a complaint for an order

of trespass to determine if Garland was living with Cook at her new Graham

address.

      Detective Heishman’s affidavit in the complaint for trespass order indicated

that Detective Heishman had previously located Garland’s vehicle outside of the

Tacoma address, that Cook had been uncooperative in locating Garland at that

time, that Cook had told a co-worker that she was hiding Garland to prevent him

from being arrested, and that Cook had recently appealed the impound of

Garland’s car and listed the Graham residence as her current address.




      ~ Detective Heishman relied on the DCL information to locate Garland’s
address, because she had no access to utility and phone records.

                                              25
No. 74135-7-1/26


      On November 15, 2004, a judge approved the trespass order. That night,

Deputy Daniel Hacker and Detective Kevin Reding began surveillance of the

Graham residence. The detectives climbed over a fence at the Graham house

and hid in bushes in the backyard. The detectives observed Garland in the house.

Based on this information, on November 16, 2004, Detective Heishman obtained

a warrant to search the Graham house for evidence of the shooting. Detective

Heishman’s affidavit indicated that Deputy Hacker paged her from the surveillance

scene indicating that he was watching Garland in the Graham residence.

       Officers seized photographs found hidden in the ceiling of a bedroom during

the search of the Graham house. The photos were of Garland and another man

posing with what appeared to be several rifles or assault weapons. On January

17, 2007, Garland moved for a Franks12 hearing, arguing that the search warrants

were fatally flawed by deliberate falsehoods and/or statements made with reckless

disregard for the truth.13 Garland challenged both the trespass order and the

search warrant.

       Garland argued that Detective Heishman knew and omitted important

information in her complaint for the search warrant. Specifically, among other

things, he argued Detective Heishman (1) failed to inform the issuing magistrate

       12Franks v. Delaware, 438 U.S. 154, 98 5. Ct. 2674, 57 L. Ed. 667 (1978).
       13 A defendant challenging a warrant on this basis is entitled to an
evidentiary hearing, known as a Franks hearing, if he or she makes a substantial
preliminary showing of the omissions and their materiality. State v. Garrison, 118
Wn.2d 870, 872, 827 P.2d 1388 (1992). If an evidentiary hearing is held, the
defendant must then show that any omissions were (1) intentionally or recklessly
made and (2) were material, that is, they were necessary to the finding of probable
cause. See State v. Gentry, 125 Wn.2d 570, 604, 888 P.2d 1105 (1995).


                                           26
No. 74135-7-1/27


that she knew Garland’s vehicle was registered to the Tacoma address, (2) failed

to inform the issuing magistrate that Cook had informed her that Garland has a

phone and a utility bill in his name at another residence, and that (3) Internal Affairs

was investigating Cook’s complaint against Detective Heishman. He argued that

because there were insufficient facts to connect Garland to Cook’s property, there

was no probable cause upon which to search for him on her property. Garland

requested that all evidence found during the search of his room be suppressed.

       The trial court held a Franks hearing. At the hearing, Cook’s co-worker,

Michael Frye, testified that he never told Detective Heishman that Cook was hiding

Garland. And, the trial court found that Detective Heishman should have included

information about the Internal Affairs Investigation in her affidavits.          But, it

concluded that although that information would have given the magistrate some

perspective, that potential bias is not something that negates probable cause. The

trial court noted that the more critical issue was the direct contradiction between

Detective Heishman’s statement that Frye told her that Cook was hiding Garland

and the fact that Frye denied ever saying that. The trial court found that Detective

Heishman’s testimony was more credible than Frye’s.

       The trial court ultimately found that any of Detective Heishman’s omissions

were negligent—not intentionally done and/or were not with reckless disregard. It

thus found that there was sufficient probable cause for the magistrate to issue the

warrants. The trial court declined to suppress the evidence. The trial court made

its oral ruling, but did not enter any findings of fact or conclusions of law.




                                              27
No. 74135-7-1/28


Notwithstanding the trial court’s oral ruling, the State indicated that it did not plan

to offer any evidence found during the search of the Graham house at trial.

       On August 26, 2009, during the third trial, Garland’s attorney cross-

examined Patrick LaChapelle, the other man in the posed gun photos. LaChapelle

and Garland were friends since middle school. LaChapelle picked Garland up on

the night of the incident.     During cross-examination, LaChapelle testified as

follows:

       Q.     Okay. Do you recall whether or not Ray had a firearm on him
              that night?
       A.     I’m pretty positive he didn’t, did not.

       Q.     Have you ever seen him with a firearm?
       A.     Have not.
Because of this testimony, the State informed the court that it wished to admit the

pictures found in the ceiling at the Graham house. In response, Garland indicated

that he wanted a new Franks hearing.

       Outside of the presence of the jury, the State sought confirmation that

LaChapelle never saw Garland with any guns. The State then showed LaChapelle

the photos, and asked if he recalled a time when he was at Garland’s house posing

with what looked like rifles and machine guns.14 LaChapelle admitted that it was

him in the photos, but testified that he did not recall. Garland argued that it was

prejudicial to put the photos before the jury when there was no foundation—there

was no evidence that LaChapelle took the pictures or that he was present when


       14The photos were on the same negatives, but none of the photos were of
both Garland and LaChapelle together holding the guns.

                                              28
No. 741 35-7-1/29


the pictures were taken. The trial court noted that it was defense counsel who

asked LaChapelle about the firearms and opened the door to the evidence. The

trial court said that the State could admit the photos, but it first needed to lay

additional foundation indicating the circumstances surrounding where the photos

came from. But, the court ultimately deferred its ruling on whether the photos could

be admitted into evidence.

       On September 9, 2009, outside of the presence of the jury, the State

informed the court that it planned to call a detective to authenticate the photos at

issue and to then admit some of the photos. The State argued that the court did

not need to relitigate the legality of the search, because it had already conducted

a Franks hearing declaring the search legal and because the legality of the search

was irrelevant—defense counsel had opened the door for the photos through

LaChapelle’s testimony.

       Garland argued that the court reviewed only the search warrant at the

Franks hearing as opposed to both the trespass order and the search warrant.

Garland noted that he would have moved for reconsideration after the Franks

hearing, but the State said that it did not plan to use the evidence from the

residence. He noted that the State’s intention not to use the evidence was made

clear by its failure to present written findings of fact after the trial court’s ruling.

Eventually, Garland summarized his renewed challenge to the search as a motion

to reconsider.

       The trial court ruled that it did not see any issues before it that were not

already addressed in the Franks hearing and that it saw no basis to reconsider. It


                                              29
No. 74135-7-1/30


continued that even in the event that the searches leading to the discovery of the

photos were illegal, it would determine whether the photos were appropriate

impeachment evidence.         The trial court ruled that the photos were proper

impeachment evidence.

          The photos of Garland were admitted during trial. Garland did not raise the

issue of the illegality of the search warrants or an error regarding the ruling on

Garland’s motion to suppress in his direct appeal. ~ Garland, 169 Wn. App.

871.

          A criminal defendant has a right to effective assistance of counsel on his

first appeal of right. In re Pers. Restraint of Dalluqe, 152 Wn.2d 772, 787, 100

P.3d 279 (2004). To prevail on a claim of ineffective assistance of appellate

counsel, the petitioner must demonstrate the merit of any legal issue appellate

counsel raised inadequately or failed to raise and also show how he or she was

prejudiced. In re Pers. Restraint of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918

(2013). Failure to raise all possible nonfrivolous issues on appeal is not ineffective

assistance, and the exercise of independent judgment in deciding what issues may

lead to success is the heart of the appellate attorney’s role. Dalluc~e, 152 Wn.2d

at 787.

          A. Sufficiency of Probable Cause in Search Warrants

          The issuance of a search warrant is a highly discretionary act. State v.

Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007).               It is founded in a

commonsense reading of the warrant affidavit and the reasonable inferences that

can be drawn therefrom. Id.; State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199


                                              30
No. 74135-7-1/31


(2004). This court generally reviews the issuance of a search warrant only for

abuse of discretion. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).

However, at the suppression hearing, the trial court acts in an appellate-like

capacity and its review, like this court’s, is limited to the four corners of the affidavit

supporting probable cause. ki. Although this court defers to the magistrate’s

determination, the trial court’s assessment of probable cause is a legal conclusion

this court reviews de novo. Id.

       To establish probable cause, the affidavit must set forth sufficient facts to

convince a reasonable person of the probability the defendant is engaged in

criminal activity and that evidence of criminal activity can be found at the place to

be searched. State v. Lyons, 174 Wn.2d 354, 359, 275 P.3d 314 (2012). Probable

cause may be based on hearsay, a confidential informant’s tip, and other

unscrutinized evidence that would be inadmissible at trial. Chenoweth, 160 Wn.2d

at 475. Probable cause requires more than suspicion or conjecture, but it does not

require certainty. j4~ at 476.

       Garland argues that the trespass order was unsupported by probable cause

and that appellate counsel was ineffective for failing to raise that issue on appeal.15

The complaint for trespass order requested to enter upon the Graham property for

the purpose of locating Garland, to photograph occupants and guests coming and


       15 Garland contends that because the officers conducted a search of the
Graham house under the state and federal constitutions that the trespass order is
subject to the same scrutiny as any other search warrant. The State does not
challenge Garland’s characterization of the trespass order as a search warrant nor
does it contend that this court’s review of trespass orders is different than its review
of search warrants.

                                                31
No. 74135-7-1132


going from the property, and to confirm that Garland was residing at the residence.

The judge concluded that there was probable cause to support the actions

requested to be taken in the complaint for trespass.

      Thus, the question before us is whether the facts available to the judge

justified a reasonable belief that evidence of a crime could be obtained by

searching the outside of the Graham house. Garland does not appear to argue

that the affidavit had insufficient probable cause to connect Garland to the crime,

but rather, he argues that there was no nexus between the allegations against

Garland and Cook’s Graham property.

       But, there were facts in Detective Heishman’s affidavit connecting Garland

to Cook and facts connecting Cook to the Graham house. First, Frye told Detective

Heishman that Cook had been telling people that she was hiding Garland to avoid

having him arrested. The affidavit made it clear that Frye would be knowledgeable

because he had a connection to the Garland family—legal documents found inside

Garland’s vehicle belonged to Frye. Additionally, it stated that Cook had filed an

appeal of Garland’s impounded vehicle. In Cook’s appeal for the impounded car,

she listed her new physical address as the Graham address.

       Thus, Detective Heishman’s affidavit described the fact that a person close

to Garland’s family said that Cook claimed she was hiding Garland. And, the

affidavit provided recent information that Garland’s mother was living at the

Graham property. It was a reasonable inference that Cook—a person claiming to

be actively hiding Garland—would be keeping him in a location under her control.

These facts created more than suspicion or conjecture that Cook was hiding


                                            32
No. 741 35-7-1/33


Garland. Therefore, we conclude that there was sufficient probable cause for the

judge to issue a trespass order that authorized the officers to search the outside

of the property.

       Next, Garland argues that his appellate counsel was ineffective for not

challenging the constitutionality of the search of the inside of the Graham house.

He notes that the affidavit in support of the warrant to search the interior of the

Graham house had only one additional fact in support of it—that officers had seen

Garland inside the house. He argues that because that information was illegally

obtained, the information could not be used to support the subsequent search

warrant.    He argues that once that information is excised, the second affidavit

suffers from the same infirmities as the affidavit for the trespass order.

       But, because the trespass order was properly supported by probable cause,

the information that Garland appeared to be residing in the Graham house was not

illegally obtained and it need not be excised from the second search warrant.16

Therefore, we conclude that the second search warrant—now with a fact making

it certain that Garland was connected to the Graham house—was also supported

by probable cause. We hold that appellate counsel was not deficient for failing to

challenge the sufficiency of either search warrant on appeal.

       B. Material Omissions in Search Warrants      —   Franks Hearing

       Still, Garland argues that his appellate attorney should have challenged the

validity of the search warrants, because Detective Heishman recklessly omitted

       16Garland notes that he was not actually residing in the house, but was
instead at the house attending a birthday celebration for his mother. It was not an
unreasonable inference that Garland was residing in the house.

                                             33
No. 74135-7-1/34


information material to whether Garland actually lived in Cook’s house from her

affidavit. Specifically, he argues that Detective Heishman withheld evidence that

(1) Garland’s car was registered at another address (2) Cook had previously told

the police that Garland did not live with her, (3) Garland had phone and utility bills

in his name at another residence, and (4) Internal Affairs was investigating Cook’s

complaint against Detective Heishman.

       Once issued, a warrant is entitled to a presumption of validity, and the court

will give great deference to the magistrate’s determination of probable cause and

resolve any doubts in favor of the warrant. Chenoweth, 160 Wn.2d at 477. A

warrant may be invalidated, however, and the fruits of a search may be suppressed

if there were intentional or reckless omissions of material information from the

warrant affidavit.   State v. Atchley, 142 Wn. App. 147, 157-58, 173 P.3d 323

(2007). Even if the defendant is able to prove an intentional or reckless omission

at an evidentiary hearing, he would still be required to show that probable cause

to issue the warrant would not have been found had the omissions been included

in the affidavit. See State v. Gentry, 125 Wn.2d 570, 604, 888 P.2d 1105 (1995).

The motion to suppress with the omissions added will fail if a reasonable

magistrate could find that the information contained in the revised affidavit or

complaint for search warrant supports a finding of probable cause. j~ at 606. As

discussed above, whether an affidavit supports a finding of probable cause is a

legal issue this court reviews de novo. Neth, 165 Wn.2d at 182.

       Garland first argues that his appellate attorney should have challenged the

fact that no written findings of fact and conclusions of law were entered after the


                                             34
No. 74135-7-1/35


oral ruling during the Franks hearing and after the trial court’s ruling on his renewed

suppression challenge during trial in 2009. He argues that the trial court’s and the

State’s failure to enter findings was a violation of CrR 3.6 and that dismissal is the

proper remedy. The State responds that findings of fact are unnecessary, because

the trial court denied Garland’s suppression motion as a matter of law. The State

contends this is so, because at the Franks hearing, the trial court concluded that

even if statements Detective Heishman omitted had been included, probable

cause still existed to support the warrant. Therefore, even if appellate counsel had

appealed this issue during the direct appeal, and even if the court concluded that

all of the omissions were reckless—Garland’s desired outcome—he would still

need to show that the affidavit was not supported by probable cause even with the

omitted statements. Findings of fact and conclusions of law are unnecessary to

review this determination de novo.17

       Even assuming all of these facts were recklessly omitted, the affidavit still

supports a finding of probable cause. That Garland’s car was registered at another

address, that Cook had previously told the police that Garland did not live with her,

and that Garland had phone and utility bills at another residence are not

inconsistent with the fact that Cook was hiding Garland.



       17 Moreover, a court’s failure to enter written findings of fact and conclusions
of law following a suppression hearing as required by CrR 3.6 is harmless error if
the court’s oral opinion and the record of the hearing are so clear and
comprehensive that written findings would be a mere formality. State v. Smith, 76
Wn. App. 9, 16, 882 P.2d 190 (1994). However, here, the trial court addressed
each of Garland’s challenges to the statements in the affidavits point by point on
the record.

                                              35
No. 74135-7-1/36


      That Internal Affairs was investigating a complaint against Detective

Heishman based on her previous altercation with Cook is a closer call. The trial

court noted that Garland identified this as the most important omission from the

affidavit. And, the trial court carefully considered whether that statement would

have been sufficient to negate probable cause. The trial court noted that the

magistrate would not have disregarded everything in the affidavit just because of

Detective Heish man’s potential bias. We follow the trial court’s sound reasoning.

It is unlikely that a magistrate would have completely disregarded Detective

Heishman’s entire statement in the affidavit—including her compelling statement

that Frye had said Cook was hiding Garland18—because of alleged and

unsubstantiated bias.

       Garland also argues that the trial court erred when it concluded that the

unlawfully seized evidence was admissible as impeachment evidence, because

LaChapelle opened the door to that evidence. Because we hold that there was

sufficient probable cause to support the search warrants, we need not consider the

trial court’s alternative analysis regarding whether the evidence was admissible for

impeachment purposes. The evidence was legally discovered, and the trial court

had already declined to suppress the evidence based on the legality of the search.

       We conclude that Garland failed to demonstrate that there was a legally

meritorious issue that his appellate counsel should have raised in his direct appeal.

       18 The validity of Detective Heishman’s statement that Frye said Cook said
she was hiding Garland was directly challenged at the Franks hearing when Frye
denied that he made this statement. But, that information does not impact this
court’s evaluation of whether the magistrate could find sufficient probable cause at
the time it issued the warrants.

                                             36
No. 741 35-7-1/37


Therefore, we hold that Garland’s appellate counsel was not ineffective for failing

to raise claims regarding the validity of the search warrants.

   Ill. Gang Evidence

       Next, Garland argues that the trial court erroneously admitted irrelevant and

prejudicial gang evidence. He argues that the evidence was not relevant under

ER 402 and that the court did not conduct the analysis required by ER 403 and ER

404(b). And, he argues that the error resulted in a complete miscarriage of justice.

       Garland did not raise this issue in his direct appeal.        But, in a PRP a

petitioner is not automatically barred from raising a nonconstitutional issue not

previously raised. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d

506 (1990). To prevail on collateral review on a claim of evidentiary error, a

petitioner must show that the error constitutes a fundamental defect amounting to

a miscarriage of justice. In re Pers. Restraint of Morris, 176 Wn.2d 157, 168, 288

P.3d 1140 (2012). This court reviews evidentiary rulings for abuse of discretion.

State v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009). A trial court abuses its

discretion when its order is manifestly unreasonable or based on untenable

grounds. State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217 (2009).

       Prior to trial, the trial court heard a motion relating to the State’s desire to

admit gang evidence. The State maintained that three witnesses would testify at

trial that prior to the shooting, Garland pointed to a tattoo on his arm and said,” ‘I’m

a 26 Blocc Crip.’   “   The witnesses would also testify that Brock responded that

gangs are stupid and that Garland responded to that angrily. The State initially

stated that it sought to introduce evidence of Garland’s affiliation with a gang to


                                              37
No. 74135-7-1/38


prove Garland’s motive. It then noted that it sought to admit additional evidence19

not for purposes of gang membership, but rather because the evidence

corroborated what the witnesses heard in the parking lot on the night of the

incident. The trial court then asked the State why the tattoo was not by itself

sufficient, and it sought clarification from the State as to whether it was seeking

admission of the evidence for identity or motive purposes. The State responded

that it was seeking admission of the evidence as motive. The trial court rejected

this assertion, noting that the men were already involved in a confrontation by the

time Garland allegedly showed his tattoo or made any gang-related comments. It

noted that the evidence appeared to be prejudicial.

       At that point, the State appeared to change its theory of admissibility. It

noted that identity of the shooter had been challenged. To support its claims that

the identity of the shooter was contested, the State cited to transcripts from the two

mistrials, recent interviews it had conducted, and the fact that Garland’s notice of

defense was general denial and/or self-defense. The State also noted that what

was said in the parking lot that night was contested.

       Garland responded that the trial court should exclude the evidence,

because there “is no such gang as the 26 Blocc Crips” and that Garland and his

friends were only mocking gangs. Garland argued that any evidence suggesting

he is in a gang is prejudicial, because no such gang exists.          The trial court

       19 The State also sought to admit evidence found in Garland’s bedroom. It
sought to admit photos with group pictures of people throwing gang signs, a shirt
that has “26 Blocc Cuz” airbrushed on the back of it, and a picture of Garland
wearing the shirt at a party. It also sought to admit evidence of a “tattoo map”
indicating that Garland wanted to get another tattoo of a drawing of a 26 gang sign.

                                             38
No. 74135-7-1/39


responded, “So does the State then not even get in the statement that somebody

heard about being a 26 Blocc Crip?” Garland responded that the State was entitled

to admission of that statement, because it would come in as a statement of the

defendant under ER 801(d)(2).

       The trial court then asked Garland about whether the tattoos were

admissible. Garland responded that the State could photograph the “2” and “6”

tattoo on Garland’s forearm and admit them at trial after laying the proper

foundation. Eventually, Garland noted, “You know, they get the 26 in. They get

the statement about the Crips, and to admit the other stuff is to basically suggest

to the jury that this gang actually exists and it doesn’t.”

       After additional argument from the State, the court stated:

       The linkage here is that there needs to be evidence brought in to
       show that he belongs to a gang, but what we’re forgetting is what’s
       the purpose of the gang evidence? We’re jumping ahead of
       ourselves. There’s two possible purposes. The first is identity, and
       I think there’s no question that some linkage between Mr. Garland
       and the 26 Blocc Crips statement is admissible, even the Defense
       concedes that, and most directly is the 26 on his forearm, so I don’t
       know how much more direct you can get than that which is stamped
       onto him, if you will.
               Once we move away from that to other evidence that shows
       he had some association with this 26 Blocc Crip gang or want to be
       gang or association or whatever it is, I think you run into a dangerous
       area because do you really need it for identity? It doesn’t appear
       that that’s the case.
The court noted the second possible purpose was motive, but it rejected this

purpose, because the two men were already involved in a confrontation. The court

ultimately concluded that it was going to allow the 26 Blocc Grip statement to come

in and a photograph of Garland’s forearms as long as the State could lay the proper


                                              39
No. 74135-7-1/40


foundation. But, it did not see the need for the shirt or other evidence to come in.20

It noted that if new evidence came in later and the State raised the issue again

outside the presence of the jury, it would consider the issue again then.

            During trial, witnesses testified as to Garland’s statements on the night of

the shooting. Marcy testified that when Garland and Brock were arguing, Garland

said,   “   ‘Nigga, this is 26th Street Crip. Fuck you.’          “   Marcy also testified that he

heard a statement about        “   ‘[t]his is 26th Street.’   “   Valentine testified that as the

argument between the men developed, Garland showed his tattoos and said

“three, six Grip.” Brock responded by saying, “‘fuck gangs, fuck you.’” Another

witness testified that Garland said “‘36 Grip’ “right before the shots were fired.

            When Garland testified, he claimed that Brock noticed his tattoo and asked

him if he was one of the white boys from “3-6.” Garland testified that he told Brock

he was not anything called 3-6. Garland testified that his 26 tattoo was not a Crip

reference, but rather a numeric code for “BE,” meaning that he and LaGhappelle

were best friends.

            After this testimony, the State moved to impeach Garland with evidence that

his tattoos were gang references. Specifically, the State moved to admit Garland’s


         After the court made its ruling, the State asked a clarifying question about
            20

whether a photograph of a tattoo on Garland’s leg that said “‘26 for life’ was              “


admitted even though none of the witnesses saw it. The court noted that it could
come in under the same theory, “If he’s got a 26 on his body and there’s evidence
that the 26 was referenced by the person that did the shooting, then that comes
in.” Garland argued that it should not have come in, because the witnesses never
saw the tattoo on his leg. The court responded, “That’s not the point. The point is
the linkage between the name or the identity of the 26 and the reference by the
shooter.     It’s a linkage. It’s an identity thing.” The trial court disagreed with
                 .   .   .


Garland’s assertion that the leg tattoo was cumulative.

                                                     40
No. 74135-7-1/41


shirt that said   “   ‘26 block cuz’   “   and a video in Garland’s possession in which

someone yelled out ‘26 block Crips.’” Garland argued that the evidence was not
                         “




relevant to show identity or prove motive. Garland noted that the jury did not need

to see other evidence and that it needed to decide only whether Garland made the

statement that he was a 26 Blocc Crip on the night of the incident.

       After noting the potential probative value of the evidence—to corroborate

the witnesses’ stories on the night of the incident about what Garland and Brock

said to each other—the trial court decided to reserve ruling on the issue until

Garland further testified on cross-examination. It did so in order to better assess

how directly the State’s evidence would impeach Garland’s statements. But, the

trial court specifically noted that the State could ask Garland whether on the night

of the incident he said that he was a 26 block crip. The court noted that if Garland

said, “yes” the inquiry would end.

       During cross-examination, the State asked Garland if he said he was a “26

block Crip” that night. After Garland admitted he said that, the State reminded the

court to provide a limiting instruction.21 And, the trial court provided one: “You have

heard testimony regarding a statement reportedly made by the defendant wherein

he said 26 Crips. You may consider this evidence to evaluate the credibility of

witnesses. You are prohibited from using this evidence for any other purpose.”

Then, the State published the pictures of Garland’s tattoos on his forearms and the

State continued its questioning. The State asked Garland why he said he was a


       21Garland had previously requested a limiting instruction, and the State
agreed it was a good idea.

                                                   41
No. 74135-7-1/42


26 block crip. Garland responded that he said it, because Brock was asking him

if he was one of the white boys from three six crip.

       In his PRP, Garland argues that the trial court erred when it allowed “any

gang evidence.” Garland cites to the State asking Garland whether he said that

he was a “‘26 Block Crip’    “   on the night of the incident as improperly admitted

evidence. In his supplemental briefing, Garland identifies additional pieces of

evidence that he asserts improperly suggested that Garland had some affiliation

with an alleged gang.

       First, he cites to Valentine’s testimony that Garland said, “‘three, six crip’”

and pointed to a tattoo on his arm. He also points to Valentine’s testimony that a

“crip” is a gang member and that Valentine understood that was how Garland was

communicating that statement. Garland also cites to Valentine’s testimony on

cross-examination. During Garland’s cross-examination of Valentine, Valentine

testified that during his police interview, he told the police that Garland referred to

a “set” on the night of the incident. Valentine testified that a “set” is a group of

gangs. Finally, Garland cites to Marcy’s testimony22 that Garland said, “Nigga, this

is 26th Street Crip. Fuck you.”

       Therefore, the evidence Garland argues was improperly admitted amounts

to only testimony about Garland’s alleged statements on the night of the incident,

not the admission of any additional gang-related extrinsic evidence or the photos


        Garland cites to evidence from trial on September 15, 2009 that he claims
       22

was improper gang affiliation evidence. But, the report of proceedings page
number he cites does not correspond with any proceedings held on that day.
However, Marcy did testify that day and referenced the 26th Street Crip.

                                              42
No. 74135-7-1/43


of Garland’s forearm tattoos. The admission of these alleged statements was

already considered by the court pretrial. The trial court admitted the statements at

that point because identity was at issue at that stage of the proceedings. And,

Garland conceded that testimony about Garland’s statements on the night of the

incident could come into evidence.

       Moreover, during trial, Garland did not object when witnesses testified as to

Garland’s statements.     And, during the State’s cross-examination of Garland,

Garland fought to exclude extrinsic gang evidence, but did not argue against, or

object to, the admission of Garland’s statements. After Garland testified that he

said that he was a “26 block Crip” on cross-examination, and he was provided with

a limiting instruction.

       On appeal, a party may not raise an objection not properly preserved at trial

absent manifest constitutional error. State v. Powell, 166 Wn.2d 73, 82, 206 P.3d

321 (2009). Although Garland notes that affiliation with a gang is protected by the

First Amendment, he fails to show how admission of his statements on the night

of the incident constitutes manifest constitutional error. Therefore, Garland has

not properly preserved this issue for appeal.

       Even if Garland had properly preserved the issue for appeal, he would still

need to show that the admission of the evidence resulted in a complete

miscarriage of justice in order to raise this issue for the first time on collateral

review. In re Pers. Restraint of Gomez, 180 Wn.2d 337, 347,325 P.3d 142 (2014).

Case law suggests that it is difficult for the petitioner to meet this burden for

evidentiary errors. See In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965


                                            43
No. 741 35-7-1/44


P.2d 593 (1998) (“[E]ven if there was an evidentiary error with []opinion testimony,

such an error does not constitute a ‘fundamental defect’ amounting to a

‘miscarriage of justice.” (quoting In re Pers. Restraint of Cook, 114 Wn.2d 802,

811, 792 P.2d 506 (1990)); Morris, 176 Wn.2d at 171 (concluding that the petitioner

cannot meet his burden to show that any evidentiary errors made by the trial court

regarding the inadmissibility of certain subjects of proposed expert testimony

resulted in complete miscarriage of justice).

       Garland argues that there was a complete miscarriage of justice, because

the admission of the gang-related evidence created a likelihood that jurors

convicted on the basis of propensity evidence. Garland does not provide any

authority to support his assertion that an evidentiary error of this nature—evidence

creating a possibility that jurors convicted on the basis of propensity evidence—

constitutes a miscarriage of justice per se. Therefore, Garland failed to satisfy his

burden of showing that the admission of the evidence resulted in a complete

miscarriage of justice.

       We hold that Garland’s evidentiary challenge is without merit.

   IV. Inconsistent Verdicts

       Garland asserts that he should be given a new trial or released from

custody, because his verdicts were inconsistent. Garland argues that his second

degree manslaughter, second degree murder, and second degree assault verdicts

were inconsistent, because the State was allowed to argue transferred intent to

the jury under one of the jury instructions.




                                               44
No. 741 35-7-1/45


       Garland does not explain why he is entitled to collateral review of this issue.

Moreover, it is unclear from the record whether Garland objected at trial to either

the jury instruction or to the jury verdicts as inconsistent. Failure to object to

inconsistent jury verdicts at trial can result in waiver of the right to raise that

objection on appeal. See State v. McNeal, 145 Wn.2d 352, 355, 37 P.3d 280

(2002) (concluding that because the alleged inconsistency in the jury verdict was

not a manifest error affecting a constitutional right, it could not be raised for the

first time on appeal).

          Even assuming Garland is entitled to review of this issue, Garland does not

argue that the jury instruction itself was error nor does he explain how the

transferred intent argument and jury instruction resulted in an inconsistent

verdict.23 Without explanation, Garland cites to State v. Wilson, 125 Wn.2d 212,

883 P.2d 320 (1994) and State v. Clinton, 25 Wn. App. 400, 606 P.2d 1240 (1980)

to support his argument.

          In Wilson, the defendant fired shots into a bar, intending to shoot the

bartender and a specific bar patron. 125 Wn.2d at 213-14. But, Wilson’s shot

missed his intended victims and instead struck two unintended victims. Id. The

Washington Supreme Court considered whether a specific statute allows intent to

be transferred to unintended victims once the intent to inflict great bodily harm

against an intended victim is established. ki. at 214. The Wilson court did not

consider whether Wilson’s verdict was inconsistent.


          23   Neither the jury instruction to which he refers nor the verdict form is in the
record.

                                                   45
No. 74135-7-1/46


       In Clinton, the principal issue was whether the trial court erred in providing

a specific transferred intent jury instruction. 25 Wn. App. at 401. Clinton argued

that the trial court’s transferred intent instruction was misleading and inconsistent

with other instructions. Id. at 402. But, the Clinton court did not consider whether

Clinton’s verdict was inconsistent.

       Inconsistent verdicts present a situation where error, in the sense that the

jury has not followed the court’s instructions, most certainly has occurred. State v.

Goins, ll3Wn. App. 723,730,54 P.3d 723 (2002), aff’d, 151 Wn.2d 728,92 P.3d

181 (2004). Here, even assuming Garland has not already waived his argument

that his verdicts were inconsistent, and even assuming Garland is able to bring this

challenge now in a PRP, we hold that Garland’s argument fails, because he has

not provided relevant authority to support the fact that his verdicts were

inconsistent.   See RAP 16.10(d) (stating that the content of PRP briefs are

governed by RAP 10.3); 10.3(a)(6) (stating that arguments must be supported by

citations to authority); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

809, 828 P.2d 547 (1992) (stating that arguments not supported by authority will

not be considered).

   V. Attorney’s Withdrawal

       Garland argues that he should be given a new trial or released from

custody, because the trial court did not make the necessary inquiry before allowing

his attorney to withdraw before sentencing. Because the withdrawal of counsel

implicates a defendant’s constitutional right to counsel, Garland must prove that




                                             46
No. 74135-7-1/47


any error here resulted in actual and substantial prejudice. ~ Gomez, 180

Wn.2d at 347.

       On June 8, 2010, after Garland was convicted, but before he was

sentenced, the trial court noted that Garland had indicated he wanted to have

Corey, his attorney, removed from the case. Garland confirmed for the trial court

that he wished to have Corey removed. The trial court also noted that Corey

indicated she had a conflict that required her to withdraw. The State requested

that the trial court go forward with sentencing and deny Corey’s motion to withdraw.

Corey responded that she wished to inform the court about the nature of her

conflict outside of Garland’s presence in an in-camera hearing. She noted that her

conflict was based on an ethical concern.

       The trial court conducted an in-camera meeting with Corey and the court

reporter. After conducting the in-camera hearing, the court found that there was a

reasonable belief by Corey that she had a conflict of interest and that her belief

would compromise her ability to zealously represent Garland.                Garland was

represented by a different attorney during sentencing.

       Garland argues that the trial court erred by never making an inquiry into the

nature of the conflict and the grounds for the substitution of counsel before allowing

Corey to withdraw. But, the trial court did inquire into the nature of the conflict

during the in-camera hearing.24 Moreover, Garland does not indicate how he was


       24 Garland argued in his supplemental opening brief that the trial court
infringed on his right to be present for all critical stages of a trial by holding a secret
in-camera hearing in Garland’s absence. But, Garland withdrew any argument
related to his presence during the in-camera hearing in his reply brief.

                                               47
No. 74135-7-1/48


actually and substantially prejudiced by Corey withdrawing prior to sentencing.

Therefore, we conclude that Garland’s argument is without merit.

   VI. Cumulative Error Doctrine

       Finally, Garland argues that his convictions must be reversed because of

the cumulative error doctrine.

       In a PRP alleging cumulative error, the petitioner bears the burden of

showing multiple trial errors and that the accumulated prejudice affected the

outcome of the trial. In re Pers. Restraint of Cross, 180 Wn.2d 664, 690-91, 327

P.3d 660 (2014). Here, the trial court made no errors. We hold that the cumulative

error doctrine does not apply.

       We deny the petition.




                                                                    ,-


WE CONCUR:



                                                    ~x’j




                                           48
