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 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Personal Restraint of
                                                            No. 73785-6-
 PARAMJIT SINGH BASRA,
                                                            DIVISION ONE
                       Petitioner.
                                                            UNPUBLISHED OPINION



                                                            FILED: October 31, 2016


       Appelwick, J. — Basra was convicted of first degree murder for killing his

wife. This court affirmed the conviction. In a personal restraint petition, he alleges

that his rights to be present, to have a public trial, to testify in his own defense, and

to receive effective assistance of counsel were violated. We deny the petition.

                                        FACTS


       Paramjit Basra was charged with first degree murder and second degree

felony murder for killing his wife, Harjinder Basra. State v. Basra, noted at 178

Wn. App. 1003, 2013 WL 6199251, at*1-2. review denied, 180Wn.2d 1002,321

P.2d 1206(2014).

       At trial, Basra argued that his mental illness prevented him from being able

to premeditate and form intent. The jury found Basra guilty as charged. ]d_, at *2.
No. 73785-6-1/2




The court imposed a standard range sentence on the first degree murder

conviction and vacated the charge of felony murder. Id.

      Basra appealed, and this court affirmed the conviction.          Id. at *2, *4.

Represented by counsel, Basra filed a personal restraint petition.

                                   DISCUSSION


      Basra contends that several errors require this court to reverse and remand

for dismissal or a new trial. Alternatively, he argues that we should remand for a

reference hearing.

      A personal restraint petitioner must prove either a constitutional error that

results in actual and substantial prejudice or a nonconstitutional error that

constitutes a fundamental defect which inherently results in a complete

miscarriage of justice. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 488,

251 P.3d 884 (2010). The burden is on the petitioner to prove the error by a

preponderance of the evidence. ]d.

       The petitioner must support the petition with facts 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).           Bald assertions and conclusory

statements are not sufficient to entitle the petitioner to a reference hearing. Id. at

886. If allegations are based on matters outside the record, the petitioner must

demonstrate that competent, admissible evidence would establish the facts. Id.

And, if the allegations are based on the knowledge of others, the petitioner must

present theiraffidavits or other corroborative evidence. ]± If the petitioner makes

this threshold showing, the court examines the State's response, which should
No. 73785-6-1/3




identify any material disputed questions of fact. ]g\ If there are material disputed

issues of fact, then the trial court will hold a reference hearing to resolve the factual

questions. Id at 886-87.

I.     Right to be Present

       Basra argues that he was not present when several jurorswere excused for

hardship. He argues that conducting this proceeding in his absence violated his

right to be present. And, he contends that he was denied his right to effective

assistance of appellate counsel when counsel did not raise this issue on direct

appeal.

       Criminal defendants have the rightto personal presence at all critical stages

of the trial. Rushen v. Spain, 464 U.S.114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267

(1983). This constitutional right is rooted in the confrontation clause of the Sixth
Amendment to the United States Constitution, but it is also protected by the Due

Process Clause in situations where the defendant is not actually confronting the

witnesses or evidence against him. United States v. Gaqnon. 470 U.S. 522, 526,

105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). A defendant has a due process right to

be present where his presence has a reasonably substantial relation to his
opportunity to defend against the charge,           id    Article I, section 22 of the
Washington Constitution also explicitly guarantees the right to be present. Wash.
Const, art. I, § 22.

          Basra contends that this case is controlled by State v. Irbv, 170 Wn.2d 874,

 246 P .3d 796 (2011). In irby, prospective jurors filled out questionnaires. 170
 Wn.2d at 877. Thetrial judge sent an e-mail tothe prosecutor and defense counsel
No. 73785-6-1/4




suggesting that certain jurors be removed from the panel based on their answers

to the questionnaires, jd at 877-78. Via e-mail, Irby's counsel agreed to release

all of the jurors mentioned, and the prosecutor agreed to release seven of the ten.

Id at 878. The judge sent another e-mail indicating that those seven jurors would

be excused. Id The minutes demonstrated that Irby was in custody at the time of

these e-mails, and the record did not show that Irby was consulted about the

dismissal of the jurors, jd On appeal, the court held that conducting juryselection

in this manner, with Irby absent, violated Irby's right to be present. Id at 884.

       Here, the court began jury selection on February 6, 2012. Potential jurors

filled out a questionnaire that included questions about their prior jury service,

connection with law enforcement and the legal system, prior testimony, and close

friends or relatives who have been victims of similar crimes. Afterward, the court

identified the 39 jurors who had indicated that it would be a hardship for them to

serve. The court suggested that these jurors be dismissed so the parties could

focus on the potential jurors who were likely candidates for this case. The State

responded that it had no objection, and Basra's counsel stated, "That's fine with

us." Those 39 jurors were excused.

       The court then noted that a number of other potential jurors could serve, but

they had indicated on the questionnaires that they would like to speak outside the
presence of the other jurors. These jurors were brought into the courtroom

individually. The court gave the attorneys the opportunity to examine the jurors.

Several of these jurors were then dismissed.
No. 73785-6-1/5




       Basra argues that he was not present based on a statement appearing at

the beginning of the transcript for that day: "(On February 6, 2012, with counsel for

the parties present. . .)." The transcript does not note Basra's presence. Basra

also offers his own declaration, in which he states that he reviewed a copy of the

transcript after trial. He says,

       During that review, I discovered for the first time that my attorneys,
       the prosecutor, and the judge met without me to excuse certain jurors
       for 'hardship.' I did not waive my right to be present at that part of
       my trial. Instead, if given a choice, I would have demanded to be
       present. In addition, I would likely not have agreed to excuse all of
       the jurors for cause.

       Basra refers generally to the challenged proceeding as "Hardship

Excusals." But, the Irby court limited its holding to proceedings that test jurors'

fitness to serve on a particular case, rather than examine jurors' general

qualifications. 170 Wn.2d at 882. Thus, the right to be present did not attach when

the court in this case dismissed 39 jurors for hardship.       To the extent Basra

challenges this portion of the proceeding, we conclude he was not denied the right

to be present.

       Basra does not explicitly claim he was absent for voir dire of individual

jurors. Basra must do more than simply make conclusory allegations that he was

not present during jury selection. See Rice, 118 Wn.2d at 886. He states in his

declaration that he concluded he was not present solely after reviewing the

transcript. But, he must present evidence showing that his factual allegations are

not based solely on speculation, conjecture, or inadmissible hearsay. Id The type
No. 73785-6-1/6




of conjecture in Basra's declaration does not point to evidence that would support

his allegations.

       Additionally, the State has offered evidence that contradicts Basra's

conclusory allegations. The State has provided the clerk's minute entry for the

February 6, 2012 hearing. Those minutes state, "Deft, respective counsel[,] and

interpreters^] Sarbjit Singh and Santosa Wahl[,] are present in [cjourt." The

abbreviation "Deft" and the listing of interpreters establish that Basra was in fact

present during this proceeding. A reference hearing is therefore not necessary on

this issue.

       The burden is on Basra to prove an error by a preponderance of the

evidence. Monschke, 160 Wn. App. at 488. Basra has failed to meet his burden.

       Basra also argues that he was denied his right to effective assistance of
appellate counsel due to counsel's failure to raise this issue on his direct appeal.
To succeed on a claim of ineffective assistance of appellate counsel, Basra must

show the merit of the legal issue that counsel did not raise on appeal and also

show that he was prejudiced. In re Pers. Restraint of Netherton, 177 Wn.2d 798,

801, 306 P.3d 918 (2013). Since the evidence does not support Basra's claim that

he was absent during this proceeding, he fails to establish that it was error not to

raise this claim on direct appeal.

II.     Right to a Public Trial

        Basra also contends that he was denied his right to a public trial when the

trial court called three jurors into the courtroom individually for questioning about

their questionnaires.
No. 73785-6-1/7




       Criminal defendants have the right to a public trial, which is guaranteed by

both the state and federal constitutions. U.S. Const, amend. VI; Wash. Const.

art. I, § 22. And, the Washington Constitution additionally guarantees the right of

a trial that is open to the public. Wash. Const, art. I, § 10. These provisions are

collectively referred to as the public trial right. State v. Love, 183 Wn.2d 598, 605,

354P.3d841 (2015).

       Washington courts follow a three step inquiry in public trial cases. Id First,

the court determines whether a public trial right attaches to the proceeding, jd.

Then, if the right attaches, the court asks whether the courtroom was closed. Id
Lastly, the court asks if that closure was justified, jd The burden is on the
defendant for the first two steps, and on the proponent of the closure for the third.

id.

       In Love, voir dire questioning occurred in open court, id at 602. For cause

challenges were done at the bench, but on the record, id Counsel exercised
peremptory challenges by passing a sheet of juror names between themselves,
jd at 602-03. On appeal, Love argued that this procedure violated his right to a
public trial, id at 604. The court disagreed, reasoning that while the public trial
right attaches to jury selection, Love had failed to show a courtroom closure, id
at 605-06. Because no portion of the process was concealed from the public, the
public could scrutinize the entire jury selection process. Jd at 606-07. Thus,
Love's right to a public trial was not violated. Jd. at 607.
       Similarly, in this case the public trial right attached to the proceeding in
which individual jurors were questioned. But, Basra has not demonstrated that the
courtroom was closed during this proceeding.            He alleges that the court's
No. 73785-6-1/8




statements to the individual jurors prior to examining them demonstrate that the

courtroom was closed.      After the jurors indicated that they wished to speak

privately, the court called them in one at a time and permitted the attorneys to ask

questions. The court told each juror, "The attorneys have some questions for you

about your answers. What you tell us is just for the people in the room. And I'd

ask you not to talk about it to the other jurors." From this language, it is clear that
the court was informing the jurors that their conversations were closed to the other

jurors. The court did not indicate that the courtroom was closed to any member of

the general public. Like in Love, any member of the public could have observed
the questioning, because no part of it was conducted in private, jd at 607. The
fact that this proceeding was on the record further indicates that it was open to the

public. See id.

       Nonetheless, Basra argues that a reference hearing is warranted to

determine whether the courtroom was actually closed.             The record here is

insufficient to create a question of fact as to whether the courtroom was closed.

His conclusory allegation thatthe courtroom was closed does not merit a reference

hearing.

       Basra has not met his burden to establish error by a preponderance of the

evidence. Accordingly, counsel's decision not to raise this issue on direct appeal
was not ineffective assistance of appellate counsel. See Netherton, 177 Wn.2d at

801.
No. 73785-6-1/9




III.   Right to Testify

       Basra argues that he was effectively denied the rightto testify when counsel

asked him a series of questions on a single topic. He argues that the rightto testify

must, at a minimum, include the right to testify to the basic, relevant facts of the

defense. In support of this argument, Basra provides his own declaration and the

declaration of an experienced defense attorney.

       A defendant has a fundamental constitutional right to testify in his or her

own defense. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L. Ed.

2d 37 (1987). On a federal level, the right to testify is implicitly based in the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution, id The

Washington constitution explicitly protects the right to testify. Wash. Const, art. I,
§ 22. This fundamental right cannot be abrogated by counsel or the court. State
v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999). Only the defendant, not

counsel, has the authority to decide whether or not to testify. State v. Thomas,

128 Wn.2d 553, 558, 910 P.2d 475 (1996). Adefendant's right to testify is violated

if the final decision not to testify was made against the defendant's will. Robinson,

138Wn.2dat763.

       This court reviews claims of denial of the right to testify as ineffective

assistance of counsel arguments, id at 765-66. To succeed on a claim of

ineffective assistance of counsel, a defendant must show (1) that counsel's

representation was deficient in that it fell below an objective standard of
 reasonableness, and (2) this deficient representation prejudiced the defendant,

 meaning that there is a reasonable probability that the result of the proceeding
No. 73785-6-1/10




would have been different absent counsel's errors. State v. McFarland. 127 Wn.2d

322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

      Basra testified in his own defense at trial. Defense counsel asked a series

of questions, all having to do with Basra's turban. Counsel asked when Basra

began wearing a turban, whether he wears one every day, and if the turban is an

important part of his religion. Counsel also asked whether Basra was wearing a

turban on the morning of July 27, 2009 and what color that turban was. Basra

replied that he was wearing a turban, but he did not remember its color. He said

that several police officers reported that the turban was orange, another officer

stated that it was red, and the photographs from the time he was arrested showed

that it was either maroon or brown. The State asked Basra one question: "You

killed your wife?" Defense counsel objected to this question as outside the scope

of direct, and the court sustained the objection.

       Here, Basra cannot show deficient performance. Basra was not denied the

right to testify. He insistedthat he wished to testify, and his attorneys provided him

that opportunity. Counsel did not prevent Basra from testifying.

       Additionally, while the questions about Basra's turban may seem irrelevant,

the record reveals that this issue was very important to Basra. He wrote a letter to

the court explaining that he had identified the police officers' inconsistent

statements and urged his attorney to investigate the color of his turban, but she

did not do so. He emphasized his belief that if the officers were lying about or

could not recognize the color of his turban, their testimony could not be admissible.


                                             10
No. 73785-6-1/11




By examining Basra about his turban, counsel gave Basra an opportunity to speak

on an issue of great importance to him.

       Further, counsel's performance is not deficient if it can be characterized as

legitimate trial strategy or tactics. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260

(2011). Dr. Vincent Gollogly testified as to Basra's report of depression and

Basra's memory of the day of the killing. Had Basra testified to recount what

happened on that day, he would have opened the door to cross-examination
regarding any inconsistencies in his statements. Considering this, it was not
objectively unreasonable for Basra's counsel to develop a strategy that relied on
Dr. Gollogly rather than Basra to tell his story.

       Basra argues that a reference hearing is necessary for prejudice to be
assessed. But, he has failed to allege facts that show counsel's performance was

deficient. Therefore, we do not need to reach the question of prejudice. See In re

Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012) ("We need

not consider both prongs of Strickland (deficient performance and prejudice) if a
petitioner fails on one."). We hold that Basra was not denied the right to testify.
IV.    Failure to Investigate

       Basra argues that he received ineffective assistance of trial counsel when
counsel did not investigate medical factors that contributed to Basra's mental
illness. Basra contends that he urged counsel to seek blood testing to corroborate

his mental illness, but counsel did not do so until months after the murder. And,

he alleges that counsel failed to provide these results to the expert witness. He



                                               11
No. 73785-6-1/12




asserts that this error prejudiced him, because he had a thyroid disorder, which is

medically linked to depression.

      Counsel's performance is given a strong presumption of effectiveness, in

re Pers. Restraint of Davis, 152Wn.2d647, 673, 101 P.3d 1 (2004). To determine

whether counsel's performance is deficient, the court must consider whether

counsel's assistance was reasonable considering all of the circumstances. In re

Pers. Restraint of Brett, 142 Wn.2d 868. 873, 16 P.3d 601 (2001). To provide

adeguate assistance, counsel must conduct a reasonable investigation that would

enable counsel to make informed decisions about the best method of representing

the client, id Ineffective assistance claims based on the duty to investigate must

be assessed in light of the strength of the State's case. Davis, 152 Wn.2d at 722.
       Failing to investigate medical evidence that is relevant to developing an
informed theory ofthe case can fall below an objectively reasonable standard. See
Brett, 142 Wn.2d at 880; State v. Fedoruk, 184 Wn. App. 866, 883, 339 P.3d 233

(2014). For example, in Brett, defense counsel knew that Brett had a history of
physical and mental health problems. 142 Wn.2d at 880. Medical evidence would
have been available at the time of trial preparation if defense counsel had

reasonably investigated, id But, defense counsel did not seekto retain a mental
health expert until just one month before the trial, id at 878. That expert did not
receive the defendant's medical records until two days before trial, id And, the

expert was not qualified to render an expert opinion on the subject for which he
was retained, jd In Fedoruk, the defendant had a history ofserious mental illness
and had previously been found not guilty by reason of insanity on several felony

                                            12
No. 73785-6-1/13




charges. 184 Wn. App. at 885. Yet, defense counsel did not retain a mental health

expert or otherwise have Fedoruk's mental health condition evaluated until the day

before jury selection. Jd at 881-82. Given the State's strong circumstantial

evidence against the defendant, counsel's failure to obtain an expert evaluation

was unreasonable, id at 882.

      The facts here are distinguishable. Here, Basra's trial counsel investigated

his mental health conditions.   Counsel retained an expert, Dr. Gollogly.      Dr.

Gollogly examined Basra and diagnosed him with depression. Medical evidence

showing that Basra's depression was caused by a thyroid disorder, while relevant,
would have merely corroborated Basra's self-report by showing that Basra's

symptoms were consistent with a thyroid disorder. It would not have necessarily
changed the diagnosis. Neither the diagnosis nor the cause was at issue at trial.
Rather, the issue was whether Basra'sdepression interfered with his ability toform
intent. Counsel conducted a reasonable investigation by retaining an expert who

examined Basra. We conclude that counsel's performance was not deficient.1

V.     Closing Argument

       Basra argues that his trial counsel provided ineffective assistance of
counsel by conceding that Basra was guilty of manslaughter without his
permission. Basra argues that this error entitles this court to automatically find



       1 Because we conclude that counsel's performance was not deficient, we
need not reach the question of prejudice. See Crace, 174Wn.2d at 847. However,
we note that the State's expert also concluded that Basra suffered from acute
depression. The cause of this depression was not at issue, only whether it
prevented Basra from forming the intent to commit the crime charged.

                                            13
No. 73785-6-1/14




prejudice and overturn his conviction. Alternatively, he contends that this claim

should be remanded for a reference hearing.

       Defense counsel began closing argument by stating, "Guilty. Guilty. That's

the finding that we think this jury is going to make." He continued, "The next

question, though, is: Guilty of what?" Counsel clarified,

             Now, let me make it clear, our position as Defense is that Mr.
       Basra is not guilty, not guilty of any of the crimes, not guilty as
       charged, or of any of the lesser offenses, based on him having
       mental illness at the time, on July 27th, based on the mental illness
       interfering with his ability to form intent, and to form premeditated
       intent to murder his wife.

But, counsel recognized that the jury might find that Basra is guilty ofmanslaughter

in the second degree. Counsel returned to this theme at the end of his argument,

telling the jury that while this seems like a complicated case, at the end it comes
down to the fact that a man suffered from mental illness and it resulted in his wife's

death. Counsel concluded,

               You folks can just go ahead and just go back there and just
       be, like, not guilty. Okay, that's fine. That's what our first position
       would be. That's what we prefer. But you're going to give it some
       thought. You can spend a whole bunch oftime trying to grapple with
       all of these different] theories the Prosecution's thrown out there.

              Premeditated, intentional, reckless, you know, felony murder,
       felony murder under reckless, felony murder strangulation: You can
       just reject all ofthat if you want. You can justput 'not guilty' on there.
       Go ahead and fill in 'guilty' on the Manslaughter in the Second
       Degree, and you'll be done.

Counsel offered two alternatives for the jury: preferably, the jury would find Basra

not guilty, because his mental illness interfered with his ability to form intent, but




                                              14
No. 73785-6-1/15




otherwise, the jury should stop at finding him guilty of manslaughter in the second

degree.

      Counsel's performance is strongly presumed to be reasonable. Grier, 171

Wn.2d at 33. Where counsel's conduct can be characterized as legitimate trial

strategy or tactics, performance is not deficient, jd A defendant may rebut the

presumption that counsel's performance was not deficient by demonstrating that

there is no conceivable legitimate tactic explaining counsel's performance. State

v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).

       In certain circumstances where the evidence of guilt on a particular charge

is overwhelming, counsel may concede guilt of that charge to the jury. State v.

Silva, 106 Wn. App. 586, 596, 24 P.3d 477 (2001); State v. Hermann, 138 Wn.

App. 596, 605, 158 P.3d 96 (2007). Conceding guilt can be a sound trial strategy
when the evidence of guilt is overwhelming and the charge in question is a lesser

charge, so there is an advantage to be gained. Silva, 106 Wn. App. at 596. The
attorney does not need to consult with the client before pursuing this kind of
strategy, jd Where a concession is a sound trial strategy or tactic, it does not
constitute deficient performance. Hermann, 138 Wn. App. at 605.

          Here, counsel did not concede guilt entirely on the manslaughter in the

second degree charge. Counsel emphasized multiple times that the defense's
primary position was that Basra was not guilty. However, even if we were to treat
counsel's statements as conceding guilt, Basra has shown no error. The evidence

that Basra killed his wife was overwhelming. His daughter, who witnessed the

killing, testified. Basra, 2013 WL 6199251, at *1. The State played a recording of

                                            15
No. 73785-6-1/16




her calls to 911, in which she said that Basra was "beating" Harjinder, that he tried

to kill Harjinder by "pushing her neck," and that "he grabbed a rope and just put it

on my mom's neck." id The police officers who arrived at the scene testified as

to Basra's statements to them: "Ah, ah, the problem is I killed my wife. She's in

the room to the right;" "I have family problems;" and "She has problems with men,

so I killed her." The issue was whether he was capable of forming the intent to

commit a crime. Manslaughter in the second degree was the least serious charge

that Basra faced, and a conviction on this charge required only criminal negligence.

Conceding guilt on this charge would have been consistent with Basra's defense

that due to his mental illness, he could not form the requisite intent for premeditated

intentional murder, intentional murder, or intentional assault. We conclude that to

the extent counsel admitted guilt of manslaughter in the second degree, it was in

accordance with a sound trial strategy, and did not constitute deficient

performance. Therefore, we deny Basra's claim of ineffective assistance.

       We deny the petition.




WE CONCUR:




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