State Of Washington v. Michele Kristen Anderson ( 2019 )

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2019 FEB 19 AM a: 55
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 75074-7-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
MICHELE ANDERSON,
Appellant. FILED: February 19, 2019
CHUN, J. — A jury convicted Michele Anderson of six counts of aggravated
murder in the first degree with a firearm sentencing enhancement for each
charge. On appeal, Anderson contends the trial court denied her right to counsel
of choice on multiple occasions. She also raises issues relating to the right to a
public trial, the right to be present at critical stages of trial, the jury’s
consideration of the information, and communication with the jury regarding the
death penalty. For the reasons discussed below, we affirm.
BACKGROUND
On the morning of December 26, 2007, Judy Anderson did not appear for
work. After attempting to reach Judy1 by telephone, her friend and co-worker,
Linda Thiele, drove to the Anderson house. When she entered the home, Thiele
discovered several dead bodies. Thiele called 911. Law enforcement
For clarity, this opinion refers to certain family members by their first names. We intend
no disrespect.
No. 75074-7-1/2
discovered the bodies of Judy and her husband, Wayne, behind the house.
Inside the house, they found the bodies of Scott Anderson (Wayne and Judy’s
son), his wife, and their two young children. All six victims had been shot.
Later that day, Michele Anderson and her boyfriend, Joe McEnroe, arrived
at the house. Anderson told the King County Sheriff detectives she was Wayne
and Judy’s daughter and lived on the property in a trailer. During her initial
conversation with a detective, Anderson did not question law enforcement’s
presence or inquire about her family. The detective became suspicious that
Anderson was withholding information. Eventually, Anderson told the detectives
she had shot and killed all six family members. In recounting the details to
detectives, Anderson changed her story several times, and eventually implicated
McEnroe in the deaths as well.
On December 28, 2007, the King County Prosecuting Attorney’s Office
charged Anderson and McEnroe with six counts of aggravated murder in the first
degree with a firearm sentencing enhancement for each charge. In October
2008, prosecutors provided notice of a special sentencing proceeding to
determine whether to impose the death penalty, but subsequently withdrew the
notice. In April 2011, the trial court severed Anderson’s and McEnroe’s cases.
After years of proceedings, Anderson’s trial began in January 2016 and
concluded on March 3, 2016 with guilty verdicts on all six counts, including the
aggravating circumstances and firearm enhancements. She now appeals.
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ANALYSIS
A. Right to Counsel of Choice
Anderson contends the trial court violated her Sixth Amendment right to
counsel of choice on three separate occasions. The State argues Anderson
abandoned her initial request for substitution of retained counsel, thereby waiving
the issue on appeal, and never effectively renewed that request. We agree with
the State.
“The Sixth Amendment guarantees the right to select and be represented
by one’s preferred attorney.” State v. Aquirre, 168 Wash. 2d 350, 365, 229 P.3d
669 (2010). This right includes a defendant’s right to choice of private counsel.
Aquirre, 168 Wash. 2d at 365. However, a defendant’s right to choice of private
counsel has limitations. Aciuirre, 168 Wash. 2d at 364. For example, a defendant
does not have the right to representation by an attorney the defendant cannot
afford or one who declines to serve as counsel. Aguirre, 168 Wash. 2d at 365.
Additionally, the right to choose counsel does not permit a defendant to unduly
delay proceedings. Aquirre, 168 Wash. 2d at 365. The trial court weighs the
defendant’s right to choose counsel against the public’s interest in the prompt
and efficient administration of justice. Aquirre, 168 Wash. 2d at 365.
Erroneous deprivation of the right to counsel of choice constitutes
structural error requiring reversal without a showing of prejudice. United States
v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 5. Ct. 2557, 165 L. Ed. 2d 409 (2006).
However, when retention of counsel of choice requires a continuance, the trial
court must balance the defendant’s right with the trial court’s need to manage its
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calendar. Aquirre, 168 Wash. 2d at 365. In such cases, resolution of the balancing
of defendant’s rights and efficient administration of justice “falls squarely within
the discretion of the trial court.” Aquirre, 168 Wash. 2d at 365. Therefore, an
appellate court reviews such a decision for abuse of discretion. ~ Aquirre, 168
Wash. 2d at 365-66.
1. Motion to Substitute M. Julian Denes as Retained Counsel
In June 2008, Anderson’s appointed counsel, attorneys Cindy Arends and
Kevin Dolan, moved to withdraw due to fundamental differences with their cHent
on the direction of the defense. Soon after, Anderson moved to discharge
Arends and Dolan, and substitute privately retained attorneys Philip Sayles and
M. Julian Denes. Before the trial court heard the motion, Sayles declined to
represent Anderson, leaving only Denes as private counsel.
At the time of the request for substitution, more than seven years before
her trial began, Anderson still faced the possibility of a death sentence. The
Washington Association of Criminal Defense Lawyers Death Penalty Committee
filed a brief to express concern about Sayles and Denes as Anderson’s
representatives in a capital case. The brief focused on the importance of
complying with Special Proceeding Rules—Criminal (SPRC) 2 pertaining to
death penalty representation, which specifies requirements for attorneys
appointed to defend capital cases. Sayles and Denes did not meet the
requirements of SPRC 2.
In early July 2008, the trial court considered briefing and oral argument on
whether SPRC 2 applied to retained counsel and whether Anderson’s Sixth
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Amendment right to retain attorneys of her choice superseded the requirements
of SPRC 2. During oral argument, Denes informed the trial court of Sayles’s
departure and requested appointment of an SPRC 2 lawyer to help litigate the
case. The court concluded that Anderson’s right to counsel of choice was
subject to SPRC 2 and denied the motion to substitute Denes as counsel. The
trial court granted Arends and Dolan’s motion to withdraw, ordered new
appointed counsel, and requested Arends and Dolan remain as representatives
until filing of a notice of appearance by new counsel.
During a hearing on July 31, 2008, the trial court considered the question
of who represented Anderson in light of Arends and Dolan withdrawing as
counsel and the denial of the motion to substitute Denes. Prior to the hearing,
Denes had filed a motion for reconsideration of the motion to substitute counsel
on Anderson’s behalf. Also, the court had appointed attorney Colleen O’Connor
to provide Anderson with advice on her right to counsel. At the hearing,
O’Connor informed the court she had spoken with Anderson about the SPRCs,
the constitutional right to counsel, the right to counsel of choice, and the courts
role in providing adequate representation.
After this consultation, Anderson wanted O’Connor to serve as her
counsel. Denes withdrew the motion for reconsideration. He informed the court
that Anderson had not executed the motion because she no longer sought his
representation. In court, Anderson affirmatively stated she no longer desired to
retain Denes as her attorney.
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No. 75074-7-1/6
Anderson now claims the trial court incorrectly interpreted SPRC 2 and
denied her right to retained counsel of choice. But Anderson waived this claim.
A party may abandon or waive a constitutional claim by affirmatively
withdrawing the related motion. State v. Valladares, 99 Wash. 2d 663, 672, 664
P.2d 508 (1983). “Once a constitutional challenge has been affirmatively
withdrawn or abandoned, the challenge will not be considered on appeal.” In re
Pers. Restraint of Cross, 180 Wash. 2d 664, 690, 327 P.3d 660 (2014) (abrogated
on other grounds by State v. Gregory, — Wn.2d —, 427 P.3d 621 (2018)).
Here, Anderson raised the issue of her Sixth Amendment right to counsel
of choice in her initial motion for substitution, oral arguments, and in the motion
for reconsideration. However, she abandoned her constitutional challenge to the
court’s decision when she withdrew the motion to reconsider and her request for
Denes to represent her. She affirmatively stated her desire to withdraw the
request for Denes’s representation after consultation with an attorney appointed
to advise her on her right to counsel of choice. At this point, Anderson had
explicitly discontinued her request for Denes as her counsel of choice.
Therefore, she has waived any constitutional claim related to the trial court’s
rejection of her motion to substitute Denes as counsel.
2. Request for “Furlough”
Anderson experienced significant turnover in representation and
frequently expressed displeasure with appointed counsel. In February 2015,
appointed counsel Colleen O’Connor and David Sorenson moved to withdraw,
citing a complete breakdown in communication and irreconcilable conflict. At the
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No. 75074-7-1/7
hearing on this motion, Anderson asked the court, “Can I just hire somebody
myself? I don’t like public defenders anymore. lIla was the only private one, and
he was awesome. Why can’t I just, you know, hire some private attorneys?” The
trial court did not address this question, other than to inquire as to lIla’s qualities.
After further discussion with the trial court and her attorneys, Anderson
again asked, “Can’t I just have a furlough so I can go hire a private attorney?”2
The trial court did not respond to this request. The court subsequently denied
counsel’s motion to withdraw, noting “[tjhe conflict that exists is of
Ms. Anderson’s own making; her refusal to cooperate is neither reasonable nor
justified.”
Anderson contends the trial court failed to address her requests to hire
private counsel and violated her right to counsel of choice. However, the record
demonstrates no such denial. The trial court did not make any ruling that denied
or prevented Anderson from retaining counsel of choice. Nothing precluded
Anderson from attempting to hire an attorney and moving to substitute counsel.
3. Request for Mediator
At the close of the State’s case against Anderson, the parties held an in-
court discussion as to whether Anderson would testify. Anderson wished to
testify but her attorneys believed they could not effectively represent her during
her testimony. As Anderson’s attorneys attempted to explain their position to the
2 Anderson had made a similar request in November 2009. She told the trial court, “If I
was not in the jail, I could get a private attorney that’s competent.” She also said she wanted to
work toward becoming a minister and helping troubled girls. The trial court responded, “This
notion that you can get out of custody and pursue a minister’s license and do all that while a
death penalty case is looming in your future, it’s just not a realistic view of the world right now.”
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No. 75074-7-1/8
court, she alleged they lied to her, verbally abused her, and committed
malpractice. She claimed, “I need a mediator or a private attorney to add to the
team so somebody can be my witness and tell you because you don’t believe
me.” She also made the following request:
[C]ould I at least have a PR so I can get a private attorney to come
into these meetings with them so they can witness what they are
doing, and then tell you. As a neutral party or even as a mediator
they have mediators you can hire. Could I at least do that so I have
the—I have the right to have the ability to prove to you what I’m
saying. What’s wrong with that? Like if I had a few hours PR I
could get—I could go downtown, and I can get a mediator or a private
attorney to sit in on these things.
Anderson asserted she had a right to release to bring somebody to prove her
allegations. The trial court disagreed.
When the court asked Anderson if she wished to testify, she responded
that she lacked counsel interested in unbiased representation. She elaborated, “I
just want you to know I have a constitutional right for counsel of choice that I can
hire with my own funds, and I just want you to know that you cannot deny
somebody that.” She continued to claim her right to counsel of choice had been
violated. She requested to confirm on the record that the court denied her the
ability to hire a professional mediator or a private attorney. The trial court
responded, “Ma’am, we are at the end of this trial almost,” made a record as
requested, and attempted to determine whether Anderson wished to testify.
Anderson eventually declined to testify, claiming she lacked effective assistance
of counsel.
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No. 75074-7-1/9
Anderson alleges this exchange constituted a violation of her right to
counsel of choice. Once again, however, Anderson did not move for substitution
of counsel. Instead, she requested release to hire a mediator or private attorney
to add to her team in order to oversee her trial counsel. Anderson has not
provided legal authority to support her position that the Sixth Amendment right to
counsel includes the right to hire such a private mediator.
Furthermore, as indicated above, the Sixth Amendment right to counsel of
choice is not absolute. Aquirre, 168 Wash. 2d at 365. The trial court must balance
the defendant’s right to counsel of choice with the prompt and efficient
administration of justice. Aguirre, 168 Wash. 2d at 365. Anderson’s request to hire
a mediator or private attorney would have necessarily required a continuance. At
this point, the State had rested its case and the defense did not anticipate calling
any witnesses if Anderson chose not to testify. The parties were on the brink of
closing arguments and submission to the jury for deliberation. The case had
taken over eight years to come to trial and almost two months of testimony in
front of the jury.3 In light of these circumstances, any denial of a continuance to
obtain private counsel was well within the trial court’s discretion and does not
amount to a violation of Anderson’s right to counsel of choice.
B. Jury Selection Issues
On December 11, 2015, the trial court convened a pool of potential jurors
for jury selection. At that time, the trial court swore in the potential jurors,
introduced the parties, and announced the charges and aggravating
~ The State charged Anderson in December 2007 and trial began January 2016.
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No. 75074-7-1/10
circumstances. The court then administered a written questionnaire for
completion by all potential jurors.
On December 17, 2015, the State, defense counsel, and Anderson
appeared in open court and presented the trial court with a list of 217 jurors both
parties agreed to excuse (agreed list). The list included the State’s grounds for
excusal, either hardship, cause, or both, but gave no indication of the defense’s
reasons. Defense counsel declined the invitation to add its reasons for excusal,
noting, “We obviously agree on one grounds [sic] for excusals [sic] for each of
the jurors. I don’t think that it is necessary that we identify which grounds or both
grounds are attributed to the defense or State.” The State also offered to include
email communication between the parties indicating the grounds for excusal.
Defense counsel did not believe this was necessary as long as the trial court filed
the agreed list.
After this discussion on the record, the trial court accepted and filed the
agreed list to memorialize the agreement and excuse the jurors. The parties
then reviewed additional lists of jurors put forward by one party for excusal
without agreement by the other party. The trial court and parties examined the
lists in open court and determined whether to excuse or retain the jurors at issue.
The non-excused potential jurors reconvened on January11, 2016 for voir dire.
Anderson claims the email communications between the prosecution and
defense to arrive at the agreed list violated both her right to a public trial and right
to be present at critical stages of trial. We disagree.
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No. 75074-7-I/li
1. Public Trial Right
Under article I, section 22 of the Washington State Constitution and the
Sixth Amendment to the United States Constitution, a criminal defendant has a
right to a “public trial by an impartial jury.” State v. Sublett, 176 Wash. 2d 58, 70-71,
292 P.3d 715 (2012). The right to a public trial ensures fairness and reminds the
prosecutor and judge of their responsibility and function, encourages witnesses
to come forward, and discourages perjury. Sublett, 176 Wash. 2d at 72.
‘[NJot every interaction between the court, counsel, and defendants will
implicate the right to a public trial or constitute a closure if closed to the public.”
Sublett, 176 Wash. 2d at 71. Before determining whether a violation of a public trial
right occurred, the court must first consider whether the proceeding at issue
implicates the right. Sublett, 176 Wash. 2d at 71. The defendant has the burden of
proving that the public trial right attaches to the proceeding at issue. State v.
Love, 183 Wn.2d, 598, 605, 354 P.3d 841 (2015).
Recent public trial cases establish a framework for determining whether
the proceeding implicates the public trial right. See State v. Wilson, 174 Wn.
App. 328, 335, 298 P.3d 148 (2013). First, the court may examine whether the
proceeding ‘fall[sj within a specific category of trial proceedings that our
Supreme Court has already established implicates the public trial right.” Wilson,
174 Wash. App. at 335. If not, then the court applies the experience and logic test.
Wilson, 174 Wash. App. at 335. Under this test:
[T]he experience prong .asks “whether the place and process
. .
have historically been open to the press and general public.” The
logic prong asks “whether public access plays a significant positive
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No. 75074-7-1112
role in the functioning of the particular process in question.” If the
answer to both is yes, the public trial right attaches.
Sublett, 176 Wash. 2d at 73 (internal citations omitted). The test allows the
determining court to consider the actual proceeding, not merely the label given to
the proceeding. Sublett, 176 Wash. 2d at 73.
A claim of a violation of the right to public trial presents a legal issue
subject to de novo review. State v. Jones, 185 Wash. 2d 412, 421, 372 P.3d 755
(2016). Deprivation of the right to public trial constitutes structural error and is
not subject to harmless error analysis. State v. Wise, 176 Wash. 2d 1, 13-14, 288
P.3d 1113 (2012).
Anderson correctly notes that the right to public trial encompasses jury
selection. See Love, 183 Wash. 2d at 605-06. Anderson contends the dismissal of
some of the 217 potential jurors for cause implicated this right.
However, Anderson erroneously relies on the label of “jury selection” and
fails to examine the actual “proceeding” at issue. In so doing, she overlooks a
critical distinction—trial court involvement. The defense and prosecution reached
the agreed list of 217 excused jurors without any participation by the trial court in
the case at hand. In contrast, the public trial cases pertaining to jury selection
involved trial court participation. See, e.g., Love, 183 Wash. 2d at 605-07 (for cause
challenges at the bench and silent peremptory challenges were not courtroom
closures; “written peremptory challenges are consistent with the public trial right
so long as they are filed in the public record”); Wise, 176 Wash. 2d at 3 (public trial
right was violated by in-chambers questioning of potential jurors); State v. Strode,
167 Wash. 2d 222, 227, 217 P.3d 310 (2009) (questioning of prospective jurors in
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No. 75074-7-1/13
chambers was a denial of right to public trial); State v. Slert (Slert I), 181 Wash. 2d
598, 605-06, 334 P.3d 1088 (2014) (public trial right not implicated by in-
chambers discussion of juror questionnaires where no evidence voir dire had
been initiated); State v. Russell, 183 Wash. 2d 720, 733, 357 P.3d 38 (2015) (work
session conducted by trial court with defendant and attorneys to review
questionnaires for hardship did not implicate the right to public trial); Jones, 185
Wash. 2d at 426 (right to public trial not implicated by judicial assistant’s random
drawing of alternate jurors during recess); Wilson, 174 Wash. App. at 329-30 (right
to public trial had not attached when bailiff excused two jurors on administrative
grounds prior to voir dire); State v. Schierman, — Wn.2d , 415 P.3d 106
(2018) (public trial right did not attach to preliminary hardship juror excusal
determination made during meeting between counsel and jury services
manager).
As defined, the public trial right attaches to certain “interaction between
the court, counsel, and defendants.” Sublett, 176 Wash. 2d at 71. Here, the
interaction solely between the State and defense counsel fundamentally lacked
the critical “court” component. Without court involvement, the email exchange
between the attorneys does not amount to a court proceeding for the purposes of
the right to a public trial. The only related court proceeding, the hearing to submit
the list to the trial court, was public.
Furthermore, Anderson cannot satisfy the experience and logic test.
Under the experience prong, Anderson must show “the place and process have
historically been open to the press and general public.” Sublett, 176 Wash. 2d at
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No. 75074-7-1/14
73. However, Anderson has not demonstrated that negotiations between
attorneys have traditionally been open to the public. Nor has Anderson shown
that such negotiations should be open to the press and general public. Anderson
fails to demonstrate the right to public trial attached to the email exchange
between prosecution and defense counsel. Therefore, we conclude counsel’s
review of the juror questionnaires and determination of agreed jurors for excusal
did not violate Anderson’s right to public trial.
2. Rightto Be Present
Anderson contends the agreed list violated her right to be present for jury
selection and requires reversal. The State claims the right to be present did not
apply to the agreed list. We agree with the State.
A criminal defendant has a constitutional right to be present at all critical
stages of a trial based on article I, section 22 of the Washington State
Constitution and the Due Process Clause and the Sixth Amendment to the
United States Constitution. State v. Irby, 170 Wash. 2d 874, 880-81, 246 P.3d 796
(2011). “The crux of a defendant’s constitutional right to be present at all critical
stages of the proceedings is the right to be present when evidence is being
presented or whenever the defendant’s presence has ‘a relation, reasonably
substantial,’ to the opportunity to defend against the charge.” State v. Bremer,
98 Wash. App. 832, 834, 991 P.2d 118 (2000) (internal citations omitted). This
right “is not absolute; rather ‘the presence of a defendant is a condition of due
process to the extent that a fair and just hearing would be thwarted by his
absence.” jj~y, 170 Wash. 2d at 881 (quoting Snvderv. Massachusetts, 291 U.S.
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No. 75074-7-1/15
97, 107-08, 54 S. Ct. 330, 78 LEd. 674 (1934)). For example, a defendant does
not have the right to be present during in-chambers or bench conferences on
legal matters that do not require the resolution of disputed facts. In re Pers.
Restraint of Lord, 123 Wash. 2d 296, 306, 868 P.2d 835 (1994).
Under art. 1, sec. 22, jury selection is ‘unquestionably a ‘stage of the trial’
at which a defendant’s ‘substantial rights may be affected,” and absence from
such proceedings violates a defendant’s right to be present. j~y, 170 Wash. 2d at
885 (quoting State v. Shutzler, 82 Wash. 365, 367, 144 P. 284 (1914)).
Additionally, jury selection outside of the defendant’s presence violates the right
to be present under the due process clause of the Fourteenth Amendment.
j~y~1 70 Wash. 2d at 884. This is particularly true where jurors are evaluated and
dismissed for cause. j~y, 170 Wash. 2d at 882-84. Discussion and ruling on for-
cause challenges requires resolution of a factual component for which the
defendant has a right to be present. Schierman, 415 P.3d at 121. However,
“there is no constitutional right to presence at the noncourt, nonadversarial office
visits to view juror declarations” for preliminary hardship determinations.
Schierman, 415 P.3d at 120.
Whether a defendant’s right to be present has been violated is a question
of law reviewed de novo. j~y, 170 Wash. 2d at 880. The right to be present is
subject to harmless error analysis. jj~y, 170 Wash. 2d at 885-86. The State has
the burden of proving harmlessness beyond a reasonable doubt. j~y, 170
Wash. 2d at 886. To prove harmlessness, the State may show that the excused
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No. 75074-7-1/16
jurors had no chance to sit on the jury.4 jj~y, 170 Wash. 2d at 886.
Additionally, a lack of timely objection serves as strong evidence against
prejudicial error. State v. Slert (Slert II), 186 Wash. 2d 869, 879, 383 P.3d 466
(2016).
Here, the defense and the State agreed over email to excuse jurors after
empaneling of the jury had begun. ~ j~y, 170 Wash. 2d at 885. The agreed list
included jurors dismissed for both hardship and cause. Where evaluation of
individual jurors for fitness to serve on the specific case occurs, the decision-
making is clearly part of the jury selection process. jj~y, 170 Wash. 2d at 882. This
was the case in j~y, where an email exchange between the trial court and
parties was a portion of the jury selection process, “because this novel
proceeding did not simply address the general qualifications of 10 potential
jurors, but instead tested their fitness to serve as jurors in this particular case.”
170 Wash. 2d at 882. Where this individual evaluation for fitness occurs, the
defendant has a right to be present. .~y, 170 Wash. 2d at 882.
However, as discussed above, this case differs from the facts of existing
case law because of the trial court’s absence. The discussion occurred solely
between defense and prosecution. Therefore, evaluation of the jurors did not
happen as part of a court proceeding hearing, where fairness and justice would
be thwarted by Anderson’s absence. Rather, this part of jury selection occurred
~ The Supreme Court has noted that this method, as defined in jj~y, 170 Wash. 2d at 886,
does not establish the exclusive method to test whether the error was harmless. State v. Slert
(Slert II), 186 Wash. 2d 869, 879 n. 4, 383 P.3d 466 (2016)
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No. 75074-7-1/17
as a communication between prosecution and defense. ~ The parties agreed to
the dismissals, such that the actual court proceeding was non-adversarial and
the court had no need to resolve any factual issues. As defense counsel noted,
“We obviously agree on one grounds [sic] for excusals [sic] for each of the
jurors.
Furthermore, the agreed list itself did not dismiss the jurors. The parties
appeared in open court and entered the agreed list on the record. That
proceeding resulted in excusal of the 217 jurors. Anderson was present for that
hearing, and was, therefore, present when the trial court excused the jurors.
Thus, Anderson’s right to be present was not violated.
Finally, if the agreed list amounted to a violation of the right to be present,
any error was harmless beyond a reasonable doubt. The agreed list included
only 12 potential jurors as excused solely for cause within the number range of
jurors ultimately empaneled.6 Examination of the juror questionnaires for these
12 members of the venire reveals clearly the causes underlying their dismissal.7
~ Under the Rules of Professional Conduct, counsel has a duty of communication with the
defendant. RPC 1.4. An attorney must “inform the client of any circumstance requiring the
client’s consent, reasonably consult with the client regarding the means by which the client’s
objectives will be accomplished, keep the client reasonably informed about the status of the
matter, and promptly comply with any requests for information.” In re Disciplinary Proceedings
Against Van Camp, 171 Wash. 2d 781, 803, 257 P.3d 599 (2011). Thus, counsel would have had a
duty to apprise Anderson of the status of preparations for trial. Anderson has not raised an issue
of counsel’s failure to communicate or ineffective assistance of counsel based on a lack of
communication concerning jury selection.
6 The last juror seated was Juror 140. Within that range, the prosecution designated
jurors 27, 31, 35, 39, 45, 46, 57, 100, 102, 125, 136, and 138 as excusals solely for cause.
Anderson’s counsel explicitly declined the opportunity to include the defense’s reasons for each
juror on the agreed list.
~ Anderson argues that harmless error analysis requires a showing that all dismissed
jurors in the range, regardless of the prosecution’s designated reason, must be examined.
However, the defendant does not have a right to be present during a preliminary hardship
determination. Schierman, 415 P.3d at 120. Therefore, Anderson did not have a right to be
present for discussion of the jurors dismissed for hardship.
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No. 75074-7-1/18
Eight of the jurors demonstrated significant bias toward guilt, with one remarking,
“I can drive them to Walla Walla. . . for the State.” The four other jurors revealed
limited ability to understand English, with one indicating an inability to
communicate in English and leaving nearly the entire questionnaire blank. Given
the obvious issues raised by these questionnaires, the State has demonstrated
that none of the jurors dismissed only for cause would have served on the jury.
Slert II, 186 Wash. 2d at 879. The lack of any objection to the dismissal of these
jurors reinforces the absence of prejudicial error. .~ Slert II, 186 Wash. 2d at 879.
As a result, any denial of Anderson’s right to be present was harmless beyond a
reasonable doubt.
C. Jury Instruction
Anderson contends the trial court initially instructed the jurors that they
could consider the filing of charges as evidence of guilt, thereby violating her
right to a fair trial. The State argues Anderson cannot raise this issue for the first
time on appeal, the jury instructions as a whole properly instructed the jurors, and
any error was harmless. We conclude the instruction at issue was erroneous but
harmless.
The trial court addressed the pool of potential jurors and issued several
preliminary instructions. Among these instructions, the trial court stated, ‘The
charges in this case were initiated by the King County prosecuting attorney by
filing a document called an information informing the defendant of the charges.
You are not to consider the filing of the information or its contents alone as proof
of the matters charged therein.” (Emphasis added.) Anderson did not object to
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No. 75074-7-1/19
this instruction. The trial court repeated its instruction to the juror pool prior to the
start of voir dire on January 11, 2016. Again, the defense did not object.
After jury selection and prior to opening statements, the trial court
instructed, “The evidence you are to consider consists of the testimony of the
witnesses, and the exhibits admitted into evidence.” At the conclusion of the
evidence, the trial court issued its final written and oral jury instructions. The
court instructed the jurors, “Keep in mind that a charge is only an accusation.
The filing of a charge is not evidence that the charge is true. Your decision as
jurors must be made solely upon the evidence presented during these
proceedings.”
The State argues Anderson cannot appeal this issue because she failed to
object below. A party generally waives the right to appeal without a timely
objection at trial. Kalebaugh, 183 Wash. 2d 578, 583, 355 p.3d 253 (2015). Courts,
however, will review manifest errors affecting a constitutional right. Kalebau.qh,
183 Wash. 2d at 583; RAP 2.5(a)(3). In such an instance, the appellant must
identify an error of constitutional magnitude and demonstrate actual prejudice.
Statev. Gordon, 172 Wash. 2d 671, 676-77, 260 P.3d 884 (2011). Actual prejudice
requires a plausible showing that the error had practical and identifiable
consequences. Kalebaugh, 183 Wash. 2d at 584.
Here, we assume, without deciding, that the trial court’s preliminary
instruction amounts to manifest constitutional error. As such, harmless error
analysis is required. ~ Kalebaucih, 183 Wash. 2d at 585. The constitutional
harmless error standard requires the State to prove harmlessness beyond a
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No. 75074-7-1120
reasonable doubt. State v. Barry, 183 Wash. 2d 297, 303, 352 P.3d 161 (2015).
‘This stringent standard can be met if there is overwhelming evidence of the
defendant’s guilt that is not tainted by the error.” Barry, 183 Wash. 2d at 303.
An appellate court evaluates jury instructions in the context of all
instructions given. State v. Pirtle, 127 Wash. 2d 628, 656, 904 P.2d 245 (1995).
Jury instructions must properly inform the jury of the applicable law, not mislead
the jury, and permit each party to argue its theory of the case. Gordon, 172
Wash. 2d at 677. An erroneous instruction amounts to harmless error if it did not
lower the State’s burden of proof or affect the outcome of the trial. Kalebaucih,
183 Wash. 2d at 585. Jurors are presumed to follow the court’s instructions.
Kalebaugh, 183 Wash. 2d at 586.
Here, the trial court provided multiple appropriate instructions informing
the jury about what constituted evidence and their role in evaluating the
evidence. The final instructions included the proper admonishment that the
information was not proof of the charge and reminded the jurors to evaluate the
evidence. The instructions as a whole correctly defined the State’s burden of
proof and the juror’s role in examining the evidence put forth by the parties.
Thus, the trial judge’s correct instructions throughout the rest of the trial cured
any potential prejudice. See Kalebaugh, 183 Wash. 2d at 586.
The Washington Supreme Court found harmless error beyond a
reasonable doubt in a trial court’s erroneous preliminary instruction in Kalebaugh,
183 Wash. 2d at 586. Despite an incorrect preliminary instruction on reasonable
doubt, the Court concluded, “[W]e do not find it plausible to believe that the jury
20
No. 75074-7-1/21
retained these particular oral remarks made before jury selection three days
earlier, ignored the other oral and written instructions, and applied the incorrect
legal standard.” Kalebaugh, 183 Wash. 2d at 586. These remarks may apply even
more so in this case, where the trial court made the preliminary remarks before
jury selection and six weeks prior to the close of evidence.
Furthermore, the State presented the jury with overwhelming evidence of
Anderson’s guilt. During closing arguments, defense counsel told the jury that
Anderson admitted to shooting her father, brother, and sister-in-law. “[T]he
forensics supports her confession that she fired at Wayne and missed. That Joe
killed her mother. That she skilled [sicj Scott. That they together killed Erica.
And that Joe killed the children.” Therefore, premeditation and accomplice
liability became the main questions for the jury.
Anderson’s confession demonstrated premeditation and accomplice
liability. Anderson admitted she had prior thoughts of killing her family in the two
weeks before the murders. She told detectives, “I was upset with my parents
and my brother and that if the problems don’t get resolved, I, my intent was
definitely to kill them.” She also stated, “Yes; it was premeditated; and yes, I was
fed up with everything.” And, “I went up there knowing I’d probably shoot these
people.” Additionally, she told McEnroe to shoot the children. “I said, we have to
kill everybody.”
Given the significant evidence of guilt, the elapsed time between the
preliminary instructions and deliberations, as well as the correct instructions
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No. 75074-7-1/22
provided during the proceedings, we conclude the erroneous jury instruction was
harmless beyond a reasonable doubt.
D. Ineffective Assistance of Counsel
Anderson contends she was denied effective representation because
competent counsel would have known the preliminary instruction violated due
process and would have objected. While the trial court committed an
instructional error, that error was harmless beyond a reasonable doubt and
cannot support an ineffective assistance claim.
Effective assistance of counsel is guaranteed by the Sixth Amendment of
the United States Constitution and Article I, section 22 of the Washington
Constitution. State v. Hendrickson, 129 Wash. 2d 61, 77, 917 P.2d 563 (1996). To
prevail on a claim of ineffective assistance of trial counsel, a defendant must
prove both deficient performance and prejudice. State v. Jones, 183 Wash. 2d 327,
339, 352 P.3d 776 (2015). Establishing deficient performance requires a
showing that counsel’s representation fell below an objective standard of
reasonableness based on consideration of all the circumstances. State v.
Thomas, 109 Wash. 2d 222, 225-26, 743 P.2d 816 (1987). Prejudice sufficient to
support a claim of ineffective assistance of counsel occurs when counsel’s errors
“were so serious as to deprive the defendant of a fair trial.” Hendrickson, 129
Wash. 2d at 78. The defendant must show a “reasonable probability that, but for
counsel’s errors, the result of the trial would have been different.” Hendrickson,
129 Wash. 2d at 78.
22
No. 75074-7-1123
A claim of ineffective assistance of counsel is a mixed question of law and
fact that an appellate court reviews de novo. State v. Jones, 183 Wash. 2d at 338-
39.
As discussed above, the error in the preliminary jury instruction was
harmless beyond a reasonable doubt. As a result, Anderson cannot demonstrate
counsel’s failure to object deprived her of a fair trial as needed to establish the
prejudice and sustain an ineffective assistance claim.
E. Death Penalty Statement
The Washington Supreme Court has established “it is error to inform the
jury during voir dire in a noncapital case that the case is not a death penalty
case.” State v. Townsend, 142 Wash. 2d 838, 840, 15 P.3d 145 (2001).8 The
Supreme Court does not distinguish based on whether the court, counsel, or a
juror initiated the discussion of the death penalty. State v. Hicks, 163 Wash. 2d 477,
487, 181 P.3d 831 (2008). In response to any mention of capital punishment,
“the trial judge should state generally that the jury is not to consider sentencing.”
Hicks, 163 Wash. 2d at 487. This strict prohibition ensures impartial juries and
prevents unfair influences on jury deliberations. Townsend, 142 Wash. 2d at 846.
Despite the strict prohibition, discussion of the inapplicability of the death penalty
may be harmless error. See State v. Mason, 160 Wash. 2d 910, 931, 162 P.3d 396
8 While acknowledging that this court may not disregard Townsend, the State contends
that Townsend is incorrect, harmful, and should be overruled. The State properly notes that
Washington Supreme Court precedent binds this court and failure to follow directly controlling
authority is error. See 1000 Virginia Ltd. Partnership v. Vertecs Corp., 158 Wash. 2d 566, 578, 146
P.3d 423 (2006).
23
No. 75074-7-1/24
(2007); Hicks, 163 Wash. 2d at 488; State v. Clark, 187 Wash. 2d 641, 655, 389 P.3d
462 (2017).
Here, the trial court was aware of potential Townsend issues from the time
the State declined to pursue the death penalty. The trial court determined not to
tell potential jurors anything about the death penalty other than the trial court’s
inability to answer questions on the issues and that it would not be a subject of
inquiry.
The issue of capital punishment arose early in voir dire, when one
prospective juror said she was against capital punishment and did not know if
she could serve on a case involving capital punishment. The prosecutor noted
there had been no mention of the death penalty in the case, but inquired whether
not knowing whether the case involved the death penalty might affect the ability
to serve on the jury. The court recorded the numbers of the potential jurors who
indicated a possible issue. A few jurors continued discussing the issue of the
death penalty. In response, the trial court stated as follows:
I will tell you right now this is a very complicated matter for me, and I
will be very candid with you. The current state of the case law in
Washington, thanks to Supreme Court decisions, is that I can’t
advise this jury whether or not the death penalty is involved. Period.
It’s beyond the scope of what I can talk to you about. What I think I
can tell you is that we still have a death penalty in the State of
Washington.
Later in voir dire, juror 118 asked about the process in death penalty
cases:
I know you can’t speak to if this capital punishment is On this case,
but in cases where it is is [sic] that decision made by the jury or by
the judge? I know the jury decides guilt [sic] or not guilty, but does
the Judge decide the sentence or the jury?
24
No. 75074-7-1/25
The trial court responded that the jury decides the sentence. In a separate
exchange, the State answered a juror question by explaining, “I believe at the
end of this case you will be instructed something along the lines as this, you will
have nothing to do with punishment in the event of a conviction in this case.”
The court issued an instruction to this effect in the final jury instructions.
The defense then asked the trial court to discharge the prospective jurors
based on the discussion of the death penalty. The defense argued that the trial
court’s answer, the State’s comment, and the anticipated final jury instruction
allowed prospective jurors to conclude that the case did not involve the death
penalty. The trial court denied the motion.
Citing Townsend, Anderson contends the trial court violated the prohibition
against informing the jury that the case is noncapital. Anderson also cites Hicks,
163 Wash. 2d at 482-83, and Mason, 160 Wash. 2d at 929-30 for support. But in these
three cases, the trial court explicitly informed the jury the case did not involve the
death penalty. See Townsend, 142 Wash. 2d at 842 (“This is not a case in which
the death penalty is involved and will not be a consideration for the jury.”);
Mason, 160 Wash. 2d at 910 (‘[T]his is nota capital case. In other words, this case
does not involve a request for the death penalty.”); Hicks, 163 Wash. 2d at 483
(‘[t]his is not a death penalty case”). Recently, in State v. Clark, the Court found
error where the State informed the jury that it did not seek the death penalty in
the case. 187 Wash. 2d at 647. While Clark differs in that the State improperly
provided the information to the jury, the statement again unambiguously informed
the venire that the death penalty did not apply.
25
No. 75074-7-1/26
The Townsend errors identified by the Washington Supreme Court have
thus far pertained to explicit statements that the death penalty did not apply.
Those differ significantly from the case at hand. Here, neither the trial court nor
the State commented directly on the applicability of the death penalty in the
particular case. Instead, the trial court provided a legally accurate, general
description of the sentencing process in capital cases. While a particularly
attentive juror could have surmised through inference that the death penalty did
not apply to Anderson’s case, the jury was not specifically informed about the
inapplicability of capital punishment.9 This does not amount to a violation of
Townsend.
Finally, even if the trial court violated the Townsend prohibition, any error
was harmless. As discussed above, overwhelming evidence in the record
supports the conviction. A guilty verdict was likely even without a Townsend
violation. See Hicks, 163 Wash. 2d at 488.
F. Cumulative Error
Anderson claims cumulative error requires reversal. “Cumulative error
may warrant reversal, even if each error standing alone would otherwise be
~ During individual voir dire, juror 118 suggested the defense’s concerns might have been
valid. “[C]orrect me if I’m wrong, but the Judge already said we are not deciding the sentencing.
.you explicitly said—someone asked if we would be involved in punishment, and you said no, the
jury’s not going to be involved in the sentencing. That would occur later.” After this exchange,
the State explored the issue further. “[A]s you sit here now do you know whether this is or is not
a death penalty case?” Juror 118 responded, “I don’t know. I don’t know for a fact, no. I made
some assumptions based on statements that I heard from both parties. It did not seem to me it
was.”
In subsequent individual voir dire with the seven potential jurors who expressed concern
that not knowing whether the case involved the death penalty would impact their ability to be fair
and impartial, the State explored whether anyone had concluded that the case was non-capital.
All responded they did not know whether the case involved the death penalty.
26
No. 75074-7-1127
considered harmless.” State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646
(2006). Without error, the cumulative error doctrine does not apply. Clark, 187
Wash. 2d at 655. Cumulative error also does not apply where the errors are few and
have little or no effect on the outcome of the trial. Weber, 159 Wash. 2d at 279.
Because Anderson has only established the single instructional error,
which was harmless beyond a reasonable doubt, the cumulative error doctrine is
inapplicable.
Affirmed.
WE CONCUR:
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