Personal Restraint Petition Of Christopher Lee Olsen ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
In re the Personal Restraint No. 44984 -6 -II
Of
CHRISTOPHER LEE OLSEN, UNPUBLISHED OPINION
Petitioner.
LEE, J. — Christopher Lee Olsen was convicted of one count of first degree felony murder.
His conviction was affirmed by this court and our Supreme Court. The Supreme Court issued its
mandate on February 12, 2013. In this timely personal restraint petition ( PRP), Olsen argues that
he is entitled to a new trial because of prosecutorial misconduct and ineffective assistance of
counsel. Here, any prosecutorial misconduct that may have occurred was not prejudicial and Olsen
fails to present any competent evidence supporting his claims of ineffective assistance of counsel.
Accordingly, we deny Olsen' s petition.
FACTS
On January 29, 2007, Olsen and Michael Sublett murdered Jerry Totten. State v. Sublett,
176 Wash. 2d 58, 66 -67, 292 P.3d 715 ( 2012). Sublett' s girlfriend April Frazier was with Sublett
and Olsen the night of the murder. Sublett, 176 Wash. 2d at 65. Frazier testified at trial. Sublett, 176
Wash. 2d at 66. According to Frazier, both Sublett and Olsen beat Totten. Sublett, 176 Wash. 2d at 66.
However, Olsen claimed that he was not present when Totten was killed; he only helped loot
Totten' s home and move Totten' s body. Sublett, 176 Wash. 2d at 66 -67. The State charged Olsen
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with premeditated first degree murder and with felony murder in the alternative. Sublett, 176
Wash. 2d at 67.
At trial, the State introduced recorded jail calls in which Olsen referenced a gun. During
direct examination, defense counsel asked Olsen to explain what type of gun he was referring to
and Olsen answered " a 25- millimeter flare gun from Boater' s World." 8 Report of Proceedings
RP) at 856. During cross -examination regarding the statements on the jail phone calls, Olsen
reiterated that he had been referring to a flare gun. Later, on recross -examination, Olsen stated
that he would not use a gun. The trial court found that Olsen' s assertion that he would not use a
gun allowed the State to ask him if he had been convicted of unlawful possession of a firearm in
2006. Olsen answered that he had been convicted of unlawful possession of a firearm, and the
prosecutor moved on.
During closing arguments, the prosecutor used a slide show. The slide show included three
slides that Olsen now challenges:
1. The first slide in the presentation titled " State of Washington vs. Michael Sublett
and Christopher Olsen" with Sublett' s and Olsen' s booking photos above the caption " Murder in
the First Degree Premeditated Murder or Felony Murder." Response to PRP, App. at 1 ( some
capitalization omitted);
2. The ninth slide in the presentation, which is identical to the first. Response to PRP
at App. at 9; and
3. The final slide in the presentation showed Sublett' s and Olsen' s booking photos
inside a circle; around the circle were the terms " motive," " planning," " execution," " burglary,"
robbery," " death," " deception," and " flight," each term had an arrow point from the term itself to
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the photos in the circle; the word guilty was superimposed over the booking photos. 1 Response to
PRP at App. at 47.
When the prosecutor showed the ninth slide during closing argument, Olsen' s defense
counsel objected to the prosecutor " using unadmitted exhibits in this case" and asked for the slide
to be taken down. 9 RP at 977. The trial court began to excuse the jury, but the prosecutor agreed
to take the slide down and move along with his argument. Olsen' s defense counsel also objected
to the final slide of the prosecutor' s closing argument slide show. In response to defense counsel' s
objection, the trial court instructed the prosecutor to " move on" and to " take that picture off." 9
RP at 1003.
A jury found Olsen guilty of first degree felony murder. Sublett, 176 Wash. 2d at 67. Olsen
appealed his conviction, and we affirmed. State v. Sublett, 156 Wash. App. 160, 231 P.3d 231
2010). Our Supreme Court granted Olsen' s petition for review and affirmed his conviction.
Sublett, 176 Wash. 2d at 65. Olsen' s case was mandated on February 12, 2013. He filed this timely
personal restraint petition on June 4, 2013.
ANALYSIS
Olsen argues that he is entitled to a new trial because the prosecutor committed misconduct
during closing argument and he received ineffective assistance of counsel. To be entitled to relief
in a personal restraint petition, Olsen must show either a constitutional error that resulted in actual
and substantial prejudice or a nonconstitutional error that resulted in a complete miscarriage of
1 This final slide is actually the end of a series of slides that starts out with only the photos in a
circle, and each progressive slide adds a term and arrow pointing towards the photos in the center
of the circle. Apparently, the prosecutor is discussing the evidence as each term and arrow is added
to the slide.
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justice. In re Pers. Restraint of Cook, 114 Wash. 2d 802, 810 -13, 792 P.2d 506 ( 1990). Olsen must
support his claims of error with a statement of facts on which his claim of unlawful restraint is
based and the evidence available to support his factual allegations; he cannot rely solely on
conclusory allegations. RAP 16. 7( a)( 2)( i); In re Pers. Restraint of Williams, 111 Wash. 2d 353, 365,
759 P.2d 436 ( 1988); see also Cook, 114 Wash. 2d at 813 -14. Olsen also must state with particularity
facts, which, if proven, would entitle him to relief and must present evidence showing his factual
allegations are based on more than mere speculation, conjecture, or hearsay. In re Pers. Restraint
of Rice, 118 Wash. 2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 ( 1992). If the petitioner' s
allegations are based on matters outside the existing record, he must demonstrate that he has
competent, admissible evidence to establish the facts that entitle him to relief. Rice, 118 Wash. 2d at
886. "[ A] mere statement of evidence that the petitioner believes will prove his factual allegations
is not sufficient." Rice, 118 Wash. 2d at 886. " If the petitioner' s evidence is based on knowledge in
the possession of others, he may not simply state what he thinks those others would say, but must
present their affidavits or other corroborative evidence." Rice, 118 Wash. 2d at 886.
Olsen alleges that he is entitled to relief based on prosecutorial misconduct and numerous
alleged incidents of ineffective assistance of counsel. Olsen has failed to identify any instances of
reversible prosecutorial misconduct and he has failed to demonstrate that his counsel' s
performance was deficient. Accordingly, Olsen has failed to demonstrate that he is entitled to
relief, and we deny his personal restraint petition.
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A. PROSECUTORIAL MISCONDUCT
To prevail on a claim of prosecutorial misconduct, a petitioner must show that in the
context of the record and all the trial circumstances, the prosecutor' s conduct was improper and
prejudicial. State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43 ( 2011). To show prejudice, a
petitioner must show a substantial likelihood that the misconduct affected the verdict. Thorgerson,
172 Wash. 2d at 442 -43. In analyzing prejudice, we do not look at the comment in isolation but in
the context of the total argument, the issues in the case, the evidence, and the instructions given to
the jury. State v. Yates, 161 Wash. 2d 714, 774, 168 P.3d 359 ( 2007), cert. denied, 554 U.S. 922
2008) ( quoting State v. Brown, 132 Wash. 2d 529, 561, 940 P.2d 546 ( 1997)). If a petitioner fails to
object to misconduct at trial, he waives the issue unless he establishes that the misconduct was so
flagrant and ill intentioned that it caused an enduring prejudice that could not have been cured with
an instruction to the jury. Thorgerson, 172 Wash. 2d at 443. The focus of this inquiry is more on
whether the resulting prejudice could have been cured, rather than the flagrant and ill intentioned
nature of the remark.2 State v. Emery, 174 Wash. 2d 741, 762, 278 P.3d 653 ( 2012).
Olsen argues that the prosecutor committed misconduct during his closing argument by
using improper and prejudicial slides during closing argument. Olsen alleges that ( 1) the
2 When a petitioner claims prosecutorial misconduct as a ground for collateral attack in a personal
restraint petition, the petitioner must first demonstrate that reversible prosecutorial misconduct
occurred under the standard we apply on direct review, which is discussed above. Once the
petitioner has met the standard applied on direct review, the petitioner must then show that he can
meet the higher burden of actual and substantial prejudice required for collateral attacks in a
personal restraint petition. In re Pers. Restraint ofMonschke, 160 Wash. App. 479, 496, 251 P.3d
884 ( 2010). Because Olsen cannot meet his burden to show that the prosecutor' s conduct would
be reversible misconduct under the direct review standard, we do not address whether Olsen has
met the higher burden of showing actual and substantial prejudice required for a collateral attack
based on prosecutorial misconduct in a personal restraint petition.
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prosecutor committed misconduct by using his booking photo in the slides, and ( 2) the prosecutor
committed misconduct by using captions on the slides. Although the prosecutor improperly
presented unadmitted evidence by using Olsen' s booking photo, the prosecutor' s conduct was not
prejudicial. And, the prosecutor' s remaining conduct was not improper. Therefore, Olsen cannot
show that he is entitled to relief.
1. Booking Photo
Olsen argues that the prosecutor committed misconduct because his booking photo had not
been admitted into evidence. We agree that this was improper. In re Pers. Restraint ofGlasmann,
175 Wash. 2d 696, 704 -05, 286 P.3d 673 ( 2012) ( holding it is error to submit evidence to the jury
that has not been admitted at trial). However, it is not sufficient for Olsen to show that the
prosecutor' s conduct was improper; Olsen must also demonstrate prejudice. In Glasmann, the
defendant' s booking photos were substantially prejudicial because they showed the defendant
unkempt and bloody." 175 Wash. 2d at 705. Here, there is nothing significant or prejudicial about
Olsen' s booking photo. From the copies of the slides provided to this court, it does not appear that
Olsen is bloody, beaten, dirty, or disheveled in the photos. In fact, it does not even appear entirely
clear that the photo is a booking photo as the photo shows Olsen from the neck up. Olsen has not
demonstrated how the jury being shown his head shot photo had a substantial likelihood of
affecting the verdict. Accordingly, Olsen has not demonstrated that the prosecutor has committed
misconduct that would entitle Olsen to relief.
2. Captions on Slides
Olsen also argues that the prosecutor committed misconduct by adding captions to the first
two slides and superimposing the word " guilty" over the booking photos in the last slide of the
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presentation. Although we agree that a prosecutor should refrain from altering photographs with
captions, superimposed words, or images, not all captions, titles, and superimposed words require
reversal." In Glasmann, our Supreme Court did not simply rely on the altered photographs, or the
fact that they were captioned, in reaching its decision. Rather, our Supreme Court engaged in the
long -standing, two -part analysis for prosecutorial misconduct: first, we determine whether the
conduct was improper, and second, we determine if the improper conduct was prejudicial. 175
Wash. 2d at 703 -07. In Glasmann, the prosecutor' s conduct was improper because the prosecutor
used his " position of power and prestige" to influence the jury and expressed in the captions a
personal opinion regarding the defendant' s guilt. 175" Wn.2d at 706. Here, the prosecutor did
neither.
Here, the captions in the first two slides are not improper. The question before the jury
was whether Olsen was guilty of first degree murder, and the State charged first degree murder by
two alternative means. The caption here is no more than a statement of the charges against Olsen;
it does not improperly suggest the prosecutor' s personal opinion.
In the last slide, the prosecutor linked the image of Olsen' s photo with a progressive
presentation of admitted evidence that ultimately led to the word " guilty" superimposed over
Olsen' s photo. Thus, the prosecutor presented an argument rather than a personal expression of
guilt. Accordingly, the prosecutor' s conduct in this case was not improper, and Olsen has failed
to meet his burden to show he is entitled to relief.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Olsen makes numerous claims of ineffective assistance of counsel. First, he argues that his
defense counsel was ineffective for failing to move to dismiss a juror who lied about knowing
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Olsen. He also claims that his counsel was ineffective for failing to investigate and present a
diminished capacity defense based on voluntary intoxication. And, Olsen claims that his defense
counsel was ineffective for " opening the door" and allowing the prosecutor to introduce evidence
of his prior conviction for unlawful possession of a firearm. Olsen' s ineffective assistance of
counsel claims fail.
To prevail on an ineffective assistance of counsel claim, the petitioner must show that
defense counsel' s performance was deficient and that the defendant was prejudiced by the deficient
performance. In re Pers. Restraint of Crace, 174 Wash. 2d 835, 840, 280 P.3d 1102 ( 2012) ( citing
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). A petitioner
demonstrates deficient performance by showing that defense counsel' s conduct fell below an
objective standard of reasonableness. Rice, 118 Wash. 2d at 888 ( citing Strickland, 466 U.S. at 686).
In this regard, the court must make every effort to eliminate the distorting effects of hindsight and
must strongly presume that counsel' s conduct constituted sound trial strategy." Rice, 118 Wash. 2d
at 888 -89 ( citing Strickland, 466 U.S. at 689). Defense counsel' s duties include making a
reasonable investigation or making a reasonable decision that a particular investigation is
unnecessary. Rice, 118 Wash. 2d at 889 ( citing Strickland, 118 Wash. 2d at 691). Defense counsel' s
decision not to investigate must be assessed given all the circumstances. Rice, 118 Wash. 2d at 889
citing Strickland, 466 U.S. at 691). In addition, to show deficient performance, the petitioner
must show the absence of any conceivable legitimate trial tactic explaining counsel' s performance.
State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 ( 2011).
A petitioner demonstrates prejudice when he is able to show a "' reasonable probability
that, but for counsel' s unprofessional errors, the result of the proceeding would have been different.
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A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"
Crace, 174 Wash. 2d at 840 ( quoting Strickland, 466 U.S. at 694). "[ I] f a personal restraint petitioner
makes a successful ineffective assistance of counsel claim, he has necessarily met his burden to
show actual and substantial prejudice" under the standard for obtaining collateral relief. Crace,
174 Wash. 2d at 846 -47.
1. Juror Misconduct
Olsen argues that he received ineffective assistance of counsel because his defense counsel
failed to investigate and take appropriate action regarding alleged juror misconduct. Specifically,
Olsen claims that he knew one of the jurors from jail church services and that he had previously
prayed with the juror about the case. He further claims that he shared this information with his
defense counsel, and defense counsel refused to investigate or take any action.
However, Olsen does not present any evidence establishing either claim. Nothing, besides
Olsen' s self -
serving affidavit, establishes that the juror lied or that Olsen' s counsel was aware of
the alleged misconduct. A petitioner' s self -
serving affidavit is insufficient to support a claim of
ineffective assistance of counsel. State v. Osborne, 102 Wash. 2d 87, 97, 684 P.2d 683 ( 1984)
defendant' s bare, self -
serving allegations in an affidavit are not sufficient to show involuntariness
of a plea). In order to meet his burden to establish that defense counsel' s performance was
deficient, Olsen must present competent, admissible evidence establishing that defense counsel
failed to investigate the allegations of juror misconduct. Rice, 118 Wash. 2d at 886. Olsen has not
presented such evidence. Therefore, Olsen' s ineffective assistance of counsel claim based on
alleged failure to investigate juror misconduct fails.
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2. Voluntary Intoxication
Olsen claims that defense counsel failed to properly investigate a voluntary intoxication
defense. Olsen has not presented any competent evidence establishing either that ( 1) his defense
counsel actually failed to investigate a voluntary intoxication defense or ( 2) a voluntary
intoxication defense was even available.
First, Olsen has not submitted competent evidence supporting his allegation that his
defense counsel failed to investigate the possibility of a voluntary intoxication defense. As
explained above, Olsen' s bare, self -
serving allegations are not competent evidence supporting his
allegations. Because Olsen has not presented any additional evidence establishing that his defense
counsel failed to investigate a voluntary intoxication defense, Olsen has failed to present
competent, admissible evidence supporting his allegation that his defense counsel' s performance
was deficient.
Second, even if Olsen could show that his defense counsel failed to investigate a voluntary
intoxication defense, he has not shown that he would be entitled to a voluntary intoxication
instruction if his defense counsel had performed an investigation. To support his claim that he
was entitled to a voluntary intoxication instruction, Olsen must do more than demonstrate that he
had consumed methamphetamine; he must also demonstrate that there is substantial evidence of
the effects of the drug on the [ his] body or mind, and the evidence must " reasonably and logically
connect the [ his] intoxication with the asserted inability to form the required level of culpability to
commit the crime charged." State v. Gabryschak, 83 Wash. App. 249, 252 -53, 921 P.2d 549 ( 1996).
Here, the " evidence" that Olsen has submitted consists of articles obtained from the internet
documenting the effect of methamphetamine. PRP Attachment 7 -9. These articles are hearsay
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and are not admissible as evidence to prove the effects of methamphetamine on the body or mind
unless they were relied on by an expert. ER 801, 802, 703. Even if the articles were admissible,
Olsen has not presented anything that demonstrates how his consumption of methamphetamine
affected his ability to form the requisite intent to commit the crimes charged. Without presenting
affidavits from experts or some other evidence establishing a prima facie case that he would have
been entitled to a voluntary intoxication defense or instruction, Olsen cannot establish that his
defense counsel' s performance was deficient for_
failing to present a voluntary intoxication defense.
Accordingly, Olsen' s ineffective assistance of counsel claim based on a failure to present a
voluntary intoxication defense fails.
3. Unlawful Possession of a Firearm Conviction
Olsen alleges that counsel was ineffective because he " opened the door" and allowed the
State to introduce evidence of Olsen' s conviction for unlawful possession of a firearm. PRP at 25.
We disagree.
It was a legitimate trial tactic for defense counsel to have Olsen explain his reference to a
gun in the jail call in an attempt to mitigate the prejudicial effect of that comment. We agree that,
based on follow up questions to Olsen' s testimony, this ultimately resulted in the State being
permitted to introduce Olsen' s prior conviction for unlawful possession of a firearm. However,
even if defense counsel could be held responsible for the entire chain of events that unfolded after
defense counsel asked Olsen about his gun reference in the jail call, defense counsel' s conduct was
a legitimate trial tactic and cannot be the basis for an ineffective assistance of counsel claim.
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C. CUMULATIVE ERROR
Olsen also argues that he is entitled to relief because of the cumulative effect of the errors
in his case. Under the cumulative error doctrine, a defendant may be entitled to a new trial when
the multiple errors combined deny the defendant a fair trial. In re Pers. Restraint of Lord, 123
Wash. 2d 296, 332, 868 P.2d 835, 870 P.2d 964, cent. denied, 513 U.S. 849 ( 1994). Here, Olsen has
failed to identify multiple errors in his trial. Accordingly, Olsen is not entitled to relief under the
cumulative error doctrine.
Olsen has failed to demonstrate prosecutorial misconduct and his ineffective assistance of
counsel claims fail. Accordingly, Olsen' s personal restraint petition is denied.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.