Opinion
No. 53417-3-I
Filed: May 16, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-02598-2. Judgment or order under review. Date filed: 01/01/1800.
Counsel for Petitioner(s), Todd Maybrown, Allen, Hansen Maybrown PS, 600 University St Ste 3020, Seattle, WA 98101-4105.
Counsel for Respondent(s), Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
William Harrold petitions for relief from his conviction for the first degree murder of his 11-year-old daughter Tiffany, alleging ineffective assistance of trial counsel. Harrold's principal claim that his counsel improperly disclosed and allowed the admission of a defense psychological evaluation fails because Harrold cannot establish a reasonable probability that the outcome of the trial would have changed had counsel behaved differently. Harrold's additional allegations against his counsel also fail. We accordingly deny the petition.
FACTS
Harrold's daughter Tiffany lived with him in Seattle during the week to attend a private school. In March 2002, Tiffany was expelled from school for behavioral problems linked to her obsessive-compulsive disorder. Although Harrold thought Tiffany's mother a very poor parent, he agreed to bring Tiffany back to Marysville to live with her mother full time on March 15, a Friday.
Harrold, an alcoholic who had been sober for 13 years, began drinking heavily on the night of Thursday, March 14. The next day, Friday, Harrold called Tiffany's mother in the afternoon. He told her he would bring Tiffany back on Saturday because she was at a basketball camp and added that he had learned he was dying of cancer. Harrold called a former girlfriend, Anita Mitsui, near midnight. Sounding intoxicated, he told her he had to give Tiffany back to her mother and wanted to kill himself. Mitsui came to his house Saturday morning to check on him. She did not get a response when she knocked and she called Harrold's brother Terry to the house. Terry and his wife Cecilia arrived to find Harrold talking to Mitsui inside. Harrold told the others not to check on Tiffany because she was asleep. Mitsui was nonetheless concerned. She used a ruse to go upstairs and found Tiffany's body. In the opinion of a medical examiner, Tiffany had been killed sometime between early Friday morning and late Friday evening 'give or take a few hours.' Report of Proceedings 10/29/02 at 50.
He acknowledged at trial that both statements were false.
Harrold left the house but police quickly found him in a nearby park. After advice of his rights, Harrold made several generally inculpatory statements: how upset he was over Tiffany's expulsion, how harmful living with her mother would be, that he had lost her, and that she had begged him to end her life because of her mental problems. A blood sample taken from Harrold showed a .22 blood alcohol concentration. Although Harrold was generally cooperative, he responded to police a few times with hostility and profanity.
Police discovered in Harrold's bedroom a letter typed by Harrold and addressed to the principal of Tiffany's former school, which included:
Eileen, last week you told me two different things. First you said that the system had failed Tiffany. Then you told me that the system would protect her (You would call CPS, etc.) The, 'system' can't fail and protect a child at the same time. Her sweet little life had spun out of control. And a halfway competent dad decided he was not going to risk any more damage in Marysville. And so he decided to give his only child to God. Say whatever you will about me, but no one will ever harm my little girl again.
. . . .
In the future, Eileen, do whatever you can to assimilate a child into the flow of things. Without that, you have nothing. I personally believe that Christianity extends far beyond the everyday, and must include the things outside of school.
This does not excuse what I have done, but at least it might help you to push to include a child who doesn't fit in.
Report of Proceedings 10/24/02 at 83-84. Another letter, addressed to Harrold's brother, appeared to suggest that Harrold was contemplating suicide because of Tiffany's situation. Notes to himself found near the telephone suggested that Harrold had scripted the phone call to Tiffany's mother. The pistol used to kill Tiffany was found in Harrold's bedroom.
Harrold was charged with first degree murder. He hired Timothy McGarry to defend him. Harrold had known McGarry, an experienced criminal defense attorney, since their teen years. McGarry determined that there was no possibility of persuasively arguing that Harrold had not caused Tiffany's death, and hired forensic psychologist Dr. Kenneth Muscatel to investigate potential mental defenses. Muscatel interviewed Harrold and prepared a report for McGarry, in which he indicated that he could not offer opinions supporting defenses of either insanity or diminished capacity. McGarry continued to investigate a voluntary intoxication defense and retained a consultant on the effect of extreme intoxication on the ability to form intent and premeditation. Because parts of Muscatel's report mitigated Harrold's culpability, McGarry provided it to the State while trying to negotiate a plea bargain. Negotiations were unsuccessful.
At trial, the prosecution focused on Harrold's letter to the principal and his other writings. The prosecution also relied upon Harrold's repugnance toward Tiffany moving back to her mother as a motive, and upon additional circumstantial evidence suggesting deliberation in the killing: Harrold gave Tiffany Excedrin P.M. before he shot her; he had retrieved the gun either from the basement or from a cabinet behind the television set in his room; and he shot Tiffany in the head at point blank range while she slept.
The defense called Washington State Toxicologist Dr. Barry Logan. Dr. Logan testified about the effects of severe intoxication, using an earlier witness's estimate through retrograde extrapolation that Harrold's blood alcohol concentration was probably between .29 and .43 when he stopped drinking on Saturday. Dr. Logan also testified, however, that being extremely intoxicated, even to the point of being in an alcoholic blackout, did not mean that a person lost the ability to act intentionally or in a goal-directed way.
Harrold had originally retained another expert, Dr. Lawrence Halpern, but Dr. Halpern was unwilling or unavailable to testify. Harrold has not alleged that counsel was ineffective in substituting Dr. Logan for Dr. Halpern.
Harrold testified, describing in detail his depression and Tiffany's unhappiness. He did not remember most of what happened on March 15 and 16. In cross-examining Harrold, the prosecutor asked whether Harrold told Muscatel that he had been thinking about killing himself and Tiffany in the week before the shooting. Harrold admitted that he had been suicidal, but denied thoughts of harming Tiffany. Later, however, the parties stipulated that Harrold had told Muscatel that '[h]e, Mr. Harrold, was having thoughts of killing himself and his daughter prior to the incident.' Report of Proceedings 10/30/02 at 85. Harrold also testified that he did not believe he had either premeditated or intended Tiffany's death.
The jury rejected Harrold's contention that he was guilty of only second degree murder and found him guilty as charged. Harrold received a standard range sentence and has now filed a personal restraint petition challenging the conviction. He relies on the trial record, police reports and declarations by himself, McGarry and a newly retained expert pathologist, Dr. James Ferris.
Harrold filed a direct appeal challenging only the court's restitution order. This court affirmed in an unpublished decision. State v. Harrold, No. 51821-6-I, noted at 121 Wn. App. 1029 (2004).
DECISION
We will grant a personal restraint petition where the petitioner establishes actual and substantial prejudice resulting from a violation of his or her constitutional rights or a fundamental error of law. In re Personal Restraint of Benn, 134 Wn.2d 868, 884-85, 952 P.2d 116 (1998). The burden of proof is a preponderance of the evidence. In re Personal Restraint of Cook, 114 Wn.2d 802, 814, 792 P.2d 506 (1990) (citing In re Personal Restraint of Hews, 99 Wn.2d 80, 89, 660 P.2d 263 (1983)). In his petition, Harrold asserts that he is entitled to a new trial because McGarry provided ineffective assistance of counsel.
To establish ineffective assistance of counsel, a defendant must show both deficient performance and a reasonable probability that, except for counsel's errors, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984)). Performance of counsel is deficient when it falls "'below an objective standard of reasonableness'" under prevailing professional standards. In re Personal Restraint of Stenson, 142 Wn.2d 710, 742, 16 P.3d 1 (2001) (quoting Strickland, 466 U.S. at 688). The defendant must show that there were no legitimate strategic or tactical reasons for the challenged attorney conduct. McFarland, 127 Wn.2d at 336. The reviewing court strongly presumes that a defendant received effective representation. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). If prejudice is not shown, the reviewing court does not need to resolve a claim of deficient performance. In re Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992).
Harrold argues that McGarry provided ineffective assistance in four respects: (1) by improperly disclosing Dr. Muscatel's report, stipulating to its partial admission into evidence, and failing to mitigate its effect by placing in evidence favorable parts; (2) by failing to move to suppress Harrold's statements to police, (3) by failing to object when two police officers mentioned expletives Harrold used in talking to them; and, (4) by failing to challenge the medical examiner's opinion more aggressively about the time of Tiffany's death.
1. Dr. Muscatel's Report.
McGarry's and Harrold's declarations are not consistent as to the factual basis for this claim. McGarry writes that he used the document for plea negotiations assuming that Harrold would not object: "I do not believe that I ever asked Mr. Harrold for his permission before I turned this document over to the prosecutors; however, I did assume that Mr. Harrold would not object to my use of this information for the purpose of plea negotiations." Declaration of Timothy McGarry at 3. Harrold, on the other hand, says, 'I specifically directed Mr. McGarry not to provide this report to the prosecutors[.]' Declaration of William Harrold at 2. It is unnecessary for us to remand the petition to the trial court to resolve this dispute, however, because, Harrold has failed to make the requisite showing of prejudice.
For the same reason we do not address the State's contention that under State v. Pawlyk, 115 Wn.2d 457, 800 P.2d 338 (1990), and State v. Hamlet, 133 Wn.2d 314, 944 P.2d 1026 (1997), the State was entitled to the report regardless of Harrold's wishes. Nor do we reach Harrold's claims that the report should have been excluded under State v. Jollo, 38 Wn. App. 469, 472, 685 P.2d 669 (1984), or that McGarry should have sought to admit other parts of Muscatel's report in mitigation.
Contrary to Harrold's contention, the State did not rely on the report as evidence of premeditation. From opening statement through closing argument the prosecutor's focus at trial on the issue of premeditation was Harrold's letter, particularly the statement in the letter that he 'decided to give his only child to God.' The mention of Harrold's comments to Muscatel was minimal. Those comments were mentioned only once during the evidence as impeachment of Harrold's testimony, and once in the prosecutor's closing argument as one of several reasons to find Harrold's testimony incredible.
Premeditation is 'the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.' State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217 (1982).
Moreover, the evidence of the manner of Tiffany's death was uncontroverted: heartbroken about losing Tiffany to her mother, Harrold gave Tiffany a dose of Excedrin P.M. sufficient to sedate her at a level higher than therapeutic. After that, Harrold retrieved the pistol either from the cabinet behind the television in his room or from a box in the basement, walked through the hall to Tiffany's room, walked over to her bed, placed the barrel of the pistol against her head and pulled the trigger. Against the State's evidence of premeditation, Harrold's testimony offered scant support for the second degree murder finding he sought because he emphatically denied not only premeditation but also any intent to kill Tiffany. Dr. Logan's testimony likewise provided little basis to distinguish between degrees of the crime. We conclude that Harrold has failed to show a reasonable probability that the trial's outcome would have differed but for the stipulation to the admission of the excerpt from Dr. Muscatel's report.
Second degree murder requires 'intent to cause the death of another person[.]' RCW 9A.32.050(1)(a).
Neither at trial nor in his petition has Harrold ever contended that he could have been acquitted or only convicted of some lesser charge than second degree intentional murder.
2. Harrold's Statements to Police.
Harrold contends that McGarry should have moved to suppress Harrold's statements to police. He has not shown deficient performance, however, from the available record. Harrold's argument is based on two propositions, that his intoxication was severe enough to require suppression of the statements, and that he in effect invoked his rights immediately upon his arrest.
While McGarry has filed a declaration in support of the petition, his only comment relating to admission of Harrold's statements was that upon review of police reports and other discovery, he did not believe any challenge to Harrold's post-arrest statements could be mounted. Declaration of Timothy McGarry.
But case law has established that intoxication does not necessarily require a finding that an otherwise apparently valid Miranda waiver is involuntary. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996); State v. Reuben, 62 Wn. App. 620, 625, 814 P.2d 1177 (1991).
As for Harrold's contention that he invoked his rights, the State is correct that Harrold simply ignores part of the record in making this claim. The police reports and transcripts on which Harrold relies show that after advice of his Miranda rights and his initial statement that he did not wish to speak, Harrold said, 'I need to talk to you' to one of the officers and thereafter continued speaking to police. Harold also asserts that he made certain statements immediately after arrest that actually appear to have been made later. And many of Harrold's statements to police were volunteered rather than made in response to questioning. Harrold simply has not made the required showing that a motion to suppress likely would have been granted. McFarland, 127 Wn.2d 322, 333-34.
Harrold's citations to the record indicate that he relies on the testimony of Officer Bunge for this claim, but, as the State points out, the actual question asked of Officer Bunge was whether, '[a]t any time' police asked how Harrold had come to be laying on the ground at the park. When the entire record is considered, it appears Officer Bunge was actually referring to statements Harrold made at the police station.
3. Violations of the Order in Limine.
Two testifying police officers violated an order in limine against mentioning expletives Harrold used in speaking with them. One officer testified that Harrold used obscenities, and a detective testified that Harrold's response to one question was 'Fuck you.' McGarry now says he should have objected and does not know why he did not. But given the defense position at trial that Harrold was guilty only of second degree murder essentially because of his extreme intoxication, there is no reasonable possibility the jury found premeditation rather than mere intent because of these isolated comments. Thus, even assuming that McGarry should have objected, Harrold has not shown prejudice.
4. Expert Testimony as to the Time of Death.
Harrold challenges McGarry's decision not to challenge more aggressively the medical examiner's opinion that Tiffany was killed sometime between the early morning hours of Friday, March 15, and around 7:30 that evening. He relies on an opinion from expert pathologist Dr. James Ferris, who opines that the examiner's opinion was 'nothing more than an educated guess.' Declaration of Dr. Ferris at 4.
But both Harrold's brief and Dr. Ferris's declaration make the substantial error of incorrectly describing the medical examiner's determination of the time of death as being between the morning of the March 14 and the evening of March 15. This error seriously undermines Dr. Ferris's criticism. And Harrold's current counsel's claim in reply that it is his error, not Dr. Ferris's, does not remedy the problem, particularly in the absence of another declaration by Dr. Ferris.
Moreover, even without the problem with Dr. Ferris's declaration, this claim fails because, contrary to Harrold's assertion, the record shows that the examiner's tentative opinion as to the time of death was not at all critical to the State's case. Harrold's own testimony suggested he drank the most and hardest alcohol after he realized something was wrong with Tiffany inferentially, after he killed her. And the State used Harrold's letter to the principal as more than just a confession. The letter showed that, whatever Harrold had been drinking, he could still decide to kill Tiffany, do it, and then produce a coherent letter stating the reasons for his actions. This was strong circumstantial evidence negating the intoxication defense, regardless of when the shooting occurred. In addition, as discussed above, Harrold's own testimony did not advance the defense position that he was guilty of second degree murder.
Finally, in reply Harrold argues that in light of McGarry's declaration admitting errors we should at least order an evidentiary hearing. See RAP 16.11. But Harrold has identified no issues of fact that could change the outcome of this proceeding. Harrold has failed to make the required showing of ineffective assistance by trial counsel. The personal restraint petition is denied.
SCHINDLER and COLEMAN, JJ., Concur.