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### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ~F

~ In the Matter ofthe Personal Restraint of 

### ) No. 74135-7-I ~ RAYMOND WESLEY GARLAND, 

### ) DIVISION ONE 

### ) Petitioner. 

### ) UNPUBLISHED OPINION



### ) ) FILED: April 18, 2016



### ___________________________________________________________________________________________) APPELWICK, J.

— Garland was convicted ofsecond degree murder, second degree manslaughter, and second degree assault after shooting two men and killing one ofthem. His conviction was affirmed on appeal. In a personal restraint petition, Garland argues that he received ineffective assistance of both trial and appellate counsel. He asserts, for the first time, that the trial court abused its discretion byadmitting evidence suggesting that hewas affiliated with a gang, that his verdict is inconsistent, that the trial court erred when it did not conduct the appropriate inquirybefore allowing his attorneytowithdrawbefore sentencing, and that he is entitled to a newtrial based on cumulative error. We denythe petition. FACTS On November 11, 2004, Raymond Garland metfriends ata local barcalled Bleacher’s. State v. Garland, 169 Wn. App. 869, 871, 282 P.3d 1137 (2012).No. 741 35-7-1/2

Shortly after midnight, Garland and afriend were talking in the Bleacher’s parking lot when several cars pulled in. ki. at 871-72. One of the cars lightly struck a telephone pole while parking. ki. Garland made a comment to the driver about striking the pole, and an argumentensued. ki. at 872. Earl “Keyon” Brockwas the driverwho struckthe pole. j~ Brockwas with his girlfriend, Shelley Dominick, his cousin, Karltin Marcy, Dominick’s sister, Lisa Loggins, and another couple, Tim Valentine and Lisa Lambert. ki. Most ofthem had been drinking, at least moderately, at a party earlierthat night. Id. Dominick, Marcy, Loggins, Valentine, and Lambertall stated that Brockgot into an argumentwith Garland. Id. Shortlythereafter, Brockwasfatallyshot in the chest and Marcysustained a bulletwound to the groin. Id. Thewitnesses did not know Garland. See id. But, Valentine and Lambert recalled thatthe shooter had
a neck tattoo and that the shooter had said his first name was Ray. After contacting the police, both Valentine and Lambert later identified Garland from a photomontage. ki. Marcy also identified Garland as the shooter from a photomontage. Id. at 873. Police arrested Garland on November 17, 2004. Id. The State charged Garland with first degree murder, first degree assault, first degree unlawful possession of a firearm, and second degree assault. j~ The State also alleged that Garland committed each of these crimes with a deadly weapon (a firearm). ki. Aftertwice amending the information, the Stateeventually broughtfourcharges totrial: premeditated murderor, in the alternative, murderas the result ofextreme indifference to human life; second degree murder; first degree assault (for the
2No. 74135-7-1/3

injuryto Marcy); and first degree unlawful possession ofa firearm. jçj~ The State alleged that Garland committed the first three charges while armed with a deadly weapon, afirearm. ki. On January24, 2007, Garland’strial began. Id. at874. Garland waived his right to a jury trial on the unlawful possession of a firearm charge. iç[~ The trial court declared a mistrial on March 23 after the jury had been reduced to 11 members. kL Garland’s second trial began on August 21, 2007, and again, Garland waived his right to ajurytrial on the first degree unlawful possession ofa firearm charge. ki. On September24, Garland asked the assigned trial judge to recuse in lightofnewlydiscovered information aboutalleged threatstothetrialjudgefrom Garland’sfamilyand associates. Id. Thetrial courtdeclared a second mistrial and immediately recused. j~ Garland’s third trial began on August 10, 2009. kI. Garland again waived his rightto ajury on the unlawful possession ofafirearm charge. j~ On October 26, thejury found Garland guilty of second degree manslaughter, second degree murder, and second degree assault. ki. The jury also found that Garland committed all three crimes while armed with a firearm. Id. On May 3, 2010, the trial courtfound Garland guiltyoffirstdegree unlawful possession ofafirearm. 

### ]4, Garland appealed. See ki. at 871. In thatappeal, Garland argued thatthe trial court abused its discretion when it allowed the State to impeach him with his trial counsel’s opening statements from the two previous mistrials. j4~ at 874-75. He also argued thatthetrial courtviolated the appearance offairness doctrine. j~
3No. 741 35-7-1/4

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

### ]~ at 871, 894. Garland filed this personal restraint petition (PRP) on July 17, 2013. He filed a supplemental opening brief with additional arguments on November 6, 2014.1 DISCUSSION A petitioner may request relief through a PRP when he or she is under unlawful restraint.2 In re Pers. RestraintofMonschke, 160Wn. App. 479, 488, 251 P.3d 884 (2010). The Washington Supreme Court has limited collateral relief available through a PRP, because it undermines the principles of finality of litigation, degrades the prominence oftrial, and sometimes deprives society ofthe rightto punish admitted offenders. ki. The availability ofcollateral relief is limited in twoways. In re Pers. RestraintofYates, 177Wn.2d 1, 16, 296 P.3d 872 (2013). First, the petitioner in a PRP is prohibited from renewing an issue thatwas raised and rejected on direct appeal unless the interests ofjustice require relitigation of that issue. Id. at 17. Second, new issues must meeta heightened showing before
a court will grant relief. Id. For alleged constitutional errors, a petitioner has the burden of showing actual prejudice. Id. For alleged nonconstitutional errors, the

1 The panel granted Garland an opportunitytosubmitsupplemental briefing to preserve an argumentthat appellate costs should not be awarded to the State. The panel defers to the commissioner for a determination on the question of appellate costs should the State requestthem. We confer upon the commissioner the authorityto deny the State’s request on the basis of indigency in accordance with the factors outlined in State v. Sinclair, 72102-0, 216 WL 393719, at *6*7 (Wash. Ct. App. Jan. 27, 2016) 2 Garland is under “restraint” as he is confined under a judgment and sentence resulting from a decision in a criminal proceeding. RAP 16.4(b). 4No. 74135-7-115

petitioner must show a fundamental defect resulting in a complete miscarriage of justice. The petitioner must make these heightened showings by a preponderance ofthe evidence. ~ When reviewing a PRP, this court has three options: (1) dismiss the petition,3 (2) remand the petition fora full hearing on the merits orfora reference hearing pursuantto RAP 16.11(a) and RAP 16.12, or(3) grantthe petition without remanding the causeforfurther hearing. Monschke, 160 Wn. App. at488; Yates, 177 Wn.2d at 17. Dismissal is necessarywhere a petitionerfails to make a prima fade showing of actual prejudice, for alleged constitutional errors; or, for alleged nonconstitutional errors, afundamental defect resulting in a complete miscarriage of justice. Yates, 177 Wn.2d at 17-18. A hearing is appropriate where the petitioner makes the required prima facie showing, but the merits of the contentions cannot be determined solely on the record. jç~ at 18. To establish a prima facie showing required for a reference hearing, a petitioner must offer the facts underlying the claim of unlawful restraint and the evidence available to support the factual allegations. ~ at 18. Mere bald assertions and conclusoryallegations are insufficienttojustifya reference hearing. ki. For matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. j~ The evidence must be more than mere speculation or conjecture. j4.

~ RAP 16.11 (b) states thatthe chiefjudge can dismiss a PRP ora panel of judges may denya PRP. 5No. 741 35-7-1/6
Garland raises multiple issues through his PRP. He argues that his trial counsel was ineffective forfailing to conveya plea offer, by acting unethically, and by failing to research the law during his third trial. Garland asserts that his appellate counsel was ineffective forfailing to raise claims regarding the defects of a trespass order and search warrant used to search his mother’s house. Garland contends that the trial court abused its discretion by admitting evidence suggesting that he belonged to a gang. He also asserts that his verdicts were inconsistent, that the trial court failed to make the proper inquiry before allowing his attorney to withdraw, and that he is entitled to a new trial based on the cumulative errordoctrine. I. IneffectiveAssistance ofCounsel Garland argues that his trial counsel was ineffective. Effective assistance of counsel is guaranteed by both the federal and state constitutions. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420, 114 P.3d 607 (2005). A successful ineffective assistance of counsel claim requires the defendant to show that counsel’s performancewas deficient and thatthe defendantwas prejudiced bythe deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The representation was deficient if it fell below an objective standard of reasonableness based on consideration of all the circumstances. In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d I (2004). Where an ineffective assistance ofcounsel claim is raised in a PRP, ifthe petitioner meets his burden under Strickland, the petitioner has necessarily met his burden to show actual and substantial prejudice as is required to satisfy the
6No. 74135-7-1/7

standard for a PRP. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). The court approaches an ineffective assistance ofcounsel argumentwith a strong presumptionthatcounsel’s representation was effective. Davis, 152Wn.2d at 673. A petitioner can rebut this presumption by proving that his attorney’s representation was unreasonable underprevailing professional norms and thatthe challenged action was not sound strategy. Id. The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances. j~ We review claims of ineffective assistance ofcounsel de novo. Monschke, 160 Wn. App. at490. A. IneffectiveAssistance ofTrial Counsel

— Plea Offer Garland argues that he received ineffective assistance of trial counsel, because his trial attorney unreasonably failed to convey a plea offer that would have resulted in dismissal ofafirearm enhancementand a sentence 10 years less than the sentence imposed aftertrial. The right to effective assistance of counsel extends to the plea bargaining stage ofa criminal prosecution. Laflerv. Cooper,_U.S._, 132 S. Ct. 1376, 1384, 182 L. Ed. 398 (2012). Defense counsel is under an ethical duty to discuss plea negotiations with his or her clients. State v. James, 48 Wn. App. 353, 362, 739 P.2d 1161 (1987). Ifthe attorney did not discuss the plea negotiations, a breach ofthis duty occurred, indicating deficient performance. ~ If a defendant’s right to effective assistance of counsel in considering whetherto accept a plea bargain is denied, prejudice can be shown if loss ofthe
7No. 74135-7-1/8

plea opportunity led to atrial resulting in conviction on more serious charges oron the imposition of a more severe sentence. Lafler, 132 S. Ct. at 1387. As to the uncertainty of whether plea bargain negotiations would have resulted in a consummated bargain, the standard is whether there is a reasonable probability that but for an attorney’s error, a defendant would have accepted a plea agreement. James, 48Wn. App. at 363-64. Thus, whether Garland’s trial attorneywas ineffective turns on whether his attorney failed to communicate a plea offer, whether there is a reasonable probabilitythat Garland would have accepted the plea offer, and whether Garland
can show that his trial resulted in a conviction on a more serious charge or the imposition ofa more serious sentence. The plea offer in question isfrom November2008. Itwas made in between Garland’s second mistrial and the beginning of his third trial. Plea negotiations took place in an e-mail conversation between defense counsel, Barbara Corey, and Pierce County Deputy Prosecutor, Stephen Penner. On November 13, 2008 at 8:21 a.m., Corey e-mailed Penner and informed him thatshewould welcomethe opportunityto discuss a possible resolution ofthe
case. Coreyquestioned theveracityofthe State’s evidence and proposed a guilty pleato second degree manslaughterand dismissal ofanotherassaultcase against Garland. Corey also stated that Garland’s motherwould agree not to pursue an unrelated civil claim againstthe Pierce County Sherriff’s Department. Penner responded on November21, 2008 at 2:43 p.m. He stated thatthe best deal he could offer Garland was to amend the charge for Brock’s death to
8No. 74135-7-1/9

murder in the second degree (felony murder) with a firearm enhancement and amend the charge for Marcy to assault in the second degree with no firearm enhancement. He noted that if Garland tookthe deal, Garland’s total time served for both this case and anotherassaultcasewould be 225 months.4 Pennerasked Corey to communicate the offer to Garland. Corey responded that same day at 3:13 p.m.—half an hour later. She said that it was not a “terribly bad offer,” but she countered with manslaughter in thefirstdegree and “[a]greementthe same on the other assault case.” She said that she could “sell” her counter-proposal. Penner responded on November 25, 2008 at 4:23 p.m. informing Corey that he could not reducethe chargeto manslaughterand thatmurderinthesecond degree
was his last and best offer. Penner told Corey that if Garland wished to accept that deal that she should setthe plea date, but if not, thatthey should go to trial. Ten minutes later Corey responded only, “Happy Turkey Day to you and your family. B.” Nothing in the record indicatesthat Coreyexplicitly rejected the State’s counteroffer on November25, 2008 oron a laterdate. Garland argues that the timing on the e-mail communications is evidence that Coreydid not communicatethe plea offer. Garland arguesthat nothing about

~ Had Garland accepted the State’s November2008 plea offerand had the court sentenced Garland based on the charges in the guilty plea, Garland would have received a 225 month sentence. Aftergoing to trial, Garland was convicted of murder in the second degree, assault in the second degree, and unlawful possession ofafirearm in thefirstdegree. Hewas sentenced to 346 months. The State does not refutethat Garland’strial resulted in a conviction on a more serious charge or the imposition of a more serious sentence than the terms of the plea offer. 9No. 74135-7-1/10

the e-mail correspondence shows that defense counsel had communicated or intended to communicate with Garland about pleading guilty. In response, the State submitted a declaration from Corey. Corey stated that it was Garland’s position during the entire time she represented him that he would never plead guilty to any murder charge. She maintained that Garland’s goal was an acquittal or, at most, a manslaughter conviction. She noted that the only offerthatthe prosecutor made in this case (afterthe second mistrial) was an offerthat Garland adamantly rejected. But, Corey also references a plea offer from November 2009 in her declaration—notthe November2008 offer. That plea offerwas in referenceto an unrelated assault case under a different cause number. Thus, it is unclearfrom Corey’s declaration which case shewas referring to when she noted that Garland adamantly rejected the “only offer.” Garland then submitted a declaration clarifying that Corey never told him about the plea offer made bythe prosecutor “before [his] third trial”—presumably referencing the November 2008 plea offer. He stated that had Corey told him about the plea offer, he would have taken it. Garland noted that it was possible that he told Corey he would never plead guilty to murder. But, that if he did say that, itwas early on, before he wentthrough two mistrials. As Garland correctly points out in his reply brief, Coreydoes notspecifically address in herdeclarationwhethershe communicated the November2008 pretrial plea offerto Garland. To address the lackofspecificity in Corey’s declaration and

10No. 74135-7-I/Il

the parties’ differing interpretations ofthe November2008 e-mails, Garland argues thatthe case must be transferred to the superior courtfora reference hearing. In orderto supporta requestfora reference hearing, a petitioner muststate in his petition thefacts underlying the claim of unlawful restraint and the evidence available to support the factual allegations. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). This does not mean that every set of allegations which is not meritless on its face entitles a petitioner to a reference hearing. ki. at 886. Rather, the petitioner muststate with particularityfactswhich, if proven, would entitled him to relief. Id. The purpose ofa reference hearing isto resolve genuine factual disputes, notto determine whetherthe petitioner actually has evidence to support his allegations. ki. Thus, a mere statement ofevidence thatthe petitioner believes will prove his factual allegations is notsufficient. Id. Garland argues that he has provided sufficient evidence supporting his position that Corey never communicated the 2008 pretrial plea offer. He cites to jail visit and phone logs showing a lack of contact between Corey and Garland after the November 2008 plea offer was made, declarations of Garland’s family members stating thattheydid not learn ofany plea offers until aftertrial, and billing records to support his assertion thatthe offerwas nevercommunicated. The pretrial plea offerwas communicated to Corey on November21, 2008. Garland’s third trial commenced on August 10, 2009. Garland, 169 Wn. App. at 874. Garland does not citeto anything in the record indicatingthat Coreyexplicitly rejected the State’s plea offer priorto communicating the offerto Garland and prior to the commencement of trial. Rather, he assumes that because Corey did not
11No. 74135-7-1/12

accept the offer on November 25, 2008, that she rejected it. But, this is an improper and unsupported assumption. The offer, by its terms, was left open on November 25 and could have been accepted by noting a plea date before trial. Anyevidencethattherewas communication between Coreyand Garland between November 25, 2008 and August 19, 2009 is relevant to whether Corey communicated the settlement offerto Garland.5 Corey’s billing records indicate that she spoke with Garland on the phone at least once after the State made the plea offer—on December 12, 2008.6 Her billing entry does not indicate the nature of the phone call. The fact of the call leaves open the possibilitythat Corey communicated the plea offerto Garland on thatdate and that ~ rejected it on thatdate. Garland next pointsto his investigator’s billing recordsto provethatthe offer
was never actually communicated. He first notes that Corey’s declaration indicated that she metwith Garland onlywhen the investigatorwas present. He then claims that the investigator’s detailed billing records show that no plea agreement was ever communicated to Garland during their meetings. The

~ Even ifCoreyerroneously rejected the State’sfirstcounter-proposal in the November 2008 e-mail exchange, that error was harmless, because the State made the same offer again after Corey countered with manslaughter in the first degree. And, at oral argument, Garland conceded that the only plea offer he is claiming was not properly communicated was the last offer communicated bythe State during the November2008 e-mail negotiations. 6And, Coreyspokewith Garland’s motherthree times before trial began— December 17, 2008, January 19, 2009, and February 25, 2009. Corey kept in close communication with Garland’s mother throughout Garland’s legal proceedings. In fact, the November 2008 plea discussions imply that Corey had authority from Garland’s motherto initiate the negotiations. This is evident from Corey’s offer, which included the promise that Garland’s mother would withdraw hercivil lawsuit againstthe Pierce County Sherriff’s Department. 12No. 74135-7-1/13

investigator’s single billing entry referencing a meeting with Garland afterthe plea offer and before trial does not state that a plea was discussed.7 But then, mere absence ofa reference does not give rise to an inferencethata plea offerwas not discussed. The investigator had no dutyto detail the substance oftheirdiscussion and the investigator’s other billing entries did not specify what was discussed during everymeeting with Garland. Infact, mostofthe investigator’sentriessimply saysomevariation of“metwith client.” Therefore, the investigator’s billing records do not prove that Corey neverdiscussed plea offerswith Garland. Corey declared that she communicated “every plea offer” to Garland. The billing records ofCorey and the investigatorestablish that Corey and Garland had contactduring which Coreycould have communicated the plea offer. Garland has provided only bald assertions, conclusory allegations, and speculative evidence that Corey never communicated the November 2008 plea offer to him. We approach an ineffectiveassistance ofcounsel argumentwith a strong presumption that counsel’s representation was effective. Davis, 152 Wn.2d at673. Therefore, Garland has failed to show both that he is entitled to a reference hearing to prove that Corey never communicated the offer and that Corey’s performance was deficient. See Rice, 118Wn.2d at 886 (we seekto avoid the time and expense of
a reference hearing when the petition has no apparent basis in provable fact). Therefore, we need not discuss whether Garland was actually prejudiced. ~ re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012) (stating

~ OnAugust9, 2009, the investigatorwenttothejail and “discussed strategy with Ray.” 13No. 74135-7-1/14

thata court need notconsiderboth prongs ofStrickland ifa petitionerfails on one). We hold that Garland has failed to showthat trial counsel was ineffective by not communicating a plea offer. B. IneffectiveAssistance ofTrial Counsel

— Ethical Violations Next, Garland argues that his trial attorney was ineffective, because she violated her duty of candor toward the tribunal and violated her discovery obligations. He argues that her behavior constituted a per se unreasonable trial strategy. Garland’s argument relates to Corey’s representation to both the trial court and the State about what Garland’s defense would be during his third trial. On March 25, 2005, before his first trial, Garland indicated in an omnibus orderthat the general nature of his defense would be self-defense. On January 13, 2006, Garland indicated in another omnibus order that his defense was both general denial and self-defense. Before the third trial commenced, Garland filed a notice ofdefense. It stated that, consistentwith the previous omnibus orders, Garland’s defense would be general denial and/orself-defense. Garland’s firsttrial began on January 24, 2007. Garland, 169 Wn. App. at 874. Garland’s second trial began on August 21, 2007. kI. His third trial began
on August 10, 2009. kI. During the first two trials, Corey gave her opening statement immediately following the State’s opening statement. In opening statements during both the first and second trial, Coreytold thejurythat both Garland and Brock had guns on the night ofthe incident. See Garland, 169Wn. App. at 876-77.
14No. 74135-7-1/15 During the third trial in August 2009, the defense reserved its opening statement. Id. at877. In preliminarydiscussion outside ofthejury’s presence, the trial court asked whether, in light of Garland’s failure to submit proposed jury instructions before trial, “‘are there going to be any theories that have not been advanced such that the State has to be considering them?’

“ j~ Garland responded that he continued to endorse”’general denial and/ora self-defense.’” Id. When furtherpressed astowhetherany newtheorieswould be advanced that the State should be aware of prior to delivering its opening statement, Garland again said, “‘No.’” Garland reserved his opening statement until afterthe State had rested its
case. Afterthe State rested, Corey began her opening statement by stating that there was onlyone gun involved in the incident and that itwas not Garland’s:

“Good morning, ladies and gentlemen. November 11th, 2004, was, in fact, [Garland’s] birthday. [Garland] was 21 that day. Itwas to be a day of celebration. The day of celebration turned into a horror, a nightmare. [Garland] was terrorized by Mr. Brock and Mr. Marcy, who pulled a gun on him in the parking lot of Bleacher’s. There was a struggle forthe gun. The gun went off. [Garland] was grabbing the hand ofMr. Brockand Mr. Marcy, trying to keep himself from being shot.” Garland, 169 Wn. App. at 877-78 (alterations in original). She also represented that because Garland was terrified, he decided to struggle forthe gun. j~ at 878. She said that Garland lunged at Brock and they had a physical fight overthe gun. Id. Corey represented that itwas during the physical struggle that Garland heard ashot go off. j.çj..

15No. 74135-7-1/16
Garland testified during the third trial. Id. at 879. Garland testified consistently with the version of the facts Corey presented during her opening argument in the third trial—the “struggle for the gun,” accident version. j~ Specifically, on cross-examination, Garland testified thattherewas a struggle over one gun and that Garland did not have his own gun that night. Id. Immediately afterGarland’s testimony, outside ofthe presence ofthejury, the State asked that it be allowed to impeach Garland with the prior inconsistent statement of his attorney in the two prior mistrials. j~ at 880. Following argument, the trial court ruled that the State could impeach Garland with Corey’s earlier inconsistent opening statementsto a degree. j.ç~ at 882. The State then continued its cross-examination of Garland: “Q. All right. So I will ask it again. You were in court on January 24th of2007, and again on August 21st, 2007 when [defense counsel] made certain statements aboutthe case, correct? “A. Yes. “Q. All right. And both of those times [defense counsel] stated thatyou had yourown gun that night, correct? “A. Yes. “Q. And both times [defense counsel] stated that Mr. Brock produced a revolverand pointed it atyou, isn’tthat correct? “A. Yes. “Q. And both times [defense counsel] stated that you then took outyourown gun and shot Mr. Brock; isn’tthat correct? “A. Yes, that’s correct, she stated that.” Id. at 884-85.

16No. 74135-7-1/17

After Garland was convicted in the third trial, he appealed. 

### j4 at 871. He argued that the trial court erred in allowing the State to impeach him with his counsel’s opening statements from two prior proceedings that ended in mistrials. Id. In Garland, the CourtofAppeals concluded thatthetrial courtdid not abuse its discretion in allowing limited impeachment ofGarland through use ofhis counsel’s opening statements offact in the firsttwo trials. Id. at 894. Now, 

### in his PRP, Garland argues that his trial counsel was ineffective, because she violated various ethical rules when she misrepresented the general nature of Garland’s defense in response to a direct inquiryfrom thetrial court. Under the Strickland standard, breach of an ethical standard does not necessarily make outa denial ofthe Sixth Amendment guarantee ofassistance of counsel. Nixv. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988,89 L. Ed. 123 (1986). A lawyer’s ethical violations do not make the lawyer per se ineffective. Burt v. Titlow,_U.S._, 134 S. Ct. 10, 18, 187 L. Ed. 348 (2013). Garland claims that Corey’s actions—failing to disclose the accident defense when explicitly asked by the court—constituted a violation of several ethical standards and court rules.8 Garland argues thata reasonable trial strategy

8 RPC 3.3 (requiring candor to the tribunal), RPC 8.4(c) (stating that an attorney may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), RPC 8.4(d) (stating that an attorney may not engage in conduct prejudicial to the administration of justice), RPC 3.4(c) (stating that a lawyer may not knowinglydisobeyan obligation underthe rules ofatribunal), RPC 3.4(d) (stating that a lawyer may not fail to make a reasonably diligent effort to complywith a legally properdiscovery request by an opposing party), RPC 3.4(e) (stating that an attorney may not alludeto any matterthatwill not be supported by admissible evidence), CrR 4.7(b)(2)(xiv) (court rule governing discovery in trial stating that an accused person may be required to state the general nature ofthe defense). 17No. 741 35-7-1/18

cannot be premised upon a violation ofa discovery obligation and multiple ethical rules. As a result, Garland argues that counsel’s performance was deficient. The State concedes that ifthe facts are as Garland represents them, then Garland’s petition properly criticizes Corey’s lack of candor to the court. But, it contends thateven ifCorey purposelydeceived the State and violated the duty of candor to the court, her performance is not necessarily constitutionally deficient. The State arguesthat Garland failsto demonstrate howCorey’s unethical conduct affected thejury’s verdict. The State notesthatthejurywas not aware ofCorey’s representations to the court about Garland’s defense. Garland responds that he was prejudiced by Corey’s lack of candor, because if Corey had been candid in disclosing the nature of Garland’s defense, the trial court would likely have rejected the State’s request to impeach him with counsel’s earlier opening statements. He contends this is so, because the trial court’s remarks during its ruling show concern about issues of fairness and the prejudice to the State caused by Corey’s dishonesty. He argues that the impeachment evidence was prejudicial, and that it is irrelevant that the jury remained ignorant ofCorey’s misrepresentations to the court. But, the trial court ultimately allowed the State to impeach Garland based
on the relevant impeachment law and argument ofthe parties, not as a sanction for defense counsel’s behavior. When the State first requested to impeach Garland with the prioropening statements, thetrial court ruled that itwould recess for a weekto allow both parties to fully briefthe issue. Garland, 169 Wn. App. at 880. Thetrial courtthen heard argumentonthe issue. During Garland’sargument,
18No. 74135-7-1/19

he worked to distinguish the impeachment case law cited by the State. The trial court concluded that because the case law stood forthe fact that it is acceptable to impeach with a lawyer’s inconsistentstatement made during pretrial discovery, that it would certainly allow for impeachment based on a lawyer’s opening statement made at a mistrial. Thus, the trial court’s ultimate ruling considered relevant case law. And, the trial court’s focus on fairness was not related only to defense counsel’s tactictowithhold its change in strategy. Instead, thetrial court’sfairness
concerns focused on the discrepancy between the statements made during the differenttrials. The court opined:

And you know, I believe there’s a bigger argument than that at stake here, and that’sjustthe fairness and integrity ofthis whole system. Whatifpeoplefromthe publiclookin onthis case, that know nothing about the history, or anything else, and what will the jurors think in thetwo caseswhen theyfind out, okay, in one case, theysay one thing, and then they turn around in the next case and say something entirelydifferentand nobody points itout? That’s notfair. That’s no wayto resolve a legal dispute. That’s no wayto advance the truth seeking function. These things have to be brought to the jury. Youjust can’t get awaywith saying one thing and then turning around and saying the almostexact opposite at a latertime. Thus, the trial court’s ruling allowing the State to impeach Garland with counsel’s prior opening statement was not based upon only the trial court’s
concern aboutthe prejudice to the State caused by Corey’s misrepresentation of the defense. Presumablythetrial courtwould have reached the same ruling based
on the case law and fairness even if Corey had disclosed the “accident theory” earlier. Garland is unable to show that he was prejudiced by Corey’s alleged

19No. 74135-7-1/20

ethical violations. We hold that Corey’s alleged ethical violations did not render her assistance ineffective. C. Ineffective Assistance ofTrial Counsel

— Changing Defenses Next, Garland argues that his trial counsel was ineffective for changing defenses—maintaining that Garland did not have his own gun on the night ofthe incident—without first researching the law. Garland argues that had Corey adequately researched the law, she would have known that Garland could be impeached with her prior inconsistent opening statements.9 Implicit in Garland’s argument is that Coreywas ineffective forfailing to inform him ofa risk ofthe new trial strategy. Reasonable conduct for an attorney includes carrying out the duty to research the relevant law. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Failing to research or apply relevant law will constitute deficient performance if it falls below an objective standard of reasonableness based on consideration ofall the circumstances. Id. at 868-69.

~ This issue is directly linked to Garland’s argument in his directappeal that the trial court erred when it allowed the State to impeach him with his counsel’s statementsfromtwo priorproceedings. Garland, 169Wn. App. at871. Apetitioner generally may not renew a previously determined issue simply by recasting it as an ineffective assistance of counsel claim. In re Pers. Restraint of Stenson, 142 Wn. 2d 710, 720, 16 P.3d 1 (2001). But, the Garland court specifically invited Garland to bring an ineffective assistance claim against his attorney in a PRP on this basis. Garland, 169 Wn. App. at 893 n.h (“Garland has not raised an ineffective assistance of counsel claim in this appeal. Thus, we do not address whether a communication breakdown or other tactical decisions leading to Garland’s impeachment in trial or whether any of counsel’s conduct constituted ineffective assistance. We note that Garland may bring such a claim in a [PRP] under RAP 16.4.”). 20No. 74135-7-1/21
Garland begins by arguing that, “[i]t is well-established that an accused person may be impeached with prior statements made by defense counsel.” By beginning with that assertion, Garland makes an underlying, speculative assumption necessary to support his claim that defense counsel’s performance
was deficient. Garland assumes that his defense counsel did not research the “well-established” law. This courtapproachesan ineffective assistance ofcounsel argument with a strong presumption that counsel’s representation was effective. Davis, 152 Wn.2d at 673. Garland arguesthat it is clearthat Coreydid not research the law, because she was caught off guard and expressed surprise when the court ruled that the State could impeach Garland using the prior opening statements. But, an expression of surprise is not inconsistentwith the demeanor of any attorney who loses a motion, no matter how well-researched or how uninformed. Garland provides only speculative evidence and fails to rebut the strong presumption that counsel’s representation was effective. But, even if Garland presented evidence indicating that Corey failed to research the issue, Garland would still need to showthat Corey’s research would have producedWashington lawdictating that herstrategyto changedefenseswas ill-advised. In the direct appeal, the Garland court stated that whether the State may use trial counsel’s opening statement from prior proceedings to impeach a defendantwas an issue offirst impression in Washington. 169 Wn. App. at 874- 75. It specifically noted that in Washington little precedential authority was
21No. 74135-7-1/22

availableto assist it in making itsdecision. Id. at875. In orderto make itsdecision, the Garland courtturned to authorityfrom anotherjurisdiction—one casefrom the Second Circuit, United States v. McKeon, 738 F.2d 26 (2d Cir. 1984). Id. at 889. The Garland court noted that neither party briefed the McKeon decision. 169Wn. App. at 889. The Garland court applied the McKeon test to determine the admissibility ofthe opening statements. ki. at892-93. Itconcluded on thefacts in Garland’s case, the trial court did not abuse its discretion in allowing limited impeachment of Garland. Id. 894. Notably, the Garland court did not conclude that opening statements from other trials are per se admissible to impeach a defendant. Rather, it concluded only that the trial court, in this instance, did not abuse its discretion. ki. Additionally, Garland citesto Kylloforhis assertion thatafailureto research relevant law falls below an objective standard of reasonableness. In Kyllo, the court held that where existing Washington case law indicates that a pattern jury instruction is flawed, counsel’s failure to research or apply relevant law may constitute deficient performance. 166 Wn.2d at 868-69. The Kyllo court specifically reasoned that there were “several” relevant Washington cases available at the time oftrial that counsel should have discovered. 166 Wn.2d at 866-869. The Kyllo court distinguished Kyllo’s case from State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999). kI. at 866. In Studd, the courtconcluded that where there is no case law indicating that a pattern jury instruction misstates the law, it is not deficient performance for defense counsel to propose such an instruction. See 137 Wn.2d at 551. The Studd court noted that in those
22No. 74135-7-1/23

circumstances, counsel can hardly be faulted for requesting a jury instruction based upon athen-unquestioned patternjury instruction. Id. Washington case law available atthe time of Garland’s third trial indicated that a defendant could be impeached with his opening statement from the same trial (State v. Rivers, 129 Wn.2d 697, 708-09, 921 P.2d 495 (1996)) and by the admission ofstatements made bycounsel previouslyatan omnibus hearing (State
v. Dault, 19 Wn. App. 709, 717-18, 578 P.2d 43 (1978); State v. Acosta, 34 Wn. App. 387, 391-92, 661 P.2d 602 (1983), reversed on othergrounds by, 101 Wn.2d 612, 683 P.2d 1069 (1984)). Garland argues thatthere is little reason to suppose Rivers would have been decided differently ifcounsel’s statement had been made during a prior trial rather than earlier in the same trial. But, no case law had discussed using a statement of counsel in one trial for impeachment ofthe client in a different trial. Thus, additional research would not have informed Coreythat switching to the accidenttheoryforthe third trial wasflawed.1° We conclude that defense counsel’s performance was not deficient when Garland, determining an issue offirst impression in Washington, had notyet been decided. An attorney’sfailureto anticipate a change in the lawdoes not constitute ineffective assistance of counsel. See In re Pers. Restraint of Benn, 134 Wn.2d

10 This does not mean that Corey was oblivious that there were risks involved with changing theories forthe third trial. Corey’s declaration states that she discussed the dangers ofshifting defenseswith Garland priortothe third trial. Corey stated that Garland understood the risks perfectly, but that he wanted to takethe risk. Bycontrast, in his declaration, Garland assertsthatCorey nevertold him that he could be impeached with her opening statements from the first two trials. 23No. 74135-7-1124

868, 939, 952 P.2d 116 (1998) (an ineffective assistance claim fails on the merits because counsel cannot be faulted forfailing to anticipate a change in the law). II. IneffectiveAssistance ofAppellate Counsel Garland argues that his appellate counsel provided ineffective assistance byfailing to raise meritorious claims regarding warrants used to search Garland’s mother’s house. He claimsthewarrantswere unsupported by probable cause and supported by affidavits containing material omissions made with reckless disregard forthetruth. He contendsthatappellatecounsel should havechallenged thetrial court’s denial ofa motiontosuppressevidence obtainedthrough execution ofthe search warrants. Pierce County Sheriff Detective Deborah Heishman was the lead detective investigating the shooting. A month or two prior to the shooting, Detective Heishman had investigated another case in which Garland was the suspect. Duringthe earlier investigation, she unsuccessfullyattempted tofind Garland. But, during the course ofthat investigation, she contacted and had a confrontation with Margaret Cook, Garland’s mother, at herhouse in Tacoma. Atthattime, Detective Heishman went looking for Garland at Cook’s house, because it was listed as Garland’s address in the Department of Licensing (DCL) records. Cook provided Detective Heishman oral consent to enter her residence and look for Garland. Cook told Detective Heishman that Garland did not live with her at the Tacoma address and that Garland had phone and utility bills in his name at another

24No. 74135-7-1/25

address.11 Cook eventually revoked her consentto allow Detective Heishman to search the residence. This caused a confrontation between the two women. Cook filed a complaint about Detective Heishman with the Pierce CountySherriffDepartment’s Internal Affairs department. Cook alleged that when she revoked consent for Detective Heishman to enter her home, Detective Heishman grabbed Cook’s arm. Cook’s complaint was pending with Internal Affairs throughout Detective Heishman’s investigation into the shooting. While Detective Heishman was investigating the other incident for which Garland was a suspect, Cook was in the process of moving from Tacoma to Graham, Washington. Afterthe shooting at issue here, Detective Heishman did not knowwhere Garland lived. Therefore, she prepared a complaintfor an order of trespass to determine if Garland was living with Cook at her new Graham address. Detective Heishman’s affidavit in the complaintfortrespass order indicated that Detective Heishman had previously located Garland’s vehicle outside ofthe Tacoma address, that Cook had been uncooperative in locating Garland at that time, that Cook had told a co-worker that she was hiding Garland to prevent him from being arrested, and that Cook had recently appealed the impound of Garland’s carand listed the Graham residence as her current address.

~ Detective Heishman relied on the DCL information to locate Garland’s address, because she had no access to utility and phone records. 25No. 74135-7-1/26
On November 15, 2004, ajudge approved the trespass order. That night, Deputy Daniel Hacker and Detective Kevin Reding began surveillance of the Graham residence. The detectives climbed over a fence at the Graham house and hid in bushes in the backyard. The detectives observed Garland in the house. Based on this information, on November 16, 2004, Detective Heishman obtained
a warrant to search the Graham house for evidence of the shooting. Detective Heishman’s affidavit indicated that Deputy Hackerpaged herfrom the surveillance
scene indicating that he was watching Garland in the Graham residence. Officers seized photographsfound hidden inthe ceiling ofa bedroom during the search ofthe Graham house. The photos were of Garland and another man posing with what appeared to be several rifles or assault weapons. On January 17, 2007, Garland moved fora Franks12 hearing, arguing thatthe search warrants
werefatallyflawed bydeliberatefalsehoods and/orstatements madewith reckless disregard for the truth.13 Garland challenged both the trespass order and the search warrant. Garland argued that Detective Heishman knew and omitted important information in her complaint for the search warrant. Specifically, among other things, he argued Detective Heishman (1) failed to inform the issuing magistrate

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

26No. 74135-7-1/27

that she knew Garland’s vehicle was registered to the Tacoma address, (2) failed to inform the issuing magistrate that Cook had informed her that Garland has a phone and a utility bill in his name atanotherresidence, and that (3) InternalAffairs
was investigating Cook’s complaint against Detective Heishman. He argued that because therewere insufficientfactsto connect Garland to Cook’s property, there
was no probable cause upon which to search for him on her property. Garland requested that all evidence found during the search of his room be suppressed. The trial court held a Franks hearing. At the hearing, Cook’s co-worker, Michael Frye, testified that he nevertold Detective Heishman that Cookwas hiding Garland. And, the trial courtfound that Detective Heishman should have included information about the Internal Affairs Investigation in her affidavits. But, it concluded that although that information would have given the magistrate some perspective, that potential bias is notsomething that negates probable cause. The trial court noted that the more critical issue was the direct contradiction between Detective Heishman’s statement that Frye told herthat Cookwas hiding Garland and thefactthat Frye denied eversaying that. Thetrial courtfound that Detective Heishman’s testimonywas more credible than Frye’s. The trial court ultimatelyfound that any of Detective Heishman’s omissions
were negligent—not intentionally done and/orwere notwith reckless disregard. It thus found thatthere was sufficient probable cause forthe magistrateto issuethe warrants. The trial court declined to suppress the evidence. The trial court made its oral ruling, but did not enter any findings of fact or conclusions of law.

27No. 74135-7-1/28

Notwithstanding the trial court’s oral ruling, the State indicated that it did not plan to offerany evidencefound during the search ofthe Graham house attrial. On August 26, 2009, during the third trial, Garland’s attorney crossexamined Patrick LaChapelle, the otherman in the posed gun photos. LaChapelle and Garland were friends since middle school. LaChapelle picked Garland up on the night of the incident. During cross-examination, LaChapelle testified as follows: Q. Okay. Do you recall whetheror not Ray had afirearm on him that night? A. I’m pretty positive he didn’t, did not. Q. Have you everseen him with afirearm? A. Have not. Because ofthis testimony, the State informed the courtthat itwished to admitthe picturesfound in the ceiling atthe Graham house. In response, Garland indicated that he wanted a new Franks hearing. Outside of the presence of the jury, the State sought confirmation that LaChapelle neversaw Garland with anyguns. The Statethen showed LaChapelle the photos, and asked ifhe recalled atimewhen hewas at Garland’s house posing with what looked like rifles and machine guns.14 LaChapelle admitted that itwas him in the photos, but testified that he did not recall. Garland argued that it was prejudicial to putthe photos before thejurywhen there was no foundation—there
was no evidence that LaChapelle took the pictures orthat he was presentwhen

14 The photos were on the same negatives, but none ofthe photos were of both Garland and LaChapelle together holding the guns. 28No. 741 35-7-1/29

the pictures were taken. The trial court noted that it was defense counsel who asked LaChapelle aboutthe firearms and opened the doorto the evidence. The trial court said that the State could admit the photos, but it first needed to lay additional foundation indicating the circumstances surrounding where the photos
camefrom. But, the court ultimatelydeferred its ruling onwhetherthe photos could be admitted into evidence. On September 9, 2009, outside of the presence of the jury, the State informed the courtthat it planned to call a detective to authenticate the photos at issue and to then admit some ofthe photos. The State argued thatthe court did not need to relitigate the legality ofthe search, because it had already conducted
a Franks hearing declaring the search legal and becausethe legalityofthe search
was irrelevant—defense counsel had opened the door for the photos through LaChapelle’stestimony. Garland argued that the court reviewed only the search warrant at the Franks hearing as opposed to both the trespass order and the search warrant. Garland noted that he would have moved for reconsideration after the Franks hearing, but the State said that it did not plan to use the evidence from the residence. He noted thatthe State’s intention notto use the evidence was made clear by its failure to present written findings of fact after the trial court’s ruling. Eventually, Garland summarized his renewed challengetothe search as a motion to reconsider. The trial court ruled that it did not see any issues before it that were not already addressed in the Franks hearing and that it saw no basis to reconsider. It
29No. 74135-7-1/30

continued that even in the eventthatthe searches leading to the discovery ofthe photos were illegal, it would determine whether the photos were appropriate impeachment evidence. The trial court ruled that the photos were proper impeachment evidence. The photos ofGarland were admitted during trial. Garland did not raisethe issue of the illegality of the search warrants or an error regarding the ruling on Garland’s motion to suppress in his direct appeal. ~ Garland, 169 Wn. App. 871. A criminal defendant has a right to effective assistance of counsel on his first appeal of right. In re Pers. Restraint of Dalluqe, 152 Wn.2d 772, 787, 100 P.3d 279 (2004). To prevail on a claim of ineffective assistance of appellate counsel, the petitioner must demonstrate the merit of any legal issue appellate counsel raised inadequately orfailed to raise and also show how he or she was prejudiced. In re Pers. Restraint of Netherton, 177Wn.2d 798, 801, 306 P.3d 918 (2013). Failureto raise all possible nonfrivolous issues on appeal is not ineffective assistance, and the exercise ofindependentjudgment in decidingwhat issues may lead to success is the heart ofthe appellate attorney’s role. Dalluc~e, 152 Wn.2d at 787.A. Sufficiency of Probable Cause in Search Warrants The issuance of a search warrant is a highly discretionary act. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). It is founded in a commonsense reading ofthe warrant affidavit and the reasonable inferences that
can be drawn therefrom. Id.; Statev. Maddox, 152Wn.2d 499, 505, 98 P.3d 1199
30No. 74135-7-1/31

(2004). This court generally reviews the issuance of a search warrant only for abuse of discretion. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008). However, at the suppression hearing, the trial court acts in an appellate-like capacityand its review, likethis court’s, is limited tothefourcorners ofthe affidavit supporting probable cause. ki. Although this court defers to the magistrate’s determination, thetrial court’s assessment ofprobable cause is a legal conclusion this court reviews de novo. Id. To establish probable cause, the affidavit must set forth sufficient facts to convince a reasonable person of the probability the defendant is engaged in criminal activity and that evidence ofcriminal activity can be found atthe place to be searched. Statev. Lyons, 174Wn.2d 354, 359, 275 P.3d 314 (2012). Probable
cause may be based on hearsay, a confidential informant’s tip, and other unscrutinized evidencethatwould be inadmissibleattrial. Chenoweth, 160Wn.2d at475. Probable cause requires morethan suspicion orconjecture, but itdoes not require certainty. j4~ at476. Garland arguesthatthetrespass orderwas unsupported by probable cause and thatappellate counsel was ineffectiveforfailing to raisethat issue on appeal.15 The complaintfortrespass order requested to enter upon the Graham propertyfor the purpose of locating Garland, to photograph occupants and guests coming and

15 Garland contends that because the officers conducted a search of the Graham house underthe state and federal constitutionsthatthe trespass order is subject to the same scrutiny as any other search warrant. The State does not challenge Garland’s characterization ofthetrespass orderas a search warrant nor does itcontend thatthiscourt’s reviewoftrespass orders isdifferentthan its review ofsearch warrants. 31No. 74135-7-1132

going from the property, and to confirm thatGarland was residing atthe residence. The judge concluded that there was probable cause to support the actions requested to be taken in the complaintfortrespass. Thus, the question before us is whether the facts available to the judge justified a reasonable belief that evidence of a crime could be obtained by searching the outside of the Graham house. Garland does not appearto argue thatthe affidavit had insufficient probable cause to connect Garland to the crime, but rather, he argues that there was no nexus between the allegations against Garland and Cook’s Graham property. But, there were facts in Detective Heishman’s affidavit connecting Garland to Cookand factsconnecting Cooktothe Graham house. First, Fryetold Detective Heishman that Cook had been telling peoplethatshe was hiding Garland to avoid having him arrested. The affidavit made itclearthat Fryewould be knowledgeable because he had a connection tothe Garland family—legal documentsfound inside Garland’s vehicle belonged to Frye. Additionally, it stated that Cook had filed an appeal of Garland’s impounded vehicle. In Cook’s appeal forthe impounded car, she listed her new physical address as the Graham address. Thus, Detective Heishman’s affidavitdescribed thefactthat a person close to Garland’s family said that Cook claimed she was hiding Garland. And, the affidavit provided recent information that Garland’s mother was living at the Graham property. Itwas a reasonable inference that Cook—a person claiming to be actively hiding Garland—would be keeping him in a location under hercontrol. These facts created more than suspicion or conjecture that Cook was hiding
32No. 741 35-7-1/33

Garland. Therefore, we conclude thatthere was sufficient probable cause forthe judge to issue a trespass orderthat authorized the officers to search the outside ofthe property. Next, Garland argues that his appellate counsel was ineffective for not challenging the constitutionality ofthe search ofthe inside ofthe Graham house. He notes that the affidavit in support of the warrant to search the interior of the Graham house had onlyone additional fact in support of it—thatofficers had seen Garland inside the house. He argues that because that information was illegally obtained, the information could not be used to support the subsequent search warrant. He argues that once that information is excised, the second affidavit suffers from the same infirmities as the affidavitforthe trespass order. But, becausethetrespass orderwas properlysupported byprobable cause, the information that Garland appeared to be residing in the Graham housewas not illegally obtained and it need not be excised from the second search warrant.16 Therefore, we conclude that the second search warrant—now with a fact making it certain that Garland was connected to the Graham house—was also supported by probable cause. We hold that appellate counsel was not deficientforfailing to challenge the sufficiency ofeithersearch warrant on appeal. B. Material Omissions in Search Warrants

— Franks Hearing Still, Garland argues that his appellate attorneyshould have challenged the validity of the search warrants, because Detective Heishman recklessly omitted

16 Garland notes that he was not actually residing in the house, but was instead atthe house attending a birthday celebration for his mother. Itwas notan unreasonable inference that Garland was residing in the house. 33No. 74135-7-1/34

information material to whether Garland actually lived in Cook’s house from her affidavit. Specifically, he argues that Detective Heishman withheld evidence that (1) Garland’s carwas registered at another address (2) Cook had previouslytold the police that Garland did not live with her, (3) Garland had phone and utility bills in his name at another residence, and (4) Internal Affairswas investigating Cook’s complaint against Detective Heishman. Once issued, awarrant is entitled to a presumption ofvalidity, and the court will give great deference to the magistrate’s determination of probable cause and resolve any doubts in favor of the warrant. Chenoweth, 160 Wn.2d at 477. A warrant maybe invalidated, however, and thefruitsofasearch maybesuppressed if there were intentional or reckless omissions of material information from the warrant affidavit. State v. Atchley, 142 Wn. App. 147, 157-58, 173 P.3d 323 (2007). Even ifthe defendant is able to prove an intentional or reckless omission at an evidentiary hearing, he would still be required to show that probable cause to issue the warrantwould not have been found had the omissions been included in the affidavit. See State v. Gentry, 125Wn.2d 570, 604, 888 P.2d 1105 (1995). The motion to suppress with the omissions added will fail if a reasonable magistrate could find that the information contained in the revised affidavit or complaintforsearch warrant supports afinding of probable cause. j~ at 606. As discussed above, whether an affidavit supports a finding of probable cause is a legal issue this court reviews de novo. Neth, 165 Wn.2d at 182. Garland first argues that his appellate attorney should have challenged the fact that no written findings offact and conclusions of lawwere entered afterthe
34No. 74135-7-1/35

oral ruling during the Franks hearing and afterthetrial court’s ruling on his renewed suppression challenge during trial in 2009. He argues thatthetrial court’s and the State’sfailure to enterfindingswas a violation ofCrR 3.6 and thatdismissal is the properremedy. The State respondsthatfindingsoffactare unnecessary, because the trial court denied Garland’s suppression motion as a matterof law. The State contends this is so, because atthe Franks hearing, the trial court concluded that
even if statements Detective Heishman omitted had been included, probable
cause still existed to supportthewarrant. Therefore, even ifappellate counsel had appealed this issue during the direct appeal, and even ifthe court concluded that all of the omissions were reckless—Garland’s desired outcome—he would still need to showthatthe affidavitwas notsupported by probable cause even with the omitted statements. Findings offact and conclusions of law are unnecessary to reviewthis determination de novo.17 Even assuming all ofthese facts were recklessly omitted, the affidavit still supports afinding ofprobable cause. ThatGarland’s carwas registered atanother address, that Cook had previouslytold the policethat Garland did not livewith her, and that Garland had phone and utility bills at another residence are not inconsistentwith the factthat Cookwas hiding Garland.

17 Moreover, a court’sfailureto enterwritten findings offactand conclusions of lawfollowing a suppression hearing as required by CrR 3.6 is harmless error if the court’s oral opinion and the record of the hearing are so clear and comprehensive thatwritten findingswould be a mereformality. Statev. Smith, 76 Wn. App. 9, 16, 882 P.2d 190 (1994). However, here, the trial court addressed each of Garland’s challenges to the statements in the affidavits point by point on the record. 35No. 74135-7-1/36

That Internal Affairs was investigating a complaint against Detective Heishman based on her previous altercation with Cook is a closer call. The trial court noted that Garland identified this as the most important omission from the affidavit. And, the trial court carefully considered whether that statement would have been sufficient to negate probable cause. The trial court noted that the magistrate would not have disregarded everything in the affidavitjust because of Detective Heishman’s potential bias. We followthe trial court’s sound reasoning. It is unlikely that a magistrate would have completely disregarded Detective Heishman’s entire statement in the affidavit—including her compelling statement that Frye had said Cook was hiding Garland18—because of alleged and unsubstantiated bias. Garland also argues that the trial court erred when it concluded that the unlawfully seized evidence was admissible as impeachment evidence, because LaChapelle opened the door to that evidence. Because we hold that there was sufficient probable causeto supportthe search warrants, we need notconsiderthe trial court’s alternative analysis regarding whetherthe evidencewas admissiblefor impeachment purposes. The evidence was legally discovered, and the trial court had alreadydeclined to suppressthe evidence based on the legalityofthe search. We conclude that Garland failed to demonstrate that there was a legally meritorious issuethat his appellate counsel should have raised in hisdirectappeal.

18 The validity of Detective Heishman’s statementthat Frye said Cooksaid she was hiding Garland was directly challenged atthe Franks hearing when Frye denied that he made this statement. But, that information does not impact this court’s evaluation ofwhetherthe magistrate could find sufficient probable cause at the time it issued thewarrants. 36No. 741 35-7-1/37

Therefore, we hold that Garland’s appellate counsel was not ineffective forfailing to raise claims regarding the validityofthe search warrants. Ill. Gang Evidence Next, Garland arguesthatthetrial courterroneouslyadmitted irrelevantand prejudicial gang evidence. He argues that the evidence was not relevant under ER402 and thatthe courtdid notconductthe analysis required by ER403 and ER 404(b). And, he arguesthatthe error resulted in a complete miscarriage ofjustice. Garland did not raise this issue in his direct appeal. But, in a PRP a petitioner is not automatically barred from raising a nonconstitutional issue not previously raised. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To prevail on collateral review on a claim of evidentiary error, a petitioner must showthatthe error constitutes a fundamental defect amounting to
a miscarriage ofjustice. In re Pers. Restraint of Morris, 176 Wn.2d 157, 168, 288 P.3d 1140 (2012). This court reviews evidentiary rulings for abuse of discretion. State v. Fisher, 165Wn.2d 727, 750, 202 P.3d 937 (2009). Atrial courtabuses its discretion when its order is manifestly unreasonable or based on untenable grounds. State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217 (2009). Prior to trial, the trial court heard a motion relating to the State’s desire to admit gang evidence. The State maintained thatthree witnesses would testify at trial that priortotheshooting, Garland pointed to atattoo on his arm and said,” ‘I’m
a 26 Blocc Crip.’
“ The witnesses would also testify that Brock responded that gangs are stupid and that Garland responded to that angrily. The State initially stated that it sought to introduce evidence of Garland’s affiliation with a gang to
37No. 74135-7-1/38

prove Garland’s motive. Itthen noted that itsoughtto admitadditional evidence19 not for purposes of gang membership, but rather because the evidence corroborated what the witnesses heard in the parking lot on the night of the incident. The trial court then asked the State why the tattoo was not by itself sufficient, and it sought clarification from the State as to whether it was seeking admission ofthe evidence for identity or motive purposes. The State responded that it was seeking admission ofthe evidence as motive. The trial court rejected this assertion, noting thatthe men were already involved in a confrontation bythe time Garland allegedly showed his tattoo or made any gang-related comments. It noted thatthe evidence appeared to be prejudicial. At that point, the State appeared to change its theory of admissibility. It noted that identity ofthe shooter had been challenged. To support its claims that the identityofthe shooterwas contested, the State cited totranscriptsfrom thetwo mistrials, recent interviews it had conducted, and the factthat Garland’s notice of defense was general denial and/or self-defense. The State also noted thatwhat
was said in the parking lotthat nightwas contested. Garland responded that the trial court should exclude the evidence, because there “is no such gang as the 26 Blocc Crips” and that Garland and his friends were only mocking gangs. Garland argued that any evidence suggesting he is in a gang is prejudicial, because no such gang exists. The trial court

19 The State also soughtto admit evidencefound in Garland’s bedroom. It soughtto admit photos with group pictures of people throwing gang signs, a shirt that has “26 Blocc Cuz” airbrushed on the back of it, and a picture of Garland wearing the shirt at a party. It also sought to admit evidence of a “tattoo map” indicating thatGarland wanted togetanothertattoo ofa drawing ofa26 gang sign. 38No. 74135-7-1/39

responded, “So does the State then not even get in the statementthat somebody heard about being a26 BloccCrip?” Garland respondedthatthe Statewasentitled to admission of that statement, because it would come in as a statement of the defendant under ER 801(d)(2). The trial court then asked Garland about whether the tattoos were admissible. Garland responded that the State could photograph the “2” and “6” tattoo on Garland’s forearm and admit them at trial after laying the proper foundation. Eventually, Garland noted, “You know, they get the 26 in. They get the statement about the Crips, and to admitthe otherstuff is to basically suggest to thejurythatthis gang actually exists and itdoesn’t.” Afteradditional argumentfrom the State, the court stated: The linkage here is that there needs to be evidence brought in to show that he belongs to a gang, butwhatwe’re forgetting is what’s the purpose of the gang evidence? We’re jumping ahead of ourselves. There’s two possible purposes. The first is identity, and I think there’s no question that some linkage between Mr. Garland and the 26 Blocc Crips statement is admissible, even the Defense concedes that, and most directly is the 26 on his forearm, so I don’t know how much more directyou can getthan thatwhich is stamped onto him, ifyou will. Once we move away from that to other evidence that shows he had some association with this 26 Blocc Crip gang orwantto be gang orassociation orwhatever it is, I thinkyou run into a dangerous area because do you really need it for identity? It doesn’t appear thatthat’s the case. The court noted the second possible purpose was motive, but it rejected this purpose, becausethetwo men were already involved in a confrontation. The court ultimatelyconcluded that itwas going to allowthe26 Blocc Grip statementto come in and a photograph ofGarland’sforearms as long asthe State could laythe proper
39No. 74135-7-1/40

foundation. But, itdid notseethe need forthe shirtorotherevidenceto come in.20 It noted that if new evidence came in later and the State raised the issue again outside the presence ofthejury, itwould considerthe issue again then. During trial, witnesses testified as to Garland’s statements on the night of the shooting. Marcytestified thatwhen Garland and Brockwere arguing, Garland said,

“ ‘Nigga, this is 26th Street Crip. Fuck you.’

“ Marcy also testified that he heard a statement about

“ ‘[t]his is 26th Street.’

“ Valentine testified that as the argument between the men developed, Garland showed his tattoos and said “three, six Grip.” Brock responded by saying, “‘fuck gangs, fuckyou.’” Another witness testified that Garland said “‘36 Grip’ “right before the shotswere fired. When Garland testified, he claimed that Brock noticed histattoo and asked him if hewas one ofthewhite boysfrom “3-6.” Garland testified that hetold Brock hewas not anything called 3-6. Garland testified that his 26 tattoowas not a Crip reference, but rather a numeric code for “BE,” meaning that he and LaGhappelle
were bestfriends. Afterthistestimony, the State moved to impeach Garlandwith evidencethat histattooswere gang references. Specifically, the State movedto admit Garland’s

20Afterthe court made its ruling, the State asked a clarifying question about whether a photograph of a tattoo on Garland’s leg that said “‘26 for life’

“ was admitted even though none ofthe witnesses saw it. The court noted that it could come in underthe sametheory, “If he’s got a 26 on his body and there’s evidence that the 26 was referenced by the person that did the shooting, then that comes in.” Garland argued that itshould not have come in, because thewitnesses never sawthe tattoo on his leg. The court responded, “That’s notthe point. The point is the linkage between the name or the identity of the 26 and the reference by the shooter.

. . . It’s a linkage. It’s an identity thing.” The trial court disagreed with Garland’s assertion thatthe leg tattoo was cumulative. 40No. 74135-7-1/41

shirt that said

“ ‘26 block cuz’

“ and a video in Garland’s possession in which
someone yelled out

“ ‘26 blockCrips.’” Garland argued thatthe evidencewas not relevantto show identity or prove motive. Garland noted thatthejurydid not need to see otherevidence and that it needed to decide onlywhetherGarland madethe statementthat hewas a 26 Blocc Crip on the night ofthe incident. After noting the potential probative value of the evidence—to corroborate the witnesses’ stories on the night ofthe incident about what Garland and Brock said to each other—the trial court decided to reserve ruling on the issue until Garland furthertestified on cross-examination. It did so in orderto betterassess how directly the State’s evidence would impeach Garland’s statements. But, the trial court specifically noted thatthe State could ask Garland whether on the night ofthe incident he said that hewas a 26 blockcrip. The court noted that if Garland said, “yes” the inquirywould end. During cross-examination, the State asked Garland if he said hewas a “26 block Crip” that night. AfterGarland admitted he said that, the State reminded the courtto provide a limiting instruction.21 And, thetrial courtprovided one: “You have heard testimony regarding a statement reportedly made bythe defendantwherein he said 26 Crips. You may consider this evidence to evaluate the credibility of witnesses. You are prohibited from using this evidence for any other purpose.” Then, the State published the picturesofGarland’stattoos on hisforearms and the State continued its questioning. The State asked Garland why he said he was a

21 Garland had previously requested a limiting instruction, and the State agreed itwas a good idea. 41No. 74135-7-1/42

26 block crip. Garland responded that he said it, because Brockwas asking him if he was one ofthe white boys from three six crip. In his PRP, Garland argues that the trial court erred when it allowed “any gang evidence.” Garland cites to the State asking Garland whether he said that he was a “‘26 Block Crip’

“ on the night of the incident as improperly admitted evidence. In his supplemental briefing, Garland identifies additional pieces of evidence that he asserts improperly suggested that Garland had some affiliation with an alleged gang. First, he cites to Valentine’s testimonythat Garland said, “‘three, six crip’” and pointed to a tattoo on his arm. He also points to Valentine’s testimonythat a “crip” is a gang memberand thatValentine understood thatwas how Garland was communicating that statement. Garland also cites to Valentine’s testimony on cross-examination. During Garland’s cross-examination of Valentine, Valentine testified that during his police interview, he told the police that Garland referred to
a “set” on the night of the incident. Valentine testified that a “set” is a group of gangs. Finally, Garland citesto Marcy’stestimony22thatGarland said, “Nigga, this is 26th Street Crip. Fuckyou.” Therefore, the evidence Garland argues was improperly admitted amounts to onlytestimony about Garland’s alleged statements on the night ofthe incident, notthe admission of any additional gang-related extrinsic evidence orthe photos

22 Garland citesto evidencefrom trial on September 15, 2009thathe claims was improper gang affiliation evidence. But, the report of proceedings page number he cites does not correspond with any proceedings held on that day. However, Marcydid testifythatday and referenced the 26th Street Crip. 42No. 74135-7-1/43

of Garland’s forearm tattoos. The admission of these alleged statements was alreadyconsidered bythe court pretrial. Thetrial courtadmitted the statements at that point because identity was at issue at that stage of the proceedings. And, Garland conceded that testimony about Garland’s statements on the night ofthe incident could come into evidence. Moreover, during trial, Garland did notobjectwhen witnessestestified asto Garland’s statements. And, during the State’s cross-examination of Garland, Garland fought to exclude extrinsic gang evidence, but did not argue against, or object to, the admission of Garland’s statements. After Garland testified that he said that hewas a “26 blockCrip” on cross-examination, and hewas provided with
a limiting instruction. On appeal, a party may not raise an objection not properly preserved attrial absent manifest constitutional error. State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). Although Garland notesthataffiliation with a gang is protected bythe First Amendment, he fails to show how admission of his statements on the night of the incident constitutes manifest constitutional error. Therefore, Garland has not properly preserved this issueforappeal. Even if Garland had properly preserved the issue for appeal, he would still need to show that the admission of the evidence resulted in a complete miscarriage of justice in order to raise this issue for the first time on collateral review. In re Pers. RestraintofGomez, 180Wn.2d 337, 347,325 P.3d 142 (2014). Case law suggests that it is difficult for the petitioner to meet this burden for evidentiary errors. See In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965
43No. 741 35-7-1/44

P.2d 593 (1998) (“[E]ven iftherewas an evidentiaryerrorwith []opinion testimony, such an error does not constitute a ‘fundamental defect’ amounting to a ‘miscarriage ofjustice.” (quoting In re Pers. Restraint of Cook, 114 Wn.2d 802, 811, 792 P.2d 506 (1990)); Morris, 176Wn.2d at 171 (concludingthatthe petitioner cannot meet his burden to showthatanyevidentiary errors made bythetrial court regarding the inadmissibility of certain subjects of proposed expert testimony resulted in complete miscarriage ofjustice). Garland argues thatthere was a complete miscarriage ofjustice, because the admission of the gang-related evidence created a likelihood that jurors convicted on the basis of propensity evidence. Garland does not provide any authorityto support his assertion thatan evidentiaryerrorofthis nature—evidence creating a possibility thatjurors convicted on the basis of propensity evidence— constitutes a miscarriage ofjustice perse. Therefore, Garland failed to satisfy his burden of showing that the admission of the evidence resulted in a complete miscarriage ofjustice. We hold that Garland’s evidentiarychallenge iswithout merit. IV. InconsistentVerdicts Garland asserts that he should be given a new trial or released from custody, because his verdicts were inconsistent. Garland argues that his second degree manslaughter, second degree murder, and second degree assaultverdicts
were inconsistent, because the State was allowed to argue transferred intent to thejury underone ofthejury instructions.

44No. 741 35-7-1/45
Garland does notexplain why he is entitled to collateral reviewofthis issue. Moreover, it is unclearfrom the record whether Garland objected attrial to either the jury instruction or to the jury verdicts as inconsistent. Failure to object to inconsistent jury verdicts at trial can result in waiver of the right to raise that objection on appeal. See State v. McNeal, 145 Wn.2d 352, 355, 37 P.3d 280 (2002) (concluding that because the alleged inconsistency in thejuryverdict was not a manifest error affecting a constitutional right, it could not be raised for the firsttime on appeal). Even assuming Garland is entitled to reviewofthis issue, Garland does not argue that the jury instruction itself was error nor does he explain how the transferred intent argument and jury instruction resulted in an inconsistent verdict.23 Without explanation, Garland cites to State v. Wilson, 125 Wn.2d 212, 883 P.2d 320 (1994) and Statev. Clinton, 25Wn. App. 400, 606 P.2d 1240 (1980) to support his argument. In Wilson, the defendant fired shots into a bar, intending to shoot the bartender and a specific bar patron. 125 Wn.2d at 213-14. But, Wilson’s shot missed his intended victims and instead struck two unintended victims. Id. The Washington Supreme Court considered whethera specific statute allows intentto be transferred to unintended victims once the intent to inflict great bodily harm against an intended victim is established. ki. at 214. The Wilson court did not considerwhetherWilson’s verdictwas inconsistent.

23 Neitherthejury instruction towhich he refers northeverdictform is in the record. 45No. 74135-7-1/46

In Clinton, the principal issue was whetherthe trial court erred in providing
a specific transferred intentjury instruction. 25 Wn. App. at 401. Clinton argued thatthe trial court’s transferred intent instruction was misleading and inconsistent with other instructions. Id. at402. But, the Clinton courtdid not considerwhether Clinton’s verdictwas inconsistent. Inconsistentverdicts present a situation where error, in the sense thatthe jury has notfollowed the court’s instructions, mostcertainly has occurred. Statev. Goins, ll3Wn. App. 723,730,54 P.3d 723 (2002), aff’d, 151 Wn.2d 728,92 P.3d 181 (2004). Here, even assuming Garland has not alreadywaived his argument that hisverdictswere inconsistent, and even assuming Garland is ableto bring this challenge now in a PRP, we hold that Garland’s argument fails, because he has not provided relevant authority to support the fact that his verdicts were inconsistent. See RAP 16.10(d) (stating that the content of PRP briefs are governed by RAP 10.3); 10.3(a)(6) (stating that arguments must be supported by citations to authority); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 547 (1992) (stating that arguments not supported by authoritywill not be considered). V. Attorney’s Withdrawal Garland argues that he should be given a new trial or released from custody, becausethetrial courtdid not makethe necessary inquirybefore allowing his attorney to withdraw before sentencing. Because the withdrawal of counsel implicates a defendant’s constitutional right to counsel, Garland must prove that

46No. 74135-7-1/47

any error here resulted in actual and substantial prejudice. ~ Gomez, 180 Wn.2d at 347. On June 8, 2010, after Garland was convicted, but before he was sentenced, the trial court noted that Garland had indicated he wanted to have Corey, his attorney, removed from the case. Garland confirmed forthe trial court that he wished to have Corey removed. The trial court also noted that Corey indicated she had a conflict that required herto withdraw. The State requested thatthetrial courtgoforwardwith sentencing and denyCorey’s motiontowithdraw. Corey responded that she wished to inform the court about the nature of her conflictoutside ofGarland’s presence in an in-camera hearing. She noted that her conflictwas based on an ethical concern. The trial court conducted an in-camera meeting with Corey and the court reporter. Afterconducting the in-camera hearing, the courtfound thattherewas a reasonable belief by Corey that she had a conflict of interest and that her belief would compromise her ability to zealously represent Garland. Garland was represented by a different attorney during sentencing. Garland arguesthatthetrial courterred by never making an inquiry intothe nature ofthe conflictand thegroundsforthesubstitution ofcounsel before allowing Corey to withdraw. But, the trial court did inquire into the nature of the conflict during the in-camera hearing.24 Moreover, Garland does not indicate how hewas

24 Garland argued in his supplemental opening brief that the trial court infringed on his rightto be presentforall critical stages ofatrial by holding a secret in-camera hearing in Garland’s absence. But, Garland withdrew any argument related to his presence during the in-camera hearing in his reply brief. 47No. 74135-7-1/48

actually and substantially prejudiced by Corey withdrawing prior to sentencing. Therefore, we conclude that Garland’s argument is without merit. VI. Cumulative Error Doctrine Finally, Garland argues that his convictions must be reversed because of the cumulative errordoctrine. In a PRP alleging cumulative error, the petitioner bears the burden of showing multiple trial errors and that the accumulated prejudice affected the outcome ofthe trial. In re Pers. Restraint ofCross, 180 Wn.2d 664, 690-91, 327 P.3d 660 (2014). Here, thetrial courtmade no errors. We hold thatthe cumulative
errordoctrine does not apply. We denythe petition.

WE CONCUR: ,-



# ~x’j

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