### FILED 

# COURTOFAPPEALS DIVISION II 

# 2015APR23 41 8: 35 ST. T IN THE COURT OF APPEALS OF THE STATE OF WASHING 

### Told BY. DIVISION II In the Matter of the Personal Restraint of: TOMMY LEE CROW, JR.,

Petitioner No. 42926 -8 -II

PART PUBLISHED OPINION

WoRSwIcK, P.J. — In this personal restraint petition (PRP), 

### Tommy Crow petitions us to vacate his two second degree murder convictions and, alternatively,to modify his aggravated

sentence. Crow raises numerous arguments, claiming: ( 1) sentencing errors, (2) prosecutorial misconduct, (

### 3) ineffective assistance ofcounsel, and (4) erroneousjury instructions. In the published portion ofthis opinion, we hold that the evidence was insufficient to support the good Samaritan aggravator and that the trial court erred by explicitly considering good time credits when sentencing Crow. In the unpublished portion ofthis opinion, we reject the remainder of 

### Crow's arguments. Accordingly, we grant Crow's petition in part by vacating his sentence on both counts and remanding for resentencing. We denythe remainder ofCrow's petition. FACTS On March 28, 2008, at a homeless campsite in Olympia, Washington, Tommy Crow, Bryan Eke, and Christopher Durga, murdered David Miller and Norman Peterson. On March 18, Miller had reported to law enforcement that he witnessed Eke and Durga assault Scott Cover on 

### March 7. On March 27, Durga learned law enforcement had information inculpating him in Cover' s assault.No. 42926 - 8 -II On March 28, the night of Miller' s murder, Crow, Eke, and Durga went to Miller' s campsite. Crow struck Miller in the face, and Durga put Miller in a choke hold until he was 

### incapacitated. Durgathen dragged Miller's body into the campsite fire and stood on his back. When Peterson arrived at Miller's camp and saw Miller's body in the fire, Crow struck Peterson in the head with a tree branch and put him in a choke hold until he was incapacitated. 

### Crowthenthrew Peterson' s body into the campsite fire with Miller's. A medical examiner later determined that Miller and Peterson died by strangulation.

The State charged Crow with two counts of second degree murder, each with . a separate 

### sentencing aggravator: a good Samaritan sentencing aggravator) for murdering Miller in retaliation for reporting Cover's assaultto law enforcement, and a deliberate cruelty sentencing aggravator2 for Peterson' s murder. Each murder count included the alternative means of intentional murder and 

### felony murder (with second degree assault as the predicate felony). The State charged Crow as both an accomplice and principal. The State also charged Crow with second degree arson. 

### Ajury found Crow guilty as charged. On the special verdict forms, thejury answered yes" to both sentencing aggravators. 

### At sentencing, the State recommended an exceptional sentence of300 months 

### imprisonment for each second degree murder charge, to be served consecutively, for a combined total of 600 months imprisonment. The trial court asked the State, "[ W]hat credit for good time in the future will [Crow] be eligible to receive that would subtract from the sentence that you' ve 1 RCW 9. 94A.535( 3)( w). 2 RCW 9. 94A.535(3)( a).
2No. 42926 - 8 -II

recommended here ?" Verbatim Report of Proceedings (VRP) (Sentencing) at 1451. The State responded, " On [the two murder charges] [ Crow] would receive a maximum often percent only for good time." VRP (Sentencing) at 1451.

Crow' s counsel made no sentencing argument on Crow' s behalf, instead stating, " Your 

### honor, I don't really have much to say. I thinkwe lost any chance ofinfluencing this court's decision with respect to sentencing when this case went to trial." VRP (Sentencing) at 1476. 

### Trial counsel stated atotal ofthree times that he had lost any chance ofinfluencing the trial court' s sentencing decision after the case went to trial. For Miller' s murder, the trial court imposed a 360 - month exceptional sentence based on 

### the good Samaritan aggravating factor. For Peterson's murder,the trial court imposed a300 - month exceptional sentence, based on the deliberate cruelty aggravating factor. Because these were serious violent offenses, the trial court ordered these two sentences to be served consecutively, 3 

### resulting in atotal sentence of660 months imprisonment.4 Regarding Crow' s sentence, the trial court said: 

### I've gone above the amount requested by the prosecutor or suggested by the prosecutor as appropriate in this case, and I' ve differentiated between the amount oftime imposed for [the two murder counts]. The reason that I' ve differentiated between the two sentences is . . . Millers' act of reporting the assault to law enforcement] was an act of 

### extraordinary bravery, in my estimation, and the exceptional sentence that I've imposed here reflects that determination.

3 RCW 9. 94A.589( 1)( b); see former RCW 9. 94A.030(41)( a)(iii)(2006). 4 The trial court also sentenced Crow to 43 months imprisonment for the arson, to be served concurrently with the two murder sentences.No. 42926 - 8 -II 

### VRP (Sentencing) at 1482 -84. The trial court also reiterated that it considered good time credits in determining Crow's sentence:

With the imposition ofthis sentence, Mr. Crow, you will serve, even with a good time credit, a full 50 years of incarceration. VRP (Sentencing) at 1483.

In its written order, the trial court ruled: 

### The [two aggravating factors] listed in the preceding paragraph, taken together or 

### considered individually, constitute sufficient cause to impose the total of 660 months for the exceptional consecutive sentences for [ Crow' s two murder convictions]. This courtwould impose the same total exceptional penalty forthose 

### consecutive sentences if only one ofthe grounds listed in the preceding paragraph is valid: Clerk' s Papers ( CP) at 100. We affirmed Crow' s convictions on direct appeal in an unpublished opinion. On direct appeal, appellate counsel did not challenge the consideration of good time credits, the good 

### Samaritan aggravator, or any sentencing issue. Crowthen filed this PRP. ANALYSIS A PRP is not a substitute for a direct appeal. In re Pers. Restraint ofHagler, 97 Wn.2d 818, 824, 650 P.2d 1103 ( 1982). We are reluctant to overturn a settledjudicial decision where 

### the petitioner has already had an opportunityforappeal. In re Pers. Restraint ofCross, 180 Wn.2d 664, 676, 327 P. 3d 660 (2014). 

### Accordingly, there are limits on the use ofa PRP to 

### collaterally attack a criminal offender' s restraint. Hagler, 97 Wn.2d at 824. A personal restraint petition must state with particularity the factual allegations which, if proven, would entitle the petitioner to relief. In re Pers. Restraint ofRice, 118 Wn.2d 876, 886, 828 P.2d 1086 ( 1992). Further, the factual allegations must have evidentiary support. 118

4No. 42926 - 8 -II Wn.2d at 886. Ifthe record does not support the factual allegations, then the petitioner must show through affidavits or other forms of corroboration that competent and admissible evidence
will establish the factual allegations. 118 Wn.2d at 886. Once the petitioner states in his petition the facts underlying the.claim ofunlawful restraint and the evidence supporting these allegations, we then examine the State' s response. 118 Wn.2d at 886. " 

### The State' s response must answerthe allegations ofthe petition and identify

all material disputed questions offact." 118 Wn.2d at 886. Ifanswering the petitioner' s 

### allegation requires reference to another proceeding' s record,the State must include a copy ofthat

record' s relevant parts. RAP 1. 2(b); 

### 16.9(a); see In re Pers. Restraint ofReise, 146 Wn.App. 772, 780, 192 P. 3d 949 ( 2008). To be entitled to collateral reliefthrough a PRP the petitioner must prove error "by a preponderance ofthe evidence." 

### In re Pers. Restraint ofMonschke, 160 Wn.App. 479, 490, 251 P. 3d 884 (2010). Ifthe petitioner is able to show error, he is also required to prove prejudice, the degree ofwhich depends on the type of error shown. To be entitled to relieffor a constitutional error, the petitioner must also prove by a preponderance ofthe evidence that the error caused actual and substantial prejudice. Cross, 180 Wn.2d at 676. Actual and substantial prejudice,

which " must be determined in light ofthe totality of circumstances," exists ifthe error " so infected petitioner' s entire trial that the resulting conviction violates due process." In re Pers. Restraint ofMusic, 104 Wn.2d 189, 191, 704 P.2d 144 ( 1985). To be entitled to relieffor a nonconstitutional error, the petitioner must prove by a preponderance ofthe evidence thatthe 

### error caused afundamental defect resulting in a complete miscarriage ofjustice. Cross, 180 Wn.2d at 676; Monschke, 160 Wn.App. at 490 - 91.

5No. 42926 -8 -II I. INSUFFICIENT EVIDENCE SUPPORTS MILLER' S GOOD SAMARITAN STATUS Crow first argues that the evidence is insufficient to support the good Samaritan 

### aggravator on Miller's murder. Crow argues Miller' s act ofreporting the assault ofCoverto law enforcement a week after the assault occurred, and two weeks before Miller was murdered, did not make Miller a " good Samaritan" because Miller was not harmed while providing immediate
aid to someone in peril. 

### Supp. Br.ofPet'rat 9. The State argues that even ifwe determine the evidence was insufficient, Crow failed to show actual and substantial prejudice because the trial 

### court explicitly stated the total sentence for both murders would be the same with only one ofthe two sentencing aggravators. We agree with Crow.

A defendant' s assertion of insufficient evidence asserts a constitutional error. State v. Arquette, 178 Wn.App. 273, 281, 314 P. 3d 426 (2013). Thus, Crow must demonstrate actual and substantial prejudice to prevail. Cross, 180 Wn.2d at 676. Substantial evidence must support a sentencing aggravatorthat allows the trial court to impose an exceptional sentence. See State v. Gordon, 172 Wn.2d 671, 680 -81, 260 P.3d 884 2011); In re Pers. Restraint ofHowerton, 109 Wn. App. 494, 502, 36 P. 3d 565 ( 2001). We review claims ofinsufficient evidence to determine "whether, afterviewing the evidence in the 

### light most favorable to the State, any rational trier offact could have found guilt beyond a
reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 ( 1992). 

### We review questions ofstatutory interpretation de novo, interpreting statutes to give effect to the legislature' s intent. State v. Bunker, 169 Wn.2d 571, 577 - 78, 238 P. 3d 487 (2010). When construing a statute, we first examine the statute' s plain meaning. 169 Wn.2d at 578. We 

### determine a statute' s plain meaning from the ordinary meaning of its language, as well as from

6No. 42926 - 8 -II 

### the statute' s general context, related provisions, and the statutory scheme as a whole. State v. Jacobs, 154 Wn.2d 596, 600, 115 P. 3d 281 ( 2005). 

### Where the meaning ofstatutory language is plain on its face, we give effectto that plain 

### meaning as an expression oflegislative intent. See State v.Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011). 

### But ifafter conducting a plain meaning review,the statute is still susceptible to 

### more than one interpretation,then we may rely on statutory construction, legislative history, and

relevant case law to determine legislative intent. 172 Wn.2d at 242. Under RCW 9.94A.535(w),the trial court may exceed the standard sentencing range where "the defendant committed the offense against a victim who was acting as a good Samaritan. "5 No definition of "good Samaritan" appears in the statute. RCW 9. 94A.535(w). Nothing from the statute' s general context, related provisions, or the statutory scheme as a whole provides insight into whether the legislature intended to limit the term " good Samaritan" to those 

### harmed while providing immediate aid to another, or intended to expand the term' s meaning to 

### include anyvictim whose good deed directly caused his victimization. Thus, RCW 9. 94A.535(w)'s term " good Samaritan" is susceptible to more than one interpretation and we 

### rely on statutory construction, legislative history, and relevant case lawto determine legislative intent. 

### When passing RCW 9.94A.535(w),the legislature intended to codifythe common law good Samaritan sentencing aggravator. State v. Siers, 158 Wn.App. 686, 690, 244 P.3d 15 ( 2010) overruled on other grounds 

### by 174 Wn.2d 269 (2012); LAWS OF 2005, ch. 68, §§ 1, 3.

5 While we recognize that RCW 9.94A.535(w) does not capitalize " Samaritan" we choose do so in this opinion for consistency.
7No. 42926 - 8 -II
the bill that codified the good Samaritan sentencing aggravator and stated: "[ t]he legislature intends ... 

### to codify existing common law aggravating factors, without expanding or restricting existing statutory or common law aggravating circumstances "); see also 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 300.32 ( 3d Ed 2008). In State v. Hillman, Division One ofthis court stated that the common law good Samaritan aggravator 

### was supported bythe legislature' s concern with protecting bystanders so as " to prevent an innocent person from being injured without the assistance of bystanders," because " to murder a person who comes to one 's aid discourages others from offering aidto persons in need ofhelp." 66 Wn.

## App. 770, 776, 832 P.2d 1369 ( 1992) ( emphasis added).

Civil cases have also addressed the definition of "good Samaritan." In Butzberger v. Foster, the lead opinion noted that "[

### t]he law has long recognized that seeing a person injured or in peril compels those called to follow the example ofthe Good Samaritan to provide

assistance." 151 Wn.2d 396, 412, 89 P. 3d 689 (2004) ( lead opinion) ( emphasis added). In Gardner v. Loomis Armored Inc., our Supreme Court stated that a person became a good 

## Samaritan "byvoluntarily risking his own life and aidingahelpless victim ofcrime. "6 128 Wn.2d 931, 946, 913 P.2d 377 ( 1996) ( emphasis added). 

### 6 The State cites State v. Hooper forthe argumentthat reporting crimes to the police is included in the definition of "good Samaritan." 100 Wn.App. 179, 185, 997 P.2d 936 (2000). But Hooper is distinguishable from this case for two reasons. First, the Hooper court recognized that 

### underthe law as it stood at the time, the statutory list ofaggravating factors was " illustrative only," and the defendant' s conduct did not need to " precisely fit within one ofthe factors." 100 

### Wn.App. at 185. Butthis was no longerthe law afterthe legislature amended the statute in 2005. Compare former RCW 9. 94A.535 ( 2003) with former RCW 9. 94A.535( 3) ( 2005). 

### Second, the victim in Hooper was a bystanderwho was calling 911 to report a crime as itwas occurring, whereas the victim in this case reported a crime a week after its occurrence. 100 Wn. App. at 181 -82.

8No. 42926 -8 -II We hold the legislature intended RCW 9. 94A.535(w)' s term " good Samaritan" to-refer to 

### bystanders who are harmed while providing immediate aid to someone in peril. Because Miller reported the assault of Cover to law enforcement over a week after Cover was assaulted and over two weeks before Miller was murdered, Miller was not harmed while providing immediate aid to 

### someone in peril. See Hillman, 66 Wn.App. at 776. Thus, we hold that insufficient evidence supports the good Samaritan aggravator because Miller' s act ofreporting Cover' s assault to the police over a week after it occurred, while admirable, did not make Miller a good Samaritan

under RCW 9. 94A.535( w). Thus, Crow has proven error. Crow has also proven that this error caused him actual and substantial prejudice. Here, 

### the good Samaritan aggravator applied onlyto Miller's murder. Thus, without the good Samaritan aggravator, the trial court could not have imposed an exceptional sentence above the 

### standard range for Miller's murder. Assuming without deciding that the trial court would have increased the exceptional sentence for Peterson' s murder to compensate for its inability to impose an exceptional sentence for Miller' s murder, this would not have removed the actual and 

### substantial prejudice Crow suffered by the increased sentence for Miller' s murder. Thus, Crow . has shown actual and substantial prejudice as to Miller' s murder.



### 7 The State argues that Miller is a good Samaritan because by reporting Cover's assault to law enforcement, he helped the local homeless community. The State' s argument fails because we hold the term good Samaritan refers to those harmed while providing immediate aid to someone 

### in peril, and reporting a crime to help the community is not providing immediate aid to someone 

### in peril. We also note that accepting the State' s argumentwould strainthe limits ofdue process 

### by extending the good Samaritan aggravatorto a defendantwho victimized anyone doing anything that arguably provided a benefitto society.

9No. 42926 - 8 -II II. ERRONEOUS CONSIDERATION OF GOOD TIME CREDITS 

### Crow next argues thatthe trial court erred by explicitly considering good time credits 

### when determining his sentence on both murders. Again,we agree. By arguing that the trial court' s sentence exceeded its statutory authority underthe Sentencing Reform Act of 19818 ( SRA), Crow asserts a nonconstitutional error. See In re Pers. Restraint ofGoodwin, 146 Wn.2d 861, 867 - 68, 50 P. 3d 618 ( 2002). Thus, to be entitled to relief, 

### Crow must prove by apreponderance ofthe evidence thatthe error caused afundamental defect resulting in a complete miscarriage ofjustice. Cross, 180 Wn.2d at 676; Monschke, 160 Wn. App. at 490 -

91. A sentence in excess ofthe trial court' s statutory authority underthe SRA constitutes a fundamental defect resulting in a complete miscarriage ofjustice. In re Pers. Restraint of West, 154 Wn.2d 204, 213, 110 P. 3d 1122 ( 2005); Goodwin, 146 Wn.2d at 867 - 68. Underthe SRA, the trial court may not consider a defendant' s potential good time credits 

### when imposing an exceptional sentence.9 State v. Wakefield, 130 Wn.2d 464,477 - 78, 925 P.2d 183 ( 1996). Here, it is clear that the trial court improperly considered Crow's potential credits. 8 Chapter 9.94A RCW. 

### 9 The State asks us to hold thatwhile considering good time credits in determining whetherto impose an exceptional sentence is impermissible, considering good time credits in determining an exceptional sentence' s length is permissible. But the case law does not support this distinction. " The framework ofthe SRA [Sentencing Reform Act of 1981] indicates that earned 

### early release time is to be considered only afterthe offender has begun serving his sentence. Moreover, it would be inappropriate to impose a sentence outside the presumptive range based 

### on an entirely speculative prediction ofthe likely behavior ofan offenderwhile in confinement." See State v. Wakefield, 130 Wn.2d 464, 478, 925 P.2d 183 ( 1996) ( alteration in original) ( citation omitted) (

### quoting State v. Fisher, 108 Wn.2d 419, 429 n.6, 739 P.2d 683 ( 1987)).

10No. 42926 -8 -II

The trial court asked the State, "[ W]hat credit for good time in the future will [Crow] be eligible to receive that would subtract from the sentence that you' ve recommended here ?" VRP Sentencing) at 1451 ( emphasis added). The State said that good time credits could reduce 

### Crow's sentence forthe two murders by amaximum of 10 percent. VRP (Sentencing) at 1451. Following this exchange, the trial court sentenced Crowto a sentence thatwas 10 percent greater than the State' s recommendation, stating, " With the imposition ofthis sentence, Mr. Crow, you
will serve, even with a good time credit, a full 50 years of incarceration." VRP (Sentencing) at 1483. 

### Thus, because Crow has shown that the trial court exceeded its authority under the SRA 

### by considering future good time credits when sentencing him, Crowhas shown afundamental defect 

### resulting in a complete miscarriage ofjustice. West, 154 Wn.2d at 213; Goodwin, 146 Wn.2d at 867 -68.

Because the evidence was insufficient to support the good Samaritan aggravator and the 

### trial court erred by explicitly considering good time credits when sentencing Crow,we grant 

### Crow's petition in part by vacating his sentence on both counts and remanding for resentencing. A majority ofthe panel having determined that only the foregoing portion ofthis opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06. 040, it is so ordered. ADDITIONAL FACTS A. Facts Related to Crow' s Prosecutorial Misconduct Claims 1. Alleged Threats To Coerce Durga To Provide Perjured Testimony The State called Durgato testify at trial against Crow, pursuantto a plea agreement. Over two years after Crow' s conviction, Durga filed a sworn declaration stating the prosecutor

11No. 42926 -8 -I1

had threatened him withjail time to compel Durga to falselytestify that Crowwas involved in Miller' s assault. The prosecutor in this case submitted a sworn declaration stating he never threatened Durga and that he instructed Durga only to tell the truth. 

### We remanded Crow's petition for a reference hearing to determine whetherthe prosecutor threatened Durga in orderto compel him to provide false testimony implicating Crow in Miller' s murder. After the reference hearing, the trial court found that "[ t]he prosecutor did

not threaten Durga ... 

### with additional prison time ifDurga did not testifythat Crow was involved in the assault or murder of Miller." Findings of Fact Following Reference Hearing, In 

### Re Personal Restraint ofCrow, No. 08 -1- 00585 -6, at 2 (Thurston County Super. Ct.Wash. Jun. 12, 2014). 

### Crow does not challenge this finding.

2. Alleged Statements of 

### Opinion in the State' s ClosingArgument Attrial,the State presented testimony from Durga and Eke, both ofwhom testified 

### pursuant to plea agreements with the State. The State elicited testimony from Eke admitting that prior to his plea deal with the State, he had lied multiple times to authorities regarding events relevant to this case. The State' s questions challenged both Eke and Durga for making statements in theirtestimony that were inconsistent with their prior statements to authorities. Durga testified that Crow referred to him as his " little brother" and that Crow was present 

### with Durga when they assaulted Miller. 7 VRP at 1125. Durga also testified that Crow attempted to hit Durga but missed, at which point Durga put Miller in a chokehold. The State 

### impeached Durga' stestimony, showing that in his prior statements to authorities Durga had said that Crow actually hit Miller. The State then challenged Durga and Eke's honesty in its closing argument:

12No. 42926 - 8 -II Durga is a witness who is quite capable of implanting these little bits of fantasy: 

### And I submitthat you see evidence ofthat in a number ofaspects ofhis story about the events or what happened on the evening [ ofthe murders]... . The State believes that it' s important for all ofyou to use caution with regard to the testimony of [

Durga or Eke]. Neither one ofthese individuals, unfortunately, came 

### up to this witness stand to simplytell the truth. And the State submits thatthat was pretty apparent... .

Each one of them had a different kind of motive, if you will. For Mr. Eke it' s himself. For Mr. Durga, what came through loud and clear was perhaps a little bit for himself,but mostly for his brother [Crow]... . Y] ou know, [

### Durga and Eke] had something in mind here, and it's not the truth. 

### And ifthe truth gets in the way ofwhat it is that is of concern to them,then the truth is going to have to go away. And we see that over and over again, the State submits, in theirtestimony, in both oftheir testimony, notjust in one. 

### But at the same time, by considering their testimony in the light of all the other evidence you have, it is possible to glean the truth out of all ofthis. And when you hear Mr.Durga' s testimony,you heara constanttheme ofprotecting 

### mybrother. Onthe other hand,you know,thatdoesn'tmeanthatwe can necessarily trust Mr. Eke' s testimony, because we' re hearing the constant theme of him of 

### protecting himself. Butthat breakdown is repeated overand over again,you know, in the testimony ofboth ofthem. And that'sjust an example. But what can we glean from all of this testimony? Again, it' s the three of them. 

### They've all started down that road earlier in the day, reacting to learning aboutthe police taking ahold ofthat bat. And nowthis is the nextstep. And they' re all three part of it. And they can say oh, it' s the other two.... When anybody leaves that 

### camp to carry outthe act, it's all three ofthem. But, you know, the case needs to be evaluated on the basis ofthe evidence, 

### rationally considered onthe basis ofthe evidence, holdingthe Stateto its burden to prove every element of either alternative or any of these charges beyond a reasonable doubt. That's thewayoursystemworks. That'stheway itshould work. It has to work. And that's all I' m asking you to do, evaluate the facts. We' ve had a lot of lies on the stand from these individuals involved that we' ve heard about. But you can glean the truth. It' s there to be gleaned. It' s there to be seen. Put it together.

13No. 42926 - 8 -II 

### 8 VRP at 1296 -98, 1303, 1317, 1358. The State also argued its theory ofthe case regarding Crow' s specific acts ofviolence on the night ofthe murders, consistently referencing witness testimony. 

### 3. Alleged Suppression ofJailhouse Writings and the Handwriting Examiner's Report An inmate named Aaron Adams provided the State with jailhouse writings that Eke 

### allegedly wrote to him while both were injail. Thejailhouse writings created a conflict of interest between Adams.and Crow, both ofwhom were represented by the same trial counsel. Prior to trial, the trial court allowed trial counsel to withdraw from Crow' s case and transferred Crow' s case to a newtrial counsel. The newtrial counsel agreed that Crow' s prior attorney could transfer all ofthe State' s discovery directly to him. 

### Later, an inmate named Anthony McKague provided the State with additionaljailhouse 

### writings allegedlywritten by Eke. A handwriting expert examined thejailhouse writings along with Eke' s and McKague' s handwriting samples, and filed a report stating he could not determine who wrote the jailhouse writings. 

### Following Crow's conviction, Crow sent a letterto trial counsel requesting the 

### handwriting expert' s report and thejailhouse writings. Trial counsel responded in a letterwritten on February 29, 2011, stating that: 

### I do not have any hand writing expert reports, nor do I have letters purported to be from you or letters written purportedly by Aaron Adams or Anthony McKague 

### actually written by Brian Eke. I knowfor afact I did not receive any hand writing expert reports. Ifthere was one done, Assigned Counsel would have had to paythe expert who performed the analysis. 

### Since I had nothing to do with that analysis I have no record of it. Br. of Petitioner at Ex. 5. Based on this response, Crow alleges the State committed misconduct by failing to disclose the handwriting expert' s report.
14No. 42926 - 8 -II After Crow filed his PRP, trial counsel filed a declaration stating that the State properly provided him with all 

### discovery, and that upon reviewing his files, " it seems clear" that he was 

### aware ofthejailhouse writings at trial, particularly because he cross examined Eke regarding the

materials. Br. ofResp' t (App. Q, page2). Trial counsel also stated that some of Crow' s case file had been destroyed, and that he interpreted Crow's request as limited to handwriting analysis 

### ordered bythe defense, ratherthan by the State. B. Facts Related to Crow' s Ineffective Assistance ofCounsel Claims

1. Refusal To Request a Lesser Included Manslaughter Instruction 

### Because Crowwas very drunk on the night ofthe murders, thejurywas provided with an intoxication instruction, informing thejurythat it may considerthe effect ofvoluntary 

### intoxication on Crow's abilityto form intent. Trial counsel considered a lesser included manslaughter instruction, but decided:

W] ith this particular case, I couldn' t — and I've thought about this for a long time 

### about how anyfacts inthis case would fit into eitherthe reckless or negligence slot. And I can' t. 

### I have considered it seriously long, dwelled on it, in fact, but I can' tI just don't see how I would be able to propose those instructions. 7 VRP at 1184 -

85. 2. Refusal To Call Adams as a Witness Adams told trial counsel' s investigator that Eke promised Adams $ 15, 000 in exchange 

### fortestifying to facts beneficial to Eke. ButAdams also told trial counsel' s investigatorthat Crow informed Adams that "[ Crow] got in a fight with [Peterson] or [Miller] but when he left they were in the tent," and that Crow " knocked his ( ?)ass out and we drug him in the tent but he

was alright." Br. of Petitioner (Ex. 9, page 10). Crow wanted trial counsel to call Adams to
15No. 42926 - 8 -II 

### testify to Eke' s alleged bribery attempt. Trial counsel refused to call Adams despite Crow's insistence, believing that Adams' s testimony would not support Crow and would instead benefit the State.'°

3. Failure To Object to Shoe Print Evidence The trial court admitted testimony ofa shoe print examiner who had examined a shoe print found on one ofthe victim' s bodies. The examiner excluded Durga and Eke as the shoe print' s source, but could neither exclude nor confirm Crow as the shoe print' s source. Crow did not object to this evidence at trial. 4. Failure To Spend Sufficient Time Preparing Crow' s Case 

### Attrial, Crow alleged thattrial counsel spent insufficienttime reviewing Crow' s case with him. The record shows trial counsel signed the Thurston County Jail' s sign - in sheet two 

### times to talkto Crow. Crow claims trial counsel spent only two hours with him. The Thurston 

### County Jail does not require an attorneyto sign in priorto visiting their clients injail. C. Facts Related to Crow' s Erroneous Jury Instruction Claims 

### The trial court' sjury instruction 30 regarding unanimity on special verdict forms stated in relevant part: " 

### Ifyou are not unanimously satisfied beyond a reasonable doubt that `yes' is the correct answer to the question in a special verdict form, you must answer ` no' on that special
verdict form." CP at 88. 

### Crow did not take exception to any ofthe final instructions.



### to Crow claims in his reply brief,without citation,thattrial counsel told thejurythat Adams' s testimony would benefit the State. But trial counsel made this statement outside ofthejury's presence. 16No. 42926 -8 -I1 ADDITIONAL ANALYSIS III. PROSECUTORIAL MISCONDUCT 

### Crow argues the prosecutor committed misconduct by threatening Durga to compel him 

### to falsely testifyto Crow' s involvement in Miller's assault and murder, by providing his personal opinion in closing argument and by suppressing thejailhouse writings and the handwriting expert' s report. We disagree. 11

In a PRP, prosecutorial misconduct can constitute constitutional error or nonconstitutional error, depending upon the specific misconduct at issue. See State v. Emery, 174 Wn.2d 741, 756 - 59, 278 P. 3d 653 ( 2012); 

### In re Pers. Restraint ofPirtle, 136 Wn.2d 467, 485, 965 P.2d 593 ( 1998). Because we disagree with Crow' s assertions that prosecutorial misconduct occurred in his case, we need not decide which standard ofprejudice to applyto his prosecutorial misconduct claims. A. Alleged Threats To Coerce Durga To Provide Perjured Testimony 

### Crow argues the prosecutorthreatened Durga to compel him to falselytestify to Crow's involvement in Miller' s assault and murder. We disagree. 

### We treat unchallenged findings as verities. State v.Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 ( 2003). 

### After a reference hearing,the trial court found thatthe prosecutor did notthreaten Durga,and Crowdoes not challenge this finding.. Thus, the trial court's finding is averity, and we reject Crow's claim that the prosecutorthreatened Durga to compel him to falsely testify. 

### 11 The State argues that many ofCrow's claims should be dismissed because they do notfall under any of the reasons listed in RAP 16.4( c). See In re Pers. Restraint ofCook, 114 Wn.2d 802, 809, 792 P. 2d 506 ( 1990). We reject this argument because RAP 16.4(c)( 7) allows review of a claim wherever "[ o]ther grounds exist to challenge the legality ofthe restraint ofpetitioner."

17No. 42926 - 8 -II B. 

### Alleged Statements ofPersonal Opinion in the State' s ClosingArgument Crow next argues thatthe prosecutor committed misconduct by improperly providing his personal opinion during closing argument. We disagree. Prosecutors may not give their personal opinions regarding a witness' s credibility. State

v. Warren, 165 Wn.2d 17, 30, 195 P. 3d 940 ( 2008). But prosecutors have wide latitude to argue inferences from the evidence, which includes inferences regarding witness credibility. 165 Wn.2d at 30. We will not find prejudicial error absent a clear and unmistakable expression of personal opinion. 165 Wn.2d at 30. Crow cites a number of instances in the record where the prosecutor argued that Durga 

### and Eke' s testimony was not trustworthy. But in each instance, the prosecutor argued with 

### reference to Eke and Durga's testimony, not from personal opinion: Durga is a witness who is quite capable of implanting these little bits of fantasy. And I submit that you see evidence ofthat in a number ofaspects ofhis story about 

### the events orwhat happened on the eveningthat Mr. Miller and Mr.Peterson died." I]fthe truth gets in the way ofwhat it is that is of concern to them, then the 

### truth is going to have to go away. And we see that over and over again, the State submits, in their testimony, in both of their testimony, not just in one ... 

### by 

### considering [Durga and Eke' s] testimony, in the light ofall the other evidence you have, it is possible to glean the truth . . . . And when you hear Mr. Durga' s testimony, you hear a constant theme of protecting my brother.... We' ve had a lot of lies on the stand from these individuals involved that we' ve heard about. 8 VRP at 1296, 1298 1303 1358. Thus, we hold that the State argued from the testimony attrial, rather than from personal opinion. 

### Crow also challenges the State' s comments in closing argument that discussed Crow' s specific actions on the night ofthe murder. But the State made these arguments with direct, continuous, and explicit references to the evidence, particularly the testimony ofDurga, McKague, and Eke. See also 8 VRP at 1335 ( "[ T]he State submits that the evidence that I' ve
18No. 42926 - 8 -I1 just summarized, if you look at it taken as a whole, [ Mr. Crow] made Mr. Peterson unconscious. "). 

### Thus, the State did not improperly express its personal opinion during closing argument, but rather argued inferences from the evidence.12 C. 

### Alleged Suppression ofthe Jailhouse Writings and Handwriting Expert's Report Crow further argues the prosecutor failed to disclose evidence ofthejailhouse writings 

### and the handwriting expert's report. We disagree because Crowhas failed to state with particularity the factual allegations which, ifproven,would entitle him to relief

The State violates a criminal defendant' s due process right if it (1) suppresses evidence 

### that is (2) favorable to the defense and (3) material to guilt orpunishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963); see Strickler v. Greene, 527 U.S. 263, 281 -82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 ( 1999). Evidence is favorable to the defense if it is exculpatory or impeaching. 

### United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 ( 1985). 

### The State suppresses evidence by failing to disclose it,regardless ofwhether the defense requests it. Strickler, 527 U.S. at 280. 

### Here, the only evidence that Crow presents is trial counsel' s letter to Crow claiming trial 

### counsel did not have a handwriting expert's report or anyjailhouse writings in his case file. But trial counsel later filed a declaration explaining that he received all discovery existing from the State and Crow' s original counsel, and that he knew aboutthejailhouse writings during trial.

12 Crow also makes an ineffective assistance of counsel claim fortrial counsel' s failure to object to the prosecutor' s expression ofpersonal opinion on closing argument. Because the prosecutor did not express his personal opinion,trial counsel was not ineffective for failing to object on those grounds.

19No. 42926 - 8 -II 

### Trial counsel also correctly declared that he cross - examined Eke about thejailhouse writings and used one ofthejailhouse writings as an exhibit.

While trial counsel' s declaration confirms that he could not find thejailhouse writings or 

### handwriting expert' s report in his file, he also stated that he destroyed some ofCrow's case file. Crow does not point to any evidence thatthe documents were missing because the State failed to disclose them, rather than because trial counsel lost or destroyed them. Thus, because the record does not support Crow's factual allegations, and Crow has failed to showthrough affidavits or other forms of corroboration that competent and admissible evidence will establish the factual allegations, Crow' s claim fails. IV. INEFFECTIVE ASSISTANCE OF COUNSEL Crow next argues that trial counsel provided ineffective assistance. We disagree. In a PRP, when the petitioner establishes that he received ineffective assistance of counsel, he has necessarily met his burden to showthat a constitutional violation occurred, and thatthe violation caused actual and substantial prejudice. In re Pers. Restraint ofCrace, 174 Wn.2d 835, 846 - 47, 280 P. 3d 1102 (2012). We review ineffective assistance of counsel claims 

### de novo, using the two -

prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). 

### State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009); State v. McFarland, 127.Wn.2d 322, 334 - 35, 899 P. 2d 1251 ( 1995). 

### Underthe first prong, the petitioner must showthat trial counsel' s conduct was deficient, i.e., that it fell below an objective standard of reasonableness based upon all the circumstances. 127 Wn.2d at 334 - 35. 

### Our scrutiny oftrial counsel' s performance is highly deferential, employing a strong presumption ofeffective representation. 127 Wn.2d at 335 -36. To rebutthis

20No. 42926 -8 -II

presumption, the petitioner "bears the burden ofestablishing the absence ofany ' conceivable legitimate tactic explaining counsel' s performance. "' State v. Grier, 171 Wn.2d 17, 42, 246 P. 3d 1260 ( 2011) ( quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 ( 2004)). That a 

### strategy " ultimately proved unsuccessful is immaterial to an assessment ofdefense counsel' s initial calculus; hindsight has no place in an ineffective assistance analysis." 171 Wn.2d at 43. For ineffective assistance of appellate counsel, a defendant must demonstrate the merits of issues 

### counsel failed to argue or argued inadequately. In re Pers. Restraint ofLord, 123 Wn.2d 296, 314, 868 P.2d 835 ( 1994). 

### Underthe second prong,the petitioner must showthat counsel' s error caused him 

### prejudice, by showing a reasonable probability thatthe outcome ofthe trial would have been different absent trial counsel' s deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 ( 1987). Failure on either prong ofthe test is fatal to an ineffective assistance ofcounsel claim. Strickland, 466 U.S. at 697. We reject Crow' s ineffective assistance oftrial counsel

claims. A. Trial Counsel' s Refusal To Request a Lesser Included Manslaughter Instruction 

### Crow argues thattrial counsel provided ineffective assistance by failing to requestthat a lesser included instruction for manslaughter accompany the intentional second degree murder instruction, despite the evidence at trial that Crow was intoxicated. We disagree. 

### We granttrial counsel considerable deference in making the tactical decision ofwhether to ask for a lesser included instruction. Grier, 171 Wn.2d at 39. Our Supreme Court has held 

### that where a case' s facts lend support to even a remote possibility ofacquittal, it is a conceivable

21No. 42926 -8 -II



### legitimate strategyto avoid providing a lesser included instruction, so as to push thejury into an
all or nothing decision that could potentially result in a full acquittal. 171 Wn.2d at 43. 

### Here, there is at least a remote possibility Crow could have been acquitted on one or both murder charges. Thejury could have easily disbelieved the two primary eyewitnesses against 

### Crow (Eke and Durga) because they were complicit in the murder and made statements in their 

### testimony inconsistent with their prior statements to authorities. Thejury could have determined that reasonable doubt existed as to where Crow was at the time of one or both murders, and could have determined that there was reasonable doubt as to whether Durga or Eke murdered the victims without Crow' s assistance. Thus, trial counsel did not provide Crow with ineffective 

### assistance because trial counsel' s decision against requesting a lesser included manslaughter 

### instruction is supported bythe conceivable legitimate strategy ofpushing thejury into an all -or

### nothing decisionthat could potentiallyhave resulted in Crow'sfull acquitta1.13 B. Trial Counsel' s Refusal To Call Adams as a Witness Crow argues that trial counsel provided ineffective assistance by failing to call Adams as 

### awitness .

to impeach Eke' s credibility. We disagree. Trial counsel stated on the record that he did not call Adams because Adams' s testimony would benefit the State. This is a conceivable legitimate tactic in Crow' s case because Adams claimed that Crow told him that Crow fought with one ofthe victims at the crime scene. Thus, 

### calling Adams as awitness risks introducing testimony confirming that Crowwas atthe crime


### 13 Crow asks us to applythe three - prong balancing test from Statev. Ward, 125 Wn.App. 243, 104 P. 3d 670 (2004). 

### But our Supreme Court rejected Ward's three - prong test in Grier, 171 Wn.2d at 32, 35, 38.

22No. 42926 - 8 -II 

### scene. And while Adams' s testimony could have perhaps impeached Eke' s credibility, this 

### would have limited value because the State elicited a great deal oftestimony showing that Eke had been caught lying multiple times prior to testifying, and then challenged the credibility of 

### Eke' s statements while testifying. Thus, trial counsel' s decision against calling Adams was a tactical decision that did not constitute deficient performance. C. Trial Counsel' s Failure To Object to Shoe Print Evidence 

### Crow argues trial counsel provided ineffective assistance by failing to objectto the shoe print evidence' s admission because the shoe print examiner' s inability to conclude Crow made the shoe print rendered the evidence unfairly prejudicial under ER 403. We hold Crow did not demonstrate prejudice. 

### To show prejudice, apetitioner basing an ineffective assistance claim on counsel' s failure to objectto the admission ofevidence must show that (1) the trial court would likely have sustained the objection and (2) a more favorable outcome would have resulted absent that evidence. See McFarland, 127 Wn.2d at 337, 337 n.4. Evidence is admissible as relevant if it

makes any fact more likely than without the evidence. ER 401. " Although relevant, evidence 

### may be excluded ifits probative value is substantially outweighed bythe dangerofunfair prejudice." ER 403. Here, by excluding the two codefendants as the shoe print' s source, the shoe print . 

### analyst' s evidence made it more likelythat Crowwas the person who stepped on Peterson' s body. Thus, the shoe print evidence was relevant under ER 401. Because Crow's only challenge to the evidence, that it suggested that Crow stepped on Peterson, is the very reason the evidence was relevant, Crow cites no danger of unfair prejudice that would preclude the evidence' s

23No. 42926 - 8 -II

admission under ER 403. Thus, because the trial court would have admitted the evidence at the 

### conclusion ofa CrR 3.6 hearing on its admissibility, no prejudice resulted from trial counsel' s failure to ask for that CrR 3. 6 hearing. D. 

### Trial Counsel's Failure To Spend Sufficient Time Working on Crow' s Case Crow argues trial counsel provided ineffective assistance by spending insufficient time 

### working on Crow's case. We hold Crow has failed to state with particularity the factual allegations which, if proven, would entitle him to relief 

### Trial counsel had a duty to conduct a reasonable investigation ofthe case, or to 

### reasonably decide that certain investigations were unnecessary. In re Pers. Restraint of Davis, 152 Wn.2d 647, 721, 101 P.3d 1 ( 2004). 

### Crow's only evidence oftrial counsel's failure to spend sufficient time working on his case consists ofjail visitor logs showing that trial counsel signed in only twice to visit him. But Crow provides no evidence regarding the amount oftime that trial counsel spent on Crow' s case outside ofthejail. Thus, because Crow has failed to show through affidavits or other forms of corroboration that competent and admissible evidence 

### will establish the factual allegations, Crow's claim fails.14 V. UNCONSTITUTIONAL JURY INSTRUCTIONS 

### Crow arguesthejury instructions violated his constitutional righttojury unanimity. We disagree.

14 Because we reject Crow' s ineffective assistance oftrial counsel claims, we also reject the 

### related claims that appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel on direct appeal.

24No. 42926 -8 -II 

### We review the adequacy ofjury instructions de novo as a question oflaw. State v. Pirtle, 127 Wn.2d 628, 656, 904 P. 2d 245 ( 1995). 

### Jury instructions are sufficient ifsubstantial evidence supports them, they allow the parties to argue theirtheories ofthe case, and (when read as a 

### whole) they properly inform thejury ofthe applicable law. State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 ( 1998). A defendant has a constitutional right to a unanimousjury verdict. State v. Smith, 159 Wn.2d 778, 783, 154 P. 3d 873 ( 2007). Because an instruction that violates the defendant' s right 

### to unanimity is a constitutional error,the defendant must demonstrate actual and substantial prejudice to prevail. See WASH. CONST. art. I, §§ 21, 22; State v. Lamar, 180 Wn.2d 576, 583, 327 P. 3d 46 ( 2014); 

### State v. Watkins, 136 Wn.App. 240, 244, 148 P.3d 1112 (2006). A. Unanimity as to " No" on the Special Verdict Form 

### Crowargues thatjury instruction 30 was erroneous.15 We holdthat Crowhas failed to demonstrate actual prejudice.

Here,

### jury instruction 30 stated "[ 

### I]fyou are not unanimously satisfied beyond a reasonable doubt that `yes' is the correct answerto the question in a special verdict form,you

must answer ` no' on that special verdict form." ( Emphasis added.) Under this instruction, the 

### jury must answer no on the special verdictform in all situations where thejury cannot reach a unanimous decision that "yes" was the correct answer, even ifthejury failed to reach a 

### 15 Crow arguesjury instruction 30 misled thejury into believing that ithad to be unanimous asto no" before answering " no" on the special verdict form, by not including language specifically stating that the

### jury "did not have to be unanimous as to ` no ' to answer " no" on the special 

### verdict form. Br. of Petitioner at 19. Were this the case,jury instruction 30 would be in keeping with State v. Nunez,which encouraged instructions for special verdict forms that require thejury 

### to unanimously agree that "no" is the correct answer before answering " no" on a special verdict form. 174 Wn.2d 707, 718 -19, 285 P.3d 21 ( 2012). 25No. 42926 - 8 -II unanimous decision that "no" was the correct answer. Thus, additional language stating that the 

### jury does not have to unanimously agree that "no" was the correct answer to select "no" on the special verdict form would have been superfluous. Therefore, Crow has failed to show that the absence of such language caused actual and substantial prejudice. B. 

### Unanimity as to the Means ofSecond Degree Homicide 

### Finally, Crow arguesthatthejury instructions erroneously failed to require thejury to 

### unanimously agree onwhether Crow committed felony second degree murder or intentional second degree murder. We disagree.

Criminal defendants in Washington have a right to a unanimousjury verdict." State v. Ortega —

Martinez, 124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994). While thejury must be unanimous 

### as to which act or incident constituted the crime, thejury is not required to be unanimous as to 

### the legal means bywhich the defendant committed the crime (such as felony murderversus intentional murder), 

### as long as sufficient evidence supports each alternative on which evidence or argument was presented. Smith, 159 Wn.2d at 783. 

### When reviewing the recordfor sufficiency ofthe evidence, we askwhether, taking all 

### facts in the light most favorable to the State, any rational trier offact could find guilt beyond a

reasonable doubt. Salinas, 119 Wn.2d at 201. We draw all reasonable inferences in favor ofthe State and interpret them most strongly against the petitioner. 119 Wn.2d at 201. 

### RCW 9A.32.050 states that a person is guilty ofsecond degree murder in one oftwo
ways: a) With intent to cause the death of another person but without premeditation, he

or she causes the death of such person . or 

### b) He or she commits or attempts to commit any felony, including assault and, in the course of and in furtherance of such crime or in immediate flight
26No. 42926 - 8 -II therefrom, he or she, or another participant, causes the death ofa person other than one ofthe participants. 

### Former RCW 9A.08.020 ( 1976) states that an accomplice to a crime is guilty ofthe underlying
crime. See State v. Teal, 152 Wn.2d 333, 339, 96 P. 3d 974 ( 2004). Ifthejury is unanimous that the defendant was a participant in the crime and that the crime was committed, it is not necessary that thejury be unanimous that the defendant was a principal or an accomplice. 152 Wn.2d at 339. Former RCW 9A.08. 020(3)( a) states that a person is an accomplice if "[ w] ith knowledge that it will promote or facilitate the commission ofthe crime, he

i) solicits, commands, encourages, or requests such other person to commit it; or ii) aids or agrees to aid such other person in planning or committing it. 

### Eke' s testimony supported that Crow hit Miller in the face, followed immediately by 

### Durga putting Miller in a choke hold until Millerwas incapacitated and dragging his body into the campsite fire. The Olympia police found Miller's dead body in the campsite fire. This is sufficient evidence that Crow was an accomplice to Durga' s intentional murder of Miller (which 

### establishes intentional murder) orthat Crow committed afelony assaultthat allowed Durga to get Miller in a choke hold, causing Miller' s death ( which establishes felony murder). Thus, 

### sufficient evidence supports both intentional murder and felony murder in regards to Miller. 

### Eke's testimony attrial also supported that Crowput Peterson in a choke hold until Peterson was incapacitated, threw his body into the campsite fire, and stepped on his shoulders while Peterson was in the fire. The Olympia police found Peterson' s dead body at the campsite. 

### This is sufficient evidence that Crow intentionally strangled Peterson to death (intentional murder), 

### orthat Crow assaulted Peterson by strangling him,and thatthis assault caused his death

27No. 42926 - 8 -II 

### felony murder). Thus, because sufficient evidence supports both means for each ofthe two 

### murders, thejury did not have to be unanimous as to whether Crow committed intentional murder or felony murder for either murder. We denythe remainder ofCrow's petition.

We concur:

28