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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

LAWRENCE P. SHANDOLA,

Petitioner,

v.

HAROLD CLARKE,

Respondent.

Case No. C05-5840RBL

REPORT AND

RECOMMENDATION

NOTED FOR:

JULY 21st, 2006

This Habeas Corpus Action has been referred to the undersigned Magistrate Judge pursuant

to Title 28 U.S.C. §§ 636(b)(1)(A) and 636 (b)(1)(B) and Local Magistrates' Rules MJR 3 and MJR

4. Petitioner in this action is seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. 

Petitioner is represented by counsel.

INTRODUCTION

Petitioner is in custody pursuant to a Pierce County conviction for first degree premeditated

murder. He was sentenced after a jury trial and the court sentenced him at the high end of the

standard range. Petitioner received 320 months plus a 60 month gun enhancement for a total of 380

months. (Dkt. # 11, Exhibit 1). Petitioner was sentenced on September 7th, 2001. (Dkt. # 10). 

After review of the record the court concludes the sole issue raised in this petition, an alleged

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violation of petitioner’s Sixth and Fourteenth Amendment right to present a case, is without merit

and petition is not entitled to relief.

FACTS

The Washington State Court of Appeals summarized the facts as follows:

At about 5:40 p.m. on September 11, 1995, Robert Henry was shot multiple

times at close range in a parking lot outside of his office by an unidentified shooter.

Henry died of his wounds. Many witnesses heard the shooting and several observed a

suspect wearing dark clothing and a mask; the suspect immediately left the parking lot

on a black motorcycle.

Upon learning of the homicide, Paula Henry, Henry’s wife, called police and

identified Shandola, her co-worker and Henry’s former business partner, as a possible

suspect. The police questioned Shandola that evening on the front porch of his home.

Shandola denied knowledge of the homicide, stating that he had been repairing his

house all day.

Near the same time, police found shotgun shells at the crime scene. And in

April 1998, a shotgun was found under blackberry bushes on a hill near the parking

lot where Henry died. The State linked the shotgun to the crime scene, but could not

directly connect the weapon to Shandola.

Before the police completed their investigation, two potential witnesses died.

Jason Graham, who had provided the police with a description of a car parked near

the crime scene, died in a car accident in August 1996. And Roscoe Buffington, who

had told police about seeing Shandola at his home on the day of the crime, died in

July 1998.

On January 23, 2001, the State charged Shandola with first degree murder for

Henry’s homicide. The trial court denied Shandola’s motions to suppress evidence

and to dismiss the charge based on alleged discovery violations, and the matter

proceeded to trial on July 2, 2001. Sixty four State witnesses and eighteen defense

witnesses testified.

James Graham, Jason Graham’s father, testified about the silver blue

Mercedes that he and his son had observed near the crime scene in the early afternoon

of Henry’s murder, a vehicle that was very similar in appearance to the Mercedes

Shandola owned. Henry’s widow and his former acquaintances described the conflict

between Shandola and Henry that arose out of their former business partnership. The

dispute between Henry and Shandola culminated in a 1993 New Year’s Eve

altercation where Shandola punched Henry. Henry later sued Shandola, seeking a

judgment to recover his medical damages.

Some of Shandola’s co-workers testified that soon after the homicide,

Shandola offered to sell them a shotgun and another co-worker who had cooperated

with the police investigation testified that Shandola had threatened him. Paula Henry

testified that she had obtained a restraining order against Shandola for harassing her

after Henry’s death.

Shandola presented an alibi defense, asserting, contrary to his earlier statement

to the police, that he was at the home of a friend, Reta Peck, at the time of the

murder. The jury rejected the defense and found Shandola guilty as charged. The

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court then denied Shandola’s motion for arrest of judgment or, alternatively, for a

new trial and, instead, sentenced him to 380 months in prison.

(Dkt. # 11, Exhibit 14).

PROCEDURAL HISTORY

On direct appeal Mr Shandola raised twelve issues:

(1) The trial court erred when it denied Mr. Shandola’s motion to dismiss because

of the State’s delay in filing the murder charge.

(2) The trial court erred by not allowing into evidence Jason Graham’s and

Roscoe Buffington’s statements.

(3) The trial court erred in denying Mr. Shandola’s motion to suppress evidence

obtained from the search of Mr. Shandola’s home and workplace.

(4) The court erred by not granting Mr. Shandola’s out-of-court

statements made on September 11, 1995 because the police did not

inform Mr. Shandola of his Miranda rights.

(5) The trial court erred by not granting Mr. Shandola’s motion to dismiss for

discovery violations and destruction of evidence.

(6) The trial court erred in allowing Robert Reinhard’s testimony regarding the

civil lawsuit between Mr. Henry and Mr. Shandola.

(7) The trial court erred by denying defense expert testimony regarding plea

bargain.

(8) The trial court erred by not requiring the State to file a bill of particulars.

(9) The trial court erred by admitting ER 404(b) evidence absent any exception

and by admitting irrelevant and prejudicial evidence.

(10) The trial court erred when it denied Mr. Shandola’s post-trial motions to

arrest judgment.

(11) The trial court erred by denying Mr. Shandola’s motion for a new trial

pursuant to CrR 7.6(a)(5), (6), (7), and (8).

(12) The trial court should reverse the convictions because the errors taken

together prejudiced Mr. Shandola’s right to a fair trial.

(Dkt. # 11, Exhibit 11 pages i through iv). On February 3rd, 2004 the Washington State Court of

Appeals affirmed the conviction and on April 2th, 2004 the court amended the opinion slightly. 

(Dkt. # 11, Exhibits 14 and 16).

Petitioner filed for discretionary review and raised the following issues:

(1) Jason Graham’s and Roscoe Buffington’s statements are admissible pursuant

to ER 803(a)(5) and the doctrine of completeness.

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(2) Mr. Shandola established prejudice in the State’s delay in filing the murder

charge.

(3) A search warrant may only be issued based upon probable cause and issued by

a neutral and detached magistrate.

(4) The consciousness of guilt exception to ER 404(b) requires a showing of

some affirmative conduct suggesting guilt.

(Dkt. # 11, Exhibit 17). On January 4, 2005, the Washington Supreme Court denied review without

comment. (Dkt. # 11, Exhibit 18).

At the Federal Habeas Corpus level Mr. Shandola presents the court with only one issue. He

contends he was denied his right to present a defense in violation of his Sixth and Fourteenth

Amendment rights by the trial court’s exclusion of Jason Graham’s and Roscoe Buffington’s out of

court statements. (Dkt. # 1, pages 3 and 4). Jason Graham and Mr. Buffington are the two

witnesses who died prior to trial.

EVIDENTIARY HEARING

If a habeas applicant has failed to develop the factual basis for a claim in state court, an

evidentiary hearing may not be held unless (A) the claim relies on (1) a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court that was previously

unavailable, or there is (2) a factual predicate that could not have been previously discovered through

the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error, no reasonable fact finder would

have found the applicant guilty of the underlying offense. 28 U.S.C. §2254(e)(2) (1996). 

Petitioner's claims rely on established rules of constitutional law. Further, petitioner has not set forth

any factual basis for his claims that could not have been previously discovered by due diligence. 

Finally, the facts underlying petitioner's claims are insufficient to establish that no rational fact finder

would have found him guilty of the crime. Therefore, petitioner is not entitled to an evidentiary

hearing.

STANDARD

Federal courts may intervene in the state judicial process only to correct wrongs of a

constitutional dimension. Engle v. Isaac, 456 U.S. 107 (1983). Section 2254 is explicit in that a

federal court may entertain an application for writ of habeas corpus “only on the ground that [the

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petitioner] is in custody in violation of the constitution or law or treaties of the United States.” 28

U.S.C. § 2254(a)(1995). The Supreme Court has stated many times that federal habeas corpus relief

does not lie for errors of state law. Lewis v. Jeffers, 497 U.S. 764 (1990); Pulley v. Harris, 465 U.S.

37, 41 (1984); Estelle v. McGuire, 502 U.S. 62 (1991). 

Further, a habeas corpus petition shall not be granted with respect to any claim adjudicated

on the merits in the state courts unless the adjudication either (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, as determined

by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). A

determination of a factual issue by a state court shall be presumed correct, and the applicant has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.

§2254(e)(1).

DISCUSSION

A. Exhaustion.

Respondent concedes the issue has been exhausted and the court will consider the issue on

the merits. (Dkt. # 10).

B. Admission of Evidence.

A trial court has wide discretion in admitting or excluding evidence and will not normally be

overturned absent abuse of discretion. Petitioner has the burden of proving abuse of discretion. 

Washington v. Demery, 144 Wn.2d 753, 758 (2001). 

On the date of the murder, September 11th, 1995, Jason Graham and his father, James

Graham, had lunch together some time between 1 P.M. and 3 P.M.. After lunch they returned to his

fathers place of work, Livingston Metals. While in the parking lot both Jason and his father observed

an occupied blue Mercedes parked across the street from them. (Dkt. # 11, Exhibit 6, verbatim

transcript testimony of James Graham). The Mercedes was parked where the occupant could

observe the North Coast Electric building parking lot. The victim, Robert Henry, owned and worked

at North Coast Electric. After about twenty minutes the Mercedes made a U-turn and left the area. 

(Dkt. # 11, Exhibit 6, verbatim transcript testimony of James Graham). 

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Jason specifically recalled the Mercedes having damage on the passenger side, a “crease”. 

The day after the murder Mr. Graham and his son approached detectives at the crime scene and gave

the detectives information about the blue Mercedes including giving taped statements, The

information included telling the detective about the car having damage to the passenger side. Seven

days later detectives took Mr. Graham and Jason to an impound lot where Mr. Graham identified a

blue Mercedes as the car they had seen. (Dkt. # 11, Exhibit 6 verbatim report testimony of James

Graham). The Mercedes belonged to Petitioner. The passenger side door had a frisbee shaped

“crease.” James Graham was unequivocal in identifying the car in the parking as the same car he had

seen the day of the murder. (Dkt. # 11, Exhibit 6 verbatim report testimony of James Graham). 

According to petitioner, Jason Graham believed the car he saw the day of the murder was a

darker blue, and had a broken windshield as well as damage on the passenger side. Petitioner asserts

Jason would have testified the car in the parking lot was not the same car. (Dkt. # 2). Petitioner

references “CP 831 in his brief but does not provide the document for the court.” (Dkt. # 2, page ,

page 3). Jason Graham died in a car accident August 13th, 1996. 

Roscoe Buffington was petitioner’s neighbor. Mr. Buffington was interviewed by detectives

the day after the murder. Mr. Buffington remembered seeing petitioner working on his home at

approximately 1 p.m. on the day of the murder. (Dkt. # 1). Mr. Buffington did not give a taped

statement and his statement to police was summarized by a detective in a written police report. 

(Dkt. # 10, page 11). Mr. Buffington died prior to trial. 

Mr. Shandola testified he worked on his house in the afternoon and around 5 P.M. went to

the home of a friend, Reta Peck. (Dkt. # 14). Reta Peck testified that on the night of the murder

Mr. Shandola watched television with her from about 5:20 P.M. until about 7:30 P.M. (Dkt. # 11,

Exhibit 8, verbatim report, testimony of Reta Peck). The jury rejected the alibi defense and found

petitioner guilty. 

The Washington Court of Appeals analyzed the Superior Court decisions regarding the

admissibility of evidence and held:

Shandola challenges the court’s reliance on the hearsay rule to exclude written

summaries of witness statements that Buffington and Jason Graham allegedly made to

the police.

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Hearsay, an out of court statement offered for the truth of the matter asserted,

is generally inadmissible absent an applicable exception, ER 801 (c); ER 802. The

purpose of the rule is to preserve the integrity of the court and the veracity of witness

statements. Nordstrom v. White Metal Rolling & Stamping Corp, 75 Wn.2nd 629,

632 (1969).

On September 11, 1995, Buffington told police detectives that he saw

Shandola working on his house earlier that afternoon. The police wrote a summary of

the statement in a police report.

On September 13th, 1995 James and Jason Graham gave Detective Jim

Williams a tape recorded statement about the Mercedes they saw in the afternoon of

September 11, near the site of Henry’s homicide. On September 20, Williams took

James and Jason Graham to Shandola’s car, which was in police custody, and asked

them to compare the observations of the car they saw on September 11 with

Shandola’a car. Williams summarized the September 20 statements in a police report. 

The trial court excluded the written summaries of Jason’s September 20

statement and Buffington’s statement as inadmissible hearsay. But it relied on the ER

803 (a)(5) hearsay exception for a recorded recollection to admit the portion of

Jason’s September 13 statement in which he describes a dent he observed in the

parked Mercedes. Shandola argues that Jason’s September 13 and September 20

statements and Buffington’s statement were admissible under ER 803 (a)(5), and that

Jason’s September 20 statement was admissible under the exception to the hearsay

rule for present sense impressions. 

1. ER 803 (a)(1)- Present Sense Impression.

Shandola argues that the court should have admitted Jason’s September 20

statement to detective Williams under ER 803 (a)(1), which contains an exception to

the hearsay rule for comments describing present sense impressions made very close

in time to the perceived event. See State v. Martinez, 105 Wn.App. 775, 783 20 P.3d

1062 (2001). But Jason’ September 20 statement comparing the car he saw on

September 11 to the car he observed on September 20 was made nine days after he

saw the Mercedes parked at the crime scene. At the crux of the September 20

statement was the earlier observation, the statement does not fit within the exception

for present sense impressions. 

Shandola offered Jason’s unrecorded, unsworn September statement to prove

the truth of the matter. It clearly was hearsay and Shandola has not shown any

exception to the hearsay rule applies.

2. ER 803(a)(5) - Recorded Recollection

In certain circumstances, a recorded recollection is admissible evidence under

ER 803 (a)(5). The declarant’s availability to testify is not dispositive; however, the

record must satisfy four factors set forth in Alvarado:

(1). The record pertains to a matter about which the witness once

had knowledge;

(2). The witness has an insufficient recollection of the matter to

provide truthful and accurate trial testimony;

(3). The record was made or adopted by the witness when the matter was

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fresh in the witness’ memory; and

(4). The record reflect the witness’ prior knowledge accurately.

89 Wn. App. 543, 548 949 P.2d 831 (1998).

A trial court determines the fourth element on a “case-by-case basis” by

examining the “totality of the circumstances,” which includes the following factors:

“(1) whether the witness disavows accuracy; (2) whether the witness averred

accuracy at the time of making the statement; (3) whether the recording process is

reliable; and (4) whether other indicia of reliability establish the trustworthiness of the

statement.” Alvarado, 89 Wn. App. At 551-552.

Here, Buffington’s statement and Jason’s September 20 statement do not

satisfy Alvarado’s fourth foundational requirement. Both statements are contained in

police reports and merely reflect a detectives interpretation of the declarants’

observations. As both statements are unsworn, unsigned, and not a tape recording. 

They lack any indicia of reliability.

Shandola asks us to overlook the lack of formal indicia of reliability because

the “seasoned” detectives who gathered the statements could have testified to the

accuracy of the statements and because there is “no indication” that Buffington or

Jason disavowed their statements. Br. of Appellant at 78. But that is insufficient to

make the required affirmative showing of an accurate recording. See State v.

Derouin, 116 Wn. App. 38, 46-47, 64 P.3d 35 (2003) (finding a tape recorded

statement “more reliable than cases where an officer writes out the statement after

discussing its contents with the witness.”). Thus, the trial court did not abuse its

discretion in excluding both statements.

We agree, however, that the taped recording of Jason’s September 13

statement, unlike the two statements summarized in the police reports, does meet 

Alvarado’s foundational requirements. Shortly after the incident, Jason told the

police about seeing the Mercedes in the parking lot and his father, James Graham,

affirmed Jason’s statements through his video deposition that was presented to the

jury. Both Jason and James provided detailed information, such as a description of

the damage to the Mercedes and the way the car exited the parking lot. 

Thus, Jason’s September 13 statement was admissible as a recorded

recollection under ER 803(a)(5). But the trial court allowed only those portions of

the statements related to Jason’s observation of a dent on the Mercedes and it did so

only to provide context for James Graham’s video deposition about the dent. The

trial court stated:

The concern that I have is that Jim Graham, his testimony, in the

deposition that was presented, made a statement about the information

to the dent on the vehicle. And that information is not coming from

his own observations.

.....

I think it would be prejudicial to not allow the portion of the testimony

of Jason Graham - - portion of the recorded statement of Jason

Graham to come in and explain the dent hat he observed, because that

was a critical part of the father’s testimony. And helped identify the

vehicle in the mind of the father.

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9 RP at 2316.

Although Jason’s September 13 statements are generally duplicative of his

father’s testimony, only Jason mentioned that the Mercedes had a cracked windshield.

Thus, the trial court erred in limiting the admission of Jason’s September 13

statement.

A trial court’s evidentiary errors are harmless when a reasonable person can

conclude that the wrongfully omitted evidence “is of minor significance in reference

to the overall, overwhelming evidence as a whole.” State v. Bourgeois, 133 Wn.2d

389, 403, 945 P.2d 1120 (1997) (citation omitted); see also Carleton, 82 Wn.App at

686-87. A reasonable person could so conclude here.

Except for stating that the Mercedes has a cracked windshield, Jason’s

September 13 statement was cumulative and consistent with James Graham’s

September 13 statement and video deposition testimony. Both father and son

observed the car at the same time and discussed the Mercedes’ color and how the car

exited the parking lot; both their statements contained ambiguities and inconsistencies

about the Mercedes; and neither could identify the vehicle’s driver.

James Graham did not notice any damage to the Mercedes but he recalled in

his video deposition that Jason had observed a dent in the car. James Graham could

not clarify if the car was a four-door or two-door sedan but the jury viewed numerous

photos of Shandola’s Mercedes and had the opportunity to compare these photos to

James Graham’s statements.

Finally, the connection between Shandola’s Mercedes and the Mercedes that

Jason and James Graham observed at the crime scene was only a small portion of the

evidence that the jury considered. The jury also heard extensive evidence about

Shandola’s motive and opportunity to kill Henry; about the civil law suit between

them; and about Shandola’s conduct toward Paula Henry. The exclusion of Jason’s

recollection about the cracked windshield was not prejudicial and, thus was harmless.

(Dkt. # 11, Exhibit 14, pages 20 to 23). 

This was the last reasoned ruling on this matter in the state court. This court can grant relief

in Habeas only if the last reasoned ruling was a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the Supreme Court; or

resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented to the state courts. 28 U.S.C. §2254(d). 

This court has reviewed the record presented by respondent and concurs with the

Washington State Court of Appeals. (Dkt. # 11, Exhibits 3 to 10). In the context of all the evidence

presented to the jury the exclusion of Jason Graham’s taped statement indicating the Mercedes had a

cracked windshield was harmless error. The jury heard in great detail about the relationship between

the Henrys and Mr. Shandola. (Dkt. # 11, Exhibits 3 to 10). The record shows overwhelmingly

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that there was motive, opportunity, and evidence of premeditation to kill Mr. Henry. 

Mr. Shandola had attempted on a number of occasions to hire co-workers to injure Mr.

Henry. (Dkt. # 11, Exhibits 3 to 10). He had told co-workers he would kill Mr. Henry rather than

pay the judgement he owed on a civil suit. (Dkt. # 11, Exhibit 4, page 880). After the murder he

asked a co-worker if he wanted to buy a shot gun. Further, Mr. Shandola owned a flat black

motorcycle, like the one seen leaving the crime scene. (Dkt. # 11, Exhibits 3 to 10). In addition,

evidence about Mr. Shandola’s conduct toward Ms. Henry after the murder was placed before the

jury.

In lights of the evidence presented this court cannot conclude the Washington Court of

Appeals decision finding the evidentiary omission harmless error was an unreasonable application of

clearly established federal law. Nor can this court say the Washington Court of Appeals ruling was

unreasonable in light of the evidence presented to the state court. Accordingly this petition should

be DISMISSED.

CONCLUSION

This petition is should be DISMISSED for the reasons stated in the Report and

Recommendation. A proposed order accompanies this report and recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.

R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on July 21st 2006, as noted in the

caption. 

DATED this 29th day of June, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate 

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