### 2m OCT hi i Q; C',

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of PARAMJIT SINGH BASRA, Petitioner. No. 73785-6- DIVISION ONE UNPUBLISHED OPINION

FILED: October 31, 2016 Appelwick, J. — Basra was convicted of first degree murder for killing his wife. This court affirmed the conviction. In a personal restraint petition, he alleges that his rights to be present, to have a public trial, to testify in his own defense, and to receive effective assistance of counsel were violated. We deny the petition.
FACTS Paramjit Basra was charged with first degree murder and second degree felony murder for killing his wife, Harjinder Basra. State v. Basra, noted at 178 Wn. App. 1003, 2013 WL 6199251, at*1-2. review denied, 180Wn.2d 1002,321 P.2d 1206(2014). At trial, Basra argued that his mental illness prevented him from being able to premeditate and form intent. Thejury found Basra guilty as charged. ]d_, at *2.No. 73785-6-1/2
The court imposed a standard range sentence on the first degree murder conviction and vacated the charge offelony murder. Id. Basra appealed, and this court affirmed the conviction. Id. at *2, *4. Represented by counsel, Basra filed a personal restraint petition.
DISCUSSION Basra contends that several errors require this courtto reverse and remand for dismissal or a new trial. Alternatively, he argues that we should remand for a reference hearing. A personal restraint petitioner must prove either a constitutional error that results in actual and substantial prejudice or a nonconstitutional error that constitutes a fundamental defect which inherently results in a complete 

### miscarriage of justice. In re Pers. Restraint ofMonschke, 160Wn. App. 479, 488, 251 P.3d 884 (2010). The burden is on the petitioner to prove the error by a preponderance ofthe evidence. ]d. The petitioner must support the petition with facts 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). Bald assertions and conclusory statements are not sufficient to entitle the petitioner to a reference hearing. Id. at 886. If allegations are based on matters outside the record, the petitioner must demonstrate that competent, admissible evidence would establish the facts. Id. And, ifthe allegations are based on the knowledge of others, the petitioner must 

### present theiraffidavits or othercorroborative evidence. ]± Ifthe petitionermakes this threshold showing, the court examines the State's response, which shouldNo. 73785-6-1/3 

### identify any material disputed questions offact. ]g\ Ifthere are material disputed issues of fact, then the trial court will hold a reference hearing to resolve the factual questions. Id at 886-87. I. Right to be Present 

### Basra argues that he was not present when several jurorswere excusedfor 

### hardship. He argues that conducting this proceeding in his absence violated his right to be present. And, he contends that he was denied his right to effective assistance of appellate counsel when counsel did not raise this issue on direct appeal. Criminal defendants have the rightto personal presence at allcritical stages of the trial. Rushen v. Spain, 464 U.S.114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 

### (1983). This constitutional right is rooted in the confrontation clause ofthe Sixth Amendment to the United States Constitution, but it is also protected by the Due Process Clause in situations where the defendant is not actually confronting the 

### witnesses orevidence againsthim. United States v. Gaqnon. 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). A defendant has a due process right to 

### be present where his presence has a reasonably substantial relation to his opportunity to defend against the charge, id Article I, section 22 of the Washington Constitution also explicitly guarantees therightto bepresent. Wash. Const, art. I, § 22. Basra contends thatthis case is controlled by State v. Irbv, 170 Wn.2d 874, 

### 246 P .3d 796 (2011). In irby, prospective jurors filled outquestionnaires. 170 Wn.2d at877. Thetrialjudge sent ane-mailtotheprosecutoranddefensecounselNo. 73785-6-1/4 suggesting that certain jurors be removed from the panel based on their answers to the questionnaires, jd at 877-78. Via e-mail, Irby's counsel agreed to release all of the jurors mentioned, and the prosecutor agreed to release seven of the ten. Id at 878. The judge sent another e-mail indicating that those sevenjurors would be excused. Id The minutes demonstrated that Irbywas in custody at the time of these e-mails, and the record did not show that Irby was consulted about the dismissal of thejurors, jd On appeal, the court held that conducting juryselection in this manner, with Irby absent, violated Irby'sright to be present. Id at 884. Here, the court began jury selection on February 6, 2012. Potential jurors 

### filled out a questionnaire that included questions about their prior jury service, connection with law enforcement and the legal system, priortestimony, and close friends or relatives who have been victims of similar crimes. Afterward, the court 

### identified the 39jurors who had indicated that it would be a hardship for them to serve. The court suggested that these jurors be dismissed so the parties could focus on the potentialjurors who were likely candidates for this case. The State 

### responded thatit had no objection, and Basra's counsel stated, "That's fine with us." Those 39 jurors were excused. The court then noted that a number ofotherpotential jurors could serve, but 

### they hadindicated on thequestionnaires that theywould like to speak outside the presence of the other jurors. These jurors were brought into the courtroom 

### individually. The court gave the attorneys the opportunity to examine thejurors. Several ofthesejurors were then dismissed.No. 73785-6-1/5

Basra argues that he was not present based on a statement appearing at the beginning ofthe transcript for that day: "(On February 6, 2012, with counsel for the parties present. . .)." The transcript does not note Basra's presence. Basra also offers his own declaration, in which he states that he reviewed a copy of the transcript after trial. He says, During that review, I discovered for the first time that my attorneys, the prosecutor, and thejudge metwithout me to excuse certainjurors for 'hardship.' I did not waive my right to be present at that part of my trial. Instead, if given a choice, I would have demanded to be present. In addition, Iwould likely not have agreed to excuse all of thejurors for cause. Basra refers generally to the challenged proceeding as "Hardship Excusals." But, the Irby court limited its holding to proceedings that test jurors' fitness to serve on a particular case, rather than examine jurors' general qualifications. 170Wn.2d at 882. Thus, the rightto be presentdid not attach when the court in this case dismissed 39 jurors for hardship. To the extent Basra challenges this portion of the proceeding, we conclude he was not denied the right
to be present. Basra does not explicitly claim he was absent for voir dire of individual jurors. Basra must do more than simply make conclusory allegations that he was not present during jury selection. See Rice, 118 Wn.2d at 886. He states in his declaration that he concluded he was not present solely after reviewing the transcript. But, he must present evidence showing that his factual allegations are notbased solely on speculation, conjecture, or inadmissible hearsay. Id The typeNo. 73785-6-1/6 of conjecture inBasra's declaration does not point to evidence that wouldsupport his allegations. Additionally, the State has offered evidence that contradicts Basra's 

### conclusory allegations. The State has provided the clerk's minute entry for the 

### February 6, 2012 hearing. Those minutes state, "Deft, respective counsel[,] and interpreters^] Sarbjit Singh and Santosa Wahl[,] are present in [cjourt." The abbreviation "Deft" and the listing of interpreters establish that Basra was in fact 

### presentduring thisproceeding. A referencehearing is therefore not necessary on
this issue. The burden is on Basra to prove an error by a preponderance of the 

### evidence. Monschke, 160Wn. App. at 488. Basra has failed to meet his burden. 

### Basra also argues that he was denied his right to effective assistance of 

### appellate counsel due to counsel's failure to raise this issue on his direct appeal. To succeed on a claim of ineffective assistance ofappellate counsel, Basra must 

### show the merit of the legal issue that counsel did not raise on appeal and also 

### show that he was prejudiced. In re Pers. Restraint ofNetherton, 177Wn.2d 798, 801,306P.3d918 (2013). Since the evidence does notsupport Basra's claim that he was absent during this proceeding, he fails to establish that it was errornot to raise this claim on direct appeal. II. Right to a Public Trial Basra also contends that he was denied his right to a public trial when the 

### trial court called threejurors into the courtroom individually for questioning about their questionnaires.No. 73785-6-1/7
Criminal defendants have the right to a public trial, which is guaranteed by both the state and federal constitutions. U.S. Const, amend. VI; Wash. Const. art. I, § 22. And, the Washington Constitution additionally guarantees the right of
a trial that is open to the public. Wash. Const, art. I, § 10. These provisions are 

### collectively referred to as the public trial right. State v. Love, 183Wn.2d 598, 605, 354P.3d841 (2015). 

### Washington courtsfollow a three step inquiry in public trial cases. Id First, the court determines whether a public trial right attaches to the proceeding, jd. 

### Then, ifthe right attaches, the court asks whether the courtroom was closed. Id 

### Lastly, the court asks if that closure was justified, jd The burden is on the defendant for the first two steps, and on the proponent of the closure for the third. id. 

### In Love, voirdire questioning occurred in open court, id at 602. Forcause 

### challenges were done at the bench, but on the record, id Counsel exercised peremptory challenges by passing a sheet ofjuror names between themselves, jd at 602-03. On appeal, Love argued thatthis procedure violated his right to a 

### public trial, id at604. The court disagreed, reasoning that while thepublic trial 

### right attaches tojury selection, Love had failed to show a courtroom closure, id at 605-06. Because noportion ofthe process was concealedfrom the public, the 

### public could scrutinize the entire jury selection process. Jd at 606-07. Thus, Love's right to a public trial was notviolated. Jd. at 607. 

### Similarly, in this case the public trial right attached to the proceeding in which individualjurors werequestioned. But, Basra has notdemonstrated thatthe courtroom was closed during this proceeding. He alleges that the court'sNo. 73785-6-1/8

statements to the individual jurors prior to examining them demonstrate that the courtroom was closed. After the jurors indicated that they wished to speak privately, the court called them in one at a time and permitted the attorneys to ask questions. The courttold eachjuror, "The attorneys have some questions for you 

### about your answers. What you tell us is just for the people in the room. And I'd 

### ask you not to talk about it to the otherjurors." From this language, it is clear that the court was informing the jurors that their conversations were closed to the other jurors. The court did not indicate thatthe courtroom was closed to any member of 

### the general public. Like in Love, anymember ofthe public could have observed the questioning, because no part ofit was conducted in private, jd at 607. The fact thatthis proceeding was on therecord further indicates thatitwas open to the public. See id. 

### Nonetheless, Basra argues that a reference hearing is warranted to determine whether the courtroom was actually closed. The record here is 

### insufficient to create a question of fact as to whether the courtroom was closed. 

### His conclusory allegation thatthecourtroomwasclosed does notmeritareference hearing. Basra has not met his burden to establish error by a preponderance of the 

### evidence. Accordingly, counsel'sdecision not to raisethis issue ondirect appeal was notineffective assistance of appellate counsel. See Netherton, 177Wn.2d at
801.No. 73785-6-1/9

III. Right to Testify Basra argues that he was effectively denied the rightto testify when counsel asked him a series ofquestions on a single topic. Heargues that the rightto testify must, at a minimum, include the right to testify to the basic, relevant facts of the 

### defense. In support of this argument, Basra provides his own declaration and the declaration of an experienced defense attorney. A defendant has a fundamental constitutional right to testify in his or her

own defense. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L. Ed. 

### 2d 37 (1987). On a federal level, the right totestify isimplicitly based in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, id The 

### Washington constitution explicitly protects therighttotestify. Wash. Const, art. I, 

### § 22. This fundamental right cannot beabrogated by counsel orthe court. State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999). Only the defendant, not 

### counsel, has the authority to decide whether or not to testify. State v. Thomas, 128Wn.2d 553, 558, 910P.2d 475 (1996). Adefendant's righttotestify isviolated ifthefinal decision nottotestify was made against the defendant's will. Robinson, 138Wn.2dat763. This court reviews claims of denial of the right to testify as ineffective 

### assistance of counsel arguments, id at 765-66. To succeed on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel's 

### representation was deficient in that it fell below an objective standard of reasonableness, and (2) this deficient representation prejudiced the defendant, 

### meaning that there is a reasonable probability that the result of the proceedingNo. 73785-6-1/10

would have been different absent counsel's errors. State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Basra testified in his own defense at trial. Defense counsel asked a series of questions, all having to do with Basra's turban. Counsel asked when Basra began wearing a turban, whether he wears one every day, and ifthe turban is an important part of his religion. Counsel also asked whether Basra was wearing a turban on the morning of July 27, 2009 and what color that turban was. Basra replied that he was wearing a turban, but he did not remember its color. He said that several police officers reported that the turban was orange, another officer stated that itwas red, and the photographs from the time he was arrested showed that it was either maroon or brown. The State asked Basra one question: "You 

### killed yourwife?" Defense counsel objected to this question as outside the scope of direct, and the court sustained the objection. Here, Basra cannot show deficient performance. Basra was not denied the 

### righttotestify. He insistedthat hewished totestify, and his attorneysprovided him that opportunity. Counsel did not prevent Basra from testifying. Additionally, while the questions about Basra's turban may seem irrelevant, the record reveals thatthis issue was very importantto Basra. He wrote a letter to the court explaining that he had identified the police officers' inconsistent statements and urged his attorney to investigate the color of his turban, but she did not do so. He emphasized his belief that if the officers were lying about or could not recognize the color of his turban, their testimony could not be admissible.

10No. 73785-6-1/11 

### By examining Basra about histurban, counsel gave Basra an opportunity to speak

on an issue ofgreat importance to him. Further, counsel's performance is not deficient if it can be characterized as 

### legitimate trial strategy ortactics. State v. Grier, 171 Wn.2d 17, 33, 246P.3d 1260 

### (2011). Dr. Vincent Gollogly testified as to Basra's report of depression and Basra's memory of the day of the killing. Had Basra testified to recount what 

### happened on that day, he would have opened the door to cross-examination 

### regarding any inconsistencies in his statements. Considering this, it was not 

### objectively unreasonable for Basra's counsel todevelop a strategy that relied on Dr. Gollogly rather than Basra to tell his story. 

### Basra argues that a reference hearing is necessary for prejudice to be assessed. But, he has failed to allege facts that show counsel's performance was deficient. Therefore, we do not need to reach the question ofprejudice. See In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012) ("We need 

### not consider both prongs ofStrickland (deficient performance and prejudice) if a 

### petitionerfails on one."). We hold that Basrawas notdenied the rightto testify.
IV. Failure to Investigate 

### Basra argues that hereceived ineffective assistance oftrial counsel when counsel did not investigate medical factors that contributed to Basra's mental illness. Basra contends that he urged counsel to seek blood testing tocorroborate his mental illness, but counsel did not do so until months after the murder. And, 

### healleges that counsel failed to provide theseresults to the expert witness. He

11No. 73785-6-1/12

asserts that this error prejudiced him, because he had a thyroid disorder, which is medically linked to depression. 

### Counsel's performance is given a strong presumption of effectiveness, in

re Pers. Restraint of Davis, 152Wn.2d647, 673, 101 P.3d 1 (2004). To determine 

### whether counsel's performance is deficient, the court must consider whether counsel's assistance was reasonable considering all ofthe circumstances. In re Pers. Restraint of Brett, 142 Wn.2d 868. 873, 16 P.3d 601 (2001). To provide adeguate assistance, counsel must conduct a reasonable investigation that would enable counsel to make informed decisions aboutthe best method ofrepresenting 

### the client, id Ineffective assistance claims based on the duty to investigate must 

### be assessed in light ofthestrength ofthe State's case. Davis, 152Wn.2d at722. 

### Failing to investigate medical evidence that is relevant to developing an 

### informedtheoryof thecasecanfall belowanobjectivelyreasonable standard. See Brett, 142Wn.2d at 880; State v. Fedoruk, 184Wn. App. 866, 883, 339 P.3d 233 

### (2014). For example, in Brett, defense counsel knew that Brett had a history of physical and mental health problems. 142Wn.2d at880. Medical evidencewould have been available at the time of trial preparation if defense counsel had 

### reasonably investigated, id But, defense counsel did not seekto retain amental health expert untiljustonemonth before thetrial, id at878. That expert did not receive the defendant's medical records until two days before trial, id And, the 

### expert was not qualified torender anexpert opinion on the subjectfor which he wasretained, jd In Fedoruk, thedefendanthad ahistory ofserious mental illness 

### and had previously been found not guilty by reason ofinsanity on several felony

12No. 73785-6-1/13 charges. 184Wn.App. at 885. Yet, defense counsel did not retain a mental health 

### expert or otherwise have Fedoruk's mental healthcondition evaluated until the day before jury selection. Jd at 881-82. Given the State's strong circumstantial evidence against the defendant, counsel's failure to obtain an expert evaluation

was unreasonable, id at 882. 

### The facts here are distinguishable. Here, Basra's trial counsel investigated his mental health conditions. Counsel retained an expert, Dr. Gollogly. Dr. 

### Gollogly examined Basra and diagnosed him with depression. Medical evidence 

### showing that Basra'sdepression was causedby athyroid disorder, while relevant, would have merely corroborated Basra's self-report by showing that Basra's 

### symptoms were consistentwith athyroid disorder. It would not have necessarily changed the diagnosis. Neitherthe diagnosis northe causewas atissue attrial. Rather, the issuewaswhetherBasra'sdepression interfered with his abilitytoform intent. Counsel conducted a reasonable investigation by retaining an expert who 

### examined Basra. Weconclude that counsel'sperformance was not deficient.1
V. Closing Argument 

### Basra argues that his trial counsel provided ineffective assistance of counsel by conceding that Basra was guilty of manslaughter without his 

### permission. Basra argues that this error entitles this court to automatically find

1 Because we conclude that counsel's performance was not deficient, we 

### need notreach thequestion ofprejudice. See Crace, 174Wn.2d at 847. However, we note that the State's expert also concluded that Basra suffered from acute 

### depression. The cause of this depression was not at issue, only whether it prevented Basrafrom forming theintenttocommitthecrime charged.

13No. 73785-6-1/14 prejudice and overturn his conviction. Alternatively, he contends that this claim should be remanded for a reference hearing. Defense counsel began closing argument by stating, "Guilty. Guilty. That's the finding that we think this jury is going to make." He continued, "The next question, though, is: Guilty of what?" Counsel clarified, Now, let me make it clear, our position as Defense is that Mr. Basra is not guilty, not guilty of any of the crimes, not guilty as 

### charged, or of any of the lesser offenses, based on him having mental illness at the time, on July 27th, based on the mental illness 

### interfering with his ability to form intent, and to form premeditated intent to murder his wife. 

### But, counsel recognized thatthejury mightfind that Basra isguilty ofmanslaughter in the second degree. Counsel returned tothis theme at the end of hisargument, 

### telling thejury thatwhile this seems like a complicated case, at the endit comes down to the fact that a man suffered from mental illness and it resulted in his wife's death. Counsel concluded, 

### You folks can just go ahead and just go back there and just 

### be, like, notguilty. Okay, that's fine. That's what ourfirst position would be. That's what we prefer. Butyou're going to give itsome 

### thought. You can spend awhole bunch oftimetrying tograpplewith all ofthese different] theories the Prosecution's thrown out there. Premeditated, intentional, reckless, you know, felony murder, 

### felony murder underreckless, felony murder strangulation: You can 

### justrejectall ofthatifyou want. You canjustput 'notguilty' onthere. Go ahead and fill in 'guilty' on the Manslaughter in the Second Degree, and you'll be done. Counsel offered two alternatives for the jury: preferably, the jurywould find Basra 

### not guilty, because his mental illness interfered with his ability to form intent, but

14No. 73785-6-1/15 otherwise, the jury should stop at finding him guilty ofmanslaughter in the second degree. Counsel's performance is strongly presumed to be reasonable. Grier, 171 Wn.2d at 33. Where counsel's conduct can be characterized as legitimate trial 

### strategy or tactics, performance is notdeficient, jd A defendant may rebut the presumption that counsel's performance was notdeficient by demonstrating that there is no conceivable legitimate tactic explaining counsel's performance. State

v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Incertain circumstances where the evidence of guilt on a particular charge 

### is overwhelming, counsel may concede guilt of that charge to thejury. State v. 

### Silva, 106Wn. App. 586, 596, 24 P.3d 477 (2001); State v. Hermann, 138Wn. 

### App. 596, 605, 158 P.3d 96 (2007). Conceding guilt can be a sound trial strategy when the evidence ofguilt is overwhelming and the charge in question is a lesser 

### charge, sothere is anadvantage to begained. Silva, 106 Wn. App. at596. The attorney does not need to consult with the client before pursuing this kind of strategy, jd Where a concession is a sound trial strategy ortactic, it does not constitute deficient performance. Hermann, 138Wn. App. at 605. 

### Here, counsel did not concede guilt entirely on the manslaughter in the 

### second degree charge. Counsel emphasized multiple times that the defense's primary position was thatBasra was not guilty. However, evenifwewere to treat counsel's statements as concedingguilt, Basra has shown no error. The evidence that Basra killed his wife was overwhelming. His daughter, who witnessed the 

### killing, testified. Basra, 2013 WL 6199251, at*1. The Stateplayed a recording of

15No. 73785-6-1/16

her calls to 911, in which she said that Basra was "beating" Harjinder, that he tried to kill Harjinder by "pushing her neck," and that "he grabbed a rope and just put it on my mom's neck." id The police officers who arrived at the scene testified as to Basra's statements to them: "Ah, ah, the problem is I killed my wife. She's in the room to the right;" "I have family problems;" and "She has problems with men,

so I killed her." The issue was whether he was capable of forming the intent to commit a crime. Manslaughter in the second degree was the least serious charge that Basrafaced, and a conviction on this charge required only criminal negligence. 

### Conceding guilt on this charge would have been consistentwith Basra's defense thatdue to his mental illness, he could not formthe requisite intent forpremeditated intentional murder, intentional murder, or intentional assault. We conclude that to 

### the extent counsel admittedguilt of manslaughter in the second degree, it was in accordance with a sound trial strategy, and did not constitute deficient 

### performance. Therefore, we deny Basra's claim ofineffective assistance. We deny the petition.

WE CONCUR: 

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