Personal Restraint Petition Of: Hoyt William Crace (dissenting)
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the Matter of the Personal Restraint Petition of: HOYT WILLIAM CRACE, No. 37806-0-II UNPUBLISHED OPINION Petitioner, Van Deren, C.J. Hoyt William Crace was convicted of attempted second degree assault, first degree criminal trespass, and second degree malicious mischief. Crace petitions for a new trial or a reference hearing. Crace argues that his due process rights were violated because the jail compelled him to wear jail-issue sandals at trial. He also contends that his right to a fair trial is called into question because a juror saw him outside the courtroom in sandals and restraints before voir dire but the juror did not disclose that fact when asked during voir dire if she knew Crace. Crace further contends that his counsel was ineffective for failing to request the lesser included offense of unlawful display of a weapon and for not objecting to Crace wearing sandals in court. We deny Crace s timely petition. No. 37806-0-II FACTS1 According to Crace, on August 16, 2003, he was repairing a friend s trailer located in the same mobile home park where he resided, when another resident of the trailer park offered Crace approximately one gram of cocaine. Between 10:00 am and 2:00 pm, Crace voluntarily consumed eight to ten alcoholic coolers, one gram of cocaine, two doses of the prescription pain medication Dilaudid, and one quarter piece of heroin. Crace testified that he felt very relaxed and fell asleep while watching a video recording. When he awoke, it was dark outside. Crace testified that he heard and saw things, grew terrified, and became convinced that he was going to be murdered. He ran screaming from his trailer, trying to find the home of two elderly women who lived nearby; instead, he entered Rita Whitten s trailer by mistake. Crace tried to tell Whitten about his fears but when she kept screaming he quickly left. Before Crace s entry, Whitten was in her living room watching television while her baby slept in the bedroom. According to Whitten, Crace burst through the front door, screaming about being pursued. After rifling Whitten s kitchen cabinets and drawers, Crace ran out of her home. According to Crace, he went outside and found the elderly women s trailer, but he did not stay there because he still thought that someone was trying to murder him. Crace returned to his trailer, took a sword off the wall, and ran down the street screaming for help. Apparently someone contacted the police, because on August 17, 2003, at 2:25 am, 1 The facts not cited in the body of this section appeared in Crace s original direct appeal. See State v. Crace, noted at 128 Wn. App. 1021, 2005 WL 1540894, at *1-3 (2005). Citations to the report of proceedings are from citations in the original direct appeal. The cited facts appear in his personal restraint petition and appendices. 2 No. 37806-0-II Pierce County Sheriff s Deputy Hardesty2 received a call from dispatch directing him to a possible burglary in progress at a residence in a mobile home park. As Hardesty exited his car, a man approached him and stated that an unknown male had burst into his neighbor s home and then fled. The man said that the unknown male had run about two blocks to the north and that he was armed with a sword. Hardesty found Crace and when Crace saw Hardesty s flashlight beam, he ran toward the light with his sword in hand. Crace made eye contact with Hardesty and ran full speed toward him. As Crace ran, he yelled, They are after me, someone help me. State v. Crace, noted at 128 Wn. App. 1021, 2005 WL 1540894, at *1 (2005) (internal quotation marks omitted) (quoting 2 Report of Proceedings (RP) at 83). Hardesty could see a long, metal object in Crace s hand and, as Crace drew closer, Hardesty identified the object as a sword. Hardesty drew his gun and directed Crace to drop the sword.3 Crace kept running at Hardesty and Hardesty repeated his command to drop the sword. According to Crace, when he realized that an officer held the flashlight, he remained too frightened to drop the sword or to stop. Crace dropped the sword when he was approximately 50 feet from Hardesty but he continued running toward Hardesty. Hardesty repeatedly commanded Crace to get on the ground. According to Crace, he did not obey the direction to lie down on the 2 Deputy Hardesty s first name does not appear in the record before us. 3 Hardesty testified that he had received training regarding the 21 foot rule, the distance at which someone armed with a knife can reach an officer to inflict injury before an officer can draw his gun. Crace, 2005 WL 1540894, at *2 (quoting 2 RP at 77). Hardesty stated that he feared for his safety as Crace ran toward him and was prepared to shoot him even after he dropped the sword. He explained that he might have shot Crace were he to have approached a few of steps closer. Hardesty demonstrated how Crace held the sword and ran toward him. The jury also saw a demonstration of the distance at which Crace dropped the sword and laid down on the ground. 3 No. 37806-0-II ground because he was scared and still too far away from the officer. Crace finally complied when he was five to seven feet from Hardesty. Hardesty handcuffed Crace and placed him in the rear seat of his patrol vehicle. Hardesty then interviewed Whitten. During the interview, Hardesty heard screams from the parking lot and ran out to see Crace kicking wildly in the back of the patrol car; Crace broke out the left rear window. According to Crace, his fears of being murdered persisted and he kicked out the window in the hope that someone would return to the vehicle to help him. Hardesty secured Crace in four point restraints and advised him of his constitutional rights. Crace told Hardesty that earlier in the evening, four or five guys assaulted him and that he ran from them in fear. Based on his experience as a law enforcement officer, Hardesty suspected substance abuse and asked Crace if he used drugs. Crace told Hardesty that he had ingested cocaine earlier in the day. By amended information, the State charged Crace with second degree assault, first degree criminal trespass, and second degree malicious mischief. The State also alleged that Crace was armed with a deadly weapon while committing the assault. The trial court ordered Crace to undergo an evaluation to determine his competency to stand trial and potential defenses based on his mental condition.4 4 Later, the court found Crace competent to stand trial. Dr. Steven Marquez, a forensic psychologist at Western State Hospital who evaluated Crace for the State, diagnosed him with an antisocial personality disorder. He found Crace manipulative, offering exaggerated psychiatric symptoms inconsistent with any known pattern or syndrome. Crace told Marquez that five people wanted to harm him on the night of the incident. Marquez saw considerable goal-directed activity in Crace s actions and opined that he could form intent. Dr. Vincent Gollogly, a second psychologist, testified for the defense. He said that Crace s voluntary intoxication led to a delusional state. Gollogly also concluded that Crace could not realize the nature of his actions due to drug ingestion. Gollogly explained that, in his opinion, Crace could not accurately appraise the situation, although he could still engage in goal-directed behavior. Gollogly believed that Crace panicked and thought unclearly at the time of the offense. 4 No. 37806-0-II When the police booked Crace into jail, he wore no shoes; the clothes listed at the time of booking were a red sweatshirt and a pair of black shorts. Br. of Resp t, App. E at 2. Clothing brought in for trial included a pair of tan pants, a green shirt and a blue/black tie, but there were no shoes, and, according to the jail s records, it would appear that Mr. Crace did not have a pair of civilian shoes to wear at the time of his trial. Br. of Resp t, App. E at 2. According to Crace, the jail officer told him that he had to wear the jail-issue, orange sandals. Personal Restraint Petition (PRP), App. J. During transport, Crace wore shackles on his legs and ankles, which were removed when he arrived at court each day. At the beginning of voir dire, the court asked the venire panel, Do any of you know Mr. Crace? Have any of you heard anything about this particular case by potentially hearing potential witnesses talk about it, or other folks that may be involved in the case having any kind of discussion? PRP, App. H at 6. No panel member responded. Linda Hoerling, an individual eventually seated as a juror, declared later that it was a personal decision to not report to the court that I had observed Mr. Crace outside of the courtroom prior to trial. PRP, App. I at 1. During what appears to be a three day trial,5 Crace wore his jail-issue, orange sandals. According to Crace, my attorney was aware that I was forced to wear jail sandals to court because I told him and because he saw them on my feet. Surreply Br. of Pet r at 5. Crace s attorney did not object to the sandals. The trial court instructed the jury on the charged offenses and the lesser included offense of attempted second degree assault. Crace s trial counsel did not request and the trial court did 5 Voir dire occurred on May 11, 2004. The jury appears to have reached its verdict on May 14, 2004. The record provided is sparse. 5 No. 37806-0-II not instruct the jury on the lesser included offense of unlawful display of a weapon. The jury deadlocked on the second degree assault charge, but it found Crace guilty of attempted second degree assault. The jury also convicted him of first degree criminal trespass and second degree malicious mischief. Finally, it found that Crace was armed with a deadly weapon at the time of the attempted assault. The trial court sentenced Crace to life without the possibility of early release based on two previous violent convictions. After trial, Hoerling wrote an article that the Puyallup Herald published on September 8, 2005, describing her experience serving on Crace s jury. Hoerling called it Mr. Sandal Foot s jury. Br. of Resp t, App. C at 1. Crace did not realize before voir dire that Hoerling had seen him outside the courtroom wearing plastic orange sandals with socks. . . . He was handcuffed and being escorted by two rather large . . . men in uniform. Obviously, an accused prisoner in street clothes, sans real shoes. 6 As Crace entered the courtroom before the start of voir dire, Hoerling realized that the defendant was the man [she] had earlier observed in the hallway as socked, sandaled, and escorted. Hoerling felt as if [she] had somehow violated some vague acquaintance[] or knowing the defendant rule, but she concluded that this new revelation justified no action on [her] part. 7 Br. of Resp t, App. C at 1. Although not mentioned in her article, at some point during trial, Hoerling came to consider the possibility that Mr. Crace was facing a third strike because she had read about the law and understood the process. Hoerling did not discuss [her third strike theory] with anyone else. PRP, App. I at 1. 6 Linda Hoerling, panel member number six, became a juror on Crace s trial following voir dire. 7 These details and quotations come from an article she wrote for the Puyallup Herald after her jury service. 6 No. 37806-0-II Crace appealed his conviction of attempted second degree assault with a deadly weapon enhancement, arguing trial court instructional error and insufficiency of the evidence. We affirmed his conviction on appeal. Crace, 2005 WL 1540894, at *7. We issued our mandate on June 19, 2007, after the Supreme Court denied Crace s motion for discretionary review. State v. Crace, 160 Wn.2d 1010, 161 P.3d 1026 (2007). Crace filed his PRP on May 27, 2008. On October 3, 2008, he successfully moved for permission to file an amended brief to include an additional ineffective assistance of counsel claim related to an issue raised in his original petition. ANALYSIS I. Personal Restraint Petition Standard of Review Relief through a PRP is available to petitioners where they are under a restraint that is unlawful. 8 RAP 16.4(a)-(c). Collateral relief through a PRP is limited because it undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes deprives society of the right to punish admitted offenders. In re Pers. Restraint of Davis, 152 Wn.2d 647, 670, 101 P.3d 1 (2004) (quoting In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992)). Thus, challenges based on constitutional error require the petitioner to 8 Crace is under a restraint as he is confined under a judgment and sentence resulting from a decision in a criminal proceeding. RAP 16.4(b). Crace s petition is eligible based on: .... (3) Material facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction, sentence, or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government; or .... (5) Other grounds exist for a collateral attack upon a judgment in a criminal proceeding or civil proceeding instituted by the state or local government; .... RAP 16.4(c). 7 No. 37806-0-II demonstrate that he was actually and substantially prejudiced by the error. Davis, 152 Wn.2d at 671-72. Nonconstitutional challenges require the petitioner to show that the claimed error constitutes a fundamental defect which inherently results in a complete miscarriage of justice. Davis, 152 Wn.2d at 672 (quoting State v. Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)). The petitioner carries the burden to prove error by a preponderance of the evidence. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). The petitioner must state the facts on which he bases his claim of unlawful restraint and state the evidence available to support the allegations; conclusive allegations alone are insufficient. RAP 16.7(a)(2)(i); In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988). For allegations based on matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Where the petitioner s evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits . . . must contain matters to which the affiants may competently testify. The evidence must show that the factual allegations are based on more than speculation, conjecture, or inadmissible hearsay. Rice, 118 Wn.2d at 886. We may exercise three options in evaluating a PRP: 1. If a petitioner fails to meet the threshold burden of showing actual prejudice arising from constitutional error, the petition must be dismissed; 2. If a petitioner makes at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12; 3. If the court is convinced a petitioner has proven actual prejudicial error, the court should grant the Personal Restraint Petition without remanding the cause 8 No. 37806-0-II for further hearing. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983). If the petitioner makes this threshold showing, we examine the State s response, which must answer the allegation and identify all material disputed questions of fact. Rice, 118 Wn.2d 886; RAP 16.9. To define disputed questions of fact, the State must meet the petitioner s evidence with its own competent evidence and only after the parties materials establish the existence of material disputed issues of fact will we direct the superior court to hold a reference hearing in order to resolve the factual questions. Rice, 118 Wn.2d 886-87. II. Jail-Issue Sandals Crace first argues that the State violated his due process right to a fair trial when jail officers told [him] that [he] also had to wear the jail-issue, orange sandals in court. PRP, App. J. Crace contends that wearing the sandals in court, in conjunction with a juror seeing him outside the courtroom in restraints, demonstrates that his right to a fair jury, a fair trial, or both was injured by the juror s observations of Crace, both in and out of court. PRP at 22-23. The State contends that jail officers did not compel Crace to wear sandals: he came to jail without shoes, his clothing delivered for trial contained no shoes, and the sandals were the only footwear available to him. Furthermore, the State argues that, even if jail officers compelled Crace to wear the sandals, he did not object, so the issue is not preserved for review. Crace responds that an objection is not necessary in the context of shackling and that we may reach the question of error. We agree with the State that Crace failed to preserve the due process issue for review. 9 No. 37806-0-II A. Standard of Review We review constitutional issues de novo. State v. Castro, 141 Wn. App. 485, 490, 170 P.3d 78 (2007). B. Fair Trial A defendant is entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man. State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). This is to ensure that the defendant receives a fair and impartial trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and article I, section 3, and article I, section 22 (amendment 10) of the Washington State Constitution. Finch, 137 Wn.2d at 843. It also preserves the defendant s presumption of innocence and, although not articulated in the Constitution, [this presumption] is a basic component of a fair trial under our system of criminal justice. Finch, 137 Wn.2d at 844 (quoting Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976)). This protection is grounded in the concern that there is a substantial danger of destruction in the minds of the jury of the presumption of innocence where the accused is required to wear prison garb, is handcuffed or is otherwise shackled. Finch, 137 Wn.2d at 844. A defendant may not be required to appear in court in restraints because the jury may infer that the defendant is dangerous or untrustworthy, but jail attire is treated differently because it is often used as a defense tactic to gain sympathy, so a defendant must object to being compelled to wear jail attire in court or he waives the right to argue the issue later. State v. Levy, 156 Wn.2d 709, 730-31, 132 P.3d 1076 (2006) (citing State v. Sanchez, 122 Wn. App. 579, 587-88, 94 P.3d 384 10 No. 37806-0-II (2004)). Crace concedes that at trial he did not object to wearing jail sandals, but he argues that this error is preserved despite his trial counsel s failure to object. In the context of shackling, our Supreme Court analyzed the issue of unconstitutional shackling in the absence of counsel s objection because [t]rial courts must weigh on the record the reasons for restraining an accused in the courtroom, recognizing the accused s right to due process. State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999). But shackling suggests dangerousness and unfairly prejudices the defendant. See Levy, 156 Wn.2d at 730-31. Here, counsel and Crace do not cite and we cannot find any cases supporting Crace s contention that an objection is not necessary in the context of clothing. In fact, our case law establishes that an objection is necessary. See Levy, 156 Wn.2d at 730-31; Sanchez, 122 Wn. App. at 587-88. Because Crace failed to object to wearing the jail sandals at trial, he did not preserve this issue for review and this argument fails. III. Jury Crace also argues that he is entitled to a new trial because Hoerling did not disclose to the court that she had seen Crace in restraints outside the courtroom. He contends that Hoerling deliberately concealed this information during voir dire, that this information was material, and that this information provided a valid basis to challenge the juror for cause.9 The State argues 9 Crace cites numerous federal cases in his briefs and characterizes some of these cases as controlling authority. As persuasive as the reasoning of the United States Courts of Appeals and the Court of Appeals for the Ninth Circuit may be, these cases do not bind this court we are bound only by the decisions of the Washington Supreme Court and nonsupervisory decisions of the United States Supreme Court. State v. Bennett, 161 Wn.2d 303, 317, 165 P.3d 1241 (2007); State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997); Eriksen v. Mobay Corp., 110 Wn. App. 332, 345-47, 41 P.3d 488 (2002); Brown v. Scott Paper Worldwide Co., 98 Wn. App. 349, 355, 989 P.2d 1187 (1999); see State v. Luther, 157 Wn.2d 63, 82, 134 P.3d 205 (2006); State v. Gonzales-Morales, 138 Wn.2d 374, 382, 979 P.2d 826 (1999); see also Panag v. Farmers Ins. Co., 166 Wn.2d 27, 47, 204 P.3d 885 (2009); State v. Reader s Digest Ass n, 81 Wn.2d 259, 11 No. 37806-0-II that Hoerling was not required to disclose the sighting based on the questions raised during voir dire, there is no evidence of juror bias, and there is no evidence of prejudice. The State also argues that Crace did not show that Hoerling s failure to disclose the sighting during voir dire would have entitled Crace to remove her for cause. A. Standard of Review We review an alleged due process violation de novo. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006). Under the United States Constitution, the Sixth and Fourteenth Amendments guarantee persons accused of a crime the right to trial by an impartial jury that is unbiased and unprejudiced. State v. Davis, 141 Wn.2d 798, 824-25, 10 P.3d 977 (2000). The Washington Constitution provides a similar safeguard. Wash. Const. art. I, ยงยง 3, 22. The failure to accord an accused a fair hearing violates even the minimal standards of due process. Davis, 141 Wn.2d at 824 (internal quotation marks omitted) (quoting State v. Parnell, 77 Wn.2d 503, 507, 463 P.2d 134 (1969)). Not only should there be a fair trial, but there should be no lingering doubt about it. Davis, 141 Wn.2d at 825 (quoting Parnell, 77 Wn.2d at 508). But the right to a fair trial does not require a perfect trial. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 267, 172 P.3d 335 (2007). Instead, it requires a jury capable and willing to decide the case solely on the evidence before it. Elmore, 162 Wn.2d at 267 (internal quotation marks omitted) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984)) . A strong, affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury. Elmore, 162 Wn.2d at 267 (quoting State v. Balisok, 271, 501 P.2d 290 (1972). 12 No. 37806-0-II 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994)). In order to receive a new trial, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause. Elmore, 162 Wn.2d at 267. Only reasons that affect a juror s impartiality . . . affect the fairness of a trial. Elmore, 162 Wn.2d at 267-68. B. Answer to a Material Question A juror s answer is honest and additional information is not required when a juror is not expected to volunteer the information and a question is not asked that is designed to elicit the additional information. State v. Gilmore, 59 Wn.2d 514, 515-16, 368 P.2d 722 (1962). In Gilmore, counsel asked a prospective juror whether she knew of the incident at hand or any of the defendants, attorneys, or witnesses she answered, No. 59 Wn.2d at 515. Counsel also asked whether there was any reason she could not be fair and impartial, and she again answered, No. Gilmore, 59 Wn.2d at 515. On appeal, Gilmore argued that the juror had a duty to (a) disclose that her son was a cell mate of the defendant; and (b) disclose that her son was a convicted felon presently serving time. Gilmore, 59 Wn.2d at 515. By posttrial affidavit, the juror admitted seeing the defendant in jail when she visited her son but denied knowing anything about him or his case before to trial. Gilmore, 59 Wn.2d at 515. Our Supreme Court held that no prospective juror is obligated to volunteer such information when counsel failed to ask a question of the juror designed to elicit it. Gilmore, 59 Wn.2d at 516. Here, Hoerling wrote a newspaper article following her jury service in which she described her experiences, including her sighting Crace outside the courtroom in handcuffs and wearing plastic orange sandals with socks. Br. of Resp t, App. C at 1. Crace fails to show that 13 No. 37806-0-II Hoerling did not honestly answer a material question during voir dire trial counsel could ask during voir dire whether any jury panel members had ever seen the defendant before voir dire, if that is the information desired. C. Bias Crace also fails to establish a valid basis for a for cause challenge had Hoerling told the trial court that she saw Crace before voir dire. A prospective juror must be excused for cause if the trial court determines that the juror is actually or impliedly biased. State v. Gosser, 33 Wn. App. 428, 433, 656 P.2d 514 (1982); RCW 4.44.170. Implied bias is conclusively presumed from the juror s factual circumstances as applied to the statutory provisions.10 RCW 4.44.170(1); State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). Implied bias exists where there is: (1) Consanguinity or affinity within the fourth degree to either party. (2) Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant, to a party; or being a member of the family of, or a partner in business with, or in the employment for wages, of a party, or being surety or bail in the action called for trial, or otherwise, for a party. (3) Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action by the state against either party, upon substantially the same facts or transaction. (4) Interest on the part of the juror in the event of the action, or the principal question involved therein, excepting always, the interest of the juror as a member or citizen of the county or municipal corporation. RCW 4.44.180. Providing dishonest or materially misleading answers during voir dire in an effort to persuade the parties that one should serve on the jury can provide a basis for implied basis because the desire to serve on a jury at the expense of answering voir dire inquiries honestly is an 10 Crace inaccurately states, Implied bias arises from a juror s failure to answer questions truthfully during the voir dire process. PRP at 17. The statute does not identify dishonesty unrelated to voir dire issues per se, as a basis for finding implied bias, and no Washington court has read such a provision into the statute. See RCW 4.44.180. 14 No. 37806-0-II interest beyond that of an ordinary citizen. See State v. Cho, 108 Wn. App. 315, 328, 30 P.3d 496 (2001). Hoerling saw Crace restrained and did not volunteer this fact. During voir dire, Hoerling explained her understanding of the presumption of innocence and confirmed that Crace is presumed innocent, Means he walks in as any other person would. I don t know the man; I don t know what he s done; I don t know the facts. PRP, App. H at 53. When questioned, no venire panel member stated that he or she would not presume Crace innocent. Hoerling s only concern focused on voting not guilty if the State put on no evidence; she seemed to believe that a mistrial is more appropriate in those circumstances. In a posttrial declaration, Hoerling explained that it was a personal decision to not report to the court that I had observed Mr. Crace outside of the courtroom prior to trial. PRP, App. I at 1. Although Crace asserts that both types of bias [actual and implied] are present, he argues only that Hoerling should have been dismissed based on implied bias, and he provides no legal or factual basis to support a claim of actual bias. PRP at 17. Crace also fails to establish implied bias: there is no evidence that Hoerling is related by blood to a party, has a special relationship with either party, served as a juror in a case involving the same parties, or had an interest beyond that as a citizen. He only establishes that Hoerling s decision not to tell the trial court that she saw Crace in restraints was personal. Crace could have explored the personal decision and what Hoerling s interest was, but that information was not before the trial court and is not before us in the declarations. In a PRP, the petitioner must state the facts that support the petitioner s claim and evidence available to support the factual allegations. RAP 16.7(a)(2)(i). The evidence Crace 15 No. 37806-0-II provides is not sufficient to support a finding of implied bias. If Hoerling had stated in her declaration that she withheld the information that she had seen Crace outside the courtroom because she wanted to serve on a jury, then the evidence would be stronger. But the evidence before us is not sufficient for a finding of implied bias or to support an order for a reference hearing on the matter. D. Prejudice Moreover, Crace fails to demonstrate prejudice apparent from Hoerling s journalistic revelations. Washington courts have never held that [t]he mere fact that a jury sees an inmate wearing shackles mandates reversal of a conviction. State v. Rodriguez, 146 Wn.2d 260, 270, 45 P.3d 541 (2002) (citing State v. Gosser, 33 Wn. App. at 435). Instead, a defendant must show prejudice, that is, a substantial or injurious effect or influence on the jury s verdict. Elmore, 139 Wn.2d at 274 (quoting State v. Hutchinson, 135 Wn.2d 863, 888, 959 P.2d 1061 (1998)). Even where a defendant is shackled in the courtroom in front of the jury,11 which would likely create a presumption of prejudice on direct appeal, in a PRP the [petitioner] is not entitled . . . to a presumption of prejudice which the state would have to overcome by evidence beyond a reasonable doubt. Rather, the [petititioner] bears the burden of showing actual prejudice. Davis, 152 Wn.2d at 698. Passing glimpses of a defendant in restraints are insufficient on their own to find the existence of prejudice. In Gosser, the defendant moved for a mistrial on the basis that jailers removed his shackles in the corridor outside the courtroom, presumably in the presence of at 11 Crace does not contend that he was restrained at any time other than in the hallway within the view of Hoerling. 16 No. 37806-0-II least some of the jurors. 33 Wn. App. at 435. The trial court denied Gosser s motion for a mistrial. Gosser, 33 Wn. App. at 435. On appeal, we affirmed the denial, reasoning that beyond [the] defendant s bare allegation, there is no indication in the record that the incident prejudiced the minds of the jurors against [the] defendant. Gosser, 33 Wn. App. at 435-36. Division Three of this court reached the same conclusion and held that a defendant s mere appearance in handcuffs during jury selection [did] not indicate the incident inflamed or prejudiced the jurors against [the defendant]. State v. Early, 70 Wn. App. 452, 462, 853 P.2d 964 (1993)). Even a more prolonged viewing does not necessarily rise to the level of prejudice. Our Supreme Court pointed out that in [State v. ]Clark[, 143 Wn.2d 731, 776, 24 P.3d 1006 (2001)], we held that the defendant was not prejudiced when the jury saw him shackled on the first day of voir dire and on the day the verdict was returned, but the defendant sat unrestrained throughout the trial. Davis, 152 Wn.2d at 697. The court reasoned that Clark s shackling on the first day of voir dire and the day of the verdict was harmless error beyond a reasonable doubt because in the minds of the jurors Clark s shackling on the first day of voir dire was more than logically offset by over two weeks of observing Clark in the courtroom without shackles. Clark, 143 Wn.2d at 776. Apparently Crace s argument is that Hoerling saw Crace restrained outside of the courtroom while he wore jail sandals; the restraint was relevant because his crime was a violent one; the jury s attempt conviction demonstrates the weakness of the evidence against Crace; and that the bias from seeing his restraint may have played a significant role in the jury s decision. PRP at 22. The nature of the prejudice seems to be that Hoerling saw the sandals and restraint of Crace outside the courtroom and seeing the sandals each day in the courtroom reminded her of his 17 No. 37806-0-II restraint, evidenced by the fact that Hoerling thought Crace might face a third strike. As Washington does not recognize per se or even presumptive prejudice for fleeting glimpses of restraints inside or outside the courtroom and Crace s factual claims related to the sandals and the restraints do not demonstrate actual and substantial prejudicial, Crace s argument fails. IV. Ineffective Assistance of Counsel Crace further argues that his trial counsel was ineffective for failing to request a lesser included instruction for unlawful display of a weapon. And Crace amended his original petition to include a claim that his trial counsel was ineffective because he failed to object to Crace s jailsandals. The State argues that failing to request a lesser included offense is generally a reasonable trial strategy and thus a tactical decision. In response to the amended petition, the State contends that the amendment is time barred and, even were it not, it would fail because counsel was not ineffective and Crace was not prejudiced. Here, Crace fails to show that his counsel s decision not to propose a lesser included instruction was deficient performance or that his jail-sandals and restraint claims, which underlie his ineffective assistance of counsel claim, resulted in any prejudice. A. Standard of Review We review claims of ineffective assistance of counsel de novo. State v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006). The proper procedure for raising an ineffective assistance claim based on matters outside the record is a PRP. State v. Byrd, 30 Wn. App. 794, 800, 638 P.2d 601 (1981). For a defendant to prevail on a claim of ineffective assistance of counsel, he must show (1) that counsel s representation was deficient and (2) that the deficient representation prejudiced him. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999). To meet the first part 18 No. 37806-0-II of the test, the representation must have fallen below an objective standard of reasonableness based on consideration of all of the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). This part is highly deferential and courts will indulge in a strong presumption of reasonableness. Thomas, 109 Wn.2d at 226. For the second part, there must be a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different, Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), but the appellant need not show that counsel s deficient conduct more likely than not altered the outcome in the case. 466 U.S. at 693. But in a PRP, the petitioner must show actual and substantial prejudice by a preponderance of the evidence and this standard applies to ineffective assistance of counsel claims. In re Pers. Restraint of Brett, 142 Wn.2d 868, 874, 883, 16 P.3d 601 (2001). B. Failure to Object to Jail-Issue Sandals Because we hold that Crace failed to demonstrate that his underlying claim that the jail attire and the fleeting glimpse by the juror of his restraint caused actual and substantial prejudice, we reach neither this ineffective assistance of counsel claim nor the parties arguments about a time bar to amendment. C. Failure to Include Lesser Charge of Unlawful Display of a Weapon Under the [State v. ]Workman[, 90 Wn.2d 443, 584 P.2d 382 (1978)] test, a defendant is entitled to an instruction on a lesser included offense if (1) each element of the lesser offense is necessarily included in the charged offense and (2) the evidence in the case supports an inference that the defendant committed only the lesser crime. State v. Gamble, 137 Wn. App. 892, 905, 155 P.3d 962 (2007), review granted, 164 Wn.2d 1020, 196 P.3d 132 (2008) (citing Workman, 19 No. 37806-0-II 90 Wn.2d at 447-48). Second degree assault is the act of intentionally assaulting another person and recklessly inflicting substantial bodily harm or assaulting another with a deadly weapon, not amounting to first degree assault. See former RCW 9A.36.021(1)(a), (c) (2003). A [d]eadly weapon means any . . . weapon, device, instrument, article, or substance . . . [that] is used, attempted to be used, or threatened to be used[ that] is readily capable of causing death or substantial bodily harm. Former RCW 9A.04.110(6) (1988). To convict a defendant of second degree assault, the jury must find specific intent to create reasonable fear and apprehension of bodily injury. State v. Ward, 125 Wn. App. 243, 248, 104 P.3d 670 (2004) (citing State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995)). For instance, a defendant s intent may be inferred from pointing a gun, but not from mere display of a gun. Ward, 125 Wn. App. at 248 (citing State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996)). To convict based on unlawful possession of a weapon, the defendant must carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons. RCW 9.41.270(1). Because all the elements of unlawful display of a weapon are also necessary elements of second degree assault, unlawful display of a weapon is a lesser included offense of second degree assault. RCW 9.41.270(1); RCW 9A.36.011; Ward, 125 Wn. App. at 248; see State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 486-87, 816 P.2d 718 (1991). 20 No. 37806-0-II Under the Workman test, to justify a lesser included offense instruction for unlawful display of a weapon, the evidence would have had to support an inference that Crace only displayed the sword and that he had no intent to create reasonable fear or apprehension of bodily injury, i.e., that he committed only the lesser offense. See Ward, 125 Wn. App. at 248. But the evidence was that Crace ran toward Hardesty with the sword and refused to drop it or lie down until just steps before Hardesty was prepared to fire on him. And Hardesty testified that he was in fear of bodily injury from Crace. Because the evidence did not support a lesser included instruction, Crace s claim of ineffective assistance of counsel for failing to request the instruction fails. We deny Crace s petition. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. Van Deren, C. J. I concur: Armstrong, J. I concur in the result only: Quinn-Brintnall, J. 21
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