In re Cross

180 Wash.2d 664

327 P.3d 660

In the Matter of the Personal Restraint of Dayva CROSS, Petitioner.

No. 79761–7.

Supreme Court of Washington, En Banc.

June 26, 2014.

James Elliot Lobsenz, Carney Badley Spellman, Todd Maybrown, Allen Hansen & Maybrown P.S., Seattle, WA, for Petitioner.

Donald James Raz, Attorney at Law, James Morrissey Whisman, King County Prosecutor's Office, Randi J. Austell, Attorney at Law, Daniel Todd Satterberg, King Co. Pros. Atty. Office, Seattle, WA, for Respondent.

David B. Zuckerman, Rita Joan Griffith, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Washington Assoc. of Criminal Defense Lawyers.

John Scott Blonien, Department of Enterprise Services, Paul Douglas Weisser, Attorney General's Office, Olympia, WA, for Other Parties.

WIGGINS, J.

¶ 1 In 2001, Dayva Cross pleaded guilty to the aggravated first degree murders of his wife and two of her three daughters. A unanimous jury sentenced him to death. Cross's direct appeal before this court was unsuccessful. State v. Cross, 156 Wash.2d 580, 132 P.3d 80 (2006) ( Cross ). Cross subsequently filed a timely personal restraint petition, alleging multiple constitutional errors. The court decided Cross's Alford plea issues by separate opinion. In re Pers. Restraint of Cross, 178 Wash.2d 519, 309 P.3d 1186 (2013) (holding that death sentence could be predicated on Alford¹ plea). The remaining issues raised by Cross in his personal restraint petition are decided herein.

¶ 2 The core issues before us are (1) whether admission of Cross's custodial statements to Officers Greg Silcox and Bonnie Soule and Detective Jim Doyon violated the Fifth Amendment to the United States Constitution; (2) whether there was cumulative error; (3) whether Cross's attorneys rendered ineffective assistance of counsel; and (4) whether our death penalty statute is unconstitutional.

¶ 3 We reject all of Cross's claims and dismiss the personal restraint petition because Cross has not shown actual and substantial prejudice resulting from any alleged error or deficient conduct. We hold that the Miranda² violations were harmless, there was no cumulative error, any deficient performance by counsel was nonprejudicial, and our death penalty statutes are constitutional.

FACTS

¶ 4 On March 9, 1999, Cross struck his wife, Anoutchka, in the face during an argument. The next morning, Anoutchka's 13–year–old daughter, M.B., woke to the sounds of Cross brutally and repeatedly stabbing her mother and her elder sister, 18–year–old Solome, to death. Cross then forced his way into the bedroom M.B. shared with her 15–year–old sister, Amanda, and killed Amanda. Cross kept M.B. confined at knifepoint for five hours while he drank wine and watched television. M.B. escaped after he fell asleep. Cross was arrested without incident that afternoon.

¶ 5 Initially, Cross pleaded not guilty by reason of insanity but subsequently withdrew his not guilty plea and entered an Alford plea for the first degree aggravated murders of his wife and two of her three daughters. See Alford, 400 U.S. 25, 91 S.Ct. 160; State v. Newton, 87 Wash.2d 363, 552 P.2d 682 (1976). The trial judge accepted Cross's plea after a probing inquiry, which included a competency evaluation at Western State Hospital and review of extensive argument and evidence.

¶ 6 The penalty phase of trial followed. The jury heard and considered testimony from experts, from Cross's family, and from friends and family of his victims and unanimously found beyond a reasonable doubt that mercy was not warranted. Cross was sentenced to death. Cross appealed directly to this court; we affirmed Cross's conviction and his death penalty sentence. Cross, 156 Wash.2d 580, 132 P.3d 80. Cross then timely filed this personal restraint petition.

PERSONAL RESTRAINT PETITION STANDARDS

¶ 7 We are reluctant to disturb a settled judicial decision where the petitioner has already had an opportunity to appeal to a disinterested judge. See In re Pers. Restraint of Cook, 114 Wash.2d 802, 809, 792 P.2d 506 (1990). Accordingly, a personal restraint petitioner must first establish by a preponderance of the evidence that a constitutional error has resulted in actual and substantial prejudice. In re Pers. Restraint of Stockwell, 179 Wash.2d 588, 607, 316 P.3d 1007 (2014); see also In re Pers. Restraint of Isadore, 151 Wash.2d 294, 298–99, 88 P.3d 390 (2004); State v. Sandoval, 171 Wash.2d 163, 168, 249 P.3d 1015 (2011).

¶ 8 For alleged nonconstitutional error, a petitioner must show “a fundamental defect resulting in a complete miscarriage of justice.” In re Pers. Restraint of Elmore, 162 Wash.2d 236, 251, 172 P.3d 335 (2007). These threshold requirements reinforce the court's interest in finality of the trial process. In re Pers. Restraint of Stockwell, 179 Wash.2d at 596–97, 316 P.3d 1007. But where the petitioner has not had a prior opportunity for judicial review, the petitioner need show only that he is restrained under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of Grantham, 168 Wash.2d 204, 212, 227 P.3d 285 (2010).

¶ 9 Here, Cross essentially claims four constitutional errors: (1) improper admission of custodial statements in violation of his Fifth Amendment privilege against self-incrimination, (2) cumulative error in violation of the due process clause (U.S. Const. amends. V, XIV), (3) ineffective assistance of counsel in violation of his right to assistance of counsel under the Sixth Amendment to the United States Constitution, and (4) that his death sentence is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.³ Cross has had an opportunity for prior judicial review of these claims; errors asserted in the petition appear in the trial court record and were reviewable by our court on his direct appeal. Thus, Cross must show actual and substantial prejudice resulting from these alleged constitutional errors. In other words, he must show by a preponderance of the evidence that he was more likely than not harmed by the errors. See In re Pers. Restraint of Crace, 174 Wash.2d 835, 845, 280 P.3d 1102 (2012).

ANALYSIS

I. Cross's Custodial Statements to Officers Silcox and Soule

¶ 10 Cross argues that admission of his custodial statements to Officers Silcox and Soule violated the Fifth Amendment to the United States Constitution (no person “shall be compelled in any criminal case to be a witness against himself ...”). On direct appeal, Cross made a similar claim. Ordinarily, a “petitioner in a personal restraint petition is prohibited from renewing an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation.” In re Pers. Restraint of Davis, 152 Wash.2d 647, 671, 101 P.3d 1 (2004) (footnotes omitted). But, if petitioner's first attempt to raise an issue does not trigger any judicial consideration of it and there is no reasonable basis to conclude that the issue's merits were previously heard and determined, the issue may be raised again. In re Pers. Restraint of Greening, 141 Wash.2d 687, 700, 9 P.3d 206 (2000). Here, Cross assigned error to the admission of all of his custodial statements on direct appeal, but this court's decision addressed only Cross's statements to Detective Doyon. Cross, 156 Wash.2d at 619, 132 P.3d 80. Thus, Cross may raise this issue in his petition. We find that it was a violation of Cross's Fifth Amendment right to admit his custodial statements made to Officers Soule and Silcox. But we deny Cross's petition because the error was harmless.⁴

A. Relevant Facts⁵

¶ 11 On the afternoon of the murders, officers arrested Cross and placed him in a patrol car. On the way to the station, Cross was advised of his constitutional rights pursuant to Miranda, 384 U.S. 436, 86 S.Ct. 1602. Cross acknowledged that he understood his rights. At the station, Officer Silcox advised Cross of his Miranda rights for a second time. After acknowledging once more that he understood his rights, Cross stated, “I don't want to talk about it.” Silcox walked away and then returned to offer Cross a glass of water. Taking pity on Cross, Silcox said, “Sometimes we do things we normally wouldn't do, and we feel bad about it later.” Cross did not drink the glass of water. Cross then said, “I fucking had it. How can you feel good about doing something like this. I can't find a job, they want a thousand dollars in fucking child support. I fucking had it. And my ex-wife is fucking lucky, because she was next on the list.”

¶ 12 Officer Soule was present when Cross stated he did not want to talk about it. Cross was then moved into a holding cell. Soule approached Cross in the cell and asked, “Do you want to talk about it?” Cross responded with the same statement—that he had “fucking had it” with the child support and that his ex-wife was next on the list. About three and a half hours later, Cross met with his attorney. Because Cross was classified as a high-security inmate, Cross was escorted to one side of a room partitioned by glass. He communicated with his attorney, who sat on the other side of the glass partition, via a telephone. There was a small opening in the glass partition above the counter, called the “pass-through slot,” to exchange documents. Once Cross was inside the room, he was left alone and the door was closed with the officers stationed outside. The officers could not overhear any conversation between Cross and his attorney. At some point during the conversation, the attorney signaled to correction officers that Cross needed to sign some documents. There is a policy that inmates are not allowed to possess pens, so Officer Rosalind Deede stood by while Cross signed the documents and passed them through to his attorney. The attorney slid a copy back to Cross. At this time, Officer Marshall Coolidge entered the room, thinking they were getting ready to take Cross back to his cell because the interview was...