Schierman was convicted of four counts of aggravated first
degree murder and sentenced to death. He appeals his
convictions and sentences on multiple grounds. For the
reasons given below, we affirm all of his convictions. As
further discussed below, a majority of this court also
rejects Schierman's challenges to his death sentence.
I would hold that two critical, erroneous evidentiary rulings
during Schierman's penalty phase proceedings require
reversal of that death sentence. That would ordinarily
require a remand for a resentencing hearing. I therefore go
on to conduct our court's statutorily required
proportionality review. I conclude that imposition of the
death penalty on Schierman violates our state statutory
guaranty against disproportionate capital sentencing. For the
reasons given in this opinion, I would reverse
Schierman's death sentences and remand for imposition of
the only statutorily permissible penalty: four consecutive
sentences of life in prison without the possibility of
morning of July 17, 2006, officials responded to a fire at
the home of Leonid and Olga Milkin, a married couple. When
firefighters eventually extinguished the flames, they found
the bodies of Olga, Olga's sister Lyuba, and Leonid and
Olga's two young sons, Andrew and Justin. The women's
bodies appeared to have been undressed or partially undressed
at the time of the fire. At the time of the fire,
Leonid was stationed overseas. An
investigation revealed that someone had used accelerants to
set the fire, and autopsies revealed that each victim had
been stabbed to death before the fire began.
morning of the fire, witnesses observed someone who looked
like the defendant, Conner Schierman, carrying a gas can in
front of the Milkin home. Police contacted Schierman and
observed that he had scratches and cuts on his face, head,
and neck. Schierman told them that he had intervened in a
domestic dispute in the early morning hours of July 17 and
had been hurt in the process. Police subsequently discovered
a videotape of Schierman filling a gas can at a nearby AMPM
on the morning of the fire. Eventually, Schierman agreed to
come to the police station, where he made three taped
third statement, Schierman admitted to being in the Milkin
home. He said that he woke up on the morning of July 17
covered in blood, lying in an upstairs bedroom in the
Milkins' home and unable to remember how he had gotten
there. He stated that he walked around the house, discovered
the four bodies, showered and changed his clothes, and
decided to burn down the house.
statement to police was largely consistent with a later
statement that Schierman made to defense expert Dr. Andrew
Saxon. Schierman told Dr. Saxon that he started drinking in
the early evening of July 16, continued drinking all evening,
and went into an alcoholic blackout some time during that
night. He said that he woke up bloody on a strange bed some
time during the morning of July 17, and discovered a
woman's body in a pool of blood. But Schierman also told
Dr. Saxon that he moved the woman's body and continued to
drink while he stayed in the house.
forensic investigators discovered Schierman's DNA
(deoxyribonucleic acid) in the Milkin home. Investigators
also found a pair of gloves in the home, which a witness
identified as belonging to Schierman. When Leonid was
permitted to return to his house, he found a fire-damaged
knife, which he did not recognize, in the remaining debris.
Police discovered that Schierman had purchased an identical
knife several months earlier. Leonid also discovered a pair
of men's shoes, recovered from an undamaged section of
the basement. Schierman had purchased an identical pair the
previous November. Finally, police also found three empty
vodka bottles in a backpack in Schierman's bedroom.
State charged Schierman with four counts of aggravated murder
in the first degree and one count of arson in the first
degree. Jury selection began on November 13, 2009, and the
jury panel was seated two months later, on January 12, 2010.
guilt phase of the trial lasted another three months. The
defense conceded that Schierman committed arson, but argued
that he panicked and set fire to the house to avoid being
accused of murders that he did not commit. Schierman was
convicted as charged. The penalty phase lasted almost one
month; the jury voted to impose the death penalty.
facts relevant to each of Schierman's assignments of
error are summarized in the appropriate section below.
of the Trial Court's Juror Eligibility Determinations
Violated Schierman's Right To Presence (under the Sixth
and Fourteenth Amendments and Article I, Sections 3 and 22);
Any Error, However, Was Harmless
argues that two separate phases of juror selection violated
his right to presence. The first phase to which he assigns
error lasted from late September 2009 to mid-November 2009.
During that time, counsel met with King County's jury
services manager to review, and sometimes agree to, potential
jurors' preliminary hardship excusal requests. Schierman
was not present during these meetings.
second phase of juror selection to which Schierman assigns
error took place on January 12, 2010, the last day of voir
dire. During this phase, counsel met with the trial judge in
chambers, where counsel argued, and the judge ruled on,
several for-cause juror challenges. Schierman was not
argues that excluding him from both phases violated his right
to presence under the Sixth and Fourteenth Amendments to the
United States Constitution, and article I, sections 3 and 22
of the Washington State Constitution. We conclude that he had
no right to presence when his attorneys reviewed juror
declarations in the nonadversarial setting of the jury
administrator's office. We conclude that he did have a
right' to presence during the hearing on for-cause
challenges, but that the error does not require reversal.
Because the facts concerning these proceedings are relevant
to both the presence claim (discussed here) and the courtroom
closure claim (discussed below), we describe those facts
Preliminary Excusals for Hardship (Late September to
documents in the record on this appeal show that in late
September 2009, jury summonses were issued to 3, 000 people,
directing them to report for service on November 13, 2009. A
summons recipient could respond by confirming that he or she
would appear or by submitting a declaration that he or she
was unqualified or unable to serve. The recipients were told
that their responses were made under penalty of perjury.
Judge Gregory Canova directed the jury services manager for
King County, Gregory Wheeler, to review declarations of
hardship with the prosecutor and defense counsel.
King County Superior Court's general policy, potential
jurors could get hardship excusals for disability, age, a
severe financial burden, or prior jury service, or because
the potential juror was a single parent with young children
not attending day care. Due to the anticipated length of
Schierman's trial, it was also contemplated that jurors
might be excused for reasons that normally warrant only a
deferral, e.g., travel plans, employment, or school. Wheeler
conducted a preliminary review of the potential juror
responses and created two stacks of excusal requests: one for
"those that were clearly meant to be excused per court
policy" and one for "requests noting a hardship of
a less-than-obvious nature." Clerk's Papers (CP) at
21347-48. He then met separately with the prosecution and
defense regarding both categories of hardship request.
everyone agreed that a declaration stated a
"hardship" as defined by official court policy,
Wheeler excused the potential juror without further review by
the court. If the parties disagreed, Wheeler saved the
disputed hardship request so that Judge Canova could review
it at a hearing. This process went on between October 19 and
November 6, 2009.
particular proceedings from which Schierman claims he was
excluded were the times when his lawyers, without the
State's lawyers,  went to an administrative office in
the courthouse to look at either hard copies of or a computer
screen displaying summoned jurors' e-mailed hardship
requests (for reasons not clear on this record, the screen
could not be downloaded). Schierman says that he was never
present at any of these early hardship excusal reviews or
conferences. The State does not dispute that assertion.
Schierman was present, however, at all the hearings over
disputed hardship requests. Thus, there is no claim that
Schierman was deprived of the right to presence at any court
proceeding or at any noncourt adversarial proceeding.
Instead, Schierman claims only that he was excluded from
office visits where attorneys looked at a screen or papers
for information. Appellant's Opening Br. at 17-18
("The judge made it clear that he would not review the
individual hardship requests if the parties were in
agreement. . . . Schierman was never present when the
attorneys dealt with these hardship requests."
this preliminary procedure, the venire was sworn, on the
record, on November 13, 2009. On that day, prospective jurors
completed the questionnaire "designed to let [them] tell
the court and the lawyers about [themselves] and about
[their] views on a variety of issues." Verbatim Report
of Proceedings (VRP) (Nov. 13, 2009) at 9.
For-Cause Challenges in Chambers (January 12, 2010)
record tells us quite a bit more about the challenges for
cause conducted in chambers-with both sets of attorneys, the
judge, and the court reporter, but without Schierman-than it
tells us about what occurred during the preliminary hardship
excusal reviews. The facts of the in-chambers challenges are
January 11, 2010, the last day scheduled for voir dire, 70
potential jurors remained in the pool. At the end of that
day, Schierman challenged six jurors for cause: Jurors 25,
44, 58, 76, 104, and 171. The court heard argument from both
parties on those challenges, but deferred ruling so that the
parties could further question the six jurors on the
following day, the State questioned Jurors 25 and 58. When
that questioning was over, Judge Canova stated, in open
court, that he would rule "back in chambers" on a
number of hardship and for-cause challenges to potential
The next thing is that counsel and I are going to go with the
court reporter briefly back into chambers, I'm going to
rule on a number of requests for hardship that have been
received by the court, I'm also going to rule on a number
of challenges for cause that are before the court, that is,
requests to excuse jurors for different reasons from counsel.
That will take less than ten minutes, and at the conclusion
of that I will advise all of you who have been excused, if
anyone, and we will then proceed to have counsel exercise
their peremptory challenges, that is the selection of the
jury will follow.
VRP(Jan. 12, 2010) at 15-16.
minute entry for that same day confirms:
Defendant and respective counsel present
Voir dire continues
Court and counsel meet in chambers re hardship and challenges
Court excuses # 424, 356, 265, 218, 172, 168, 130, 104, 79,
25 (and 208 separately)
As counsel exercise written peremptory challenges, the Court
preliminarily instructs and admonishes the potential jurors.
CP at 10402.
the judge's statement and the docket notation about
meeting with "counsel" in chambers regarding
challenges for cause, counsel from both sides went into
chambers with the judge and the court reporter. In chambers,
the judge asked the State's position on jurors 25 and 58.
The State opposed a for-cause challenge to both jurors. The
judge nevertheless dismissed jurors 25 and 58 for cause
because they indicated that they would hold it against
Schierman if he did not testify. The defense also challenged
jurors 76, 171, 104, and 44 for cause based on statements
that they would not "consider alcohol as contributing to
mental state or lesser mental state." VRP(Jan. 12, 2010)
at 20. Judge Canova denied all four challenges because he did
not think the jurors' statements indicated an inability
to be "fair and impartial" jurors. Id. at
20-22. He also granted hardship requests to Jurors 49, 79,
130, 172, 265, 356, and 424. He denied hardship requests to
Jurors 104, 168, 218, 267, and 285. The judge, lawyers, and
court reporter then went back out to the open courtroom, and
the judge explained what had just occurred in chambers:
The following jurors have been excused: Juror number 424,
juror number 356, juror number 265, juror number 218, juror
number 172, juror number 168, juror number 130, juror number
104, juror number 79, juror number 58, juror number 49, juror
number 25. These jurors are not excused because of peremptory
challenges. That will come later on this morning.
VRP (Jan. 12, 2010) at 42.
one of the six jurors to whom the defense raised (and lost) a
challenge for cause in chambers, in Schierman's absence,
did sit on Schierman's jury: Juror 76.
criminal defendant has a right, under the due process clause
of the Fourteenth Amendment, to be present "at any stage
of the criminal proceeding that is critical to its outcome if
his presence would contribute to the fairness of the
procedure." Kentucky v. Stincer, 482 U.S. 730,
745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); In re Pers.
Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835
(1994) (Lord II). Article I, section 22 of
Washington's Constitution also guarantees the right to
"appear and defend in person."
first address Schierman's right-to-presence challenge to
the preliminary hardship determinations, and then his
right-to-presence challenge to the for-cause juror challenges
Preliminary Excusals for Hardship (Late September to
State argues that if excluding Schierman from the preliminary
hardship conferences was error, it was not of constitutional
magnitude and therefore may not be raised for the first time
on appeal under Rules of Appellate Procedure (RAP) 2.5(a)(3).
2.5(a)(3) does not apply in its usual fashion on appeal of a
death penalty case. This court has held that we apply this
procedural rule more liberally in such cases, including to
asserted guilt phase errors raised for the first time on
appeal. State v. Lord, 117 Wn.2d 829, 849, 822 P.2d
177 (1991) (Lord I) (citing State v.
Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986)).
clear, however, that there is no constitutional right to
presence at the noncourt, nonadversarial office visits to
view juror declarations that are at issue here. Thus,
regardless of whether we consider this claim on its merits or
under RAP 2.5(a)(3)'s gatekeeping inquiry-which requires
that an asserted error "clearly implicate a
constitutional interest, " State v. Kalebaugh,
183 Wn.2d 578, 584, 355 P.3d 253 (2015)-the claim fails.
support of his argument that the constitutional right to
presence attaches to preliminary hardship determinations,
Schierman relies primarily on this court's decision in
State v. Irby, which recognized a defendant's
right to presence at for-cause eligibility
determinations made after jurors submitted written
answers to juror questionnaires. 170 Wn.2d 874, 884, 246 P.3d
796 (2011). Significantly, Irby explicitly
distinguished those postquestionnaire determinations from
preliminary hardship determinations, referring to the latter
as "proceedings that courts have held a defendant does
not have the right to attend." Id. at
882 (emphasis added). In this respect, Irby is
consistent with case law from other jurisdictions, which
generally distinguishes between dismissals that are unrelated
to the facts and issues in the defendant's case (e.g.,
for schedule conflicts, illness, etc.), and dismissals that
implicate facts and issues particular to the case (e.g., for
bias, taint, etc.). In this case, the process of defense
lawyers reviewing juror declarations-in hard copy or
electronic form-did not even rise to the level of a hardship
excusal hearing. It was a preliminary review of documents,
after which the lawyers advised the court about whether they
even wanted a hearing. Thus, with respect to the review of
declarations regarding preliminary hardship determinations,
Schierman's right-to-presence claim does not implicate
any constitutional interest.
Schierman argues that even if a defendant's right to
presence does not normally attach to preliminary hardship
evaluations, it attached to the hardship evaluations here
because they were conducted according to a special procedure.
Appellant's Opening Br. at 24-25. He seems to refer to
the fact that Judge Canova separately reviewed any disputed
hardship requests with the parties. Id. But
Schierman was present any time the judge conducted such a
review. He was absent only from his own lawyers' meetings
with an administrator to review documents.
For-Cause Challenges in Chambers (January 12, 2010)
next argues that his right to presence was violated when, in
his absence, counsel argued and the court ruled on several
for-cause juror challenges.
Preservation of error
Irby, the constitutional right to presence clearly
attaches to for-cause challenges during voir dire. 170 Wn.2d
at 883-84. The State does not dispute this.
the State argues that even if an "error affecting a
constitutional right" occurred here, this error was not
"manifest" within the meaning of that rule. RAP
2.5(a)(3). We disagree. As noted above, RAP 2.5(a)(3) does
not apply in is usual fashion in a death penalty case.
Lord 1, 117 Wn.2d at 849 (citing Jeffries,
105 Wn.2d at 418). But even if it did, its prerequisites are
satisfied in this instance. In order to show that an
error is "manifest" under RAP 2.5(a)(3), Schierman
must make "a 'plausible showing . . . that the
asserted error had practical and identifiable consequences in
the trial of the case, "' meaning that
'"given what the trial court knew at the time, the
court could have corrected the error.'"
Kalebaugh, 183 Wn.2d at 584 (quoting State v.
O'Hara, 167 Wn.2d 91, 99-100, 217 P.3d 756 (2009)).
The error in this case meets that standard: the trial judge
should have known not to hold for-cause challenge arguments
in the defendant's absence, and he could easily have
heard those arguments from the bench instead. Thus, the
record is sufficient to allow us to determine the merits of
Schierman's claim. O'Hara, 167 Wn.2d at 99
('"If the facts necessary to adjudicate the claimed
error are not in the record on appeal, . . . the error is not
manifest.'" (quoting State v. Kirkman, 159
Wn.2d 918, 935, 155 P.3d 125 (2007))).
conclude that the trial court committed constitutional error
in excluding Schierman from the discussion and rulings on six
for-cause challenges. Irby, 170 Wn.2d at 884-85
(defendant's absence from a "portion of jury
selection" violated constitutional right to presence);
State v. Slert, 181 Wn.2d 598, 609, 334 P.3d 1088
(2014) (plurality opinion) (remanding for Court of Appeals to
determine whether violation of right to presence under
Irby was harmless beyond a reasonable doubt),
rev'd, 186 Wn.2d 869, 383 P.3d466 (2016).
State argues that Schierman had no right to presence at the
in-chambers proceeding because that proceeding "[did]
not require a resolution of disputed facts." Br. of
Resp't at 36. It contends that for-cause challenges are
strictly '"legal matters'" to which the
right to presence does not attach. Id. (quoting
Lord II, 123 Wn.2d at 306).
disagree. For-cause challenges are not strictly legal
arguments (to which a defendant arguably cannot contribute),
but involve a factual component. They require the court to
scrutinize jurors' answers and behavior for indications
of bias that may be subtle. Federal precedent in other
contexts supports this view. E.g., Uttechtv. Brown,
551 U.S. 1, 9-10, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (in
determining whether juror can be impartial, the trial court
must evaluate juror's demeanor; this judgment is entitled
to deference). We hold that the trial court erred when it
heard for-cause challenges outside Schierman's presence.
Irby, this court presumed prejudice
stemming from the right-to-presence violation at issue;
accordingly, it placed the burden on the State to show that
"the jurors who were excused in [the defendant's]
absence . . . had no chance to sit on [the] jury." 170
Wn.2d at 886. In adopting this test, Irby departed
substantially from both federal constitutional law and our
state precedent on the right to presence. Prior to
Irby, this court did not place exactly the same
burden on the State. E.g., State v. Caliguri, 99
Wn.2d 501, 509, 664 P.2d 466 (1983). Instead, before we
applied constitutional harmless error analysis to a violation
of a defendant's right to presence, we required the
defendant to "first raise at least the possibility
of prejudice."" Id. (emphasis added).
contends that we should apply Irby's presumption
of prejudice (even absent "at least the possibility of
prejudice") in this case, but the relevant facts in
Irby are considerably different from the facts at
issue here. Irby, 170 Wn.2d at 886. In
Irby, counsel considered prospective jurors'
answers to written questionnaires and then, without
consulting the defendant, agreed to dismiss several jurors
without further questioning-some for hardship and some for
cause. Id. at 877-78. Thus, in Irby, the
defendant had absolutely no opportunity to '"give
advice or suggestion'" on this portion of the jury
selection process. Id. at 883 (quoting Snyder v.
Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed.
674 (1934), overruled in part on other grounds by Malloy
v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653
(1964)). Nor did he have any way of determining, after the
fact, how the excused jurors' "alleged inability to
serve [might have been] . . . tested by questioning in [his]
presence." Id. at 886. In that circumstance, it
makes sense to burden the State with proving that even absent
the constitutional violation, no excluded juror could have
been seated. To put this another way, it does not make sense
to burden the defendant with proving the unknowable.
case is different. Here, Schierman was present for all of the
juror questioning-thus, he was present when counsel
"tested" these jurors' eligibility to serve.
Id. He also knew about the in-chambers argument in
advance and raised no objection to its occurrence. In this
respect, Schierman's absence from the in-chambers hearing
is distinguishable from the facts in Irby and all of
the authority on which that decision relied. Instead,
it is more similar to the situation in Slert, where
such facts militated in favor of finding any error harmless.
186 Wn.2d at 875-76 (factual differences from Irby
compelled a conclusion different from the conclusion in
Schierman does not specifically allege any prejudice
resulting from the error here. Nor is any prejudice evident
from the record. As noted above, the two jurors who were
excused after the for-cause challenges (jurors 25 and 58)
were both excused at the defendant's behest. And of the
four jurors whom the defense challenged
unsuccessfully, only Juror 76 ultimately sat on
Schierman's jury. Schierman does not explain how defense
decisions on peremptory challenges were handled. Thus,
although we conclude that the trial court erred in hearing
for-cause challenges outside Schierman's presence, on
this record we find the error harmless.
Conducting Certain Juror Eligibility Determinations in a
Closed Proceeding Implicates the Right to a Public Trial
(under the Sixth Amendment and Article I, Section 22); the
Closure in This Case, However, Was De Minimis and Thus Does
Not Warrant Reversal
argues that his right to a public trial, under the Sixth
Amendment to the United States Constitution and article I,
section 22 of the Washington State Constitution, was violated
when counsel met privately with the jury services manager to
make preliminary hardship excusal determinations (from late
September 2009 to mid-November 2009). He also argues that his
public trial right was violated when counsel challenged
several jurors for cause in chambers on the final day of voir
dire (January 12, 2010). He asserts that the remedy for each
error is reversal of his convictions.
Preliminary hardship determinations
preliminary hardship excusal determinations are described in
Section I.A.I above.
recently held in State v. Russell that the public
trial right does not attach to "work sessions" in
which attorneys, parties, and the court "review juror
questionnaires for hardship." 183 Wn.2d 720, 730-32, 357
P.3d 38 (2015). We explained that hardship
determinations-which decide "whether a juror is able to
serve at a particular time or for a particular
duration"-differ fundamentally from peremptory
or for-cause challenges-which determine a particular
juror's ability to serve as a neutral factor in a
particular case. Id. at 730. And we concluded that
hardship determinations do not implicate the concerns
underlying the public trial right, at least where no juror
was excused for hardship without further (on-the-record)
proceedings unless all parties agreed. Id. at 731.
preliminary hardship determinations in Schierman's case
were identical in all relevant respects to the work sessions
in Russell. Thus, Russell controls and
Schierman's public trial right challenge to these
determinations fails-regardless of whether we hold that the
error was not preserved for review or the closure does not
in-chambers juror challenges for cause are described in
Section I.A.2 above.
Preservation of error
discussed in Section II.A.2.a above, a claim of courtroom
closure can be raised for the first time on appeal.
State argues that the public trial right does not attach to
the proceeding at issue here-a proceeding that entailed both
arguments and rulings on for-cause juror challenges. It
contends that the public trial right attaches to juror
questioning, but not to counsel's for-cause challenges or
the trial court's rulings thereon. In support of that
argument, the State asserts that the proceeding at issue here
was "functionally a sidebar." Br. of Resp't at
reject this argument and reaffirm that the public trial right
attaches to juror challenges and the rulings thereon. We
recently reiterated that it is '"well settled that
the right to a public trial. . . extends to jury selection,
' and . . . reaffirm[ed] that the right attaches to ...
for cause and peremptory challenges." State v.
Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015) (first
alteration in original) (citation omitted) (quoting State
v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005)).
It necessarily follows that the right to a public trial
extended to the hearing on for-cause challenges in this case.
have explained in numerous recent cases, the public trial
right attaches to proceedings that have historically occurred
in open court and that implicate "the core values"
underlying that right. State v. Sublett, 176 Wn.2d
58, 72, 292 P.3d 715 (2012) (plurality opinion). These values
include '"ensur[ing] a fair trial, . . . remind[ing]
the prosecutor and judge of their responsibility to the
accused and the importance of their functions, . . .
encourag[ing] witnesses to come forward, . . . discourag[ing]
perjury, ' . . . promot[ing] confidence in the judiciary,
" and providing an outlet for the
public's "concern, outrage, and
hostility." Juror challenges plainly implicate
several of these values. These challenges and rulings can
reflect racial, ethnic, and other forms of bias in jury
selection. See Davis v. Ayala, ___ U.S.
___, 135 S.Ct. 2187, 2194-95, 192 L.Ed.2d 323
(2015); Batson v. Kentucky, 476 U.S. 79, 83, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986). Conducting them in open
court, where the public can monitor the parties' use of
challenges, thus contributes to the fairness of the
proceedings and promotes confidence in the judiciary. This is
perhaps never more important than in a contentious, notorious
criminal case like this one, where community "concern,
outrage, and hostility" are at their
highest. When a proceeding has historically
occurred in public and implicates these values, it is not a
with these principles and with our opinion in Love,
we hold that the public trial right attached to the
proceeding at issue here. The trial court therefore erred
when it heard and ruled on six for-cause juror challenges in
a closed proceeding.
addition to arguing that the public trial right did not
attach to the proceeding in question, the State argues in the
alternative that any error in closing the for-cause
challenges was de minimis, "so insignificant that it
does not rise to the level of a constitutional
violation." Br. of Resp't at 57. This kind of error
occurs when a closure implicates the values
underlying the public trial right-when it involves
proceedings to which that right attaches-but does not
undermine those values to an extent that warrants
the remedy of automatic reversal. Peterson v.
Williams, 85 F.3d 39, 43(2dCir. 1996).
argument presents us with a question of first impression. To
be sure, we have rejected de minimis arguments in past cases.
And one such case, State v. Shearer, contained broad
dicta purporting to completely reject "the possibility
of de minimis violations" of the public trial right
under any circumstances. 181 Wn.2d 564, 573, 334 P.3d 1078
(2014) (plurality opinion). But we have in fact never
considered a de minimis error argument as applied to a
proceeding like the one at issue here: a proceeding that
involved no witness testimony, no questioning of potential
jurors, and no presentation of evidence. Instead, all of our
cases rejecting that argument involved the determination of
facts behind closed doors. State v. Frawley, 181
Wn.2d 452, 455-58, 334 P.3d 1022 (2014) (plurality opinion)
(individual jurors questioned in chambers); Shearer,
181 Wn.2d at 567-68 (individual jurors questioned in
chambers); In re Pers. Restraint of Morris, 176
Wn.2d 157, 161, 288 P.3d 1140 (2012) (plurality opinion)
(individual jurors questioned in chambers); State v.
Paumier, 176 Wn.2d 29, 33, 288 P.3d 1126 (2012)
(individual jurors questioned in chambers); State v.
Wise, 176 Wn.2d 1, 7, 288 P.3d 1113 (2012) (individual
jurors questioned in chambers); State v. Strode, 167
Wn.2d 222, 224, 217 P.3d 310 (2008) (plurality opinion)
(individual jurors questioned in chambers); State v.
Easterling, 157 Wn.2d 167, 172, 137 P.3d 825 (2006)
(pretrial motions to sever and dismiss closed so counsel
could discuss "specifics" that he was reluctant to
discuss in open court); Brightman, 155 Wn.2d at
510-11 ('"first two or three days'" of jury
selection, including juror questioning, closed to the
public); In re Pers. Restraint of Orange, 152 Wn.2d
795, 801-02, 100 P.3d 291 (2004) (entire voir dire process
closed to the public); State v. Bone-Club, 128 Wn.2d
254, 256-57, 906 P.2d 325 (1995) (pretrial suppression
distinction matters to the public trial right analysis. As
explained above, the proceeding at issue here implicated
several of the concerns underlying the right to a public
trial: public jury selection (including for-cause challenges)
contributes to oversight of the lawyers and the judge,
reminding them of the significance of their duties and
serving as a check on their biases; promotes confidence in
the judiciary; and serves as an outlet for community concern.
See In re Det. of Morgan, 180 Wn.2d 312, 325, 330
P.3d 774 (2014); Press-Enter. Co. v. Superior Court,
478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (quoting
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
570, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)). But because that
proceeding involved no juror statements, witness testimony,
or presentation of evidence, another purpose underlying the
public trial right is not implicated:
'"discourag[ing] perjury." Morgan, 180
Wn.2d at 325 (quoting Sublett, 176 Wn.2d at 72). Nor
is it clear how arguing the for-cause challenges in public
could have encouraged any witnesses to come forward. See
id. Thus, unlike the closures we have held to be
reversible error in the past, the closure at issue
here-although error-did not fundamentally taint the process
by which the court established the facts necessary to
assemble the jury or decide the case. Cf. Wise, 176
Wn.2d at 18 (granting the remedy of a new trial for the
erroneous closure of a portion of voir dire because
"[h]ere, we cannot know what the jurors might have said
differently if questioned in the courtroom").
properly address this kind of error, we must strike a careful
hand, we must craft a rule that avoids the outcome warned
against in Justice Stephens's concurrence/dissent: the
conflation of specific procedural rights with a vague right
to fundamentally '"fair"' proceedings.
Concurrence/dissent at 17 (quoting United States v.
Gonzalez-Lopez, 548 U.S. 140, 145, 126 S.Ct. 2557, 165
L.Ed.2d 409 (2006)). The temptation created by that approach,
to excuse procedural violations as harmless after the fact,
leads predictably to the result that procedural rights become
entirely unenforceable. We agree with the concurrence/dissent
that this outcome poses unacceptable risks to our system of
justice, and that certain de minimis analyses from other
jurisdictions exemplify this problem. E.g., Gibbons v.
Savage, 555 F.3d 112, 114, 121 (2d Cir. 2009) (holding
closed proceeding in which potential jurors were questioned
about their impartiality was de minimis violation);
United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th
Cir. 1994) (holding that 20-minute closure of trial was de
minimis solely because it was inadvertent). We stress that
our current precedent, which today's decision does not
disturb, forecloses the possibility of de minimis violations
involving juror questioning or witness testimony.
other hand, we must also avoid enforcing the public trial
right in a manner so rigid and mechanistic that we do more
harm than good to the values underlying that right. The rule
contemplated by Shearer's dicta, which purports
to preclude the possibility of de minimis error under any
circumstances, would result in that harm, for two reasons.
First, a rule requiring automatic reversal for every
erroneous closure, no matter how inconsequential to the
ultimate fairness of the trial, is more likely to diminish
than promote public confidence in the judiciary. This is no
doubt why the United States Supreme Court has held that where
the public trial right is concerned, "the remedy should
be appropriate to the violation." Waller v.
Georgia, 467 U.S. 39, 50, 104 S.Ct. 2210, 81 L.Ed.2d 31
(1984). Second, a rule that completely
forecloses the possibility of de minimis violations will
often force appellate courts to choose between two
undesirable outcomes: on one hand, a reversal that is a clear
windfall for the defendant and waste of resources for
everyone else; on the other, a holding that the public trial
right does not attach at all to the proceeding in question.
The policy implications of such a rule are troubling: it
creates an incentive for appellate courts to find more and
more proceedings exempt from Sixth Amendment and article I,
section 10 protections altogether. This is no doubt why there
is no jurisdiction we are aware of that has adopted a rule
completely rejecting the doctrine of de minimis closures.
light of these competing concerns, we hold that the doctrine
of de minimis error can apply to the proceeding at issue in
this case, which involved no juror questioning, witness
testimony, or presentation of evidence. We also hold, for the
reasons given below, that the closure at issue here was a de
minimis error and therefore does not warrant the remedy of
noted above and elaborated in Justice Yu's
concurrence/dissent, the de minimis error inquiry asks to
what extent the particular closure in question undermined the
values furthered by the public trial right.
Peterson, 85 F.3d at 43. While this inquiry is
necessarily case specific, courts applying it have considered
the length of and reason for the closure (e.g., whether it
was inadvertent), Brightman, 155 Wn.2d at 517
(collecting cases); the substance of the closed proceedings,
United States v. Ivester, 316 F.3d 955, 960 (9th
Cir. 2003); and whether that substance was contemporaneously
transcribed or timely memorialized in open court,
Peterson, 85 F.3dat43.
case, the closure was brief and, although it was not
inadvertent, it was also not objected to. While a defendant
need not object to a courtroom closure in order to preserve
the issue for direct appeal, the lack of objection is some
indication that the trial remained fundamentally fair.
Accord Weaver v. Massachusetts, ___ U.S. ___, 137
S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017) (erroneous courtroom
closure does not necessarily compromise the fundamental
fairness of a trial). As discussed at length above, the
proceeding at issue here involved no factual determinations
and thus did not implicate the purposes of the public trial
right relating to the establishment of critical facts. And
finally, the proceeding was simultaneously transcribed and
then immediately memorialized again in open court. VRP (Jan.
12, 2010) at 41 ("Now that everyone is back, I'm
going to read off the numbers of jurors who have been excused
at this point."). These measures, while not a substitute
for real-time public observation, certainly served to remind
the court and counsel of their responsibilities and provide a
check on possible bias, thereby ensuring the fairness of the
remaining purposes of the public trial right are to promote
public confidence in the judiciary and ensure an outlet for
community emotions. Public confidence in-or, for that matter,
basic understanding of-the judiciary would not be well served
if counsel routinely examined jurors in public but then
retired to chambers to characterize and argue about these
jurors' expressions, answers, and demeanor. And real-time
observation is certainly a better outlet for community
"concern, outrage, and hostility, " Press
Enter., 478 U.S. at 13, than review of a cold record is.
But in this case, the 10-minute meeting in chambers, which
was contemporaneously memorialized and publicly announced
immediately afterward, and occurred without testimony and
without objection, cannot be said to have meaningfully
undermined public confidence or participation in the judicial
system. Indeed, it is more realistic to say that reversing
four convictions for aggravated murder resulting from a
months-long trial on the basis of a 10-minute in-chambers
discussion-which the parties apparently agreed to and which
resulted in no testimony, no evidence, and no secrets-would
be more likely to diminish public confidence in the
these reasons, we adopt a limited de minimis exception to our
rule of automatic reversal for all violations of the public
trial right. We reject Shearer's dicta
foreclosing the possibility of de minimis violations
altogether, and we hold that the 10-minute closure at issue
here-to which there was no objection and which involved no
juror questioning, witness testimony, or presentation of
evidence, and was simultaneously transcribed and immediately
afterward memorialized in open court-was a de minimis
violation of the right to a public trial.
The Trial Court Did Not Violate Schierman's Right to
Counsel under the Sixth Amendment or Article I, Section 22
When It Excused Approximately 100 Jurors for Hardship and Two
Jurors for Age-Related Reasons
argues that his right to counsel under the Sixth Amendment to
the United States Constitution and article I, section 22 of
the Washington State Constitution was violated when a defense
paralegal agreed to the excusal of approximately 100
prospective jurors for hardship. He also argues that his
right to counsel was violated when the jury coordinator
excused two jurors for age-related reasons. We reject both of
Hardship excusal of approximately 100 jurors after
consultation with paralegal
October 19, 2009-the first day on which Wheeler (the jury
services coordinator) reviewed hardship requests with
counsel-a defense paralegal from Connick's office came to
the courthouse and met with Wheeler. Wheeler believed that
the paralegal was an attorney from defense counsel's
office, although the paralegal did not actually state that
she was an attorney. Wheeler told the paralegal that the
State did not object to granting hardship requests for
approximately 100 individuals. The paralegal agreed that
those individuals could be excused on behalf of the defense.
Wheeler excused the 100.
30 minutes later, Connick found out what his paralegal had
done and e-mailed the court that there had been a mistake.
The e-mail stated that the defense did not agree to the
dismissals. By that time, however, the court had already
dismissed the 100 jurors.
October 20, 2009, the trial court held an in-chambers
conference to address the issue. At the conference, Connick
was, according to the court, "quite candid in
acknowledging that it had been his mistake in communicating
with his paralegal." VRP (Oct. 28, 2009) at 7. Defense
counsel gave "no indication that the defense was
planning to pursue any remedy, to the extent there might be
one, for the mistake." Id.
Jury coordinator's excusal of two jurors for age-related
Friday, October 16, 2009, jury coordinator Patricia Rials
sent an e-mail to Wheeler informing him that two potential
jurors "were excused for Age Related Reasons." CP
at 24703. The e-mail stated that one excused juror was 84
years old and the other was 88, and also explained that the
excusal "was done via telephone . . . no back-up
information." Id. (alteration in original).
criminal defendant has the constitutional right to counsel at
all "critical stages" of the proceedings. State
v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90 (2005).
Hardship excusal of approximately 100 jurors after
consultation with defense paralegal
argues that preliminary hardship excusal determinations are a
critical stage of the criminal proceedings. He does not cite
any authority; he makes only the broad argument that
"[j]ury selection is a critical stage."
Appellant's Opening Br. at 36.
State argues that the right to counsel cannot attach to a
determination that may be delegated to court staff. More
specifically, it argues that a hardship excusal cannot be a
"critical stage" of the criminal proceedings
because it involves no "judicial decisionmaking."
Br. of Resp't at 65.
is correct that the "critical stage" determination
does not turn on the presence or absence of judicial
decision-making. E.g., United States v. Wade, 388
U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (right to
counsel attaches to postindictment lineup). However, if the
right to counsel is claimed for a nonjudicial proceeding,
that proceeding constitutes a '"critical
stage'" only if "the accused [is] confronted
... by the procedural system, or by his expert adversary, or
by both." United States v. Ash, 413 U.S. 300,
311, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).
necessary corollary of this rule is that if the accused is
not in front of a judge, not confronted by the procedural
system, not confronted by the adversary, and not really
confronted at all, then the right to counsel does not attach.
In this case, the trial court established a hardship
determination procedure that afforded both parties an
opportunity to object. One of the steps in that procedure was
that the lawyers could view juror hardship
determinations-some of which came in online and some of which
came in on paper-in the jury administrators' office. The
State and the defense did go to that office, but they went
separately. They looked at declarations there, just as they
might look at declarations in the privacy of their own
offices. Then, based on their record review, they informed
the administrator and the judge about whether a hearing was
necessary. Every time a party requested a hearing, the
request was granted. Thus, this is not a situation where the
State was represented at an adversarial proceeding and the
defendant was not.
it were, the invited error doctrine prohibits a party from
appealing on the basis of an error that he or she "set
up" at trial. City of Seattle v. Patu, 147
Wn.2d 717, 720, 58 P.3d 273 (2002) (citing State v.
Pam, 101 Wn.2d 507, 511, 680 P.2d 764 (1984),
overruled on other grounds by State v. Olson, 126
Wn.2d 315, 893 P.2d 629 (1995)). In this case, defense
counsel both caused the error and failed to request any
remedy when given the opportunity. Thus, the error was
invited and Schierman cannot raise it now, on appeal.
Jury coordinator's excusal of two jurors for age-related
assignment of error to these dismissals is contradicted by
the record. The e-mail from Rials to Wheeler identified the
two excused jurors by name. CP at 24703. On October 22, 2009,
defense counsel sent an e-mail to Wheeler identifying these
same two jurors by name and agreeing to their excusal for
"adv.age." CP at 25068.
Trial Court Did Not Err, under This Court's Decisions in
Dearbone and Luvene, by
Permitting the State To File a New Notice of Special
Sentencing Proceeding in November 2009
10.95.040(1) provides, "If a person is charged with
aggravated first degree murder as defined by RCW 10.95.020,
the prosecuting attorney shall file written notice of a
special sentencing proceeding to determine whether or not the
death penalty should be imposed when there is reason to
believe that there are not sufficient mitigating
circumstances to merit leniency." RCW 10.95.040(2)
provides that the notice must be filed "within thirty
days after the . . . arraignment." In Dearbone
and Luvene, this court held that RCW 10.95.040(2)
requires strict compliance.
argues that before the State filed the notice of special
sentencing proceeding in his case, it failed to charge him
with aggravated first degree murder "as defined by
RCW 10.95.020" because it omitted some of the
language describing the aggravating factor alleged. RCW
10.94.040(1) (emphasis added). He argues that the notice of
special sentencing proceeding was therefore invalid under
Dearbone and Luvene. We reject this
State charged Schierman on July 24, 2006, with four counts of
aggravated first degree murder and one count of first degree
arson. Count I alleges that Schierman premeditatedly caused
the death of Olga and "that further aggravating
circumstances exist, to-wit: there was more than one victim;
Contrary to RCW 9A.32.030(1)(a) and 10.95.020(10)." CP
at 1. Counts II, III, and IV allege similarly that Schierman
murdered Lyuba, Justin, and Andrew. They also included the
[The State accuses Schierman] of the crime of Aggravated
Murder in the First Degree, a crime of the same or similar
character and based on a series of acts connected together
with another crime charged herein, which crimes were part of
a common scheme or plan, and which crimes were so closely
connected in respect to time, place and occasion that it
would be difficult to separate proof of one charge from proof
of the other, committed as follows: ....
Id. (boldface omitted). The remainder of each count
alleged the existence of aggravating circumstances:
"to-wit: there was more than one victim; Contrary to RCW
9A.32.030(1)(a) and 10.95.020(10), and against the peace and
dignity of the State of Washington." CP at 2.
October 20, 2006, at defense counsel's request, the court
extended the deadline for filing the notice of intent to seek
the death penalty to January 31, 2007. The State filed the
notice on January 30, 2007.
omnibus hearing on October 23, 2009, the State notified the
court and the defense that the charging information contained
a "scrivener's error . . . with respect to the
aggravating factor." VRP (Oct. 23, 2009) at 126. The
State explained that although the information cited to the
correct statute where it alleged the existence of aggravating
circumstances, it omitted part of the statutory language. The
information alleged that there was "more than one
victim; Contrary to . . . [RCW] 10.95.020(10), " CP at
1-2, but the full language of RCW 10.95.020(10) reads:
"There was more than one victim and the murders were
part of a common scheme or plan or the result of a single act
of the person.''' (Emphasis added.) The
State moved to amend the information to add the missing
court heard argument on that motion on November 3, 2009. The
State admitted its error but argued that the amendment would
not prejudice the defense, since "there ha[d] never been
. . . any question in this case as to which aggravating
factor was alleged." VRP (Nov. 3, 2009) at 100. The
defense objected that it would be prejudiced if the State
were permitted to amend the information. It argued that it
would have conducted discovery differently had it known that
the State would allege that the murders were part of a common
scheme or plan, the result of a single act of the person, or
court granted the State's motion to amend the
information, concluding that the defense would not be
prejudiced since if the amendment changed the charging
instrument at all, it would only add to the State's
burden. The court's order states that the "Amended
information corrects [a] scrivener's error." CP at
6764. The amended information is identical to the original
information except that it alleges the full aggravating
circumstance listed in RCW 10.95.020(10): "There was
more than one victim and the murders were part of a
common scheme or plan or the result of a single act
of the person.''' CP at 6766-68 (emphasis
State filed a new death penalty notice on the same day
(November 3, 2009). CP at 6769. The defense filed a motion to
strike that notice, arguing that the original notice of
special proceedings had been based on a faulty charging
information and that it was now too late to file another
notice. The court denied that motion, ruling that the
original charging information had properly pleaded the
aggravating circumstance listed at RCW 10.95.020(10).
argues that the original information did not properly charge
him with aggravated first degree murder, that the original
notice of special sentencing proceeding was therefore
invalid, and that the subsequent notice of special sentencing
proceeding was therefore untimely. Accordingly, he argues
that the State never filed a valid notice of special
sentencing proceeding and that it therefore may not seek the
death penalty. He relies on Dearbone and
disagree. Schierman does not point to any defect in the
content or timing of the original notice of special
sentencing proceeding. He identifies instead a defect in the
information, i.e., that it failed to specifically allege that
the murders were "part of a common scheme or plan or the
result of a single act of the person." CP at 6764- 68.
That is not a defect in the death notice. And, in fact, the
information did contain the "common scheme or plan"
language-just not in the usual place. Its failure to include
the "single act of the person" language is not a
defect in the content, filing, or service of the death
notice. RCW 10.95.020(10). We therefore reject
Schierman's argument that the notice of special
sentencing proceeding was invalid.
Trial Court Misunderstood the Standard Applicable to the
Defense's For-Cause Juror Challenges, But It Did Not
Violate Schierman's Rights to Due Process and an
Impartial Jury (under the Sixth and Fourteenth Amendments)
Sixth and Fourteenth Amendments to the United States
Constitution guarantee a criminal defendant the right to
trial by an impartial jury. Morgan v. Illinois, 504
U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). In a
capital case, the trial court must ensure that the jury is
composed of members who can apply the State's death
penalty law impartially. State v. Brown, 132 Wn.2d
529, 598, 940 P.2d 546 (1997).
argues that the trial court violated his right to an
impartial jury by applying unequal standards in its death
qualification rulings. He contends that the court applied a
harsher standard-more likely to result in a juror's
dismissal-when a juror expressed opposition to, as opposed to
approval of, the death penalty.
December 1, 2009, defense counsel challenged Juror 25 for
cause, arguing that the juror's questionnaire responses
indicated he would not consider mitigating factors during the
penalty phase if Schierman were found guilty of aggravated,
premeditated first degree murder. The trial court and defense
counsel then debated the standard applicable to
"disqualification of a juror for cause because of their
favoring the death penalty." VRP (Dec. 1, 2009) at 56.
trial court opined that under Morgan, a juror could
not be disqualified on the basis of his or her
support for the death penalty unless "the
person really has an automatic reaction . . . [and] will
impose the death penalty if [the defendant] is convicted of a
particular crime regardless of any . . . mitigating
circumstances." Id. The court also opined that
a different standard applied to jurors who opposed the death
penalty. It rejected defense counsel's for-cause
challenge because it concluded that Juror 25's
questionnaire responses indicated that he would consider
mitigating circumstances "if we reach a sentencing
phase." Id. at 60.
counsel objected, arguing that Juror 25's responses
indicated that he would consider mitigating circumstances
only "insofar as [they] relate to the offense
itself." Id. at 61. Defense counsel also
objected to the court's interpretation of
Morgan. The following day, defense counsel filed a
written motion arguing that the correct standard for
disqualifying a juror because of his or her views on the
death penalty was '"whether the juror's views
would 'prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and
his oath."" CP at 6972 (boldface omitted) (quoting
Morgan, 504 U.S. at 728 (quoting Wainwright v.
Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841
(1985))). Counsel argued that this standard, articulated by
the United States Supreme Court in Witt, applied to
both pro- and anti-death-penalty jurors. In this motion, the
defense asked the court to disqualify for cause Jurors 14,
20, and 25.
response, the State filed a motion arguing that different
standards apply to jurors who oppose and jurors who favor the
death penalty. According to the State, jurors who
oppose the death penalty may be excluded on that
basis whenever their opposition would "substantially
impair them from performing their duties, " but jurors
who favor the death penalty may be excluded on that
basis only when they "would automatically impose the
death penalty." CP at 6977.
December 8, 2009, the trial court issued a lengthy oral
ruling on the parties' motions and the meaning of the
Morgan decision. It concluded that its prior rulings
were correct, and that United States Supreme Court precedent
applicable in this state under Brown, 132 Wn.2d at
598, established different standards for disqualifying
pro-death-penalty and anti-death-penalty jurors. The court
specifically agreed with the view expressed in footnote 5 to
Justice Scalia's dissent in Morgan: that the
majority's holding resulted in a "double
standard" for capital jury qualification. VRP (Dec. 8,
2009) at 226; see also Morgan, 504 U.S. at 750 n.5
(Scalia, J., dissenting).
December 22, 2009, the trial court excluded Juror 302 on the
ground that her anti-death-penalty sentiments rendered her
ineligible under the Witt standard. Defense counsel
again objected that the application of different
disqualification standards to pro- and anti-death-penalty
jurors violated "fundamental fairness." VRP (Dec.
22, 2009) at 82-83. The court declined to address the issue
argues that the trial court's application of this
'"asymmetrical standard'" resulted in the
seating of two jurors who were "substantially
impaired" in their ability to be impartial (Jurors 59
and 140), and the erroneous exclusion of Juror 280.
Appellant's Opening Br. at 47, 55.
December 8, 2009, the defense challenged Juror 59 for cause,
arguing that that juror believed the defense had the burden
to prove mitigation and that he would consider only limited
mitigating evidence, such as "a psychiatrically
diagnosed condition." VRP (Dec. 8, 2009) at 103-04. The
trial court rejected the challenge under both the
Morgan standard-which it believed applied to
jurors who favored the death penalty-and the Witt
standard-which it assumed applied "for the sake of
discussion." Id. at 106-09. The court
specifically noted that Juror 59 admitted he knew little
about the law and said that he would follow the court's
instructions. Id. at 108. It also concluded that
Juror 59 "was fine with the presumption of life being
the presumed sentence in the penalty phase . . . and . . .
would follow that presumption." Id. at 108-09.
Ultimately, Juror 59 was dismissed before the jury began its
challenge to Juror 140 proceeded similarly to the challenge
to Juror 59. The defense moved to disqualify Juror 140
because her questionnaire responses indicated that she
thought the defendant should get the death penalty "if
he is convicted." VRP (Dec. 9, 2009) at 40. The trial
court rejected the challenge because it concluded that Juror
140 had, on further questioning by counsel for both parties,
shown herself to be capable of applying the law as instructed
by the court.
140's responses to counsel's in-person questions were
somewhat ambiguous. In response to questions by defense
counsel, Juror 140 stated that she didn't think
"where [a defendant] came from in their own life and
circumstances" should make any difference at sentencing,
provided the defendant was "convicted of intentional,
premeditated murder." Id. at 32. She also
agreed that if a defendant were convicted of premeditated
murder, "then ... the death penalty is the only
appropriate penalty for a guilty murderer like that."
Id. at 32-33. In response to questions by the State,
however, Juror 140 stated that even if a defendant were
convicted of premeditated murder, "he might not need
death, you know, there might be hope ... for this
person." Id. at 37. She also agreed that she
was "okay with the ... idea ... [t]hat [a defendant
convicted of aggravated premeditated murder] could spend the
rest of [his] days in prison, " instead of facing
execution, because she didn't "know the whole story
yet" and stated that she "can't go with what my
heart tells me, I've got to listen to the facts of the
whole thing and be open." Id. at 38-40. She
repeatedly emphasized the possibility that a person who
committed premeditated murder might be truly sorry and
"better himself." Id. at 38. She stated
that she was "open to the idea" that "fairness
or mercy" could play a role in sentencing "because
we don't know the whole story yet." Id. at
39. She also stated her willingness to apply a presumption in
favor of life in prison without parole.
Juror 59, the trial court concluded that Juror 140 should not
be disqualified under either the "Morgan"
(automatic death penalty) standard or the Witt
(substantial impairment) standard. Id. at 44-45, 48.
response to questioning by the court, Juror 280 stated that
she would probably have difficulty imposing the death penalty
because "the death penalty is definitely finite, and
there's no going back. I also think that it's kind of
arbitrary, from kind of state to state, and perhaps maybe if
you have more money you might get a better judgment."
VRP (Dec. 21, 2009) at 22. She clarified that she could
impose the death penalty under "really clearcut. . .
circumstances where . . . if the person was let out they
would kill again." Id. In response to
questioning by defense counsel, Juror 280 indicated that she
might have trouble following the court's instructions
during the penalty phase because her personal "bar [to
imposing the death penalty] may be different than what the
court instructs." Id. at 29. She then repeated
that her "bar" was that the death penalty should be
imposed only on a "person . . . likely to kill
again." Id. at 30.
trial court granted the State's for-cause challenge to
Juror 280, finding that her approach to the death penalty
would add to the State's burden of proof: "She has
[her ability to impose the death penalty] narrowed down to
one very, very limited set of facts and that set of facts
clearly, in the court's view, would substantially impair
her ability to follow the court's instructions as to the
law to be applied in this case." Id. at 39.
death-qualification context, the State, as well as the
defendant, is entitled to an "impartial jury."
State v. Hughes, 106 Wn.2d 176, 185-86, 721 P.2d 902
(1986) ('"The guarantee of impartiality cannot mean
that the state has a right to present its case to the jury
most likely to return a verdict of guilt, nor can it
mean that the accused has a right to present his case to the
jury most likely to acquit. But the converse is also
true. The guarantee cannot mean that the state must present
its case to the jury least likely to convict or
impose the death penalty, nor that the defense must present
its case to the jury least likely to find him
innocent or vote for life imprisonment.'" (quoting
Smith v. Balkcom, 660 F.2d 573, 579 (5th Cir.
1981))). The United States Constitution and Washington's
constitution provide the same degree of protection for the
impartial jury trial right in the death-qualification
context. Brown, 132 Wn.2d at 598.
reasons that follow, we conclude that the trial court erred
when it ruled that different disqualification standards apply
to jurors who oppose, and jurors who favor, the death
penalty. But we also conclude that this error did not deprive
Schierman of his state and federal constitutional right to an
The trial court erred when it ruled that different
disqualification standards apply to pro- and
Witt, the United States Supreme Court held that a
prospective juror may be dismissed for cause "because of
his or her views on capital punishment" if those views
would '"prevent or substantially impair the
performance of his [or her] duties as a juror.'" 469
U.S. at 424. In embracing that standard, the Court rejected
statements in an earlier case, Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968), to the effect that a potential juror could not be
dismissed for his opposition to the death penalty unless he
'"states unambiguously that he would automatically
vote against the imposition of capital punishment no matter
what the trial might reveal.'" Witt, 469
U.S. at 418 n.2 (emphasis omitted) (quoting Maxwell v.
Bishop, 398 U.S. 262, 265, 90 S.Ct. 1578, 26 L.Ed.2d 221
(1970) and citing Boulden v. Holman, 394 U.S. 478,
482, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969)).
to the trial court's ruling in Schierman's case,
Witt's "substantial impairment"
standard governs for-cause dismissals based on
either opposition to or support for the
death penalty. See Morgan, 504 U.S. at 728-29;
Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273,
101 L.Ed.2d 80 (1988). There is no separate, stricter
requirement that protects "death-prone jurors" from
dismissal unless they admit that they would
"automatically" vote for the death penalty.
Witt, 469 U.S. at 418 n.2.
did not change that. Rather, it reaffirmed and elaborated the
Court's earlier holding, in Ross, that a juror
is per se ineligible under the Witt standard if he
or she will automatically vote to impose the death penalty
upon a defendant's conviction in a capital case:
A juror who will automatically vote for the death
penalty in every case will fail in good faith to consider the
evidence of aggravating and mitigating circumstances as the
instructions require him to do. Indeed, because such a juror
has already formed an opinion on the merits, the presence or
absence of either aggravating or mitigating circumstances is
entirely irrelevant to such a juror. Therefore, based on the
requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment, a capital defendant may
challenge for cause any prospective juror who maintains such
views. If even one such juror is empaneled and the death
sentence is imposed, the State is disentitled to execute the
Morgan, 504 U.S. at 729 (emphasis added).
the standard for juror exclusion was not even at issue in
Morgan-the case concerned only the defendant's
entitlement to ask certain questions during voir dire. The
Morgan Court rejected the argument that
"general fairness and 'follow the law' questions
... are enough to detect those in the venire who
automatically would vote for the death penalty, "
reasoning that a juror might sincerely believe that his or
her "dogmatic views" are fair, impartial, and
consistent with the law. Id. at 734-35. It therefore
held that such questions do not suffice, under the Fourteenth
Amendment, to protect the defendant's right to an
impartial jury. U.S. CONST, amend. XIV.
Morgan holds only that a juror who will refuse to
consider mitigation at all is "substantially
impaired" (and therefore ineligible to serve) as a
matter of law, and that "general
fairness" questions are insufficient to identify such
jurors.Contrary to the State's
assertions, Morgan never held that a potential juror
who harbors doubts about the death penalty is easier to
exclude than a potential juror who is inclined to impose that
sentence. Justice Scalia's footnote to the contrary
appears in dissent and is incorrect, and the trial court
erred in adopting its interpretation of the majority's
The trial court's error did not deprive Schierman of his
state and federal constitutional right to an impartial jury;
thus, he is not entitled to relief
Juror 59: even if the trial court erred by refusing
to dismiss Juror 59, this error does not entitle Schierman to
relief because Juror 59 was excluded before deliberations
acknowledges that Juror 59 was excused before closing
arguments, but argues that the mere fact of his seating
"demonstrates how prejudicial the court's misreading
of the law was to [the defense]." Appellant's
Opening Br. at 55.
trial court erroneously denies a defendant's for-cause
challenge and the defendant is forced to use a peremptory
challenge to cure the trial court's error, his rights are
not violated so long as he is subsequently convicted by a
jury on which no biased juror sat. United States v.
Martinez-Salazar, 528 U.S. 304, 307, 120 S.Ct. 774, 145
L.Ed.2d 792 (2000); State v. Fire, 145 Wn.2d 152,
154, 34 P.3d 1218 (2001). Juror 59 was not excluded through
peremptory challenge, but he was excluded before
Schierman's jury began deliberations. Under the reasoning
of Martinez-Salazar and Fire, a trial court's
erroneous denial of a for-cause challenge is not independent
grounds for relief. Fire, 145 Wn.2d at 165 (citing
Martinez- Salazar, 528 U.S. 324). Rather,
the defendant is entitled to relief only when the trial
court's error actually resulted in the seating of a
biased juror. Id.
trial court's refusal to dismiss Juror 59 for cause did
not result in Juror 59 actually deliberating in
Schierman's case. Nor does Schierman allege that the
refusal indirectly resulted in the seating of any biased
juror. Rather, he asserts that it illustrates the prejudicial
nature of the trial court's views on for-cause
dismissals. This argument asks us to assume that prejudice
resulted from the court's application of an asymmetric
juror-exclusion standard. Under Fire, we cannot make
that presumption. Id. Thus, even if the trial court
erred in seating Juror 59, this error does not entitle
Schierman to relief.
Juror 140: the trial court did not abuse its
discretion by refusing to dismiss Juror 140 for bias
Juror 59, Juror 140 did deliberate in Schierman's case.
But the record does not indicate that Juror 140's seating
resulted from the trial court's legal error. Although the
trial court erred in ruling that different standards apply to
defense and prosecution for-cause challenges in a capital
case, it explicitly stated that Juror 140 could be seated
under either standard. Thus, it concluded that Juror
140's views on capital punishment would not
'"prevent or substantially impair the performance of
[her] duties as a juror.'" Witt, 469 U.S.
conclusion is reviewed for abuse of discretion. State v.
Cross, 156 Wn.2d 580, 595, 132 P.3d 80 (2006). Juror 140
stated that she would not be able to decide whether death was
the appropriate penalty until she heard all the facts. She
stated that she would be able to consider mitigating
circumstances and apply the presumption in favor of life
without parole. The trial court did not abuse its discretion
in concluding that Juror 140 was not substantially impaired
in her ability to follow the court's instructions and
apply the law.
Juror 280: the trial court did not abuse its
discretion when it dismissed Juror 280 for bias
280 explicitly stated that her views on the death penalty
would probably prevent her from following the court's
instructions. In context, this meant that she would not
consider imposing the death penalty unless the State proved
that Schierman would kill again if released.
Cross, this court affirmed the trial court's
exclusion of a juror who said that he '"would have a
hard time'" voting to impose the death penalty
because the defendant had paraplegia and used a wheelchair.
This court reasoned that the "challenge raise[d] a
difficult question because ... Cross was entitled to ask the
jury to grant him mercy on the grounds of his physical
state." Id. at 596-97. But it concluded that
the trial court did not abuse its discretion by excluding the
juror: "The trial judge clearly concluded that Juror 8
was not meaningfully willing or able to consider the death
penalty given the specific evidence in the case. It was not
an abuse of discretion to exclude this juror."
Id. at 597.
light of this holding in Cross, we conclude that the
trial court did not abuse its discretion by excluding Juror
280. In this case, Juror 280 told the trial court that she
would probably not consider voting to execute Schierman
unless the State proved that he would likely kill again. In
Cross, Juror 8 told that court that he would
probably not vote to impose the death penalty because the
defendant had a disability. Given the deferential standard of
review applicable and the concept of "impartiality"
this court adopted in Hughes, 106 Wn.2d at 185-86,
we cannot conclude that the trial court committed reversible
error by excluding Juror 280.
Cumulative Error in Jury Summoning and Selection Did Not
Violate Schierman's Right to a Fair and Impartial Jury
errors that occurred during jury selection do not
individually warrant reversal. In this case, they do not rise
to the level of cumulative error in the overall jury
The Trial Court Did Not Violate Due Process Protections by
Permitting the State To Argue That There Was Circumstantial
Evidence of Sexual Motivation
argues that the trial court violated due process protections
by permitting the State to argue that there was
circumstantial evidence of a sexual motivation for the
murders. We disagree.
December 30, 2009, the State served the defense with a
"Supplemental Memorandum And Materials In Support Of
Admission Of Crime Scene And Autopsy Photographs That Include
Images Of The Victims." CP at 7200 (italics omitted).
The memorandum contained a list of photographs and
corresponding expert witness "Declaration[s]"
interpreting the images therein. CP at 7231. According to the
defense, some of the interpretations suggested the
State's intent to "assert some type of sexual
motivation." CP at 7201-02. Of particular concern was
medical examiner Dr. Richard Harruff s description of
photograph 2548, which read as follows: "Shows the
victims' legs are spread apart, in all likelihood not a
result of the fire but probably reflects positioning prior to
the fire; this photo also shows a flashlight in the
debris." CP at 7232. The defense believed this
description contradicted statements Dr. Harruff made in a
2007 defense interview to the effect that he found nothing
unusual about the posing of the victims' bodies and
attributed their positioning to the "thermal
effect" of the house fire. CP at 7203-04 (boldface
omitted). It also argued that any attempt by the prosecution
to present a sexual motivation theory directly conflicted
with the State's earlier stipulation that "there is
no physical evidence of sexual assault of any of [the]
victims." CP at 7202 (underline omitted).
defense moved the court to sanction the prosecution, strike
the jury pool, and continue the trial, arguing that it needed
time to respond to what it deemed a completely new theory by
the prosecution. The trial court set arguments on the
issue for January 19, 2010, one week after jury selection was
scheduled to begin. When defense counsel argued that the
motions should be decided before jury selection began, the
trial court ordered that "there will be no evidence
presented of sexual motivation or sexual assault, consistent
with this Court's prior rulings and the prior
representations of counsel for the State that that was not an
issue in the case." VRP (Jan. 11, 2010) at 7. The court
then stated that it would await the State's briefing and
the defense reply before addressing the matter further.
the State filed its motion in response, it asserted that it
had never agreed not to pursue a sexual motivation theory.
Instead, it said it had agreed only that "there is
no physical evidence of sexual assault." CP at 7347
(boldface omitted). It also argued that the defense had known
"for literally years" about the circumstantial
evidence of a sexual motive, and that there was no legitimate
reason for defense counsel to suddenly express concern over
the State's intent to pursue this line of argumentation.
The State cited
the defendant's sexual comments, on the night of the
murder, about one of the women across the street; the
defendant's sexual banter in his email communications
late into the night of July 16, 2006; the condition of
Olga's body, which was found naked, on her back and with
her legs spread; the condition of [Lyuba]'s body, which
was found virtually naked, with the one article of remaining
clothing, her tank top, pushed above her breasts; and the
presence of a probable fire trailer consisting of women's
underwear in Alia Botvina's bedroom in the
CP at 7348 (footnotes omitted).
trial court denied the defense motion for sanctions, for a
continuance, and to strike the jury pool. It rejected defense
counsel's argument that voir dire would have been
conducted differently if the defense had known about the
sexual motivation theory. The trial court instead agreed with
the State that the defense had received ample notice that
there was "circumstantial evidence of a sexual
motive." VPvP (Jan. 19, 2010) at 147. This evidence was,
according to the trial court, crime scene photos showing that
Olga's and Botvina's bodies had been found nude or
mostly nude, the presence at the crime scene of a
"probable fire trailer consisting of women's
underwear, " and allegations that the defendant made
sexual comments about one of the victims. Id. at
148-49. The trial court also ruled that the State had not
offered, and would not be allowed to present, any expert
testimony regarding such a motive. Finally, the trial court
ruled that the defense could re-interview Dr. Harruff on the
contradiction between his initial statements and subsequent
declaration regarding the positioning of the victims'
State argues that it never misled the defense regarding its
intent to argue sexual motivation, and that it stipulated
that there was no evidence of sexual assault only to prevent
the defense from independently testing vaginal swabs taken
from the adult victims. The record supports that contention.
CP at 4448-56 ("State's Memorandum in Opposition to
Defendant's Motion to Independently Test Extracts from
Vaginal Swabs (Y-STR Testing)").
with the exception of Dr. Harruff s statement regarding the
positioning of the victims' legs, Schierman does not
allege that the State withheld any sexual-motivation-related
evidence. The trial court permitted the defense to
re-interview Dr. Harruff about his statement prior to trial,
and Dr. Harruff ultimately offered no testimony that the
victims' legs were positioned apart.
the trial court's statement that the prosecution would
not be allowed to argue a sexual motivation theory, we agree
with the State that this was a "passing comment. . .
based on a misunderstanding-later corrected." Br. of
Resp't at 125. As the trial court explained when it ruled
on this issue, the State never requested any "special
finding" of a "sexual motivation." VRP (Jan.
19, 2010) at 149-50. In that respect, the/actf of sexual
motivation was not at issue in the case, but this did not
mean that the State agreed not to argue any sexual motivation
theory. Schierman argues now that he
"reasonably understood the prosecutor's
stipulation [regarding sexual assault] to mean that
sexual motivation would not be an issue at trial."
Appellant's Reply Br. at 36 (emphasis added). But that is
not a reasonable response to the State's stipulation
regarding sexual assault.
The Evidence Was Sufficient To Support the State's Sexual
argues that by presenting its sexual motivation theory, the
State made prejudicial statements unsupported by the
evidence. We disagree; the State's sexual motivation
theory was supported by sufficient circumstantial evidence.
Winter, a man who shared a duplex with Schierman and another
tenant, Isaac Way, at the time of the murders, testified that
Schierman engaged in sexual conversation on various
occasions. He stated that when Schierman moved into the
house, he asked if there were "any good-looking
women" in the neighborhood and then specifically asked
about "the blonde across the street." VRP (Feb. 9,
2010) at 85. Winter also said that Schierman engaged in
"locker room talk . . . about girls" on the night
before the murders, and made a sexual comment in a Russian
accent, referring to Olga. Id. at 90, 105. Winter
testified that on the night before the murders, Schierman had
a pornographic video and made a joke about giving a friend a
"blowup doll." VRP (Feb. 10, 2010) at 52-54, 66.
Taylor, a computer forensic technician, testified that
Schierman had a Myspace chat with someone on the night before
the murders, in which he sent and received messages of a
witnesses also testified that women's undergarments were
found strewn around a basement bedroom in the Milkin home.
There was evidence of forced entry through the back basement
door of the home. Dr. Harruff, the medical examiner,
testified that Olga's and Lyuba's bodies had been
found nude or mostly nude, and Kim Duddy, a forensic
scientist, testified that Lyuba's clothing had been
removed after she was killed. That clothing was found stuffed
into a microwave oven vent. Finally, there was evidence that
Schierman had an injury on his neck that resembled a ligature
mark, and testimony that a necklace identified as
Schierman's had Olga's DNA on it. The forensic expert
who testified about the DNA explained that he expected to
find Schierman's DNA on the whole necklace, but any
"foreign biology . . . only on a portion of the
necklace, " and that his test results bore these
expectations out. VRP (Feb. 17, 2010) at 29-30, 41-42. He
also explained that foreign DNA could occur on a portion of
the necklace "if the necklace was grabbed in some
way." Id. at 29.
guilt phase closing argument, the prosecutor suggested that
Schierman had destroyed evidence of a sexual nature:
"Why pour gasoline on the victims' bodies? What does
he know about those bodies that he doesn't want
discovered?" VRP (Apr. 8, 2010) at 75. The prosecutor
also referenced most of the evidence noted above:
Well, we know what was going on Sunday evening. I talked
about the comment he knew about the women across the street,
he knew about the locker room talk, the joke about the
blow-up doll, the defendant bringing out the pornographic
movie, Jenna Jamison movie, the e-mail at 9:37 at night,
10:00, a sex party, there's nothing wrong with that,
people talk, that's not a condemnation, but taken
together, what does it tell us?
We know what's on the floor of Alia's bedroom, we
know where the bodies were found and how they were found
inside that room at the top of the stairs. Olga completely
naked, leaving Lyuba only with her tank-top on.
We know what the evidence tells us. We know there was trace
evidence found on the pajamas that were taken from the
microwave, Lyuba's DNA and the defendant's DNA, and
there was trace evidence recovered from underneath
Id. at 77-78. In addition, the prosecutor also
suggested that the location of the ligature mark-high on
Schierman's neck-indicated that Schierman "may have
been prone on top of somebody else, and who might that person
have been? Whose DNA is on this necklace? Conner Schierman
and Olga Milkin." Id. at 78-79.
in the penalty phase, the prosecutor elicited testimony from
Schierman's friend Christopher O'Brien that Schierman
had referred to the "hot chick" across the street.
VRP (Apr. 21, 2010) at 84.
is correct that counsel, in closing argument to the jury, may
not make prejudicial statements that are unsupported by the
evidence. State v. Rose, 62 Wn.2d 309, 312, 382 P.2d
513 (1963). But counsel may argue '"the
facts in evidence and reasonable inferences'"
therefrom. State v. Dhaliwal, 150 Wn.2d 559, 577, 79
P.3d 432 (2003) (quoting State v. Smith, 104 Wn.2d
497, 510, 707 P.2d 1306 (1985)). Here, almost every statement
that Schierman challenges is a direct reference to testimony
elicited in the trial.
authority on which Schierman relies holds only that counsel
may not argue a theory for which there is no
evidence. Rose, 62 Wn.2d at 310, 312 (prosecutor
committed misconduct when he referred to the defendant as a
'"drunken homosexual'" even though the
State's own witnesses testified that the defendant had
not appeared drunk); State v. Boehning, 127 Wn.App.
511, 518-23, 111 P.3d 899 (2005) (prosecutor committed
misconduct by arguing that the jury could infer that child
witness's out-of-court statements were even more damaging
to defendant than her in-court statements were).
appears to suggest that the State needed expert testimony to
support its "sexual conclusions" because these
conclusions were so prejudicial. There is no support for this
argument in the case law.
Presence of Soldiers in Uniform at the Trial, Coupled with
Testimony That Leonid Was Deployed in a Combat Zone When the
Murders Occurred, Did Not Violate Fourteenth Amendment Due
Process Protections or Sixth Amendment Rights to
Confrontation and an Impartial Jury
Sixth and Fourteenth Amendments to the United States
Constitution guarantee a criminal defendant the fundamental
right to a fair trial. In re Pers. Restraint of
Woods, 154 Wn.2d 400, 417, 114 P.3d 607 (2005),
overruled in part on other grounds by Carey v.
Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482
(2006). That right may be violated where the "courtroom
arrangement" created a risk that
'"impermissible factors'" would influence
the jury. Holbrook v. Flynn, 475 U.S. 560, 570, 106
S.Ct. 1340, 89 L.Ed.2d 525 (1986) (quoting Estelle v.
Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 48 L.Ed.2d
126 (1976)). Schierman alleges that two factors, in
combination, rendered his trial inherently unfair: (1)
Leonid's testimony that he was deployed in Iraq at the
time of the murders and (2) the presence of uniformed
military personnel in the courtroom audience.
Olga's husband and Andrew and Justin's father, was a
United States soldier stationed in Iraq at the time of the
murders. On October 28, 2009, the defense filed
"Defendant's Motion to Preclude Soldiers in Fatigues
from Attending Proceedings." CP at 6443. It stated that
defense counsel expected that uniformed soldiers would attend
the trial, and that this expectation was "based on prior
experience on this case, where the usual practice has been
for soldiers in fatigues to sit in the courtroom, behind the
prosecutor's table, close to and in full view [of] jurors
who will not only decide whether Schierman committed the
offense, but also whether he will live or die." CP at
6444. Defense counsel requested in the alternative that the
court permit videotaping of the courtroom audience.
trial court heard oral arguments on the motion on November 5,
2009. At that hearing, defense counsel noted that Leonid had
been appearing in uniform, acknowledged that "he ha[d]
every right to do so, " and requested that the court
instruct the prosecution not to tell the jury that Leonid had
been deployed in Iraq when the murder took place. VRP (Nov.
5, 2009) at 9. The defense requested that the jury be told
only that Leonid was out of the country at the time. The
State opposed all of the defense motions related to military
trial court denied the motion to exclude soldiers in uniform
from the courtroom. It reasoned that "the limited
presence of military personnel" did not infringe on
Schierman's constitutional rights because it was not a
comment on guilt or innocence. Id. at 20. It also
denied defense counsel's alternative motion to permit
trial court did, however, limit "references to
[Leonid]'s status as follows: That he was in the
military, on active duty at that time, and stationed outside
of the United States at the time of these crimes." VRP
(Jan. 20, 2010) at 14. The trial court thus excluded evidence
that he was stationed in Iraq.
order was violated almost immediately. At trial, Leonid was
the State's first witness. At first, he testified that he
was a soldier stationed at Fort Lewis, but then later stated
that when the murders occurred he "came back on
emergency leave from Iraq, from overseas." Id.
at 100, 108. This violated the in limine ruling in
Schierman's favor; defense counsel did not call further
attention to it, though-he did not object when the violation
occurred. Later, the State asked Leonid about his
communications with his wife while he was stationed overseas.
Leonid responded that "[s]ometimes my base would be
mortared, and that [would] knock out communications."
Id. at 167. The defense objected that the testimony
was irrelevant. The trial court overruled the objection, and
Leonid continued, "[A]lso, whenever soldiers would get
killed, a complete communication blackout would be imposed on
our base." Id.
the jury was excused, defense counsel renewed its objection
and referred to the in limine ruling, asserting that the
State was "back-dooring in the fact that [Leonid] was
fighting overseas." Id. at 170. The trial court
asked the prosecutor to explain the relevance of questions
about Leonid's communications with his wife. The
prosecutor claimed these questions were relevant "to
establish what type of communication was available from
inside the Milkin residence, were there land lines, were
there cell phones?" Id. at 171. But the
prosecutor also apologized to defense counsel and the court.
court directed the prosecutor to have another discussion with
Leonid regarding the limits on his testimony. It also told
Leonid that if he made further references to his service in
Iraq, the court would instruct the jury that he was in
violation of a court order. The defense moved for a mistrial
and, in the alternative, for a limiting instruction. The
court denied the motion for a mistrial, finding that
"the nature of the restrictions is not such that a
violation of them ... rises to the level of creating unfair
prejudice to the defendant for violating his rights to a fair
trial." Id. at 175.
court did give a limiting instruction, though. The following
day, Judge Canova admonished the jury to disregard all
testimony "regarding [Leonid] being stationed in a
combat zone in July of 2006." VRP (Jan. 21, 2010) at
12. Defense counsel stated for the record that "there
are three friends of [Leonid] in uniform in court, and he
appeared yesterday in court in uniform." Id. at
one month later, defense counsel renewed its objection to the
presence of soldiers in uniform: "Throughout this trial
we've had two ordinarily uniformed military people not
only sitting in court, but sitting outside ... as jurors come
in. . . . It happens every day, and . . . they sit directly
on a bench in front of the doors, as the jurors come
in." VRP (Feb. 18, 2010) at 10. The court disagreed with
that characterization: "For the record, I have not
noticed individuals sitting in front of the doors of the
courtroom in military fatigues or otherwise in military
uniform except on one or two occasions, including one day
earlier this week." Id. at 10-11. It declined
to change its prior ruling on the issue, concluding that
there was no indication that any courtroom spectators had
improperly influenced the jury.
argues that these events deprived him of his Fourteenth
Amendment right to due process and Sixth Amendment rights to
confrontation and an impartial jury.
defendant alleging that the "courtroom arrangement"
rendered his trial unfair bears the burden of showing that
the courtroom arrangement was inherently prejudicial.
Holbrook, 475 U.S. at 570. A trial
court's determination that spectator conduct is not
inherently prejudicial is reviewed for abuse of discretion.
State v. Lord, 161 Wn.2d276, 283-84, 165 P.3d 1251
(2007) (Lord HI).
cites three lines of cases in support of his argument that
the presence of uniformed soldiers was inherently
prejudicial, in violation of his fair trial right. First, he
cites cases holding that the appearance of abnormal security
measures can deprive a defendant of due process.
Appellant's Opening Br. at 80-81 (citing
Holbrook, 475 U.S. at 572; State v. Jaime,
168 Wn.2d 857, 233 P.3d 554 (2010)). Second, he cites cases
holding that conduct by courtroom spectators can constitute
an implicit statement, in violation of the Sixth and
Fourteenth Amendments to the United States Constitution, that
the defendant is guilty. Id. at 81 (citing
Norris v. Risely, 918 F.2d 828, 833 (9th Cir. 1990),
overruled in part on other grounds by Carey, 549
U.S. 70). Finally, he cites cases holding that a defendant
charged with an offense against a law enforcement officer was
denied a fair trial when large numbers of the victim's
colleagues attended the trial in uniform. Id. at 83
(citing Woods v. Dugger, 923 F.2d 1454 (11th Cir.
1991); Shootes v. Florida, 20 So.3d 434 (Fla. Dist.
Ct. App. 2009); United States v. Johnson, 713
F.Supp.2d 595, 616-17, 643-44 (E.D. La. 2010)).
first line of cases is not on point. The record in
Schierman's case does not indicate that the military
officers who attended his trial appeared to be courtroom
second line of cases is on point, but distinguishable under
Washington precedent. In Norris, the defendant's
rape trial was attended daily by at least three women wearing
buttons that read, '"Women Against Rape.'"
918 F.2d at 830-31. The Ninth Circuit held that this deprived
the defendant of a fair trial because it conveyed a message
that he was guilty: "Just as the compelled wearing of
prison garb during trial can create an impermissible
influence on the jury throughout trial, the buttons'
message, which implied that Norris raped the complaining
witness, constituted a continuing reminder that various
spectators believed Norris's guilt before it was proven,
eroding the presumption of innocence." Id. at
court distinguished Norris in Woods, where
this court denied relief from the petitioner's death
sentence, holding that he was not deprived of a fair trial
when the victim's family members wore "remembrance
ribbons" in the courtroom. 154 Wn.2d at 416-18. The
Woods court concluded that the ribbons were a
tribute to the victim and an expression of mourning, rather
than a comment on the defendant's guilt. Id.
This court reaffirmed that holding in Lord III,
distinguishing trial spectators' "silent displays of
affiliation" with the victim-in that case, the wearing
of buttons displaying an in-life photograph of the
deceased-from spectator conduct that "explicitly
advocate[s] guilt or innocence." 161 Wn.2d at 287-90.
wearing of military uniforms by some spectators at
Schierman's trial is, like the wearing of buttons or
ribbons in Lord III and Woods, a display of
affiliation. Applying that precedent, we hold that the
wearing of a military uniform is distinguishable from the
wearing of "Women Against Rape" buttons in
Norris, and that it did not violate Schierman's
right to a fair trial.
the third line of cases Schierman cites is distinguishable by
the number of uniformed spectators involved. The defendant in
Dugger was convicted of killing a prison guard and
sentenced to death. 923 F.2d at 1455. His trial took place in
a small town whose economy centered on the prison where the
crime occurred. Id. at 1455-57. The trial received a
great deal of publicity and was attended daily by a full
courtroom of spectators, about half of whom were prison
guards in uniform. Id. at 1458-59. The Eleventh
Circuit held that these elements combined to create an
atmosphere that deprived the defendant of his Sixth Amendment
right to a fair trial. Id. at 1460.
Shootes, the defendant was charged with assaulting a
narcotics officer. 20 So.3d at 436. During the final stages
of the trial, between 35 and 70 uniformed narcotics officers
were present in the courtroom, constituting at least half of
the spectators. Id. Further complicating matters,
the nature of the narcotics officers' uniforms was an
issue in the trial because the defendant argued that he had
not known his victim was an officer. Id. at 439.
Distinguishing cases in which the officers were fewer in
number and less visible to the jury, the Florida Court of
Appeals held that the law enforcement presence violated the
defendant's Sixth and Fourteenth Amendment rights to a
fair trial. Id.
in Johnson, the defendant was charged with shooting
a security officer during a bank robbery; he was convicted
and sentenced to death. 713 F.Supp.2d at 603. During the
testimony of an officer present at the robbery, more than 40
uniformed members of the "Sherriff s Office"
attended the trial. Id. at 616. Defense counsel
objected and asked the court to instruct the officers not to
appear in uniform. Id. The court denied the request.
Id. Upon the defendant's motion for a new trial,
the court recognized that in light of relevant precedent, it
should have granted the defense motion to prohibit law
enforcement officers from attending the trial in uniform.
Id. at 617. It concluded that the error did not
deprive the defendant of a fair trial since it resulted in
only one day of significant police presence, but that it was
"a small part of the overall totality of circumstances
justifying a new penalty hearing." Id.
extent that we have a record regarding the presence of
uniformed soldiers in the courtroom, that record indicates
that there were at most two or three uniformed soldiers
attending the trial on any given day. It does not indicate
that the jury was exposed to the kind of show of force at
issue in Dugger, Shootes, and Johnson.
Given the small number of spectators who attended
Schierman's trial in military uniform, the jury is likely
to have assumed, at most, that a few of Leonid's
colleagues were in the courtroom to support Leonid. This
situation, even in combination with the erroneous admission
of testimony that Leonid served in Iraq, is readily
distinguishable from the facts in Dugger, Shootes,
and Johnson. In those cases, the overwhelming
presence of law enforcement in the courtroom, combined with
the nature of the charges, signaled to the jury that the many
spectators "wanted a conviction." Shootes,
20 So.3d at 439 (citing Dugger, 923 F.3d at 1460).
these reasons, the trial court did not abuse its discretion
in denying the motion to prohibit military uniforms in the
courtroom. Even in combination with Leonid's improper
testimony about his service in Iraq, the limited military
presence at Schierman's trial did not result in inherent
prejudice in the guilt phase.
Guilt Phase Jury Instructions Did Not Violate Fourteenth
Amendment Due Process Protections
argues that the trial court violated Fourteenth Amendment due
process clause protections when it denied three separate
defense requests for jury instructions. U.S. Const, amend.
XIV. He assigns error to (1) the denial of the defense's
proposed instructions differentiating between
"premeditation" and "intent, " (2) the
denial of the defense's proposed instructions on
voluntary intoxication, and (3) the denial of the
defense's request for a manslaughter instruction.
Schierman's proposed instruction differentiating between
"premeditation" and "intent"
trial court gave the standard pattern jury instruction on
"[p]remeditation": WPIC 26.01.01. 11 Washington
Practice: Washington Pattern Jury Instructions: Criminal
26.01.01 (3d ed. 2008) (WPIC). CP at 7834. That instruction
reads as follows:
Premeditated means thought over beforehand. When a person,
after any deliberation, forms an intent to take human life,
the killing may follow immediately after the formation of the
settled purpose and it will still be premeditated.
Premeditated must involve more than a moment in point of
time. The law requires some time, however long or short, in
which a design to kill is deliberately formed.
Id. The defense objected to that instruction on the
ground that it could not be distinguished from the WPIC on
Any intent must involve more than "a moment in
time" and WPICs 26.01.01 and 10.01 have no discernible
difference. Murder 1° requiring premeditation and Murder
2° requiring intent (i.e., acting with "objective or
purpose") have no difference - both Murder 1° and
Murder 2° require a "thinking it over
beforehand" to accomplish "a result that
constitutes a crime." Accordingly, the defense requests
the United States Supreme Court's definition in
[Fisher v. United States, 328 U.S. 463, 467 n.3, 66
S.Ct. 1318, 90 L.Ed. 1382 (1946)] with the emphasis on prior
CP at 7653.
defense proposed three alternative instructions on
"premeditation." The first read as follows:
Deliberation is consideration and reflection upon the
preconceived design to kill; turning it over in the mind;
giving it second thought.
Although formation of a design to kill may be instantaneous,
as quick as thought itself, the mental process of
deliberating upon such a design does require that an
appreciable time elapse between formation of the design and
the fatal act within which there is, in fact deliberation.
The law prescribes no particular period of time. It
necessarily varies according to the peculiar circumstances of
each case. Consideration of a matter may continue over a
prolonged period-hours, days or even longer. Then again, it
may cover but a brief span of minutes. If one forming an
intent to kill does not act instantly, but pauses and
actually gives second thought and consideration to the
intended act, [he] [she] has, in fact, deliberated. It is the
fact of deliberation that is important, rather than the
length of time it may have continued.
7652 (alterations in original).
defense alternatively proposed the following addition to the
WPIC "premeditation" instruction:
It is not enough that a person intended to kill or had the
opportunity to deliberate; premeditation requires that the
person actually engage in the process of reflection and
Premeditation may be proved by circumstantial evidence only
where the circumstantial evidence is substantial.
7814 (boldface omitted).
Finally, the defense proposed a third alternative:
Premeditation must involve more than a moment in point of
time; but, mere opportunity to deliberate is not sufficient
to support a finding of premeditation.
Rather, premeditation is the deliberate formation of and
reflection upon the intent to take a human life and involves
the mental process of thinking beforehand, deliberation,
reflection, weighing or reasoning for a period of time,
CP at 7815. The court refused all of these alternatives and,
over defense objection, gave the standard WPIC
"premeditation" instruction. VRP (Feb. 7, 2010) at
instruction is proper if it permits each party to argue its
theory of the case, is not misleading, and properly informs
the jury of the applicable law. State v. Clark, 143
Wn.2d 731, 771, 24 P.3d 1006 (2001) (quoting State v.
Rice, 110 Wn.2d 577, 603, 757 P.2d 889 (1988),
vacated in part on other grounds by Rice v. Wood, 77
F.3d 1138 (9th Cir. 1996)). A trial court's refusal to
give a jury instruction is reviewed for abuse of discretion
if it is based on a factual determination. State v.
Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). It
is reviewed de novo if it is based on a legal conclusion.
court has upheld the WPIC on premeditation in numerous cases,
rejecting the precise argument that Schierman makes here.
Clark, 143 Wn.2d at 771 (citing Lord II,
123 Wn.2d at 317); State v. Benn, 120 Wn.2d 631,
657-58, 845 P.2d 289 (1993) (Benn I), aff'd
in part and rev'd in part, 161 Wn.2d 256, 165 P.3d
1232 (2007) (Benn II); Rice, 110 Wn.2d at
770-71. This court has held that Washington's pattern
instructions on '"premeditation"' and
'"intent, "' at least when used in
combination, make the distinction between these concepts
"abundantly clear." Rice, 110 Wn.2d at
603-04. It has also held that WPIC 26.01.01 properly defines
"premeditation, " accurately states the law, and is
not misleading. Clark, 143 Wn.2d at 771.
acknowledges this line of cases, but asks this court to
"reconsider the pattern instructions because they do not
differentiate between intent and premeditation in any
meaningful way." Appellant's Opening Br. at 89.
timely objected and offered his own instructions on this
point. Schierman's proposed instructions are good
alternatives to the pattern instruction; certainly, the trial
court would not have erred by giving any of those alternative
instructions. But Schierman does not offer any argument that
this court has not previously addressed, and he does not show
that our prior precedent on this issue is incorrect and
harmful. We therefore decline his invitation to overrule that
Schierman argues that his Fourteenth Amendment right to due
process was violated when the State used a baseball analogy
in closing argument to explain the difference between
"intent" and "premeditation."
Id. at 90-93; U.S. CONST, amend. XIV. Schierman does
not allege that this analogy constituted prosecutorial
misconduct, and he does not cite any authority for the
assertion that it resulted in a due process violation. We
therefore reject it.
Schierman's proposed instruction on voluntary
defense proposed the following instruction on voluntary
The prosecution must prove that the defendant committed
Aggravated First Degree Murder with premeditation and/or
Murder in the Second Degree with intent. The defendant
contends that he did not have the required intent and mental
state due in whole or part to his intoxication. However, the
defendant does not need to prove that he did not have the
required intent and mental state.
If you have a reasonable doubt about whether the defendant
committed the crime with premeditation, intent, criminal
recklessness or criminal negligence, you must find the
defendant not guilty.
7654. The court denied that request and gave the standard
WPIC on voluntary intoxication instead:
No act committed by a person while in a state of voluntary
intoxication is less criminal by reason of that condition.
However, evidence of intoxication may be considered in
determining whether the defendant acted with intent or
7849. The defense objected to the first sentence of that
instruction, arguing that it "seems to contradict and
vitiate the next line." VRP (Apr. 7, 2010) at 17-18. The
court rejected that argument because the WPIC mirrored the
language in RCW 9A. 16.090, the Washington criminal code
statute addressing voluntary intoxication. Id. at
contends that the trial court should have omitted the first
sentence of the WPIC on voluntary intoxication because that
sentence renders the instruction "[c]ontradictorv
and [a]mbiguous." Appellant's Opening Br. at
93. He is correct that there is some tension between the
first sentence, implying that intoxication is not relevant to
the question of guilt, and the second sentence, stating that
intoxication "may be" relevant to guilt. CP at
7849. But he does not show that the trial court erred. He
contends that the trial court should instead have borrowed
language from this court's decision in State v.
Coates, 107 Wn.2d 882, 735 P.2d 64 (1987), which
interpreted the voluntary intoxication statute.
Coates, however, neither held nor implied that there
is anything wrong with the WPICs on voluntary intoxication.
It held only that neither party bears the burden of proof on
voluntary intoxication. Id. at 891. In reaching that
conclusion, the Coates court actually approved of a
jury instruction that exactly tracked the language of
Washington's voluntary intoxication defense statute, RCW
9A. 16.090, which provides:
No act committed by a person while in a state of voluntary
intoxication shall be deemed less criminal by reason of his
condition, but whenever the actual existence of any
particular mental state is a necessary element to constitute
a particular species or degree of crime, the fact of his
intoxication may be taken into consideration in determining
such mental state.
Id. at 889.
also argues that the voluntary intoxication instruction
should have "appl[ied] to the aggravating factor of
common scheme or plan." Appellant's Opening Br. at
94. The State correctly points out that ...