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In re Personal Restraint of Meredith

Supreme Court of Washington, En Banc

August 2, 2018

In the Matter of the Personal Restraint of GARY DANIEL MEREDITH, Respondent.

          OWENS, J.

         At Gary Meredith's trial, the court erroneously gave the State and defense counsel one less peremptory challenge than they were entitled to under CrR 6.4(e)(1) and CrR 6.5. In a timely personal restraint petition, Meredith claimed his appellate counsel was ineffective for failing to raise the peremptory challenge violation on direct review. In an unpublished opinion, the Court of Appeals agreed with Meredith, reversing his convictions and remanding for a new trial. However, under RAP 2.5(a), the appellate court could have refused to hear the claim of error because it was not objected to at trial and it is not a type of structural error that requires automatic reversal. Thus, we hold that Meredith's appellate counsel was not ineffective for failing to raise that claim of error. We reverse the Court of Appeals on this issue and remand for the Court of Appeals to address Meredith's remaining claims.

         PROCEDURAL AND FACTUAL HISTORY

         Gary Meredith was convicted of second degree rape of a child and communication with a minor for immoral purposes in 1996. The trial court seated 14 jurors, including two alternates who would be chosen at random at the end of the trial. The trial court gave the State and defense counsel seven peremptory challenges each. This was an error. With two alternates, the court should have added two peremptory challenges to the initial six that are granted for any noncapital felony case and granted a total of eight to each party. CrR 6.4(e)(1); CrR 6.5. Neither party objected to this number. Each party exercised all seven peremptory challenges. There was a brief colloquy on whether the alternate jurors should be designated at the start or end of trial:

THE COURT: The two alternates, the Court's usual procedure is we seat 14 and then at the end of the State's rebuttal, prior to them commencing deliberations, we draw randomly from the entire 14 in the panel. Unless you all wanted to indicate some other proposal.
MR. SCHACHT [the State]: My strong preference is to know who the alternates are. I would prefer not to draw them from random.
MR. PURTZER [defense counsel]: Your Honor, my preference is to draw because I think that if you do it at that point in time everybody pays attention. You don't have to worry about alternates not being involved in the case at some point in time. I think that the jurors' attention is much more focused when no one knows exactly who is going to be the alternate.
THE COURT: All right. The Court's usual procedure is to randomly draw at the close of the State's rebuttal. Most often we are usually left with 12 anyway.

         1 Verbatim Report of Proceedings (VRP) at 9-10. Prior to trial, the court also ruled on motions relating to admitting evidence of Meredith's prior sex offense convictions. The court admitted Meredith's prior convictions as proof of an element of count II, communicating with a minor for immoral purposes. The trial court issued the following jury instruction limiting consideration of the prior conviction evidence: "I would like to advise the jury that evidence that Mr. Meredith has previously been convicted of a crime is not evidence of his guilt. Such evidence may be considered by you in deciding Count II and for no other purpose." 6 VRP at 512-13.

         After his conviction, Meredith absconded for 12 years and was sentenced in November 2008 to 198 months in prison. State v. Meredith, 178 Wn.2d 180, 183, 306 P.3d 942 (2013). On direct appeal, Meredith's counsel raised four main issues: (1) exclusion of a juror was the result of a Batson violation, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), (2) insufficient evidence supported his conviction for communication with a minor for immoral purposes, (3) the trial court improperly prohibited him from arguing about the absence of DNA (deoxyribonucleic acid) evidence during closing argument, and (4) violation of rights to confrontation and cross-examination. See State v. Meredith, 165 Wn.App. 704, 707, ___WL___(2011). The Court of Appeals confirmed the conviction, but this court accepted review of the Batson violation claim. Id., review granted, 173 Wn.2d 1031, 275 P.3d 303 (2012). This court affirmed the conviction, and the United States Supreme Court denied Meredith's petition for a writ of certiorari on February 24, 2014. Meredith, 178 Wn.2d 180, cert, denied, 571 U.S. 1220 (2014).

         Meredith filed this timely personal restraint petition on August 8, 2014, and filed a revised personal restraint petition on January 29, 2015. The Court of Appeals allowed the filing and considered the supplemental petition on the merits. The court appointed counsel, who raised five claims on Meredith's behalf: (1) incorrect denial of the correct number of peremptory challenges, (2) ineffective assistance of trial and appellate counsel, (3) incorrect denial of Meredith's motion to sever the two counts, (4)insufficient jury instruction limiting consideration of ER 404(b) evidence, and (5)evidentiary hearing is required to present testimony regarding duration of motile spermatozoa and lack of physical findings.

         The Court of Appeals granted relief based on the ineffective assistance of appellate counsel claim. In re Pers. Restraint of Meredith, No. 46671-6-II, slip op. at 1 (Wash.Ct.App. Feb. 14, 2017) (unpublished), http://www.courts.wa.gov/opinions/. Relying on our decision in Vreen to hold that "[a]ny impairment of a party's right to exercise a peremptory challenge ... constitutes reversible error without a showing of prejudice," the court concluded that if Meredith's "appellate counsel had raised this issue on direct appeal, we would have reversed and remanded Meredith's case for a new trial" and, therefore, "Meredith was prejudiced by appellate counsel's ineffective assistance." Id. at 7-8 (citing State v. Vreen, 143 Wn.2d 923, 931-32, 26 P.3d 236 (2001)). Because the court ordered a new trial, it also addressed the admissibility of prior sex offense convictions and the court's limiting instruction on those convictions. It held that the trial court erred by giving the limiting instruction because "[w]hile the instruction correctly limited the consideration of the prior conviction evidence to count II, it did not further instruct the jury it could only use the fact of conviction to decide an element of the count II." Id. at 13.

         The State petitioned for review, arguing the Court of Appeals improperly considered Meredith's supplemental filings, there was no ineffective assistance of appellate counsel, and the limiting instruction was sufficient. We granted ...


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