¶ 1 Noel Caldellis shot into a crowd of people outside a party, killing one. He was charged with first degree murder "[u]nder circumstances manifesting an extreme indifference to human life" under RCW 9A.32.030(1)(b). The jury was given a to-convict instruction modeled on the relevant pattern jury instruction, which itself was modeled on subsection (1)(b). After Caldellis's trial, the pattern jury committee amended the relevant pattern instruction to require an additional "element" that "the defendant knew of and disregarded the grave risk of death." Among other things, Caldellis contends his conviction should be set aside because the jury was not required to find this new "element" in his case. We hold that the instruction given in Caldellis's trial included the required elements of the crime and was sufficient. Caldellis also asks for an evidentiary hearing to develop the factual basis for some of his claims. We conclude he has not made the requisite showing for such a hearing. Accordingly, we dismiss his personal restraint petition as meritless.
¶ 2 One fall night in September 2006, Caldellis and a group of friends were driving to a house party in Seattle where they expected to watch two people fight.
¶ 3 Eventually, the group arrived at the party. As Caldellis and his friends approached the house, approximately 30 people flooded outside, yelling profanities and racial slurs. A brawl immediately broke out. One witness testified that he saw someone run up to Caldellis as if to attack him and that Caldellis dodged and punched the attacker. Caldellis then pulled out a gun and fired it twice in the air. He waved the gun briefly before firing at least two horizontal — and ultimately fatal — shots into a group of people. One witness testified she saw "somebody fall" to the ground "in the driveway." 11 Verbatim Report of Proceedings (VRP) (Nov. 26, 2007) at 1605, 1604.
¶ 4 After shots were fired, Caldellis and others left in their cars. In the "pandemonium" of the fighting and gunshots, many of the partygoers rushed back into the house and called the police. 8 VRP (Nov. 19, 2007) at 1118. Snohomish County police officers arrived at the house and found Jay Clements lying on the ground with two gunshot wounds.
¶ 5 The next day, police arrested Caldellis. After being advised of his constitutional rights, Caldellis admitted that he had taken the gun with him to the party and brandished it when the fighting began. He also told the police that he fired two shots into the air and then fired into a crowd of people. Caldellis recalled that he did such a "stupid" thing because he was drunk. 12 VRP (Nov. 27, 2007) at 2013.
¶ 6 The State charged Caldellis with murder and assault. At trial, Caldellis argued self-defense as to the assault charges and that he fired the fatal shot accidentally because he feared he would be attacked. Caldellis was convicted of first degree murder based on extreme indifference to life and two counts of second degree assault. The jury found he committed these crimes while armed with a firearm. Caldellis appealed, and in an unpublished decision, the Court of Appeals affirmed his murder conviction and reversed the assault convictions for reasons that are not before us. State v. Caldellis, noted at 151 Wn.App. 1012, 2009 WL 2151856.
¶ 7 In 2011, Caldellis filed a timely personal restraint petition (PRP) challenging his first degree murder conviction. Caldellis argues that the prosecutor committed misconduct and violated due process of law by stating the law permits conviction on less proof than legally required and improperly commented on Caldellis's right not to testify. He also contends his trial counsel provided ineffective assistance for failing to propose an instruction containing all elements of murder by extreme indifference, propose a self-defense instruction for that charge, notice jury members and the judge sleeping and move for a mistrial, and object to and move for a mistrial based on the prosecutor's remarks. Finally, he contends his murder conviction should be reversed or he should be given a reference hearing based on his claim that the judge and jurors slept during his trial.
1. RAP 16.11 (b) AND NONFRIVOLOUS PETITIONS
¶ 9 The acting chief judge dismissed Caldellis's petition under RAP 16.11(b). Under this rule, the chief judge or acting chief judge of the Court of Appeals may dismiss a PRP if it is "frivolous." If the PRP is not frivolous and can be decided on the record, the chief judge "will" refer the petition to a panel of judges for consideration on the merits. RAP 16.11 (b). In Khan, we held that "a personal restraint petition is frivolous where it fails to present an arguable basis for collateral relief either in law or in fact, given the constraints of the personal restraint petition vehicle." 184 Wash.2d at 686-87, 363 P.3d 577 (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed. 2d 338 (1989)). A petition that raises issues grounded on an arguable basis for relief and is not procedurally barred is not frivolous under RAP 16.11(b). Id. at 687, 363 P.3d 577. Caldellis's PRP was not referred to a panel under RAP 16.11(b), thus we infer the chief judge found it to be frivolous. As will be discussed below, Caldellis's jury instruction and prosecutorial misconduct claims presented arguable bases for relief and were not procedurally barred. Therefore, it was error to dismiss his PRP as frivolous under RAP 16.11(b) instead of referring it to a panel of judges for determination on the merits. However, this error is not grounds for relief on the underlying PRP or grounds for a do-over at the Court of Appeals. As with Khan, we elect to reach the merits ourselves. See id. (citing RAP 13.5A(a)(1); RAP 13.4(b)).
2. JURY INSTRUCTIONS AND INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 10 Caldellis contends that he was denied due process because the to-convict instruction omitted an allegedly essential knowledge element, that he "knew of and disregarded" the grave risk of death. Mot. for Discr. Review at 3-9. Caldellis also argues his trial and appellate counsel were ineffective in failing to propose a "correct" instruction and for failing to raise the issue on direct review. Id. at 6.
¶ 11 Elements of a crime are the constituent parts of a crime, usually consisting of conduct, knowledge, and causation. See State v. Fisher, 165 Wn.2d 727, 754, 202 P.3d 937 (2009) (quoting BLACK'S LAW DICTIONARY 559 (8th ed. 2004)). "At common law it was said that `to constitute a crime against human laws, there must be, first, a vitious will; and, secondly, an unlawful act consequent upon such vitious will.'" State v. Eaton, 168 Wn.2d 476, 481, 229 P.3d 704 (2010) (quoting 5 WILLIAM BLACKSTONE, COMMENTARIES *21). A trial court must instruct the jury on all essential elements of the charged crime. State v. Linehan, 147 Wn.2d 638, 653-54, 56 P.3d 542 (2002). Failure to do so relieves the State of its burden of proving every element of the crime beyond a reasonable doubt. Id. This is reversible error unless the court is convinced, beyond a reasonable doubt, that the error did not contribute to the verdict. State v. Brown, 147 Wn.2d 330, 340-41, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed. 2d 35 (1999)).
¶ 12 The first degree murder by extreme indifference statute states in relevant part:
¶ 13 In Caldellis's case, the trial court gave the following instruction on murder by extreme indifference:
Resp. to PRP, Ex. 2, at 7 (Instr. 4).
¶ 14 This instruction was based on the then-current Washington pattern jury instructions and tracks the statutory elements of murder by extreme indifference. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 26.06 (2d ed. 1994) (WPIC); RCW 9A.32.030(1)(b). In 2008, the committee on pattern instructions changed the WPIC, adding the element that "the defendant knew of and disregarded the grave risk of death." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 26.06, at 373 (3d ed. 2008).
¶ 15 The revised instruction provides in relevant part:
Id. (emphasis added).
¶ 16 The committee explained that the new "requirement" reflected Division Three's holding in State v. Barstad, 93 Wn.App. 553, 568, 970 P.2d 324 (1999), 11 WPIC 26.06, at 374 (3d ed. 2008). In Barstad the defendant was convicted of first degree murder by extreme indifference for killing two people in a multicar collision while driving intoxicated. 93 Wash.App. at 555-56, 970 P.2d 324. Barstad challenged a definitional instruction given in his case that said in part that "`[a] person engages in conduct manifesting an extreme indifference to human life when ... [that person] knows of and disregards the grave risk of death to others.'" Id. at 564-65, 970 P.2d 324 (quoting record). Barstad had proposed an instruction that would have said, "`A person manifests an extreme indifference to human life when [that person] acts in a manner calculated to put the lives of many persons in jeopardy, with full consciousness of the probable consequences.'" Id. at 565, 970 P.2d 324 (quoting record). The Court of Appeals found that the trial court did not err in rejecting Barstad's proposed instruction and that he was able to argue his theory of the case to the jury under the instructions given. Id. at 565-66, 970 P.2d 324. The "knew of and disregarded" grave risk of death to others instruction was not requested or given in Caldellis's trial.
¶ 17 Caldellis argues his to-convict instruction conflicts with Barstad and by omitting the "knew and disregarded" language, the instruction was constitutionally defective. In its order dismissing Caldellis's petition, the Court of Appeals concluded, and the State echoes in its response brief, that the instructions in Caldellis's case accurately stated the knowledge requirement of extreme indifference and characterized the 2008 revision as adding a "definitional element." Order of Dismissal at 6; Resp. to PRP at 11-14.
¶ 18 But Barstad simply does not hold that "murder by extreme indifference" jury instructions are constitutionally deficient if they do not contain the "knew of and disregarded" instruction. That question was not before the Barstad court, and no subsequent
¶ 19 Indeed, the comment to WPIC 26.06 states that the revised instruction includes not an additional "element," but rather "a requirement that the defendant knew of and disregarded the grave risk of death," 11 WPIC 26.06, at 374 (3d ed. 2008) (emphasis added), Mere "[c]larification of the standard instruction does not amount to an indictment of earlier versions." State v. Holzknecht, 157 Wn.App. 754, 765, 238 P.3d 1233 (2010).
¶ 20 We conclude that not including the "knew of and disregarded" language in Caldellis's jury instructions was not error. The jury instructions appropriately tracked RCW 9A.32.030(1)(b) and contained the required mens rea element — "manifesting an extreme indifference to human life." Therefore, the instructions were sufficient.
¶ 21 Caldellis also argues that he is entitled to relief due to the "defective" jury instructions described above because his trial counsel failed to object or propose a legally correct instruction and because his appellate counsel was ineffective for failing to raise the issue on direct appeal. To establish ineffective assistance, Caldellis bears the burden of showing both (1) his defense counsel's performance fell below an objective standard of reasonableness and, if so, (2) that counsel's poor work prejudiced him. Khan, 184 Wash.2d at 688, 363 P.3d 577 (citing State v. A.N.J., 168 Wn.2d 91, 109, 225 P.3d 956 (2010)). Since the instruction that was given was correct and since Caldellis fails to show why he could not argue his theory of the case to the jury under it, these claims fail.
3. FAILURE TO REQUEST A SELF-DEFENSE INSTRUCTION
¶ 22 At trial, Caldellis sought and received self-defense instructions for the two assault charges.
¶ 23 Again, to establish ineffective assistance, Caldellis must show (1) his defense counsel's performance fell below an objective standard of reasonableness and, if so, (2) that counsel's poor work prejudiced him. Khan, 184 Wash.2d at 688, 363 P.3d 577 (citing A.N.J., 168 Wash.2d at 109, 225 P.3d 956). The threshold for the deficient performance prong is high, given the deference afforded to decisions of defense counsel in the course of representation. To prevail on an ineffective assistance claim, a defendant alleging ineffective assistance must overcome "a strong presumption that counsel's performance was reasonable." State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Accordingly, the defendant bears the burden of establishing deficient performance. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). "Reasonable conduct for an attorney includes the duty to research relevant law." Kyllo, 166 Wash.2d at 862, 215 P.3d 177 (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
¶ 24 "When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient." Id.
¶ 25 Prejudice is established when there is a reasonable probability that but for counsel's errors, the result of the trial would have been different. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2000). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
¶ 26 Caldellis relies exclusively on trial counsel's declaration that he characterizes as a mistake. He argues his attorney "candidly admit[ted]" that there was "no tactical reason" not to seek a self-defense instruction as to the murder count. PRP at 33. But defense counsel's declaration does not state that no tactical reason existed for failing to seek a self-defense instruction. Instead, it states that trial counsel believed there was "no tactical reason ... not to propose an instruction making it clear that the defendant must endanger human lives, as opposed to a human life." PRP, App. B para. 12 (McFarland Decl.). The declaration states that the only instruction "that fit the evidence and the defense theory of the case were instructions related to excusable homicide." Id. para. 10.
¶ 27 At trial, the defense argued primarily that the State failed to prove Caldellis's shots caused Clements's death. The defense also argued that if the shots did cause Clements's death, it was excusable homicide because Caldellis did not intend to shoot him and "the shots were fired in lawful defense of others." Id. para. 9. The evidence offered at trial, if believed by the jury, supported Caldellis's excusable homicide theory: Caldellis admitted that he shot into the crowd when it did not disperse; he was not aiming at anyone specifically; witnesses testified that he shot into the air first, then horizontally toward the group. Trial counsel emphasized these points in closing arguments, and excusable homicide instructions were given to the jury.
¶ 28 The decision not to request a self-defense instruction in light of the defense's theory of excusable homicide was a legitimate trial strategy. See Kyllo, 166 Wash.2d at 863, 215 P.3d 177. "While a defendant may take actions in self-defense that lead to an accidental homicide," under controlling law, one cannot "kill by accident and claim that the homicide was justifiable." State v. Brightman, 155 Wn.2d 506, 525, 122 P.3d 150 (2005). Where a homicide is committed by accident, excusable homicide is the proper defense. Id.
4. PROSECUTOR'S COMMENTS ON CALDELLIS'S RIGHT NOT TO TESTIFY AND INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 29 Caldellis contends that the prosecutor improperly told the jury to infer guilt based on Caldellis's decision not to testify. He also contends that his trial and appellate counsel were ineffective for failing to object
¶ 30 Those charged with a crime have a constitutional right not to testify against themselves. U.S. CONST. amend. V; WASH. CONST. art. I, sec. 9. It is improper for the State to make closing arguments inferring guilt from a defendant's silence. State v. French, 101 Wn.App. 380, 386, 4 P.3d 857 (2000) (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)); State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996) (citing State v. Foster, 91 Wn.2d 466, 473, 589 P.2d 789 (1979)). The State is, however, entitled to make a fair response to the defense attorney's arguments. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994). The claimed misconduct is reviewed in light of all the arguments, issues, evidence, and jury instructions. State v. Davis, 141 Wn.2d 798, 872, 10 P.3d 977 (2000) (citing State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995)). If counsel does not object at trial, the claim is waived unless conduct is "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (citing Russell, 125 Wash.2d at 86, 882 P.2d 747). To establish ineffective assistance of appellate counsel, Caldellis must show any legal issue his counsel failed to raise was meritorious and demonstrate prejudice.
¶ 31 During closing arguments, defense counsel suggested many reasons why Caldellis might not testify in his trial. Defense counsel mentioned Caldellis's age (only 18 at the time of the trial), immaturity, inability to express himself, nervousness and fear of testifying, and perhaps avoiding distressing cross-examination. In response, the prosecutor argued that defense counsel "forgot a big" reason why Caldellis did not testify, stating that he could "think of one more." 20 VRP (Dec. 10, 2007) at 3275-76. The defense objected but withdrew the objection almost immediately.
¶ 32 Caldellis contends that the "big" reason suggested by the prosecutor that he did not testify was because he was guilty. The State argues that the prosecutor meant that Caldellis did not testify because he had nothing to say that would help him. We find the defense's argument invited the fair response given.
¶ 33 Similarly, as this was not error, neither trial nor appellate counsel was deficient for failing to object to the prosecutor's comments or assign error on appeal. The jury in Caldellis's case received an instruction explaining that "[t]he defendant is not compelled to testify, and the fact the defendant has not testified cannot be used to infer guilt or prejudice him in any way." Resp. to PRP, Ex. 2, at 28 (Instr. 25). The jury was also instructed that they "must disregard any remark, statement, or argument that is not supported by the evidence or the law in [the] instructions." Id. at 3 (Instr. 1). Caldellis argues that withdrawing trial counsel's objection to the prosecutor's comments "could have only signaled that there was nothing improper about this argument." PRP at 50. He also asserts that his appellate counsel provided ineffective assistance by failing to assign error on appeal. But Caldellis does not show how the result of his trial would have been different had defense counsel maintained his objection, especially in light of the curative instructions that were given to the jury. Caldellis fails to demonstrate prejudice. This claim is meritless.
5. STRUCTURAL ERROR AND ALLEGEDLY SLEEPING TRIAL JUDGE AND JURORS
¶ 34 Lastly, Caldellis claims that structural error occurred at trial due to allegedly sleeping judge and jurors. Alternatively, he argues he should be given an evidentiary hearing to develop the factual record regarding those claims. In support, Caldellis provides affidavits from his parents and aunt, and a declaration from his trial attorney that suggest the judge and jurors fell asleep. The trial judge, parents of the victim, prosecutor, and lead detective assigned to Caldellis's case provided
¶ 35 First, Caldellis fails to show that this was structural error, mandating reversal without any showing of prejudice. He simply asserts that it is. But very few errors are structural, and very few errors are presumed prejudicial. Khan, 184 Wash.2d at 691, 363 P.3d 577 (citing Washington v. Recuenco, 548 U.S. 212, 218, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006); United States v. Cronic, 466 U.S. 648, 666, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)).
¶ 36 Second, Caldellis claims that multiple jurors slept during trial. A sleeping juror may prejudice the defendant's due process rights and right to an impartial jury. State v. Hughes, 106 Wn.2d 176, 204, 721 P.2d 902 (1986); see also Tanner v. United States, 483 U.S. 107, 126-27, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). Caldellis does not state how long the jurors slept or what specific testimony they missed by sleeping. He has not shown specific evidence of prejudice due to the drowsiness of any juror. See Hughes, 106 Wash.2d at 204, 721 P.2d 902.
¶ 37 Caldellis also argues that he has presented sufficient evidence to justify an evidentiary hearing regarding the alleged sleeping jurors and trial judge. A hearing is not warranted based on the evidence presented. A petitioner must state with particularity facts that, if proved, would entitle the petitioner to relief. Rice, 118 Wash.2d at 886, 828 P.2d 1086. "Bald assertions and conclusory allegations" are not sufficient. Id. If the evidence is based on knowledge in the possession of others, the petitioner must present their affidavits with admissible statements or other corroborative evidence. Id. And only by showing that the petitioner has admissible evidence supporting the facts stated in the petition may the petitioner obtain a reference hearing to resolve factual disputes. Id.; see also In re Pers. Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013).
¶ 38 Though Caldellis has shown a dispute of fact as to a sleeping judge and jurors, he fails to show a dispute of material fact that, if proved, would entitle him to relief. He has not demonstrated how the judge's alleged sleeping caused specific error or what specific testimony was missed. Without specific details of error, Caldellis's evidence is conclusory and insufficient for an evidentiary hearing. Rice, 118 Wash.2d at 886, 828 P.2d 1086; Yates, 177 Wash.2d at 18, 296 P.3d 872.
¶ 39 Caldellis's PRP raised numerous issues, both procedural and substantive. His claims regarding defective jury instruction and improper prosecutor comments presented arguable bases for relief, and the petition was not procedurally barred. Thus, it was error to dismiss Caldellis's petition as frivolous under RAP 16.11(b). But since Caldellis's claims are meritless, there is no relief we can give. Additionally, Caldellis fails to present sufficient facts to warrant a reference hearing on whether the judge or jurors slept during his trial. We dismiss Caldellis's PRP.
Gordon McCloud, J.