Fi .:" D
CURT OF APPEALS
DIVISION ii
2010 JUL 28 AM 8. 23
S iA•t• • 1' TON
E'.
Y
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal No. 40553 -9 -II
Restraint Petition of
ROBIN TAYLOR SCHREIBER,
PART PUBLISHED OPINION
Petitioner.
WORSWICK, P. J. — After a jury trial, Robin Schreiber was convicted of second degree
murder with a firearm sentencing enhancement. He received an exceptional sentence because his
victim was a law enforcement officer. Schreiber argues, among other things, that the trial court
violated his right to a public trial. In the published portion of this opinion, we hold that
Schreiber fails to establish actual and substantial prejudice resulting from any courtroom closure.
In the unpublished portion of this opinion, we hold that Schreiber fails to establish any other
claim of unlawful restraint. Accordingly, we deny his personal restraint petition.
FACTS
Robin Schreiber was convicted of second degree murder in the 2004 death of Clark
County Sheriff' s Sergeant Brad Crawford. Some aspects of his trial were shielded from the
public view. First, during jury selection, the trial court gave prospective jurors a confidential
No. 40553 -9 -II
questionnaire. We assume arguendo that these jury questionnaires were filed under seal.'
Second, in response to a report that two prospective jurors saw Schreiber in handcuffs in the
hallway, the trial court and counsel for both parties privately questioned the prospective jurors in
chambers, after Schreiber' s counsel waived Schreiber' s right to be present. Third, according to
Schreiber, spectators were excluded from the courtroom during voir dire due to a lack of space.
And fourth, according to Schreiber, the trial court directed the bailiff to speak privately with an
empaneled juror.
A jury ultimately found Schreiber guilty of intentional second degree murder. Schreiber
appealed, and we affirmed in an unpublished decision. This personal restraint petition followed.
ANALYSIS
PERSONAL RESTRAINT PETITION PRINCIPLES
When considering constitutional arguments raised in a personal restraint petition, we
determine whether the petitioner can show that a constitutional error caused actual and
substantial prejudice. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P. 3d 810 ( 2014)
plurality opinion). A stricter standard governs our consideration of nonconstitutional arguments
raised in a personal restraint petition. When considering nonconstitutional arguments, we
determine whether the petitioner has established that the claimed error is " a fundamental defect
resulting in a complete miscarriage of justice." In re Pers. Restraint of Yates, 177 Wn.2d 1, 18,
296 P. 3d 872 ( 2013).
Schreiber avers that the completed questionnaires were filed under seal. But the trial judge
declared that although the questionnaires purported to be confidential, they were never ordered
sealed.Response
2
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A personal restraint petition must state with particularity the factual allegations
underlying the petitioner' s claim of unlawful restraint. In re Pers. Restraint ofRice, 118 Wn.2d
876, 885- 86, 828 P. 2d 1086 ( 1992). Bald assertions and conclusory allegations are not
sufficient. Rice, 1*18 Wn.2d at 886.
Petitioner' s allegations must also have evidentiary support. Rice, 118 Wn.2d at 886. If
the trial court record does not support the factual allegations, then the petitioner must show
through affidavits or other forms of corroboration that competent and admissible evidence will
establish the factual allegations. Rice, 118 Wn.2d at 886. The petitioner may not rely on mere
speculation, conjecture, or inadmissible hearsay. Rice, 118 Wn.2d at 886. A personal restraint
petition cannot renew an issue that was raised and rejected on direct appeal, unless the interests
ofjustice require the issue' s relitigation. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 671,
101 P. 3d 1 ( 2004).
If the petitioner fails to make a prima facie showing of either actual and substantial
prejudice or a fundamental defect, we deny the personal restraint petition. Yates, 177 Wn,2d at
17- 18. If the petitioner makes such a showing, but the record is not sufficient to determine the
merits, we remand for a reference hearing. Yates, 177 Wn.2d at 17- 18. If, however, we are
convinced the petitioner has proven actual and substantial prejudice or a fundamental defect, we
grant the petition. Yates, 177 Wn.2d at 17- 18.
RIGHT TO A PUBLIC TRIAL
Schreiber argues that he is entitled to relief from restraint because the trial court violated
his right to a public trial by closing the proceedings without conducting the analysis required by.
State v. Bone -Club, 128 Wn.2d 254, 258- 59, 906 P. 2d 325 ( 1995). We disagree, holding that
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No. 40553 -9 -II
Schreiber fails to make out a prima facie showing of actual and substantial prejudice caused by
any closure.
The Washington Constitution protects a criminal defendant' s right to a public trial.
WASH. CONST. art. I, § 22. A trial court may close a courtroom only if closure is warranted
under the five- part test set forth in Bone -Club, 128 Wn.2d at 258- 59. Closing a courtroom
without first conducting the required Bone -Club analysis is a structural error. State v. Paumier,
176 Wn.2d 29, 35, 288 P. 3d 1126 ( 2012)..
A. Actual and Substantial Prejudice Standard
On direct review, a public trial violation requires reversal regardless of whether the
defendant has shown prejudice. Paumier, 176 Wn.2d at 37. But in a personal restraint petition,
the petitioner bears the burden of demonstrating that a constitutional violation caused actual and
substantial prejudice. Coggin, 182 Wn.2d at 119 ( plurality opinion).
In Coggin and Speight, our Supreme Court recently held that a petitioner must show
actual and substantial prejudice to prevail on collateral review of an alleged public trial violation.
Coggin, 182 Wn.2d at 120- 22 ( plurality opinion); In re Pers. Restraint ofSpeight, 182 Wn.2d
103, 107, 340 P. 3d 207 ( 2014) ( plurality opinion). In both Coggin and Speight, Chief Justice
Madsen filed concurring opinions agreeing with the decision to deny the petitions, but on the
ground that the petitioners invited the closure. Coggin, 182 Wn.2d at 123 ( Madsen, C. J.,
concurring); Speight, 182 Wn. 2d at 108 ( Madsen, C. J., concurring). Chief Justice Madsen made
clear, however, that she agreed with the plurality that a petitioner must show actual and
substantial prejudice to prevail on a public trial claim on collateral review. Coggin, 182 Wn.2d
at 123 ( Madsen, C. J., concurring); Speight, 182 Wn.2d at 108 ( Madsen, C. J., concurring). Thus,
No. 40553 -9 -II
Coggin and Speight require a petitioner to make a showing of actual and substantial prejudice
resulting from a public trial violation to prevail on collateral review.
B. Schreiber Fails To Show Actual and Substantial Prejudice
Schreiber claims that the trial court violated his right to a public trial four times, by
failing to conduct Bone -Club hearings before ( 1) giving prospective jurors confidential
questionnaires that were later filed under seal, ( 2) excluding spectators from voir dire due to a
lack of space in the courtroom, ( 3) questioning two prospective jurors in chambers, and ( 4)
directing the bailiff to speak privately with a juror during the trial.. It is undisputed that the trial
court conducted no Bone -Club hearings.
But even assuming closures occurred, Schreiber neither argues nor demonstrates that any
of these closures caused him actual and substantial prejudice. Schreiber argues only that these
closures were structural errors requiring reversal. Because Schreiber is required to demonstrate
actual and substantial prejudice, his public trial arguments fail.' Coggin, 182 Wn.2d at 122.
For these reasons and those stated in the unpublished portion of this opinion, we deny
Schreiber' s petition.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
Schreiber argues for the first time in a supplemental brief that regardless of the actual and
substantial prejudice standard in Washington, his,claim warrants automatic reversal under the
federal constitution. We decline to address this argument. Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).
No. 40553 -9 -II
ADDITIONAL ARGUMENTS
Schreiber also argues that we should grant his personal restraint petition because ( 1) the
trial court violated his right to be present; ( 2) his appellate counsel was ineffective for failing to
argue that a forensic expert' s testimony violated Schreiber' s right to confront the witnesses
against him; ( 3) newly discovered evidence of the forensic expert' s misfeasance and malfeasance
warrants vacation of his conviction; ( 4) the trial judge and presiding juror slept during his trial;
5) the trial court violated Schreiber' s right to confront the witnesses against him by limiting
cross- examination of an eyewitness and refusing to allow discovery of the eyewitness' s
psychological records; ( 6) the evidence was insufficient to support the jury' s special verdict on
the firearm enhancement, and the trial court erred by instructing the jury on the firearm
enhancement; and ( 7) the law enforcement aggravating factor did not exist at the time of
Schreiber' s offense, so the trial court applied an ex post facto law that codified the aggravating
factor. We disagree, holding that Schreiber fails to establish any prima facie claim of actual and
substantial prejudice or fundamental defect resulting in a complete miscarriage of justice. See
Yates, 177 Wn.2d at 17.
ADDITIONAL FACTS
Sergeant Crawford, the police officer whom Schreiber killed, was among the officers
who responded to a 911 call reporting that Schreiber was extremely upset, armed with a rifle, and
alone in his house. A standoff at Schreiber' s house ensued.
Inside his house, Schreiber drank beer, pointed his rifle at patrol cars and officers, and
called his ex-wife to say that she would not have to worry about him anymore. Eventually,
Schreiber crawled from his house to his truck, carrying the rifle with him. While he crawled,
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No. 40553 -9 -II
Schreiber periodically put the rifle to his shoulder and pointed it in the direction of a patrol car
and police officers. When Schreiber reached his truck, he again lifted the rifle to his shoulder
and pointed it toward the patrol car and police officers.
Schreiber drove his truck across a field, through a barbed wire fence, and onto his
neighbor' s driveway before reaching a street. While he drove, Schreiber raised a metal object in
the direction of a police officer. Then, with four officers in pursuit, Schreiber turned a corner
and struck Sergeant Crawford' s patrol car, which was parked off the roadway. Sergeant
Crawford died from injuries sustained in the collision. Schreiber' s rifle was found inside his
truck.
The State charged Schreiber with premeditated first degree murder or, in the alternative,
second degree murder under both an intentional murder theory and a felony murder theory. See
RCW 9A.32. 030( 1)( a)-( b), . 050( 1)( b).
At trial, the State elicited testimony from Corporal Duane Boynton, a Vancouver Police
officer and trained negotiator who was an eyewitness to the standoff and the fatal collision.
Before trial, Schreiber had requested discovery of a psychologist' s records made when treating
Corporal Boynton for trauma resulting from the incident. The trial court refused. Schreiber' s
request and further limited cross- examination by prohibiting questions about Corporal Boynton' s
diagnosis or the identity of his treating psychologist.
In his defense, Schreiber argued that the fatal collision occurred because he was
extremely intoxicated, not because he acted with premeditation or intent to harm Sergeant
Crawford. To counter this argument, the State elicited expert forensic testimony from Ann
Marie Gordon of the state toxicology lab. Gordon testified to results of her own testing of
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No. 40553 -9 -II
Schreiber' s blood- alcohol sample as well as to the results of testing conducted by another
forensic technician; both found that Schreiber' s blood tested above the legal alcohol limit for
driving. About one year after Schreiber' s trial, Gordon resigned from the lab because it became
known that she routinely certified breath testing machine quality -assurance samples without
personally testing them and that her laboratory colleagues covered up her misconduct.
As mentioned above, the jury found Schreiber guilty of intentional second degree murder.
In special verdicts, the jury found facts establishing a firearm sentencing enhancement and the
aggravating sentencing factor that Sergeant Crawford was a law enforcement officer performing
his official duties. The trial court imposed an exceptional sentence of 347 months.
ADDITIONAL ANALYSIS
I. RIGHT To BE PRESENT
Schreiber argues that the trial court' s private, in -chambers questioning of two prospective
jurors in Schreiber' s absence violated his right to be present. But this argument fails because
Schreiber fails to show actual and substantial prejudice.
At its core, the right to be present entitles a defendant to be present when evidence is
offered against him. In re Pers. Restraint ofLord, 123 Wn.2d 296, 306, 868 P. 2d 835 ( 1994).
When a personal restraint petitioner claims that his right to be present was violated, he must
explain how his absence affected the outcome of any of the challenged proceedings or
conferences" in order to establish actual and substantial prejudice. Lord, 123 Wn.2d at 307.
Schreiber fails to explain how his absence affected the outcome of the trial court' s in -
that his have
proceeding. Instead, Schreiber
made a
chambers baldly asserts presence " could
No. 40553 -9 -II
3
meaningful difference in the outcome." Petition at 13. This bald assertion is not sufficient to
support a claim of unlawful restraint. Rice, 118 Wn.2d at 886.
II. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Next, Schreiber argues that his appellate counsel rendered ineffective assistance by
failing to argue in Schreiber' s direct appeal that the State' s forensic expert' s testimony violated
Schreiber' s right to confront the witnesses against him.4 We disagree.
To prevail on a claim of ineffective assistance of appellate counsel, petitioners must show
that the legal issue which appellate counsel failed to raise had merit and that [ the petitioners]
were actually prejudiced by the failure to raise the issue."' In re Pers. Restraint ofDalluge, 152
Wn.2d 772, 787, 100 P. 3d 279 ( 2004) ( quoting In re Pers. Restraint ofMaxfield, 133 Wn.2d 332,
344, 945 P. 2d 196 ( 1997)). Schreiber' s ineffective assistance of appellate counsel claim requires
us to consider whether his current challenge— that Gordon' s testimony violated his confrontation
clause rights— had merit, and if so, whether Schreiber was actually prejudiced by appellate
counsel' s failure to raise these issues on direct appeal. Dalluge, 152 Wn.2d at 787. Appellate
counsel is not ineffective for failing to raise all possible nonfrivolous issues on appeal. Dalluge,
152 Wn.2d at 787. But a claim must have merit to satisfy the Dalluge test' s first prong.
Dalluge, 152 Wn.2d at 787.
3 Schreiber further suggests that the exclusion of one prospective juror after the in -chambers
questioning was improper. But Schreiber does not argue that the prospective juror' s excusal was
improper or explain how his presence could have affected the trial court' s decision to excuse the
prospective juror. Therefore, we do not consider this issue. RAP 10. 3( a)( 6).
4 Schreiber also argues that Gordon' s forensic testimony violated his Sixth Amendment
confrontation clause rights. But Schreiber neither argues nor demonstrates that any
confrontation clause violation caused him actual and substantial prejudice, so this claim fails.
See Coggin, 182 Wn.2d at 122.
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Schreiber claims that his appellate counsel was deficient for failing to argue on direct
appeal that his confrontation right was violated when Gordon, the State' s forensic expert,
testified to the result of blood alcohol tests that were performed by another technician who was
not available for cross- examination. Gordon testified that, because the technician was not
available to testify against Schreiber, she personally re -tested Schreiber' s blood sample almost
two years later. Gordon' s own result was 0. 13, slightly lower than the technician' s earlier
results, which averaged 0. 14. Gordon testified that unavoidable evaporation explained the
difference, and Schreiber' s own forensic experts agreed. Moreover, Schreiber' s experts and his
trial counsel relied upon the unavailable technician' s earlier result of 0. 14 to establish the
defense of extreme intoxication.
Schreiber' s claim of ineffective assistance of appellate counsel fails because his
confrontation clause claim had no merit. Dalluge, 152 Wn.2d at 787. Because the absent
technician' s test results supported Schreiber' s defense, his trial counsel made a tactical decision
to waive the confrontation right below. Schreiber'.s forensic experts agreed with and relied upon
the absent technician' s higher blood alcohol test which now forms the basis of his confrontation
clause claim. And Schreiber' s trial attorney used the absent technician' s test in support of his
intoxication theory.
Trial counsel may waive a defendant' s confrontation clause rights as a matter of trial
strategy without the defendant' s express waiver. Melendez -Diaz v. Massachusetts, 557 U.S. 305,
314 n. 3, 327, 129 S. Ct. 2527, 174 L. Ed. 2d 314 ( 2009). Because Schreiber' s trial counsel
strategically waived his confrontation clause claim to establish his defense of extreme
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No.. 40553 -9 -II
intoxication, the confrontation clause claim had no merit on appeal. 5 See Dalluge, 152 Wn.2d at
787.
Thus, Schreiber' s appellate counsel was not deficient for failing to raise this claim on
direct appeal and Schreiber' s argument fails.
III. NEWLY DISCOVERED EVIDENCE
Schreiber further argues that a new trial is warranted in light of newly discovered
evidence about Gordon' s misfeasance and malfeasance regarding her improper quality -assurance
sample certifications. We disagree.
Under RAP 16. 4( c)( 3), a claim of unlawful restraint may be based on the existence of
material facts that have not previously been presented and that, in the interest of justice, require
the conviction' s vacation. But when the newly discovered evidence is merely cumulative or
impeaching, we will not consider the petitioner' s claim. In re Pers. Restraint ofStenson, 150
Wn.2d 207, 217, 76 P. 3d 241 ( 2003)
After Schreiber' s trial, it became known that Gordon certified breath testing machine
quality -assurance samples without personally testing them and that her laboratory colleagues
falsified records to cover up the misconduct." Petition ( App. B); City ofSeattle v. Holifield,
170 Wn.2d 230, 234, 240 P. 3d 1162 ( 2010). Gordon' s misfeasance and malfeasance involved
devices used for breath tests, but here Gordon testified to the results of tests on samples of
5
Nor would the claim have merit on appeal if framed as an ineffective assistance of counsel
argument, because the decision to rely on the absent technician' s higher blood alcohol results
was a legitimate trial tactic. See State v. Grier, 171 Wn.2d 17, 42, 246 P. 3d 1260 ( 2011) ("[ T] he
defendant bears the burden of establishing the absence of any ` conceivable legitimate tactic
explaining counsel' s performance."') ( quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101
P. 3d 80 ( 2004)):
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No. 40553 -9 -II
Schreiber' s blood. Schreiber provides no evidence to suggest that Gordon' s misfeasance and
malfeasance involved any device, test, or testing protocol used for blood tests. And Schreiber
offers no new evidence about his intoxication. Thus, the only value of Schreiber' s new evidence
is for impeachment.
Arguing to the contrary, Schreiber relies on Division One' s decision in State v.-Roche,
114 Wn. App. 424, 437- 38, 59 P. 3d 682 ( 2002). But in Roche, the analyst' s malfeasance created
a chain of custody problem, implicated an element of the offense charged, and devastated the
State' s ability to prove the charges. See 114 Wn. App. at 436, 440. Such is not the case here,
thus Roche does not control our decision and Schreiber' s argument fails. See Stenson, 150
Wn.2d at 218.
IV. JUDGE AND JUROR MISCONDUCT
Schreiber next argues that he is entitled to a new trial because the trial judge and a juror
each slept through portions of the trial.6 We disagree because Schreiber fails to establish a prima
facie case of either actual and substantial prejudice or a fundamental defect inherently resulting
in a complete miscarriage ofjustice.
6 In an argument' s heading, Schreiber also states that his trial counsel was ineffective for failing
to request a mistrial on these grounds. But Schreiber fails to include any legal argument or
citations to authority developing this ineffective assistance claim. See Petition at 33- 35. Such
passing treatment of an issue does not merit judicial consideration. In re Pers. Restraint of
Bratz, 101 Wn. App. 662, 668 n. 3, 5 P. 3d 759 ( 2000); see RAP 16. 7( a)( 2)( ii).
Moreover, Schreiber fails to provide factual support for the deficiency prong of an ineffective
assistance claim because the record and declarations do not show that Schreiber' s trial counsel
knew or should have known that the judge or juror were asleep. Thus, even if Schreiber had
developed this ineffective assistance claim with legal argument and citations to authority, it
would fail for lack of evidentiary support.
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No. 40553 -9 -II
A. Allegedly Sleeping Judge
Schreiber claims that the trial judge committed a structural error by sleeping during the
trial. Schreiber supports this claim with his own affidavit. The State contests the factual basis of
this claim with an affidavit from the trial judge, who denied " sleeping or dozing during the trial."
Despite this factual discrepancy, a reference hearing is not warranted because Schreiber fails to
establish a prima facie case of either actual and substantial prejudice resulting from a
constitutional error or a fundamental defect inherently resulting in a complete miscarriage of
justice.
1. Constitutional Error
Schreiber does not claim that the trial judge' s alleged sleeping caused any specific error.
Nor does he claim that the judge' s conduct caused him actual and substantial prejudice. Under
these circumstances, Schreiber has failed to provide a basis for us to conclude that his
conviction was obtained ... in violation of the Constitution of the United States or the
Constitution or laws of the State of Washington." RAP 16. 4( c)( 2).
2. Fundamental Defect
Apparently claiming the occurrence of a nonconstitutional but fundamental defect,
Schreiber claims that because " the judge slept through any portion of trial, he was functionally
absent— a structural error mandating reversal." Petition at 35. We disagree because Schreiber
fails to state with particularity the facts underlying his claim that the trial court was " functionally
absent" and, in the alternative, Schreiber fails to show a fundamental defect inherently resulting
in a complete miscarriage ofjustice. Petition at 35.
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No. 40553 -9 -II
First, Schreiber' s claim that the trial judge was " functionally absent" is conclusory
because it is not supported by factual allegations that are stated with particularity. Petition at 35.
Schreiber fails to identify any omission ( such as a failure to make a ruling) or act ( such as a
ruling affected by the trial judge' s having slept) that could provide a basis on which to conclude
that the trial judge failed to discharge his functions. Therefore, his claim that the trial judge was
functionally absent is a conclusory allegation, which is not sufficient in a personal restraint
petition. Rice, 118 Wn.2d at 886.
Second, although it would be very troubling to learn that the trial judge slept through any
portion of the trial, Schreiber fails to show here that it was a fundamental defect resulting in an
inherent miscarriage ofjustice. Accordingly, this claim fails.7
B. Sleeping Juror
In addition, Schreiber claims that the presiding juror " did not hear. significant testimony"
because she was sleeping. Petition at 35. But citing State v. Hughes, 106 Wn.2d 176, 204, 721
P. 2d 902 ( 1986), Schreiber concedes that "[ a] single juror' s slumber is not per se plain error."
Petition at 35. Schreiber then fails to argue that the juror' s slumber was either a constitutional
violation causing actual and substantial prejudice or a fundamental defect inherently resulting in
a complete miscarriage of justice. Accordingly, he fails to make a prima facie showing
warranting relief, and his claim fails.
We note that courts in other jurisdictions have upheld convictions challenged on the ground
fell asleep. United States v. White, 589 F. 2d 1283, 1289 ( 5th Cir. 1979)
that the trial judge
holding that a trial judge did not commit reversible error by falling asleep during the
defendant' s opening statement); Hummel v. State, 617 N.W.2d 561, 564 ( Minn. 2000) ( holding
that a postconviction petitioner failed to show prejudice resulting from his trial counsel' s failure
to object to an allegedly sleeping judge).
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No. 40553 -9 -II
V. RIGHT TO CONFRONT AN EYEWITNESS
Schreiber next attempts to renew an argument made in his direct appeal by arguing that
the trial court violated his right to confront the witnesses against him when it limited cross-
examination of Corporal Boynton and refused to allow discovery of Corporal Boynton' s
psychological records. We do not allow Schreiber to renew this argument.
A personal restraint petition cannot renew an argument that was raised and rejected on
direct appeal unless the interests of justice require the argument' s relitigation. Davis, 152 Wn.2d
at 671. Schreiber does not assert that the interests ofjustice require relitigation. He claims only
that the decision in his direct appeal incorrectly concluded, without examining the sealed
psychological records, that any error was harmless beyond a reasonable doubt. This claim is
insufficient to allow Schreiber to renew this argument.
VI. FIREARM ENHANCEMENT
Schreiber further claims that ( 1) evidence was insufficient to support the jury' s special
verdict finding that Schreiber was armed with a firearm and (2) the trial court' s jury instructions
relating to the special verdict were ambiguous.$ We disagree.
A. The Evidence Was Sufficient To Prove the Firearm Enhancement
Schreiber claims that the evidence was insufficient to support the jury' s special verdict on
the firearm enhancement. We disagree.
8 In an argument' s heading, Schreiber further states that his appellate counsel was ineffective for
failing to raise these issues in his direct appeal. Schreiber' s petition fails to include any legal
argument or citations to authority developing this ineffective assistance claim. Thus, we do not
consider it. RAP 10. 3( a)( 6).
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When a defendant challenges the sufficiency of evidence supporting a firearm
enhancement, we examine the record to decide whether any rational trier of fact could have
found that the defendant was armed. State v. Eckenrode, 159 Wn.2d 488, 494, 150 P. 3d 1116
2007) ( plurality opinion). In a sufficiency of the evidence challenge, the defendant admits the
truth of all the State' s evidence, and we consider the evidence and all reasonable inferences from
it in the.light most favorable to the State. Eckenrode, 159 Wn.2d at 494; State v. Salinas, 119
Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).
Whether a defendant was armed with a firearm is a fact specific determination. State v.
Wn.2d 453, 462, 181 P. 3d 819 ( 2008) ( plurality A defendant was armed with
Neff, 163 opinion).
a firearm if (1) the firearm was easily accessible and readily available for use either for offensive
or defensive purposes, and ( 2) there was a nexus between the defendant, the firearm, and the
crime. Eckenrode, 159 Wn. 2d at 491.
1. Easily Accessible and Readily Available for Use
Here, the evidence was sufficient to show that Schreiber' s firearm was easily accessible
and readily available for use. The State elicited testimony that Schreiber carried the rifle from
the house into the truck, periodically raising it and pointing it toward police officers. The
evidence also showed that Schreiber raised a metal object at a police officer while driving the
truck. The rifle was found loaded in the truck after the fatal collision. Thus, a rational trier of
fact could have found that the rifle was easily accessible and readily available for use.
2. Nexus Between the Defendant, the Weapon, and the Crime
To establish that a defendant was armed for purposes of proving the sentencing
enhancement, the State must establish a connection between the defendant, the weapon and the
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No. 40553 -9 -II
crime. Eckenrode, 159 Wn.2d at 491. There must be a connection between the defendant and
the weapon and there must be a connection between the weapon and the crime. See State v.
Gurske, 155 Wn.2d 134, 141- 42, 118 P. 3d 333 ( 2005).
First, sufficient evidence demonstrates Schreiber' s connection to the firearm. Having
crawled with the rifle from his house to his truck, Schreiber held the rifle during the standoff and
while police cars chased him. The evidence showed that he raised the rifle in the direction of
police officers several times, and raised a metal object (presumably the rifle) at a police officer
while driving the truck. Therefore, the evidence shows a connection between Schreiber and the
rifle.
Second, the evidence, viewed in the light most favorable to the State, shows a connection
between the weapon and the crime. Whether there is a connection between the weapon and the
crime may depend on "` the nature of the crime, the type of weapon, and the circumstances under
which the weapon is found."' Gurske, 155 Wn.2d at 142 ( quoting State v. Schelin, 147 Wn.2d
562, 570, 55 P. 3d 632 ( 2002) ( plurality opinion)).
Here, the nature of this intentional second degree murder is a fatal motor vehicle collision
that occurred during Schreiber' s flight from an armed standoff, during which he pointed his rifle
at the police officers several times. Further, Schreiber' s loaded rifle was found inside his truck
after the fatal collision, and a rational trier of fact could have concluded that the rifle was the
metal object Schreiber waved at the police officers while driving the truck. Given these
circumstances, a rational trier of fact could conclude beyond a reasonable doubt that the rifle was
connected to the crime. Schreiber' s sufficiency argument fails.
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No. 40553 -9 -II
B. The Jury Instructions Were Not Ambiguous
Schreiber next claims that the jury instruction regarding the firearm enhancement was
ambiguous. Petition at 40. Schreiber appears to argue that the trial court erred by instructing the.
jury in a manner that relieved the State of its burden to prove each element beyond a reasonable
doubt. See State v. Pirtle, 127 Wn.2d 628, 656, 904 P. 2d 245 ( 1996). We disagree.
We review alleged errors of law injury instructions de novo. State v. Barnes, 153 Wn.2d
378, 3 82,
. 103 P. 3d 1219 ( 2005). Jury instructions are proper when, viewed as a whole, they
allow each party to argue its theory of the case, they do not mislead the jury, and they inform the
jury of the applicable law. Barnes, 153 Wn.2d at 382; State v. McCreven, 170 Wn. App. 444,
461- 62, 284 P. 3d 793 ( 2012). A jury instruction "` must make the relevant legal standard
manifestly apparent to the average juror."' McCreven, 170 Wn. App. at 462 ( internal quotation
marks omitted) ( quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P. 2d 369 ( 1996))).
Here, the trial court' s instruction was unambiguous on its face. In relevant part, the trial
court' s instruction stated:
A person is armed with a firearm if, at the time of the commission of the crime, the
firearm is easily accessible and readily available for offensive or defensive use. The
State must prove beyond a reasonable doubt that there was a connection between
the firearm and the defendant. The State must also prove beyond a reasonable doubt
that there was a connection between the firearm and the crime. In determining
whether this connection existed, you should consider the nature of the crime, the
type of firearm, and the circumstances under which the firearm was found.
Petition (App. A at jury instruction 33).
Contending that the instruction was ambiguous because the jurors misunderstood it,
Schreiber requests a reference hearing " where jurors can be examined, not to impeach their
verdict, but to demonstrate the reasonableness of a reasonable person misinterpreting the
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No. 40553 -9 -II
instruction." Reply at 20. But this request misapprehends Schreiber' s burden. We will remand
for a reference hearing only if a personal restraint petition first makes a prima facie showing of
actual prejudice resulting from constitutional error or a fundamental defect resulting in a
complete miscarriage of justice. Yates, 177 Wn.2d at 17- 18. Schreiber' s request fails for two
reasons.
First, the sole support for Schreiber' s claimed ambiguity is an affidavit from his trial
counsel, who spoke with the presiding juror after deliberations. According to the affidavit, the
presiding juror told Schreiber' s trial counsel that " she understood that the instructions did not
require any connection between the gun and the crime in order for the [ firearm] enhancement to
apply." Petition ( App. A at 3). But the affidavit is inadmissible hearsay, and therefore Schreiber
cannot rely on it to establish a prima facie case of actual prejudice or a fundamental defect
resulting in a complete miscarriage ofjustice. ER 801, 802; Rice, 118 Wn.2d at 886.
Second, reviewing the instruction de novo, we hold that it is unambiguous on its face.
Even if we were to consider the juror' s statement, it cannot form the basis for a claim of
instructional error. Our review is not for whether an individual juror mentions a potential
ambiguity in a jury instruction. Instead, we consider whether the jury instructions, when read as
a whole, make the relevant legal standard manifestly apparent to the average juror. McCreven,
170 Wn. App. at 462.
Because Schreiber bases his claim on inadmissible hearsay and because the instruction is
unambiguous on its face, this argument fails.
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VII. LAW ENFORCEMENT AGGRAVATING FACTOR
Lastly, Schreiber claims that the trial court erred by imposing an exceptional sentence
based on Sergeant Crawford' s status as a law enforcement officer. Specifically, Schreiber claims
1) the law enforcement aggravating factor did not exist in 2004 at the time of Schreiber' s crime
and ( 2) application of the aggravating factor that was statutorily codified in 2005 violated the
constitutional prohibition against ex post facto laws. These arguments lack merit.
Under Blakely v. Washington, 542 U. S. 296, 303- 04, 124 S. Ct. 2531, 159 L. Ed. 2d403
2004), a sentencing court may impose an exceptional sentence only after a jury has found,
beyond a reasonable doubt, the existence of aggravating facts justifying the exceptional sentence.
After Blakely, the legislature amended the Sentencing Reform Act (SRA) of 1981, chapter 9. 94A
RCW, " to create a new criminal procedure for imposing greater punishment than the standard
range or conditions and to codify existing common lawaggravating factors, without expanding
or common law aggravating circumstances." LAWS OF 2005,
or restricting existing statutory
ch. 68, § 1.
A. The Law Enforcement Aggravating Factor Existed
Schreiber first claims that the law enforcement aggravating factor did not exist at the time
of his crime because the legislature had not yet enacted it into law. He argues that the law
enforcement aggravating factor is the functional equivalent of a crime and, therefore, because the
legislature alone may create crimes, the aggravating factor was invalid before the legislature
codified it in 2005 ( after Schreiber' s crime). We disagree.
At the time of Schreiber' s crime, Washington' s common law recognized a law
enforcement aggravating factor. State v. Anderson, 72 Wn. App. 453, 466, 864 P. 2d 1001 ( 1994)
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No. 40553 -9 -II
A] defendant' s assault on a victim he knows is a police officer justifies an exceptional
sentence."). The legislature codified this existing aggravating factor after Schreiber' s crime in
Laws of 2005, chapter 68.
A conviction based on a nonexistent crime is a constitutional error that causes actual and
substantial prejudice. In re Pers. Restraint ofHinton, 152 Wn.2d 853, 860, 100 P. 3d 801 ( 2004).
The legislature has the exclusive authority to define .crimes. State v. Wissing, 66 Wn. App. 745,
755, 833 P. 2d 424 ( 1992), review denied, 120 Wn.2d 1017- 18 ( 1992).
For purposes of the right to a jury trial, an aggravating factor that increases a sentence
beyond the maximum authorized statutory sentence ... is the functional equivalent of an
element of a greater offense than the one covered by the jury' s guilty verdict." Apprendi v. New
Jersey, 530 U. S. 466, 494 n. 19, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000); see also Ring v.
Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 ( 2002) ( quoting Apprendi, 530
U. S. at 494 n. 19) ( following Apprendi and holding that facts underlying sentencing aggravators
are "` the functional equivalent of an element of a greater offense"' and must be found by a jury);
State v. Hylton, 154 Wn. App. 945, 954, 226 P. 3d 246 ( 2010). Thus, Schreiber argues that an
aggravating factor is the functional equivalent of a crime, and because the legislature has the
exclusive power to define crimes, no sentencing enhancement is valid unless created by the
legislature.
But courts in Washington have repeatedly declined to hold that aggravating factors are
the " functional equivalent" of a crime for all purposes. Hylton, 154 Wn. App. at 954 (" Apprendi
does not support the contention that aggravating factors are functionally equivalent to elements
of the crime in all instances; the Court held only that any fact that would increase the penalty for
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No. 40553 -9 -II
a crime beyond the prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt."); see also State v. Siers, 174 Wn.2d 269, 282, 274 P. 3d 358 ( 2012)
holding that aggravating sentencing factors are not the functional equivalent of essential
elements that must be charged in an information); State v: Eggleston, 164 Wn.2d 61, 71, 187
P. 3d 233 ( 2008) ( holding that " the double jeopardy clause did not prevent [ the defendant' s]
retrial on the ` law enforcement' aggravating factor"); State v. Benn, 161 Wn.2d 256, 262- 64, 165
P. 3d 1232 ( 2007) ( declining to treat aggravating factors as equivalent to elements for double
jeopardy purposes).
We follow our Supreme Court in Siers, Eggleston, and Benn, as well as our own opinion
in Hylton, and decline to extend the reach of the " functional equivalent" language. That is, we
decline to extend the " functional equivalent" framework to treat an aggravating factor as a crime
for purpose of Schreiber' s argument. An aggravating factor is not the functional equivalent of a
crime such that the legislature has the exclusive power to create it. Thus, the " common law" law
enforcement aggravating factor in existence at the time of Schreiber' s crime was not invalid.
Furthermore, at the time of Schreiber' s crime, the legislature allowed the imposition of
noncodified sentencing aggravators. State v. Ammons, 105 Wn.2d 175, 181, 713 P.2d 719, 718
P. 2d 796 ( 1986); Hylton, 154 Wn. App. at 955- 56. And the 2005 SRA amendments, which
codified the law enforcement aggravating factor, changed only the procedural law of sentencing,
not the substantive law. See State v. Pillatos, 159 Wn.2d 459, 472, 150 P. 3d 1130 ( 2007);
Hylton, 154 Wn. App. at 955- 56. Thus, Schreiber was sentenced under the substantive law
existing at the time of his crime, and his argument fails. See Anderson, 72 Wn. App. at 466.
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B. The Law Enforcement Aggravating Factor Was Not Applied Ex Post Facto
Schreiber additionally claims that application of an aggravating factor codified in Laws
of 2005, chapter 68, violated the constitutional prohibition against ex post facto laws. Petition at
46-49. Our Supreme Court has already rejected this argument. Pillatos, 159 Wn.2d at 477; see
also Hylton, 154 Wn. App. at 956- 58. By enacting Laws of 2005, chapter 68, the legislature did
not create new aggravating factors but instead codified aggravating factors that existed under
both past and present law." Pillatos, 159 Wn.2d at 473. Thus, Schreiber' s argument fails.
Because Schreiber has failed to establish any meritorious claims, we deny his petition.
We concur:
O- VWois—
wick, P.J.
Maxa, J. -
Le.;, J.
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