In re Pers. Restraint of Meredith

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SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of No. 94582-9

GARY DANIEL MEREDITH, En Bane

Respondent.
Filed AUG 0 2 2018

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 In an unpublished opinion, the Court of Appeals agreed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
In re Pers. Restraint ofMeredith
No. 94582-9

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 ofthe 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.
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No. 94582-9

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 an3rway.

1 Verbatim Report ofProceedings(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 ofthe 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 ofDNA (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

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review oiiheBatson 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 eertiorari 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)ineorrect denial

ofthe 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 ofER 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 ofMeredith, No. 46671-6-II, slip op. at

1 (Wash. Ct. App. Feb. 14, 2017)(unpublished), http://www.eourts.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 ease for a
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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 "[wjhile the

instruction correctly limited the consideration ofthe 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 review.

State V. Meredith, 189 Wn.2d 1023,408 P.3d 1093 (2017).

ISSUES

I. Was it proper for the Court of Appeals to consider Meredith's supplemental

filings under RAP 16.8?

II. Was Meredith's appellate counsel ineffective for failing to raise the

peremptory challenge violation on direct appeal?

III. Was the trial court's limiting instruction on prior conviction evidence

sufficient?
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ANALYSIS

To obtain reliefthrough a personal restraint petition, Meredith must show either

(1)a constitutional error that resulted in actual and substantial prejudice or(2)a

nonconstitutional error that'"constitutes a fundamental defect which inherently

results in a complete miscarriage ofjustice.'" In re Pers. Restraint ofDavis, 152

Wn.2d 647,671-72, 101 P.3d 1 (2004)(quoting In re Pers. Restraint ofCook, 114

Wn.2d 802, 813, 792 P.2d 506 (1990)). "[T]o prevail on a PRP [(personal restraint

petition)] alleging constitutional error,[the petitioner] must show by a preponderance

ofthe evidence that the error has caused him actual prejudice." In re Pers. Restraint

ofLord, 152 Wn.2d 182, 188, 94 P.3d 952(2004)(citing Cook, 114 Wn.2d at 813-

14). When reviewing a Court of Appeals decision on a personal restraint petition,"we

review pure questions oflaw de novo and the question of deference to the Court of

Appeals does not arise." In re Pers. Restraint ofCoats, 173 Wn.2d 123, 133, 267

P.3d 324 (2011).

I. The Court Properly Considered Meredith's Supplemental Filings

As an initial matter, we address whether the Court of Appeals properly

considered Meredith's supplemental filings. The State asserts that Meredith's claim

ofineffective assistance of appellate counsel in his January 2015 petition was not

sufficiently supported by legal authority. The State argues that later filings addressing

the issue in detail were improperly considered because under RAP 16.8(e), Meredith

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needed the Court of Appeals' authorization to add grounds for relief after the one-year

deadline. See RAP 16.8(e); ROW 10.73.090(1). This is incorreet.

Under our Rules of Appellate Procedure,"a petitioner can amend an initial PRP

and raise new grounds for relief, without requesting a formal amendment, as long as

the brief is timely filed and the new issue is adequately raised." In re Pers. Restraint

ofRhem, 188 Wn.2d 321, 327, 394 P.3d 367(2017). Meredith's first supplemental

brief, filed in January 2015, was filed prior to his one-year deadline ofFebmaiy 28,

2015, and adequately raised the issue of ineffective assistance of appellate counsel.

The Court of Appeals properly considered Meredith's supplemental filings.

II. Meredith's Appellate Counsel Was Not Ineffectivefor Failing To Raise the
Peremptory Challenge Issue on Direct Appeal

The State argues that Meredith's appellate counsel's failure to raise the

peremptory challenge issue on direct appeal was reasonable in light ofthe requisite

standard ofreview under RAP 2.5. Because this unpreserved, nonconstitutional error

is not a structural error, it ordinarily could not be raised for the first time on appeal

under RAP 2.5(a)(3). While the Court of Appeals did not apply the framework of

RAP 2.5, it found that the trial court's impairment of Meredith's right to eight

peremptory challenges constituted a structural error, a "reversible error without a

showing of prejudice." Meredith, slip op. at 7. The Court of Appeals improperly

relied on three Washington cases to hold that it was a structural error and,

consequently, incorrectly held that Meredith's appellate counsel was ineffective.
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A petitioner claiming ineffective assistance of appellate counsel on collateral

review must show that "the legal issue that appellate counsel failed to raise had merit"

and that "he or she was actually prejudiced by appellate counsel's failure to raise the

issue." In re Pers. Restraint ofDalluge, 152 Wn.2d 772, 777-78, 100 P.3d 279

(2004). Prejudice requires the petitioner "show a reasonable probability that, but for

his counsel's unreasonable failure to file a merits brief, he would have prevailed on

his appeal." Id. at 788 (emphasis omitted). First, Meredith is correct that the trial

court erroneously deprived him of his eighth peremptory challenge under our criminal

rules. See CrR 6.4(e)(1); CrR 6.5. Second, to determine whether the peremptory

challenge claim would have been successful, we must first look to RAP 2.5, which

limits appellate court review of errors not objected to at trial. RAP 2.5(a) provides

that

[t]he appellate court may refuse to review any claim oferror which was
not raised in the trial court. However a party may raise the following
claimed errors for the first time in the appellate court:(1)lack of trial
court jurisdiction,(2)failure to establish facts upon which relief can be
granted, and (3) manifest error affecting a constitutional right.

(Emphasis added.) "The general rule that an assignment of error be preserved

includes an exception when the claimed error is a 'manifest error affecting a

constitutional right.'" State v. O'Hara, 167 Wn.2d 91,98,217 P.3d 756(2009)

(quoting RAP 2.5 cmt. a). "This exception encompasses developing ease law while

ensuring only certain constitutional questions can be raised for the first time on

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review." Id. (citing RAP 2.5 cmt. a at 86 Wn.2d 1152(1976)), Thus, we must

determine whether the court's failure to give the correct number of peremptory

challenges qualifies under the manifest constitutional error exception.

The traditional test for this exception requires the petitioner to "demonstrate(1)

the error is manifest and(2)the error is truly of constitutional dimension." Id. As

both parties recognize, there is "no constitutional right to peremptory challenges."

State V. Kender, 21 Wn. App. 622,626, 587 P.2d 551 (1978); see also Rivera v.

Illinois, 556 U.S. 148, 157, 129 S. Ct. 1446, 173 L. Ed. 2d 320(2009)("this Court has

consistently held that there is no freestanding constitutional right to peremptory

challenges"). Meredith argues that despite not being a constitutional issue, depriving

a party of a peremptory challenge meets the manifest error exception because it is a

structural error, a type of error that requires reversal without a showing of prejudice.

An error is structural when it "'necessarily render[s] a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt or innocence.'"

Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 165 L. Ed. 2d 466

(2006)(alteration in original)(quoting Neder v. United States, 527 U.S. 1,9, 119 S.

Ct. 1827, 144 L. Ed. 2d 35 (1999)). Examples of structural error include improper

courtroom closure, complete lack of counsel, and racial discrimination in grand jury

selection. State v. Wise, 176 Wn.2d 1, 15, 288 P.3d 1113 (2012); Vasquezv. Hillery,

474 U.S. 254, 263-64, 106 S. Ct. 617, 88 L. Ed. 2d 598(1986); Gideon v. Wainwright,

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372 U.S. 335, 342-44, 83 S. Ct. 792,9 L. Ed. 2d 799(1963). We have also held there

was structural error in cases of double jeopardy clause violations.In re Pers. Restraint

ofOrange, 152 Wn.2d 795, 820-22, ICQ P.3d 291 (2004), failure to require the State

to prove its case beyond a reasonable doubt.In re Pers. Restraint ofGunter, 102

Wn.2d 769,11A,689 P.2d 1074(1984), and conflict of interest resulting in

deprivation of counsel.In re Pers. Restraint ofRichardson, 100 Wn.2d 669,679,675

P.2d 209(1983).

Turning to the facts ofthis case, this court has never addressed whether failing

to give a party the correct number of peremptory challenges is a structural error. Only

a handful of cases from the Court of Appeals and this court address whether other

types of peremptory challenge errors are structural. Meredith and the Court of

Appeals rely on Vreen, Bird, and Evans for the proposition that "[a]ny impairment of

a party's right to exercise a peremptory challenge . . . constitutes reversible error

without a showing of prejudice." Meredith, slip op. at 7-8 (citing Vreen, 143 Wn.2d

at 931-32; State v. Bird, 136 Wn. App. 127, 133-34, 148 P.3d 1058 (2006); State v.

Evans, 100 Wn. App. 757, 774,998 P.2d 373(2000)). Reliance on these cases is

misplaced.

Our holding in Vreen was more limited than the Court of Appeals recognized.

In Vreen, the trial court wrongly denied Vreen's peremptory challenge when it found

that his nondiscriminatory reason for the challenge was inadequate. Vreen, 143

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Wn.2d at 925-27. We held that "erroneous denial of a litigant's peremptory challenge

cannot be harmless when the objectionable juror actually deliberates." Id. at 932.

That holding does not extend to the facts in this case. Here, the trial court did not

erroneously deny a peremptory challenge and then allow that objectionable juror to

determine Meredith's guilt. Rather, the court gave a lesser number of peremptory

challenges than each party was entitled to and neither party raised any objection.

Further, in Vreen, the error was preserved for appeal and also was constitutional

because it involved a Batson challenge. Id. at 925-27. Here, the trial court's error has

no constitutional component like the court's decision in Vreen, and it was not objected

to at any point in the trial court.

Similarly, Evans dealt with peremptory challenge errors that were preserved for

appeal and involved a Batson challenge. 100 Wn. App. at 758-63. The trial courts in

the two consolidated cases erred by requiring a statement ofrace-neutral reasons for

exercising a peremptory challenge despite there being no prima facie case of

purposeful discrimmation. Id. at 768-73. Again, this error is a far cry from the error

in Meredith's case. Wrongly denying an attempted use of a peremptory challenge

where the objectionable juror then sits on the jury that convicts the defendant is a

more significant error than allowing one less peremptory challenge than the court

rules provide.

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Bird is also distinguishable from the facts here. In Bird, the trial court

erroneously counted Bird's acceptance ofthe jury panel as one of his seven

peremptory challenges. 136 Wn. App. at 133. This resulted in Bird not being able to

use a peremptory challenge on juror 32. M at 131. The Court of Appeals found that

because "the objectionable juror sat on the jury that convicted Bird.... the trial

court's error mandates reversal. . . without a showing of prejudice." Id. at 134.

Similar to Vreen, the trial court's error in Bird was wrongly depriving the defendant

of a peremptory challenge that the court had originally given him and then denying

defense counsel's objections to this deprivation. Id. Meredith was not wrongly

deprived of a peremptory challenge that the trial court had initially allowed him, and

his counsel never objected to the court's handling of peremptory challenges.

While these cases are factually distinguishable from Meredith's case, it is also

important to recognize that Vreen, Bird, and Evans adopted reasoning from a Ninth

Circuit decision, Annigoni, that has since been overruled by the United States

Supreme Court in Rivera, 556 U.S. at 160. United States v. Annigoni, 96 F.3d 1132,

1144(9th Cir. 1996)(en banc). As Rivera recognized, it is up to individual states "to

decide whether such errors [wrongly denying peremptory challenges] deprive a

tribunal of its lawful authority and thus require automatic reversal." Rivera, 556 U.S.

at 161-62. Even if we decided to still adopt the reasoning m Annigoni, it addressed

only circumstances in which a court erroneously denies the use of a peremptory

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challenge, resulting in that objectionable juror sitting on the jury that convicts the

defendant. Annigoni, 96 F.3d at 1145 ("It would be difficult if not impossible for a

reviewing court to determine the degree of harm resulting from erroneously allowing

a juror to sit despite an attempted peremptory challenge."). Thus, the reasoning in

Annigoni, regardless of its current merit, does not apply to this case.

In conclusion, the court's giving the parties seven peremptory challenges

instead of eight was an error, but it does not rise to the standard of a structural error.

It did not render Meredith's trial fundamentally unfair or an unreliable vehicle for

determining his guilt or innocence. See Recuenco, 548 U.S. at 218-19. Meredith

attempts to show that the error rendered his trial fundamentally unfair by stating that

had he been given another peremptory challenge, he would have used it on juror 11,

14, or 16. However, this conjecture, without any record of objections to these jurors

or other evidence to show bias, is insufficient to show that Meredith's trial was

fundamentally unfair or an unreliable vehicle for determining his guilt or irmocence.

Thus, the manifest error exception is not met, and on direct appeal the Court of

Appeals could have refused to hear the peremptory challenge issue under RAP 2.5.

Under the strictures ofRAP 2.5, it was reasonable for appellate counsel to

refrain fi'om including this error in the direct appeal. As we have explained, "[fjailure

to raise all possible nonfrivolous issues on appeal is not ineffective assistance." In re

Pers. Restraint ofLord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994). "The 'process of

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No. 94582-9

winnowing out weaker arguments . .. and focusing on those more likely to prevail, far

from being evidence of incompetence, is the hallmark of effective appellate

advocacy.'" Id. at 302(alteration in original)(internal quotation marks omitted)

(quoting Smith v. Murray, All U.S. 527, 536, 106 S. Ct. 2661,91 L. Ed. 2d 434

(1986)). Meredith has not shown a reasonable probability that but for his counsel's

failure to raise the peremptory challenge error on direct appeal, he would have

prevailed on that appeal. See Dalluge, 152 Wn.2d at 788.

We hold that Meredith's counsel did not provide ineffective assistance by

failing to raise the peremptory challenge error on direct appeal, and thus we reverse

the Court of Appeals' holding on this issue.

III. We Need Not Address the Sufficiency ofthe Limiting Instruction

The Court of Appeals held that the trial court erred by giving the limiting

instruction on Meredith's prior sex offense convictions because "[w]hile the

instruction correctly limited the consideration ofthe 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 ofthe count II." Meredith, slip op. at 13. The State initially

challenged this holding in its petition for review but later argued in its supplemental

brief that the holding was not a basis for granting Meredith relief and thus this court

does not need to review it. Meredith argues the holding was another ground for

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granting the petition for relief, in addition to the ineffective assistance of counsel

claim, and it should be affirmed.

We decline to address this issue as it was not a basis for the Court of Appeals

granting the personal restraint petition and is insufficiently briefed. The court

explained it was addressing the issues of admitting the prior sex offense convictions

and the sufficiency ofthe limiting instruction "because they may arise on retrial."

Meredith, slip op. at 9. Even ifthis court wished to address this issue, it is

insufficiently briefed. The State and Meredith dedicated nearly one page per brief on

the issue, and neither party cited any legal authority to support their respective

arguments. Such a lack of analysis and legal authority on this issue renders review

improper. See State v. Gossage, 165 Wn.2d 1, 8-9, 195 P.3d 525 (2008).

CONCLUSION

We hold that a trial court allowing an incorrect number of peremptory

challenges is not a structural error requiring automatic reversal without a showing of

prejudice. Based on this holding, we reverse the Court of Appeals' holding that

Meredith received ineffective assistance of appellate counsel and remand for the

Court of Appeals to consider Meredith's remaining claims that have not yet been

addressed.

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WE CONCUR:

} ^

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Yu, J. (concurring)

No. 94582-9

YU,J.(concurring) — I concur with the majority and only write to

emphasize that jury selection is a critical part of trial and ought not to be treated as

merely a prelude to the main event. While the court correctly does not find

manifest constitutional error in this case under these facts, prudence dictates that

trial courts should make every effort to ensure that litigants have a meaningful

opportunity to select an unbiased jury. Our rules of procedure provide specific

direction on the number and manner of exercising peremptory challenges, which

should not be readily disregarded.

I respectfully concur.
In re Pers. Restraint ofMeredith, No. 94582-9
Yu, J.(concurring)