Personal Restraint Petition Of Gregory Allen Schirato

Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Division Two

DIVISION II January 5, 2021

In the Matter of the Personal Restraint of No. 53913-6-II

GREGORY ALLEN SCHIRATO,
UNPUBLISHED OPINION
Petitioner.

GLASGOW, J—After a work holiday party, AL went to a bar with some colleagues,

including Gregory Schirato. AL went home alone and was intoxicated when she fell asleep.

Sometime during the night, Schirato broke a window, entered her home, and sexually assaulted

AL. A jury found Schirato guilty of second degree rape and first degree burglary. In this personal

restraint petition (PRP), Schirato challenges his convictions or, alternatively, seeks a reference

hearing.

Because AL did not see her assailant, the police conducted an investigation before charging

Schirato. The State obtained a warrant to seize the clothes Schirato wore that night. At trial, the

State presented evidence that glass fragments found on Schirato’s clothing could have been from

glass in the door of AL’s home that was broken during the burglary. In addition, the State presented

evidence that male and female DNA consistent with a mixed profile of Schirato and AL was on a

bra that AL wore to bed that night.

Schirato argues that his constitutional rights were violated because the affidavit in support

of the State’s search warrant application contained material false statements and omissions made

intentionally or with reckless disregard for the truth. Schirato contends that he received ineffective
No. 53913-6-II

assistance of counsel on eight grounds, including that his counsel failed to move to suppress the

glass evidence under Franks v. Delaware.1

None of Schirato’s arguments merits reversal or a reference hearing. Schirato’s

constitutional rights were not violated when the State executed the search warrant because the

warrant was supported by probable cause. Likewise, Schirato’s trial counsel was not ineffective

for failing to file a Franks suppression motion because he would not have prevailed. None of

Schirato’s other ineffective assistance of counsel arguments entitles him to relief.

We deny Schirato’s PRP.

FACTS

A. Background

In 2014, AL was on the executive team of a state agency in Olympia. In December, AL

went to a work dinner party at a restaurant in Olympia. AL had a cocktail and wine at the party.

At the party, AL and two other coworkers, including Schirato, took photographs together

because they were wearing new shoes. The photographs showed Schirato’s brand new brown

leather dress shoes, as well as his suit and shirt.

After a few hours at the restaurant, AL, Schirato, and two other coworkers, Jennifer Quan

and Kelly Cunningham, went to a bar in downtown Olympia where they drank, played

shuffleboard, and talked. AL testified that Schirato bought her at least two drinks at the bar.

AL testified that she left the bar between 11:30 p.m. and 11:40 p.m. because she felt too

drunk. AL recalled swerving on the drive home and struggling to park in her narrow garage. At

trial, AL acknowledged that it was a bad decision to drive home.

1
438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
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AL lived alone in a house in Olympia. Her house had a front door and a basement door

accessible from the backyard. AL did not use the basement door and always kept it closed and

locked.

AL fed her cats, washed her hands, and changed out of the dress and bra she wore to the

party and into pajamas and a different bra that she wore only when sleeping and had never worn

out of the house. AL used the bathroom, rinsed her hands, and filled a glass of water. AL testified

that she turned off her light and “fell asleep pretty hard immediately.” Verbatim Report of

Proceedings (VRP) (Jan. 8, 2018) at 136.

B. Overnight and Early Morning

At some point in the night, AL found herself “in somewhat of a dream state, but slightly

conscious,” and felt someone’s hands on her back, unclasping her bra, touching her breasts, pulling

down her pajama pants and underwear, touching her buttocks, and inserting what she believed to

be a finger into her vagina. VRP (Jan. 8, 2018) at 136-39. At first, AL thought her boyfriend, Steve

Anderson, who had a key to her house, had entered and gotten into bed with her. She did not

participate in the touching or see the person touching her. AL testified that she was in a

semiconscious state the entire time, she was not fully awake, and her body felt limp.

In the early hours of the morning, AL found her pajama pants partway down and her light

on. She did not give it much thought because she was “pretty out of it still.” VRP (Jan. 8, 2018) at

140. AL kicked her pajama pants all the way off because she felt hot and turned off the light, which

she could reach from her bed.

When AL awoke to her alarm at 6:30 a.m., she expected to see Anderson in her bed, but

he was not there. AL then discovered that her bra was unclasped and her underwear was pulled

down. AL immediately called Anderson asking if he had been in her house during the night.

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Anderson told her that he had not been at her house. He asked AL if she had brought someone

home, and she said she had not.

AL went to check the house. The front door was locked as usual. AL went downstairs to

her basement where she discovered that the glass window in the basement door was broken, there

was glass on the floor and stairs, and the basement door was slightly ajar. AL called 911.

C. Initial Investigation

Detectives examined AL’s house and yard for evidence. They discovered shoe prints in the

side and backyard of the house near the basement door, which they photographed and casted. The

detectives also collected broken glass from the basement door.

AL gave a recorded statement consistent with the facts above to the lead investigator,

Detective Corey Johnson. Another officer brought AL to the hospital for a sexual assault

examination. Johnson interviewed Anderson. Another detective spoke to Wesley Kirkpatrick,

AL’s next door neighbor. Johnson interviewed Quan, Cunningham, and Schirato. After his

conversation with Schirato and the others, Johnson identified Schirato as a person of interest.

A few days after the incident, AL went to Nordstrom, where she found and photographed

the brand and style of shoes that Schirato wore on the night of the party. AL sent the photographs

of the shoes to Johnson.

D. Search Warrant

Johnson applied for a warrant to search Schirato’s house, seize shoes and clothes

resembling those he had worn to the party, and collect Schirato’s DNA. The affidavit in support

of the warrant application contained the following additional information.

The shoe prints found in AL’s backyard “appeared to have been caused by a male dress

shoe.” PRP at 47. The prints seemed to have been made by a treadless shoe with “a smooth wide

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sole and short wide heel.” Id. Johnson compared photos of the shoe prints outside AL’s house to

the photo of the Nordstrom shoes. The curvature of the heel in the prints was consistent with the

curved heel in the photograph of the Nordstrom shoes.

Johnson interviewed Anderson, AL’s boyfriend at the time of the incident. Anderson said

AL had mentioned a coworker named Greg who often hit on and “made passes at her.” PRP at 49.

The affidavit also discussed other men with whom AL had had a sexual relationship who had been

to her house within two years of the incident, and Johnson contacted all of them. The affidavit also

stated that AL’s next door neighbor, Wesley Kirkpatrick, told Johnson he saw a small, silver, SUV-

style vehicle approach AL’s house suspiciously a few weeks before the incident.

The affidavit stated that AL and Schirato had a social relationship and AL had at least one

consensual sexual encounter involving Schirato. AL reported that Schirato “pushes her to drink to

excess.” PRP at 51. But on two previous occasions AL fell asleep after drinking at parties at

Schirato’s house and awoke to find Schirato fondling her while she slept. The first time, AL was

spending the night with her then-boyfriend in a guest bedroom. Schirato inserted his finger into

AL’s vagina while she was sleeping. The second time, AL had fallen asleep on a couch and awoke

to Schirato “fondling her body” underneath her sundress. PRP at 53. The affidavit also stated that

Schirato had been investigated for a 2003 incident in which he was accused of fondling a 16-year-

old female babysitter in her sleep.2 No charges were filed as a result of this incident.

In September 2014, Schirato went to AL’s home to look at vacation photos. Schirato

commented on photos of AL in a bikini, stating that she was the perfect woman and he was jealous

of her boyfriend. In November 2014, Schirato asked to stay at AL’s house because he was too

2
While this information was included in the affidavit to support the search warrant, all of these
prior incidents were excluded at trial.
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drunk to drive home. AL told him no and offered to pay for a hotel room for him instead. Schirato

declined and drove himself home. Quan reported that while at the bar after the party in December

2014, Schirato pointed to the inner thigh area of AL’s crossed legs and told Quan to stick her hand

between AL’s legs. Quan refused and told Schirato to do it himself. Schirato later moved to the

chair next to AL, but Quan said she did not see Schirato touch AL.

The affidavit also described Johnson’s interview with Schirato, who said that he had been

at the dinner party and bar, was wearing a suit and new dress shoes, bought AL drinks, and played

shuffleboard at the bar. Schirato stated that he, Quan, and AL all left the bar at the same time,

between 12:30 a.m. and 1:30 a.m. Schirato said he arrived home between 1:30 and 2:00 a.m.

Schirato noted that he was close friends with AL and acknowledged a sexual relationship with AL,

commenting, “‘we play together regularly and I’ll leave it at that.’” PRP at 52. He also stated he

had last been to AL’s house before Thanksgiving 2014.

Johnson wrote in the affidavit that Schirato told him he drove a “small silver Mazda SUV.”

PRP at 53. Johnson also wrote, “I checked Schirato’s name through the Department of Licensing

. . . and found he was the registered owner of a 2008 Mazda M3S.” PRP at 53. Schirato owned a

2008 Mazda M3S, which is a sedan. The affidavit further stated, “Schirato drives a similar vehicle

to the suspicious vehicle seen in [AL’s] driveway two weeks prior to the assault.” PRP at 54.

The trial court granted the search warrant. Schirato voluntarily provided the suit and shirt

he wore to the party, noting they had just been dry cleaned. Schirato said he had lost the dress

shoes on a recent trip.

Schirato was later charged with second degree rape and first degree burglary.

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E. Glass Evidence

Johnson sent Schirato’s seized clothing to the Washington State Patrol Crime Laboratory.

State Patrol forensic scientist Susan Wilson found glass fragments on the clothing. Wilson was not

yet qualified as a forensic glass scientist and in early 2015, the State Patrol’s laboratory was not

equipped for glass analysis. Wilson sent the glass fragments from Schirato’s clothing and the glass

from AL’s broken window to the FBI laboratory. The FBI laboratory concluded the fragments

from Schirato’s suit were too small to test using its refractive index analysis instrument, one of

several forensic techniques used to identify the physical and chemical characteristics of glass to

assess whether glass fragments could share a common origin.

By summer 2016, the State Patrol laboratory was equipped to perform forensic glass

analysis and had sensitive instruments capable of handling very small glass fragments. Forensic

scientist Daniel Van Wyk had become certified in glass analysis. Van Wyk conducted refractive

index analysis on the glass fragments found on Schirato’s clothing and on the glass from AL’s

window. He concluded that the glass fragments in Schirato’s clothing could have come from the

broken window glass from AL’s basement door.

Schirato’s trial counsel hired his own glass expert, Skip Palenik, to review the FBI’s and

Van Wyk’s reports. Palenik wrote in a pretrial report, “the analytical results . . . and the incomplete

and contradictory nature of [Van Wyk’s] report do not meet the . . . rigor required of a scientific

glass comparison . . . to support legal proceedings.” Clerk’s Papers (CP) at 237. Palenik did not

independently test the glass.

Schirato researched glass evidence and found a 1971 scientific article discussing glass

fragments found on men’s clothing brought to a British dry cleaner. Richard Woodrow, petitioner’s

trial counsel, e-mailed the article to Palenik but did not introduce or discuss the article at trial.

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F. Trial

At trial, the State presented evidence that male and female DNA consistent with a mixed

profile of Schirato and AL was on the clasp of the bra AL wore to bed on the night of the December

2014 party. The DNA analysis excluded Anderson, AL’s boyfriend, as a source. The State also

introduced photographs of the shoe prints in AL’s yard and the Nordstrom shoes.

Van Wyk testified that he used x-ray fluorescence, comparison of element intensity ratios,

and refractivity analysis to test the glass fragments. He concluded that the glass fragments from

Schirato’s clothes could have been from the glass in AL’s door. Van Wyk explained that his report

was peer reviewed by Oregon State Patrol scientists, who found no problems with the substance

of his analysis. In response to cross-examination questions about whether the fragments from

Schirato’s clothing were too small for reliable refractivity analysis, Van Wyk explained that his

assessment of whether the fragments were too small was not “based on any set number,” but

reflected a holistic assessment of the fragment. VRP (Jan. 16, 2018) at 701.

Palenik testified for the defense. He agreed that Van Wyk used appropriate scientific

methods, but found Van Wyk’s work imprecise. Palenik criticized Van Wyk for comparing

fragments of different sizes and including data with relative standard deviations that were too high.

Palenik questioned the validity of Van Wyk’s conclusion that the glass found in Schirato’s clothes

and in AL’s basement could have had a common origin. On cross-examination, the State noted

that Van Wyk eliminated the data with the highest relative standard deviations. Palenik said this

assuaged his criticism somewhat, but stated on redirect, “regardless of how it’s put, this data does

not have the precision that it should.” VRP (Jan. 22, 2018) at 1059-60.

Van Wyk and Palenik agreed that scientists typically refrain from saying that glass

fragments “match” unless they physically fit together. VRP (Jan. 16, 2018) at 688; VRP (Jan. 22,

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2018) at 1065. Rather, if there are no indications that the glass originated from different sources

and the samples have certain common characteristics, scientists conclude that the glass could have

come from the same source.

In her closing argument, the prosecutor said that scientists typically do not use the word

“match” for glass evidence:

We have a comparison of the glass. He wouldn’t use the word “match.” They don’t
like to use the word “match.” The glass scientist -- neither of the glass scientists
wanted to use the word “match.” They said “possible” is the best we’re going to
get. The glass found on the defendant’s suit, it’s possible it’s the same glass found
at [AL’s] house.

VRP (Jan. 23, 2018) at 1221. But later in her rebuttal argument, the prosecutor argued that the

glass from Schirato’s clothing “matched” the glass from AL’s door. VRP (Jan. 23, 2018) at 1262.

She also noted that the jury was to judge the credibility of witnesses and argued that AL “told you

what she remembered and did so to the best of her ability. She swore to tell the truth and she did

so.” Id.

G. Conviction, Appeal, and PRP

The jury found Schirato guilty of second degree rape and first degree burglary. He filed a

direct appeal but voluntarily dismissed it. He then filed this PRP.

Schirato supports this PRP with his own declaration and two expert declarations, including

one from Wayne Fricke, a defense attorney not involved in Schirato’s case. Fricke opines that

Woodrow provided ineffective assistance of counsel.

In its response to Schirato’s PRP, the State submits an affidavit from the Oregon State

Police forensic scientist who peer reviewed Van Wyk’s report and concludes that Van Wyk used

scientifically accepted procedures and methodologies. The State also submits an extensive

declaration from Schirato’s trial counsel, Woodrow, who explains that his representation of

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Schirato was not ineffective and describes the strategic reasons for his pretrial and trial decisions.

Woodrow reviews at length the evidence supporting the application for the search warrant,

explaining why he believed a motion challenging the warrant’s validity would have been denied.

He also describes why he did not seek a Frye3 hearing on Van Wyk’s glass comparison methods

and that his decisions regarding the FBI report and the defense expert were tactical.

ANALYSIS

I. EVIDENCE ON REVIEW

The State asks this court to disregard Fricke’s declaration because he “does not have

specialized knowledge that this [c]ourt lacks,” making “his opinion improper under ER 702 and

irrelevant.” Resp. at 44. We disagree.

Washington courts have considered declarations from outside attorneys in support of a

PRP. See In re Pers. Restraint of Burlingame, 3 Wn. App. 2d 600, 610 n.1, 416 P.3d 1269 (2018)

(considering a declaration in support of the PRP from an outside criminal defense attorney who

opined as an expert that Burlingame’s trial counsel was constitutionally ineffective and agreeing

with that attorney’s reasoning even though the declaration was “not necessary to [its] conclusion”);

see also In re Pers. Restraint of Cross, 180 Wn.2d 664, 693, 327 P.3d 660 (2014), abrogated on

other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). This court may thus

consider Fricke’s declaration, but we give it minimal weight to avoid the “distorting effects of

hindsight.” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

see also Cross, 180 Wn.2d at 694.

3
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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II. BURDEN FOR OBTAINING COLLATERAL RELIEF

A. PRP Standards

Relief via a collateral challenge to a conviction is an “extraordinary” remedy, and a

petitioner bringing a PRP “must meet a high standard before [we] will disturb an otherwise settled

judgment.” In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013). A personal

restraint petitioner must establish that their restraint was the product of either a constitutional error

that caused “actual and substantial prejudice” or a nonconstitutional fundamental defect that

“‘inherently result[ed] in a complete miscarriage of justice.’” In re Pers. Restraint of Swagerty,

186 Wn.2d 801, 807, 383 P.3d 454 (2016) (internal quotation marks omitted) (quoting In re Pers.

Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990)).

When considering whether a constitutional error alleged in a PRP was prejudicial, courts

look to the “practical effects that result from the error.” In re Pers. Restraint of Yates, 180 Wn.2d

33, 41, 321 P.3d 1195 (2014); see also State v. Buckman, 190 Wn.2d 51, 64, 409 P.3d 193 (2018).

The petitioner has the burden of proving prejudice by a preponderance of the evidence under the

totality of the circumstances. In re Pers. Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498

(2013). The petitioner must support claims of error with a statement of facts on which the claims

are based and must identify the evidence supporting the factual allegations. RAP 16.7(a)(2)(i); In

re Pers. Restraint of Monschke, 160 Wn. App. 479, 488, 251 P.3d 884 (2010). The petitioner

cannot rely solely on conclusory allegations. Monschke, 160 Wn. App. at 488. If the petitioner’s

allegations are based on matters outside the existing record, they must demonstrate competent,

admissible evidence to establish the facts that entitle them to relief. In re Pers. Restraint of Rice,

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118 Wn.2d 876, 886, 828 P.2d 1086 (1992). The State is held to this same standard in its response.

In re Pers. Restraint of Reise, 146 Wn. App. 772, 780, 192 P.3d 949 (2008); see also RAP 16.9.

Schirato alleges that two types of constitutional errors occurred—an unconstitutional

search and seizure and ineffective assistance of counsel. Schirato argues that his constitutional

rights were violated because the State’s affidavit supporting its search warrant application was

insufficient to establish probable cause. Schirato raises multiple ineffective assistance of counsel

arguments.

B. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee effective assistance of counsel. Strickland, 466 U.S. at 687;

State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). Ineffective assistance of counsel is a two-

pronged inquiry. Grier, 171 Wn.2d at 32. Schirato must show that his counsel’s performance was

deficient and that counsel’s deficient performance prejudiced him Id. at 32-33. A failure to prove

either prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

Appellate courts apply “exceptional deference . . . when evaluating counsel’s strategic

decisions,” and “[i]f trial counsel’s conduct can be characterized as legitimate trial strategy or

tactics, it cannot serve as a basis for a claim . . . [of] ineffective assistance of counsel.” State v.

McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). “To rebut the presumption of reasonableness,

a defendant must establish an absence of any legitimate trial tactic that would explain counsel’s

performance.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). A petitioner

must prove that “counsel’s performance fell below an objective standard of reasonableness in light

of all the circumstances.” Id. at 538. Where a strategic basis for counsel’s tactic has been identified,

and the defendant has failed to adequately rebut that assertion with evidence in the record, the

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Washington Supreme Court has held that the defendant failed to show their counsel performed

deficiently. State v. Linville, 191 Wn.2d 513, 524-25, 423 P.3d 842 (2018).

Even if an appellate court concludes that trial counsel’s performance was deficient, the

petitioner must also prove prejudice. A petitioner must show that, but for counsel’s deficient

performance, “there is a reasonable probability that the result of the proceeding would have been

different.” Lui, 188 Wn.2d at 538. We examine the “practical effect” of alleged ineffective

assistance. Yates, 180 Wn.2d at 41; see also Buckman, 190 Wn.2d at 64. “We apply the same

prejudice standard to ineffective assistance claims brought in a personal restraint petition as we do

on appeal.” Lui, 188 Wn.2d at 538. “[I]f a personal restraint petitioner makes a successful

ineffective assistance of counsel claim, he has necessarily met his burden to show actual and

substantial prejudice” for PRP purposes. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47,

280 P.3d 1102 (2012).

III. AFFIDAVIT IN SUPPORT OF SEARCH WARRANT

Schirato argues that the search and seizure violated his constitutional rights to be free from

warrantless searches and seizures because the warrant affidavit contained material false statements

and material omissions made intentionally or recklessly. Schirato argues that his trial counsel was

constitutionally ineffective because he failed to move to suppress the evidence seized from his

home for lack of probable cause or under Franks, 438 U.S. at 155-56. We reject both arguments.

A. Search Warrants and Franks

Evidence seized pursuant to a search warrant must be suppressed if probable cause does

not support the warrant. See State v. Betancourth, 190 Wn.2d 357, 364, 413 P.3d 566 (2018).

“Probable cause exists where . . . facts and circumstances . . . establish a reasonable inference that

the defendant is involved in criminal activity and . . . evidence of the crime can be found at the

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place to be searched.” State v. Scherf, 192 Wn.2d 350, 363, 429 P.3d 776 (2018). “Probable cause

requires more than suspicion or conjecture, but . . . not . . . certainty.” State v. Chenoweth, 160

Wn.2d 454, 476, 158 P.3d 595 (2007). We generally defer to the magistrate’s determination of

probable cause and resolve doubts in favor of the warrant’s validity. Scherf, 192 Wn.2d at 363.

Courts presume the validity of an affidavit in support of a search warrant. Franks, 438 U.S.

at 171. But if a “defendant makes a substantial preliminary showing that” a search warrant affidavit

contains “a false statement [made] knowingly and intentionally, or with reckless disregard for the

truth . . . and if the allegedly false statement is necessary to the finding of probable cause,” then

“the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at 155-56.

At a Franks hearing, the defendant must then establish the affidavit supporting the warrant

contained a false statement or material omission by a preponderance of the evidence. Id. at 156;

Chenoweth, 160 Wn.2d at 469. The Franks standard applies to both material misrepresentations

and material omissions. Chenoweth, 160 Wn.2d at 469.

To establish a false statement or material omission by a preponderance of the evidence,

“the challenger’s attack must be more than conclusory and must be supported by more than a mere

desire to cross-examine.” Franks, 438 U.S. at 171. The defendant must support their allegations

with an offer of proof and “a statement of supporting reasons.” Id. If the defendant meets their

burden, “the material misrepresentation will be stricken from the affidavit and a determination

made whether, as modified, the affidavit supports a finding of probable cause.” Chenoweth, 160

Wn.2d at 469 (citing Franks, 438 U.S. at 171-72). If the modified “affidavit fails to support

probable cause, the warrant will be held void and evidence obtained pursuant to it excluded.” Id.

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B. Application of Franks and Chenoweth to This Warrant

Schirato argues the trial court improperly issued the search warrant without probable cause

and his counsel was ineffective for failing to move to suppress the fruits of the search. We disagree.

According to the affidavit, Schirato told Johnson that he “drove a small silver Mazda

SUV.” Br. of Pet’r at 20; PRP at 53. Schirato did own a silver Mazda, but it was a sedan, not an

SUV, and Schirato asserts he never said he owned an SUV. The affidavit also stated, “Schirato

drives a similar vehicle to the suspicious vehicle seen in AL’s driveway two weeks prior to the

assault,” and described the vehicle as a small silver SUV. Br. of Pet’r at 20; PRP at 54.

Schirato also argues that the affidavit contained intentional or reckless material omissions

because it did not include evidence about other neighborhood men acting suspiciously and AL’s

past boyfriends. The affidavit also did not include all of Kirkpatrick’s comments about seeing a

possible Toyota Prius, Subaru Outback, and/or Nova style vehicle or vehicles approaching AL’s

house in the weeks before the incident. Instead, the affidavit stated that Kirkpatrick had seen a

suspicious small silver SUV three times in the two weeks before the assault.

Woodrow explains that because the cumulative effect of all the evidence tying Schirato to

the scene would “be sufficient for a magistrate to issue a search warrant even if the vehicle

identification was redacted from the affidavit,” he had no reason to bring a suppression motion or

a Franks motion that would have been unsuccessful. Resp., App. II at 2. We agree that even if the

statements and omissions Schirato has identified were material and made intentionally or

recklessly, an issue we need not decide, an affidavit modified to correct or omit these alleged errors

would still have established probable cause for the search warrant. Even without any discussion of

vehicles and with the addition of Kirkpatrick’s comments about AL’s former boyfriends,

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neighborhood men, and other possible suspicious vehicles, the affidavit contained sufficient

evidence connecting Schirato to the charged offenses.

The affidavit noted that shoe prints that were consistent with the shoes Schirato wore to

the December party were found in AL’s yard, circling her house. The affidavit also stated that

Schirato had a past sexual relationship with AL, he bought her drinks and encouraged her to drink

in excess that night, and she had awoken to him fondling her in her sleep twice before, including

inserting his finger into her vagina. In the weeks before the holiday party, Schirato made comments

to AL about her body, asked to see photos of her in a bikini, said he was jealous of her boyfriend,

and asked to sleep at her house after he had been drinking. Schirato had been to AL’s house before.

The affidavit also stated that Schirato had previously been investigated for fondling a 16-year-old

girl while she was sleeping. This information supported reasonable inferences that Schirato was

involved in criminal activity sufficient to grant the warrant. Scherf, 192 Wn.2d at 363.

We conclude that the trial court would not have granted a motion to suppress for lack of

probable cause or based on Franks. Admitting evidence from the search did not violate Schirato’s

right to be free from unlawful search and seizure. Woodrow explains he had no reason to bring a

suppression motion or a Franks motion that would have been unsuccessful. We agree and conclude

Schirato has failed to show that defense counsel was deficient for failing to bring a motion to

suppress evidence seized during the search of his home. See Linville, 191 Wn.2d at 524-25.

We hold that Schirato has failed to establish a violation of his constitutional rights related

to the search warrant.

IV. FRYE MOTION

Schirato argues that his trial counsel was ineffective by not moving to exclude testimony

about Van Wyk’s glass testing under Frye. Because the FBI lab concluded the glass fragments

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from Schirato’s clothing were too small for its refractive index analysis, Schirato argues that Van

Wyk failed to employ generally accepted scientific techniques by conducting refractive index

analysis on small fragments. We reject Schirato’s argument and hold that Woodrow was not

deficient because Frye only applies to new scientific techniques and refractive index analysis was

not new.

“Washington uses the [Frye test] to limit expert testimony to principles generally accepted

in the scientific community.” State v. Murry, 13 Wn. App. 2d 542, 547, 465 P.3d 330, review

denied, 196 Wn.2d 1018 (2020). “While Frye governs the admissibility of novel scientific

testimony, the application of accepted techniques to reach novel conclusions does not raise Frye

concerns.” Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 919, 296 P.3d 860 (2013). Under

Frye, we look to whether “accepted and reliable mechanisms” exist for implementing a scientific

theory. Id. at 920. Where there exist “protocols for assuring reliability, an expert’s errors in

applying proper procedures go to the weight, not the admissibility, of the evidence, unless the error

renders the evidence unreliable.” Id.

Here, refractive index analysis is a well-established technique for forensic glass analysis.

Woodrow states in his declaration that he strategically decided not to move to exclude the results

of the glass testing under Frye because “[t]esting by glass experts has been occurring for decades.

None of the science of examination or interpretation is new or novel. There is no disagreement

among scientist[s] in the field of the science, methods or interpretation of glass examinations.”

Resp., App. II at 10. At trial, Schirato’s own expert explained that refractive index analysis was a

standard scientific technique. And the Oregon State Police forensic scientist who peer reviewed

Van Wyk’s report agreed that Van Wyk used “methods generally accepted within the scientific

community as reliable for analytical comparison of glass particles.” Resp., App. I, at 2. Conflicting

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expert testimony about the accuracy of Van Wyk’s analysis raised issues about the weight the jury

would give the evidence but did not implicate Frye.

We hold that Woodrow did not provide ineffective assistance by failing to seek a Frye

hearing.

V. OTHER INEFFECTIVE ASSISTANCE ARGUMENTS

A. Failure to Call FBI Scientist

Schirato asserts that his counsel was ineffective for not interviewing or presenting the

testimony of the FBI scientist who concluded that the glass fragments on Schirato’s clothing were

too small for the FBI lab to conduct a refractive index analysis. We disagree.

Ineffective assistance of counsel claims may be based on counsel’s failure to adequately

investigate a potential defense. See, e.g., In re Pers. Restraint of Davis, 152 Wn.2d 647, 739, 101

P.3d 1 (2004). “[D]efense counsel has an obligation to ‘provide factual support for [the] defense

where such corroboration is available.’” Id. (second alteration in original) (internal quotation

marks omitted) (quoting Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995)). The petitioner must

show a “reasonable likelihood that the investigation would have produced useful information not

already known to defendant’s trial counsel.” Id. With regard to counsel’s duty to present expert

testimony, the Supreme Court has recognized that the decision not to put on a defense expert may

be a reasonable trial strategy. In re Pers. Restraint of Khan, 184 Wn.2d 679, 693, 363 P.3d 577

(2015).

Schirato’s counsel’s failure to call the FBI scientist to testify or to interview the scientist

did not fall below an objective standard of reasonableness. Lui, 188 Wn.2d at 538. Woodrow

identifies strategic reasons not to call the FBI scientist as a witness. Woodrow decided to present

the FBI scientist’s conclusions through his own expert Palenik, who reviewed the FBI report,

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rather than calling an additional expert. Khan, 184 Wn.2d at 693. The absence of testimony from

the FBI scientist allowed Woodrow to question whether the glass samples that had been provided

to the FBI were still in their original condition when Van Wyk tested them. And calling the FBI

scientist to testify would have subjected them to cross-examination by the State, which could have

rendered their testimony more harmful than helpful. Seeking to avoid this risk was a reasonable

strategic decision. See id. Here, there are identified, legitimate strategic reasons for not calling the

FBI scientist to testify. See Linville, 191 Wn.2d at 524-25.

We conclude that Schirato’s counsel did not perform deficiently when he did not interview

or call the FBI scientist to testify.

B. Palenik’s Testimony

Schirato argues Woodrow was ineffective by allowing Palenik to agree with the State that

the glass on Schirato’s suit could have come from AL’s door. Schirato also argues that Woodrow

was ineffective for failing to have a defense expert retest the glass. We reject these arguments.

Palenik’s testimony did not support the State as Schirato contends. Rather, Palenik

steadfastly maintained, consistent with his pretrial report, that Van Wyk’s methods were sloppy.

And Woodrow used Palenik’s report to effectively cross-examine Van Wyk and argue in closing

that the jury should reject Van Wyk’s conclusions about the glass evidence. On cross-examination,

Palenik acknowledged that based on Van Wyk’s analysis of the glass, the glass could have come

from the same source. And when the prosecutor informed Palenik on cross-examination that Van

Wyk had discarded the data with the highest relative standard deviations, Palenik testified that this

information reduced his concerns somewhat, but he continued to testify that Van Wyk’s

imprecision undermined likelihood that the glass fragments could have been from the same source,

In closing, Schirato’s trial counsel argued that because Van Wyk’s methodologies were imprecise,

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the only valid conclusion the jury could draw was that glass of an unknown source was found on

Schirato’s clothing.

Palenik’s testimony supported the reasonable defense strategy of casting doubt on the

reliability of the scientific data that the State used. See, e.g., VRP (Jan. 23, 2018) at 1242-46. To

the extent Schirato argues that Woodrow should have asked Palenik or another defense expert to

retest the glass, Woodrow explains that not doing so was a strategic decision because testing might

have confirmed the State’s conclusions. See Linville, 191 Wn.2d at 524-25.

We hold that Woodrow did not provide ineffective assistance by calling Palenik as a

witness and by opting not to have him retest the glass.

C. 1971 Scientific Journal Article

Schirato argues that his trial counsel was ineffective for not introducing at trial a 1971

scientific journal article about glass fragments found on men’s clothing that had been brought to a

British dry cleaner. According to Schirato, this article would have helped the jury conclude that

there were innocent explanations for why glass was found on Schirato’s wool suit after dry

cleaning. We disagree.

We agree with Woodrow that it was a strategic choice not to introduce this article because

doing so would have prompted the State to introduce more recent studies that discredited the 1971

article. See id. A decision to avoid opening the door to damaging rebuttal evidence is a reasonable

tactical decision. In re Pers. Restraint of Brown, 143 Wn.2d 431, 451, 21 P.3d 687 (2001). The

article was over 45 years old. Had Woodrow used the 1971 article at trial, the State could have

introduced “damaging rebuttal evidence,” in the form of more recent studies that cast doubt on the

1971 article. Yates, 177 Wn.2d at 46.

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We hold that Woodrow did not provide ineffective assistance by declining to introduce the

1971 article at trial.

D. Failure to Object to Hearsay

Schirato argues that his trial counsel was ineffective by failing to object to a hearsay

statement during AL’s direct examination. Specifically, Schirato argues that Woodrow should

have objected when AL testified that her boyfriend told her that he had not been at her house during

the night of December 17-18, 2014. We disagree.

Decisions about whether and when to object are strategic decisions for counsel. State v.

Martinez, 2 Wn. App. 2d 55, 78, 408 P.3d 721, review denied, 190 Wn.2d 1028 (2018). Had

Woodrow objected, he might have drawn more attention to the fact that Anderson said he was

never at AL’s home that night. Moreover, AL also said that Anderson raised the possibility of her

having brought someone home with her, a possibility that would be helpful to the defense. The

fact that AL volunteered a hearsay statement helpful to the defense in the same breath emphasizes

that strategic reasons existed for Woodrow not to object. See id.

We hold that Woodrow did not provide ineffective assistance by failing to object to hearsay

statements.

E. Prosecutor’s Comment in Closing Argument that the Glass Fragments “Matched”

Schirato claims his counsel was ineffective by not objecting to the “false and misleading”

comment in the State’s closing rebuttal argument that the glass from Schirato’s clothing “matched”

the glass in AL’s window. Br. of Pet’r at 45-46.

The decision to object is a matter of trial tactics, and “prosecuting attorneys have wide

latitude to argue facts and reasonable inferences from the evidence,” so long as they do not “make

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prejudicial statements unsupported by the record.” Lui, 188 Wn.2d at 557. This court considers the

entire argument in context. See State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011).

In context, the prosecutor’s comment that the glass “matched” was not misleading. VRP

(Jan. 23, 2018) at 1221. Before inferring that the glass from Schirato’s clothes “matched” the glass

from AL’s window, the prosecutor reminded the jury that although Van Wyk explained why

scientists do not use the word “match” for glass evidence unless the pieces physically fit together,

Van Wyk concluded that the glass could have been from the same source. See VRP (Jan. 23, 2018)

at 1221; VRP (Jan. 16, 2018) at 688. Moreover, Woodrow’s declaration states that he strategically

opted not to object because he believed the defense had a strong argument that the glass on

Schirato’s suit could have originated anywhere. And an objection could have led to additional

discussion from the prosecutor about Van Wyk’s precise results. The decision not to object was

strategic.

We hold that Woodrow did not provide ineffective assistance by failing to object to the

State’s closing argument inference that the glass evidence matched.

F. Prosecutor’s Comment that AL Gave Truthful Testimony

Schirato contends that his trial counsel was ineffective by not objecting to a comment in

the State’s closing argument he claims was improper vouching. We disagree.

Although an attorney may not personally vouch for a witness’s credibility, the

“[p]rosecutor[] may . . . argue an inference from the evidence, and prejudicial error will not be

found unless it is ‘clear and unmistakable’ that counsel is expressing a personal opinion.” State v.

Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (quoting State v. Sargent, 40 Wash. App. 340, 344,

698 P.2d 598 (1985)).

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The prosecutor stated, “[AL] got up there and told you what happened, told you what she

remembered and did so to the best of her ability. She swore to tell the truth and she did so.” VRP

(Jan. 23, 2018) at 1262. Even if Woodrow’s failure to object were deficient performance, an issue

we need not decide, there is no evidence that an objection to this comment, if sustained, would

have reasonably changed the outcome. Lui, 188 Wn.2d at 538. AL could not identify her attacker,

and the State’s case did not hinge on AL’s testimony. The State presented evidence that DNA

consistent with a mixed profile of Schirato’s and AL’s DNA was on AL’s bra clasp even though

she never wore that bra outside her home, shoe prints found outside AL’s house were consistent

with Schirato’s shoes, and glass fragments on Schirato’s clothing were consistent with glass in

AL’s door.

We hold that Schirato’s counsel was not constitutionally ineffective by failing to object to

the State’s suggestion that AL was a credible witness.

G. Cumulative Error

Schirato argues that this court should grant his PRP or, at a minimum, remand for a

reference hearing on the basis of cumulative error. Because Schirato has not established any error

entitling him to relief, his cumulative error claim fails.

CONCLUSION

We deny Schirato’s PRP.

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A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Glasgow, J.
We concur:

Worswick, P.J.

Melnick, J.P.T.

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