IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 84062-2-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JEREMY SHAW,
Appellant.
DÍAZ, J. — Appellant Jeremy Shaw was in jail for 41 months awaiting trial.
Following the trial, a jury convicted him of murder in the first degree and arson in
the second degree. Shaw argues that the delay violated his right to a speedy trial
under the Sixth Amendment of the United States constitution and article I, section
22 of the Washington constitution. Shaw also separately challenges the
sufficiency of the evidence and raises other rule-based and statutory assignments
of error in his statement of additional grounds. We affirm the trial court’s judgment
and sentence.
I. FACTS
A. The Murder of Steven Morphis
Steven Morphis lived alone on a remote property in unincorporated King
County. One of two contractors, Matthew Goodrow and Dan Norwood, who had
been working on Morphis’s property, found him dead in a shed on his property in
September 2018. Morphis had suffered multiple blunt force strikes to his head.
No. 84062-2-I/2
His hands were bound tightly with zip ties and his throat had been slashed open.
Morphis’s credit cards, cell phone, and 2007 Nissan Sentra were missing. The
contractors contacted the police.
A few days later, police discovered Morphis’s burned-out car in University
Place in Pierce County, which was closer to Shaw’s Tacoma residence than
Morphis’s. Surveillance cameras showed that the person who set the vehicle on
fire had singed themselves because they were standing too close to the flame.
Pursuant to law enforcement’s further investigation, cellular records showed
Morphis’s missing cell phone had been located near the burned car. Police later
found that missing cell phone in Shaw’s house, along with Star Trek memorabilia
and various collectibles that Morphis owned or kept at his residence. The police
also recovered the remnants of Morphis’s driver’s license, social security card, and
bank card from a shredder located on Shaw’s property.
Moreover, police recovered Shaw’s fingerprints from multiple objects inside
Morphis’s house, including a heavy flashlight. Further investigation determined
Shaw’s DNA was on one of the zip ties found attached to Morphis’s body.
During Shaw’s arrest, the police observed that “the arm hair on his right arm
was noticeably singed.” He was also wearing a Boeing jacket which Morphis
owned, as he had recently retired from Boeing.
Police seized a notebook from Shaw’s residence, which contained
handwritten research on obtaining title to property through adverse possession. A
review of Morphis’s bank activity revealed that Morphis’s bank card was used to
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make a purchase on “www.deeds.com.1” Police also seized a warranty deed found
at Shaw’s house, bearing a forged notary stamp, which Morphis ostensibly signed
and which purported to transfer Morphis’s estate to Shaw in exchange for $10.
Finally, Shaw’s roofing company made two additional charges to Morphis’s credit
card, both of which occurred after Morphis was already dead.
B. Overview of the Pretrial Proceedings
1. Pre-COVID-19 Pandemic Continuances
The State ultimately charged Shaw with murder in the first degree (count 1)
and arson in the second degree (count 2). The State had initially charged his wife
as a co-defendant on the non-homicide offenses, and with felony rendering
criminal assistance in the first degree. Following his arraignment in October 2018,
the trial court initially set the trial for December 2018. Over the next several
months, the defense counsel received voluminous discovery materials and moved
several times to continue the trial to review that discovery. That was nearly all the
discovery the State would provide to the defense until the eve of trial.2
By August 2019, the defense represented to the court that it had finished
reviewing the discovery and was “probably” in a position to start coordinating
1 WWW.Deeds.com is an online company that assists individuals with real estate
needs, including forms, title search, e-recording, deed retrieval and information.
2 The State provided three types of evidence after this time period. First, the State
took more than a year to obtain Morphis’s autopsy report, which it provided to the
defense upon receipt in January 2020. (As will be discussed below, because the
State never fully explained the delay in providing the report, the trial court found
that the belated transmittal of the report, among other things, constituted
“mismanagement” but was “not prejudicial.”) Second, in February 2022, the State
advised the court that it had not provided the call detail records from Shaw’s cell
phone, but that that data did not appear to have had any exculpatory value. Third,
one week before the trial, the State provided some medical scans to the defense.
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interviews, which Shaw’s attorneys asserted was necessary to provide effective
assistance of counsel. Defense counsel understood that a large number of the
witnesses would request the State’s presence, which it forewarned would be
difficult to coordinate. On February 28, 2020, in the last hearing before the COVID-
193 pandemic, the defense notified the court that because of the volume of
discovery, they had not started conducting interviews yet.
2. Post-COVID-19 Pandemic Continuances
Over the next 16 months, in subsequent hearings from July 31, 2020, to
December 13, 2021, defense counsel repeatedly moved to continue the trial,
advising the court that they were making progress on the witness interviews, but
had confronted many challenges in scheduling up to 74 witness interviews,
including that (a) some interviews would be conducted by zoom (because of the
Covid-19 pandemic) but some had to be conducted in-person because of the
nature of the discovery; (b) detectives in two counties had indeed requested the
State’s attorneys to be present at the interviews; and (c) the parties had confronted
scheduling limitations on all sides because of the backlog that followed, even as
the Covid-19 pandemic subsided, all of which resulted in systemic delays.
3. Shaw’s Objections
As early as May 2019, Shaw moved the court to substitute his counsel
because of an alleged breakdown in communication and irreconcilable conflict.
The court denied his motion, stating the attorneys were competent and
3 COVID-19 is the World Health Organization’s official name for “coronavirus
disease 2019,” a severe, highly contagious respiratory illness that quickly spread
throughout the world after being discovered in December 2019.
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No. 84062-2-I/5
professional, the defense was progressing, and there was a significant amount of
work to be done.
From the beginning of the case, in response to each motion to continue,
whether from his own counsel or as agreed to by the parties, Shaw repeatedly
asserted his right to a speedy trial and vociferously objected to continuances.
C. Trial and Sentencing
The trial began on March 9, 2022. Shaw moved to dismiss the charges or
exclude evidence under CrR 4.7, CrR 8.3(b), and CrR 3.3. Shaw claimed that the
State had “mismanaged this case by . . . delaying provision of discovery to the
defense,” “failing to provide a witness list . . . until January 13, 2020,” and
“facilitat[ing] no witness interviews . . . until the Spring of 2020.” The court denied
the motion, finding the State did not mismanage the interviews and noting the
“profound disturbance” the COVID-19 pandemic caused.
The jury convicted Shaw of murder in the first degree and arson in the
second degree. At sentencing on May 13, 2022, Shaw did not stipulate to any
prior convictions or the State’s proposed offender scores. The court reviewed the
certified copies of each conviction and found Shaw had an offender score of 12,
which is outside the highest range (of 9). The court sentenced him to 548 months,
which was at the top of, but within, the standard sentencing range.
Shaw timely appeals.
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II. ANALYSIS
A. Right to a Speedy Trial
1. Law
The Sixth Amendment, as well as article I, section 22, guarantees the right
to a speedy trial. State v. Shemesh, 187 Wn. App. 136, 144, 347 P.3d 1096 (2015).
These provisions provide coextensive protection in this context, obviating the need
for a separate analysis of each. State v. Iniguez, 167 Wn.2d 273, 289-90, 217
P.3d 768 (2009).
This court’s review of a claim of a violation of the right to a speedy trial is de
novo. State v. Ollivier, 178 Wn.2d 813, 826, 312 P.3d 1 (2013). Reviewing courts
undertake a two-part inquiry. Iniguez, 167 Wn.2d at 283-84. First, the court
determines whether “the length of the delay crossed a line from ordinary to
presumptively prejudicial.” Id. If such a line was crossed, courts then apply the
non-exclusive, four-factor balancing test to determine if a constitutional violation
occurred. Id. The balancing test contains four factors: (1) the length of delay, (2)
the reason for the delay, (3) the defendant’s assertion of their right, and
(4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182,
33 L. Ed. 2d 101 (1972).
The Barker analysis is “fact-specific” and necessarily depends on the
particular circumstances of the case. Ollivier, 178 Wn.2d at 827. The analysis
requires the reviewing court to weigh the conduct of both the prosecution and the
defense in bringing about the delay. Id.
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None of the four factors identified above is either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy trial. Barker, 407
U.S. at 533. The court’s balancing process must be carried out with full recognition
that the accused’s interest in a speedy trial is specifically affirmed in the
constitution. Id.
2. Discussion
As to the first step of the two-part inquiry, while dependent upon the nature
of the charges, lower courts have “in general found presumptively prejudicial delay
at least at the point at which it approaches one year.” Ollivier, 178 Wn.2d at 828.
In its briefing and at oral argument, the State assumes and concedes, respectively,
that the 41-month delay was presumptively prejudicial. Wash. Ct. of Appeals oral
argument, State v. Shaw, No. 84062-2-I (July 21, 2023), at 10 min., 34 sec.,
through 11 min., 2 sec., video recording by TVW, Washington State’s Public Affairs
Network,https://tvw.org/video/division-1-court-of-appeals-2023071136/
?eventID=2023071136. We accept the State’s concession, without independently
finding, that the 41-month delay is presumptively prejudicial. See, e.g., Ollivier,
178 Wn.2d at 828 (agreeing without conducting the analysis). “This does not mean
that the right to a speedy trial has been violated but rather that the [] delay is
sufficient to trigger the Barker analysis.” Id. And, as in Ollivier, Shaw “has limited
his arguments to these factors” and we recognize that “although we generally
examine each in order, they are interrelated.” Id.
a. The length of delay
As to the first factor, the “length of delay,” this court had held that “[t]he
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No. 84062-2-I/8
constitutional right to a speedy trial is not measured by a fixed time period.” State
v. Ross, 8 Wn. App. 2d 928, 943, 441 P.3d 1254 (2019). And as an initial matter,
our Supreme Court has noted that “in numerous cases[,] courts have not regarded
delay as exceptionally long where the delay was as long as or longer than here,
particularly when the delay was attributable to the defense.” Ollivier, 178 Wn.2d
at 828-29 (citing, inter alia, United States v. Lane, 561 F.2d 1075 (2d Cir. 1977)
(58 months, much attributable to repeated requests by the defense for
continuances); United States v. Porchay, 651 F.3d 930, 940 (8th Cir. 2011)
(although the court assumed a 39–month delay was presumptively prejudicial,
there was no sixth amendment violation in part because “much of the delay . . .
was attributable to [defendant’s] own actions”)); see also United States v.
Muhtorov, 20 F.4th 558, 659-60 (10th Cir. 2021) (no violation from a six-and-a-half
year delay); United States v. Casas, 425 F.3d 23, 34 (1st Cir. 2005) (Forty-one
month delay); United States v. Scully, 951 F.3d 656, 669 (5th Cir. 2020) (five -year
delay)).
More substantively, without conflating this factor with the second factor, we
consider whether the length of the delay is “highly disproportionate to the
complexity of the issues and counsel’s need for preparation.” Ollivier, 178 Wn.2d
at 830.
Shaw contends that, despite the seriousness of the charges, such a delay
was not necessary or inevitable because he did not change counsel, the defense
did not request expert testimony or engage in complicated pretrial litigation, and
the defense only filed a handful of motions the week before the trial.
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No. 84062-2-I/9
The State asserts that this was a complex case involving serious charges,
voluminous amounts of discovery, involving serious charges, multiple scenes,
dozens of witnesses, several varieties of forensic evidence, and coordination
between two defense teams. The State further notes that the COVID-19 pandemic
exacerbated the situation as the majority of the pre-trial delay in this case –
approximately 24 months – coincided with the COVID-19 pandemic.
We agree with the State. As in Ollivier, the trial court expressly
acknowledged that this case was “complex.” 178 Wn.2d at 829.
• This case involves murder in the first degree.
• The discovery was repeatedly described as voluminous. That
discovery included a large variety of different types of forensic
evidence: fingerprints, DNA, cell phone data, reconstruction, and
surveillance footage, medical reports, bank records, and more.
• The witness list, provided as early as January 13, 2020, identified 74
persons the State may call. In a joint motion for one continuance,
counsel for Shaw and counsel for Shaw’s wife stated their defense
investigation was a “substantial investigation.”
• Finally, this voluminous discovery and these numerous witnesses
were spread out over multiple crime scenes in two different counties
requiring scores of search warrants.
As the State points out, “In our superior courts typically [we] don’t get much more
complicated than this.” Wash. Ct. of Appeals oral argument, supra at 11 min., 37
sec., through 11 min., 44 sec.
Even before the COVID-19 pandemic, the defense counsel had warned the
court on August 23, 2019, that, considering the defense’s caseload and the
magnitude of investigation and interviews, a realistic but pessimistic date to try this
case would be another 12 months from then.
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No. 84062-2-I/10
Moreover, as the aforementioned joint motion showed, Shaw’s counsel was
coordinating with the co-defendant, who was Shaw’s wife (certainly adding a
unique complexity to that coordination), who herself substituted counsel in
mid-2020. And contrary to Shaw’s representation, while no experts were ultimately
retained, some time was spent considering whether to retain an expert.
For many of these reasons, the defense conceded at oral argument that the
case was complex. Wash. Ct. of Appeals oral argument, supra at 3 min., 50 sec.,
through 3 min., 59 sec. We look skeptically at Shaw’s attempt to now minimize the
complexity of this case involving a murder in the first degree.
Most importantly, the defense counsel spent more than two years finishing
their own witness interviews, even after a “very good” prosecutor was assigned to
the case. We will discuss below why it took so long to complete those interviews,
but for now, it is clear that, during this period, it was the defense counsel who
sought “nearly all of the continuances” to complete those interviews and “so that
defense counsel could be prepared to defend” Shaw in this matter. Ollivier, 178
Wn.2d at 831. “This is an extremely important aspect of the balancing and leads
us to conclude that the length of delay was reasonably necessary for defense
preparation and weighs against the defendant.” Id.
b. The reason for the delay
As to the second factor, the “reason for the delay,” our Supreme Court has
held that “‘pretrial delay is often both inevitable and wholly justifiable.’” Id. at 831
(quoting Doggett v. United States, 505 U.S. 647, 656, 112 S. Ct. 2686, 120 L. Ed.
2d 520 (1992)). “When the delay is due to trial preparation needs, as in this case,
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No. 84062-2-I/11
the first and second factors are closely related,” as we have seen. Id. Importantly,
“[t]he reason for the delay is ‘the focal inquiry.’” Id. (quoting United States v.
Santiago–Becerril, 130 F.3d 11, 22 (1st Cir. 1997)).
Specifically, a “careful assessment of the reasons for the delay is necessary
to sort the legitimate or neutral reasons for delay from improper reasons. A court
looks to each party’s responsibility for the delay, and different weights are assigned
to delay, primarily related to blameworthiness and the impact of the delay on
defendant’s right to a fair trial.” Id.
Furthermore, when “the defendant requests or agrees to the delay,” the
defendant “‘is deemed to have waived [their] speedy trial rights as long as the
waiver is knowingly and voluntary.’” Id. (quoting Iniguez, 167 Wn.2d at 284). In
other words, “[d]elay caused by defense counsel is chargeable to the defendant.”
Id. at 832.4
Shaw claims the State failed to comply with its CrR 4.7(a) discovery
obligations and mismanaged the case by (1) providing the defense with the
autopsy report late and (2) then delivering its witness list late and only after being
ordered to do so. These two complaints are the only two delays Shaw attributes
to the State.
4 On the other hand, when the government deliberately delays the trial to frustrate
the defense, this conduct will be weighted heavily against the State. Ollivier, 178
Wn.2d at 832. Delay because of institutional causes, such as overcrowded courts,
is still weighted against the government but to a lesser extent. Id. If the
government has a valid reason for the delay, then the valid reason may justify a
reasonable delay. Id. The delay caused by governmental negligence is more
neutral and weighs less heavily than acts of bad faith. United States v. Oliva, 909
F.3d 1292, 1301 (11th Cir. 2018).
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No. 84062-2-I/12
Indeed, it took the State more than one year from arraignment in October
2018 to provide the defense with the autopsy report in January 2020. Similarly,
though the court ordered the State to deliver the witness list by December 16,
2019, the State provided that list to defense counsel almost one month later on
January 13, 2020.
But no evidence exists that those delays caused any further delays.
Tellingly, at a hearing in February 2020, the defense notified the court that because
of the volume of discovery – rather than the autopsy report or witness list – they
had not started interviews yet. The defense did mention that they were not sure
how productive some of the interviews could be until they got the autopsy report.
It is unclear why, though, the autopsy report was required to begin some interviews
because the physical cause of Morphis’s death was clear and additional details
about how he died did not prevent at least some interviews from starting. Finally,
had the defense been ready to begin interviews, most of the witnesses were readily
identifiable from the discovery materials provided shortly after arraignment. Shaw
has not demonstrated how the delayed disclosure of the report and list hobbled his
defense.
Recognizing these facts, Shaw argued at oral argument that the State is
blameworthy for its general “foot-dragging,” which required defense counsel to
“babysit the prosecutor.” Wash. Ct. of Appeals oral argument, supra at 4 min., 38
sec., through 5 min., 3 sec. Even if this were true, this accusation is far from a
“deliberate delay[]” of the trial to “frustrate the defense.” Ollivier, 178 Wn.2d at
832. On the contrary, there is no allegation of deliberate delay or that any State
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No. 84062-2-I/13
agent acted in bad faith. The State provided both the autopsy report and the
witness list to the defendant two years before the trial. The State assigned a “very
good” prosecutor to the case in February 2020, again over two years before
Shaw’s trial. None of these facts compel us to weigh this factor heavily against the
State.
Those thin complaints against the State distract from the primary causes of
the delay: (a) the defense counsel’s need to conduct interviews and (b) the COVID-
19 pandemic.
As to the former, the interviews took an extraordinary amount of time to
complete, not just because of the sheer number (as mentioned below), but
because of the complexity of the interviews, including (i) the need to review
discovery with witnesses, sometimes via electronic means and (ii) the need and
difficulty in coordinating those interviews with several different stakeholders, who
each had their own limitations, including pre-planned vacations.
As to the latter, as the court acknowledged, there is no dispute that the
Covid-19 pandemic delayed the trial in multiple ways. First, as it has been well
documented, there was a rise in serious crime, which resulted (as defense counsel
noted) in an “onslaught” of new cases. Second, after a backlog was created, the
courts hurried to start trials again because as the court noted “[w]e weren’t doing
trials during that pandemic.” In real-time, the defense counsel acknowledged
systemic delays the COVID-19 pandemic created, stating that trying to find a
“chunk of time” in that environment was difficult, meaning they had multiple
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No. 84062-2-I/14
complex cases go to trial during the same time period (as the worst of the Covid-
19 pandemic passed), resulting in significant scheduling difficulties.
Thus, either the reasons for delay are chargeable to the defense or they are
chargeable to no one as (hopefully) one-time acts of nature. As in Ollivier, “[n]early
all of the continuances in this case were sought to accommodate defense
counsel’s need to prepare for trial. Moreover, while it is true that the defendant
objected to most of these continuances, it does not follow that granting them
violated [the defendant’s] right to a speedy trial.” 178 Wn.2d at 834.
Shaw finally also contends the delay resulting from a systemic “breakdown
in the public defender system” may be charged to the State. We are not
unsympathetic to the burden the defense was laboring under even before the
COVID-19 pandemic. Indeed, even pre-pandemic, months after the defense
purportedly finished reviewing discovery, they still had not been able to conduct a
single interview allegedly because of their caseload.5 However, though the
defense counsel complained several times that they were overburdened, there is
no record before us of how the County’s Department of Public Defense (DPD) was
functioning during this period.
What constitutes a “systemic breakdown” may not be not well-defined in
Washington law, so we again may look to federal cases. A federal district court
recently found a systemic breakdown when a public defense agency neglected to
5 Specifically, in a hearing in August 2019, the defense attorney notified the court
their investigator “has reviewed all of the discovery.” In a hearing in November
2019, the defense attorney stated they had not interviewed anybody because of
insufficient time to handle trial schedules, new cases, and witness interviews on
multiple cases all at the same time.
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No. 84062-2-I/15
assign the defendant a lawyer for over a year. Russell v. Denmark, 528 F. Supp.
3d 482, 498 (S.D. Miss. 2021). Other courts have suggested a systematic
breakdown might occur when it has unreasonable resource constraints. People v.
DeCasas, 54 Cal. App. 5th 785, 809, 268 Cal. Rptr 3d 663 (2020).
Here, the fact that Shaw was assigned two defense counsel, whom the
court described as “competent [and] professional,” suggests the DPD was able to
deploy adequate resources in support of Shaw’s defense. And after that motion
to substitute counsel, Shaw did not complain about his attorneys’ performance and
he did not raise a Sixth Amendment claim at trial, nor here. The record reflects
that his counsel were very busy but does not support a finding of systemic
breakdown. People v. Williams, 58 Cal. 4th 197, 249, 315 P.3d 1 (2013).
In summary, this factor weighs heavily against Shaw.
c. The defendant’s assertion of his right
As to the third factor, the “defendant’s assertion of his right,” it is true that
Shaw repeatedly asserted his right to a speedy trial and vociferously objected to
continuances but it was almost always in response to his own attorneys’ motions.
To put a finer point on it, there were 16 motions to continue, 15 of which were
solicited by the defense (3 of which the State joined). The State’s one requested
continuance delayed Shaw’s trial by a single week. Thus, since nearly all of the
continuances sought were, again, for the defense counsel to prepare for trial, this
factor weighs against Shaw or at best is neutral. Ollivier, 178 Wn.2d at 839-40.6
6 Also, had the trial court denied his counsel’s requests for continuances that were
needed to prepare for trial, then the defendant might then have had a strong claim
that the right to effective assistance of counsel had been denied. Id. at 839.
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This conclusion is particularly appropriate here because Shaw objected to
even the earliest continuances when counsel could not have been remotely ready.
As in Ollivier, “under the circumstances, these objections do not weigh in favor of
the conclusion that constitutional speedy trial violations occurred.” Ollivier, 178
Wn.2d at 838. A “contrary conclusion would encourage objections even if defense
counsel is pursuing a legitimate defense and the continuances are unquestionably
requested for this purpose.” Id. at 839. Thus, on balance, we weigh this factor
against Shaw or as a neutral factor.
d. The prejudice to the defendant
As to the fourth factor, the “prejudice to the defendant,” deprivation of the
right to a speedy trial “does not per se prejudice the accused’s ability to defend
himself.” Barker, 407 U.S. at 521. Defendants ordinarily must establish actual
prejudice before courts will find a constitutional violation. Ollivier, 178 Wn.2d at
840 (emphasis added).
Prejudice to the defendant as a result of delay may consist of (1) oppressive
pretrial incarceration; (2) anxiety and concern of the accused; and (3) the
possibility that the accused’s defense will be impaired by dimming memories and
loss of exculpatory evidence. Id. “[A] defendant must offer these or other
particularized showings of prejudice when the delay is not because of bad faith on
the government’s part and the delay is not sufficiently long for a presumption of
prejudice to arise.” Id. The former has not been alleged and the latter is “to be
distinguished from the threshold presumption of prejudice that triggers the Barker
analysis.” Id. at 840 n.10.
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Shaw first asserts he spent three and a half years incarcerated and awaiting
trial with all of the accompanying disadvantages identified in Barker. At oral
argument, Shaw further argued that the conditions of incarceration during the
Covid-19 pandemic were “incredibly oppressive under Barker.” Wash. Ct. of
Appeals oral argument, supra at 8 min., 45 sec., through 9 min., 21 sec.
Our Supreme Court has recognized that the conditions of confinement
including the risk of a COVID-19 outbreak were undeniably high in jails. Colvin v.
Inslee, 195 Wn. 2d 879, 900, 467 P.3d 953 (2020). As certainly unpleasant as it
was, incarceration is considered “oppressive,” however, only if the custodial
environment was harsher than that experienced by a typical inmate. Shemesh,
187 Wn. App. at 147. No evidence exists that Shaw was held under conditions
any different than any other inmate during the Covid-19 pandemic.
Shaw next claims his anxiety is apparent from his frequent correspondence
with the trial court and his frequent assertions of his fervent desire to have his day
in court. But undue anxiety is generally immaterial unless the defendant can
demonstrate a “special harm which distinguishes [their] case from that of any other
arrestee awaiting trial.” United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir.
1994); Ollivier, 178 Wn.2d at 845. There is no evidence in the record that Shaw
suffered constitutionally significant anxiety. “Vague allegations of anxiety are
insufficient to state a cognizable claim.” Hakeem v. Beyer, 990 F.2d 750, 762 (3rd
Cir. 1993).
Shaw finally asserts his defense was impaired by dimming memories and
loss of exculpatory evidence. Specifically, he points to the testimony of the
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No. 84062-2-I/18
contractors, Daniel Norwood and Matthew Goodrow, who occasionally testified
that they were unable to remember certain details of the day they discovered
Morphis’s body.
On its face, this is a serious allegation because a defendant’s inability to
adequately prepare their case “‘skews the fairness of the entire system.’” Ross, 8
Wn. App. 2d at 955 (quoting Barker, 407 U.S. at 532). But the fatal flaw in Shaw’s
argument is that he has not identified any particular piece of evidence he believes
was materially exculpatory which he could not present at trial. United States v.
Grimmond, 137 F.3d 823, 830 (4th Cir. 1998). Faded memories are ultimately
irrelevant if they were “in no way significant to the outcome.” Barker, 407 U.S. at
534.
Here, it is unclear what Shaw’s defense would have gained if either of the
contractors had been able to go into more gruesome detail about the body on the
day they discovered it. While it is true that Goodrow did state that his memory was
generally “[n]ot good,” the type of facts he was unable to remember was far from
exculpatory. For example, he was unable to recall which day of the week he found
Morphis’s body, or who had originally introduced him to Norwood. As for Norwood,
he testified that he “[didn’t] remember little details,” such as the specific brand of
pain medication that he had been prescribed for an injury he suffered
contemporaneous to Morphis’s murder, and the material he used to construct the
roof on Morphis’s shed. The loss of these memories does not rise to actual
prejudice.
Thus, this factor weighs against Shaw too.
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Weighing the four non-exclusive factors together, we conclude that Shaw’s
constitutional right to a speedy trial was not violated.
B. Statement of Additional Grounds
In addition to his attorney’s briefing on appeal, Shaw submitted a statement
of additional grounds (SAG).
1. Background on SAGs
Statements of additional grounds are permitted by RAP 10.10. They serve
to ensure that an appellant can raise issues in their criminal appeal that may have
been overlooked by their attorney. Recognizing the practical limitations many
incarcerated individuals face when preparing their own legal documents,
RAP 10.10(c) does not require that the statement be supported by reference to the
record or citation to authorities. But it does require that the appellant adequately
“inform the court of the nature and occurrence of alleged errors.” RAP 10.10(c). It
also relieves the court of any independent obligation to search the record in
support of the appellant's claims, making it prudent for the appellant to support
their argument through reference to facts. RAP 10.10(c). To enable that factual
support, it provides the means for appellants to obtain copies of the record from
counsel. RAP 10.10(e).
2. Discussion
Many of the facts necessary to address Shaw’s first three additional
grounds (CrR 3.3, CrR 4.7, CrR 8.3(b)) have generally been addressed above.
Shaw also claims that the evidence was insufficient to convict him because
forensic evidence suggested other parties were involved or responsible for the
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crime. Shaw finally claims his offender scores were miscalculated because of the
recent ruling of State v. Blake, 197 Wn. 2d 170, 481 P.3d 521 (2021). We will
address each in turn.
a. CrR 3.3
Shaw maintains the 41-month pretrial delay violated his time to trial right
under CrR 3.3(b)(1)(i). “The purpose underlying CrR 3.3 is to protect a defendant’s
constitutional right to a speedy trial.” State v. Kenyon, 167 Wn.2d 130, 136, 216
P.3d 1024 (2009).
Application of a court rule to particular facts is reviewed de novo. State v.
Kindsvogel, 149 Wn.2d 477, 480, 69 P.3d 870 (2003). Court rules are interpreted
similarly to statutes. State v. Thomas, 146 Wn. App. 568, 572, 191 P.3d 913
(2008). The court initially looks at the plain language of the rule and construes the
rule according to the drafter’s intent. Gourley v. Gourley, 158 Wn.2d 460, 466, 145
P.3d 1185 (2006). If the rule’s meaning is unambiguous, the court looks no further.
Thomas, 146 Wn. App. at 572 (citing Spokane County v. Specialty Auto & Truck
Painting, Inc., 153 Wn.2d 238, 249, 103 P.3d 792 (2004)).
In terms of the sanction for any violation of these rules, CrR 3.3(h) states
that “[n]o case shall be dismissed for time-to-trial reasons except as expressly
required by this rule, a statute, or the state or federal constitution.” CrR 3.3(h); see
also State v. Rookhuyzen, 148 Wn. App. 394, 398, 200 P.3d 258 (2009) (“The rule
prohibits any dismissals for time-for-trial reasons unless expressly required by a
rule, statute, or violation of a defendant’s constitutional speedy trial rights.”).
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No. 84062-2-I/21
Turning to the rule in question, CrR 3.3(b)(1) states that a “defendant who
is detained in jail shall be brought to trial within the longer of (i) 60 days after the
commencement date specified in this rule, or (ii) the time specified under
subsection (b)(5).” CrR 3.3(b)(5) states that if “any period of time is excluded
pursuant to section (e), the allowable time for trial shall not expire earlier than 30
days after the end of that excluded period.” CrR 3.3(e) states that the “following
periods shall be excluded in computing the time for trial: . . . [d]elay granted by the
court pursuant to section (f).” CrR 3.3(f)(2) states that “[c]ontinuances or other
delays may be granted . . . when such continuance is required in the administration
of justice and the defendant will not be prejudiced in the presentation of his or her
defense.” It further goes on to state that “[t]he bringing of such motion by or on
behalf of any party waives that party’s objection to the requested delay.” CrR
3.3(f)(2).
As reviewed above, the defense at least in part brought 15 of the 16
continuances that accounted for the delay, and the one that the State brought on
its own motion alone was for one day, hardly affecting speedy trial. Thus CrR 3.3
was not violated.
b. CrR 4.7
Shaw contends late disclosure of discovery violated the rules of discovery
under CrR 4.7. In addition to the late delivery of forensic reports and witness list
that have been resolved above, Shaw claims that there may have been documents
in a six-terabyte hard drive that could have proven a pre-existing business
relationship between Morphis and Shaw, which would have explained the financial
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No. 84062-2-I/22
documents seized at his house, but which were not provided to the defense until
three weeks before the trial.
This is speculative. The defense counsel spent the weekend before trial
reviewing the information on the drive and did not address the content of the six-
terabyte drive in the defense’s subsequent motion to dismiss.
Shaw also claims the late disclosure of “Major Accident Response and
Reconstruction” (MARR) scans and cell phone tracking data prejudiced him. But
the State had made it clear that it did not intend to introduce any evidence that it
belatedly disclosed. The trial court also ruled that the State would need to provide
the defense with the opportunity to interview or depose two court days before any
illustrative exhibit related to the mapping of the victim’s cell phone data was offered
to the court. Therefore, no evidence suggests any actual prejudice caused by the
late delivery.
c. CrR 8.3(b)
Shaw asserts that the State’s mismanagement of the case violated CrR
8.3(b), which permits a court, after notice and hearing, to “dismiss any criminal
prosecution due to arbitrary action or governmental misconduct when there has
been prejudice to the rights of the accused which materially affect the accused's
right to a fair trial.” Specifically, he challenges the trial court’s decision that
mismanagement of the State’s discovery obligations did occur, but it did not
warrant dismissal.
We review a trial court’s ruling on a CrRLJ 8.3(b) motion for an abuse of
discretion. State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017).
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No. 84062-2-I/23
A court abuses its discretion when an “‘order is manifestly unreasonable or based
on untenable grounds.’” Id. (quoting In re Pers. Restraint of Rhome, 172 Wn.2d
654, 668, 260 P.3d 874 (2011)).
Under the rule, the party seeking relief bears the burden of showing
misconduct and actual prejudice. Salgado-Mendoza, 189 Wn. 2d at 427.
Prejudice is not just expense, inconvenience, or additional delay, but must interfere
with the defendant’s ability to present their case. City of Kent v. Sandhu, 159 Wn.
App. 836, 841, 247 P.3d 454 (2011).
“Two things must be shown before a court can require dismissal of charges
under CrR 8.3(b). First, a defendant must show arbitrary action or governmental
misconduct.” State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997)
(citing State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993).
Governmental misconduct, however, “‘need not be of an evil or dishonest nature;
simple mismanagement is sufficient.’” Michielli, 132 Wn.2d at 239-40 (quoting
Blackwell, 120 Wn.2d at 845).
Second, the defendant must show prejudice affecting their right to a fair trial.
CrR 8.3(b). “Such prejudice includes the right to a speedy trial and the ‘right to be
represented by counsel who has had sufficient opportunity to adequately prepare
a material part of [their] defense.’” Michielli, 132 Wn.2d at 240 (quoting State v.
Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980)).
Shaw brought an CrR 8.3(b) motion, which was heard shortly before trial,
and in which he alleged a number of discovery violations, some of which have
been discussed above: the difficulty of scheduling interviews, late delivery of the
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No. 84062-2-I/24
autopsy report, the loss of some DNA samples, and the late disclosure of cell
phone data mapping.
The court did not find the difficulties in scheduling the interviews attributable
to the State as mismanagement, noting the difficulties arose from the COVID-19
pandemic and the defense’s caseload. The court stated that the late delivery of
the autopsy report and the loss of some DNA samples were “mismanagement of
a degree that should not be the standard of practice,”7 but neither were prejudicial
to the defense particularly because the defense did not request comparison tests.
As to the loss of some DNA samples, the court ordered that the defense may use
the DNA data from other sources and the prosecution may not do the same.
Finally, as to the cell phone data mapping, the court did not find prejudice because
the defense had the raw data. Additionally, the court ordered that the State would
need to provide the defense with the opportunity to interview or depose the
relevant witness at least two court days before any illustrative exhibit related to the
mapping of the victim’s cell phone data was offered to the court. In short, the trial
court sought to minimize or entirely mitigate any prejudice arising from any
suboptimal discovery practice.
Based on these accommodations, we hold that the court did not abuse its
discretion because the court’s order was not manifestly unreasonable or based on
untenable grounds. Salgado-Mendoza, 189 Wn.2d at 427.
Thus, Shaw did not establish prejudice under CrR 8.3(b).
7 At oral argument, the State agreed that the late delivery of autopsy report was
suboptimal. Wash. Ct. of Appeals oral argument, supra at 12 min., 57 sec., through
13 min., 8 sec.
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No. 84062-2-I/25
d. Sufficiency of the Evidence
Shaw claims that there was insufficient evidence to convict him of either
crime, in part because the forensic evidence was inconclusive.
“Evidence is sufficient to support a conviction if, after viewing the evidence
in the light most favorable to the State, it allows any rational trier of fact to find all
of the elements of the crime charged beyond a reasonable doubt.” State v.
DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). A challenge to the sufficiency
of the evidence admits the truth of the State’s evidence and all reasonable
inferences that can reasonably be drawn from it. Id. In the light most favorable to
the State’s evidence, a rational jury could find this evidence sufficient to support
both convictions. Id.
An abundance of evidence exists that Shaw committed the crimes. Police
recovered Shaw’s fingerprints from multiple objects inside Morphis’s house.
Shaw’s DNA was also identified on one of the zip ties found attached to Morphis’s
body. Cellular records showed Morphis’s missing cell phone had been located
near Morphis’s missing car and later was found in Shaw’s house, along with Star
Trek memorabilia and various collectibles that Morphis owned and kept at his
residence. The remnants of Morphis’s driver’s license, social security card, and
bank card were recovered from a shredder located on Shaw’s property. At the
time Shaw was arrested, he was wearing a Boeing jacket Morphis owned, as he
had recently retired from Boeing. In short, in the light most favorable to the State,
a rational jury could find this evidence more than sufficient to support the
conviction. DeVries, 149 Wn.2d at 849.
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No. 84062-2-I/26
e. Offender Scores
Shaw claims that the State miscalculated his offender score by including a
2006 conviction for unlawful possession of a firearm in the second degree from
Pierce County. Shaw states that this firearms charge was a “secondary” charge
“resulting from a VUSCA [(the Violation of the Uniform Controlled Substances Act,
chapter 69.50 RCW)] with the same cause number and was part of a plea
agreement,” making the two charges “indivisible.” In turn, Shaw claims that, if the
firearm charge were vacated under Blake, 197 Wn. 2d at 195, then the rest of his
prior convictions could be washed out (except one in 2011), which would materially
lower his offender score and standard range.
Based on Shaw’s order of judgment and sentence, it appears the crime he
seeks to vacate is “unlawful possess firearm 2,” to which the public court record
shows he pleaded guilty on August 2, 2006, along with unlawful possession of a
controlled substance. State v. Shaw, No. 06-1-00795-8 (Pierce County Super. Ct.,
Wash.).8
We hold that the trial court did not err in including that conviction when
calculating his offender score.
First, Shaw provides no authority for the propositions either that the VUCSA
conviction was “primary” and his firearms conviction “secondary” or that the
8 We may consider this document under our rules of appellate procedure and our
evidentiary rules. RAP 10.1(h); see also ER 201(b). As to the latter, this is so
because “[t]he court ‘may take judicial notice of public documents if their
authenticity cannot be reasonably disputed.’” Wash. State Human Rights Comm’n
v. Hous. Auth. of City of Seattle, 21 Wn. App. 2d 978, 983, 509 P.3d 319 (2022)
(quoting Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 725-726, 189 P.3d 168
(2008)).
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No. 84062-2-I/27
convictions were “indivisible.” “‘Where no authorities are cited in support of a
proposition, the court is not required to search out authorities, but may assume
that counsel, after diligent search, has found none.’” City of Seattle v. Levesque,
12 Wn. App. 2d 687, 697, 460 P.3d 205 (2020) (quoting DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
Second, while the VUCSA conviction may be voidable under Blake, doing
so will not change Shaw’s sentencing range for this crime. This is so because the
trial court did not include the VUCSA conviction in Shaw’s offender score in the
first place. Also, even if the court had included the VUCSA conviction and it was
thus appropriate to strike that conviction, his score was 12 on both counts, well
over the highest range (of nine). Any revision of his offender score under Blake
will have no effect on his standard range here.
III. CONCLUSION
We affirm the trial court’s judgment and sentence.
WE CONCUR:
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