IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint No. 81659-4-I
Petition of:
DIVISION ONE
STEVEN MAURICE MARSHALL,
UNPUBLISHED OPINION
Petitioner.
CHUNG, J. — Steven Marshall was convicted of murder in the first degree
with a firearm enhancement and unlawful possession of a firearm in the second
degree, which this court affirmed on direct appeal. He subsequently filed this
personal restraint petition (PRP) claiming ineffective assistance of counsel based
on representation before and during trial. He also argues that ineffective
assistance should be presumed because of his attorney’s subsequent
resignation in lieu of discipline from the state bar association. Marshall fails to
establish either that counsel was deficient or that he was prejudiced by counsel’s
representation. Therefore, we deny his petition.
FACTS
A jury found Marshall guilty of one count of murder in the first degree with
a firearm enhancement and one count of unlawful possession of a firearm in the
second degree for the murder of Ryan Prince. These convictions were affirmed
No. 81659-4-I/2
by this court on direct appeal. State v. Marshall, No. 76119-6-I (Wash. Ct. App.
Mar. 25, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/761196.pdf.
The underlying facts and procedural history were set out in Marshall’s
direct appeal as follows:
Ryan Prince helped Michael Helsel-Perkins (Perkins) build
medical marijuana dispensaries and manage the dispensaries’
employees. Prince lived with Perkins and Perkins’s girlfriend,
Chelsea Dew, at a house in Renton.
....
Dew . . . found Prince on the floor in his bedroom with a
bloody face and blankets covering his body. Dew called 911. Prince
was pronounced dead at the scene. Police collected a pair of
broken Burberry-brand eyeglasses on the front porch, which Dew
testified did not belong to her, Perkins, or Prince. Both Marshall’s
brother and ex-wife testified that Marshall sometimes wore Burberry
glasses. The only latent print on the glasses matched Marshall’s
thumb. Someone had removed the alarm system’s DVR[1] from the
downstairs closet. Police found $27,000 in cash in Prince’s
backpack in his bedroom.
Police also found a 40-caliber bullet embedded in the
bathroom closet, a 40-caliber shell casing just outside the house, a
22-caliber casing in a groove between planks on the porch and on
the downstairs landing, a 380-caliber casing in the dining room, and
a 40-caliber casing in the dining room. A medical examiner
performed an autopsy on Prince and determined that he died from
multiple gunshot wounds. She found four gunshot wounds and
recovered three bullets from Prince’s body.
Police found Prince’s cell phone off the side of the road near
his house. On Prince’s phone they discovered a photograph of a
vehicle taken at 8:10 p.m. the night of his murder. The license plate
number belonged to a Chrysler PT Cruiser registered to Allison
Sierra, Marshall’s ex-wife. She testified that Marshall had been the
full-time driver of the PT cruiser since September 2013. She stated
that he had been driving it on February 14, 2014, when she last
saw him before the incident.
On February 22, the police stopped and arrested Marshall
while he was driving a Dodge Durango registered to a girlfriend,
1 Digital video recorder.
2
No. 81659-4-I/3
Shamarra Scott. Police seized “several” cellular phones from
Marshall’s person and another that was on the ground near the
driver’s door of the Dodge. They found a 40-caliber SIG Sauer
handgun in a backpack on the front passenger seat. They also
found an envelope, an identification card, and a prescription pill
bottle with Marshall’s name in this backpack. Marshall’s DNA
(deoxyribonucleic acid) was found on the magazine and
ammunition inside the gun. Testing showed that this gun fired the
40-caliber bullet and shell casings found at Prince’s house.
Police also searched the contents of Marshall’s cell phones
and the cell phone of Ryan Erker, Marshall’s co-defendant.
Marshall and Erker exchanged several text messages and calls
with one another using these phones. Their text messages
suggested that Erker was monitoring Perkins’s dispensaries and
attempting to locate his house. On February 6, 2014, Erker sent
Marshall a message stating, “Brother, I think I’ve got the address
we’ve been looking for! I’m having it checked tonight. . . . Keep your
fingers crossed. This is the big one.” On February 12, Erker texted
Marshall, “We know where the honey pot is, so we got time, bro.”
Marshall responded, “Yeah. We’ll put it off for another day. Let’s
shoot for tomorrow.”
Cell tower evidence showed primarily Erker’s phone and
sometimes Marshall’s phone connected to the tower closest to
Prince’s house periodically between February 7 and 17, 2014.
Neither phone had connected to the tower closest to Prince’s house
before February 7. And neither phone connected to that tower after
February 17. On February 17, between 8:00 p.m. and 8:40 p.m.,
Erker and Marshall placed multiple calls to each other. Each of their
phones connected to the cell tower closest to Prince’s house for
some of these calls. At 8:13 p.m., both Erker’s and Marshall’s
cellular numbers connected to the tower closest to Prince’s house.
Erker called Marshall several times between 8:37 p.m. and 8:41
p.m. All these calls connected to a tower west of the tower closest
to Prince’s house.
...
The jury found him guilty of first degree murder and returned a
special verdict finding that he was armed with a firearm during the
crime. At a bifurcated bench trial, the trial court found Marshall
guilty of second degree unlawful possession of a firearm.
Marshall, No. 76119-6-I, slip op. at 2-5. The court sentenced Marshall to
concurrent prison terms of 374 months for the murder and 16 months for the
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No. 81659-4-I/4
unlawful firearm possession, and an additional 60 months for the firearm
enhancement which was run consecutively, for a total of 434 months in prison.
In his direct appeal, Marshall argued the court had violated his right to
access the courts by refusing to hear pro se motions he had filed on his own
behalf. Id. at 6-14. He claimed the court then erred by admitting testimony about
his pro se motions in violation of ER 403. Id. at 14. He also alleged prosecutorial
misconduct when the prosecutor elicited a lay witness opinion about Marshall’s
guilt. Id. at 15-20. In a statement of additional grounds, Marshall asserted that
(1) the police conducted an illegal stop, seizure, and interrogation of his ex-wife,
Allison Sierra; (2) Sierra’s interrogation violated spousal privilege; (3) the State
illegally intercepted his mail to and from the jail without a warrant; (4) trial counsel
was deficient for not moving to suppress evidence from Sierra’s cell phone;
(5) trial counsel was deficient for not challenging a juror whose friend had died in
a home invasion; (6) trial counsel was deficient for not requesting lesser-included
offense instructions; and (7) a witness’s testimony regarding a statement by
Marshall’s co-defendant violated his Sixth Amendment right to confront
witnesses. Id. at 20-22.
On direct appeal, regarding his pro se motions, we held that Marshall had
no right to “hybrid” representation or to file motions on his own behalf while
represented by counsel, and also that he had not properly preserved his ER 403
claim. Id. at 12. We concluded that Marshall failed to object to the alleged
prosecutorial misconduct and any misconduct was not so flagrant and ill-
4
No. 81659-4-I/5
intentioned that it could not have been cured by a jury instruction. Id. at 19-20.
We also rejected Marshall’s additional grounds. Id. at 20-22.
Marshall’s convictions became final on August 23, 2019. He timely filed
this personal restraint petition on July 17, 2020.
DISCUSSION
This court will grant a personal restraint petition (PRP) if a petitioner is
subject to unlawful restraint. RAP 16.4(a). Relevant to Marshall’s PRP, restraint
is unlawful if it violates the Constitution of the United States or the Constitution or
laws of the State of Washington. RAP 16.4(c)(2). Relief by way of a collateral
challenge to a conviction is extraordinary, and a petitioner must meet a high
standard before this court will disturb an otherwise settled judgment. In re Pers.
Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011).
A collateral challenge may raise both constitutional and nonconstitutional
errors. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335
(2007). For a PRP based on a constitutional error, a petitioner must show that a
constitutional error occurred and the error resulted in actual and substantial
prejudice. In re Pers. Restraint of Williams, 198 Wn.2d 342, 353, 496 P.3d 289
(2021). A petitioner who alleges unlawful restraint based on nonconstitutional
error must demonstrate a fundamental defect resulting in a complete miscarriage
of justice. Elmore, 162 Wn.2d at 251.
5
No. 81659-4-I/6
I. Issues Previously Addressed on Direct Appeal
As a general rule, a collateral attack on a criminal conviction cannot simply
be a reiteration of issues resolved at trial or on direct appeal. In re Pers. Restraint
of Gentry, 137 Wn.2d 378, 388-89, 972 P.2d 1250 (1999). “The petitioner in a
personal restraint petition is prohibited from renewing an issue that was raised
and rejected on direct appeal unless the interests of justice require relitigation of
that issue.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1
(2004). Instead, a PRP petitioner “should raise new points of fact and law that
were not or could not have been raised in the principal action.” Gentry, 137
Wn.2d at 388-89. A “new” issue is not created merely by supporting a previous
ground for relief with different factual allegations or with different legal
arguments. Davis, 152 Wn.2d at 671. Similarly, a petitioner cannot recast an
issue previously resolved on direct appeal by claiming ineffective assistance of
counsel. In re Pers. Restraint of Benn, 134 Wn.2d 868, 906, 952 P.2d 116
(1998)). “Simply recasting an argument in that manner does not create a new
ground for relief or constitute good cause for reconsidering the previous rejected
claim.” Id.
Marshall’s petition renews or recasts several issues previously reviewed
and rejected by this court. On direct appeal, Marshall claimed “deficient
performance on the ground that his trial counsel did not ask the trial court to
suppress the evidence from [his ex-wife’s] phone” and, relatedly, “that the police
conducted an illegal pretextual stop, an illegal seizure, and an illegal custodial
interrogation of [his ex-wife].” Marshall, No. 76119-6-I, slip op. at 21, 23. We
6
No. 81659-4-I/7
reviewed Marshall’s claim and noted, “ ‘A defendant may challenge a search or
seizure only if he or she has a personal Fourth Amendment privacy interest in the
area searched or the property seized.’ ” Id. at 21 (quoting State v. Goucher, 124
Wn.2d 778, 787, 881 P.2d 210 (1994)). We then determined that “[b]ecause the
stop and interrogation of [Marshall’s ex-wife] and the search of her cell phone
implicate [her] privacy interest, not Marshall’s, he does not have standing to
challenge this conduct under the Fourth Amendment.” Id. at 21. Here, Marshall
again alleges trial counsel was deficient for both failing to move to exclude
evidence and failing to object to the same evidence because it was found based
on the search warrant obtained with Sierra’s assistance. We decline to revisit this
issue as it was previously addressed in his direct appeal.
Marshall also claims counsel was deficient by failing to object to the
introduction of his pro se motions as evidence. On direct appeal, Marshall
challenged “the trial court’s admission of [his] pro se legal motions as substantive
evidence of guilt.” Id. at 6. While the court rejected this claim because this
specific objection was not properly preserved, it also noted that Marshall’s factual
assertion—that the court admitted the motions themselves as evidence—was
itself erroneous. Id. at 13. While one of Marshall’s girlfriends testified that
Marshall sent her several proposed motions to type up and submit to the court,
the motions themselves were not in evidence. Id. at 9. We will not review an
issue that was addressed on direct review and is now recast as ineffective
assistance of counsel.
7
No. 81659-4-I/8
Finally, Marshall alleges ineffective assistance because trial counsel
“failed to object to the Crawford [2] violations when the court allowed improper
hearsay statements of Mr. Erker.” Additionally, Marshall contends that counsel
failed to file a motion that would have excluded “hearsay testimony of Erker.” But
Marshall does not identify the hearsay testimony at issue. The direct appeal did,
however, address a confrontation clause challenge to testimony of Paul Steve,
who had bought and sold cars for Erker. Id. at 5, 24. Steve testified that Erker
called to ask him to sell a PT Cruiser because it had been used in a crime and
said that “one of the guys owns the car.” 3 Id. at 18, 24. This court declined to
consider the claim because the record did not support that Steve provided the
quoted testimony. Id. at 25. To the extent Marshall challenges that statement
again, we do not review it, as it was raised on direct review. And because
Marshall fails to provide any evidence or legal argument in support of any
allegedly improper hearsay statements, as required by RAP 10.3(a)(6), we
decline to revisit the issue. 4
II. Additional Ineffective Assistance of Counsel Claims
Marshall does, however, also raise claims of ineffective assistance of
counsel on some issues not previously raised. Under the Sixth Amendment to
the United States Constitution and article I, section 22 of the Washington State
Constitution, a defendant in a criminal proceeding is guaranteed the right to
2 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (out-
of-court testimonial statements by witnesses are inadmissible under the confrontation clause
unless the witness is unavailable and the defendant had prior opportunity to cross-examine).
3 A PT Cruiser was photographed at Prince’s house at the time of his murder. Id. at 18.
4 RAP 10.3(a)(6) requires argument in support of the issues presented for review,
including citations to legal authority and references to the relevant facts.
8
No. 81659-4-I/9
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 32, 246
P.3d 1260 (2011). “If a personal restraint petitioner makes a successful
ineffective assistance of counsel claim, he has necessarily met his burden to
show actual and substantial prejudice” as required to demonstrate unlawful
restraint. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102
(2012).
For claims of ineffective assistance, the question is whether counsel’s
conduct “so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Strickland, 466
U.S. at 686. The court in Strickland set out a two-part test for ineffective
assistance of counsel claims:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Id. at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)
(adopting Strickland test in Washington). “The threshold for the deficient
performance prong is high, given the deference afforded to decisions of defense
counsel in the course of representation.” Grier, 171 Wn.2d at 33. A defendant
alleging ineffective assistance must overcome “a strong presumption that
9
No. 81659-4-I/10
counsel’s performance was reasonable.” State v. Kyllo, 166 Wn.2d 856, 862, 215
P.3d 177 (2009).
To succeed on a claim of ineffective assistance of counsel, the defendant
must demonstrate that defense counsel’s representation fell below an objective
standard of reasonableness and the deficient representation resulted in
prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
We strongly presume that counsel’s representation was effective. Grier, 171
Wn.2d at 33. Prejudice requires that “there is a reasonable probability that,
except for counsel’s unprofessional errors, the result of the proceeding would
have been different.” McFarland, 127 Wn.2d at 335. Because the defendant
must show both deficiency and prejudice, a failure to demonstrate either one will
end the inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489 (2018).
Effective representation entails certain basic duties, such as the
overarching duty to advocate the defendant’s cause and the more particular duty
to assert such skill and knowledge as will render the trial a reliable adversarial
testing process. Strickland, 466 U.S. at 668; In re Pers. Restraint of Tsai, 183
Wn.2d 91, 100, 351 P.3d 138 (2015). Counsel’s representation is not required to
conform to the best practices or even the most common custom, as long as it is
competent representation. Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct.
770, 788, 178 L. Ed. 2d 624 (2011). If defense counsel’s conduct can be
characterized as legitimate trial strategy, it cannot be the basis for an ineffective
assistance of counsel claim. State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220
10
No. 81659-4-I/11
(1991), abrogated on other grounds by State v. Crossguns, 199 Wn.2d 282, 505
P.3d 529 (2022).
However, a defendant can rebut the presumption of reasonable
performance by demonstrating that no conceivable legitimate tactic explains
counsel’s performance. In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 141,
385 P.3d 135 (2016); State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80
(2004). The relevant question is not whether counsel’s choices were strategic,
but whether they were reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481, 120
S. Ct. 1029, 145 L. Ed. 2d 985 (2000); Grier, 171 Wn.2d at 34. This court
evaluates the reasonableness of counsel’s performance from “ ‘counsel’s
perspective at the time of the alleged error and in light of all the circumstances.’ ”
Davis, 152 Wn.2d at 673 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384,
106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)).
A. Failure to Move to Suppress Warrants
Marshall claims that his counsel was ineffective because he did not move
to suppress two categories of evidence obtained through search warrants.
Failure to bring a motion to suppress is not per se deficient performance.
McFarland, 127 Wn.2d at 337. “Counsel may legitimately decline to move for
suppression on a particular ground if the motion is unfounded.” State v. Nichols,
161 Wn.2d 1, 14, 162 P.3d 1122 (2007). The defendant has the burden to rebut
the strong presumption that counsel’s representation was effective. McFarland,
127 Wn.2d at 337. To show prejudice, a defendant must demonstrate that the
motion to suppress would have been granted if made. Id. at 337 n.4.
11
No. 81659-4-I/12
1. Evidence Obtained Based on Sierra as State’s “Agent”
Marshall argues his trial counsel was ineffective because he did not ask
the trial court to suppress the evidence obtained pursuant to a search warrant.
According to Marshall, the warrant “was illegally obtained not for incorrect
information contained therein, but for information police intentionally omitted.”
Specifically, he notes the affidavit supporting the warrant did not disclose that
Sierra acted as the State’s “agent” by accompanying detectives to several
locations and allowing detectives to listen to her call with Marshall on
speakerphone.
The Washington State Constitution and the Fourth Amendment to the
United States Constitution protect privacy interests against unreasonable search
and seizure. State v. Bowman, 198 Wn.2d 609, 617, 498 P.3d 478 (2021). As a
result, warrantless searches and seizures are generally per se unreasonable.
Reichenbach, 153 Wn.2d at 131. Protection from unreasonable search and
seizure applies to “those privacy interests which citizens of this state have held,
and should be entitled to hold, safe from governmental trespass absent a
warrant.” State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). If no private
affair is disturbed, then no violation of the constitutional protection exists. State v.
Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007).
Marshall alleges Sierra acted as an agent of the police in order to obtain
information used in the warrant. 5 “Law enforcement officers cannot use private
5 To the extent Marshall is concerned about the State’s basis for stopping and speaking
with Sierra, he does not have standing to challenge this conduct, because these actions implicate
Sierra’s Fourth Amendment and state privacy interests, not his. “Fourth Amendment rights are
12
No. 81659-4-I/13
citizens to obtain evidence without a search warrant where a search warrant
would otherwise be required.” State v. Swenson, 104 Wn. App. 744, 754, 9 P.3d
933 (2000). The defendant bears the burden of proving that a private citizen was
acting as an agent of the government. Id. Factors used to determine whether a
private citizen acted as an instrumentality of the government include whether the
government knew of and acquiesced to the intrusive conduct and whether the
citizen intended to assist law enforcement efforts. Id.
Neither of the police actions involving Sierra required a warrant. Sierra
and a police officer drove down a public street to identify Marshall’s brother’s
house. Marshall had no expectation of privacy in the identification of a relative’s
house from a public street; therefore, a warrant was not required. Similarly, no
warrant was required for an officer to listen to Sierra’s call with Marshall. One
party to a phone call may provide the necessary consent. State v. Corliss, 123
Wn.2d 656, 663-64, 870 P.2d 317 (1994) (informant tilted phone receiver so
officer could hear). 6
Because the police actions to which Marshall objects did not require a
warrant, Sierra’s participation did not “obtain evidence without a search warrant
personal rights which may not be vicariously asserted.” State v. Goucher, 124 Wn.2d 778, 787,
881 P.2d 210 (1994) (citations omitted). “A defendant may challenge a search or seizure only if
he or she has a personal Fourth Amendment privacy interest in the area searched or the property
seized.” Id. On direct appeal, Marshall alleged “that the police conducted an illegal pretextual
stop, an illegal seizure, and an illegal custodial interrogation of [Marshall’s ex-wife]” and that the
“police interrogation of [Marshall’s ex-wife] violated his privacy right because the spousal privilege
statute protects him.” This court rejected these claims, holding that spousal privilege did not apply
to an ex-wife and that Marshall had no standing to challenge the search and seizure of another
individual. Marshall, No. 76119-6-I, slip op. at 21.
6 Listening to the call also did not violate any constitutional privacy right or the
Washington Privacy Act, RCW 9.73.030(1)(a). A call is not “intercepted” when an officer listens
through the speaker along with the person participating in the call. Corliss, 123 Wn.2d at 662.
13
No. 81659-4-I/14
where a search warrant would otherwise be required.” Swenson, 104 Wn. App. at
754. Sierra was not acting as an agent of the government in violation of
Marshall’s constitutional rights. Marshall makes no attempt to show that had his
counsel filed a motion for a hearing to suppress the “fruits” of the warrant on the
basis that it did not declare Sierra to be the “State’s agent,”7 the court would have
granted such a motion. Absent such a showing, Marshall cannot meet his burden
to establish counsel’s failure to file a fruitless motion caused him prejudice.
2. Cellular Phone Records
When police arrested Marshall, they “seized ‘several’ cellular phones from
[his] person and another that was on the ground near the driver’s door of the
Dodge.” Marshall, No. 76119-6-I, slip op. at 21. The State obtained a warrant
authorizing the search of Marshall’s phones for evidence related to the crime.
The phones contained multiple text messages between Marshall and Erker
appearing to discuss the planned burglary. The warrant also authorized the State
to gather information from Marshall’s cell phone carrier for information on his
account, including the location history. Separately, the State seized Erker’s cell
phone, which had photographs and text messages exchanged with Marshall
about the location of several medical marijuana dispensaries associated with
Prince’s employer. 8
7 Additionally, the affidavit to the warrant detailed Sierra’s participation in the drive to
identify Marshall’s brother’s house.
8 The State represents that Erker’s phone was seized pursuant to a valid warrant. As
discussed in the direct appeal, Marshall lacks standing to assert any Fourth Amendment violation
related to a warrant for the search of Erker’s device.
14
No. 81659-4-I/15
Marshall contends that counsel was deficient for not filing a motion to
suppress “cell phone data illegally obtained from Marshall’s phone” and failing to
object to evidence “illegally obtained without a warrant from Marshall’s cell
phone.” He also alleges that trial counsel was deficient because he did not move
to suppress either his or Erker’s “cell phone records.” 9 Marshall claims that
“these records were critical . . . because they established Marshall’s a [sic]
conversation regarding the victim in the vicinity of the victim’s home” and
“[w]ithout these records, the state would not have been able to determine
Marshall’s participation.” According to Marshall, the warrant was overbroad and
trial counsel was deficient for failing to challenge it.
Marshall provides extensive discussion of the law as it pertains to warrant
specificity. 10 But he fails to apply this law to the particulars of the warrant in this
case. He makes no reference to the language of the search warrant to
demonstrate overbreadth or any other reason to suppress evidence obtained as
a result of the warrant. Without more than a recitation of relevant law, Marshall
cannot show that the trial court would have granted a motion to suppress as
9 The State argues that the issue of whether trial counsel should have moved to suppress
the warrant for overbreadth is untimely raised because it was not raised in Marshall’s PRP but
only in a supplemental brief after appointment of counsel. RCW 10.73.090 provides that “[n]o
petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed
more than one year after the judgment becomes final if the judgment and sentence is valid on its
face and was rendered by a court of competent jurisdiction.”
The pro se initial petition raises the question of whether trial counsel was ineffective for
failing to seek to suppress the warrant entirely and for failing to object to the cell phone evidence.
Thus, the issue of whether trial counsel should have moved to suppress the same evidence on
the same basis is sufficiently similar that we consider the issue timely raised.
10 Marshall seriously misrepresents both the facts and the holding of State v. McKee, 3
Wn. App. 2d 11, 24, 413 P.3d 1049 (2018). McKee is not an ineffective assistance case, and the
court’s reversal was not based on ineffective assistance for failure to move to suppress. Id. at 29.
Rather, McKee had filed a motion to suppress, and on appeal, raised a Fourth Amendment
challenge. Id. at 20. In any case, Marshall fails to explain how the court’s analysis of overbreadth
applies to the facts in this case.
15
No. 81659-4-I/16
needed to establish ineffective assistance of counsel on this basis. Factual
evidence, rather than conclusory allegations, is required. Williams, 198 Wn.2d at
352. Bare allegations without persuasive reasoning or reference to the record
cannot demonstrate actual and substantial prejudice to obtain relief from
personal restraint. In re Pers. Restraint of Pheth, 20 Wn. App. 2d 326, 332, 502
P.3d 920 (2021).
Without explaining how the law applies to the specific facts of his case,
Marshall cannot establish that the court would have granted a motion to suppress
the cell phone evidence. Thus, counsel was not deficient for failing to make the
motion or object to admission of the evidence. Because he does not demonstrate
deficient performance, Marshall cannot establish ineffective assistance of
counsel regarding the cell phone evidence.
B. Failure to Object to Other Evidence
Marshall alleges that his trial attorney provided ineffective assistance of
counsel by failing to object to the admission of numerous pieces of evidence,
including DNA evidence from a gun, Burberry eyeglasses located at the scene,
photos recovered from Erker’s phone, a weight bar, and DVR cables.
When a defendant claims ineffective assistance based on counsel’s failure
to challenge the admission of evidence, the defendant must show (1) an absence
of legitimate strategic or tactical reasons supporting the challenged conduct,
(2) that an objection to the evidence would likely have been sustained, and
(3) that the result of the trial would have been different had the evidence not
16
No. 81659-4-I/17
been admitted. See State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364
(1998).
Marshall argues that the admission of these pieces of evidence was
irrelevant and unfairly prejudicial. Relevant evidence “means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” ER 401. All relevant evidence is admissible except as
limited by law. ER 402. However, relevant evidence may be excluded “if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” ER 403.
1. Gun DNA Evidence
Marshall argues that defense counsel should have moved to suppress
evidence relating to the .40 caliber11 SIG Sauer handgun that was located in his
vehicle at the time of his arrest. 12 He contends that the evidence was both
irrelevant and unfairly prejudicial because the gun and its magazine contained
the DNA of six different people on them. 13
The weapon was recovered from a backpack on the front seat of
Marshall’s vehicle at the time of his arrest and matched the .40 caliber shell
casings found at the scene. Marshall, No. 76119-6-I, slip op. at 4. Marshall
11 Although the opinion from Marshall’s direct appeal refers to the caliber of the bullets
without a decimal, in keeping with the convention used in the parties’ briefing and the trial
transcript, which indicates the bullet’s diameter, we refer to the bullets with the decimal.
12 Marshall’s initial petition incorrectly refers to this as “the gun found at the crime scene.”
13 It is unclear whether Marshall believes it was the weapon itself or the testimony about it
that was inadmissible, or both.
17
No. 81659-4-I/18
contends that information is irrelevant because no .40 caliber bullets were found
in Prince’s body, and the cause of death was multiple gunshots from .380 and
.22 caliber weapons.
Prince suffered four gunshot wounds, and the medical examiner
recovered three bullets from his body. Id. at 3. One bullet struck and exited
Prince’s body. Id. Police recovered only one bullet, a .40 caliber embedded in the
bathroom closet in the room where Prince was killed. Id. at 3-4. Testing showed
that the gun found in Marshall’s backpack fired that bullet. Id. at 4.
If nothing else, the weapon recovered from Marshall’s backpack was
relevant because it placed Marshall at the crime scene. The State also argues
that the testimony regarding the DNA mixture on the gun was relevant to
demonstrate the thoroughness of the investigation and that it could not have
prejudiced Marshall to have evidence of other individuals’ DNA on the weapon as
well. While Marshall claims the DNA evidence was confusing, he provides no
further argument that any of the gun-related evidence was unfairly prejudicial.
Ultimately, Marshall fails to meet his burden to show a reasonable probability that
an objection to the gun DNA evidence would have been sustained, or that it
would have led to a different outcome.
2. Burberry Glasses
Marshall argues that trial counsel should have moved to suppress the
Burberry eyeglasses located at the crime scene. He contends the glasses were
irrelevant because the DNA testing on them was inconclusive and contained
partial DNA samples from multiple individuals. The State counters that the
18
No. 81659-4-I/19
glasses themselves were relevant because they were identified by a witness as
belonging to Marshall and were found at the crime scene with only Marshall’s
fingerprint on them. As such, testimony regarding inconclusive DNA testing of the
glasses did not prejudice Marshall, but instead allowed him to argue that
someone else must have carried his glasses to the scene. Counsel’s use of this
evidence in closing demonstrates a legitimate strategic or tactical reason not to
move to suppress the evidence. Marshall cannot establish deficiency in this
regard to support his claim of ineffective assistance of counsel. See Davis, 152
Wn.2d at 758 (“Performance is not deficient when counsel’s decision not to
object to comments introduced into evidence can be characterized as legitimate
trial strategy or tactics.”).
3. Photographs from Erker’s Cell Phone
The evidence recovered from Erker’s phone included text messages
between Erker and Marshall planning the burglary, as well as photographs of
several marijuana dispensaries affiliated with Prince’s employer. The State also
relied on cell phone location data from Erker’s cell phone provider in the days
before and after the murder to place him in the proximity of the crime scene.
Marshall argues that he received ineffective assistance because his trial
counsel “failed to object to the admission of photos found on Erker’s phone.” He
claims that there was nothing in the record to show their relevance, and the
evidence was more prejudicial than probative. The record reflects that the State
relied on the photographs to show that Erker and Marshall were working together
to plan the burglary. The evidence was highly relevant and probative. Because
19
No. 81659-4-I/20
Marshall fails to show that an objection to admission of Erker’s photographs
would have likely been sustained, he fails to establish that counsel was deficient
for failing to object.
4. Weight Bar and DVR Cables
Marshall also contends that trial counsel should have objected to evidence
regarding a weight bar and DVR cables as irrelevant. Apart from a single passing
reference in Marshall’s initial petition, he makes no argument regarding the
weight bar, and therefore fails to show that the evidence was either irrelevant or
unfairly prejudicial. 14
The DVR cables were found in a closet under the stairs at Prince’s house.
The outside of the house was equipped with a video surveillance system, which
was wired to a DVR in the closet. The police discovered the cables, but the DVR
was missing. Marshall argues the DVR cables were irrelevant because there
were no fingerprints or DNA evidence connecting them to him. The cables
provided evidence that the DVR for the surveillance system had previously been
located in the closet but had been removed. Introduction of the left-behind cables
was not prejudicial given the other testimony about removal of the DVR.
Because this challenged evidence was relevant and not unfairly
prejudicial, Marshall fails to show that an objection would have been sustained or
that the result of the trial would have been different. As such, he fails to establish
14 Prince’s body was discovered in his bedroom with the weight bar near his head. The
weight bar was normally in Prince’s bathroom with his weight set. The State argued the weight
bar was used to strike Prince’s neck, shattering his hyoid bone.
20
No. 81659-4-I/21
ineffective assistance of counsel for failing to object to evidence of the weight bar
or DVR cables.
C. Alleged Deficiencies in Pre-Trial Preparation
Marshall alleges that his trial counsel was ineffective due to an overall lack
of investigation and pre-trial preparation. In order to rebut the presumption that
counsel’s performance was reasonable, a defendant bears the burden of
establishing the absence of any “conceivable legitimate tactic explaining
counsel’s performance.” Grier, 171 Wn.2d at 42 (quoting Reichenbach, 153
Wn.2d at 130).
In addition to the failure to file certain pretrial motions as alleged above,
Marshall claims that counsel failed to interview witnesses, 15 failed to hire an
investigator or experts, and had only limited contact with his client before trial.
The State contends that Marshall fails to establish any new information that
would have been discovered by witness interviews or a professional investigator,
or that expert witnesses were necessary or what they would have said. The State
also argues that Marshall fails to establish any reasonable probability that the
outcome of the trial would have been altered by any additional investigation.
Marshall’s arguments are undermined by the actual record. While his
argument implies that no such interviews or investigation were done by anyone,
the record reflects that his counsel at trial, John Crowley, was not the original
attorney on Marshall’s case. More than a year after the arraignment, and after
15 Marshall complained that counsel failed both to interview Erker or call him as a witness
at trial.
21
No. 81659-4-I/22
substantial defense investigation and interviews had been completed by his two
original attorneys, Marshall successfully moved to discharge them and retained
Crowley to represent him. Upon accepting the representation, Crowley would
have had access to Marshall’s prior counsel’s case file and the entirety of the
State’s discovery. Marshall does not identify any information that was not
discovered that might have changed the outcome of the trial. Nor does he specify
any witnesses who were not interviewed or who would have testified and
changed the outcome of the trial. Marshall has demonstrated neither deficiency
nor prejudice relating to Crowley’s case preparation.
D. Medical Condition
Marshall contends that trial counsel concealed a medical condition that
caused him to fall asleep twice during trial. He cites as evidence a motion
Crowley filed seeking a brief continuance to deal with an “ongoing medical
condition,” as well as personal declarations of Marshall himself and his mother
asserting that they witnessed Crowley during trial with his eyes closed, appearing
to be asleep. According to his mother, the judge also looked directly at Crowley
while he was sleeping “but said nothing about it.” Marshall hypothesizes that this
undisclosed medical condition explains Crowley’s other alleged deficiencies as
well.
The record reflects that on the first day of trial, Marshall’s trial counsel filed
a motion for a continuance or recess from trial so that he could seek treatment
for an ongoing medical condition. However, by the time the parties appeared that
day, all agreed that the trial calendar would allow for brief recesses as needed for
22
No. 81659-4-I/23
Crowley to attend any necessary medical appointments. Crowley did not pursue
the motion to continue the trial.
First, we note that Marshall’s contention that Crowley improperly hid his
condition is belied by Sierra’s declaration, in which she states that after she
reported to Marshall that Crowley said he was ill, Marshall told her “Crowley had
told him the same thing.” More importantly, counsel is not required to disclose
sensitive health information to clients. Crowley did not “conceal” his health
condition, as Marshall had no right to this information.
Marshall alleges that it was this medical condition that led Crowley to fall
asleep during trial. Allegations of sleeping counsel are serious, and if proven,
may support a finding of deficient performance. In re Pers. Restraint of Lui, 188
Wn.2d 525, 540, 397 P.3d 90 (2017); Caldellis, 187 Wn.2d at 145 n.6 (listing
cases where counsel was found deficient for having fallen asleep during critical
portions of trial). However, to prevail on an ineffective assistance claim, Marshall
must prove prejudice as well as deficient performance.
Marshall does not identify any specific critical moment where Crowley was
sleeping, nor does he explain how he was harmed. 16 The judge, who had the
best view of the courtroom and counsel’s behavior, did not admonish Crowley for
a lack of attentiveness or sleeping, and there is no obvious sign in the record that
16 In his bar grievance, Marshall stated, “Mr. Crowley dosed [sic] off during trial on two
different occasions. The first time was on 10/3/16, during Shavon[ne] Parker’s testimony. I
noticed he was sleep [sic] when the state offered an exhibit and brought it to Mr. Crowley I had to
call his name to get his attention. He also dosed [sic] off again on 10/6/16 at 11:55 a.m. a few
minutes before break during Ms. Geil’s testimony as well, the firearm specialist.” The trial
transcripts do not reflect any instances of Crowley sleeping. However, the record does show
Crowley conducted significant cross-examination of both Parker and Geil, including re-cross of
Parker.
23
No. 81659-4-I/24
counsel was actually sleeping or otherwise not engaged in the trial. Crowley
made objections and cross-examined witnesses during the State’s case.
Compare Lui, 188 Wn.2d at 541 (noting that the judge is in the best position to
assess courtroom behavior and provide appropriate admonishments to both
jurors and counsel if there are signs of inattentiveness). Even if Crowley fell
asleep at points during the trial, Marshall has failed to show that Crowley’s
performance resulted in prejudice, as required to establish ineffective assistance
of counsel.
E. Disciplinary Investigation
Approximately ten months after Marshall’s sentencing, an investigation by
the Washington State Bar Association’s Office of Disciplinary Counsel (ODC) led
to the filing of formal charges of professional misconduct against Marshall’s trial
attorney, Crowley. The charges stemmed from complaints from four of Crowley’s
former clients, alleging various instances of lack of communication,
misrepresentation, failure to file documents, and financial malfeasance. ODC’s
final statement of charges against Crowley identified 20 different alleged
violations. 17 The grievances spanned a time period between July 2011 and June
2016. Marshall himself had filed a bar grievance against Crowley in December
2016, after his sentencing. However, Marshall’s allegations were not included in
17 The charges included multiple violations of the following Rules of Professional
Conduct: 1.2 (Scope of Representation / Allocation of Authority Between Client and Lawyer), 1.3
(Diligence), 1.4 (Communication), 1.5 (Fees), 1.15A (Safeguarding Property), 1.16 (Declining or
Terminating Representation), 3.2 (Expediting Litigation), 4.1 (Truthfulness in Statements to
Others), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct).
24
No. 81659-4-I/25
ODC’s statement of charges against Crowley. In July 2017, Crowley voluntarily
resigned his membership in the state bar in lieu of discipline.
In his personal restraint petition, Marshall contends that Crowley “took
Marshall’s money, lied to Marshall, and never filed any of the motions he
promised to file,” similar to his behavior in other clients’ matters as charged by
ODC. Marshall relies on In re Pers. Restraint of Brett, 142 Wn.2d 868, 884, 16
P.3d 601 (2001) (Talmadge, J., concurring), to argue that “counsel’s
representation of a client falls below an objective standard of reasonableness as
a matter of law when the lawyer is disbarred for conduct contemporaneous in
time with representation and that conduct affects their representation of that
client.”
However, this is not an accurate statement of court’s holding in that
case. 18 Brett does not stand for the proposition that, as a matter of law, counsel’s
representation falls below a standard of reasonableness when the lawyer is
disbarred for contemporaneous conduct. Rather, the majority opinion held that
Brett received ineffective assistance, during both the guilt and penalty phases of
his murder trial, based on specific actions19 that were held, individually and in
combination, to establish ineffective assistance of counsel. Id. at 882-83. Only
18 Nor is the quotation accurate technically, as it adds and omits material without
indicating the alterations to the original.
19 The Brett court stated, “[W]e conclude that when counsel knew or had reason to know
of a mental defect or illness affecting their client in a possible death penalty case, counsel could
and should have: (1) promptly sought the appointment of cocounsel; (2) presented a mitigation
package to the prosecutor before a death penalty notice was filed; (3) promptly investigated
relevant mental health issues; (4) sought a timely appointment of investigators; (5) sought a
timely appointment of qualified mental health experts; and (6) adequately prepared for the penalty
phase by having relevant mental health issues fully assessed and by retaining, if necessary,
qualified mental health experts to testify accordingly.” Id. at 882.
25
No. 81659-4-I/26
the concurrence suggested that disbarment for contemporaneous conduct that
affected the attorney’s representation of a capital defendant could alone be
sufficient. Id. at 884 (Talmadge, J., concurring).
Here, Crowley was under investigation and resigned his bar membership;
he was never actually disciplined. Disciplinary investigation does not establish
per se ineffective assistance of counsel, particularly when the investigation is
about representation in another case. Rather, to prevail on a claim of ineffective
assistance of counsel, the petitioner must demonstrate both deficient
performance and resulting prejudice in their case. Marshall has not provided
evidence of deficiency in his defense. Crowley’s performance may have been
deficient in contemporaneous cases, 20 but none of Marshall’s allegations support
a claim of ineffective assistance of counsel in this case.
F. Cumulative Error
Marshall argues that even if no single instance of ineffective assistance of
counsel denied him a fair trial, the court should still conclude the cumulative
effect of the alleged errors deprived him of his constitutional right to counsel.
“The accumulation of errors may deny the defendant a fair trial and therefore
warrant reversal even where each error standing alone would not.” State v.
Davis, 175 Wn.2d 287, 345, 290 P.3d 43 (2012), abrogated on other grounds by
State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). However, the doctrine does
not apply when “the errors are few and have little or no effect on the outcome of
20 Indeed, inattention to some clients could allow counsel to provide more attention to
other clients such as Marshall.
26
No. 81659-4-I/27
the trial.” State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). When there
is overwhelming evidence of the defendant’s guilt, cumulative errors do not
require reversal. In re Pers. Restraint of Cross, 180 Wn.2d 664, 691, 327 P.3d
660 (2014), abrogated on other grounds by Gregory, 192 Wn.2d 1.
Marshall’s cumulative error claim relies on the existence of errors that we
have determined did not occur. Moreover, there was overwhelming evidence of
Marshall’s guilt. In the direct appeal, we summarized the evidence of guilt 21 as
follows:
Marshall’s and Erker’s text messages establish that they located
Prince’s home, referred to it as the “honey pot,” and intended to
carry out a plan that required them to locate his home. Cell phone
data shows them near Prince’s house in the days leading up to the
murder and at the time of the murder. In addition, police found
Burberry eyeglasses with only Marshall’s fingerprint at the scene,
witnesses testified that they had seen him wear Burberry glasses,
and a Facebook picture shows him wearing Burberry glasses.
Sierra testified that since September 2013 Marshall had been the
primary user of her PT Cruiser, which was photographed at
Prince’s house at the time of his murder. And Steve testified that
Erker asked him to sell that PT Cruiser on the night of the murder
because it had been used in a crime. Further, the gun located in
Marshall's backpack fired the bullet and some of the cartridge
casings found at the scene. After the murder, Marshall told Bailey
that he had “fucked up.” And only after Scott received a letter from
Marshall stating that police treated her poorly did she file a
declaration making this claim.
Marshall, No. 76119-6-I, slip op. at 17-18. In light of this overwhelming evidence,
Marshall’s counsel’s alleged deficiencies neither individually nor cumulatively
require reversal.
21 This summary of evidence appears in this court’s analysis of prosecutorial misconduct,
where it determined that the prosecutor committed misconduct by intentionally eliciting an opinion
about guilt. Marshall, No. 76119-6-I, slip op. at 17. This court held that despite the lack of
eyewitnesses and though the primary issue was identity, “the other evidence of Marshall’s guilt
was sufficiently abundant that an instruction could have cured any resulting prejudice.” Id.
27
No. 81659-4-I/28
We deny Marshall’s personal restraint petition.
I CONCUR:
28
In the Matter of the Personal Restraint Petition of Marshall, No. 81659-4-I
HAZELRIGG, A.C.J. (concurring) — I join my colleagues as to the analysis
and outcome set out in the majority, but write separately to emphasize and respond
to three particular points raised in Steven Marshall’s petition.
I. No Requirement for Subsequent Counsel to Re-Interview Witnesses
There is no duty for defense counsel to repeat the interviews or other
investigatory work completed by a prior attorney on the case. Qualified and
competent defense attorneys may and often do rely on the investigatory materials
arising from the pretrial efforts of the prior counsel in a criminal case, e.g., witness
interview transcripts, photographs and other recordings, and consultations with
experts. At oral argument before this court, when asked whether there was court-
appointed counsel who undertook investigative efforts before John Crowley was
retained, Marshall stated, “not that I’m aware of.”1 After the State confirmed that
there were attorneys handling the case before Crowley, Marshall was asked “if
prior counsel conducted interviews, is your suggestion for our holding in this case
. . . that subsequent counsel would be required to re-interview?” Marshall
responded, “Absolutely.” 2 Though Marshall seemingly backtracked from this
position upon further inquiry from the panel, such a position requires additional
attention.
1 Wash. Court of Appeals oral argument, In re Pers. Restraint of Marshall, No. 81659-4-I
(Nov. 1, 2022), at 8 min., 24 sec., video recording by TVW, Washington State’s Public Affairs
Network, https://tvw.org/video/division-1-court-of-appeals-2022111106.
2 Wash. Court of Appeals oral argument, supra, at 20 min., 10 sec.
No. 81659-4-I/2
“To provide constitutionally adequate assistance, ‘counsel must, at a
minimum, conduct a reasonable investigation enabling [counsel] to make informed
decisions about how best to represent [the] client.’” In re Pers. Restraint of Brett,
142 Wn.2d 868, 873, 16 P.3d 601 (2001) (emphasis and alterations in original)
(quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)). “The degree and
extent of investigation required will vary depending upon the issues and facts of
each case.” State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010). In certain
circumstances, defense counsel may decide “that particular investigations are
unnecessary.” In re Pers. Restraint of Rice, 118 Wn.2d 876, 889, 828 P.2d 1086
(1992). The decision not to investigate a particular issue or witness is “assessed
for reasonableness under all the circumstances.” Id.
The record before us establishes that Marshall was charged via information
in February 2014 and was represented by Marc Stenchever and Steve Adams until
May 2015. On March 19, 2015, Marshall moved to discharge counsel; at that point,
his attorneys had interviewed two representatives of the medical examiner’s office.
The trial court denied the motion without prejudice. On April 29, 2015, Marshall
again moved to discharge his counsel. At the hearing on the motion, Adams
explained that he and Stenchever were actively investigating Marshall’s case: “We
were in interviews yesterday for three times [sic]. Co-counsel, Mr. Erker’s counsel,
has requested 10 or 15 other interviews coming up within the next few weeks.
We’re doing our best to actively investigate this case.” The court again denied the
motion to discharge. On May 5, 2015, Marshall moved once more to discharge
-2-
No. 81659-4-I/3
counsel and the trial court granted the motion, allowing Adams and Stenchever to
withdraw and substituting Crowley, whom Marshall had retained to represent him.
As the majority explains, Marshall’s court-appointed attorneys had already
conducted multiple interviews and were actively investigating the case up until their
discharge. When Crowley was retained, he would have had access to all the
materials contained in Marshall’s case file, including results of the defense
investigation up to that point, and discovery from the State under CrR 4.7(a).
Investigators retained by prior counsel may be subpoenaed by the attorney
conducting trial and serve as impeachment witnesses for the defense. Nothing in
the record suggests these materials were insufficient for Crowley to make informed
decisions regarding his representation of Marshall and meet the standard of
reasonable investigation.
The majority also properly notes that Marshall fails to identify any witnesses
who should have been interviewed, but were not, together with an explanation of
how such interviews would have improved his defense, or any experts who should
have been retained and how they would have bolstered his defense theory. More
critically, creation of a rule or standard that, in order to provide effective assistance,
subsequent counsel must repeat witness interviews already completed by the prior
attorney would upend public defense in our state and create unnecessary hardship
for named victims and civilian witnesses. Such a requirement would exponentially
prolong existing backlogs in our trial courts across the state, which have already
ballooned as a result of the COVID-19 3 pandemic. The practical implications of a
3 2019 novel coronavirus infectious disease.
-3-
No. 81659-4-I/4
rule like the one Marshall appeared to seek here would only serve to further delay
justice for the accused and victims of crimes. In addition to failing to satisfy the
legal test for such a challenge, the policy arguments against Marshall’s claim as
presented are insurmountable.
II. Defense Counsel Entitled to Privacy with Regard to Health Information
Marshall’s initial petition avers “Crowley concealed this [medical] condition
from Marshall” and that the condition caused Crowley to “doze off during trial at
least twice.” This assertion suffers from several fatal flaws. The first is that
Marshall provides no evidence, much less argument beyond the bare conclusion,
that connects the allegation that Crowley was asleep during trial to any health
issue. Further, as noted by the majority, the record demonstrates that Crowley
did, in fact, disclose some facts about his medical condition to Marshall and his
former spouse, Allison Sierra, such that the two later discussed the matter and
compared the information Crowley had conveyed. More critically, Marshall fails to
provide any authority in support of his claim that Crowley had any sort of affirmative
duty to disclose his protected health information to his clients.
Lawyers often deal with health conditions, both minor and serious, while still
effectively representing their clients, and whether such conditions were disclosed
to the clients has no bearing on counsel’s diligence or effectiveness. As the
majority notes, clients have no right to their attorney’s protected health information.
Though defense counsel is required to withdraw from representation when a
medical condition materially impairs their ability to represent the client, there is no
obligation for counsel to disclose the details of that condition to the client. RPC
-4-
No. 81659-4-I/5
1.16(a)(2). Legal professionals do not forfeit their right to privacy as to their
protected health information by virtue of entering a notice of appearance in a case.
Hiring someone to take on legal representation does not entitle the client to
personal details of their advocate’s life. This remains true in the context of
assertions of ineffectiveness of counsel. Marshall concedes in his briefing that the
focus is on counsel’s “performance,” not the presence of a disability. State v.
Lopez, 190 Wn.2d 104, 119, 410 P.3d 1117 (2018). Since Lopez was issued, this
author has not observed that the litigation of ineffective assistance claims has
encroached upon counsel’s right to privacy. But that is not a reason to be less
vigilant in disallowing such encroachment. As one justice cautioned in Lopez, it
would have grave unintended consequences for the provision of robust public
defense were it to transpire that counsel should “expect that their mental health or
personal stress level will be part of an ineffectiveness and/or malpractice claim.”
Id. at 134 (Yu, J., dissenting). I agree. The Rules of Professional Conduct
governing an attorney’s duty as an officer of the court, when their private health
concerns impact representation, properly balances the competing needs of
protecting both clients and lawyers. Accordingly, it is wholly irrelevant whether
Crowley disclosed the specifics of his health condition to Marshall.
III. Disciplinary Investigation in One Matter Does Not Render Counsel
Ineffective in Others
Finally, an attorney who is under investigation, formally charged, or
ultimately disbarred by the Washington State Bar Association (WSBA) for conduct
that occurred contemporaneously with the representation at issue is not per se
-5-
No. 81659-4-I/6
ineffective. Such situations do not even give rise to a prima facie showing of
ineffective assistance of counsel which is, by design, a fact-specific inquiry which
considers the performance of counsel in light of the facts and procedural posture
of the case. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1
(2004) (reviewing court evaluates reasonableness of counsel’s performance “in
light of all the circumstances” (quoting Kimmelman v. Morrison, 477 U.S. 365, 384,
106 S.Ct. 2574, 91 L.Ed.2d 305 (1986))).
Marshall relies heavily on Justice Talmadge’s concurrence in Brett to
support his argument on this issue. In his concurrence, Justice Talmadge opined
that, in a capital case, “we should find that counsel’s representation of a client falls
below an objective standard of reasonableness as a matter of law when that lawyer
is disbarred for conduct contemporaneous in time with their representation of a
capital defendant and that conduct affects their representation of that client.” Brett,
142 Wn.2d at 884 (Talmadge, J. concurring) (emphasis added). Brett’s attorney,
Irving Lee Dane, was disbarred for “conduct that was contemporaneous with his
representation of Brett.” Id. Dane submitted a declaration in another case
regarding the conduct for which he was disbarred and admitted he was struggling
with depression, bipolar disorder, and overall concentration. Id. These issues
were present while Dane represented Brett. Id. The concurrence asserted that
disbarment under those circumstances was sufficient to show ineffective
assistance of counsel as to Dane’s representation of Brett. Id. at 885. However,
as the majority here makes clear, the Brett majority disagreed: the ultimate holding
makes no reference of Dane’s disbarment nor does it acknowledge the
-6-
No. 81659-4-I/7
concurrence’s proposed rule. See 142 Wn.2d at 882-83. Further, as emphasized
above, even the concurrence conceded a negative impact on the representation
was essential.
As a preliminary matter, in the context of a criminal case that guarantees to
the accused the presumption of innocence at all stages of the proceedings from
arrest and charging up to the point a verdict is reached, it is an interesting
proposition to suggest that this court should apply a presumption against the
subject of a WSBA investigation. Further, such a holding would, as with several
others sought by Marshall in this petition, disrupt the entirety of the criminal legal
system in our state as it would be ripe for abuse. Under his proposal, to secure
reversal based on ineffective assistance of counsel, all one would need to do is
ask a friend or cell mate or anyone else to file a Bar complaint against defense
counsel. Crowley was investigated based on allegations presented to the WSBA.
He resigned in lieu of disbarment, so no conclusions were reached by the WSBA
Office of Disciplinary Counsel. The Brett concurrence is not controlling authority,
nor is it even persuasive given the practical implications it raises.
-7-