[No. 74782-2. En Banc.]
Argued October 19, 2004. Decided June 9, 2005.
JOYCE NIEMANN , Petitioner , v. VAUGHN COMMUNITY CHURCH , Respondent . [1] Constitutional Law - Appeal - Review - Constitutional Issues - Avoidance. An appellate court should refrain from
366 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
addressing a constitutional issue unless it is necessary for the determination of the case.
[2] Equity - Review - Standard of Review. The issue of whether equitable relief is appropriate under the circumstances is a question of law that is reviewed de novo. Where factual issues underlie the question, the trial court's factual determinations are entitled to deference by a reviewing court. The trial court's factual determinations will not be disturbed on appeal if they are supported by sufficient evidence in the record.
[3] Deeds - Construction - Intent of Parties - In General. A court's primary objective when interpreting a deed is to discern the intent of the parties thereto.
[4] Deeds - Construction - Intent of Parties - Question of Law or Fact - In General. The intent of the parties to a deed is determined from the entire instrument and, if ambiguity exists, it may be determined from the situation and circumstances of the parties at the time of the grant. The parties' intent is a factual question. Once the parties' intent is determined, it is for the court to apply the rules of law to determine the legal consequences of that intent.
[5] Trusts - Charitable Trust - Construction - Intent of Settlor - Determination - Extrinsic Evidence - In General. The creation and administration of a charitable trust lies with the settlor's intent. Where the trust language is ambiguous as to the settlor's intent, a court may look to extrinsic evidence.
[6] Trusts - Charitable Trust - Construction - Deviation From Terms - Equitable Doctrines - Applicability. Equitable deviation and cy pres are equitable doctrines that may be applied to best effectuate the intent and purpose of the settlor of a charitable trust. Equitable deviation has to do with the powers and duties of the trustee with respect to the administration of the trust; it has to do with the methods of accomplishing the purposes of the trust. The cy pres doctrine bears on the question of the extent to which a court will permit or direct the trustee to apply the trust property to charitable purposes other than the particular charitable purpose designated by the settlor if compliance with the settlor's designation becomes impossible, unlawful, or impracticable. In short, courts apply equitable deviation to make changes in the manner in which a charitable trust is carried out and apply cy pres in situations where the trustee seeks to modify or redefine the settlor's specific charitable purpose. When a court is presented with an issue of modifying a trust term, the threshold inquiry is whether the term concerns an administrative provision of the trust (which implicates equitable deviation) or seeks to modify a primary purpose of the trust, apply trust assets to an alternative objective, or substitute beneficiaries (which implicates cy pres).
June 2005 Niemann v. Vaughn Cmty. Church 367
154 Wn.2d 365
[7] Trusts - Charitable Trust - Property - Disposition - Modification - Equitable Deviation. A charitable trust restriction on the sale of trust property is an administrative provision that may be modified under the doctrine of equitable deviation; i.e., where the settlor of a charitable trust devises land for the maintenance of a charitable institution on the land and, owing to a change of circumstances, it becomes impracticable to maintain the institution on the land, the court may direct or permit the trustee to sell the land and devote the proceeds to the erection and maintenance of the institution on other land, even though the settlor in specific words directed that the institution should not be maintained in any other place.
[8] Trusts - Charitable Trust - Construction - Deviation From Terms - Equitable Deviation - Test. Under the doctrine of equitable deviation, a court may modify an administrative or distributive provision of a charitable trust or direct or permit the trustee to deviate from an administrative or distributive provision if, because of circumstances not anticipated by the settlor, the modification or deviation will further the purposes of the trust. This standard gives courts broad discretion in ordering or permitting deviation. When construing the provisions of an equitable trust, a court must be concerned with the intent of the testator and the primary objective of the trust rather than the method or mode for execution of the trust as prescribed in the trust instrument. The objective of equitable deviation is not to disregard the settlor's intention but, rather, to give effect to what the settlor's intent probably would have been had the circumstances in question been anticipated. The party seeking permission to deviate from the trust terms has the burden of showing either changed circumstances or that relevant circumstances were unknown to the settlor. This showing may be refuted by a respondent. Upon a finding of unanticipated changed circumstances, the court must determine whether the proposed modification or deviation would tend to advance or detract from the trust purposes.
[9] Religious Societies - Trusts - Charitable Trust - Property - Restriction - Equitable Deviation - Changed Circumstances - Sufficiency. Equitable deviation may be permitted if the primary purpose of the trust, the maintenance of church functions, would be substantially impaired by continued habitation of the specific parcel of property and deviation is reasonably necessary to effectuate and further the primary purpose. Equitable deviation alters the means of administering the trust while preserving the purpose of the trust.
[10] Trusts - Charitable Trust - Construction - Intent of Settlor - Determination - Extrinsic Evidence - Competing Inferences - Review - Deference to Trial Court. When extrinsic evidence of the intent of the settlor of a charitable trust allows for conflicting reasonable inferences to be drawn, an appellate court generally will defer to the trial court's factual determinations.
368 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
[11] Equity - Remedies - Review - Standard of Review. A trial court has broad discretionary power in fashioning an equitable remedy. An equitable remedy fashioned by a trial court will not be disturbed by a reviewing court so long as the trial court does not abuse its discretion or act in an arbitrary or capricious manner.
MADSEN , J., dissents in part by separate opinion; J.M. JOHNSON , J., did not participate in the disposition of this case.
Nature of Action: A member of a church congregation sought declaratory and injunctive relief to enforce a provision in a deed to real property that the church is to hold the property "for the perpetual use of" the church organization. The church counterclaimed for equitable remedies that would enable it to sell the property and to use the proceeds to build a new facility at a different location.
Superior Court: The Superior Court for Pierce County, No. 99-2-12019-7, Marywave Van Deren, J., on June 7, 2002, entered a judgment in favor of the church.
Court of Appeals: The court affirmed the judgment at 118 Wn. App. 824 (2003), holding that the deed language constituted a discriminatory restraint on alienation of the property prohibited by statute and that the doctrines of equitable deviation and cy pres applied to permit the church to sell the property.
Supreme Court: Holding that the church could be permitted to sell the property under the doctrine of equitable deviation, the court affirms the decision of the Court of Appeals and the judgment.
Douglas V. Alling , Michael E. McAleenan, Jr. , and Robert E. Mack (of Smith Alling Lane ), for petitioner.
Thomas F. Peterson and Susan K. Goplen (of Socius Law Group, P.L.L.C. ) and Craig A. Robertson (of Robertson & Associates ), for respondent.
George R. Hill and Aaron H. Caplan on behalf of American Civil Liberties Union of Washington, amicus curiae.
June 2005 Niemann v. Vaughn Cmty. Church 369
154 Wn.2d 365
¶1 BRIDGE, J. - [1]This case requires us to consider whether an alleged restrictive covenant in a deed transferring church property from one church to another prevents the receiving church, Vaughn Community Church (VCC), from selling the original church property in order to relocate to a larger, nearby property. Petitioner Joyce Niemann, a parishioner at VCC, brought suit alleging the restrictive covenant in the deed prevented the proposed sale. The trial court ruled that the conveyance created a charitable trust, then granted VCC equitable relief, removing the alienation restriction from the trust. The Court of Appeals affirmed. We now affirm the grant of equitable relief, thereby modifying the charitable trust and permitting the sale of the church property. We hold the trial court correctly permitted deviation from the administrative trust provision, finding changed circumstances unanticipated by the settlor, and that the requested deviation furthered the charitable trust's primary purpose. Based on this holding, we decline to reach the remainder of the issues raised by the parties as unnecessary to the disposition of the case.«1»
I
¶2 In 1949, the Emmanuel Congregational Church of Vaughn (ECC) owned a parcel of real property located at
«1»The trial court additionally invalidated the alleged restrictive covenant, ruling that it impermissibly discriminated on the basis of creed and was thus void under the Washington Law Against Discrimination, RCW 49.60.224 . On review, Niemann challenged this ruling and further alleged that the application of RCW 49.60.224 , in this case, violated her free exercise of religion. In response, VCC asserted that per Shelley v. Kraemer , 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), a court injunction enforcing the restrictive covenant would violate its Fourteenth Amendment equal protection rights. We have consistently stated that appellate courts should refrain from addressing constitutional issues unless necessary to the case's disposition. See State v. Zakel , 119 Wn.2d 563 , 571, 834 P.2d 1046 (1992); Tommy P. v. Bd. of County Comm'rs , 97 Wn.2d 385 , 391, 645 P.2d 697 (1982). As we completely resolve this case on the equitable grounds before the court, we decline to address these additional issues.
370 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
17616 Hall Road, Vaughn, Washington.«2»ECC was a Protestant evangelical church and held services on the property. Since at least 1899, the property had been continuously used for evangelical services by a series of churches. In 1949, ECC merged with the Christian Church of Vaughn to create a new church called the Vaughn Community Church in Christ (which later changed its name to Vaughn Community Church, referred to here as VCC). As part of the merger, the trustees of ECC passed a resolution to transfer the subject property to VCC with the stipulation that "the property shall forever remain for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn."«3»Clerk's Papers (CP) at 406. While VCC took possession and began holding services, the land was not formally deeded at that time.
¶3 In 1956, VCC needed to remodel the church building on the subject property to meet the needs associated with its recent growth. In order to obtain a loan to finance the remodel, on February 22, 1956, ECC formally conveyed the subject property to VCC by deed. It contained the following relevant language:
WHEREAS, on April 5, 1949, the Board of Trustees of [ECC] met in regular session and passed a resolution pursuant to the authority of the Special Congregation Meeting aforesaid, as follows, resolved that
"The Emmanuel Congregational Church of Vaughn transfer (the) church property to the Vaughn Community Church of Christ, with the stipulation that said property shall forever
«2»Vaughn is not an incorporated municipality and is not defined geographically by any governmental entity except the school district. Clerk's Papers (CP) at 393. The trial court found that "Vaughn has a broad scope, and on some maps simply appears in the middle of the [Key P]eninsula as Vaughn . . . without boundaries." Id . at 394.
«3»At around the same time, the former leaders of the Christian Church of Vaughn sold the church property it formerly occupied and provided VCC with the proceeds. Most of the leadership of ECC took similar positions with VCC, and everyone who was previously a member of ECC or the Christian Church of Vaughn automatically became members of VCC. Petitioner Niemann was a member of the Christian Church of Vaughn and, following the merger, became a member of VCC. She was never a member of ECC.
June 2005 Niemann v. Vaughn Cmty. Church 371
154 Wn.2d 365
remain for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn"
. . . .
NOW, THEREFORE, in consideration of the premises, [ECC] does, by these presents, convey and quit claim to Vaughn Community Church, a Washington corporation, all its interest in the following described real estate, situate in Pierce County, Washington, to-wit:
[Legal Description of Property]
TO HAVE AND TO HOLD said property for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn, Washington.
Dated this 22nd day of February, 1956.
Pl.'s Ex. 10, at 2-3.
¶4 VCC continued to grow. In fact, the pastor testified that average Sunday services grew from 30 participants in 1956 to approximately 180 participants by 1999. In the early 1980s, VCC was remodeled and expanded to its current condition, including expansion of the sanctuary and addition of a fellowship hall and classrooms. In 1991, only six years after the completion of the remodel, VCC commissioned a feasibility study to explore options for expanding capacity at the current site. The study concluded the current conditions were inadequate and further expansion was not feasible. On March 28, 1999, the majority of those present at the VCC congregational meeting, 79 percent, voted in favor of selling the church property.«4»VCC purchased a parcel of real property approximately 4.3 miles from the subject property and planned to use the proceeds from a sale of the subject property to fund construction of a new church facility.
¶5 In response to this course of events, Niemann brought this action, both in her individual capacity and derivatively, as a member of VCC, to enjoin VCC from selling the church
«4»VCC Pastor Charles Odegaard, in a signed declaration, explained that "VCC is now and has always been a congregational church. This means that the government of the church is vested in its members, who exercise the final right of control in all of its affairs." CP at 660.
372 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
property to anyone other than a "Protestant Evangelical Church of the Community of Vaughn." CP at 7-13. Specifically, Niemann filed suit in superior court seeking declaratory and injunctive relief to enforce the alleged restrictive covenant in the 1956 deed. In response to separate pretrial motions, Superior Court Judge Kathryn J. Nelson granted partial summary judgment, finding that the conveyance of the church property to VCC in 1956 created a charitable trust and that VCC is a primary beneficiary of the trust, though not the sole beneficiary. Neither party appealed these rulings.
¶6 Following a two-week bench trial, Judge Marywave Van Deren entered final judgment and made specific findings of fact and conclusions of law in favor of VCC. Based on the pretrial ruling that the 1956 deed created a charitable trust, the trial court, without distinguishing between the two, applied the similar yet distinct equitable doctrines of cy pres and equitable deviation to modify its terms and administration. The court sanctioned VCC's request to deviate from the trust terms to allow for the sale of the subject property to finance a new church building to serve the Protestant evangelical community of Vaughn. In addition to this grant of equitable relief, the court ruled that the Washington Law Against Discrimination (WLAD), RCW 49.60.224 ,«5»prohibited the restrictive covenant found in the habendum clause of the 1956 deed. Specifically, the court held that RCW 49.60.224 applies to charitable trusts and prohibits restraints on alienation of real property on the basis of creed. Secondly, in response to Niemann's argu
«5»RCW 49.60.224 provides:
(1) Every provision in a written instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, occupancy, or lease thereof to individuals of a specified race, creed, color, sex, national origin, families with children status, or with any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a blind, deaf, or physically disabled person . . . is void.
(2) It is an unfair practice to insert in a written instrument relating to real property a provision that is void under this section or to honor or attempt to honor such a provision in the chain of title.
In addition, RCW 49.60.227 further allows property owners, through an in rem, declaratory judgment action, to remove provisions void under RCW 49.60.224 .
June 2005 Niemann v. Vaughn Cmty. Church 373
154 Wn.2d 365
ment challenging the constitutionality of the WLAD's application in this case, the trial court held that RCW 49.60.224 does not have a coercive effect on Niemann's practice of religion, that a compelling state interest exists, and that the statute is the least restrictive means of accomplishing that interest. The court further held that the equal protection clause of the Fourteenth Amendment barred it from enforcing the restrictive covenant.
¶7 The Court of Appeals, by a 2-1 majority, affirmed the trial court's rulings with the exception of the equal protection argument, which it declined to reach. Niemann v. Vaughn Cmty. Church , 118 Wn. App. 824 , 828, 831-32, 77 P.3d 1208 (2003). We granted Niemann's petition for review.
II
¶8 We begin our analysis by addressing the trial court's grant of equitable relief, permitting modification of the charitable trust.«6»
«6»Whether the 1956 deed in fact restricts the alienation of the property at all is questionable. First, a stipulation that the property be used for the stated purpose does not, unambiguously at least, prohibit the sale of the property and application of the funds to the stated purpose. This is exactly what VCC proposes doing with the property. VCC does not propose using the funds generated by the sale of the property for any unrelated objective. In its pretrial motions, VCC asserted that the deed did not create a charitable trust but rather simply a restrictive covenant. CP at 485-86. But VCC did not appeal the trial court's ruling to the contrary.
In addition, the deed itself may, in fact, merely convey a fee simple absolute outright, with no restrictions. Washington courts do not favor estates upon condition and if the creating language is unclear that a conditional estate was intended, courts will generally construe a fee simple absolute. See 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 1.8 (2d ed. 2004) (citing King County v. Hanson Inv. Co. , 34 Wn.2d 112 , 208 P.2d 113 (1949)). However, neither party has raised nor briefed these issues before this court or the Court of Appeals. RAP 13.7(b) suggests avoiding reaching an issue the parties do not present. While we have departed from this rule on rare occasions, see , e.g. , Mader v. Health Care Authority , 149 Wn.2d 458 , 467-68, 70 P.3d 931 (2003), we have done so only when necessary to "serve the ends of justice" and "secure [a] fair and orderly review." RAP 1.2(c), 7.3. While there is certain doubt as to whether the trial court properly interpreted the deed and its subsequent finding of a charitable trust, we refrain from reviewing these unappealed orders here.
374 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
Standard of Review
¶9 The parties present differing views as to the standard of review. Without discussion, Niemann's arguments advocate for us to review the grant of equitable relief de novo. VCC asserts we should apply the abuse of discretion standard. The Court of Appeals, in affirming the equitable relief, agreed with VCC, holding that trial courts have broad discretionary power in fashioning equitable remedies and such action is typically reviewed for abuse of discretion. Niemann , 118 Wn. App. at 835 (citing SAC Downtown Ltd. P'ship v. Kahn , 123 Wn.2d 197 , 204, 867 P.2d 605 (1994)). This standard is incorrect.
[2-5]¶10 While the fashioning of the remedy may be reviewed for abuse of discretion, the question of whether equitable relief is appropriate is a question of law. See Puget Sound Nat'l Bank of Tacoma v. Easterday , 56 Wn.2d 937 , 943, 350 P.2d 444 (1960) (finding that the question of whether the trial court exceeded its authority in applying cy pres to be a question of law); cf . Townsend v. Charles Schalkenbach Home for Boys, Inc. , 33 Wn.2d 255 , 205 P.2d 345 (1949).
¶11 The dispute between these parties can best be described as a mixed question of fact and law. While we have previously held that construction of deeds is a matter of law for the court, see Martin v. City of Seattle , 111 Wn.2d 727 , 732, 765 P.2d 257 (1988), we additionally recognize that the primary objective of deed interpretation is to discern the parties' intent. See 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 7.9 (2d ed. 2004); see also Harris v. Ski Park Farms, Inc. , 120 Wn.2d 727 , 739, 844 P.2d 1006 (1993) ("A court should construe a deed grant in a manner which gives effect to the intent of the parties. The intent of the parties is to be derived from the entire instrument and, if ambiguity exists, the situation and circumstances of the parties at the time of the grant are to be considered." (footnote omitted)). In other words, "it is a factual question to determine the intent of
June 2005 Niemann v. Vaughn Cmty. Church 375
154 Wn.2d 365
the parties" with the court then "apply[ing] the rules of law to determine the legal consequences of that intent." Veach v. Culp , 92 Wn.2d 570 , 573, 599 P.2d 526 (1979); see also Sunnyside Valley Irrigation Dist. v. Dickie , 149 Wn.2d 873 , 879-80, 73 P.3d 369 (2003). Applying these principles here, we give deference to the trial court's factual determinations but review the trial court's grant of equitable relief de novo.
Trial Court's Ascertainment of Settlor's Intent
¶12 On partial summary judgment, the trial court held that the 1956 deed created a charitable trust. CP at 362, 367. While this ruling was not appealed, the parties on appeal dispute the settlor's primary intent in deeding the property to VCC and thereby establishing the charitable trust. The Court of Appeals concluded that substantial evidence supported the trial court's finding that the intent of the settlor was "to benefit the new church, VCC, and to provide for its 'success, growth, and endurance as a church, in ministering and spreading the gospel to the evangelical Protestants of the Vaughn community,' regardless of where the ministries were specifically located." Niemann , 118 Wn. App. at 837 -38 (quoting CP at 409).
¶13 Niemann correctly asserts that the creation and administration of a charitable trust lies with the settlor's intent. See generally IVAAUSTIN WAKEMAN SCOTT & WILLIAM FRANKLIN FRATCHER, THE LAW OF TRUSTS § 351 (4th ed. 1989). But as VCC notes, the instrument which gave rise to the charitable trust here lacks the typical trust language and detail. As such, recognizing the various possible interpretations of the deed language, the trial court correctly found ambiguity existed. Finding ambiguity, the court looked to extrinsic evidence to construe the intent of the settlors. See Ski Park Farms, Inc. , 120 Wn.2d at 739 . Here, Niemann again challenges the trial court's findings.
¶14 Niemann asserts that the purpose of the trust, based on the settlor's intent, was to maintain "this specific Church Property . . . for the use of the Protestant Evangelical
376 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
Churches of Vaughn." Reply Br. of Appellant at 5. She bases her contention on two separate pieces of evidence before the trial court: (1) a 1998 affidavit signed by the two living grantors, and (2) ECC's articles of incorporation prior to merger. In the 1998 affidavit, grantors Harmon Van Slyke, Jr., and Richard Kroger stated that they believed the board of trustees of ECC "intended that the stipulations contained in that deed/indenture be binding and permanent, and prevent any use of said land other than for a Protestant evangelical church in the community of Vaughn." Pl.'s Ex. 42. Additionally, they stated that ECC
would never [have] granted [the property] if the Board of Trustees ever understood that the Vaughn Community Church, or its successors . . . would have ever considered or acted to sell or gift this real property to a private party for profit making development; and/or any use other than that as a Protestant evangelical church of the community of Vaughn.
Id . For Niemann's secondary support she cites the ECC articles of incorporation for the proposition that "[t]he purpose of the [ECC] was to hold real property for 'the promotion of regular and permanent meetings for religious worship in the Town of Vaughn, Pierce County, Washington . . . .' " Reply Br. of Appellant at 6 (quoting Pl.'s Ex. 61).
¶15 With regard to the grantors' 1998 affidavit the trial court considered sufficient and substantial evidence to disregard its application. First, while there is no dispute Kroger was a trustee of ECC in 1949 at the time of the merger, the trial court found it "unclear" as to whether Van Slyke, Jr., was also a trustee. CP at 386. Nevertheless, the court accepted him as one of the grantors of the 1956 deed. At trial, Van Slyke, Jr., maintained that ECC intended the church to remain "in that spot" but he also testified that "the intent of the deed was to transfer the property to the Vaughn Community Church." Report of Proceedings at 254. Also at trial, Kroger apparently denied ever believing the grantors intended a restriction on alienation. He testified that "the intent of the deed restriction was not to preserve a particular piece of land or building. The intent was to
June 2005 Niemann v. Vaughn Cmty. Church 377
154 Wn.2d 365
perpetuate a Protestant Evangelical ministry in the Vaughn community and to insure that there was a Protestant Evangelical church available to the people of the Vaughn area." CP at 679. Kroger then testified that he did not know or understand what he was signing in 1998 and that Niemann's attorney actually prepared the affidavit.
¶16 As to the ECC articles of incorporation, Niemann takes the cited statement of purpose out of context. The relevant portion is found in the articles' "Statement of Object and Purpose" and reads, in full:
The object of this corporation shall be to purchase, lease, receive by gift, legacy, bequest or otherwise, real and personal property wherever situated, and to sell, lease, mortgage or otherwise dispose of the same in any and every way that shall be useful to, and assist in, the promotion of the regular and permanent meetings for religious worship in the town of Vaughn, Pierce County, Washington, according to the principles and usages of the Congregational Churches of the United States.
Pl.'s Ex. 61 (emphasis added). Thus, the articles fail to support her contention that the land was to remain and be used in specie.
¶17 The trial court concluded that the grantors had "one overriding and dominant intent in conveying the Subject Property to VCC" and that was "to benefit the new church." CP at 388. Specifically, the court found that "[t]he primary aspect of this purpose was to assist and ensure the continuation of the Protestant evangelical ministries of the Vaughn community through VCC , regardless of where they were specifically located and regardless of the name of that church . . . [and] [t]o see that ministry carried on." CP at 388-89 (emphasis added). While the trial court additionally found a specific intent to ensure that the subject property would be available for the Protestant evangelical churches of Vaughn, this purpose was secondary to the grantors' "overriding and dominant" intent. Id . Based on the above conflicting evidence, we defer to the trial court's findings of fact regarding the grantors' intent and note only that the
378 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
record contains sufficient evidence to support its findings. See Sunnyside Valley , 149 Wn.2d at 879 -80.
Cy Pres Versus Equitable Deviation
[6, 7]¶18 The Court of Appeals upheld the trial court's trust modification applying the doctrines of cy pres and equitable deviation. Niemann , 118 Wn. App. at 838 -41. The similar objective of these doctrines is to best effectuate the settlor's intent and purpose. While noting some differences in the two doctrines, the Court of Appeals failed to recognize the fundamental distinction. Id . at 838-39. The Restatement (Second) of Trusts commentary clarifies this distinction by providing that "[t]he rule stated in this Section [regarding equitable deviation] has to do with the powers and duties of the trustees of charitable trusts with respect to the administration of the trust; it has to do with the methods of accomplishing the purposes of the trust." RESTATEMENT (SECOND) OF TRUSTS § 381 cmt. a (1959). It goes on to distinguish it from cy pres:
The question of the extent to which the court will permit or direct the trustee to apply the trust property to charitable purposes other than the particular charitable purpose designated by the settlor where it is or becomes impossible or illegal or impracticable to carry out the particular purpose involves the doctrine of cy pres. . . .
Id . In sum, courts apply equitable deviation to make changes in the manner in which a charitable trust is carried out while courts apply cy pres in situations where trustees seek to modify or redefine the settlor's specific charitable purpose. Compare Daloia v. Franciscan Health Sys. of Cent. Ohio, Inc. , 1997 Ohio 402, 79 Ohio St. 3d 98, 679 N.E.2d 1084, 1091-92 (due to change in circumstances, permitted "deviation from the express terms of the trust instruments . . . to carry out the settlors' charitable wishes"), with In re Trust Known as Spencer Mem'l Fund , 641 N.W.2d 771, 776 (Iowa 2002) (noting cy pres permits substitution of trust beneficiaries); see also GEORGE GLEASON
June 2005 Niemann v. Vaughn Cmty. Church 379
154 Wn.2d 365
BOGART & GEORGE TAYLOR BOGART, THE LAW OF TRUSTS AND TRUSTEES § 396 (rev. 2d ed. 1977, repl. vol. 1991); 15 AM. JUR. 2D Charities § 155 (2000).
¶19 As there is a singular trust issue before the court, only one doctrine, and not the other, is applicable here. The threshold inquiry therefore is whether the term VCC seeks to modify concerns an "administrative" provision of the trust. VCC, as trustee, does not seek to modify the primary purpose of the trust,«7»apply the funds to an alternative objective, nor substitute beneficiaries. Rather, it hopes to remove the alleged restriction on alienation of the property in order to further the trust's primary purpose. Courts have often classified restrictions on the sale of property as administrative provisions. See , e.g ., Colin McK. Grant Home v. Medlock , 292 S.C. 466, 349 S.E.2d 655, 656-59 (Ct. App. 1986) (where court discerned primary intent of settlors was to provide housing for disadvantaged elderly Presbyterians, court applied deviation to permit sale of land due to declining neighborhood conditions, even though trust required home be located at specific location as a specific monument to one of the settlors).«8»The Restatement commentary regarding deviation also supports this view.
Where sale of land forbidden by terms of trust . If a testator devises land for the purpose of maintaining a school or other charitable institution upon the land, and owing to a change of circumstances it becomes impracticable to maintain the institution on the land, the court may direct or permit the trustee to sell the land and devote the proceeds to the erection and maintenance of the institution on other land, even though the testator in specific words directed that the land should not be
«7» See supra at 376-79.
«8» See also Trustees of First Presbyterian Church in Newark v. Alling , 54 N.J. Super. 141, 148 A.2d 510, 514 (1959) (court permits sale of land held in trust for cemetery purposes due to dilapidated condition of property); Young v. Young , 255 Mich. 173, 237 N.W. 535, 537 (1931) (sale of trust property authorized in spite of testator's prohibition); In re John C. Mercer Home for Disabled Clergymen of Presbyterian Faith , 162 Pa. 232, 29 A. 731, 732-33 (1894) (court permits sale of trust property for benefit of the charity in spite of explicit provisions stating that " 'no part of the said estate . . . shall be sold or disposed of' ").
380 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
sold and that the institution should not be maintained in any other place.
RESTATEMENT (SECOND) OF TRUSTS § 381 cmt. e; accord RESTATE-MENT (THIRD) OF TRUSTS § 66 cmt. b (2003) ("the provision subject to modification or deviation may be one expressly . . . forbidding the sale of certain properties"); see also IIA AUSTIN WAKEMAN SCOTT & WILLIAM FRANKLIN FRATCHER, THE LAW OF TRUSTS § 167, at 287-88 (4th ed. 1987) (in discussing equitable deviation, notes that "even though the settlor has expressly forbidden what the court permits to be done, the theory is that he would not have forbidden it, but on the contrary would have authorized it if he had known of or anticipated the circumstances"). Based on the above considerations, the application of equitable deviation, and not cy pres, is the appropriate issue for this court's analysis.«9»
Trust Deviation Principles
¶20 The Restatement (Second) standard provides a relatively narrow standard for applying deviation:
«9»The doctrine of cy pres is likely inapplicable for a more fundamental reason as well. The Court of Appeals finding that the 1956 deed evidenced a broad, general charitable intent, a prerequisite to the application of cy pres, is questionable. Niemann , 118 Wn. App. at 841 . In Horton v. Board of Education of Methodist Protestant Church , we held that a grantor who provided for a remainder testamentary gift to a university of which he was formerly a trustee, did not evidence a broad charitable intent, but rather a specific gift to a specified institution. 32 Wn.2d 99 , 110-12, 201 P.2d 163 (1948). Thus, the doctrine of cy pres was not applicable. Id . at 114. That same year, the court in Townsend found that the testator, in establishing a home for boys, did not evidence a broad, general charitable intent "but limited his charity to a particular kind of a home for orphaned or abandoned working boys." 33 Wn.2d at 263 . In Townsend , the court held cy pres could not be applied and thus refused to permit any alteration to the trust. Id . Similarly here, the grantors of ECC conveyed the property to VCC for use as a church, a church of which they all became members. It would be difficult to label such a transfer as one evidencing a broad, general charitable intent. On the contrary, akin to Horton and Townsend , it reflects the grantors' desire and intent to convey a specific parcel of property to a particular institution for a specified and restricted purpose. This is neither broad nor general in scope. However, such a finding has no effect on the consideration and application of the equitable deviation doctrine. See BOGART & BOGART , supra , § 396, at 313 ("Deviation from the administrative provisions of a charitable trust can be authorized even though the trust possessed a narrow and not a general trust intent, whereas cy pres might not be used in such a case.").
June 2005 Niemann v. Vaughn Cmty. Church 381
154 Wn.2d 365
The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust.
RESTATEMENT (SECOND) OF TRUSTS § 381, cited with approval in In re Booker , 37 Wn. App. 708 , 715, 682 P.2d 320 (1984). In Booker , the settlor left funds in trust for the construction of a 40-bed rest home in Columbia County. 37 Wn. App. at 709 -11. The Court of Appeals applied this standard in permitting the construction of a 30-bed home, in spite of the contrary and specific trust terms. Id . at 712-13. In doing so, Booker held that a court may permit a trustee to perform acts forbidden by the trust in order to carry out the trust's purpose. Id . at 715 (citing RESTATEMENT (SECOND) OF TRUSTS § 381 cmt. d). For a court to allow deviation under this standard, compliance with the trust terms must "defeat" or "substantially impair" the trust's primary purpose.
[8]¶21 The Restatement 's most recent rendition of the rule grants courts broader discretion to permit deviation. "The court may modify an administrative or distributive provision of a trust, or direct or permit the trustee to deviate from an administrative or distributive provision, if because of circumstances not anticipated by the settlor the modification or deviation will further the purposes of the trust." RESTATEMENT (THIRD) OF TRUSTS § 66(1). While the first prong of the most recent version is substantially similar to the Restatement (Second) , the second prong requires only that "modification or deviation will further the purposes of the trust." Id . By requiring a lower threshold finding for equitable relief, this standard gives courts broader discretion in permitting deviation.«10»
«10»As the trial court and Court of Appeals both failed to clearly distinguish between cy pres and deviation, they applied an "impracticable" standard in permitting trust modification. Niemann , 118 Wn. App. at 839 -40. This term is borrowed from the cy pres standard and is not appropriate here.
382 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
¶22 The Restatement (Third) is consistent with our own case law on trust deviation and reflects our consistent aim of giving effect to the settlor's intent. Cf . Reagh v. Hamilton , 194 Wash. 449 , 456, 78 P.2d 555 (1938); Samuel & Jessie Kenney Presbyterian Home v. State , 174 Wash. 19 , 55-59, 24 P.2d 403 (1933); City of Tacoma v. Tacoma Cemetery , 28 Wash. 238 , 245-47, 68 P. 723 (1902). As such, we adopt it and apply it here.
¶23 Over 80 years ago we held that "[i]n the execution of [trusts in perpetuity] the courts look rather to the intent of the testator than to the method or mode prescribed for its execution." Samuel & Jessie Kenney Presbyterian Home , 174 Wash. at 57-58 (upholding accounting methods allegedly contrary to trust instrument's direction). We have also stated that "[w]hile courts, in construing the provisions of a charitable trust, ordinarily will not deviate from the plan outlined by the testator, they undoubtedly have the power to do so, if it is reasonably necessary in effectuating the primary purpose of the trust." Reagh , 194 Wash. at 456 (upholding trial court's transfer of trust management to a corporation and an increase in number of trustees) (emphasis added) (citing II JAIRUS WARE PERRY, A TREATISE ON THE LAW OF TRUSTS AND TRUSTEES § 729a (7th ed. 1929)). The court premised its holding on its finding that "the purpose of the trust will best be subserved" and that such alteration "does [not do] violence to the primary object of the testator." Id . (emphasis added). Thus, recognizing that trust settlors may possess a myriad of intentions in settling a trust, the court must concern itself with their primary objective.
¶24 The commentary accompanying the Restatements also provides insight into court's application of equitable deviation. It is important to recognize that the objective of equitable deviation is not to disregard the intention of the settlor, but rather to "give effect to what the settlor's intent probably would have been had the circumstances in question been anticipated." RESTATEMENT (THIRD) OF TRUSTS § 66 cmt. a. Deviation may be allowed with regards to the "provisions governing the management or administration of the trust estate." Id . at cmt. b. Both versions contemplate
June 2005 Niemann v. Vaughn Cmty. Church 383
154 Wn.2d 365
deviation from express terms either directing or forbidding the sale of certain properties. See also RESTATEMENT (SECOND) OF TRUSTS § 381 cmts. d, e.
¶25 The party seeking permission to deviate from the trust terms has the burden of showing either changed circumstances or that relevant circumstances were unknown to the settlor. RESTATEMENT (THIRD) OF TRUSTS § 66 cmt. b. A respondent can then refute this showing. Upon a finding of unanticipated changed circumstances, the court must then determine whether a proposed modification or deviation "would tend to advance (or, instead, possibly detract from) the trust purposes." Id.
III
¶26 Finding equitable deviation rather than cy pres applicable here, we next apply the appropriate standard to discern its permissibility according to the facts of the case. As set forth above, this is decided as a matter of law. Easterday , 56 Wn.2d at 943 .
[9, 10]¶27 The first prong of the Restatement (Third) of Trusts ' standard requires a finding of changed, unanticipated circumstances. RESTATEMENT (THIRD) OF TRUSTS § 66. The trial court heard testimony and made several significant factual determinations supporting a finding of present-day material "circumstances not anticipated by the settlor." Id . These include significant congregational growth, limitations with the building and property, stricter development and building codes, drastic changes in the "community of Vaughn," including growth, expansion, and relocation of its business core, and finally changes in the attitudes, expectations, and needs of parishioners compared with the 1950s. These findings support the conclusion that present day conditions present "circumstances not anticipated by the settlor[s]" in the maintenance of the church and its service to the Vaughn community.
¶28 Looking to the second prong, as set forth in Restatement (Third) , for a court to permit deviation it must
384 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
determine that the "deviation will further the purposes of the trust." Id . Niemann's contention that the current church location can and is being used for church functions, and thus VCC or another church could continue to occupy these premises, fails to directly address the proper legal standard and issue before the court.
¶29 VCC proffered substantial evidence showing the church's mission, and thus the trust's primary purpose, would in fact be substantially impaired by continued habitation of the specific parcel of property. Niemann disputes this finding and points to evidence in the record showing that nothing was physically wrong with the church property and that it could continue to be used as a viable church. When extrinsic evidence allows for conflicting reasonable inferences to be drawn, we generally defer to the trial court's determinations. See Berg v. Hudesman , 115 Wn.2d 657 , 667-68, 801 P.2d 222 (1990). In response to this, the trial court made several findings of fact, notably:
25. . . . The Court accepts the clear testimony and, therefore, finds that the goal of an evangelical ministry is to spread the gospel at home and more broadly.
26. The Court further finds that growth is an essential and necessary part of a successful evangelical church. The Grantors of the Subject Property, and, indeed the plaintiff and many of plaintiff's witnesses, subscribed to growth being one of the obligations placed upon an evangelical Christian church.
. . . .
28. There are many problems with the building and the property itself which make it impracticable for VCC to carry out its obligations under the Charitable Trust. For example, there are parking problems. . . . [Court goes on in detail regarding limitations of parking.]
29. There are problems with the church building itself . . . [with the current conditions] inadequate and problematic for this church at this site. . . .
. . . .
June 2005 Niemann v. Vaughn Cmty. Church 385
154 Wn.2d 365
32. . . . The expectations of these parishioners, and those who make VCC their home church, are different from those of VCC's congregation in the 1940s and 1950s.
CP at 390-92.
¶30 The trial court determined that the settlor's primary intent was to convey the property to VCC, and its primary purpose in doing so was to "ensure VCC's success, growth, and endurance as a church, in ministering and spreading the gospel to the evangelical Protestants of the Vaughn community." CP at 388. The housing of VCC at the specific parcel of property, at the time, may have seemed a necessary means of securing this intent. However, the primary trust purpose remained the same: the success of VCC as a church and the spread of the gospel within the community of Vaughn. The trial court made sufficient findings to support its conclusion that permitting deviation was reasonably necessary to effectuate and further the trust's primary purpose.«11»Our conclusion in Easterday applies equally here: "[t]he only change that has come about by virtue of the trial court's judgment is in the means of administering the trust . . . [t]he purpose of the trust remains the same." 56 Wn.2d at 950 .
¶31 Based on substantial evidence introduced at trial, we now find, as a matter of law, that changed, unanticipated circumstances exist that are material to the trust's purpose, and permitting deviation from the alleged restriction on alienation would in fact further the primary purpose of the trust. As such, the facts of this case permit deviation.
[11]¶32 Turning to the remedy granted by the trial court, we find no error. Trial courts have broad discretionary power in fashioning equitable remedies. See SAC Downtown Ltd. P'ship , 123 Wn.2d 197 . There is no evidence the trial court abused its discretion in fashioning its remedy nor that it acted in an arbitrary or capricious manner.«12» Cf .
«11» See supra at 376-79.
«12»The trial court concluded that:
VCC may sell the Subject Property to any person or entity, free of the restriction in the 1956 Deed, to wit: "for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn, Washington." VCC is not required by this judgment to sell the Subject Property. However, if VCC does sell the Subject Property, the proceeds of any such sale shall remain subject to the Charitable Trust, and VCC must use those proceeds to provide a new church facility serving the Protestant evangelical community of Vaughn. VCC must locate any such new church within Pierce County, Washington, south of the Kitsap County boundary, but north of Longbranch, at any place within the width of the Key Peninsula.
CP at 381. The trial court based its deviation on the finding that a "church located in any place on the Key Peninsula can serve the centrally located Vaughn community." CP at 394. Relevant here, the ruling effectively eradicates the alleged restriction in the 1956 deed.
386 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
Easterday , 56 Wn.2d at 947 -48. To the contrary it heard seven days of testimony, heard from 14 witnesses, and considered over 100 pieces of documentary evidence. No abuse of discretion is evident.«13»
IV
¶33 In conclusion, we affirm the Court of Appeals grant of equitable relief, modifying the charitable trust and permitting the sale of the church property. In so doing, we hold that deviation is permissible when, due to circumstances unanticipated by the settlor, modification of an administrative requirement would advance the trust's purpose. The trial court, as a matter of law, correctly permitted deviation from an administrative trust provision, finding circumstances unanticipated by the settlor and that deviation furthered the charitable trust's primary purpose.
ALEXANDER, C.J.; C. JOHNSON, SANDERS, CHAMBERS, OWENS, and FAIRHURST , JJ.; and IRELAND , J. Pro Tem., concur.
¶34 MADSEN, J. (concurring in part, dissenting in part) - I concur with the majority that Vaughn Community Church (VCC) has the right to sell the church property at issue. However, I would hold that the 1956 deed conveyed a fee simple absolute in the property. The majority's opinion
«13»Niemann's additional argument that VCC would be in breach of its fiduciary duty as trustee of a charitable trust if permitted to sell the subject property is rendered moot by this opinion.
June 2005 Niemann v. Vaughn Cmty. Church 387
154 Wn.2d 365
affirming the trial court's restrictions on the property violates two fundamental, long-standing principles of law and policy: (1) the free alienation of property and (2) the separation of church and state. Accordingly, I respectfully concur with the majority's result that VCC can sell the property and dissent as to the limitation on use of the proceeds imposed by the trial court.
ANALYSIS
¶35 Washington, like other states, encourages the free alienation of property. Richardson v. Danson , 44 Wn.2d 760 , 766, 270 P.2d 802 (1954) ("the law seeks to encourage the ready alienation of property and to discourage restraints upon alienation which would result in withdrawing such property from the ordinary channels of trade"). See also 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 1.26, at 50 (2d ed. 2004) ("The underlying policy is that interests in land should be allowed to move freely in commerce."). The trial court's unwarranted stretch to find that the 1956 deed created a charitable trust violates the public policy favoring free alienation, and the majority does it further violence by affirming trial court intervention.
¶36 More alarming, the majority's opinion significantly conflicts with the constitutional prohibition that bars courts from engaging in analysis that entangles the state in private religious matters. Southside Tabernacle v. Pentecostal Church of God, 32 Wn. App. 814 , 817, 650 P.2d 231 (1982) ("we must first decide on an analysis which does not violate the First Amendment prohibition against a state entangling itself in matters of church doctrine and practice"); Presbytery of Seattle, Inc. v. Rohrbaugh , 79 Wn.2d 367 , 485 P.2d 615 (1971). See also Note, Judicial Intervention in Disputes Over the Use of Church Property , 75 HARV. L. REV . 1142, 1142-43 (1962) ("Most religious controversies that culminate in litigation concern the administration of church property. . . . Judicial review of the internal affairs
388 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
of churches poses peculiar and delicate problems, involving not only the possible anomaly of judicial interpretation of religious doctrine but also one of the most deeply felt and sensitive policies of the American constitutional scheme - the separation of church and state." (footnotes omitted)).
¶37 In Southside Tabernacle, in a dispute over the ownership of property between a local church and its national church, the Court of Appeals sagely warned against courts becoming entangled in matters of church doctrine and practice under the guise of resolving property disputes:
"[T]he First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. . . . But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. . . . "
32 Wn. App. at 817 -18 (quoting Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church , 393 U.S. 440, 449, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969)).
¶38 In affirming the trial court's decision, the majority not only sanctions the trial court's prior entanglement in the private religious matters of VCC, it all but ensures future court entanglement. Under the trial court's ruling, affirmed by the majority, VCC is restricted both as to the location of a new church and as to the use of all of the proceeds from the sale of the church property. Majority at 386. The trial court concluded and the majority affirms that,
"if VCC does sell the Subject Property, the proceeds of any such sale shall remain subject to the Charitable Trust, and VCC
June 2005 Niemann v. Vaughn Cmty. Church 389
154 Wn.2d 365
must use those proceeds to provide a new church facility serving the Protestant evangelical community of Vaughn. VCC must locate any such new church within Pierce County, Washington, south of the Kitsap County boundary, but north of Longbranch, at any place within the width of the Key Peninsula."
Majority at 385-86 n.12 (quoting Clerk's Papers (CP) at 381). What happens if the members of VCC decide that some of the proceeds from the sale of the property should be spent on missionary work or if they find property that would be better suited for a new church outside of the boundaries set by the trial court? What happens if VCC determines that a portion of the proceeds from the sale of the property should be spent to send its youth to a youth bible camp that is not located on church property? Under the majority's view, VCC would be obligated to return to court to ask permission for such a "deviation," notwithstanding the fact that under its governmental structure, VCC has the authority to take such action if approved by a majority of the members.
¶39 This case can be readily resolved without government involvement in religious matters, involvement that the facts and the law do not justify in any event. Unfortunately, however, the majority concludes, "[w]hile there is certain doubt as to whether the trial court properly interpreted the deed and its subsequent finding of a charitable trust, we refrain from reviewing these unappealed orders here." Majority at 373 n.6. Instead, the court should exercise its inherent review authority.
¶40 While ordinarily we will decide a case only on the basis of issues raised in the petition for review and the answer, RAP 13.7(b), this court has the authority to determine whether a matter is properly before the court, to perform those acts which are proper to secure fair and orderly review, and to waive the rules of appellate procedure when necessary to "serve the ends of justice." RAP 1.2(c), 7.3; see Mader v. Health Care Auth. , 149 Wn.2d 458 , 467-68, 70 P.3d 931 (2003); State v. Aho , 137 Wn.2d 736 ,
390 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
740-41, 975 P.2d 512 (1999); Kruse v. Hemp , 121 Wn.2d 715 , 721, 853 P.2d 1373 (1993). The issue of whether the deed created a charitable trust was fully briefed by the parties for the trial court and, therefore, deciding this issue will prejudice neither party.«14»In fact, justice demands that this court review the issue.
I. Church/State Entanglement
¶41 A two week bench trial was held in this case because the trial court erroneously found that a "trust" was created by the 1956 deed. Accordingly, it was necessary for the trial court to determine the purpose of the trust and whether the current circumstances justified VCC's decision to sell its property and build a new church.
¶42 The parties submitted numerous exhibits and provided lengthy testimony. Over 50 years of documentation was submitted detailing all aspects of the church's activities. See , e.g ., Exs. 6-7, 11-16, 18-19, 21-23, 22-38, 60, 120. For example, membership reports detailed the number of active members for each year, the number of new members received by baptism and by letter, and the number of members lost during the year. See , e.g ., Exs. 6-7, 11. Yearly attendance numbers noting the members' attendance at Sunday School, Morning Worship, Sunday Evening Worship, Youth and Prayer Attendance, Ladies Bible Study, and Vacation Bible School were produced. Id. Over 50 years of pastor reports were submitted providing the total number of calls made by the pastor to homes in the community, the number of sermons delivered, the number of walks through the valley of the shadows with families, the number of special services attended outside of Vaughn, the number of marriages occurring at the church, and the number of conferences and classes attended. See , e.g ., Ex. 13.
¶43 Additionally, the record contains reports by the Board of Trustees describing 50 years of yearly mainte
«14» See Aho , 137 Wn.2d at 741 ; Falk v. Keene Corp. , 113 Wn.2d 645 , 659, 782 P.2d 974 (1989); Alverado v. Wash. Pub. Power Supply Sys ., 111 Wn.2d 424 , 430, 759 P.2d 427 (1988).
June 2005 Niemann v. Vaughn Cmty. Church 391
154 Wn.2d 365
nance and upkeep of the church building and property each year. Id. Treasury reports and annual budgets submitted provide the yearly expenditures for various church expenses such as salary, custodian, missions, bank loan, insurance, office supplies, heat, electricity, pension, and education. Id.
¶44 The pastor also discussed the composition and needs of its music ministry and VCC's rich history of providing mission help both at home and abroad. Id. VCC currently supports missionaries in such places as Brazil, Turkey, Uzbekistan, and Central Asia. CP at 662-63. VCC supports orphan care in the Ukraine and staff at an eye hospital in Pakistan. Id. VCC also helps to build houses and churches in Mexico and supports the training of missionaries for future work in Africa. Id .
¶45 The trial court's findings included the following:
24. Since the time period when the Christian Church and [the Emmanuel Congregational Church of Vaughn (ECC)] merged and the Subject Property was conveyed to VCC, VCC's attendance has grown substantially. Between 1982 and 1985, VCC was remodeled and expanded to its current condition. The remodeling included expanding the sanctuary, adding a fellowship hall, adding classrooms, bathrooms and office space. During the expansion the number of attendees at church grew significantly. Although VCC's attendance peaked in the 1980's, it is again approaching those levels. The Subject Property is approximately 1.6 acres in size. The sanctuary has 185 seats. The building is 9,512 square feet. The current parking area could be reconfigured and striped to hold up to 77 cars.
25. Allowing VCC to expand to meet the goals of a modern evangelical church is consistent with sound administration of the trust corpus. The testimony made clear that VCC could continue to use the Subject Property in its current condition, or with some modifications, but in doing so its members only continue to experience frustration at their inability to attract and serve the growing number of members in the community of Vaughn as well as the Key Peninsula area as a whole. The Court accepts the clear testimony and, therefore, finds that the goal of an evangelical ministry is to spread the gospel at home and more broadly.
392 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
26. The Court further finds that growth is an essential and necessary part of a successful evangelical church. The Grantors of the Subject Property, and, indeed, the plaintiff and many of plaintiff's witnesses, subscribed to growth as being one of the obligations placed upon an evangelical Christian church.
27. With respect to the Subject Property's suitability to serve the needs of VCC in effecting the purpose of the Charitable Trust, the Court finds that the trustee, VCC, and its congregation, have determined that it is impracticable to effect the purpose of the Charitable Trust on the Subject Property.
28. There are many problems with the building and the property itself which make it impracticable for VCC to carry out its obligations under the Charitable Trust. For example, there are parking problems. There is a greater demand for parking today, than there was 50 years ago (and even 20 years ago) due to societal changes. There are more cars per household now, and in some households every member of the family drives a car. This Court takes judicial notice of the fact circumstances were different in 1949 and for several decades thereafter. Whether there are two or a dozen parking spots left outside this church on any particular Sunday morning during services does not mean there is not a parking problem. Parking needs to be of a nature where one can feel like there is free access to come and go to the property. Double parking in rows does not alleviate parking problems.
29. There are problems with the church building itself. The building must be practical and of a size reasonably sufficient for use in the present format of a church. Restroom space must be adequate and accessible to the disabled. Classrooms must be accessible and adequate for the members of the Church and those to whom the Church is trying to reach and minister. Seating availability and arrangements in the church sanctuary must be suitable for families to come and sit together. Activities for youth and children must be able to be accommodated. Circulation patterns within the church facilities must be safe, efficient, and inviting. The Court finds that all of these conditions are inadequate and problematic for this church at this site, thereby making it impracticable for use as a modern church.
30. There are stricter development regulations than those in force at the time of this conveyance. There are stricter sewage
June 2005 Niemann v. Vaughn Cmty. Church 393
154 Wn.2d 365
disposal requirements now. Fire codes have changed. There has also been an increase in the value and acquisition cost of adjoining and nearby properties, which, if acquired, could potentially alleviate some of the problems associated with the impracticability of the Subject Property. These reasons further illustrate the impracticability of remodeling or adding-on to the existing church buildings in light of the limitations inherent in the Subject Property related to its size and location. Thus, VCC must relocate and does not have the adequate funds to build the desired church facilities elsewhere without first selling the property currently held in trust.
. . . .
32. There are other circumstances which make the Subject Property impracticable for a modern church (which is what the present congregation of VCC has indicated it wants). The expectations of these parishioners, and those who would make VCC their home church, are different from those of VCC's congregation in the 1940s and 1950s. Churches function in vastly different ways from churches 50 years ago, when there was a more informal assistance network and fewer single parent families with limited income, no transportation, and no safety net. The role the church plays in today's society has changed.
33. Moreover, there has been a proliferation of new churches in the Key Peninsula area, altering the expectations of parishioners that they place upon their home church and impacting their choice of a home church.
34. Thus, this Court finds that what was suitable for the continued use of a church as recently as the 1980s is different now. VCC as trustee of this charitable trust must deal with today's issues if it is to remain viable. VCC cannot be expected to satisfy today's needs in providing a Protestant evangelical ministry to the community of Vaughn with limitations imposed in the 1950s or even the 1980s. These circumstances, in the year 2002, make the continued and permanent use of this facility, which has been remodeled twice since 1949, impracticable for use as a modern church.
CP at 390-92.
¶46 This breathtaking intrusion into the activities, belief and mission of the church and its members was neces
394 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
sary to justify deviation from the trust unnecessarily created by the trial court. Instead of rejecting this intrusion and unnecessary exercise, the majority's opinion encourages this invasion and discourages the free alienation of the church's property as intended by the 1956 deed.
II. Free Alienation of Property
¶47 By statute and by law, conveyances of fee simple absolute, the largest estates, are favored. Richardson , 44 Wn.2d 760 ; 17 STOEBUCK & WEAVER , supra , § 1.3, at 5. Accordingly, "in order to make an estate conditional, the words used in the deed must clearly indicate such an intent." King County v. Hanson Inv. Co., 34 Wn.2d 112 , 119, 208 P.2d 113 (1949). It is well settled that "[b]efore a trust will be found to exist, there must be a clear manifestation thereof." Hoffman v. Tieton View Cmty. Methodist Episcopal Church , 33 Wn.2d 716 , 726, 207 P.2d 699 (1949). The evidence to establish a trust must be clear and satisfactory. Id. (citing Kinney v. McCall , 57 Wash. 545 , 107 P. 385 (1910); Lanigan v. Miles , 102 Wash. 82 , 172 P. 894 (1918)). This means that the instrument manifests an intention to create a trust. Id.
¶48 In Hoffman , a local church argued that a trust relationship was created by a lease of property on which a church had built a parsonage. In analyzing the lease to ascertain whether a trust relationship was created, the court set out the following principles:
The entire instrument and its general purpose and scope may, and where necessary should, be considered, and its various parts compared. The instrument should be construed in the light of the situation and circumstances surrounding its execution.
Id. at 726 (citing 54 AM. JUR. 63, 64, § 53).
¶49 In language similar to that of the deed in this case, under the terms of the lease in Hoffman , the property at issue was " 'never [to] be used for any other than church, charity, literary or community purposes.' " Id. at 724. The
June 2005 Niemann v. Vaughn Cmty. Church 395
154 Wn.2d 365
court rejected the church's theory that this language created a trust, finding that the "instrument was an ordinary short-form lease, for a term of years with a nominal rental. It contained the usual covenants for use and occupancy, with a provision for re-entry on breach of the covenants." Id . at 727. The court concluded that the instrument was a lease and not a trust instrument, entered into primarily for the purpose of providing ground for the erection of a parsonage for a minister of the Methodist Episcopal Church, thereafter to be assigned to the local church. Id.
¶50 In this case, taking all of the provisions of the deed into consideration, as well as the circumstances surrounding the conveyance of the church property in 1956, there is nothing to suggest that the parties intended to convey this property subject to a trust. As in Hoffman, the instrument contains no language common in trust agreements. Rather, evaluating the language of the deed in this case there can be no doubt that, similar to the earlier 1914 deed, the 1956 deed conveyed to VCC all property interests held by ECC - a fee simple absolute.
¶51 The granting clause provides:
NOW, THEREFORE, in consideration of the premises, the Party of the First Part does, by these presents, convey and quit claim to Vaughn Community Church, a Washington corporation, all its interest in the following described real estate, situate in Pierce County, Washington, to-wit:
[legal description of the property]
Ex. 92 (emphasis added). Significantly, the granting clause did not convey and quit claim the property "in trust" to VCC. Rather, it conveyed and quit claimed the property directly to VCC. When transferring property by "quit claim," the conveyance is affected by a quit claim deed. See , e.g ., 17 STOEBUCK & WEAVER , supra , § 7.2, at 472 (a quit claim deed transfers all legal and equitable rights the grantor may have in the described land). It is also undisputed that prior to the conveyance, ECC, like all prior churches in custody of the property, held the property in fee simple
396 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
absolute, free of any trust, restriction, or limitation. See , e.g ., Exs. 88-93.
¶52 The only possible language that could potentially indicate a trust, "to have and to hold for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn, Washington" in the habendum clause must be read in the context of the rest of the document. The recitals provided that ECC, a Protestant Evangelical Church in Vaughn, voted to merge with the Christian Church of Vaughn, the other Protestant Evangelical Church in Vaughn. The church property was to be used (and in fact was used for over six years prior to the conveyance in 1956) by two formerly independent Protestant Evangelical Churches operating in Vaughn. When entities combine and merge, all property interests held by the prior entities are transferred to the new entity, a successor in interest to the prior entity or entities. See , e.g ., RCW 24.03.210 (4) (providing in part that a surviving or new corporation shall possess all property of each merging or consolidating corporation, without further act or deed); Wilkenson v. Rector, Wardens & Vestry of St. Luke's Parish of Tacoma , 176 Wash. 377 , 29 P.2d 748 (1934) (determining that it was proper for the lower court to direct a conveyance of property to a new church that resulted from the merger of two churches).
¶53 It is well settled that courts do not "reach" to find trusts when circumstances do not justify the need for a trust. For example, in Young Women's Christian Ass'n of Asheville, North Carolina, Inc. v. Morgan , 281 N.C. 485, 189 S.E.2d 169 (1972), a testator conveyed property to the Young Women's Christian Association (YWCA), a charitable corporation, by will for the purpose of maintaining the Moorhead House, a facility supported by the YWCA. In reaching its conclusion that the will did not create a trust, the court noted that a trust was not necessary because the bequest was for the principal purpose set forth in the YWCA's charter. Thus, the YWCA, as a charitable organization governed by state law, was already obligated to carry out the purpose of the bequest. As a result, the YWCA held
June 2005 Niemann v. Vaughn Cmty. Church 397
154 Wn.2d 365
the bequest in fee without a trust. Accord Zabel v. Stewart, 153 Kan. 272, 109 P.2d 177, 178-81 (1941) (the provisions of a bequest to a religious corporation "for the purpose of building a church building" and "for the purpose of furnishing said church" did not create a trust in any legal sense because the gift was to aid the religious corporation in carrying out the purposes for which it was founded); Williams v. Thompson , 216 N.C. 292, 4 S.E.2d 609 (1939) (the language in the will indicating that the property was to be used as a parsonage for the minister of the church and to keeping and care, cannot be held to have the effect of impressing a trust upon the legal title).
¶54 In this case, taking all of the provisions of the deed into consideration, it is clear that the deed did not create a trust, and there is no reason whatsoever for the court to "reach" to find a trust. As discussed above, the conveyance of this property was pursuant to a merger of two churches. ECC did not convey the property under a will in which failure to find a trust would result in intestacy or the property not being conveyed to a charity. VCC is a charitable organization created and organized for the very purpose of providing church services in the community of Vaughn. See , e.g ., Ex. 5 (containing VCC's articles of incorporation).
¶55 As I conclude that the deed did not create a charitable trust, the next step is to determine the type of property interest conveyed. The construction of deeds is a matter of law for the courts. Martin v. City of Seattle , 111 Wn.2d 727 , 765 P.2d 257 (1988). If the words and provisions in the deed are doubtful, they are to be taken most strongly against the grantor. Cook v. Hensler , 57 Wash. 392 , 107 P. 178 (1910). If the words and provisions are susceptible of different constructions, the court may take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted at the time of making the grant, for the purpose of ascertaining the probable intent. Cook , 57 Wash. at 399.
398 Niemann v. Vaughn Cmty. Church June 2005
154 Wn.2d 365
¶56 Turning to this deed, the granting clause provides that ECC does "convey and quit claim to [VCC] all its interest in the following described real estate, situate in Pierce County, Washington," the church property. Exs. 10, 92. As discussed above, this deed conveys all legal and equitable rights and interests the grantor may have in the described land. 17 STOEBUCK & WEAVER , supra , § 7.2, at 472. The granting clause does not contain any limitation or condition indicating that ECC retains any rights in the property. Read alone, the granting clause indicates that VCC received all of ECC's interest (a fee simple absolute interest) in the property. As mentioned earlier, it is undisputed that prior to the transfer, ECC owned the property in fee simple absolute. See , e.g ., Exs. 88-93.
¶57 The recital clauses and the habendum clause are consistent with the granting clause's conveyance of a fee simple absolute interest in the property. One recital clause provided that ECC voted to merge with the Christian Church of Vaughn and form a new church. When an entity merges into another entity or two entities create a new entity, all property interests owned by the prior corporations are conveyed in full. See , e.g ., RCW 24.03.210 (4); Wilkenson , 176 Wash. 377 .
¶58 The habendum clause provides VCC has the property "[to have and to hold] said property for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn, Washington." Exs. 10, 92. A separate recital clause provides that on April 5, 1949, the Board of Trustees of ECC passed a resolution that "[ECC] transfer the church property to [VCC], with the stipulation that said property shall forever remain for the perpetual use of Protestant Evangelical Churches of the Community of Vaughn." Id . The term "perpetual" indicates permanent ownership. Neither the habendum clause nor the recital provide for a right of reversion in the event VCC does not use the property for Protestant Evangelical Churches of the Community of Vaughn, Washington. Indeed, in the context of a merger, a reversion makes no sense. After the merger, ECC no longer
June 2005 Niemann v. Vaughn Cmty. Church 399
154 Wn.2d 365
exists. Its members have all become members of the new church. Most of its trustees have become trustees in the new church.
¶59 The deed is a standard quit claim deed in which ECC transferred all of its property interest, a fee simple absolute property interest, in the property to VCC, the successor entity to ECC. This conclusion effectuates the intent of the deed in its entirety. It also accords with the principle that free alienation of property is favored and that unless a deed clearly indicates conveyance of a conditional estate, a fee simple absolute is conveyed.
¶60 Furthermore, the deed does not create a restrictive covenant limiting VCC's use of the property. Early in the litigation, Niemann argued that the habendum clause created a running covenant limiting VCC's use of the property. Niemann later abandoned this reasoning, conceding that it would be legally impossible for ECC to create a restrictive covenant. CP at 97 (citing 17 STOEBUCK & WEAVER , supra , § 3.2, at 125). I agree. In this case, ECC could not have created a restrictive covenant on its own land. See , e.g ., 17 STOEBUCK & WEAVER , supra , § 3.2 ("A landowner cannot by himself place a running covenant on his own land, for the same reason that one cannot make a contract with himself or create an easement on his own land."); § 3.3, at 131; § 3.12, at 151 (restrictive covenants must "touch and concern" the land, needing both a benefited and a burdened parcel); accord WILLIAM B. STOEBUCK & DALE A. WHITMAN, THE LAW OF PROPERTY § 8.15, at 475-80; § 8.24, at 495-97 (3d ed. 2000); 1515-1519 Lakeview Blvd. Condo. Ass'n v. Apartment Sales Corp ., 146 Wn.2d 194 , 43 P.3d 1233 (2002). Accordingly, the deed conveyed a fee simple absolute interest in the property to VCC.
¶61 I would remand this case to the trial court for entry of judgment for VCC. No. 71780-0. En Banc.]
Argued June 3, 2004. Decided June 16, 2005.
In the Matter of the Personal Restraint of DWAYNE WOODS , Petitioner .
[1] Personal Restraint - Grounds - In General. To prevail on a personal restraint petition, the petitioner must establish (1) constitutional error resulting in actual and substantial prejudice or (2) nonconstitutional error resulting in a fundamental defect inherently resulting in a complete miscarriage of justice. This threshold requirement is necessary to preserve the societal interest in finality, economy, and integrity of the trial process. It also recognizes that the petitioner has had an opportunity to obtain judicial review by appeal.
[2] Personal Restraint - Scope - Issue Not Raised on Appeal - New Issue Discovered After Appeal - Standard of Review - Appeal Standard. A new issue raised in a personal restraint petition that was discovered after the appeal and could not have been raised on appeal may be reviewed under the more lenient standard of review applicable on appeal.
[3] Constitutional Law - Due Process - Deprivation - Test. A constitutional due process violation does not occur unless a person has been deprived of a protected interest in life, liberty, or property.
[4] Constitutional Law - Due Process - Liberty Interest - Basis - In General. Aside from the due process clause itself, a liberty interest protected by the due process guaranty may be created by a statute or regulation.
[5] Criminal Law - Punishment - Death Penalty - Review - Collateral Attack - Indigent Defendant - Expert or Investigative Services - Public Expense - Authority. The provision of expert or investigative services at public expense to a personal restraint petitioner seeking relief from a conviction for a capital offense or sentence of death is not statutorily required but may be allowed under RAP 16.26 and 16.27 if there is a substantial reason to believe the services will produce information that would support relief. Absent a substantial reason for such services, provision of the services at public expense is not authorized. There is no authority for the appointment of investigators or experts to identify or develop grounds for a collateral challenge to the conviction or sentence.[6] Criminal Law - Punishment - Death Penalty - Review - Collateral Attack - Indigent Defendant - Expert or Investigative Services - Public Expense - Due Process. An indigent offender convicted of a capital crime and sentenced to death does not have a protected liberty interest in having the public pay the expenses of experts, investigators, and discovery for making a
June 2005 In re Pers. Restraint of Woods 401
154 Wn.2d 400
collateral challenge to the conviction or sentence if the offender has not satisfied the requirements of RAP 16.26 and 16.27 of showing a substantial reason to believe the services will produce information that would support relief.
[7] Criminal Law - Punishment - Death Penalty - Review - Collateral Attack - Indigent Defendant - Expert or Investigative Services - Public Expense - Equal Protection. An indigent offender convicted of a capital crime and sentenced to death is not deprived of the equal protection of the laws by the partial denial of a request to have the public pay the expenses of experts, investigators, and discovery for making a collateral challenge to the conviction or sentence if the denial is based on the offender's failure to satisfy the requirements of RAP 16.26 and 16.27 of showing a substantial reason to believe the services will produce information that would support relief.
[8] Criminal Law - Punishment - Death Penalty - Review - Collateral Attack - Indigent Defendant - Attorney Expenses - Scope. An indigent offender convicted of a capital crime and sentenced to death is not necessarily entitled to have the public pay for all of the hours spent by counsel to complete and file a personal restraint petition on behalf of the offender. Recompense may be denied for any additional hours worked by counsel, even where additional time was granted by the court to complete the petition, if a previously authorized payment for a specified number of hours should have been sufficient.
[9] Jury - Misconduct - Prejudice - Burden of Proof - Collateral Review. On collateral review of a criminal proceeding, when an unauthorized jury communication is found to have taken place, the petitioner has the burden of establishing that the error more likely than not was the cause of actual prejudice. This "more likely than not" standard is equivalent to preponderance of the evidence.
[10] Jury - Misconduct - Alternate Juror - Prejudice - Excusal of Juror - Effect. A criminal defendant is not prejudiced by an alternate juror's misconduct if the juror is excused before jury deliberations begin and no actual or substantial harm is shown.
[11] Criminal Law - Trial - Irregularities - Courtroom Arrangement - Prejudice - Determination. When a convicted defendant alleges that a courtroom arrangement was inherently prejudicial to the right to a fair trial, the question to be answered is whether an unacceptable risk was presented of impermissible factors coming into play. The reviewing court must look at the courtroom scene presented to the jury and determine whether what the jury saw was so inherently prejudicial as to pose an unacceptable threat to the defendant's right to a fair trial.
402 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
[12] Criminal Law - Trial - Irregularities - Victim Remembrance Ribbons Worn by Spectators - Prejudice - Necessity. A criminal defendant is not necessarily denied the right to a fair trial or to confront witnesses where friends and family members of the crime victim appear in court wearing remembrance ribbons of a particular color or pattern of colors if the ribbons do not carry any inscription and do not otherwise express any conclusion about the defendant's guilt or innocence. A reviewing court will not find prejudice to the right to a fair trial if the defendant never sought a cautionary jury instruction from the trial court and there is nothing in the record to suggest that any juror was influenced by the ribbon wearing.
[13] Criminal Law - Trial - Security - Physical Restraint of Defendant - Outside of Presence of Jury - Effect. A conviction will not be overturned based on a claimed violation of the defendant's due process right to appear in court free from restraints if the record shows that the jury was not in the courtroom at any time the defendant was in restraints and no juror observed the defendant in restraints.
[14] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Constitutional Right - State and Federal Provisions. Both the Sixth Amendment and Const. art. I, § 22 guarantee to a criminal defendant the right to effective assistance of counsel.
[15] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Test. A convicted defendant claiming ineffective assistance of trial counsel must show (1) that counsel's performance was deficient and (2) that the deficient performance was prejudicial to the defense. Deficient performance is not shown by matters relating to trial strategy or tactics. The defense is prejudiced by counsel's deficient performance if counsel's errors were so serious as to deprive the defendant of a fair trial. A fair trial is one having a reliable result. The prejudice element is proved when there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. If either element of the test is not met, the claim fails.
[16] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Present Defense - Diminished Capacity - Conflict With Alibi Defense - Tactical Decision. Defense counsel's pursuit of an alibi defense rather than a diminished capacity defense may constitute a reasonable tactical decision, particularly if the defendant continually denies involvement in the crimes charged.[17] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Present Defense - Diminished Capacity - First Degree Murder - Strong Evidence of Premeditation. In a prosecution for first degree murder, defense
June 2005 In re Pers. Restraint of Woods 403
154 Wn.2d 400
counsel's failure to investigate a diminished capacity defense does not constitute deficient performance if the evidence of premeditation by the defendant is strong.
[18] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Obtain Impeaching Evidence - Record Sufficient To Impeach. Defense counsel's failure to obtain a certified copy of a judgment and conviction for the purpose of impeaching a witness for the State with a prior conviction of a crime of dishonesty is not deficient performance if evidence of the conviction, and other convictions of an impeaching nature, is otherwise brought before the jury.
[19] Criminal Law - Evidence - Aliases - Relevance. Evidence of a criminal defendant's alias may be entered into the trial record if the alias or other name is relevant and material to prove or disprove an issue in the case, such as identity.
[20] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Request Removal of Alias From Pleadings - Relevance to Prosecution. Defense counsel's failure to request that the defendant's alias be removed from certain pleadings is not deficient performance if evidence of the defendant's alias or other name is relevant and material to prove or disprove an issue in the case, such as identity.
[21] Homicide - First Degree Murder - Aggravated First Degree Murder - Aggravating Circumstances - Commission of Another Crime - Rape of Another. Rape can be a valid aggravating factor in a prosecution for aggravated first degree murder even if the victim of the rape is different from the victim of the murder; i.e., rape can be a valid aggravating factor where it is alleged that the murder victim was killed by the defendant to facilitate the defendant's escape from the crime of raping another.
[22] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Seek Dismissal of Aggravating Factor - Valid Factor - Supported by Record. In a prosecution for aggravated first degree murder, defense counsel's failure to seek dismissal of an alleged aggravating factor is not deficient performance if the alleged factor is valid and supported by the record.
[23] Homicide - First Degree Murder - Aggravated First Degree Murder - Aggravating Circumstances - Dismissal - Timeliness - Before Trial - Procedure. The procedure established in State v. Knapstad , 107 Wn.2d 346 (1986) for dismissing a criminal prosecution before trial based on the absence of material disputed facts and the undisputed facts being legally insufficient to support a finding of guilt does not apply to aggravating factors alleged in a prosecution for aggravated first degree murder.[24] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Effective Assistance of Counsel -
404 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
Investigation Into Mitigating Circumstances - Failure To Present Evidence - Defendant's Instructions. A claim by an offender convicted of a capital offense and sentenced to death that defense counsel failed to develop and present a mitigation case in the penalty phase of the trial will not be sustained if the record shows that counsel investigated or sought out mitigation evidence, there was a lack of cooperation by the offender's family, the offender specifically instructed counsel not to present mitigation evidence, and there were good tactical reasons for not presenting some of the evidence.
[25] Evidence - Exhibits - Demonstrative or Illustrative Evidence - Submission to Jury. When an exhibit is used for illustrative or demonstrative purposes only and the jury is instructed that the exhibit is not evidence, the exhibit should not go to the jury room for the jury's consideration during deliberations. The illustrative or demonstrative exhibit should be used only during the initial presentation of testimony and/or in final argument by counsel.
[26] Criminal Law - Discovery - Duty To Disclose - State's Duty - Material Evidence - What Constitutes. In a criminal prosecution, the State has a due process duty to disclose material exculpatory evidence to the defense. Evidence is material and must be disclosed if there is a reasonable probability it will affect the outcome of the proceeding.
[27] Criminal Law - Evidence - Preservation - Duty of State - Material Evidence - What Constitutes. In a criminal prosecution, the State has a due process duty to preserve material exculpatory evidence for use by the defense. Evidence is material and must be preserved if there is a reasonable probability it will affect the outcome of the proceeding.
[28] Criminal Law - Discovery - Failure To Disclose - Harmless Error - Test. The State's failure to disclose an item of evidence to a criminal defendant does not violate the defendant's due process right to a fair trial unless the absence of the evidence undermines confidence in the verdict.
[29] Criminal Law - Evidence - Preservation - Failure of State - Harmless Error - Test. The State's failure to preserve an item of evidence in a criminal proceeding does not violate the defendant's due process right to a fair trial unless the absence of the evidence undermines confidence in the verdict.
[30] Criminal Law - Evidence - Preservation - Failure of State - Test. The State's destruction of evidence does not violate a criminal defendant's due process right to a fair trial unless the evidence was materially exculpatory and was destroyed in bad faith.[31] Criminal Law - Evidence - Preservation - Duty of State - Preliminary Results and Draft Reports of Crime Lab
June 2005 In re Pers. Restraint of Woods 405
154 Wn.2d 400
Analysis. A state crime laboratory analyst's destruction of an initial or preliminary test result or draft report in accordance with laboratory protocol does not constitute bad faith destruction of evidence or an unlawful withholding of evidence in violation of a criminal defendant's due process right to a fair trial.
[32] Criminal Law - New Trial - Newly Discovered Evidence - Malfeasance by Crime Lab Analyst - Connection to Current Prosecution - Necessity. A convicted defendant is not entitled to a new trial based on a claim of newly discovered evidence of alleged malfeasance by a crime laboratory analyst where, although the analyst intentionally made misleading statements in another criminal proceeding, there is no indication that any evidence in the defendant's case was destroyed in bad faith, was tampered with, or was handled in a manner other than as called for by established protocols.
[33] Criminal Law - Trial - Presence of Defendant - Right To Be Present - Test. A criminal defendant's constitutional right to be present at all critical stages of the proceedings does not attach to a proceeding at which no evidence is being presented and at which the defendant's presence does not have a reasonably substantial relation to a full opportunity to defend against the charge.
[34] Criminal Law - Trial - Presence of Defendant - Right To Be Present - Scope - Chamber Meetings and Sidebars. A criminal defendant does not have a right to be present during in-chamber or bench conferences between the trial court and counsel on legal matters.
[35] Criminal Law - Trial - Presence of Defendant - Right To Be Present - Scope - Useless Gesture. A criminal defendant's constitutional right to be present at all critical stages of the proceedings is not violated by being excluded from a meeting between counsel and the trial court if the defendant's presence would be useless or the benefit but a shadow.
[36] Criminal Law - Trial - Presence of Defendant - Right To Be Present - Scope - Meeting Concerning Juror Misconduct. A criminal defendant is not necessarily entitled to attend a meeting between counsel and the trial court concerning alleged juror misconduct.
[37] Criminal Law - Advisement of Rights - Sufficiency - Miranda Warnings. The Miranda warnings that must be given to a suspect before the suspect may be subjected to custodial questioning are that (1) the suspect has the absolute right to remain silent, (2) anything the suspect says can be used against the suspect, (3) the suspect has the right to have counsel present before and during questioning, and (4) counsel will be appointed for the suspect if the suspect cannot afford one.[38] Criminal Law - Advisement of Rights - Sufficiency - Wording. A Miranda warning is adequate if it reasonably and
406 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
effectively conveys to a suspect the rights that Miranda requires to be communicated. The warning need not be given in the specific language of the Miranda opinion.
[39] Criminal Law - Advisement of Rights - Sufficiency - Warning of Right To Terminate Questioning Until a Lawyer is Consulted. A criminal suspect who is to be subjected to custodial questioning does not have a right to be warned of a right to stop answering at any time until a lawyer is consulted. The ruling in Duckworth v. Eagan , 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989) that a warnings statement that included such warning "touched all bases required by Miranda " does not establish a constitutional right to the warning.
CHAMBERS and SANDERS , JJ., dissent in part by separate opinion; J.M. JOHNSON , J., did not participate in the disposition of this case.
Nature of Action: An offender whose convictions of two counts of aggravated first degree murder and one count of attempted first degree murder and sentence of death were affirmed by the Supreme Court at 143 Wn.2d 561 (2001) sought relief from personal restraint on several claims relating to both the guilt and penalty phases of the trial.
Supreme Court: Holding that the petitioner's claims are without merit, the court denies the petition.
Judith M. Mandel and Lenell R. Nussbaum , for petitioner.
Steven J. Tucker , Prosecuting Attorney for Spokane County, and Kevin M. Korsmo , Deputy, for respondent.
¶1 ALEXANDER, C.J. - In 1997, a jury in Spokane County Superior Court found Dwayne Anthony Woods guilty of two counts of aggravated first degree murder, one count of attempted first degree murder, and one count of attempting to elude a police vehicle. Based on determinations made by that same jury, the trial court imposed the death penalty against Woods. This court affirmed the convictions and
June 2005 In re Pers. Restraint of Woods 407
154 Wn.2d 400
sentence for two counts of aggravated first degree murder and one count of attempted first degree murder.«1» State v. Woods , 143 Wn.2d 561 , 23 P.3d 1046 (2001). We now consider Woods' amended personal restraint petition, as well as numerous motions that Woods and the State filed during the pendency of this matter which we passed to the merits. We find that the issues Woods has raised to be without merit and, thus, deny Woods' amended personal restraint petition.
I. FACTS AND PROCEDURAL HISTORY«2»
¶2 In his direct appeal, Woods raised many issues regarding the guilt and penalty phases of his trial. One of his main contentions on appeal was that the trial court erred in denying his trial counsel's motion for a continuance between the guilt and penalty phases of the trial in order to enable the attorneys to have his competency assessed. He noted that his trial attorneys had contended that his competency was called into question because he had instructed them to not present any mitigating evidence at the penalty phase of the trial. We rejected Woods' contention on the basis that there was no factual basis for the assertion that Woods was incompetent. Woods , 143 Wn.2d at 608 . Woods' appellate counsel also argued that the trial court did not conduct a sufficient " 'colloquy' " with Woods to ensure that he " 'knowingly, voluntarily, and intelligently' " waived his right to present mitigating evidence at the penalty phase. Id. at 608, 609. We rejected that argument, as well as others, and affirmed Woods' convictions and the sentence of death.
¶3 Following conviction and sentence, counsel was appointed to prepare and file a personal restraint petition for Woods. Upon the filing of the petition on July 11, 2002, a stay of execution was granted. After Woods filed his per
«1»On direct appeal, Woods did not challenge his conviction of attempting to elude a police vehicle.
«2»For a comprehensive recitation of the facts leading to the convictions, please refer to State v. Woods , 143 Wn.2d 561 , 23 P.3d 1046 (2001).
408 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
sonal restraint petition, this court ordered a re-transcription of portions of the trial record. Following the re-transcription, Woods filed an amended personal restraint petition. The State then moved to strike all unverified claims from Woods' amended petition. We ultimately struck 7 of Woods' 18 claims based on his failure to verify these claims.
¶4 Woods has filed various motions, including motions for discovery, appointment of various experts, depositions of experts, and an evidentiary hearing. The State has also filed several motions. We have previously ruled on some motions and deferred ruling on seven others.«3»
II. ISSUES
¶5 1. Whether Woods was denied due process, equal protection, his constitutional right to appeal, his right to counsel, and access to the courts because of the trial court's failure to provide a comprehensive trial record on appeal.
¶6 2. Whether Woods was denied due process, equal protection, access to the courts when the cost of hours of investigation and expenses incurred were not paid for at public expense.
¶7 3. Whether Woods was denied due process, a fair trial, and the right to an impartial and unbiased jury.
¶8 4. Whether Woods was denied a fair trial and the right of confrontation because the jury allegedly received extrinsic evidence.
«3»Among the motions filed by the State and passed to the merits was a "Motion to Strike Hearsay and Incompetent Evidence" from Woods' original personal restraint petition and amended personal restraint petition. We hereby grant the motion in part and strike the following portions of the record: Declaration of Louis Thompson at ¶¶13, 20; Declaration of Richard Wright at ¶¶6, 7; Declaration of Randall Thornburg at ¶¶6, 7. We deny the motion in all other respects.
Woods filed a "Motion to Strike," which was also passed to the merits. We grant the motion, in part, and strike the following portions of the record: Certificate of Lynnell McFarland at ¶6; Certificate of Randall Thornburg at ¶¶5, 6; and Certificate of Donald MacLaren at last sentence from ¶10. We deny this motion in all other respects.
June 2005 In re Pers. Restraint of Woods 409
154 Wn.2d 400
¶9 5. Whether Woods was denied due process when he was allegedly seen in restraints by the jury.
¶10 6. Whether Woods was denied effective assistance of counsel at trial.
¶11 7. Whether Woods was denied his right to a jury trial when factual evidence was allegedly removed from the jury's consideration.
¶12 8. Whether Woods was denied due process when the State allegedly failed to reveal potentially exculpatory evidence to the defense.
¶13 9. Whether Woods is entitled to a new trial based on alleged newly discovered evidence of Dr. Brown's malfeasance in the state crime laboratory.
¶14 10. Whether Woods was denied due process, his right to be present, and to a public trial when certain proceedings were held in chambers and at sidebar without him.
¶15 11. Whether Woods was denied due process and protection against self-incrimination when the court allegedly admitted a compelled statement.
III. ANALYSIS
STANDARD OF REVIEW
[1]¶16 In order to prevail on a personal restraint petition, a petitioner must establish that there was a constitutional error that resulted in actual and substantial prejudice to the petitioner or that there was a nonconstitutional error that resulted in a fundamental defect which inherently results in a complete miscarriage of justice. In re Pers. Restraint of Isadore , 151 Wn.2d 294 , 298, 88 P.3d 390 (2004). This threshold requirement is necessary to preserve the societal interest in finality, economy, and integrity of the trial process. It also recognizes that the petitioner has had an opportunity to obtain judicial review by appeal. We now turn to the claims raised by Woods in his amended petition.
410 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
1. COMPREHENSIVE TRIAL RECORD
¶17 Woods first contends that he was denied due process, equal protection, his constitutional right to appeal, his right to counsel, and access to the courts because of the trial court's failure to provide a comprehensive trial record on appeal. Woods asserts that because of this error this court should recall its mandate and reopen his direct appeal. Although Woods had earlier sought this relief by motion, he included this claim in his amended personal restraint petition because at the time the amended petition was filed, this court had yet to rule on the motion. Following the filing of the amended petition, we did, however, deny Woods' motion to recall mandate and reopen direct appeal. See Supreme Court Order (May 8, 2003). We are not inclined to revisit that decision.
[2]¶18 Although Woods' motion to recall mandate and reopen direct appeal was earlier denied, we recognize that, due to the incomplete transcription of the trial record, Woods was unable to raise certain issues in his direct appeal. Any prejudice that Woods may have suffered as a consequence of the incomplete transcription of the record on appeal, can, however, be mitigated by our application of the more lenient standard of review applicable to direct appeal to the new issues Woods discovered and raised following the re-transcription. In re Pers. Restraint of Frampton , 45 Wn. App. 554 , 563, 726 P.2d 486 (1986) (in dicta, recognizing that a court reviewing a personal restraint petition may resolve appealable issues on the merits if the record were sufficient). Of the numerous issues that Woods has raised in his amended petition, we are of the view that only issue 10, relating to his right to be present at certain in-chambers and sidebar conferences between the trial court and counsel, warrants our review on the standard applicable to direct appeals.
2. FUNDING FOR INVESTIGATIVE SERVICES AND ATTORNEY FEES
¶19 Woods next claims that his right to due process was violated by this court's failure to order sufficient public
June 2005 In re Pers. Restraint of Woods 411
154 Wn.2d 400
funding for certain expert and investigative services. Woods also contends that because these services were not fully funded, his right to equal protection was denied.
[3, 4]¶20 Due process protects against the deprivation of life, liberty, or property. U.S. CONST . amend. XIV, § 1; WASH. CONST . art. I, § 3. "The threshold question in any due process challenge is whether the challenger has been deprived of a protected interest in life, liberty or property." In re Pers. Restraint of Cashaw , 123 Wn.2d 138 , 143, 866 P.2d 8 (1994). Aside from the due process clause, liberty interests may be created by statutes or regulations. Id . at 144.
[5]¶21 If a personal restraint petitioner requests, counsel will be appointed for his or her first personal restraint petition in a capital case provided he or she is found to be indigent. See RCW 10.73.150 (3); RAP 16.25. No corollary statute mandates the provision of expert or investigative services at public expense. Such services are, however, to be afforded to a petitioner if he or she establishes that there is a substantial reason to believe that the services will produce information that would support relief. See RAP 16.26, 16.27. Absent the showing of a substantial reason for such services, provision of the services at public expense is not authorized. See In re Pers. Restraint of Gentry , 137 Wn.2d 378 , 392, 972 P.2d 1250 (1999). There is no authority for "appointment of investigators or experts to identify or develop grounds for challenging convictions or sentences." Id .
¶22 At various times, Woods moved this court to authorize payment from the public purse for experts, investigators, and discovery. Woods claimed in support of these motions that it was necessary for him to depose certain employees of the state crime laboratory, conduct deoxyribonucleic acid (DNA) review, interview jurors and a witness, and fully investigate his ineffective assistance of counsel claim. We granted many of Woods' requests for services, including his request for additional payments for
412 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
the providers of these services.«4»Although we denied payment for some investigative services, we did so because, in our view, Woods failed to make the requisite showing that there was a substantial reason to believe that the additional services would provide information that would support relief.«5» See RAP 16.26, 16.27.
[6]¶23 Woods' contention that his right to due process was violated because we did not order public payment for the costs of all of the requested expert and investigative services is without merit. We say this because Woods failed to make the requisite showing under RAP 16.26 and 16.27. Accordingly, no liberty interest was triggered.
[7]¶24 Woods' equal protection claim also lacks merit. "Under the equal protection clause, persons similarly situated with respect to the purposes of the law must receive like treatment." Gossett v. Farmers Ins. Co. of Wash. , 133 Wn.2d 954 , 979, 948 P.2d 1264 (1997) (citing State v. Blilie , 132 Wn.2d 484 , 493, 939 P.2d 691 (1997)). Woods asserts that if public funding for expert and investigative services is not provided to him, his right to equal protection is violated because he is not afforded the same rights as a nonindigent petitioner. Again we observe that Woods has not been denied the services of experts and investigators. Indeed, as noted above, this court has authorized payment from the public purse for the costs of substantial investigative services. The mere fact that some of his requests for services were denied does not establish an equal protection violation. In our view, the rules of appellate procedure provide a standard for determining when public funds may
«4»We granted Woods' request to appoint a nonattorney expert to aid in the preparation of his personal restraint petition. We also authorized expenditure of public funds for that service. Additionally, we granted five separate motions by Woods, which collectively authorized payment for 73.5 hours of investigative assistance. The total payments for the aforementioned services were approximately $5,000. On May 12, 2004, Woods filed an additional motion for authorization and payment for 10 additional hours of investigative services. That motion was passed to the merits and it is hereby granted.
«5»The following requests for investigative services were denied by this court: (1) appointment of mitigation expert, (2) appointment of DNA expert, and (3) authorization of 100 hours of investigative services to explore Woods' juror misconduct and ineffective assistance of counsel claims.
June 2005 In re Pers. Restraint of Woods 413
154 Wn.2d 400
be expended for investigative and expert services for indigent petitioners, and that standard has been observed.
¶25 In sum, Woods has not shown that his due process and equal protection rights were violated by the denial of some of his requests for funds for investigative and expert services.
[8]¶26 Finally, Woods seeks additional payment for his attorneys for time they worked to complete and file his amended personal restraint petition. Although we previously denied a similar motion on May 8, 2003, we consider this request for additional attorney fees as essentially a motion for reconsideration. Woods contends that his attorneys "should be paid . . . for all the work [they] had to do again." Amended Personal Restraint Petition (Am. Pet.) at 61. The principal flaw in this argument is that it ignores the fact that this court authorized payment to Woods' attorneys for a specific number of hours in which to prepare the amended personal restraint petition. Significantly, we authorized payment for 160 hours of preparation time for each of Woods' two attorneys, a total of 320 attorney hours, to prepare and file the amended petition within 30 days.«6»Woods, through counsel, indicated that the attorneys would not be able to complete this task on time and moved for additional time to complete the task. Although we granted Woods' motion for additional time, we did not authorize payment for the 238 additional hours of time they estimated would be necessary to complete the amended petition. In our view, the previously authorized 320 hours of attorney time was sufficient to allow completion of the
«6»In addition to authorizing payment for 320 hours to prepare the amended petition, Woods' attorneys were granted payment for 222 attorney hours (111 for each attorney) to review the re-transcribed record and payment for a paralegal to review 132 hours of trial video and alert Woods' attorneys regarding any discrepancies between the original and re-transcribed record. See Decl. of Lenell Nussbaum in Supp. of Pet'r's Second Mot. to Continue Due Date for Am. Pet. at App. A-D.
414 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
amended petition and, thus, we are not inclined to authorize additional payment.«7»
3. IMPARTIAL AND UNBIASED JURY
¶27 Woods alleges misconduct during the course of the trial by two alternate jurors. Essentially he contends that the alternate jurors engaged in unauthorized communication. Woods requests that this court order a reference hearing in order to resolve the juror misconduct allegations. Because we find this claim to be without merit, we deny the request for a reference hearing.
[9]¶28 On direct appeal, when an unauthorized jury communication is found to have taken place, it is the State's burden to prove harmlessness beyond a reasonable doubt. Remmer v. United States , 347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1954); State v. Kell , 101 Wn. App. 619 , 621, 5 P.3d 47 (2000). Although Woods could have made this claim on direct appeal, he did not do so. Because a personal restraint petition involves a collateral review, we have held that "the petitioner has the burden of establishing the claimed error more likely than not caused actual prejudice." Gentry , 137 Wn.2d at 409 . This " 'more likely than not' standard is equivalent to preponderance of the evidence." Id.
¶29 The first claim of juror misconduct involves alternate juror, Lynnell McFarland, who allegedly made out-of-court statements to others. The trial court was made aware of the alleged misconduct during trial when it received an anonymous phone call, in which the caller stated that "they wanted to say something about the juror talking about the case." Verbatim Report of Proceedings (VRP) at 3827. However, the caller hung up without leaving a name or phone number. The caller made a second call to the trial court and left a message that contained sufficient informa
«7»It is worth noting that the payments to Woods' attorneys are not inconsiderable. The record shows that they were paid $113,107 to prepare the personal restraint petition and an additional $51,212 to prepare the amended personal restraint petition.
June 2005 In re Pers. Restraint of Woods 415
154 Wn.2d 400
tion so that the juror in question could be identified.«8»In this message, the caller stated that McFarland had discussed the case with McFarland's husband, who in turn, made comments to the caller's family that the defendant did "not have a chance" because of "the number of females on this jury. And they're all white, and he's a black man."«9» Id. at 3954.
¶30 Based on the receipt of this information, McFarland was to be brought into chambers for questioning before the trial judge, prosecuting attorney, and defense counsel. Woods was not present during this questioning. In response to the questioning, alternate juror McFarland denied having discussed the case with her husband. Although given an opportunity to question the alternate juror, the attorneys did not ask her any questions. The trial judge then instructed McFarland not to mention the incident to other jurors. Woods' attorney did not pursue the matter any further at trial.
¶31 The second claim of juror misconduct involved alternate juror, Randle Riddle. During the late stages of the guilt phase of the trial, two jurors complained to the bailiff about the attitude and actions of Riddle. The complaining jurors were brought in for questioning separately before the trial judge, prosecuting attorney, and defense counsel. Woods was not present during this questioning and his attorney stated to the trial judge that he did not think it was necessary for Woods to be present. The jurors indicated, in response to questioning, that Riddle was (1) not taking the case seriously, (2) not keeping the case confidential, and (3) using inappropriate language. Woods' attorney indicated that "I don't think there's a problem" with Riddle. VRP at 4342. The trial court did not remove Riddle as an alternate juror.
«8»The caller stated that the juror was a nurse, in her early forties, and married. These facts made it possible for the court and the attorneys to identify McFarland as the juror in question.
«9»Woods is African-American.
416 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
[10]¶32 Woods' trial concluded the following day. All alternate jurors, including McFarland and Riddle, were excused and did not participate in reaching verdicts at either the guilt or sentence phase of the trial.
¶33 In our view, these claims of juror misconduct are meritless. We reach that conclusion because we are satisfied that Woods has not proved actual or substantial harm. The allegations involved alternate jurors who were ultimately excused from deliberating on the case. Therefore, we cannot say that Woods was denied a fair and impartial jury even if the allegations against each alternate juror were true.
Woods' Motion for Deposition and for Protective Order
¶34 Woods requests an order from this court allowing him to take the deposition of the person who allegedly made the anonymous phone calls regarding alternate juror Lynnell McFarland. This, according to Woods, would allow him to investigate the juror misconduct claim further. Woods also seeks a protective order for the person he would depose because of that person's alleged fear of the McFarlands.
¶35 As indicated above, the alleged misconduct of the two alternate jurors did not cause prejudice to Woods. Therefore, a deposition would serve no purpose. The motion, therefore, is denied.
4. JURY RECEIVING EXTRINSIC EVIDENCE
¶36 Woods claims that he was denied a fair trial and the right of confrontation when the trial court denied his pretrial motion to have the victims' family members remove black and orange remembrance ribbons while in the courtroom. Woods argues that the presence of these ribbons constituted extrinsic evidence of victim impact that could not be challenged at trial.
¶37 During jury voir dire, Woods asked the trial court to order the spectators to remove the ribbons from their
June 2005 In re Pers. Restraint of Woods 417
154 Wn.2d 400
persons. Outside of the presence of the jury pool, the trial court asked for comment from some of the spectators who were wearing the ribbons. One stated that it is "[j]ust representative of my daughter and the tragedy that has taken place." VRP at 570. After the questioning of some of the spectators, the trial court declined to order removal of the ribbons. The trial court did, however, state that if it were necessary at some time to give a jury instruction regarding the ribbons, then it would give such an instruction.
[11]¶38 A defendant has a fundamental right to a fair trial. U.S. CONST . amends. VI and XIV, § 1. When a courtroom arrangement is challenged as inherently prejudicial, the question to be answered is whether an unacceptable risk is presented of impermissible factors coming into play. Holbrook v. Flynn , 475 U.S. 560, 570, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986). In other words, all a court may do in such a situation is to look at the courtroom scene presented to the jury and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to the defendant's right to a fair trial. Id. at 572.
[12]¶39 In support of his claim, Woods relies on Norris v. Risley , 918 F.2d 828 (9th Cir. 1990). In Norris , the Ninth Circuit Court of Appeals concluded that because women spectators were wearing buttons inscribed with "Women Against Rape" the defendant was deprived of a fair trial. It reached this conclusion because the buttons announced the spectators' conclusion about the defendant's guilt and amounted to "unacceptable risk of . . . impermissible factors" coming into play. Id . at 834. The present circumstance, in our judgment, is distinguishable from Norris . Here, the black and orange ribbons did not contain any inscription. They were simply ribbons that the wearers indicated they wore in memory of the victims. In examining a color copy of the ribbon, it is our view that they do not express any conclusion about Woods' guilt or innocence.
¶40 Furthermore, the record shows that Woods never sought a cautionary jury instruction from the trial court.
418 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
There is also nothing in the record to suggest that any juror was influenced by the fact that the ribbons were worn by the family of the victims. In fact, juror Randall Thornburg stated in a declaration that he understood that the wearing of the ribbons was a "sign of their mourning their loss of a daughter or loved one. It was something like a football team wearing an armband when a teammate has died." Decl. of Randall Thornburg at 2. In a certificate, Thornburg clarified his statements in his declaration and stated, "I thought the ribbons were nice, but they did not influence my decision or that of the other jurors." Certificate of Randall Thornburg at 1.
¶41 Many courts have used the Holbrook standard and have found that no inherent prejudice exists so as to taint the defendant's right to fair trial from the wearing of buttons or other displays. See , e.g ., Buckner v. State , 714 So. 2d 384, 389 (Fla. 1998) (spectators holding up victim's picture was not inherently prejudicial); Pachl v. Zenon , 145 Or. App. 350, 929 P.2d 1088, 1093 (1996) (spectators wearing buttons with inscription "Crime Victims United" was not prejudicial and counsel was not ineffective for failing to challenge the issue); State v. Braxton , 344 N.C. 702, 477 S.E.2d 172, 177 (1996) (spectators wearing badges with victim's picture on them was not prejudicial). In most cases involving violent crime, there is at least one grieving family present at the trial and the presence of such persons should not come as any surprise to the jury members. See , e.g ., State v. Richey , 171 W. Va. 342, 298 S.E.2d 879, 889 (1982) ("We must assume that a jury has the fortitude to withstand this type of public scrutiny, and cannot presume irreparable harm to the defendant's right to a fair jury trial by the presence of spectators who may have some type of associational identity with the victim of the crime."). We conclude, in sum, that Woods does not meet the burden of proving that his right to a fair trial was prejudiced by the trial court's action in allowing members of the victims' families to wear the black and orange ribbons in the courtroom.
June 2005 In re Pers. Restraint of Woods 419
154 Wn.2d 400
5. WOODS IN RESTRAINTS
[13]¶42 Woods claims that he was denied due process because the jury allegedly saw him in restraints in the courtroom. We recognize that it is well settled law that "a prisoner is entitled to be brought into the presence of the court free from restraints." State v. Damon , 144 Wn.2d 686 , 690, 25 P.3d 418, 33 P.3d 735 (2001); Corley v. Cardwell , 544 F.2d 349, 352 (9th Cir. 1976); State v. Williams , 18 Wash. 47 , 50, 51, 50 P. 580 (1897) (if defendant remains in restraints, " 'the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers' " (quoting State v. Kring , 64 Mo. 591 (1877))). Restraints are to " 'be used only when necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape.' " Damon , 144 Wn.2d at 691 (quoting State v. Hartzog , 96 Wn.2d 383 , 398, 635 P.2d 694 (1981)).
¶43 In examining the record, we do not find any factual support for Woods' claim that the jury saw him in restraints in the courtroom during the course of the trial. Woods bases his claim in this regard entirely on the declaration of juror Thornburg. In his declaration, Thornburg stated, "I remember seeing Mr. Woods in handcuffs twice when they took him out of the courtroom." Decl. of Randall Thornburg at 1. However, in a latter certificate, Thornburg clarified his statements and attested that
The Declaration states that I twice saw Dwayne Woods transported in handcuffs when he left the courtroom. That is not correct. I explained to the attorneys on the telephone that I saw some television footage of the trial after it was completed and noticed that he was transported in handcuffs. It was no big deal to me to see that on television. I never at any time saw him in restraints during my service as a juror. I never heard any other juror mention anything about restraints either. Mr. Woods was always in the courtroom when the jury entered and left. We never saw him transported to or from the courtroom.
420 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
Certificate of Randall Thornburg at 1. In light of Thornburg's certificate, Woods' reliance on the earlier declaration is unwarranted. There is, in short, nothing in the record to support a conclusion that the jury saw Woods in restraints in the courtroom. Indeed, it appears that great pains were taken to make sure that Woods was never restrained in the presence of the jury. In fact, certificates provided to the court suggest that all restraints were removed from Woods when he arrived in the courtroom before the jury was seated. See Certificate of John F. Driscoll, Jr. (Spokane County Prosecutor Chief Criminal Deputy) at 1; Certificate of Mark Henderson (Spokane County Sheriff Detective) at 1; Certificate of Thomas Warner (Spokane County Deputy Sheriff) at 1. These certificates also suggest that restraints were not placed on Woods until the jury had retired to the jury room. While restraints were used on Woods during transport, this was not in the presence of jurors. Certificate of Thomas Warner at 1. There is no merit to this claim.
6. INEFFECTIVE ASSISTANCE OF COUNSEL
¶44 Woods asserts that he received ineffective assistance of counsel during his trial proceedings. Woods prefaces this claim by stating that his trial attorneys lacked proper training to handle capital cases, were unprepared and disorganized, and were overburdened because they possessed heavy caseloads and could not fully concentrate on Woods' case. He also indicates that his investigator was overburdened and possessed no training or expertise.
[14, 15]¶45 Effective assistance of counsel is guaranteed by both the federal and state constitutions. See U.S. CONST . amend VI; WASH. CONST . art. I, § 22. To prove ineffective assistance of counsel, the petitioner must first show deficient performance. State v. Hendrickson , 129 Wn.2d 61 , 77, 917 P.2d 563 (1996). "Deficient performance is not shown by matters that go to trial strategy or tactics." Id. at 77-78. The petitioner must also show prejudice " 'that
June 2005 In re Pers. Restraint of Woods 421
154 Wn.2d 400
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' " Id. at 78 (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). This second element is proved "when there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." Id. at 78. If either part of this test is not met, the claim fails. Because of the large number of issues within this claim, we will first deal with Woods' claims of ineffective assistance of counsel during the guilt phase. We will then discuss the claim as it relates to the sentencing phase.
Guilt Phase
[16]¶46 Woods claims that his trial attorneys should have investigated and pursued a diminished capacity defense based on what he claims was his heavy drug usage. If established, Woods argues, this defense might have precluded a jury finding that he premeditatedly committed the murders. Woods states that instead of pursuing this line of defense, his attorneys chose instead to follow the "weak alibi" defense. Am. Pet. at 100. There is nothing in the record to show that Woods' attorneys were not aware of this potential defense and declined to present it. From a tactical standpoint, we believe it was reasonable for his counsel to pursue the alibi defense rather than diminished capacity because Woods continuously denied his involvement in the crimes. To pursue the diminished capacity defense would have required Woods to essentially admit that he committed the murders, a position entirely inconsistent with his contention that he did not commit the murders. Woods, in short, does not provide any persuasive evidence that his trial attorneys were deficient in not presenting a diminished capacity defense.
[17]¶47 In Douglas v. Woodford , 316 F.3d 1079, 1086 (9th Cir. 2003), the defendant claimed that his attorney failed to uncover evidence of a prior mental health evaluation that suggested the defendant suffered from serious
422 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
mental problems that would have made him incompetent to stand trial. The Ninth Circuit concluded that the attorney's failure to discover the past mental health evaluation was harmless as to the guilt phase in light of the evidence of defendant's planning and deliberation of the crime. Id. at 1087. Here the same could be said. Even if Woods' attorneys failed to investigate the diminished capacity defense, it is harmless error because there is strong evidence of premeditation by Woods. For example, Woods had serially attacked the three victims over a period of several hours and he bound two of them before administering the beatings. Woods , 143 Wn.2d at 569 -73. Furthermore, he was also able to escape after being found, got a ride to downtown Spokane, and was able to access a cash machine account after obtaining one of the victim's personal identification number.
[18]¶48 Woods claims that his attorneys were not prepared to impeach witness Johnny Knight with a prior theft conviction. He argues that his attorneys "failed to obtain a certified copy of a judgment and conviction showing that Mr. Knight committed a crime of dishonesty," a fact admissible as impeachment evidence, under ER 609. Am. Pet. at 121. Thus, according to Woods, when Knight denied the conviction on the stand, his trial attorneys were unprepared. However, the failure to obtain the certified copy of judgment and conviction does not establish deficiency. We say that because questioning from the prosecution and defense established that all parties were aware that Knight had a theft conviction.«10»In fact during questioning, Knight volunteered information about other convictions as well. Thus, it is clear that the jury was aware they were listening to a witness with multiple convictions. In effect, Knight impeached himself.
«10»"[Prosecuting Attorney:] Okay. Mr. Knight, you've been convicted before in 1990 of theft, is that correct?" VRP at 4006. "[Defense Counsel:] All right. And let me talk with you first about your past conviction. You said you don't recall being convicted of theft in 1990?" VRP at 4020. "[Defense Counsel:] Well, do you recall being convicted - I don't have the particulars, but do you recall that theft conviction at least in 1990?" VRP at 4021.
June 2005 In re Pers. Restraint of Woods 423
154 Wn.2d 400
[19, 20]¶49 Woods also argues that his trial attorneys failed to request that his aliases be removed from certain pleadings. More specifically, Woods claims that the inclusion of the alias, "Michael Smith," was irrelevant and prejudicial. In State v. Elmore , 139 Wn.2d 250 , 283-84, 985 P.2d 289 (1999), we dealt with the use of an alias and upheld its use during trial when it was shown that it was the name some of the witnesses knew him by. In deciding Elmore , we utilized the alias standard set forth in State v. Cartwright , 76 Wn.2d 259 , 456 P.2d 340 (1969). The test as to whether an alias may be used by the State is whether the alias or other name is relevant and material to prove or disprove any of the issues in the case. Elmore , 139 Wn.2d at 284 .
¶50 There was, in our judgment, no error in using the alias "Michael Smith." That is so because the identity of the perpetrator was at issue. Woods was booked at the jail under the name "Michael Smith." VRP at 3600. The two fingerprints that were removed from the crime scene came up as belonging to "Michael Smith" (alias for Dwayne Woods). VRP at 3603-04. It was, therefore, necessary to use the alias during the trial because some of the evidence tying Woods to the crime scene required the reference to his alias. Furthermore, during the guilt phase of the trial, Woods' attorneys challenged the foundation of the fingerprint records. To establish the foundation, it was necessary for the record custodian to reference "Michael Smith" during her testimony regarding the creation and maintenance of the fingerprint records. The prosecutors, therefore, had no choice but to include his alias in the caption of the pleadings because it was necessary to identify Woods as the perpetrator. Thus, there was no deficiency in the trial attorneys' failure to remove Woods' alias from court pleadings.
¶51 Finally, Woods claims that his trial attorneys failed to seek the dismissal of one of the aggravating factors alleged in the murder of Telisha Shaver. The aggravating factor was that the killing occurred in the course of a rape. Woods argues that this aggravating factor should not have
424 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
been included because he did not rape Telisha Shaver. However, the inclusion of this factor was valid.
[21-23]¶52 RCW 10.95.020 (11)(b) allows for an aggravating circumstance if "[t]he murder was committed in the course of, in furtherance of, or in immediate flight from . . . Rape in the first or second degree." The prosecutors never argued that Woods raped Telisha Shaver before he killed her. Their argument, rather, was that Woods raped Jade Moore and killed Telisha Shaver, in part, to facilitate his escape from the crime of raping Jade Moore. The prosecution never presented evidence that Woods also raped Telisha Shaver, and the jury was never led to believe so. Therefore, the inclusion of this aggravating factor is valid. Thus, Woods' trial attorneys were not ineffective for failing to dismiss this aggravating factor. As a matter of law, there was no basis for dismissing the factor. The process to dismiss prosecution, as established in State v. Knapstad , 107 Wn.2d 346 , 729 P.2d 48 (1986), is not applicable to aggravating factors alleged in murder prosecutions. See State v. Brown , 64 Wn. App. 606 , 616 n.9, 825 P.2d 350 (1992) (dismissal of aggravating factors before the conclusion of trial should not be treated the same as dismissal of prosecution).
Penalty Phase
[24]¶53 Woods claims that his trial attorneys failed to develop and present a mitigation case during the penalty phase. More specifically Woods points to his trial attorneys failing to (1) find out about "family love," (2) show "exemplary behavior" in prison, and (3) introduce evidence even over Woods' objections to do so.
¶54 For support, Woods relies mostly on cases where there was almost no work done in developing mitigation. See , e.g ., Silva v. Woodford , 279 F.3d 825, 838-40 (9th Cir. 2002) (attorney refused to investigate mitigating factors because there was a threat of misbehavior from defendant); Williams v. Taylor , 529 U.S. 362, 395-96, 120 S. Ct. 1495,
June 2005 In re Pers. Restraint of Woods 425
154 Wn.2d 400
146 L. Ed. 2d 389 (2000) (investigation for mitigation began one week before trial; there was no effort of attorney to seek records the attorney erroneously believed to be inadmissible). It is not the case here that Woods' counsel did not investigate mitigation. Although Woods' attorneys did not include in the record what evidence they would have presented in mitigation, there is some evidence that investigation and work was done on mitigation. See VRP at 4534-35 (Woods' attorney, James Sheehan: "[D]efense will not be presenting any mitigation. . . . [W]e would have called Dwayne's parents, Janet and Emmanuel Hunter, his sister, Beverly Thompson, his nephew, Willy Lyons. And then there would have been Dr. Amy Paris, from Spokane, Dr. Muriel Leesack, from Portland, and Annie Cowles, from Spokane. . . . Dwayne, it's my understanding, does not want us to put on any witnesses.").
¶55 A declaration by one of Woods' trial attorneys, Richard Fasy, establishes that he did reach out to family members regarding the penalty phase. See Decl. of Richard Fasy at 3. However, the family members contacted by Fasy were unresponsive and did not cooperate.
¶56 We also cannot conclude that the trial attorneys were ineffective in not presenting evidence of Woods' alleged exemplary behavior in prison. Even if Woods had given them permission to present the evidence, there may have been tactical reasons for them to not present it. The State has said that if Woods' behavior in prison would have been presented, they would refute his exemplary behavior. See Answer to Personal Restraint Pet. & Br. of Resp't at App. A at 2 (Woods "picked up at least three infraction notices. It was also learned that he and another prisoner were believed to be plotting an escape attempt.").
¶57 In his direct appeal, we held that Woods waived his right to present mitigating evidence during the sentencing phase. Woods , 143 Wn.2d at 609 -10. The failure of Woods' attorneys to put forth mitigation was, thus, due to Woods' refusal to allow them to present such evidence. This case is similar to In re Personal Restraint of Jeffries , 110 Wn.2d
426 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
326, 331, 752 P.2d 1338 (1988), where the defendant did not want any witnesses to testify at the penalty phase. The attorneys abided by the defendant's wishes and did not put forth mitigation evidence. This court held that the defendant made his decision to not call witnesses "knowingly, voluntarily, and intelligently." Id. at 334. Furthermore, the trial attorneys exercised "reasonable professional judgment" by abiding by their client's wishes. Id .
¶58 In sum, the defense attorneys were ready to put forth evidence in mitigation but did not do so because Woods' steadfastly objected to the presentation of this evidence. In light of Woods' objections, his trial attorneys exercised reasonable professional judgment in not putting forth such mitigation evidence. Therefore, they were not deficient in their performance.«11»
7. FACTUAL EVIDENCE REMOVED FROM JURY'S CONSIDERATION
¶59 Woods claims that the trial court erred in withdrawing evidence from the jury's consideration. The "evidence" in question is five autoradiograms (autorads) that were used by Dr. John Brown, a witness for the State, during his testimony at trial. The autorads helped illustrate Dr. Brown's testimony regarding DNA. They were shown to the jury through a projector.
¶60 During deliberations, the jury asked to see the autorads. The trial court denied their request on the basis that the autorads were used only for illustrative or demonstrative purposes. Neither the prosecuting attorney nor Woods' counsel objected to this ruling and both worked with the trial court in crafting a response to the jury.
[25]¶61 "The use of demonstrative or illustrative evidence is to be favored and the trial court is given wide latitude in determining whether or not to admit demonstrative evidence." State v. Lord , 117 Wn.2d 829 , 855, 822 P.2d
«11»Because we find Woods' claim of ineffective assistance of counsel meritless, we deny his motion to compel depositions of trial attorneys and motion for order for production and inspection of documents.
June 2005 In re Pers. Restraint of Woods 427
154 Wn.2d 400
177 (1991). However, when an exhibit is used for illustrative purposes only and the jurors are instructed that the exhibit is not evidence, than the exhibit should not go to the jury room. Id. at 856. The illustrative exhibit should be used only "during the initial presentation of testimony and/or in final argument by counsel." Id. at 856-57.
¶62 The report of proceedings clearly shows that the autorads, identified as exhibits 225-29, were used for illustrative or demonstrative purposes only. The following exchanges occurred during the trial:
[Prosecuting Attorney:] Sir, can you identify State's Exhibit for demonstrative purposes number 225?
[Dr. Brown:] Yes. This is a copy of one of the - the autoradiograms that I developed during my testing in this - this instance, in this case.
[Prosecuting Attorney:] Okay.
The Court: Just before you turn that on, counsel, is there any objection to this being used in this fashion.
Mr. Leatherman [Woods' attorney]: No, Your honor.
The Court: All right.
Mr. Leatherman: For demonstrative purposes.
The Court: Of course.
VRP at 3856-57. A similar colloquy occurred for the submission of exhibit 226:
[Prosecuting Attorney:] Now to demonstrate what we're talking about, about inconclusive probes, would it aid for you to use an autoradiograph?
[Dr. Brown:] I think it would be a great aid, yes.
[Prosecuting Attorney:] Handing you what's been marked State's Exhibit 226, can you identify that?
[Dr. Brown:] This is the second of the tests I had run on this - these particular samples. And this - this is one in which I deemed to be inconclusive.
[Prosecuting Attorney:] For demonstrative - Just for demonstrative purposes, Your Honor.
428 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
The Court: Did you offer the other for demonstrative purposes as well?
[Prosecuting Attorney:] Yes, Your Honor, just for demonstrative.
The Court: And again based on what we stated earlier, it will be admitted for demonstrative purposes with respect to this?
Mr. Fasy [Woods' attorney]: No objection if it's being used for demonstrative purposes.
The Court: It is admitted for demonstrative purposes only.
VRP at 3864-65. Woods' attorney also submitted autorad exhibits (numbers 227, 228, and 229) for demonstrative purposes only. The dialogue that occurred in connection with the autorads submitted by Woods was similar. See VRP at 3895-96. The above exchanges clearly show that the autorads were submitted for demonstrative purposes only. Therefore, the trial court was correct in declining to allow the exhibits to be admitted to the jury room for consideration. Woods' claim that the jury should have been given the exhibits to be considered during deliberation is without merit.
8. EXCULPATORY EVIDENCE
¶63 Woods claims that exculpatory evidence was withheld from him at his trial. He asserts that this evidence would have permitted his defense team to impeach State's witnesses Dr. John Brown and Pearl Brown.
[26-30]¶64 "To comport with due process, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense." State v. Wittenbarger , 124 Wn.2d 467 , 475, 880 P.2d 517 (1994); see also Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Evidence is material and therefore must be disclosed if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Gentry , 137 Wn.2d at 396 ; United States v. Bagley , 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481
June 2005 In re Pers. Restraint of Woods 429
154 Wn.2d 400
(1985). The question to be answered is not whether the defendant would more likely than not have received a different verdict with the evidence but whether the absence of the evidence undermines confidence in the verdict. Gentry , 137 Wn.2d at 396 (quoting Kyles v. Whitley , 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). The destruction of evidence offends due process if the evidence was materially exculpatory and was destroyed in bad faith. State v. Straka , 116 Wn.2d 859 , 884, 810 P.2d 888 (1991).
¶65 With respect to Dr. Brown, the alleged exculpatory evidence is that Dr. Brown and the Washington State Crime Laboratory had a policy of destroying evidence that should have been disclosed. Woods claims that Dr. Brown was destroying tests that he conducted that may have reached a different conclusion than the one presented at trial and was lying about doing so. Although Woods makes this claim, he does not provide support for it. In short, the record does not show that Dr. Brown intentionally destroyed exculpatory evidence and then lied about it. Donald MacLaren, who was the supervisor of the DNA section within the Washington State Patrol Crime Laboratory and Dr. Brown's supervisor, indicated in his certified statement that he did a peer review of Dr. Brown's work for this case and agreed with Dr. Brown's conclusions. Certificate of Donald MacLaren at 2.
[31]¶66 MacLaren also gave a statement as to how the crime laboratory operated under his management. An initial test result of the analyst would be treated as a draft report until peer review was completed and the results were agreed upon. Certificate of Donald MacLaren at 1. If the results were agreed upon, it was the policy of the crime laboratory to retain only the final, reviewed report. All preliminary drafts of reports were discarded. Also, if the reviewing analyst disagreed with the original analysis, the two analysts would consult and resolve the discrepancies.
¶67 Woods claims that in a previous case, State v. Barfield , King County Superior Court No. 98-1-02618-5 SEA, Dr. Brown had done an initial test and concluded that the DNA found in the rape victim did not match the
430 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
defendant's. Am. Pet. at 169. However, after peer review, Dr. Brown did the test over and concluded that it did match. Using this case, Woods attempts to establish that Dr. Brown was in the habit of destroying evidence and lying about it. However, under the standards of the crime laboratory, as established by MacLaren, Dr. Brown's actions comport with the policies. As stated by MacLaren, only the final result was retained and other drafts of the tests are not usually maintained.
¶68 Woods asserts that Dr. Brown destroyed other test results in his case. However, as stated before, drafts of reports that are not final are often discarded. Furthermore, during peer review, MacLaren agreed with Dr. Brown's test results and the conclusions he reached. There is, in short, no evidence in the record to show that Dr. Brown acted in bad faith in destroying drafts of reports. Any drafts of reports cannot be considered exculpatory evidence because only final reports are maintained and submitted as the official findings. Therefore, we conclude that no exculpatory evidence was withheld by the State because the discarding of drafts of reports does not amount to Brady evidence.
¶69 The claim with respect to Pearl Brown is that the State should have disclosed that Ms. Brown was being investigated by the Spokane Police Department and Child Protective Services at the time of Woods' trial. Brown, who is the mother of Woods' daughter, was called by the State to testify that two items of clothing in evidence belonged to Woods. In his personal restraint petition, Woods implies that Pearl Brown cooperated with the State in order to not lose her children and/or avoid charges. He insinuates that by testifying for the State, Brown's criminal charges were dismissed. He argues that he should have been given the information on Brown for impeachment purposes. Woods makes these assertions without providing any factual support for them.
¶70 Furthermore, the possible impeachment of Brown does not meet the Brady standard. As stated above, material evidence must be disclosed if there is a reasonable
June 2005 In re Pers. Restraint of Woods 431
154 Wn.2d 400
probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Brown was brought in as State's witness to identify two articles of clothing that belonged to Woods. Had Woods impeached Brown during the trial, the outcome of the trial would not have been different. We say that because the articles of clothing Brown identified were admitted into evidence without objections. Woods never contended that the clothing was not his, so impeachment of Brown would have been a futile act. Woods fails to establish that exculpatory evidence regarding Dr. John Brown and Pearl Brown was withheld from him.«12»
9. DR. BROWN'S MALFEASANCE IN THE CRIMINAL LABORATORY
[32]¶71 Woods claims that he is entitled to a new trial based on newly discovered evidence of alleged malfeasance in the crime lab by Dr. Brown. This contention stems from Dr. Brown's acknowledgement that he intentionally made misleading statements in another criminal proceeding, State v. Barfield , noted at 118 Wn. App. 1036 (2003). See Woods' Reply Br. at App. A at 6 (In his oral statement to the Washington State Patrol Internal Affairs, Dr. Brown attested that he made untruthful statements to the defense attorneys in the Barfield case in order to mislead them about the DNA testing he conducted.).
¶72 Woods cites State v. Roche , 114 Wn. App. 424 , 59 P.3d 682 (2002) as support for his claim that he is entitled to a new trial. In Roche , a chemist for the Everett crime laboratory self-medicated with heroin that was sent to the crime lab to be tested. The chemist was found to have stolen some of the drug samples he was supposed to test. He also used the drugs while he was on the job and lied about his activities. The Court of Appeals found that the chemist's malfeasance broke the chain of custody and tainted the
«12»Because we conclude that Woods failed to establish this claim and that a reference hearing is unnecessary, we deny his motion for depositions of Dr. John Brown, Donald MacLaren, and William Morig. We also deny the State's motion to compel discovery of DNA testing.
432 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
integrity of the defendants' trials. Consequently, it granted new trials to the defendants.
¶73 Roche is distinguishable from the instant case. There is no evidence here that any evidence was destroyed in bad faith or was the subject of tampering. At most, Woods has established that Dr. Brown lied during an interview with the defense in the Barfield case and then rectified the situation by acknowledging the lie. Although, Woods' repeatedly claims that Dr. Brown willfully destroyed evidence relating to the case and lied about it, he offers no evidence to support this assertion. Furthermore, Donald MacLaren, Dr. Brown's supervisor at the time of Woods' trial, stated that he agreed with Dr. Brown's analysis and conclusions after peer review of Dr. Brown's work in Woods' case. Unlike the chemist in Roche , Dr. Brown's scientific skills and his quality of work have never been called into question. The context surrounding Dr. Brown's problems in the Barfield case is that he misled the defense team about why he revised his draft of report of his analysis in that case.
10. PROCEEDINGS HELD IN CHAMBERS AND SIDEBAR WITHOUT WOODS' PRESENCE
¶74 Woods claims that he was denied his right to a public trial and to due process because certain proceedings were held in chambers and at sidebar without him being present.«13»As noted above, we will review this issue as if it had been raised on direct appeal.
[33-35]¶75 A defendant has a fundamental right to be present when evidence is being presented. In re Pers. Restraint of Pirtle , 136 Wn.2d 467 , 483, 965 P.2d 593 (1998). "A defendant has the right to be present at proceedings where his or her presence has a reasonably substantial
«13»This opinion discusses only the two in-chambers meetings that Woods discusses in his fact section. Although he raises the sidebar issue, he does not provide any specific instances where he should have been present.
June 2005 In re Pers. Restraint of Woods 433
154 Wn.2d 400
relation ' "to the fullness of his opportunity to defend against the charge." ' " Id . (quoting In re Pers. Restraint of Lord , 123 Wn.2d 296 , 306, 868 P.2d 835 (1994) (quoting United States v. Gagnon , 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985))). This court, however, has held that a defendant " 'does not have a right to be present during in-chambers or bench conferences between the court and counsel on legal matters.' " Id. at 484 (quoting Lord , 123 Wn.2d at 306 ). Furthermore, the defendant need not be present " 'when presence would be useless, or the benefit but a shadow.' " State v. Rice , 110 Wn.2d 577 , 616, 757 P.2d 889 (1988) (quoting Snyder v. Massachusetts , 291 U.S. 97, 106-07, 54 S. Ct. 330, 78 L. Ed. 674 (1934)). Therefore, the question to be answered here is whether the matters addressed out of Woods' presence were ones that required his presence.
¶76 The two instances in which Woods claims he should have been present related to concerns about juror misconduct. The first involved the anonymous phone call regarding alternate juror, Lynnell McFarland, and the second instance involved the two jurors who complained about the alternate juror, Randy Riddle.
[36]¶77 We faced a similar issue in Pirtle . There Pirtle argued that his presence was required at the meeting regarding the alleged juror misconduct. We noted that it may have been appropriate for Pirtle to be present, but no error was shown because Pirtle was apprised of the situation and the matter was put on the record. Pirtle , 136 Wn.2d at 484 . We, however, did not state that all defendants are entitled to attend all meetings relating to juror misconduct. Here, during the conference it was asked whether Woods' presence was necessary and Woods' attorney stated that it was not. VRP at 4336-37. Thus, even under the more lenient standard applicable to direct appeals, Woods' argument fails.
434 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
11. ADMITTANCE OF COMPELLED STATEMENT
¶78 Woods claims, finally, that during the reading of his Miranda «14»rights, Detective Grabenstein failed to tell him that he had a "constitutional right to stop answering questions at any time until he talked to a lawyer." Am. Pet. at 206. Because of this alleged omission, Woods argues, the statement he made to the detectives should not have been admitted into evidence.
[37]¶79 Under Miranda , a suspect in custody must be warned prior to any questioning that: (1) he has the absolute right to remain silent, (2) anything that he says can be used against him, (3) he has the right to have counsel present before and during questioning, and (4) if he cannot afford counsel, one will be appointed to him. State v. Brown , 132 Wn.2d 529 , 582, 940 P.2d 546 (1997) (quoting Miranda , 384 U.S. 436). Here, Detective Grabenstein read those warnings to Woods from a "constitutional rights card." VRP at 2732. On this card, there are two questions: (1) "Do you understand these rights," and (2) "Do you want to give up these rights and answer my questions." Id. at 2734. After each of these questions, Woods wrote "yes." Id.
[38]¶80 Although suspects must be advised of their Miranda rights, the United States Supreme Court and this court have stated that there is no requirement that the warnings be given in the precise language stated in Miranda . Duckworth v. Eagan , 492 U.S. 195, 202-03, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989); Brown , 132 Wn.2d at 582 . "The question is whether the warnings reasonably and effectively conveyed to a suspect his rights as required by Miranda ." Id .
[39]¶81 Woods seems to contend that there is a fifth warning that must be added to the Miranda warnings - the right to stop answering at any time until he talks to a lawyer. See Am. Pet. at 207. For support, he relies on Duckworth. In Duckworth , the police department advised
«14» Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
June 2005 In re Pers. Restraint of Woods 435
154 Wn.2d 400
the defendant of his Miranda rights from a form that included the statement, " 'You also have the right to stop answering at any time until you've talked to a lawyer.' " Duckworth , 492 U.S. at 198 (quoting Eagan v. Duckworth , 843 F.2d 1554, 1555 (7th Cir. 1998)). The actual issue presented in Duckworth was whether the Miranda rights given, with the language " '[w]e have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court,' " properly complied with Miranda . Id. at 198 (emphasis omitted). The United States Supreme Court held that the warnings "touched all of the bases required by Miranda ." Id. at 203. Citing this language from Duckworth , Woods argues that a proper Miranda warning must include the language, "you also have the right to stop answering questions at any time until you've talked to a lawyer." This argument is flawed. Just because the Supreme Court stated that the warnings given in Duckworth touched all bases does not mean that all elements in the Duckworth warnings must be present for the warnings to be effective.
¶82 As stated before, there is no requirement that the Miranda be given precisely as stated in Miranda v. Arizona . As long as the warnings are reasonably and effectively conveyed to the suspect, they are deemed proper. The actual Miranda warnings read to Woods by Detective Grabenstein were as follows:
I am Mark Henderson and Rick Grabenstein, deputy sheriff. You have the right to remain silent. Anything you say can and will be used against you in a court of law.
You have the right to talk to an attorney before answering any questions. . . . You have the right to have your attorney present during the questioning. If you cannot afford an attorney, one will be appointed for you without cost before any questioning if you so desire.
RP at 2733. From the above excerpt, it is clear that Woods was given proper Miranda warnings. Although they are not word for word from Miranda v. Arizona , the message they convey is clear.
436 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
IV. CONCLUSION
¶83 After consideration of Woods' amended personal restraint petition and thorough review of the record, we conclude that Woods' claims are meritless. We, therefore, deny his amended personal restraint petition.
C. JOHNSON, MADSEN, BRIDGE, OWENS, and FAIRHURST, JJ., and IRELAND, J. Pro Tem., concur.
¶84 CHAMBERS, J. (concurring in part/dissenting in part) - I agree with the majority that "Woods has not shown that his due process and equal protection rights were violated by the denial of some of his requests for funds for investigative and expert services." Majority at 413. However, because Woods had a statutory right to counsel in this case, Woods' request for attorney fees should have been granted.
¶85 RCW 10.73.150 provides in relevant part:
Counsel shall be provided at state expense to an adult offender convicted of a crime . . . when the offender is indigent . . . and the offender:
. . . .
(3) Is under a sentence of death and requests counsel be appointed to file and prosecute a motion or petition for collateral attack.
(Emphasis added.) We have held that this statute does not authorize the expenditure of public funds for investigative services. In re Pers. Restraint of Gentry , 137 Wn.2d 378 , 392, 972 P.2d 1250 (1999). However, in capital cases, requests for such services, as well as requests for discovery, may be granted if a petitioner establishes that there is a substantial reason to believe that the services will produce information that would support relief. See RAP 16.26, 16.27. In this case, we properly granted many of Woods' requests for services but denied payment for those where Woods failed to show that there was a substantial reason to believe that the services would support relief. Under the
June 2005 In re Pers. Restraint of Woods 437
154 Wn.2d 400
rules of appellate procedure, such nonmandatory decisions were a proper exercise of our discretion.
¶86 RCW 10.73.150 , however, does not afford us the same discretion. The language of RCW 10.73.150 (3) is mandatory: when an indigent offender under sentence of death so requests, counsel "shall be provided . . . to file and prosecute" a personal restraint petition. This statute generally expands the right to counsel beyond constitutional requirements. State v. Mills , 85 Wn. App. 285 , 290, 932 P.2d 192 (1997). In enacting the statute, the legislature conferred upon indigent petitioners a substantive right to counsel in collateral proceedings. Id. Providing publicly funded counsel for indigent petitioners is uniquely within the power of the legislature. "It is the Legislature's prerogative, as the taxing and appropriating branch of government, to determine what actions other than those which are constitutionally mandated will be publicly funded." In re Dependency of Grove , 127 Wn.2d 221 , 236, 897 P.2d 1252 (1995).
¶87 Woods was appointed counsel to prepare and file a personal restraint petition. After his petition was filed, this court ordered a re-transcription of portions of the trial record, and Woods then filed an amended personal restraint petition. Though she was authorized by the Office of Public Defense to represent Woods in this matter, counsel was not paid for all of the work that she did on Woods' behalf. Most of the additional work was necessitated by our decision to order a re-transcription of the proceedings, which required Woods' counsel to review a new record and prepare an amended personal restraint petition. We denied Woods' motion for an order authorizing sufficient funds for counsel on May 8, 2003. To the extent that Woods' request for additional attorney fees was reasonable, that order was in error. The majority concludes that authorization of additional time to complete the amended petition is unreasonable because the previously authorized payment was "sufficient to allow completion" of the amended petition. Majority at 413-14. Clearly, however, the previously autho
438 In re Pers. Restraint of Woods June 2005
154 Wn.2d 400
rized amount of time was not sufficient because Woods' attorney actually performed considerably more work than this court authorized. Because I have no reason to suspect that Woods' attorney did not require this additional time, I cannot say that the request was unreasonable.
¶88 Because the mandatory language of RCW 10.73.150 clearly applies to this situation, we should have granted Woods' motion for an order authorizing sufficient funds. The legislature mandates that counsel be publicly funded in situations such as these. The majority's decision to deny such funding is in error.
¶89 While I concur with the majority's analysis of the remaining issues, I respectfully dissent with regard to its decision to deny Woods' request for attorney fees.
SANDERS, J., concurs with CHAMBERS, J.