Opinion
No. 35773-9-II.
March 24, 2009.
Petition for relief from personal restraint.
Denied by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
UNPUBLISHED OPINION
Jimmee Chea petitions for relief following the mandate from his direct appeal in which we affirmed Chea's convictions of five counts of aggravated first degree murder and five counts of first degree assault, all with firearm enhancements. He claims that (1) he was deprived of effective representation by trial counsel's failure to pursue and investigate an alibi defense; (2) juror misconduct denied him his right to a fair trial; (3) his convictions of five counts of aggravated first degree murder violated double jeopardy protections; (4) his convictions of five counts of first degree assault violated double jeopardy protections; (5) the State failed to present sufficient evidence to support all ten convictions; and (6) no authority allows the State to charge and convict a defendant of being an accomplice to aggravated first degree murder. We deny the petition.
FACTS
We set out the facts developed at trial in great detail in our opinion affirming Chea's convictions, State v. Phet, noted at 127 Wn. App. 1016 (2005). In summary, those facts are that around 2:00 a.m. on July 5, 1998, several gunmen burst into the Trang Dai Café in Tacoma, Washington, and opened fire, killing five patrons and wounding five others. The police investigation led them to conclude that the shooting was gang related and, more specifically, involved the local LOC'd Out Crips (LOCs) gang, of which Chea was a member.
That night, two carloads of LOCs members, dressed in rival gang colors, drove to the café to get revenge for Son Kim's "mean mugging" of Chea. During the shooting, Chea remained in his car as the others took guns from Chea's trunk, rushed into the café, and opened fire.
Only Chea and John Phet went to trial. Several of those arrested for the shootings negotiated plea bargains with the State in exchange for their testimony and three died before trial. The jury found both Chea and Phet guilty of five counts of aggravated first degree murder, five counts of first degree assault, and found that they were armed with a firearm at the time of the offense. The trial court sentenced Chea to five consecutive life sentences without the possibility of parole, five consecutive one hundred month sentences for the assaults (consecutive to the murder sentences), and an additional 600 months for the firearm enhancements.
Central to the State's case was testimony from two of the participants, Veasna Sok and Thonna John Chak. We summarized their testimony in our opinion:
Co-defendants Sok and Chak testified that Phet and Chea participated in the shooting in retaliation for Kim's "mean mugging" Chea, and for Kim's fight with [Ri] Le. Chea was a gang member and Le was [a] gang affiliate. Both witnesses stated that, in gang culture, an act of disrespect provides grounds for retaliation and murder. They noted that the assailants, including Chea and Phet, purposefully donned red clothing before the shooting to distract from their gang's involvement. Phet, slip op. at 6.
ANALYSIS
We confine our analysis to only those issues raised in petitioner's brief and elaborated on in counsel's supplemental brief as all other claims are untimely. Recently, in Personal Restraint of Bonds, 165 Wn.2d. 135, 196 P.3d 672 (2008), the Supreme Court, relying on In re Personal Restraint of Benn, 134 Wn.2d 868, 938-39, 952 P.2d 116 (1998), held that appointed counsel can only raise issues within the one-year statutory deadline or issues that fall within an exception to that time bar. The Bonds court refused to consider a public trial issue that appointed counsel raised in his supplemental brief because it was not raised within one-year of the mandate from the direct appeal. The court also refused to apply equitable tolling despite inordinate delay in appointing counsel.
Petitioner's appeal mandated on January 18, 2006. He filed his PRP brief on January 9, 2007. We appointed counsel on December 11, 2007. Appointed counsel filed her brief on April 1, 2008. Consequently, appointed counsel's brief was filed more than one-year after the mandate (January 18, 2007) and the holding in Bonds limits our consideration to only those issues raised within one year of the mandate.
I. Ineffective Assistance Of Counsel: Failure to Investigate Alibi Defense
Chea first claims that defense counsel's failure to thoroughly investigate and pursue an alibi defense deprived him of his right to effective assistance of counsel. At trial, Chea testified that he was at home asleep when the Trang Dai massacre took place. He claimed that he lent his car earlier that evening to Khanh Trinn. He also testified that he was staying at his parents' home to take care of the dogs and fish, that his parents were out of town, and that only his sister was home and he did not see her that night.
Attached to Chea's personal restraint petition are five affidavits. Four of them are from members of Chea's family claiming they saw him asleep at his parents' house at the time of the shooting.
In the fifth affidavit, Chea declares:
From the moment of my arrest I have always maintained my innocence of these charges. I have informed each and every one of my attorneys from the day of my arraignment until the day of my conviction that I was at home and was not involved with the shooting deaths and assaults which occurred and took place at the Trang Dai Cafe on July 5th, 1998. I was always told by my attorneys no matter what I said or what alibi's [sic] I provided it would not help me in any way at all. Even though I provided information to each and every one of my attorneys and their defense investigators about my family members informing me they had witnessed me being asleep at their residence during the hours of 1:00 A.M. and 2:00 A.M. on July 5th, 1998 none of my attorneys looked into the matter, even when I told my attorneys that my family members are willing to testify on the stand on what they witnessed.
At one point in time during a trial recess, I brought to the attention of my attorneys that if they wish to talk with my family members they are present in the courtroom and are willing to testify in court to what they had witnessed, my attorneys told me it would not help my situation at all, it would make me look more involved in the crime, and the jury would not believe anything my family members would have to say. No one on my defense counsel even attempted to look or investigate into this matter.
Chea contends that because he was the only witness to testify that he was at home that evening, his family's testimony would have corroborated his claim and, because his case rested on credibility determinations, it would have weighed favorably for him as the State's witnesses were convicted felons, gang members, and people implicated in the shooting.
The State responds three-fold. First, it argues that the current affidavits cannot be reconciled with Chea's trial testimony and thus must be disregarded as recent fabrications or reflective of Chea giving perjured testimony at trial.
Second, the State notes that Kristi Weeks, a member of Chea's defense team, declares that she has no recollection of any alibi witnesses being brought to her attention and, had they, she would have pursued it vigorously. She also said that she, co-counsel, and the defense investigator interviewed Chea's brother, Jesse Chea. Finally, the State notes that the defense conducted an extensive investigation, returning to court at one point to request an additional 100 hours of investigative time.
Third, the State argues that even taking the affidavits as true, they do not demonstrate ineffective assistance of counsel as they demonstrate clearly that the question of whether to not use these witnesses was a tactical question. First, all five affiants declare that they talked to the defense team yet none presents any specific information that needed further investigation. Thus, there can be no failure to investigate basis for an ineffective assistance claim. Second, the State argues that tactical reasons show why defense counsel may have chosen not to use this testimony: (1) It would have contradicted Chea's testimony that only he and his sister were at home and his parents were out of town. (2) It would have made admissible certain journals that his sister kept containing entries critical of Chea. (3) It could have appeared contrived to the jury when every family member awoke between 1:00 a.m. and 2:15 a.m. and saw Chea asleep on the couch. And (4), Chea explained in his affidavit that trial counsel thought it would make him look more involved in the murders than less if the jury disbelieved his family.
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We begin with the presumption that counsel's assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122 (1986). This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting his counsel's conduct. State v. McFarland, 127 Wn.2d 322, 335-38, 899 P.2d 1251 (1995).
In In re Personal Restraint of Davis, 152 Wn.2d 647, 721, 101 P.3d 1 (2004), our Supreme Court noted that an attorney breaches his duty to his client if he fails "`to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" (Quoting Strickland, 466 U.S. at 691). The Court further explained that "[d]efense counsel must, `at a minimum, conduct a reasonable investigation enabling [counsel] to make informed decisions about how best to represent [the] client.' This includes investigating all reasonable lines of defense, especially `the defendant's most important defense.'" Davis, 152 Wn.2d at 721 (quoting In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001)).
Chea fails to show with competent evidence that defense counsel's failure to further investigate his alibi defense would have changed the trial outcome. None of the affidavits set forth information that defense counsel would have discovered had she conducted further interviews of the Chea family. Further, every affiant declares that he or she told the defense team that they could provide Chea an alibi. In these circumstances, it cannot be said that further investigation would have exonerated Chea. Further, aside from the problems with Chea's contradictory trial testimony, a decision not to put Chea's family on the stand can easily be characterized as tactical. Not only would the jury find it difficult to believe that every family member awoke during the same hours as the Trang Dai shootings and saw Chea asleep on the couch but, coupled with the video tape showing his car in the alley at the time and Chea's explanation that he lent his car that night to a friend who had three cars already, allowing his family to testify could have undercut his credibility rather than bolster it. Chea fails to show that counsel deprived him of effective representation.
II. Juror Misconduct
Chea next argues that he was denied his right to a fair trial because juror 11 tainted the proceedings with improper communications and contact with the prosecutor. In his affidavit, Chea explains that whenever juror 11 would enter the courtroom, she would wave, smile, wink, and greet the prosecution but would scowl and make disapproving facial expressions at the defense teams. Chea also claims that one of his attorneys saw juror 11 giving the prosecutor a hug in the hallway during a break. He claims that the attorneys from both sides, the judge, and the court reporter made light of juror 11's "old lady crush" on the prosecutor. PRP Fifth Affidavit. Finally, he claims that in post-trial interviews, juror 11 disclosed that she had wanted to convict the defendants from the first day after hearing the prosecutor's opening statement.
This was a two-month long trial: Opening arguments began on April 16, 2002, and the jury reached a verdict on June 27, 2002. We have carefully reviewed the portions of the record relating to this claim.
On June 10, Chea's counsel reminded the court that the issue of juror 11's conduct was still under advisement. On June 26, after defense counsel had given their closing arguments, the trial court ruled on the motion to excuse the juror:
I have pending before me a motion to excuse Juror No. 11, Jacqueline Fleming, a juror in this case. This request has been made to the court several times before, and I have been observing her more than anybody else. I watched her when other experts testified. I watched her when Grant Fredericks came back on the stand and testified.
I did not see anything that would support this court excusing her as a juror on this case, so I'm going to be denying the request to have her excused. I wanted to take care of that now.
Report of Proceedings (RP) (June 26, 2002) at 6724.
To prevail on this claim, Chea would need to show that misconduct occurred and that the trial court abused its discretion in failing to replace Juror 11. State v. Hawkins, 72 Wn.2d 565, 566, 434 P.2d 584 (1967) (misconduct); State v. Havens, 70 Wn. App. 251, 255-56, 852 P.2d 1120 (1993) (abuse of discretion). We defer to the trial court's determination of conflicting versions of what happened in the courtroom, particularly when it occurred in the judge's presence. The prosecutor's and the trial judge's observations support the trial court's finding and, thus, we see no abuse of discretion here.
Further, Chea presents no competent evidence to support his claims that (1) juror 11 hugged the prosecutor in the hallway and (2) juror 11 disclosed after trial that she decided the defendants were guilty during the State's opening arguments. Neither of these claims is based on personal knowledge or competent evidence. Both are hearsay and insufficient to establish misconduct. Hawkins, 72 Wn. App. at 566-67 (movant may not rely on hearsay to show prejudicial misconduct).
III. Double Jeopardy: Aggravated First Degree Murder
Chea argues that his five aggravated first degree murder convictions violate double jeopardy protections because the State charged him under RCW 10.95.020(10) and the unit of prosecution encompasses all five acts. That statute provides:
A person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, and one or more of the following aggravated circumstances exist:
. . . .
(10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;
Chea reasons that because aggravated murder occurs when "more than one victim" was murdered, the unit of prosecution is a single offense whenever multiple murders occur during the course of a first degree murder. He relies on the proscribed punishments to support his interpretation; namely, the death penalty and a life of incarceration can only be served once. He further argues that if the State wanted to charge him with multiple murders, it should have done so under RCW 9A.32.030, which provides:
(1) A person is guilty of murder in the first degree when:
(a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person;
Chea argues that absent the plural aggravating circumstance, this statute authorizes a separate conviction for each victim. But the State sought the higher degree of murder, aggravated, and, thus, should only have charged one crime.
The State responds that Chea's claim is meritless because aggravated first degree murder is a sentencing factor, not a substantive crime. It argues that Chea indeed violated RCW 9A.32.030 five times and that his sentence was aggravated because there were multiple victims. State v. Roberts, 142 Wn.2d 471, 501, 14 P.3d 713 (2000); State v. Kincaid, 103 Wn.2d 304, 312, 692 P.2d 823 (1985) (aggravating circumstances operate as "`aggregation of penalty' provisions that provide for an increased penalty where the circumstances of the crime aggravate the gravity of the offense.")
Relying on State v. Graham, 153 Wn.2d 400, 404-05, 103 P.3d 1238 (2005), the State argues that the unit of prosecution is per victim. There, the court examined the reckless endangerment statute and noted that when a statute proscribes a penalty for damage to "any" person or property, the intent is to convict only once when there is damage to multiple items or people. The court then noted that the reckless endangerment statute proscribed conduct that placed "another person" at risk and therefore the court concluded that the unit of prosecution was per victim.
Because RCW 9A.32.030(1)(a) as set out above proscribes causing the death "of such person or of a third person," the unit of prosecution is per victim. See also State v. Huested, 118 Wn. App. 92, 96, 74 P.3d 672 (2003) (deadly weapon enhancements for first degree rape and first degree burglary based on a single knife did not violate double jeopardy); State v. Claborn, 95 Wn.2d 629, 636-38, 628 P.2d 467 (1981) (separate weapon enhancements arising from same event did not create multiple punishments). Punishing Chea for five counts of aggravated first degree murder does not violate double jeopardy protections.
IV. Double Jeopardy: First Degree Assault
Chea argues that because his intent was to harm only a single person, he cannot be held guilty as an accomplice to four additional assaults the principal committed that went beyond the scope of his intent. Citing State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000), and Roberts, 142 Wn.2d 471, he argues that the court clarified that an accomplice is not liable for every crime a principal commits. He argues that the evidence showed only that he acted with knowledge that Kim was to be hurt and the principals exceeded the scope of this intent when they proceeded to fire on the others.
In order to be guilty to assault as an accomplice, there has to be proof "beyond a reasonable doubt that [Chea] had general knowledge that he was aiding in the commission of the crime of [assault]." Cronin, 142 Wn.2d at 582. While there was evidence that Chea and his carload went to the Trang Dai Café to avenge Kim's "mean-mugging" of Chea, the circumstances suggest strongly that there was much more afoot. Several, including Chea, dressed in red, a rival gang color, suggesting this was a gang hit. There was evidence of phone calls discussing and planning a drive-by shooting. Once Chea stopped his car in the alley, his riders and those from the other car got out and took weapons from Chea's trunk. Once the assailants got to the café, they gave the occupants no time to react instead spraying a steady stream of bullets throughout the café, striking at least ten of the patrons, including Kim. This evidence was more than sufficient to charge and convict Chea as an accomplice to all five assaults. It shows his active participation, encouragement, and facilitation of a planned blood bath.
V. Sufficiency of the Evidence
Chea argues that because he acted only with intent to commit a single offense against Kim, there is no evidence to support his convictions for the murders and assaults on the nine other victims. But this is a reiteration of the same claim raised on appeal, and Chea fails to give any reason, let alone a good reason, for redetermining that issue. See Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999) (petitioner must demonstrate that redetermining the grounds asserted on appeal would serve the ends of justice).
VI. Accomplice to Aggravated First Degree Murder
Chea next argues that under RCW 10.95.020 and RCW 9A.08.020(3), one cannot be an accomplice to aggravated first degree murder. He relies on the statutory language in both statutes. RCW 10.95.020 reads:
Arguably, Chea raised this same claim in his direct appeal when he argued, based on Roberts, 142 Wn.2d 471, State v. McKim, 98 Wn.2d 111, 653 P.2d 1040 (1982) and In re Personal Restraint of Howerton, 109 Wn. App. 949, 36 P.3d 565 (2001), that he had to personally participate in order for the aggravating factor to apply to his conduct. He described the jury instructions as flawed because they allowed the jury to find the aggravator without finding that either he personally participated or that his conduct was part of a common scheme. We address his claim now to make it clear that we have considered his claims and found them lacking in merit.
A person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, and one or more of the following aggravating circumstances exist:
. . . .
(10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person; (Emphasis added.)
Chea focuses on the italicized language to argue that this statute only applies to the person who commits first degree murder and the Supreme Court in Roberts, 142 Wn.2d 471, stated that this statute does not apply to one who commits first degree murder as an accomplice. But he reads Roberts out of context. The issue before the Supreme Court was whether the death penalty applied to one who was an accomplice to first degree aggravated murder. The court answered:
Based upon the above statutory language, it is debatable whether the aggravated murder statute as worded even allows for the execution of a defendant convicted as an accomplice to first degree murder. The statute narrowly specifies that only those who commit "first degree murder as defined by RCW 9A.32.030 (1)(a) " are subject to the death penalty. RCW 10.95.020 (emphasis added). No mention is made of committing first degree murder by way of the accomplice liability statute, RCW 9A.08.020. Furthermore, RCW 9A.32.030(1)(a) requires a mens rea of premeditated intent to kill and an actus reus that causes the death of the victim. The accomplice liability statute requires only a mens rea of knowledge, and an actus reus of soliciting, commanding, encouraging, or requesting the commission of the crime, or aiding or agreeing to aid in the planning of the crime. RCW 9A.08.020(3)(a). Roberts, 142 Wn.2d at 501-02. Clearly, the court did not hold that one cannot be an accomplice to aggravated first degree murder.
Chea also relies on the language in subsection (10) to conclude that the phrase of the person limits its application to the person that actually committed the offense. He reasons that if the legislature had intended to allow accomplices under the common scheme or plan language, it would have separated the final portion of the sentence with a comma. As it did not, he reasons, the common scheme or plan must be of the person.
Chea contends that this reading of the statute is consistent with the accomplice liability statute, which provides:
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it; or
RCW 9A.08.020(3) (emphasis added). Chea argues that the lead sentence in subsection (3) and subsection (a) clearly do not apply because they limit the reach of the statute to the crime and the legislature has clearly recognized that RCW 10.95.020 is not a crime but is an aggravating sentencing factor. Subsection (a)(i), he argues, cannot apply because it requires the accomplice to solicit, command, encourage, or request another person to commit the crime. And subsection (a)(ii) cannot apply because the State did not charge him under this provision.
But Chea misapplies these statutes. The State proved that he committed first degree murder under 9A.32.030(1)(a). Clearly the purpose of RCW 9A.08.020(3) is to make someone legally accountable for someone else's conduct. Here it made Chea legally accountable for the murders and assaults his cohorts committed. Further, those cohorts murdered five people and assaulted five others. For the same reason he is guilty of the underlying offenses, Chea is guilty of the aggravating circumstances. It makes no difference whether he is an accomplice or a principal.
Under the legal complicity statute, RCW 9A.08.020, an accomplice "is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable." A person is legally accountable for another's conduct when he is an accomplice of another person in the commission of the crime. RCW 9A.080.020(2)(c). Thus, the portions of the statute Chea does not discuss explain that he is legally accountable for the principal's behavior and, logically, if that person committed an aggravated offense, such as here, the accomplice is also guilty of that aggravation.
Not only does Chea fail to provide legal support for his claim that he is not legally accountable when aggravating factors exist, but the statute does not preclude such a charge. Clearly, by being an accomplice, he committed first degree murder. The lack of a comma in (10) between scheme or plan and or the result of a single act of the person does not mean that only the principal can be held liable. The phrase of the person refers to the person charged, here Chea.
VII. Issues Raised in Amended Brief
A. Accomplice Liability Instruction
Relying on Sarausad v. Porter, 479 F.3d 671, 692-94 (9th Cir. 2007), reversed sub nom Waddington v. Sarausad, 555 U.S. ___, 129 S. Ct. 823, ___ L. Ed. 2d ___ (2009), Chea argues that the accomplice liability instruction used at trial was ambiguous and therefore unconstitutional.
Like the instruction here, the instruction in Sarausad reflected the statutory language and did not contain the flaw found in Roberts and Cronin. The Ninth Circuit concluded that even with the correct statutory language, the instruction was flawed because it failed to provide an "explicit statement that an accomplice must have knowledge of the actual crime the principal intends to commit." Sarausad, 479 F.3d at 690. It reasoned that the phrase the crime could refer to either the crime actually committed or the crime the accomplice knew the principal intended to commit.
On January 21, 2009, the Supreme Court reversed the Ninth Circuit decision, holding that the Washington Supreme Court's interpretation of the instruction was reasonable, that the instruction was not ambiguous, and even if viewed as ambiguous, it did not violate the federal constitution. Waddington, slip op, at 11-13. Petitioner's claim fails in light of this decision. See Cronin, 142 Wn.2d at 578-79; Roberts, 142 Wn.2d at 511-12; State v. Davis, 101 Wn.2d 654, 656, 682 P.2d 883 (1984); and State v. Winterstein, 140 Wn. App. 676, 686-87, 166 P.3d 1242 (2007).
B. Reiterations of Claims raised in Opening Brief
Chea's claims in his amended brief as to the sufficiency of the evidence, juror misconduct, and ineffective assistance of counsel are simply reiterations of claims raised in his opening brief.
C. Jury Instruction and Special Verdict on Aggravating Factor
Chea argues that the jury instruction and special verdict form on the aggravating factor were deficient because they did not require that Chea have personally engaged in the aggravating act of committing multiple murders as part of a common scheme or plan. Citing State v. Silva-Baltazar, 125 Wn.2d 472, 481-82, 886 P.2d 138 (1994) (citing State v. McKim, 98 Wn.2d 111, 116, 653 P.2d 1040 (1982)), he argues that the accomplice is only responsible for the substantive crime not sentencing enhancements that were not his personal conduct.
While this is a reiteration of petitioner's claim VI above that an accomplice is not liable for a sentencing aggravation, we address it briefly because counsel discusses case law that Chea did not rely on in his opening brief.
In Silva-Baltazar, the court held that accomplices to a drug sale who were themselves present within 1,000 feet of a school zone were subject to the school zone sentence enhancement. The court reasoned that the school zone enhancement applies even where the principal did not know she was in a school zone. The court expressly reserved the question of whether the enhancement should apply to an accomplice who was not in the school zone.
In McKim, the court held that the deadly weapon enhancement for robbery only applied to an accomplice if the accomplice knew that the principal was armed.
Neither case helps Chea. Silva-Baltazar employed statutory interpretation to conclude that knowledge was not an element of a school zone enhancement because it was a strict liability condition. In McKim, the court made the observation that an accomplice is "equally liable only for the substantive crime — any sentence enhancement must depend on the accused's own misconduct." McKim, 98 Wn.2d at 117. The court then explained that one could have either actual or constructive possession of a weapon and that since the accomplice knew the principal was armed, the sentence enhancement applied to the accomplice as well. McKim, 98 Wn.2d at 118.
The legislature has amended the statute at issue in McKim to apply an enhancement "if the offender or an accomplice was armed with a deadly weapon." RCW 9.94A.533(3).
Here, on direct appeal, we found that sufficient evidence supported the application of aggravating factors as there was evidence that Chea participated, encouraged, and facilitated the crimes.
D. Cumulative Error
This issue is untimely under Bonds, 165 Wn.2d 135, as noted above, and does not fit within any exception to the one-year time bar of RCW 10.73.100. In any case, cumulative error requires an accumulation of otherwise non-prejudicial error. Here there are no meritorious claims that combined deprived Chea of a fair trial. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified by, 123 Wn.2d 737 (1994) (citing Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983)).
E. Ineffective Assistance of Appellate Counsel
Chea claims that appellate counsel failed to provide effective representation. As Chea does not identify any meritorious claims, failure of appellate counsel to raise the claims he now raises did not deprive him of effective representation. Strickland, 466 U.S. at 687.
We deny Chea's petition.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and ARMSTRONG, J., concur.