Broken Doll

by Burl Barer

  It was also argued on appeal that Clark’s right to due process and a fair and impartial trial were denied because the trial court (twice) denied his motion for a change of venue. He contended the pretrial publicity affected the jury’s ability to decide his case impartially.

  “The decision to grant or deny a motion for change of venue is within the trial court’s discretion,” wrote the supreme court, “and appellate courts are reluctant to disturb such a ruling absent a showing of abuse of discretion.”

  “Abuse of discretion” is not a vague term. To demonstrate an abuse of discretion, the defendant must show “a probability of unfairness or prejudice from pretrial publicity.” There are nine factors used to determine whether or not there was probable unfairness and/or prejudice:

  The inflammatory or noninflammatory nature of the publicity.

  The degree to which the publicity was circulated throughout the community.

  The length of time elapsed from the dissemination of the publicity to the date of trial.

  The care exercised and the difficulty encountered in the selection of the jury.

  The familiarity of prospective or trial jurors with the publicity and the resultant effect upon them.

  The challenges exercised by the defendant in selecting the jury, both peremptory and for cause.

  The connection of government officials with the release of publicity.

  The severity of the charge.

  The size of the area from which the jury pool is drawn.

  Clark’s attorney strenuously urged that a large amount of inflammatory publicity, calculated to evoke strong emotional responses, saturated the community around Everett in Snohomish County.

  Judge Thorpe previously ruled that “the media coverage itself didn’t create the inflammatory publicity as much as the facts of the crime,” and even Judge Thorpe, upon first entertaining the change of venue motion in December 1995, had thought the eight months elapsed since the crime had likely dislodged any impressions in the minds of prospective jurors.

  The appeal also pointed out that only one of the seated jurors expressly disavowed prior knowledge about the crime. Seth Fine, on behalf of the state, quibbled with this assertion, arguing that most jurors who were excused expressed a hardship or strong views about the death penalty.

  “Whether it was 1 seated juror, 8 prospective jurors, or 12 prospective jurors out of a panel of 114,” decided the state supreme court, “there is nevertheless no evidence presented of such an overwhelming pretrial bias amongst the panel members that a fair and impartial jury could not be selected.” In the supreme court’s opinion, “Clark does not present persuasive evidence of juror partiality . . . nor do we here find an abuse of discretion.”

  Another issue appealed to the state supreme court was the allegation that the state introduced evidence of his prearrest silence in an attempt to persuade the jury of his guilt. Both Clark and the state agree that the Fifth Amendment prevents the state from commenting on “the silence of the defendant so as to infer guilt from a refusal to answer questions.”

  This rule equally bars the use of prearrest silence as evidence of guilt. The fact that an issue was made of Clark not showing up at the Doll-Iffrig residence with his aunt Vicki after leaving the Everett Police Department on April 1 was regarded as a violation of that rule—the message being “he didn’t show up, therefore he had something to hide, such as guilt.”

  Characterizing Richard Clark’s behavior as “prearrest silence” seemed a bit of a stretch to the state’s highest court. He volunteered to speak with Lieutenant Hegge and Detective Herndon. He told Lieutenant Hegge he would go to the Doll-Iffrig house on April 1, 1995; he told his aunt, traveling with him, he did not stop because he had no license. The next day, he changed his story and told Detective Herndon he did not come out because he was low on gas. “When a defendant does not remain silent and instead talks to police,” the supreme court wrote, “the state may comment on what he does not say.”

  False information given to the police is considered admissible as evidence relevant to defendant’s consciousness of guilt, and in this situation, Clark spoke with police on two occasions prior to arrest and developed a conflicting account of why he did not follow Lieutenant Hegge’s instructions to meet with detectives at the Doll-Iffrig house. “This is not apparently a matter of prearrest silence,” decided the Washington State Supreme Court. “There was no error.”

  The courtroom appearance and testimony of child rapist and jailhouse informant Eugene Hillius also came under attack in the appeal. Hillius testified that Clark, after commenting on the retrieval of his DNA from the anal cavity of Roxanne Doll, “just looked at me, just—it was like I was looking like I could look right through him, which is unreal, like he didn’t care, like there is no feelings there at all. I get kind of blown away.”

  The error, Clark’s lawyers insisted, was that the trial court erred in denying him the opportunity to tell the jury the specific instances behind Hillius’s convictions for theft and forgery. Clark essentially argued that if the jury knew what a dishonest crook Hillius was, they wouldn’t pay any attention to him.

  In both law and theory, Clark’s argument was correct—except for one significant point: misconduct diminishes with the significance of the witness in the state’s case. “Hillius was not a crucial witness,” said Seth Fine, and the state supreme court agreed: “Hillius was impeached on direct examination by an enumeration of each of his 36 prior convictions, Judge Thorpe concluded further examination on the misconduct underlying some of those convictions would not be any more probative. That was not an abuse of discretion.”

  Using the same line of reasoning as Jaquette did in the courtroom, Clark’s appeal asked the state supreme court either to dismiss his conviction for a new trial, or remand for sentencing for second-degree murder.

  However, the supreme court had previously ruled that sufficient evidence to infer premeditation has been found where (1) multiple wounds were inflicted; (2) a weapon was used; (3) the victim was struck from behind; and (4) there was evidence of a motive, such as robbery or sexual assault.

  Sufficient evidence to infer premeditation also has been found in cases where multiple wounds were inflicted by a knife procured at the site of the killing; the killing took place in a room away from the kitchen where the knife was found; and where the evidence indicated that the victim had engaged in a prolonged struggle.

  “Roxanne Doll was killed with a knife and was stabbed at least seven times in the neck,” noted the court. “Cuts on her hands indicated a defensive struggle, and she was sexually assaulted. The trial court properly denied Clark’s motion to dismiss.”

  Another attack on the case was that there were so many errors, that when you added them all up, the cumulative errors were enough to overturn the conviction, or grant Clark a new trial. “The state claims any alleged errors, individually or collectively,” argued Seth Fine, “were harmless in light of the overwhelming evidence of Clark’s guilt beyond a reasonable doubt.”

  The state supreme court ruled in favor of the Snohomish County prosecutor. “As we have found no errors with respect to the guilt phase, we find no cumulative error to have denied Clark of a fair trial.”

  There was nothing fair, however, about Clark being shackled when the verdict was read, and also throughout the special sentencing proceeding. The appeal insisted that this violated both the United States Constitution and the Washington State Constitution.

  “A trial judge must exercise discretion in determining the extent to which courtroom security measures are necessary to maintain order and prevent injury. That discretion must be founded upon a factual basis set forth in the record. A broad general policy of imposing physical restraints upon prison inmates charged with new offenses because they may be ‘potentially dangerous’ is a failure to exercise discretion.

  “This court and courts of other jurisdictions have universally held that restraints should ‘be used only when necessary to prevent
injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape.’”

  Clark was shackled when entering the jury auditorium on the first day of jury selection, in front of the entire jury venire. Despite defense counsel’s objection, the trial court found the jury venire would not be able to see Clark actually in shackles. However, the jury could infer shackling from Clark’s stilted and restrained movement.

  “The state concedes the trial court went through no individualized assessment of the need for shackling,” noted the court. “The state directs us to no evidence in the record, nor do we find any, that would imply Clark posed a threat of violence, escape, or disruption. Nor was there evidence of anything other than decorous behavior during pretrial hearings. Therefore Clark’s shackling at points during the guilt phase was constitutional error and therefore presumptively prejudicial. With respect to the shackling on the day the verdict was returned, and throughout the special sentencing proceeding, Clark was shackled throughout the sentencing phase.”

  Unlike prison clothes, physical restraints may create the impression in the minds of the jury that the court believes the defendant is a particularly dangerous and violent person. Therefore, in the absence of a compelling need to shackle the defendant during his sentencing hearing, such a practice is inherently prejudicial. “The crucial thing,” states the court, “is the impact of the thing done wrong on the minds of other men.”

  First, Clark was not shackled throughout the two-and-a-half week trial. Second, the jury had already arrived at its verdict of guilt or innocence prior to the second time they saw Clark shackled. Because the impact of shackling on the presumption of innocence is the overarching constitutional concern, it would logically follow that in the minds of the jurors Clark’s shackling on the first day of voir dire was more than logically offset by over two weeks of observing Clark in the courtroom without shackles.

  Furthermore, the presumption of innocence was not at stake on the day the verdict was read because the jury had already judged Clark guilty. “Clark’s shackling on the first day of voir dire and the day of the verdict was harmless error beyond a reasonable doubt,” ruled the state supreme court.

  The trial court made sure Clark was not moved in or out of the room in the presence of the jury, the shackles were taped to eliminate any noise, and the jury never saw Clark in motion during the guilt phase. A protective skirt concealed the shackles at counsel table, and Clark never moved from his seat during the penalty phase except to stand for the entry of the judge and jury.

  “Although Clark’s shackling during both the guilt and penalty phases was constitutional error because no appropriate individualized assessment took place,” ruled the state supreme court, “we find he was not prejudiced and hold the error harmless beyond a reasonable doubt.”

  One by one, Seth Fine’s command of law, logic, and application convinced the Washington State Supreme Court that the objections of the defense were rightfully overruled, but the biggest battle yet remained. The battle best summed up in two words: Feather Rahier.

  Judge Thorpe ruled that the facts surrounding Clark’s 1988 conviction for unlawful imprisonment were inadmissible in the guilt phase. In the penalty phase, however, the state was allowed to present full details of the abduction and unlawful imprisonment of little Feather Rahier. They heard all about the dark garage, the age of Feather, and that she was Clark’s neighbor. The defense argued that it should not be allowed because it was unfairly prejudicial to Clark.

  Countering that allegation, Seth Fine argued that the state only sought to evince a “few basic facts” surrounding the matter, and that such information was perfectly admissible.

  In deciding whether leniency is merited, the jury may consider whether the defendant has or does not have a significant history, either as a juvenile or an adult, of prior criminal activity.

  “Since the death penalty is the ultimate punishment,” wrote the court, “due process under this state’s constitution requires stringent procedural safeguards so that a fundamentally fair proceeding is provided. Where the trial which results in imposition of the death penalty lacks fundamental fairness, the punishment violates article 1, section 14 of the state constitution.”

  The law does not prohibit the introduction of additional information, that simply states the particular elements of the crime that was the basis for the conviction. What happened in the case of Richard Mathew Clark was quite different. Not only was a certified copy of the judgment and sentence for the conviction entered, but a police officer from the Everett Police Department was permitted to testify from a police statement that the victim of the unlawful imprisonment was a four-year-old girl who was a neighbor to Clark. Testimony was offered to prove more than the fact of a conviction and more than the elements of the offense.

  “The trial court erred by admitting this testimony for two reasons,” read the court’s opinion. “First, it was inadmissible on its face because it went beyond the scope of the statute we have construed to allow introduction of only the record of conviction. If we allow narrative testimony of this kind there would be no foreseeable end to these trials within a trial. Second, it should have been excluded from evidence even if otherwise admissible because it was unduly prejudicial. Evidence of the unlawful imprisonment victim’s tender age and relationship to Clark did not go to the elements of unlawful imprisonment—the knowing restraint of another person. One need not imprison a child, or be an acquaintance of the victim, in order to commit the crime of unlawful imprisonment.

  “The prejudice is apparent when one recalls the offense for which Clark was sentenced to death. On the face of it, this may have been the most prejudicial evidence entered in the sentencing phase against Clark, a bit of evidence that the jury could not have possibly disregarded. Perhaps that is why the trial court did not allow the evidence to come out during the guilt phase, before paradoxically changing its position in the penalty phase. The prejudice of its admission became clear in the state’s closing argument during the penalty phase that ‘this defendant preys on the vulnerable and the weak and the small.’”

  The Washington State Supreme Court feared such evidence was too likely to short-circuit the jurors’ reasoning and inflame their passions. “We therefore hold the admission of the police statement concerning the previous false imprisonment conviction, over and above the mere judgment and sentence for that crime, was unfairly prejudicial, and requires vacating Clark’s death sentence and remanding for a new special sentencing proceeding.

  “We affirm Clark’s conviction for aggravated first-degree murder, first-degree kidnapping, and first-degree rape. However . . . we reverse his death sentence and remand to the trial court where, if the state desires, a new special sentencing proceeding may take place.”

  Richard Mathew Clark was still guilty of all charges, and he still possibly faced the death penalty. The entire sentencing phase, deciding life in prison or the death penalty, must be conducted anew. “And with a new jury,” said Gail Doll with a sigh. “It’s amazing how long this has been dragging on.” Doll’s frustration was revealed in her latest victim impact statement.

  “It has been over six years now since Richard Mathew Clark stole a very valuable piece of my life. Time has been marching on and changing everything except for the one photograph on my wall of the beautiful little girl who once loved us and trusted us to keep her from harm’s way.

  “It was on that one night, in a moment of comfort, that our guard was let down and this man who pretended to be a friend stole a part of me and my family that we can never get back.

  “In the first victims statement I wrote of who Roxy was: a beautiful little girl with a heart of gold, an animal charmer, lover of books, movies and songs. How she worked hard to learn to ride a bike, [a] person with such potential and inner strength that you couldn’t help but love her. But in this statement I would like to tell you what it has been like going on without her.

  “Each day I see my children g
rowing moody and I can’t help but think if only she were here. Her brother is now in high school; her older sister in college. Her youngest sister, who’s [sic] has now had to live over half her life without her sister, is beginning to blossom into the young woman Roxy was never allowed to be.

  “I have had to watch with aching heart as my nieces, who are only months older than Roxy, grow and become [the] wonderful young people they were meant to be.

  “It is hard to believe that it has been six years since Roxy has been gone. This trial and the Oklahoma Bombing trial started at the same time. The only difference is Oklahoma is going to receive closure soon and the lawyers here will still be fighting to make sure that Mr. Clark receives a fair sentence.

  “Mr. Clark is the one who brought this action upon himself the moment he took my daughter from us. He used her like she was nothing and discarded her like trash. He took no more thought in how truly special she was than he did a piece of waste. He took something from my family we can never replace. Roxanne Christine Doll. And for this crime, he should die. He has lived on this earth longer than he should have. We have waited longer than we should have for the justice we deserve. We the loved ones should have the closure we deserve, and that this man be made accountable for the vicious acts he did to my daughter. That he [be] made to pay the price that he chose when he brutally raped and murdered Roxanne, and dumped her like she was nothing. Roxanne deserves justice; she deserves to have her killer’s fate be finalized.”

  The finalized fate of Richard M. Clark was most likely sealed the day his mother died on Highway 9, or perhaps it was the day Carol Clark told him that she couldn’t be his mother, the first time he was beat with a fireplace poker, or the evening meal where he choked down that cigar. Jaquette made a point that not everyone experiences or responds to hardship the same way. None of the other kids became child molesters or murderers, but none of the other kids was Richard Mathew Clark.