A. Elmore Raped and Murdered his 14-Year-Old Stepdaughter

Elmore raped arid murdered his 14-year-old stepdaughter, Kristy Ohnstad.  Elmore was the common law husband of Kristy's mother, Sue Ohnstad, and the biological father of Kristy's younger sister.

On the morning of Monday, April 17, 1995, Elmore was home alone with Kristy when she began complaining about missing her school bus. App. 38. When Elmore told Kristy that she was "grounded forever" for her complaints, she made a comment about Elmore having molested her when she was 5 years old. App. 38.  Kristy would threaten to turn Elmore in for the molestation whenever he tried to discipline her. App. 38. Elmore considered killing Kristy "[j]ust about every time" she threatened to turn him in for the molestation. App. 38.

Elmore later told police that he wished she had turned him in because it "[c]ost her her life." App. 38. That morning, Elmore told Kristy to "shut up." App. 38. Elmore and Kristy then got in Elmore's van, and drove towards Kristy's school. App. 38. But Elmore never dropped Kristy off at school. App. 38. Instead, Elmore continued driving for twenty minutes until he pulled the van onto a secluded dirt road. App. 38. After parking, Elmore unbuckled Kristy's seat belt, and told her it was time she learned to do as she was told or "she'd get seriously hurt." App. 38. Elmore grabbed Kristy, pulled her to the back of the van, and forcibly removed her clothes. App. 38. Ignoring her pleas, Elmore then raped Kristy. App. 38-39. Elmore later said Kristy did not fight back because "she wasn't strong enough to fight [him]." App. 39.

After raping Kristy, Elmore choked her with his hands, then wrapped a belt around her neck and cinched it tightly. App. 39. Elmore then took a nine-inch needle-like tool from his toolbox, and forced it into Kristy's left ear approximately five and a half inches, piercing her brain. App. 39. Kristy was still making noises, so Elmore covered her head with a plastic bag and repeatedly hit her skull with a sledgehammer until he was sure she was dead. App. 39. Elmore purposely covered Kristy's head with the plastic bag to prevent leaving evidence in the van when he hit her with the sledgehammer. An autopsy revealed that Kristy was alive throughout the entire attack as Elmore strangled her, drove the needle into her brain, and began bludgeoning her head. App. 40. Elmore left Kristy's nude body in the woods, covered with a plastic tarp. App. 39. Elmore then got back into his van and drove back to town, disposing of evidence as he drove. App. 39.

Sue Ohnstad reported Kristy missing that evening when she failed to return home from school. App. 37. The police began a formal investigation into Kristy's disappearance after her backpack was found in a ditch the next day. App. 37. In an attempt to divert attention, Elmore publicly criticized the police's efforts in looking for Kristy. App. 37. The police eventually found Kristy's body in the woods a few days later. App. 38. The plastic bag was over Kristy's head, and she was naked other than socks and a shirt pulled over one shoulder. App. 38. The black belt was around her neck and the metal spike protruded from her ear. App. 38. Detectives eventually traced back two flecks of paint recovered from the body to a toolbox in Elmore's van. App. 38.

B. Elmore Insisted on Pleading Guilty to Rape and Aggravated Murder

When Elmore first appeared in court, Elmore tried to plead guilty, but the court commissioner would not accept the plea. App. 39. The next day the court appointed Jon Komorowski to represent Elmore. App. 39. Mr. Komorowski was the most experienced attorney in the public defender's office, having tried aggravated murder cases and having experience in pursuing mental defenses. Mr. Komorowski was assisted by another experienced criminal defense attorney, as well as by an investigator, a social worker, and a legal assistant. App. 102.

The defense team prepared a mitigation package to try to convince the prosecution not to seek the death penalty. App. 102. As part of the mitigation package, the defense investigator compiled a report that included information about Elmore's background, his family's history and destitute circumstances, and his father's alcoholism and abusive behavior. App. 102. The report also detailed Elmore's education and employment history, his military service, his minor criminal history, and his marital history. App. 102. Despite the defense's efforts, the prosecution decided to seek the death penalty. App. 102.

Elmore appeared for arraignment, and again tried to plead guilty. App. 39. The judge did not accept the plea at that time, and continued the hearing. App. 39. At his next appearance, Elmore entered guilty pleas to rape and aggravated murder. App. 40: After engaging in an extensive colloquy to ensure the plea was knowing, intelligent, and voluntary, the judge accepted Elmore's plea. App. 40. The case then proceeded to the penalty phase to determine Elmore's sentence.

C. Defense Counsel Investigated Potential Mitigation Evidence for the Penalty Phase Trial, but Eventually Decided not to Investigate Further and to Present a Limited Defense Based on Remorse

The defense began investigating potential mitigation evidence before Elmore pled guilty. App. 102. In addition to preparing the pretrial mitigation package, defense counsel worked with a trial consulting firm on nearly every aspect of the case, including mitigation, jury selection, themes, and theories. App. 102. The consulting firm conducted mock trials for the case. App. 102. The consulting firm found the jurors responded better to evidence about remorse and acceptance of responsibility than to evidence concerning mental health. ER 102.

The defense team also travelled to Oregon and Eastern Washington to contact people from Elmore's past and to collect records. App. 102. As a result of this investigation, the defense team learned that Elmore suffered  numerous head injuries throughout his life, including an incident where Elmore's brother accidentally hit him on the head with an axe. App. 102. Elmore's mother told the defense team this was not a significant injury, and defense counsel decided the injury did not necessitate neurological testing. App. 121 n. 3. The defense team also learned that Elmore was exposed to Agent Orange in Vietnam, that as a mechanic Elmore worked with chemicals most of his life, that Elmore grew up near an airport where crop-dusting occurred, and that Elmore was knocked unconscious at least twice in his life. App. 102.

The defense retained a clinical psychologist, Dr. Kleinknecht, to determine whether Elmore had a mental illness, and was insane or had diminished capacity at the time of the crime. App. 102. Dr. Kleinknecht received extensive information on Elmore's background, met with Elmore four times, conducted a general screening to look for major mental disorders, and administered the Minnesota Multiphasic Personality Inventory (MMPI). App. 102. Dr. Kleinknecht found no signs of a major mental disorder, schizophrenia, or psychotic-like disorder. App. 103. According to Dr. Kleinknecht, if Elmore had significant brain damage, it would have manifested itself through difficulty in abstract thinking, poor memory, inability to use higher mental processes, and inability to hold objects. App. 103. Dr. Kleinknecht did not observe any serious impairment in Elmore's cognitive skills. App. 103.

Dr. Kleinknecht referred defense counsel to Dr. Roesch, a clinical psychologist who specialized in forensics, psychopathy, and future dangerousness. App. 103. Dr. Roesch also reviewed Elmore's background information and MMPI results, and interviewed Elmore for four hours. App. 103. Dr. Roesch concluded that Elmore was not a psychopath, and Dr. Roesch characterized the murder as an impulsive, reactive, and poorly considered attempt to cover up the rape. App. 103.  Dr. Roesch opined that the crime demonstrated "overkill" consistent with heightened emotional arousal. App. 103.

Defense counsel was gravely concerned after receiving the report because it indicated that Elmore had experienced feelings common for offenders who commit serious violent acts; feelings reflecting strong emotional arousal rather than a mental illness. App. 103. The report indicated that, after raping Kristy, Elmore appreciated the seriousness of his act and he decided to kill Kristy before she regained consciousness. App. 103. Not only did this report show premeditation, counsel knew this type of evidence would result in a "battle of the experts" that would focus the jury's attention on what happened before, during, and after the crime. App. 103. Based on the information obtained from the mock juries, counsel decided a defense focusing on Elmore's remorse and acceptance of responsibility offered the best chance of obtaining leniency. App. 108. Although a mental defense would not be inconsistent with remorse, counsel feared that a "battle of the experts" that focused on Elmore's mental state and the brutal facts of the crime would detract from the remorse defense. App. 108.

Counsel knew that pursuing a mental defense could be detrimental because it could open the door to damaging evidence. If counsel had pursued a defense based upon Elmore's mental health, the prosecutor would have had his own experts examine Elmore. App. 103; see also State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338 (1990) (prosecutor may obtain an expert examination of a defendant pursuing a mental health defense). Counsel knew pursuing a mental defense posed a serious risk of disclosure of harmful evidence because when Elmore was examined by the defense expert, he admitted to a history of deviant sexual arousal, especially towards young girls. App. 103. Counsel was concerned that Elmore would make a similar admission if examined by the prosecution's experts. App. 108.

Counsel also feared that Elmore would himself become disruptive if they presented a defense based upon mental health evidence. Counsel knew Elmore objected both to the presentation of such evidence, and to the time it was taking to investigate this evidence. Elmore was very concerned about the effect the public attention would have on his family, particularly his mother, and he desperately wanted the case resolved to bring closure for Kristy's mother. App. 104 and 108. Elmore told counsel not to call any of his family members as witnesses, and not to present any evidence relating to any aspects of his life. App. 104 and 108. Elmore objected to the presentation of mitigation evidence, especially mental health evidence, and Elmore threatened to act out in the courtroom if the defense presented such mitigation evidence. App. 104 and 108.

Defense counsel also feared that the delay caused by further investigation would harm the remorse defense. Elmore was beginning to back away from his feelings of remorse. App. 108. Elmore indicated he no longer had a need to apologize after Sue Ohnstad stated in a letter that their relationship would never be the same. App. 108. Counsel was concerned that further investigation into potential mitigation evidence would provide the prosecution additional time to discover that Elmore was retracting his expressions of remorse. App. 108. Elmore was beginning to express to jail staff that he was having a change in feelings on remorse. App. 23. Elmore was also expressing frustration with the time it was taking to bring the case to trial. Counsel determined the defense "was 'running out of time"' because further delay would cause the remorse defense to fall apart. App. 23 Defense counsel therefore decided not to further investigate potential mitigation evidence, and to instead focus on Elmore's remorse and acceptance of responsibility for the crime. App. 104 and 108.