Opinion
No. 50267-1-I c/w No. 49907-6-I
Filed: May 12, 2003
Appeal from Superior Court of King County. Docket No. 00-2-29034-9. Judgment or order under review. Date filed: 03/22/2002.
Counsel for Appellant/Cross-Respondent, Mark S. Elgot, Attorney at Law, 600 University St. Ste 1928, Seattle, WA 98101-4178.
Counsel for Respondent/Cross-Appellant, Andrew Roman Gala, Scxhwabe Williamson Wyatt, 1420 5th Ave Ste 3010, Seattle, WA 98101-2339.
Steven a Miller, Schwabe Williamson Wyatt, 1420 5th Ave Ste 3010, Seattle, WA 98101-2339.
Chester Harper was charged with second degree assault while armed with a deadly weapon after he repeatedly hit another person with a small wooden club. A jury found him guilty of second degree assault. In this appeal, Harper contends that his trial counsel was ineffective for failing to request a lesser included instruction on third degree assault. We reject this claim of ineffective assistance of counsel. Finding the claims raised by Harper in a consolidated personal restraint petition also to be without merit, we affirm the judgment and sentence entered on Harper's assault conviction and deny the personal restraint petition.
FACTS
One afternoon, a car suddenly stopped in a relatively busy area of downtown Seattle. The driver got out of the vehicle and repeatedly hit one of his passengers with a small wooden bat. The driver, later identified as Harper, then reentered the car and drove off. Two unrelated individuals called 911 and reported the attack. Shortly thereafter, Seattle police officer Cook stopped a car matching the description of the suspect vehicle. Police officers detained Harper, the occupant of the front passenger seat, later identified as Ms. Gardner, and three other occupants in the back seat. One of the back seat passengers, Mr. Hollins, appeared to be injured and was transported to a nearby hospital for medical treatment. Harper was charged with second degree assault while armed with a deadly weapon. Prior to trial, counsel for Harper moved to exclude the testimony of Roni Uyeda, one of the two individuals who called 911. Harper argued that the prosecution had failed to disclose the prospective witness in a timely manner. The trial court denied the motion, concluding that the defense had not been prejudiced since Harper would have an opportunity to interview Ms. Uyeda before trial.
At trial, Harper was positively identified as the person who repeatedly hit Mr. Hollins on the head with the wooden bat. Officer Cook testified that Mr. Hollins' face was bloodied and bruised and that he appeared to be somewhat disoriented when he was finally rescued from the car driven by Harper.
After both sides rested, Mr. Hollins was finally located, having previously had a material witness warrant issued for his arrest. Although the trial court offered to reopen the case, neither the State nor the defense expressed any interest in calling Mr. Hollins as a witness. In closing, defense counsel argued that the State had failed to prove either that the small wooden bat was a deadly weapon or that Mr. Hollins suffered substantial bodily harm due to the rather superficial nature of his injuries. Defense counsel went on to argue: You're going to have the opportunity to consider, the option to find my client guilty of assault in the second degree or you're going to have the option to find my client guilty of assault in the fourth degree. And as the Judge read to you, assault in the fourth degree, you would have to find that on or about the 21st day of June, 2001, Mr. Harper assaulted Mr. Hollins, and that the acts occurred in the State of Washington. That is most likely what happened. I hate asking the jury to find my client guilty of anything, but if you're going to find him guilty of something, I would say that you would not be able to find that the defendant alone was the one that inflicted substantial bodily harm.
Harper did not object or otherwise take exception when the trial court failed to give Harper's requested instructions on third degree assault under RCW 9A.36.031(1)(f). However, the court did give Harper's requested instructions on fourth degree assault. The jury found Harper guilty of assault in the second degree, but acquitted him of the deadly weapon enhancement.
At sentencing, defense counsel requested an exceptional sentence downward. Included with the presentence report prepared by the defense was a letter from Mr. Hollins in which he claimed primary responsibility for the entire incident. The trial court imposed a standard range sentence. Harper appeals. He has also filed a personal restraint petition, which has been consolidated with his appeal for disposition.
ANALYSIS
Harper contends that he was denied his right to effective assistance of counsel. The Sixth Amendment affords criminal defendants the right to effective assistance of counsel.
State v. Davis, 141 Wn.2d 798, 860-61, 10 P.3d 977 (2000).
A strong presumption of competent representation generally attaches to the review of a claim of ineffective assistance of counsel. In Washington, courts use the two-prong Strickland test for determining the effectiveness of counsel. To satisfy the test, a defendant bears the burden of proving both that trial counsel's representation was deficient and that the deficiency prejudiced the defense. `The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation based on the record established in the proceedings below.' To establish prejudice resulting from ineffective representation, the defendant must show there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Strickland, 466 U.S. at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
McFarland, 127 Wn.2d at 335.
Thomas, 109 Wn.2d at 226.
Harper contends that his trial counsel was ineffective for failing to request a lesser included instruction on third degree assault under RCW 9A.36.031(1)(d). Because Harper was charged with committing second degree assault by two means and third degree assault under RCW 9A.36.031(1)(d) is a lesser included offense of second degree assault under those `conjoined means,' argues Harper, his trial counsel was ineffective for failing to request instructions on that particular means of committing third degree assault. This argument fails for several reasons. To begin with, the two charged means of committing second degree assault are not, as Harper argues, `conjoined' into one crime containing the elements of both simply because the State used the conjunctive `and' between the two means charged in the information and later argued in closing that both means were committed. Harper could have been convicted under either alternative. `Where, under a penal statute, a single offense can be committed in different ways or by different means and the several ways or means charged in a single count are not repugnant to each other, a conviction may rest on proof that the crime was committed by any one of the means charged.' In addition, Harper has not shown that counsel's failure to propose the instructions was anything but a tactical decision. Defense counsel's legitimate trial strategy and tactics cannot be the basis for an ineffective assistance of counsel claim. Finally, the test for determining when a lesser included instruction is appropriate involves both legal and factual prongs. Neither prong is satisfied here. As to the legal prong of the test, third degree assault under RCW 9A.36.031(1)(d) and the two means of second degree assault charged in this case all have different elements. Likewise, the factual prong cannot be met since, given Harper's actions and behavior, there is nothing to indicate that only third degree assault was committed. Therefore, Harper has failed to establish that he received ineffective assistance of counsel.
Harper's trial counsel proposed instructions on another means of committing third degree assault and Harper does not assign error to the trial court's refusal to give them.
See State v Ford, 33 Wn. App. 788, 789-90, 658 P.2d 36 (1983).
State v. Dixon, 78 Wn.2d 796, 802, 479 P.2d 931 (1971).
McFarland, 127 Wn.2d at 336.
State v. Pastrana, 94 Wn. App. 463, 470, 972 P.2d 557 (1999).
Harper contends in his personal restraint petition that his assault conviction should be set aside based on other ineffective assistance of counsel claims, newly discovered evidence, and governmental misconduct. These claims, however, are all without merit.
Relief will be granted in a personal restraint proceeding only where a petitioner can establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a `complete miscarriage of justice.' Bare assertions and conclusory allegations are not sufficient to command judicial consideration and discussion in a personal restraint proceeding. Harper argues that his trial counsel was ineffective for failing to conduct an adequate investigation. He argues counsel should have called Ms. Gardner and Mr. Hollins as defense witnesses. `An attorney's decision about what witnesses to subpoena or ignore is tactical; it generally does not support a claim of ineffective counsel.' Harper's other claims of ineffectiveness are similarly without merit. As previously noted, there is a strong presumption counsel's representation was effective. That presumption has not been rebutted here.
In re Personal Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990); In re Personal Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).
State v. Shilling, 77 Wn. App. 166, 177, 889 P.2d 948 (1995).
Harper next contends that he should be granted a new trial based on newly discovered evidence. Pointing to a sworn affidavit of Ms. Gardner and the letter from Mr. Hollins, Harper argues that these documents entitle him to a new trial. We disagree. Harper has not met his burden of showing that the evidence was newly discovered.
See In re Personal Restraint of Lord, 123 Wn.2d 296, 319-20, 868 P.2d 835 (1994).
Harper next contends that the trial court should have dismissed the charge against Harper as punishment for an alleged discovery violation. He argues the State knowingly withheld the substance of Roni Uyeda's testimony from the defense. This argument is not supported by the record, and there is no showing of actual prejudice.
See State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135 (1994) (holding dismissal is an appropriate remedy for governmental misconduct only where the alleged misconduct prejudices the defendant and materially affects the defendant's right to a fair trial).
We affirm the judgment and sentence entered on Harper's assault conviction and deny the personal restraint petition.
KENNEDY and COX, JJ., concur.