Opinion
No. 60342-6-I.
January 12, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-03657-0, Dean Scott Lum, J., entered July 3, 2007.
Affirmed in part and remanded by unpublished opinion per Grosse, J., concurred in by Ellington and Lau, JJ.
UNPUBLISHED OPINION
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that his attorney's performance was deficient and resulting prejudice. An attorney is presumed to have provided competent representation and matters of strategy are generally left to the judgment and experience of trial counsel. Here, on the record before us, counsel's decision to forego a lesser degree offense instruction was a matter of trial strategy. Hence, counsel was not ineffective and we affirm the conviction. However, we remand for resentencing because the trial court erroneously imposed a doubling for each firearm enhancement.
FACTS
For over a year, Jason Fuhr had supplied drugs to Anthony Holloway's brother, Larry. Fuhr knew Larry by his street name of "Cheese" and he also knew that Cheese had a brother named Anthony who looked similar to Cheese, but was taller and heavier.
On December 12, 2003, Fuhr agreed over the phone to sell one-half of a kilo of cocaine. Fuhr believed he was dealing with Cheese because Holloway was calling from Cheese's cell phone. After several phone calls between the two men, a meeting time and place for the deal was set. Because Fuhr's driving license was suspended, he asked his long time friend, Jason Stanley, to drive him to the meeting place.
Stanley and Fuhr arrived at the designated house. Stanley remained in the car while Fuhr went to the house. When no one responded to his knocking, Fuhr called Cheese on his cell phone to tell him that he was at the house. The person who answered the call was later identified by Fuhr as Cheese's brother, Anthony Holloway. Holloway said he was just about to arrive. As Fuhr walked back toward his car, a van pulled up. Holloway emerged from the side of the van, approached Fuhr, and asked to check out the "dope." Fuhr refused and asked Holloway if he had the money. Stating it was in his bag, Holloway reached into his shoulder bag, pulled a handgun out, and put it in his back pocket.
Fuhr asked, "What's up with the gun?" and Holloway responded, "You know how it is, I know you got one yourself." Fuhr said he had one too, even though he did not actually have one. As Fuhr turned from Holloway toward his car, Holloway shot him. Fuhr fell into the car with his upper body landing on the front passenger side floorboard. Holloway shot him a total of four times. Fuhr closed his eyes, pretending that he was dead. Holloway leaned over Fuhr causing Fuhr to look up. Holloway screamed "motherfucker" and Fuhr saw Holloway discharge the gun in Stanley's direction. Stanley received three wounds: two to his upper right arm and one to his head. Holloway had also managed to somehow shoot himself in his own hand.
Holloway's blood, along with Stanley's and Fuhr's was identified through the crime laboratory's processing of the vehicle. Holloway's blood was also found in a van that had been rented to Holloway's mother around the same time as the incident.
Holloway did not testify at trial. Nor did the defense make an opening statement. His defense was one of mistaken identity. The defense argued that Holloway could have been shot as an innocent passerby to explain why Holloway's blood was found at the scene of the crime.
A jury trial was held and the jury found Holloway guilty of first degree murder and second degree attempted murder. Holloway appeals both convictions contending he received ineffective assistance of counsel.
ANALYSIS
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. "Deficient performance is not shown by matters that go to trial strategy or tactics." To demonstrate prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the outcome would have been different. If one of the two prongs of the test is absent, we need not inquire further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336.
State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
Lesser Degree Instruction
Holloway argues that he was entitled to the lesser degree instruction of second degree murder on Count I. Holloway relies on State v. Ward and State v. Pittman to support his position that counsel's failure to request the lesser degree offense constituted ineffective assistance of counsel. But Ward and Pittman are both factually specific and readily distinguishable.
125 Wn. App. 243, 104 P.3d 670 (2004).
134 Wn. App. 376, 166 P.3d 720 (2006).
In Ward, the defendant was charged with second degree assault after confronting two repossession agents trying to repossess his car. At trial, Ward claimed he believed the men were car thieves and that he was defending his property. Both he and his girlfriend testified that Ward only displayed the gun by opening his jacket. But Ward also told the arresting officer that the two men had come to repossess his car and that he had chased them off, seriously impeaching his testimony that he thought the men were car thieves. This court found that the claim of self-defense as an all or nothing approach was objectively unreasonable as a trial strategy because it relied on the credibility of Ward, and his credibility had seriously been impeached. Pittman is also distinguishable. In Pittman, the defendant was convicted of attempted residential burglary. Relying on Ward, the court concluded that the defendant was prejudiced by defense counsel's failure to request a lesser included instruction for attempted first degree trespass. The Pittman court noted that like Ward, the difference in penalties between the greater and lesser offenses, the defense's repeated acknowledgement that the defendant had committed the lesser offense and the State's weak evidence of the intent, necessary to support the greater offense.
Ward, 125 Wn. App. at 248.
Ward, 125 Wn. App. at 250.
Pittman, 134 Wn. App. 376.
Pittman, 134 Wn. App. at 387-88.
Pittman, 134 Wn. App. at 387-88.
Here, there is no acknowledgement by Holloway that he committed any crime, much less the lesser degree offense. Both the Ward and Pittman cases make abundantly clear that the determination of whether an "all or nothing" strategy is objectively reasonable is necessarily a highly fact-specific inquiry.
Holloway contends that counsel should have requested a second degree murder instruction because the jury could have reasonably found that he lacked the requisite intent for first degree murder: premeditation. But failure to offer a lesser offense instruction is not deficient performance if it can be fairly characterized as part of a legitimate trial strategy to obtain an acquittal. In State v. King, a defendant convicted of second degree assault argued that his counsel should have requested a lesser degree assault instruction. There, the court observed that such an instruction would have most certainly resulted in conviction, whereas defense counsel's decision to pursue an "all-or-nothing tactic" could have resulted in an acquittal. As the Supreme Court observed in State v. Hoffman:
State v. King, 24 Wn. App. 495, 601 P.2d 982 (1979).
24 Wn. App. 495, 601 P.2d 982 (1979).
King, 24 Wn. App. at 501.
Had the jury decided (as the defendants strenuously argued) that the evidence did not prove the charges of murder in the first degree and assault in the first degree beyond a reasonable doubt, then under the instructions given, the defendants would have been acquitted. The defendants cannot have it both ways; having decided to follow one course at the trial, they cannot on appeal now change their course and complain that their gamble did not pay off. Defendants' decision to not have included offense instructions given was clearly a calculated defense trial tactic and, as we have held in analogous situations, it was not error for the trial court to not give instructions that the defendant objected to.
116 Wn.2d 51, 112-13, 804 P.2d 577 (1991).
The jury asked the judge if "there [was] a lesser charge that may be considered in the death of Jason Stanley other than murder in the first degree?" Defense counsel argues that the jury's query revealed the jury's doubts about premeditation and thus a likelihood that the jury would convict on the lesser offense. But such a query might equally bolster a defense strategy where the jury could acquit on this charge if they came to the conclusion that Holloway did not have the specific premeditated intent to kill Stanley. Holloway asserts that this was akin to the jury query in Ward. But there, Ward admitted facts that would support a conviction for the lesser offense, whereas here, there were no such admissions. Failure to request a lesser included offense instruction can be reasonable, especially where the instruction would weaken the defense of innocence.
Strickland, 466 U.S. at 691.
Erroneous "To Convict" Instruction
Holloway further contends that his counsel was ineffective because he proposed an erroneous "to convict" instruction on the second degree attempted murder charge. Because it serves as a yardstick by which the jury measures the evidence in determining guilt or innocence, generally the "to convict" instruction must contain all elements of the charged crime. However, an erroneous "to convict" instruction may be subject to harmless error analysis.
State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003); State v. Brown, 147 Wn.2d 330, 58 P.3d 889 (2002) (holding that erroneous accomplice liability jury instruction is subject to harmless error analysis if State was not relieved of proving each element of the charged crime); State v. Carter, 154 Wn.2d 71, 81, 109 P.3d 823 (2005) ("Whether a flawed jury instruction is harmless error depends on the facts of a particular case.").
Jury Instruction 17 reads:
To convict the defendant of the crime of attempted Murder in the Second Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 12th day of December 2003, the defendant did an act which was a substantial step toward the commission of the crime of attempted Murder in the Second Degree against the person of Jason Fuhr;
(2) That the act was done with the intent to commit attempted Murder in the Second Degree against the person of Jason Fuhr, and,
(3) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
(Emphasis added.)
Here, the trial court correctly instructed the jury regarding the elements of attempted first degree murder, the charged offense in Count II. The crime of murder in the second degree itself was properly defined. But defense counsel's proposed "to convict" instruction listed the crime that Holloway took a substantial step toward committing as attempted murder in the second degree instead of murder in the second degree.
The State concedes that the instruction was erroneous and counsel was deficient in proposing this instruction. But having established the deficiency prong, Holloway must still demonstrate that counsel's deficient performance resulted in prejudice such that there was a reasonable probability that the result of the trial would have been different in order to succeed on his claim of ineffective assistance of counsel.
Strickland, 466 U.S. 688; McFarland, 127 Wn.2d at 334-35.
Here, there is no reasonable probability that the result would have been different. When an element is omitted from or misstated in a jury instruction, the error is harmless if that element is supported by uncontroverted evidence. The evidence establishes that Holloway shot Fuhr four times. The shooting was obviously intentional and Holloway clearly took a substantial step toward murder. The evidence was overwhelming. Holloway has failed to prove the prejudice prong on his claim of ineffective assistance of counsel.
Brown, 147 Wn.2d at 341; State v. Bland, 128 Wn. App. 511, 516, 116 P.3d 428 (2005) ("An erroneous instruction is harmless if, based on the evidence, it appears beyond a reasonable doubt that the error did not contribute to the verdict.").
Firearm Enhancement
Finally, Holloway argues, and the State concedes, that the trial court improperly doubled the firearm enhancement for each count. Holloway committed each crime while armed with a firearm. By law, he was subject to a 60-month sentence to run consecutively for each firearm enhancement. The trial court, on the State's recommendation, sentenced Holloway to 120 months to run consecutively for each firearm finding. In so recommending, the State relied upon RCW 9.94A.533(3)(d) to support the imposition of the doubling enhancements. But that statute requires the offender have prior convictions after July 23, 1995, for crimes that had deadly weapon enhancements. Holloway's prior crimes in 1997 and 2004 were for unlawful possession of a firearm, not for crimes with a deadly weapon or firearm enhancement.
Holloway also argues that the absence of a statutory procedure for a firearm finding precluded the imposition of the aggravated sentence. This argument has been repeatedly rejected by both this court and the Supreme Court.
State v. Nguyen, 134 Wn. App. 863, 869-70, 142 P.3d 1117 (2006); State v. Recuenco, 163 Wn.2d 428, 439, 180 P.3d 1276 (2008).
We affirm Holloway's convictions and remand solely for resentencing to correct the improper doubling of the firearm enhancement.