Not overruled or negatively treated on appealinfoCoverage
The Court of Appeals of Washington, Division ThreeApr 27, 2006
132 Wn. App. 1043 (Wash. Ct. App. 2006)

No. 22563-1-III.

Filed: April 27, 2006.

Appeal from Superior Court of Benton County. Docket No: 02-1-01036-2. Judgment or order under review. Date filed: 05/04/2005. Judge signing: Hon. Craig J. Matheson.

Counsel for Appellant(s), Gary C. Hugill, Attorney at Law, 1776 Fowler St Ste 3, Richland, WA 99352-4832.

Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Ave, Kennewick, WA 99336-2341.



After Ronald Fouse was convicted of felony harassment and intimidating a witness, he appealed alleging ineffective assistance of counsel. Our commissioner remanded to the trial court for an evidentiary hearing on the facts supporting Mr. Fouse's claim of ineffective assistance of counsel. The trial court rejected Mr. Fouse's factual allegations in favor of those advocated by the State. On this record, Mr. Fouse fails to show deficient performance. Accordingly, we affirm.


Mr. Fouse was charged with felony harassment and intimidating a witness. His first trial resulted in a hung jury. After the second trial, the jury found Mr. Fouse guilty as charged. Through both trials, Mr. Fouse was represented by Christopher Swaby.

Mr. Fouse appealed, alleging ineffective assistance of counsel. After Mr. Fouse attempted to supplement the record with affidavits favoring his position, our commissioner denied his supplementation request, but remanded to the trial court for an evidentiary hearing regarding his trial counsel's performance.

At the remand hearing, Mr. Fouse testified Mr. Swaby did not communicate with him and failed to interview and call potential witnesses, Mary and Tony Barclay, and his daughter, Veronica Fouse. Mr. Fouse's wife, Jean Fouse, supported Mr. Fouse's testimony, but regarding the Barclays she agreed Mr. Swaby saw them and, `Swaby said they weren't adequate.' Record of Proceedings (RP) (October 13, 2004) at 72.

Mr. Swaby testified, refuting Mr. Fouse's testimony. Mr. Swaby related he met with Mr. Fouse on several occasions while he was incarcerated and at the courthouse. Mr. Swaby remembered an occasion where he conferenced with the Fouses in a courthouse witness room. Mr. Swaby testified he has a home office where he does not meet with clients, preferring the courthouse, restaurants, or the client's home.

Entering findings of fact and conclusions of law, the court found Mr. Swaby spoke with Mr. Fouse and his wife on numerous occasions, continually advised Mr. Fouse about his case, and made tactical decisions about calling witnesses. The court concluded, `Mr. Swaby provided Mr. Fouse with good and competent counsel.' Clerk's Papers (CP) at 57. We now proceed with our review of Mr. Fouse's appeal.


The issue is whether Mr. Fouse was denied effective assistance of counsel. Mr. Fouse contends through appellate counsel and in his statement of additional grounds that counsel failed to communicate with Mr. Fouse and failed to interview and call potential witnesses. However, the trial court entered contrary findings of fact.

The State points out Mr. Fouse failed to perfect this appeal because he did not object to the trial court's findings nor assign error to them under RAP 10.3(g). While we are reluctant to address arguments not properly perfected, Mr. Fouse raises the issue of ineffective assistance of counsel, an issue that may be raised for the first time on appeal. State v. Moon, 108 Wn. App. 59, 62, 29 P.3d 734 (2001). Additionally, he sufficiently assigns error to the trial court's findings in the argument section of his brief. Therefore, review is warranted.

The seminal case is Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires showing both deficient performance and resulting prejudice to establish ineffective assistance. If one is absent, an ineffective counsel claim will fail. Id. at 687-89. We presume counsel's representation was reasonably adequate. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978). Prejudice means — "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (quoting Strickland, 466 U.S. at 687). To establish prejudice, a defendant must show `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, 466 U.S. at 694.

Here, the court on remand found Mr. Swaby continually advised Mr. Fouse of the case particulars. Mr. Swaby explained he did not have formal meetings with Mr. Fouse in his office because he had a home office, preferring to meet with him at the courthouse.

The findings also support Mr. Swaby's decision not to call certain witnesses. Mr. Swaby testified the Barclays were not called because neither could testify to the event in question `from start to finish,' and `one or two of them had warrants outstanding,' neither was properly groomed, and Mr. Barclay was `perhaps . . . inebriated.' RP (October 13, 2004) at 96-97. Regarding Mr. Fouse's daughter, no evidence shows she was an eyewitness. Mr. Fouse admitted Mr. Swaby spoke with his daughter, but decided not to call her as a witness.

The findings of fact are supported by substantial evidence from Mr. Swaby's testimony. See State v. Smith, 84 Wn.2d 498, 505, 527 P.2d 674 (1974) (appellate court will not substitute its judgment for that of the trial judge when substantial evidence supports the findings). Because Mr. Fouse fails to show deficient counsel performance, we need not analyze prejudice because both deficient performance and resulting prejudice must be established under Strickland.


A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

KATO and KULIK, J., concur.