State v. Breitung

• Decision Date: 29 December 2011
• Docket Number: No. 84580–8.,84580–8.
• Citation: 173 Wash.2d 393,267 P.3d 1012
• Parties: STATE of Washington, Petitioner, v. Robert Charles BREITUNG, Respondent.
• Court: Washington Supreme Court

173 Wash.2d 393

267 P.3d 1012

STATE of Washington, Petitioner,

v.Robert Charles BREITUNG, Respondent.

No. 84580–8.

Supreme Court of Washington, En Banc.

Argued Oct. 11, 2011.Decided Dec. 29, 2011.

Thomas Charles Roberts, Pierce County Prosecutor's Office, Tacoma, WA, for Petitioner.

Jennifer J. Sweigert, Nielsen Broman & Koch, PLLC, Seattle, WA, for Respondent.

Devin T. Theriot–Orr, Gibbs Houston & Pauw, Travis Stearns, Ann E. Benson, Washington Defender Association, Seattle, WA, amicus counsel for Washington Defender Association.C. JOHNSON, J.

[173 Wash.2d 395] ¶ 1 This case involves two issues, the first being whether defense counsel was ineffective in not requesting a lesser included assault instruction. The Court of Appeals reversed based on State v. Grier, 150 Wash.App. 619, 208 P.3d 1221 (2009), which we recently reversed. State v. Grier, 171 Wash.2d 17, 246 P.3d 1260 (2011).¹ Based on our analysis in Grier, we reverse the Court of Appeals on the ineffectiveness claim. The second issue is whether, in this case, the failure to give the statutorily required notice, under RCW 9.41.047(1),² of firearm prohibition as part of a prior conviction, requires reversal of Breitung's unlawful possession of a firearm conviction. The Court of Appeals reversed on this issue, which we affirm.

FACTS

¶ 2 Respondent Robert Breitung was convicted of assaulting Ossie Cook and Richard Stevenson and of unlawfully possessing a firearm. On July 19, 2007, Cook and Stevenson, both auto mechanics, took a client's truck for a test drive. During the drive they stopped for cigarettes at a local smoke shop. There, Cook noticed a woman enter a black sports car and leave. When they left the smoke shop, Cook and Stevenson followed the same route as this woman and continued down a nearby gravel road, ostensibly to test the truck's off-road handling. As they were leaving the area, Breitung appeared and walked into the middle of the gravel road ahead of the truck. According to Cook and Stevenson, as they approached Breitung he pulled a handgun from behind his back, walked to the driver's side window, and pointed it at both men, telling them to stop following his girl friend and to “get the fuck out of here or I will kill you.” 4 Verbatim Report of Proceedings (VRP) at 351. At some point during this altercation, Cook noticed parked nearby the black sports car he had seen at the smoke shop.

¶ 3 Shaken, Cook and Stevenson drove a few blocks and called the police, giving a detailed description of Breitung's handgun. When deputies arrived and questioned Breitung, he admitted confronting Cook and Stevenson but claimed he never used a firearm and never threatened to kill them. Rather, Breitung claimed that he pulled out a microscope lens and, hoping to make the truck stop, pointed it at the vehicle. According to Breitung, once the truck stopped he placed the lens back in his pocket, approached the truck, and said, “What's the problem, guys? You're scaring my girlfriend. Why did you follow her home?” 5 VRP at 424. When Cook and Stevenson failed to respond, Breitung continued, saying, “Why don't you guys split before there's a bigger problem, just go.” 5 VRP at 424. To support his side of the story, Breitung retrieved the microscope lens from his trailer to show the deputies. When the deputies asked whether he owned a firearm, Breitung admitted he owned several, including a handgun matching Cook and Stevenson's description. Meanwhile, as the deputies talked to Breitung, his girl friend went into the trailer, retrieved the handgun, and gave it to the deputies.

¶ 4 Breitung was charged with two counts of second degree assault and one count of second degree unlawful possession of a firearm. At trial, the State proposed jury instructions for second degree assault and second degree unlawful possession. Defense counsel proposed no additional instructions, and Breitung was convicted on all three counts. The Court of Appeals reversed Breitung's assault convictions, holding that defense counsel was ineffective for failing to request lesser included offense instructions on fourth degree assault. The court also reversed Breitung's conviction for unlawful possession, holding that where as part of a prior conviction the court fails to give notice required by RCW 9.41.047(1), a subsequent conviction for unlawful possession is invalid.

ISSUES

¶ 5 1. Whether defense counsel was ineffective for failing to propose lesser included offense instructions?

¶ 6 2. Whether the predicate offense court's failure to provide RCW 9.41.047's required notice of firearm possession prohibition warranted reversal?

ANALYSIS

A. Ineffective Assistance

¶ 7 Washington follows the Strickland³ standard to determine whether a defendant had constitutionally sufficient representation. ⁴] In finding ineffective assistance in this case, the Court of Appeals applied the three-pronged analysis from its opinion in Grier, which we rejected on review as distorting the Strickland standard.⁵ Grier, 171 Wash.2d at 38, 246 P.3d 1260. The result in this case is largely controlled by our Grier opinion. There, we reaffirmed our strict adherence to the Strickland standard and established that to demonstrate ineffective assistance of counsel, a defendant must overcome a strong presumption that counsel's performance was reasonable. When counsel's conduct can be characterized as a legitimate trial strategy, performance will not be deemed deficient. Grier, 171 Wash.2d at 33, 246 P.3d 1260.

¶ 8 In this case, Breitung's counsel pursued a legitimate all or nothing strategy. Breitung was charged with second degree assault, requiring the jury to find he intended to create apprehension in Cook and Stevenson using a deadly weapon. See RCW 9A.36.021.⁶ Jurors were specifically instructed that use of a deadly weapon was an element of second degree assault the State must prove beyond a reasonable doubt. Clerk's Papers (CP) at 27–28. A separate instruction informed jurors that “[a] firearm, whether loaded or unloaded, is a deadly weapon.” CP at 26. While Cook and Stevenson testified that Breitung threatened them using a firearm, Breitung and a witness testified to the contrary. Breitung testified he pointed a microscope lens, and not a handgun, at Cook and Stevenson to stop the truck. 5 VRP at 424–25. His neighbor, Mr. Leverett, testified he saw Breitung talking to Cook and Stevenson but never saw Breitung wield a firearm at any time. 5 VRP at 399–401. In closing arguments, defense counsel reminded the jurors of the State's heavy burden and argued the State failed to prove beyond a reasonable doubt that Breitung used a firearm or threatened the victims. 6 VRP at 549–67. Counsel further argued the jury instructions did not list microscope as a deadly weapon: “[This microscope] that's not a deadly weapon, according to the jury instructions. If he [had the microscope], it's reasonable doubt. You can't convict.” 6 VRP at 565.

¶ 9 Given Cook's and Stevenson's testimony, and the circumstantial evidence against Breitung, pursuing an all or nothing strategy in this case was a legitimate approach in defense. The defense theory was that no assault occurred. Had the jury concluded Breitung used a microscope, and not a firearm as the State contended, it would have acquitted under the second degree assault instruction. There was, after all, no evidence Breitung wielded the lens as a deadly weapon. “Where a lesser included offense instruction would weaken the defendant's claim of innocence, the failure to request a lesser included offense instruction is a reasonable strategy.” State v. Hassan, 151 Wash.App. 209, 220, 211 P.3d 441 (2009) (citing Strickland 466 U.S. at 691, 104 S.Ct. 2052). It was Breitung's prerogative to pursue this approach, and we will not presume otherwise.

¶ 10 Breitung, however, argues that he was deprived of his prerogative to risk an all or nothing strategy because, unlike defense counsel in Grier, his counsel chose this approach without first consulting him. In Grier, we confirmed that “the decision to exclude or include lesser included offense instructions is a decision that requires input from both the defendant and [defense counsel] but ultimately rests with defense counsel.” Grier, 171 Wash.2d at 32, 246 P.3d 1260. Grier's counsel consulted with Grier about withdrawing a request for lesser included offense instructions and evidence of this consultation was on the record, a fact we referenced several times. For instance, in defining the issue to be decided, we stated, “This case requires us to determine whether Ms. Grier's defense counsel was ineffective in withdrawing a request for jury instructions on lesser included offenses ... after consulting with his client.” Grier, 171 Wash.2d at 20, 246 P.3d 1260. We further stated that “assuming that defense counsel has consulted with the client in pursuing an all or nothing approach, a court should not second-guess that course of action....” Grier, 171 Wash.2d at 39, 246 P.3d 1260 (emphasis added).

¶ 11 Breitung is correct; there is no evidence in the record that his counsel consulted him before forgoing instruction on fourth degree assault. Conversely, there is no evidence in the record to show consultation did not occur.⁷ As we acknowledged in Grier, the Strickland standard is highly deferential. It requires us to presume counsel's performance was reasonable. The burden is on the defendant to show deficient performance. Absent evidence in the record of a failure to consult, therefore, we presume consultation occurred. Performance was therefore not deficient and the first prong of the Strickland standard is not met.⁸

B. Unlawful Possession

¶ 12 In State v. Minor, 162 Wash.2d 796, 174 P.3d 1162 (2008), we analyzed the notice requirement of RCW 9.41.047(1), which requires a convicting court to give notice of the prohibition of the right to possess firearms. The statute provides:

At the time a person is convicted ... of an offense making the...