State v. Cienfuegos

• Decision Date: 05 July 2001
• Docket Number: No. 70003-6.,70003-6.
• Citation: 25 P.3d 1011,144 Wash.2d 222
• Parties: STATE of Washington, Respondent, v. Guillermo W. CIENFUEGOS, Appellant.
• Court: Washington Supreme Court

25 P.3d 1011

144 Wash.2d 222

STATE of Washington, Respondent, v. Guillermo W. CIENFUEGOS, Appellant.

No. 70003-6.

Supreme Court of Washington, En Banc.

Argued February 27, 2001.

Decided July 5, 2001.

Reconsideration Denied August 24, 2001.

James Williams Nelson, Attorney at Law, Mount Vernon, WA, for appellant.

Thomas Verge, Skagit County Prosecutor, Erik Pedersen, Deputy, Mount Vernon, WA, for respondent.

CHAMBERS, J.

Guillermo Cienfuegos (Cienfuegos) was convicted of escape. The primary issue raised by Cienfuegos in his appeal is whether counsel's failure to request a diminished capacity instruction was ineffective assistance of counsel. He also contends that Washington State's system for jury pool selection is unconstitutional and failed to provide an ethnically representative jury panel. We hold that he has failed to meet the requirements to prevail on either contention and affirm his conviction.

STATEMENT OF FACTS

Cienfuegos has the unenviable credential of being a long time drug user. He started taking drugs as early as age five. He described himself as "not just an addict .... a junkie." II Verbatim Report of Proceedings (VRP-II) at 155.

Cienfuegos was arrested for failure to appear for sentencing on a felony drug conviction. Shortly before his arrest Cienfuegos ingested drugs, likely heroin and cocaine. He spent the evening in jail, suffering from withdrawal. The next day Cienfuegos was taken from the jail to the courthouse by three correctional officers, where he was arraigned without incident. Cienfuegos, wearing the standard issue red jail shirt, red jail trousers, jail flip-flops, and a waist chain with handcuffs, bolted from the officers while being taken from the courthouse back to the jail. Officers gave chase and quickly reapprehended Cienfuegos about three and one-half blocks from the courthouse. They found him lying under a bush, body partially secreted; head "sticking out." VRP-II at 122. He was charged with first degree escape, a class B felony.

Detective Arroyos, who helped take Cienfuegos back to the jail, testified at trial that "[h]e was sick the way he described to me how he was hurting, like drug withdrawal." VRP-II at 123. Cienfuegos himself testified he remembers nothing from the time he was in court, until he heard someone call his name, whereupon he fell into the aforementioned bushes. He denied culpability for running, pleading to the jury, "[I]t was the drugs that were in me at the time." VRP-II at 174.

Defense counsel presented expert testimony from Dr. Nora Fleming Young. Dr. Young maintained a general practice as a clinician, has a Ph.D. in psychology with a subfield in chemical dependency and deviant personalities, and is board certified in chemical dependencies and withdrawal. She testified without objection that Cienfuegos "was in severe withdrawal and wasn't reasonable, wasn't rational, probably didn't know what he was doing," VRP-II at 194-95, and that he suffered from a cognitive disorder. In part, she told the jury:

[I]n a psychotic break you are out of touch with reality. You feel, you react, but you don't plan. You don't have the ability.... I don't believe he would be capable of really knowing that he was escaping at that time. I don't think he would be capable of thinking about it in those terms.

VRP-II at 200-02. Asked directly if she believed Cienfuegos knew what he was doing when he ran, she testified: "In my professional opinion he did not." VRP-II at 198. Argument focused almost exclusively on whether Cienfuegos knew he was escaping from custody. The jury was instructed that knowledge is an element of the crime of escape. Despite evidence of a cognitive disorder preventing Cienfuegos from forming knowledge—the requisite intent—an instruction on diminished capacity was not requested. The jury found Cienfuegos guilty.

After his conviction Cienfuegos retained new counsel. This attorney brought a motion to vacate the conviction and a motion for a new trial, arguing in part that jurors in Skagit County did not fairly represent the ethnic makeup of the county, rendering the jury panel defective. Trial counsel testified in support of the motion that he did not remember seeing any minorities on the panel.

The juror lists are compiled from the lists of those who are registered to vote or who hold a drivers license or state identification card. GR 18. Counsel asked the court for the list of jurors who could have been called September 1998 so that he could contact them and determine their ethnicity. The county prosecutor objected on the grounds of juror privacy. The trial judge denied the motion, but did agree to look at the list himself to determine if there were any Hispanic names.

Dissatisfied with this response, Cienfuegos appealed his conviction on the grounds of ineffective assistance of counsel, insufficient evidence and unconstitutional jury venire compilation. The Court of Appeals affirmed his conviction in an unpublished decision. Cienfuegos sought review on all grounds, which this Court granted.

ANALYSIS

INEFFECTIVE ASSISTANCE OF COUNSEL

Washington has adopted the Strickland test to determine whether a defendant had constitutionally sufficient representation. State v. Bowerman, 115 Wash.2d 794, 808, 802 P.2d 116 (1990). Strickland requires:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Cienfuegos bears the burden of showing that, but for the ineffective assistance, there is a reasonable probability that the outcome would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "Deficient performance is not shown by matters that go to trial strategy or tactics." State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996).

Cienfuegos argues he suffered from ineffective assistance of counsel because counsel did not ask for a diminished capacity instruction. The Washington Pattern Jury Instruction on diminished capacity states: "Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form ______ (fill in requisite mental state)." 11 Washington Pattern Jury Instructions: Criminal 18.20, at 224 (2d ed.1994).

Analytically, Cienfuegos presents three questions. First, we must determine whether Cienfuegos was entitled to a diminished capacity instruction. Second, we must decide whether it was ineffective assistance of counsel per se not to have requested the instruction. Finally, we must decide whether ineffective assistance of counsel prejudiced his defense under the Strickland standard.

First, we find Cienfuegos was entitled to the instruction if it had been offered. We have previously held it reversible error for a judge to refuse a diminished capacity instruction supported by the evidence. "Diminished capacity instructions are to be given whenever there is substantial evidence of such a condition and such evidence logically and reasonably connects the defendant's alleged mental condition with the inability to possess the required level of culpability to commit the crime charged." State v. Griffin, 100 Wash.2d 417, 418-19, 670 P.2d 265 (1983). Cienfuegos submitted considerable evidence that he was incapable of forming the requisite intent due to cognitive impairment. The evidence was sufficient to support a diminished capacity instruction.

Second, we must determine whether the failure to request the instruction was ineffective assistance of counsel per se. Cienfuegos relies upon State v. Thomas, 109 Wash.2d 222, 743 P.2d 816 (1987) to support his argument. In Thomas, the defendant was charged with felony flight attempting to elude a police vehicle. Id. at 226, 743 P.2d 816. Felony flight requires intentional (willful or wanton) behavior. Id. at 227, 743 P.2d 816. Thomas had a history of drinking and blackouts, and testified she was drunk and incoherent on the night of the incident, and had no memory of eluding police or even of police cars following her car. Id. at 225, 743 P.2d 816. The defense theory of the case was that the defendant was too intoxicated to form the requisite intent; however, she did not request the diminished capacity instruction and the instructions given did not make the subjectivity of the required intent clear. Id. at 227-28, 743 P.2d 816.

This Court found the jury instructions defective because they allowed the jury to conclude mere intoxication satisfied the willful behavior element, without any further inquiry to the defendant's actual subjective intent to flee. Id. at 229, 743 P.2d 816. The failure of the attorney to propose the diminished capacity instruction under the facts presented was therefore deficient and deprived Thomas of a fair trial. The conviction was reversed and the case remanded for a new trial. Thomas, 109 Wash.2d at 232, 743 P.2d 816; accord State v. Warden, 133 Wash.2d 559, 564, 947 P.2d 708 (1997) ("Diminished capacity is a mental condition not amounting to insanity which prevents the defendant from possessing the requisite mental state necessary to commit the crime charged.... Refusal to give an instruction that prevents the defendant from presenting his theory that a killing was unintentional is reversible error.")

While Cienfuegos argues Thomas should be read as establishing a per se standard, the general rule remains that we look to the facts of the individual case to see if the Strickland test has been met. State v. Robinson, 138 Wash.2d 753, 767-68, 982 P.2d 590 (1999) (not per se ineffective assistance of counse...