State v. Grier

• Decision Date: 10 February 2011
• Docket Number: No. 83452–1.,83452–1.
• Citation: 246 P.3d 1260,171 Wash.2d 17
• Parties: STATE of Washington, Petitioner,v.Kristina Ranae GRIER, Respondent.
• Court: Washington Supreme Court

171 Wash.2d 17

246 P.3d 1260

STATE of Washington, Petitioner,

v.Kristina Ranae GRIER, Respondent.

No. 83452–1.

Supreme Court of Washington, En Banc.

Argued Sept. 21, 2010.Decided Feb. 10, 2011.

Thomas Charles Roberts, Pierce County Prosecutor's Office, Tacoma, WA, for Petitioner/Appellant.Casey Grannis, Nielsen Broman & Koch, P.L.L.C., Seattle, WA, for Appellee/Respondent.Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, Pamela Beth Loginsky, WAPA, Olympia, WA, amicus counsel for Washington Association of Prosecuting Attorneys.MADSEN, C.J.

[171 Wash.2d 20] ¶ 1 Kristina Grier appealed her conviction of second degree murder, and the Court of Appeals reversed because it held that Grier received ineffective assistance of counsel. This case requires us to determine whether Ms. Grier's defense counsel was ineffective in withdrawing a request for jury instructions on the lesser included offenses of first and second degree manslaughter after consulting with his client. We hold that Grier's acquiescence in the decision to withdraw the lesser included offense instructions does not bar her from raising an ineffective assistance claim. However, we also hold that her defense counsel's “all or nothing” approach was a legitimate trial tactic and did not constitute ineffective assistance of counsel under the state or federal constitutions. Accordingly, we reverse the Court of Appeals and remand for disposition of Grier's outstanding claims.

FACTS AND PROCEDURAL HISTORY

¶ 2 On the evening of February 21, 2006, defendant Kristina Grier had several visitors in her home, including Gregory Owen; Michelle Starr, Owen's fiancée; Owen and Starr's five-year old daughter; Nathan Grier, Grier's 17–year–old son (hereinafter “Nathan” for clarity purposes); and Cynthia Michaels, Nathan's girl friend. Grier and her son had known Owen for more than a year.

¶ 3 Nathan testified that Grier owned two nine-millimeter guns—one black and one silver and black—as well as a shotgun and a rifle.

¶ 4 At one point in the evening, Owen and Michaels left Grier's home for a brief errand. While Owen and Michaels were gone, Grier took some liquor and retreated to her bedroom. Upon his return, Owen went to join her. According to Nathan, who later joined Grier and Owen in the bedroom, Grier showed both of her nine-millimeter guns to Owen, who asked her to put them away because he was not allowed to be in contact with guns, having recently left prison. Grier placed the guns in her purse, Nathan recalled.

¶ 5 With Owen present, Starr inquired as to how many guns Grier owned, and Nathan told her. Starr suggested taking the guns away for the evening, given Grier's intoxication. When Grier looked away, Nathan testified, Owen took Grier's purse, which contained two of her guns, and he began taking items out of it and putting them into his pocket. By that time, Nathan recalled, his mother was “really drunk,” so he carried her into her room and put her to bed. 2 Verbatim Report of Proceedings (VRP) (Apr. 11, 2007) at 147.

¶ 6 While Grier was in her bedroom, Owen began unloading the clips from the guns that had been in Grier's purse. He told Nathan he liked Grier's gun and could not purchase guns because of his criminal record. Nathan testified that he tried to stop Owen from taking his mother's silver and black gun, but Owen used brute force to prevail. “[H]e shove[d] my head up against the wall and stuck that little gun in my mouth, you know, pretty hard, and it, like, ripped the top of my mouth. And he was saying, Whose gun is it; whose gun is it?” Id. at 150.

¶ 7 Nathan testified that he told Owen to leave, knowing his mother would be upset when she awoke and discovered her gun was missing. Owen and Starr began taking their belongings out to their car, and Nathan accompanied them. Nathan testified that as they were walking down the driveway, he saw Owen fire a gun toward the neighbors' house. According to Nathan, Owen kept the gun “under his sweater” while placing his other belongings in the car. Id. at 152–53.

¶ 8 The gunshot aroused Grier, who called out from her bedroom, “Do you [expletive] have my gun? He stole my gun.” Id. at 153. Owen went back into Grier's bedroom and attempted to calm her down, insisting that he had not stolen her gun. According to Nathan, Grier seemed to believe Owen “[f]or a couple of seconds until she checked.” Id. at 154.

¶ 9 Later in the evening, Nathan and Owen got into a heated argument. Owen punched Nathan in the face, splitting his lip and causing enough damage to necessitate stitches later that evening. Nathan testified that he “was gushing blood everywhere.” Id. at 188. Starr testified that Owen “smacked” her after punching Nathan. Id. at 241–42.

¶ 10 At that time, Nathan recalled, Grier emerged from her bedroom and announced that her gun was no longer in her purse. Grier saw what Owen had done to Nathan, and she told Owen to leave her son alone. A scuffle then ensued between Grier and Owen. Nathan was not sure if Owen had slapped Grier, but he testified that he “kept putting his hand on her and pushing her real hard.” Id. at 158. According to Nathan, Grier did not have her guns on hand at that time.

¶ 11 Later, Nathan testified Grier continued to express concern about her missing guns. Grier fetched her shotgun from the closet and checked to confirm that it was loaded. She went outside, where Michaels, Starr, and Owen were loading belongings into Owen's car.

¶ 12 Frightened, Nathan locked himself in a room and quietly called 911, reporting that everyone had guns. He heard yelling outside, hung up, and ran outside to investigate. Another scuffle had ensued. According to Starr, Grier cocked her gun and pointed it toward Owen and herself, but mostly toward Owen. According to Nathan, “[t]hey beat [Grier] up and pushed her head to the ground, you know, and took the shotgun.” Id. at 162. Starr explained that she had “slammed” Grier's head on the concrete ground because Grier had grabbed her hair and refused to let go. Id. at 246. Afterward, Nathan testified, his mother approached him, in tears, and asked him to do something, saying “[t]hey have got our guns now.” Id. at 162. Starr testified that Owen put Grier's shotgun in his car.

¶ 13 After Nathan attempted to console her, Grier went back inside the house. Nathan went inside as well, where Michaels informed him that his face was “bleeding everywhere.” Id. at 163. He told his mother that earlier in the evening, Owen had placed a gun in his mouth and pushed him up against a wall.

¶ 14 Owen joined the others inside. According to Nathan, “[Owen] thinks I told my mom that he had the gun, and he starts calling me a snitch and a bitch.” Id. at 196. Grier “came back around the corner and said, Get away from my son; get out of my house,” and when Owen began yelling back, Grier responded, “You are not going to beat my son. You are not going to push me around or beat me.” Id. at 165. Nathan testified that if Grier had a gun at that time, he did not see it. Id. Next, Nathan recalled:

He put his hands on her, pushed her again. And then she kind of grabbed on to him so she wouldn't fall, like pulling on him, and I think, checking his pockets, you know, trying to get her gun back. And he kept pushing her, you know, and then she tried to push him back and then he tried to push her away. And he was yelling at her a bunch of shit, like—I don't know. He was yelling.

Id. Then Nathan heard a bang. He did not see either party fire a shot. Nathan testified that he was “pretty sure”—but not certain—that Owen had been armed at the time of the shooting. Id. at 171.¹

¶ 15 According to Nathan, it appeared as though Owen was “going back” and Grier was “trying to grab, you know, like his hands so he wouldn't do nothing, kind of like just grab on him, stop him if [sic] was going to start shooting up everybody or something.” Id. at 166. In particular, Nathan testified, Grier appeared to be grabbing Owen to prevent him from reaching into his pocket and pulling out a gun. That was the last of the exchange that Nathan saw. Because he feared Owen “was going to start shooting,” he explained, he ran outside. Id. at 167.

¶ 16 Starr was outside when she heard a gunshot. She testified that she immediately ran back inside and “saw [Owen] laying on the ground and Ms. Grier above him, pulling at his jacket, calling him names.” Id. at 249. Starr did not see Owen's hands. According to Starr, Owen “looked at [her] as if he knew he was dead. And he grabbed himself, and he went and hopped up and started to get out of there.” Id. at 250–51.

¶ 17 Michaels was also present at the time of the gunshot, but she testified that she “wasn't paying attention” because she was busy looking for the missing car keys. 3 VRP (Apr. 12, 2007) at 457. She claimed that she “didn't know he had gotten shot until there was blood behind him on the wall.” Id. Michaels testified that after the gun went off, Grier was “pulling on [Owen's] jacket like she was trying to take it off almost.” Id. at 459. She did not recall seeing a gun. Owen, she testified, was “kind of just standing there” and “had his hands out in front of him.” Id.

¶ 18 Starr followed her wounded fiancé outside. According to Starr, Grier said, “get her” and began to pursue Starr. 2 VRP (Apr. 11, 2007) at 252. Starr testified that she had to kick Grier to keep her at bay.

[171 Wash.2d 25] ¶ 19 Michaels went outside shortly after the shooting to find Grier and Starr “wrestling on the ground.” 3 VRP (Apr. 12, 2007) at 460. Michaels began to pursue Grier to keep her away from Starr. Michaels testified that Grier called her “a bitch and a lot of things,” grabbed at her, broke her bracelet, followed her up the driveway, and claimed she could kill her. Id. at 461–62. After Michaels fled back into the house and locked the door behind her, Grier broke in through the window and followed her inside. Id. at 462.

¶ 20 Meanwhile, Starr got into her car and...