State v. Jackin
| Decision Date | 10 April 2018 |
| Docket Number | No. 49116-8-II,49116-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CHRISTOPHER NICHOLAS JACKIN, Appellant. |
MELNICK, J. — Christopher Nicholas Jackin appeals his conviction for indecent liberties. He argues that he received ineffective assistance of counsel, that the prosecutor committed misconduct, and that the trial court erred. Jackin also argues cumulative error denied him a right to a fair trial.1 We affirm Jackin's conviction.
On July 10, 2015, Jackin, his girlfriend, Acacia Kirkland, and their four children drove from their home in Spokane to J.M.'s2 home in Battle Ground. Kirkland and J.M. are sisters. J.M. and her fiancée, Daniel Nelson, were going to watch the four children while Jackin and Kirkland vacationed.
The two families gathered for a barbecue at J.M.'s house. J.M. and Nelson both testified that all the adults consumed alcohol and marijuana. Kirkland and Jackin both denied consuming any marijuana, and Jackin also denied consuming any alcohol. Jackin testified that J.M. and Nelson were both "drinking pretty heavily." 3 Report of Proceedings (RP) at 302.
That night, Jackin and Kirkland slept on a couch in the living room. J.M. stayed up with her son and fell asleep later. She slept in a rocking chair in the same room as Jackin and Kirkland, still wearing the shorts she had worn that day.
J.M. testified that, later that night, Jackin awakened her with his hand inside her shorts. He had reached under her shorts and underwear and rubbed her vagina. J.M. asked him what he was doing, and Jackin apologized and said he "was just wanting to get a piece." 2 RP at 196.
J.M. woke Kirkland, who still slept on the couch. She told Kirkland what had happened and Kirkland began crying. J.M. then woke Nelson, who was asleep in his and J.M.'s bedroom. J.M. and Nelson returned to the living room and confronted Jackin. Jackin repeatedly apologized to J.M. and to Kirkland but accused J.M. and Nelson of not understanding his and Kirkland's relationship. Jackin ultimately left the house and spent the remainder of the night in his van.
Jackin offered a different version of events. He testified that he awoke late at night when J.M.'s son fell asleep on his feet. He then went to the kitchen for a glass of water. When he returned to the living room, J.M., who had been asleep in a chair, woke up and asked Jackin what he was doing. Jackin asked her if she was going to move her son. J.M. did not respond to Jackin's question, and instead woke Kirkland and told her that Jackin had his hand on her vagina. J.M. then began screaming at Jackin and Kirkland and calling Jackin vulgar names.
The following morning, J.M. drove Jackin and Kirkland to the airport for their vacation. They did not discuss the incident. At some point while Jackin and Kirkland were on vacation, J.M. called the police to report Jackin.
On July 14, Clark County Deputies responded to J.M.'s home when she returned from the airport with Jackin and Kirkland. They placed Jackin under arrest and a deputy interviewed Kirkland.
The State charged Jackin with one count of indecent liberties.3
Kirkland testified as follows. J.M. woke her because Jackin had touched her vagina. J.M. was upset and was yelling. Ultimately, Kirkland asked Jackin to go sleep in the van because she was uncomfortable with the situation.
Kirkland and Jackin did not discuss the incident while on vacation. She wanted to enjoy the vacation and figured there would be time to discuss it when they returned home.
The State asked Kirkland about what she had told the deputies and Jackin objected on hearsay grounds. The State argued that it was trying to introduce Kirkland's prior inconsistent statement, and the trial court overruled the objection. The State then asked Kirkland whether she recalled telling a deputy that, while on vacation, Jackin told her that he had touched J.M. She said she had no recollection of this statement and denied making it. She said that Jackin consistently denied touching J.M. Kirkland stopped talking to the deputy because "he was telling [her] what [she] was saying rather than listening to the words [she] was trying to tell him." 4 RP at 443.
Deputy Jeremy Brown testified that Kirkland told him that Jackin touched J.M. When the State asked further questions about what Kirkland said, Jackin objected on hearsay grounds. The State argued that it was a prior inconsistent statement and that it was offered only to impeach Kirkland. Jackin conceded that it was permissible for that limited purpose and withdrew his objection. Brown then testified that Kirkland told him that Jackin had told Kirkland that he had touched J.M.
Jackin requested pattern instruction 6.41, which states: "You may give such weight and credibility to any alleged out-of-court statements of the defendant as you see fit, taking into consideration the surrounding circumstances." Clerk's Papers (CP) at 44; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6.41, at 196 (3d ed. 2008) (WPIC 6.41). He wanted the instruction to limit the jury's consideration of J.M.'s testimony about what Jackin had said immediately after the assault.
The State argued that the instruction was only intended to be given "when there is a custodial statement that the defense is disputing having been made voluntarily" and is not intended for the purpose of limiting other kinds of statements by the defendant. 3 RP at 251. The court ruled that the instruction was unnecessary and decided not to give it. The court acknowledged it had discretion in instructing the jury and stated:
I do think the general credibility language within WPIC 1.02 that we are going to be providing to the court [sic], which is the same language that was identified here in the Smith case, provides more than adequate opportunity for the defense to be able to argue what the[y] want to about whether or not the statement was accurate, whether or not in this particular case the alleged victim's representation of the statement is accurate or not, to what extent she is credible on giving that information, and be able to argue those issues to the jury.
During closing arguments, the State made the following statement at the end of its rebuttal argument:
The jury found Jackin guilty of indecent liberties. After the jury had returned its verdict of guilty, but before sentencing, the Washington Department of Corrections (DOC) prepared a presentence investigation report (PSI). In its description of the facts, the PSI stated:
[JM] stated that at about 0130 hours on 07/11/15, she awakened and felt someone touching her genital area. She opened her eyes to see [Jackin] standing beside her, with his hand down her pants. He was rubbing her vaginal area with his fingers. [JM] said she reacted both verbally and physically to make him stop, and he withdrew his hand. [JM] said when she asked [Jackin] what he thought he was doing, he answered, "I was just trying to get some."
CP at 93. The PSI stated that its information came "from official reports regarding this incident." CP at 93.
Jackin appeals.
The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011).
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel, the defendant must show both that (1) defense counsel's representation was deficient, and (2) the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. Representation is deficient if, after considering all the circumstances, the performance falls below an objective standard of reasonableness. Grier, 171 Wn.2d at 33. Prejudice exists if there is a reasonable probability that, except for counsel's errors, the results of the proceeding would have differed. Grier, 171 Wn.2d at 34. If either prong is not satisfied, the ineffective assistance of counsel claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
There is a strong presumption that counsel's representation was effective. Grier, 171 Wn.2d at 33. Legitimate trial strategy or tactics cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
"Conversely, a criminal defendant can rebut the presumption of reasonable performance by demonstrating that 'there is no conceivable legitimate tactic explaining counsel's performance.'" Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). Strategic decisions must be reasonable. Grier, 171 Wn.2d at 34.
Jackin contends that he received ineffective assistance of counsel because his trial attorney did not propose a jury instruction on assault in the fourth degree as a lesser included offense. He claims that it was objectively unreasonable for his attorney to pursue an "all or nothing"...
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