State v. King

• Decision Date: 23 October 1979
• Docket Number: No. 3678-II,3678-II
• Citation: 601 P.2d 982,24 Wn.App. 495
• Parties: The STATE of Washington, Respondent, v. Kevin KING, Appellant.
• Court: Washington Court of Appeals

Page 495

24 Wn.App. 495

601 P.2d 982

The STATE of Washington, Respondent, v. Kevin KING, Appellant.

No. 3678-II.

Court of Appeals of Washington, Division 2.

Oct. 23, 1979.

Brian P. Coughenour (appointed), Port Angeles, for appellant.

Grant S. Meiner, Pros. Atty., Port Angeles, for respondent.

SOULE, Judge.

Defendant was charged with assault in the second degree based upon RCW 9A.36.020(1)(b). ¹ He appeals from a judgment of conviction and a sentence to the Division of Institutions of the Department of Social and Health Services. We affirm the judgment and sentence.

On the evening of September 7-8, 1977, the victim, Marvin McGuire, and defendant were independently indulging in fairly extensive recreational drinking at the Vagabond Restaurant in Forks. By the end of the evening McGuire was highly intoxicated. Defendant's condition was less clear. Both men were loggers and were somewhat acquainted. Their concurrent presence at the Vagabond was coincidental, each being there in the primary company of others, although during the evening there was apparently some friendly conversation and horseplay between the two. Toward closing time defendant took offense at something said or done by McGuire, flew into a rage and challenged McGuire to come outside and "have it out." Defendant then left the premises. McGuire did not follow at once. He remained inside and there was substantial evidence from which the jury could find that he was reluctant to engage in combat. However, eventually he did go outside because, as two witnesses remember, McGuire said he did not want defendant to think he was "chicken." There was some evidence that when McGuire came outside defendant immediately attacked him by kicking him in the body, knocking him to the pavement, kicking him in the head and then taking McGuire's head and beating it on the pavement despite McGuire's effort to terminate the beating by saying "I quit Kevin, I quit." The record also contains testimony that the encounter was by no means that violent.

McGuire was thereafter taken to the hospital in Forks. Because of his alcoholic condition, the doctor was unable to assess his potential injuries, particularly with respect to a possible concussion. By careful cross-examination, defense counsel developed the fact that the manifestations of concussion and of heavy intoxication can be substantially the same. Because of the confusion of symptoms, defendant was transferred to the hospital in Port Angeles as a precautionary measure. He was released after 2 days, but had headache problems for a month thereafter.

Defendant's assignments of error basically raise two issues: one concerns the effectiveness of counsel, and the other relates to the admission of certain hearsay testimony at the time of sentencing.

The test used to determine whether a criminal defendant was denied effective assistance of counsel is whether, after considering the entire record, it can be said that the accused was afforded an effective representation and a fair trial. State v. Adams, 91 Wash.2d 86, 89, 586 P.2d 1168 (1978); State v. Myers, 86 Wash.2d 419, 424, 545 P.2d 538 (1976); State v. Jury, 19 Wash.App. 256, 576 P.2d 1302 (1978). Counsel on appeal urges us to consider a different standard, the so-called objective standard discussed in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). This test was discussed in State v. Adams, supra, and the court, declined to adopt it, stating at page 90 of 91 Wash.2d, at page 1171 of 586 P.2d:

Our test recognizes that "the method and manner of preparing and presenting a case will vary with different counsel." State v. Thomas, ^* Supra, 71 Wash.2d at 472, 429 P.2d 231. In other words, If a defense counsel's trial conduct, which is later complained of, Can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim that a defendant received ineffective assistance of counsel.

(Italics ours. Citations omitted.) Adams also observed that even under the Beasley v. United States test "trial tactics cannot serve as a basis for a claim of inadequate representation, unless these tactics would be considered incompetent by lawyers of ordinary training and skill in the criminal law." State v. Adams, supra at 91, 586 P.2d at 1171.

After a careful reading of the record, we conclude that, measured by either of the foregoing tests, the criticized actions of trial counsel can be characterized as legitimate strategic or tactical decisions or were otherwise dictated by the realities of the case as it appears from the record.

At this point it is also appropriate to note that our determination of competency must be made from a review of the record itself. We cannot go outside the record in the course of appellate review. State v. White, 81 Wash.2d 223 500 P.2d 1242 (1972); State v. Humburgs, 3 Wash.App. 31, 37, 472 P.2d 416 (1970).

Defendant had been represented successfully in an earlier unrelated action by the same counsel of whose performance he now complains. Although his brief lacks clarity in this regard, he now seems to urge that he did not have effective assistance of counsel in the present case for ten reasons:

1. Defendant complains of the failure of his counsel to call other witnesses, including himself. In general, the decision to call or not call a witness is a matter of legitimate trial tactics. State v. Hess, 86 Wash.2d 51, 541 P.2d 1222 (1975); State v. Floyd, 11 Wash.App. 1, 521 P.2d 1187 (1974). However, there is a qualification to the rule. Apparently a criminal defendant has an absolute right to testify in his own behalf which right cannot be abrogated by defense counsel. People v. Freeman, 76 Cal.App.3d 302, 142 Cal.Rptr. 806, 810-11 (1977); ABA Standards Relating to the Prosecution Function and the Defense Function § 5.2(a), Commentary at 238 (Approved, Draft 1971). See generally Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, 4 (1971). Therefore, if a criminal defendant alleges in a subsequent habeas corpus or personal restraint proceeding that his attorney actually prevented him from testifying in his own behalf, it would appear proper to remand for an evidentiary hearing on this issue. This is in contrast to an allegation in a subsequent proceeding that defense counsel merely advised defendant against testifying as a matter of trial tactics. If defendant accepts this tactical advice and is not acquitted of the charges, he cannot later allege that he was denied effective counsel because he accepted the advice of his attorney and did not testify. E. g. United States ex rel. Johnson v. Johnson, 531 F.2d 169, 176-77 (3rd Cir. 1976); United States v. Ladley, 517 F.2d 1190 (9th Cir. 1975); United States ex rel. Tyrrell v. Jeffes, 420 F.Supp. 256, 272 (E.D.Pa.1976).

Unfortunately, on the record before us, we have no means of knowing the circumstances under which the decision was made not to call the defendant. We have only the defendant's unsworn assertion. His contention in this regard is probably reviewable in a personal restraint proceeding where evidence can be received, but the record is such that it is not reviewable in this direct appeal. State v. White, supra; State v. Humburgs, supra.

2. Allied to the failure to call the defendant as a witness is the complaint that counsel did not offer an instruction on the effect of defendant's failure to testify. The use of such an instruction presents counsel with a tactical choice. It must be given by the court if requested by the defense, ² but some defendants do not want it given because they feel that such an instruction highlights defendant's silence and enables the prosecutor to point out that he did not testify by using the court's own words, thereby undermining the protection afforded by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). See State v. East, 3 Wash.App. 128, 132, 474 P.2d 582 (1970). Therefore, failure to propose an instruction similar to WPIC 6.31 on the failure of the defendant to testify can hardly be regarded as evidence of incompetent counsel.

3. Defendant suggests that counsel was incompetent because he based his defense primarily on the theory that this was a "mutual affray," two tough loggers choosing one another after a drinking bout. Granted that such a defense is not legally recognized, we nevertheless recognize it as a not unusual argument directed to the common sense of the jury. Every trial judge has seen such a tactic prove effective despite carefully drawn instructions which make no provision for the theory. We observe, perhaps gratuitously but we hope not invidiously, that such an argument could well be favorably received by local jurors familiar with the behavior patterns of loggers in western Clallam County. The employment of such a tactic is understandable to us. It did not work in this case, but a bad result does not establish that counsel was ineffective. Defendant is not guaranteed "successful assistance of counsel." State v. Adams, supra. ³

4. Complaint is made that counsel did not offer an instruction on self-defense. The undisputed evidence is that defendant challenged McGuire to a fight, lay in wait for him at a point removed from the place of challenge, then struck the first and perhaps only blows. The evidence simply does not support a self-defense instruction. Cf. State v. Jelle, 21 Wash.App. 872, 587 P.2d 595 (1978). Counsel is not required to present a defense not warranted by the demonstrable facts. State v. White, 5 Wash.App. 283, 487 P.2d 243 (1971), Reversed on other grounds, 81 Wash.2d 223, 500 P.2d 1242 (1972).

5. Defendant complains because counsel failed to offer an instruction on the lesser included offense of simple assault. Such an instruction would almost have insured a conviction for at least a misdemeanor. Counsel's tactic, as demonstrated by his argument to the jury, was to attempt to persuade the jurors that the affray was not as violent as some...