State v. Temple, 34853-9-III

CourtCourt of Appeals of Washington
Writing for the CourtFEARING, J.
Citation4 Wn.App.2d 1006
PartiesSTATE OF WASHINGTON, Respondent, v. BILLY SAMUEL TEMPLE, Appellant.
Docket Number34853-9-III
Decision Date05 June 2018

4 Wn.App.2d 1006



No. 34853-9-III

Court of Appeals of Washington, Division 3

June 5, 2018



We must decide whether appellant Billy Temple's trial counsel engaged in a legitimate trial strategy when declining to assert self-defense, despite Temple testifying that his girlfriend's father attacked him first, and instead arguing that Temple lacked any criminal intent when punching the father twice. A jury convicted Temple of second degree assault because of the punches. He contends on appeal ineffective assistance of counsel. We agree with Temple and reverse his conviction because of the important constitutional right to effective assistance of counsel.


This appeal concerns a confrontation between Billy Temple and his significant other's father, Carey Cook (Cook). Temple is ten years younger and seventy pounds lighter than Cook. Because we must determine whether defense trial counsel performed ineffectively with his trial tactics and because we view the performance of counsel based on the complete trial record, we later quote at length trial testimony.

On May 15, 2016, Carey Cook, his brother, Dave Jordan, his daughter, Jamie Cook (Jamie), his daughter's boyfriend, Billy Temple, and Cook's two young grandchildren lived at one Spokane residence owned by Cook. Cook generally slept in a recreational vehicle, which he parked in the backyard. Cook allowed his family to sleep in his small abode. Jamie and Billy Temple, and the couple's children, occupied one bedroom. Cook's brother, Dave Jordan, slept on a daybed in the living room.

As of May 15, Jamie and Billy Temple had resided in Carey Cook's house for two weeks. Cook and Temple had known each other for one year and, by May 2016, suffered a deteriorating relationship. The younger couple allowed Cook's dogs to escape the home and roam in the yard, a practice that irritated Cook.

On the morning of May 15, Billy Temple worked on his car along the curb of the street in front of the residence. One of Jamie's eighteen-month-old daughters played near Temple. Temple went inside the home to retrieve an object but did not bring the daughter with him. A concerned Carey Cook yelled about the lack of supervision of his granddaughter. Jamie heard her father yell. Jamie told her father to mind his own business, because Temple and she knew how to raise children.

On the night of May 15/16, Carey Cook slept in his recreational vehicle. Around 1:00 a.m., Cook left his small quarters to use the house restroom. On entering, Cook noticed his brother, Dave Jordan, watching the front yard because Billy Temple or Jamie had sent the dogs outside. An incensed Cook yelled, which stirred Temple and Jamie. Cook entered the bathroom and slammed the door.

While inside the bathroom, Carey Cook heard Billy Temple and Jamie talking, but could not hear their words. Cook entered the bedroom to speak with Jamie. At trial, Cook described what transpired next:

I walked in the [bedroom] door and I leaned up against the crib, and at that time, I thought [Temple] was going to exit the room, and then he said you are going to call the police and came up and instantly head butted me, and then I was dazed from that, and I think I tried to reach out and shove him away, but I'm not sure because the next thing I know a fist came across my eye downward, and after that, I was knocked unconscious and fell on the floor, and when I came to, I was [sic] blood was coming out of my eye and out of my nose, and I grabbed my eye because I couldn't see out of it
So I'm yelling you blew my eye out. You blew my eye out Call 911. Call 911, and at that point, my daughter said well, if you call the police, we're [Temple and I are] going to tell them that you head butted him [Temple].

Report of Proceedings (RP) at 93-94.

Dave Jordan saw Billy Temple move his arm to hit Carey Cook, but did not see Temple strike Cook. Jordan did not notice any injuries on Temple.

According to Billy Temple, Carey Cook yelled inside the home before Cook entered the bedroom. Temple maintains he desired to leave the room but Cook clogged the bedroom doorway because of his large size. Cook denies he blocked exit from the room. During direct examination at trial, Temple narrated the squabble:

I tried to walk out the door, and we had got into a confrontation right then and there. [Cook] had reached up and grabbed me by the throat. I had two necklaces on and a black hoodie. He reached up and grabbed my throat, and he head butted me like that, and I head butted him back, and then we got into an altercation.
Q And what do you mean by altercation?
A Well, he wouldn't let go of my throat, and I kept telling him to quit, and I hit him once, and we kind of got into the doorway, and I said enough's enough, and I hit him again, and he kept screaming at the top of his lungs, and he wouldn't let go of my throat, and by that time, he got wedged in because the babies' crib and the closet and the bed. He got wedged into between there, and he went down.
Q When he was wedged into there, what did you do?
A I was trying -- he was like this. He wouldn't let go of my throat. He wasn't all the way on the ground, but he was just wedged.
Q Once separated, what did you do?
A I said that's enough.
Q Do you recall if Mr. David Jordan was present?
A I felt somebody hit me from behind. I don't know if it was him. It could have been. It could have.
Q Did you assault David Jordan that night?
A No, sir.
. . . .
Q On May 16th or 15th or 16th, did you intentionally assault Carey Cook?
A I did not.
Q But you admit you head butted him?
A Yes, sir.
Q And you admit you punched him?
A Yes.
. . . .
Q Was there any reason why you would not have intended to assault Mr. Cook that night?
A There's no reason. . . .

RP at 137-40.

During trial when asked about his relationship with Carey Cook, Billy Temple replied:

I like him. I mean, he's always done nice things for me, Jamie and the kids. He was letting me stay there. I just didn't intend to do any harm to him. I didn't want to. That's my kids' grandpa. You know what I mean? He just doesn't like me, so.

RP at 140.

On cross-examination, Billy Temple testified:

Q On the morning of May 16, 2016, your testimony is you intentionally head butted Mr. Cook, didn't you?
A No.
Q You didn't testify earlier that you head butted Mr. Cook?
A I testified that as Mr. Cook was standing in the door, I was trying to leave. I didn't want any kind of altercation with Mr. Cook. Mr. Cook reached up, grabbed my throat.
Q Sir, my question to you is did you intentionally head butt Mr. Cook?
A I guess if you put it that way after I was head butted.
Q Sir, my question is, and I am putting it that way. Did you intentionally head butt Mr. Cook that morning?
A After I was head butted, yes, sir.
Q Sir, yes or no is all you need to reply.
A Yes, sir.
Q Did you intentionally punch Mr. Cook that night?
A Yes.
Q Did you, in fact, intentionally punch Mr. Cook twice that night?
A I did not intentionally try to assault Mr. Cook.
Q Sir --
A Yes, sir.
Q The Court defines what an assault is. My question to you is did you intentionally punch Mr. Cook twice that morning?
A We were in an altercation.
Q Sir, it's a very simple yes or no.
A I know what you're saying.
Q Did you intentionally punch Mr. Cook twice that morning?
A No, sir. I did not want to intentionally to [sic]do harm to Mr. Cook.
Q That's not the question.
A I said no, sir.
Q Now, your testimony earlier you testified that you punched him, hit him twice. Are you now changing that testimony saying you didn't punch him twice that morning?
A I'm saying we were in a physical altercation, and I did punch him.
Q Sir, so did you intentionally punch Mr. Cook twice that night in the head as a matter of fact?
A Yes, sir.
Q And, in fact, didn't Mr. Cook go down after the second time you punched him?
A Yes.
Q Did you see the injuries Mr. Cook had after you head butted him and punched him twice?
A I seen that his face was red. Not until after it was over did I see what the injuries looked like, and I said that was enough. It's enough.
Q In fact, you testified earlier exactly that. At one point, you said that's enough, and that's when you punched him the second time, and he went down, correct?
A No.
Q Can you tell me the sequence then?
A He was in the doorway. Do you want me to break it down the way it was?
Q You had testified earlier that you said enough is enough, so you hit him again; is that correct?
A The whole time, sir --
Q It's a very simple question. Yes or no?
A Yeah, no.
Q At one point, you testified you said to yourself enough is enough, and you hit him again; is that correct?
A No, that is not correct, sir.
Q So what happened? What is your testimony now?
A My testimony is the same as it's always been. He was in the doorway. I knew that Mr. Cook was going to call the cops.
Q Sir, my question is about when you said enough is enough, and you hit him again.
A No, sir, I did not hit him again.
Q You hit him twice, though?
A There was a head butt, and then there was two punches.
Q Correct. And before your second punch, you had said to yourself enough is enough, correct?
A I don't remember what I said to myself.

RP at 141-44.

Jamie Cook also testified that her father acted as the aggressor. Jamie averred at trial:

Q And what happened after you heard the door slam?
A My dad was screaming. He came running down the hallway, went into the

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