State v. Thomas

• Decision Date: 08 October 1987
• Docket Number: No. 53550-7,53550-7
• Citation: 109 Wn.2d 222,743 P.2d 816
• Parties: The STATE of Washington, Respondent, v. Kerry S. THOMAS, Petitioner.
• Court: Washington Supreme Court

Page 222

109 Wn.2d 222

743 P.2d 816

The STATE of Washington, Respondent, v. Kerry S. THOMAS, Petitioner.

No. 53550-7.

Supreme Court of Washington,

En Banc.

Oct. 8, 1987.

Reconsideration Denied Nov. 24, 1987.

Christine Wyatt, Bainbridge Island, for petitioner.

Dan Clem, Kitsap County Prosecutor, Reinhold P. Schuetz, Deputy Port Orchard, for respondent.

GOODLOE, Justice.

This case involves an allegation of ineffective assistance of counsel. Petitioner Kerry Thomas alleges that her assigned trial counsel failed to competently present a diminished capacity defense based on voluntary intoxication to a charge of attempting to elude a police vehicle. We agree and remand for a new trial.

On October 15, 1984, defendant Thomas imbibed numerous alcoholic drinks at the Blue Goose Tavern, in Kitsap County. The barmaid, Hurleen Fridline, remembers serving Thomas about five glasses of wine. Around 11:00 p.m., Fridline cut Thomas off because she felt Thomas had consumed too much. Soon thereafter, Thomas started getting rowdy and Fridline asked her to leave. After leaving the Blue Goose, Thomas remembers going to the Port Orchard Tavern. At approximately 2:00 a.m., Thomas returned to the Blue Goose in her car. Because of her drunken behavior and erratic driving Fridline called the police. Deputy Wayne Gulla of the Kitsap County Sheriff's Office responded. Meanwhile, Thomas had driven away.

Gulla pursued Thomas in the direction her yellow car had last been seen. Shortly after beginning pursuit, he observed fresh skid marks that passed through a cyclone fence. After briefly stopping he proceeded onward. At a grocery store he contacted Deputy John Sandberg, who had also responded to that location. While talking, Gulla noticed the headlights of a car up the road which "made a bounce as if the vehicle was run into the ditch or was pulling out of the ditch." Report of Proceedings, at 91. Gulla headed in the direction in which the headlights were observed. He testified that as he approached the car, which was yellow, it was necessary to take evasive action to avoid a head-on collision. In so doing, Gulla took a right turn. The yellow car followed and began closely tailgating Gulla's patrol car. His patrol car was equipped with shields, spot light, push bars, "wigwag" headlights, siren, and strobe lights in the grill, but did not have markings on it indicating that it was a police vehicle.

To evade the car that was tailgating him, Gulla made an abrupt right turn. He then made a U-turn and pulled out behind it. At this point Deputy Sandberg came up behind him in a fully marked Kitsap County Sheriff deputy car. Gulla and Sandberg proceeded to pursue the yellow car. Gulla stated that he was no more than two car lengths behind the pursued car. He activated the patrol car's "wigwag" headlights, red and blue strobe lights, and siren. He testified that the car being chased responded by accelerating and that it weaved all over the road.

The chase continued through a series of curves, following which the yellow car made a left-hand turn. Gulla testified:

At that point I angled my patrol vehicle right into the driver's door of the fleeing vehicle, blasting the siren right in the window. The driver of the vehicle, which I observed at that time to be a female, looked toward my patrol vehicle, and throughout the course of the events had been watching my actions in her rear-view mirror.

Report of Proceedings, at 98. Gulla testified that coming out of the left-hand turn, the pursued car again accelerated. During all of this, Sandberg had all of his emergency lights and his siren on.

Finally, the chased car turned down a dead-end street. After the car reached the end the driver made a U-turn. The driver headed toward Sandberg's marked vehicle which he had positioned to block the road. However, she then stopped. Thereafter, Thomas was taken into custody. Gulla concluded that she was very intoxicated. Sandberg testified that he pursued Thomas for a mile to a mile-and-a-half.

Thomas testified that she does not remember returning to the Blue Goose Tavern. She stated:

I had a blackout. I have had blackouts before, and a lot of times I'll come in and out of it. If something really terrible happens, I have been known to black it all out so that I don't have to deal with it.

Report of Proceedings, at 167-68. She testified that she does not recall driving through the cyclone fence. Thomas also testified that she stopped as soon as she realized a police vehicle was following her. She stated that she does not recall hearing any sirens. Thomas said that she only remembers seeing bright white lights, but did not think it was the police because their lights are blue and red. She testified that she was "blitzed" and incoherent.

The Kitsap County Prosecutor charged Thomas with attempting to elude a pursuing police vehicle in violation of RCW 46.61.024 and driving while under influence of intoxicating liquor or drug in violation of RCW 46.61.502. Thomas pleaded guilty to the DWI charge. The attempting to elude charge went to trial. A jury found Thomas guilty. The Court of Appeals affirmed. State v. Thomas, 46 Wash.App. 723, 732 P.2d 171 (1987). This court accepted discretionary review.

Thomas' assignments of error involve an allegation of ineffective assistance of counsel. The purpose of the requirement of effective assistance of counsel is to ensure a fair and impartial trial. See, e.g., State v. Osborne, 102 Wash.2d 87, 99, 684 P.2d 683 (1984); State v. Ermert, 94 Wash.2d 839, 849, 621 P.2d 121 (1980). To that end Justice O'Connor articulated the following two-prong test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):

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. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

See also State v. Jeffries, 105 Wash.2d 398, 418, 717 P.2d 722, cert. denied, --- U.S. ----, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986); State v. Sardinia, 42 Wash.App. 533, 713 P.2d 122 (1986).

The Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness based on consideration of all of the circumstances. Strickland, at 688. Regarding the first prong, scrutiny of counsel's performance is highly deferential and courts will indulge in a strong presumption of reasonableness. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To meet the requirement of the second prong defendant has the burden to show that

there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

(Italics ours.) Strickland, at 694, 104 S.Ct. at 2068. Defendant, however, "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Strickland, at 693, 104 S.Ct. at 2068.

In the present case, the claim of ineffective assistance of counsel relates to defense counsel's alleged failure to properly present a diminished capacity defense based on voluntary intoxication. Thomas' first allegation of ineffective assistance of counsel involves her trial counsel's failure to offer an instruction based on our construal of the felony flight statute, RCW 46.61.024, in State v. Sherman, 98 Wash.2d 53, 653 P.2d 612 (1982).

RCW 46.61.024 defines felony flight in the following terms:

Any driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony.

In Sherman, we held that RCW 46.61.024 requires that the defendant both subjectively and objectively act with wanton and willful disregard of others. We concluded that juries should be instructed that the circumstantial evidence of defendant's manner of driving only creates a rebuttable inference of " 'wanton and wilful disregard for the lives or property of others ...' " Sherman, at 59, 653 P.2d 612. Therefore, Sherman indicates that objective conduct by the defendant indicating disregard is only circumstantial evidence and may be rebutted by subjective evidence pertaining to defendant's mental state.

The defense theory of the case was that Thomas was too intoxicated to have formulated the required wanton or willful disregard. Therefore, she argues that a Sherman instruction was crucial because she presented evidence, her intoxication, to rebut the inference of wanton and willful disregard created by her driving. Thomas asserts that a Sherman instruction would have better enabled her counsel to argue the defense's theory of the case. The Court of Appeals disagreed and held that the failure to offer a Sherman instruction was not prejudicial because no evidence existed to rebut the inference. Thomas, 46 Wash.App. at 727, 732 P.2d 171. The court reasoned that a Sherman instruction is necessary only if defendant presents an affirmative showing of a noncriminal or innocent mental state, e.g., stuck throttle, rather than having "no mental state at all." Thomas, at 728, 732 P.2d 171. Thomas responds that voluntary intoxication is a defense encompassed by the reasoning of Sherman and that an attorney of...