Opinion
No. 22292-6-III
Filed: November 18, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County. Docket No: 03-1-00147-1. Judgment or order under review. Date filed: 08/04/2003. Judge signing: Hon. Robert L. Zagelow.
Counsel for Appellant(s), Richard George Wernette, Mcadams Ponti Wernette PS, 103 E Poplar St Walla Walla, WA 99362-3028.
Counsel for Respondent(s), Michelle Marie Mulhern, Walla Walla Co Pros Office, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
James Lyle Nagle, Office of the Pros Attorney, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Joseph Davis was convicted of custodial assault for hitting Corrections Officer James Demory. On appeal, he argues that he received ineffective assistance of counsel because his counsel failed to: (1) locate a potential witness; and (2) seek a continuance because the potential witness had not been located. We affirm Mr. Davis's conviction.
FACTS
Joseph Davis was a prison inmate at the Washington State Penitentiary in Walla Walla County. He was assigned to work at the garment factory under the supervision of Officer James Demory.
On August 13, 2002, Officer Demory conducted the daily count of all of the garment factory prisoners. According to protocol, when an officer calls `count clear,' prisoners move to their seats and remain seated. Report of Proceedings (RP) at 25. Even though Officer Demory called `count clear,' he believed that Mr. Davis was not cooperating with him. Accordingly, Officer Demory turned toward Mr. Davis to discuss Mr. Davis's actions. After confronting Mr. Davis, Officer Demory turned away and walked past him to continue the count. Almost immediately, Officer Demory felt a blow to his back. Officer Demory accused Mr. Davis of hitting him, but Mr. Davis denied the accusation.
According to Mr. Davis's testimony, Mr. Davis had been talking to fellow inmate Germaine Henderson and did not hear Officer Demory call `count clear.' RP at 55. When he saw Officer Demory, Mr. Davis asserts that he `barely tapped' Officer Demory on his back in order to get his attention. RP at 55. Mr. Davis was charged with custodial assault. Mr. Davis's defense counsel interviewed several potential witnesses at Mr. Davis's request including several prison officers. None of the potential witnesses expressed knowledge about the altercation and, therefore, none of them were able to provide positive testimony on Mr. Davis's behalf.
Mr. Davis's defense counsel also attempted to contact Mr. Henderson. Unfortunately for Mr. Davis, Mr. Henderson was no longer an inmate at the Washington State Penitentiary. And, the officials at the penitentiary did not know Mr. Henderson's current location.
Even though Mr. Henderson could not be located by the trial date, defense counsel chose to proceed with trial. Defense counsel believed that a continuance `would deprive Mr. Davis of speedy trial, and finding Mr. Henderson could be like finding a needle in a haystack.' RP at 11. At trial, Mr. Davis testified in his own defense. The jury found Mr. Davis guilty of custodial assault.
ANALYSIS
Mr. Davis asserts he received ineffective assistance of counsel because his counsel failed to locate, interview, or subpoena a witness or inform the court of the substance of the witness's testimony. As such, the issue on appeal is whether Mr. Davis received ineffective assistance of counsel. Standard of Review. When reviewing the record for an ineffective assistance of counsel claim, there is a strong presumption that counsel provided adequate assistance. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The defendant's counsel is entitled to the strong presumption that they made all significant decisions in the exercise of their reasonable professional judgment. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993) (citing State v. Visitacion, 55 Wn. App. 166, 173, 776 P.2d 986 (1989)). There is a strong presumption that `counsel's conduct constituted sound trial strategy.' Sherwood, 71 Wn. App. at 484. In reviewing counsel's conduct, the court reviews the whole record, not merely the isolated incidences referenced by the defendant. State v. Piche, 71 Wn.2d 583, 591, 430 P.2d 522 (1967). Likewise, the claimed error must be `based on the record established in the proceedings below.' McFarland, 127 Wn.2d at 335.
Ineffective Assistance of Counsel. To establish ineffective assistance of counsel, the defendant must establish that (1) counsel's representation was deficient; and (2) as a result of the deficient performance, the defendant was prejudiced. State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001); State v. Acevedo, 137 Wn.2d 179, 198-99, 970 P.2d 299 (1999). To satisfy `deficient performance,' the defendant must establish that counsel's representation "fell below an objective standard of reasonableness based on consideration of all the circumstances." Acevedo, 137 Wn.2d at 198 (quoting McFarland, 127 Wn.2d at 334-35). This requires "showing that counsel made errors so serious that `counsel' was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Deficient performance is not established if the claimed errors involve `trial tactics' or the counsel's `theory of the case.' State v. Johnson, 29 Wn. App. 807, 814, 631 P.2d 413 (1981) (citing State v. Ermert, 94 Wn.2d 839, 621 P.2d 121 (1980)). Instead, counsel has "wide latitude and flexibility in his choice of trial psychology and tactics." In re Pers. Restraint of Stenson, 142 Wn.2d 710, 735, 16 P.3d 1 (2001) (quoting Piche, 71 Wn.2d at 590). Likewise, deficient performance is not established if the claimed errors involve counsel's decision whether to interview or call witnesses. Stenson, 142 Wn.2d at 735 (quoting Piche, 71 Wn.2d at 590). Such a rule would force counsel to "lose the very freedom of action so essential to a skillful representation of the accused." Stenson, 142 Wn.2d at 735 (quoting Piche, 71 Wn.2d at 590).
Deficient performance can be established if counsel failed to conduct any investigation at all and was thus completely unprepared for trial. State v. Jury, 19 Wn. App. 256, 264-66, 576 P.2d 1302 (1978). However, even if counsel failed to conduct any investigation at all, and as a result failed to call necessary witnesses, deficient performance is not established if the record does not disclose what information the missing witnesses would have provided. Id. at 265.
To satisfy `prejudice,' the defendant must establish that `counsel's deficient performance prejudiced the defendant.' Acevedo, 137 Wn.2d at 198 (citing In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993)). This requires showing that but for the deficient representation, there is a reasonable probability that the outcome of the trial would have been different. Townsend, 142 Wn.2d at 843-44. In other words, the defendant must establish that `counsel's errors were so serious as to deprive [him] of a fair trial.' Jeffries, 105 Wn.2d at 418 (quoting Strickland, 466 U.S. at 687).
Prejudice is not established if the record shows that the defendant `benefited from [counsel's] representation.' Acevedo, 137 Wn.2d at 200. Prejudice is not established if the record shows that counsel `was reasonably engaging in a legitimate strategy or tactic.' Id. (citing State v. Osborne, 102 Wn.2d 87, 99-100, 684 P.2d 683 (1984)). Indeed, tactical mistakes cannot establish prejudice unless the defendant can establish that, but for the tactical error, the result would have been different. Jeffries, 105 Wn.2d at 418.
In this case, Mr. Davis cannot establish that he received ineffective assistance of counsel. Mr. Davis is unable to establish that defense counsel provided a `deficient performance' because his claimed errors involve tactical decisions. First, Mr. Davis asserts that defense counsel should have located Mr. Henderson. However, the choice of whether to interview or call witnesses is a tactical decision that lies with the defense attorney. Second, Mr. Davis asserts that defense counsel should have subpoenaed Mr. Henderson. Similarly, the decision whether to subpoena a potential witness is a tactical decision that lies with the defense counsel. Third, Mr. Davis asserts that defense counsel should have informed the court of Mr. Henderson's testimony. Because defense counsel was unable to locate Mr. Henderson, he could hardly provide a truthful statement concerning the substance of the witness's testimony.
In addition, Mr. Davis cannot establish that the defense counsel's efforts prejudiced him in any way. Mr. Davis was on trial for custodial assault. He testified and was able to provide his theory of the case. He admitted touching the officer. Because Mr. Henderson's testimony is unknown, Mr. Davis cannot establish that `but for' Mr. Henderson's testimony the result of the trial would be different. In conclusion, Mr. Davis cannot establish either deficient performance or prejudice so his assertions of ineffective assistance of counsel fail.
We affirm Mr. Davis's conviction.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., Concur.