Opinion
No. 60043-5-I.
September 15, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10871-6, Nicole MacInnes, J., entered May 4, 2007.
To prevail on a claim of ineffective assistance of counsel, the defendant must prove both deficient performance by counsel and resulting prejudice. Regardless of whether a third degree assault jury instruction was warranted, Humberto Torres is unable to demonstrate prejudice when his trial counsel did not request such an instruction. We affirm.
State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
While attempting to enter the Union Gospel Mission, a men's shelter in Seattle, Torres became involved in a physical altercation with Darnell Robinson, a supervisor at the mission. Torres testified that he pulled a box cutter from his pocket in an attempt to scare Robinson. He claimed he accidentally cut Robinson while the two were wrestling. In contrast, Robinson testified that after he pushed Torres to the ground, Torres got up, took out the box cutter, and began "slashing" at him.
The State charged Torres with one count of assault in the first degree under RCW 9A.36.011. After trial, the jury was instructed that it could alternatively find Torres guilty of the inferior offense of assault in the second degree. The trial court denied Torres' request for a fourth degree assault instruction. The jury was not instructed on the inferior offense of third degree assault. Trial counsel did not request the instruction, believing that "significant element issues" prevented its proffering.
RCW 10.61.003 provides: "Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto. . . . "
Despite his self-defense claim, the jury convicted Torres of assault in the second degree under RCW 9A.36.021. The jury also found, by special verdict, that the box cutter used by Torres was a deadly weapon.
Torres appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Torres argues that his trial counsel was ineffective. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's conduct was deficient and that the deficient performance resulted in prejudice. This court employs a strong presumption that counsel's representation was effective. Prejudice is established if the defendant shows that but for counsel's errors, there is a reasonable probability that the outcome of the trial would have been different. The failure to establish either prong of the test is fatal to the claim of ineffective assistance of counsel.
Nichols, 161 Wn.2d at 8.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Nichols, 161 Wn.2d at 8.
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Here, Torres argues that his trial counsel's failure to propose a jury instruction addressing third degree assault prejudiced his trial. The record does not support this claim.
RCW 9A.36.031(1) outlines the elements of assault in the third degree. That statute provides in relevant part:
(1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree . . .
. . . .
(d) With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm. . . .
RCW 9A.36.031(1)(d) (emphasis added).
While the term "weapon" is not defined by statute, the term "deadly weapon" is.
Under RCW 9A.04.110(6):
"Deadly weapon" means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.
The jury's express finding that Torres used a deadly weapon forecloses the possibility of a third degree assault verdict. Unlike first or second degree assault, third degree assault only contemplates the use of a "weapon" rather than a "deadly weapon." The absence of the adjective precludes the invocation of the inferior charge against those who use deadly weapons in the commission of an assault. Thus, regardless of whether a third degree instruction was warranted by the evidence, the jury's finding that the box cutter was a deadly weapon obviated the possibility of a third degree assault verdict.
RCW 9A.36.011(1) ("A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death. . . ." (emphasis added)).
RCW 9A.36.021(1) ("A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . (c) Assaults another with a deadly weapon. . . ." (emphasis added)).
Similarly, the plain language of RCW 9A.36.031(1) makes clear that a finding of third degree assault is incompatible with any scenario in which first or second degree assault is found. In the context of lesser included offenses, this court has indicated that the omission of an instruction may be harmless error if "the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions."
State v. Hansen, 46 Wn. App. 292, 297, 730 P.2d 706 (1986), modified by, 737 P.2d 670 (1987) (trial court's failure to properly instruct jury on unlawful imprisonment was harmless error where defendant was convicted of first degree kidnapping).
Here, the jury made an express finding that all elements of assault in the second degree, including intent, existed beyond a reasonable doubt. Thus, the inclusion of an instruction on assault in the third degree, requiring only criminal negligence, would not have changed the outcome here.
Torres does not persuasively explain how the mere proffering of a third degree instruction would have altered the jury's analysis or decision. Put differently, there is simply no evidence that he was prejudiced in any way when his trial counsel did not request a jury instruction on third degree assault.
Nonetheless, Torres contends that "[r]eversal is required when a defendant is entitled to instruction on a lesser charge and the trial court fails to give it." However, the authorities that Torres relies upon are inapposite to the present matter. In those cases, the issue on appeal was whether the trial court properly refused to give the jury a proposed instruction, not trial counsel's performance.
State v. Fernandez-Medina, 141 Wn.2d 448, 462, 6 P.3d 1150 (2000); State v. Parker, 102 Wn.2d 161, 163-64, 166, 683 P.2d 189 (1984).
Here, no proposal for a third degree assault instruction was before the court. Where counsel's effectiveness in requesting instructions is at issue, the burden of proving prejudice remains with the defendant. There was no prejudice to Torres' case.
See, e.g., State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001) (defendant not prejudiced despite counsel's failure to request a proper diminished capacity instruction); State v. Adams, 138 Wn. App. 36, 49, 155 P.3d 989, review denied, 161 Wn.2d 1006, 169 P.3d 33 (2007) (defendant required to demonstrate prejudice to support allegation of counsel's ineffective assistance in failing to request a lesser included offense instruction).
Because Torres has not satisfied the prejudice prong, we need not reach the issue of whether trial counsel was deficient in not requesting a third degree assault instruction.
We affirm the judgment and sentence.