Opinion
No. 35543-4-II.
June 3, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01585-3, M. Karlynn Haberly, J., entered October 27, 2006.
Reversed and remanded by unpublished opinion per Houghton, C. J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Martin Warren appeals his convictions of aggravated first degree murder and second degree unlawful possession of a firearm stemming from the killing of his father. He contends that he received ineffective assistance of counsel as a result of defense counsel's failure to request lesser included offense instructions for second degree murder and first and second degree manslaughter. He also argues that the trial court erroneously omitted the knowledge element from the second degree unlawful possession of a firearm jury instruction and the protection order against him aggravating his murder conviction was vague and unenforceable. In his statement of additional grounds, he raises additional claims of ineffective assistance of counsel, trial court error, and prosecutorial misconduct. We agree that Warren received ineffective assistance of counsel due to defense counsel's failure to request lesser included offense instructions. Thus, we reverse his convictions and remand for a new trial.
FACTS Background
Warren owned property at 2851 Komichan Lane NW in Seabeck, Kitsap County, and resided there with his father Russell, his mother Dortha, his brother Ivan, and his girl friend Kathy Moore. Dortha and Ivan lived in the main residence. Warren and Moore lived in a motor home located on the property while Warren rebuilt a second smaller home, referred to as the homestead, next to the main residence.
We use some of the parties' first names for clarity, intending no disrespect.
Russell and Dortha divorced in August 2001 and Russell was officially living with his brother nearby, but he primarily stayed on the property with Dortha.
The record indicates that Russell was an exceedingly abusive and controlling person who terrorized his family and led them in illegal activities including the use, manufacture, and sale of methamphetamine. Russell introduced Warren to drugs as a young child and, by early adolescence, Warren was using methamphetamine and other substances he obtained from his father. When Warren was 10 years old, Russell raped Warren's half sister. When Warren was 16 years old, he witnessed Russell shoot and kill a man during a drug deal; Russell was convicted of murder and served five years in prison. Warren was aware that Russell had threatened to kill him and had also threatened to "take care" of Dortha. VI Report of Proceedings (RP) at 722. The family knew that Russell possessed multiple firearms.
Russell had also served time for convictions related to manufacturing and sale of methamphetamine. He forced Warren to manufacture methamphetamine to pay the family's bills, threatening him if he refused. Warren stated that, although Russell continued to be involved in allof the family's drug manufacturing and dealing activities, he avoided taking responsibility because of his prior felony convictions and was willing to have Warren "'take the rap.'" Clerk's Papers (CP) at 17. Warren himself was a heavy methamphetamine user and had been using large quantities of methamphetamine daily for several years, including the days leading up to the shooting. Before the current incident, Warren had been arrested twice on suspicion of methamphetamine manufacturing, possession, and attempted delivery; he was scheduled for trial on October 27, 2004.
The Shooting
On October 11, 2004, the Kitsap County Sheriff's Office received a 911 call from 2851 Komichan Lane NW, reporting "'murder-murder.'" CP at 4. While Kitsap County patrol deputies responded, central command advised that the suspect had left the scene in a white Ford truck. Deputy Lee Watson arrived first at the scene and contacted Dortha, who told him that Warren had shot Russell. Deputies and medical personnel confirmed Russell's death at the scene from gun shot wounds.
Ivan also told Watson that Warren shot Russell with a .380 semiautomatic firearm.
Dortha, Ivan, and Moore testified to somewhat varying descriptions of the incident but generally related the following:
On the morning of the shooting, Warren asked Moore to go to the main residence to ask Russell if she could borrow a vehicle. Russell told Moore that she could not. Dortha and Ivan were also in the main residence at the time. Moore reported Russell's refusal to Warren, who became angry and went to the main residence and began yelling at Russell. Warren then left themain residence and returned approximately five minutes later with a firearm. He shot five rounds at Russell as he lay on the couch watching television, hitting him four times. Warren then left the property in his white Ford truck.
Moore testified that Warren was very angry and "just exploded, enraged immediately, and went inside the house to talk to his dad, to yell at his dad basically. He was very, very angry." VII RP at 778. Ivan testified that Warren was a little mad and called Russell "an a — hole and a stingy f — ker" but that Warren was "kind of calm" and "wasn't real irate." V RP at 613. Dortha testified that Warren spoke to Russell in somewhat of an upset manner but was not yelling. Russell reportedly remained calm during the exchange.
Approximately 20 minutes later, Kitsap County patrol deputies pulled Warren over on Holly Road without incident. Warren told the officers that he was coming from a friend's house in Belfair. When questioned further, he stated "'it does not matter and I am done talking.'" CP at 5. The officers arrested Warren for first degree murder.,
After Warren's arrest, officers executed a search warrant on his property and found evidence of methamphetamine possession and manufacture; the State later charged Warren with methamphetamine manufacture and possession of a controlled substance. Warren moved to sever and the trial court ultimately dismissed the charges without prejudice.
Police later located the murder weapon off of Holly Road. They found five bullet casings at the scene of the shooting, five matching bullets missing from a box of ammunition in Warren's motor home, a firearm holster under the driver's seat in Warren's truck, and a magazine loaded with the same type of bullets in the truck's ashtray.
At the time of the shooting, Russell held a valid protection order against Warren. Warren was also free on bond pending trial for an related offense.
The evidence suggested that the protection order was a tool of control that Russell wielded over Warren and that the family did not comply with it.
The State charged Warren with first degree murder with special allegations of domestic violence, violation of a protection order, and being armed with a firearm; second degree assault with special allegations of domestic violence and being armed with a firearm; and second degreeunlawful possession of a firearm.
Trial
A jury heard the matter in September and October 2006. On multiple occasions before trial, defense counsel informed the trial court that Warren's defense was diminished capacity based on his chronic heavy substance abuse and history of abuse by Russell. He stated that his trial argument regarding premeditation and lesser degrees of murder would center on Warren's level of methamphetamine intoxication as it related to his psychological disorders and history of abuse. He also informed the trial court that he would be requesting a lesser included offense instruction, and he told the jury during voir dire and opening statement that it may have to decide between "different gradations of murder" and whether to label the shooting premeditated first degree murder, second degree murder, manslaughter, or diminished capacity. I RP at 31.
Warren testified that, at the time of the shooting, he had been awake and under the influence of drugs for four or five days straight and had injected himself with methamphetamine twice that morning. He testified that he did not remember what he said to Russell when he confronted him but only that Russell had a smile on his face "like a smirk." IX RP at 1052. He testified that the next thing he remembered was opening the gate to exit the property and then speaking to counsel at the jail. On cross-examination, Warren accepted responsibility for killing Russell and agreed that he had a firearm in his possession on October 11.
Dortha testified that when Warren returned to the main residence, she saw a firearm in his hands and observed that his face was "sheet" white and that he looked "scared to death." VI RP at 705, 722. She believed that Warren was going to kill himself in front of Russell, as he had threatened to do so before, and she went outside. She heard four shots but remained outside because she believed Warren was dead. She then saw Warren walking around inside the residenceas though disoriented. She approached the residence, led Warren away by the hand, and told him to get into his truck and leave. Warren eventually did so.
Dortha, Ivan, and Moore testified that after Warren shot Russell, Ivan fired shots at Warren as he was leaving in his truck; an exchange of gunfire between the brothers ensued. This incident formed the basis for Warren's second degree assault charge. The jury acquitted him of the charge and it is not otherwise at issue on appeal, so we do not relate the facts of this portion of the incident. We note that the testimony was before the jury as evidence of whether Warren had the capacity to intend to premeditate his shooting of Russell.
Moore testified that after Warren confronted Russell, he was angry and stated, "'I should just kill him. . . . He has made enough people miserable for long enough. I should just f — king shoot him'" and "'I am going to go to prison anyway. I might as well go to prison for a good reason.'" VII RP at 781. She testified that she tried to talk Warren out of shooting Russell but that he only became more enraged. She testified that during their exchange, Warren retrieved a firearm from his truck; he later walked back toward the truck and she believed he was calming down and returning the firearm to the truck. Moore entered the homestead then heard five shots in rapid succession, at which point she hid. She testified that she heard screaming and crying and Warren and Ivan yelling at each other. She testified that she then heard footsteps and was afraid that Warren was coming after her. Later she heard Warren's truck door slam and the truck start.
Moore admitted to using methamphetamine five or six times daily at the time of the incident, although she stated it did not impair her senses as long as she slept every night. She testified to entering the main residence after the shooting to help stop Russell's bleeding, a fact contradicted by both Ivan and Dortha. Moore also testified to agreeing to cooperate with law enforcement as part of a plea bargain on another matter. She was the only person who testified to witnessing Warren retrieve a firearm from his truck.
Defense expert witness Dr. Stephen Melson testified regarding his psychiatric evaluation of Warren. Dr. Melson diagnosed Warren with attention deficit hyperactivity disorder, post-traumaticstress disorder, dissociative disorder, and amphetamine dependence with associated amphetamine intoxication delirium. Dr. Melson concluded that Warren had "very substantially reduced ability to formulate specific intent to commit the crime of homicide" and "had decidedly diminished capacity to plan and execute homicide in the first degree on October 11, 2004." CP at 31.
Before the close of testimony, defense counsel informed the trial court that he would adopt the State's proposed jury instructions without objection. The proposed instructions did not include any lesser included offense instructions. Defense counsel objected to the trial court's second degree unlawful possession of firearm instruction, arguing that it should include a knowledge element.
The trial court instructed the jury in relevant part that to convict Warren of second degree unlawful possession of a firearm, it must find that (1) Warren had a firearm in his possession or control and (2) he was free on bond or personal recognizance pending trial for a serious offense. Defense counsel believed that unlawful possession of a firearm was a strict liability crime with no knowledge requirement but entered his objection in the event the case law changed. The trial court noted his exception but found the instruction proper.
The jury convicted Warren of first degree murder and second degree unlawful possession of a firearm. It entered special verdicts to the first degree murder charge for violation of a protection order, domestic violence, and being armed with a firearm. The trial court sentenced Warren to a mandatory life sentence without parole. He appeals.
ANALYSIS Lesser Included Offense Instructions
Warren contends that he received ineffective assistance of counsel as a result of defense counsel's failure to request lesser included offense instructions for second degree murder and first and second degree manslaughter. He argues that he was legally and factually entitled to these instructions and that defense counsel's failure to request them put the jury in an untenable "all or nothing" position of either convicting him of Washington's most serious offense or else acquitting an admitted killer. He argues that the tactic was also an unrealistic choice because his defense was diminished capacity. Finally, he notes that defense counsel repeatedly referenced lesser included offenses before the jury so we may not deem his decision not to request lesser included offense instructions tactical.
Both United States Constitutional amendment VI and Washington Constitution article I, section 22 (amend. x) guarantee effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). We review an ineffective assistance of counsel claim de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).
To establish the claim, a defendant must show that under an objective standard of reasonableness counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To demonstrate prejudice, the defendant need only show a reasonable probability that the outcome would have differed. Reasonable probability means sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693-94. The defendant must make a showing as to both prongs and must also overcome a strong presumption that defense counsel's conduct was effective. Strickland, 466 U.S. at 687; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Here, we review de novo whether Warren was entitled to lesser included offense instructions, whether it was unreasonable for defense counsel not to seek those instructions, andwhether the omission prejudiced Warren. See State v. Kruger, 116 Wn. App. 685, 690-91, 67 P.3d 1147 (2003).
The right to present a lesser included offense instruction to the jury is statutory. RCW 10.61.006, .010; State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 116 (1990). A defendant is entitled to a lesser included offense instruction if (1) each of the elements of the lesser offense is a necessary element of the offense charged and (2) the evidence in the case supports an inference that only the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The parties do not dispute that second degree murder and first and second degree manslaughter meet the legal prong of the Workman test or that second degree murder meets the test for an inferior degree offense instruction. See also Bowerman, 115 Wn.2d at 805-07 (noting that second degree murder and first and second degree manslaughter are necessarily proven whenever aggravated first degree murder is proven, and all meet the first prong of Workman); State v. Johnston, 100 Wn. App. 126, 134, 996 P.2d 629 (2000) (noting that attempted second degree murder is a lesser degree charge of attempted first degree murder).
The trial court properly instructs a jury on an inferior degree offense when "(1) the statutes for both the charged offense and the proposed inferior degree offense 'proscribe one offense'; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense." State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 122 Wn.2d 885, 891, 948 P.2d 381 (1997)) (internal quotation marks omitted). The test for whether a party is entitled to an instruction on an inferior degree offense differs from the Workman test only with respect to the legal component of the test. Fernandez-Medina, 141 Wn.2d at 455; Workman, 90 Wn.2d at 447-48.
The factual component of Workman is satisfied when, viewing the evidence in the light most favorable to the party requesting the instruction, substantial evidence supports a rational inference that the defendant committed only the lesser included or inferior degree offense to theexclusion of the greater one. State v. Fernandez-Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000). To the extent that Warren presented a diminished capacity defense, a second degree Page 12 murder jury instruction was not warranted because diminished capacity would likewise render him incapable of forming the necessary intent to commit second degree murder. See Bowerman, 115 Wn.2d at 805-06. But to the extent the jury could have found that Warren did not premeditate the killing, even had it found he did not have diminished capacity, we address whether he was factually entitled to second degree murder and first and second degree manslaughter jury instructions.
The jury heard Warren's testimony that he was a heavy methamphetamine user; his father was physically and emotionally abusive and had threatened his life; he had experienced multiple traumatic events; he took large quantities of methamphetamine before the shooting and had been awake and under the influence of drugs for several days at the time of the shooting; and he was unable to recall the shooting. It heard Dr. Melson's diagnoses and expert conclusion that, to a reasonable medical certainty, Warren was unable to formulate a specific intent to commit and had a diminished capacity to plan and execute premeditated first degree murder on October 11. It also heard Dortha's testimony regarding Warren's disoriented demeanor before and after the shooting. Viewed in the light most favorable to Warren, there was substantial evidence to support a rational inference that he was unable to premeditate the killing or form an intent to kill, and the factual prong of Workman is satisfied for second degree murder and first and second degree manslaughter. Warren was entitled to jury instructions on those offenses.
We next determine whether it was reasonable for defense counsel not to propose lesser included offense instructions under the facts presented here. See Kruger, 116 Wn. App. at 688.
During voir dire, defense counsel informed the jury that the trial court may instruct it "in terms of different gradations of murder" and stated "[i]t's not all cut and dry." III RP at 365. He highlighted that juror 40 (a prosecutor) was required to decide different gradations of murder in making charging decisions. He inquired whether any juror felt that, if provided different gradations for the murder charge, he or she would "stay right with the top one and leave it there." III RP at 365. He also noted that the jury may need to consider mental capacity or condition in considering the charges.
During opening statement, defense counsel presented the jury with the concept of diminished capacity in the context of Russell's abuse of Warren. He informed the jury that it would hear Dr. Melson's testimony regarding Warren's post-traumatic stress disorder, drug addiction, and other issues resulting from the abuse. He stated that the jury would hear that Warren "completely went bonkers," had no memory of killing Russell, did not want to kill Russell but "[s]omething snapped," and "[t]he evidence [would] show that it was not premeditation." IV RP at 407. He also stated:
You will hear stories of his family that will shock you, and it will be up to you at the end to figure out what to label it. Premeditated first degree murder? Second degree murder? Manslaughter? Diminished capacity?" . . . [I]n the end you will take the judge's instructions, the evidence you receive, and figure it out for yourselves.
IV RP at 407-08.
Despite defense counsel's representations to the jury that it would receive lesser included offense instructions, the record suggests counsel deliberately chose not to request such instructions in the belief that the State failed to meet its burden of proof on first degree murder.
Defense counsel stated,
[T]he State has the burden. They have the burden. They have charged Martin Warren with first degree premeditated murder. Not second degree, not manslaughter; first degree premeditated murder. They have given you one choice, and they have the burden of proving that one choice beyond a reasonable doubt.
. . . .
. . . [Warren] ends up in this emotional state, he kills his father. There's no premeditation. There's no plan. Whether it reaches diminished capacity completely doesn't matter. Premeditation is the first thing you look at. Did they show premeditation, that plan. They didn't get there. Is it the defense's fault if the state gives you one choice and one choice only? No. Those are instructions . . .
. . . .
. . . [T]he state charged first degree premeditated murder and nothing else related to Russell Warren. That is what has to be decided here. That is the weakness in their case. That's where it fails. XI RP at 1220, 1239.
Although pursuing an all or nothing strategy was apparently a tactical decision by defense counsel, several factors rendered the strategy not an objectively reasonable one here. First, defense counsel set up the jury's expectations during voir dire and opening statement that it may find Warren guilty of inferior degree or lesser included offenses and suggested it would receive instructions allowing it to decide that. In failing to request lesser included offense jury instructions, defense counsel forced the jury to choose between convicting Warren of Washington's most serious crime or outright acquittal. This strategy was untenable because there was no question that Warren shot Russell. See State v. Pittman, 134 Wn. App. 376, 387-88, 166 P.3d 720 (2006) (noting that an all or nothing trial strategy was untenable in part because the defendant was plainly guilty of some offense and the jury would likely resolve doubts in favor of conviction rather than acquittal). Given that one of the jurors was a deputy prosecutor, defense counsel also risked potential disfavor with the jury. That is, that it would draw erroneous conclusions when he suggested that it was the State and the trial court that did not provide the defense instructions counsel had earlier alluded to. See Pittman, 134 Wn. App at 389-90 (finding ineffective assistance in counsel in part because defense counsel stated multiple Page 15 times in closing argument that the defendant committed a lesser included offense but then failed to request a lesser included offense instruction).
Further, Warren faced, and in fact received, the longest penalty for the most serious crime in Washington. See State v. Ward, 125 Wn. App. 243, 249, 104 P.3d 670 (2004) (finding an all or nothing trial tactic not legitimate in part where the defendant faced considerably longer punishment on the greater offense than the lesser).
Finally, Warren's diminished capacity defense was risky in that it relied on his own credibility that he could not recall the shooting and that he truthfully reported his mental state to Dr. Melson. During cross-examination, the State introduced doubt that Warren was facing any immediate threat or trauma by Russell or was otherwise in such an impaired mental state that he was unable to plan or form the intent to kill. See Ward, 125 Wn. App. at 250 (finding self-defense as an all or nothing approach risky because it primarily relied on the defendant's credibility, which the State had impeached).
In sum, defense counsel's all or nothing strategy was not a legitimate trial tactic and constituted deficient performance because counsel set up the jury's expectation it would receive lesser included offense instructions and because Warren admitted to shooting Russell, faced conviction for Washington's most serious crime, and relied on a risky defense.
Warren must also demonstrate a reasonable probability that, but for defense counsel's deficient performance, the results at trial would have differed. Strickland, 466 U.S. at 694. There was substantial testimony that Russell was an abusive, violent, and dangerous person and that his family lived in fear of him. The jury heard Warren's testimony that he was heavily intoxicated before the incident, he had been awake and under the influence of drugs for days leading up to the Page 16 shooting, and he was unable to recall the event although he accepted responsibility for it. It heard Dortha's testimony regarding Warren's disoriented demeanor before and after the shooting. It also heard Dr. Melson's testimony that Warren had was not capable of forming the necessary intent and had a diminished capacity to plan and execute premeditated first degree murder.
Although there was also evidence before the jury that Warren was capable of planning and forming the intent to kill Russell before he shot him, a defendant need only demonstrate a reasonable probability that the outcome would have differed sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. Based on the facts of this case, we are unable to say to a reasonable degree of certainty that the outcome at trial would not have differed had the trial court instructed the jury on second degree murder or first or second degree manslaughter. Warren has satisfied both prongs of Strickland. We reverse his aggravated murder conviction for ineffective assistance of counsel and remand for a new trial.
Unlawful Possession of a Firearm Jury Instruction
Warren also contends that the trial court erred by failing to include the required knowledge element in the to-convict jury instruction for second degree unlawful possession of a firearm. The State concedes that the jury instruction was erroneous but argues it was harmless error.
In its brief, the State notes that it charged Warren with first degree unlawful possession of a firearm but finds no basis for distinguishing between first and second degree unlawful possession of a firearm with respect to the knowledge element. The State charged Warren with, and he was convicted of, second degree unlawful possession of a firearm.
The State must prove the element of knowledge to obtain a conviction for second degree unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 360, 366-67, 5 P.3d 1247 (2000). A jury instruction omission that relieves the State of its burden to prove every element of the crime charged is erroneous. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004). Although automatic reversal is not required on that basis alone, because we already remand for a new trial on Warren's first degree murder conviction, we hold he is entitled to a second degree unlawful possession of a firearm jury instruction that correctly states the law and puts the State to its proper burden. We reverse Warren's conviction for second degree unlawful possession of a firearm and remand for a new trial.
Protection Order
Warren also asks that we strike the protection order as an aggravating factor because it was vague and unenforceable. He failed to preserve this error for review at trial and may not raise it for the first time on appeal because it is not a "'manifest error affecting a constitutional right.'" State v. Munguia, 107 Wn. App. 328, 340, 26 P.3d 1017 (2001) (quoting RAP 2.5(a)).
Under RCW 10.95.020(1), "A person is guilty of aggravated first degree murder if . . . (13) [a]t the time the person committed the murder, there existed a court order . . . prohibit[ing] the person from . . . contacting the victim . . . and the person had knowledge of the existence of that order."
But even had he preserved the error, Warren's argument fails. The protection order clearly restrained him from coming near, having contact, or causing physical harm or bodily injury or assault to Russell; it also excluded Warren from the main residence. In other words, it was not at all vague with respect to the provisions that rendered Warren's shooting of Russell a violation of the order. Warren also acknowledged on the witness stand that he signed the Page 18 protection order and understood that he was to have no contact with Russell. We decline to strike the protection order as an aggravating factor.,
Warren may raise any further objections regarding the protection order's admissibility before the trial court on remand for new trial. See State v. Davis, 141 Wn.2d 798, 850 n. 287, 10 P.3d 977 (2000).
Because we reverse and remand for a new trial on other bases, we do not address Warren's remaining assignments of error but note that he raises no issues requiring reversal in his statement of additional grounds.
Reversed and remanded for new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., and QUINN-BRINTNALL, J., concur.