Opinion
No. 57440-0-I.
May 7, 2007.
Petition for relief from personal restraint.
Petition granted and judgment reversed and remanded by unpublished per curiam opinion.
After a road rage confrontation, the State charged Michael Relfe with one count of first degree assault for shooting James Lee. In his personal restraint petition Relfe claims that his trial counsel was ineffective in failing to request a jury instruction on the lesser included offense of second degree assault. Because there was no legitimate reason to not request an instruction on second degree assault based on the facts of this case, we grant Relfe's personal restraint petition, reverse his conviction and remand for a new trial.
FACTS
While they were both stopped at a traffic light, Michael Relfe and James Lee exchanged obscene hand gestures. Lee followed Relfe in his flatbed truck, sideswiped Relfe's car on the driver's side, and then drove away. Relfe pursued Lee in an attempt to get his license number. They stopped on the side of the road three times. Each time Lee got out of his truck, came over to Relfe's car, reached into the car and slapped and hit Relfe. The third time, Relfe picked up his handgun, which was on the car seat. When Lee saw the gun, he turned around and began to leave. Relfe fired one shot, hitting Lee in the back and causing substantial injuries. Relfe told police that he only intended to scare Lee and did not aim the gun at him.
The State charged Relfe with one count of first degree assault while armed with a firearm. Relfe testified at the first trial, which resulted in a hung jury. Relfe did not testify at the second trial, and the jury convicted him as charged. On appeal, Relfe argued that the State elicited impermissible opinion testimony from a detective. This court affirmed the conviction. Relfe timely filed a personal restraint petition.
ANALYSIS
In his personal restraint petition, Relfe must show either: (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a "complete miscarriage of justice." Relfe contends that trial counsel provided ineffective assistance of counsel when he failed to request an instruction on the lesser crime of second degree assault. The State contends Relfe was not entitled to an instruction on assault in the second degree. In the alternative, the State argues the attorney's decision to not request an instruction was tactical and therefore not ineffective. To prevail on a claim of ineffective assistance of counsel, Relfe must overcome a strong presumption of reasonable assistance and show that his attorney's representation was both deficient and prejudicial to his defense.
In the Matter of the Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990); In the Matter of the Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
In the Matter of the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998), citing Strickland v. Washington, 466 U.S. 682, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Strickland, 466 U.S. at 686; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
A jury may convict a defendant of any lesser degree of a crime or any lesser included crime. "A defendant is entitled to an instruction on a lesser included offense if two conditions are met: each of the elements of the lesser offense must be elements of the offense charged (the legal prong), and the evidence must support an inference that only the lesser crime was committed (the factual prong)." The State concedes the legal prong is met because second degree assault is a lesser included offense of first degree assault. But the State argues that the evidence shows that Relfe had the requisite intent for first degree assault, negating the conclusion that he committed only second degree assault. In determining the factual prong, we consider the evidence in the light most favorable to Relfe.
RCW 10.61.003; State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998).
State v. Ward, 125 Wn. App. 243, 248, 104 P.3d 670 (2004), citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
First degree assault requires that a defendant intended to inflict great bodily harm to the victim. Second degree assault requires that the defendant intended to assault the victim and cause substantial bodily harm, but unlike first degree assault, did not act with the intent to inflict great bodily harm. A review of the record in the light most favorable to Relfe shows that there is evidence that Relfe did not intend to cause great bodily harm to Lee.
At the time of the shooting, Lee was hitting and slapping Relfe for the third time while Relfe sat inside his car. The shooting occurred after Lee hit Relfe's car with his truck once and stopped three times to come over and physically attack Relfe in his car. Although Relfe did not testify at the second trial, the court admitted into evidence the statement he gave to police officers after the incident. This statement includes the following exchange:
DET: Now when you shot him, what was, what were your intentions when you used your weapon?
SUS: Just to scare him.
And the statement included this further exchange:
DET: Okay when you shot your revolver, were you . . .
SUS: I wasn't aimin at him.
DET: Okay.
SUS: I was just, I just pointed it.
DET: You pointed it.
SUS: Yeah.
DET: In his direction though.
SUS: Well yeah, to scare him.
The State argues that the fact that Lee was close to Relfe's car when Relfe shot the gun shows that Relfe intended to cause great bodily harm. But Relfe says in his statement that he was not aiming the gun at Lee, but pointing it generally in Lee's direction in an effort to scare off Lee and protect himself. Thus, Relfe specifically and expressly disclaims an intent to cause Lee great bodily harm. Whether the jury would have accepted this disclaimer is not for us to decide; the question is whether there is sufficient evidence to support an inference that Relfe only committed second degree assault. We conclude that the evidence supports such an inference.
The State also argues that trial counsel's decision to not seek an instruction on second degree assault was a tactical decision to focus on self defense because this was the only viable defense. But as in Ward, which is nearly identical to this case, the "all or nothing" strategy of attempting to force the jury to acquit on the greater crime without the ability to consider a possible compromise on the lesser crime was not reasonable. The defendant in Ward was charged with second degree assault for opening his jacket and showing two men that he had a gun in order to scare them. On appeal, Ward questioned trial counsel's failure to seek an instruction on the lesser crime of unlawful display of a weapon, a lesser included gross misdemeanor. Ward testified that he believed the two men who were trying to repossess his car in the middle of the night were trying to steal the car. This court concluded Ward should have been allowed to have an instruction on the lesser crime. First, the court cited the significant difference in penalties for the two crimes. Second, that Ward's theory of self defense would have been the same for both crimes and if the jury believed Ward acted lawfully, it would acquit on both. But if the jury did not believe Ward, but doubted he pointed the gun, they jury would only convict him on the lesser included offense. Last, the court concluded that relying solely on self-defense was a risky approach because it relied for the most part on Ward's credibility.
Here, the difference between the penalties for first and second degree assault is significant. The standard range sentence for first degree assault is 93 to 123 months while the standard range sentence for second degree assault is 3 to 9 months. And Relfe's defense would have been the same for first and second degree assault: that he was acting in self-defense. Therefore, as in Ward, giving an instruction on second degree assault would have cost Relfe little: if the jury believed Relfe acted in self defense, it would have acquitted of both crimes; if the jury believed that Relfe intended to shoot the gun but not to injure Lee, it would have convicted of second degree assault. Further, as in Ward the trial court imposed an exceptional sentence below the standard range, indicating a reasonable possibility that the jury might have convicted of second degree assault if given the opportunity.
Relying solely on Relfe's claim of self-defense to attempt to avoid conviction of first degree assault Relfe's trial counsel used an "all or nothing" approach.
But a defendant is entitled to a lesser offense instruction . . . precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.
Ward, 125 Wn. App. at 250-51, citing Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed.2d 844 (1973).
As in Ward, we conclude there was no legitimate reason not request an instruction on second degree assault and the instructional error inherently results in a complete miscarriage of justice.
Because we reverse the conviction on this ground, we need not address the other issues, including ineffective assistance of appellate counsel.
CONCLUSION
We reverse and remand for a new trial.