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State v. Binschus

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1029 (Wash. Ct. App. 2011)

Opinion

No. 64454-8-I.

Filed: March 14, 2011.

Appeal from a judgment of the Superior Court for Whatcom County, No. 09-1-00401-6, Charles R. Snyder, J., entered November 9, 2009.


Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Lau and Spearman, JJ.


Fred Binschus appeals his convictions for residential burglary and second degree malicious mischief, claiming ineffective assistance of counsel for failure to request a lesser included offense instruction on first degree criminal trespass. In light of our Supreme Court's decision in State v. Grier, we hold that counsel's election to pursue an "all or nothing" strategy was a legitimate trial tactic and did not constitute ineffective assistance under the facts of this case. We affirm.

No. 83452-1, 2011 WL 459466 (Wash. Feb. 10, 2011).

Background

At 5:40 a.m. on April 2, 2009, a resident of a Bellingham apartment complex called 911 to report that someone had broken a neighboring apartment's window. Bellingham Patrol Officer Andria Fountain responded to the call. On her way to the scene, Daniel Lonneker, a resident of the same apartments, called 911 and told the dispatcher that someone had crashed through his apartment window and had threatened him with a hammer. When Fountain arrived at the apartments, Lonneker, who was waiting outside, told Fountain, "[H]e's in there, and he's going berserk, and my girlfriend is still in there." While the officer waited for backup, two men exited Lonneker's apartment. Lonneker pointed to one and told Fountain, "[T]hat's him right there." Fountain ordered the man, later identified as Binschus, to the ground, where he was handcuffed.

When Fountain entered the apartment, Rhonda Binschus, Binschus's aunt and Lonneker's girl friend, came out of the bedroom and told Fountain that she was uninjured. Fountain observed a broken window and unhinged closet doors. Lonneker told Fountain that earlier Binschus repeatedly knocked at their front door, which they ignored. He said Binschus broke the porch light, went around to the back side of the apartment, and "supermanned" through the window. After that, according to Lonneker, Binschus broke the closet doors and "started throwing things around." He told Fountain that a man named Louie Bates hid in the bathroom, while he and Rhonda hid in the bedroom. Binschus then began to ram against the bedroom door and forced his way into the bathroom. Lonneker said Binschus broke the bathroom mirror and dislodged the shower curtain rod.

We refer to Rhonda Binschus by her first name to avoid confusion and intend no disrespect.

After walking through Lonneker's apartment, Fountain talked to Binschus, who said he was upset because his sister was in the hospital and Lonneker would not let him in the apartment. When asked why he crashed through the window, Binschus told Fountain that he was "high on crack."

The State charged Binschus with residential burglary and second degree malicious mischief.

Before trial, Binschus informed the court that he wanted to represent himself because he did not want an attorney to "try to persuade me to take a guilty plea of a felony which I can't afford to do right now because I didn't commit a felony." Binschus indicated that he believed the facts were undeniably in his favor, "I really don't think — I think once the case is examined before it gets to that process of trial that it's going to be obviously seen that this isn't what it appears to be and it probably will get thrown out." Ultimately, a public defender represented Binschus.

Binschus's testimony at his CrR 3.5 hearing amounted to a statement of innocence. According to Binschus, on April 2, Lonneker met him and Bates and drove them to his apartment so that Bates could buy Lonneker's car. Binschus said his shoes were muddy, and he took them off before going inside the apartment. Binschus noticed a problem with the closets in the hallway, so he "took the closet, and I set it down on the floor, and I was actually proceeding to try to clean the apartment up a bit, and so I think Dan ended up getting frustrated, and so I ended up going back in the bedroom with my aunt." Binschus said that Lonneker asked him to take a shower. Before showering, he went outside to retrieve his shoes. Binschus explained that when he tried to reenter the apartment, the doors had automatically locked behind him. Binschus stated that he knocked on the back window to get Lonneker's and Rhonda's attention, slipped, and busted his head through the window.

At trial, Lonneker testified for the State under a material witness warrant. According to Lonneker, when he went to pick up Bates, Bates asked Lonneker if Binschus could stay at his apartment. Lonneker agreed because "[Binschus] needed a place to crash and work off his alcohol." Lonneker noticed that "[Binschus's] ADHD was kicking in." He stated that after they arrived at his apartment, Binschus "couldn't sit still." Binschus pulled the closet doors off track, lifting them up. He removed items from the closet and from Lonneker's toolbox. Lonneker asked Binschus to take a shower, and he, Bates, and Binschus went into the bathroom. After Binschus showered, he broke the bathroom mirror and pulled down the shower curtain. Lonneker asked Binschus to leave. Binschus left but started knocking on the door and broke the porch light. Binschus knocked on the window, "accidentally" breaking it. Binschus then "pushed the bottom half in and walked in." Lonneker insisted at trial that Binschus did not have a hammer. Lonneker explained that he called the police because "when he came through, I realized that I have to pay for that expense, and that the only way I could do that is by getting him some help and calling the police."

Rhonda also testified for the State under a material witness warrant. She said she was in the bedroom when Lonneker arrived with Binschus and Bates. From the bedroom, she heard Binschus running in and out of the house. All three men were yelling. Rhonda said she heard the mirror in the bathroom shatter. Rhonda testified that she was in the living room when Binschus came through the window. According to Rhonda, Binschus did not have a hammer. Rhonda said she did not hear Binschus knocking before he broke the window.

After the State rested, defense counsel asked the court to dismiss both charges. Counsel maintained, "At this point, the State has failed in their burden of proving to a reasonable person that Mr. Binschus is guilty of any crime." Counsel argued that the State had presented no proof as to the value of the property damaged and no proof that Binschus entered Lonneker's apartment intending to commit at crime. The court denied Binschus's motion, stating that the State had presented enough evidence for the case to go to the jury.

As to the intent, there's the inference of intent for burglary. I think they have conflicting evidence, clearly, about whether he . . . broke through the window before or after all the other things were done in the house, or whether he actually did any of the other things in the house.

. . . .

. . . [I]t's a jury call.

During closing argument, the defense asserted that the State had not met its burden, "The State has proven that there were three guys, probably drunk arguing and rough housing [sic]; that an apartment did get trashed; that a window did get broken, but that doesn't mean a crime was committed." The defense pointed to the conflicting testimony regarding when the damage occurred. In addition, the defense argued that the State had failed to prove that Binschus intended to commit a crime when he went through the window, "But it could be that the only intention that Fred had was to get his shoes back, because both of the descriptions . . . Dan Lonneker, and his neighbor both said that Fred was barefoot outside."

The jury convicted Binschus as charged. At the sentencing hearing, defense renewed its motion to dismiss, asking the court to sentence Binschus on the malicious mischief conviction only. "The court heard the evidence here. I still don't believe there was sufficient evidence to prove the residential burglary charge. I believe this as a matter of law there was not enough evidence there, but the jury saw it differently." Binschus also spoke at his sentencing hearing, characterizing what happened as "a complete, freak accident."

I just would like to say that . . . if I would have known that I would actually have been charged with a residential burglary, I would have never taken this so far to trial, because my family and I had gone over this, and we felt that this, there was no residential burglary, and I was even offered a deal 14 months to drop the residential burglary. . . .

. . . .

I just hope that you could see that the elements here were, there were some things that happened at that house that night. My uncle even got up on the stand and said looked [sic] he absolutely slipped through the window. I wasn't committing any type of crime at all, intentionally trying . . . to steal anything from that house.

The trial court reiterated its belief that there had been sufficient evidence to go to the jury and stated that the jury's decision was reasonable. The court imposed a sentence on the low end of the range for the burglary conviction, "taking into account what I think are the circumstances around this matter, how it came about, and what was happening that day."

Binschus appeals.

Analysis

Binschus claims that his attorney provided ineffective assistance of counsel by not requesting a jury instruction on the lesser included offense of first degree criminal trespass. Binschus asserts on appeal that because he was clearly guilty of some crime, counsel could have had no legitimate strategic or tactical reason not to request the lesser included instruction. Further, Binschus asserts that he was prejudiced by counsel's failure to do so because the jury was not given the option of finding him guilty of the lesser included offense. The State concedes that, if requested, Binschus would have been entitled to the lesser included instruction. The State contends, however, that the decision was a legitimate trial strategy. We agree.

We review ineffective assistance of counsel claims de novo. To prevail, a defendant must show both deficient performance and resulting prejudice. Counsel's performance is deficient if it fell below an objective standard of reasonableness. Our scrutiny of defense counsel's performance is highly deferential, and we employ a strong presumption of reasonableness. "To rebut this presumption, the defendant bears the burden of establishing the absence of any `conceivable legitimate tactic explaining counsel's performance.'" To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have been different absent counsel's deficient performance. Failure on either prong of the test is fatal to a claim of ineffective assistance of counsel.

In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).

Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995).

Grier, 2011 WL 459466, at *15 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).

Strickland, 466 U.S. at 697.

"The decision to not request an instruction on a lesser included offense is not ineffective assistance of counsel if it can be characterized as part of a legitimate trial strategy to obtain an acquittal." In State v. Hassan, we held that an "all or nothing" strategy was a legitimate trial tactic because a lesser included offense instruction would have weakened Hassan's claim of innocence. And in Grier, Our Supreme Court rejected Grier's ineffective assistance claim because "[a]lthough risky, an all or nothing approach was at least conceivably a legitimate strategy to secure an acquittal."

State v. Hassan, 151 Wn. App. 209, 218, 211 P.3d 441 (2009).

151 Wn. App. 209, 221, 211 P.3d 441 (2009) ("On this record, because the only chance for an acquittal was to not request a lesser included instruction, we conclude that the decision to pursue an all-or-nothing strategy was not objectively unreasonable.").

2011 WL 459466, at *15.

Here, defense counsel's decision not to request a first degree criminal trespass instruction was a legitimate strategy to obtain acquittal. The State charged Binschus with residential burglary, requiring it to prove that when Binschus entered Lonneker's apartment through the window, he intended to commit a crime. The testimony, however, conflicted as to when the damage inside the apartment occurred. But the testimony was unequivocal that Binschus entered the apartment through the window after Lonneker asked him to leave. Therefore, it was reasonable to conclude that if presented with an "all or nothing" choice, the jury was likely to acquit, but if given the possibility of finding Binschus guilty on the lesser included offense of criminal trespass, it was likely to convict. Therefore, a lesser included offense instruction, as in Hassan, would have weakened Binschus's claim of innocence and would have seriously undermined Binschus's goal of outright acquittal. Given these facts, trial counsel's decision not to ask for a lesser included instruction was reasonable.

Also relevant to the determination is whether the defendant "was aware of the risks of pursuing an all-or-nothing strategy in an effort to obtain an acquittal." Although Binschus did not expressly state on the record that he agreed with counsel's decision to pursue an "all-or-nothing" strategy, his behavior indicates a determination to obtain outright acquittal. Binschus refused the State's plea bargain, testified at the CrR 3.5 hearing that he accidentally "slipped" through Lonneker's window, and stated at sentencing that he never thought the jury would convict him. Binschus "cannot have it both ways; having decided to follow one course at the trial, [he] cannot on appeal now change [his] course and complain that [his] gamble did not pay off."

State v. Hoffman, 116 Wn.2d 51, 112, 804 P.2d 577 (1991).

Binschus relies on our decisions in State v. Pittman and State v. Ward. Those decisions, however, employed a three-step deficiency test that our Supreme Court rejected last month in Grier. To the extent we based our analysis in Pittman and Ward on that now-rejected test, those cases are no longer good law, and we decline to consider them.

125 Wn. App. 243, 104 P.3d 670 (2004), abrogated by Grier, 2011 WL 459466.

2011 WL 459466, at *8 ("[T]he Court of Appeals sharply deviated from the standard for ineffective assistance the United States Supreme Court announced in Strickland. Today, we reaffirm our adherence to Strickland [and] reject the three-pronged test the Court of Appeals used to analyze Grier's claim.").

Binschus also cannot establish prejudice. Assuming, as we must, that the jury would not have convicted Binschus of residential burglary unless the State had met its burden of proof, the availability of a compromise verdict would not have changed the outcome of Binschus's trial.

In arguing prejudice, Binschus relies on a United States Supreme Court decision, Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973), that our Supreme Court held was inapposite in the context of ineffective assistance claims.

See Grier, 2011 WL 459466, at *15 (quoting Strickland, 466 U.S. at 694 ("[A] court should presume . . . that the judge or jury acted according to law."); Autrey v. State, 700 N.E.2d 1140, 1142 (1998) (availability of manslaughter would not have affected outcome where jury found defendant guilty of murder beyond a reasonable doubt)).

Conclusion

Under the facts presented here, and in light of Grier, trial counsel's decision to pursue an "all or nothing" strategy was not objectively unreasonable and resulted in no prejudice to Binschus. We reject his ineffective assistance claim and affirm.


Summaries of

State v. Binschus

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1029 (Wash. Ct. App. 2011)
Case details for

State v. Binschus

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. FRED JUNIOR BINSCHUS, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 14, 2011

Citations

160 Wn. App. 1029 (Wash. Ct. App. 2011)
160 Wash. App. 1029