Opinion
Nos. 26415-7-III; 26931-1-III.
November 13, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-00587-6, Carrie L. Runge, J., entered August 16, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition dismissed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Brown, J.
Jeremy Farnsworth was convicted of third degree assault for throwing a tray at a jailer. On appeal he contends the evidence was insufficient to support the conviction because a corrections officer is not a law enforcement officer. In a consolidated personal restraint petition (PRP), he contends pro se that his trial counsel was ineffective for failing to subpoena witnesses to support a motion for a new trial. The evidence was sufficient to support the conviction. The PRP does not establish ineffective assistance. Accordingly, we affirm the conviction and dismiss the petition.
Evidence presented at trial showed that Mr. Farnsworth, an inmate of the Benton County Jail, threw a lunch tray at Corrections Officer Phillip Reams when Reams entered Farnsworth's cell to retrieve the tray after complaints about the quality of the chicken sandwich served at lunch. The tray struck the officer in the kneecap, leaving a red mark. The officer then subdued Mr. Farnsworth and handcuffed him. Officer Reams had worked as a corrections officer for the Benton County Jail for seven years. He was in uniform while on duty and dressed similarly to the transport officer seated in the courtroom during trial.
The parties took no exception to the jury instructions. The court instructed the jury that to convict the defendant it had to find the following elements beyond a reasonable doubt: (1) on or about September 6, 2005, the defendant assaulted Phillip Reams; (2) at the time of the assault Reams was a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties; (3) that any of these acts occurred in the State of Washington. Jury Instruction 8. No definition of "law enforcement officer" or "law enforcement agency" was requested by either party; none was given the jury.
The jury convicted Mr. Farnsworth as charged. His appeal to this court raises the single claim that the evidence did not establish that Officer Reams worked as a law enforcement officer or for a law enforcement agency.
As noted, neither party sought a definitional instruction on the "law enforcement" definitions, nor is error assigned to the failure to give an instruction. Instead, the issue presented is framed solely in terms of the sufficiency of the evidence to support a finding on the point. In the absence of a technical definition, we will presume the jury applied a common understanding definition of the words.
Evidence is sufficient to support a conviction if the evidence permitted a jury to find each of the elements of the crime was proven beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980).
The parties rightly note that the Legislature has not defined the terms "law enforcement officer" or "law enforcement agency" for purposes of this statute. This court has previously determined that the Department of Corrections is a law enforcement agency. See McLean v. Dep't of Corr., 37 Wn. App. 255, 680 P.2d 65, review denied, 101 Wn.2d 1023 (1984) (construing phrase in felon employment disqualification statute).
In light of the fact that there is a specific statute governing assaults against on-duty corrections officers, we do not know why this case was charged as third degree assault, a crime of the same rank and classification as custodial assault. See RCW 9A.36.100.
We think the reasoning of that case is equally applicable here. More importantly, we believe that the average juror would contemplate that incarcerating an offender is just as much a law enforcement function as investigating a crime and arresting a suspect. Accordingly, we believe the evidence is sufficient to support the jury's determination that Officer Reams was an employee of a law enforcement agency. State v. Green, supra.
The personal restraint petition contends that trial counsel was ineffective by not calling witnesses at sentencing to pursue a motion for a new trial. Even if the right to counsel extends to post-verdict motions, we do not believe the right was violated here.
The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
Here, Mr. Farnsworth wanted his attorney to call other inmates to testify that no assault happened and seek a new trial on that basis. His attorney explained at sentencing that he had obtained a statement from one of those inmates, Darin White, and determined that it was too "vague" to be useful and the witness was too "impeachable" to support a new trial. That was clearly a tactical decision by counsel that cannot provide a basis for finding counsel ineffective under Strickland.
Counsel also correctly assessed the impact of the proposed testimony. To obtain a new trial based on newly discovered evidence, a criminal defendant must satisfy a five-part test. State v. Goforth, 33 Wn. App. 405, 407-408, 655 P.2d 714 (1982). One of those requirements is an explanation why the evidence could not have been produced at trial. Id. at 408. The petition makes no efforts to establish any of those factors or even explain why the new testimony could not have been discovered before trial. Even more critical is the fact that newly discovered evidence would necessarily have to change the verdict. Id. at 407. Goforth itself involved a claim by another man that he had committed the robbery for which the defendant had been convicted. That dramatic evidence was not sufficient to support a new trial. Id. at 408-410. Most certainly the proposed testimony here does not meet even that standard. Counsel understandably did not pursue the issue further.
The petition fails to satisfy the requirements of Strickland. Counsel made the discretionary decision not to pursue the motion and the high standards for granting a new trial would not be satisfied by this evidence. For both reasons, counsel could not be found to be ineffective.
The conviction is affirmed. The petition is dismissed.
A 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.
KULIK, A.C. and BROWN, JJ., concur.