Opinion
37675-0-II 38874-0-II
01-24-2012
STATE OF WASHINGTON, Respondent, v. KI KANG LEE, Appellant. In re the Personal Restraint Petition of: KI KANG LEE, Petitioner.
ORDER WITHDRAWING UNPUBLISHED OPINION
Upon reconsideration as directed by our Supreme Court, we are withdrawing the April 13, 2010 unpublished opinion in the above matter.
It is ordered that the April 13, 2010 unpublished opinion is withdrawn and the new opinion is filed this same date.
UNPUBLISHED OPINION
Penoyar, C.J.
Ki Kang Lee appeals his conviction for attempted first degree murder with a deadly weapon enhancement. He raises ineffective assistance of counsel claims for his trial counsel's failure to seek a lesser included instruction for attempted second degree murder, failure to sufficiently prepare for trial, and, alternatively, failure to properly build a voluntary intoxication defense. He also contends that the trial court erred in refusing to issue a voluntary intoxication instruction and in admitting evidence of Lee's threats to the victim's family as prior bad acts under ER 404(b). In a personal restraint petition (PRP) consolidated with his appeal, he raises additional claims of ineffective assistance of counsel and asserts that cumulative error warrants remand for a new trial. We affirm the convictions and deny the PRP.
FACTS
Lee and Jin Kyung Kim started dating in late 2002. In 2005, they opened a bakery in Tacoma. Because of visa restrictions, the fact that Kim's family lives in Korea, and a tumultuous relationship with Lee, Kim returned to Korea. Lee contacted Kim on several occasions and asked her to return to the United States. Kim returned for short periods. Lee became quite upset on several occasions when Kim refused to return, and he threatened to kill Kim's parents unless she did so. He also left abusive voicemail messages for Kim and her family members. Despite these threats, Kim briefly returned to help Lee open a second bakery in Tacoma.
Lee asked Kim to return to the United States to participate in a trial involving their business, promising to end the relationship and not physically hurt Kim or her family members if she would do so. Kim agreed, returning to the United States on October 31, 2006. Lee picked Kim up at the airport midday and they started to argue soon thereafter. Lee insisted that Kim stay with him during her visit, but Kim refused. Kim accompanied Lee on a series of errands, including a brief stop at the bakery, where Lee placed a cake box in the trunk of his car.
Later that night, Kim and Lee attended a business dinner at a restaurant. Lee drank a bottle of Korean alcohol at dinner. When Kim and Lee left the restaurant, Kim sat in the driver's seat because she did not want to stay with Lee and she was concerned Lee would not take her to a hotel. Before they left the restaurant, Lee removed the cake box from the trunk of his car and placed it in the back seat. Lee then sat in the front passenger seat.
As Kim was driving, Lee asked Kim for her father's phone number but did not say why he wanted it. Kim refused to give it to him. An argument ensued and Lee ordered Kim to pull over to the side of the road and continued to ask for Kim's father's number. After Kim refused again, Lee grabbed a kitchen knife from the cake box on the rear passenger seat and stabbed her. Kim then relented. While making the phone call, Lee stuck the knife into a tissue box. Kim tried to grab Lee's hands, but he put his hands around her neck and choked her, asking her "Do you want me to kill you this way?" 4 Report of Proceedings (RP) at 111. After she released his hands, Lee stopped choking her and stabbed her again once or twice while waiting for the call to Kim's father to connect. Lee again stuck the knife in the tissue box and held Kim's head against the seat while he spoke to her father, asking him "Do you love your daughter?" 4 RP at 114. While Lee was on the phone, Kim escaped from the car and ran down the street. Lee chased her with the knife. Several witnesses tackled Lee and restrained him until police arrived.
Emergency medical technicians treated Kim on the scene, and an ambulance took her to a hospital where doctors treated her for several knife-inflicted lacerations. Kim also had red marks on her neck consistent with choking.
The State charged Lee with attempted first degree murder with a deadly weapon. The State amended the information to add the first degree assault with a deadly weapon charge.
"A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1).
"A person is guilty of murder in the first degree when . . . [w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person . . . ." RCW 9A.32.030(1)(a).
"A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm[, ] . . . [a]ssaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death . . . ." RCW 9A.36.011(1)(a).
Before trial, the State moved to admit Kim's testimony that Lee had threatened her and her family. Lee objected to this testimony. The trial court admitted this testimony under ER 404(b).
At trial, Kim testified that (1) after she tried to cut off communication with Lee, he threatened to kill her family and asked her to pick a member of her family for him to kill; (2) Lee left numerous voicemail messages-as many as 88 in one day-in which he cursed and threatened her family; (3) Lee told her that he would promise not to hurt her or her family if she agreed to come back and help with the trial related to their bakery business. She also testified that during the attack she thought Lee told her that she "needed to die" and was "someone that should die." 4 RP at 110.
Dr. Lori Thiemann, a Western State Hospital psychologist who evaluated Lee's competency before trial, testified that Lee was capable of forming intent at the time of the offense. Dr. Thiemann also testified that Lee's intoxication would not have prevented him from forming intent or the requisite premeditation.
Dr. Paul Leung, a psychiatrist, testified in Lee's defense. Leung testified that Lee could not remember the details of the events of the night in question. He explained that he believed the memory loss derived from Lee's mind rejecting the traumatic, extraordinary events of the evening. Dr. Leung testified that Lee suffered from major depression and that he took medications that would have increased side effects when mixed with alcohol. Dr. Leung testified that Lee had told him that he had consumed "quite a bit of alcohol" in the restaurant on the evening in question. 8 RP at 389. Dr. Leung did not know if that quantity of alcohol was enough to have made Lee pass out. Dr. Leung did not testify that the alcohol or medications would have caused Lee to black out or would have caused Lee's inability to remember the evening. Dr. Leung ultimately opined that Lee could not have formed intent and that he did not intend or plan to harm Kim. With regard to Lee's threats, Dr. Leung testified that, in Asian culture, people sometimes make statements that sound like threats even though they do not intend the statements as threats. On cross- examination, Dr. Leung stated that Lee engaged in "goal-directed" behavior, such as discussing with Kim which of them would drive, asking Kim for her father's phone number, and moving the cake box from the trunk area to the backseat. 8 RP at 413.
Lee did not testify on his own behalf. Lee proposed a series of jury instructions, including voluntary intoxication, diminished capacity, and to convict instructions for the inferior degree crimes of second degree and third degree assault. The trial court refused Lee's proposed instruction on voluntary intoxication, finding that Dr. Leung had been unable to offer an opinion as to intoxication that night and that the evidence presented did not reasonably connect Lee's intoxication with the inability to form the required level of culpability. The trial court issued all of Lee's remaining proposed instructions. The jury convicted Lee of attempted first degree murder and first degree assault and returned special verdicts finding that Lee was armed with a deadly weapon on each of those counts. The trial court found that the assault conviction merged with the attempted murder conviction and sentenced Lee only on the attempted murder conviction.
Lee filed a direct appeal and a personal restraint petition (PRP), which we consolidated. In an unpublished opinion, the majority reversed Lee's conviction for attempted first degree murder with a deadly weapon, concluding that his counsel had provided ineffective assistance by failing to seek a lesser included instruction on attempted second degree murder. State v. Lee, noted at 155 Wn.App. 1025, 2010 WL 1454310, at *2, remanded, 171 Wn.2d 1018, 259 P.3d 145 (2011).
We did not consider Lee's assault conviction because the trial court did not sentence Lee on that count to avoid violating double jeopardy. Lee, 2010 WL 1454310, at *1 n.1. We also considered Lee's PRP moot because Lee's conviction was reversed and remanded on the basis of the direct appeal. Lee, 2010 WL 1454310, at *1 n.2.
Our Supreme Court granted review and remanded back to us "for reconsideration in light of State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011)." State v. Lee, 171 Wn.2d 1018. We asked for additional briefing on the application of Grier and withdrew our earlier opinion.
ANALYSIS
I. Ineffective Assistance of Counsel
Lee raises several ineffective assistance of counsel claims on direct appeal and in his PRP.On direct appeal, Lee argues that he received ineffective assistance of counsel when his counsel failed to (1) propose a to convict instruction for the lesser included offense of attempted second degree murder, (2) adequately prepare witnesses for trial, and (3) present evidence to sufficiently establish a voluntary intoxication defense. In his PRP, Lee argues that counsel failed to offer the lesser included instruction, call witnesses, competently examine and cross-examine witnesses, investigate the case, and present mitigating evidence.
RAP 16.3.
The federal and state constitutions guarantee effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22. An appellant claiming ineffective assistance of counsel must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, the defendant must show that counsel's performance fell "below an objective standard of reasonableness." Strickland, 466 U.S. at 688. "There is a strong presumption that counsel's performance was reasonable." State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). "When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient." Kyllo, 166 Wn.2d at 863. To satisfy the prejudice prong, the defendant must show that the outcome of the proceedings would have differed but for counsel's deficient performance. Grier, 171 Wn.2d at 34. "The proper standard for attorney performance is that of reasonably effective assistance." Strickland, 466 U.S. at 687.
A petitioner may request relief through a PRP when he is under an unlawful restraint.RAP 16.4(a)-(c). A personal restraint petitioner must prove either a (1) constitutional error that results in actual and substantial prejudice or (2) nonconstitutional error that "'constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004) (quoting In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)). The petitioner must prove the error by a preponderance of the evidence. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004).
Lee is under a "restraint" as he is confined under a judgment and sentence resulting from a decision in a criminal proceeding. RAP 16.4(b).
When a PRP is based on ineffective assistance of counsel, a personal restraint petitioner need not "'satisfy a heightened prejudice requirement under actual and substantial prejudice that exceeds the showing of prejudice necessary to successfully establish the Strickland prejudice prong.'" In re Pers. Restraint of Monschke, 160 Wn.App. 479, 491, 251 P.3d 884 (2010), (quoting In re Pers. Restraint of Crace, 157 Wn.App. 81, 112-14, 236 P.3d 914 (2010), review granted, 171 Wn.2d 1035 (2011)).
A. Failure To Propose Instruction on Attempted Second Degree Murder
Lee asserts on direct appeal and in his PRP that his trial counsel was ineffective for failing to propose a to convict instruction for the lesser included offense of attempted second degree murder. In our first opinion, our majority held that Lee's counsel was ineffective for failing to seek the lesser included instruction on attempted second degree murder. Lee, 2010 WL 1454310 at *2. Upon reconsideration in light of Grier, we hold that counsel was not ineffective for failing to propose the instruction.
The threshold question is whether Lee was entitled to the lesser included offense instruction. A defendant's right to present a lesser included offense instruction to the jury is statutory. RCW 10.61.006; RCW 10.61.010; State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 116 (1990). A defendant is entitled to a lesser included offense instruction if two criteria are met: (1) each of the elements of the lesser offense must be a necessary element of the offense charged (legal prong), and (2) the evidence in the case must support an inference that the lesser crime was committed (factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The factual prong 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 the exclusion of the greater one. State v. Fernandez-Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000). The State concedes in its brief that this case meets the legal prong.
To evaluate the second prong of the Workman test, we must look at the elements of the charged crime as compared to the lesser crime. Attempted first degree murder is committed with premeditation but attempted second degree murder is not. RCW 9A.32.030(1)(a); RCW 9A.32.050(1)(a); RCW 9A.28.020. The law defines premeditation as "'the deliberate formation of and reflection upon the intent to take a human life[, involving] the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" State v. Boot, 89 Wn.App. 780, 791, 950 P.2d 964 (1998) (quoting State v. Ortiz, 119 Wn.2d 294, 312, 831 P.2d 1060 (1992)).
Several pieces of evidence support a rational inference that Lee committed only attempted second degree murder, including: (1) he was severely depressed at the time of the attack; (2) he was taking a series of psychotropic medications; (3) the alcohol he consumed at the restaurant beforehand would have exacerbated any side effects of those medications; (4) his threats against the victim, in light of cultural differences, were not necessarily meant to convey an actual threat of harm to the victim; and (5) he had the bakery knife in his car only because he planned to have it sharpened. Thus, Lee satisfies the factual prong of the Workman test.
We next consider whether defense counsel's failure to seek the lesser included instruction constituted deficient performance. Lee's defense counsel was not deficient here.
In our prior opinion, the majority held that counsel's failure to seek the lesser included instruction was deficient as it was an improper "all or nothing" strategy and not a legitimate trial tactic because Lee's defense related only to intent, which is an essential element of both first and attempted second degree murder. Lee, 2010 WL 1454310, at *3. We now reach the opposite result and follow Grier to hold that Lee did not receive deficient performance.
First, Lee did not pursue an all-or-nothing approach. In an all-or-nothing approach, defense counsel forgoes a lesser included offense instruction in the hopes that the jury will acquit the defendant entirely. See Grier, 171 Wn.2d at 39. In the instant case, Lee was charged with attempted first degree murder and first degree assault with a deadly weapon. CP 1-2, 31. Because a jury determined to convict had a second, less serious option, counsel's decision not to request a to convict instruction on the lesser included offense was not an all-or-nothing approach, but rather a legitimate trial tactic.
Second, our Supreme Court clarified in Grier that an all-or-nothing strategy can be a legitimate trial tactic that does not constitute ineffective assistance of counsel. 171 Wn.2d at 42. In that case, Grier alleged that she received ineffective assistance resulting in her conviction for second degree murder when her counsel withdrew instructions for the lesser included offenses of first and second degree manslaughter. Grier, 171 Wn.2d at 20. The Supreme Court reversed this court's opinion and affirmed the conviction, holding that, based on the facts, the defendant and defense counsel could have decided that the all-or-nothing approach was the best strategy to achieve acquittal-thus, there was no deficient performance. Grier, 171 Wn.2d at 43. The Supreme Court explained that, even when "the risk is enormous and the chance of acquittal is minimal, it is the defendant's prerogative to take this gamble, provided her attorney believes there is support for the decision." Grier, 171 Wn.2d at 39.
Here, like in Grier, Lee fails to show that defense counsel's decision not to request a lesser included instruction was not tactical. To instruct on attempted second degree murder as well as attempted first degree murder, defense counsel would have had to argue both that Lee did not attempt to murder Kim and that he did not premeditate his attempt. See RCW 9A.32.030(1)(a); RCW 9A.32.050(1)(a). Defense counsel, in consultation with Lee, could have concluded that a more clean and comprehensible strategy was to just argue Lee had not attempted murder at all. In fact, Lee's counsel requested a jury instruction on the lesser included offenses of second and third degree assault, demonstrating that counsel considered the possibility of lesser included offense instructions and was capable of obtaining them.
Given the facts of this case, Lee does not show that his counsel's failure to request a to convict instruction for attempted second degree murder was not strategic. It is not for us to question that strategy. As the Grier court noted, the "complex interplay between the attorney and the client in this arena leaves little room for judicial intervention." 117 Wn.2d at 40. Simply because defense counsel's strategy was ultimately unsuccessful does not mean that his performance was deficient. See Grier, 171 Wn.2d at 43 ("That this strategy ultimately proved unsuccessful is immaterial to an assessment of defense counsel's initial calculus; hindsight has no place in an ineffective assistance analysis."); see also Strickland, 466 U.S. at 689 ("[A] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.").
Lee has not met the high burden of proving that his trial counsel's performance was deficient. Because Lee fails to prove the first prong of the Strickland test, we need not consider whether prejudice resulted. Lee's claim for ineffective assistance for failure to request an instruction on attempted second degree murder fails.
Because we now reject Lee's challenge to his conviction on these grounds, we proceed to address those arguments raised by Lee in his direct appeal and PRP that we did not address in our prior opinion.
B. Failure to Consult on Attempted Second Degree Murder Instruction
Lee contends in his PRP that he received ineffective assistance of counsel when counsel failed to consult with him about whether to seek the attempted second degree murder instruction. "Absent evidence in the record of a failure to consult, . . . we presume consultation occurred." State v. Breitung, No. 84580-8, 2011 WL 6824965, at *3 (Wash. Dec. 29, 2011) (holding, in a direct appeal, that Breitung failed to show ineffective assistance based on failure to consult because no evidence in the record showed that consultation did not occur). Lee submitted only his own declaration to support this claim, asserting that his counsel did not discuss the lesser included instruction with him and that he would have sought the instruction if consulted. A petitioner may not support his PRP claims based solely on self-serving affidavits. See In re Pers. Restraint of Reise, 146 Wn.App. 772, 789, 192 P.3d 949 (2008). Without additional support, Lee fails to establish material disputed issues of fact sufficient to trigger a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12. Lee fails to support his claim of deficient performance; accordingly, we need not consider the prejudice prong of the Strickland test. Lee's claim for ineffective assistance for failure to consult on whether to request an instruction on attempted second degree murder fails.
C. Voluntary Intoxication Defense
Lee next contends both that the trial court erred in refusing to give his requested instruction for voluntary intoxication and that his counsel provided ineffective assistance in failing to adequately develop a voluntary intoxication defense. We will address both arguments here.
1. Trial Court's Refusal to Give Pattern Voluntary Intoxication Instruction
Lee contends in his direct appeal that the trial court erred when it denied his request to give the pattern jury instruction for voluntary intoxication. We disagree.
The pattern jury instruction reads: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of incrimination may be considered in determining whether the defendant [acted with intent]." 11 Washington Practice: Pattern Jury Instructions: Criminal 18.10, at 282 (3d ed. 2008); see also RCW 9A.16.090.
A defendant is entitled to an instruction on the defendant's theory of the case if the evidence supports the instruction. State v. Werner, 170 Wn.2d 333, 336, 241 P.3d 410 (2010). Failure to provide such an instruction is reversible error. See State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d 1001 (2003). Generally, we review the adequacy of jury instructions de novo as a question of law. State v. Cross, 156 Wn.2d 580, 617, 132 P.3d 80 (2006).
To receive a jury instruction on voluntary intoxication, the defendant must show that: (1) the crime charged includes a particular mental state as an element, (2) there is substantial evidence of drinking, and (3) the defendant presents evidence that the drinking affected the defendant's ability to form the requisite mental state. State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2004). The evidence "must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged." State v. Gabryschak, 83 Wn.App. 249, 252-53, 921 P.2d 549 (1996). Evidence of drinking, standing alone, is insufficient; there must be substantial evidence of the alcohol's effect on the defendant's mind and body. Gabryschak, 83 Wn.App. at 253; see also State v. Finley, 97 Wn.App. 129, 135, 982 P.2d 681 (1999) ("[T]he court is required to give a voluntary intoxication instruction only in those cases in which the level of mental impairment caused by alcohol or drugs clearly affected the defendant's criminal responsibility by eliminating the necessary mens rea.").
Because intent is an element of first degree murder and assault, the test's first element is met. See RCW 9A.36.011, .030(1)(a). Regarding the second factor, evidence indicates that Lee had a bottle of alcohol at dinner. Thus, the second prong is met.
The materials submitted by Lee with his PRP indicate that the liquor was Soju, a "strong Korean Liquor." PRP Ex. 1A, at 3.
To support his contention that he was unable to form the requisite intent, Lee relies on State v. Kruger, 116 Wn.App. 685, 67 P.3d 1147 (2003). In Kruger, the court held that the defendant was entitled to the instruction because there was evidence that the defendant did not react to pepper spray, blacked out, vomited, and slurred his speech. 116 Wn.App. at 692 ; see also State v. Rice, 102 Wn.2d 120, 122-23, 683 P.2d 199 (1984) (defendants entitled to intoxication instruction where they drank beer all day, took between two and five Quaaludes, and could not hit ping-pong balls, and one did not feel it when struck by a vehicle); but see Gabryschak, 83 Wn.App. at 254 (evidence that defendant was angry, physically violent, and threatening when intoxicated was not enough to establish that he was too intoxicated to form the required intent).
In the instant case, Lee presented some evidence that his alcohol use affected him. Specifically, Dr. Leung testified that Lee generally took medications for depression. Dr. Leung testified that Lee "could not remember the details of what happened" the night of the incident, which may be consistent with a blackout. 8 RP at 387. Dr. Leung also testified that he believed that Lee "did not know what he was doing, " and that the alcohol "would have expanded the side effect of the medications." 8 RP at 387, 389. But Kim testified that she chose to drive on the night of the incident only in part because Lee had been drinking; her "main purpose" in driving "was to look for a motel." 4 RP at 104. And, as the State established in its cross-examination of Dr. Leung, Lee engaged in "goal-directed" behavior that suggested that he knew what he was doing, such as discussing with Kim which of them would drive, asking Kim for her father's phone number, and moving the cake box from the trunk area to the backseat.
Lee also points to the evidence presented by the State that Lee smelled of alcohol at the time of arrest and required restraint by witnesses. Neither fact establishes a question of fact as to whether Lee had the ability to form the requisite mental state. Resisting restraint by witnesses could easily have nothing to do with intoxication.
This case is distinguishable from Kruger. While evidence was presented here that alcohol and other influences on Lee's state of mind called into question whether he was intending to kill Kim, the evidence did not connect Lee's intoxication with his asserted inability to form the intent to kill. In other words, the evidence tended to show what he was intending, not whether he was capable of forming the intent. Because substantial evidence does not support the voluntary intoxication instruction, the trial court did not err when it refused to give the pattern instruction.
2. Ineffective Assistance for Failure to Develop a Voluntary Intoxication Defense
Lee contends on direct appeal and in his PRP that his counsel was ineffective for failing to properly develop a voluntary intoxication defense. Specifically, he asserts that his counsel should have (1) asked witnesses whether he appeared intoxicated the night of the crime, (2) determined the alcohol content of the liquor that Lee consumed that night, (3) determined whether Lee took his medications the day of the crime, and (4) if he had taken his medications, determined the effects of mixing these medications with alcohol.
To show prejudice under Strickland, Lee must show that proper preparation and investigation would have resulted in sufficient evidence to support the giving of the instruction such that the trial court would have permitted the instruction. Assuming without deciding that counsel's investigation was deficient, Lee fails to show prejudice.
For the claim raised in the direct appeal, we may only consider the evidence in the record. See State v. McFarland, 127 Wn.2d 323, 335, 899 P.2d 1251 (1995) ("Where, as here, the claim is brought on direct appeal, the reviewing court will not consider matters outside the trial record."). As explained above, the record is insufficient to establish that Lee's drinking affected his ability to form the requisite mental state. Therefore, based on this record, he was not entitled to the instruction and he fails to show that the outcome of the proceedings would have differed but for counsel's deficient performance.
We may consider additional evidence when evaluating this claim raised in Lee's PRP. The petitioner must support the petition with facts or evidence and may not rely solely on conclusory allegations. RAP 16.7(a)(2)(i); Cook, 114 Wn.2d at 813-14; see also In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988). For allegations "based on matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief." In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). "If the petitioner's evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits . . . must contain matters to which the affiants may competently testify." Rice, 118 Wn.2d at 886. The petitioner must show that the "factual allegations are based on more than speculation, conjecture, or inadmissible hearsay." Rice, 118 Wn.2d at 886.
"Once the petitioner makes this threshold showing, the court will then examine the State's response, " which must "answer the allegations of the petition and identify all material disputed questions of fact." Rice, 118 Wn.2d at 886. "[T]o define disputed questions of fact, the State must meet the petitioner's evidence with its own competent evidence" and only after "the parties' materials establish the existence of material disputed issues of fact" will we direct the trial court "to hold a reference hearing in order to resolve the factual questions." Rice, 118 Wn.2d at 886-87.
When reviewing a PRP, we have three options:
1. If a petitioner fails to meet the threshold burden of showing actual prejudice arising from constitutional error, the petition must be dismissed;
2. If a petitioner makes at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12; [or]
3. If the court is convinced a petitioner has proven actual prejudicial error, the court should grant the [PRP] without remanding the cause for further hearing.In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).
Lee submitted affidavits on this question in his PRP. Those affidavits do not provide enough evidence to justify a reference hearing as to whether Lee would have been entitled to the instruction had he received effective assistance of counsel.
Lee submitted a forensic psychological report completed by staff at Western State Hospital. The report states that Lee "could not recall the details of that evening." PRP Ex. 1A at 6. It states that Lee reported during the evaluation that he had consumed drinks during dinner. The report also notes that Lee reported drinking seven to eight shot-sized glasses of Soju, a Korean liquor that contains 25 percent alcohol, and that he denied using substances other than his prescribed psychotropic medicine that day. Lee also reported that he remembered nothing between paying the bill at the restaurant and changing clothes at the police station, except running and seeing headlights.
Lee submitted his own affidavit, which states "Dr. Thiemann accurately described [in Western State Hospital's forensic psychological report] what I told her about consuming liquor at the restaurant just prior to the events that resulted in the criminal charges I faced." PRP Ex. 6 at 2. Lee does not independently state in his affidavit whether he took his medication on the day of the crime, how much alcohol he consumed, or how the alcohol affected him.
Lee also submitted a letter to counsel written by Dr. Leung. In that letter, Dr. Leung opines that Lee's inability to remember the events in question constituted "amnesia": "It is my opinion that the entire alleged incident of attacking Jin Kim was so traumatic and alien to Ki Lee's conscious mind that he simply rationalized and believed that it could never happen." PRP Ex. 1B at 8. It also states that Lee "was under the influence of alcohol that he had consumed during the dinner." PRP Ex. 1B at 8. Dr. Leung also stated that "[i]t is my opinion that Mr. Ki Lee did not intend to attack [Kim] or did not knowingly attack her." PRP Ex. 1B at 8. Regarding intoxication, the letter states only, "He remembered that he had alcohol during dinner." PRP Ex. 1B at 6.
Lee also submitted an affidavit from Jongwon Yi, the person whom Lee and Kim allegedly met with at the restaurant. He states only that he met Lee and Kim at the restaurant, that they discussed a business issue related to Lee's bakery, that he was the first to depart the meeting, and that he was not interviewed for the criminal case. The affidavit says nothing about Lee's state of intoxication.
Lee additionally submitted an affidavit from Dr. Steve Baek. Dr. Baek declared that he attended the meeting at the restaurant and that during the time he was there, which was only a portion of the time the others were there, he saw Lee consume several shots of a Korean Liquor, Soju. He declared, "I did not count his shots, but I recall he consumed nearly two full bottles. I am familiar with Soju bottles containing approximately seven to eight shots per bottle. Mr. Lee was obviously intoxicated by the time I left the restaurant." PRP Ex. 4 at 1. Dr. Baek does not mention whether he was interviewed by counsel. Lee presented no evidence that counsel was even aware of Dr. Baek and his potential testimony.
Lee submitted another affidavit from Ju Yeop Kim. Ju Yeop Kim declared that he observed Lee "express displeasure with a certain knife" being dull on October 29, 2006. PRP Ex.5 at 1. He agreed that the knife was dull. He also declared that he was never interviewed, subpoenaed, or asked to testify. Lee presented no evidence that counsel was even aware of Ju Yeop Kim and his potential testimony.
The additional affidavits provide ample evidence that Lee had been drinking. The only evidence, however, of the third prong of the voluntary intoxication test, evidence that the drinking affected his or her ability to form the requisite mental state, are Dr. Baek's assertion that "Mr. Lee was obviously intoxicated, " and the forensic report and Dr. Leung's letter suggesting that Lee did not remember anything after leaving the restaurant also suggests that drinking may have affected his ability to form the requisite mental state. PRP Ex. 4 at 1.
Lee argues that his counsel should have questioned witnesses at trial about whether Lee's behavior indicated that he was intoxicated. He does not indicate which witnesses might have been able to speak to this or present evidence in his PRP as to what any witness might have said that would have changed the outcome of the trial.
This does not constitute substantial evidence that Lee was unable to form the necessary intent to commit the crime required by Gabrushchak, 83 Wn.App. at 253, and is not enough to make a prima facie case requiring a reference hearing. Lee fails to present sufficient evidence to show even a disputed material fact as to whether he would have been entitled to a voluntary intoxication instruction. Therefore, any deficient performance was not prejudicial because it did not affect the outcome. Thus there is no indication that Lee's counsel's performance was ineffective by failing to develop the voluntary intoxication defense. We decline to grant Lee's PRP on these grounds.
D. Failure to Interview Kim
Lee next asserts on direct appeal that his trial counsel provided ineffective assistance because he did not interview Kim until after the trial began. We disagree.
"[T]here is no absolute requirement that defense counsel interview witnesses before trial." In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 488, 965 P.2d 593 (1998) (concluding that defendant failed to show deficient performance when "counsel spent considerable time reviewing evidence and obtaining answers to various questions" with detectives even though he did not conduct formal interviews). Lee cannot demonstrate that his counsel's failure to interview Kim before trial fell below an "objective standard of reasonableness." Strickland, 466 U.S. at 688. Here, the record indicates that Kim lived in Korea. She flew to the United States to testify and appears to have arrived only two days before the trial started. Neither the State's attorney nor Lee's defense counsel had interviewed Kim as recently as one week before the trial. Lee fails to overcome the presumption of reasonableness. His ineffective assistance of counsel claim fails on these grounds.
E. Failure to Adequately Prepare Expert
Lee next asserts on direct appeal that his trial counsel provided ineffective assistance because he insufficiently prepared Lee's expert witness, Dr. Leung. Lee contends that Dr. Leung, the defense's only witness, appeared unprepared for questioning. More specifically, he asserts that he received ineffective assistance when counsel did not to provide Dr. Leung with (1) a copy of the State's expert report from Western State Hospital until the morning before his testimony; (2) witness statements that were part of the case's discovery; (3) the transcribed victim statement; or (4) the victim's medical records, crime scene photos, or emergency call tapes.
As the State points out, Dr. Leung specifically testified that his opinion would not have changed with any additional information. Because Lee fails to show prejudice, we need not consider the deficient performance prong of the Strickland test. Lee's ineffective assistance claim on these grounds also fails.
F. Failure to Adequately Investigate and Prepare for Trial
Lee next asserts in his PRP that he received ineffective assistance of counsel when his counsel did not call Ju Yeop Kim, Dr. Baek, Yi, or Hyuk Seo to testify in this case. The decision to call a witness is usually a tactical matter and will not support a claim of ineffective assistance. State v. Byrd, 30 Wn.App. 794, 799, 638 P.2d 601 (1981). A defendant can overcome this presumption by demonstrating that counsel did not adequately investigate or prepare for trial. Byrd, 30 Wn.App. at 799.
The PRP does not discuss Seo's potential testimony in the argument portion of the PRP. Lee only mentions that Seo would have testified regarding the sharpening of the bakery knives in the factual background section. The PRP does not contain an affidavit from Seo.
Ju Yeop Kim's declaration states that the knife "was very dull, " that it "needed to be sharpened, " that "Lee commonly took knives away from the bakery to be sharpened, " and that he "was never interviewed about the knife . . . prior to Mr. Lee's trial." PRP Ex. 5. But Kim testified that Lee moved the box containing the knife from the trunk area to the backseat of the vehicle. Regardless of the reason Lee originally put the knife in the car, this evidence suggests that he intended to use the knife to harm Kim at that point. Ju Yeop Kim's statement does not indicate that Lee moved the knife from the trunk to the backseat because he wanted it sharpened. Thus, even if Lee's trial counsel called Ju Yeop Kim to testify and solicited this testimony, it would not have negated the evidence substantiating his conviction. It would have been a reasonable decision for defense counsel not to call Ju Yeop Kim. Furthermore, Lee's affidavit supporting his PRP does not allege that he told his trial counsel that Ju Yeop Kim could provide this information.
Dr. Baek's declaration states that he "observed [Lee] consume several shots of a Korean liquor, Soju" and that "[Lee] was obviously intoxicated by the time [Dr. Baek] left the restaurant." PRP Ex. 4. Presumably, Lee's trial counsel did not seek Dr. Baek's testimony at trial because consumption of alcohol alone is insufficient evidence when seeking a voluntary intoxication instruction and because it would not have aided the court in its determination on that issue. This is not substantial evidence of the alcohol's effect on Lee's mind and body, as required under Gabryschak. 83 Wn.App. at 253. Also, Lee's affidavit supporting his PRP does not allege that he told his trial counsel that Dr. Baek could provide this information.
Yi's declaration states that he met with Lee on October 31, 2006 at a restaurant and that "part of the purpose of the meeting included a discussion [he] had with [Lee] about a business issue related to his bakery business and his landlord." PRP Ex. 3. Nothing in this declaration indicates that Yi would have provided relevant testimony, particularly because the declaration states that he "was the first to depart the meeting but the others may have stayed longer." PRP Ex. 3. Again, Lee's affidavit supporting his PRP does not allege that he told his trial counsel that Yi could provide this information.
While the presumption of effective assistance of counsel can be overcome when an attorney fails to properly investigate, determine appropriate defenses, or properly prepare for trial, Lee has not shown such to sufficiently rebut this presumption. See Byrd, 30 Wn.App. at 799. Lee also fails to show how the testimony of Ju Yeop Kim, Dr. Baek, and Yi would have changed the outcome in this case. In light of the general rule that the decision to call a witness is tactical, coupled with Lee's failure to show deficient performance and resulting prejudice, his argument fails.
II. Prior Bad Acts
Lee next contends in his direct appeal that the trial court erred when it admitted under ER 404(b) Kim's testimony that Lee had previously threatened Kim's family. He does not contend that the trial court erred in admitting evidence of threats to Kim herself. The State does not respond.
The State inaccurately characterizes Lee's argument as an ineffective assistance of counsel claim. It is not. See Appellant's Br. at 2 ("The trial court erred by allowing evidence of prior threats made by Mr. Lee."); Appellant's Br. at 25 ("This determination by the trial court was prohibited by ER 404(b) and it was error to allow the inquiry.").
To preserve an issue, a party must bring a specific objection at trial to allow the trial court "an opportunity to correct any error." Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). Objections not raised at trial are usually waived unless they are manifest errors affecting constitutional rights. RAP 2.5(a). "'Evidentiary errors under ER 404 are not of constitutional magnitude'" and are harmless unless the outcome of the trial would have differed had the error not occurred. State v. Wade, 98 Wn.App. 328, 333, 989 P.2d 576 (1999) (quoting State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). Lee did not object on these grounds at trial. Lee objected to the admission of the evidence of the threats to both Kim and her family on ER 404(b) grounds. He did not make an independent argument specifically regarding the threats made to Kim's family. Lee failed to preserve any error relating to the admission of the evidence of threats to Kim's family.
III. Cumulative Error
Lee finally contends in his PRP that he is entitled to relief under the cumulative error doctrine. We may reverse a defendant's conviction when the combined effect of errors during trial effectively denied the defendant his right to a fair trial, even if each error standing alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006); State v. Hodges, 118 Wn.App. 668, 673-74, 77 P.3d 375 (2003). Because we find no error, we hold that Lee was not deprived of his right to a fair trial.
We affirm Lee's convictions and deny his PRP.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Van Deren, J., Johanson, J.