Opinion
No. 64313-4-I.
Filed: March 14, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05394-2, Helen Halpert, J., entered October 12, 2009.
Affirmed by unpublished opinion per Becker, J., concurred in by Appelwick and Schindler, JJ.
A jury found Anthony Lewis guilty of first degree assault while armed with a deadly weapon after he stabbed a woman during a parking garage brawl. The evidence did not establish a factual basis for an inferior degree instruction on fourth degree assault, and the absence of such an instruction did not, in any event, affect the outcome of the trial. Defense counsel's failure to request the inferior degree instruction was therefore neither deficient performance nor prejudicial. We reject Lewis's claim of ineffective assistance of counsel and affirm.
FACTS
On the evening of June 27, 2008, three sisters — Crystal Keopadapsy, Cambria Silva de Jesus, and Cassandra Dunithan — met with friends in a Seattle restaurant to celebrate Crystal's and Cambria's birthdays. The three women left the restaurant at about 2:00 a.m. and returned to their cars in the restaurant parking garage. Cassandra, Crystal, and Stephanie Siva drove in Cassandra's car. Cambria and several friends followed directly behind in Cambria's car.
For purposes of clarity, we refer to the sisters by their first names.
As the cars waited in a long line to exit the garage, a silver Honda drove up from the side and attempted to cut into the line in front of Cassandra's car. Irritated, Cassandra honked the horn and moved her car to block the Honda. A passenger in the Honda, later identified as codefendant Jamila Johnson, got out, sat on the hood of Cassandra's car, and began bouncing up and down.
Frightened and upset, Cassandra drove the car forward and then slammed on the brakes, causing Johnson to fall off. Johnson responded by kicking the front of the car. Johnson then approached the driver's side window and yelled and cursed at Cassandra.
At this point, Cassandra got out of the car and confronted Johnson. Crystal followed to assist her sister. Out of the corner of her eye, Crystal saw a man in a plaid shirt get out of the Honda and walk toward the spot where Cassandra was arguing with Johnson. Crystal attempted to block the man and the two exchanged words. At some point, the argument between Cassandra and Johnson escalated into a physical altercation; and Crystal, Cambria, and several men from nearby cars came to Cassandra's assistance. During the course of the struggle, Johnson punched Cambria in the jaw and threw Cassandra down to the ground and began stomping on her head.
Siva got out of Cassandra's car and observed the brawl. She saw the man in the plaid shirt fighting with Crystal and a man who had come from one of the other cars. Siva looked away briefly to make sure that her friends were no longer part of the "huge fight." When she turned back, she saw the man in the plaid shirt running directly toward her. The man made a "punching motion" as he ran past, and Siva thought initially that the man had punched her in the stomach.
Siva immediately experienced difficult breathing and sat down in Cassandra's car, where Crystal discovered that Siva had been stabbed in the stomach. Siva told Crystal that the man wearing the plaid shirt had stabbed her. Angela Hoffman and Cambria also saw the man in the plaid shirt appear to punch Siva. Cambria did not see anyone else near Siva at the time.
Crystal, Cambria, Cassandra, Hoffman, and Siva all identified appellant Lewis as the man wearing the plaid shirt. When calling 911, a security guard reported that Siva had pointed to a man wearing a black shirt and dark pants as the assailant. At trial, the guard acknowledged that he did not get a good look at the man and did not know whether his description was accurate.
A surgeon at Harborview Medical Center determined that Siva had suffered a stab wound that penetrated through the abdominal wall and into the peritoneal cavity. The surgeon had to remove a portion of Siva's small intestine. The surgeon characterized the injury as serious enough to result in death if left untreated.
When police officers arrived, they found Lewis sitting in the backseat of the Honda on the driver's side. The officers removed a partially open folding knife from just underneath the driver's seat. Because of the complex mixture of DNA (deoxyribonucleic acid) on the knife handle, a forensic scientist could not conclusively determine whether Lewis had handled the knife. A blood stain on the left armpit of Lewis's shirt matched Siva's reference blood sample.
Lewis testified that he got out of the Honda when the confrontation became physical and tried to pull people off of Johnson. When 10 or 15 people eventually attacked him, Lewis had to stop and cover his head. At some point, the fight subsided and Lewis got back into the Honda.
Lewis flatly denied using the knife, having a weapon, or stabbing Siva. He also could not recall punching Siva, but acknowledged:
I didn't punch her, but I mean I have no idea who I punched, because I was just swinging, you know. I possibly could have encountered her, but I am not sure.
The State charged Lewis with one count of first degree assault while armed with a deadly weapon. The trial court also instructed the jury on the lesser degree offense of second degree assault by means of a deadly weapon. See RCW 9A.36.021(1)(c). The jury found Lewis guilty of first degree assault while armed with a deadly weapon, and the court sentenced him to 117 months of confinement.
DECISION
Lewis contends that trial counsel was ineffective for failing to request an inferior degree instruction on fourth degree assault. He argues that his testimony admitting he might have punched Siva while swinging his arms during the fight supported the instruction.
In order to establish ineffective assistance of counsel, Lewis must demonstrate both (1) that his attorney's representation fell below an objective standard of reasonableness and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Lewis also bears the burden of rebutting the strong presumption that counsel's representation was not deficient. McFarland, 127 Wn.2d at 336.
A criminal defendant is entitled to an instruction on an inferior degree offense if "(1) the statutes for both the charged offense and the proposed inferior degree offense `proscribe but 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, 133 Wn.2d 885, 891, 948 P.2d 381 (1997). It is undisputed that the legal prong of this test was satisfied here. The assault statutes proscribe the single offense of assault, and fourth degree assault is an inferior degree offense of first and second degree assault. See RCW 9A.36.011, .021, .041; see also Fernandez-Medina, 141 Wn.2d at 455.
In order to satisfy the factual prong of the test, however, there must be some evidence supporting an inference that Lewis committed only a fourth degree assault. A person is guilty of fourth degree assault if, under circumstances not amounting to first, second, or third degree assault, he or she assaults another. RCW 9A.36.041(1). The assault charge in this case, as reflected in the jury instructions on first and second degree assault, was based solely on the State's allegation that Lewis stabbed Siva. The evidence was undisputed that a man ran up to Siva and stabbed her in a single, discrete incident while she was standing off to the side of the altercation. No evidence supported an inference that this incident involved anything other than a stabbing.
In light of these facts, Lewis's mere acknowledgment that it was possible he might have punched Siva while "blindly throwing punches" at some unspecified time and place during "the chaos" is too speculative to support an inference that he committed only a simple assault. Moreover, Lewis's factual allegations do not satisfy "the precondition that the lesser crime be based on the same criminal transaction supporting the charged offense." State v. Porter, 150 Wn.2d 732, 739, 82 P.3d 234 (2004). Lewis flatly denied carrying a weapon or stabbing Siva. If he punched her in the manner claimed, that conduct clearly did not arise out of the same act or transaction giving rise to the charged stabbing.
Because the evidence was insufficient to support an inference that Lewis committed only fourth degree assault, defense counsel's failure to request the instruction was not deficient performance.
Lewis's claim of ineffective assistance also fails because it rests primarily on the three pronged test developed in State v. Ward, 125 Wn. App. 243, 104 P.3d 670 (2004), abrogated by State v. Grier, No. 83452-1 (Wash. Feb. 10, 2011), and State v. Pittman, 134 Wn. App. 376, 166 P.3d 720 (2006). Our Supreme Court recently rejected this analysis, concluding that it distorts the Strickland standard by not properly considering the strong presumption of effective assistance that must be accorded trial counsel's decision not to request an instruction on an included offense. See Grier, slip op. at 24. Under Grier, when the record does not indicate that trial counsel failed to consult with the defendant when making the tactical decision to forgo an instruction on an included offense, this court will not second guess counsel's decision merely because, "by the court's analysis, the level of risk is excessive and a more conservative approach would be more prudent." Grier, slip op. at 26.
Moreover, even if the failure to request an instruction on fourth degree assault was deficient performance, Lewis cannot establish any resulting prejudice. The jury found Lewis guilty as charged of first degree assault with a deadly weapon. We must presume that the jury would not have convicted Lewis of that charge unless the State met its burden of proof beyond a reasonable doubt. See Grier, slip op. at 31. Because nothing in the record rebutted that presumption, the availability of a compromise verdict would not have affected the outcome of Lewis's trial. Id.
Affirmed.