Opinion
No. 38822-7-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02385-8, John R. Hickman, Lisa R. Worswick, Ronald E. Culpepper, Rosanne Buckner, Kathryn J. Nelson, Stephanie A. Arend, and Bryan E. Chushcoff, JJ., entered January 9, 2009.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, C.J., and Bridgewater, J. Pro Tem.
Matthew W. Norris appeals his conviction for attempted second degree murder, contrary to RCW 9A.32.050; first degree assault, contrary to RCW 9A.36.011(1)(a); and first degree unlawful possession of a firearm, contrary to RCW 9.41.040(1)(a). He argues that (1) the trial court erred by failing to instruct the jury that the State had the burden to disprove his diminished capacity defense beyond a reasonable doubt and (2) his counsel's representation was ineffective for failure to request a special diminished capacity jury instruction. In an amended statement of additional grounds (SAG), Norris claims his counsel was also ineffective for failing to seek a plea bargain. Recently, in State v. Marchi, No. 39254-2 (Wash. Ct. App. Dec. 7, 2010), we rejected a diminished capacity jury instruction argument identical to Norris's. Accordingly, based on the same reasoning in Marchi, and because Norris's other arguments are meritless, we affirm.
RAP 10.10.
Facts
On May 15, 2005, Norris shot his wife, Dianna Konik, in the neck and she survived. Konik had arrived home from an evening of shopping when Norris confronted her about an alleged affair and programs that she allegedly downloaded on his computer to help people spy on him. Konik denied the allegations and a struggle ensued wherein Norris slapped her face, Koniok fell to the ground, and Norris picked up a knife to show her "what torture is" by threatening to stab her in the eye. Report of Proceedings (RP) at 594. He then pulled a gun on her. When Konik continued to deny any wrongdoing, Norris shot her. Norris called 911 after Konik told him to tell everyone that the shooting was an accident. At trial, Konik testified that, for several weeks prior to the incident, Norris had become increasingly upset and paranoid about someone hacking into their computer, recording their lives, and "messing with [their] lives." RP at 649.
On May 16, 2005, the State charged Norris with attempted first degree murder (domestic violence) while armed with a firearm and first degree unlawful possession of a firearm. After his arraignment, Norris's attorney asked the Pierce County Jail staff to "survey" Norris. RP (June 7, 2005) at 3. On June 7, 2005, based on the jail staff's survey, questions about Norris's competency resulted in a court-ordered competency evaluation at Western State Hospital (Western). Ultimately, the trial court ordered Norris committed to Western to restore his competency.
On May 1, 2006, the trial court found Norris competent to stand trial. Norris's trial did not commence until September 2007, and it then proceeded based on an amended information that added a first degree assault with a firearm enhancement charge. During jury selection, questions again developed about Norris's competency to stand trial. Ultimately, the trial court declared a mistrial and recommitted Norris to Western to restore his competency.
On January 8, 2008, the trial court again found Norris competent to stand trial. Norris's second jury trial commenced in November 2008. When finalizing the jury instructions, Norris proposed a special diminished capacity jury instruction based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.20, at 286 (3d ed. 2008) (WPIC). The pattern jury instruction stated, "Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form (fill in requisite mental state)." WPIC 18.20, at 285. Norris proposed adding the following after the pattern jury instruction language:
The prosecution is required to prove beyond a reasonable doubt that the defendant, Matthew Norris, attempted to cause the death of another, with premeditated intent in Count I, and intended to assault another with a firearm in Count II. If you find from the evidence, that his capability to intend an act that was criminal was substantially diminished as a result of a mental disease or disorder, you must find him not guilty of that crime.
Clerk's Papers at 198. The trial court denied Norris's requested additional language and instructed the jury in accord with WPIC 18.20.
The jury entered guilty verdicts for the lesser included offense of attempted second degree murder, first degree assault, and first degree unlawful possession of a firearm. The jury also entered special verdicts that Norris committed attempted murder and assault while armed with a firearm. The trial court sentenced Norris to standard range sentences totaling 175.5 months of confinement. Norris timely appeals. analysis Jury Instructions on Diminished Capacity
The trial court did not sentence Norris on the first degree assault conviction because of double jeopardy concerns regarding overlapping criminal conduct between attempted second degree murder and first degree assault.
Norris contends that the trial court erred by failing to instruct the jury that the State had the burden of disproving his diminished capacity due to mental illness defense beyond a reasonable doubt. He argues that his diminished capacity defense negates the mens rea element of second degree murder and that failing to provide the requested instruction relieved the State of its burden of proof. Norris analogizes a diminished capacity due to mental illness defense to self-defense claims asserting that both negate an ability to act intentionally and, thus, the State must disprove both beyond a reasonable doubt.
In addition, Norris urges us to distinguish the reasoning of our decision in State v. James, 47 Wn. App. 605, 736 P.2d 700 (1987), claiming that it applies only to a diminished capacity caused by voluntary intoxication defense and does not apply to a diminished capacity caused by mental illness defense. In James, we held, "there is no necessity to instruct the jury that the State has the burden of proving the absence of diminished capacity or intoxication when it ha[s] already been instructed that the State must prove the requisite mental state beyond a reasonable doubt." 47 Wn. App. at 609 (emphasis added).
Recently, we rejected a mental illness diminished capacity special jury instruction argument identical to Norris's. In Marchi, we definitively extended the reasoning in James to diminished capacity due to mental illness defenses holding that it is not a "complete defense but, rather, is evidence the jury may take into account when determining whether the defendant could form the requisite mental state to commit the crime." Marchi, slip op. at 11. We also held that the first degree murder elements instructions in Marchi sufficiently informed the jury of the State's burden of proof. Marchi, slip op. at 11.
Here, as in Marchi, the trial court's "to convict" elements instruction properly allocated the State's burden of proof and properly instructed the jury that it could consider Norris's mental illness or mental disorder when deciding if the State had proven that he acted with the requisite intent. And to the extent Norris argues that diminished capacity adds an element to charged offenses that the State must disprove, we have consistently rejected that argument. Marchi, slip op. at 7-8; State v. Sao, 156 Wn. App. 67, 76-77, 230 P.3d 277 (2010); James, 47 Wn. App. at 608. Accordingly, as in Marchi, the trial court's jury instructions did not relieve the State of its burden to prove beyond a reasonable doubt that Norris acted intentionally when he attempted to kill Konik. Ineffective Assistance of Counsel
Next, Norris claims that his trial counsel rendered ineffective assistance by failing to propose a jury instruction that "would have properly informed the jury of the prosecution's burden of disproving the diminished capacity defense." Br. of Appellant 27-28. To establish ineffective assistance of counsel, Norris must show that (1) his counsel's performance was deficient and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S., 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Here, Norris fails to establish either prong of the Strickland test. Our review of the record reveals that defense counsel did propose the very jury instruction that Norris requests and that the trial court rejected it. Moreover, because the trial court's elements instruction adequately informed the jury of the State's burden of proving the mens rea for the charged crimes, Norris was not prejudiced. Accordingly, Norris's ineffective assistance of counsel claim fails. Right to Plea Bargain
Last, in his amended SAG, Norris argues that his trial counsel was ineffective for failing to seek a plea bargain. This argument relies on evidence outside of the record on appeal. On direct appeal, we cannot consider matters outside the record. McFarland, 127 Wn.2d at 338 n. 5. Moreover, a criminal defendant does not have a constitutional right to a plea bargain. State v. Yates, 161 Wn.2d 714, 741, 168 P.3d 359 (2007), (quoting State v. Wheeler, 95 Wn.2d 799, 804, 631 P.2d 376 (1981)), cert. denied, 554 U.S. 922 (2008). Accordingly, Norris's argument that his counsel's assistance was deficient fails.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and PENOYAR, C.J., concur.