Opinion
No. 35340-7-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 06-1-00230-2, Gordon Godfrey, J., entered September 11, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Penoyar, JJ.
Ion Velcota appeals his convictions for second degree assault — domestic violence and third degree assault of a law enforcement officer. We hold that his counsel was not ineffective for failing to present either a voluntary intoxication defense or a diminished capacity defense. Therefore, we affirm.
FACTS
Velcota and Julie Alexander had been living together for more than four years as of April 1, 2006. On that afternoon, Alexander finished her shift as a registered nurse at a local assisted care facility, purchased "some wine" at the liquor store, and returned to the house that she shared with Velcota. RP (Aug. 22, 2006) at 107.
Alexander explained that Velcota was very depressed, as he had yet to be paid by a contractor for his earlier services. Alexander explained further:
We were having some financial problems, and [Velcota] was really quiet and distant and very, very depressed, and I started getting really worried about him. And I went outside and I was drinking in the back yard, and then I came back in the house. . . . And he was shaving his head . . . and I asked him what he was doing, and he started speaking in Rumanian, which he never talks in Rumanian. The only time I ever heard him talk in Rumanian is to his Rumanian friends or when he has a seizure, he talks Rumanian, because he has seizure disorder.
Aug. 22, 2006) at 107-08. Alexander then decided to call a crisis clinic in order to get Velcota some professional help. Because their telephone was out of order, Alexander got in her car and started to drive to a friend's house.
Unknown to Alexander, Velcota hurried after her in his pick-up truck. According to Velcota, his "main concern" was that she was driving while intoxicated. RP (Aug. 23, 2006) at 153. So, without "a pair of pants or anything," Velcota "jump[ed]" in his pick-up truck and followed her, hoping "to catch up with her and bring her back home." RP (Aug. 23, 2006) at 154.
According to at least one witness, Velcota approached Alexander so closely that "the two cars were going to either pass on the wrong side of each other or there was going to be a collision." RP (Aug. 22, 2006) at 67. After Alexander pulled her car off the road, Velcota then hit her car at least twice with his pick-up truck, before leaving the scene.
Shortly thereafter, Ocean Shores police officer Chris Iversen approached the accident scene. He did not see the pick-up truck, but he did see Velcota walking down the road. "[Velcota] was [dressed] in his underwear, T-shirt, no shoes or socks. His hair was partially shaved off, clumps of it here and there. He had red stains on his underwear." RP (Aug. 22, 2006) at 94. When Officer Iversen questioned Velcota about what he was doing, Velcota answered that he was searching for his dog. Officer Iversen left Velcota and proceeded to the accident scene.
Ocean Shores police officers eventually arrested Alexander "for obstructing a law enforcement officer and DUI." RP (Aug. 22, 2006) at 27.
Ocean Shores police officers returned to Alexander and Velcota's house, where, among other things, they noticed "dishes and stuff in the yard, some stuff in the roadway," and "a machete stuck in an alder tree." RP (Aug. 22, 2006) at 38. Officer Iversen approached the front door, knocked several times, but no one responded. Officer Iversen looked through the adjacent window and saw Velcota walking away from the door with a large bottle of wine in his hand. Officer Iversen told him to come to the front door, but Velcota refused.
Then, according to Velcota, he opened the window just enough to tell Officer Iversen not to come in the house without a warrant. But Officer Iversen "grabbed" the attached window screen, "came on" Velcota, and struggled with him inside the house. RP (Aug. 23, 2006) at 161. During this struggle, Velcota dropped the bottle of wine he had been holding. Velcota testified that he "blacked out" and remembered little after the struggle. RP (Aug. 23, 2006) at 161.
But, according to Officer Iversen, Velcota opened the window and lunged at him, screaming, "Not without a fucking warrant." RP (Aug. 22, 2006) at 97-98. The window screen popped out, hitting Officer Iversen in the face and pushing him into the porch's railing. RP (Aug. 22, 2006) at 98. Officer Iversen "grabbed" Velcota, tumbled back through the window, and struggled with him inside the house. RP (Aug. 22, 2006) at 98.
In order to subdue Velcota, Sergeant Jeff Weiss tasered Velcota two times. Velcota then curled up in the fetal position. According to Officer Weiss, "He was just kind of balled up on the ground screaming." RP (Aug. 22, 2006) at 45-46. The police officers called an ambulance and paramedics transported him to the hospital.
Ultimately, the State charged Velcota with second degree assault — domestic violence for assaulting Alexander and third degree assault for assaulting Officer Iversen. Before the jury trial, Velcota's counsel informed the trial court that Dr. Jack Dutro, an expert witness on post traumatic stress disorder (PTSD), would testify that Velcota suffers from PTSD. Velcota's counsel argued that PTSD could "minimize" Velcota's intent to commit the assaults. RP (Apr. 22, 2006) at 7. And when the trial court asked Velcota's counsel if he was going to ask for a diminished capacity jury instruction, Velcota's counsel replied, "If I find a case that says that, sir, but I don't think there is. It's just minimizing. . . . So, I'm going to be arguing his intent was not to in fact assault the officer." RP (Aug. 22, 2006) at 9.
We note that the August 22, 2006 report of proceedings is erroneously designated one time as April 22, 2006.
At trial, Dr. Dutro testified that Velcota suffers from PTSD. Dr. Dutro also testified that a person suffering from PTSD could have "flashbacks or intense physiological, psychological and emotional responses . . . that bring him back" to a predicate event. RP (Aug. 23, 2006) at 180. The predicate event for Velcota's PTSD was when, as a teenager, Velcota was arrested in Romania and confined to a work camp for three years. Dr. Dutro testified:
On cross-examination, Dr. Dutro nevertheless admitted that somebody suffering from PTSD could have intense physiological, psychological, and emotional responses without being disassociated from reality.
And he was at that time exposed to various kinds of torture, for example . . . using electricity to torture him. He [was] handcuffed to a chair, and his feet were [severely] beaten with batons. Many times he was beaten to unconsciousness. He witnessed other people beaten, other people killed in industrial accidents, had near misses being killed himself in accidents while digging on the canal. Quite a long list of traumatic incidents . . . spending days in small cells that are about — totally dark and too small to lie down, things like deprivational type torture as well.
(Aug. 23, 2006) at 178-79. Dr. Dutro ended his testimony by agreeing that Velcota would try to avoid confronting police officers:
[Velcota] certainly describes a long history of avoidance. One of the triggers for him that brings back sort of an extreme physiological and psychological and emotional response is a uniform because all of these — well, many of these traumatic events were imposed upon him by uniformed guards, and so the sight of a uniform for him has a very negative trigger response, so he's spent his life up to the present basically avoiding uniforms.
RP (Aug. 23, 2006) at 180.
After both sides rested, the trial court discussed the proposed jury instructions with both parties. The trial court refused to give Velcota's proposed jury instructions regarding self-defense, stating:
I don't see it under the facts of this case or the defense that's being presented here. The defense that is being presented here, basically your defendant testified that once the officers were at the door, he recognized them as officers, and then we have this post traumatic stress disorder issue, and he has no recollection basically of what's going on.
. . . The evidence is that the officers were there, and for some reason he allegedly went into this post traumatic stress syndrome reaction, and then whatever happened happened, and you are asking that this be a situation regarding intent, and that he didn't intend to because he was having this reaction.
RP (Aug. 23, 2006) at 190. Velcota's counsel did not propose any jury instructions regarding either a voluntary intoxication defense or a diminished capacity defense.
Ultimately, the jury found Velcota guilty as charged.
ANALYSIS I. Ineffective Assistance of Counsel
Velcota argues that his counsel was ineffective for failing to present a voluntary intoxication defense and a diminished capacity defense where the facts allegedly supported each defense. We disagree.
To establish ineffective assistance of counsel, Velcota must show that: (1) his counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. 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). Velcota must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. And to show prejudice, he must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. "If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002) (citing State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978)).
A. Failure to Present a Voluntary Intoxication Defense
First, Velcota argues that the jury could have inferred from the evidence that his intoxication interfered with his ability to form intent. After all, evidence of intoxication may bear upon whether the defendant acted with the requisite mental state. State v. Coates, 107 Wn.2d 882, 891-92, 735 P.2d 64 (1987). And the proper way to deal with this issue is to instruct the jury that it may consider evidence of the defendant's intoxication in deciding whether the defendant acted with the requisite mental state. Coates, 107 Wn.2d at 891-92; see also 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.10, at 220-22 (2d ed. 1994) (WPIC).
A defendant is entitled to a voluntary intoxication jury instruction when: (1) the crime charged includes a mental state; (2) there is substantial evidence of drinking; and (3) there is evidence that the drinking affected the defendant's ability to form the requisite intent or mental state. State v. Kruger, 116 Wn. App. 685, 691, 67 P.3d 1147, review denied, 150 Wn.2d 1024 (2003). "Put another way, 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). But simply showing that the defendant has been drinking is insufficient to warrant a voluntary intoxication jury instruction. Gabryschak, 83 Wn. App. at 253.
Although Velcota argues otherwise, the record does not reflect substantial evidence of his drinking. Velcota testified that before committing the assaults he had one drink of "mixed wine and sparkling water." RP (Aug. 23, 2006) at 151. Velcota testified that after returning home from assaulting Alexander he did not have time for a drink. And on cross-examination, Velcota denied being intoxicated. Velcota said, "No. I wasn't intoxicated at all because when I went to the hospital — you people should have the results of the hospital. They didn't have enough — I wasn't intoxicated." RP (Aug. 23, 2006) at 166.
Velcota testified that he had the bottle of wine in his hand because he did not know who was at the door. It was "just reflex." RP (Aug. 23, 2006) at 157.
Therefore, the evidence in its totality was insufficient to instruct the jury on the voluntary intoxication defense. See State v. Finley, 97 Wn. App. 129, 135-36, 982 P.2d 681 (1999), review denied, 139 Wn.2d 1027 (2000); Gabryschak, 83 Wn. App. at 253-55; but see State v. Rice, 102 Wn.2d 120, 122-23, 683 P.2d 199 (1984); Kruger, 116 Wn. App. at 691-92. And Velcota's defense counsel was not ineffective for failing to present a voluntary intoxication defense.
B. Failure to Present a Diminished Capacity Defense
Second, Velcota argues that the jury could have inferred from the evidence that his PTSD interfered with his ability to form intent. After all, this court stated that "PTSD is recognized within the scientific and psychiatric communities and can affect the intent of the actor resulting in diminished capacity." State v. Bottrell, 103 Wn. App. 706, 715, 14 P.3d 164 (2000), review denied, 143 Wn.2d 1020 (2001). Diminished capacity is a mental condition, not amounting to insanity, that prevents a defendant from possessing the requisite mental state necessary to commit the crime charged. Tilton, 149 Wn.2d at 784; State v. Warden, 133 Wn.2d 559, 564, 947 P.2d 708 (1997). And most importantly, "[f]ailure of defense counsel to present a diminished capacity defense where the facts support such a defense has been held to satisfy both prongs of the Strickland test." Tilton, 149 Wn.2d at 784; State v. Thomas, 109 Wn.2d 222, 226-29, 743 P.2d 816 (1987).
Thus, the question is whether, under the facts of this case, a reasonable attorney would have proposed a diminished capacity jury instruction. See Kruger, 116 Wn. App. at 693. Here, intent (or lack thereof) appeared to be the focus of the defense, especially after Dr. Dutro's testimony and after the trial court refused to instruct the jury as to self-defense. But Velcota's counsel never proposed any jury instructions regarding a diminished capacity defense. And so the trial court did not instruct the jury that it could consider Velcota's PTSD in determining whether he had the capacity to form the intent to assault Officer Iversen. See 11 WPIC 18.20, at 224-25.
We note that Velcota's argument regarding his PTSD applies only to the third degree assault of a law enforcement officer. There is no evidence that any of the events before the police arrived "triggered" an extreme physiological, psychological and/or emotional response from Velcota.
In fact, Dr. Dutro's testimony regarding Velcota's PTSD may have been sufficient to instruct the jury on Velcota's diminished capacity defense for his third degree assault of Officer Iversen.
A defendant is entitled to have a diminished capacity jury instruction "whenever there is substantial evidence of such a condition and such evidence logically and reasonably connects the defendant's alleged mental condition with the inability to possess the required level of culpability to commit the crime charged." State v. Griffin, 100 Wn.2d 417, 419, 670 P.2d 265 (1983); see also Finley, 97 Wn. App. at 134.
Nevertheless, it is clear that Velcota's counsel abandoned the diminished capacity defense. After all, Velcota never claimed or testified that he was in a disassociative state before the struggle with Officer Iversen. Instead, Velcota agreed with the State that he "blacked out" only after the struggle. RP (Aug. 23, 2006) at 161. And by his own testimony, he did not remember what happened after he "blacked out." RP (Aug. 23, 2006) at 161. But Velcota remembered what happened before he "blacked out." RP (Aug. 23, 2006) at 161. In fact, Velcota specifically denied that he ever assaulted Officer Iversen. According to Velcota, Officer Iversen "grabbed" the window screen, "came on" him, and "fought" him. RP (Aug. 23, 2006) at 161.
In closing argument, Velcota's counsel argued that no assault occurred. Had Velcota's counsel sought to present the diminished capacity defense, he would have been forced to ask the jury to disbelieve Velcota's testimony about Officer Iversen being the first aggressor. Faced with this choice, it is likely that counsel's decision to abandon the diminished capacity defense was strategic. And because an ineffective assistance of counsel claim cannot be based on legitimate trial strategy or tactics, Velcota's argument fails.
II. Elements of Second Degree Assault
Velcota argues that the State's information was constitutionally deficient because it failed to allege an essential element of second degree assault. In a related argument, Velcota argues that the "to convict" instruction omitted an essential element of second degree assault. Taken together, Velcota claims that the phrase "not amounting to assault in the first degree" under RCW 9A.36.021(1) and the phrase "not amounting to assault in the first or second degree" under RCW 9A.36.031(1) require the State to disprove assault in the first or second degree. Br. of Appellant at 14-15.
A defendant may challenge the sufficiency of a charging document for the first time on appeal. State v. Kjorsvik, 117 Wn.2d 93, 107-08, 812 P.2d 86 (1991).
"[D]ue process requires the State to prove every element of the charged crime beyond a reasonable doubt." State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005).
But in State v. Keend, 140 Wn. App. 858, 872 P.3d 1268 (2007), we held that the phrase "not amounting to assault in the first degree" under RCW 9A.36.021(1) does not function as an essential element of second degree assault. We now hold that the phrase "not amounting to assault in the first or second degree" under RCW 9A.36.031(1) does not function as an essential element of third degree assault. Therefore, the State properly submitted all elements of the crime to the jury for a finding of guilt beyond a reasonable doubt.
III. Separation of Powers Doctrine
Velcota argues that the judiciary has violated the separation of powers doctrine by defining common law assault. Specifically, Velcota asks us to revisit this court's recent opinion in State v. Chavez, 134 Wn. App. 657, 142 P.3d 1110 (2006), review granted, 160 Wn.2d 1021 (2007). But given Velcota's argument, we find no basis to revisit or overturn this court's holding in Chavez.
Affirmed.
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.
HUNT, J. and PENOYAR, J., concur.