                                                                              FILED 

                                                                        JULY 24, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )          No. 30644-5-111
                                              )
                       Respondent,            )
                                              )
                v.                            )
                                              )
GARY ENGELSTAD, Jr.,                          )          UNPUBLISHED OPINION
                                              )
                      Appellant.              )

      KORSMO, J. - Gary Englestad, Jr., challenges his convictions for second degree

theft and second degree malicious mischief, arguing that the court should have given a

Carter 1instruction although none was requested. We conclude that neither the trial judge

nor defense counsel erred, and affirm the convictions.



                                          FACTS

      The charges were filed after Mr. Engelstad and two others were caught dismantling

a 1957 Federal Crane at the Big Foot mining claim; they did not own the crane or the


       1   Carter v. Kentucky, 450 U.S. 288, 303, 101 S. Ct. 1112,67 L. Ed. 2d 241 (1981).
No. 30644-5-111
State v. Engelstad, Jr.


mining c1aim. 2 The men intended to recycle the crane as scrap. Mr. Engelstad alone

proceeded to jury trial in the Kittitas County Superior Court after the co-defendants

resolved their cases.

       Mr. Engelstad, who has an extensive felony criminal history, did not testify. His

counsel did not seek, and the trial court did not give, an instruction telling the jury it

should draw no adverse inference from Mr. Engelstad's decision not to testify.

       The jury convicted Mr. Engelstad as charged. After the court imposed a standard

range sentence, he timely appealed to this court.

                                         ANALYSIS

       This appeal presents two related questions concerning the lack of a Carter

instruction - whether (1) the trial court was required to give the instruction sua sponte,

and (2) defense counsel provided ineffective assistance of counsel by not seeking the

instruction. We answer both questions "no."

       Necessity for Instruction

       In Carter v. Kentucky, 450 U.S. at 303, the United States Supreme Court held that,

upon request, a jury must be instructed that it can draw no adverse inference from a

defendant's failure to testify. Mr. Engelstad argues that Carter thus imposes a duty on




       2The claim owner, Mr. Bradshaw, testified that he named the claim for the
legendary Big Foot who was "still running around." Report of Proceedings at 116.
                                               2

No. 30644-5-III
State v. Engelstad, Jr.


the trial court to give an instruction whenever a defendant does not testify. As noted

previously, we disagree.

       Many constitutional rights stand in tension with other constitutional rights. The

right to counsel in criminal cases is in conflict with the right to self-representation. The

Fifth Amendment privilege against self-incrimination is in contrast to the defendant's

Sixth Amendment right to testify and to present witnesses. E.g., State v. Thomas, 128

Wn.2d 553,556-57,910 P.2d 475 (1996). Many of these rights can be exercised only to

the exclusion of another right. Because of this fact, trial courts tread carefully in

inquiring about defense decisions at trial. A case on point is State v. Russ, 93 Wn. App.

241,969 P.2d 106 (1998).

       There the defendant did not testify, but argued on appeal that he had wanted to do

so and that the trial court erred by not conducting a colloquy to assess his apparent waiver

ofthe right to testify. Id. at 244. This court, analogizing to the treatment of several other
                                                                                                I
constitutional rights, concluded that it was not appropriate for the trial court to engage in   i
                                                                                                i
a colloquy with the defendant. Id. at 247. The Thomas court likewise recognized that it         I
would be "ill-advised" to intrude upon the defense's trial strategy by inquiring about

which rights were to be exercised. 128 Wn.2d at 560.
                                                                                                I
       If it is "ill-advised" to inquire about the defendant's decision, we believe it also     !
                                                                                                i

would be very ill-advised to sua sponte give an instruction calling the jury's attention to     ,
                                                                                                i
                                                                                                ~

the defendant's decision not to testify. Carter only mandated use of the instruction when       1
                                                                                                1
                                              3
                                                t
                                                                                                1
                                                                                                I
                                                                                                I
                                                                                                r
                                                                                                f
No.30644-5-III 

State v. Engelstad, Jr. 



requested by the defendant. It did not require the instruction in all cases. 3 It is better

practice to always inquire of defense counsel, outside the presence of the jury, if the

defense desires a Carter instruction. However, the trial court is not required to inquire

and can rely upon the failure to submit such an instruction as an expression that the

defense does not want the instruction to highlight the defendant's decision not to testify.

       We conclude that the trial court had no duty to give a Carter instruction where one

was not requested by the defense.

       Effective Assistance ofCounsel

       Mr. Engelstad alternatively argues that his counsel failed to provide effective

assistance when he did not request a Carter instruction. Like the decision whether or not

to testify, this was a tactical choice rather than a failure of counsel.

       Well settled standards govern the ineffective assistance of counsel claim. An

attorney's failure to perform consistent with the standards of the profession will require a

new trial when the client has been prejudiced by counsel's failure. State v. McFarland,

127 Wn.2d 322, 334-35, 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, 689-91, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts evaluate counsel's performance


       3 This fact is one reason why we disagree with Mr. Engelstad's argument that the
absence of a Carter instruction is structural error. We also note that the Ninth Circuit has
rejected the argument. United States v. Soto, 519 F .3d 927 (9th Cir. 2008).
                                              4
No.30644-5-III 

State v. Engelstad, Jr. 



using a two-prong test that requires determination whether or not (1) counsel's performance

failed to meet a standard of reasonableness and (2) actual prejudice resulted from counsel's

failures. Id. at 690-92. When a claim can be disposed of on one ground, a reviewing court

need not consider both Strickland prongs. State v. Foster, 140 Wn. App. 266, 273, 166

P.3d 726 (2007).

       Both before and after Carter, divisions of this court have opined that the decision

to seek a "no inference" instruction is a tactical one for defense counsel to make. State v.

Dauenhauer, 103 Wn. App. 373, 376, 12 P.3d 661 (2000); State v. King, 24 Wn. App.

495,500,601 P.2d 982 (1979).4 Mr. Engelstad contends that these decisions are merely

dicta on the issue presented here. Whether that is true or not, the observations in

Dauenhauer and King are consistent with the experiences of this court - although many

defense counsel seek a Carter instruction when appropriate, not all do so, and many who

decline such instructions do so for the tactical reason of not highlighting the defendant's

decision to not testify. That approach may be appropriate in some cases such as when the

defense is able to launch a strong attack on the prosecutor's case. There are many

reasons why the defense might prefer to have the jury focus on the State and its burden of

proof rather than being reminded that the defendant did not testify.

       4 At issue in Dauenhauer was the trial court's decision to sua sponte give a Carter
instruction. This court rejected the defendant's argument that it was error to give the
instruction without a defense request. lO3 Wn. App. at 376-77. In King the court
concluded counsel was not ineffective for failing to offer a pre-Carter "no inference"
instruction. 24 Wn. App. at 500.
                                             5
No. 30644-5-111
State v. Engelstad, Jr.


       Accordingly, we conclude that the decision not to use a Carter instruction often is

a tactical choice of counsel. In the absence of strong evidence to the contrary, the mere

failure to request such an instruction is not a basis for finding counsel failed the first

prong of the Strickland test. On the facts of this case, we conclude that there was no

evidence that defense counsel failed to perform to the standards of the profession. The

ineffective assistance argument thus necessarily fails without need to discuss the

prejudice prong of Strickland.

       Affirmed.

       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.




WE CONCUR: 





                                               6

