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    IN THE COURT OF APPEALS OF THE STATE OF WASHING                                                      ON:5pl1,

                                             DIVISION II

 STATE OF WASHINGTON,                                                         No. 45582 -0 -II


                                    Respondent,


        V.

                                                                     UNPUBLISHED OPINION
 STEPHEN ADAM YOUNG,




       MAXA, J. —       Stephen Young appeals his convictions for attempted first degree murder,

first and second degree assault, and witness tampering. The convictions related to an incident in

which Young fired shots at a moving vehicle and a separate incident in which he shot a friend in

the back of the head. We hold that ( 1) the trial court erred by admitting evidence that Young was

a " skinhead"   and   had   certain white supremacist   tattoos, but the   error was   harmless; ( 2)   Young' s

counsel did not provide ineffective assistance of counsel by failing to request a limiting

instruction on the white supremacist evidence because the decision not to request a limiting

instruction may have been tactical; ( 3) sufficient evidence supported the premeditation element


of attempted murder; and ( 4) none of the issues Young raises in his statement of additional

grounds ( SAG) have merit. Accordingly, we affirm Young' s convictions.

                                                  FACTS


        In the fall of 2010, Young was in a romantic relationship with Deanna Treptow. On

October 27, Treptow spent the day with an African-American man, Marlon Green. That
45582 -0 -II



evening, Treptow and Green met up with Green' s friends, Heather Martin and David Moore.

The four went to the house of another friend, Riki Perasso. While at the house, Perasso received

a phone call from an unidentified caller asking whether Treptow and Green were sleeping

together. Green took the phone from Perasso and engaged in a heated conversation with the


caller.




          That same evening, Carrie Taylor -Edwards picked up Young in her car. Young asked

Taylor -Edwards to take him to Perasso' s house. Young then told her to pull over.and turn off

her headlights. Young got out of the car and engaged in a heated conversation on his mobile

phone.




           Green, Treptow, Moore, and Martin eventually left Perasso' s house in a white sport

utility   vehicle (   SUV),   with Martin driving.. As Martin drove away, gunshots were fired at the

SUV, hitting Martin and grazing Green. Taylor -Edwards heard gunshots coming from Young' s

location outside her car and saw an SUV drive by. Young got back into Taylor -Edwards'

vehicle and told her to follow the SUV, but Taylor -Edwards refused and drove Young to a motel

where some of his friends were staying. At the.motel, Young told his friends he had just " shot at

some girls,"    and Taylor -Edwards confirmed that Young had shot at some people. Report of

Proceedings ( RP) at 1676.


           Young began acting paranoid and brandishing a handgun. Later that night, Young left

the motel with two friends, Bryan Branch and Brandon Crowe, to go to another friend' s house.


They then left that house to drive to yet another friend' s house. Branch was driving, Crowe was

in the front passenger seat, and Young was in the backseat directly behind Branch.




                                                       2
45582- 0- 11




         Young began to interrogate Branch as to why Branch was taking him to the house. He

began to insinuate that Branch somehow was involved with Green and was lying to cover up that

involvement. At one point, Young told Branch to take an abrupt turn off the main road. Branch

did so, but his car stalled as he approached a stop sign. Young then reached forward from the

back seat, put his gun up to the back of Branch' s head, and shot him. Young then shot him

again,   apparently   after   repositioning the   gun at   the base of Branch' s   skull.   He pointed the gun at


Crowe and threatened him, and Crowe ran from the vehicle into a nearby house. Branch was

seriously injured, but survived.

         Police apprehended Young and later found his handgun. Forensic evidence connected

the handgun to both shootings.


         The State charged Young with one count of attempted first degree murder for his attack

on Branch; five counts of first degree assault for his attacks on Branch, Green, Martin, Moore,


and Treptow; one count of second degree assault for his threat against Crowe; two counts of


unlawful possession of a firearm; one count of witness intimidation for later threatening Taylor -

Edwards; and one count of witness tampering for later sending a letter to a friend asking him to

fabricate an alibi for the night of the shootings. The firearm possession charges were decided by

bench trial, and the trial court found Young guilty of both counts .

          The remaining charges were tried to a jury in October 2012, but the trial ended in a

mistrial. A second jury trial took place in September 2013.




1 There is no indication that Young is appealing these convictions.
                                                            3
45582 -0 -II



          A small part of the State' s case at the second trial involved the production of evidence


that   Young    was   a"   skinhead,"   was tattooed with a skinhead or white supremacist symbol, and


had tattoos of a swastika, lightning bolts, and a portrait of Adolph Hitler. According to trial

testimony, Young did not associate with African-Americans. The evidence also showed that

Young was angry that his girlfriend might be sleeping with an African-American maxi.

          The jury found Young guilty of all counts except witness intimidation. Young appeals

his convictions.

                                                        ANALYSIS


A.        ADMISSION OF " WHITE SUPREMACIST" EVIDENCE


          Young argues that the trial court erred by admitting evidence that Young was a white

supremacist and a member of a skinhead group because that evidence was inadmissible under ER

404( b). We agree, but hold that this error was harmless.


           1.   Legal Principles


          Under ER 404( b), "[ e] vidence of other crimes, wrongs, or acts is not admissible to prove


the    character of a person     in   order   to   show action   in conformity therewith." However, this


evidence may be admissible " for other purposes, such as proof of motive, opportunity, intent,

preparation, plan,     knowledge,       identity,    or absence of mistake or accident."   ER 404( b) must be


read in conjunction with ER 403, which requires the trial to court to exercise its discretion in


weighing the probative value of the evidence against its prejudicial effect. State v. Gunderson,

181 Wn.2d 916, 923, 337 P. 3d 1090 ( 2014).


          We review the trial court' s interpretation of ER 404( b) de novo as a matter of law. Id. at


922. If the trial court interprets the rule correctly, we review the decision to admit evidence


                                                                 w
45582 -0 -II



under ER 404( b) for an abuse of discretion. Id. A trial court abuses its discretion when its


decision is manifestly unreasonable or based on untenable grounds. Id..

         2.      Admissibility Under ER 404(b)

         Young argues that the trial court erred in admitting evidence suggesting that Young was a

white supremacist —        specifically, evidence that Young was a skinhead and had tattoos of

skinhead or white supremacist symbols and                 Hitler —because its probative value was low and the


potential for undue prejudice was high. We agree.


         The trial court stated that the white supremacist evidence was relevant to establish


Young' s motive for the first shooting. According to the State, the evidence was relevant because

Young' s white supremacist beliefs motivated him to shoot an African-American man who may

have been sleeping        with    his   girlfriend.   Under ER 404( b), prior act evidence can be admissible to


prove motive. See, e. g., State v. Yarbrough, 151 Wn. App. 66, 83- 84, 210 P. 3d 1029 ( 2009)

 holding that gang affiliation is admissible under ER 404( b) to show motive for the murder of a

rival   gang   member).     Motive is an " impulse, desire, or any other moving power which causes an

individual to     act."   State   v.   Powell, 126 Wn.2d 244, 259, 893 P. 2d 615 ( 1995).          Evidence of


motive    is   admissible even when         it is   a not an element of   the   charged crime.   Yarbrough, 151 Wn.


App. at 83.

         Here, the State presented minimal evidence that being a skinhead or having certain white

supremacist tattoos created a motive for Young' s attempt to assault Green. The only evidence

explaining what it meant to be a skinhead was an answer to a single question from one of

Young' s acquaintances:




                                                               5
45582 -0 -II




        Q: And did you, in fact, recall testifying previously that he is like a Skinhead, or
        something, and that he didn' t kick it with black people?

        A: They don' t kick it with black people, and yeah, so that' s, you know, what I
        know a Skinhead to be, I guess.


RP at 1594. The State presented no evidence about what it meant to have tattoos of white


supremacist symbols, swastikas, or Hitler, although a jury could infer that those tattoos indicated

that Young believed that white people were superior to African-American people. This evidence

was sufficient to establish that Young did not associate with African-American people, and the

State also produced some direct evidence of that fact.


        However, choosing not to associate with African-American people or believing that white

people are superior to African-American people is quite different than having a motive to assault

an African-American person. To be relevant, evidence that Young was a skinhead or had certain

tattoos had to show that Young had some animus toward African-American people in general.

The State produced no such evidence.


        The jury could infer from other evidence that Young had some animus toward African-

American people. Young may have used the " n word" to describe Green. 2 And there was some

evidence suggesting that Young was particularly angry that his girlfriend might be sleeping with

an African-American. But there was no evidence connecting this animus with being a skinhead

or having tattoos of white supremacist symbols, swastikas, or Hitler.

         The State cites State v. Monschke, which discusses white supremacists as an identifiable


group   with a shared set of beliefs and customs   that include standing up for the   white race.   133




z One witness said in a pretrial statement that Young used the " n word" to describe Green, but at
    did not remember making that statement.
trial
45582 -0 -II



Wn.     App.      313; 330, 135 P. 3d 566 ( 2006). However, in that case the State presented expert


testimony that explained what it meant to be a white supremacist. Id. at 326- 27, 330. Here, the

State presented no such testimony.

             Although we review evidentiary decisions under ER 404(b) for an abuse of discretion,

here the State produced no evidence connecting skinhead affiliation or white supremacist tattoos

to Young' s motive for attempting to assault Green. Accordingly, we hold that the trial court

erred in admitting white supremacist evidence under ER 404( b). 3
             3.     Harmless Error


             A trial court' s error in admitting evidence in violation of ER 404( b) may be harmless.

State   v.   Gower, 179 Wn.2d 851, 854, 321 P. 3d 1178 ( 2014).            Such an evidentiary error is not of

constitutional magnitude. Id.; State v. Binh Thach, 126 Wn. App. 297, 311, 106 P. 3d 782 ( 2005).

Under the nonconstitutional harmless error standard, an error is grounds for reversal only if it has

prejudiced        the defendant.   See Gower, 179 Wn.2d at 854. The test is whether there is a


reasonable probability that the outcome of the trial would have been materially affected absent

the error. Id.


             Here, there was extensive admissible evidence that demonstrated Young' s guilt on the

charges. Young had Taylor -Edwards drive him to a location where Green was present. Taylor -

Edwards heard gunshots coming from where Young stood outside her car as an SUV passed.

Taylor -Edwards and Young himself told friends that Young had fired shots at some people.




3
    Young also argues that the trial court erred in not excluding the white supremacist evidence
under    ER 403.       Because   we   hold that the trial   court erred under   ER 404( b), we do not address ER
403.

                                                             VA
45582 -0 -II



There   also was   strong   evidence of motive — Young believed that Green was sleeping with his

girlfriend. There also was eyewitness testimony that Young shot Branch in the back of the head.

Given this evidence, there is no indication that admission of the white supremacist evidence


materially affected the trial outcome.

        Moreover, the prejudice of admitting the white supremacist evidence was minimal for the

same reason    that the   evidence was   inadmissible —there   was no evidence regarding what it meant

to be a skinhead or a white supremacist. The fact that Young was a skinhead and had various

tattoos may have had vague negative connotations. But the State presented no evidence that

would have caused a jury to believe that being a skinhead or having those tattoos made Young

more likely to commit crimes. In addition, the State did not emphasize the white supremacist

evidence. At closing argument, the State did not even mention Young' s affiliations or tattoos.

In the overall context of the extensive evidence presented that Young was responsible for the two

crimes, the white supremacist evidence was insignificant.


         The evidence shows that there is no reasonable probability that the outcome of the trial

would have been materially affected if the trial court had not admitted the white supremacist

evidence. Therefore, we hold that the trial court' s error was harmless.


B.       INEFFECTIVE ASSISTANCE OF COUNSEL


         Young claims that he received ineffective assistance of counsel because once the white

supremacist evidence was admitted, his trial counsel did not request a limiting instruction

regarding the jury' s consideration of that evidence. We disagree.

         The Sixth Amendment to the United States Constitution and article I, section 22 of the


Washington Constitution        guarantee a criminal   defendant'   s right   to   effective assistance of
45582 -0 -II




counsel.   State   v.   Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 ( 2011).           Where a criminal defendant


has been denied effective assistance of counsel, we will reverse any resulting conviction and .

remand for a new trial. See id.


        We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on such a claim, the defendant must show that


 1) defense counsel' s representation was deficient, and ( 2) the deficient representation prejudiced

the defendant. Grier, 171 Wn.2d            at   32- 33.   We presume counsel' s performance was not


deficient. Id.    at   33.    The defendant may rebut this presumption by showing that the performance

was not a matter of legitimate trial strategy or tactics, and fell below an objective standard of

reasonableness. Id..


        When the trial          court admits evidence under      ER 404( b),   the defendant generally is entitled

to a limiting instruction stating that the evidence cannot be used to show the defendant' s bad

character.     State   v.    Gresham, 173 Wn.2d 405, 420, 269 P. 3d 207 ( 2012). A failure to request


such an instruction may constitute deficient performance where the lack of the instruction

presents the jury with an inaccurate or incomplete picture of the law. See State v. Thomas, 109

Wn.2d 222, 228, 743 P. 2d 816 ( 1987); see also State v. Cienfuegos, 144 Wn.2d 222, 229- 30, 25


P. 3d 1011 ( 2001).


        However, the " failure to request a limiting instruction for evidence admitted under ER

404(b) may be a legitimate tactical decision not to reemphasize damaging evidence."

Yarbrough, 151 Wn. App. at 90. Young' s attorney may have made a calculated tactical decision

not to draw the jury' s attention to the limited evidence of Young' s white supremacist beliefs and

affiliation. At the end of Young' s first trial, his counsel made it clear that he was concerned


                                                             6
45582 -0 -II




about highlighting unfavorable evidence with instructions. Because the State did not emphasize

the white supremacist evidence at the second trial, it may have been sensible for Young' s

attorney to decide not to remind the jury of that evidence with a limiting instruction. Young

claims that the failure to request a limiting instruction was inadvertent, but he points to nothing

in the record that supports this claim.


             We hold that Young has failed to rebut the presumption that his counsel' s performance

was not deficient. Therefore, we hold that Young has not shown that he received ineffective

assistance of counsel.




C.           SUFFICIENCY OF EVIDENCE


             Young argues that his conviction for attempted first degree murder of Branch was based

on insufficient evidence because the State did not offer evidence supporting the necessary

element of premeditation. We disagree.


             A criminal defendant challenging the sufficiency of the State' s evidence on appeal admits

the truth of that evidence, and we draw all reasonable inferences therefrom in the State' s favor.

State   v.   Homan, 181 Wn.2d 102, 106, 330 P. 3d 182 ( 2014).             Evidence is legally sufficient to

support a guilty verdict if any rational trier of fact, viewing the evidence in the light most

favorable to the State, could find the elements of the charged crime beyond a reasonable doubt.


State v. Owens, 180 Wn.2d 90, 99, 323 P. 3d 1030 ( 2014).


             To convict a defendant of attempted first degree murder, the State must prove beyond a


reasonable doubt that the defendant acted with premeditated intent to kill another. RCW

9A. 32. 030( 1)(   a);   State   V.   Barajas, 143 Wn.   App.   24, 36, 177 P. 3d 106 ( 2007). "[ P] remeditation


is ` the deliberate formation of and reflection upon the intent to take a human life' and involves



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45582 -0 -II



the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a

period of   time, however       short.' "   State v. Pirtle, 127 Wn.2d 628, 644, 904 P. 2d 245 ( 1995)


 quoting State   v.   Gentry,    125 Wn. 2d 570, 597- 98, 888 P. 2d 1105 ( 1995)).   Premeditation may be

inferred from circumstantial evidence as long as substantial evidence supports the inference.

Pirtle, 127 Wn.2d at 643; Barajas, 143 Wn. App. at 36. Particularly probative evidence of

premeditation includes evidence of a motive to kill and evidence of a manner of killing

suggesting prior reflection or planning. Pirtle, 127 Wn.2d at 644.

        Here, the State presented extensive circumstantial evidence indicating that Young acted

with premeditated intent. Testimony showed that before and during the car ride, Young

suspected that Branch was helping Green retaliate against him. This was strong motive

evidence.




        As to the manner of killing, the evidence showed that Young told Branch to turn off onto

a side street shortly before shooting him. This evidence supports an inference that Young

planned to shoot him in a less conspicuous place. Further, testimony and photographs showed

that Young shot Branch in the head twice from behind, repositioning the gun after the first shot

to aim more directly at the center of his head. Evidence that the defendant shot a defenseless

victim from behind multiple times strongly suggests premeditation. State v. Notaro, 161 Wn.

App. 654, 672, 255 P: 3d 774 ( 2011).

        Taken together and viewed in the light most favorable to the State, this circumstantial


evidence shows that Young formed a deliberate intent to kill Branch and acted on that intent.

We should hold that this evidence was sufficient to prove premeditation and support Young' s

conviction for attempted first degree murder.



                                                          11
45582 -0 -II




D.       SAG ISSUES


                Other Suspect Evidence


         Young argues that the trial court erred by ruling that he could not cross- examine Green

regarding an altercation in which Green participated just before the first shooting in order to

show that someone other than Young had a motive to shoot Green. We disagree.

         Young intended to cross- examine Green about the altercation to support his theory that

somebody other than Young may have been responsible for the shooting. Other suspect

evidence is only admissible if the proponent can show some nexus " tending to connect such

other person with the actual commission of the crime charged. ,4 State v. Franklin, 180 Wn.2d

371, 379, 325 P. 3d 159 ( 2014) ( emphasis           added).       Evidence that another person had a motive to


commit    the   crime -   or even      had   a motive and   the opportunity to   commit   it —is insufficient to


show such a nexus.        State   v.   Russell, 125 Wn.2d 24, 77, 882 P. 2d 747 ( 1994). We review a trial


court' s exclusion of evidence for an abuse of discretion. Franklin, 180 Wn.2d at 377 n.2.


         Here, Young sought to elicit evidence that another participant in the altercation had a

motive, and perhaps an opportunity, to shoot at Green. But without some other evidence tending

to show that another individual in fact shot at Green or was otherwise involved in the crime, the


evidence Young sought was inadmissible to support an other suspect theory.




4
    Young focuses on the relevance of the evidence, arguing that it was at least minimally
probative of his guilt. But the problem with attenuated other suspect evidence is not that it is
irrelevant, but that its potential to confuse the issues and increase the length and complexity of
the trial greatly exceeds its probative value. See Franklin, 180 Wn.2d at 380; State v. Mak, 105
Wn.2d 692, 716, 718 P. 2d 407 ( 1986).

                                                              12
45582 -0 -II




           Young seems also to argue that Green' s lifestyle was such that many people wanted to

harm him and might have been responsible for the shooting. But our Supreme Court in State v.

Mak cautioned specifically against admission of such generalized motive evidence:

                I] f evidence of motive alone upon the part of other persons were admissible ...
           in a case involving the killing of a man who had led an active and aggressive life it
           might easily be possible for the defendant to produce evidence tending to show that
           hundreds     of other persons          had   some motive or animus against   the deceased; [   and]

           a great many trial days might be consumed in the pursuit of inquiries which could
           not be expected to lead to any satisfactory conclusion."

105 Wn.2d 692, 717, 718 P. 2d 407 ( 1986) (                 quoting People v. Mendez, 193 Cal. 39, 52, 223 P. 65

 1924)) (    emphasis    in   original).
                                             This potential for increasing the burdens on the trial court greatly

outweighs the probative value of such evidence. See State v. Maupin, 128 Wn.2d 918, 927, 913


P. 2d 808 ( 1996).


           We hold that the trial court did not abuse its discretion by sustaining the State' s objection

and disallowing cross- examination regarding the altercation and production of generalized other

suspect evidence.



           2.      Prosecutorial Misconduct


           Young argues that the prosecutor committed prejudicial misconduct and thereby denied

him   a   fair trial in two    ways:   by presenting a mobile phone to a witness, and by stating during

closing    argument     that   a   defense   argument was a " red    herring."   We disagree and hold that neither


instance rose to the level of misconduct.


           To prevail on a claim .of prosecutorial misconduct, a defendant must show that in the


context of the record and all of the circumstances of the trial, the prosecutor' s conduct was both


improper        and prejudicial.     State   v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011).          We




                                                                13
45582 -0 -II



examine the prosecutor' s conduct and whether prejudice resulted therefrom by considering the

evidence presented, the context of the total argument, the issues in the case, the evidence


addressed in the argument, and the instructions given to the jury. State v. Monday, 171 Wn.2d

667, 675, 257 P. 3d 551 ( 2011) Misconduct is prejudicial if there is a substantial likelihood it


affected the verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012).

               a.   Mobile Phone


        Young argues that the prosecutor committed misconduct by questioning a witness about

the contents of the witness' s mobile phone. We do not consider this issue because' it depends on


evidence not in the record.


        Young claims that he was never allowed to examine the contents of the phone, and

therefore its production and use during direct examination was improper. But Young does not

cite to any part of the record showing that he was unable to examine the phone or that its

contents were not made otherwise discoverable. Because this claim requires consideration of


evidence not    in the   appellate record, we   do   not consider   it.' State v. Alvarado, 164 Wn.2d 556,


569, 192 P. 3d 345 ( 2008).     If Young wishes to raise this claim, the appropriate means is a

personal restraint petition. Id.


               b.   Characterization of Defense Argument as a " Red Herring"

        Young argues that the prosecutor also committed misconduct by referring to a defense

argument as a " red herring" during closing argument. We disagree.



5
 Young also claims on the same grounds that the trial court erred in admitting the evidence
under CrR 4. 7 and ER 404( b). These arguments, to the extent they are distinct, similarly depend
on the discovery -related evidence not in our record. Young also fails to develop the arguments,
making them too vague for review. See RAP 10. 10.
                                                         14
45582 -0 -II



        During closing, the prosecutor discussed the defense argument that the State had failed to

produce at     trial a police   investigator   who conducted      important interviews. The prosecutor


referred to this argument as a red herring because another investigator who testified at trial had

conducted      the interviews.    The   prosecutor      implored the jury   not   to " fall for it." RP at 2635.



Young did not object to this line of argument at the time.

        It is improper for a prosecutor to impugn defense counsel' s integrity during closing

argument.      Thorgerson, 172 Wn.2d           at   451. But where a defendant fails to object to the


prosecutor' s conduct, he waives his right to later claim that it was misconduct unless that


conduct was so flagrant and ill -intentioned that an instruction could not have cured the resulting

prejudice. Emery, 174 Wn.2d at 760- 61.

        Describing an argument as a red herring figuratively indicates that the argument is

intended to mislead the jury by directing its attention to something unimportant. While such a

description might impugn defense counsel' s integrity under certain circumstances, in the context

of the argument in this case it did not. The prosecutor simply was arguing to the jury that the

defense' s focus on the investigator who did not testify was misguided, and that the jury should

not consider the investigator' s absence meaningful. In context, this was not so flagrant or ill -


intentioned as to produce incurable prejudice. Therefore, we hold that Young waived his claim

of misconduct.



        3.      Ineffective Assistance of Counsel


        Young argues that both his trial and appellate counsels provided ineffective assistance.

We disagree.




                                                             15
45582 -0 -II




        As noted above, we review claims of ineffective assistance of counsel de novo. Sutherby,

165 Wn.2d      at       883. To prevail on such a claim, the defendant must.show that ( 1) defense


counsel' s representation was deficient, and ( 2) the deficient representation prejudiced the

defendant. Grier, 171 Wn.2d.at 32- 33.


                   a.      Trial Counsel


         Young argues that his trial counsel provided ineffective assistance because he did not

impeach two witnesses with prior inconsistent statements offered as testimony in Young' s first

trial. As Young notes, a witness may be impeached on cross- examination with prior inconsistent

testimony. State           v.   Garland, 169 Wn.   App.   869, 885, 282 P. 3d 1137 ( 2012). But we presume


that decisions regarding the extent of cross- examination are strategic. See State v. Stockman, 70

Wn.2d 941, 945, 425 P. 2d 898 ( 1967). "[ E] ven a lame cross- examination will seldom, if ever,


amount   to    a   Sixth Amendment         violation."   In re Pers. Restraint ofPirtle, 136 Wn.2d 467, 489,

965 P. 2d 593 ( 1998).


         Young' s attorney cross- examined both witnesses robustly, and impeached them with

other prior inconsistencies. Young may disagree with his counsel' s decisions not to use certain

prior testimony to impeach the witnesses' credibility, but this does not elevate those decisions to

the level of deficient performance. We hold that Young' s trial counsel provided effective

assistance with regard to cross- examining these witnesses.

                   b.      Appellate Counsel


         Young argues that his appellate counsel provided ineffective assistance because he did

not raise in the main appeal the " obviously appealable constitutional issues" Young raises in his

SAG. SAG           at   30. However, " the    exercise of independent judgment in deciding which issues


                                                             10
45582 -0 -II




may be the basis of a successful appeal is at the heart of the attorney' s role in our legal process."

In   re   Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P. 2d 835 ( 1994). Therefore, for a


defendant to prevail on an ineffective assistance of counsel claim for failure to raise certain


issues on appeal, he must show that the issues not raised had merit. In re Pers. Restraint of

Dalluge, 152 Wn.2d 772, 777- 78, 100 P. 3d 279 ( 2004).


            As discussed above, the issues Young raises in his SAG either lack merit or are not

properly reviewable on direct appeal. Therefore, his appellate attorney' s strategic decision not to

raise them was neither deficient nor prejudicial performance. We hold that Young' s appellate

counsel provided effective assistance.




            We affirm Young' s convictions.

            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.




                                                          MAXA, J.




We concur:




 Vi JRSWICK, P. J.




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