                                                                        FILED
                                                                     AUGUST 14, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )        No. 35268-4-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
ROBERT A. TALLY,                               )        UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       KORSMO, J. — Robert Tally appeals his conviction for second degree assault,

arguing both instructional error and ineffective assistance of counsel. Because he has not

established that there was error, we affirm.

                                          FACTS

       Mr. Tally, a resident of Oregon at the time of this incident in 2015, attended a

custody hearing in the Spokane County Superior Court. At issue was the custody of his

two children by his former wife, Sara White. Ms. White had been married to Jamie
No. 35268-4-III
State v. Tally


White since 2009. Mr. Tally was accompanied to the hearing by his girlfriend, Jean

Matson. Mr. Tally, a victim of childhood abuse, had spent his youth in the Oregon foster

care system. He had a long-standing diagnosis of posttraumatic stress disorder (PTSD).

       Mr. White left the building to add money to his parking meter. Soon thereafter,

Mr. Tally stepped outside the court building to smoke a cigarette. The two men came

into contact and a confrontation ensued. Varying descriptions of the event were

presented at trial.

       Mr. White later testified that as he walked back towards the juvenile court

building, Mr. Tally exited, and the men silently approached each other. Mr. Tally

appeared confrontational; Mr. White said “I’m not doing this with you” as he passed, and

the next thing he knew, he was regaining consciousness, bleeding from his ear and nose,

with scrapes from the pavement on his face, hands, and knees. He was treated at

Deaconess Hospital and diagnosed with a broken nose.

       A witness described an “animated conversation” between the two men, noting that

Mr. Tally “was doing most of the talking.” The witness observed that Mr. White tried to

walk away, but Mr. Tally delivered a “sucker punch” to Mr. White’s head, and Mr. White

“fell on the ground like a sack of potatoes and didn’t move.” Report of Proceedings (RP)

at 152-153. Other witnesses similarly described seeing the two men approach each other

and seeing Mr. Tally strike Mr. White.



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         Ms. Matson testified that she saw Mr. White with a key chain dangling from his

hand as he approached Mr. Tally. Tally defensively pushed White away from him into

the bay doors outside the juvenile building and turned to leave. Mr. White then grabbed

Mr. Tally by the shoulder and raised his hand. Tally responded immediately by turning

and defensively striking White in the face.

         Mr. Tally testified that he went outside to smoke when he saw Mr. White coming

from the vicinity of Tally’s automobile. Fearing that something may have occurred, he

walked toward White and told White not to mess with him. The two men made and

maintained eye contact, with Tally noticing that something was dangling from White’s

hand. Tally told White not to do anything, but then he saw Mr. White’s shoulder

“flinch.” Anticipating an attack, he stepped inside of White’s path, grabbed him by the

shirt, and threw him into the building. He then started walking to his car after telling

White he should not have messed with him. White got up, went after Tally, and put his

hand on Tally’s shoulder. Tally punched White in the face and he fell into the curb.

Tally then continued to his car and drove, over the objections of witnesses, back to

Oregon.

         The prosecutor filed a charge of second degree assault. Later, a charge of felony

harassment was filed against Mr. Tally for allegedly threatening to shoot his former

wife’s attorney in the dependency action. The two charges were consolidated for jury

trial.

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       In light of the assertion of self-defense, the prosecutor moved in limine to exclude

mention of PTSD at trial. Mr. Tally replied in his pretrial motion brief:

       One of the defenses being presented is self-defense. . . . The defendant has
       a long-standing diagnosis of PTSD and anxiety, and has been granted an
       accommodation for a therapy animal during trial. The defendant is not
       offering a defense of diminished capacity or insanity, which would require
       expert testimony and certain disclosures to the State. . . . Because the jury
       must put itself in the mind of the defendant, . . . the jurors are allowed to
       hear testimony from the defendant as to his exact state of mind at the time
       of the assault. The defense is not asserting a lack of capacity to form
       criminal intent, rather, we are simply asserting the century-old staple of the
       law that the jury must evaluate a self-defense claim from the shoes of the
       defendant.

Clerk’s Papers at 23-24. The trial court largely granted this motion, but did allow Tally

to state and explain his feelings about the incident.

       The defense offered instructions relating to the law of self-defense. The State

proposed a “first aggressor” instruction in response. The court allowed the first aggressor

instruction over defense objection. The court also instructed the jury on inferior degree

offenses of third and fourth degree assault, and the included offense of nonfelony

harassment.

       The defense argued the assault charge on the basis of self-defense. The jury

disagreed and convicted Mr. Tally of second degree assault as charged. The jury

acquitted Mr. Tally of both harassment charges. The matter was set over for sentencing.




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       At defense request, the trial court granted Mr. Tally a mitigated exceptional

sentence of 7 days in jail, with credit for 7 days served. The court found that the

defendant’s PTSD left him unable to conform to the requirements of the law. Mr. Tally

then appealed from the conviction. The State did not cross appeal. A panel considered

the matter without hearing argument.

                                         ANALYSIS

       This appeal challenges the giving of the first aggressor instruction and trial

counsel’s alleged ineffectiveness in failing to pursue a diminished capacity defense. We

address the arguments in the order listed.

       First Aggressor Instruction

       Mr. Tally argues that the court erred in giving the instruction. Since Mr. Tally

admittedly was the first to engage in the physical altercation, the instruction was both

necessary and proper. There was no error.

       Self-defense is only available to respond to the unlawful use of force. State v. Riley,

137 Wn.2d 904, 911, 976 P.2d 624 (1999). Thus, one who provokes another to lawfully act

in self-defense is not responding to unlawful force and has no right of self-defense. Id. at

909. Juries must often sort out which party, if any, was justified in using force and which

was not. “Where there is credible evidence from which a jury can reasonably determine that

the defendant provoked the need to act in self-defense, an aggressor instruction is

appropriate.” Id. at 909-910. If the evidence is in conflict about who precipitated an

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State v. Tally


encounter, the instruction is appropriate. State v. Davis, 119 Wn.2d 657, 665-666, 835 P.2d

1039 (1992). Nonetheless, because an erroneous aggressor instruction effectively misstates

the State’s burden of proof, the error seldom will be harmless. Riley, 137 Wn.2d at 910 n.2;

State v. Stark, 158 Wn. App. 952, 960-961, 244 P.3d 433 (2010).

       Given that Mr. Tally began the altercation by throwing Mr. White into a building,

the jury could certainly find that Tally created the need for White to respond; the

subsequent tossing of White to the ground that broke White’s nose was, in the defense

view of the case, justified as self-defense. To make that determination, the jury needed to

decide the propriety of Tally starting the fight in the first instance. Without having the

aggressor instruction, it could not properly apply the law to the facts of this incident.

       The trial judge correctly recognized that the instruction was appropriate. Riley,

137 Wn.2d at 909-910; Davis, 119 Wn.2d at 665-666. The court did not err by

instructing the jury on the first aggressor doctrine.

       Ineffective Assistance of Counsel

       Mr. Tally also argues that his trial counsel erred in not pursuing a diminished

capacity defense. The record simply does not support this claim.

       Very well settled principles apply to this argument. An attorney must perform to

the standards of the profession; failure to live up to those standards will require a new

trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127

Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts

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State v. Tally


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, 689-691, 104 S. Ct.

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

using a two-prong test that requires courts to determine 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 690-692. When a claim can be disposed of on one ground,

a reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster,

140 Wn. App. 266, 273, 166 P.3d 726 (2007).

       A diminished capacity defense is appropriate “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). A defendant is entitled to a diminished capacity instruction if (1) the crime

charged includes a particular mental state as an element, (2) the defendant presents

evidence of a mental disorder, and (3) expert testimony logically and reasonably connects

the defendant’s alleged mental condition with the asserted inability to form the mental

state required for the crime charged. State v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d

626 (2001). The testimony of an expert witness is necessary to present a diminished

capacity defense. State v. Stumpf, 64 Wn. App. 522, 526, 827 P.2d 294 (1992).



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       Mr. Tally faults his trial attorney for not pursuing a diminished capacity defense.

This argument is curious for a couple of reasons. Primarily, it fails because the record

does not establish any basis for instructing on diminished capacity. There was no expert

testimony indicating that Mr. Tally suffered from a mental disease or defect that prevented

him from forming the mental state—intent—necessary to commit assault. Even though

the record suggested that Mr. Tally suffered from PTSD, that fact itself simply is

insufficient to establish diminished capacity. There also needed to be expert testimony

linking that condition to an inability to intend his actions. Since that evidence was

lacking, there was no basis for instructing on diminished capacity and counsel could not

have erred.

       The argument also is curious because it flies directly in the face of the defendant’s

own testimony that he acted as he did because he needed to protect himself. During the

fight he demonstrated that he acted intentionally; he further backed that position up in his

testimony. He perceived a threat from Mr. White and purposefully acted to protect

himself. Mr. Tally’s testimony simply did not support a diminished capacity defense.

       Because Mr. Tally has not demonstrated that his counsel erred in pursuing self-

defense over a diminished capacity theory, his claim of ineffective assistance necessarily

fails. We therefore need not address whether he demonstrated prejudice. Strickland, 466

U.S. at 697.



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      The conviction is 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.


                                                       Kors�

WE CONCUR:



      Fearing,�




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