                                                                                            FILED
                                                                                      COURT Or APPEALS
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                                                                                      4.




    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                         DIVISION II


STATE OF WASHINGTON,                                               No. 42577 7 II
                                                                             - -


                                Respondent,

         V.




NICHOLAS MICHAEL RICKMAN,                                    UNPUBLISHED OPINION




         JOHANSON A. .
                  J.
                   C           Nicholas Michael Rickman appeals his conviction for first degree
                                 —


assault with a deadly weapon. He claims that the trial court violated his right to a public trial and

the public's right to open court records by sealing jury questionnaires without a Bone Club'
                                                                                       -
analysis, and that his trial counsel provided ineffective assistance by failing to ask for a lesser

included instruction of second    degree assault. Because sealing juror questionnaires does not

constitute a courtroom closure impinging Rickman's public trial rights under the facts here, and

because Rickman failed to demonstrate trial counsel's deficient performance,we affirm.

                                              FACTS.


         On April 7,2009, Rickman, Jacob Diaz, Alex Leslie, and Daniel Cedarland left a Tacoma

bar intoxicated, and Diaz drove the group back to Gig Harbor. On the way home, Rickman and

Diaz began arguing. Diaz pulled over and unsuccessfully attempted to expel Rickman from the


 State   v. Bone Club, 128
                 -           Wn. d 254, 906 P. d 325 (
                               2             2       1995).
No. 42577 7 II
          - -




car. After Diaz resumed driving, he and Rickman continued to argue. Diaz, who was getting

angrier, told Rickman that he would "kick his ass" and "fuck him up."9 Verbatim Report of

Proceedings (VRP) at 1418; 6A VRP              at 776.   Diaz parked in Rickman's driveway, and both

exited and met at the front of the      car.    The short confrontation .ended when Rickman stabbed


Diaz four times with      a    knife, inflicting life -
                                                      threatening injuries. The trauma surgeon who

operated on Diaz testified that Diaz nearly died from his injuries.

         The State charged Rickman with attempted first degree murder with a deadly weapon.
Later, the State amended the information to add a charge for first degree assault with a deadly
weapon. At trial, potential jurors filled out juror questionnaires. While discussing the use of

jury questionnaires, the trial court reminded the parties that the courts do not seal the

questionnaires without a hearing. The record indicates that the parties were given copies of the

completed questionnaires. Prior to the oral portion of voir dire, the parties and the trial court
used    the   questionnaires    to   determine    which      jurors   to   question separately.   The jury

questionnaires were sealed the same day voir dire concluded.
         The record indicates that the courtroom was open during voir dire, because before voir

dire resumed on June 8,2011, the trial court made a comment to the " iewing public"that while
                                                                   v


2 RCW 9A. 2.
      a);
      030(
         1)( 8.
         3 020(
           9A.1
              2 ).
3 RCW 9.
      825.
       94A.

4 RCW 9A. 6.
      c).
      011(
         1)(
         3
RCW 9.
    825.
     94A.
6
    The record does not indicate that the trial court ordered the jury questionnaires sealed; however,
they were filed under seal on June 8, 2011. The record indicates that voir dire concluded on the
morning of June 8,2011.


                                                         2
     No. 42577 7 II
               - -



     they were "
               more than welcome [to]remain,"
                                            they needed " o stay pretty much where"they were
                                                        t

     already sitting. 1 VRP at 137. Later in the afternoon, the trial court addressed "all of you"and

     stated, S] is much more accessible this afternoon now that the jury has been selected." 1
             "[ eating

     VRP at 163. The court also reminded the public to turn off phones and refrain from talking.

             Leslie testified that after the group left the bar in Diaz's car, Rickman started poking and

     nudging Diaz. Leslie testified that, in response to the poking, Diaz appeared "enraged"and told

     Rickman, I
              "    am   going   to kick your   ass   when   we   get   to your house."   4 VRP at 490, 526.

     Cedarland testified that Rickman teased Diaz and they bickered all the way home. Diaz stated
I-

     that he was going to kick Rickman's ass, and Rickman responded indifferently, We'll see."6A
                                                                                   "

     VRP at 776.


             Diaz testified that he planned to confront Rickman when they arrived at Rickman's

     residence, but Diaz only intended to deliver a "simple butt whooping." 9 VRP at 1334. Diaz

     explained that when they met at the front of the car, Rickman immediately stabbed him with no

     warning.

             Rickman did not deny stabbing Diaz, but claimed that it was in self defense. Rickman
                                                                                 -

     testified that Diaz immediately threw Rickman on the hood of the car and severely beat him to

     the point that Rickman feared for his life. Rickman also asserted that he knew Diaz "carrie[d]
     out his threats"because he was aware that Diaz had threatened and assaulted another individual

     on a previous occasion. 10 VRP at 1513. Rickman stated that he punched Diaz several times on
     Diaz's side, and it was not until he saw Diaz bleeding that Rickman realized he had stabbed

     Diaz.   Rickman stated that while he knew he had his keys and knife in hand, he did not

     remember.opening or using the knife. He also stated that he yelled for someone to call 911, and


                                                            C
No. 42577 7 II
          - -



ran into his house for bandages. Rickman testified that he usually carries a knife and does not

know where the knife used in the stabbing is.

       The jury acquitted Rickman of attempted first degree murder and convicted him of first

degree assault with a deadly weapon. Rickman timely appeals.
                                          ANALYSIS


                                   I.RIGHT TO PUBLIC TRIAL


       Rickman argues that the trial court violated his right to a public trial by sealing the jury

questionnaires without conducting a Bone Club analysis. We disagree because sealing the jury
                                         -

questionnaires here did not constitute a courtroom closure violating Rickman's public trial rights.
                           A. Standards of Review and Rules of Law


       Whether a violation of the public trial right exists is a question of law we review de novo.

State v. Slert, 169 Wn. App. 766, 771 72, 282 P. d 101 (2012),
                                      -        3             petition for review granted in

part,No. 87844 7 Wash. April 8,2013). State and federal constitutions guarantee the right to a
               - (
public trial. See U. . CONST. amend. VI; WASH. CONST. art. I,section 22. Before a trial court
                   S
can close the courtroom to the public, it must engage in a five-
                                                               factor Bone Club analysis in order
                                                                           -

to determine if closure is appropriate. State v. Bone Club, 128 Wn. d 254, 258 59,906 P. d 325
                                                      -           2            -       2

1995).    But sealing juror questionnaires does not require a Bone Club analysis when the
                                                                   -

questionnaires are used as screening tools, the oral portion of voir dire occurs in open court, and
the public has the opportunity to observe the proceedings. State v. Beskurt, 176 Wn. d 441, 447,
                                                                                   2
293 P. d 1159 (2013).
     3




                                                 L!
No.42577 7 II
         - -



                                                   B. Analysis

          Beskurt controls       our   analysis. Here, the parties agreed to use jury questionnaires to

identify which jurors to individually question in open court outside the presence of other venire

members. While the questionnaires were sealed on the same day as the conclusion of voir dire,

as in Beskurt, everything else "that was required to be done in open court was done."Beskurt,

176 Wn. d at 447 48.
      2          -                Though voir dire was not transcribed, the record indicates that the.

courtroom     was   open.        Therefore, as in Beskurt, the sealing of juror questionnaires did not

constitute a courtroom closure, no Bone Club analysis was necessary, and the trial court did not
                                        -

infringe Rickman's article I,section 22 rights to a public trial.
                                       II.RIGHT TO OPEN COURT RECORDs


          Rickman also argues that the trial court violated the public's right to open court records

under article I,section 10 of the Washington Constitution by sealing the juror questionnaires and

therefore, he is entitled to a new trial. Again,we disagree.

          When an appellant seeks a new trial to remedy an alleged violation of the public's article

I, section 10 rights        to    open records —without        also demonstrating an article I, section 22

violationthe
          —         alleged   error    does not warrant   a    retrial.   Beskurt, 176 Wn. d at 445, 458 59.
                                                                                         2               -

Thus, even if there were a violation of the public's right to open court records, Rickman is not

entitled to a new trial because he failed to demonstrate a violation of his article. I,section 22

rights.    See   Beskurt,     176 Wn. d at 445, 458 59.
                                    2               -               Therefore, Rickman cannot demonstrate

reversible error necessitating a new trial.




                                                          k,
No. 42577 7 II
          - -



                                Ill. INEFFECTIVE ASSISTANCE OF COUNSEL


         Rickman argues that he was entitled to a lesser included second degree assault instruction

because the evidence shows that he did not stab Diaz with intent to cause great bodily harm. He

claims that failure to seek such an instruction was objectively unreasonable because (1)it

precluded the jurors from considering a "less drastic alternative" to the charged crimes; ( )
                                                                                          2

requesting the instruction would not have interfered with Rickman's self -
                                                                         defense claim; and (3)

the disparity between the penalties for first degree assault (93 to 123 months) and second degree

assault (3 to 9    months) is    so   significant. Even if Rickman was entitled to a lesser included
instruction, defense counsel did not provide ineffective assistance because defense counsel

reasonably pursued an all or-
                          - nothing trial strategy.

         To succeed on an ineffective assistance of counsel claim, the defendant must show that

  counsel's conduct             deficient; and ( the defendant
                                               2)                was   prejudiced   as a   result. Strickland
1)                      was



v.   Washington,   466 U. . 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Counsel is
                        S


presumed to have acted competently unless shown otherwise. State v. Thomas, 109 Wn. d 222,
                                                                                  2
226, 743 P. d 816 (1987).In order to show prejudice, the defendant must demonstrate that it is .
          2

reasonably probable that "but for counsel's unprofessional errors, the result of the proceeding
would have been different."Strickland, 466 U. .at 694. If the ineffective assistance claim fails
                                            S

on one prong, we " eed not address the other."State v. Staten, 60 Wn. App. 163, 171, 802 P. d
                 n                                                                        2
1384 ( 1991),review denied, 117 Wn. d 1011 ( 1991). Performance is not deficient when
                                  2




7
    Rickman cites to this court's State v. Grier, 150 Wn. App. 619, 208 P. d 1221 (2009),
                                                                         3              vacated,
State v. Grier, 171 Wn. d 17, 246 P. d 1260 (2011),
                      2            3               adhered to in part on remand, 168 Wn.
App. 635, 278 P. d 225 (2012), support this claim. Our Supreme Court, however, overturned
                 3             to
that decision. Grier, 171 Wn. d 17.
                            2
No.42577 7 II
         - -



counsel's conduct can be characterized as legitimate trial strategy or tactics. State v. Grier, 171

Wn. d 17, 33, 246 P. d 1260 (2011),
  2                3              adhered to in part on remand, 168 Wn. App. 635, 278 P. d
                                                                                       3

225 (2012).

       Counsel's failure to propose a lesser included instruction could be considered part of

counsel's legitimate trial strategy. See Grier, 171 Wn. d at 43. Further, when counsel pursues
                                                      2

an all or-
       - nothing strategy by not requesting lesser included instructions, he does not necessarily

provide ineffective assistance because the defendant has more to lose if he is convicted, but more

to gain if acquitted. Grier, 171 Wn.2d at 39. Trial counsel's failure to request a lesser included
instruction may, however, constitute ineffective assistance if the failure was objectively

unreasonable.   State   v.   Hassan, 151 Wn. App. 209, 218 219, 211 P. d 441 ( 2009). The
                                                       .   -         3


defendant can rebut the presumption of effective assistance where there is no conceivable

legitimate tactic explaining counsel's performance. State v. Reichenbach, 153 Wn. d 126, 130,
                                                                                2

101 P. d 80 (2004).
     3

        In Grier,the defendant claimed self -
                                            defense as one of her defense theories for a shooting
                                                    '

that resulted from a fight. 171 42 43. Our Supreme Court held that acquittal was a real
                                   -                                             -
possibility for her self -
                         defense claim, albeit a remote one; 'because the victim took both of
                                        "
Grier's guns, pointed a gun at Grier's son earlier that evening, and had a history of gang
involvement and violent tendencies about which Grier knew. Grier, 171 Wn. d at 43. Also,the
                                                                        2

victim had earlier assaulted her son, splitting her son's lip. Grier, 171 Wn. d at. 43. At trial,
                                                                            2

defense counsel had proposed lesser included instructions for first and second degree

manslaughter, but   later withdrew them with Grier's assent.    Grier, 171 Wn. d at 26 27. The
                                                                             2         -




                                                 7
No. 42577 7 II
          - -



court determined that under these facts, though risky, an all or nothing approach was at least
                                                       "

conceivably a legitimate strategy to secure an acquittal."Grier, 171 Wn. d at 42.
                                                                       2

                                     A. Less Drastic Alternative


        Rickman claims that failure to seek a lesser included instruction was objectively

unreasonable because it precluded the jurors from considering a "less drastic alternative" to the

charged   crimes. Br. of    Appellant   at 14.   Even assuming without deciding that Rickman was

entitled to a second degree assault instruction, defense counsel's failure to request the lesser

included instruction did not constitute deficient performance because defense counsel could have

been pursuing a legitimate all or-
                               - nothing trial strategy.

        Defense counsel does not deficiently perform simply by not requesting a lesser included

instruction on a client's behalf every time the client is entitled to one. See Grier, 171 Wn. d at
                                                                                            2

42. The question is not whether the defendant is entitled to an instruction, but rather, whether

defense counsel was ineffective in forgoing such instructions. Grier, 171 Wn. d at 42.
                                                                            2

        It is plausible that defense counsel did not request the instruction because his strategy was

to pursue   an   acquittal,not a lesser conviction. The record and case law support such a strategy.

For example, the victim in Grier threatened Grier's son by threatening him with a gun, and here,
Diaz   verbally    threatened Rickman    multiple   times.   171 Wn. d at 21.
                                                                   2            The victim in Grier


assaulted Grier's son, and here, Diaz attempted to physically expel Rickman from the car. 171

Wn. d
  2       at 22.   Grier knew that the victim was involved in a gang and had violent tendencies,

Grier, 171 Wn. d at 28; here, Rickman knew that Diaz had violent tendencies because Diaz
             2

previously threatened and assaulted another individual.. Rickman also claimed to have feared

for his life when Diaz was beating him. Therefore, Rickman's self -
                                                                  defense claim is as feasible


                                                     8
No. 42577 7 II
          - -




as that in Grier, in which the court determined that counsel's failure to pursue a lesser included

instruction   was   part of   a   legitimate   trial strategy to achieve   outright acquittal. Accordingly,

defense counsel's failure to request a lesser included instruction did not constitute deficient

performance.

                                   B. Applicability of Self-
                                                           Defense Claim

       Rickman argues that because his self -
                                            defense claim would have been applicable to both

first and second degree assault, 'his defense counsel's failure to request the lesser included

instruction was deficient. This is incorrect.


        While Rickman does not cite authority for his reliance on this particular factor, he

appears to have derived it from State v. Ward, 125 Wn. App. 243, 249, 104 P. d 670 (2004),
                                                                           3

abrogated by Grier, 171 Wn. d 17. In Ward, Division One of this Court considered: (1)
                          2                                                          the
difference between penalties for the greater and lesser offenses; ( )whether the defendant's
                                                                  2

defense was applicable to both the greater and lesser offenses; and (3)whether self -
                                                                                    defense as an
all or-
    - nothing    approach     was    reasonable.     125 Wn.   App. at 249 50. But our Supreme Court
                                                                           -


abrogated Ward in Grier, stating that Ward's multi-
                                                  factor test that Rickman advances here "tip[ ]
                                                                                             s
the scales in favor of deficient performance" and "distorts the Strickland standard." Grier, 171

Wn. d at 38. Therefore, Rickman's argument, which relies on the Ward factors, is misplaced.
  2

                                          C. Disparity in Punishment

        Rickman also argues that counsel's failure to seek a lesser included instruction was

objectively unreasonable because Rickman's self -
                                                defense claim applied to both first degree and

second degree assault, and the difference in.
                                            punishment between first degree and second degree




                                                         E
No. 42577 7 II
          - -




assault is " xtreme."Br. of Appellant at 16. Again, he appears to incorrectly rely on another of
           e

the Ward factors.


       As discussed above, our Supreme Court determined that the disparity in penalties

between greater and lesser offenses does not automatically render deficient a defense counsel's

failure to request a lesser included instruction. Grier, 171 Wn. d at 39. Specifically, the court
                                                               2

noted that lesser offenses always carry lighter sentences and thus unfairly tipped the scales in

favor of deficient performance. Grier, 171 Wn. d at 38 39. Because our Supreme Court has
                                             2         -

invalidated this theory, Rickman does not demonstrate that defense counsel's failure to seek a

lesser included instruction constituted deficient performance.

       Under Grier, Rickman fails to demonstrate that defense counsel provided deficient

performance.      Because Rickman's ineffective assistance claim fails under the deficient

performance prong of Strickland, we do not need to reach the prejudice prong.
       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 in accordance with RCW
040,
2.6.it is so ordered.
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