        Fl LE                                                         j
        IN CLERKS OFFICE
 SUPREME COURT, STAlE OF VINIINCJTQN                                  l
      DATE    OCT 2 3 2014
"/1za~,  CHIEF;JUS
                   c:n;?  .


          IN THE SUPREME COURT OF THE STATE OF WASHINGTON



     STATE OF WASHINGTON,                       )                                                    -- - -   -

                                                )       No. 88234-7
                                 Respondent,    )
                                                )
              v.                                )       EnBanc
                                                )
     MARIO HUMPHRIES,                           )
                                                )
                                 Petitioner.    )
                                                )       Filed         OCT 2 3 2014


              C. JOHNSON, J.-This case concerns whether an attorney can stipulate to

     an element of a charged crime over his client's express objection and whether, in

     this case, any error was waived by the defendant. In addition, we must decide

     whether defense counsel's failure to request a limiting instruction constituted
                                                                                                                  (;   ..
     ineffective assistance of counsel. The Court of Appeals, in a two to one opinion,

     affirmed the defendant's convictions for assault in the second degree with a

     ·firearm enhancement and first degree unlawful possession of a firearm. We reverse

     the Court of Appeals ·as to the unlawful possession of a firearm conviction and

     affirm as to the assault conviction. 1


               1
              It is unclear whether and in what context Humphries is challenging his second degree
     assault conviction. The Court of Appeals stated that Humphries did not challenge the assault
State v. Humphries (Mario), No. 88234-7


                             FACTS AND PROCEDURAL HISTORY

       In the early morning hours of February 7, 2010, Officer David Ellithorpe

was patrolling the streets of Seattle in a marked police cruiser. At 1:00 a.m.,

Ellithorpe saw two men emerge from an alley. One of the men raised his hand and

pointed at the officer; Ellithorpe heard a gunshot and saw a muzzle flash in the

man's hand. Less than two minutes later, after Ellithorpe had radioed in the

incident, another officer apprehended two men. Ellithorpe immediately recognized

both men, one of whom was the petitioner, Mario Humphries. The officers arrested

Humphries and searched the area but failed to recover a gun or any shell casings.

       The State charged Humphries with second and third degree assault, as well

as first degree unlawful possession of a firearm based on multiple juvenile

convictions for robbery that rendered him ineligible to possess a firearm. On the

first day of trial, the parties informed the court that they had agreed to stipulate that

Humphries had been convicted of a "serious offense." Defense counsel indicated

he did not want the jury to hear about the underlying convictions but informed the

court that Humphries disagreed with the stipulation. Both the defense attorney and

the trial judge discussed the matter and agreed that stipulating to an element was a




conviction, but it appears that he is challenging it in the context of his ineffective assistance of
counsel claim. State v. Humphries, 170 Wn. App. 777, 796, 285 P.3d 917 (2012), review
granted, 177 Wn.2d 1007, 300 P.3d 416 (2013).


                                                  2
State v. Humphries (Mario), No. 88234-7


tactical decision that did not require the defendant's consent. 2 Accordingly, just

before the State rested, the stipulation was read to the jury. The stipulation

conceded that Humphries "had previously been convicted of a serious offense,"

that he "had previously received written notice that he was ineligible to possess a

firearm," and that he "knew that he could not possess a firearm." Clerk's Papers at

12. The stipulation had been signed by the defense attorney and prosecutor but not

by Humphries. No limiting instruction was given or requested to accompany the

stipulation. After both sides had presented their cases and before the jury began

deliberations, defense counsel indicated that Humphries would sign the stipulation,

which he did. The stipulation was filed with the court, but is unclear whether the

stipulation was also admitted into evidence.

       The jury found Humphries guilty of all three crimes and a firearm

enhancement. At sentencing, Humphries's attorney moved for a new trial based on

ineffective assistance of counsel, stating that he "should have asked the Court to

enter into a limi.ting instruction/' but the trial court denied the motion. Verbatim



       2
          Specifically, the following exchange occurred between the court and defense counsel:
        "[DEFENSE COUNSEL]: I had a long discussion with Mr. Humphries trying to explain
the defense strategy, not wanting that to come in.
        "He unfortunately doesn't see that. However, I don't think I need his consent when it
comes to defense strategy for him to be in agreement with me (inaudible) stipulation so -
        "[THE COURT]: That's correct. So you are agreeing to the stipulation?
        "[DEFENSE COUNSEL]: Yes, your Honor."
Tr. of Proceedings (Oct. 12, 201 0) at 5-6.


                                               3
State v. Humphries (Mario), No. 88234-7


Report ofProceedings(Jan. 6, 2011) at 3. The court vacated the third degree

assault conviction and imposed 106 months of confinement: 70 months for second

degree assault with an additional 36 months for a firearm enhancement and 75

months for unlawful possession of a firearm (to run concurrently).

       On appeal, Humphries argued that his constitutional rights were violated

when the stipulation was read to the jury over his express objection and that he

received ineffective assistance of counsel. The Court of Appeals issued a split

decision affirming the convictions. The majority opinion did not address the

validity of the stipulation but rather held that Humphries had either waived or

abandoned the issue in eventually signing the stipulation. State v. Humphries, 170

\Vn. App. 777, 798, 285 P.3d 917 (2012). The dissenting opinion argued that entry

of the stipulation over Humphries's express objection violated the Fifth and Sixth

Amendments to the United States Constitution. Humphries, 170 Wn. App. at 801-

02 (Dwyer, J., dissenting). Humphries sought, and we granted, discretionary

review. State v. Humphries, 177 Wn.2d 1007, 300 P.3d 416 (2013).

                                          ANALYSIS

              a. Propriety of a Stipulation over the Defendant's Objection

       Humphries argues that the decision to enter a stipulation at trial is

exclusively within the defendant's discretion. Accordingly, Humphries argues that

before a stipulation can be entered, a court must engage in a colloquy with the

                                             4
    State v. Humphries (Mario), No. 88234-7


    defendant to ensure that the defendant is entering the stipulation lmowingly and

    voluntarily. The State argues that whether to enter a stipulation is a strategic

    decision to be made by counsel and that the defendant's express objection is

    irrelevant. This is an issue of first impression in Washington. We hold that

    although the decision to stipulate an element of the crime does not generally

    require a colloquy on the record with the defendant, such a decision may not be

1   made over the defendant's known and express objection.

           The decision to stipulate to an element implicates more than merely trial

    tactics. Under the due process clauses of the Fifth and Fourteenth Amendments to

    the United States Constitution, a crirninal defendant has the right to require the

    State prove every element constituting the crime. In re Winship, 397 U.S. 358, 364,

    90S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also Mathews v. United States, 485

    U.S. 58, 64-65, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). This right is anchored in

    principles of due process existing under the Fifth and Fourteenth Amendments. 3

    When the parties stipulate to the facts that establish an element of the charged

    crime, the jury need not find the existence of that element, and the stipulation



           3
               Some cases "anchor" their decisions on the Sixth Amendment right to jury trial. We
    pre'fcr to characterize the right as a due process right emanating from the Fifth and Fourteenth
    Amendments. Other cases identify the constitutional right as emanating from confrontation rights
    under the Sixth.Amendment, which, in those cases, may be accurate. See United States v.
    Wiilicans, 632 F.3d 129, 132 (4th Cir. 2011). That analysis is also consistent with principles of
    due process existing elsewhere.


                                                    5
State v. Humphries (Mario), No. 88234-7


therefore constitutes a waiver of the "right to a jury trial on that element," United

States v. Mason, 85 F.3d 471,472 (lOth Cir. 1996), as well as the right to require

the State prove .that element beyond a reasonable doubt, Sullivan v. Louisiana, 508

U.S. 275,278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).

       Although stipulations implicate the defendant's constitutional rights,

generally stipulations do not need to be accompanied by a colloquy on the record

between the defendant and the trial court. In United States v. Ferreboeuf, 632 F.2d

832 (9th Cir. 1980), the Ninth Circuit addressed this issue. There, the defendant's

attorney signed a stipulation to two elements of a charged crime. On appeal, the

defendant argued that stipulations such as this required a trial court to personally

question the defendant to determine voluntariness, as is required for the entry of

guilty pleas. The court rejected this rule, recognizing a difference between pleading

guilty, which requires such a colloquy, and stipulating to crucial facts. As the court

reasoned, requiring trial courts to question defendants personally as to the

voluntariness of every stipulation would "needlessly delay and confuse the conduct

of a typical trial." P'erreboeuf, 632 F.2d at 836. Instead, the court held that when a

stipulation is agreed to by the defendant's attorney in the presence of the

defendant, the trial court may presume that the defendant consents, unless the

defendant objects at the time the stipulation is made. Ferreboeuf, 632 F.2d at 836.




                                           6
    State v. Humphries (Mario), No. 88234-7


    We agree with this analysis, and here we are dealing with a situation where

    Humphries did object.

           Although courts can presume a defendant consents to a stipulation, this

    presumption disappears where the defendant expressly objects. In United States v.

    Williams, 632 F.3d 129 (4th Cir. 2011), for example, the defendant was charged

    with conspiracy to possess heroin with the intentto distribute for receiving a

~   package of heroin in the mail. The prosecution sought to enter a stipulation under

    which the defendant admitted that the contents of the package tested positive for

    heroin in lieu of having the forensic chemist testify. Williams, 632 F.3d at 131. The

    defendant refused to sign the stipulation, but the court allowed the defense counsel

    to sign it over the defendant's objection, and the stipulation was read to the jury.

    Williams, 632 F.3d at 131. On appeal, the Fourth Circuit held that the trial court

    erred in admitting the stipulation over the defendant's objection because doing so

    violated his Sixth Amendment right to confront witnesses. Williams, 632 F.3d at

    132. The court also noted that the "stipulation may also be grounds for a violation

    of the defendant's right to a jury [trial]." Williams, 632 F.3d at 133 n.2. The result

    recognized that trial courts cannot compel a defendant to enter stipulations to

    elements of a crime where an objection is made .

          .Here, in pleading not guilty, Humphries invoked his due process right to

    require that the State meet its burden of proof as to every element of the crime, a

                                               7
State v. Humphries (Mario), No. 88234-7


proposition that the State does not contest. Humphries was charged with unlawful

possession of a firearm, which makes it a crime for a person to possess or control a

firearm "after having previously been convicted ... of any serious offense." RCW

9.41.040(1)(a). The stipulation established the fact of Humphries's prior serious

offense, thereby conceding an element of the crime. Counsel's stipulation relieved

the State of its burden of proof as to that element. Had Humphries not voiced an

objection, the trial court would have been correct in assuming that he consented to

the stipulation. Because Humphries objected, however, the trial court could not

ar:cept the stipulation and compel Humphries to waive his constitutional rights.

       The State cites several foreign cases for the proposition that counsel has the

authority to stipulate to material facts as a matter of trial tactics. Suppl. Br. of

Resp't at 9-10 (July 16, 2013) (quoting United States v. Thornton, 327 F.3d 268,

270 (3d Cir. 2003); Poole v. United States, 832 F.2d 561 (11th Cir. 1987); United

States v. Schoenhut, 576 F.2d 1010, 1019 n.9 (3d Cir. 1978)). In none ofthese

cases, however, did the defendant expressly object to the stipulation. In line with

Ferreboeuf~    absent an objection by the defendant, the court may presume that the

defendant consents to the waiver. 4 The State also relies on Old Chiefv. United


       4
          The State also relies on a line of cases that allow an attorney, during closing argument,
to concede guilt on certain counts in order to avoid a guilty verdict on more serious charges.
Suppl. Br. ofResp't at 10-18 (July 16, 2013). The State reasons that if an attorney can concede
guilt to an entire crime during closing argument, he or she should also be able to stipulate to an


                                                 8
State v. Humphries (Mario), No.   88234~7



States,.5l9U.S. 172,117 S. Ct: 644) 136 L. Ed. 2d 574 (1997), to support its

argument that the trial court's acceptance of the stipulation did not violate

Humphries's rights. Old Chief, however, holds only that a trial court abuses its

discretion when it fails to accept a stipulation to a prior conviction upon defense

counsel's request. Old Chief, 519 U.S. at 17 4. It does not hold that a court must

accept the stipulation over the defendant's objection, as is the issue in this case.

·Old Chief is therefore inapplicable to the present case.

      ·. Instead of examining the validity of the stipulation, the Court of Appeals

held that Humphries's subsequent decision to sign the stipulation waived his

objection or, alternatively, abandoned his challenge to the stipulation on appeal.

The Court of Appeals' reasoning is not sustainable.

       Waiver of a constitutional right must be knowing, voluntary, and intelligent.

State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). Here, the trial court

and counsel erroneously told Humphries that his consent to the stipulation was not



------------------
element of a charged crime. None of these cases, however, involved a situation where the
attorney con(~eded guilt during closing argument over the express objection of the defendant, and
they provide no support for the idea that an attorney can. Moreover, even if this were not the
case, an attorney's concession during ·closing argument does not waive any of the defendant's
relevant constitutional rights. The State is still required to bear its burden, present admissible
evidence, and convince a jury of every element of the crime beyond a reasonable doubt.
Similarly, In re Personal Restraint of Stenson, 142 Wn.2d 710, 16 P.3d 1 (2001)-which
concerned the penalty phase of a capital case-is inapplicable, as the State in that case had
already proved the defendant's guilt beyond a reasonable doubt and the defendant had already
been convicted.


                                                9
State v. Humphries (Mario), No. 88234· 7


required. The stipulation was then read to the jury as part of the State's case. It was

not until the State rested and the defense had presented its case that Humphries

signed the stipulation. At that point, the damage was done, and nothing suggests

that Humphries's signature was anything other than forced acquiescence to what

had already occurred. Without something in the record suggesting that he

voluntarily changed his mind, the signature cannot be considered a knowing,

'intelligent, and voluntary waiver of his constitutional rights.

       As the dissent in the Court of Appeals opinion here recognized, even though

the waiver of a constitutional right may be informed by strategic considerations, it

cannot be involuntary. See Humphries, 170 Wn. App. at 804 n.12 (Dwyer, J.,

dissenting). Entering the stipulation as to an element of the crime over

Humphries's known objection would have constituted an involuntary waiver of his

due process right to hold the State to its burden of proof. The trial court erred when

it allowed the stipulation to be read to the jury over Humphries's known objection,

and the record does not indicate that his subsequent signature on the stipulation

constituted an informed and voluntary waiver of his rights once they had been

asserted. 5


----·--------
       5
           We emphasize that we are not holding that a defendant must enter a knowing,
intelligent, and voluntary waiver for a stipulation to be valid, as the dissent argues. Dissent in
part at 5. Nothing in this opinion alters the general procedure for entering a stipulation when the
defendant is silent and his consent validly presumed. Under the facts of this case, however, the


                                                 10
State v. Humphries (Mario), No. 88234-7


       As an alternative ground to affirm, the Court of Appeals held that even if the

trial court erred in accepting the stipulation over Humphries's objection, such an

error was harmless. A•. constitutional error is harmless when there is no reasonable

doubt that any reasonable jury would have reached the same result in the absence

of the error. State v. Frost, 160 Wn.2d 765, 782, 161 P.3d 361 (2007). The Court

of Appeals reasoned that even absent the stipulation, the State was fully prepared

,to and would have presented evidence of Humphries's prio'r serious offense

convictions for robbery. Humphries, 170 Wn. App. at 796. But as Judge Dwyer

correctly noted in the dissent, the State presented absolutely no evidence of

Humphries's prior conviction for a serious offense other than the improperly

admitted stipulation. It is irrelevant that the State "'was fully prepared to present

evidence'" of the prior conviction. Humphries, 170 Wn. App. at 809 (Dwyer, J.,

dissenting) (quoting State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002)).

 Instead, we focus on evidence that was actually admitted at trial, Smith, 148 Wn.2d

 at 13 9, and because no untainted evidence of a prior conviction for a serious




 argument that Humphries's subsequent   signC~:ture   constituted a waiver fails under even the
 simplest waiver analysis.



                                                 11
 State v. Humphries (Mario), No. 88234-7


  offense was admitted at trial, no reasonable jury could have found that element

  proved. 6

                      b. Ineffective Assistance of Counsel

              Humphries also argues that his assault conviction should be reversed

  because he received ineffective assistance of counse1. 7 The Court of Appeals held

  that Humphries failed to show ineffective assistance of counsel. We agree.

·'i·          The defendant has the burden of establishing ineffective assistance of

   counsel. To prevail, the defendant must show that (1) counsel's representation was

   de:ficient, that is, it fell below an objective standard of reasonableness and (2) there

   was prejudice, measured as a reasonable probability that the result of the

   proceeding would have been different. Strickland v. Washington, 466 U.S. 668,



              6
             We disagree with the dissent that because the error in this case involved the exclusion of
   evidence under Old Chief, our harmless error analysis must be altered for this context. Dissent in
   part at 13. The dissent argues that we should embrace a new, unprecedented harmless error test.
   According to the dissent's new analysis, because the stipulation precluded the State from
   introducing any additional evidence, our harmless error analysis must go beyond the evidence
   that the jury heard and be changed to what would likely be produced but for the stipulation. Our
   harmless error analysis has always been focused in reference to evidence before the jury and not
   some hypothetical, "but for" or "inevitable admission" variant that would alter our harmless error
   analysis. What the jury heard is what matters-not what it could have heard.

              7
                 There is an argument that the issue is not before this court. The decision and the briefing
       is a bit muddled on this issue, with general references to convictions, trials, and reversal without
       specifying which conviction is being discussed. Regarding the ineffective assistance of counsel
       claim, Humphries seems to have challenged the assault conviction as based on propensity
       evidence that could affect both convictions. Thus, the Court of Appeals' statement that he did not
       challenge the assault eonviction is overbroad. Moreover, any propensity reasoning would have
       had its genesis in the stipulation, which makes it difficult to separate the two issues.


                                                        12
 State v. Humphries      ~~Jario),   No. 88234-7


 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Judicial review of an

 attorney"s performance is highly deferential, Strickland, 466 U.S. at 689, and such

 performance is not deficient ifit can be considered a legitimate trial tactic, State v.

 llendrickson, 129 Wn.2d 61, 77-78,917 P.2d 563 (1996).

               Here, Humphries argues that because his attorney failed to request an

 instnwtion limiting the jury's consideration ofthe stipulation, the jury was allowed

~;;to   improperly consider Humphries's prior "serious offense" as propensity evidence

 for the assault charge. In order .to prevail on his ineffective assistance of counsel

 claim, Humphries must show that not requesting a limiting instruction fell below
           I      '                                        '




 an objective standard of reasonableness and resulted in prejudice. Where an

 attom.ey does not request a limiting instruction regarding a prior conviction, courts

  have applied a presumption that the omission was a tactical decision to avoid

 reemphasizing prejudicial information. State v. Price, 126 Wn. App. 617, 649, 109

 P.3d 27 (2005); State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000); see

 also Stamps v. Rees, 834 F.2d 1269, 1276 (6th Cir. 1987). Therefore, because we

  presume the action is a reasonable tactical decision, the failure to request a limiting

  instruction under the circumstances cannot establish an ineffective assistance of

  counsel claim.

               Humphries attempts to avoid this presumption by arguing that the prior

  conviction would not have been "reemphasized" if a limiting instruction had been

                                                   13
State v. Humphries (Jvfario), No. 88234-7


 requested at the time the evidence was introduced. This argument, however, splits

 hairs, and although some cases use "reemphasize"-which arguably supports

 ~umphries's   argument-others recognize that the tactic is to avoid giving prior

 convictions "undue attention." 8 Humphries's counsel did not request a limiting

 instruction, and this is presumed to be a reasonable defense tactic. Humphries has

 failed to carry his burden in demonstrating that his counsel's performance was

·".deficient, and his ineffective assistance of counsel claim fails.




 -··-----
       8
         Compare Price, 126 Wn. App. at 649 (using "'reemphasize"' (quoting Barragan, 102
 Wn. App. at 762)), with Rees, 834 F.2d at 1276 (using "undue attention").


                                              14
State v. Humphries (Mario), No. 88234-7


                                      CONCLUSION

       The Court of Appeals is reversed in part and affirmed in part. Humphries's

unlawful possession of a firearm conviction is reversed and remanded for a new

trial. His assault conviction is affirmed.




WE CONCUR:



                                                   ()Yh ~/QP,-;:
                                                   WtprJ.




                                             15
State v. Humphries (Mario)




                                    No. 88234-7



      STEPHENS, J. (dissenting in part)-The critical question in this case is

whether defense counsel can stipulate to a status element of a charged crime over

the defendant's objection. This question turns on the allocation of decision-making

authority between client and counsel-a question courts have grappled with since

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Any

modification of the law in this area must be sensitive to the precedent that has served

as a measure of effective assistance of counsel and the foundation of Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Unfortunately,

the majority does not discuss this precedent. Instead, with minimal analysis, it

concludes that a trial court cannot accept counsel's decision to stipulate to an element

of a charged crime when it knows the defendant disagrees.

      I respectfully dissent. The test of when defense counsel's chosen trial strategy

must yield to the defendant's objection is not, simply, that the defendant's

constitutional rights are directly implicated. Nor does the trial court's knowledge

that the defendant disagrees with his lawyer matter in answering the question of

whether client or counsel holds ultimate decision-making authority on a particular
State v. Humphries (Stephens, J. Dissent in part)




Issue. Because I agree with the trial court below that Humphries's counsel had the

authority to enter into the stipulation despite Humphries's objection, I would affirm.

While I agree with the majority that Humphries did not knowingly, intelligently, and

voluntarily waive his rights in connection with the stipulation, such a waiver was not

required.

        The Decision at Issue Is One of Trial Strategy for Counsel To Make

       Criminal defendants and their counsel often disagree over trial matters,

including what motions to bring, what defense theories to argue, whether to

challenge a juror, and whether to call or cross-examine particular witnesses. It is

therefore well established that counsel must have some decision-making authority,

for "[t]he adversary process could not function effectively if every tactical decision

required client approval." Taylor v. Illinois, 484 U.S. 400, 418, 108 S. Ct. 646, 98

L. Ed. 2d 798 (1988). Countless decisions are made throughout trial. Some require

extemporaneous decision making without opportunity to consult with the defendant.

And, many require a comprehensive understanding of complex criminal law and

procedure "that only trained experts can comprehend their full significance, and an

explanation to any but the most sophisticated client would be futile."            ABA

STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND DEFENSE

FUNCTION std. 4-5.2 cmt. at 202 (3d ed. 1993). The law thus "afford[s] the attorney

a wide latitude and flexibility in his choice of trial psychology and tactics." State v.

Piche, 71 Wn.2d 583,590,430 P.2d 522 (1967); see In rePers. RestraintofStenson,

 142 Wn.2d 710, 733, 16 P.3d 1 (2001). As the United States Supreme Court

                                             -2-
State v. Humphries (Stephens, J. Dissent in part)




succinctly put it, "the lawyer has -    and must have -   full authority to manage the

conduct of the trial." Taylor, 484 U.S. at 418.

       Decisions by counsel have been given effect as to most trial matters, including

scheduling matters, New York v. Hill, 528 U.S. 110, 115, 120 S. Ct. 659, 145 L. Ed.

2d 560 (2000), what arguments to pursue, Jones v. Barnes, 463 U.S. 745, 751, 103

S. Ct. 3308, 77 L. Ed. 2d 987 (1983), what evidentiary objections to raise, I-lenry v.

Mississippi, 379 U.S. 443, 451, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965), and what

agreements to make regarding the admission of evidence, Hill, 528 U.S. at 115

(citing United States v. McGill, 11 F.3d 223, 226-27 (1st Cir. 1993)). Courts have

also recognized that a defendant must accept counsel's decision regarding whether

to forgo cross-examination, Taylor, 484 U.S. at 418, whether to call certain

witnesses, id., whether to request a lesser included offense instruction, State v. Grier,

171 Wn.2d 17, 31-32, 246 P.3d 1260 (2011), whether to admit guilt in the penalty

phase, In re Stenson, 142 Wn.2d at 735-36, and whether to present evidence of

insanity during the penalty phase of a capital case, State v. Cross, 156 Wn.2d 580,

608, 132 P.3d 80 (2006).

       This is not to say the defendant is kept out of the loop; "[a]n attorney

undoubtedly has a duty to consult with the client regarding 'important decisions,'

including questions of overarching defense strategy." Florida v. Nixon, 543 U.S.

175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (quoting Strickland, 466 U.S. at

688). "That obligation, however, does not require counsel to obtain the defendant's

consent to 'every tactical decision."' Id. at 187 (quoting Taylor, 484 U.S. at417-18).

                                             -3-
State v. Humphries (Stephens, J. Dissent in part)




Nor is counsel "obliged to obtain a written waiver or instructions from the defendant

as to each and every turn or direction the accused wants his counsel to take." Piche,

71 Wn.2d at 590. Rather, "an attorney has authority to manage most aspects of the

defense without obtaining his client's approval." Nixon, 543 U.S. at 187.

       While defense counsel has wide latitude over matters of trial strategy, certain

decisions are of such moment that ultimate decision-making authority must reside

with the defendant. These decisions are of such a "fundamental nature" and "so

crucial to the accused's fate" that the accused must make them. ABA STANDARDS

std. 4-5.2 cmt. at 201. They include whether to be present during trial, Taylor, 484

U.S. at 418 n.24, whether to testify, Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct.

2704, 97 L. Ed. 2d 37 (1987), whether to waive the right to counsel, Faretta v.

California, 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), whether to

enter a guilty plea, Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S. Ct. 1245, 16 L. Ed. 2d

314 (1966), whether to agree to an abbreviated prima facie trial, id., whether to waive

the right to a jury trial, Jones, 463 U.S. at 751, and whether to take an appeal, id.

See ABA STANDARDS std. 4-5.2(a), at 199-200 (listing decisions over which the

accused has ultimate decision-making authority).

       The decision to stipulate to a status element of a charged offense does not fall

within the categories of decision making that law and tradition have committed to

the defendant. While this decision touches upon the defendant's right to require the

State prove each element of the crime beyond a reasonable doubt and it waives the

right to a jury trial as to the stipulated element, it has never been deemed tantamount

                                            -4-
State v. Humphries (Stephens, J. Dissent in part)




to a guilty plea. Indeed, courts have been reluctant to find a guilty plea equivalent

under more encompassing factual stipulations. In Nixon, the United States Supreme

Court permitted counsel to concede guilt during the guilt phase of a murder trial even

though the defendant did not understand or consent to the concession. 543 U.S. at

18 8-89. The Court found the concession was not tantamount to a guilty plea because

"a guilty plea is 'more than a confession which admits that the accused did various

acts,' it is a 'stipulation that no proof by the prosecution need be advanced."' !d. at

188 (quoting Boykin v. Alabama, 395 U.S. 238, 242 & n.4, 89 S. Ct. 1709, 23 L. Ed.

2d 274 (1969)). For similar reasons, this court held that a stipulated facts trial is not

a guilty plea equivalent. In re Det. of Moore, 167 Wn.2d 113, 120-21, 216 P.3d

1015 (2009); State v. Johnson, 104 Wn.2d 338, 342, 705 P.2d 773 (1985). If neither

the decision to concede guilt nor the decision to enter a stipulated facts trial

constitutes a guilty plea equivalent, then the decision to concede a defendant's easily

proven criminal history certainly does not. The majority does not contend otherwise.

       The majority nevertheless holds that due process requires any decision that

implicates a constitutional right must belong to the defendant. Majority at 8. A list

of such decisions would surely be long. Under the majority's reasoning, it appears

the defendant must knowingly, intelligently, and voluntarily agree to counsel's

choice of what witnesses to call, what defense theories to present, when to cross-

examine a witness, and what jurors to select. All of these decisions impact the rights

of the accused to defend his case, to meet the witnesses against him, to compel the

attendance of witnesses on his behalf, and to have an impartial jury. CONST. art. I, §

                                             -5-
State v. Humphries (Stephens, J. Dissent in part)




22; U.S. CoNST. amend. VI. By holding that any infringement on the defendant's

constitutional rights necessitates his consent, the majority suggests that many

decisions courts have heretofore recognized as within counsel's authority to make

are not in fact solely matters of strategic discretion.

       The majority relies on State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475

( 1996), but that case does not hold that all constitutional rights require a knowing,

intelligent, and voluntary waiver by the defendant. Nor does United States Supreme

Court precedent "reflect an uncritical demand for a knowing and intelligent waiver

in every situation where a person has failed to invoke a constitutional protection."

Schneckloth v. Bustamante, 412 U.S. 218, 235, 93 S. Ct. 2041, 36 L. Ed. 2d 854

( 1973 ). Case law requires only that "the waiver of a fundamental constitutional right

must be made knowingly, voluntarily, and intelligently." Thomas, 128 Wn.2d at 558

(emphasis added); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed.

1461 (1938) ('"courts indulge every reasonable presumption against waiver' of

fundamental constitutional rights" (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389,

393, 57 S. Ct. 809, 81 L. Ed. 1177 (1937); Hodges v. Easton, 106 U.S. 408, 412,

1 S. Ct. 307,27 L. Ed. 169 (1882))). This rule appreciates the fact that almost every

trial decision implicates some constitutional right of the accused. For example,

"[e]ach and every time a defense attorney declines to cross-examine a witness, the

attorney technically waives his client's sixth amendment right." Poole v. United

States, 832 F.2d 561, 564 (11th Cir. 1987). Counsel's failure to object to hearsay

evidence essentially waives a defendant's confrontation rights. Watkins v. Kassulke,

                                             -6-
State v. Humphries (Stephens, J. Dissent in part)




90 F.3d 138, 141 (6th Cir. 1996). And, deliberately failing to object to the admission

of tainted evidence taken from an unlawful search implicates the Fourth Amendment

to the United States Constitution.         Henry, 379 U.S. at 451.         Despite their

constitutional implications, these decisions have been deemed a part of trial strategy

for counsel to make.

       Rather than engaging with the weight of authority against its holding, the

majority focuses on cases addressing an entirely different question-when can a

court presume the defendant consents to his counsel's waiver of a constitutional

right? For example, the majority dismisses the State's argument that counsel has the

authority to stipulate to material facts as a matter of trial tactics by observing that

"[i]n none of [the cases cited by the State] did the defendant expressly object to the

stipulation." Majority at 8. The very focus of the majority's discussion confuses the

question of when an on-the-record colloquy is required-which is not at issue

here1-with the critical question of whose decision controls. If the decision to

stipulate to a status element belongs to counsel, as I believe it does, then it is

irrelevant whether Humphries initially objected or later agreed to the stipulation.

United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010) (noting that "if

consultation and consent by the client are not required with regard to these tactical




       1
         That question was at issue in State v. Woods, 143 Wn.2d 561, 609, 23 P.3d 1046
(200 1) (discussing when defense counsel, as opposed to the court, bears responsibility for
informing the defendant of a particular right and explaining the merits and demerits of
waiving such right).
                                             -7-
State v. Humphries (Stephens, J. Dissent in part)




decisions, the client's expressed disagreement with counsel's decision cannot

somehow convert the matter into one that must be decided by the client").
       The Constitution does not obligate counsel to accept the client's decision in

every instance. Rather, the opposite is true. The United States Supreme Court has

interpreted a defendant's Sixth Amendment right to assistance of counsel as more

encompassing than the mere presence or advice of counsel. Strickland, 466 U.S. at

685. It "envisions counsel's playing a role that is critical to the ability of the

adversarial system to produce just results." I d. In other words, '"the right to counsel

is the right to the effective assistance of counsel."' I d. at 686 (emphasis added)

(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90S. Ct. 1441, 25 L. Ed.

2d 763 (1970)). In fulfilling the "overarching duty" to advocate for the defendant's

cause, defense counsel must "bring to bear such skill and knowledge as will render

the trial a reliable adversarial testing process." Id. at 688.

       The majority's decision potentially undermines counsel's ability to act

effectively. This case presents a prime example. The State accused Humphries of

first degree unlawful possession of a firearm. Clerk's Papers (CP) at 9-11. An

element of that charge is that Humphries owned, possessed, or controlled a firearm

after having been convicted of a serious offense. RCW 9.41.040. Humphries
maintained his innocence throughout trial; his defense focused on the fact that no

weapons or ammunition were found on him or at the scene of the alleged shooting.

Verbatim Report of Proceedings (Oct. 13, 2010) at 46-47. Despite this lack of

physical evidence, his attorney was concerned the jury would be distracted by

                                             -8-
State v. Humphries (Stephens, J. Dissent in part)




Humphries's criminal history, which included dispositions for first degree robbery,

second degree robbery, and attempted second degree robbery. CP at 11. Counsel

advised Humphries it would be wise to stipulate to a prior serious offense conviction,

which would preclude the State from introducing evidence of his past crimes. Tr. of

Proceedings (Oct. 12, 2010) at 5-6. No one----not even Humphries or the majority-

questions the wisdom of counsel's advice. Evidence of Humphries's past crimes

could only prejudice the jury against him. Old Chiefv. United States, 519 U.S. 172,

185, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) ("there can be no question that

evidence of the name or nature of the prior offense [necessary to establish a prior

qualifying conviction] generally carries a risk of unfair prejudice to the defendant").

The State could easily prove the element of a prior serious offense conviction, as

evinced by the criminal history records it presented at Humphries's subsequent

sentencing. Humphries nevertheless refused to stipulate. By holding that counsel

could not pursue his trial strategy in the face of Humphries's expressed disapproval,

the majority expands constitutional waiver analysis beyond the class of decisions

previously recognized as involving fundamental rights.

       Worse yet, the majority's holding places trial judges at risk of violating the

defendant's Sixth Amendment rights in an effort to secure a valid waiver. As the

United States Supreme Court has explained, the "Government violates the right to

effective assistance when it interferes in certain ways with the ability of counsel to

make independent decisions about how to conduct the defense." Strickland, 466

U.S. at 686. Under the majority's holding, when a defendant objects to counsel's

                                             -9-
State v. Humphries (Stephens, J. Dissent in part)




trial strategy, the trial judge must inquire whether counsel has advised the defendant

about the decision, thereby potentially exposing attorney-client confidences and

counsel's trial strategy and intruding upon the attorney-client relationship. Thomas,

128 Wn.2d at 557 n.2;In rePers. RestraintofLord, 123 Wn.2d296, 317,868 P.2d

835 (1994). Intrusions into the attorney-client relationship have been recognized as

sufficient grounds for an ineffective assistance of counsel claim. See Blanco v.

Singletary, 943 F.2d 1477 (11th Cir. 1991) (involving a judge's inquiry into why

certain witnesses the defendant wanted to be called were not called by defense

counsel).

       It is important to acknowledge that the majority raises valid concerns about

the defendant's- authority to make trial decisions when he must suffer the

consequences.      Some commentators have criticized the division of authority

recognized by the United States Supreme Court and formalized in the ABA

Standards. See, e.g., Pamela R. Metzger, Fear of Adversariness: Using Gideon to
Restrict Defendant's Invocation of Adversary Procedures, 122 YALE L.J. 2550
(20 13) (arguing the defendant should have greater authority over decisions affecting

constitutional rights). But even critics recognize the lines that have heretofore been

drawn.      See id. at 2556-67 (acknowledging defendant's authority is limited to
decisions deemed "fundamental"); JAMES J. TOMKOVICZ, THE RIGHT TO THE

ASSISTANCE OF COUNSEL: A REFERENCE GUIDE TO THE UNITED STATES

CONSTITUTION 74 (2002) (recognizing that a "majority of the Supreme Court has

rejected" the position that counsel must defer to the defendant's wishes on

                                            -10-
State v. Humphries (Stephens, J. Dissent in part)




significant questions). The division of authority between counsel and client attempts

to balance the defendant's ability to choose his own defense with his right to

effective assistance of counsel. See Faretta, 422 U.S. at 819 (recognizing that the

right to counsel "does not provide merely that a defense shall be made for the

accused; it grants to the accused personally the right to make his defense"). True,

the right to counsel "implicitly embodies a 'correlative right to dispense with a

lawyer's help."' !d. at 814 (quoting Adams v. United States ex rel. McCann, 317

U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942)). But once "a defendant chooses

to have a lawyer manage and present his case, law and tradition may allocate to the

counsel the power to make binding decisions of trial strategy in many areas." !d. at

820; Brookhart, 384 U.S. at 7-8; Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L.

Ed. 2d 837 (1963), overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72,

97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)). The majority's holding must be recognized

for what it is: not a limited exception to the traditional division of decision-making

authority between client and counsel, but a rejection of the very framework that has

supported a large body of law. I would hold that counsel's decision to stipulate to a

prior serious offense did not require Humphries's knowing, intelligent, and

voluntary waiver of his right to make the State prove this element. Therefore,

Humphries suffered no constitutional error-whether framed as a due process or a

Sixth Amendment violation. I would affirm on this basis.




                                            -11-
State v. Humphries (Stephens, J. Dissent in part)




           If the Stipulation Violated Humphries's Rights, the Error Was
                        Harmless beyond a Reasonable Doubt
       Even if the trial court committed constitutional error in accepting defense

counsel's stipulation that Humphries "had previously been convicted of a serious

offense" over Humphries's objection, I disagree with the majority that the error was

prejudicial. CP at 12.2

       The majority correctly observes that constitutional errors are subject to

harmless error analysis and are considered "harmless when there is no reasonable

doubt that any reasonable jury would have reached the same result in the absence of

the error." Majority at 11. In determining whether defense counsel's stipulation

was harmless, the majority echoes Judge Dwyer's reliance on the overwhelming

untainted evidence test and considers only the absence of other evidence introduced

at trial to prove a prior serious offense conviction. !d. (citing State v. Humphries,

170 Wn. App. 777, 809, 285 P.3d 917 (2012) (Dwyer, J., dissenting)). Noting that

the State presented no evidence in light of the stipulation, the majority concludes

that the error was not harmless. It rejects as "irrelevant" the fact "that the State 'was

fully prepared to present evidence' of the prior conviction." !d. (internal quotation

marks omitted) (quoting Humphries, 170 Wn. App. at 809 (Dwyer, J., dissenting)).

       The majority contends its conclusion is supported by State v. Smith, 148

Wn.2d 122, 139, 59 P.3d 74 (2002). But, Smith involved the erroneous admission

       2
         Counsel also stipulated that Humphries "had previously received written notice
that he was ineligible to possess a firearm" and that he "knew that he could not possess a
firearm." CP at 12. These factual stipulations seem to have been gratuitous. As instructed,
the jury did not need to accept these facts in order to convict. Id. at 26 (Instruction 8).
                                            -12-
State v. Humphries (Stephens, J. Dissent in part)




of evidence. Here, we are concerned with an alleged error (acceptance of the

stipulation) that operated to preclude the State from introducing otherwise

admissible evidence. In other words, the error at issue, if there was error, involved

the erroneous exclusion of evidence, and we must examine the question of harmless

error in this context.   Relying on a test that looks only to other evidence admitted

at trial is both artificial and unhelpful. Once defense counsel offered to stipulate to
a prior serious offense conviction, the State was obligated to accept this stipulation

and was precluded from presenting evidence of Humphries's criminal history. Old

Chief, 519 U.S. at 190-92.3 Because the alleged error in this case had a mandatory

exclusionary effect, a meaningful harmless error analysis requires that we look

beyond what was presented to the jury and consider the effect of the erroneous

decision at issue. This is consistent with the essential purpose of harmless error

inquiry, which asks, "Was the defendant afforded, not a perfect but, rather a fair

trial?-for the constitution guarantees no one a perfect trial." State v. Green, 71

Wn.2d 372, 373, 428 P.2d 540 (1967). To answer this question, we look to the
record; "if the record supports a finding that the jury verdict would be the same

absent the error, harmless error may be found." State v. Berube, 150 Wn.2d 498,

506, 79 P.3d 1144 (2003).


       3
         Old Chief does recognize that the prosecution can in some circumstances present
redacted criminal records without the name and nature of the prior conviction as
supplemental evidence of a defendant's past conviction notwithstanding a defendant's
stipulation. 519 U.S. at 191 n.IO. But, redacted criminal records would have had no
evidentiary value in this case. Here, the names of Humphries's prior convictions were
needed to establish their qualification as "serious offenses."
                                            -13-
State v. Humphries (Stephens, J. Dissent in part)




       The record in this case establishes that the State had certified copies of
Humphries's prior criminal history, CP at 56-88, and that the stipulation was-
admitted in lieu of the State's proffer. Absent the stipulation, the State would have

submitted its evidence to establish Humphries's prior convictions for a serious
offense. This evidence, beyond simply proving the element of a "prior serious
offense," carried a risk of unfair prejudice to Humphries. See Old Chief, 519 U.S.
at 185 (recognizing "risk of unfair prejudice to the defendant"). Defense counsel's
stipulation was therefore harmless beyond a reasonable doubt. If admission of the
stipulation violated Humphries's constitutional rights, I would affirm on this
alternative basis.




                                            -14-
State v. Humphries (Stephens, J. Dissent)




                                       -15-
State v. Humphries (Mario)




                                         No. 88234-7


       MADSEN, C.J. (concurring in the dissent)-Although I agree with the thorough

dissent by Justice Stephens, I write separately to underscore the untenable position that

the majority creates for trial counsel and the court on retrial.

       The State charged Mario Humphries with third degree assault and unlawful

possession of a firearm based on three prior convictions for first degree robbery, second

degree robbery, and attempted robbery. In order to prove the crime of unlawful

possession of a firearm, the State was entitled to establish these convictions (necessary to

prove unlawful possession of a firearm) by placing copies of the judgment and sentences

into evidence for the jury to consider. Rather than allowing this damaging evidence of

prior robbery convictions, defense counsel stipulated that Humphries had a prior serious

felony, without disclosing the nature or the number of the convictions.

       In my view, if counsel in this case had failed to offer such a stipulation and instead

required the State to submit the actual judgment and sentence documents, his failure to

stipulate would have fallen below the standard of proficient counsel, that failure to

stipulate could not be excused as "tactical," and the failure would be prejudicial.
No. 88234-7
Madsen, C.J. concurring in dissent


       The majority's new rule encourages disputes between clients and counsel in a

decision that is so clearly about strategy and sets up unnecessary claims of ineffective

assistance of counsel. It is also frustrating because a retrial will result in either the State

presenting damaging evidence of prior robberies or the defendant stipulating, as was done

here. A stipulation is clearly less prejudicial than the proof of prior robberies. The

majority's decision imposes an unnecessary "do over" in a case where any effective

counsel would offer the stipulation counsel offered here, without which the defendant's

chances of success would be greatly diminished.

       I decline to join an opinion that confuses the role of counsel in making the sort of

strategy calls at issue here or in setting defense counsel up for claims of ineffective

assistance of counsel. The court should affirm.




                                                2
No. 88234-7
Madsen, C.J. concurring in dissent




                                     3
