                                                                            FILED
                                                                          JUNE 5, 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. 34853-9-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
BILLY SAMUEL TEMPLE,                           )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       FEARING, J. — We must decide whether appellant Billy Temple’s trial counsel

engaged in a legitimate trial strategy when declining to assert self-defense, despite

Temple testifying that his girlfriend’s father attacked him first, and instead arguing that

Temple lacked any criminal intent when punching the father twice. A jury convicted

Temple of second degree assault because of the punches. He contends on appeal

ineffective assistance of counsel. We agree with Temple and reverse his conviction

because of the important constitutional right to effective assistance of counsel.

                                          FACTS

       This appeal concerns a confrontation between Billy Temple and his significant

other’s father, Carey Cook (Cook). Temple is ten years younger and seventy pounds
No. 34853-9-III
State v. Temple


lighter than Cook. Because we must determine whether defense trial counsel performed

ineffectively with his trial tactics and because we view the performance of counsel based

on the complete trial record, we later quote at length trial testimony.

       On May 15, 2016, Carey Cook, his brother, Dave Jordan, his daughter, Jamie

Cook (Jamie), his daughter’s boyfriend, Billy Temple, and Cook’s two young

grandchildren lived at one Spokane residence owned by Cook. Cook generally slept in a

recreational vehicle, which he parked in the backyard. Cook allowed his family to sleep

in his small abode. Jamie and Billy Temple, and the couple’s children, occupied one

bedroom. Cook’s brother, Dave Jordan, slept on a daybed in the living room.

       As of May 15, Jamie and Billy Temple had resided in Carey Cook’s house for two

weeks. Cook and Temple had known each other for one year and, by May 2016, suffered

a deteriorating relationship. The younger couple allowed Cook’s dogs to escape the

home and roam in the yard, a practice that irritated Cook.

       On the morning of May 15, Billy Temple worked on his car along the curb of the

street in front of the residence. One of Jamie’s eighteen-month-old daughters played near

Temple. Temple went inside the home to retrieve an object but did not bring the

daughter with him. A concerned Carey Cook yelled about the lack of supervision of his

granddaughter. Jamie heard her father yell. Jamie told her father to mind his own

business, because Temple and she knew how to raise children.



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      On the night of May 15/16, Carey Cook slept in his recreational vehicle. Around

1:00 a.m., Cook left his small quarters to use the house restroom. On entering, Cook

noticed his brother, Dave Jordan, watching the front yard because Billy Temple or Jamie

had sent the dogs outside. An incensed Cook yelled, which stirred Temple and Jamie.

Cook entered the bathroom and slammed the door.

      While inside the bathroom, Carey Cook heard Billy Temple and Jamie talking, but

could not hear their words. Cook entered the bedroom to speak with Jamie. At trial,

Cook described what transpired next:

              I walked in the [bedroom] door and I leaned up against the crib, and
      at that time, I thought [Temple] was going to exit the room, and then he
      said you are going to call the police and came up and instantly head butted
      me, and then I was dazed from that, and I think I tried to reach out and
      shove him away, but I’m not sure because the next thing I know a fist came
      across my eye downward, and after that, I was knocked unconscious and
      fell on the floor, and when I came to, I was [sic] blood was coming out of
      my eye and out of my nose, and I grabbed my eye because I couldn’t see
      out of it.
              So I’m yelling you blew my eye out. You blew my eye out. Call
      911. Call 911, and at that point, my daughter said well, if you call the
      police, we’re [Temple and I are] going to tell them that you head butted
      him [Temple].

Report of Proceedings (RP) at 93-94.

      Dave Jordan saw Billy Temple move his arm to hit Carey Cook, but did not see

Temple strike Cook. Jordan did not notice any injuries on Temple.

      According to Billy Temple, Carey Cook yelled inside the home before Cook

entered the bedroom. Temple maintains he desired to leave the room but Cook clogged

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the bedroom doorway because of his large size. Cook denies he blocked exit from the

room. During direct examination at trial, Temple narrated the squabble:

              I tried to walk out the door, and we had got into a confrontation right
      then and there. [Cook] had reached up and grabbed me by the throat. I had
      two necklaces on and a black hoodie. He reached up and grabbed my
      throat, and he head butted me like that, and I head butted him back, and
      then we got into an altercation.
              Q And what do you mean by altercation?
              A Well, he wouldn’t let go of my throat, and I kept telling him to
      quit, and I hit him once, and we kind of got into the doorway, and I said
      enough’s enough, and I hit him again, and he kept screaming at the top of
      his lungs, and he wouldn’t let go of my throat, and by that time, he got
      wedged in because the babies’ crib and the closet and the bed. He got
      wedged into between there, and he went down.
              Q When he was wedged into there, what did you do?
              A I was trying -- he was like this. He wouldn’t let go of my throat.
      He wasn’t all the way on the ground, but he was just wedged.
              Q Once separated, what did you do?
              A I said that’s enough.
              Q Do you recall if Mr. David Jordan was present?
              A I felt somebody hit me from behind. I don’t know if it was him.
      It could have been. It could have.
              Q Did you assault David Jordan that night?
              A No, sir.
              ....
              Q On May 16th or 15th or 16th, did you intentionally assault Carey
      Cook?
              A I did not.
              Q But you admit you head butted him?
              A Yes, sir.
              Q And you admit you punched him?
              A Yes.
              ....
              Q Was there any reason why you would not have intended to assault
      Mr. Cook that night?
              A There’s no reason. . . .


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RP at 137-40.

       During trial when asked about his relationship with Carey Cook, Billy Temple

replied:

              I like him. I mean, he’s always done nice things for me, Jamie and
       the kids. He was letting me stay there. I just didn’t intend to do any harm
       to him. I didn’t want to. That’s my kids’ grandpa. You know what I
       mean? He just doesn’t like me, so.

RP at 140.

       On cross-examination, Billy Temple testified:

              Q On the morning of May 16, 2016, your testimony is you
       intentionally head butted Mr. Cook, didn’t you?
              A No.
              Q You didn’t testify earlier that you head butted Mr. Cook?
              A I testified that as Mr. Cook was standing in the door, I was trying
       to leave. I didn’t want any kind of altercation with Mr. Cook. Mr. Cook
       reached up, grabbed my throat.
              Q Sir, my question to you is did you intentionally head butt Mr.
       Cook?
              A I guess if you put it that way after I was head butted.
              Q Sir, my question is, and I am putting it that way. Did you
       intentionally head butt Mr. Cook that morning?
              A After I was head butted, yes, sir.
              Q Sir, yes or no is all you need to reply.
              A Yes, sir.
              Q Did you intentionally punch Mr. Cook that night?
              A Yes.
              Q Did you, in fact, intentionally punch Mr. Cook twice that night?
              A I did not intentionally try to assault Mr. Cook.
              Q Sir --
              A Yes, sir.
              Q The Court defines what an assault is. My question to you is did
       you intentionally punch Mr. Cook twice that morning?
              A We were in an altercation.

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              Q Sir, it’s a very simple yes or no.
              A I know what you’re saying.
              Q Did you intentionally punch Mr. Cook twice that morning?
              A No, sir. I did not want to intentionally to [sic]do harm to Mr.
      Cook.
              Q That’s not the question.
              A I said no, sir.
              Q Now, your testimony earlier you testified that you punched him,
      hit him twice. Are you now changing that testimony saying you didn’t
      punch him twice that morning?
              A I’m saying we were in a physical altercation, and I did punch him.
              Q Sir, so did you intentionally punch Mr. Cook twice that night in
      the head as a matter of fact?
              A Yes, sir.
              Q And, in fact, didn’t Mr. Cook go down after the second time you
      punched him?
              A Yes.
              Q Did you see the injuries Mr. Cook had after you head butted him
      and punched him twice?
              A I seen that his face was red. Not until after it was over did I see
      what the injuries looked like, and I said that was enough. It’s enough.
              Q In fact, you testified earlier exactly that. At one point, you said
      that’s enough, and that’s when you punched him the second time, and he
      went down, correct?
              A No.
              Q Can you tell me the sequence then?
              A He was in the doorway. Do you want me to break it down the
      way it was?
              Q You had testified earlier that you said enough is enough, so you
      hit him again; is that correct?
              A The whole time, sir --
              Q It’s a very simple question. Yes or no?
              A Yeah, no.
              Q At one point, you testified you said to yourself enough is enough,
      and you hit him again; is that correct?
              A No, that is not correct, sir.
              Q So what happened? What is your testimony now?
              A My testimony is the same as it’s always been. He was in the
      doorway. I knew that Mr. Cook was going to call the cops.

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                Q Sir, my question is about when you said enough is enough, and
         you hit him again.
                A No, sir, I did not hit him again.
                Q You hit him twice, though?
                A There was a head butt, and then there was two punches.
                Q Correct. And before your second punch, you had said to yourself
         enough is enough, correct?
                A I don’t remember what I said to myself.

RP at 141-44.

         Jamie Cook also testified that her father acted as the aggressor. Jamie averred at

trial:

                Q And what happened after you heard the door slam?
                A My dad was screaming. He came running down the hallway, went
         into the bathroom, slammed the door, was screaming. He used the
         bathroom and then came into the room and confronted—
                Q If I could stop you there? Do you recall what he was screaming or
         yelling? What he was screaming?
                A You want me to cuss? He was mostly profanities. . . .
                ....
                Q (By Mr. Reid) Did he ever express a reason why he was upset
         with you?
                A Because of the dogs getting out.
                Q Okay. So he went into the bathroom and then what did he do after
         [he] came out of the bathroom?
                A He came around to my room.
                Q Okay.
                A Right in the doorway.
                Q Okay. I’m sorry. One question then. Was the door open or
         closed?
                A I believe it was open.
                Q Okay. Do you recall if he knocked?
                A No.
                Q And he came into the bedroom or he came to the door?
                A Right in the door frame.
                Q Okay. And when he was in the door frame, what did he do or

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State v. Temple


      say?
               A He started—he was just using, yelling at Billy . . . .
               ....
               Q (By Mr. Reid) What did he do?
               A He got in Billy’s face, and then he grabbed Billy by the neck and
      head butted him, and then they had started like pushing kind of back and
      forth. I think Billy at that point, Billy—
               Q I’m sorry. So he was in the door frame. There was some contact
      between them. At any point, did you see Billy head butt Carey?
               A After my dad head butted him, yes.
               Q Where was Billy in the bedroom in relation to the door?
               A Say that again.
               Q Where was Billy in the bedroom in relation to the door? How far
      away was he from your dad?
               A Not that far. You come into the door. There’s a filing cabinet in
      this little space, and there’s a little walkway to where my bed was, and we
      were pretty much right there.
               Billy had gone—
               Q You were pretty much right there. How far distance wise? A
      couple of feet?
               A I don’t know.
               Q Okay.
               A From here to there to her.
               MR. REID [defense counsel]: For the record, pointed to the court
      reporter.
               Q (By Mr. Reid) And after these head butts, what did your father do?
               A Something happened before that, so.
               Q After the head butts, what did your father do?
               A Ended up locking arms and were like kind of pushing and
      shoving.
               Q Okay.
               A My -- they had next to the closet—
               Q Sorry.
               A Yeah.
               Q After the pushing and shoving, where was your dad?
               A They were still right by the door, in between the door and the
      closet frame.
               Q Okay. At some point, did they separate?
               A They stumbled to the ground, and then my uncle—during that, my

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No. 34853-9-III
State v. Temple


        uncle came in and started hitting him, and at that point, I pulled them like
        away from each other.
               Q Okay. And when you pulled them away from each other, where
        did -- where did your dad go?
               A He had stumbled onto the floor in between the bed -- or the crib
        and the closet, the little space.
               Q And where did Billy go?
               A Back towards where I was more towards the bed.

RP at 127-30.

        Billy Temple and Jamie left the home after the altercation. Carey Cook’s brother,

Dave Jordan, phoned law enforcement and also requested an ambulance. When later

interviewed by police, Temple admitted to hitting Cook, but claimed he acted in self-

defense. Jamie also told law enforcement that Temple acted in self-defense.

        Dr. Anthony Mueller, who treated Carey Cook at the emergency room, diagnosed

Cook with fractures of two small bones that supply structural support for the left eye.

Cook also suffered a fractured anterior left sinus wall, in addition to changes in his

vision. Dr. Mueller agreed the injuries were consistent with “a head butt.” RP at 123.

                                       PROCEDURE

        The State of Washington charged Billy Temple with second degree assault.

Because Billy Temple asserts ineffective assistance of counsel on appeal, we spend many

pages quoting arguments and remarks made by trial counsel regarding Temple’s theories

at trial.

        After trial began, the State moved to prevent Jamie Cook from making any


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statement that Temple acted in self-defense, and defense counsel agreed, by announcing

that Temple did not claim self-defense.

       After both parties rested, the State expressed concerns regarding the defense’s

decision to not claim self-defense despite defense witnesses’ testimony evincing Carey

Cook as the instigator. The State expressed a desire to tell the jurors they were not

permitted to consider self-defense since Temple did not assert the theory. Defense

counsel responded:

              I guess I would have to look up [the] self-defense instruction
       whether or not I will—I believe that I elicited sufficient testimony if I
       wanted to offer it that I could.
              You know, I don’t know. I’m really not sure what the State’s—it
       would appear that the State wanted to argue this isn’t self-defense even if
       I’m not arguing it. If they want to argue self-defense and they put the
       instruction in, I’ll ask for it so the jury’s not confused about what the
       instructions say.
              Because I anticipated the State stands up and says this isn’t self-
       defense, you’re going to have jurors looking through the instruction saying
       where does it talk about self-defense. He talked about self-defense.
              If we’re going to go down that road, I would offer the instruction. . .

RP at 152.

       The State argued jurors should not be instructed on self-defense because the State

received no notice. In response, defense counsel declared:

              Your Honor, self-defense is an affirmative defense, and I totally
       agree that in the anticipation of trial if I was—if our theory was self-
       defense, I would have offered self-defense.
              ....
              I would submit that the State says look at your instructions or I
       would proffer the self-defense instruction. I believe that the testimony

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No. 34853-9-III
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         elicited would provide a substantial evidence that we have proven by a
         preponderance of the evidence that this could be self-defense.
                 The Court heard my opening statement. The Court heard the trial up
         to that point. The fact that facts developed in Ms. Jamie Cook’s testimony
         and into Mr. Billy Temple’s testimony creating the possibility this was his
         defense the State can argue in their closing argument that [defense counsel]
         said this was all an accident, and now he’s here saying it’s self-defense.
                 That’s a whole separate issue for the State to present to the jury, but
         for the State to say we want to say what it isn’t and not tell them what that
         means is prejudicial to Mr. Temple.
                 So if the State’s going down this isn’t self-defense, I’m asking for
         the instruction.

RP at 154-55. After the lengthy colloquy, the defense decided to forego mentioning self-

defense to avoid an instruction on it to the jury.

         Defense counsel argued during closing that Billy Temple lacked the requisite

intent to commit a crime. Counsel also contended that Carey Cook’s testimony lacked

sense:

                Now the confrontation at that point was verbal, but he [Carey Cook]
         confronted them, but at the end of his [Cook’s] testimony when I asked him
         you walked in. You didn’t say anything to Mr. Temple. You didn’t say
         anything to your daughter, and Mr. Temple just head butted you and left?
         Yes.
                That doesn’t make sense. You’re [Carey Cook is] angry. You’re
         angry all day. You go inside. You’re in the bathroom. You don’t really
         hear what’s going on, but you think they’re talking about you. So you go in
         looking to have a discussion, and the testimony was I didn’t say anything.
         He [Billy Temple] just head butted me.
                Now, we heard from Jamie Cook. Jamie says we [Billy Temple and
         she] were there. We were in the bedroom, smaller bedroom, stuff all over
         the room. Carey [Cook] came in. He stood in front of the door. He said
         some things. She said screaming. There was some yelling, and that Mr.
         Carey Cook grabbed Billy Temple by his throat, by his collar and head


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No. 34853-9-III
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      butted him, and that Mr. Temple responded in kind, grabbed him, and he
      head butted him and then punched him.
              We then heard from Billy Temple. I [Temple] was there. I was in
      the room, me and my significant other, my girlfriend were having a
      discussion or even an argument, and Mr. Cook came in and he confronted
      us, and he grabbed me and head butted me, and I grabbed him and head
      butted him, and I punched him not once, not twice, but twice and said that’s
      enough.
              There were some common threads. We heard from all three
      witnesses that Mr. Temple wanted to leave. When Mr. Cook came into the
      room, he made for the exit -- he made for the door. At that point, he was
      positioned physically where Mr. Cook stood between him and the door.
              So what Mr. Temple’s intention was and what you heard his
      testimony was that I wanted to leave. I wanted to exit, and he was
      contacted.
              So the question becomes in determining intent, and you’ll all have a
      copy of the instructions. Look at Instruction Number 9 because if you look
      at Instruction Number 9, it doesn’t only say intent is -- I’ll just read it
      because it’s a little bit easier.
              A person acts with intent or intentionally when acting with the
      objective or purpose to accomplish a result that constitutes a crime. It’s not
      just that they act with intent or intentionally, but what they have to do and
      what they have to intend when they do it has to be a crime, and that’s not
      what it was.
              He wanted to leave. He was contacted. He was grabbed, head
      butted, head butted back, punched and walked out and to each instance, he
      said I wanted to leave.
              ....
              You heard from Mr. Temple. Mr. Temple, in fact, Mr. Temple said,
      admitted and said you know what? I hit him twice. I punched him twice.
      Well, that was he [said] here. He had heard Mr. Cook testify. He didn’t
      have to say I hit him twice. He heard Jamie Cook testify. She said he
      punched him once. He didn’t have to say that. He said what he did, and
      the reason why he said what he did is because what he was doing was not
      intending to commit a crime. What he was doing was intending to leave.
      He wanted out of the bedroom.
              If in your deliberation you conclude that his intention was not to
      commit a crime, but was to leave and that this physical confrontation
      occurred, but it was not his intent to commit a crime, it’s your duty to

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No. 34853-9-III
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      return a verdict of not guilty because the State will have not met one of the
      elements, which is that they have to establish beyond a reasonable doubt
      that what he intended when he went to leave the room was to assault Carey
      Cook, and you heard testimony that that’s not what his intent was, and you
      not only heard it from Billy Temple. You heard it from Jamie Cook, and
      you heard it from Carey Cook because that’s what he said he did. He went
      to leave. That was his intent.
              So while it’s understandable that the injury that Mr. Cook suffered
      was no doubt painful and no doubt had an impact on him, your analysis and
      what you’re going to be deliberating about is what he was thinking when he
      went to leave because he was trying to leave, and he was stopped, and it’s
      at that moment that the analysis breaks down, and you return a verdict of
      not guilty.

RP at 177-80.

      The State’s counsel, in closing statement rebuttal, responded to defense counsel’s

closing argument:

             Ladies and gentlemen, as you heard in your instructions, what the
      lawyers say is not evidence, and it’s not the law. The Judge gives you the
      law, and Mr. Reid [defense counsel] did not accurately represent what the
      law [is] as given to you by the Judge. That is not what the State has to
      prove.
             ....
             What we have to prove is he [Billy Temple] intentionally assaulted
      him [Carey Cook], and by his [Temple’s] own words, he intentionally
      swung his fist and hit Mr. Cook twice. He intentionally assaulted Mr.
      Cook. That was his intent when he swung his fist twice, and when he head
      butted Mr. Cook, his intention was to assault Mr. Cook.
             What you have to decide was did he accidentally head butt him?
      No, or did he intentionally head butt him. It was an intentional assault, and
      assaulting someone is a crime.
             Again, Mr. Reid read to you [Instruction] Number 9. A person acts
      with the intent or intentionally when acting with the objective or purpose to
      accomplish a result that is a crime.



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No. 34853-9-III
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               Assault is a crime. Head butting someone is a crime. Punching
       someone is a crime. That’s what Mr. Temple’s intent was. That’s the
       State’s burden.
               Our burden is not to show what he was intending to do when he left
       the room. No. No. Our burden is to show that Mr. Temple intentionally
       struck Mr. Cook, and he admitted he did that.
               Another thing is all the witnesses testified to that other than Mr.
       Jordan who didn’t see him, but only saw Mr. Temple raising his fist. All
       the evidence is the same as to that. No one is contradicting the fact that Mr.
       Temple intentionally assaulted Mr. Cook, and that is what the State has to
       prove, ladies and gentlemen, and that’s reaffirmed as I talked about earlier
       in the second element.
               That clearly says that the defendant recklessly inflicted the bodily
       harm. We don’t have to prove that he intentionally did that at all. Only
       that he was reckless when he head butted and struck Mr. Cook twice.

RP at 180-82.

       Based on a jury verdict of guilty, the trial court convicted Billy Temple of second

degree assault.

                                  LAW AND ANALYSIS

       Billy Temple’s sole assignment of error is that trial counsel performed

ineffectively when failing to argue self-defense and seek a jury instruction allowing the

jury to acquit him on the basis of self-defense. Asserting ineffective assistance of

counsel on appeal frustrates the judicial process since the appellate court indirectly

reviews an issue not brought to the attention of the trial court. The State may need to

incur the cost of a second trial through no fault of its own. Going further, in this instance,

the State and the trial court suggested, if not encouraged, defense counsel to raise self-

defense, but counsel employed a different tactic. Nevertheless, the accused’s right to

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No. 34853-9-III
State v. Temple


competent counsel preempts efficiency of the judicial system. Guilt or innocence should

not depend on the performance of the defendant’s trial attorney. The constitution

guarantees effective assistance of counsel in order to ensure that a defendant receives due

process, because counsel helps ensure that the defendant presents a defense that furthers a

fundamentally fair trial. State v. Loher, 104 Haw. 205, 398 P.3d 794 (2017).

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

of the Washington Constitution guarantee the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). Washington courts have

not extended the protections of the state constitution beyond the protections afforded by

the United States Constitution. Instead, state decisions follow the teachings and rules

announced in the United States Supreme Court’s seminal decision of Strickland v.

Washington, 466 U.S. 668 (1984). An accused is entitled to more than a lawyer who sits

next to him in court proceedings. In order to effectuate the purpose behind the

constitutional protection, the accused is entitled to effective assistance of counsel.

Strickland v. Washington, 466 U.S. at 686.

       A claim of ineffective assistance of counsel requires a showing that (1) counsel’s

performance was deficient, and (2) the deficient performance prejudiced the defendant.

Strickland v. Washington, 466 U.S. at 687. If one prong of the test fails, we need not

address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563

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No. 34853-9-III
State v. Temple


(1996).

       For the deficiency prong of ineffective assistance of counsel, this court gives great

deference to trial counsel’s performance and begins the analysis with a strong

presumption that counsel was effective. State v. West, 185 Wn. App. 625, 638, 344 P.3d

1233 (2015). Deficient performance is performance that fell below an objective standard

of reasonableness based on consideration of all the circumstances. State v. McFarland,

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The appellant bears the burden to prove

ineffective assistance of counsel. State v. McFarland, 127 Wn.2d at 335.

       Courts cannot exhaustively define the obligations of counsel or form a checklist

for judicial evaluation of attorney performance. Strickland v. Washington, 466 U.S. at

688 (1984). Nevertheless, effective representation entails certain basic duties, such as the

overarching duty to advocate the defendant’s cause and the more particular duty to assert

such skill and knowledge as will render the trial a reliable adversarial testing process.

Strickland v. Washington, 466 U.S. at 688; In re Personal Restraint of Yung-Cheng Tsai,

183 Wn.2d 91, 100, 351 P.3d 138 (2015).

       The State astutely relies on the principle that trial strategy and tactics cannot form

the basis of a finding of deficient performance. State v. Johnston, 143 Wn. App. 1, 16,

177 P.3d 1127 (2007). The defendant must show in the record the absence of a legitimate

strategic or tactical reason supporting the challenged conduct or omission by counsel.

State v. McFarland, 127 Wn.2d at 336. Imposing the burden on the defendant invents

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No. 34853-9-III
State v. Temple


problems since the imposition requires the defendant to prove a negative. Presumably the

defendant must fashion straw men or women and then dissemble them. In practice, the

State typically posits one or more reasons for a tactical decision. The Supreme Court

nonetheless remains firm that no presumption of ineffective representation exists. State

v. McFarland, 127 Wn.2d at 336. Thus, in the end, the defendant holds the burden of

showing a lack of a legitimate strategy.

       An argument that trial strategy informed trial counsel’s performance does not end

our inquiry. Not all defense counsel’s strategies or tactics are immune from attack. In re

Personal Restraint of Caldellis, 187 Wn.2d 127, 141, 385 P.3d 135 (2016). A criminal

defendant can rebut the presumption of reasonable performance by demonstrating that no

conceivable legitimate tactic explains counsel’s performance. In re Personal Restraint of

Caldellis, 187 Wn.2d at 141; State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80

(2004). The relevant question is not whether counsel’s choices were strategic, but

whether they were reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029,

145 L. Ed. 2d 985 (2000); State v. Grier, 171 Wn.2d at 34 (2011). Competency of

counsel is determined based on the entire record below. State v. McFarland, 127 Wn.2d

at 335 (1995).

       We disagree with the State and conclude that no reasonable trial strategy explains

defense counsel’s failure to argue self-defense and to request a self-defense instruction.

Ample evidence supported the defense. Both Billy Temple and Jamie Cook testified that

                                             17
No. 34853-9-III
State v. Temple


Carey Cook initiated the physical confrontation by head butting Temple first. In turn,

Temple punched Cook twice only because Cook grabbed Temple’s throat, attempted to

strangle Temple, and would not release Temple’s throat. Temple ended his attack only

after Cook released his grip on Temple’s neck. Temple would have suffered no harm by

asserting self-defense, such that no legitimate trial strategy served the withholding of the

defense.

       Billy Temple primarily contends that his trial counsel should have sought a self-

defense jury instruction. Counsel’s failure to request a necessary instruction can

constitute ineffective assistance of counsel. State v. Thomas, 109 Wn.2d 222, 229, 743

P.2d 816 (1987). For one to show ineffective assistance of counsel for failing to request a

jury instruction, the defendant must establish entitlement to the instruction. State v.

Johnston, 143 Wn. App. at 21 (2007). We conclude that the facts merited a self-defense

jury instruction.

       The use of force may be lawful if a party is about to be injured. RCW

9A.16.020(3). A defendant’s use of force against another, to a degree that otherwise

would constitute second degree assault, is justifiable when the defendant faces injury and

when the defendant employs no more force than necessary. RCW 9A.16.020(3); State v.

Hendrickson, 81 Wn. App. 397, 400, 914 P.2d 1194 (1996). The trier of fact assesses

evidence of self-defense from the perspective of a reasonably prudent person standing in

the shoes of the defendant, knowing all the defendant knows and seeing all the defendant

                                             18
No. 34853-9-III
State v. Temple


sees. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). For the jury to be

instructed on self-defense, the defendant must produce some evidence regarding the

statutory elements of a reasonable apprehension of great bodily harm and imminent

danger. State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993). To raise the defense,

the defendant need only produce “some evidence” tending to establish it. State v. Janes,

121 Wn.2d at 237. The threshold burden is low and the defense evidence need not be

sufficient to create a reasonable doubt. State v. Janes, 121 Wn.2d at 237. A defendant’s

testimony alone suffices to raise the issue of self-defense. State v. Adams, 31 Wn. App.

393, 396, 641 P.2d 1207 (1982).

       By reason of Carey Cook’s purported chokehold on Billy Temple, Temple faced

serious injury. Temple’s two punches, at least in a light favorable to him, did not exceed

force needed to end the strangulation.

       The State argues that, even under Billy Temple’s version of the facts, Temple

employed excessive force by punching Carey Cook twice after Cook head butted Temple.

The State’s argument ignores the testimony that, after Cook head butted Temple, Cook

also strangled Temple. We agree that Temple imposed serious injury on Cook, but a

reasonable jury could conclude that the strangulation required strong punches.

       The State also contends that Billy Temple presented no testimony that he feared

injury at the hands of Carey Cook. Self-defense, however, does not require fear of the

confrontation’s other participant. An accused need only show apprehension of injury and

                                            19
No. 34853-9-III
State v. Temple


may assert force to prevent an offense against him. Regardless, a reasonable jury could

have inferred that Billy Temple feared for himself as a result of a strangulation around his

throat.

          Billy Temple’s counsel may have confused who holds the burden of proving self-

defense or the lack thereof. Once the defendant produces some evidence, the burden

shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt.

State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997).

          Billy Temple’s counsel also performed ineffectively when contending, in closing

argument, that Temple lacked any intent to commit a crime because he intended to escape

from the bedroom. As astutely argued by the State to the jury, the State needed to prove

only that Temple intended to punch Carey Cook. The State did not need to prove Temple

desired Cook to suffer injury or to disprove Temple intended to escape from the room.

To form an intent to assault, the accused need not specifically intend to inflict harm or

cause apprehension. State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017).

The State need only show an intent to perform the physical act constituting the assault.

State v. Cardenas-Flores, 189 Wn.2d at 266.

          We also conclude that trial counsel’s ineffectiveness prejudiced Billy Temple.

Under Strickland, the defendant must show a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. at 669 (1984). A reasonable probability is a

                                              20
No. 34853-9-III
State v. Temple


probability sufficient to undermine confidence in the outcome. Strickland v. Washington,

466 U.S. at 669.

       Because of the testimony of Billy Temple and Jamie Cook, including the

testimony of Carey Cook becoming irate by reason of the loose dogs, a reasonable jury

could have acquitted Temple of assault if the trial court instructed the jury on self-

defense. A reasonable jury could conclude that Cook initiated the fight and his

stranglehold on Temple necessitated punches. Therefore, we lack confidence in the jury

verdict of guilty.

                                      CONCLUSION

       We reverse Billy Temple's conviction for second degree assault and remand for a

new trial.

       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.


                                                                        ~-
                                                                   'c
                                              Fearin&J.

WE CONCUR:




                                              Pennell, J.


                                             21
                                      No. 34853-9-III

       FEARING, J. (concurrence) — I reluctantly join the majority and pen the lead

opinion because I deem precedent compels our holding. I write separately to voice

concern about the ramifications of the lead opinion.

       As noted in the lead opinion, Billy Temple now receives a new trial without any

fault on the part of the State or any error by the trial court. The façade of unfairness with

another trial increases when considering that the State expressed concern about Temple’s

failure to assert the self-defense defense. In response, defense counsel declared:

             I guess I would have to look up [the] self-defense instruction
       whether or not I will—I believe that I elicited sufficient testimony if I
       wanted to offer it that I could.

Report of Proceedings at 152. Despite a warning about failing to assert the defense and

despite knowledge that the evidence supported the defense, defense counsel never sought

a jury instruction and did not argue self-defense in closing.

       Since this case comes before us on direct review, we lack any evidence of the

thoughts of defense trial counsel when forming his strategy. We do not know if counsel

shared his strategic plans in advance with Billy Temple and whether Temple consented to

the strategy. In retrospect, trial counsel engaged in an unreasonable strategy.

Nevertheless, this court does not view ineffective assistance of counsel from hindsight.

State v. Grier, 171 Wn.2d 17, 43, 246 P.3d 1260 (2011).
No. 34853-9-III
State v. Temple (concurrence)


       I have considered possible strategies, reasonable at the time of trial, for

withholding self-defense as a defense. For all I know, counsel met with Billy Temple

and Jamie Cook in advance and determined that they were incredulous witnesses.

Counsel may have assessed Carey Cook as an excellent witness, whose testimony the

jury would believe. Counsel may have reviewed the evidence of serious injuries to Carey

Cook and the lack of evidence of injury to Billy Temple and concluded self-defense will

never prevail. Therefore, counsel decided to assert the stroppy argument that Temple

lacked intent to commit a crime. One never knows what arguments a jury will accept.

Conceivably, counsel may have decided to present the lack of intent argument and forego

a self-defense theory with the expectation that his client would receive a second trial

based on ineffective assistance of counsel and thereby gain the client one free trial with

the possibility of an acquittal in the free trial.

       As noted in the lead opinion, trial strategy and tactics cannot form the basis of a

finding of deficient performance. State v. Johnston, 143 Wn. App. 1, 16, 177 P.3d 1127

(2007). The defendant must show in the record the absence of a legitimate strategic or

tactical reason supporting the challenged conduct of omission by counsel. State v.

McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). For the deficiency prong of

ineffective assistance of counsel, this court gives great deference to trial counsel’s

performance and begins the analysis with a strong presumption that counsel was

effective. State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233 (2015). In accordance

                                                 2
No. 34853-9-III
State v. Temple (concurrence)


with these principles, we must deny a claim for ineffective assistance of counsel if we can

conceive of any “legitimate tactic.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d

80 (2004); State v. Streepy, 199 Wn. App. 487, 501-02, 400 P.3d 339, review denied, 189

Wn.2d 1025, 406 P.3d 283 (2017).

       One might conclude that we mistakenly decide that Billy Temple’s counsel

performed ineffectively based on my suppositional line of thought that I implant in

defense counsel. But in the end, I conclude that any such tactic lacked cogency. Counsel

could have argued both a lack of criminal intent and self-defense. I should not assume

that defense counsel adopted a strategy to secure Billy Temple one free trial. No

precedent considers such a tact legitimate.

       I also worry about the predicament faced by the trial court when the court notices

that defense counsel engages in an unreasonable tactic. The law compounds this

predicament when defense counsel fails to assert an affirmative defense. The trial court

must refrain from correcting some of counsel’s mistakes.

       The Sixth Amendment to the United States Constitution precludes interfering with

a defendant’s autonomy to present a defense. State v. Coristine, 177 Wn.2d 370, 375,

300 P.3d 400 (2013). To respect the defendant’s dignity and autonomy, the Sixth

Amendment recognizes the defendant’s right to control important strategic decisions.

McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). The

Sixth Amendment right to control one’s defense encompasses the decision to present an

                                              3
No. 34853-9-111
State v. Temple (concurrence)


affirmative defense. State v. Jones, 99 Wn.2d 735, 664 P.2d 1216 (1983). Washington

courts have reversed a trial court's instructing a jury, against a defendant's wishes, on the

defense of insanity, State v. Jones, 99 Wn.2d at 747, on the defense of lack of intent and

reasonable action in a child luring prosecution, State v. McSorley, 128 Wn. App. 598, 116

P .3d 431 (2005), and on a reasonable belief in the ability to consent in a rape case, State

v. Coristine, 177 Wn.2d 370 (2013).

       Presumably, a trial court may not force a self-defense defense on a defendant. The

best a trial judge might do, on observing defense counsel failing to assert an applicable

defense, is to inform the defendant of the possible defense and ask if he or she consents to

the withholding of the defense as done in State v. Coristine, 177 Wn.2d 370. Of course,

this questioning of the defendant will not prevent the defendant from later raising

ineffective assistance of counsel based on counsel's unreasonable encouragement of the

defendant to consent to the defense.




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