State Of Washington Resp/cross App v. Shaun Eugene King, App/cross Resp, 74420-8

November 2014: police responded to reported gunshots at a detached garage; multiple shots heard; occupants ordered out. King exited unarmed and was arrested.
During a search, officers found shell casings, a firearm magazine, broken glass, and a wooden block with apparent bullet holes in King’s garage; officers also observed apparent bullet holes in an RV and an aluminum structure across the alley.
State charged King with third-degree assault and unlawful discharge of a firearm.
At trial, defense counsel unsuccessfully sought to exclude references to holes across the alley, but later used images of those structures during cross-examination; the court admitted the images as substantive evidence initially.
Midtrial the court granted the defense’s renewed ER 403 motion and excluded evidence of the holes; the court later allowed the images for illustrative purposes only and prevented their use in closing or deliberations.
Jury convicted King; on appeal he argued ineffective assistance because counsel did not request a limiting instruction regarding the out-of-alley hole evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defense counsel was ineffective for not requesting a limiting instruction on evidence of apparent bullet holes in structures across the alley	King: counsel’s failure to request a limiting instruction was objectively unreasonable and prejudiced the defense	State: counsel had tactical reasons (avoid emphasizing prejudicial evidence; successfully limited use and kept images out of deliberations)	Court: No ineffective assistance — defendant failed to show absence of any legitimate tactical reason for the decision
Whether appellate costs should be assessed against King	King: remains indigent; trial court found indigency and fees were waived	State: must show improved financial circumstances to overcome trial court’s indigency finding	Court: Waived costs — State did not show a material change; King presumed indigent

In re Pers. Restraint of Fleming, 142 Wn.2d 853 (2001) (standard for reviewing mixed questions of law and fact in ineffective assistance claims)
State v. Hicks, 163 Wn.2d 477 (2008) (review of ineffective assistance and fairness of trial)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
State v. Grier, 171 Wn.2d 17 (2011) (deference to counsel’s tactical decisions)
State v. McFarland, 127 Wn.2d 322 (1995) (absence of tactical reasons defeats ineffective assistance claim)
State v. Dow, 162 Wn. App. 324 (2011) (failure to request limiting instruction can be legitimate tactic to avoid emphasizing harmful evidence)
State v. Yarbrough, 151 Wn. App. 66 (2009) (same principle for ER 404(b) evidence)
State v. Donald, 68 Wn. App. 543 (1993) (tactical reasons may justify not requesting limiting instructions)
State v. Hendrickson, 129 Wn.2d 61 (1996) (indigency finding at trial presumptively controls appellate cost waivers)