86180-8
Wash. Ct. App.Jul 15, 2024Background
- Adam Diggins was convicted by a jury of felony harassment, cyberstalking (with a firearm enhancement), and use of drug paraphernalia, as well as, after a third trial, attempted first-degree murder of M.D., his ex-girlfriend’s new partner.
- The convictions stemmed from May 2021 threats sent by Diggins to D.G. (his ex) and their daughter, explicitly stating intentions to kill M.D. and himself, and included sending photos of a loaded handgun and traveling to M.D.'s neighborhood.
- Multiple trials occurred: the first two resulted in hung juries on the attempted murder charge; only at the third were prior threats from 2015 and Diggins' jail calls admitted.
- On appeal, Diggins challenged the findings on evidentiary grounds (admission of prior threats, jail calls), sufficiency of the evidence, adequacy of jury instructions in light of new Supreme Court precedent (Counterman), sentencing fees, and asserted several procedural and assistance-of-counsel errors.
- The court remanded to strike mandatory victim penalty and DNA fees per a recent legislative change but affirmed all convictions and related findings otherwise.
Issues
| Issue | Diggins' Argument | State's Argument | Held |
|---|---|---|---|
| Admission of 2015 Threats | Admission was unduly prejudicial, unnecessary due to ample recent evidence | Highly probative for intent/motive, outweighed any prejudice | Error not to balance on record, but harmless |
| Admission of Jail Call | Delayed disclosure was prosecutorial mismanagement, should have been excluded | Properly disclosed, no prejudice shown, no basis for exclusion | No relief—no actual prejudice or error shown |
| Ineffective Counsel | Failure to request limiting instruction for prior threats was error | Tactical decision based on chosen defense strategy | No deficiency; strategic choice |
| Sufficiency: Attempted Murder | No substantial step, only a "cry for help" due to suicidal ideation | Drove near victim’s house, armed, sent explicit threats and photo evidence | Evidence sufficient for conviction |
| Sufficiency: Harassment | Victim did not leave work immediately, did not “testify to fear” | Victim reasonably feared for his life, took protective actions | Evidence sufficient for conviction |
| Sufficiency: Firearm Enhancement | No nexus; threats to M.D. not D.G.; gun not linked to offenses | Firearm accessible, messages sent to D.G. referenced gun, sufficient nexus | Sufficient evidence for nexus |
| Jury Instructions (True Threats, Counterman) | Jury not instructed on subjective mental state (recklessness) | Evidence shows Diggins intended his statements to be threatening | Instruction error harmless, evidence clear |
| Prosecutorial Misconduct | Improper reference to unrelated Supreme Court case (assassination attempt) | Not central to argument, passing improper comment | Not so flagrant as to warrant relief |
| Sentencing Fees | Fees should be struck due to indigence and change in law | (Not disputed after legal change) | Remanded to strike fees |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes standard for ineffective assistance of counsel)
- State v. Schaler, 169 Wn.2d 274 (2010) (jury instruction omission analyzed for harmless error)
- State v. Townsend, 147 Wn.2d 666 (2002) (standard for substantial step in attempt law)
- State v. Camarillo, 115 Wn.2d 60 (1990) (trier of fact resolves credibility determinations)
- State v. Taylor, 193 Wn.2d 691 (2019) (abuse of discretion standard in evidentiary rulings)
- State v. Trey M., 186 Wn.2d 884 (2016) (sufficiency of evidence review standard)
- State v. O’Neal, 159 Wn.2d 500 (2007) (firearm enhancement, availability and accessibility analysis)
- State v. Emery, 174 Wn.2d 741 (2012) (prosecutorial misconduct framework)
- State v. Powell, 126 Wn.2d 244 (1995) (ER 404(b) evidence for motive and intent)
- State v. Monday, 171 Wn.2d 667 (2011) (prosecutorial misconduct, context of argument)