State of Washington v. Jay Trevor Powers, 34006-6

Background

In March 2015 Trevor (Jay Trevor) Powers, a winery caretaker, fired multiple rounds at a pickup after approaching it with a handgun; two occupants were inside and later reported the shooting. Powers was charged with two counts of second-degree assault with firearm enhancements and one count of first-degree malicious mischief.
Powers' recorded police interviews and testimony from his roommate were used at trial; Powers did not testify and claimed he fired in self-defense.
A defense forensic evaluation by Dr. Philip Barnard opined Powers had ‘‘diminished capacity’’ affecting judgment at the time of the incidents. The defense provided the report to the court but did not request a diminished-capacity instruction at trial.
A jury convicted Powers on all counts and returned special verdicts that he was armed with a firearm; he was sentenced to 85 months and ordered to pay restitution and $4,552.50 in legal financial obligations (LFOs), including a $2,742.50 ‘‘special cost reimbursement’’ listed on a clerk-prepared cost bill (DR $2,000 for the defense expert; INV $742.50 for an investigator). Powers did not object to costs at sentencing.
On appeal (pro se SAG included), Powers challenged: (1) delegation to the clerk to impose special costs and the prosecutor’s taxing duties; (2) that expert/investigator costs are constitutionally protected trial expenses and therefore not taxable; (3) instructional error; (4) failure to conduct an individualized Blazina inquiry into ability to pay; and (5) ineffective assistance for not requesting a diminished-capacity instruction.

Issues

Issue	Plaintiff's Argument (Powers)	Defendant's Argument (State)	Held
Whether the court improperly delegated authority to clerk to impose special costs	Clerk’s cost bill imposed a $2,742.50 special reimbursement without court’s statutory designation; delegation unlawful	The court imposed total costs in judgment and sentence and incorporated the clerk’s cost bill by reference; no unlawful delegation	No error — court, not clerk, imposed costs and incorporation of cost bill was adequate
Whether defense expert/investigator costs are "expenses inherent in providing a constitutionally guaranteed jury trial" (RCW 10.01.160(2)) and thus not taxable	DR and INV fees (expert and investigator) are necessary counsel-provided services protected by Sixth Amendment and CrR 3.1(f) and cannot be shifted to defendant	Such expert/investigator fees are expenses specially incurred by the State in prosecution and are taxable; phrase targets jury-trial inherent costs, not all constitutionally related services	Held for State — expert/investigator fees are taxable special costs, not barred by statute
Whether trial court erred in failing to challenge jury instructions (special-verdict wording)	Instructional inconsistency (special verdict burden phrased as "armed with a deadly weapon" rather than "firearm") prejudiced verdict	No timely objection at trial; special verdicts clearly state armed with a firearm; Williams-Walker supports relying on special verdicts	Issue waived under RAP 2.5(a)/CrR 6.15(c); no relief granted
Whether counsel was ineffective for not requesting diminished-capacity instruction	Dr. Barnard’s report showed diminished capacity; counsel’s failure to request instruction was deficient and prejudicial	Counsel tactically pursued self-defense/mitigation and treated the expert report as sentencing mitigation; expert opinion was based on defendant’s self-report and did not clearly satisfy diminished-capacity legal standard	No ineffective assistance — presumption of competent strategy; counsel’s choice was reasonable and not shown deficient

Key Cases Cited

State v. Diaz-Farias, 191 Wn. App. 512 (2015) (distinguishing statutory "expenses inherent in providing a constitutionally guaranteed jury trial" and permitting appellate challenge to unauthorized costs)
State v. Blazina, 182 Wn.2d 827 (2015) (requires individualized on-the-record inquiry into defendant's ability to pay discretionary LFOs)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
State v. Thomas, 109 Wn.2d 222 (1987) (ineffective assistance where counsel failed to request diminished-capacity instruction consistent with defense)
State v. Williams-Walker, 167 Wn.2d 889 (2010) (jury must authorize sentence enhancements via special verdict; cannot infer enhancements from inconsistent verdicts)