State Of Washington v. Patrick E. Lewis, 48169-3

In March 2013 Ayesha Johnson called 911, reporting that Patrick E. Lewis had assaulted and strangled her in his car; police photographed finger/thumb marks on her neck and arrested Lewis.
The State charged Lewis with second degree assault (domestic violence); the trial court precluded references to Lewis’s prior criminal history.
At trial Johnson testified about a romantic/on-and-off relationship with Lewis and, on cross-examination, said the relationship was ‘‘on-and-off’’ because Lewis was incarcerated — a reference to prior incarceration despite the pretrial exclusion; defense counsel did not object or move for mistrial.
The jury heard 911 audio, photographs of neck injuries, and post-assault text messages; Lewis testified he never choked Johnson and that he left after she hit him with a shoe.
The jury convicted Lewis of second degree assault and domestic violence; the court sentenced him to 47 months, found him indigent, and waived discretionary LFOs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to move for mistrial after juror/hearsay reference to Lewis’s incarceration was ineffective assistance	Lewis argues counsel performed deficiently by not moving for mistrial after Johnson referenced his incarceration, violating the pretrial exclusion of criminal history	State contends counsel had tactical reasons (avoid emphasizing damaging reference via mistrial or limiting instruction) and the remark was not so prejudicial as to require mistrial	Court held counsel’s performance was not deficient; decision not to move for mistrial was reasonable trial strategy and inquiry ends because no deficient performance shown
Whether the incarceration comment required a mistrial	Lewis argues the comment breached the exclusion and was highly prejudicial	State and court note the single, ambiguous remark did not render trial fundamentally unfair	Court held the comment did not require mistrial; any remedy likely would be a curative instruction and not a new trial
Whether appellate costs should be imposed	N/A (Lewis requests waiver)	State reserved cost bill and suggested waiting	Court declined to impose appellate costs given trial court’s indigency finding and Lewis’s unemployment/history
Standard for reviewing ineffective assistance claims	N/A	N/A	Court applied de novo review and the Strickland-type two-prong test requiring deficient performance and prejudice; terminated review after finding no deficient performance

Jones v. State, 183 Wn.2d 327 (2015) (standard for ineffective assistance review)
Kyllo v. United States, 166 Wn.2d 856 (2009) (two-prong ineffective assistance framework referenced)
Benn v. State, 120 Wn.2d 631 (1993) (reasonableness standard for attorney performance)
In re Personal Restraint of Cross, 180 Wn.2d 664 (2014) (presumption that counsel’s acts are tactical absent no possible explanation)
State v. Dow, 162 Wn. App. 324 (2011) (counsel may avoid limiting instructions to prevent reemphasizing damaging evidence)
State v. Sinclair, 192 Wn. App. 380 (2016) (discretion to award appellate costs and consider ability to pay)
State v. Gamble, 168 Wn.2d 161 (2010) (standard for when mistrial is required)