State Of Washington v. Steven Russell, 48348-3

Background

Police responded to a 911 report of possible domestic violence at Russell’s Aberdeen home; four officers entered after the door was opened slightly.
Inside, several people—including Russell, his sister Patricia, and girlfriend Laura Maldonado—were yelling at officers; officers described the scene as hostile and dangerous.
As officers attempted to control the scene, Russell charged; witnesses testified he made a closed-fist motion, hit Officer Green (knocking him down), and threw a punch at Officer Salstrom; officers deployed a taser, pepper spray, and used force to subdue and handcuff Russell.
Russell was charged with two counts of third degree assault for assaulting Officers Green and Salstrom; he claimed he acted to defend Maldonado and/or to resist excessive force.
At trial the court gave a combined instruction on lawful force to resist an arrest or to aid another only when the person is in actual and imminent danger of serious injury from excessive force; Russell did not object to that instruction or several prosecution remarks during closing.
Jury convicted on both counts; on appeal Russell challenged sufficiency of evidence (assault of Green), ineffective assistance of counsel (instructions and failure to object), prosecutorial misconduct, and raised additional grounds in a SAG.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that Russell intended to assault Green	State: Officer testimony that Russell knocked Green down supported intent to make physical contact necessary for assault.	Russell: He only may have brushed Green and denied knocking him down.	Held: Sufficient evidence — intent for assault is met by intent to make physical contact; officers’ testimony permitted conviction.
Ineffective assistance for failing to propose a defense-of-another instruction	Russell: Counsel only proposed instructions tied to resisting arrest, not a proper defense-of-another instruction.	State: Counsel did propose a WPIC-based instruction on defense of another; instruction was factually applicable.	Held: No deficiency — counsel proposed a correct defense-of-another instruction; no ineffective assistance.
Ineffective assistance for not objecting to testimony about officers’ force and Patricia’s scratches	Russell: Counsel should have objected (ER 404(b), unfair prejudice) to testimony about taser/pepper/some punches and Patricia’s scratch marks.	State: Not objecting could be tactical to support self-defense/excessive-force theory; testimony did not prejudice because source of scratches was unclear.	Held: No deficient performance or resulting prejudice — plausible trial strategy and lack of demonstrated prejudice.
Prosecutorial misconduct (inflaming jury, minimizing burden, vouching)	Russell: Prosecutor’s remarks improperly appealed to sympathy/passion, misstated burden of proof, and vouched for officers’ credibility.	State: Remarks were fair inferences from evidence; some statements were inartful but not flagrant; defendant failed to object so waived except for flagrant misconduct.	Held: Most remarks not improper in context; two statements improperly vouched but defendant waived by not objecting and they were not so flagrant as to be incurable; no reversible misconduct.

Key Cases Cited

State v. Homan, 181 Wn.2d 102 (Wash. 2014) (standard for sufficiency of evidence review)
State v. Brown, 140 Wn.2d 456 (Wash. 2000) (elements for assault on law enforcement)
State v. Grier, 171 Wn.2d 17 (Wash. 2011) (ineffective assistance standard; two-prong test)
State v. Emery, 174 Wn.2d 741 (Wash. 2012) (waiver of prosecutorial-misconduct claims absent objection unless error is flagrant)
State v. Ish, 170 Wn.2d 189 (Wash. 2010) (prosecutorial vouching prohibited)
State v. Osman, 192 Wn. App. 355 (Wash. Ct. App. 2016) (discussion of the jury’s “abiding belief” language)