Lead Opinion
¶1 — David Carson appeals his conviction on three counts of child molestation in the first degree. He argues on appeal that he received ineffective assistance of counsel because his attorney objected to a Petrich
¶2 Defense counsel reasonably concluded that the proposed instruction’s language, tailored as it is for use in single-count cases, would be confusing and potentially prejudicial in Carson’s multicount case. Under these circumstances, Carson cannot establish deficient performance. Moreover, defense counsel’s objection did not prejudice Carson because the prosecution’s closing argument clearly elected the acts on which the State was relying. For these reasons, we affirm.
I. Factual Background
¶3 In 2009, Carson, who was homeless at the time, moved into the home of his childhood friend Dustin Halbert. Halbert lived with his fiancée, Tiffany Hagen, and her three children, including C.C., who had just turned five years old at the time Carson moved in. Carson watched the children during the day while Halbert and Hagen worked. Carson lived with the family for approximately one year and two months.
¶4 Three months after Carson had moved out of the house, C.C. told Hagen that Carson “tried to put his penis in [C.C.’s] butt.” Hagen called police. Thirteen days later, C.C. underwent a medical examination and was interviewed by child forensic interviewer Cornelia Thomas. The forensic interview lasted just over 40 minutes. A DVD (digital video disk) of the interview was introduced as an exhibit at Carson’s trial. The jury viewed the video of the forensic interview three times: once during Thomas’s testimony at trial and twice during its deliberations after sending requests for the video to the court.
¶5 As recorded in the DVD, C.C. describes three separate incidents of sexual assault by Carson in some detail: one where Carson twisted C.C.’s “business,” C.C.’s term for a penis; and two incidents where Carson attempted to put his “business” in C.C.’s “bottom.” According to C.C.’s statements during the interview, Carson twisted C.C.’s “business” in a bathroom. C.C. also said that Carson attempted to put his “business” in C.C.’s “bottom” while they were in his “mom’s room,” which he also referred to as his “mom and dad’s” room. At some point during this assault, Carson put tape on C.C.’s mouth and used zip ties to tie C.C.’s hands behind his back. In the third incident that C.C. described, Carson attempted to put his “business” into C.C.’s “bottom” in C.C.’s own room after making C.C. look at his Spider-Man blanket.
¶6 The following month, Detective Thomas Catey interviewed Carson at the Pierce County Sheriff’s Department headquarters. During the interview, Carson denied having any sexual contact with C.C. Carson claimed that the allegations were retaliation for Carson’s moving out of their house and leaving them in a financial bind.
¶7 The State charged Carson with one count of rape of a child in the first degree and one count of child molestation in the first degree. Eleven days before trial, the State filed an amended information charging three counts of child molestation in the first degree. Because C.C. never provided dates on which each event occurred, each count of the amended information specified a charging period covering the entire time that Carson lived in the same house as C.C.—April 1, 2009 to May 31, 2010:
That DAVID WILLIAM CARSON, in the State of Washington, during the period between the 1st day of April, 2009 and the 31st day of May, 2010, did unlawfully and feloniously, being at least 36 months older than C C, have sexual contact with C C, who is less than 12 years old and not married to the defendant and not in a state registered domestic partnership with the defendant, contrary to RCW 9A[.]44[.]083, and against the peace and dignity of the State of Washington.
II. Trial
¶8 When he testified at trial, C.C. had difficulty recalling the specifics of each incident, often responding with “I forgot” or “I don’t remember” to questions from both attorneys. C.C. recalled a few particulars, such as Carson tying C.C.’s hands and taping his mouth while they were in his parents’ room, but C.C. was unable to confirm or recount most of the details he had described in his videotaped interview 18 months earlier.
¶9 The prosecution’s closing argument focused exclusively on the three incidents that C.C. described in his videotaped interview. The prosecutor explicitly told the jury that those incidents were the only acts the State wished the jury to focus on for the purposes of its deliberations. The prosecutor then proceeded to walk the jury through the specifics of these three incidents, which correlated with the three described in C.C.’s interview.
¶10 In the defense’s closing argument, defense counsel argued that the allegations were entirely fabricated. He argued that true sources of the allegations against Carson were Halbert and Hagen, who concocted the claims of sexual abuse as retaliation for Carson’s leaving them in a financial bind. During the relatively short time that defense counsel spent discussing the specific allegations against Carson, he focused almost entirely on the video of C.C.’s interview with Thomas and urged the jury to view the video. He argued that the allegations against his client were completely false, the by-product of coaching by C.C.’s parents combined with embellishment by C.C. himself.
¶11 Prior to closing arguments, the parties discussed the State’s proposed Petrich instruction, which read:
The State alleges that the defendant committed acts of Child Molestation in the First Degree against C.C. on multiple occasions. To convict the defendant on any count of Child Molestation in the First Degree, one particular act of Child Molestation in the First Degree must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of Child Molestation in the First Degree.
¶ 12 The possibility of a Petrich instruction had first been raised by the trial court the week before trial. Defense counsel had then suggested that the instruction might not be necessary because the evidence showed “three separate and distinct, identifiable acts.” On the second day of trial, the parties discussed their proposed instructions with the court, including the State’s Petrich instruction. Defense counsel argued that the instruction was unnecessary because the evidence pointed to “three separate and distinct incidents, one in [C.C.’s] room, one in his mother’s room, and one in the bathroom.”
I think [the Petrich instruction] can be confusing in a case where you have specific instances alleged, where three acts potentially are alleged . . . and three acts are charged. If you read that instruction, it confuses the jury into thinking, well, if you agree that one act happened, then you must agree that all of them happened. And that concerns me.
¶13 The following day, after both parties rested, defense counsel specifically objected to the State’s proposed Petrich instruction as confusing. The State responded that it had not elected to tie specific acts to specific counts “in the Information,” noting that each of the counts alleged the same charging period
¶14 The jury returned verdicts of guilty on all three counts.
III. Appeal
¶15 Carson appealed, asserting that his trial counsel’s objection to the Petrich instruction constituted ineffective assistance of counsel.
¶16 In dissent, Judge Worswick asserted that defense counsel’s objection to the Petrich instruction was based on a belief that Petrich was inapplicable in multicount cases. Id. at 982-84. She concluded that this objection was based “on an erroneous view of the law” and thus cannot “be characterized as a legitimate trial tactic.” Id. at 984.
STANDARD OF REVIEW
¶17 Ineffective assistance of counsel is a fact-based determination, and we review the entire record in determining whether a defendant received effective representation at trial. State v. Rhoads,
ANALYSIS
¶18 Carson fails to establish either deficient performance or prejudice. Defense counsel did not perform defi-ciently because his objection to the State’s proposed Petrich instruction was a reasonable trial tactic with the legitimate goal of avoiding jury confusion. That objection was both tactically and strategically reasonable. Carson’s ineffective assistance claim also fails to satisfy the prejudice prong of the Strickland standard because the State elected the three acts on which it was relying, thus rendering a Petrich instruction unnecessary and eliminating any possible prejudice that could have resulted from defense counsel’s objection to such an instruction. We therefore reject Carson’s ineffective assistance claim and affirm.
I. Background on the Petrich Instruction
¶19 In the trial that gave rise to the Petrich instruction, the State presented evidence of “numerous incidents of sexual contact [that] were described in varying detail.” Petrich,
¶20 This court held that the trial court’s denial of the defendant’s motion to compel election deprived the defendant of his right to a unanimous verdict, setting forth what became known as the Petrich rule:
When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected. . . . The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured.
Id. at 572.
¶21 The Petrich instruction was later incorporated into the Washington Pattern Jury Instructions. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.25, at 110-12 (3d ed. 2008) (WPIC).
II. Deficient Performance
¶22 Defense counsel’s objection to the State’s proposed Petrich instruction did not constitute deficient performance. Our analysis begins with the strong presumption that counsel’s performance was reasonable. State v. Kyllo,
¶23 The presumption of effective representation imposes on the defendant the burden on appeal to “show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.” State v. McFarland,
A. Counsel’s objection was reasonable because the proposed instruction was confusing and potentially prejudicial
¶24 The proposed instruction that the State offered was a word-for-word copy of the model Petrich instruction that appears in the Washington Pattern Jury Instructions. As defense counsel noted, that instruction’s statement that “one particular act... must be proved beyond a reasonable doubt” made little sense in Carson’s case because Carson was charged with three separate counts of child molestation. The confusion was exacerbated
¶25 It is true, as Judge Worswick noted in her Court of Appeals dissent, that the State’s proposed instruction was “an accurate statement of applicable law.” Carson,
¶26 Defense counsel’s objection also advanced the defense’s broader trial strategy. On the record, defense counsel explicitly stated that his “theory of the case” was that Carson “left [C.C.’s parents] in a bind and they suggested” the details of the sexual misconduct to C.C. As the Court of Appeals noted, defense counsel’s summation “avoided discussing specific incidents . .. and argued instead that CC’s testimony and statements were so muddled, inconsistent, and confusing that they created a reasonable doubt about whether Carson had committed any of the acts or the charged crimes.” Id. at 979.
¶27 Because the defense’s theory focused on the credibility of C.C. and his testimony, defense counsel may have concluded any parsing out of the individual acts would have undercut his strategy by planting the idea in the jury’s mind that C.C. might have told the truth about at least some of what happened. At best, then, the Petrich instruction was irrelevant to the defense’s broader trial strategy; at worst, it could have actively undercut that strategy. This further underscores the reasonableness of defense counsel’s decision to object to the reading of the State’s proposed instruction.
¶28 The concurrence asserts that Carson’s attorney should not have objected to the modified Petrich instruction because such an instruction would not have been inconsistent with his primary strategy of painting the charges as wholly false.
[A] difficult issue is whether an advocate should advance alternative theories that are not inconsistent—for example, defending a contract suit by claiming duress and also arguing that the defendant’s performance did not constitute a breach of the contract. Because of the cost of overtrying, advancing the second defense may be viewed by the jury as revealing the attorney’s lack of confidence in his first defense. Here again, most experienced attorneys advise, as a general rule, against advancing multiple theories to the jury, even if such theories are not inconsistent.
ROBERT H. Klonoff & Paul L. Colby, Winning Jury Trials: Trial Tactics and Sponsorship Strategies 39-40 (3d ed. 2007). Indeed, we have previously held that an all-or-nothing approach, though risky, is a reasonable trial strategy. Grier,
¶29 Because objecting to the proposed Petrich instruction in Carson’s case can be characterized as part of a legitimate trial strategy, defense counsel did not perform deficiently when he objected to the instruction and instead focused on portraying the allegations against his client as wholly false.
B. Counsel’s objection was not based on a misunderstanding of law
¶30 We reject Carson’s argument, echoing the Court of Appeals dissent, that defense counsel’s objection to the Petrich instruction was per se unreasonable because it was “based on misunderstandings of the law.” Carson,
¶31 But more importantly, this was not the reason that defense counsel cited when he objected the following day. As discussed above, the record demonstrates that the potential for jury confusion was the driving force behind defense counsel’s objection to the proposed Petrich instruction. When asked if he was objecting to the proposed Petrich instruction, defense counsel’s response was “I think it is confusing, yes.” Concerns that the jury could be “confused” or “misled” dominated defense counsel’s explanations of why he did not want a Petrich instruction read to the jury.
¶32 Moreover, no decision of this court has addressed the circumstances of Carson’s trial: a defendant charged with n (which, in Carson’s case, is equal to three) counts, evidence tending to show only n incidents that meet the elements of the crime, and the prosecution identifies the acts on which the charges are based.
¶33 The WPICs do not provide an example of a multicount variation on the Petrich instruction. As previously noted, the WPIC note on use for the Petrich instruction advises courts to “[u]se this instruction . . . when the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct.” WPIC 4.25 at 110 note on use (emphasis added). A sentence in the comment on the pattern instruction states that “[i]f the instruction is being modified for multiple counts, then the instruction needs to clearly require unanimity for one
¶34 Against that background, one can hardly blame defense counsel for choosing to avoid the Petrich instruction rather than attempting an ad hoc rewrite of the instruction, particularly given that the distinctions between the various incidents were irrelevant to the defense’s theory of the case. Accordingly, it was reasonable for defense counsel to object to the Petrich instruction. For these reasons, Carson’s trial counsel did not perform deficiently. We reject his ineffective assistance claim on that basis.
III. Prejudice
¶35 Given the State’s clear election of three acts in its closing argument, Carson was not prejudiced by the absence of a Petrich instruction. Because we are reviewing only defense counsel’s performance rather than the trial court’s failure to give a Petrich instruction, we use the Strickland standard for ineffective assistance claims and require the defendant to demonstrate that his attorney’s deficient performance prejudiced him. State v. Robinson,
¶36 Under Strickland, we do not presume prejudice unless the trial “loses its character as a confrontation between adversaries,” State v. Webbe,
¶37 None of Strickland’s presumptively prejudicial circumstances exist here. Consequently, under Strickland’s standard of review, Carson bears the burden of establishing that “there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different." Kyllo,
¶38 Petrich’s multiple acts instruction applies only when the State fails to “elect the act,upon which it will rely for conviction.” Petrich,
¶39 We have never held that the State’s election of an act must be ratified by the court or incorporated into the charging document or jury instructions in order to be effective. On the contrary, and as our use of the phrase “tell the jury” in Kitchen suggests, id. (emphasis added), an election can be made by the prosecuting attorney in a verbal statement to the jury as long as the prosecution “clearly identified] the act upon which” the charge in question is based. State v. Thompson,
¶40 Here, the evidence tended to show only three separate acts
¶41 This suffices to constitute an election. The prosecutor, unlike the court, cannot actually instruct the jury to ignore particular testimony or evidence. By specifying exactly three instances of sexual misconduct and disclaiming the State’s intention to rely on other acts, the State effectively elected the acts on which the State sought a conviction.
CONCLUSION
¶42 Carson has established neither deficient performance nor prejudice. We therefore reject his ineffective assistance claim and affirm.
Notes
State v. Petrich,
Carson argues that C.C. and Hagen testified at trial regarding incidents other than the ones described in the videotaped interview, citing brief references to an “office” and a “closet” in C.C.’s and Hagen’s testimony, respectively. It is not clear that the mention of “a closet” referred to a separate incident from the zip-ties- and-tape incident because Hagen testified that she was not sure whether C.C. was referring to “one incident or more” when he first disclosed Carson’s abuse. Moreover, C.C.’s testimony during trial showed that he had great difficulty remembering any specifics regarding the instances of sexual abuse. Because the record contains minimal detail regarding the references to an “office” and a “closet,” it is difficult to determine whether these constituted separate incidents from the three that C.C. described in his videotaped interview rather than simply a sign that C.C. had trouble remembering where and how each incident occurred. Considering C.C.’s very young age and the two-year gap between the alleged incidents and the trial, his difficulties with remembering, describing, and distinguishing between each incident are hardly surprising. In any case, for the reasons set forth below in our analysis, the prosecution’s closing argument elected the acts on which the State was relying for conviction, thus eliminating the risk that the jury might convict Carson based on any supposed other acts.
Notably, defense counsel made this statement after C.C. and Hagen had completed their trial testimony and, thus, after the statements discussed supra note 2.
Carson also argued before the Court of Appeals that the trial court itself erred by failing to give a Petrich instruction. The Court of Appeals rejected this argument under the invited error doctrine. State v. Carson,
WPIC 4.25 reads:
The [State] [County] [City] alleges that the defendant committed acts of (identify crime) on multiple occasions. To convict the defendant [on any count] of (identify crime), one particular act of (identify crime) must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of (identify crime).
(Alterations in original.)
In his petition for review, Carson asserts for the first time that “since defense counsel believed the instruction was confusing, he could have proposed a modified unanimity instruction.” Pet. for Review at 15. But Carson has neither cited to a suitable instruction nor set forth a proposed instruction that he believes should have been read at trial. Defense counsel could have reasonably concluded that the risks of crafting an untested variation on the Petrich instruction outweighed the slight risk that the jury would convict his client based on acts other than the three that were described in the video.
In so doing, the concurrence sets up a straw man by asserting that the court’s opinion “assert[s] that a unanimity instruction would have been inconsistent with the general defense strategy of attacking the accuser’s credibility.” Concurrence (Gordon McCloud, J.) at 235. We say no such thing. Rather, we simply have noted that defense counsel’s objection to the State’s proposed instruction can reasonably be seen as advancing his trial strategy.
The concurrence grossly mischaracterizes our reasoning on these points, accusing us of concluding “That a Unanimity Instruction Is Unnecessary in a Multicount Case” and of holding that “a Petrich instruction is always unnecessary when the number of acts alleged is equal to the number of counts charged.” Concurrence (Gordon McCloud, J.) at 231. The concurrence would be considerably more helpful to the reader if it did not ignore what we have actually said in this opinion. First, the concurrence’s mischaracterizations ignore a point that we emphasize throughout this opinion: the defense counsel’s stated reason for objecting to the proposed instruction was his reasonable fear of jury confusion, not his understanding (or misunderstanding) of the applicable law. Moreover, we do not conclude that a unanimity instruction is never necessary in a multicount case (a question that is not presented in this ineffective assistance case); rather, we hold that it was not deficient performance for defense counsel to object to a Petrich instruction “in Carson’s specific case” in part because the evidence showed “three separate and distinct incidents.” And we do not hold that a Petrich instruction is “always unnecessary” when there is exact congruence between the acts alleged and the counts charged; rather, we simply note that we have never “specifically held” that a Petrich instruction must be read in such cases, thus adding credence to defense counsel’s conclusion that it would be better to avoid such an instruction in Carson’s specific case.
Even when defense counsel did discuss the underlying law, he did not claim that Petrich could be applied only in single-count cases. Instead, he argued that the instruction normally is read in single-count cases and was not designed for multicount cases and that its language can be confusing if read in multicount cases.
The concurrence opines that we “specifically held that a Petrich instruction is constitutionally required in a case where there is exact congruence between the acts alleged and the counts charged,” citing State v. Vander Houwen,
The concurrence asserts that two Court of Appeals cases cited in the comment include suitable instructions, specifically State v. Hayes,
See also In re Pers. Restraint of Davis,
The Strickland Court elaborated:
[Where a defendant is completely denied counsel or the State interferes with counsel’s assistance, prejudice] is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.
[When there is an actual conflict of interest],... it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable' for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.
In its Court of Appeals brief, the State argued that no Petrich instruction had been necessary because the State had made an election. The Court of Appeals acknowledged this argument in its discussion of Carson’s claim that the trial court erred in failing to give a Petrich instruction, Carson,
Similar to the Court of Appeals holding in Williams, we held in State v. Kier,
See supra note 2.
In a note to her dissent, Judge Worswick asserts that the State “clearly chose not to elect,” citing two statements that the prosecutor made outside the presence of the jury. Carson,
This conclusion might be different had the jury returned guilty verdicts on only one or two of the three counts. Such verdicts would indicate prejudice by raising the possibility that some jurors had convicted Carson based on one of the acts highlighted by the prosecution, while others had relied on a separate act. But because the jury returned guilty verdicts on all three counts, it is apparent that the jury believed that the defendant had committed all three incidents of molestation. Likewise, there may be circumstances where a late election by the prosecution would be prejudicial to the defendant. But no such prejudice could have occurred here because defense counsel expressed his opinion even before the prosecution’s election that the evidence tended to show only three separate acts of misconduct. The prosecutor’s election thus did nothing more than make explicit what the evidence already showed.
Concurrence Opinion
¶44 (concurring) — Defense counsel objected to a Petrich
¶45 The majority holds that these were good reasons showing legitimate defense strategy because a Petrich instruction is always unnecessary when the number of acts alleged is equal to the number of counts charged. See, e.g., majority at 222 (“Defense counsel appears to be correct [that a Petrich instruction was not necessary]—we have never specifically held that Petrich must be read in cases where there is exact congruence between the number of incidents described in the evidence and the number of criminal counts charged.” (emphasis added)).
¶46 I respectfully disagree. If defense counsel had done his background research, he would have discovered that our court has held—and the WPICs confirm—that a Petrich-type unanimity instruction should be given in multicount cases and that it should be given in tried-and-true language that our court has quoted and the WPIC committee has endorsed. I therefore agree with the dissent in the Court of Appeals that trial counsel’s performance was deficient.
¶47 However, I also agree with the majority that the deficient performance did not cause prejudice. I therefore concur.
I. The Majority Incorrectly Concludes That a Unanimity Instruction Is Unnecessary in a Multicount Case
¶48 As the majority notes, the Petrich instruction originated in a case in which the State charged only one count each of two crimes and supported each count with multiple alleged acts. Majority at 216-17 (quoting Petrich,
¶49 This extension of Petrich is unsurprising: a Petrich instruction serves just as compelling a purpose in a multicount case as it does in a single-count case. Vander Houwen,
¶50 Contrary to the majority’s assertion, the WPIC does “provide an example of a multicount variation on the Petrich instruction.” Majority at 224. The WPIC comment cites to State v. Hayes, in which Division One held the following to be a proper multicount Petrich instruction:
“A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.
“To convict [for each count, you must find as an element]:
. . That on or about the 1st day of July, 1990 through the 31st day of May, 1992, but an occasion separate and distinct from that charged in [the remaining counts], the defendant had sexual intercourse with [the victim];
“. . . For you to return a verdict of guilty all twelve jurors must agree that the same incident of sexual intercourse has been proved beyond a reasonable doubt.”
¶51 The WPIC comments also cite State v. Borsheim,
“There are allegations that the Defendant committed acts of rape of [a] child on multiple occasions. To convict the Defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.”
Borsheim,
¶52 In light of these two examples, defense counsel did not have to choose between “avoid [ing] the Petrich instruction” and “attempting an ad hoc rewrite of the instruction.” Majority at 225. Instead, he could have read the authority cited in the WPIC comment and requested an instruction based on the examples it provided. I respectfully disagree with the majority’s conclusion that trial counsel’s performance reflected a legitimate tactical decision. Instead, trial counsel’s failure to conduct this background research constituted deficient performance. See State v. Kyllo,
¶53 The majority also makes the sweeping general assertion that where the number of counts charged is the same as the number of acts alleged, that congruence makes Petrich inapplicable:
[N]o decision of this court has addressed the circumstances of Carson’s trial: a defendant charged with n (which, in Carson’s case, is equal to three) counts [and] evidence tending to show only n incidents that meet the elements of the crime .... Reading the Petrich instruction in such a multicount case could be prejudicial to the defendant ....
Majority at 223-24 (emphasis added).
¶54 Again, I respectfully disagree. Congruence between the number of acts alleged and the number of guilty verdicts returned is certainly relevant to the prejudice inquiry in this case. But congruence between acts alleged and counts charged makes no difference to the initial question presented here: whether counsel reasonably refused a unanimity instruction in the first place. Without a unanimity instruction, the defendant has no assurance that individual jurors will convict based on the same single act for each count. This is equally true whether the number of acts alleged does or does not equal the number of counts charged.
¶55 The majority is incorrect when it asserts that “we have never ‘specifically held’ that a Petrich instruction must be read” in cases where “there is exact congruence between the acts alleged and the counts charged.” Majority at 222 n.8. In Vander Houwen, the state found 10 slain elk in the defendant’s apple orchard and charged him with 10 counts each of waste of wildlife and unlawful big game hunting—10 counts of each charge for 10 alleged acts of shooting an elk.
II. The Majority Incorrectly Holds That Defense Counsel’s Objection to the Unanimity Instruction Was a Legitimate Trial Strategy
¶56 The majority also concludes that defense counsel objected to the jury unanimity instruction because this “advanced the defense’s broader trial strategy.” According to the majority, this strategy was to “ ‘avoid[ ] discussing specific incidents ... and argue [ ] instead that [all of] CC’s testimony [lacked credibility].’ ” Majority at 219-20 (second alteration in original) (quoting State v. Carson,
¶57 This seems like an overly formalistic assessment of how a criminal defense lawyer’s theory of the case works.
¶58 First, the majority’s theory ignores the presence of instruction 3, which advised the jurors that they “must decide each count separately” and that their “verdict on one count should not control [their] verdict on any other count.” Clerk’s Papers at 63. It is unclear why defense counsel would have objected to a unanimity instruction on the basis that it distinguished between the charges while ignoring an instruction that explicitly required the jury to make just such a distinction.
¶59 Second, the majority is incorrect in asserting that a unanimity instruction would have been inconsistent with the general defense strategy of attacking the accuser’s credibility. Carson argued that the jury should not convict on any count at all; the unanimity instruction would have told the jury that it also could not convict on any single count unless every juror unanimously agreed on the incident forming the basis for that count. Success on the first theory depends on discrediting the victim’s testimony as to all three alleged incidents; success on the second theory depends on discrediting the victim’s testimony as to any one, two, or three of those same incidents. The second argument is not inconsistent with the first. In fact, they are completely consistent: they both depend on discrediting the victim. Far from contradicting the general defense, the unanimity instruction would have added an extra layer of protection for the defendant’s constitutional rights.
¶60 As noted above, defense counsel did express a legitimate concern about confusing the jury—he feared that in a multicount case, the standard Petrich instruction might confuse the jury into thinking that if it convicted on one count, it must convict on all counts. See majority at 219-20. But defense counsel could have addressed this confusion without also jeopardizing his client’s right to a unanimous verdict. He could have requested an instruction like the one in Hayes, which tells the jurors that they can convict on any one count only if they unanimously agree that the defendant committed the act supporting that count on “ ‘an occasion separate and distinct from that charged in [the remaining counts].’ ”
¶61 For these reasons, I would hold that defense counsel’s objection to a jury unanimity instruction constituted deficient performance. I agree with the dissent in the Court of Appeals that “basing a decision on an erroneous view of the law can [not] be characterized as a legitimate trial tactic.” Carson,
CONCLUSION
¶62 I agree with the majority’s holding on prejudice, and I would affirm solely on that basis. But I disagree with the majority’s conclusion that a Petrich instruction is unnecessary in a multicount case, I disagree with the majority’s implication that a unanimity instruction is unnecessary where the number of acts alleged equals the number of counts charged, and I disagree with the majority’s conclusion that a unanimity instruction is inconsistent with the defense of general denial. For these reasons, I respectfully concur.
State v. Petrich,
Concurrence Opinion
¶43 (concurring) — I am concerned that both the majority and Justice Gordon McCloud’s concurrence make broad statements about when a Petrich
State v. Petrich,