*1 sideration of the length Green's exceptional sentence. C.J.,
Pearson, Utter, Brachtenbach, Dolliver, Dore, Andersen, Callow, JJ., Goodloe, concur.
Reconsideration denied March 53550-7. En Banc. October
[No. 1987.] Kerry Respondent, Washington, The State of Petitioner. S. *2 Wyatt,
Christine for petitioner. Clem, Prosecuting P. Danny Attorney, and Reinhold C. Schuetz, Deputy, respondent. for J. This case an allegation involves of ineffec-
Goodloe, tive assistance of Kerry counsel. Petitioner Thomas alleges that her assigned trial failed to competently present a capacity diminished defense on voluntary based intoxication to a charge of to elude attempting police a agree vehicle. We for trial. remand a new On October defendant Thomas imbibed numer- ous Tavern, alcoholic drinks at the Kitsap Blue Goose County. barmaid, The Fridline, Hurleen serving remembers Thomas about glasses five of wine. Around Fridline p.m., cut off Thomas she felt because Thomas had consumed too much. thereafter, Soon getting rowdy Thomas started Goose, Fridline asked her to leaving leave. After the Blue Thomas going remembers to the Port At Orchard Tavern. a.m., approximately Thomas returned the Blue Goose in her car. Because of her drunken behavior and erratic Fridline driving police. Deputy Wayne called the Gulla of Kitsap Meanwhile, County responded. Sheriff's Office away. Thomas had driven pursued Thomas in yellow
Gulla the direction her car Shortly had last been seen. after he beginning pursuit, cyclone observed fresh skid marks passed through briefly fence. After he stopping proceeded onward. At he grocery Deputy Sandberg, store contacted John who had responded also to that location. While Gulla talking, headlights up noticed the of a car the road which "made if run pul- bounce as the vehicle was into the ditch or was Report of the ditch." at 91. Gulla ling Proceedings, out headlights in which the were in the direction headed approached car, he which He that as observed. testified necessary yellow, action to avoid to take evasive it was right doing, turn. Gulla took a so a head-on collision. began closely tailgating yellow Gulla's car followed and spot- patrol equipped patrol shields, with His car was car. headlights, push "wigwag" light, siren, and strobe bars, markings grill, lights on it indicat- not have but did ing vehicle. that it was tailgating him, Gulla made an the car that was
To evade pulled abrupt right a U-turn and out turn. He then made up point Deputy Sandberg came behind behind it. At this deputy fully Kitsap County car. him in a marked Sheriff yellow Sandberg proceeded pursue car. Gulla and lengths Gulla stated that he was no more than two car pursued "wig- patrol car's behind the car. He activated the wag" headlights, lights, He and siren. red and blue strobe responded by being testified that car accelerat- chased ing all and that weaved over the road. *3 following through curves,
The chase a series of continued yellow car a left-hand turn. Gulla testified: which the made patrol right point angled my I vehicle into the At that fleeing blasting vehicle, siren of the driver's door right I vehicle, The which in driver of the window. my female, looked toward time to be observed at that throughout patrol vehicle, of the events the course and my watching in mirror. actions her rear-view had been coming Report Proceedings, that testified at 98. Gulla of again pursued turn, car acceler- the left-hand out of emergency Sandberg During this, of his had all all of ated. lights his siren on.
Finally, street. down a dead-end the chased car turned made a U-turn. the end the driver car reached After the Sandberg's which marked vehicle The headed toward driver positioned However, she then block the road. he had custody. stopped. into Gulla Thereafter, was taken Thomas very Sandberg testified that she was intoxicated. concluded pursued a mile and a half. for a mile to he Thomas
225 Thomas testified she does not remember returning to the Blue Goose Tavern. She stated: before,
I I had a blackout. have had blackouts and a lot I'll come in of it. If something really of times terrible and out I been known happens, have to black it all out so I it. don't to deal with of Report Proceedings, 167-68. She testified that she not cyclone does recall driving through fence. Thomas also stopped testified that she as soon she realized a police vehicle was She following her. stated that she does not recall hearing any sirens. Thomas only said that she remembers seeing bright lights, white did think but was the because their are lights blue and red. She testified that she was "blitzed" and incoherent.
The Kitsap County Prosecutor
Thomas with
charged
attempting to elude a
pursuing police vehicle
violation of
RCW 46.61.024 and
under
driving while
influence
intoxi-
of
cating liquor
drug
or
violation
RCW 46.61.502. Tho-
pleaded
mas
guilty to the DWI
The
charge.
attempting
elude charge went to
A
trial.
found
guilty.
Thomas
Court
Appeals
affirmed. State v.
Wn.
723,
(1987).
Thomas'
of error
an allegation
involve
ineffective
assistance
purpose
counsel. The
of the
requirement of effective
assistance
counsel is to ensure a
fair
impartial
See,
Osborne,
v.
e.g.,
trial.
(1984);
Ermert,
Wn.2d
First, the defendant must perform- show *4 This requires showing ance was deficient. that counsel errors so serious that functioning made counsel was not "counsel" guaranteed as the the defendant the Sixth Second, the Amendment. defendant must show that performance deficient requires prejudiced the defense. This showing that counsel's errors so were serious as trial, fair trial whose the defendant of a a deprive a defendant makes both show- result is reliable. Unless . . conviction . resulted cannot be said that ings, adversary that renders process in the from a breakdown the result unreliable. Jeffries, also State v. 717 P.2d
See
105 Wn.2d
(1986); State v. Sar
denied,
The Strickland test
that counsel's
requires
showing
standard
reason-
objective
fell below an
representation
of all of the circumstances.
based on consideration
ableness
Strickland,
scrutiny of
prong,
at
the first
Regarding
688.
will
highly deferential and courts
counsel's
indulge
presumption
in a
of reasonableness.
strong
Strickland,
requirement
at
To meet the
of the second
689.
prong defendant has the burden to show
that, but
counsel's
probability
there is a reasonable
for
errors,
proceeding
would
unprofessional
the result
probability
proba-
A reasonable
been different.
the outcome.
bility
to undermine
sufficient
confidence
ours.)
however,
Strickland,
(Italics
Defendant,
at 694.
likely
more
show
conduct
"need not
that counsel's deficient
Strickland, in the case."
not altered the outcome
than
case,
assistance of
the claim of ineffective
alleged
prop-
defense counsel's
failure
counsel relates to
based on volun-
capacity
defense
erly present
diminished
of ineffective
allegation
first
tary intoxication. Thomas'
involves her trial
failure
assistance of counsel
felony
construal of the
an
based on our
offer
instruction
Sherman,
in statute,
46.61.024,
RCW
flight
53,
refuses who drives a wanton or indicating in a manner his vehicle while being property lives or others disregard wilful for the vehicle, after pursuing police elude a attempting to *5 given signal bring visual or audible the vehicle stop, guilty felony. shall be of a class C Sherman, requires we held that RCW 46.61.024 subjectively defendant both and with wan- objectively act disregard ton and willful of others. We concluded that juries should be instructed that the circumstantial evidence only of driving defendant's manner of creates a rebuttable of disregard inference "'wanton and wilful for the or lives Sherman, Sher- Therefore, of . .'" property others . at 59. man indicates objective by conduct the defendant indicating disregard only circumstantial evidence may by be rebutted subjective pertaining evidence defendant's mental state.
The defense theory of the case was that Thomas was
too intoxicated to have formulated the
or
required wanton
willful disregard. Therefore,
Sherman
she
argues
instruction
evidence,
was crucial because she presented
her
intoxication,
to rebut
of
inference
wanton
willful
disregard
by
created
driving.
her
Thomas asserts that a
Sherman instruction would have better
her
enabled
argue
the defense's
of
theory
the case.
of
The Court
Appeals disagreed and held that
the failure to offer a Sher
man instruction was not prejudicial because no evidence
Thomas,
existed
to rebut
the inference.
at 727. The court
reasoned that a Sherman
only
instruction is
if
necessary
presents
defendant
an affirmative
of a noncriminal
showing
or
state, e.g.,
throttle,
innocent
mental
stuck
rather
than
having
"no mental state at all."
at 728. Thomas
responds
voluntary
intoxication is a defense encom
Sherman
passed by the
reasoning
attorney
of
and that an
competence
reasonable
would not have failed to offer the
Sherman. We
instruction
agree
mandated
with Thomas.
Coates,
(1987)
107 Wn.2d
The evi- committed. There was substantial crime was lesser time of intoxicated at the the defendant was dence that At trial court so instructed. offense and the alleged was unable to trial, arrest and at defendant the time of the streets Seattle. through the chase remember *6 not so the defendant was could have found that jury "wilful and wanton disre- as to act without intoxicated knowledge preventing to degree but intoxicated gard", vehicle. eluding pursuing he was Parker, Coates Parker, import The clear at 165-66. Sherman, voluntary intoxication with is that together RCW violating charge of exculpatory can be an factor to a 46.61.024. of the law statement is to a correct
Defendant entitled is. what the law jury to the not have convince and should 1069 Acosta, 612, 621-22, 683 P.2d State v. 101 Wn.2d instruction (1984). "to convict" Here, proposed defendant's component subjective there did not indicate by offered 46.61.024, any nor other instruction did RCW Furthermore, the record does contain a defense. the of intoxica- on the relevance proposed defense instruction crime charged. the tion to the mental element of lack of a Sherman instruction prosecutor allowed the argue that Thomas' caused her mental state. drunkenness contrast, In that Thomas' drunken- argued defense counsel Therefore, in closing mental state. any guilty negated ness rules of law argued conflicting opposing argument, Acosta, See Accordingly, we con- at 621-22. jury. the instruction, defense to offer a Sherman failing clude was deficient. performance perform the deficient ascertain whether must still We a fair trial. Thomas of deprive serious as to was so ance Strickland, a suc guarantee Trial counsel does not at 687. Adams, 91, 86, 586 P.2d verdict, 91 Wn.2d cessful (1978), competency by is not measured the result. White, 223, P.2d 1242 Nevertheless, right must be remembered the constitutionally guaranteed effective assistance of counsel Const, (amend. by the Sixth Amendment and art. § 10) to all extends defendants. case, the whether trial counsel's deficient close On one prejudiced Thomas issue.
hand, required her indicated the driving objectively wanton hand, or disregard. willful On the other the record indicates extremely that Thomas was intoxicated. a Sherman Given instruction, jury may have determined that her extreme negated required intoxication wantonness or willful may ness. Without Sherman instruction the well have thought objective indication wanton or willful disregard created her Tho driving established and, mas' guilt therefore, may the jury never have consid ered the subjective Thus, component of we RCW 46.61.024. believe a proper instruction on the subjective component RCW 46.61.024 Accordingly, was crucial. our confidence the outcome is undermined such that we Tho say cannot mas Strickland, received effective assistance counsel. at 694. A reasonably been competent attorney would have *7 sufficiently aware of relevant him legal principles enable or her to propose an pertinent instruction based on cases. generally (5th See 453, v. Kemp Leggett, 635 F.2d 454 Cir. 1981). We hold performance that counsel's deficient deprived Thomas aof fair trial. Our conclusion further by supported Thomas' argument. second Thomas' second of allegation error involves her counsel's Hammond, failure to ascertain that Pamela on called testify by witness, an "expert" only defense as was an alcohol counselor trainee. of lack Because Hammond's qualifications testify the trial court refused to allow her to expert. expert as an No other was called. Thomas asserts her failure lack of counsel's to ascertain Hammond's upon qualifications cannot be dismissed a trial tactic Adams, attorneys frequently disagree. which differ or counsel determined that once defense argues at 90. She needed, reasonably competent any was expert that an proposed expert's qual- the counsel would have ascertained further argues or lack thereof. Thomas ifications helpful on would have been expert testimony blackouts therefore, her coun- and, alleges prejudiced by she she was ineffective assistance. sel's holding this Appeals rejected argument,
The Court of experience of a is sufficient the "collective Thomas, of drunkenness." apprise jurors the the effects defendant neither showed at 727. The court reasoned testimony have any whose could expert there was available helped. any expert testimony would have helped nor that Thomas, disagree. We will decision to call a witness
Generally, the v. State assistance of counsel. a claim of ineffective support Wilson, 895, (1981); App. 29 Wn. (1967). However, pre P.2d 231 by a overcome competence of counsel's can be
sumption failed to conduct things, other that counsel showing, among Jury, 19 Wn. appropriate investigations. case, (1978). failing P.2d 1302 qualifi trainee's lack of
discover the alcohol counselor total he cations, was Had trial counsel's deficient. any qualifications into Hammond's investigation conducted he have a trainee with mini only would discovered she was experience. mal Our is demonstrated defense conclusion voir expert during he called questioning dire, following: elicited the wherein defense counsel further of the you any questions have The Court: Do Yes, Your subject? on this witness Counsel]: [Defense Qualifications? Honor. The Court: Counsel]: [Defense Counsel) on you, Have
Yes, Q (By Honor. Defense Your chemical own, or books on the your any read treatises you A Q on the brain? No. And effect of alcoholism relating to the effect any classes last semester taken alcohol on Well, yes. A information? assimilation topic of main the class. But that But wasn't *8 in A Q was included the class? also included. That Q Assimilation of information. And what at institution A was that? That was at Fort Steilacoom Community And have College. Q you counseling been that— —Strike do your position To need what you know is in effect knowledge? alcohol the brain and the assimilation of
A in my present To be I need position to be words, in gaining to be this information. In other I required am credits, credits, getting formal in the that I field can qualified become a However, alcohol counselor. is a you process another hol counselor go through you begin. when And you thing need to get qualified become alco- directly
is hours counseling, counseling the field. So it's of a It's process. Q kind a combination? A It's a combination. You have be in the working field in order to become So I'm qualified. that's what in the I process doing. have no further [Defense Counsel]: I questions. could, question, have one other if I [Prosecutor]: Q Your Honor. [By From you what Prosecutor]: said, do I just you take then not presently are a— quote qualified counselor, unquote? alcohol A By state — counselor, no, criteria of qualified alcohol I'm an alcohol counselor trainee.
Report Proceedings, at 163-64. The foregoing demonstrates that defense counsel was "expert's" unaware of qualifications. his lack of We do not every hold that time the trial court expert determines an qualified witness performance thereby Indeed, deficient. such a trial ruling court generally provides no basis for allegation an of ineffective assistance However, of counsel. some minimal investigation qual- into required. ifications is Jury, Here, the record reflects that no investigation and, was made therefore, defense counsel's was deficient. Nonetheless, we still must determine whether Thomas prejudiced defense performance. counsel's deficient v. Jones, 622-23, (1981) 628 P.2d expert indicates that testimony is not absolutely necessary for give order a court an intoxication instruction. Jones, defendant's testimony he drank "nine or eyewitness testimony eleven" beers and describing defend- ant's intoxicated condition sufficed for the trial court *9 Jones, However, at 622-23. an intoxication instruction. give Here, Jones is not case. Thomas dispositive the her lay testimony intoxicated regarding substantial offered testimony regarding blackouts blackouts. Her condition and credibility because it suggested to her very damaging was The to her blackouts. component a there is conscious that testimony. on this capitalize attempted prosecutor may blackouts Therefore, testimony explaining expert the Court of To hold as crucial to her defense. proved that there was an showing is no simply that "there Appeals Tho- testimony helpful have offered who could expert many Arguably, at 727. question. begs mas” the testified, as defense counsel could have counselors alcohol the brain and could have to alcohol's effect on proposed, See ER 702. explaining in blackouts. the assisted in say deficiency that trial counsel's we cannot Accordingly, qualifications lack of expert's to discover his failing Tho- prejudice their effects did blackouts and explain the outcome This reaffirms that our confidence mas. undermined. Thomas' trial is circumstances, that defense on all of the we hold
Based fell objective below an standard representation counsel's Strickland, at To hold 688. otherwise reasonableness. of effective assist- guaranty the constitutional would render and remand a We reverse for verbiage. of counsel mere ance trial. new Dore, Utter, Brachtenbach, C.J.,
Pearson, JJ., concur. the Dolliver, (dissenting) opinion of Court J. Thus, in this case. fully majority answers
Appeals quote simply I analysis, this excellent rather than rewrite portion: the relevant from coun- assistance of on a claim of ineffective prevail
To show, first, perform- sel, a defendant must second, that defendant was and, deficient ance was deficiency. State v. Sardinia. 42 Wn. by prejudiced denied, review 533, 713 P.2d App. showing The first element is met that coun- fell an objective sel's sonableness; below standard of rea- second, by showing there probability that, unprofes- for counsel's "reasonable but errors, sional the result would have proceeding Sardinia, Wn. been different". Thomas requirements. fails to meet these witness, As to the we will expert arguendo assume lawyer who an witness is expert calls deficient neg- lecting qualifications: to ascertain the witness' thus we Sardinia element has been satisfied first assume that is, however, here. There difference. no showing any made First, simply no showing there there an expert testimony who could have offered helpful infer to Thomas. We will not the existence of a per- such Second, son from a silent record. there is no showing that *10 expert testimony would have any helped. The fact is that Surely Thomas was drunk. the experience collective of to apprise jurors sufficient the of the effects of drunkenness.
We also conclude that
the trial court would have com
Sher
prejudicial
mitted no
in refusing
error
[State v.]
man
53,
Wn.2d
(1982)]
Under RCW the State is required prove to that the defendant drove in a "indicating manner a wan- ton or wilful disregard for the lives of property of others (Italics ours.) Sherman acknowledged that ..." this mental state can element be inferred from circumstantial noted, It however, evidence. that the inference was rebuttable statutory because the language contemplated the proof requisite mental state was both objectively subjectively manifested and must be It held. held that the jury rebuttable, instructed that the inference was but give the failure to such an instruction was harmless if the defendant offered no evidence to rebut the infer- Sherman, ence. 98 at 59-60. Wn.2d Thomas offered no therefore, case; such evidence this of the absence such prejudice instruction did not her. It she follows that has Sardinia not satisfied the second element with reference trial request to counsel's failure to the instruction. Sherman convinces us that
Our reading the rebuttal evidence the requiring instruction must consist an 234 showing the defendant had noncrimi-
affirmative
nal
stuck;
(e.g.,
the
thought
state
her throttle
she
mental
etc.).
robbers,
no
to
were
Thomas offered
evidence
Instead, she
an innocent mental state.
show that she had
employed
attempt
defense,
not
an
capacity
a diminished
state,
show that she had an innocent mental
she had no mental state
all.
but that
723,
726-28,
Wn.
Neither
Parker,
161,
(1987)
102 Wn.2d
Andersen, LIVER, J. *11 November
Reconsideration denied