State v. Carson

¶1¶41 (dissenting) I disagree with the majority’s holding that David William Carson’s counsel was not ineffective. In my opinion, defense counsel’s decision to decline a Petrich26 instruction cannot be characterized as a legitimate trial tactic and, therefore, his performance was deficient. Further, counsel’s error was prejudicial. Carson has met his burden to show ineffective assistance of counsel, and I disagree with the majority’s opinion holding otherwise. Accordingly, I would reverse Carson’s convictions for three counts of first degree child molestation.

¶2I. Deficient Performance

¶3¶42 Defense counsel’s performance is deficient if it falls below an objective standard of reasonableness. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). To overcome the presumption that counsel’s performance was reasonable, counsel’s conduct must be devoid of any conceivably legitimate trial strategy. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011). In some instances failing to request a jury instruction may be a legitimate trial tactic. See State v. Yarbrough, 151 Wn. App. 66, 90, 210 P.3d 1029 (2009) (“[F]ailure to request a limiting instruction for evidence admitted under ER 404(b) may be a legitimate tactical decision not to reemphasize damaging evidence.”). Such is not the case here.

¶4¶43 In Washington, defendants have a constitutional right to a unanimous jury verdict. See State v. Badda, 63 *983Wn.2d 176, 181-82, 385 P.2d 859 (1963). A Petrich instruction is necessary to protect a defendant’s right to a unanimous jury verdict. Petrich, 101 Wn.2d at 569. When defense counsel rejected the proposed Petrich instruction, defense counsel unilaterally waived Carson’s right to a unanimous verdict. Although a defendant may waive the right to a 12-person jury, or to a jury altogether, a defendant may not waive his right to a unanimous verdict should the defendant elect a jury trial. State v. Noyes, 69 Wn.2d 441, 446, 418 P.2d 471 (1966) (When a hung jury stands 11 to 1 for acquittal, defendant is not permitted to waive a unanimous verdict and accept the vote of 11 jurors as a valid verdict.) Accordingly, defense counsel’s waiver of Carson’s right to a unanimous verdict is per se unreasonable.

¶5¶44 Second, defense counsel declined the Petrich instruction under the mistaken belief that a Petrich instruction was unnecessary in this case. When asked about the Petrich instruction defense counsel stated:

I didn’t [propose a Petrich instruction], and the reason I didn’t, obviously, from [C.C.’s] testimony it was all jumbled up. I don’t know what happened, where, and new, old, or whatever, but from the videotape at some point there seemed to be three separate and distinct incidents, one in his room, one in his mother’s room, and one in the bathroom.

Normally Petrich instructions come up where the child talks about five or six incidents and one of them is charged, and then Petrich says, well, you have to agree on whatever act it is.

Here, I didn’t feel that there was a need for that because even though it was a jumbled mess, there were, at least, three separate and distinct incidents referred to, and I didn’t think Petrich was necessary, but that’s certainly the Court’s discretion.

¶63 Report of Proceedings (RP) at 334-35. But defense counsel was mistaken. A Petrich instruction is required in cases where the State charges multiple counts based on “generic testimony” regarding prolonged and consistent sexual abuse. State v. Hayes, 81 Wn. App. 425, 430-31, 914 P.2d 788 (1996). In Hayes, Division One of this court stated:

*984In sexual abuse cases where multiple counts are alleged to have occurred within the same charging period, the State need not elect particular acts associated with each count so long as the evidence “clearly delineate [s] specific and distinct incidents of sexual abuse” during the charging periods. The trial court must also instruct the jury that they must be unanimous as to which act constitutes the count charged and that they are to find “separate and distinct acts” for each count when the counts are identically charged.

¶781 Wn. App. at 431 (alteration in original) (footnote omitted) (quoting State v. Newman, 63 Wn. App. 841, 851, 822 P.2d 308 (1992); State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d 190 (1991)). Here, the State charged Carson with three counts of rape of a child. C.C.’s testimony establishes some distinct acts of sexual abuse, but also includes “generic testimony” regarding ongoing abuse. Therefore, a Petrich instruction was required. I cannot be convinced that basing a decision on an erroneous view of the law can be characterized as a legitimate trial tactic.

¶8¶45 Third, defense counsel declined the Petrich instruction based on his assertion that the instruction would needlessly confuse the jury. Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Therefore, it stands to reason that defense counsel may decline, or the trial court may reject, a jury instruction that is misleading. However, it is unreasonable to believe that the jury will be misled or confused by an instruction that is an accurate statement of applicable law required to protect a specific constitutional right. In my opinion, defense counsel’s conduct is as unreasonable as declining a reasonable doubt instruction on the theory that the definition of “reasonable doubt” may confuse the jury.

¶9¶46 Here, defense counsel’s reasons for declining the Petrich instruction are fundamentally unreasonable. When defense counsel’s actions are unreasonable or based on *985misunderstandings of the law, I do not believe they can be characterized as legitimate trial tactics or strategies. Accordingly, I would hold the defense counsel’s performance was deficient.

¶10II. Prejudice

¶11¶47 To prevail on his claim of ineffective assistance of counsel, Carson must also show prejudice. When the State presents evidence of multiple acts that could each form the basis of one charged crime, “either the State must elect which of such acts is relied upon for a conviction or the court must instruct the jury to agree on a specific criminal act.” State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007). “Where there is neither an election nor a unanimity instruction in a multiple acts case, omission of the unanimity instruction is presumed to result in prejudice.”27Coleman, 159 Wn.2d at 512.

¶12¶48 “Failure to give the Petrich instruction, when required, violates the defendant’s constitutional right to a unanimous jury verdict and is reversible error, unless the error is harmless.” State v. Bohenhouse, 166 Wn.2d 881, 894, 214 P.3d 907 (2009) (citing State v. Camarillo, 115 Wn.2d 60, 64, 794 P.2d 850 (1990)). Specifically, in cases where the trial court failed to give a required Petrich instruction “the standard of review for harmless error is whether a ‘rational *986trier of fact could find that each incident was proved beyond a reasonable doubt.’ ” Camarillo, 115 Wn.2d at 65 (quoting State v. Gitchel, 41 Wn. App. 820, 823, 706 P.2d 1091 (1985)).

¶13¶49 Reviewing courts have held that failure to give a Petrich instruction is harmless when “the evidence presented was sufficient to establish that each crime had occurred, there was no conflicting testimony, and the victim provided specific detailed testimony.” Bobenhouse, 166 Wn.2d at 894 (citing Camarillo, 115 Wn.2d at 70). Here, the victim did not provide specific, detailed testimony. His testimony was vague, confusing, and, at times, inconsistent. Further, Carson testified and specifically denied the allegations of abuse. Accordingly, I am not convinced that the error was harmless beyond a reasonable doubt. Because the error was not harmless, this court presumes that the error was prejudicial to Carson, and he has met his burden under the second prong of the ineffective assistance of counsel test.

¶14¶50 Carson is required to show both counsel’s performance was deficient and counsel’s deficient performance prejudiced him. Defense counsel’s performance was deficient because he had no legitimate tactical reason to justify declining a Petrich instruction. Carson has also met his burden to show prejudice because the failure to give a Petrich instruction is presumed to be prejudicial and, here, the error was not harmless beyond a reasonable doubt. Therefore, I believe that Carson has met his burden to prove ineffective assistance of counsel and I would reverse.

¶15Reconsideration denied April 30, 2014.

¶16Review granted at 181 Wn.2d 1001 (2014).