IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 82805-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHRISTOPHER MORISETTE,
Appellant.
COBURN, J. — Christopher Morisette stabbed three unrelated strangers in
downtown Seattle. He then stripped off his clothes and ran. Soon after, he
complied with police commands and submitted to his arrest. He was found
competent to stand trial but disrupted jury selection and trial multiple times. The
trial court denied defense counsel’s request during trial for a second competency
evaluation. Morisette appeals that decision and also argues that his counsel was
deficient for not requesting a voluntary intoxication instruction. A jury convicted
Morisette of one count of assault in the first degree and three counts of assault in
the second degree. The State agrees with Morisette that insufficient evidence
supports the conviction of Count 4. We reverse Count 4 and remand for
resentencing but otherwise reject Morisette’s other claims and affirm the
convictions for Counts 1-3.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82805-3-I/2
FACTS
On July 9, 2019, Andrew Marquis passed by and later identified
Christopher Morisette who was holding a four-inch knife in downtown Seattle.
Morisette held the knife with the blade faced toward himself doing a “light like
tapping motion, just kind of rhythmically. . . .” Around the same time, bystander
Richard Johnson approached and warned Morisette to put the knife away and
said that whatever he was thinking of doing was not worth it. Morisette turned
and asked, “You want some of this?” and then walked toward Johnson. Johnson
again told Morisette to put down the knife. Morisette pointed the knife at himself
and said, “I want to die.”
Around the same time, a car pulled out of a nearby parking garage.
Morisette banged on the hood of the car, and he started swinging his knife
around. Marquis then called 911. At that point, Biruk Haile was walking by while
looking at his phone when Morisette cut Haile’s arm. Before Haile realized what
was happening, Haile dropped his phone. As he attempted to pick up his phone,
he noticed blood on his hand and saw Morisette swing the knife at him again.
Haile grabbed an orange traffic cone to block any further advances by Morisette.
Morisette then walked toward a nearby entrance of the Nordstrom building
when security officer Gregory Grady came outside. Grady had heard someone
yelling on the street, “I’ve been stabbed. Somebody call the police, I’ve been
stabbed.” Morisette lunged at Grady and took a swipe at him, but Grady moved
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out of the way.
Morisette continued walking up the sidewalk. Terry Sheets, who was
working as a Nordstrom valet attendant, stood on the sidewalk near the store
entrance. He heard some commotion, and as he turned, Morisette stabbed him
in the neck.
Morisette then walked across the street, stabbed the back of another
person, Robert Desjarlais, and then walked away. As he walked past a delivery
truck, he threw the knife inside. He then took off his clothes and sprinted toward
the freeway before police made contact. Morisette immediately complied with
police orders and was arrested.
The State charged Morisette with four counts: (1) assault in the first
degree of Terry Sheets, (2) assault in the second degree of Robert Desjarlais, (3)
assault in the second degree of Biruk Haile, and (4) assault in the second degree
of Gregory Grady.
Before trial, at defense counsel’s request, the court ordered an evaluation
of Morisette to determine his competency to stand trial. Dr. Cynthia Mundt, a
forensic psychologist, conducted the evaluation. She was unable to complete
the interview because Morisette would speak very low, then eat pieces of paper,
and then responded loudly in a manner that suggested he was attempting to
speak in a foreign language and not respond to questions in English. Mundt
reviewed his relevant clinical history, including his history of inpatient and
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outpatient assessments and treatment dating back to at least 2009. This review
included his most recent evaluation from December 2018. Mundt also reviewed
King County Correctional Facility mental health records. Records revealed
disruptive behavior such as throwing feces or his food tray, spitting, flooding,
banging on doors, and not following directions. Mundt reported that at times,
Morisette “informed jail staff that he would continue engaging in the above
behaviors until his requests or demands were met, such as a desire to move to
psychiatric housing.”
Morisette had been previously diagnosed with unspecified schizophrenia
spectrum and other “psychotic disorder,” unspecified substance abuse disorder,
personality disorder with antisocial traits, bipolar disorder, autism spectrum
disorder, and possible ADHD. He also had a history of attempting to feign
symptoms to manipulate housing in jail and to influence the outcome of forensic
mental health evaluations. In 2018, forensic evaluator Dr. George Nelson
concurred with clinical opinions offered by prior evaluators in general but
concluded that Morisette’s presentation was suggestive of efforts to exaggerate
his symptoms and that he had the capacity to understand the proceedings and
assist in his defense. Mundt reported that Morisette’s presentation during her
attempted interview was an attempt to do the same. Mundt reported,
It is my opinion that Mr. Morisette did not present during my attempt to interview him with genuine symptoms of a mental illness. A review of recent collateral records from the jail suggests that he has
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been compliant with medications for an extended period of time and has not presented with objective evidence of hallucinations, delusions, or bizarre or unusual beliefs. He has consistently presented with evidence of organized and goal-directed thought processes, as demonstrated by his interactions with jail staff and his written requests. Mr. Morisette has a history of interaction with the legal system and therefore has some familiarity with typical court proceedings. He has also been assessed on multiple prior occasions and has been opined on more than one occasion to have sufficient factual knowledge to demonstrate a capacity to understand his charges and proceedings.
Dr. Mundt’s diagnostic impressions of Morisette were malingering; unspecified
schizophrenia and other psychotic disorders, by history; substance use disorders
(methamphetamine and ecstasy), by history; rule-out, unspecified personality
disorder, with mixed traits, by history. She concluded there was currently
insufficient evidence available to suggest that, due to symptoms of a mental
illness, Morisette lacked the capacity to understand the nature of the proceedings
against him or lacked the capacity to assist in his own defense. The trial court
entered an order finding Morisette competent to stand trial.
Voir dire began on March 23, 2021. Morisette asked if he could dismiss
himself if he had no say in which jurors would be showing up. The court
responded that if he was making a knowing and thoughtful decision to not
observe the proceedings, he has that right. The court took a recess so that he
could speak with counsel about that decision. When trial resumed, a transport
officer informed the court that he was not comfortable bringing Morisette back to
court based on sanitary conditions. Later, his counsel testified through a
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declaration that Morisette had put his head in the toilet. Trial concluded for the
day, and jury selection continued the next day with Morisette present.
Morisette’s counsel explained that because of his client’s psychotic disorders and
Asperger’s disorder, it would be helpful if the court could take additional
scheduled breaks. The court granted that request.
On March 29, Morisette refused to be transported. The court signed an
order allowing use of reasonable force, if necessary, to transport him. The
transport officer stated that jail staff was able to transport him without using
reasonable force but requested that he remain in restraints because of his
“erratic behavior.” Defense counsel objected. When the court inquired, the jail
staff explained it was a concern of more “erratic decision-making today” than
erratic behavior. Jail staff noted that Morisette was “very polite, but he was
adamant that he was not going to court,” but then they were able to convince him
to go to court without using force.
During voir dire, Morisette interrupted the court saying he had the right to
speak, told a juror “you do take things too far,” discussed the abuse of the justice
system, and told his attorney he was not helping his case “by any means.” When
a juror told the court they thought the case was a “slam dunk,” Morisette started
singing loudly, making it hard to hear. Morisette made a motion to represent
himself for many reasons including that he had not been allowed to go to
Western State Hospital, but the court denied the request.
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When the State was in the middle of its opening statement, Morisette
interrupted with “I don’t think he has his facts straight.” The court recessed and
told Morisette that if he had another outburst, the court would have him removed
from the courtroom or gagged. When trial resumed, he did not interrupt for the
rest of the State’s opening statement.
Morisette’s courtroom behavior during a witness’s testimony caused the
court to have to take a recess. The court again warned Morisette that if he could
not stop his outbursts, the court would have him removed.
On April 6, while Sheets testified about being stabbed in the neck,
Morisette mimicked a stabbing motion with a ballpoint pen into his own neck.
Morisette also clenched his hand around a pen and thrust his hand toward his
counsel but stopped short of striking her. He made a similar motion with a closed
fist shortly after. Additionally, at some point that morning, Morisette walked
toward a jail officer and expressed that he wanted to leave but sat down at the
direction of counsel. The parties were not aware if the jurors had seen these
incidents because it was during witness testimony, and Morisette was not in the
jurors’ line of sight to the witness stand. Defense counsel requested a mistrial,
and the court denied that request, reasoning that any irregularity was caused by
Morisette.
On April 7, the court addressed whether Morisette’s conduct raised
security issues and a need for restraints. Morisette told the court that restraints
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were not necessary and that he understood he was being recorded and in a
movie—but whoever the actor was, Chris Morisette is not him. He stated,
I’m not claiming to be him, nor do I have any identification on me or paperwork to match this name or any of the numbers on it, sir, that I’m redacted discovery short of even providing anything of a competent trial, and I – I am sorry about whoever comes in or whatever this stuff is, I do not claim to be involved, and that is all.
When Morisette interrupted the court’s discussion regarding restraints, the
court told Morisette not to make any more outbursts. The court once again
warned Morisette that it could remove him. Morisette responded, “Then remove
me.” Defense asked for a recess to allow them to talk to Morisette outside the
courtroom. The court recessed, and when it resumed, counsel returned without
Defense counsel then requested another competency evaluation “in an
abundance of caution.” Counsel stated, “I think we were comfortable proceeding
through trial, but I think the stress of trial has been overwhelming for him, and I
think that’s been the change that we’ve seen in the last 24 hours or so.” The
court denied the motion, stating,
It has been my observation that most of Mr. Morisette’s outbursts have been rational, at least within the realm of rationality as far as I can tell. Some of the things he said in court this morning were nonsensical – that’s true – but I can’t tell whether he’s saying that as part of a disruption or whether he’s truly having an episode of some sort that’s beyond my competence to evaluate. What I do know is Mr. Morisette has been previously evaluated by those who are trained to evaluate such matters and he’s been found competent and he has for the most part been able to participate in
8 No. 82805-3-I/9
this trial when he has chosen to do so although he has from time to time chosen not to participate and has frequently put his head down on the table at counsel table even when he’s been present in court.
The court then asked counsel to comment on Morisette’s lack of presence
in the courtroom. Counsel responded, “I think he understands he has the right to
be here and we’re comfortable relaying to the Court that he’s waiving that right.”
Counsel further told the court that Morisette was not explicitly made aware he
had the option of observing the trial via video in another courtroom. The court
directed counsel to make Morisette aware of this option, which counsel then did,
and later conveyed that Morisette declined and asked to be moved back to jail.
The court inquired if Morisette’s counsel was satisfied that Morisette’s decision to
no longer be present in the courtroom were “knowing, intelligent, and voluntary,”
and counsel responded “yes.” Counsel stated that he still had concerns about
“the overall issue” as to the motion for evaluation. All that remained after
Morisette waived his presence was closing arguments. When the jury reached
its verdict, Morisette still waived his presence. The court asked defense counsel
if she had consulted with her client regarding his attendance. Counsel answered
that she had and that she believed “he’s decided to not attend voluntarily and
intelligently.” The jury convicted Morisette on all counts.
On April 21, after trial concluded, defense counsel filed a motion
requesting a competency evaluation. In the defense declaration supporting the
motion, counsel listed the various times Morisette disrupted trial, but also
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disruptive observations made after closing arguments. Counsel wrote that when
she went to the jail after closing arguments to discuss the taking of the verdict,
the jail staff informed her that Morisette had smeared feces in his cell and that
counsel had to visit him at the cuff port of his cell. Counsel also wrote that she
had met with her client two more times and that his appearance and demeanor
had not noticeably changed.
The court granted the motion requesting a competency evaluation. Dr.
Mundt completed the evaluation. She attempted twice to interview Morisette, but
he refused to participate. Accordingly, she based her opinion on collateral
information. At the recommendation of defense counsel, Mundt reviewed the
April 7 audio recordings of the trial. Mundt also reviewed Morisette’s jail mental
health records from September 26, 2020 through April 28, 2021. Mundt
explained,
Since the time of my prior evaluation, Mr. Morisette has remained compliant with medication and has had frequent contact with and observation by jail mental health staff. There is no indication in records of any decreases in his functional capacities at any time during the last eight months or in recent history. He has increasingly presented in multiple contexts in recent history of increasingly bizarre and unpredictable behavior. This behavior is not consistent with symptoms of psychosis and as noted above is better attributed to an attempt to feign symptoms of psychosis. Mr. Morisette mentioned to jail mental health staff on multiple occasions that he needed documentation or information to support his belief that he was not competent to stand trial and sought to recruit their support in achieving this goal. His behavior in this regard, as well as his behavior as described in records related to episodes of aggression, housing manipulation, medication seeking, and
10 No. 82805-3-I/11
attention seeking are all suggestive of logical, linear, goal-directed, and volitional behavior.
Mundt opined that there was insufficient evidence to suggest that, due to
symptoms of mental illness, Morisette was unable to understand the proceedings
or assist counsel. The court entered an order finding Morisette competent. He
was sentenced on all four counts and now appeals.
DISCUSSION
Competency Evaluation
Morisette contends that the court should have ordered a competency
evaluation during trial. 1 We disagree.
The due process clause of the Fourteenth Amendment to the United
States Constitution guarantees an accused the fundamental right not to stand
trial if he is legally incompetent. State v. Ortiz-Abrego, 187 Wn.2d 394, 402-03,
387 P.3d 638 (2017). Further, under Washington law, “No incompetent person
shall be tried, convicted, or sentenced for the commission of an offense so long
as such incapacity continues.” RCW 10.77.050. A defendant is incompetent
when he or she “lacks the capacity to understand the nature of the proceedings
against him or her or to assist in his or her own defense as a result of mental
disease or defect.” RCW 10.77.010(16).
1 Morisette filed a statement of additional grounds that also raises this
same issue.
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A defendant suffering delusions does not necessarily prevent him from
being competent to understand the proceedings and assist with his defense.
See State v. Benn, 120 Wn.2d 631, 661-62, 845 P.2d 289 (1993); see also State
v. Hahn, 106 Wn.2d 885, 887-88, 726 P.2d 25 (1986). A defendant who has the
ability to assist with his defense does not mean he must be able to suggest or
choose trial strategy. Benn, 120 Wn.2d at 662; State v. Ortiz, 104 Wn.2d 479,
483, 706 P.2d 1069 (1985).
RCW 10.77.060 provides that if a court finds there is reason to doubt a
defendant’s competency, the court must have the defendant evaluated by a
qualified professional who will report on the defendant’s mental condition. RCW
10.77.060(1)(a). The trial court’s determination of competence is a matter within
its discretion, reversible only upon a showing of abuse of discretion. Ortiz, 104
Wn.2d at 482. An abuse of discretion occurs only when no reasonable judge
would have reached the same conclusion. State v. Hager, 171 Wn.2d 151, 156,
248 P.3d 512 (2011).
After a competency determination is made, the court need not revisit
competency unless new information presented alters the status quo ante. State
v. Ortiz, 119 Wn.2d 294, 301, 831 P.2d 1060 (1992). The factors a trial judge
may consider in deciding whether or not to order a competency evaluation
include the “defendant’s appearance, demeanor, conduct, personal and family
history, past behavior, medical and psychiatric reports and the statements of
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counsel.” In re Fleming, 142 Wn.2d 853, 863, 16 P.3d 610 (2001) (quoting State
v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)).
Morisette argues that based on his nonsensical outburst about being in a
movie, he was no longer capable of making necessary decisions at trial, such as
whether he would be present and able to testify. However, at trial, defense
counsel only made a motion to establish competency out of an “abundance of
caution” based on Morisette’s behavior on April 6 and 7. The court was aware of
the previous competency report indicating that the diagnostic impression was
malingering. Also, indications of delusions do not necessarily prevent someone
from being competent to understand the proceedings and assist with his defense.
And disruptive behavior does not necessarily give rise to a doubt as to whether
someone understands the proceedings and can assist in a defense. As the trial
court noted, with the exception to his reference to a movie, Morisette’s outbursts
were in relation to what was happening in court. After the court would threaten
him with being gagged or removed, he responded by either complying, or in the
last instance telling the court that he wanted to be removed. These responses
did not necessarily create a doubt as to competency.
Additionally, after defense counsel made his motion for a competency
evaluation, he spoke with Morisette regarding whether he waived his right to be
present in the courtroom. Defense counsel relayed to the court that Morisette
had knowingly, intelligently, and voluntarily waived his right, therefore indicating
13 No. 82805-3-I/14
he was competent at the exact time that counsel had made a motion for a
competency evaluation. Defense counsel again represented to the court at the
taking of the verdict that Morisette waived his presence voluntarily and
intelligently.
Finally, the competency evaluation conducted after trial considered
Morisette’s behavior during trial both in the courtroom on April 7 and his behavior
in the jail between September 26, 2020 and April 28, 2021. The evaluator,
Mundt, again found Morisette to be malingering and that “[t]here is no indication
in records of any decreases in his functional capacities at any time during the last
eight months or in recent history.”
The court did not abuse its discretion when it did not order a competency
evaluation during trial. It had no reason to believe that circumstances had
changed from the first competency report that attributed the conduct to
malingering.
Ineffective Assistance of Counsel
Morisette next contends that he had ineffective assistance of counsel
because his attorneys did not pursue a voluntary intoxication defense based on
his consumption of methamphetamine. We disagree.
“To prevail on a claim of ineffective assistance of counsel, [the defendant]
must establish both deficient performance and prejudice.” State v. Jones, 183
Wn.2d 327, 330, 352 P.3d 776 (2015) (citing Strickland v. Washington, 466 U.S.
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668, 339, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
“Deficient performance is performance falling ‘below an objective standard
of reasonableness based on consideration of all the circumstances.’” State v.
Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (citing State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). We are highly deferential to the
performance of counsel in evaluating the reasonableness of their actions. State
v. Crawford, 159 Wn.2d 86, 98, 147 P.3d 1288 (2006). “There is a strong
presumption that trial counsel’s representation was adequate, and exceptional
deference must be given when evaluating counsel’s strategic decisions.” State v.
McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Deficient performance prejudices a defendant when a “substantial”
likelihood of a different outcome exists; it is not enough for a different outcome to
be merely “conceivable.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 538-39,
397 P.3d 90 (2017). If a defendant fails to satisfy showing deficient performance
or prejudice, the inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917
P.2d 563 (1996).
Morisette argues it was deficient for his counsel not to present evidence or
request an instruction for voluntary intoxication. RCW 9A.16.090 provides the
following regarding a voluntary intoxication defense:
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, but whenever the actual existence of any particular
15 No. 82805-3-I/16
mental state is a necessary element to constitute a particular species or degree of crime, the fact of his or her intoxication may be taken into consideration in determining such mental state.
A defendant is entitled to a voluntary intoxication instruction when (1) the
crime charged includes a mental state, (2) there is substantial evidence of
consumption of the drugs, and (3) there is evidence that the drugs affected the
defendant’s ability to form the requisite intent or mental state. See State v.
Kruger, 116 Wn. App. 685, 691, 67 P.3d 1147 (2003). The evidence “must
reasonably and logically connect the defendant’s intoxication with the asserted
inability to form the required level of culpability to commit the crime charged.” Id.
at 691-92 (quoting State v. Gabryschak, 83 Wn. App. 249, 252-53, 921 P.2d 549
(1996)).
Morisette argues that his defense counsel should have elicited evidence
that was at its disposal so that Morisette would have been entitled to this
instruction. First, Morisette argues that his statement to an officer, indicating he
had taken methamphetamine earlier that morning and could not remember
anything since four days earlier, should have been introduced. Id. However,
Morisette could have only introduced this evidence if he testified at trial, which he
elected not to do. Whether to testify or not testify at trial is a decision that is held
by the defendant. State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996).
Second, Morisette asserts that defense counsel should have sought to
introduce the results of a urine drug screen done the day of the incident at the
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jail, which detected the presence of amphetamine, methamphetamine and
cannabis. However, contrary to Morisette’s assertion, the mere presence of
drugs in his system does not establish when the drugs were consumed or what
its affect would have been. See State v. Lewis, 141 Wn. App. 367, 389, 166
P.3d 786 (2007) (observing that methamphetamine has a wide range of effects
on different individuals).
Effective assistance of counsel includes a request for pertinent
instructions which the evidence supports. State v. Finley, 97 Wn. App. 129, 134,
982 P.2d 681 (1999). There was no evidence in the instant case that would have
supported a voluntary intoxication instruction. Counsel was not deficient for not
requesting an instruction he could not support with evidence. Because Morisette
cannot show deficiency, the inquiry ends.
To-Convict Instruction
Morisette lastly contends that the conviction on Count 4 must be vacated
because the to-convict instruction as to that count included an alternative means
of committing assault in the second degree, which was not supported by the
evidence. The State concedes that this count should be vacated, and we agree.
Under the Washington Constitution, criminal defendants have the right to
a unanimous verdict. WASH. CONST. art. I, § 21. If there is insufficient evidence
to support a conviction of a crime based on one of multiple alternative means set
out in the to-convict instruction, that conviction must be reversed unless it has
17 No. 82805-3-I/18
been established that the jury unanimously concluded that the defendant was
guilty based on the alternative means that was supported by the evidence. State
v. Woodlyn, 188 Wn.2d 157, 165, 392 P.3d 1062 (2017).
In Count 4, the State charged Morisette with two alternative means of
committing assault against Grady—with a deadly weapon and/or by recklessly
inflicting substantial bodily harm. The jury was instructed:
To convict the defendant of the crime of assault in the second degree, as charged in Count 4, each of the following two elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about July 9, 2019, the defendant:
(a) intentionally assaulted Gregory Grady and thereby recklessly inflicted substantial bodily harm; or
(b) assaulted Gregory Grady with a deadly weapon; and
(2) That this act occurred in the State of Washington.
If you find from the evidence that element (2) and either alternative element (l)(a) or (l)(b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (l )(a) or (l)(b) has been proved beyond a reasonable doubt , as long as each juror finds that either (l)(a) or (l)(b) has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to either element (1) or (2), then it will be your duty to return a verdict of not guilty as to Count 4.
(Emphasis added.)
Here, there was no evidence that Grady was harmed by Morisette
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because Grady testified that Morisette attempted to stab Grady but missed.
Therefore, there was no evidence supporting the alternative means involving
infliction of harm. Further, the jury was not asked to indicate whether it was
unanimous as to either means. Accordingly, we reverse Morisette’s conviction
on Count 4.
CONCLUSION
We affirm the convictions on Counts 1, 2, and 3, but we reverse the
conviction on Count 4 and remand for resentencing.
WE CONCUR: