FILED SEPTEMBER 5, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34394-4-111 Respondent, ) ) v. ) ) TYREE Q. HOUFMUSE, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, CJ. -Appellant Tyree Houfmuse shot and wounded his attacker,
Anthony Asselin. A jury acquitted him on the charge of first degree assault, but
convicted him on the charge of felon in unlawful possession of a firearm. On appeal,
Houfmuse contends he suffered ineffective assistance of counsel because his trial counsel
did not raise the defense of necessity in response to the unlawful possession charge. We
conclude that, based on evidence presented at trial, Houfmuse was entitled to a jury
instruction on the necessity defense and his trial counsel committed professional error by
failing to assert the defense. Therefore, we reverse the conviction and remand for a new
trial.
FACTS
This prosecution arises from the shooting of Anthony Asselin by appellant Tyree
Houfmuse. Houfmuse's past criminal record included an earlier felony conviction. No. 34394-4-111 State v. Hou/muse
Therefore, the State charged Houfmuse with both assault and unlawful possession of a
firearm. Our factual outline arises from trial testimony.
The facts begin with the relationship between Anthony Asselin and Aquarius
Gibbs, who later befriended appellant Tyree Houfmuse. Asselin and Gibbs met at the
beginning of 2011. Gibbs gave birth to the couple's daughter on May 1, 2012. After the
child's birth, Asselin and Gibbs intermittently cohabitated until the end of 2012. The
relationship conclusively ended at the end of 2013. Near the end of the duo's
relationship, Asselin physically abused Gibbs. Asselin stands six feet, four inches, and
weighs approximately two hundred and eighty pounds.
In September 2014, Tyrell Houfmuse began wooing Aquarius Gibbs. At some
unknown time, Houfmuse and Gibbs resided together in a Pasco abode. Houfmuse also
knew Anthony Asselin, primarily through Asselin's younger brother. Asselin treated
Houfmuse cordially until Houfmuse dated Gibbs.
Shortly after Tyree Houfmuse and Aquarius Gibbs commenced courting, Anthony
Asselin warned Houfmuse to "[s]top hanging out with my 'F'ing baby momma, and stay
away from my kids." Report of Proceedings (RP) at 347. The "baby momma" is
Aquarius Gibbs. We are unaware of Asselin fathering more than one child. Asselin's
intimidation rapidly escalated to death threats. On one occasion, Asselin cautioned
Houfmuse: "If I run into you with my baby momma, it's a rap." RP at 351. "It's a rap"
means "you're dead." RP at 351.
2 No. 34394-4-111 State v. Hou/muse
During the fall of 2014, Anthony Asselin menaced Tyree Houfmuse and Aquarius
Gibbs on a daily basis. Houfmuse perceived the threats seriously. He knew of Asselin's
explosive temper and reputation for violence. Houfmuse avoided Asselin and stayed
inside his home. Houfmuse did not notify the police of the intimidation because
Houfmuse knew Asselin did not fear the police. Houfmuse worried that Asselin would
retaliate against him for contacting the police.
During the week before Thanksgiving 2014, Anthony Asselin and some
compatriots assaulted Tyrell Houfmuse's brother, Rodrell Houfmuse, in Hermiston,
Oregon, twenty-five miles south of Kennewick. Asselin and two other men visited the
house ofRodrell's friend Joseph, looking for Rodrell's cousin, Little Tony. Rodrell
informed the trio of Little Tony's absence, but Asselin and companions, with pistols in
hand, forced their way into the house. After confirming Rodrell's comment, the three
men commanded Rodrell to step outside. Rodrell acquiesced. Once all four went
outside, the troika asked Rodrell about his relationship with one of the men's ex-
girlfriends. Asselin and his associates then punched Rodrell, who sustained a swollen
jaw, busted lip, and bumps to his head. Later that night, Rodrell informed his brother
Tyree Houfmuse about the pummeling. Houfmuse suspected that Asselin assaulted his
brother because Houfmuse courted Aquarius Gibbs.
After the assault on Rodrell Houfmuse, Tyrell Houfmuse and Aquarius Gibbs
discussed needing protection. During trial testimony, Houfmuse averred that he never
3 No. 34394-4-III State v. Hou/muse
mentioned a gun during the discussion. On cross-examination, however, Houfmuse
conceded that, when he conferred with Gibbs about protection, he contemplated any
needed protection, including the police and a gun. Because of an earlier felony,
Houfmuse could not legally possess a gun. Aquarius Gibbs first testified at trial that the
couple discussed protection, but neither mentioned the use of a gun. She later conceded,
however, of the two speaking about a gun. Gibbs admitted to seeing a gun wrapped in a
towel on a dresser at the residence she shared with Houfmuse. According to Gibbs, the
gun could have belonged to someone other than Houfmuse because other men were
present in the home when she viewed the gun.
On the evening preceding Thanksgiving 2014, Tyrell Houfmuse, Aquarius Gibbs,
and Cheryle Dixon patronized the Village Tavern in Kennewick. The State charged
Houfmuse with shooting Anthony Asselin at the tavern. We relate the differing witness
accounts of the shooting, including the accounts of tavern patrons Felicia Richardson and
Ariel Mitchell.
According to Tyrell Houfmuse, he visited the Village Tavern for a drink because
he knew Anthony Asselin did not frequent the bar. The tavern attracted an older crowd,
and African-Americans did not patronize the establishment. Asselin is African-
American. Houfmuse ordered a shot of tequila at the bar. Fifteen minutes later and as he
procured his alcohol, Houfmuse noticed African-Americans, including a friend of
Asselin, entering the Village Tavern. Houfmuse walked outside to smoke a cigarette. As
4 No. 34394-4-III State v. Hou/muse
he smoked his cigarette, two or three carloads of African-Americans drove into the
tavern's parking lot. Asselin exited one of the vehicles. Houfmuse rushed into the bar
and told Aquarius Gibbs they needed to leave because of Asselin's presence. Before they
departed the Village Tavern, Asselin entered with his friends behind him. Asselin yelled
to Houfmuse: "[w ]hat did I tell you I was going to do if I catch you with my baby
momma?" RP at 369.
Tyree Houfmuse testified at trial that he attempted to calm Anthony Asselin. A
frightened Houfmuse left the bar, only to have Asselin follow him. Asselin, with his
hands in a fighting stance, advanced toward Houfmuse. Houfmuse tried to enter his car,
but Asselin's friends surrounded Houfmuse and blocked access to the vehicle. Asselin
uttered more loud threats. Asselin proclaimed: "I told you anybody that get[ s] involved,
they were going to get it." RP at 378. Asselin retrieved a gun from his clothing and a
struggle ensued. Houfmuse had been unaware that Asselin possessed a gun. A panicked
Houfmuse grabbed Asselin' s arm in order to wrest the gun from Asselin. During the
struggle, Asselin pulled the trigger and shot several rounds that struck the pavement.
Houfmuse extracted the gun and retreated. Asselin, while swinging his fists, pursued
Houfmuse. Because of Asselin's size, Houfmuse was terrified. As Houfmuse ran from
Asselin, he shot the gun two or three times behind him without looking back. Houfmuse
did not know whether a bullet struck Asselin. Houfmuse dropped the gun on the ground
before he entered the car and fled.
5 No. 34394-4-111 State v. Hou/muse
Aquarius Gibbs testified during trial that Anthony Asselin entered the Village
Tavern and yelled at Tyree Houfmuse and her about Asselin's daughter. Houfmuse and
Asselin went outside. While Gibbs stood near the tavern door, she heard gunshots, but
did not see any shooting. Houfmuse called to Gibbs: "come." RP at 181. Gibbs entered
the car and rode with Houfmuse away from the tavern.
During the trial, Felicia Richardson testified that she stood in the parking lot near
her vehicle and saw Tyree Houfmuse and Anthony Asselin talking. She anticipated a
fight. As Asselin walked away, Houfmuse shot Asselin in the back.
Another Village Tavern patron, Ariel Mitchell, testified that she saw Tyree
Houfmuse remove a gun from his coat and shoot Asselin seven times. Mitchell was a
friend of Anthony Asselin, and Asselin was related to a former boyfriend of Mitchell.
Village Tavern security tapes show Tyrell Houfmuse entered the drinking
establishment at 11: 10 p.m. Anthony Asselin entered the bar twelve seconds later and
approached Houfmuse. Less than one minute later, Houfmuse exited the bar, followed
immediately by Asselin and a group of men.
After the shooting, City of Kennewick Police Department Corporal Todd Dronen
recovered six shell casings at the scene. Dronen noticed three divots on the parking lot
pavement that could have been caused by bullets.
Anthony Asselin suffered three gunshot wounds, one to his chest with no exit
wound, one to his abdomen with an exit wound, and a superficial wound to his left
6 No. 34394-4-III State v. Hou/muse
elbow. The two bullets to the torso entered Asselin' s front side. Asselin now suffers
complete paralysis from the fourth thoracic vertebrae down.
After the shooting, Tyrell Houfmuse and Aquarius Gibbs traveled to Hermiston.
The Kennewick Police Department issued an arrest warrant for Houfmuse. Oregon law
enforcement eventually found Houfmuse in a Hermiston apartment and transported him
to the Umatilla County jail for extradition.
While in the Oregon jail, Houfmuse called R'Kiesha Smith. Houfmuse knew not
that the jail recorded the call. During the call, Houfmuse repeatedly rambled about how
Anthony Asselin and his friends assaulted Houfmuse's brother. According to Houfmuse,
he would not permit anyone to harm his brother. He commented that he can fight Asselin
and his associates. Houfmuse complained of continuous death threats from Asselin and
noted the need for protection. He stated that the security video from the Village Tavern
will show that Asselin pursued him.
PROCEDURE
The State of Washington charged Tyrell Houfmuse with assault in the first degree
and unlawful possession of a firearm in the second degree based on the earlier felony
conviction. Tyree Houfmuse asserted self-defense to the charge of assault. He asserted
no defense of necessity to the charge of unlawful possession of a firearm.
The State called multiple witnesses, including Aquarius Gibbs, Felicia Richardson,
Ariel Mitchell, Dr. Steven Kincaid, the victim's mother Tammy Gill, and Kennewick
7 No. 34394-4-111 State v. Hou/muse
Police Department Corporal Todd Dronen. Houfmuse testified in his own defense.
During closing argument, Tyree Houfmuse' s counsel attacked the credibility of all
percipient witnesses other than Houfmuse. According to counsel, Aquarius Gibbs
obviously lied because of fear and wanting to protect herself from retaliation by Anthony
Asselin. According to defense counsel, Felicia Richardson lied because she was Anthony
Asselin's girlfriend. Richardson's testimony was incredible because she declared that
Houfmuse shot Asselin from the rear, but Dr. Steven Kincaid testified the bullets entered
Asselin's front such that Houfmuse shot Asselin from the front. Ariel Mitchell's
testimony lacked value because she did not view the fight until after she heard gunshots.
Also, Mitchell was a former girlfriend of Anthony Asselin and the current girlfriend of a
cousin of Asselin. Mitchell repeatedly altered her story.
Defense counsel, during closing, argued that the physical evidence confirmed the
testimony of Tyree Houfmuse that he grabbed the gun from Anthony Asselin. Three
divots in the pavement confirmed use of the gun by Asselin before Houfmuse seized the
weapon and fired his three shots. Counsel also painted Houfmuse as a credible witness
who firmly answered the questions of the State's counsel during cross-examination.
The jury found Tyrell Houfmuse not guilty of assault, but guilty of unlawful
possession of a firearm in the second degree. The court sentenced Houfmuse to twenty
months' confinement.
8 No. 34394-4-III State v. Hou/muse
LAW AND ANALYSIS
Tyrell Houfmuse contends that facts supported a defense of necessity to the charge
of unlawful possession of a firearm and his defense counsel's failure to assert necessity as
an affirmative defense to this charge constituted deficient performance. Houfmuse
further contends that, but for his counsel's failure to raise necessity as a defense, he
would have been acquitted on the charge. The State disagrees with all three of
Houfmuse's contentions and argues that defense counsel made a tactical decision not to
bring a necessity defense to the unlawful possession charge because it would undermine
Houfmuse's self-defense theory asserted in response to the assault charge, the more
serious of the two charges.
We first review whether sufficient facts supported a defense of necessity such that
the jury should have been instructed on the defense if Houfmuse requested an instruction.
For one to show ineffective assistance of counsel for failing to request a jury instruction,
the defendant must establish entitlement to the instruction. State v. Johnston, 143 Wn.
App. 1, 21, 177 P.3d 1127 (2007). We later analyze whether Houfmuse suffered
ineffective assistance of counsel by reason of his trial counsel's failure to advance the
defense.
Necessity Defense
The State charged and the jury convicted Tyree Houfmuse with felon in unlawful
possession of a firearm. RCW 9.41.040 makes it illegal for a felon to possess a firearm.
9 No. 34394-4-III State v. Hou/muse
In relevant parts, RCW 9.41.040 provides:
(2)(a) A person ... is guilty of the crime ofunlawful possession of a firearm in the second degree, if the person does not qualify under subsection ( 1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm: (i) After having previously been convicted ... in this state or elsewhere of any felony ....
Houfmuse agrees he was a felon when he shot Anthony Asselin and, at least
momentarily, possessed a firearm. He asks that his behavior be excused because of the
exigencies of the situation that confronted him. RCW 9.41.040 admits no defense.
Washington allows the defense of necessity even when the charging statute
acknowledges no defense. State v. Vander Houwen, 163 Wn.2d 25, 33, 177 P.3d 93
(2008). The necessity defense is available to a defendant when the physical forces of
nature or the pressure of circumstances cause the accused to take unlawful action to avoid
a harm which social policy deems greater than the harm resulting from a violation of the
law. State v. Parker, 127 Wn. App. 352, 354, 111 P.3d 1152 (2005); State v. Gallegos,
73 Wn. App. 644,650, 871 P.2d 621 (1994). Stated differently, a defendant may assert
necessity when circumstances cause him to take unlawful action in order to avoid a
greater injury. State v. Jeffrey, 77 Wn. App. 222,224, 889 P.2d 956 (1995); State v.
Diana, 24 Wn. App. 908, 913-14, 604 P.2d 1312 (1979). The necessity defense's
alternate labels are justification and self-defense. United States v. Lemon, 824 F .2d 763,
765 (9th Cir. 1987); UnitedStatesv. Harper, 802F.2d 115, 117n.l (5thCir.1986).
10 No. 34394-4-III State v. Hou/muse
On three occasions, this court has held the necessity defense available in a
prosecution for unlawful possession of a firearm. State v. Parker, 127 Wn. App. 352;
State v. Stockton, 91 Wn. App. 35, 44, 955 P.2d 805 (1998); State v. Jeffrey, 77 Wn. App.
at 224-25. In this setting, Washington has adopted the federal test announced in United
States v. Lemon, 824 F.2d 763. State v. Jeffrey, 77 Wn. App. at 226. Under the federal
rule, a defendant must establish by a preponderance of the evidence that ( 1) he was under
unlawful and present threat of death or serious bodily injury, (2) he did not recklessly
place himself in a situation where he would be forced to engage in criminal conduct, (3)
he had no reasonable alternative, and (4) there was a direct causal relationship between
the criminal action and the avoidance of the threatened harm. United States v. Lemon,
824 F.2d at 765; State v. Jeffrey, 77 Wn. App. at 224.
This court first addressed the necessity defense in the context of an unlawful
possession of a firearm charge in State v. Jeffrey, 77 Wn. App. 222 (1995). Skip Jeffrey
and his wife Kathy reposed at home, when Kathy gazed out the kitchen window and saw
the face of a male. A startled Kathy awoke her husband, who instructed her to call the
police. A sheriff deputy responded and searched the surrounding area. He found a young
male in the neighborhood, but Kathy Jeffrey could not identify him as the person she
saw. After the deputy departed, a friend visited the Jeffreys' home and placed a .45 mm.
Llama handgun under the residence's couch. Thereafter the Jeffreys heard noises outside
their bedroom window. Skip Jeffrey saw a silhouette outside the window, retrieved the
11 No. 34394-4-III State v. Hou/muse
handgun from under the couch, and fired a shot oddly through the headboard of the bed.
He then told his wife to call the police again. When the sheriff deputy returned, he found
Skip Jeffrey in the bedroom with the gun in his hand.
Skip Jeffrey appealed from the trial court's denial of his request for a necessity
defense jury instruction. The State responded that necessity is not available as a defense
because unlawful possession of a firearm is a strict liability crime and the defense would
frustrate the legislature's desire to prevent the possession of guns by convicted felons.
This court disagreed based on the reasoning that the legislature did not intend for a
person threatened with immediate harm to succumb to an attacker rather than act in self-
defense. The criminal statute did not anticipate an unforeseen and sudden situation when
an individual was threatened with impending danger.
Although the Jeffrey court adopted the necessity defense, the court affirmed the
trial court's denial of a jury instruction because the facts did not support the defense.
Therefore, the court's discussion of the validity of the defense could be considered dicta.
The defense nonetheless failed because, even if a person appeared a second time, Skip
Jeffrey did not encounter an imminent threat of bodily injury or death. No evidence
indicated the stalker would immediately enter the home. Jeffrey's call to the police
substituted as a reasonable alternative to use of the handgun.
In State v. Parker, 127 Wn. App. 352 (2005), a law enforcement officer, in April
2003, arrested Shamarr Parker on another offense, when the officer discovered a gun
12 No. 34394-4-III State v. Hou/muse
magazine with bullets therein inside Parker's pants pocket. The magazine fit a gun found
nearby, and Parker conceded he owned the gun. Parker contended he needed to carry the
gun because assailants shot him the previous July and the assailants remained at large.
In State v. Parker, the trial court refused Parker's request for a jury instruction
informing the jury of the necessity defense, and this court affirmed. We ruled that Parker
failed to establish the first element of the defense. Since Parker was shot nine months
earlier, he no longer remained under present threat. Parker also failed to prove that he
lacked a reasonable alternative to carrying a gun, since he failed to contact police about
the July shooting. Finally, we ruled that Parker failed to establish a direct causal
relationship between his possession of a firearm and the avoidance of the threatened
harm. This latter ruling could preclude the necessity defense in all cases except when the
defendant grabs someone else's gun at the last moment before employing the gun.
In State v. Stockton, 91 Wn. App. 35 (1998), the State cross appealed the trial
court's rendering of a jury instruction on Matthew Stockton's necessity defense in a
prosecution for unlawful possession of a firearm. Stockton testified he walked from his
apartment to the Time Out Tavern to play pool when a man approached him and asked
him what he wanted. Stockton believed the man wished to sell him drugs. He told the
man he wanted nothing and continued walking. Two other men approached him, asked
him if he had money, and put their hands inside his pockets. Stockton punched one of the
men, and the others returned punches on his head and body. After several minutes, he
13 No. 34394-4-III State v. Hou/muse
saw a gun in someone's hand and grabbed it by the barrel. The gun fell to the ground.
Stockton retrieved the gun and pointed it in the direction of the crowd before he fled. He
hid in some bushes behind an apartment building, cocked the gun, and listened for voices
and footsteps. When police arrived, Stockton attempted to hide the gun because he was a
convicted felon. Because law enforcement spotted the gun, the State charged him with
unlawful possession of a firearm.
The Court of Appeals, in State v. Stockton, denied the State's cross appeal. The
State argued that the Jeffrey court erred when it declared the necessity defense available
in an unlawful possession of a firearm charge, since the legislature never crafted a
defense to the crime. The Stockton court confirmed the validity of the defense. Without
analysis, the court agreed that Stockton was entitled to a jury instruction on that defense.
We now ask whether the trial court should have delivered a jury instruction on the
necessity defense if Tyree Houfmuse asked for the instruction at the close of trial. The
State argues that, if this court disbelieves Houfmuse's story, the facts do not support the
defense. The State emphasizes that, during Tyree Houfmuse's prison telephone call, he
conceded he shot Anthony Asselin in retaliation for Asselin's attack on Houfmuse's
brother. The State also underlines that other evidence showed that Houfmuse procured a
gun before the Village Tavern altercation and that Houfmuse brought the gun to the
tavern. The State likens Houfmuse's predicament as the quandary one might face when
one spies a prowler's face through a window but the prowler does not seek immediate
14 No. 34394-4-III State v. Hou/muse
entrance into the residence.
Contrary to the State's suggestion, we must view the evidence in the light
favorable to Tyree Houfmuse when determining whether a necessity defense instruction
would be given. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150
(2000); State v. Buzzell, 148 Wn. App. 592, 602, 200 P.3d 287 (2009). The defendant is
entitled to have presented instructions relating to a theory of defense for which there is
any foundation in the evidence, even though the evidence may be weak, inconsistent, or
of doubtful credibility. United States v. Lemon, 824 F.2d at 764. We also observe that
the jury believed Tyree Houfmuse's version of the facts since they acquitted him on the
charge of assault.
Because we must view the evidence positively for Tyree Houfmuse, we disagree
that Houfmuse directly acknowledged, during the Oregon jail phone call, that he shot
Asselin in revenge. A listener could indirectly conclude Houfmuse shot in part in
reprisal, but the telephone conversation rambles with slang and foul language, and
Houfmuse also spoke of the need for protection from Asselin in part because of the attack
on Houfmuse's brother.
We hold that Tyree Houfmuse's account of the events establishes the four
elements of the necessity defense articulated in State v. Jeffrey. Houfmuse testified that
he and Anthony Asselin were outside the tavern when Asselin pulled a gun on him.
Asselin yelled and threatened him. A struggle ensued, during which Asselin discharged
15 No. 34394-4-III State v. Hou/muse
the gun three times. After Houfmuse wrested the gun from Asselin, Asselin, with arms
swinging, chased Houfmuse. Houfmuse shot behind him. When viewing the evidence in
the light most favorable to Houfmuse, evidence suffices to show that Houfmuse acted
under an unlawful and present threat of death or serious bodily injury, the first
component of the four elements of the defense. The facts in our appeal resemble the facts
in State v. Stockton more than the circumstances in State v. Parker and State v. Jeffrey.
Tyrell Houfmuse visited the Village Tavern because he believed Anthony Asselin
would not be present. When Asselin arrived at the tavern, Houfmuse immediately found
Aquarius Gibbs and told her they needed to leave. Asselin confronted Houfmuse in the
bar. Houfmuse attempted to calm Asselin, and then Houfmuse walked outside in an
attempt to leave. Asselin and his associates surrounded Houfmuse, and he could not
escape. Thus, evidence favoring Houfmuse shows that he did not recklessly place
himself in a situation that would force him to engage in criminal conduct, the second
element of the necessity defense.
In order to show that a defendant lacked a reasonable legal alternative, our third
ingredient, he must show that he tried the alternative or had no time to try it, or that a
history of futile attempts revealed the illusionary benefits of the alternative. United
States v. Harper, 802 F.2d at 118; State v. Parker, 127 Wn. App. at 355 (2005). Tyrell
Houfmuse testified that he grabbed the gun only after Anthony Asselin pointed it at him.
Houfmuse fled on seizing the gun. Nonetheless, Asselin ran after Houfmuse, swinging
16 No. 34394-4-111 State v. Hou/muse
his arms in a punching motion. As Houfmuse ran, he shot the gun behind him.
The State may assert that Tyree Houfmuse's alternatives to grabbing Anthony
Asselin's gun and shooting Asselin included calling the police while in the bar or walking
away while talking to Asselin in the parking lot. Under Tyree Houfmuse's version of the
facts, however, neither alternative was reasonable. When Asselin arrived, Houfmuse
attempted to depart, but Asselin and his friends stalled him. Any police response from an
emergency call would have consumed minutes. Houfmuse was unaware that Asselin
possessed a gun until Asselin pointed it at him. Once surrounded and at gun point,
Houfmuse did not have time to call the police.
Our dissenting brother, not the State, writes that Tyree Houfmuse, once he seized
Anthony Asselin's gun, had reasonable alternatives to shooting Asselin. According to the
dissent, Houfmuse could have held the victim at gunpoint, could have reasonably
retreated with the gun in hand, and could have ferried the gun to the police. Our brother,
enamored and preoccupied with fiction such as JFK conspiracy theories and Harry
Potter, ignores critical facts. After Houfmuse grasped the gun, he attempted to escape.
Nevertheless, Asselin continued to pursue Houfinuse. Asselin appeared even angrier and
aggressively advanced toward Houfmuse. after the latter took the gun. Houfmuse was
terrified because of Asselin's size and Asselin's earlier threats of death. Houfmuse only
then fired the shots.
17 No. 34394-4-III State v. Houfmuse
Ineffective Assistance of Counsel
We have concluded that the trial court would or should have delivered a jury
instruction on the defense of necessity had Tyree Houfmuse asked for the instruction.
Nevertheless, Houfmuse never asked for the instruction, so we will not reverse the
conviction on the basis of trial court error. Generally, issues not raised in the trial court
may not be raised for the first time on appeal. RAP 2.5(a); State v. Nitsch, 100 Wn. App.
512,519,997 P.2d 1000 (2000). An exception to this rule, under RAP 2.5(a), is manifest
constitutional error, but Houfmuse does not assert manifest constitutional error. Instead,
Tyree Houfmuse argues on appeal that his trial counsel performed deficiently by failing
to assert a necessity defense and failing to request a jury instruction on the defense.
Asserting ineffective assistance of counsel on appeal frustrates the judicial process
since the appellate court indirectly reviews an issue not brought to the attention of the
trial court. The State may need to incur the cost of a second trial through no fault of its
own. Nevertheless, the accused's right to competent counsel preempts efficiency of the
judicial system. Guilt or innocence should not depend on the performance of the
defendant's trial attorney. The constitution guarantees effective assistance of counsel in
order to ensure that a defendant receives due process, because counsel helps ensure that
the defendant presents a defense that furthers a fundamentally fair trial. State v. Laher,
398 P.3d 794 (Haw. 2017).
18 No. 34394-4-III State v. Hou/muse
The Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee the right to effective assistance of counsel.
Stricklandv. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984);Statev. Grier, 171 Wn.2d 17,32,246P.3d 1260(2011). Washington courts have
not extended the protections of the state constitution beyond the protections afforded by
the United States Constitution. Instead, state decisions follow the teachings and rules
announced in the United States Supreme Court's seminal decision of Strickland v.
Washington, 466 U.S. 668 (1984). An accused is entitled to more than a lawyer who sits
next to him in court proceedings. In order to effectuate the purpose behind the
constitutional protection, the accused is entitled to effective assistance of counsel.
Strickland v. Washington, 466 U.S. at 686.
A claim of ineffective assistance of counsel requires a showing that ( 1) counsel's
performance was deficient, and (2) the deficient performance prejudiced the defendant.
Strickland, 466 U.S. at 687. If one prong of the test fails, we need not address the
remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P .2d 563 (1996).
For the deficiency prong of ineffective assistance of counsel, this court gives great
deference to trial counsel's performance and begins the analysis with a strong
presumption that counsel was effective. State v. West, 185 Wn. App. 625,638,344 P.3d
1233 (2015). Deficient performance is performance that fell below an objective standard
of reasonableness based on consideration of all the circumstances. State v. McFarland,
19 No. 34394-4-III State v. Hou/muse
127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The appellant bears the burden to prove
ineffective assistance of counsel. State v. McFarland, 127 Wn.2d at 335. Courts cannot
exhaustively define the obligations of counsel or form a checklist for judicial evaluation
of attorney performance. Stricklandv. Washington, 466 U.S. at 688 (1984).
Nevertheless, effective representation entails certain basic duties, such as the overarching
duty to advocate the defendant's cause and the more particular duty to assert such skill
and knowledge as will render the trial a reliable adversarial testing process. Strickland v.
Washington, 466 U.S. at 688; In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d
91,100,351 PJd 138 (2015).
The State astutely relies on the principle that trial strategy and tactics cannot form
the basis of a finding of deficient performance. State v. Johnston, 143 Wn. App. at 16
(2007). The defendant must show in the record the absence of a legitimate strategic or
tactical reason supporting the challenged conduct of omission by counsel. State v.
McFarland, 127 Wn.2d at 336. Imposing the burden on the defendant invents problems
since the imposition requires the defendant to prove a negative. Presumably the
defendant must fashion straw men or women and then dissemble them. In practice, the
State typically posits one or more reasons for a tactical decision. The Supreme Court
nonetheless remains firm that no presumption of ineffective representation exists. State
v. McFarland, 127 Wn.2d at 336. Thus, in the end, the defendant holds the burden of·
showing a lack of a legitimate strategy.
20 No. 34394-4-111 State v. Hou/muse
The State in this appeal pictures a conflict betwe·en the defense of necessity for the
unlawful possession charge and self-defense for the assault charge such that, for tactical
reasons, trial counsel chose one over the other. According to the State, asserting the
defense of necessity would emphasize Tyree Houfmuse's version of events, when all
other witnesses disagreed with his account of the facts. The jury would need to adopt
Houfmuse's highly unlikely version of the shooting since no one else testified that they
saw Asselin with a gun and Houfmuse taking it from him. The jury would need to find
that Tyree Houfmuse brought no gun to the Village Tavern and instead grabbed the gun
from Anthony Asselin. Accordingly, trial counsel rendered a strategic choice of asserting
self-defense to the assault charge and foregoing the necessity defense and thereby risked
the conviction of unlawful possession of a firearm, a lesser crime. The defense attorney
wanted to demonstrate that the defendant was so afraid of the victim that he armed
himself in advance of a chance encounter at a bar.
An argument that trial strategy informed trial counsel's performance does not end
our inquiry. Not all defense counsel's strategies or tactics are immune from attack. In re
Personal Restraint of Caldellis, 187 Wn.2d 127, 141, 385 P.3d 135 (2016). A criminal
defendant can rebut the presumption of reasonable performance by demonstrating that no
conceivable legitimate tactic explains counsel's performance. In re Personal Restraint of
Caldellis, 187 Wn.2d at 141; State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80
(2004). The relevant question is not whether counsel's choices were strategic, but
21 No. 34394-4-111 State v. Hou/muse
whether they were reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029,
145 L. Ed. 2d 985 (2000); State v. Grier, 171 Wn.2d at 34 (2011).
We cannot be sure if trial defense counsel knew of the possibility of asserting the
necessity defense or if he rendered a conscious decision to withhold the defense. We
cannot divine the reason for refusing to forward the defense, assuming counsel exercised
a deliberate choice. We do not ask counsel to respond to the charge of ineffective
assistance of counsel because we do not address facts outside the record in a direct
appeal.
We disagree with the State and conclude that no reasonable trial strategy explains
defense counsel's failure to request a necessity defense instruction on the unlawful
possession of a firearm charge. Tyrell Houfmuse's counsel was not required to choose
between arguing self-defense for one crime and the defense of necessity for the second
crime. The two defenses were consistent. In fact, courts have likened the necessity
defense to self-defense. State v. Jeffrey, 77 Wn. App. at 224-25 (1995); United States v.
Harper, 802 F .2d at 117 n.1. The elements of both overlap.
The State's line of argument assumes that trial counsel decidedly worried that the
jury would not believe his client, and, thus, counsel did not wish to emphasize Tyree
Houfmuse's version of the assault. We agree with the State that none of the other
witnesses supported Tyree Houfmuse's claim of self-defense to the assault charge. The
other two purported eyewitnesses averred that Houfmuse pulled a gun from his person
22 No. 34394-4-III State v. Hou/muse
and shot Anthony Asselin as Asselin withdrew from the confrontation. Nevertheless,
downplaying Houfmuse's testimony in deference to other witness's testimony served no
purpose in resisting the assault charge. To win on the charge of assault, the jury needed
to believe Houfmuse's testimony. Attacking the credibility of other witnesses and
bolstering the credibility of Houfmuse presented the only reasonable strategy for the
entire case. The defense of necessity to the charge of unlawful possession of a firearm
dovetailed rather than undercut the defense of self-defense to the charge of assault.
The dissenting opinion suggests that the jury would necessarily have believed that
Tyree Houfmuse brought the gun to the Village Tavern because Houfmuse would be
foolish not to leave home unprepared to defend himself ifhe feared that Anthony Asselin
would shoot him. Once again, the dissent adopts fiction. Tyree Houfmuse did not
anticipate encountering Asselin at the tavern. Houfmuse went to the Village Tavern
because Asselin was not known to patronize the tavern. Houfmuse possessed no reason
to arm himself.
The State's line of argument also conflicts with what occurred at trial.
Competency of counsel is determined based on the entire record below. State v.
McFarland, 127 Wn.2d at 335 (1995). We reviewed the closing argument of Tyree
Houfmuse to determine if counsel adopted the tactics proposed by the State. Defense
counsel, during closing argument, promoted the truthfulness of Tyree Houfmuse and
vigorously attacked the credibility of the other witnesses to the shooting. Counsel
23 No. 34394-4-III State v. Hou/muse
accused Felicia Richardson and Ariel Mitchell of lying. Defense counsel never argued
that Houfmuse's fear of Anthony Asselin led him to arm himself in advance of visiting
the Village Tavern. Based on the actual performance of defense counsel, we necessarily
conclude that downplaying the discrepancy between Houfmuse's version of the facts and
others' version of the facts was not a strategy, let alone a reasonable strategy.
Our dissenting brother writes that trial counsel cannot be faulted for failure to
anticipate a potential defense to an uncharged theory created after trial by appellate
counsel. This statement fails to recognize that the State charged Tyree Houfmuse with
unlawful possession of a firearm and the facts supported a conviction regardless of
whether the jury believed Houfmuse brought the gun to the Village Tavern or accepted
Houfmuse's own testimony that he grabbed the gun from Anthony Asselin during the
confrontation. The dissent's quotes from the State's opening statement and closing
summation do not exclude for consideration by the jury Houfmuse's seizure of the
weapon from Asselin's person. The State never conceded or suggested to the jury that
Houfmuse could not be convicted. of unlawful possession by his snatching Anthony
Asselin's firearm. Defense counsel should have anticipated and prepared a necessity
defense, which defense matched his client's testimony.
The jury found Tyree Houfmuse credible because it acquitted him of the assault
charge. In other words, the jury probably believed that Houfmuse took the gun from
Anthony Asselin after a struggle with Asselin. Under these·facts and without the
24 No. 34394-4-111 State v. Hou/muse
assertion of the necessity defense, the jury needed to convict Houfmuse of unlawful
possession of a firearm.
The dissenting opinion suggests that fleeting possession, not necessity, loomed as
the appropriate defense. Nevertheless, our state high court has never adopted fleeting
possession as a defense to a firearm possession charge. Two decisions cited by the
dissent, State v. Callahan, 77 Wn.2d 27, 31, 459 P .2d 400 (1969) and State v. Spruell, 57
Wn. App. 383,386, 788 P.2d 21 (1990), involve unlawful possession of a controlled
substance, not a weapon. State v. Summers, 107 Wn. App. 373, 383-87, 28 P.3d 780
(2001 ), the third decision cited by the defense, entailed a charge of unlawful possession
of a firearm, but the court affirmed the trial court's denial of a jury instruction on
momentary handling of a gun.
Other considerations thwart the dissent's employment of a fleeting possession
defense as a reason to approve the conduct of trial counsel. First, the dissent fails to
analyze whether firing a firearm can constitute fleeting possession. The legislature
probably created the crime of felon in possession in order to preclude felons from use of a
firearm. Thus, Tyree Houfmuse's use of Anthony Asselin's gun conflicts with a fleeting
possession defense. Second, even if fleeting possession is a defense, the defense would
not preclude the raising of the defense of necessity. The two defenses are not mutually
exclusive. A competent defense counsel raises all applicable defenses. Any availability
of the defense of fleeting possession does not excuse trial counsel's failure to assert the
25 No. 34394-4-111 State v. Hou/muse
necessity defense, but only creates a second ground on which counsel performed
deficiently.
We also conclude that trial counsel's ineffectiveness prejudiced Tyree Houfmuse.
Under Strickland, the defendant must show a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland v. Washington, 466 U.S. at 669.
To convict Tyrell Houfmuse of unlawful possession of a firearm in the second
degree, the jury needed to find Houfmuse knowingly had a firearm in his possession or
control on November 26, 2014, he had previously been convicted of a felony, and he
possessed the firearm while in Washington. RCW 9.41.040. Houfmuse's own testimony
established all of these elements. Accordingly, Houfmuse's only hope of acquittal on this
charge would be an affirmative defense. Defense counsel did not advocate a defense or
attempt to dissuade the jury from a conviction on this charge.
Without a necessity instruction, the jury could not weigh the mitigating
circumstance that Houfmuse needed to grab and fire the gun in order to defend himself
against the unlawful threat of death or serious injury. Based on the total record, a
reasonable probability exists that the jury's finding of guilt on the unlawful possession
charge would have been different if defense counsel requested a jury instruction of
necessity. After weighing Tyrell Houfmuse's account of the events with conflicting
26 No. 34394-4-III State v. Hou/muse
testimony from the other witnesses, the jury weighed the credibility and ultimately
acquitted Houfmuse of the assault charge because of self-defense. The jury accepted
Houfmuse's version of the confrontation. If the jury had the opportunity to review a
necessity defense, it would have weighed the same evidence it used to acquit Houfmuse
on the assault charge. Accordingly, if defense counsel had not rendered deficient
performance by failing to request a jury instruction of necessity, Houfmuse would likely
have been acquitted of the unlawful possession charge.
CONCLUSION
We hold that trial counsel performed ineffectively by failing to raise the defense of
necessity to the charge of unlawful possession of a firearm. We hold that ineffective
assistance of counsel prejudiced Tyree Houfmuse. We remand for a new trial on the
charge of unlawful possession.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, ci I CONCUR:
Pennell, J.
27 No. 34394-4-111
KORSMO, J. (dissenting) - It is a great curiosity to me that defense counsel is
adjudged to be ineffective for not presenting a defense to a fictitious theory of the case
that was neither charged by the prosecutor nor argued at trial by either party. The Sixth
Amendment measures effective assistance by adjudging counsel's performance at trial,
not counsel's failure to anticipate a potential defense to an uncharged theory created well
after the trial by defendant's appellate counsel. I dissent.
There are two major problems with the majority's theory of the case. The primary
problem is that it involves a defense to the wrong crime, one that was never charged .. The
second problem is that, even if the charging theory for the unlawful possession of a
firearm (UPF) count had involved the defendant's alleged wresting of the weapon away
from the victim, necessity would not have been the proper defense to that count. A
fleeting possession defense would have been appropriate. The newly suggested defense
to the uncharged crime, as the prosecutor duly notes in his briefing, also would have
undercut the defendant's successful defense to the far more serious charge of first degree
assault. Defense counsel understandably would not have pursued this approach even if it
had been available. No. 34394-4-111 State v. Hou/muse-Dissent
The very first words out of the prosecutor's mouth in opening statement described
the State's theory on the UPF count:
Your Honor, if it may please the Court, counsel, ladies and gentlemen, this case is about the defendant taking a gun to a possible--! want to emphasize that-a possible fistfight. The defendant shot another person who was unarmed and who was not actually fighting with him, but he shot him three times resulting in that man, the victim, having a paralysis that's going to be lifelong.
Report of Proceedings (RP) at 103. Similarly, the prosecutor's closing argument only
focused on defendant's possession of the firearm prior to his arrival at the tavern:
On the second count, unlawful possession of a firearm, I don't think there's too much of a dispute. He did have a felony conviction. He did have a gun, although he basically denied it. He did talk about getting protection. Aquarius Gibbs saw-saw him with a gun. She talked about--talked about him, you know, possibly having a gun on that date. I'm just asking you to hold the defendant accountable; hold him accountable.
RP at 446. This behavior was that also charged by the State, which alleged that Mr.
Houfmuse did "own or have in his/her possession or control" a firearm. 1 Clerk's Papers
(CP) at 2, 8. The court accordingly instructed the jury on the meaning of those elements:
Possession means having a firearm in one's custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession.
1 It is also the only theory that the State could have charged since, up until the time the defendant testified that he took the gun away from the victim and used it on him, there was no evidence that the defendant had claimed to have done so. The prosecutor's selection of the act he was relying on left that theory the only one before the jury. State v. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984).
2 No. 34394-4-III State v. Hou/muse-Dissent
Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item.
CP at 77. Another instruction of interest is number 13 defining "necessary" for purposes
of self-defense. CP at 72. That instruction listed two elements for an action to be
necessary: (1) no reasonably effective alternative existed to using force and (2) the
amount of force used was reasonable. Id.
It should be very elementary criminal law that the prosecutor files a charge and
notifies the defendant, who prepares a defense to that charge. Both sides present their
evidence, the judge instructs the jury on the applicable law, and the jury determines if the
prosecutor has proved the case beyond a reasonable doubt. However, the appellant's
theory in this appeal challenges quite a few of these basic assumptions.
Here, according to the appeal, Mr. Houfmuse's attorney should have ignored the
State's theory of the case on the UPF charge in favor of an uncharged theory-that Mr.
Houfmuse might have been guilty ofUPF for taking the victim's gun away from him. In
addition to ignoring the theory that was being presented to the jury by the prosecutor, this
approach also puts the defendant in the position of taking over the prosecutorial function
to select the charge(s) to be filed. 2 The defendant also bears the burden of establishing
2 In the interests of completeness and competency, I imagine it also would have been prudent for defense counsel to put on a defense to the killing of President Kennedy and other uncharged offenses for which Mr. Houfmuse might have a defense. Having read the Warren Report (condensed single volume edition), I believe Oswald, not Houfmuse, shot the President. However, the majority's approach to charging documents
3 No. 34394-4-III State v. Hou/muse-Dissent
the defense of necessity by a preponderance of the evidence. E.g., State v. Gallegos, 73
Wn. App. 644, 651, 871 P .2d 621 ( 1994 ); 11 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CRIMINAL 18.02, at 292 (4th ed. 2016) (WPIC). Thus,
pursuing a necessity defense to the uncharged UPF theory would have put the defense in
the position of disproving that new theory. It might be the first time in American
criminal jurisprudence that a criminal defendant both charged and bore the burden of
disproving the offense against him. Most certainly it is the first time a defense attorney
has been ruled ineffective for not undertaking the prosecutorial function in order to
defend a criminal case.
But, even if it had made sense to argue and attempt to establish a defense to an
irrelevant theory of liability, there are a few reasons that defense counsel would not do so
in this instance. For one thing, it would make no sense to argue a second theory of
liability. Since the defense theory that Mr. Houfmuse had not brought a gun to the bar
presented a defense to the State's theory of the case, there was absolutely no reason to
present the specter of a second theory of guilt that was not being pursued by the State.
Secondly, the impromptu arming self-defense theory of the case was inconsistent
with a necessity defense. After spending most of the trial establishing the victim's
dangerousness, any rational jury would think Mr. Houfmuse foolish in the extreme to
suggests competent counsel must defend against all uncharged offenses as well.
4 No. 34394-4-III State v. Hou/muse-Dissent
leave home unprepared to defend himself against a gun-wielding foe ifhe genuinely
believed that foe would shoot him. This factual problem would undercut the credibility
of his whole story. 3
Third, raising a necessity defense presented serious potential for confusion with
the jury. As noted in the court's instructions on self-defense, the two defenses have
competing definitions of "necessity" or "necessary" that could easily have resulted in jury
confusion. While the State had the burden of disproving self-defense, including the
burden of disproving the necessity of defendant's action, that burden was flipped on the
necessity defense to the UPF. Even more critically, one of the elements of a necessity
defense is that no reasonable, lawful alternative existed. Gallegos, 73 Wn. App. at 651;
WPIC 18.02. There were numerous reasonable alternatives to possessing the firearm
once the defendant grabbed the gun. He could have held the victim at gunpoint. He
could have taken it to the police. He could have reasonably retreated with the gun in
hand. He could have thrown it away. Each and every one of these reasonable
alternatives was inconsistent with using the weapon in self-defense. Pursuing a necessity
defense could easily have led to the jury comparing the two potential approaches to
3 The majority speculates that the acquittal means the jury found the defendant credible. It does not. The acquittal simply means that the State failed to prove some aspect of its case. There was no special interrogatory concerning self-defense, so there is not even a basis for concluding that the jury believed defendant's theory of the case. At most, the verdict suggests the State may have failed to disprove self-defense.
5 No. 34394-4-111 State v. Hou/muse-Dissent
"necessary" behavior, possibly to the defendant's detriment on the far more serious
charge.
I suspect if trial counsel had attempted to defend on such a foolish basis, the
question presented by this appeal would have been whether he rendered ineffective
assistance in doing so. If the two charged crimes were equally serious in terms of
punishment, then counsel might well have pursued some affirmative defense to the UPF
charge. 4 That was not the case in this instance. First degree assault is a level 12 offense,
with Mr. Houfmuse facing a standard term of 138-184 months due to his offender score
of five. RCW 9.94A.510, .515. The UPF charge, a level 3 offense, presented only a
range of 17-22 months. Id. Counsel understandably focused on the defense to the
significantly more serious crime and would not have wanted to undercut self-defense by
raising a necessity defense to the charged UPF theory.
I also disagree that necessity was the appropriate way to defend against the
defendant's uncharged theory ofUPF resulting from the wresting of the gun from the
victim. Since the defendant was not the owner of the weapon and allegedly possessed it
only long enough to shoot the victim, the defense of fleeting possession would have been
the more appropriate defense. Our courts recognize that momentary possession is not
4 As stated in one of Mrs. Figgs' aphorisms: "There's going to be hell to pay, we might as well be hanged for the dragon as an egg." ROWLING, J.K., HARRY POTTER AND THE ORDER OF THE PHOENIX at 21 (2003).
6 No. 34394-4-III State v. Hou/muse-Dissent
sufficient to establish dominion and control over the property of another. State v.
Callahan, 77 Wn.2d 27, 31,459 P.2d 400 (1969); State v. Summers, 107 Wn. App. 373,
383-387, 28 P.3d 780 (2001); State v. Spruell, 57 Wn. App. 383, 386, 788 P.2d 21
(1990). The use of this defense in an unlawful firearm possession case was discussed at
length in Summers, leading to the following summary:
Possession is more than passing control. Momentary handling, without more, is insufficient to prove possession. But evidence of momentary handling, when combined with other evidence, such as dominion and control of the premises, or a motive to hide the item from police, is sufficient to prove possession. Finally, even passing control of contraband is not legal; it is merely insufficient to prove possession.
107 Wn. App. at 386-387. 5 If there had been a need to raise any other defense, fleeting
possession rather than necessity was the way to go.
It is incomprehensible to me that a review of the entirety of this case can lead
anyone to think that, considered as a whole, trial counsel rendered constitutionally
defective assistance in violation of the Sixth Amendment. Despite the fact that he
successfully pursued a theory of self-defense on the greater crime that saved the
defendant from at least an additional decade in prison, the majority nevertheless wants to
5 The majority faults Summers for not being decided by the Supreme Court and suggests that its rejection of the fleeting possession instruction means the defense is not applicable to firearm cases. Summers could have shortened its analysis significantly by saying the defense was unavailable if it had been so inclined. However, fleeting possession is a defense to possession offenses. The Summers discussion was used to reverse a UPF conviction for insufficient evidence in State v. Blakeway, noted at 109 Wn. App. 1066 (2002).
7 No. 34394-4-111 State v. Hou/muse-Dissent
hang defense counsel out to dry for bar discipline for rendering ineffective assistance on a
throwaway charge due to alleged incompetence. 6 RPC 1.1. I defy anyone to read this
trial record and conclude that counsel was incompetent. He was not.
The conviction should be affirmed. I dissent.
6 Another problem is that counsel will never even get to defend his handling of the case. We do not know what marching orders counsel was proceeding under from his client concerning the goal of the trial representation. This case would have been more fairly and actually decided in a personal restraint petition where counsel could have been compelled to discuss strategy and tactics.