State v. Garrett

881 P.2d 185, 124 Wash. 2d 504, 1994 Wash. LEXIS 551

• Court: Washington Supreme Court
• Decided: September 9, 1994
• Docket: 61046-1
• Status: Published

Opinions

Smith, J.

The State of Washington seeks review of a decision of the Court of Appeals, Division One, which reversed and remanded for further proceedings Respondent Samuel C. Garrett’s second degree child molestation conviction in the Skagit County Superior Court for ineffective assistance of counsel because of misconduct of counsel which, in combination with the trial court’s apparent response to antagonistic behavior by defense counsel, prejudiced Respondent’s right to a fair trial. We reverse the Court of Appeals.

Statement of Facts

On February 22,1991, Respondent Samuel C. Garrett was charged by information in the Skagit County Superior Court with one count of second degree child molestation in violation of RCW 9A.44.086 based upon an incident at the Cascade Mall involving a 13-year-old male person on January 24, 1991¹

Respondent retained as counsel Lowell J. Ashbach, Jr., who was joined at trial by Michael W. Smith as co-counsel. Trial began on April 1, 1991 before the Honorable Stanley K. Bruhn. The court heard several motions during an in-chambers conference. Counsel discussed evidentiary and discovery issues.² The judge expressed some "irritation” that these matters were first being raised moments before trial.³ When defense counsel Smith expressed concern that his client would be prejudiced if escorted into the courtroom in chains and a prison uniform,⁴ the court remarked:

What is irritating me Mr. Smith, is the fact that we have got possible screw-ups now. This stuff should have been handled previously. I haven’t got time to deal with these things at the last minute, unless there is an awfully critical problem, that could not have been handled previously[⁵]

Defense counsel Smith made a motion to exclude witnesses. The prosecuting attorney did not object.⁶ Judge Bruhn again expressed concern that the motion was being raised for the first time moments before trial⁷ Defense counsel Smith responded that he only had an interest in getting a fair trial. Judge Bruhn then replied, "[t]he implication is that I don’t?”⁸

After a brief recess, the trial resumed in open court and jury selection was begun. The court allowed examination of one prospective juror in chambers with all counsel present. Upon completion of the examination the court denied a defense challenge to that juror for cause.⁹

The trial then resumed in open court and voir dire examination continued. During examination of one prospective juror, defense counsel Smith asked him where he parked when he went to the Cascade Mall.¹⁰ The prosecuting attorney objected and asked for a side bar conference.¹¹ After the side bar conference, Judge Bruhn sustained the objection and advised defense counsel Smith he could state his objection to the ruling on the record at a later time.¹²

When his turn came to conduct voir dire examination of three remaining prospective jurors, defense counsel Smith said he had no further questions.¹³ After the State accepted the panel as constituted, the defense exercised one peremptory challenge against the juror who had been examined in chambers.¹⁴ Another prospective juror was seated and the defense declined to examine.¹⁵ The State again accepted the jury and defense counsel Smith accepted the jury, stating "Mr. Garrett informs me that he is satisfied with the 12 people on the jury to try his case.”¹⁶

The prosecuting attorney made his opening statement to the jury and defense counsel Smith elected to follow with his opening statement.¹⁷ During his opening statement, Mr. Smith said the Defendant would be testifying.¹⁸ He attempted in his statement to refer to the criminal history of the juvenile alleged victim. The court sustained an objection, but apparently off the record since Mr. Smith continued to demand a ruling on the record. The court went back on the record, admonished the jury to not discuss the case and to not visit Cascade Mall to gather evidence, and then recessed. The court later reconvened and, out of the presence of the jury, Mr. Smith stated his objection on the record.¹⁹ When reminded by the court to be careful what he said, Mr. Smith replied "/y/ou can’t tell me what to say.”²⁰

Out of the presence of the jury, the court asked defense counsel for legal authority to support their argument that evidence of the juvenile alleged victim’s criminal history would be admissible. Defense counsel Smith told the court he could find "no more than the comments that are at the end of the evidence rules” and that to him "the element is so clear that it needs no briefing”. He then stated "[i]fl come in here with every evidence rule and everything there is with a brief, I might as well just bring my whole law library in here”21 Defense counsel Smith complained about the court’s "control” of the trial. The court attempted to respond,²² after which Mr. Smith stated, "/everything is why didn’t we, why didn’t we,’ 'why didn’t the defendant?’ Why didn’t the defendant? The prosecuting attorney has had this defendant in jail ever since he was arrested. Mr. Ashbach made one good record at the omnibus when he tried to get these things, and all we get at this point, up until now is nothing, and you see what happened. Nothing is provided.”23 Judge Bruhn then agreed to review the transcript from the omnibus hearing and recessed court.

When court reconvened the next morning on April 2,1991 for the in-chambers conference, the clerk of the court, both defense counsel and the prosecuting attorney were present. Discussion began with the question of admissibility of the juvenile alleged victim’s criminal history and the prosecuting attorney’s failure to provide defense counsel with that history. When the court indicated it did not know what was ordered in the omnibus proceeding, Mr. Smith then stated, "7 don’t see how you could even rule on anything when you don’t know what you are ruling on. Sir, what if the kid had the exact same thing happen three other times? Can you state right now he doesn’t? What if he did this three other times?”24

The court then asked defense counsel Smith for "proof ... to establish evidence of character and reputation”. Mr. Smith replied, "/rjead 608”. The court responded, "[t]hat doesn’t tell you how you establish it in court”. Mr. Smith then responded, "/yjeah, it does. Read 608. It says it can be done.”25

Judge Bruhn asked the prosecuting attorney why he had not provided defense counsel with information concerning the juvenile alleged victim’s criminal history. The prosecutor replied that they ran a computer check and there was no criminal history. He repeated that defense counsel Ashbach was told by the juvenile alleged victim that he had a criminal history, and Mr. Ashbach indicated to the prosecutor they had subpoenaed the probation officer who could testify concerning the history.²⁶ Defense counsel Smith accused the prosecuting attorney of trying to hide evidence, but the prosecutor responded that Mr. Ashbach specifically did not want to interview the probation officer until the day of trial. Mr. Ashhach then stated to the prosecuting attorney, "You are a bald faced liar. I want the record to reflect Garl Long is a bald faced liar. He is a liar and I’m not going to participate in this,”²⁷

The court brought the probation officer into the in-chambers conference to testify under oath.²⁸ The court granted the defense a printout of the juvenile alleged victim’s criminal history, but cautioned that the information remained confidential and privileged.²⁹

In his opening statement defense counsel Smith commented about the juvenile alleged victim’s criminal history. Out of the presence of the jury, the court stated agreement with the prosecuting attorney that it is unethical and unprofessional for a lawyer to make a statement when the lawyer does not know what the record shows. Whereupon Mr. Smith responded to the court, "[a] pretty good idea isn’t good enough?I’m not going to let him hide stuff.”30

The court then remarked that counsel does not "go out and taint a jury with information that isn’t accurate or you don’t even know about. That is unethical.” Mr. Smith then responded, "fi]f we are unethical, let me tell you about judicial misconduct. This is in answer to a question that was asked awhile ago. In a way I thought you might have been kidding when you said, ’Why isn’t this a guilty plea?’ That is what you said yesterday morning when we were all in this thing.”31

The court recessed and reconvened in open court with the jury present. Mr. Smith was asked to complete his opening statement, whereupon he began with the statement to the jury that, "[t]he court has directed me not to go into this man’s — .”³² Several objections were made to this and other statements by Mr. Smith. The court sustained them, stating to Mr. Smith, "[t]hey are improper. This is merely an opening statement and that is all.” Mr. Smith then said to the court, "fd]o you want to make it for me?I have a witness, Mel Mocabee, who is going to testify the lot is lit up with 1,000 watt bulbs. Do you not want to hear that either?”33

Defense counsel Smith concluded his opening statement. The jury was excused during proceedings on another preliminary matter.³⁴ The jury was returned to the courtroom and the State began presentation of its case. During testimony by the juvenile alleged victim, and in the presence of the jury, Judge Bruhn asked whether the police report was consistent with the young man’s testimony. Mr. Smith then stated to the court, "I don’t like that, whether or not it is consistent.”³⁵ Defense counsel objected to the prosecutor allowing the witness to review a written statement he made to the police.³⁶ The court excused the jury and the juvenile alleged victim to resolve this matter.³⁷ Counsel discussed issues regarding the juvenile alleged victim’s probation status and criminal history. Defense counsel Smith accused the prosecutor of violating a court order restricting use of the juvenile alleged victim’s criminal history. The court responded that he did not wish to hear "any more criticism of other counsel” and that he had said nothing before when Mr. Smith had "accused Mr. Long of improper conduct”. Mr. Smith then said to the court, '[y]ou accused me in chambers. Is it different? I showed you information.”38 The jury returned to the courtroom and the State continued with its case in chief.

On the third day of trial, out of the presence of the jury, the court and defense counsel continued their pattern of verbal exchange:³⁹

MR. SMITH: He’s not going to give any testimony today on the witness stand, I think he’s getting a little flavor or a little tenor of this trial.

THE COURT: I don’t need those kinds of remarks, Mr. Smith. Just state facts of [sic] law.

In open court, after the State rested, the defense then presented its case.⁴⁰ Prior to calling their first witness and out of the presence of the jury, defense counsel advised the court that the defendant (Respondent Garrett) would not be testifying. Defense counsel stated several reasons for that decision, but particularly⁴¹ Mr. Garrett’s belief that the trial judge was prejudiced against him and his counsel.

In the presence of the jury, defense counsel called two witnesses and then rested.⁴² The court addressed the jury.,⁴³

All right, ladies and gentlemen. How about that? We have concluded the case. So now the hard work comes for you people at least. First of all ladies and gentlemen, the defendant has a constitutional right not to take the stand and not to testify against himself and he has elected so to do and I am impressing upon you to remember that and not draw any inferences of any sort from the fact that he has not testified. It doesn’t mean — it is not meaningful at all in this case.

(Italics ours.)

The court reconvened in chambers. Out of the presence of the jury, defense counsel Smith moved for a mistrial on the grounds of judicial prejudice against the defendant (Respondent Garrett) and defense counsel and because Judge Bruhn’s instruction to the jury was "extremely inappropriate”.44 The motion was denied.⁴⁵.

The court and counsel further discussed and agreed upon proposed jury instructions. Before the jury returned to the courtroom, the prosecuting attorney asked the court to caution defense counsel to limit closing argument to the evidence.⁴⁶ Mr. Smith replied 'Yojther than the fact that the prosecuting attorney is not going to admonish me on how to make a closing statement or what words I use, if I want to call the kid a hustler and characterize his character as a hustling individual I can do it.” The court told him, "[n]o, you can’t”, whereupon Mr. Smith said to the court [yjou’re not going to tell me what words I can use in talking to a jury.”47

During closing argument for the defense, Mr. Smith, in an apparent effort to ameliorate his crude behavior, stated:⁴⁸

Ladies and gentlemen, as you can see these, I can tell you that child abuse cases are very difficult to defend and I want to get a little personality thing out of the way first before we talk about this. I didn’t ask for this kind of system, and neither did the prosecutor nor the defendant nor the judge, but we call it an adversarial system. An adversarial system means that it’s almost like war. You keep at logger heads where you keep pushing and you keep going and you keep fighting and hope out of that that the truth is going to come out. During this trial, that is what’s been going on. Push and pull. Because of the nature of that, you may see at times that I get short with the judge or say things like that which I can see smiles on your faces or he is short with me or the prosecutor or whatever. That’s part of the system. It’s part of the system and I apologize now to Judge Bruhn for any comments that I have made or any actions I may have taken. It certainly was not meant in disrespect for him.

Likewise, I think it’s fair to say that anything that was going on hack the other way is about the same thing. It’s part of the battle.

After the jury retired for deliberation, the prosecuting attorney noted for the record:⁴⁹

I think that was one of the most improper closing arguments that I’ve ever heard. . . .

He stated his personal opinions throughout the argument and he continually referred to matters not in evidence. He gave his own opinion even to the extent of testifying as an expert on sexual molesters. It was a totally improper closing argument. I requested terms once before in this case and I think they would be appropriate for that closing argument. Frankly, I think I would be entitled to a mistrial, should I decide to ask for one, but I’m not going to do that. I would like to see this case concluded rather than retried, but that has to be the most flagrantly improper closing argument that I’ve ever heard. Defense counsel Smith declined to respond, but the court

then stated:

Well, I think I will say this. I think Mr. Smith has stepped over the line badly both on opening and closing. And if you had moved for a mistrial, I would have given that consideration but you have not so it won’t occur. I think Mr. Smith, your effort to ingratiate yourself, in a [sic] the sense of the word, I guess, with the jury, in view of what I gather, you perceived the jurors or what you thought the jurors perceived in view of your conduct, didn’t sell very well. This isn’t what happens in the heat of battle. This is not the adversary system as it is known and practiced by professional people. I’m not going to sanction Mr. Smith, he deserves it, but I’m not going to do it and we’ll let it go at that. We’ll see what comes of this case.

On April 3, 1991, the jury found Samuel C. Garrett "guilty” of second degree child molestation.⁵⁰

On May 13, 1991, Judge Bruhn recused himself from sentencing the defendant (Respondent Garrett).⁵¹ On July 3, 1991, the Honorable Richard J. Thorpe, visiting judge from Snohomish County, sentenced Respondent Garrett to 116 months for second degree child molestation.⁵²

On May 17, 1993, the Court of Appeals, Division One, reversed the conviction and remanded for retrial because of ineffective assistance of counsel which, in combination with the trial court’s apparent response to antagonistic behavior by defense counsel, prejudiced Respondent Garrett’s right to a fair trial. On October 12, 1993, the Court of Appeals commissioner denied Mr. Garrett’s motion for release pending review.

On April 7, 1994, this court granted the State’s petition for review. On May 3, 1994, Respondent Garrett filed a motion to strike portions of the State’s petition for discretionary review. The motion was "passed on the merits” and considered during oral argument.

Question Presented

The sole question presented is whether a jury conviction for second degree child molestation should be reversed for ineffective assistance of counsel because of misconduct of counsel which, in combination with the trial court’s apparent response to antagonistic behavior by defense counsel, prejudiced Respondent Samuel C. Garrett’s right to a fair trial.

Discussion

In its petition for review, the State challenges the Court of Appeals decision only on ineffective assistance of counsel.⁵³

Motion to Strike

Respondent Garrett moved to strike portions of the State’s Petition for Discretionary Revas indicated below:

Garrett was an experienced participant in the criminal justice system. He has three prior convictions for similar offenses. Each offense involved a separate prosecution. In addition there is a warrant for his arrest on a fourth offense.[⁵⁴]

Under CrR 7.1(c) counsel for the defense is required to notify opposing counsel and the court "of any part of the presentence report that will be controverted by the production of evidence.” Defense counsel did not object in a timely manner to identical information in the presentence report. Thus the motion to strike this language from the State’s petition for discretionary review is not timely and is denied.

These four prosecutions took place in Canada. It appears Garrett came to the United States to avoid the Canadian warrant. [⁵⁵]

This statement is also subject to CrR 7.1(c). Defense counsel did not object in a timely manner. However, the State’s claim that Respondent had four prosecutions admittedly was in error. In fact there were only three. This was corrected prior to trial during an in-chambers conference with defense counsel and the prosecuting attorney.⁵⁶ The motion to strike is denied.

Respondent Garrett also moved to strike the State’s characterization of the juvenile victim as a "developmentally handicapped child”.⁵⁷ Defense counsel did not object to the State’s line of questioning concerning the juvenile victim’s educational background and his attendance at "Skagit Discovery”.⁵⁸ The defense also did not cross-examine the juvenile victim on this issue, and cannot now object to the State’s characterization of him in its Petition for Discretionary Review as a "devélopmentally handicapped child”. The motion to strike is denied.

Even if the State can find the witnesses and convince them to cooperate again, double jeopardy may prevent a retrial.[⁵⁹]

The State’s interpretation of the law is consistent with United States v. Altamirano.⁶⁰ In Altamirano, the question of double jeopardy was not raised because the court determined the defendant had not been prejudiced by his counsel’s unprofessional conduct.⁶¹ However, the court recognized "a strong possibility that double jeopardy claims w[ould] be raised in subsequent cases where the claim of inadequate assistance of counsel is raised successfully on appeal.”⁶² Thus, the State is correct in its assertion that it might be prevented from retrying the case if the decision of the Court of Appeals is upheld. The motion to strike is denied.

Standard of Review

The question whether an attorney renders ineffective assistance of counsel when counsel violates the Rules of Professional Conduct is one of law.⁶³

Ineffective Assistance of Counsel

Respondent Garrett claims he was deprived of his Sixth Amendment right to effective assistance of counsel because of his attorneys’ conduct at trial. "When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.”⁶⁴ The State contends there should be no finding of ineffective assistance of counsel because the conduct of Respondent’s attorneys constituted intentional and deliberately calculated trial tactics.

In Strickland v. Washington, in an opinion by Justice Sandra Day O’Connor, the United States Supreme Court established a 2-part test for determining whether counsel’s assistance at trial or sentencing was ineffective.⁶⁵ The Court stated:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.[⁶⁶]

This court adopted the Strickland test in State v. Thomas⁶⁷ to "ensure a fair and impartial trial.”⁶⁸ The court in Thomas stated:

The Strickland test requires a showing that counsel’s representation fell below an objective standard of reasonableness based on consideration of all of the circumstances. Strickland, at 688. Regarding the first prong, scrutiny of counsel’s performance is highly deferential and courts will indulge in a strong presumption of reasonableness. See Strickland, at 689. To meet the requirement of the second prong defendant has the burden to show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.[69]

In Thomas the petitioner claimed she was denied effective assistance of counsel because her assigned trial counsel failed to competently present a diminished capacity defense based on voluntary intoxication to a charge of attempting to elude a police vehicle.⁷⁰ This court concluded that the petitioner in Thomas was denied effective assistance of counsel because trial counsel failed to offer a critical jury instruction which would have "better enabled her counsel to argue the . . . theory of the case”⁷¹ and the jury would have had a correct statement of the law if the instruction had been given.⁷² We held that petitioner was prejudiced because "[a] reasonably competent attorney would have been sufficiently aware of relevant legal principles to enable him or her to propose an instruction based on pertinent cases.”⁷³ We concluded in that case that "defense counsel’s representation fell below an objective standard of reasonableness.”⁷⁴

In this case, however, defense counsel consciously and deliberately refused to examine the last four prospective jurors and accepted the jury as constituted. The record reflects that his counsel zealously and aggressively represented Respondent Garrett throughout the trial. The entire record demonstrates that Respondent Garrett did have effective assistance of counsel and was not prejudiced in his right to a fair and impartial trial even though his counsel engaged in gross disrespectful behavior toward the court. The response of the court was gentle and restrained, even though defense counsel seemingly sought to provoke the court to harsher response.

When courts analyze claims of ineffective assistance of counsel, "[t]here is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in all significant decisions made.”⁷⁵ In addition, this court will not find ineffective assistance of counsel if "the actions of counsel complained of go to the theory of the case or to trial tactics.”⁷⁶

There is no claim in this case that defense counsel committed errors in their representation of Respondent Garrett. The United States Supreme Court in Strickland clearly established the rule that:

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-65, [66 L. Ed. 2d 564, 101 S. Ct. 665, 667-68] (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.[⁷⁷]

In United States v. Altamirano, supra, the United States Court of Appeals for the Ninth Circuit found that counsel’s conduct was not so prejudicial that it would require reversal of defendant’s conviction for ineffective assistance of counsel.⁷⁸ The behavior of defense counsel in that case was similar to the behavior of counsel in this case. The court provided examples of defense counsel’s unprofessional conduct, which included: insistence on rearguing points already ruled on by the trial court; argument with the trial judge; confrontation with the trial judge concerning the proper manner to subpoena witnesses; inappropriate remarks in the presence of the jury; heated exchange with the trial judge over cross examination of a witness; and remarks in the presence of the jury denigrating the government’s proffered evidence. The court observed that:

Obduracy may reflect conscious unprofessional conduct as well as involuntary ineptitude. The two should be kept distinct even though admittedly both may prejudice the client. To equate the two would provide an improper incentive to use unprofessional conduct as a means to secure mistrials or reversals of convictions having as the end the delay of a valid conviction or the possible escape from prosecution. Obviously no bright line can be drawn between conscious unprofessionalism and incorrigible incompetency; each represents the opposing end of a spectrum in which at the center is ambiguous conduct that exhibits characteristics of both.[⁷⁹]

Although the court determined defense counsel was "confusing and unprofessional in many instances . . . [and] not highly competent”,⁸⁰ it concluded that his "unprofessional acts when reviewed in the context of the entire trial did not deprive [defendant] of a fair trial.”⁸¹ The court in Altamirano was primarily concerned with whether deliberate misconduct by defense counsel could constitute ineffective assistance of counsel which would deny a defendant the constitutional right to a fair trial.

In this case, the difficulties began on the first day of trial and continued throughout. Most of the utterances by defense counsel were confrontational. The record is rife with instances of discourteous and disrespectful behavior by defense counsel toward the court. We have cited only a selection of those instances in this opinion. From the entire record it can only be concluded that defense counsel was disrespectful, abusive, antagonistic and insulting in total disregard for the respect due the court. With the exception of a few instances, the verbal exchanges between counsel and the court occurred out of the presence of the jury.⁸² Any responsive remarks by the trial judge were not "reasonably calculated to influence the judgment of the jury”.⁸³

Because of the unprofessional behavior, of both defense counsel, reflected upon the record in this case, we refer the matter to the Washington State Bar Association for appropriate disciplinary investigation and any proceedings which may follow.

Under Rule of Professional Conduct 3.5(c), a lawyer shall not "[ejngage in conduct intended to disrupt a tribunal.” Under RPC 8.4(d), it is professional misconduct for a lawyer to "[ejngage in conduct that is prejudicial to the administration of justice . . ..” Upon admission to practice before this court, members of the Washington State Bar take an oath of attorney which includes the words "I will maintain the respect due to the courts of justice and judicial officers” and "I will abstain from all offensive personalities. ...”

The behavior of defense counsel in this case, particularly Michael W. Smith, was grossly unprofessional by any measure. He was disdainful in his behavior toward the court. Selected portions recited in this opinion and the entire record can lead only to the conclusion that defense counsel Smith, was boorish, contemptuous, discourteous, disrespectful, insolent, obdurate, obnoxious, offensive, rude and uncouth. All judicial officers in this state are entitled to respect from lawyers admitted to practice in our courts. The trial judge in this case was entitled to no less.

Summary and Conclusions

The Court of Appeals reversed Respondent Samuel C. Garrett’s conviction for second degree child molestation because of ineffective assistance of counsel which, when combined with the trial court’s apparent response to antagonistic behavior by defense counsel, prejudiced Respondent’s right to a fair trial. However, with a few minor exceptions, the verbal exchanges between defense counsel and the court occurred out of the presence of the jury. It cannot be said that Respondent was prejudiced in his right to a fair trial based upon matters which were not brought to the attention of the jury.

There is nothing in the record in this case to suggest that defense counsel were other than skillful and competent in their representation of Petitioner Garrett. The critical concern is their gross unprofessional conduct particularly toward the court. Lawyers in this state are officers of the court and must conduct themselves in a manner consistent with the responsibilities of that calling.

It is apparent from the record in this case that defense counsel skillfully determined as a deliberate trial tactic to push the trial court beyond the limits of tolerance either to force a mistrial or to provide a perverse form of "insurance” on a claim of ineffective assistance of counsel in the event of conviction.⁸⁴

Under the test established by the United States Supreme Court in Strickland v. Washington, supra, and adopted by this court in State v. Thomas, supra, and under United States v. Altamirano, supra, we conclude that Respondent Samuel C. Garrett was not denied his Sixth Amendment right to effective assistance of counsel because of the unprofessional conduct of his counsel.

We therefore reverse the decision of the Court of Appeals which reversed Respondent’s jury conviction for second degree child molestation.

Andersen, C.J., and Brachtenbach, Dolliver, and Durham, JJ., concur.

1 Clerk’s Papers, at 1.

2 Pretrial In-Chamber Conference Verbatim Report of Proceedings (Pretrial VRP) (April 1, 1991) (incorrectly dated, April 1, 1990), at 5-9.

3 Pretrial VRP (April 1, 1991), at 9-10.

4 Pretrial VRP (April 1, 1991), at 12.

5 Pretrial VRP (April 1, 1991), at 15-16.

6 Pretrial VRP (April 1, 1991), at 17.

7 The court stated: "There is an example of something in the future gentlemen, if you come before me, could have been handled a week ahead of time. When did you know I was going to be the judge? Over a week ago Mr. Ashbach?” Pretrial VRP (April 1, 1991), at 17.

⁸

9 Pretrial VRP (April 1, 1991), at 62-63.

10 The offense allegedly took place in the parking lot of Cascade Mall.

11 Pretrial VRP (April 1, 1991), at 93.

¹²

13 Pretrial VRP (April 1, 1991), at 97, 100, 103.

14 Pretrial VRP (April 1, 1991), at 104.

15 Pretrial VRP (April 1, 1991), at 107.

¹⁶

17 Pretrial VRP (April 1, 1991), at 120.

18 Pretrial VRP (April 1, 1991), at 121.

19 Pretrial VRP (April 1, 1991), at 131-35.

20 (Italics ours.) Pretrial VRP (April 1, 1991), at 133.

21 (Italics ours.) Pretrial VRP (April 1, 1991), at 151-52.

22 Pretrial VRP (April 1, 1991), at 157-59.

23 (Italics ours.) Pretrial VRP (April 1, 1991), at 164.

24 (Italics ours.) Verbatim Report of Proceedings (VRP) (April 2, 1991), at 6-7.

25 (Italics ours.) VRP (April 2, 1991), at 7.

26 RP (April 2, 1991), at 7-11.

27 (Italics ours.) VRP (April 2, 1991), at 11-12.

28 VRP (April 2, 1991), at 16-26.

29 VRP (April 2, 1991), at 30.

30 (Italics ours.) VRP (April 2, 1991), at 31.

³¹

32 (Italics ours.) VRP (April 2, 1991), at 37.

33 (Italics ours.) VRP (April 2, 1991), at 38.

34 VRP (April 2, 1991), at 41. This matter concerned the testimony of a state witness who was manager of a video arcade at Cascade Mall. He had been discharged for alleged embezzlement. The prosecuting attorney learned the case had been referred to his office, but determined that information concerning a pending charge would not be admissible in this case. The trial court ruled there would be no reference, questions or comments concerning any pending charges against the witness. VRP (April 2, 1991), at 47. Respondent Garrett assigned error to this ruling. The Court of Appeals agreed, holding that the trial court’s ruling was erroneous under Davis v. Alaska, 415 U.S. 308, 318, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). Although we do not agree with that interpretation, the issue is not before us in this case.

35 (Italics ours.) VRP (April 2, 1991), at 127.

36 VRP (April 2, 1991), at 128.

37 VRP (April 2, 1991), at 129.

38 (Italics ours.) VRP (April 2, 1991), at 136-37.

39 (Italics ours.) VRP (April 4, 1991) (incorrectly dated April 4, 1990), at 10. While the court reporter indicated the date as April 4, 1990, it is obvious from the documents in the file that this occurred on April 3, 1991. See Clerk’s Papers, at 32.

40 VRP (April 4, 1991), at 46.

41 VRP (April 4, 1991), at 31-38.

42 VRP (April 4, 1991), at 66.

43 VRP (April 4, 1991), at 66-67.

44 (Italics ours.) VRP (April 4, 1991), at 71.

45 VRP (April 4, 1991), at 73. The Court of Appeals noted that Respondent Garrett assigned error to denial by the trial court of a mistrial and to the court’s use of the words "testify against himself’. However, the Court of Appeals did not address this issue because its decision rested on other grounds.

46 VRP (April 4, 1991), at 77-78.

47 VRP (April 4, 1991), at 78-79.

48 VRP (April 4, 1991), at 90-91.

49 VRP (April 4, 1991), at 117-19.

50 Clerk’s Papers, at 32.

51 VRP (May 13, 1991), at 16.

52 Clerk’s Papers, at 42.

53 The Court of Appeals did not address Respondent’s claim that the sentencing judge erred in considering his prior convictions in calculating his offender score. See Br. of Appellant. Neither party challenges that omission.

54 (Italics ours.) Pet. for Discretionary Review, at 10.

55 (Italics ours.) Pet. for Discretionary Review, at 10 n.2.

56 See Clerk’s Papers Requested by Washington Appellate Defender Association, at 19; see also Presentence Investigation; Clerk’s Papers Requested by Plaintiff/ Respondent, at 63-64.

57 (Italics ours.) Pet. for Discretionary Review, at 11.

58 VRP (April 2, 1991), at 79.

59 (Italics ours.) Pet. for Discretionary Review, at 12.

60 633F.2d 147,151 n.2 (9th Cir. 1980).

61 Altamirano, at 152.

62 Altamirano, at 151 n.2.

63 Eriks v. Denver, 118 Wn.2d 451, 458, 824 P.2d 1207 (1992) (citing Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990); McCall v. District Court, 783 P.2d 1223 (Colo. 1989); Attorney Grievance Comm’n v. Korotki, 318 Md. 646, 569 A.2d 1224 (1990); State v. Romero, 563 N.E.2d 134 (Ind. Ct. App. 1990); Bonanza Motors, Inc. v. Webb, 104 Idaho 234, 657 P.2d 1102 (Ct. App. 1983)) see also Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988) (citing Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985)).

64 Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

65 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Some commentators criticize the Strickland 2-prong test because it does not distinguish capital cases from other criminal cases and because "while paying lip service to the importance of the sixth amendment right to effective assistance of counsel, it creates an almost insurmountable hurdle for defendants claiming ineffective assistance.” See Martin C. Calhoun, Notes & Comments, How to Thread the Needle: Toward A Checklist-Based Standard for Evaluating Ineffective Assistance of Counsel Claims, 77 Geo. L.J. 413, 427 (1988); Helen Gredd, Comment, Washington v. Strickland: Defining Effective Assistance of Counsel at Capital Sentencing, 83 Colum. L. R. 1544 (1983).

66 Strickland, at 687.

67 109 Wn.2d 222, 743 P.2d 816 (1987).

68 Thomas, at 225 (citing State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984); State v. Ermert, 94 Wn.2d 839, 849, 621 P.2d 121 (1980)).

69 (Citation omitted.) Thomas, at 226.

70 Thomas, at 223.

71 Thomas, at 227.

72 Thomas, at 228.

73 Thomas, at 229.

74 Thomas, at 232 (citing Strickland at 688).

75 Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985) (citing Strickland, at 690).

76 State v. Renfro, 96 Wn.2d 902, 909, 639 P.2d 737 (citing State v. Ermert, 94 Wn.2d 839, 621 P.2d 121 (1980)), cert. denied, 459 U.S. 842 (1982); see also State v. Mode, 57 Wn.2d 829, 360 P.2d 159 (1961).

77 Strickland, at 691-92.

78 Altamirano, at 153.

79 United States v. Altamirano, 633 F.2d 147, 150-51 (9th Cir. 1980).

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82 The court inquired whether the testimony of the juvenile alleged victim was consistent with his report to the police, and defense counsel Smith responded with a curt remark in the presence of the jury.

83 See State v. Levy, 8 Wn.2d 630, 647, 113 P.2d 306 (1941).

84 On August 7, 1992, the trial judge stipulated to admonishment by the Commission on Judicial Conduct for reasons stated in a report in the Bar News. No other information is available on this. See Washington State Bar News vol. 46, no. 10, at 37 (Oct. 1992).