No. 51557-8-IThe Court of Appeals of Washington, Division One.
Filed: December 22, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-05061-0. Judgment or order under review. Date filed: 12/19/2002.
Counsel for Appellant(s), Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Matthew G Anderson, King Co Pros Aty, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
PER CURIAM.
When asserting an affirmative defense, defense counsel may make the tactical decision not to request definitional instructions and to rely upon common rather than technical meanings of elements of the affirmative defense. Jesse Hunter asserted the statutory `uncontrollable circumstances’ affirmative defense to bail jumping based upon his alleged memory problem and the failure of his family members to remind him of scheduled court appearances. The decision to rely upon common rather than technical meanings of `uncontrollable circumstances’ and `reckless’ as used in the affirmative defense instruction was tactical and Hunter does not establish deficient performance. Therefore, we affirm.
FACTS
Fifty-three year old Hunter was tried on two counts of bail jumping for his failure to appear in court on two occasions. Hunter testified that his memory has been impaired since a job related head injury and he must rely upon family members to help him keep appointments. He has tried other systems and those have not worked. Hunter gave his brother Lloyd the information that he was to appear on November 30, 2001, but Lloyd failed to remind him of the date until several months after he had missed his court appearance. Hunter again gave the information to his brother that he was to appear for a pre-trial hearing on July 19, 2002. Hunter shared a residence with Lloyd, but moved out when he learned that there were drugs in the residence. Hunter told his parents that the court documents were at Lloyd’s residence. They called the police to determine his next court appearance and the police informed the parents that Hunter was to appear on August 2. But August 2 was his trial date and he did not realize he had missed the July 19, 2002 pre-trial hearing until his attorney wrote him a letter informing him that a warrant had been issued for his failure to appear.
The court instructed the jury on the statutory affirmative defense to bail jumping:
A person is not guilty of Bail Jumping if uncontrollable circumstances prevented the person from appearing and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender and that the person appeared or surrendered as soon as such circumstances ceased to exist.
The burden is on the defendant to prove by a preponderance of the evidence that the uncontrollable circumstances prevented the person from appearing and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender and that the person appeared or surrendered as soon as such circumstances ceased to exist. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.
The defense did not request any other instructions related to this defense. The jury found Hunter guilty of two counts of bail jumping.
A strong presumption of competent representation generally attaches to the review of a claim of ineffective assistance of counsel.[1] To establish ineffective assistance, a defendant bears the burden of proving that trial counsel’s representation was deficient and that the deficiency prejudiced the defense.[2] `Deficient performance is not shown by matters that go to trial strategy or tactics.’[3]
Hunter contends his trial counsel should have requested instructions with the statutory definition of `uncontrollable circumstance,’[4] and the statutory definition of `reckless.’[5]
When requested, a trial court in a criminal case must define technical words and expressions used in jury instructions.[6] A term is technical if its legal definition differs from the common understanding of the word.[7] In closing argument, Hunter’s counsel argued that the `uncontrollable circumstance’ excusing his absences was the failure of his family support system that he had reasonably relied upon for other court appearances and important appointments. Counsel also argued that Hunter did nothing that contributed to the failure of his relatives to assist him. The State argued that Hunter’s testimony was not credible because it was not corroborated by any doctors or by any members of his family.
In this factual context, we conclude that counsel chose as a matter of trial tactics to avoid the precise and limiting statutory definition of `uncontrollable circumstances’ and to rely upon the more general common meaning of a circumstance beyond his control. Further, providing the jury with the statutory definition of `reckless’ would have undercut the ability to argue that Hunter had done nothing to violate the objective prong of the definition.[8]
State v. Allen[9] on which Hunter relies does not require a different result. In Allen, the court held that `[a]n instruction, when requested, defining intent in the words of [the statute], is required when intent is an element of the crime charged.’[10] Allen does not stand for the proposition that `reckless’ is a technical term that compels an instruction containing the statutory definition when not requested. Because it was a tactical decision to rely upon the common rather than technical meanings of the terms in the affirmative defense instruction, Hunter does not establish deficient performance.
We affirm.
(1987).