No. 20390-5-III.The Court of Appeals of Washington, Division Three. Panel Three.
Filed: October 3, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 011007611, Hon. Kathleen O’Connor, July 27, 2001, Judgment or order under review.
Counsel for Appellant(s), Donald G. Miller, Attorney At Law, 422 W Riverside Ste 518, Spokane, WA 99201.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.
STEPHEN M. BROWN, A.C.J.
Justin D. White, convicted of one count of first degree murder, argues error in allowing evidence of his prior assaults on the same victim, insufficient evidence of premeditation, and ineffective counsel. Finding no error, we affirm.
FACTS
The State charged Mr. White and John Michel of one count of first degree murder with an alternative count of second degree murder, with a deadly weapon (non-firearm) enhancement related to the March 25, 2001 death of George Rice, a homeless man. Later, the trial court severed the trials of the two defendants. Mr. White unsuccessfully moved under ER 404(b) to exclude evidence of his earlier assault on Mr. Rice.
At trial, Patty McGruder, a volunteer worker for the homeless, testified she found Mr. Rice early on March 25 lying seriously injured underneath the freeway at 4th and Monroe in Spokane. Before help arrived, Mr. Rice died from injuries later found to have been inflicted that same morning. May Ingram testified Mr. White, her ex-boyfriend, told her before March 25 that he and other friends beat up a transient with a two-by-four, a 40 oz. beer bottle, and a rock. Ms. Ingram recalled Mr. White said he wielded the two-by-four. A day or two later, Ms. Ingram was with Mr. White and others when Mr. Michel suddenly said, “I think I killed that guy last night.” 2 Report of Proceedings (RP) (July 10, 2001) at 196. Ms. Ingram told him something to the effect that he could face murder charges. According to Ms. Ingram, Mr. White `seemed a little agitated.’ 2 RP at 196.
Later that evening, Ms. Ingram saw a television report regarding Mr. Rice’s murder. Ms. Ingram then reported her knowledge to the police and was soon interviewed. The same day, Ms. Ingram asked Mr. White on the telephone if he had watched the news, he responded, “[a]re you talking about what me and John [Michel] did?” 2 RP at 202.
Regarding the earlier incident, Paul Kirkland, a juvenile testifying with immunity, revealed he and Mr. White met on March 18, 2001 and hatched an unsuccessful plan to obtain beer money by robbing people outside a restaurant. Then, they began walking to Mr. Michel’s house. On the way, Mr. Kirkland and Mr. White saw `a bum’ lying under the freeway at 4th and Monroe. 2 RP at 210. Mr. White picked up a 40 oz. beer bottle and threw it at the man. The bottle hit the man on the head. Hurt, the man responded with an expletive. Then, Mr. Kirkland and Mr. White ran up the South Hill.
Mr. Kirkland then suggested to Mr. White they needed to `beat him up some more.’ 2 RP at 212. Mr. Kirkland picked up a two-by-four, Mr. White picked up a rock, and they started back down the hill. When they returned the man was standing. Mr. Kirkland hit him on the back of the head with the two-by-four and Mr. White hit him with the rock. Believing the man to be `knocked out,’ Mr. Kirkland and Mr. White ran away. 2 RP at 213. Shown a post-assault photograph of Mr. Rice, Mr. Kirkland testified, `That’s the guy that we beat up, and he’s bloody.’ 2 RP at 214.
Mr. Kirkland testified that on the afternoon of March 25, Mr. White told him that he and Mr. Michel got drunk and beat up the same `bum’ Mr. Kirkland and Mr. White had beaten up before. 2 RP at 216. Further, Mr. White told Mr. Kirkland he had taken a seven-foot pole from the Davenport Hotel and hit Mr. Rice five to seven times with it. Mr. Michel took the pole away from Mr. Rice and poked Mr. Rice with it. After looking at Mr. Rice, Mr. White took the pole back and hit him a couple of more times. They washed the pole off in a puddle and threw it in bushes a couple of blocks away.
Richard Barney, an employee at a convenience store located near 4th and Monroe, testified that Mr. Rice, a regular customer, staggered into the store on March 18, 2002. Mr. Rice was bloody and claimed he had been assaulted. Officer Mark Ferguson interviewed Mr. Rice, who partly reported that two white males hit him on the head with a beer bottle while he was sleeping under the freeway.
Detective Minde Connelly testified that after receiving Ms. Ingram’s report she contacted Mr. White on March 26, 2001. Mr. White agreed to an interview at the Public Safety Building. After waiver of his rights, Mr. White first told Detective Connelly he had no knowledge of a transient being murdered. Detective Connelly told Mr. White the police had information placing him at the scene of the murder and that the Deaconess Medical Center had a video camera mounted nearby. The detective then testified:
I then leaned in towards him, and I wanted to afford him an opportunity to be able to acknowledge that he had participated in this, but yet I wanted to minimize it, so I asked, `Did you really mean to do it?’ And he tilted his head down slightly and he whispered, `No.’
2 RP at 245. When Detective Connelly asked Mr. White to explain what happened, Mr. White then responded,
“I don’t remember, I was blacked out when it happened. I was told about it the next day.”
2 RP at 246.
Eventually, Mr. White told Detective Connelly his version of the crime. It was Mr. White’s 21st birthday. He went drinking with Mr. Michel until about 2:00 a.m. Then they started to walk home. Mr. White told Detective Connelly that Mr. Michel
`was drunk and in a fighting mood.’
2 RP at 249. Mr. White said he told Mr. Michel
`that if the bum is there, we’ll fight him.’
2 RP at 249. He meant Mr. Rice.
Along the way Mr. White picked up a pipe. When he and Mr. Michel got to 4th and Monroe they found Mr. Rice asleep. Detective Connelly testified that Mr. White told her the following:
He said that he hit the bum with the metal pipe. He hit the bum in the neck. He stated that this person, the bum, did not move, so he hit him again. I asked him how many times he hit this individual. He said, `I hit him at least five times about the head.’ Referring to the pipe.
2 RP at 250. Mr. White told Detective Connelly that Mr. Michel also hit Mr. Rice about five times with the pipe. Mr. White told Detective Connelly that they hit Mr. Rice in order to provoke a fight, but
`[o]nce they did hit him, he never got up to fight.’
2 RP at 251. Detective Connelly stated that Mr. White told her
`he knew it was wrong to hit the man the way that they did and leave him there.’
2 RP at 252.
Detective Connelly found the pipe used in the killing. It was a seven-foot-long irrigation-type pipe with a two-inch diameter. Round wounds on Mr. Rice’s face indicated that he had been hit with the butt end of the pipe. The police found blood stains and hair on the pipe. The pipe was very similar to pipes used to fasten together fence sections at the Davenport Hotel remodeling project several blocks away.
Medical Examiner Dr. Sally Aiken testified that she conducted an autopsy on Mr. Rice. Dr. Aiken estimated time of death to be between 12 midnight and some time previous to her death-scene examination, four or five hours later. About Mr. Rice’s head, Dr. Aiken found `10 pattern injuries’ in the shape of curves, arcs, and circles. 3 RP (July 11, 2002) at 284. The most clearly defined of these injuries was a semi-circle two inches across. Most of the injuries were lacerations, cuts made by blunt force. Dr. Aiken spoke of two other injuries that may have been caused by a boot sole, and a rib injury. The 10 pattern injuries fractured Mr. Rice’s forehead, nose, left cheek, upper jaw, lower jaw, and teeth. They also caused extensive brain injuries, which she described.
Dr. Aiken’s opined that Mr. Rice’s death was `attributed to fractures of the base and vault of the skull due to blunt impact of the head.’ 3 RP at 292. In her opinion, the instrument used to cause death was consistent with a hollow pole or pipe. Dr. Aiken characterized the manner of death as homicide.
Detective Kip Hollenbeck testified he found `cast off’ blood drops, drops cast off of a weapon as it strikes, as far as 25 feet from Mr. Rice’s body. 3 RP at 310. Other droplets appeared as if they dropped off the weapon. The detective also found at least 12 circular imprint patterns on Mr. Rice’s blanket. At least three of the imprints tore through the blanket. Dr. Clay Jorgensen, a clinical psychologist testified on Mr. White’s behalf. Dr. Jorgensen was unable to obtain a valid test result from standardized testing methods, possibly because Mr. White was `malingering,’ attempting to manipulate the test results. 4 RP (July 12, 2001) at 359. But from other sources of information, such as family background information, police reports, interviews, and observations, Dr. Jorgensen concluded Mr. White suffered from alcohol dependency, drug abuse, and an antisocial personality disorder. Dr. Jorgensen opined that Mr. White’s `level of intoxication was such that he could not formulate the intent to premeditate a murder.’ 4 RP at 361.
On cross-examination, Dr. Jorgensen conceded he based his alcohol evaluation on information provided by Mr. White. And Dr. Jorgensen related he had no specific information on Mr. White’s capacity for metabolizing alcohol; he assumed Mr. White had a normal rate of metabolism. On re-direct, Dr. Jorgensen pointed out he was not required to possess a substance abuse certification to give an expert opinion on whether a person is so intoxicated as to be impaired. On re-cross, Dr. Jorgenson admitted his professional focus was not on the effects of alcohol on the liver and other organs of the body. Nevertheless, Dr. Jorgensen felt he was well-qualified to assess the effects of alcohol `on the cognitive functioning, on the emotional functioning, on the reasoning functioning, on the psychological aspects.’ 4 RP at 381.
Dr. Jorgensen said the most important thing that led him to believe Mr. White lacked intent was the `fact that he was apparently blacked out.’ 4 RP at 382. Without further direct testimony, Dr. Jorgensen acknowledged on cross-examination that Mr. White’s claim was the sole source of the black out allegation.
In closing argument, the deputy prosecutor said the following about Dr. Jorgensen:
Let’s talk about Dr. Jorgensen’s testimony. Dr. Jorgensen is a fine man. I’ve had the opportunity to work with him on prior occasions. He’s a psychologist. He admitted that he’s not an expert, though, on how alcohol impacts the body. He told you that he’s not certified in the area of alcohol abuse. His entire opinion, his entire opinion, relies upon an hour and a half interview with the defendant, the public defender reports and police reports that [sic] statements made by witnesses like Darrel Lopeman who were present with Justin White that night.
4 RP at 445.
In Mr. White’s closing, defense counsel partly argued:
Where’s the State’s expert? Dr. Jorgensen said nothing that the State did not have or could not have obtained to evaluate Justin’s level of intoxication. Police reports, interviews with witnesses, et cetera. Where’s the State’s witness refuting Dr. Jorgensen’s testimony he could not premeditate based upon the degree of alcohol consumed?
4 RP at 459-60.
The jury found Mr. White guilty of first degree murder with a deadly weapon. The trial court imposed a 480-month exceptional sentence. Mr. White appealed.
ANALYSIS
A. Bad Acts Evidence
The issue is whether, under ER 404(b), the trial court erred by abusing its discretion when admitting the prior assault evidence. ER 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The appellate court reviews the trial court’s decision to admit evidence under ER 404(b) for abuse of discretion. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). `Discretion is abused if it is exercised on untenable grounds or for untenable reasons.’ Id. (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). `Alternatively, the Court considers whether any reasonable judge would rule as the trial judge did.’ Thang, 145 Wn.2d at 642 (citing State v. Nelson, 108 Wn.2d 491, 504-05, 740 P.2d 835 (1987)).
As the Thang court stated:
To admit evidence of other wrongs, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.
Thang, 145 Wn.2d at 642 (citing State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995)). `In doubtful cases, the [ER 404(b)] evidence should be excluded.’ Thang, 145 Wn.2d at 642 (citing State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986)).
Here, the trial court admitted the evidence under ER 404(b) to prove the element of premeditation and to rebut Mr. White’s intoxication defense. Mr. White contends the evidence was not relevant for the stated purposes and that the prejudicial effect of the evidence outweighed its probative value.
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 401.
Here, the State charged Mr. White with first degree murder. Premeditation is a necessary element of that crime. RCW 9A.32.030(1)(a). `Premeditation is the deliberate formation of an intent to take a human life.’ State v. Boot, 89 Wn. App. 780, 789, 950 P.2d 964 (1998) (citing State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995)). And the premeditation required supporting a conviction for first degree murder `must involve more than a moment in point of time.’ RCW 9A.32.020(1). The prior assaults are relevant to premeditation because the reasonable inferences would tend to show the formation of Mr. White’s intent to take Mr. Rice’s life could have begun with the assaults.
The prior assaults occurred at the same place and against the same victim inferring the killing was not random or spontaneous. Arguably, the evidence was relevant to premeditation because of the escalating manner of the assaults, from a bottle, a rock, a two-by-four, to the steel pipe. And, this is not a case where the killer’s identity was at issue, thus any propensity effect is diminished.
Moreover, an appellate court may affirm a trial court’s admission of bad acts evidence on an alternate theory if adequate support in the record exists. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131
(1998). ER 404(b) allows prior bad act evidence for purposes of proving motive, opportunity, and knowledge. `Motive is an inducement which tempts a mind to commit a crime.’ Boot, 89 Wn. App. at 789. `Although the State is not required to prove motive as an element of the offense, evidence showing motive may be admissible.’ Boot, 89 Wn. App. at 789 (citing State v. Powell, 126 Wn.2d 244, 260, 893 P.2d 615 (1995)). The prior assault circumstances were probative of opportunity and knowledge in that they show that Mr. White knew of Mr. Rice’s location, his vulnerability, and his ready availability for an attack.
The evidence was also admissible under the res gestae exception to ER 404(b). See Boot, 89 Wn. App. at 790. Under the res gestae exception, prior bad act evidence is admissible to complete the story of the crime for the jury by adding context of relevant events near the time and place of the crime. Boot, 89 Wn. App. at 790; State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980), aff’d, 96 Wn.2d 591, 637 P.2d 961 (1981). `Each act must be a piece necessarily admitted to ensure the jury has the complete picture.’ Boot, 89 Wn. App. at 790
(citing Powell, 126 Wn.2d at 263)). Viewed in isolation, the killing of Mr. Rice was an utterly senseless crime. But viewed in context with the recent prior assaults, the jury had a complete picture of escalating attacks at the same place, against the same victim, culminating in his deliberate death. Under the res gestae exception, the purpose of the evidence was not to show Mr. White had a propensity to commit a crime, but rather to show how and why Mr. Rice became his intended target. See Boot, 89 Wn. App. at 790.
With respect to the intoxication defense, ER 404(b) evidence can be admitted to rebut a defense theory. See, e.g., State v. Hall, 41 Wn.2d 446, 451, 249 P.2d 769 (1952) (allowing evidence of prior drug offense to rebut defendant’s claim that he could not recognize marijuana); State v. Hernandez, 99 Wn. App. 312, 322-23, 997 P.2d 923 (1999) (defense of accident), review denied, 140 Wn.2d 1015 (2000); United States v. Bastanipour, 41 F.3d 1178, 1183 (7th Cir. 1994) (entrapment); United States v. Johnson, 14 F.3d 766, 772 (2nd Cir. 1994) (insanity). Here, Mr. White alleged he was too intoxicated to form the requisite premeditated intent to commit first degree murder. But the evidence of the prior assaults tends to undercut that defense; as noted, the decision to target Mr. Rice was not a spur of the moment decision.
Additionally, the prior assault evidence was relevant in rebutting Mr. White’s contention that he intended merely to provoke Mr. Rice into a fight. To the contrary, the prior assaults showed Mr. Rice was incapable of offering any meaningful resistance. Stated another way, the prior assault evidence showed Mr. White targeted Mr. Rice because he would not resist.
Prejudice becomes `unfair’ when it is likely to arouse an emotional response rather than a rational decision by the jury. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000). `Within its context, `unfair prejudice’ means an undue tendency to suggest a decision on an improper basis-commonly an emotional one.’ Id. (citing State v. Cameron, 100 Wn.2d 520, 529, 674 P.2d 650 (1983)).
Under ER 404(b), the trial court must balance the probative and prejudicial value of the evidence on the record. State v. Wade, 98 Wn. App. 328, 334, 989 P.2d 576 (1999). Here, the trial court balanced the probative and prejudicial effects of the evidence in both its oral opinion and its written conclusions of law. The court recognized the prejudicial effect of the evidence but determined the probative value of the evidence easily outweighed that prejudice.
In light of the foregoing, the trial court did not abuse its discretion.
B. Evidence Sufficiency
The issue is whether sufficient evidence of premeditated intent and intent to kill exists. `The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.’ State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). `When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.’ Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ Salinas, 119 Wn.2d at 201 (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff’d, 95 Wn.2d 385, 622 P.2d 1240 (1980)).
The reviewing court considers circumstantial evidence to be as equally reliable as direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980). `Credibility determinations are for the trier of fact and cannot be reviewed on appeal.’ State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
(1990).
To convict Mr. White of first degree murder, `the State is required to prove both intent and premeditation, which are not synonymous.’ State v. Sargent, 40 Wn. App. 340, 352, 698 P.2d 598 (1985) (citing State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982)). As discussed, `[p]remeditation is the deliberate formation of an intent to take a human life.’ State v. Boot, 89 Wn. App. 780, 789, 950 P.2d 964 (1998) (citing State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995)). Stated another way, premeditation, `involves the mental process of thinking over beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short, after which the intent to kill is formed.’ State v. Bingham, 40 Wn. App. 553, 555, 699 P.2d 262 (1985) (citing State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982)), aff’d, 105 Wn.2d 820, 719 P.2d 109 (1986). `The premeditation required `must involve more than a moment in point of time.” Sargent, 40 Wn. App. at 352 (quoting RCW 9A.32.020(1)).
`Premeditation may be proved by circumstantial evidence where the inferences drawn by the jury are reasonable and the evidence supporting the jury’s finding is substantial.’ State v. Gentry, 125 Wn.2d 570, 598, 888 P.2d 1105 (1995) (citing State v. Hoffman, 116 Wn.2d 51, 83, 804 P.2d 577 (1991); State v. Rehak, 67 Wn. App. 157, 164, 834 P.2d 651
(1992)). No bright line test exists for premeditation, but `a wide range of proven facts will support an inference of premeditation.’ Gentry, 125 Wn.2d at 598. Generally, `any planning activity by the defendant prior to the murder, which relates to the manner in which the murder was accomplished, can be evidence of premeditation.’ State v. Lindamood, 39 Wn. App. 517, 521-22, 693 P.2d 753 (1985). The method of inflicting death is relevant but will not support premeditation alone without other evidence supporting an inference `that the defendant not only had the time to deliberate, but that he actually did so.’ Bingham, 40 Wn. App. at 555. Multiple blows may support an inference of premeditation if other facts indicating deliberation are present. See Sargent, 40 Wn. App. at 353.
Mr. White unpersuasively argues the State did not rebut Dr. Jorgensen’s testimony. The jury weighed the credibility of the various witnesses and chose to disregard Dr. Jorgensen’s expert opinion. We will not disturb the jury’s credibility determinations. Camarillo, 115 Wn.2d at 71; State v. Campos, 100 Wn. App. 218, 224, 998 P.2d 893, review denied, 142 Wn.2d 1006 (2000).
Reviewed in a light most favorable to the State, the evidence shows the killing was not a spontaneous act. See Sargent, 40 Wn. App. at 353
(`[t]his evidence indicates that the killing was not the result of a heated argument.’). Mr. White deliberately chose Mr. Rice for his victim, a man he had assaulted twice before quite recently. He obtained a weapon while walking to where Mr. Rice slept. See id. (`There was sufficient time to pick up a weapon. . . .’). Mr. White’s weapon of choice, a seven-foot-long metal pipe, raises a reasonable inference that he intended to inflict deadly injuries.
Mr. White also beat the sleeping Mr. Rice at least five times about the head. See id. (`the victim was struck by two blows to the head with some interval passing between them.’ . . . `the victim was lying down and not looking at the defendant at the time he struck her.’). The multiple beatings about the head of a sleeping man, as opposed to a non-lethal area, raise a reasonable inference that Mr. White aimed to kill rather than provoke his victim.
Then, Mr. White paused to inspect Mr. Rice, thus allowing more time to reflect on his actions. Then, Mr. White or Mr. Michel beat Mr. Rice about the head again, inflicting a total of at least 10 identifiable pattern injuries. See id. There was also evidence they kicked Mr. Rice in the face. `There was no evidence of any struggle.’ Id. The beatings were of such force as to cause catastrophic and fatal brain injury to Mr. Rice. In sum, `there was substantial evidence before the jury from which a rational trier of fact could determine beyond a reasonable doubt that the killing of the victim was premeditated.’ Gentry, 125 Wn.2d at 601.
In sum, we conclude the evidence of premeditation was sufficient.
C. Effectiveness of Counsel
The issue is whether defense counsel was ineffective because he did not attempt to rehabilitate Dr. Jorgensen’s reputation in re-direct or in response to the State’s closing argument. `To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice.’ State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002) (citing State v. Rosborough, 62 Wn. App. 341, 348, 814 P.2d 679 (1991)). `To establish ineffective representation, the defendant must show that counsel’s performance fell below an objective standard of reasonableness.’ McNeal, 145 Wn.2d at 362
(citing Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). `To establish prejudice, a defendant must show that but for counsel’s performance, the result would have been different.’ McNeal, 145 Wn.2d at 362 (citing State v. Early, 70 Wn. App. 452, 460, 853 P.2d 964 (1993)).
`There is a strong presumption that trial counsel’s performance was adequate, and exceptional deference must be given when evaluating counsel’s strategic decisions.’ McNeal, 145 Wn.2d at 362 (citing Strickland, 466 U.S. at 689). `If trial counsel’s conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel.’ McNeal, 145 Wn.2d at 362 (citing State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978)).
Here, Dr. Jorgensen admitted he was not an expert on how alcohol affects the liver and other organs of the body. Nevertheless, Dr. Jorgensen testified he was qualified to testify on the psychological impact of alcohol consumption. Defense counsel chose not to conduct a second re-direct examination, preventing further damage. In closing argument, the State emphasized Dr. Jorgensen’s lack of qualifications for assessing the impact of alcohol upon the body. Defense counsel did not respond to the argument but pointed out that the State did not offer its own expert to refute Dr. Jorgensen’s testimony. This strategy apparently paid off because the State did not again raise issues pertaining to Dr. Jorgensen in its rebuttal argument.
Thus, sound tactical reasons exist for defense counsel’s decision not to defend Dr. Jorgensen’s testimony with greater vigor. Dr. Jorgensen clearly testified that his evaluation was limited to the psychological impact of alcohol and that he was not qualified to assess its impact on the organs of the body. Pursuing the issue further in additional direct testimony would not have helped Dr. Jorgensen’s credibility and likely would have further diluted his expert opinion on Mr. White’s mental state. Responding directly to the State’s closing argument would have done little more than give the State more ammunition for its rebuttal argument, in which Dr. Jorgensen was ignored.
Notwithstanding his qualifications, Dr. Jorgensen’s testimony suffered from two major flaws. First, he anchored his analysis on Mr. White’s self-serving responses to the doctor’s interviews. More importantly, Dr. Jorgensen based his opinion primarily on Mr. White’s claim that he had blacked out, an unbelievable assertion given the detailed statements Mr. White made to Detective Connelly and Mr. Kirkland. These flaws undermined Dr. Jorgensen’s testimony. Defense counsel was understandably careful not to give the State further opportunity to harp upon Dr. Jorgensen’s shortcomings.
In sum, the record reflects a tactical decision not to respond too aggressively to the State’s cross-examination and argument regarding Dr. Jorgensen’s qualifications. Deferring to defense counsel’s tactical decisions, we must necessarily conclude counsel’s representation was not deficient. See McNeal, 145 Wn.2d at 362-63.
Ordinarily, if a defendant cannot establish either prong of the ineffectiveness test, further inquiry is unnecessary. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). In any event, assuming for the sake of argument defense counsel here performed deficiently, Mr. White would have to show resulting prejudice. As discussed, Dr. Jorgensen’s testimony lacked credibility because it relied on Mr. White’s claim that he had blacked out. And Detective Connelly’s account of Mr. White’s detailed statement effectively negated Dr. Jorgensen’s opinion testimony before it was even given. Viewing counsel’s performance in light of the powerful evidence of guilt in the record, it cannot be said the verdict would have been different had counsel been more aggressive. See Hendrickson, 129 Wn.2d at 80. Accordingly, Mr. White has not established counsel was ineffective. Id.
Affirmed.
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.
WE CONCUR: SWEENEY, J., SCHULTHEIS, J.