provides the very familiar framework for the evaluation of whether mr hill's trial counsel was ineffective in this matter the district court found both that trials counsel's performance was not deficient although he said that was a close question and even if there was deficient performance there was no prejudice to help heal respectfully disagrees with both of those findings in particular with the well starting with the court's finding that hill's trial counsel was not deficient for failing to conduct a thorough pretrial investigation of hill's mental state as well as adopting a strategy of that it was clear that hill was suffering from p t s d at the time of the incident described the symptomatology and suggested that hill that there was a period of time after the victim told him that she had cheated on him that he was in a dissociative state so provided the framework for a jury to find that the mental health condition that hill suffered from contributed  talking about the attempted premeditated murder he agreed to the assault tough evidence for your client the gloves putting on the gloves of going on going into the house yes and dr white hill in the car going seven hundred feet away to avoid detection as ever and his testimony testimony during trial was that he had formed it into hand but the intent was not to kill it was to reconcile so he is so his testimony was in fact contrary to that theory of i think the point is can is there testimony in the in the in the in the record that you can intend to do a lot of things and still be in a dissociative state i believe dr white hill said that you can intend to do a lot of things and still be in a dissociative state but he pla argued that hill made up his testimony after listening to all of the other witnesses in the case probably misconduct wasn't raised but this evidence of p t s d would have rebutted that argument the prosecutor also argued that hill tried to commit suicide in the pierce county jail because he wanted to avoid a third strike the p t s d would have rebounded that argument and  was there is also evidence that opposing counsel raises that for example dr white helped testified that he was modeling garang and was exaggerating his symptoms and that was their own expert giving this testimony in his report about hill's mental state and so obviously had a diminished capacity defense been raised and the prosecutor and the prosecutors expert would have a chance to went on to say that mr hill had during the pendency of this hate b s had this much more not for a purpose of the hey b s but because he's now in a veterans unit but had and he was seeking compensation adopted a reasonable standard g and done a reasonable investigation of this case that there may have been some evidence of that but it wouldn't be as devastating as the search here but isn't it a very deferential standard and the fact that counsel did consider alternative strategies and chose not to present the certain strategies isn't that perfect perfectly fine under the standard not in i greet strickland's as you give deference but you only give deference when the trial attorney has engaged in a thorough and searching investigation before adopting that strategy there are cases to say that if there is a reason not to if can if you reasonably decide not to investigate that's also something we defer to the argument is made that he made a reasonable decision that investigation wasn't necessary because going in that direction would have prevented him from testifying would have potentially raised damaging testimony and set of some of the concerns that you've heard well the record doesn't reflect that mr  made that reasonable an investigation before he presented his strategy at trial he may have come up with that post talk but he didn't do a social history i mean first of all he was on notice hill had he knew hill had been in the military he knew had tried to commit suicide the minute he was booked into the jail he didn't do a social history and he saw his client in an attempted premeditated murder case six times more or less over the almost two year period pre think for a year he yeah he didn't see him at all in for you so i don't think that mr chen quite frankly is entitle to his adoption of the strategy was entitled to any deference his description  of his interactions with mr hill i think are suspect but certainly that was their relationship was probably or the the nature of their relationship was exacerbate by the fact that mr chen didn't seem to have any interest in working with mr hill in the case during the years to august prejudice argument is my strong answer to if you could you could be your strongest punk to argument my strongest prong to argument is that it would everything that the prosecutor said in closing about hill's testimony which was consistent with the p t s d hill's own testimony that he didn't intend and the testimony of the witnesses that he appeared to be a different person at the he intended to go there to reconcile and once there when told of this particular when told by the victim she wanted to she had cheated on him was at the point at which the  theory would assume is that the prosecutor wouldn't develop any evidence any other evidence and what it the prosecutor already presented is there so that the prosecutor couldn't have produced other evidence always a dispute in these mental health cases and it's not so overwhelmingly prejudicial that and one test he had elevated the lingering even though they still said ruled out p t s d he could have had this as to his intent yes i mean he could he could i testify he didn't he he lost it or whatever that he disassociated at the time that he attacked the victim he could have talked about that did you feel as if the rest  please the court john sampson assistant attorney general for the respondent happily the district court correctly denied relief because mr hill failed to prove the counsel's performance in choosing a defense was deficient and he failed to prove prejudice from that decision not to present to manage to pass a defense addressing the first prong of deficiency there are three reasons why mr hill's claim fails first the statements to mr prior to trial did not suggest to him that there was a red flag of diminished capacity second the medical records in military records that existed at the time of trial did not would not have been for mr chen that  either p t s d or diminished capacity was present and third counsel reasonably recognized there were serious risks if he pursued a defense of diminished capacity if you talk to his client and take a social significant point is that p t s d is not diminished capacity i understand and that was my point earlier that by and said he gets he's not enough yes right and so the second part of the military records is there's nothing in there at the time of trial showing diminished capacity including dr white hills examination which was done not for diminished capacity but was done for competency with that report said that he was psychologically stable the endor stood what was going on and there was no recommendation for further follow up is it is it your understanding or what can you tell me about what's in the record to support the notion that a person could be in a dissociative state and still have formed an intent for example intent to go there to reconcile with his girlfriend as opposed to attacking your honor i'm not sure that dr white hill ever specifically said that but i know that in his declaration submitted in support of her request for an evidentiary hearing he did say that the of state may have occurred when jennifer slut schlatter told mr hill i've cheated on you with other men and if that occurred in the bedroom as mr hill claims then that could have triggered the dissociative state it wouldn't negate is that your theory then that even if that happened that he still the evidence is such that there's pretty johnson comes down to evidence i think that's the state's position that he went there with an intent to do harm the parking spot and gloves your honor we have a couple points on that the first is that the state's position is that jennifer told mr hill that she had had sex with jeff in a phone call several hours before and then he engaged in all this behavior that you know the ability to form intent and the jury rejected mr hill's testimony that she told him about it the first time when they were in the bedroom and they started wrestling over the over the camera just to see the picture so the jury rejected the premise of psychological opinion the dissociative state occurred in the started in the bedroom the second is that mr or dr white hills opinion is a mere possibility he has not said any can not say to a probability that a does that mr hill had to disassociate of state even in the bedroom because he has not conducted the the necessary psychological examination and so it's just it's it's speculative and if you presented first we would argue that that's not admissible under washington law under state versus thomas which is cited in our brief the mere possibility that a mental disorder may have led to a disorderly sociate of s tate is not enough to get the evidence and it but even if it was the jury would not have accepted that mere possibility in light of all the of their evidence including the fact that mr hill declared three times  why he was there when he burst into the room he declared i'm going to f and kill you and then call her a swear swear word then when he was arrested forgive me upon entering the room upon entering the were being confronted with the photo yes your honor so the state's position is he knew before hand that the phone call right i've been over there right i'm asking a different question in response to what you just said that  made this statement threatening to kill when he entered the room yes yes that that that's jennifer's testimony is he made that statement when he entered the room they did not have a conversation in the bedroom he couldn't forgive me but you know her parents got involved a little a little later they didn't test or did they i don't think they testified to that statement to that threat because they didn't hear that yet not have that they testified to a different one yes so m mr schlatter the father he testified that when he was wrestling with mr hill mr hill got him in a choke hold mr hill said he was going to kill him and that is  seventy eight to seventy nine of the sudden the mother in the mother testified that he tried to throw her over the railing which would have been about a sixteen foot drop which could have potentially been this she testified i guess i would ask a very good question what i mean is if she testified that she statements i don't believe so your honor but definitely the father heard that statement and then the third statement indicating his attend had been formed was after he chased jennifer out into the patio and continued to assault or kicking her in the face he declared this is what you get for cheating on me and again called her a swear word those three  express statement of intent would be few any possibility pinion from dr white here on the jury would have rejected it so even assuming that counsel was deficient and even assuming that this evidence would have been admissible which state contends it would not have been admissible the jury would not have accepted it there was not a reasonable probability that the outcome would have been different and there were significant risks as mr chen pointed out as the district court found in pursuing this line of evidence mr chin mr chen knew that mr hill would be subject to an examination by the state's expert in which case they can ask him about the crime and he could potentially disclose incriminating statements the prosecution would be able to get everything the defense had including the test results and counsel cites to the prior prison psychiatry list who said who diagnosed mr hill and commented that he appeared to be exaggerating exaggerating his statements for secondary gain which is a form of a lingering which means he's faking it in order to get some benefit and he would have had it also have to disclose hill's test and dr white pills tests showed that mr hill was quote faking bad unquote and this excerpt a record one eighty five to one hundred six so dr white hill's only examination revealed potential for exaggeration symptoms for secondary gain so the jury would have heard that so if they tried to present a defense of diminished capacity all that information could have come out and what opposed to risk now would that been enough we don't know but what we do know is that supports council's decision not to pursue a defense of diminished capacity another thing that supports that decision is dr white hill's testimony  mr chen's testimony that a defense of diminished capacity is viewed as a last resort defense it's rarely successful and as dr white he'll testify he has examined several hundred defendants for possible diminished capacity and he's found only ten where it's actually true in his opinion the true case of diminished capacity and i believe the testimony of the evidence for hearing was that none of those succeeded or maybe one of them succeeded so there were significant risks in pursuing a defense of diminished capacity and those all go to show the council's decision was reasonable the this supreme court is also recognize and i know that we have already talked about the statements that mr hill made to mr chen but the supreme court has recognized that often the decision of what defense to pursue will be based on the statements made by the client  the defense attorney and in this case mr chin was a very experienced defense attorney he had represented countless defendants and he considered and even presented defenses based on diminished capacity and in his mind hearing all the deliberative steps that mr hill took in going to the house putting on gloves waiting to everybody was asleep looking for expect he then when he could find that moving the items around so that he could gain access into the into that kitchen window all of those in his mind indicated to mr chen that there were deliberate acts he was able to form intent there was not a risk of dementia passably and as mr  indicated there was no bread flag are one seventy eight i thank you you're welcome starting with the last point i think that mr kim's experience exacerbates the problem here does not excuse his failure to perform someone with that kind of experience with the knowledge that he had about mr hill should have further investigated i do not know and the record does not reveal why he sent mr hill out for a competency evaluation and did nothing more i don't think that excuses his behavior dr white he was quite clear that mr chin asked for nothing more you know the argument that  it's a defense of last resort i don't think holds much weight either way because it's an individualized decision in each case what defense to raise for your client and here mr chin did nothing subpoena he adopted this lack of intent strategy but he did nothing to support it with the mental health evidence that would have supported it and in fact he even went further and didn't propose the lesser included offense instructions that would have permitted the jury to adopt his lack of intent instruction so i don't think we can say the jury rejected all of mr hill's testimony they were left as the court the supreme court talked about and kevlar with all her kibble i think not keep an all or nothing choice which is a terrible choice to leave the jury with according to the united states supreme court  finally i would say that as to the statements to the mother and father and the actions mr hell took the state didn't charge mr hill with premeditated attempted murder us to either of those people so they either discounted mr hill's statements at those times or simply decided that in the case that it was enough to charge it as to the third victim so i don't think we can put much weight in the statements of i'm going to kill you that's a phrase that sometimes indicates intent and other times simply indicates a level of anger that someone house so we would ask this court to find that judge bryant erred that there was deficient performance that it was prejudicial reverse a district court and remain for further proceed thank you th