morning your honor your honors may please the court my name is paul wiser and i'm here on behalf of the pella hertzog in this matter washington supreme court squarely rejected phrases in effectiveness claim on the merits under the strickland standard the district this claim whether the court reached the merits of the deficient performance cronk is a different matter because the supreme court has told us that a court can choose to do that but you can do a strict line analysis by doing the second prong and send the first pro that's correct your and your that's your position that they did a strickland analysis and so that then you have to and then you analyze that under at pat and the double deferential as you would say as opposed to it district court there strickland there there is no question that strickland is clearly established supreme court authority on the question of whether a defendant is entitled to a lesser included offense is that a constitutional right well here they hear he did get a lesser included he didn't get every imaginable is that correct that's correct your honor i just sort of have a question cuz being a california person that it's  really a lesser included offense or a settled lesser related offense in california for example you can if you give lesser included offenses the jury isn't entitled to just look at all the verdicts simply quit they want the about he's charged with felonies and he wants a misdemeanor and i know in california there can be a lot of things like you know for example if you can met if you're charged with murder you know second degree murder manslaughter every unmanageable you know can a person make it from a felony down to a misdemeanor and games and out and i was looking at the lesser included that we're talking about here it seems to me with reasonable care and we do you know how can you make that assumption well we have to you don't have they never had the the alternative choice in front of them or that you know that instruction well that's my question did they get to do that alternative play or did the the instructions from washington say you look at what they're charged with and if you acquit them of that then you can look at the other offenses or did they get you just come back and say oh i'm just going to decide what i want to convict him of the lawless decision that you're so was the jury told if you find that he's not guilty of the assault you can look at the attempted yes your honor and that was the way that the instructions were posed to the jury so if you had just you had to start with a greater offense and you had to find him not guilty of that before you could get to a lesser offense i don't know that they were instructed and i i don't recall from the instructions whether the instructions read quite that way or not that they first had to rule out a that he submitted in the post conviction proceedings his counsel's declaration he said i didn't consider it and that's all he said your honor he didn't say it would have been a wise idea if i had requested that or that this particular jury would have been likely possibility of parole i believe that that would be a reasonable response your honor but i don't believe it's unreasonable for counsel not to have requested that if he had requested the instruction on the nine point four one point two did not as far as i understand it did not have any effect on the other offenses he was facing the criminal trespassing and the malicious mischief for breaking open the window in the police car after he was arrested so what happened on  maximum but because this was a persistent offender case involved life without parole sentence if convicted the state requested the lesser of attempted assault in the second degree and counsel did not object attempted  in a different situation than someone with no longer record absolutely but when we're talking about deficient performance i think it's important to keep in mind two things number one the council didn't object to this lesser that really made no difference in terms of the sentence so it doesn't matter whether he's convicted of assault in the second degree or attempted assault ordinarily that would result in a lesser sentence under washington law and under probably most jurisdictions law but not in this case secondly it wasn't just that he didn't request the last or he didn't even consider it at all client to a life sentence where he could he could if the jury convicted on the last or get can only a one year sentence especially in a case where there are other charges for which he would get a greater sense he received more than that on the malicious proceeding in the state court proceedings there was a declaration from trial counsel that said the only reason that i didn't request the lesser included was because it never entered my mind i didn't think about it at all  well the answer your question is no you don't have to assume that there certainly there are times when counsel can make a reasonable tactical decision not to request a lesser but this is this is not one of those for a variety of reasons in the in this is not the case counsel didn't contemplate how will mr cases position be improved if i ask the lesser how will his position be weakened and i think there's two things that you can point to for that number one his own declaration that says it just never crossed my mind and number two the fact that he doesn't object to the lesser that's actually given a lesser that makes no difference at all so for purposes of deficient performance again the on contradicted record suggests that counsel wasn't even making any tactical decision there may be times and maybe there even times where but from the standpoint is there's a lot of case law that says they don't have to say everything in terms of what they're and now listen to if they said in the washington supreme court sad that they are just  how did they apply the deficient or excuse me the prejudice analysis and really they asked only one question is there sufficient evidence so the only time a defendant in washington can win in this situation is where there is insufficient evidence and there's no for the error is there reasonable probability that the result would be different but for the error in this case means that you have to inject something new into the case you have to inject the possibility of a lesser included instruction so if you ask one thing about that though if you know you  is there any evidence not looking at the quality of the other notes but is there any evidence on paper viewed in the light most favorable to the state that adds up to the elements of the offense and that's what the supreme court does in two sentences they go through and they say there's testimony on this  that that's sufficient evidence it doesn't engage in any analysis of quality it doesn't engage in even the question of whether the instruction would have been given it doesn't engage in the question that's always asked when a court is considering when a trial court is considering whether to give a lesser are there facts that support liability on the lesser alone in other words is there a scenario where a jury could say he's guilty of that thing but not of the greater greater and not necessarily commit the last or hair based on the multiple prongs for the greater but not based on the way this particular crime was charged and i have to correct my colleague  fear the assault is that he's displaying a weapon with the intent to cause fear or alarm so it really turns on the difference in intend so if he doesn't intend to cause the officer and is the only person charged fear or alarm then he's guilty of unlawful display because the officer i think anybody would agree as a reasonable person fears this when he sees this man running in the street with a sword  held above his head if you look at the actually at the argument that the prosecutor made in terms of in support of the attempted assault it's incredibly convoluted the facts frankly don't support the attempted assault at all despite the fact vs alabama enter end there has long been a recognition in the law that where any jury is given an all or nothing proposition and where the acts are clearly criminal in some way the jury may convict defendant not guilty or if they are unable to anonymously agree after deliberation then they can drop down to the next lesser so they don't have to acquit first and then move to the lesser and i would i would have to  presented was after the attempt it's a complete acquittal right and and what he will and back say is that for purposes of prejudice we know that sometimes when juries are given the stark choices particular incident that they stop there's the tear one the greater than the kind of the lesser or greater and then the one that was given if we know that they stopped here doesn't that tell us that they would have never gotten to the other one if they  instructions no not necessarily because again the law or recognizes and logic i think supports this that the insertion of another defense creates a possibility  this was the argument that was made in back look if they really didn't think he was guilty of capital murder they would have declared themselves hung and because they didn't declare themselves on clearly they would have found this even if the lesser had been been given so according to the reasoning of the washington supreme court gilbert franklin back should be dead today alabama should have executed him because he could have never shown prejudice but that's not what the u s supreme court said they said that when a jury is given the stark contrast  they will sometimes convict of something because it's clear that he did something criminal i'm going to make the other argument they didn't have the stark contrast they just didn't get my can back if if if they requested then they should have given the choice of a battery because a murder is a battery a crazed was intending to assault somebody else and then he momentarily fixated on the officer and he took a substantial step towards assaulting that officer but he never really completed it that's really convoluted either resell to the officer or he didn't the jury did not have sort of the natural resting place for mr crazes theory of the case which the evidence fully supported which was that he was acting in a way that caused alarm but he did not intend attorney and you're representing someone you have to be aware of the attendant penalties that follow a conviction and so when you don't object to that attempted assault in the second degree lesser you have to keep in mind that that's not going to make any difference if he gets convicted of that  he will still do life and likewise you should consider the penalty the lesser is that have lesser penalties consul in order to decide this case do we have to decide the deficiency question and we simply can simply assume as the washington supreme court did th few tourney was was deficient and then simply answer the question on prejudice i'd love to say yes but i think the answer is no why i say why is the answer now well because i think you know whether it's a grant really if you have to find b i mean i get why you can decide only one prong if you're turning somebody down but i don't know that the others to a look at that let me also say one other thing i and i recognize them over time but it appears  missing page in the record and it's actually the page that the instruction from the state court record that describes the order of deliberation the idea that you can be hung on the greater and move down to the lesser and i'll work with counsel maybe decision is wrong in some way and i'll ok i i think you're still not quite answering the question my understanding is that counsel for the  sat in order to affirm the district court we actually have to look at the wrong one in order to do that he said i would like to say you don't have to put i think that you really do have to