IN THE COURT OFAPPEALS FORTHE STATE OFWASHINGTON

STATE OFWASHINGTON, 

### ) No. 77949-4-I

Respondent, 

### ) DIVISION ONE



### ) v. 

### ) UNPUBLISHED OPINION MARTIN LUTHER CARTER, 

### )

Appellant. 

### ) FILED: July 22, 2019 ANDRus, J.

— Martin LutherCarterappeals his conviction for possession of
a stolen vehicle. Cartercontends his attorney committed ineffective assistance of counsel byfailing to request a voluntary intoxication instruction at the conclusion oftrial. Carteralso contendsthatthetrial courterred in imposing a DNA collection fee. The State concedes the DNAfee should be stricken. Because Carter has not established ineffective assistance ofcounsel, we affirm his conviction. We remand the case to the trial courtto strike the DNAfeefrom thejudgment and sentence. FACTS On the evening of March 9, 2017, Des Moines Police Sergeant David Mohr
saw a 1997 Honda idling in the parking lot of a public library. He ran the license plate and discovered the plate was associated with a 2002 Honda of a different color. Mohr walked to the car and saw an adult male, later identified as Carter,No. 77949-4-112

who appeared to be passed out behind thewheel. Mohrsawthrough the window
a piece of cloth draped overthe steering column, typically used to cover ignition damage, and a piece oftin foil with heat marks, consistentwith heroin use, on the centerconsole. SergeantCathy Savage responded to Mohr’s call for backup, and observed a screwdriver on the car’s floorboard. Mohrtapped on the driver’s side window to rouse Carter. Carter appeared initially to not recognize what was happening. Carter then picked up the screwdriver to turn off the vehicle when Mohr asked him to do so. Mohr saw that the steering wheel had been damaged and thatthere was no keyforthe car. Mohr and Savage obtained the car’s vehicle identification number (VIN) from the dash and determined that the registered owner ofthe carwas Vanessa Francis. Three days earlier, Francis had reported that her 1997 Honda Accord had been stolen from the Emerald Queen Casino parking lot—the third time in six months. Francis confirmed thatherlicense platewasAGP8331, and Mohrtestified the license plate he observed did not match her car. The parties stipulated that the license plate ADB7957 belonged to a 2002 green Honda Accord and license plateAGP8331 belonged to Francis’s blue 1997 HondaAccord. Des Moines police called Francis and asked her to claim hervehicle from the library parking lot. Francis testified that the Honda’s steering column and ignition had been busted out when the car was stolen the second time and she had jury-rigged a temporary starterthat hung down from the column by a couple piecesofwire. Although Francis had a keythatstarted hercar, herfriend hot-wired the carto start it. Francis found trash, other keys, additional license plates, and

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clothing inside the car when she took possession of it. The license plates she found were not hers. Duringtrial, the State asked forclarificationfrom Carterwhetherhe intended to seeka voluntary intoxication instruction, given counsel’s referenceto his heroin
useduring opening statements and cross examination ofpolice officers. The State indicated that if Carter intended to assert a voluntary intoxication defense, the State needed to change who it called to testify. Carter’s counsel explained that she had notconsidered an involuntary intoxication ordiminished capacitydefense. Counsel stated “honestly I feel a little bit like oh, maybe I should have [raised this defense].” But, she stated, “[T]he only evidence we have is what the Court has heard.” Counsel went on: And I thinkthatwhen you’re talking about knowledge, state of mind is always important and his state ofmind has been brought up bythe State. The state of mind that goes to knowledge is pretty much insinuated

. . . byboth parties.

. . . I thinkthe instruction givesthejury a formal peg to hang its consideration on. Because it highlights, it highlights the heroin use in this case. I

— and maybe, you know, maybewe’ll be dealing with an ineffective assistance claim later, but I had no intention of formalizing that. So that’s just to be really candid, that’s kind of how I was

— how I was approaching things. The State clarified that it was not suggesting there was a basis for a diminished capacitydefense; “justto clarifyvoluntary intoxication iswhat I’m referring to.” The Court acknowledged “I’m sorry, voluntary intoxication.

. . . I mean all I have is I’ve got a man sleeping in a car seat.” Carter’s counsel acknowledged that she understood they were discussing voluntary intoxication, and not diminished capacity. Carter’s attorney stated thatshe intended to argue that Carter’s heroin use was relevant but she did not intend to arguefora voluntary intoxication instruction -3-No. 77949-4-114

because “on the one hand I think it does give a boost to the defense, but on the other hand in practice I also think it creates difficulties forthe defense At that point, the State read into the record the standard voluntary intoxication instruction, WPIC 18.10: No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant acted with knowledge thatthe motorvehicle has been stolen. The prosecutorstated “that reallyseemsto bewhat Ms. McGinty intends to argue. That heroin impacted whetherthe defendant acted with knowledge thatthe motor vehicle had been stolen.” The State indicated that to be entitled to a voluntary intoxication instruction, there would need to be evidence that the defendant had consumed an intoxicating drug or alcohol, and evidence that this consumption intoxicated the defendant enough to impact his abilityto form the requisite mental state. Whilethe State conceded therewas evidence ofheroin use, itargued there
was no evidence thatthe consumption of heroin impacted Carter’s abilityto know the vehicle was stolen. The State argued that second element required expert testimony. Carter’s counsel argued that becausethe Stateelicited evidencethatCarter
was passed out in the carand had to bewoken up, Carterwas entitled to usethose facts to argue his state of mind without suggesting some sort of scientific basis. Counsel also indicated Carter was entitled to argue that the evidence did not demonstrate Carter was paying attention to anything other than his heroin. Counsel stated:

-4-No. 77949-4-115 I’m not saying he was incapable of knowledge, I’m just saying we don’t have much evidence of it. We have

—we have a cloth, and I’m entitled to make a case based on the evidence that I see. The defense, as counsel described it, was lack ofevidence: So the defense is going to stickwith that lack of evidence. There’s not enough evidence to show knowledge. The defense is not going to be arguing that Mr. Carter.

. . I’m not saying that Mr. Carter is not capable ofknowledge.

. . . So I don’tthink I am putting on avoluntary intoxication defense to that extent that it would need the WPIC or it would need experts oranything else. Carterdid not requesta voluntary intoxication instruction and the trial courtdid not include it in its final instructions to thejury. In closing argument, Carter acknowledged that the sole issue in the case was knowledge—whetherCarter knewthe carwas stolen. She pointed tothe fact thatthe car’s doors and windowswere notdamaged orbroken, thatCarterhad not damaged the steering column as that had occurred earlier, and the police did not connect anything inside the car, such as the other cars’ license plates, to Carter. Counsel pointed out: [W]e don’t know who took the car, we don’t know who was driving the car. We don’t know howthe cargot intothe parking lot. We don’t knowabout how long the carwas there. We don’t know ifsomebody abandoned it the~e.

. . . We don’t know if somebody was dealing drugs in that car. In addressing Carter’s state of mind, counsel argued that itwas undisputed that Carterwas using drugs and was passed outat6 p.m. That evidence, counsel contended, was the only evidence presented by the State as to Carter’s state of mind: “And whatyourcommon sense can also tell you, is thatwhen somebody is using drugs, especiallythat kind ofdrugs

. . . , that’s theirfocus. That’s theirstate of mind. Theirstate of mind is the drugs and that’s the kind of knowledge thatwe
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also have.” Counsel suggested thatCartermay havesimplydecided thatthe car— any car, stolen orotherwise—was a safe, dry place to use heroin. (‘[A car] being used as asortofdryareato usedrugs in doesn’tgiveyou knowledge”). Thetheme ofthe defense case, from opening statementto closing argument, was that Carter
was so focused on his heroin use that he did not notice signs—such as the punched steering column or the cloth draped across it—that suggested the car may have been stolen. Thejuryfound Carter guilty, the trial court sentenced Carterto 13 months in prison. Carterappeals his conviction, asserting ineffective assistance ofcounsel in failing to request a voluntary intoxication instruction.1 ANALYSIS Effective assistance ofcounsel is guaranteed by both the Sixth Amendment and article 1, section 22 ofthe Washington Constitution. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, Carter must show that (1) his counsel’s performance was deficient and fell belowthe standard of reasonableness and (2) that the deficient performance prejudiced him in that but for the deficient performance, the result would have been different. In re Gomez, 180 Wn.2d 337, 347-348, 325 P.3d 142 (2014); Statev. Hassan, 151 Wn. App. 209, 216, 211 P.3d 441 (2009). This court

1 Carteralso challenges the imposition of a $100 DNA collection fee. The State concedes the DNAfee should not have been imposed because the State’s records showthat Carter’s DNAwas previously collected. We accept this concession and need not address this assignment of error further. -6-No. 77949-4-1/7

reviews claims of ineffective assistance of counsel de novo. Gomez, 180 Wn.2d at 347.The appellate court presumes the defendant was properly represented. Hendrickson, 129 Wn.2d at 77; Gomez, 180 Wn.2d. at 348 (quoting Strickland, 466 U.S. at 690). The defendant bears the burden ofshowing that, based on the record, there are no legitimate strategic or tactical reasons for the challenged conduct. Hendrickson, 129 Wn.2d at 77-78; Hassan, 151 Wn. App. at217. Carter argues there was no strategic reason to forego a voluntary intoxication instruction. We reject this argument as inconsistent with the trial record. Carter’s counsel told the courtthat she deemed the voluntary intoxication instruction to be a double-edged sword for defendants. While the instruction helped focus jurors on the knowledge element, in practice, the instruction also made an acquittal more difficult. Trial counsel affirmatively stated she had no intention ofarguing Carterwas so intoxicated that hewas incapable of knowledge; merelythat hewas so preoccupied with his drug usethat he paid no heed to signs thatthe car may have been a stolen vehicle. This theory of the case was evident in counsel’s opening statement and closing argument. Trial counsel argued the State had no evidence that Carter knew the car was stolen and all the State had were police officers’ unfounded assumptions of what had occurred.2 Trial counsel contended that the evidence

2 In her opening statement, Carter’s attorney argued that the “evidence is not going to show a connection between

. . . Carter and possession of a stolen vehicle;” that “[t]he only evidence is going to be

. . . Carterat the library passed outwith a piece oftinfoil on the seat nextto him;” that “the state is going to ask[thejury] to make conclusions about [Carter’s] state ofmind from whatthe police thought was going on;” and that Carter should be found not guilty “based upon the lack of evidence and the lackofconnection to the crime charged.” (Emphasis added). -7-No. 77949-4-118

was consistent with a drug user opportunistically using a car as shelter to use heroin. And while heroin use affected Carter’s state of mind, counsel argued, his focus was on the drugs, and not on signs thatthe car might be stolen. We cannot conclude that this trial strategy fell below the standard of objective reasonableness. Carter’s attorney made a strategic choiceto argue that Carterwas sofocused on using heroin that he simplydid not notice anything about his surroundings, including the punched ignition and damaged steering column. Based on the defense Carterpursued, itwas objectively reasonableto refrain from requesting ajury instruction that may have suggested Carter’s use of heroin was “voluntary,” rather than an addiction. Under these circumstances, we will not second-guess trial counsel’s decision to forego a voluntary intoxication jury instruction when counsel deemed that instruction unnecessary to the defense theoryofthe case and potentially damaging to herclient. Even if Carter’s attorney made an unreasonable strategic choice, Carter has not demonstrated he was prejudiced. Carter did not show that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 S. Ct. at 694. The State had overwhelming evidence to prove Carter knew the car was stolen: the steering column was visibly damaged in a way consistent with theft, a cloth coveredthe steering column to hidethe damage, therewere no keys in the ignition, the carwas running when Mohr approached the car, and Carter knew howto use a screwdrivertoturn offthe idling car. In lightofthis evidence, it is unlikelythejury would have rendered any other verdict even if it had considered that Carter’s

-8-No. 77949-4-119

voluntary intoxication affected his mental state. Carterthus fails to showthatthe failure to request the voluntary intoxication instruction prejudiced the outcome of his trial. Carter’s ineffective assistance ofcounsel claim fails. For these reasons, we affirm Carter’s conviction but remand to strike the DNAfeefrom thejudgment and sentence.

WE CONCUR: 

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