State v. Carson ( 2015 )

This opinion was flied for record
m~~ onald R. Carpen r \.:>
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 90308-5
)
v. ) En Bane
)
DAVID WILLIAM CARSON, )
) Filed
SEP 1 7 2015
Petitioner. )
)
WIGGINS, J.-David Carson appeals from his conviction on three counts of
child molestation in the first degree. He argues on appeal that he received ineffective
assistance of counsel because his attorney objected to a Petrich 1 instruction proposed
by the State. A defendant must overcome a heavy burden in order to prevail on a claim
of ineffective assistance; he must demonstrate that his attorney's performance was
professionally deficient and that he suffered prejudice as a result. Carson satisfies
neither prong of this standard.
Defense counsel reasonably concluded that the proposed instruction's
language, tailored as it is for use in single-count cases, would be confusing and
potentially prejudicial in Carson's multicount case. Under these circumstances,
1
State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), abrogated in part on other grounds
by State v. Kitchen, 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988).
State v. Carson (David), No. 90308-5
Carson cannot establish deficient performance. Moreover, defense counsel's
objection did not prejudice Carson because the prosecution's closing argument clearly
elected the acts on which the State was relying. For these reasons, we affirm.
BACKGROUND
I. Factual Background
In 2009, Carson, who was homeless at the time, moved into the home of his
childhood friend, Dustin Halbert. Halbert lived with his fiancee, Tiffany Hagen, and her
three children, including C.C., who had just turned five years old at the time Carson
moved in. Carson watched the children during the day while Halbert and Hagen
worked. Carson lived with the family for approximately one year and two months.
Three months after Carson had moved out of the house, C. C. told Hagen that
Carson "tried to put his penis in [C. C.'s] butt." Hagen called police. Thirteen days later,
C.C. underwent a medical examination and was interviewed by child forensic
interviewer Cornelia Thomas. The forensic interview lasted just over 40 minutes. A
DVD (digital video disk) of the interview was introduced as an exhibit at Carson's trial.
The jury viewed the video of the forensic interview three times: once during Thomas's
testimony at trial and twice during its deliberations after sending requests for the video
to the court.
As recorded in the DVD, C.C. describes three separate incidents of sexual
assault by Carson in some detail: one where Carson twisted C.C.'s "business," C. C.'s
term for a penis; and two incidents where Carson attempted to put his "business" in
C.C.'s "bottom." According to C.C.'s statements during the interview, Carson twisted
C.C.'s "business" in a bathroom. C.C. also said that Carson attempted to put his
2
State v. Carson (David), No. 90308-5
"business" in C.C.'s "bottom" while they were in his "mom's room," which he also
referred to as his "mom and dad's" room. At some point during this assault, Carson
put tape on C. C.'s mouth and used zip ties to tie C. C.'s hands behind his back. In the
third incident that C.C. described, Carson attempted to put his "business" into C.C.'s
"bottom" in C. C.'s own room after making C. C. look at his Spiderman blanket.
The following month, Detective Thomas Catey interviewed Carson at the Pierce
County Sheriff's Department headquarters. During the interview, Carson denied
having any sexual contact with C.C. Carson claimed that the allegations were
retaliation for Carson's moving out of their house and leaving them in a financial bind.
The State charged Carson with one count of rape of a child in the first degree
and one count of child molestation in the first degree. Eleven days before trial, the
State filed an amended information charging three counts of child molestation in the
first degree. Because C. C. never provided dates on which each event occurred, each
count of the amended information specified a charging period covering the entire time
that Carson lived in the same house as C. C.-April 1, 2009 to May 31, 2010:
That DAVID WILLIAM CARSON, in the State of Washington,
during the period between the 1st day of April, 2009 and the 31st day of
May, 2010, did unlawfully and feloniously, being at least 36 months older
than C C , have sexual contact with C C , who is less than 12 years old
and not married to the defendant and not in a state registered domestic
partnership with the defendant, contrary to RCW 9A 44 083, and against
the peace and dignity of th~ State of Washington.
II. Trial
When he testified at trial, C.C. had difficulty recalling the specifics of each
incident, often responding with "I forgot" or "I don't remember" to questions from both
attorneys. C.C. recalled a few particulars, such as Carson tying C.C.'s hands and
3
State v. Carson (David), No. 90308-5
taping his mouth while they were in his parents' room, but C.C. was unable to confirm
or recount most of the details he had described in his videotaped interview 18 months
earlier. 2 During his cross-examinations of C.C. and other state witnesses, defense
counsel largely avoided questions that could elicit details of the specific incidents.
When examining his own witnesses, defense counsel focused on Carson's
background, Carson's responsibilities while he lived with Halbert and Hagen, and the
witnesses' observations of C. C.
The prosecution's closing argument focused exclusively on the three incidents
that C. C. described in his videotaped interview. The prosecutor explicitly told the jury
that those incidents were the only acts the State wished the jury to focus on for the
purposes of its deliberations. The prosecutor then proceeded to walk the jury through
the specifics of these three incidents, which correlated with the three described in
C.C.'s interview.
In the defense's closing argument, defense counsel argued that the allegations
were entirely fabricated. He argued that true sources of the allegations against Carson
2
Carson argues that C.C. and Hagen testified at trial regarding incidents other than the ones
described in the videotaped interview, citing brief references to an "office" and a "closet" in C. C.'s
and Hagen's testimony, respectively. It is not clear that the mention of "a closet" referred to a
separate incident from the zip-ties-and-tape incident because Hagen testified that she was not
sure whether C. C. was referring to "one incident or more" when he first disclosed Carson's abuse.
Moreover, C.C.'s testimony during trial showed that he had great difficulty remembering any
specifics regarding the instances of sexual abuse. Because the record contains minimal detail
regarding the references to an "office" and a "closet," it is difficult to determine whether these
constituted separate incidents from the three that C.C. described in his videotaped interview
rather than simply a sign that C.C. had trouble remembering where and how each incident
occurred. Considering C. C.'s very young age and the two-year gap between the alleged incidents
and the trial, his difficulties with remembering, describing, and distinguishing between each
incident are hardly surprising. In any case, for the reasons set forth below in our analysis, the
prosecution's closing argument elected the acts on which the State was relying for conviction,
thus eliminating the risk that the jury might convict Carson based on any supposed other acts.
4
State v. Carson (David), No. 90308-5
were Halbert and Hagen, who concocted the claims of sexual abuse as retaliation for
Carson's leaving them in a financial bind. During the relatively short time that defense
counsel spent discussing the specific allegations against Carson, he focused almost
entirely on the video of C.C.'s interview with Thomas and urged the jury to view the
video. He argued that the allegations against his client were completely false, the by-
product of coaching by C. C.'s parents combined with embellishment by C. C. himself.
Prior to closing arguments, the parties discussed the State's proposed Petrich
instruction, which read:
The State alleges that the defendant committed acts of Child
Molestation in the First Degree against C.C. on multiple occasions. To
convict the defendant on any count of Child Molestation in the First
Degree, one particular act of Child Molestation in the First Degree must
be proved beyond a reasonable doubt, and you must unanimously agree
as to which act has been proved. You need not unanimously agree that
the defendant committed all the acts of Child Molestation in the First
Degree.
The possibility of a Petrich instruction had first been raised by the trial court the
week before trial. Defense counsel had then suggested that the instruction might not
be necessary because the evidence showed "three separate and distinct, identifiable
acts." On the second day of trial, the parties discussed their proposed instructions with
the court, including the State's Petrich instruction. Defense counsel argued that the
instruction was unnecessary because the evidence pointed to "three separate and
distinct incidents, one in [C.C.'s] room, one in his mother's room, and one in the
bathroom." 3 Defense counsel argued that reading the Petrich instruction could cause
3
Notably, defense counsel made this statement after C. C. and Hagen had completed their trial
testimony and, thus, after the statements discussed in note 2, supra.
5
State v. Carson (David), No. 90308-5
jury confusion:
I think [the Petrich instruction] can be confusing in a case where you have
specific instances alleged, where three acts potentially are alleged ... and
three acts are charged. If you read that instruction, it confuses the jury into
thinking, well, if you agree that one act happened, then you must agree
that all of them happened. And that concerns me.
The following day, after both parties rested, defense counsel specifically
objected to the State's proposed Petrich instruction as confusing. The State
responded that it had not elected to tie specific acts to specific counts "in the
Information," noting that each of the counts alleged the same charging period were
"due in large part to [C.C.'s] inability to specifically say on this day and at this time"
each incident occurred. The trial court sustained defense counsel's objection and
declined to give the instruction.
The jury returned verdicts of guilty on all three counts.
Ill. Appeal
Carson appealed, asserting that his trial counsel's objection to the Petrich
instruction constituted ineffective assistance of counsel. 4 The Court of Appeals
affirmed. State v. Carson, 179 Wn. App. 961, 320 P.3d 185 (2014 ). The court held that
trial counsel's objection to the Petrich instruction was a reasonable trial tactic and thus
did not constitute ineffective assistance. The court quoted extensively from the record,
noting defense counsel's concerns that the Petrich instruction could confuse the jury.
4
Carson also argued before the Court of Appeals that the trial court itself erred by failing to give
a Petrich instruction. The Court of Appeals rejected this argument under the invited error doctrine.
State v. Carson, 179 Wn. App. 961, 973-75, 320 P.3d 185 (2014). Carson also raised a public trial
claim based on the sealing of juror questionnaires, but the Court of Appeals held that our decision
in State v. Beskurt, 176 Wn.2d 441, 447, 293 P.3d 1159 (2013), defeated this claim. Carson, 179
Wn. App. at 971-72. Carson did not include either of these issues in his petition for review, and
we do not address them further.
6
State v. Carson (David), No. 90308-5
The Court of Appeals further noted that this objection comported with the defense's
broader trial strategy, in which defense counsel "avoided discussing specific incidents
in his closing argument and argued instead that CC's testimony and statements were
so muddled, inconsistent, and confusing that they created a reasonable doubt about
whether Carson had committed any of the acts or the charged crimes .... "/d. at 979.
In dissent, Judge Worswick asserted that defense counsel's objection to the
Petrich instruction was based on a belief that Petrich was inapplicable in multicount
cases. /d. at 982-84. She concluded that this objection was based "on an erroneous
view of the law" and thus cannot "be characterized as a legitimate trial tactic." /d. at
984.
STANDARD OF REVIEW
Ineffective assistance of counsel is a fact-based determination, and we review
the entire record in determining whether a defendant received effective representation
at trial. State v. Rhoads, 35 Wn. App. 339, 342, 666 P.2d 400 (1983); State v. Grier,
171 Wn.2d 17, 33, 246 P.3d 1260 (2011 ). The defendant bears the burden of
establishing both "that counsel's performance was deficient" and that "the deficient
performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Reviewing courts must be highly deferential
to counsel's performance and "should recognize that counsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment." /d. at 690.
7
State v. Carson (David), No. 90308-5
ANALYSIS
Carson fails to establish either deficient performance or prejudice. Defense
counsel did not perform deficiently because his objection to the State's proposed
Petrich instruction was a reasonable trial tactic with the legitimate goal of avoiding jury
confusion. That objection was both tactically and strategically reasonable. Carson's
ineffective assistance claim also fails to satisfy the prejudice prong of the Strickland
standard because the State elected the three acts on which it was relying, thus
rendering a Petrich instruction unnecessary and eliminating any possible prejudice
that could have resulted from defense counsel's objection to such an instruction. We
therefore reject Carson's ineffective assistance claim and affirm.
I. Background on the Petrich instruction
In the trial that gave rise to the Petrich instruction, the State presented evidence
of "numerous incidents of sexual contact [that] were described in varying detail."
Petrich, 101 Wn.2d at 568. Despite presenting at least four distinct incidents and
evidence indicating an unknown number of additional incidents, the State charged
Petrich with only one count each of indecent liberties and statutory rape. At the close
of evidence, the defense moved to compel the State to elect the specific act on which
it relied for conviction. The court denied the motion, and the jury convicted the
defendant of both statutory rape and indecent liberties.
This court held that the trial court's denial of the defendant's motion to compel
election deprived the defendant of his right to a unanimous verdict, setting forth what
became known as the Petrich rule:
8
State v. C~rson (David), No. 90308-5
When the evidence indicates that several distinct criminal acts
have been committed, but defendant is charged with only one count of
criminal conduct, jury unanimity must be protected .... The State may,
in its discretion, elect the act upon which it will rely for conviction.
Alternatively, if the jury is instructed that all 12 jurors must agree that the
same underlying criminal act has been proved beyond a reasonable
doubt, a unanimous verdict on one criminal act will be assured.
/d. at 572.
The Petrich instruction was later incorporated into the Washington Pattern Jury
Instructions. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 4.25, at 110-12 (3d ed. 2008) (WPIC). 5 The WPIC's note on use for the
Petrich instruction states that the instruction should be used "when the evidence
indicates that several distinct criminal acts have been committed, but the defendant
is charged with only one count of criminal conduct." See 11 WPIC note on use at 110.
The WPIC instruction reflects the single-count roots of Petrich, instructing the jury that
it must find that "one particular act" was "proved beyond a reasonable doubt" and
"must unanimously agree as to which act has been proved." /d. at 110.
II. Deficient Performance
Defense counsel's objection to the State's proposed Petrich instruction did not
constitute deficient performance. Our analysis begins with the strong presumption that
5
11 WPIC 4.25 reads:
The [State] [County] [City] alleges that the defendant committed acts of
(identify crime) on multiple occasions. To convict the defendant [on any count] of
(identify crime), one particular act of (identify crime) must be proved beyond a
reasonable doubt, and you must unanimously agree as to which act has been
proved. You need not unanimously agree that the defendant committed all the acts
of (identify crime).
(Alterations in original.)
9
State v. Carson (David), No. 90308-5
counsel's performance yvas reasonable. State
l:
v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d
177 (2009). "When cour,.sel's conduct can be characterized as legitimate trial strategy
or tactics, performance is not deficient." /d. at 863. This presumption can be overcome
if the defendant can establish that "'there is no conceivable legitimate tactic explaining
counsel's performance."' Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153
Wn.2d 126, 130, 101 P.3d 80 (2004)).
The presumption of effective representation imposes on the defendant the
burden on appeal to "show in the record the absence of legitimate strategic or tactical
reasons supporting the challenged conduct by counsel." State v. McFarland, 127
Wn.2d 322, 336, 899 P.2d 1251 (1995). Carson fails to meet that burden in this case
because the record demonstrates that defense counsel's decision to object to the
Petrich instruction was due to concerns about the potential for jury confusion.
Counsel's concerns were reasonable, and acting on them was a legitimate trial tactic.
His performance, therefore, was not deficient.
A. Counsel's objection was reasonable because the proposed instruction was
confusing and potentially prejudicial
The proposed instruction that the State offered was a word-for-word copy of the
model Petrich instruction that appears in the Washington Pattern Jury Instructions. As
defense counsel noted, that instruction's statement that "one particular act . .. must
be proved beyond a reasonable doubt" made little sense in Carson's case because
Carson was charged with three separate counts of child molestation. The confusion
was exacerbated by the final sentence of the instruction, which would have informed
the jury that it "need not unanimously agree that the defendant committed all the acts
10
State v. Carson (David), No. 90308-5
of Child Molestation in the First Degree." As defense counsel argued, "If you read that
instruction, it confuses the jury into thinking, well, if you agree that one act happened,
then you must agree that all of them happened." At best, then, the instruction would
have been confusing and it would have failed to ensure that the jury relied on a
separate act for each count. At worst, the instruction would have been highly
prejudicial to Carson. 6 The record firmly demonstrates that these concerns were the
animating force behind defense counsel's objection to a Petrich instruction.
It is true, as Judge Worswick noted in her Court of Appeals dissent, that the
State's proposed instruction was "an accurate statement of applicable law." Carson,
179 Wn. App. at 984. But an accurate statement of law can be confusing when it is
applied to circumstances different from those that existed when the statement of law
was first made. Here, the specific language of the Petrich instruction was designed
for single-count cases and is confusing when read in a multicount case. While the
State's proposed instruction was an accurate statement of the law, defense counsel
may reasonably have feared that reading it would confuse the jury to his client's
detriment in Carson's particular case. For these reasons, the objection was a
legitimate trial tactic.
Defense counsel's objection also advanced the defense's broader trial strategy.
On the record, defense counsel explicitly stated that his "theory of the case" was that
6
In his petition for review, Carson asserts for the first time that "since defense counsel believed
the instruction was confusing, he could have proposed a modified unanimity instruction." Pet. for
Review at 15. But Carson has neither cited to a suitable instruction nor set forth a proposed
instruction that he believes should have been read at trial. Defense counsel could have
reasonably concluded that the risks of crafting an untested variation on the Petrich instruction
outweighed the slight risk that the jury would convict his client based on acts other than the three
that were described in the video.
11
State v. Carson (David), No. 90308-5
Carson "left [C.C.'s parents] in a bind and they suggested" the details of the sexual
misconduct to C.C. As the Court of Appeals noted, defense counsel's summation
"avoided discussing specific incidents ... and argued instead that CC's testimony and
statements were so muddled, inconsistent, and confusing that they created a
reasonable doubt about whether Carson had committed any of the acts or the charged
crimes." /d. at 979.
Because the defense's theory focused on the credibility of C.C. and his
testimony, defense counsel may have concluded any parsing out of the individual acts
would have undercut his strategy by planting the idea in the jury's mind that C.C. might
have told the truth about at least some of what happened. At best, then, the Petrich
instruction was irrelevant to the defense's broader trial strategy; at worst, it could have
actively undercut that strategy. This further underscores the reasonableness of
defense counsel's decision to object to the reading of the State's proposed instruction.
The concurrence asserts that Carson's attorney should not have objected to
the modified Petrich instruction because such an instruction would not have been
inconsistent with his primary strategy of painting the charges as wholly false. 7 We
must resist the temptation to substitute our own personal judgment for that of Carson's
attorney because "it is all too easy for a court, examining counsel's defense after it
has proved unsuccessful, to conclude that a particular act or omission of counsel was
7
In so doing, the concurrence sets up a straw man by asserting that the Court's opinion "assert[s]
that a unanimity instruction would have been inconsistent with the general defense strategy of
attacking the accuser's credibility." Concurrence (Gordon McCloud, J.) at 7. We say no such thing.
Rather, we simply have noted that defense counsel's objection to the State's proposed instruction
can reasonably be seen as advancing his trial strategy.
12
State v. Carson (David), No. 90308-5
unreasonable." Strickland, 466 U.S. at 689. Thus, the deficient performance inquiry
does not permit us to decide what we believe would have been the ideal strategy and
then declare an attorney's performance deficient for failing to follow that strategy. On
the contrary, counsel's performance is adequate as long as his challenged decisions
"can be characterized as legitimate trial strategy or tactics." Kyllo, 166 Wn.2d at 863(emphasis added). The decision to object to the State's proposed Petrich instruction
plainly can be so characterized. Even assuming the objection would have been, as
the concurrence suggests, "not inconsistent with" trial counsel's primary strategy
(concurrence (Gordon McCloud, J.) at 8), many trial advocacy experts recommend
that attorneys eschew alternative arguments before a jury, which may view the
presentation of an alternative argument as a sign that the attorney believes his first
argument is weak:
[A] difficult issue is whether an advocate should advance
alternative theories that are not inconsistent-for example, defending a
contract suit by claiming duress and also arguing that the defendant's
performance did not constitute a breach of the contract. Because of the
cost of overtrying, advancing the second defense may be viewed by the
jury as revealing the attorney's lack of confidence in his first defense.
Here again, most experienced attorneys advise, as a general rule,
against advancing multiple theories to the jury, even if such theories are
not inconsistent.
ROBERT H. KLONOFF & PAUL L. COLBY, WINNING JURY TRIALS: TRIAL TACTICS AND
SPONSORSHIP STRATEGIES 39-40 (3d ed. 2007). Indeed, we have previously held that
an ali-or-nothing approach, though risky, is a reasonable trial strategy. Grier, 171
Wn.2d at 42. Here, defense counsel may reasonably have wished to avoid an
argument that could be summarized as: "[a]ll the allegations are false-and even if
13
State v. Carson (David), No. 90308-5
they are not all false, you have to agree on which allegations are true" or "Carson did
not abuse C. C.-and even if he did, he did not do it three separate times."
Because objecting to the proposed Petrich instruction in Carson's case can be
characterized as part of a legitimate trial strategy, defense counsel did not perform
deficiently when he objected to the instruction and instead focused on portraying the
allegations against his client as wholly false.
B. Counsel's objection was not based on a misunderstanding of law
We reject Carson's argument, echoing the Court of Appeals dissent, that
defense counsel's objection to the Petrich instruction was per se unreasonable
because it was "based on misunderstandings of the law." Carson, 179 Wn. App. at
984-85 (Worswick, C.J., dissenting). The day before he objected, defense counsel
stated that he did not think that a Petrich instruction was necessary in Carson's
specific case because the evidence revealed "three separate and distinct incidents,
one in [C.C.'s] room, one in his mother's room, and one in the bathroom." Defense
counsel appears to be correct in this regard-we have never specifically held that
Petrich must be read in cases where there is exact congruence between the number
of incidents described in the evidence and the number of criminal counts charged. 8
8
The concurrence grossly mischaracterizes our reasoning on these points, accusing us of
concluding "THAT A UNANIMITY INSTRUCTION IS UNNECESSARY IN A MULTICOUNT CASE" and of
holding that "a Petrich instruction is always unnecessary when the number of acts alleged is equal
to the number of counts charged." Concurrence (Gordon McCloud, J.) at 2. The concurrence
would be considerably more helpful to the reader if it did not ignore what we have actually said in
this opinion. First, the concurrence's mischaracterizations ignore a point that we emphasize
throughout this opinion: that the defense counsel's stated reason for objecting to the proposed
instruction was his reasonable fear of jury confusion, not his understanding (or misunderstanding)
of the applicable law. Moreover, we do not conclude that a unanimity instruction is never
necessary in a multicount case (a question that is not presented in this ineffective assistance
14
State v: Carson (David), No. 90308-5
But more importantly, this was not the reason that defense counsel cited when
he objected the following day. As discussed above, the record demonstrates that the
potential for jury confusion was the driving force behind defense counsel's objection
to the proposed Petrich instruction. When asked if he was objecting to the proposed
Petrich instruction, defense counsel's response was "I think it is confusing, yes."
Concerns that the jury could be "confused" or "misled" dominated defense counsel's
explanations of why he did not want a Petrich instruction read to the jury. 9 Thus,
defense counsel's objection was not "based on" his understanding (or
misunderstanding) of applicable law and his performance could not have been
rendered deficient by any misconceptions he may have harbored regarding that law.
For these reasons, even if we were to adopt a per se rule that misunderstandings of
law automatically render an attorney's performance deficient, it would not rescue
Carson's ineffective assistance claim.
Moreover, no decision of this court has addressed the circumstances of
Carson's trial: a defendant charged with n (which, in Carson's case, is equal to three)
counts, evidence tending to show only n incidents that meet the elements of the crime,
case); rather, we hold that it was not deficient performance for defense counsel to object to a
Petrich instruction "in Carson's specific case" in part because the evidence showed "three
separate and distinct incidents." And we do not hold that a Petrich instruction is "always
unnecessary" when there is exact congruence between the acts alleged and the counts charged;
rather, we simply note that we have never "specifically held" that a Petrich instruction must be
read in such cases, thus adding credence to defense counsel's conclusion that it would be better
to avoid such an instruction in Carson's specific case.
9
Even when defense counsel did discuss the underlying law, he did not claim that Petrich could
be applied only in single-count cases. Instead, he argued that the instruction normally is read in
single-count cases and was not designed for multicount cases and that its language can be
confusing if read in multicount cases.
15
State v. Carson (David), No. 90308-5
and the prosecution identifies the acts on which the charges are based. 1 Certainly, °
defense counsel believed that the evidence showed only three distinct incidents-a
point that he made each time he discussed the possibility of a Petrich instruction,
including the discussion that occurred after the State completed its case in chief. See
2 Verbatim Report of Proceedings (VRP) at 6; 3 VRP at 335; 4 VRP at 408. Reading
the Petrich instruction in such a multicount case could be prejudicial to the defendant,
as defense counsel noted: the instruction's reference to "one particular act" combined
with the disclaimer that the jury "need not unanimously agree that the defendant
committed all the acts" might confuse a jury into thinking that they may convict the
defendant on a// counts as long as they unanimously agree on at least one criminal
act.
10
The concurrence opines that we "specifically held that a Petrich instruction is constitutionally
required in a case where there is exact congruence between the acts alleged and the counts
charged," citing State v. Vander Houwen, 163 Wn.2d 25, 38-39, 177 P.3d 93 (2008). Concurrence
(Gordon McCloud, J.) at 6. The concurrence overlooks the important qualification in Vander
Houwen that the Petrich instruction is unnecessary if the prosecution specifies the incidents
supporting the charges: "The absence of a unanimity instruction, along with the State's failure to
identify specific acts on which to charge, is fatal." 163 Wn.2d at 38 (emphasis added). It is this
factor that distinguishes this case from Vander Houwen. As discussed supra in note 2, the
evidence in this case points only to three separate and distinct incidents. The concurrence claims
that our opinion makes a "sweeping general assertion that where the number of counts charged
is the same as the number of acts alleged, that congruence makes Petrich inapplicable."
Concurrence (Gordon McCloud, J.) at 5. Once again, this misstates our actual holding and ignores
the posture of this case. The Court of Appeals correctly rejected Carson's claim that the trial court
erred in failing to provide a Petrich instruction claim under the doctrine of invited error, see Carson,
179 Wn. App. at 973-75, and Carson did not challenge that ruling in his petition for review.
Consequently, the sole issue now before us is Carson's ineffective assistance claim. Given the
limited scope of our review, we make no ruling on whether some variation of the Petrich instruction
would have been necessary in this case had defense counsel requested one; rather, we simply
hold that defense counsel's decision to object to the State's proposed Petrich instruction was
reasonable under the circumstances of this case.
16
State v. Carson (David), No. 90308-5
The WPICs do not provide an example of a multicount variation on the Petrich
instruction. As previously noted, the WPIC note on use for the Petrich instruction
advises courts to "[u]se this instruction ... when the evidence indicates that several
distinct criminal acts have been committed, but the defendant is charged with only
one count of criminal conduct." 11 WPIC 4.25 note on use at 110 (emphasis added).
A sentence in the comment on the pattern instruction states that "[i]f the instruction is
being modified for multiple counts, then the instruction needs to clearly require
unanimity for one particular act for each count charged." /d. at 113 (citing State v.
Watkins, 136 Wn. App. 240, 148 P.3d 1112 (2006)). The comment does not, however,
provide an example of a suitable instruction. 11
Against that background, one can hardly blame defense counsel for choosing
to avoid the Petrich instruction rather than attempting an ad hoc rewrite of the
11
The concurrence asserts that two Court of Appeals cases cited in the comment include suitable
instructions, specifically State v. Hayes, 81 Wn. App. 425, 914 P.2d 788 (1996), and State v.
Borsheim, 140 Wn. App. 357, 165 P.3d 417 (2007). Concurrence (Gordon McCloud, J.) at 4-5.
But we have never required attorneys to have an encyclopedic knowledge of every case cited in
every comment in every pattern jury instruction relevant to their case, particularly since neither
the pattern instructions nor their comments have any binding effect. We decline to impose such a
requirement in this case. In any event, the issue in Hayes was not the legal adequacy of the jury
instructions but rather the sufficiency of the evidence. And Hayes does not include a specific
model instruction. Rather, one note in Hayes quotes bits and pieces from three separate
instructions, which the court never analyzes other than to observe that "[T]he trial court ...
complied with the requirement to properly instruct the jury." 81 Wn. App. at 431. In short, Hayes
includes neither a model instruction nor any meaningful analysis of the instructions given.
Furthermore, the Borsheim instruction's admonition that the jury must '"unanimously agree as to
which act or acts have been proved"' does not actually require the jury to use a separate act for
each count. Borsheim, 140 Wn. App. at 364 (emphasis omitted). A similar flaw afflicts one of the
other cases cited in the comment-State v. No/tie, which included an instruction that required the
jury to unanimously agree on '"at least one separate act"' for each count. 116 Wn.2d 831, 843,
809 P.2d 190 (1991 ). As the Court of Appeals has noted, the No/tie instruction fails to make it
clear that "the jury must agree on the same act for each count." State v. Watkins, 136 Wn. App.
240, 246, 148 P.3d 1112 (2006). These cases highlight the difficulties courts have faced in
adapting Petrich for use in multicount cases and further suggest the reasonableness of trial
counsel's decision to object to the State's proposed instruction in Carson's case, particularly given
counsel's belief that the evidence pointed to only three criminal acts.
17
State v. Carson (David), No. 90308-5
instruction, particularly given that the distinctions between the various incidents were
irrelevant to the defense's theory of the case. Accordingly, it was reasonable for
defense counsel to object to the Petrich instruction. For these reasons, Carson's trial
counsel did not perform deficiently. We reject his ineffective assistance claim on that
basis.
Ill. Prejudice
Given the State's clear election of three acts in its closing argument, Carson
was not prejudiced by the absence of a Petrich instruction. Because we are reviewing
only defense counsel's performance rather than the trial court's failure to give a Petrich
instruction, we use the Strickland standard for ineffective assistance claims and
require the defendant to demonstrate that his attorney's deficient performance
prejudiced him. State v. Robinson, 138 Wn.2d 753, 765-69, 982 P.2d 590 (1999). We
use the Strickland standard even where the defendant claims that his attorney's
deficient performance affected his constitutional rights. /d. at 765-66; State v. West,
139 Wn.2d 37, 42, 983 P.2d 617 (1999). 12
Under Strickland, we do not presume prejudice unless the trial "loses its
character as a confrontation between adversaries," State v. Webbe, 122 Wn. App.
12See also In re Pers. Restraint of Davis, 152 Wn.2d 647, 674, 101 P.3d 1 (2004) (limiting
presumption of prejudice to three circumstances outlined in Strickland plus other circumstances
where '"the likelihood that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate without inquiry into actual
conduct of the trial"' (internal quotation marks omitted) (quoting Visciotti v. Woodford, 288 F.3d
1097, 1106 (9th Cir.), rev'd on other grounds, 537 U.S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279(2002))); State v. Cienfuegos, 144 Wn.2d 222, 228-29, 25 P.3d 1011 (2001) (declining to hold that
trial counsel's failure to request a diminished capacity instruction was ineffective per se because
"[t]he question of whether counsel's performance was ineffective is generally not amenable to per
se rules, but requires a case by case basis analysis").
18
State v. Carson .(David), No. 90308-5
683, 694-95, 94 P.3d 994 (2004 ), as when there is (1) a complete denial of the
assistance of counsel, (2) the State's interference with counsel's assistance, or (3) an
actual conflict of interest. See id.; Strickland, 466 U.S. at 692; In re Pers. Restraint of
Davis, 152 Wn.2d 647, 674, 101 P.3d 1 (2004). Strickland explained that a
presumption of prejudice makes sense in these narrow circumstances because
"[p]rejudice ... is so likely that case-by-case inquiry into prejudice is not worth the
cost" and that with respect to conflicts of interest, "counsel breaches the duty of loyalty,
perhaps the most basic of counsel's duties." Strickland, 466 U.S. at 692. 13
None of Strickland's presumptively prejudicial circumstances exists here.
Consequently, under Strickland's standard of review, Carson bears the burden of
establishing that "there is a reasonable probability that, but for counsel's deficient
performance, the outcome of the proceedings would have been different." Kyllo, 166
Wn.2d at 862. Here, far from demonstrating prejudice, the circumstances of Carson's
13 The Strickland Court elaborated:
[Where a defendant is completely denied counsel or the State interferes with
counsel's assistance, prejudice] is so likely that case-by-case inquiry into prejudice
is not worth the cost. Moreover, such circumstances involve impairments of the
Sixth Amendment right that are easy to identify and, for that reason and because
the prosecution is directly responsible, easy for the government to prevent.
[When there is an actual conflict of interest], ... it is difficult to measure the
precise effect on the defense of representation corrupted by conflicting interests.
Given the obligation of counsel to avoid conflicts of interest and the ability of trial
courts to make early inquiry in certain situations likely to give rise to conflicts, it is
reasonable for the criminal justice system to maintain a fairly rigid rule of presumed
prejudice for conflicts of interest.
466 U.S. at 692 (citations omitted).
19
State v. Carson (David), No. 90308-5
trial strongly suggest that the absence of a Petrich instruction was harmless because
the State, in its closing argument, elected the acts on which it was relying. 14
Petrich's multiple acts instruction applies only when the State fails to "elect the
act upon which it will rely for conviction." Petrich, 101 Wn.2d at 572; see also 11 WPIC
4.25 note on use at 110 ("If there is evidence of multiple distinct occurrences of the
crime, but the prosecution elects to rely upon a specific occurrence to support a
conviction, then this Petrich instruction should not be used."). For an election to be
effective, "either the State must tell the jury which act to rely on in its deliberations or
the court must instruct the jury to agree on a specific criminal act." State v. Kitchen,
110 Wn.2d 403, 409, 756 P.2d 105 (1988).
We have never held that the State's election of an act must be ratified by the
court or incorporated into the charging document or jury instructions in order to be
effective. On the contrary, and as our use of the phrase "tell the jury" in Kitchen
suggests, id. (emphasis added), an election can be made by the prosecuting attorney
in a verbal statement to the jury as long as the prosecution "clearly identifie[s] the act
upon which" the charge in question is based. State v. Thompson, 169 Wn. App. 436,
474-75,290 P.3d 996 (2012) ("[b]ecause the State clearly identified the act upon which
the sexual motivation allegation was based" in its closing argument, "no unanimity
instruction was necessary"); compare, e.g., id., and In re Pers. Restraint of Delgado,
14
In its Court of Appeals brief, the State argued that no Petrich instruction had been necessary
because the State had made an election. The Court of Appeals acknowledged this argument in
its discussion of Carson's claim that the trial court erred in failing to give a Petrich instruction,
Carson, 179 Wn. App. at 972-73, but it neither acknowledged nor discussed it in the context of
Carson's ineffective assistance claim.
20
State v: Carson (David), No. 90308-5
160 Wn. App. 898, 902, 251 P.3d 899 (2011) (prosecutor '"clearly elected ... the
criminal acts associated with the two counts during its closing arguments'"), with State
v. Williams, 136 Wn. App. 486, 497, 150 P.3d 111 (2007) (no clear election in closing
argument where prosecutor "emphasized" one act over others but did not "expressly
elect to rely only on" one act "in seeking the conviction"). 15
Here, the evidence tended to show only three separate acts 16 and an election
arguably was not even necessary. But even if we were to assume arguendo that the
evidence could be construed as pointing to additional acts, the State, in its closing
argument, clearly and explicitly elected the three acts on which it was relying for
conviction: the incident where C. C.'s "business was twisted ... in the bathroom" and
the incidents where Carson "tried to put his penis in [C.C.'s] bottom" in C.C.'s room
and in his parents' room. The State specifically disclaimed its intention to rely on any
other instances where Carson may have attempted to put his penis in C.C.'s bottom,
stating that it was only "focusing on" the incidents in C.C.'s room and Hagen's room
and telling the jury that those were the only incidents that the State "would like you to
focus on for the purposes of your deliberations."
15
Similar to the Court of Appeals holding in Williams, we held in State v. Kier, 164 Wn.2d 798,
811-13, 194 P.3d 212 (2008), that the prosecution's closing-argument election was ineffective
because it was not sufficiently clear. In Kier, like the prosecutor in Williams and in contrast to the
closing argument in this case, the prosecutor merely named the acts on which he was relying; he
did not, as the prosecutor at Carson's trial did, tell the jury that they were the only acts on which
the State was relying. This latter element is essential to a clear election: the State must not only
discuss the acts on which it is relying, it must in some way disclaim its intention to rely on other
acts.
16
See note 2, supra.
21
State v. Carson (David), No. 90308-5
This suffices to constitute an election. The prosecutor, unlike the court, cannot
actually instruct the jury to ignore particular testimony or evidence. By specifying
exactly three instances of sexual misconduct and disclaiming the State's intention to
rely on other acts, the State effectively elected the acts on which the State sought a
conviction. 17 Because Petrich instructions need not be read in cases where the State
makes an election, no Petrich instruction was necessary in Carson's trial and the
absence of such an instruction did not prejudice Carson. 18 Thus, even if the defense
attorney's objection constituted deficient performance, Carson's ineffective assistance
claim. would fail.
CONCLUSION
Carson has established neither deficient performance nor prejudice. We
therefore reject his ineffective assistance claim and affirm.
17 In a footnote to her dissent, Judge Worswick asserts that the State "clearly chose not to elect,"
citing two statements that the prosecutor made outside the presence of the jury. Carson, 179 Wn.
App. at 985 n.27. But these statements came before the prosecutor made his election. Asserting
that the State had not elected three specific acts in the information did not foreclose the possibility
that the State would make such an election in its closing argument-as it ultimately did. Cf. State
v. King, 75 Wn. App. 899, 903, 878 P.2d 466 (1994) (court declined to give unanimity instruction
"in light of the State's avowed intention to make an election in argument"; because State ultimately
failed to make such a closing-argument election, absence of Petrich instruction was error).
18 This conclusion might be different had the jury returned guilty verdicts on only one or two of the
three counts. Such verdicts would indicate prejudice by raising the possibility that some jurors
had convicted Carson based on one of the acts highlighted by the prosecution, while others had
relied on a separate act. But because the jury returned guilty verdicts on all three counts, it is
apparent that the jury believed that the defendant had committed all three incidents of molestation.
Likewise, there may be circumstances where a late election by the prosecution would be
prejudicial to the defendant. But no such prejudice could have occurred here, because defense
counsel expressed his opinion even before the prosecution's election that the evidence only
tended to show three separate acts of misconduct. The prosecutor's election thus did nothing
more than make explicit what the evidence already showed.
22
State v. Carson (David), No. 90308-5
WE CONCUR.
/
23
State v. Carson (David William)
No. 90308-5
STEPHENS, J. (concurring)-! am concerned that both the majority and
Justice Gordon McCloud's concurrence make broad statements about when a
Petrich 1 instruction is required in a multicount case. As the majority quietly
observes, this question is not before us. Majority at 16 n.l 0. I am also concerned
that the concurrence erroneously characterizes the majority as announcing a
broader holding than it does. But to me, the path to greater clarity is to state the
relevant holding in its simplest terms: Carson's claim of ineffective assistance of
counsel fails because the State made a clear election before the case went to the
jury, specifying exactly three separate acts for the three separate counts of first
degree child molestation. Relying on the State's election-as both the majority
and Justice Gordon McCloud's concurrence ultimately do-l conclude that defense
counsel's performance was neither deficient nor prejudicial. On this basis, I
concur in the decision to affirm Carson's conviction.
1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
State v. Carson (David William), 90308-5 (Stephens, J. Concurrence)
-2-
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
No. 90308-5
GORDON McCLOUD, J. ( concurring)-Defense counsel objected to a
Petrich 1 instruction in this case for two reasons. First, he voiced a legitimate concern
that the instruction-as proposed by the State-could confuse the jury into thinking
that if the evidence supported a conviction on one count, it necessarily supported
convictions on all three counts. 3 Report of Proceedings (RP) at 336. Second, he
asserted-incorrectly-that no unanimity instruction is necessary in a multicount
case. He explained that "[g]enerally, when you read the comments to the Petrich
instruction, it doesn't apply ... to multi[] count cases: ... it's when you have one
count but you have like six possible acts that could have accounted for [it]." 4 RP
at 405 (emphasis added). He supported this argument by stating that he had "looked
at the comments [to the pattern jury Petrich instruction] that indicate, as I read it,
that [the instruction] should only be used where you're alleging one count but
1
State v. Petrich, 101 Wn.2d 566, 683 P .2d 173 (1984 ).
1
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
multiple acts." !d. at 408 (citing 11 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CRIMINAL 4.25, at 110-12 (3d ed. 2008 (WPIC)).
The majority holds that these were good reasons showing legitimate defense
strategy because a Petrich instruction is always unnecessary when the number of
acts alleged is equal to the number of counts charged. See, e.g., majority at 14
("Defense counsel appears to be correct [that a Petrich instruction was not
necessary ]-we have never specifically held that Petrich must be read in cases
where there is exact congruence between the number of incidents described in the
evidence and the number of criminal counts charged." (Emphasis added)).
I respectfully disagree. If defense counsel had done his background research,
he would have discovered that our court has held-and the WPICs confirm-that a
Petrich-type unanimity instruction should be given in multicount cases and that it
should be given in tried-and-true language that our court has quoted and the WPIC
committee has endorsed. I therefore agree with the dissent in the Court of Appeals
that trial counsel's performance was deficient.
However, I also agree with the majority that the deficient performance did not
cause prejudice. I therefore concur.
2
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
l. THE MAJORITY INCORRECTLY CONCLUDES THAT A UNANIMITY
INSTRUCTION Is UNNECESSARY IN A MULTICOUNT CASE .
As the majority notes, the Petrich instruction originated in a case in which the
State charged only one count each of two crimes and supported each count with
multiple alleged acts. Majority at 8-9 (quoting Petrich, 101 Wn.2d at 572). But
Petrich has outgrown its single-count roots. Now, it also applies where multiple acts
provide the bases for multiple counts of the same crime. 11 WPIC 4.25 cmt. at 113
("If the instruction is being modified for multiple counts, then the instruction needs
to clearly require unanimity for one particular act for each count charged." (citing
State v. Watkins, 136 Wn. App. 240, 148 P.3d 1112 (2006)); State v. Vander
Houwen, 163 Wn.2d 25, 37-39, 177 P.3d 93 (2008) (defendant entitled to unanimity
instruction where he was charged with 10 counts of waste of wildlife and 10 counts
of killing game out of season based on evidence that defendant shot 10 different elk).
This extension of Petrich is unsurprising: a Petrich instruction serves just as
compelling a purpose in a multicount case as it does in a single-count case. Vander
Houwen, 163 Wn.2d at 38 ("Because the State did not articulate which cause number
went with each elk, it is impossible to ensure that all of the jurors voted to convict
based on the same two dead elk."); State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d
105 ( 1988) (Petrich ensures jury unanimity "as to which act or incident constitutes
the crime" (emphasis added)).
3
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
Contrary to the majority's assertion, the WPIC does "provide an example of
a multicount variation on the Petrich instruction." Majority at 16. The WPIC
comment cites to State v. Hayes, in which Division One held thefollowing to be a
proper multicount Petrich instruction:
"A separate crime is charged in each count. You must decide
each count separately. Your verdict on one count should not control
your verdict on any other count.
"To convict [for each count, you must find as an element]:
" ... That on or about the 1st day of July, 1990 through the 31st
day of May, 1992, but an occasion separate and distinct from that
charged in [the remaining counts], the defendant had sexual
intercourse with [the victim];
" ... For you to return a verdict of guilty all twelve jurors must
agree that the same incident of sexual intercourse has been proved
beyond a reasonable doubt."
81 Wn. App. 425,431 n.9, 914 P.2d 788 (1996) (emphasis added) (second and fourth
alterations in original) (quoting jury instructions).
The WPIC comments also cite State v. Borsheim, 140 Wn. App. 357, 165 P.3d
417 (2007), another multi count case. WPIC 4.25 cmt. at 113. Borsheim held that
the following instruction satisfies the jury unanimity requirement in a multicount
case:
"There are allegations that the Defendant committed acts of rape
of [a] child on multiple occasions. To convict the Defendant, one or
1nore particular acts must be proved beyond a reasonable doubt and
4
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
you must unanimously agree as to which act or acts have been proved
beyond a reasonable doubt. You need not unanimously agree that all
the acts have been proved beyond a reasonable doubt."
Borsheim, 140 Wn. App. at 364 (quoting jury instructions).
In light of these two examples, defense counsel did not have to choose
between "avoid[ing] the Petrich instruction" and "attempting an ad hoc rewrite of
the instruction." Majority at 14. Instead, he could have read the authority cited in
the WPIC comment and requested an instruction based on the examples it provided.
I respectfully disagree with the majority's conclusion that trial counsel's
performance reflected a legitimate tactical decision. Instead, trial counsel's failure
to conduct this background research constituted deficient performance. See State v.
Kyllo, 166 Wn.2d 856, 865-69, 215 P.3d 177 (2009) (defense counsel's request for
a particular WPIC constituted deficient performance where research would have
shown at least three decisions and a statute revealing that the instruction misstated
the law).
The majority also makes the sweepmg general assertion that where the
number of counts charged is the same as the number of acts alleged, that congruence
makes Petrich inapplicable:
[N]o decision of this court has addressed the circumstances of Carson's
trial: a defendant charged with n (which, in Carson's case, is equal to
three) counts [and] evidence tending to show only n incidents that meet
5
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
the elements of the crime. . . . Reading the Petrich instruction in such
a multicount case could be prejudicial to the defendant. ...
Majority at 15-16 (emphasis added).
Again, I respectfully disagree. Congruence between the number of acts
alleged and the number of guilty verdicts returned is certainly relevant to the
prejudice inquiry in this case. But congruence between acts alleged and counts
charged makes no difference to the initial question presented here: whether counsel
reasonably refused a unanimity instruction in the first place. Without a unanimity
instruction, the defendant has no assurance that individual jurors will convict based
on the same single act for each count. This is equally true whether the number of
acts alleged does or does not equal the number of counts charged.
The majority is incorrect when it asserts that "we have never 'specifically
held' that a Petrich instruction must be read" in cases where "there is exact
congruence between the acts alleged and the counts charged." Majority at 14 n.8.
In Vander Houwen, the state found 10 slain elk in the defendant's apple orchard and
charged him with 10 counts each of waste of wildlife and unlawful big game
hunting-1 0 counts of each charge for ten alleged acts of shooting an elk. 163
Wn.2d at 31, 38. Because there was neither a unanimity instruction nor an election,
and because the jury returned guilty verdicts on only two counts of unlawful killing,
we reversed those two convictions. Id. at 38-39. We explained that because the
6
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
State failed to specify which elk were the bases for which counts, it was "impossible
to ensure that all of the jurors voted to convict based on the same two dead elk." I d.
at 38. We thus specifically held that a Petrich instruction is constitutionally required
in a case where there is exact congruence between the acts alleged and the counts
charged.
II. THE MAJORITY INCORRECTLY HOLDS THAT DEFENSE COUNSEL'S
OBJECTION TO THE UNANIMITY INSTRUCTION WAS A LEGITIMATE TRIAL
STRATEGY
The majority also concludes that defense counsel objected to the jury
unanimity instruction because this "advanced the defense's broader trial strategy."
According to the majority, this strategy was to "'avoid[] discussing specific incidents
... and argue[] instead that [all of] C.C.'s testimony [lacked credibility]."' Majority
at 12 (quoting State v. Carson, 179 Wn. App. 961, 979, 320 P.3d 185 (2014)).
This seems like an overly formalistic assessment of how a criminal defense
lawyer's theory of the case works.
First, the majority's theory ignores the presence of instruction 3, which
advised the jurors that they "must decide each count separately" and that their
"verdict on one count should not control [their] verdict on any other count." Clerk's
Papers at 63. It is unclear why defense counsel would have objected to a unanimity
7
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
instruction on the basis that it distinguished between the charges while ignoring an
instruction that explicitly required the jury to make just .such a distinction.
Second, the majority is incorrect in asserting that a unanimity instruction
would have been inconsistent with the general defense strategy of attacking the
accuser's credibility. Carson argued that the jury should not convict on any count at
all; the unanimity instruction would have told the jury that it also could not convict
on any single count unless every juror unanimously agreed on the incident forming
the basis for that count. Success on the first theory depends on discrediting the
victim's testimony as to all three alleged incidents; success on the second theory
depends on discrediting the victim's testimony as to any one, two, or three of those
same incidents. The second argument is not inconsistent with the first. In fact, they
are completely consistent: they both depend on discrediting the victim. Far from
contradicting the general defense, the unanimity instruction would have added an
extra layer of protection for the defendant's constitutional rights. ·
As noted above, defense counsel did express a legitimate concern about
confusing the jury-he feared that in a multicount case, the standard Petrich
instruction might confuse the jury into thinking that if it convicted on one count, it
must convict on all counts. See majority at 11-12. But defense counsel could have
addressed this confusion without also jeopardizing his client's right to a unanimous
8
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
verdict. He could have requested an instruction like the one in which tells the jurors
that they can convict on any one count only if they unanimously agree that the
defendant committed the act supporting that count on "an occasion separate and
distinct from that charged in [the remaining counts]." Hayes, 81 Wn. App. at 431
n.9 (emphasis added) (alteration in original). Our cases clearly support the giving
of such an instruction in cases involving not just single counts -but also multiple
counts. See State v. Noltie, 116 Wn.2d 831, 846, 809 P.2d 190 (1991); Vander
Houwen, 163 Wn.2d at 37-38.
For these reasons, I would hold that defense counsel's objection to a jury
unanimity instruction constituted deficient performance. I agree with the dissent in
the Court of Appeals that "basing a decision on an erroneous view of the law can[not]
be characterized as a legitimate trial tactic." Carson, 179 Wn. App. at 984
(Worswick, C.J., dissenting).
CONCLUSION
I agree with majority's holding on prejudice, and I would affirm solely on that
basis. But I disagree with the majority's conclusion that a Petrich instruction is
unnecessary in a multi count case, I disagree with the majority's implication that a
unanimity instruction is unnecessary where the number of acts alleged equals the
number of counts charged, and I disagree with the majority's conclusion that a
9
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
unanimity instruction is inconsistent with the defense of general denial. For these
reasons, I respectfully concur.
10
State v. Carson (David William), No. 90308-5
(Gordon McCloud, J., Concurrence)
11