Personal Restraint Petition Of Jicorey Bradford ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 1, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint Petition of: No. 47750-5-II
JICOREY RICCARDO BRADFORD,
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — Jicorey Bradford petitions for relief from his convictions for assault in the
first degree with a firearm enhancement and unlawful possession of a firearm. He argues the trial
court should have instructed the jury on the lesser degree crime of assault in the second degree,
the trial court should not have instructed the jury with a first aggressor instruction, and his trial
counsel and appellate counsel provided ineffective assistance. We deny the petition.
FACTS
On October 7, 2011, Kerry Edwards and Dandre Long went to an apartment complex to
visit Long’s girlfriend. While there, they saw two strangers, later identified as Bradford and James
Gray. Edwards and Long drove away from the complex in a Chevy Caprice. Bradford and Gray
entered a car and also drove away.
Gun shots were fired from the vehicle occupied by Bradford and Gray, into the Caprice.
The cars separated but soon met up again. Either Bradford or Gray fired more shots into the
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Caprice.1 Both cars then sped away. Bradford’s car lost control and crashed into an embankment.
Gray ran away. The police arrested Bradford at the accident. They found a handgun nearby.
The bullets destroyed the Caprice’s windows. Two bullets were found inside the car, one
in the driver’s headrest and the other in the driver’s back seat. These bullets were fired from the
handgun seized near Bradford’s arrest.
Approximately 90 minutes after the incident, Edwards called Jeff Hall, an officer with the
Lakewood Police Department.
The State charged Bradford with two counts of assault in the first degree with a firearm
enhancement against Edwards and Long respectively, one count of drive-by shooting, one count
of possession of a stolen firearm, and one count of unlawful possession of a firearm in the second
degree. State v. Bradford, noted at 180 Wn. App. 1009, 2014 WL 1212001, at *1.
Bradford and his co-defendant, Gray, went to trial. Although Edwards, Long, Bradford,
and Gray testified differently at trial as to what happened, it is clear that an occupant from the
Bradford/Gray car fired gun shots into the Caprice.2
At trial, Edwards testified Bradford fired the shots, not Gray. Gray denied firing any shots.
RP at 643. He also claimed he had no knowledge that Bradford had a gun in their car. Bradford
admitted that he fired bullets at the Caprice. Bradford claimed he acted in self-defense and only
fired the shots after someone in the Caprice displayed a firearm and pointed it at him. Both
Edwards and Long testified neither of them had a gun at the time of the incident. Bradford
admitted he could not lawfully possess a firearm.
1
Bradford and Gray testified that Bradford fired the gun. Long testified that neither Bradford nor
Gray was present at the shooting. Edwards expressed confusion as to which person, either Gray
or Bradford, was the shooter.
2
Although numerous impartial people witnessed the shooting, none could identify the shooter.
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The jury also heard testimony that while a juvenile, Edwards had been arrested with 35
other defendants, all of whom were members of the Hilltop Crips. He decided to cooperate with
the police and provide information to them about both the Hilltop Crips and a stolen car operation.
Edwards later testified in a murder trial.
Bradford did not object to the trial court’s instructions to the jury. They included an
instruction on self-defense related only to assault in the first degree and an instruction that
disallowed the use of lawful force if Bradford was the initial aggressor. Neither the State nor
Bradford requested any lesser degree instructions on the crimes of assault in the first degree.
The jury found Bradford guilty of assault in the first degree with a firearm enhancement
against Long, drive-by shooting, possession of a stolen firearm, and unlawful possession of a
firearm. See Bradford, 2014 WL 1212001, *3.
On direct appeal, the appellate court affirmed Bradford’s convictions for assault in the first
degree with a firearm enhancement and unlawful possession of a firearm. See Bradford, 2014 WL
1212001, at *3. The court reversed Bradford’s convictions for drive-by shooting and possession
of a stolen firearm because of ineffective assistance of counsel and insufficient evidence,
respectively. See Bradford, 2014 WL 1212001, at *1, 7. Bradford filed a statement of additional
grounds (SAG) and asserted that the trial court should have instructed on lesser included assault
crimes and ineffective assistance of counsel relating to the self-defense instruction. On appeal,
this court held that Bradford’s SAG, “raises no possibility that the latter claims are meritorious.”
Bradford, 2014 WL 1212001, at *7.
Bradford files this Personal Restraint Petition (PRP) seeking relief.
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ANALYSIS
I. PRP STANDARDS OF REVIEW
In a PRP, “the petitioner must state the facts on which he bases his claim of unlawful
restraint and describe the evidence available to support the allegations; conclusory allegations
alone are insufficient.” In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 176, 248 P.3d 576(2011); RAP 16.4; RAP 16.7(a)(2)(i). We consider arguments raised in a PRP under one of two
standards. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004).
A petitioner raising constitutional error must show by a preponderance of the evidence that
the error caused actual and substantial prejudice. Davis, 152 Wn.2d at 671-72. A petitioner raising
nonconstitutional error must show a fundamental defect resulting in a complete miscarriage of
justice. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335 (2007). However, a
petitioner arguing ineffective assistance of counsel need not show more prejudice on collateral
attack than on direct appeal. In re Pers. Restraint of Crace, 174 Wn.2d 835, 845-46, 280 P.3d
1102 (2012).
“[I]t is important to note that a personal restraint petitioner may not renew an issue that
was raised and rejected on direct appeal unless the interests of justice require relitigation of that
issue.” In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994). A PRP is not the
“forum for relitigation of issues already considered on direct appeal,” it is a medium by which to
review “fundamental errors” that prejudice a restrained individual. Lord, 123 Wn.2d at 329.
An issue is considered to be “raised and rejected,” if the same ground presented in the
petition was determined adversely to the petitioner in the prior appeal and if the prior determination
was on the merits. Davis, 152 Wn.2d at 671 n.14. “A [petitioner] may not recast the same issue
as an ineffective assistance claim; simply recasting an argument in that manner does not create a
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new ground for relief or constitute good cause for reconsidering the previously rejected claim.” In
re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001).
The State contends that we should not consider Bradford’s PRP because he previously
raised the issues presented in his direct appeal. Bradford’s SAG issues were dismissed when the
appellate court concluded it “raise[d] no possibility that the latter claims are meritorious.”
Bradford, 2014 WL 1212001, at *7. Because it is not clear that the appellate court reviewed
Bradford’s issues on the merits, we elect to do so.
II. JURY INSTRUCTION
Bradford argues that the trial court erred by improperly instructing the jury. PRP at 2-3.
We disagree.
A. Standard of Review
“Jury instructions are sufficient if they are supported by substantial evidence, allow the
parties to argue their theories of the case, and when read as a whole properly inform the jury of the
applicable law.” State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000). “[J]ury instructions
read as a whole must make the relevant legal standards manifestly apparent to the average juror.”
State v. Marquez, 131 Wn. App. 566, 575, 127 P.3d 786 (2006). “A trial court is under no
obligation to give inaccurate or misleading instructions.” State v. Ehrhardt, 167 Wn. App. 934,
939, 276 P.3d 332 (2012).
B. Lesser Degree Instruction
Bradford argues that the trial court erred by failing to instruct the jury on the lesser degree
offense of assault in the second degree. We disagree.
“[F]ailure to give a particular instruction is not error when no request was made for such
an instruction.” State v. Hoffman, 116 Wn.2d 51, 111-12, 804 P.2d 577 (1991); State v. Red, 105
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Wn. App. 62, 65, 18 P.3d 615 (2001). Neither party requested a lesser degree instruction in this
case. The parties accepted the trial court’s instructions. Therefore, the trial court did not err by
failing to instruct the jury on the lesser-degree offense.
C. Initial Aggressor Instruction
Bradford also argues the trial court should not have given the jury an “initial aggressor”
instruction. PRP at 3. He correctly presents the issue as a nonconstitutional issue.
Instructional errors that have been held to be of a constitutional magnitude include directing
a verdict, shifting the burden of proof, incorrectly defining the burden of proof, or failing to require
a unanimous verdict. State v. O’Hara, 167 Wn.2d 91, 100-01, 217 P.3d 756 (2009). Here,
Bradford does not argue and the record does not support that the instruction misstated the law.
Instead, he argues that the evidence did not support giving the instruction. He contends there was
no evidence to indicate he acted first and incited Edwards or Long to react with violence. We
disagree.
Bradford does not show how the jury instruction constituted a fundamental error affecting
his trial. He seems to argue that the jury instruction confused the jury as to whether his actions
were warranted. However, evidence supported the instruction. In considering Bradford’s and
Edwards’s testimony, the jury could have believed that Bradford drew a firearm only in reaction
to the other car’s gun, or it could have believed that Bradford initiated the shooting. The jury could
have believed part of each individual’s story. “We defer to the trier of fact on issues of conflicting
testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v. Arquette, 178
Wn. App. 273, 282, 314 P.3d 426 (2013). The trial court did not err by instructing the jury with
the initial aggressor instruction.
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IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, Bradford argues that he received ineffective assistance of counsel because his
attorney did not ensure the jury was properly instructed and his appellate counsel did not raise the
issues presented in this PRP. We disagree.
A. Standard of Review
To prevail on an ineffective assistance of counsel claim, a petitioner must show that
counsel’s performance was deficient and that the performance prejudiced appellant. Crace, 174
Wn.2d at 840 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)). Performance is deficient if it falls “‘below an objective standard of reasonableness.’”
State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting Strickland, 466 U.S. at 688). To
prove prejudice, petitioner must demonstrate that there is a reasonable probability that but for
counsel’s performance, the outcome of the trial would have been different. Grier, 171 Wn.2d at
34. A petitioner must establish both elements of the test. In re Pers. Restraint of Yates, 177 Wn.2d
1, 35, 296 P.3d 872 (2013).
A defendant alleging ineffective assistance must overcome “a strong presumption that
counsel’s performance was reasonable.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
“When counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance
is not deficient.” Kyllo, 166 Wn.2d at 863.
B. Trial Counsel
Bradford argues that he received ineffective assistance from his trial counsel because his
attorney did not request an assault in the second degree lesser degree instruction and because his
attorney did not object to the “initial aggressor instruction.” PRP at 2-3, 5. He presents the issue
as a constitutional error. We address each contention individually.
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The right to counsel is assured by the Sixth Amendment of the United States Constitution
and article I, section 22 of the Washington State Constitution. We have held that the right to
counsel is meaningless unless it includes the right to effective counsel. In re Detention of T.A.H.-
L, 123 Wn. App 172, 179, 97 P.3d 767 (2004). Bradford’s argument implicates a constitutional
right.
The showing of prejudice required to succeed in an ineffective assistance of counsel claim
is the same in a collateral attack and a direct appeal. Crace, 174 Wn.2d at 845-46. However,
Bradford cannot demonstrate his counsel’s performance was deficient for not proposing a lesser
degree instruction because tactical choices cannot demonstrate ineffective assistance of counsel.
An all-or-nothing approach is a reasonable trial strategy. State v. Carson, 184 Wn.2d 207, 221,
357 P.3d 1064 (2015). Because Bradford cannot show his counsel was deficient for not proposing
a lesser degree instruction, we need not address his argument on prejudice.
Regarding the initial aggressor instruction, Bradford cannot demonstrate prejudice because
he cannot show that an objection would have been sustained. As stated the trial court properly
instructed the jury on initial aggressor. A first aggressor instruction is appropriate where there is
“credible evidence from which a jury can reasonably determine that the defendant provoked the
need to act in self-defense.” State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). The
instructions here allowed both parties to argue their theories of the case and properly informed the
jury of the applicable law. Bradford’s counsel was not deficient in failing to object to a proper
instruction.
C. Appellate Counsel
Related to the above argument, Bradford argues his appellate counsel was ineffective for
failing to raise the issues asserted in his PRP in the direct appeal. We disagree.
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Because Bradford did not receive ineffective assistance of trial counsel, Bradford cannot
successfully demonstrate prejudice based on his appellate counsel’s failure to raise ineffective
assistance of counsel. Bradford’s argument fails.
We deny Bradford’s petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Maxa, A.C.J.
Worswick, J.
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