(concurring) — While I agree with the majority’s ultimate decision to affirm Roy Townsend’s conviction, I disagree that the court erred or that the defendant’s attorney was ineffective.
Because this case comes to us under an ineffective assistance of counsel claim, we need not address at length the issue of whether it is error to advise the jury of the death penalty’s absence in a first degree murder case. Rather, under the traditional ineffective assistance analysis, we must determine whether Townsend’s defense counsel’s performance was deficient because he failed to object to the instruction and, if so, whether Townsend was sufficiently prejudiced thereby. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Unlike the majority, however, I find that prejudice is not even an issue because defense counsel’s performance was simply not deficient.
Scrutiny of counsel’s performance is highly deferential, and there is a strong presumption that defense counsel has adequately assisted his client. Lord, 117 Wn.2d at 883. In fact, to overcome this strong presumption of adequacy, a defendant must demonstrate that his or her attorney’s errors were so egregious that the attorney was “not functioning as the ‘counsel’ guaranteed the defendant by the *850Sixth Amendment.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
More specifically, to establish deficient performance based upon defense counsel’s failure to object, the defendant must show, among other things, that the proposed objection would likely have been sustained. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). Stated another way, a defendant must show that his trial counsel knew, or should have known, that the matter was objectionable. See id. Townsend cannot show such here.
At the time of Townsend’s trial, State v. Murphy, 86 Wn. App. 667, 937 P.2d 1173 (1997), had not been decided. Murphy was not published until the last day of Townsend’s trial—long after defense counsel could have raised a meaningful objection based on that decision. Consequently, without direct precedent supporting an objection, Townsend cannot make the requisite showing that the objection would likely have been sustained. See Saunders, 91 Wn. App. at 578.
Furthermore, even if the timing of Murphy were not an issue, that decision misrepresents the law in Washington. Murphy erroneously relies on State v. Todd, 78 Wn.2d 362, 474 P.2d 542 (1970), to hold that it is error to inform a jury of the death penalty’s absence from a case. Todd, however, does not proscribe any such thing.
Todd merely reiterates the long-standing general rule that the jury’s sole function is to decide the defendant’s guilt or innocence, and that punishment should not be a consideration. Todd, 78 Wn.2d at 375. In Todd, the death penalty was involved, and the instruction in question detailed the sentencing possibilities facing a person convicted of first degree murder, including minimum sentence and parole provisions. Todd, 78 Wn.2d at 372-73. The court found that:
[T]he most serious vice of an instruction of this kind . . . [was that it] places undue emphasis upon one factor which the jury, whether or not it should do so, is bound to take into account. ... By instructing the jury concerning the possible *851minimum sentence which the defendant might serve, the court suggests to the jury that it should give great weight to that possibility in reaching its verdict.
Todd, 78 Wn.2d at 376.
Here, the death penalty was not involved, and merely advising the jury of that fact does not place “undue emphasis” on sentencing considerations. See Todd, 78 Wn.2d at 376. In fact, so advising the jury is likely to have the exact opposite effect. As the Court of Appeals aptly stated:
The prospect of applying the death penalty is a staggering responsibility that many prospective jurors would not welcome. As the trial judge noted, when ordinary citizens hear that someone is charged with first degree murder, they are likely to think of the death penalty. The challenged remarks had a benign purpose—to ease jurors’ anxiety that they might be asked to pronounce a death sentence.
[Further, advising the jury of the death penalty’s absence] should tend to quell the jury’s natural speculation about the death penalty and, thus, to minimize the number of jurors seeking dismissal from jury service, thereby enhancing the array of potential jurors available to try the case.
Townsend, 97 Wn. App. 25, 30-31, 979 P.2d 453 (1999) (citing State ex rel. Schiff v. Madrid, 101 N.M. 153, 679 P.2d 821, 824 (1984)). The Court of Appeals’ view, the view that I would have this court adopt, is supported by the majority of jurisdictions that have dealt with this issue. See People v. Hyde, 166 Cal. App. 3d 463, 212 Cal. Rptr. 440, 450-51 (1985).3
*852The majority also expresses its concern about where to draw the line between those cases that a court may instruct juries on the available penalties and those cases that it may not. This concern is misplaced. First, the court is not instructing the jury on the available penalties. Rather, it is simply informing the jury of what is unavailable.
Second, and more importantly, cases that may involve the death penalty are obviously different. See Burgess v. State, 444 N.E.2d 1193, 1195-96 (Ind. 1983) (the death penalty is “unique and singular”). In first degree murder, a charge that naturally invokes thoughts of the death penalty, absent objection courts should be free to eliminate any improper speculations about the death penalty that could influence the voir dire process.
Townsend argues that juries will somehow become lax in their duties upon learning that the case is noncapital. It is simply untenable that upon learning that the death penalty is not involved, we can reasonably assume that a jury charged with the fate of a murder defendant will not exercise due diligence. See Hyde, 212 Cal. Rptr. at 451 (“[W]e think it impossible to contend that a jury charged with trying a murder defendant in a noncapital case is more likely to unfairly convict because of a diminished ‘sense of responsibility.’ ”). If such were the case, we would then have to assume that jurors would never give a case due consideration unless the death penalty were involved.
Perhaps Townsend believes he is “entitled to foster uncertainty with respect to potential penalties in hopes that one or more jurors conscientiously opposed to capital punishment will be unjustifiably swayed to acquit.” Hyde, 212 Cal. Rptr. at 451.
*853However, a defense attorney may have a legitimate objection to discussing the absence of a death penalty before voir dire. A defense attorney (or even the prosecutor) may wish to inquire of jurors regarding the jurors’ attitudes toward the death penalty. Such answers might help inform the attorney as to whether the juror would be acceptable.
Under such circumstances, the trial court should have discretion to rule after objection, as with other voir dire matters. Any claimed error by the court should be reviewed under an abuse of discretion standard.
In sum, while concurring in the result reached by the majority, I find no error in the trial court’s instruction on the absence of the death penalty in this case. Such an instruction may be of value, as it may clear up any misconceptions and remove any thought of the death penalty from the process. The proper reading of Todd, the weight of foreign authority, and simple common sense should compel this court to reject the approach taken in Murphy and affirm the Court of Appeals’ reasoning in Townsend.
Guy, C.J., and Talmadge and Bridge, JJ., concur with Ireland, J.
As the California Court of Appeal stated in Hyde, 212 Cal. Rptr. at 450-51,
We believe the trial court’s comments [regarding the death penalty’s absence] were proper and prudent. The public commonly understands that in contrast to other criminal cases, the jury in a death penalty murder case must determine penalty as well as guilt. The moral and ethical questions surrounding the use of the death penalty have generated considerable social debate. It is reasonable to anticipate that a significant number of prospective jurors might question their ability to sit on a jury which potentially would have to consider imposition of a sentence of death. Not only did the trial judge’s decision to raise and dispose of the issue at the outset save time and unnecessary strain on potential jurors’ psyches, but it also avoided any *852possibility that a prospective juror’s concern about serving on a death penalty case might skew his answers to voir dire questioning.
Accord State v. Mott, 187 Ariz. 536, 931 P.2d 1046, 1057 (1997); State v. Wild, 266 Mont. 331, 880 P.2d 840, 843-44 (1994); Stewart v. State, 254 Ga. 233, 326 S.E.2d 763, 764 (1985); Burgess v. State, 444 N.E.2d 1193, 1196 (Ind. 1983). But see Commonwealth v. Smallwood, 379 Mass. 878, 401 N.E.2d 802, 805 (1980) (instructing jury of the death penalty’s absence, “however ill-advised, [did not amount] to error of reversible magnitude.”).