*617¶40 (dissenting) — Tyler Gassman was convicted of robbery, two assaults, and two drive-by shootings, and sentenced to more than 25 years. His counsel’s1 failure to pursue exculpatory testimony from Anthony Kongchunji constituted deficient performance and prejudiced Mr. Gassman. I, therefore, dissent from the majority. I would vacate Mr. Gassman’s convictions and remand for a new trial.
Kulik, C.J.¶41 The test for ineffective assistance is well established and requires the defendant to show that “(1) defense counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel’s deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Deficient Performance
¶42 The reasonableness of counsel’s representation is viewed in light of all of the circumstances. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). There is a strong presumption that counsel’s representation was effective. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994) (quoting Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985)). Generally, the decision to call a particular witness is presumed to be a matter of legitimate trial tactics. In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004). However, this presumption can be overcome by showing that counsel failed to investigate or subpoena a necessary witness. Id.
¶43 Our Supreme Court has recently reaffirmed that “a criminal defendant can rebut the presumption of reasonable performance by demonstrating that ‘there is no conceivable legitimate tactic explaining counsel’s perfor*618manee.’ ” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260, 1269 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). Significantly, Grier also recognizes that “[n]ot all strategies or tactics on the part of defense counsel are immune from attack.” Id. at 33-34. “ ‘The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.’ ” Id. at 34. (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000)).
¶44 Here, defense counsel stopped pursuing Mr. Kongchunji’s testimony when Mr. Kongchunji’s counsel denied access to him. The Ninth Circuit Court of Appeals has repeatedly found similar failures to adequately investigate and present known exculpatory evidence at trial to constitute deficient and prejudicial performance by counsel. See, e.g., Lord v. Wood, 184 F.3d 1083, 1096 (9th Cir. 1999) (finding deficient performance and prejudice where “trial counsel had at their fingertips information that could have undermined the prosecution’s case, yet chose not to develop this evidence and use it at trial”); Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999) (“A lawyer who fails adequately to investigate, and to introduce into evidence, [information] that demonstrate [s] his client’s factual innocence, or that raise [s] sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance.”).
¶45 At a posttrial hearing, the trial court pointed out that defense counsel could have used due diligence to at least attempt to compel Mr. Kongchunji’s testimony. This followed defense counsel’s submitting the letter and declaration of Mr. Kongchunji. The letter stated, in part:
I found out that Paul [Statler], Tyler [Gassman], and Robert [Larson] lost their recent trial and I’m stunned. I don’t see how the jury could believe Matthew [Dunham] at all because I’ve read his statement^] and they are all lies.
I thought that I should let you know that Paul, Tyler, and Robert were not involved with any of the alleged incidents and the reason I know this is because I was involved.
*619Clerk’s Papers (CP) at 380 (emphasis added). Likewise, when testifying in Mr. Statler’s second trial, Mr. Kongchunji stated that he committed the Dishman robbery with the “[s]ame people I always go rob people with; Larry, Nick, Matt.” CP at 486 (emphasis added). Clearly, this testimony refers to Larry Dunham, Nicholas Smith, and Matthew Dunham, codefendants in other robberies. Mr. Kongchunji possessed crucial exculpatory evidence. His testimony was necessary to ensure that Mr. Gassman received a fair trial.
¶46 The majority concludes that defense counsel’s failure to call Mr. Kongchunji as a witness at trial was a matter of trial tactics. Accordingly, the majority states, “Mr. Kongchunji was an unpredictable witness with varying statements; the decision not to compel his testimony may have been tactical.” Majority at 612.
¶47 But this is not the issue. Defense counsel had already made the tactical decision to call Mr. Kongchunji; what he lacked was the legal knowledge and skills to secure his testimony. Stated differently, he was apparently unaware of the procedures available to him to compel Mr. Kongchunji’s testimony.
¶48 Defense counsel admitted that he did not interview or call Mr. Kongchunji to testify because he believed that “Mr. Kongchunji’s testimony became unavailable to me by operation of attorney-client privilege and the Constitutional Rights of Mr. Kongchunji regardless of the level of diligence employed in seeking out his testimony.”2 CP at 376.
¶49 Defense counsel knew that Mr. Kongchunji possessed crucial exculpatory evidence, yet he never asked the court for leave to conduct an interview or to rule on whether Mr. Kongchunji’s testimony would have received Fifth Amendment protection. Instead, he believed that Mr. Kongchunji was unavailable if his counsel said he was. As a result, it is not possible to know whether or to what extent *620Mr. Kongchunji would have been excused from testifying at trial.3
¶50 The State also contended the reason defense counsel made the decision not to call Mr. Kongchunji was a matter of trial tactics. But no competent attorney after having learned the full extent of Mr. Kongchunji’s testimony would have failed to put him on the stand, especially given the State’s reliance on a witness no more credible than Mr. Kongchunji. Counsel’s failure to adequately investigate and call a witness purporting to have actual knowledge of Mr. Gassman’s innocence was unreasonable in this case and, therefore, deficient.
Prejudice
¶51 To demonstrate prejudice, Mr. Gassman must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Mr. Gassman “need not show that counsel’s deficient conduct more likely than not altered the outcome in the casef Strickland, 466 U.S. at 693.4
*621152 Mr. Kongchunji had a powerful incentive to implicate Mr. Gassman prior to receiving a 14-year prison term for his own admitted involvement in this crime and the related robberies; namely, a desire to avoid an even more severe sentence. With this incentive exhausted, Mr. Kongchunji had no discernable motive to continue falsifying information. To the contrary, Mr. Kongchunji no doubt weighed considerable disincentives prior to coming forward, including criminal liability for perjury or similar crimes, as well as implicating Larry Dunham and Nicholas Smith in another robbery. That Mr. Kongchunji would be willing to take such risks without perceivable reward strongly suggests that his testimony would be credible.
¶53 To say that Mr. Kongchunji’s testimony is necessary understates its importance. The State secured a conviction in this matter based solely upon Matthew Dunham’s uncorroborated testimony. Detective William Francis testified that Matthew Dunham’s statement was the only evidence police had against Mr. Gassman. Mr. Kongchunji’s letter and subsequent testimony in Mr. Statler’s second trial not only exculpate Mr. Gassman in respect to the BergerJeffries robbery, but also explain how and why Mr. Gassman became implicated by Matthew Dunham and Mr. Kongchunji in the first place. This evidence also has proved cogency. Mr. Statler was acquitted following a subsequent trial alleging his involvement in the related Dishman robbery after Mr. Kongchunji testified to its participants. There can be no doubt that Mr. Kongchunji’s testimony was necessary here.
¶54 Focusing, as I am required to do, “on the fundamental fairness of the proceeding whose result is being challenged,”* 5 I conclude that counsel’s deficient performance prejudiced Mr. Gassman to an extent that undermines confidence in the outcome of his trial and creates a serious likelihood that justice has not been done.
*622¶55 Accordingly, I respectfully dissent from the majority’s conclusion that Mr. Gassman received effective assistance of counsel. I would reverse Mr. Gassman’s convictions and remand for a new trial.
Review denied at 172 Wn.2d 1002 (2011).
Appellate counsel did not serve as trial counsel.
The Rules of Professional Conduct permit counsel to contact a represented witness in such a situation after obtaining permission from the court. RPC 4.2.
Had Mr. Kongchunji been excused from testifying by the trial court, counsel would have then preserved the unavailability of this testimony for purposes of his new trial motion.
The majority appears to apply a heightened prejudice standard when reviewing Mr. Gassman’s ineffective assistance claim when it writes that “[w]ithout this showing [that the outcome of his trial would probably have been different], Mr. Gassman cannot establish prejudice.” Majority at 612. The Strickland Court noted that the showing of prejudice that must be made under the newly discovered evidence standard is significantly higher than the showing that must be made under an ineffective assistance claim. Strickland, 466 U.S. at 694 (“The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present. . . . An ineffective assistance claim asserts the absence of one of the crucial assurances *621that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower.”).
Strickland, 466 U.S. at 696.