State v. Thomas

Dolliver, J. (dissenting)

The opinion of the Court of Appeals fully answers the majority in this case. Thus, rather than rewrite this excellent analysis, I simply quote from the relevant portion:

To prevail on a claim of ineffective assistance of counsel, a defendant must show, first, that counsel's performance was deficient and, second, that defendant was prejudiced by the deficiency. State v. Sardinia. 42 Wn. App. 533, 713 P.2d 122, review denied, 105 Wn.2d 1013 *233(1986). The first element is met by a showing that counsel's performance fell below an objective standard of reasonableness; the second, by a showing that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different". Sardinia, 42 Wn. App. at 539. Thomas fails to meet these requirements.
As to the expert witness, we will assume arguendo that a lawyer who calls an expert witness is deficient in neglecting to ascertain the witness' qualifications: thus we assume that the first Sardinia element has been satisfied here. There is, however, no showing that it made any difference. First, there simply is no showing that there was an expert who could have offered testimony helpful to Thomas. We will not infer the existence of such a person from a silent record. Second, there is no showing that any expert testimony would have helped. The fact is that Thomas was drunk. Surely the collective experience of a jury is sufficient to apprise the jurors of the effects of drunkenness.
We also conclude that the trial court would have committed no prejudicial error in refusing a [State v.] Sherman [98 Wn.2d 53, 653 P.2d 612 (1982)] instruction had it been offered. Therefore, counsel's failure to offer it did not prejudice Thomas.
Under RCW 46.61.024, the State is required to prove that the defendant drove in a manner "indicating a wanton or wilful disregard for the lives of property of others ..." (Italics ours.) Sherman acknowledged that this mental state element can be inferred from circumstantial evidence. It noted, however, that the inference was rebuttable because the statutory language contemplated proof that the requisite mental state was both objectively manifested and subjectively held. It held that the jury must be instructed that the inference was rebuttable, but that the failure to give such an instruction was harmless if the defendant offered no evidence to rebut the inference. Sherman, 98 Wn.2d at 59-60. Thomas offered no such evidence in this case; therefore, the absence of such instruction did not prejudice her. It follows that she has not satisfied the second Sardinia element with reference to trial counsel's failure to request the instruction.
Our reading of Sherman convinces us that the rebuttal evidence requiring the instruction must consist of an *234affirmative showing that the defendant had a noncriminal mental state (e.g., her throttle stuck; she thought the police were robbers, etc.). Thomas offered no evidence to show that she had an innocent mental state. Instead, she employed a diminished capacity defense, not in an attempt to show that she had an innocent mental state, but that she had no mental state at all.

State v. Thomas, 46 Wn. App. 723, 726-28, 732 P.2d 171 (1987).

Neither State v. Coates, 107 Wn.2d 882, 735 P.2d 64 (1987) nor State v. Parker, 102 Wn.2d 161, 683 P.2d 189 (1984) requires a Sherman instruction where, as here, Thomas could present no evidence to rebut the inference from circumstantial evidence that she drove with wanton and willful disregard since she had already stated during her trial she could not remember the events at issue. This being the case it, of course, is impossible for the defendant to present rebuttal testimony as to the subjective element of the crime.

While I do not quarrel with the observation of the majority that the performance of trial counsel was deficient, defendant has not shown the errors of counsel were of such a nature as to deprive her of a fair trial. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

I dissent.

Andersen, Callow, and Durham, JJ., concur with Dol-LIVER, J.

Reconsideration denied November 24, 1987.