IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73813-5-1
Respondent,
DIVISION ONE CD
v.
CO
UNPUBLISHED OPINION
3>-
SHAUN WEBB,
Appellant. FILED: November 28, 2016 JL
Trickey, A.C.J. — Shaun Webb appeals his conviction for custodial assault.
He argues that the trial court erroneously granted the State's motion in limine
barring evidence of his mental illness, thereby precluding him from presenting a
defense. Because his counsel did not raise a diminished capacity defense, we
hold that barring evidence of his mental illness did not interfere with his right to
present a defense. Webb also argues that his trial counsel failed to provide
effective representation by not raising the defense of diminished capacity. The
record is insufficient to find ineffective assistance of counsel, and we affirm.
FACTS
Webb is an inmate at the Washington State Department of Corrections
Monroe Correctional Complex. He resides in the Special Offender Unit, which is
reserved for inmates with diagnosed mental health conditions and other behavioral
difficulties. On May 14, 2014, Webb met with Alicia St. John, his mental health
counselor. The meeting took place in the Correctional Complex's program room,
and Sergeant Dennis Bennett accompanied Webb.
During the meeting, Webb became agitated. Sergeant Bennett repeatedly
ordered Webb to return to his cell. St. John was instructed to leave the program
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room and Sergeant Bennett issued a distress signal for the Quick Response Strike
Team, who responded rapidly.
Sergeant Bennett ordered Webb to kneel down, which Webb refused to do.
Sergeant Bennett grabbed Webb's right arm, which Webb pulled away. Webb
closed his hand into a fist, and punched Sergeant Bennett in his temple. Multiple
correctional officers tackled Webb, restrained him, and escorted him to
segregation.
Webb was charged with one count of custodial assault against Sergeant
Bennett.
Prior to trial, the State moved in limine to exclude evidence related to
Webb's mental health diagnoses or conditions. Webb stated that he was only
raising a general denial defense, not one based on diminished capacity.
The trial court granted the State's motion in limine, reasoning that Webb's
mental condition was not relevant to an element of custodial assault if a defense
of diminished capacity was not raised.
The jury convicted Webb of custodial assault. He appeals.
ANALYSIS
Motion in Limine
Webb argues that the trial court deprived him of his constitutional right to
present a defense when it granted the State's motion in limine to exclude evidence
relevant to his mental illness. We disagree.
"The right of an accused in a criminal trial to due process is, in essence,
the right to a fair opportunity to defend against the State's accusations.'" State v.
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Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting Chambers v.
Mississippi. 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). This
encompasses a defendant's right to an opportunity to be heard in his defense,
including the rights to confront and cross-examine witnesses against him and offer
testimony. State v. Darden. 145 Wn.2d 612, 620, 41 P.3d 1189 (2002) (citing
Washington v. Texas. 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L Ed. 2d 1019 (1967)).
This right is not absolute, and defendants do not have a right to have
irrelevant evidence admitted. Darden, 146 Wn.2d at 624; ER 402. But if evidence
is relevant, it must be admitted unless the State can show that the evidence is so
prejudicial that it would disrupt the fairness of the fact-finding process. Darden,
145Wn.2dat622.
"A person is guilty of custodial assault ifthat person is not guiltyof an assault
in the first or second degree and where the person ... [ajssaults a full or part-time
staff member or volunteer ... at any adult corrections institution or local adult
detention facilities who was performing official duties at the time of the assault."
RCW 9A.36.100(1)(b). Washington courts apply common law definitions of the
elements of "assault." State v. Aumick, 73 Wn. App. 379, 382, 869 P.2d 421
(1994). An essential element of assault is the specific intent either to create
apprehension of bodily harm or to cause bodily harm. State v. Bvrd, 125 Wn.2d
707, 713, 887 P.2d 396 (1995).
A defendant may raise the defense of diminished capacity to argue that he
or she lacked the ability to form a specific intent due to a mental disorder not
amounting to insanity. State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860 (1973).
No. 73813-5-1/4
A decision to admit or exclude evidence lies within the sound discretion of
the trial court. State v. Neal. 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). A court
"necessarily abuses its discretion by denying a criminal defendant's constitutional
rights." State v. Perez. 137 Wn. App. 97, 105, 151 P.3d 249 (2007). This court
reviews a claim of denial of constitutional rights de novo. Brown v. State, 155
Wn.2d 254, 261,119 P.3d 341 (2005). Therefore, this court reviews Webb's claim
of denial of his Sixth Amendment rights de novo. State v. Iniquez, 167 Wn.2d 273,
280-81, 217 P.3d 768 (2009).
Webb argued that the officers' knowledge of his mental status was relevant
to show the officers' motivation and bias in their actions toward him. Webb argued
that the officers knew of his mental illness, and the evidence would be relevant to
showing the jury the context of the incident. In addition, Webb argued it would be
relevant in terms of cross-examining the officers on their actions toward Webb.
Webb specifically stated that he was not planning to offer evidence of his mental
condition for the purpose of proving the bias of the State's witnesses.
These arguments are insufficient to show that evidence of Webb's mental
status is relevant to his charge of custodial assault absent a defense of diminished
capacity. Webb was not offering evidence of his mental status to show that one
the elements of custodial assault had not been met. He was also not offering it to
show that the officers would be biased in their testimony against him. Rather, it
was being offered to show the officers' actions toward Webb. Because evidence
of Webb's mental status was not being offered to show that the elements of
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custodial assault had not been met or that the officers may have been biased
against him in their testimony at trial, the evidence was not relevant.
On appeal, Webb argues that his mental illness was relevant to his
diminished capacity. A defendant may raise the defense of diminished capacity to
argue that he or she lacked the ability to form a specific intent due to a mental
disorder not amounting to insanity. Ferrick. 81 Wn.2d at 944. A defendant must
produce expert testimony in support of a diminished capacity defense. State v.
Atsbeha. 142 Wn.2d 904, 914, 16 P.3d 626 (2001). A witness may be qualified as
an expert by knowledge, skill, experience, training, or education. ER 702. The
defendant must disclose the identities and statements of those he intends to call
as witnesses, the general nature of the defense raised, and a list of expert
witnesses and the content of their testimony. CrR 4.7(b)(1), (b)(2)(xiv), (g).
Washington courts do not consider issues raised for the first time on appeal unless
it is a manifest error affecting a constitutional right. RAP 2.5(a)(3).
Prior to trial, Webb stated that he was raising a general denial defense, not
one based on diminished capacity. This was before the trial court had ruled on the
State's motion in limine. Webb was not precluded from raising the defense
because of the court's granting of the motion in limine; he had already decided to
not raise it. The trial court's granting of the motion did not prevent Webb from
presenting a defense.
Webb also failed to produce an expert witness to corroborate a defense of
diminished capacity, but argues on appeal that his mental health counselor, St.
John, would have qualified. At trial, Webb offered St. John as a defense witness
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to testify generally about his mental health status. Webb did not provide any
information to qualify St. John as an expert witness. Webb's arguments on appeal
that St. John was an expert witness who could testify as to his ability to form intent
do not remedy trial counsel's failure to raise this issue below.
By not raising a diminished capacitydefense, Webb did not put the effectof
his mental status on his ability to form the requisite intent into issue. The trial court
reasoned that, without a diminished capacity defense, Webb's mental status was
irrelevant to showing that an assault had occurred. We agree.
Ineffective Assistance of Counsel
Webb argues that he was denied effective assistance of counsel when his
trial counsel failed to pursue a diminished capacitydefense. The record beforethe
court is insufficient to sustain a finding of ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that "(1) defense counsel's representation was deficient in that it fell
below an objective standard of reasonableness and (2) the deficient performance
prejudiced the defendant." State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916
(2009); Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Legitimate trial strategy cannot serve as the basis for a claim of
ineffective assistance of counsel. State v. Aho. 137 Wn.2d 736, 745-46, 975 P.2d
512 (1999). An appellate court presumes that the defendant was properly
represented and that performance was not deficient. State v. Lord, 117 Wn.2d
829, 883, 822 P.2d 177 (1991). Prejudice results when there is a reasonable
probability that, but for counsel's errors, the result of the trial would have been
No. 73813-5-1/7
different. State v. Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If either
part of the test is not satisfied, the inquiry ends. Lord, 117 Wn.2d at 883-84; State
v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).
Where a claim of ineffective assistance of counsel is brought on direct
appeal, the reviewing court will not consider matters outside the trial record. State
v. Crane, 116Wn.2d315, 335, 804 P.2d 10. cert, denied, 501 U.S. 1237, 111 S.
Ct. 2867, 115 L. Ed. 2d 1033 (1991); accord State v. Stockton, 97 Wn.2d 528, 530,
647 P.2d 21 (1982) (matters referred to in the briefing but not included in the record
cannot be considered on appeal). The burden is on the defendant alleging
ineffective assistance of counsel to show deficient representation based on the
record established in the proceedings below. State v. McFarland, 127 Wn.2d 332,
335, 899P.2d 1251 (1995).
Several cases have found ineffective assistance of counsel in the context
of a failure to raise a defense. However, these cases involved instances where
significant evidence in the record supported a defense theory that trial counsel did
not adequately pursue. See State v. Cienfueqos. 144 Wn.2d 222, 225, 25 P.3d
1011 (2001) (defendant's impairment due to withdrawal symptoms and cognitive
disorder supported by expert testimony); In re Pers. Restraint of Humbert, 138 Wn.
App. 924, 928-29, 158 P.3d 1282 (2007) (defendant's testimony supported
defense of reasonable belief that other person was not mentally incapacitated to
attempted rape); State v. Powell, 150 Wn. App. 139, 154-56, 206 P.3d 703 (2009)
(testimony of defendant, witness, and victim supported defense of reasonable
belief that other person was not mentally incapacitated to attempted rape);
No. 73813-5-1/8
Thomas, 109 Wn.2d at 227-28 (defense theory of the case was that the defendant
was too intoxicated to form the requisite intent, but counsel did not request a
diminished capacity instruction or make the subjectivity of the required intent clear
despite introduction of facts supporting the instructions); State v. Tilton, 149 Wn.2d
775, 784, 72 P.3d 735 (2003) (despite incomplete record, sufficient evidence
submitted during trial and references during sentencing hearing to expert opinions
supporting unpursued defense theory to merit new trial).
A claim of ineffective assistance of counsel presents a mixed question of
fact and law and is reviewed de novo. In re Pers. Restraint of Fleming, 142 Wn.2d
853,865, 16P.3d610(2001).
Here, the record is insufficient to support a finding of ineffective assistance
of counsel. Webb's trial counsel was aware of Webb's mental illness diagnoses.
But there is no evidence in the record explaining how these diagnoses would have
been related to a diminished capacity defense. Webb did not produce any expert
testimony or affidavits to show that his mental illness affected his ability to form the
intent required for custodial assault. The record does not disclose the reason why
Webb's trial counsel elected to not pursue a diminished capacity defense, and we
cannot evaluate whether this decision fell within the range of acceptable
representation.
We disagree with the State's position that the record is complete and
Webb's testimony at trial is sufficient to find that he did not suffer from diminished
capacity. We are not in a position to evaluate Webb's mental state at the time of
the incident. The trial court excluded evidence of Webb's mental health status, no
8
No. 73813-5-1/9
testimony or affidavits concerning Webb's mental condition were submitted, and
Webb's trial testimony is not a sufficient basis for the court to evaluate his
diminished capacity.
We affirm.
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WE CONCUR:
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