State v. Bertrand

3 Wn.3d 116

[No. 100953-4. En Banc.]

Argued October 12, 2023. Decided April 18, 2024.

The State of Washington, Respondent, v. Andrew Wesley Bertrand, Petitioner.

[3 Wn.3d 121]

Yu, J., delivered the opinion of the court, in which González, C.J., and Johnson, Madsen, Owens, Stephens, and Montoya-Lewis, JJ., concurred. Whitener, J., filed a dissenting opinion. Gordon McCloud, J., filed an opinion concurring in the result of the dissent.

Nature of Action: A defendant convicted of two counts of first degree child molestation moved for a new trial, arguing that defense counsel was ineffective for failing to propose lesser included offense instructions on fourth degree assault.

Superior Court: The Superior Court for Mason County, No. 21-1-00106-23, Daniel L. Goodell, J., on April 26, 2022, entered an order denying the defendant’s motion for a new trial, ruling that although defense counsel was deficient, the defendant could not show prejudice.

Supreme Court: Holding that (1) defense counsel was deficient for failing to request lesser included offense instructions on fourth degree assault and (2) the defendant was not prejudiced because a request for lesser included offense instructions would have been denied as there were no facts to support such an instruction, the court affirms

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the trial court in the result and remands the case to the Court of Appeals for further proceedings.

Mick Woynarowski (of Law Office of Mick Woynarowski PLLC), for appellant.

Michael K. Dorcy, Prosecuting Attorney, and Timothy J. Higgs, Deputy, for respondent.

¶1 Yu, J. — In this case, we take the opportunity to clarify the analysis that applies where a defendant asserts ineffective assistance of counsel based on counsel’s failure to propose a lesser included offense instruction. Such claims are subject to the two-pronged test laid out in Strickland v. Washington, which requires the defendant to show (1) "that counsel’s performance was deficient" and (2) "that the deficient performance prejudiced the defense." 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We further clarify that although our precedent recognizes it is "difficult" to satisfy Strickland in this context, there is no per se rule preventing a defendant from doing so. In re Pers. Restraint of Crace, 174 Wn.2d 835, 848, 280 P.3d 1102 (2012). Instead, the difficulty of satisfying Strickland in this context arises from the " ‘presumption of effective assistance’ " inherent in the Strickland test. State v. Grier, 171 Wn.2d 17, 38, 246 P.3d 1260 (2011) (quoting State v. Hassan, 151 Wn. App. 209, 221 n.6, 211 P.3d 441 (2009)).

¶2 Appellant Andrew Bertrand was convicted of two counts of first degree child molestation. He moved for a new trial, arguing counsel was ineffective for failing to propose

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lesser included offense instructions on fourth degree assault. The trial court denied Bertrand’s motion, ruling that although counsel was deficient for purposes of Strickland’s first prong, Bertrand could not show prejudice as required by Strickland’s second prong. The trial court ruled that because the State had met its burden of proving each element of first degree child molestation and the jury convicted Bertrand of those charges, he could not show prejudice. We granted direct review to clarify the applicable analysis.

¶3 We reaffirm that Strickland provides the proper analytical framework. Both prongs of the Strickland test require the defendant to overcome "a strong presumption that the counsel [was] effective." State v. Vazquez, 198 Wn.2d 239, 247, 494 P.3d 424 (2021). First, the deficient performance prong requires courts to "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance" to safeguard "the wide latitude counsel must have in making tactical decisions." Strickland, 466 U.S. at 689. Second, the prejudice prong requires the defendant to overcome a "strong presumption of reliability" in the jury’s verdict by "showing that the decision reached would reasonably likely have been different absent [counsel’s] errors." Id. at 696. There is no rule that failure to propose a lesser included instruction is per se prejudicial.

¶4 Strickland's presumptions can make it difficult for a defendant to prevail in an ineffective assistance claim based on counsel’s failure to propose lesser included offense instructions. Indeed, some confusion has arisen as to whether such a claim can ever succeed in a case where sufficient evidence supports the jury’s verdict. We recognize that our prior cases have not been entirely clear on this point. Therefore, we now clarify that our precedent does not categorically preclude such claims, nor can they be reduced to a sufficiency of the evidence test.

[1] ¶5 The Strickland test is not subject to "mechanical application" because the " ‘ultimate focus of inquiry must be

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on the fundamental fairness of the proceeding whose result is being challenged.’ " State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting Strickland, 466 U.S. at 696). Thus, we generally cannot apply "per se rules" to ineffective assistance claims. State u. Cienfuegos, 144 Wn.2d 222, 229, 25 P.3d 1011 (2001). Nevertheless, the trial court’s ruling in this case suggests a per se rule that a defendant cannot show prejudice if there is sufficient evidence supporting the jury’s verdict. Strickland's prejudice prong does not impose a sufficiency-of-the evidence test. Instead, each claim must be analyzed on "a case by case basis" pursuant to the factintensive inquiry Strickland requires. Id. To prevail, the defendant must demonstrate "a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different." State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

¶6 In this case, Bertrand cannot show he was prejudiced because even if counsel had requested the lesser included instructions, the instructions would have been properly denied because there were no facts to support instructions on fourth degree assault. We therefore affirm the trial court in result on this issue. We remand the remaining issues to the Court of Appeals for further proceedings, without prejudice to either party.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background and jury trial

¶7 C.A. and S.T. met Bertrand when he dated their mothers. The girls were around the same age as Bertrand’s own daughter and all three girls became friends. In January 2021, S.T. told the other two girls that Bertrand had inappropriately touched her. After hearing S.T.’s disclosure, C.A. told the girls that Bertrand had also inappropriately touched her. The following week, C.A.’s and S.T.’s parents reported Bertrand to law enforcement. Bertrand was ulti-

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mately charged with two counts of first degree child molestation, and the case proceeded to a jury trial.

¶8 C.A. testified she had met Bertrand when she was 3 years old, and he began "[s]exually touch[ing] parts of [her] body against [her] will" when she was 3 or 4 years old. 1 Verbatim Rep. of Digitally-Recorded Proc. (VRP) (Dec. 9, 2021) at 341, 345. C.A. testified the unwanted touching continued until she was 10 years old, and Bertrand had touched her in total "[t]en or more" times. Id. at 345. Bertrand would start by scratching her back and would then "put his hand down [her] pants or … up [her] shirt." Id. at 342. The last time this occurred, C.A. was watching a movie at Bertrand’s house with Bertrand and his daughter. When Bertrand’s daughter left the room, Bertrand began to scratch C.A.’s back and "put his hand down [her] pants … [o]nto [her] butt." Id. at 344. Bertrand also touched her upper back and "by [her] breasts." Id.

¶9 S.T. testified she met Bertrand when she was eight years old, and he had molested her at least 10 times. She testified Bertrand would often attempt to cuddle with her, then begin rubbing her lower back and touching "the front of [her] chest" while they watched television on the couch together. Id. at 390. Although S.T. "thought it was an accident at first," S.T. came to believe that it was intentional because Bertrand continued touching her, concentrating "more on [S.T.’s] chest" than other areas, in a way that made her feel "[u]ncomfortable." Id. at 390-91.

¶10 In closing, defense counsel argued the State had not met its burden of proof beyond a reasonable doubt because C.A.’s and S.T.’s testimony was unreliable, highlighting the "lack of evidence" and "inconsistenc[ies]" in the case. 2 VRP (Dec. 14, 2021) at 604. Defense counsel argued the jury could not "infer from the evidence" that the alleged molestations were sexual or unlawful, equating Bertrand’s interactions with C.A. and S.T. to children "playing with [their] dad" by "crawling over" and "wrestling with" him. Id. at 588. The jury found Bertrand guilty of both charges.

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B. Motion for a new trial

¶11 Before sentencing, Bertrand retained new counsel and filed a CrR 7.5 motion for a new trial. Among other claims, Bertrand argued that his trial counsel was ineffective for failing to request lesser included offense instructions on fourth degree assault pursuant to State v. Stevens, 158 Wn.2d 304, 310-11, 143 P.3d 817 (2006)¹ To show deficient performance, Bertrand argued that trial counsel did not make a strategic decision by failing to pursue the fourth degree assault instructions. In support of his motion, Bertrand filed an affidavit from trial counsel, in which counsel stated that his "overall trial strategy was to weaken the claims made by C.A. and S.T. as unreliable on the whole" as well as arguing, "in part, that the State’s testimony failed to prove that any touching rose to the definition of sexual contact." Clerk’s Papers (CP) at 153, 156 (internal quotation marks omitted). Trial counsel further stated that he did not know fourth degree assault was a lesser included offense of child molestation,...