Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2051946-1-II%20Published%20Opinion.pdf ↗

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reasonable. Id. Defense counsel’s conduct is not deficient if it can be characterized as legitimate

trial strategy or tactics. Id. To rebut the strong presumption that counsel’s performance was

effective, “the defendant bears the burden of establishing the absence of any ‘conceivable

legitimate tactic explaining counsel’s performance.’ ” State v. Grier, 171 Wn.2d 17, 42, 246

P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

Where counsel’s failure to request a particular jury instruction is the basis for a claim of

ineffective assistance, the defendant must show he or she “was entitled to the instruction,

counsel’s performance was deficient in failing to request it, and the failure to request the

instruction caused prejudice.” State v. Classen, 4 Wn. App. 2d 520, 540, 422 P.3d 489 (2018).

2. Failure to Request Limiting Instruction on James’s Prior Inconsistent Statements

As discussed above, a witness may be impeached with a prior out-of-court statement of a

material fact that is inconsistent with his or her testimony in court, even if such a statement

would otherwise be inadmissible as hearsay. ER 613; Clinkenbeard, 130 Wn. App. at 569. If

the witness denies the inconsistent statement, then extrinsic evidence of the statement is

admissible for purposes of impeachment. ER 613(b). Where prior inconsistent statements are

admitted as impeachment evidence, an instruction cautioning the jury to limit its consideration of

the statements to their intended purpose is proper. State v. Johnson, 40 Wn. App. 371, 377, 699

P.2d 221 (1985).

But here, Smith cannot show he was entitled to a limiting instruction on James’s prior

inconsistent statements because the statements were never admitted into evidence. When the