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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No. 51946-1-II

State attempted to impeach James with the statements in his guilty plea statement, he denied that

the statements were his and the plea statement itself was never entered into evidence. Therefore,

we hold that Smith’s ineffective assistance of counsel claim fails because the trial court would

not have given a limiting instruction even if defense counsel had requested one.

3. Failure to Request Limiting Instruction on Evidence of James’s Crimes

ER 404(b) prohibits a court from admitting “[e]vidence of other crimes, wrongs, or acts

. . . to prove the character of a person in order to show action in conformity therewith.” But such

evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). If

evidence of prior crimes, wrongs, or acts is admitted for a proper purpose, the defendant is

entitled to request and receive a limiting instruction. State v. Gresham, 173 Wn.2d 405, 423, 269

P.3d 207 (2012).

However, courts generally presume that defense counsel’s choice not to request a limiting

instruction was a tactical decision to avoid drawing further attention to the evidence. State v.

Dow, 162 Wn. App. 324, 335, 253 P.3d 476 (2011). Therefore, the burden is on the defendant to

rebut this presumption. State v. Yarbrough, 151 Wn. App. 66, 90-91, 210 P.3d 1029 (2009).

Here, Smith’s counsel may have decided to forgo a limiting instruction to avoid

reemphasizing James’s prior bad acts. Because defense counsel’s failure to request a limiting

instruction may have been a legitimate trial tactic, Smith does not show that his trial counsel’s