STATE v. FERGUSON (2006)

OPINION PUBLISHED IN PART

 ¶ 1 Jason Stewart Ferguson appeals his second degree murder and first degree assault convictions.   He stabbed two men during a fight outside a Vancouver nightclub and claimed at trial that he acted in self defense.   On appeal, he argues that the trial court erred in refusing to give his proposed self-defense instruction.   Finding no error, we affirm.

FACTS

¶ 2 On the evening of February 28, 2004, Ferguson was at the Bliss nightclub in Vancouver with his girlfriend, Angela Meehan, and his good friend, Jeremy Seley.   The murder victim, Lavell Lindsey, was also at the club that night with his friends L.G. Harvey, Gabriel Hill, Daniel Hahn, and Gregory Dalton.   While at the club, Harvey spoke briefly with Seley, whom he recognized because they had attended the same middle school.   The mood at the club that evening was generally good.

¶ 3 As the nightclub closed in the early morning of February 29, the patrons started toward their vehicles.   Ferguson got into the driver's seat of his Ford Explorer SUV, with Meehan in the passenger seat, Seley in the back seat behind Ferguson, and another passenger behind Meehan.

 ¶ 4 As Ferguson drove through the parking lot, Seley asked him to stop.   Seley then called Harvey over to confront him about jumping Seley in junior high.   Seley remained in the SUV's back seat and exchanged angry words with Harvey and Hill, who were standing outside the SUV. As the argument became more heated, the others in the SUV told Seley to be quiet.   Meehan got out of the passenger side to try to intervene.

¶ 5 As Meehan got out, Lindsey approached the SUV from the front.   Ferguson told Lindsey, “Move, bitch, get out the way [sic].”  4A Report of Proceeding (RP) (10/27/04) at 338.   Lindsey responded, “Man, you don't know me, but if you want some, I'm right here.”   4A RP (10/27/04) at 338.   Lindsey then took off his shirt.   Ferguson took his knife from the console and got out of the SUV. Lindsey started punching Ferguson, and Ferguson responded with the knife.

¶ 6 As Lindsey and Ferguson fought, Seley saw more people approaching and jumped out of the SUV to support Ferguson.   Harvey tackled Seley and both fell into the bushes.

¶ 7 Thinking Lindsey needed help, Dalton came up to attack Ferguson from behind.   Hill saw Ferguson had something shiny in his hand and called to Dalton, “Look out, he's got brass knuckles.”   4B RP (10/27/04) at 399-400.   On hearing this, Ferguson turned around and cut Dalton in the neck with the knife as Dalton was swinging at him.   Dalton fell into the bushes next to Harvey and Seley.

¶ 8 At this point, Lindsey fell backwards, having sustained multiple stab wounds.   Ferguson and Meehan jumped back into the SUV and Ferguson drove away quickly, leaving Seley.   Meehan threw the bloody knife out of the window as the SUV left the Bliss's parking lot.   Ferguson circled around looking for Seley but he had run away.   Ferguson then drove to an AM/PM gas station nearby, where he and Meehan washed the blood off themselves.   Two bouncers from the Bliss followed the SUV to the AM/PM,  noted the SUV's license plate number, and returned to the night club to report it to police.

¶ 9 Lindsey's friends did not see that Ferguson had a knife. After the SUV drove away, Hill noticed Lindsey's shirt and one dress shoe on the ground.   Hill picked them up and put them into Hahn's car, the car in which Lindsey had been riding.   Hill did not realize that Lindsey was badly injured.   Lindsey's friends called 911 when they saw him on the ground bleeding extensively.

¶ 10 Lindsey died from the multiple stab wounds.   At trial, the medical examiner testified that Lindsey received twelve separate knife wounds, including two in the head and six in the back.   One stab penetrated Lindsey's skull, and another severed an artery.   Doctors treated the knife wound to Dalton's neck, which would have been life threatening if not treated.

¶ 11 Meehan wrapped the knife's sheath in her blouse and left it on the SUV's floor.   Police later arrested her at her house and she told them where she had thrown the knife out the window.   Police recovered the knife at the scene, a 4.5 inch fixed blade knife with blood on it.   The blood on the knife was never tested.   The medical examiner testified that the knife recovered was consistent with Lindsey's wounds.

¶ 12 Around 3 a.m., police pulled Ferguson over, took him from his vehicle at gunpoint, and handcuffed him as part of a “felony stop.”   2 RP (10/25/04) at 70-71.   Noticing that he had a wound on his left leg, police transported Ferguson to the hospital in a patrol car.   Ferguson remained in handcuffs during his transport and while doctors treated him at the hospital.   Police seized Ferguson's clothes at the hospital for evidence.

¶ 13 After treatment, police transported Ferguson directly to the Major Crimes Unit, located in a secure building.   Police removed the handcuffs and told Ferguson he was free to leave.   Ferguson was still wearing the hospital gown  At this point.   Without advising Ferguson of his Miranda¹ rights, police interviewed him for approximately one hour.   Once Ferguson admitted that the knife police found at the scene belonged to him, he was arrested.   After placing him under arrest, police read Ferguson his Miranda rights and proceeded to interview him on tape.

¶ 14 Ferguson was charged with second degree murder in Lindsey's death and first degree assault of Dalton.   The second degree murder instructions allowed conviction if the jury found the elements of intentional second degree murder or if the jury found second degree felony murder with second degree assault as the predicate felony.   The jury convicted Ferguson of both first degree assault of Dalton and second degree murder of Lindsey.   The second degree murder verdict was a general verdict that did not specify whether it was based on intentional second degree murder or on felony murder.

ANALYSIS

I. Jury instructions on self-defense

 ¶ 15 At trial, Ferguson proposed Washington Pattern Jury Instruction Number (WPIC) 17.02, defining the force one may use in self-defense in an assault case.   The proposed instruction said in relevant part:

It is a defense to a charge of assault I and assault II that the force used was lawful as defined in this instruction.

The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured ․ in preventing or attempting to prevent an offense against the person and when the force is not more than is necessary.

Clerk's Paper (CP) 86.   Ferguson proposed this instruction for both his charge of first degree assault and his charge of  Second degree murder.   The court used this instruction only for the assault charge.

¶ 16 For the murder charge, the court instead used the State's proposed instruction, based on WPIC 16.02.   That reads in relevant part:

It is a defense to a charge of murder in the second degree that the homicide was justifiable as defined in this instruction.

Homicide is justifiable when committed in the lawful defense of the slayer or any person in the slayer's presence or company when:

(1) The slayer reasonably believed that the person slain, or those who the slayer reasonably believed were acting in concert with the person slain, intended to ․ inflict death or great personal injury;

CP 130, Instr. 19.

¶ 17 Ferguson assigns error, claiming he could lawfully use the knife if he believed only that he was about to be injured and that requiring him to believe that Lindsey was about to inflict death or great personal injury sets his standard of proof too high.   Because the jurors were analyzing the charge of second degree assault as the predicate felony for his felony murder charge, Ferguson argues they should have been instructed on self-defense as it applies to second degree assault.   Ferguson cites to State v. Goodrich, 72 Wash.App. 71, 77, 863 P.2d 599 (1993), an example of a second degree felony murder case in which the underlying crime was second degree assault and the court used WPIC 17.02.

 ¶ 18 We review de novo the trial court's refusal to give an instruction when the refusal is based on a ruling of law.  State v. Walker, 136 Wash.2d 767, 772, 966 P.2d 883 (1998).   In this case, the trial court agreed with the State that because Ferguson used deadly force, “you use the standard of self-defense dealing with how much damage you're allowed to do.”   6 RP (Oct. 29, 2004) at 746.

 ¶ 19 To justify killing in self-defense, the slayer must believe that he or someone else is about to suffer death or  great personal injury (some cases call it great bodily injury or great bodily harm).²  RCW 9A.16.050(1);  State v. Walden, 131 Wash.2d 469, 474, 932 P.2d 1237 (1997);  State v. Churchill, 52 Wash. 210, 223, 100 P. 309 (1909).   Simple assault or an ordinary battery cannot justify taking a human life.  Walker, 136 Wash.2d at 774, 966 P.2d 883.

¶ 20 The Churchill case addressed the issue directly because the defendant in that case, like Ferguson, claimed the jury instruction erroneously required “great bodily harm” instead of simply “bodily harm.”  Churchill, 52 Wash. at 218-19, 100 P. 309.   The court found no error in using the words “great bodily harm,” saying that the defendant's proposal would “give encouragement to the taking of human life upon the merest pretext of danger.”  Churchill, 52 Wash. at 223, 100 P. 309.

¶ 21 More recently, the Washington Supreme Court referred to Churchill while approving a jury instruction that said:

One has the right to use force only to the extent of what appears to be the apparent imminent danger at the time.   However, when there is no reasonable ground for the person attacked ․ to believe that his person is in imminent danger of death or great bodily harm, and it appears to him that only an ordinary battery is all that is intended, he has no right to repel a threatened assault by the use of a deadly weapon in a deadly manner.

Walden, 131 Wash.2d at 475, 932 P.2d 1237.   In that case, the defendant used a deadly weapon to fend off an attack by three unarmed teenagers.   Walden, 131 Wash.2d at 471-72, 932 P.2d 1237.   The Walden court determined that the use of deadly force may have been reasonable despite the victims being unarmed if the defendant reasonably believed that death or  great bodily harm was imminent.  Walden, 131 Wash.2d at 477-78, 932 P.2d 1237;  see also Walker, 136 Wash.2d at 774-75, 966 P.2d 883.

 ¶ 22 In this case, the trial court did not err in giving WPIC 16.02 instead of WPIC 17.02.   Ferguson's actions led to another's death and the jury was properly instructed about the circumstances under which deadly force is lawful.   We hold that WPIC 17.02 can never be given in a felony murder case where assault is the predicate felony because it can never be reasonable to use a deadly weapon in a deadly manner unless the person attacked had reasonable grounds to fear death or great bodily harm.   See Walden, 131 Wash.2d at 475, 932 P.2d 1237.

¶ 23 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Prosecutorial misconduct during closing argument

¶ 24 Ferguson next claims that the prosecutor committed misconduct in rebuttal closing by saying:

Ah, blame it on the cops.   I'll tell ya', I've been doing this for almost thirty years and I hear this blame it on the cops.   Amazing, absolutely amazing.   I hope you realize the difficult job that they have in a situation like that, coming into a scene that they don't know anything about.   But it's amazing that young attorneys can stand in front of you and tell you to blame it on the cops, blame it on their lousy investigations.

Let me give you an example of that.   Gee, why didn't they test the-the knife to determine if there's blood's [sic] on it too?   Well, gosh, let's go ahead and do it.   But, you see, here's what happens.   Then the same young attorney can get up here and say, Well, gee, he had the knife and it's his knife and he had it in the car, and when he's already cut, so therefore it cross-contaminated so it means nothin'.

It cuts both ways, doesn't it?   Okay. Well, go ahead and blame it on the police.   Excuse me, they had the suspect.   They had the murder weapon.   They had the admissions.   What is missing here?

Blood samples not tested.   I don't know, if it walks like a duck and quacks like a duck, I assume that you can say it's-it's a murder, and it's his blood.  (Publishing exhibit to the jury.)

But, you see, the cynicism of this argument is the statement that the cops, police, that they didn't care.   These sworn police officers don't care.   That's what he told you.   That they don't care.

6 RP (Oct. 29, 2004) at 847-48.

¶ 25 Ferguson claims that this constitutes misconduct because the prosecutor vouched for the credibility of law enforcement officers.   Ferguson also claims the prosecutor inappropriately expressed his opinion by personally attacking Ferguson's attorney and belittling what the “young attorney” would stand up and say.   Br. of Appellant at 9-10.   Additionally, Ferguson claims the prosecutor wrongly expressed his personal opinion when he said, “I assume that you can say it's-it's a murder, and it's his blood,” and when he said, “I do agree with one thing [defense counsel] said.   He said ․ Mr. Ferguson got up there and told you a story.   That's what he did.”   6 RP (Oct. 29, 2004) at 848, 850.

¶ 26 To prevail on a prosecutorial misconduct allegation, a defendant must show both improper conduct and prejudicial effect.  State v. Munguia, 107 Wash.App. 328, 336, 26 P.3d 1017 (2001).   Misconduct is prejudicial when there is a substantial likelihood that the misconduct affected the jury's verdict.   State v. Stith, 71 Wash.App. 14, 19, 856 P.2d 415 (1993).  “Allegedly improper arguments should be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.”  Stith, 71 Wash.App. at 19, 856 P.2d 415 (quoting State v. Graham, 59 Wash.App. 418, 428, 798 P.2d 314 (1990)).   The defendant bears the burden of proof on this issue.  Stith, 71 Wash.App. at 19, 856 P.2d 415.

¶ 27 If the defendant does not object to alleged misconduct or request a curative instruction, then reversal is required only if the misconduct was so prejudicial that it could not have been cured with a limiting instruction.   Stith, 71 Wash.App. at 20, 856 P.2d 415.   In closing argument, a prosecutor may comment on a witness's veracity as long as a personal opinion is not expressed and as long as the comments are not intended to incite the jury's passion.  Stith, 71 Wash.App. at 21, 856 P.2d 415.

¶ 28 We believe the prosecutor's remarks were inappropriate in some regards.   The prosecutor asked the jury to find the State's argument more persuasive because the State's attorney had 30 years experience, whereas opposing counsel was a “young attorney.”   This argument is inappropriate because it asks the jury to consider a factor that is clearly irrelevant and injects the personal qualities of the attorneys into the discussion.   Although we consider this argument inappropriate, it was not prejudicial enough to affect the jury's verdict.

¶ 29 In the other portion of the prosecutor's argument that Ferguson finds objectionable, the prosecutor was only responding to the defense counsel's argument that police had not tested the blood on the knife or gathered other evidence at the scene.   The prosecutor did not personally testify to the police officers' veracity.   See Stith, 71 Wash.App. at 21, 856 P.2d 415.   Furthermore, nothing the prosecutor said was particularly inflammatory.   Because Ferguson cannot show unfair prejudice from the prosecutor's arguments, his claim fails.   See Munguia, 107 Wash.App. at 339, 26 P.3d 1017.

III. Ferguson's motion to close the courtroom

¶ 30 Before trial, Ferguson moved to close the courtroom to all but the media, his family and supporters, and the alleged victims' immediate families.   According to the affidavit in support of the motion, a noisy crowd biased against Ferguson packed the courtroom during his arraignment.   Later, a detective with the Clark County Sheriff's office received a phone call in which the caller threatened to kill Ferguson or kill his grandmother if the caller could not find Ferguson.

¶ 31 The record does not contain a ruling on this motion.   The courtroom was probably crowded during trial because twice the judge strongly admonished the spectators to remain silent and to avoid making any noises, gestures, or facial expressions that might influence the jury.

¶ 32 Ferguson claims that his counsel's failure to obtain a ruling on this motion shows deficient performance and prejudice.   Ferguson asks this court to remand the matter to the trial court to perform the weighing test set forth in the case law.   The State argues that the record contains no examples of inappropriate behavior in front of the jury that deprived Ferguson of a fair and impartial trial.

¶ 33 The public and the press have an implicit First Amendment right to a public trial, while the Sixth Amendment explicitly gives the defendant a public trial right.  Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).   The central aim of a criminal proceeding must be to try the accused fairly.  Waller, 467 U.S. at 46, 104 S.Ct. 2210.   The party seeking closure must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.   In the Matter of the Personal Restraint of Orange, 152 Wash.2d 795, 806, 100 P.3d 291 (2004) (citing Waller, 467 U.S. at 48, 104 S.Ct. 2210).

¶ 34 Here, the State is correct that Ferguson does not show on appeal how the spectators prevented him from receiving a fair trial.   Because the public's right of access to a trial is protected absent prejudice to the defendant, Ferguson must at least allege that the open trial somehow prejudiced him.   He has failed to do this and so his claim fails.

IV. Ineffective assistance of counsel

¶ 35 Ferguson claims he received ineffective assistance of counsel because his attorney failed to follow through with his motion to partially close the courtroom and because his attorney failed to object to the prosecutor's comments at closing.

¶ 36 Washington has adopted the Strickland3 test to determine whether a defendant had constitutionally sufficient representation.  State v. Cienfuegos, 144 Wash.2d 222, 226, 25 P.3d 1011 (2001).   First, the defendant must show that counsel's performance was deficient.  Cienfuegos, 144 Wash.2d at 226, 25 P.3d 1011.   This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.  Cienfuegos, 144 Wash.2d at 226-27, 25 P.3d 1011.   Second, the defendant must show that the deficient performance prejudiced him.  Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011.   Ferguson bears the burden of showing that, but for the ineffective assistance, there is a reasonable probability that the outcome at trial would have differed. Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).  “Deficient performance is not shown by matters that go to trial strategy or tactics.”  Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011 (quoting State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996)).

¶ 37 In this case, Ferguson has not shown that either the prosecutor's inappropriate comments or the presence of spectators affected the trial outcome.   Because Ferguson cannot show prejudice, he cannot prove ineffective assistance of counsel under Strickland.

V. Photographic evidence

¶ 38 Ferguson claims that autopsy photos, entered as exhibits 32 through 41 to aid the medical examiner in describing Lindsey's multiple stab wounds, were more prejudicial than probative under ER 403.   He claims that the prosecution should have used an anatomical chart instead.   He claims that his attorney's failure to object to these photos was ineffective assistance of counsel, and the trial court abused its discretion by letting the jury see the photos.

¶ 39 We set out the standard of review for ineffective assistance of counsel in section III. Ferguson bears the burden of showing that his counsel's performance was deficient.  Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011.   However, because Ferguson did not provide the photographic exhibits for our review, he has not met his burden of showing that his counsel's performance was objectively unreasonable or that the trial court erred in admitting the photos.

VI. Suppression of custodial statements

¶ 40 Ferguson brought a pretrial motion to exclude the statements he made to police both before and after he received his Miranda warnings.   The court excluded the statements Ferguson made before he received the warnings, but it ruled that the statements Ferguson made after the police read him his Miranda rights were admissible.   Ferguson claims the court erred in admitting his post-Miranda statements.

¶ 41 Ferguson fails to identify the statements the court improperly admitted.   From our review of the record, we do not see that the State admitted any of Ferguson's statements during its case in chief.   After Ferguson testified, the court allowed the State to introduce his excluded pre-Miranda statements for impeachment purposes.   This is consistent with Washington law.  State v. Neslund, 50 Wash.App. 531, 539, 749 P.2d 725 (1988).

¶ 42 Ferguson has not established that the court improperly admitted any statements.

VII. Evidence of Lindsey's gang affiliations and propensity for violence

¶ 43 Ferguson claims the trial court erred in refusing to admit evidence of Lindsey's gang affiliations.   The trial court found that the term “gang” was more prejudicial than probative because it conjured so much negative imagery.   3 RP (Oct. 26, 2004) at 104.   However, the court allowed testimony about Lindsey's propensity for violence to aid the jury in evaluating who the first aggressor was and whether Ferguson acted in self-defense.   Ferguson also testified at trial that he believed the incident was a gang-related attack and that Lindsey and his friends had weapons.

¶ 44 We review the trial court's admission of evidence for abuse of discretion.  State v. Pirtle, 127 Wash.2d 628, 648, 904 P.2d 245 (1995).   Where the defendant claims he acted in self-defense, evidence of the victim's reputation may be admitted in certain circumstances to show the victim acted in conformity with his or her character.  Munguia, 107 Wash.App. at 335, 26 P.3d 1017.   Reputation evidence can show specifically what threat the defendant might reasonably have perceived when the defendant was aware of the victim's reputation for violence.   See State v. Cloud, 7 Wash.App. 211, 217, 498 P.2d 907 (1972).

¶ 45 Here, the trial court properly exercised its discretion in limiting references to gang affiliation because these references can be overly prejudicial.  ER 403;  see State v. Moran, 119 Wash.App. 197, 219, 81 P.3d 122 (2003), review denied, 151 Wash.2d 1032, 95 P.3d 351 (2004);  State v. Freeman, 118 Wash.App. 365, 380 n. 6, 76 P.3d 732 (2003), aff'd, 153 Wash.2d 765, 108 P.3d 753 (2005).   Gang affiliation, standing alone and without more detailed information about that gang's activities and the victims' participation, would have little evidentiary weight.

¶ 46 By allowing testimony about Lindsey's violent tendencies, Ferguson could argue he had reasonable fears and thus support his self-defense claim.   Ferguson also testified about his belief that the attack was gang related, so the jury could judge his actions in light of that information.

VIII. Motion to dismiss for insufficient evidence

¶ 47 At the close of the State's case in chief, Ferguson moved to dismiss both counts because the evidence was insufficient.   The court denied this motion.   Ferguson claims this was error, saying that the evidence only showed that he acted in self-defense.

¶ 48 The standard for determining whether the evidence was sufficient is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.  State v. Guloy, 104 Wash.2d 412, 417, 705 P.2d 1182 (1985).   An appellate court applies the same standard as the trial court in reviewing a trial court's decision to deny a motion for judgment as a matter of law.  Hizey v. Carpenter, 119 Wash.2d 251, 271-72, 830 P.2d 646 (1992).

¶ 49 In this case, the State provided evidence that Lindsey died from multiple stab wounds delivered with enough force that a rational trier of fact could find they were inflicted intentionally.   Dalton's injury was serious enough that, if the jury found intent, they could find intent to cause grave bodily injury.   Eye-witnesses all identified Ferguson as the one who fought with Lindsey and Dalton.

¶ 50 The State presented sufficient evidence to submit the case to the jury and the trial court did not err in denying Ferguson's motion to dismiss.

IX. Exclusion of evidence from the crime scene

¶ 51 Ferguson claims that all evidence from the crime scene should be suppressed because it was contaminated.   He claims that Hill “gathered up evidence from the crime scene and hid them [sic] in a vehicle.”   SAG at 11.   Ferguson does not specifically identify the evidence that was improperly admitted.   Rather, he seems to imply that police failed to discover potentially exculpatory evidence or evidence that could have supported his self defense claim.   He does not indicate what this potentially exculpatory evidence might have been.

¶ 52 We review the trial court's admission of evidence for abuse of discretion.  Pirtle, 127 Wash.2d at 648, 904 P.2d 245.   Ferguson bears the burden of proving abuse of discretion.  State v. Saunders, 120 Wash.App. 800, 811, 86 P.3d 232 (2004).

¶ 53 The record shows the only evidence admitted was photographic evidence, including photographs of the knife and of the crime scene.   Because Ferguson does not identify the improperly admitted evidence, he fails to meet his burden of showing the trial court erred.

X. Cumulative Error

¶ 54 Ferguson claims the combination of errors at trial requires reversal due to cumulative error.

¶ 55 Ferguson bears the burden of proving cumulative error of sufficient magnitude that retrial is necessary.   See In the Matter of the Personal Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964 (1994).   However, only Ferguson's prosecutorial misconduct claim has any merit.   As we explained above, that error was non-prejudicial.   Because none of Ferguson's other claims have merit, his cumulative error claim fails.

¶ 56 Affirmed.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.   Goodrich, 72 Wash.App. at 74, 863 P.2d 599, is an exception.   In that case, the parties and the trial court apparently agreed to use WPIC 17.02 for a felony murder charge where assault was the predicate felony.   However, the issue of whether WPIC 17.02 was appropriate in that context was not placed before the court of appeals in Goodrich.   Because the issue is before us now, we expressly disapprove of its use at trial where the defendant is facing felony murder charges.

3.   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

PENOYAR, J.