STATE OF WASHINGTON v. CHRISTOPHER WILLIAMS RYHMES (2011)

Background

Christopher Rhymes and Stacy Giosso started dating in February of 2009.   In May of 2009, Rhymes and Giosso attended an afternoon Seattle Mariners baseball game.   At the game, Rhymes and Giosso drank beer.   Toward the end of the baseball game, Giosso became uncomfortable because Rhymes's mood seemed to change.   They left shortly before the game ended.

Accompanied by Giosso, Rhymes drove back to his house.   When they arrived, Giosso needed to use the restroom.   As Giosso exited the restroom, she began asking Rhymes what was wrong.   The next thing she remembered was being punched.   A verbal and physical altercation ensued between the six-foot 205–pound Rhymes and Giosso, who was approximately one foot shorter and 100 pounds lighter than her adversary.   During the altercation, both Rhymes and Giosso were injured.   At some point, Giosso threw a beer bottle in Rhymes's direction.   The altercation ended when Rhymes went to check his injuries in the bathroom and Giosso left Rhymes's house.

When Giosso left, she went to her brother's house for help.   Her brother's wife took Giosso to the hospital.   At the hospital Giosso was treated for her injuries, including a hematoma on her forehead the size of a softball, a hematoma on her left ear, bruising of her chest, back, left hand, and right forearm, and abrasions on her back.   A hospital nurse reported Giosso's pain level as four on a scale of zero to ten, zero indicating no pain and ten being the worst pain.   Giosso received morphine and other prescription pain medication for her injuries.

The next morning, Giosso went to the police station to report the incident.   An officer took photographs of her injuries and then went to speak with Rhymes.   The officer found Rhymes at his home and arrested him for assaulting Giosso the previous evening.   The State charged Rhymes with one count of assault in the third degree and one count of felony harassment.

At trial, Rhymes's testimony supported a self-defense strategy.   Rhymes testified he was the first to go to the restroom at his house and that when he came out, Giosso began a series of physical attacks after reading text messages from another woman on his cell phone.   Rhymes said that on several occasions he grabbed Giosso's arms to stop her punches.   Rhymes explained that during the altercation, he let go of Giosso's arms, and she fell face first onto a baseboard heater.   In response to the question, “Are you punching her at this point?,” Rhymes responded, “I haven't done anything except try to block her, block her punches, grab her arms.”   Rhymes testified that during the altercation Giosso jumped on him, causing both parties to fall near a fireplace.   Rhymes claimed that when they fell, Giosso grabbed a fire poker.   Rhymes explained that he jumped on top of Giosso and successfully made her drop the poker.

Rhymes also testified that Giosso broke a beer bottle over the top of his head and then threatened to stab him with the remainder until he tackled her and she dropped the bottle.   In response to the question, “Did you ever physically, were you afraid of Stacy when she had the beer bottle?,” Rhymes answered, “Yes.” Rhymes explained that during the altercation he repeatedly told Giosso to leave and that after losing the bottle she agreed.

Defense counsel asked Rhymes several questions that required Rhymes to summarize his conduct during the altercation.   In response to the question, “Other than defending yourself when Stacy was coming at you, did you ever initially go after Stacy and hit her or striker her?,” Rhymes answered, “No I did not, mostly just defending myself.”   Similarly, to the question, “In your apartment were you ever the aggressor?,” Rhymes responded, “No.” However, Rhymes agreed that all of Giosso's injuries occurred during their altercation.

In closing argument, defense counsel argued that Rhymes acted in self-defense.

Because she took defense exhibit number 40 [the beer bottle], broke it over the [sic] my client's head.   This could very well be a deadly weapon.   And that fear of this being held (inaudible) at him would give him reasonable fear in defending himself.   Now jury instruction number nine says an assault is a potential touching or striking another person with unlawful force․  When you are reasonably in fear that somebody is coming at you and is going to harm you, you can defend yourself.

During jury deliberations, the jury asked if it could consider fourth degree assault.   The court responded that it could not.   The jury found Rhymes guilty of assault in the third degree and not guilty of felony harassment.   At sentencing, Rhymes said, “I am sorry that this ever had to happen to anybody.   I have never been violent ever.   I have never even been in a fight.   I still consider myself that I was defending myself.”   The court sentenced Rhymes to 90 days of confinement and 12 months of community custody.

Rhymes appeals.

Analysis

Rhymes claims that his attorney provided ineffective assistance of counsel by failing to request a jury instruction on the lesser offense of assault in the fourth degree.   Rhymes argues that because he was entitled to a lesser degree offense instruction but did not receive it, his conviction must be reversed.   Further, Rhymes claims that because the jury asked if it could consider fourth degree assault during its deliberations, there is a probability the outcome of the trial would have been different.

In response, the State contends that because defense counsel's “all or nothing” strategy was a reasonable trial tactic, Rhymes's conviction should be affirmed.   We agree.

We review ineffective assistance of counsel claims de novo.²  To prevail, a defendant must show both deficient performance and resulting prejudice.³  Counsel's performance is deficient if it fell below an objective standard of reasonableness.⁴  Our scrutiny of defense counsel's performance is highly deferential, and we employ a strong presumption of reasonableness.⁵  “To rebut this presumption, the defendant bears the burden of establishing the absence of any ‘conceivable legitimate tactic explaining counsel's performance.’ ” ⁶  To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have been different absent counsel's deficient performance.⁷  Failure on either prong of the test defeats a claim of ineffective assistance of counsel.⁸

“The decision to not request an instruction on a lesser included offense is not ineffective assistance of counsel if it can be characterized as part of a legitimate trial strategy to obtain an acquittal.” ⁹  In State v. Hassan,¹⁰ we held that an “all or nothing” strategy was a legitimate trial tactic because a lesser included offense instruction would have weakened Hassan's claim of innocence.   And in Grier, our Supreme Court rejected an ineffective assistance of counsel claim because “[a]lthough risky, an all or nothing approach was at least conceivably a legitimate strategy to secure an acquittal.” ¹¹  Similar to counsel's “all or nothing” strategy in Grier, Rhymes's defense strategy was a legitimate trial tactic.

The facts of this case demonstrate the legitimacy of defense counsel's trial strategy.   The charge of third degree assault required the State to prove that Rhymes acted with criminal negligence and caused Giosso bodily harm accompanied by substantial pain that extended for a period sufficient to cause considerable suffering.¹²  In contrast, the charge of fourth degree assault would have only required the State to prove Rhymes intentionally touched or struck Giosso in a way that was harmful or offensive.¹³  Rhymes did not contest he intentionally touched Giosso.   Accordingly, if the jury found that Rhymes did not act in self-defense, they would have to convict him of fourth degree assault regardless of the severity of Giosso's injuries.   Defense counsel's decision to proceed with only a third degree assault instruction additionally required the State to prove Rhymes was criminally negligent by causing Giosso bodily harm accompanied by substantial pain that extended for a period sufficient to cause considerable suffering.

From the testimony of the hospital nurse that Giosso's pain level was a four on a scale of zero to ten, a rational juror could have concluded Rhymes inflicted something less than the “substantial pain” required to establish third degree assault.   By proceeding with only a third degree assault instruction requiring “substantial pain,” Rhymes could have been found not guilty despite the jury rejecting his self-defense claim if Giosso's injuries were not sufficiently severe.   Consequently, a lesser degree offense instruction requiring the State to only prove that Rhymes, without self-defense, intentionally struck Giosso would have seriously undermined Rhymes's goal of outright acquittal.   Given these facts, Rhymes has failed to meet his burden of establishing the absence of any “conceivable legitimate tactic explaining counsel's performance.” ¹⁴

Also relevant to the determination is whether the defendant “was aware of the risks of pursuing an all-or-nothing strategy in an effort to obtain an acquittal.” ¹⁵  Although Rhymes did not expressly state on the record that he agreed with counsel's decision to pursue an “all or nothing” strategy, his behavior indicates a determination to obtain outright acquittal.   At trial, Rhymes testified consistent with the self-defense strategy;  he admitted to holding and jumping on Giosso during the altercation, but only in self-defense.   Even after his conviction, Rhymes maintained his absolute innocence, “I still consider myself that I was defending myself.”   Rhymes “cannot have it both ways;  having decided to follow one course at the trial, [he] cannot on appeal now change [his] course and complain that [his] gamble did not pay off.” ¹⁶

Rhymes relies on the decisions of State v. Breitung,¹⁷ State v. Grier,¹⁸ State v. Pittman,¹⁹ and State v. Ward.²⁰ Those decisions, however, employed a three-step deficiency test that our Supreme Court recently rejected in Grier.²¹  To the extent the analysis of those cases depended upon that now-rejected test, they are no longer good law, and we decline to consider them.

Rhymes also cannot establish prejudice.   While the jury asked if it could consider a fourth degree assault instruction, their question provides no evidence that they in fact would have convicted Rhymes of fourth, rather than third, degree assault.   Further, nothing in the record suggests that the jury had any understanding of the elements of fourth degree assault or how they differed from assault in the third degree.   Assuming, as we must, that the jury would not have convicted Rhymes of third degree assault unless the State had met its burden of proof, the availability of a lesser degree assault instruction would not have changed the outcome of Rhymes's trial.²²

In a statement of additional grounds, Rhymes pro se raises several issues, including violations of due process due to perceived bias during the police investigation, unjustified bail, a biased jury comprised of eight female victims who all were victims of domestic violence and four males, a claim of ineffective assistance of counsel for proceeding with trial without the parties' phone records, and judicial bias.

The record demonstrates that the investigating officers did not violate any of Rhymes's substantive or procedural rights.   The police arrested Rhymes at his home without incident and timely read Rhymes his Miranda ²³ rights.   While Rhymes questions the officer's decision not to immediately search his home and collect evidence from the scene, he fails to demonstrate prejudice from this decision.

Rhymes's bail claim is moot as he was convicted as charged.

The record does not support Rhymes's claim that all eight women on the jury were victims of domestic violence.   Instead, it demonstrates that defense counsel successfully excused eight jurors for cause and made no challenges to the final composition of the jury.   Accordingly, we decline to consider this argument.

Neither the record nor the statement of additional grounds provides a possible inference that any phone records would have been material to Rhymes's guilt or innocence regarding the elements of third degree assault.   While the phone records could have been material to the charge of felony harassment, because the jury acquitted Rhymes of that charge, he was not prejudiced.

Finally, our review of the record persuades us that the trial judge acted appropriately throughout the proceedings.

Conclusion

Under the facts presented here, and in light of Grier, counsel's decision to pursue an “all or nothing” strategy was not objectively unreasonable and resulted in no prejudice to Rhymes.   We reject Rhymes's ineffective assistance of counsel claim and other claims and affirm.

WE CONCUR:

FOOTNOTES

FOOTNOTE.  171 Wn.2d 17, 246 P.3d 1260 (2011).In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).Strickland, 466 U.S. at 689;  State v. McFarland, 127 Wn.2d 322, 335–36, 899 P.2d 1251 (1995).State v. Grier, 171 Wn.2d at 42 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).Strickland, 466 U.S. at 697.State v. Hassan, 151 Wn.App. 209, 218, 211 P.3d 441 (2009).151 Wn.App. 209, 221, 211 P.3d 441 (2009) (“On this record, because the only chance for an acquittal was to not request a lesser included instruction, we conclude that the decision to pursue an all-or-nothing strategy was not objectively unreasonable.”).Grier, 171 Wn.2d at 42.See RCW 9A.36.030(1)(f).See RCW 9A.36.041;  11 Washington Practice:  Washington Pattern Jury I nstructions:  Criminal 35.50, at 547 (3d ed.2008).Grier, 171 Wn.2d at 42 (quoting Reichenbach, 153 Wn.2d at 130).Hassan, 151 Wn.App. at 220.State v. Hoffman, 116 Wn.2d 51, 112, 804 P.2d 577 (1991).155 Wn.App. 606, 230 P.3d 614 (2010).150 Wn.App. 619, 208 P.3d 1221 (2009).134 Wn.App. 376, 166 P.3d 720 (2006).125 Wn. App 243, 104 P.3d 670 (2004).Grier,171 Wn.2d at 32 (“[T]he Court of Appeals sharply deviated from the standard for ineffective assistance the United States Supreme Court announced in Strickland.   Today, we reaffirm our adherence to Strickland [and] reject the three-prong test the Court of Appeals used to analyze Grier's claim.”).See Grier,171 Wn.2d at 34 (“ ‘[A] court should presume ․ that the judge or jury acted according to the law.’ ” (alteration in original) (quoting Strickland, 466 U.S. at 694));  Autrey v. State, 700 N.E.2d 1140, 1142 (Ind.1998) (availability of manslaughter would not have affected outcome where jury found defendant guilty of murder beyond reasonable doubt).Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Leach, A.C.J.—Christopher Rhymes appeals his third degree assault conviction, claiming ineffective assistance of counsel for failure to request a lesser degree offense instruction on fourth degree assault.   In light of our Supreme Court's decision in State v. Grier,1 we hold that counsel's decision to pursue an “all or nothing” strategy was a legitimate trial tactic and affirm Rhymes's conviction.