State v. Cienfuegos , 144 Wash. 2d 222 ( 2001 )

Alexander, C.J.

(dissenting) — I disagree with the majority insofar as it concludes that the failure of Guillermo Cienfuegos’s counsel to request a diminished capacity instruction was not, under the circumstances of this case, ineffective assistance of counsel. I, therefore, dissent from its decision to affirm Cienfuegos’s conviction on a charge of first degree escape.

Although the majority concedes that Cienfuegos established that he was entitled to an instruction on his defense of diminished capacity, it holds that he failed to show the existence of a reasonable probability that, but for his counsel’s error in failing to request the instruction, the result of the proceeding would be different. In my view, it was not incumbent on Cienfuegos to establish that the result would probably have been different if the jury instruction to which he was entitled had been given. I say this because, as the majority notes, we have held in State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987), that failure of defense counsel to propose a diminished capacity instruction, where the facts support the giving of such an instruction, deprives the defendant of a fair trial and the case must be retried. In other words, the defective conduct of the attorney is ineffective assistance per se. See also State v. Warden, 133 Wn.2d 559, 564, 947 P.2d 708 (1997) (“Diminished capacity is a mental condition not amounting to insanity which prevents the defendant from possessing the requisite mental state necessary to commit the crime charged. . . . Refusal to give an instruction that prevents the defendant from presenting his theory that a killing was unintentional is reversible error.”).

Even assuming, though, that the failure of Cienfuegos’s counsel to request the diminished capacity instruction was not ineffective assistance per se, it is apparent that defense counsel’s failure prejudiced Cienfuegos’s defense. Thus, counsel provided ineffective assistance under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In that regard, it is my view that Cienfuegos easily meets his burden of showing that but for the ineffective assistance of his counsel, the outcome of the trial probably would have been different.

Jury instructions relating to a defense should be given whenever there is evidence supporting the defense theory. Here, as the majority concedes, there was evidence in the form of a defense expert who testified that because of withdrawal effects Cienfuegos did not have knowledge that he was running away from jail personnel. This was a classic diminished capacity defense and it was really Cienfuegos’s whole case. The jury should, therefore, have been instructed that evidence of a mental disorder may be considered by it in determining whether Cienfuegos had the mental capacity to form the intent to commit the crime of first degree escape,² i.e., that he knew that his actions would result in leaving confinement without permission. State v. Descoteaux, 94 Wn.2d 31, 35, 614 P.2d 179 (1980), overruled on other grounds by State v. Danforth, 97 Wn.2d 255, 257, 643 P.2d 882 (1982). While one can never be certain that the outcome of a trial would have been different if a proper instruction had been given, as it should have been here, I can safely say that Cienfuegos’s failure to receive the instruction completely eliminated any chance he had of establishing the defense.

The majority suggests that the defense of diminished capacity could be argued from the jury instructions that were given and refers us to the standard jury instruction relating to knowledge and intent.³ This instruction is not sufficient because it provides little help to the jury in dealing with the evidence Cienfuegos presented regarding diminished capacity. In that regard, we have said in State v. Griffin, 100 Wn.2d 417, 420, 670 P.2d 265 (1983), that “[generalized instructions on criminal intent are not sufficient to apprise a jury of mental disorders which may diminish a defendant’s capacity to commit a crime.”

The majority also makes the point that the prosecutor and defense counsel “argued extensively about Cienfuegos’s ability to have knowledge or form the requisite intent” and that from this, the jury could have taken into account Cienfuegos’s impairment. Majority at 230. This suggestion that argument by counsel may be considered as an additional instruction on the law is meritless. Indeed, the trial court properly instructed the jury to “[d]isregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.” Clerk’s Papers at 7 (Jury Instruction No. 1).

In sum, by failing to request the jury instruction that Cienfuegos was entitled to receive, defense counsel essentially subtracted from the evidence the testimony of Cienfuegos’s expert regarding diminished capacity. Because Cienfuegos’s entire defense hinged on this testimony, the error was significant and prejudicial. I would reverse Cienfuegos’s conviction and remand for a new trial.

Johnson, Madsen, and Sanders, JJ., concur with Alexander, C.J.

Reconsideration denied August 24, 2001.

2 “Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form _.” 11 Washington Pattern Jury Instructions: Criminal (fill in requisite mental state) 18.20, at 224 (2d ed. 1994).

3 The trial court instructed the jury that:

“A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.

“If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that hé or she acted with knowledge.

“Acting knowingly or with knowledge also is established if a person acts intentionally.” Clerk’s Papers at 14 (Jury Instruction No. 7).