State v. Humphries ( 2014 )

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IN CLERKS OFFICE
SUPREME COURT, STAlE OF VINIINCJTQN l
DATE OCT 2 3 2014
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) -- - - -
) No. 88234-7
Respondent, )
)
v. ) EnBanc
)
MARIO HUMPHRIES, )
)
Petitioner. )
) Filed OCT 2 3 2014
C. JOHNSON, J.-This case concerns whether an attorney can stipulate to
an element of a charged crime over his client's express objection and whether, in
this case, any error was waived by the defendant. In addition, we must decide
whether defense counsel's failure to request a limiting instruction constituted
(; ..
ineffective assistance of counsel. The Court of Appeals, in a two to one opinion,
affirmed the defendant's convictions for assault in the second degree with a
·firearm enhancement and first degree unlawful possession of a firearm. We reverse
the Court of Appeals ·as to the unlawful possession of a firearm conviction and
affirm as to the assault conviction. 1
1
It is unclear whether and in what context Humphries is challenging his second degree
assault conviction. The Court of Appeals stated that Humphries did not challenge the assault
State v. Humphries (Mario), No. 88234-7
FACTS AND PROCEDURAL HISTORY
In the early morning hours of February 7, 2010, Officer David Ellithorpe
was patrolling the streets of Seattle in a marked police cruiser. At 1:00 a.m.,
Ellithorpe saw two men emerge from an alley. One of the men raised his hand and
pointed at the officer; Ellithorpe heard a gunshot and saw a muzzle flash in the
man's hand. Less than two minutes later, after Ellithorpe had radioed in the
incident, another officer apprehended two men. Ellithorpe immediately recognized
both men, one of whom was the petitioner, Mario Humphries. The officers arrested
Humphries and searched the area but failed to recover a gun or any shell casings.
The State charged Humphries with second and third degree assault, as well
as first degree unlawful possession of a firearm based on multiple juvenile
convictions for robbery that rendered him ineligible to possess a firearm. On the
first day of trial, the parties informed the court that they had agreed to stipulate that
Humphries had been convicted of a "serious offense." Defense counsel indicated
he did not want the jury to hear about the underlying convictions but informed the
court that Humphries disagreed with the stipulation. Both the defense attorney and
the trial judge discussed the matter and agreed that stipulating to an element was a
conviction, but it appears that he is challenging it in the context of his ineffective assistance of
counsel claim. State v. Humphries, 170 Wash. App. 777, 796, 285 P.3d 917 (2012), review
granted, 177 Wash. 2d 1007, 300 P.3d 416 (2013).
2
State v. Humphries (Mario), No. 88234-7
tactical decision that did not require the defendant's consent. 2 Accordingly, just
before the State rested, the stipulation was read to the jury. The stipulation
conceded that Humphries "had previously been convicted of a serious offense,"
that he "had previously received written notice that he was ineligible to possess a
firearm," and that he "knew that he could not possess a firearm." Clerk's Papers at
12. The stipulation had been signed by the defense attorney and prosecutor but not
by Humphries. No limiting instruction was given or requested to accompany the
stipulation. After both sides had presented their cases and before the jury began
deliberations, defense counsel indicated that Humphries would sign the stipulation,
which he did. The stipulation was filed with the court, but is unclear whether the
stipulation was also admitted into evidence.
The jury found Humphries guilty of all three crimes and a firearm
enhancement. At sentencing, Humphries's attorney moved for a new trial based on
ineffective assistance of counsel, stating that he "should have asked the Court to
enter into a limi.ting instruction/' but the trial court denied the motion. Verbatim
2
Specifically, the following exchange occurred between the court and defense counsel:
"[DEFENSE COUNSEL]: I had a long discussion with Mr. Humphries trying to explain
the defense strategy, not wanting that to come in.
"He unfortunately doesn't see that. However, I don't think I need his consent when it
comes to defense strategy for him to be in agreement with me (inaudible) stipulation so -
"[THE COURT]: That's correct. So you are agreeing to the stipulation?
"[DEFENSE COUNSEL]: Yes, your Honor."
Tr. of Proceedings (Oct. 12, 201 0) at 5-6.
3
State v. Humphries (Mario), No. 88234-7
Report ofProceedings(Jan. 6, 2011) at 3. The court vacated the third degree
assault conviction and imposed 106 months of confinement: 70 months for second
degree assault with an additional 36 months for a firearm enhancement and 75
months for unlawful possession of a firearm (to run concurrently).
On appeal, Humphries argued that his constitutional rights were violated
when the stipulation was read to the jury over his express objection and that he
received ineffective assistance of counsel. The Court of Appeals issued a split
decision affirming the convictions. The majority opinion did not address the
validity of the stipulation but rather held that Humphries had either waived or
abandoned the issue in eventually signing the stipulation. State v. Humphries, 170
\Vn. App. 777, 798, 285 P.3d 917 (2012). The dissenting opinion argued that entry
of the stipulation over Humphries's express objection violated the Fifth and Sixth
Amendments to the United States Constitution. Humphries, 170 Wash. App. at 801-
02 (Dwyer, J., dissenting). Humphries sought, and we granted, discretionary
review. State v. Humphries, 177 Wash. 2d 1007, 300 P.3d 416 (2013).
ANALYSIS
a. Propriety of a Stipulation over the Defendant's Objection
Humphries argues that the decision to enter a stipulation at trial is
exclusively within the defendant's discretion. Accordingly, Humphries argues that
before a stipulation can be entered, a court must engage in a colloquy with the
4
State v. Humphries (Mario), No. 88234-7
defendant to ensure that the defendant is entering the stipulation lmowingly and
voluntarily. The State argues that whether to enter a stipulation is a strategic
decision to be made by counsel and that the defendant's express objection is
irrelevant. This is an issue of first impression in Washington. We hold that
although the decision to stipulate an element of the crime does not generally
require a colloquy on the record with the defendant, such a decision may not be
1 made over the defendant's known and express objection.
The decision to stipulate to an element implicates more than merely trial
tactics. Under the due process clauses of the Fifth and Fourteenth Amendments to
the United States Constitution, a crirninal defendant has the right to require the
State prove every element constituting the crime. In re Winship, 397 U.S. 358, 364,
90S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also Mathews v. United States, 485
U.S. 58, 64-65, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). This right is anchored in
principles of due process existing under the Fifth and Fourteenth Amendments. 3
When the parties stipulate to the facts that establish an element of the charged
crime, the jury need not find the existence of that element, and the stipulation
3
Some cases "anchor" their decisions on the Sixth Amendment right to jury trial. We
pre'fcr to characterize the right as a due process right emanating from the Fifth and Fourteenth
Amendments. Other cases identify the constitutional right as emanating from confrontation rights
under the Sixth.Amendment, which, in those cases, may be accurate. See United States v.
Wiilicans, 632 F.3d 129, 132 (4th Cir. 2011). That analysis is also consistent with principles of
due process existing elsewhere.
5
State v. Humphries (Mario), No. 88234-7
therefore constitutes a waiver of the "right to a jury trial on that element," United
States v. Mason, 85 F.3d 471,472 (lOth Cir. 1996), as well as the right to require
the State prove .that element beyond a reasonable doubt, Sullivan v. Louisiana, 508
U.S. 275,278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).
Although stipulations implicate the defendant's constitutional rights,
generally stipulations do not need to be accompanied by a colloquy on the record
between the defendant and the trial court. In United States v. Ferreboeuf, 632 F.2d
832 (9th Cir. 1980), the Ninth Circuit addressed this issue. There, the defendant's
attorney signed a stipulation to two elements of a charged crime. On appeal, the
defendant argued that stipulations such as this required a trial court to personally
question the defendant to determine voluntariness, as is required for the entry of
guilty pleas. The court rejected this rule, recognizing a difference between pleading
guilty, which requires such a colloquy, and stipulating to crucial facts. As the court
reasoned, requiring trial courts to question defendants personally as to the
voluntariness of every stipulation would "needlessly delay and confuse the conduct
of a typical trial." P'erreboeuf, 632 F.2d at 836. Instead, the court held that when a
stipulation is agreed to by the defendant's attorney in the presence of the
defendant, the trial court may presume that the defendant consents, unless the
defendant objects at the time the stipulation is made. Ferreboeuf, 632 F.2d at 836.
6
State v. Humphries (Mario), No. 88234-7
We agree with this analysis, and here we are dealing with a situation where
Humphries did object.
Although courts can presume a defendant consents to a stipulation, this
presumption disappears where the defendant expressly objects. In United States v.
Williams, 632 F.3d 129 (4th Cir. 2011), for example, the defendant was charged
with conspiracy to possess heroin with the intentto distribute for receiving a
~ package of heroin in the mail. The prosecution sought to enter a stipulation under
which the defendant admitted that the contents of the package tested positive for
heroin in lieu of having the forensic chemist testify. Williams, 632 F.3d at 131. The
defendant refused to sign the stipulation, but the court allowed the defense counsel
to sign it over the defendant's objection, and the stipulation was read to the jury.
Williams, 632 F.3d at 131. On appeal, the Fourth Circuit held that the trial court
erred in admitting the stipulation over the defendant's objection because doing so
violated his Sixth Amendment right to confront witnesses. Williams, 632 F.3d at
132. The court also noted that the "stipulation may also be grounds for a violation
of the defendant's right to a jury [trial]." Williams, 632 F.3d at 133 n.2. The result
recognized that trial courts cannot compel a defendant to enter stipulations to
elements of a crime where an objection is made .
.Here, in pleading not guilty, Humphries invoked his due process right to
require that the State meet its burden of proof as to every element of the crime, a
7
State v. Humphries (Mario), No. 88234-7
proposition that the State does not contest. Humphries was charged with unlawful
possession of a firearm, which makes it a crime for a person to possess or control a
firearm "after having previously been convicted ... of any serious offense." RCW
9.41.040(1)(a). The stipulation established the fact of Humphries's prior serious
offense, thereby conceding an element of the crime. Counsel's stipulation relieved
the State of its burden of proof as to that element. Had Humphries not voiced an
objection, the trial court would have been correct in assuming that he consented to
the stipulation. Because Humphries objected, however, the trial court could not
ar:cept the stipulation and compel Humphries to waive his constitutional rights.
The State cites several foreign cases for the proposition that counsel has the
authority to stipulate to material facts as a matter of trial tactics. Suppl. Br. of
Resp't at 9-10 (July 16, 2013) (quoting United States v. Thornton, 327 F.3d 268,
270 (3d Cir. 2003); Poole v. United States, 832 F.2d 561 (11th Cir. 1987); United
States v. Schoenhut, 576 F.2d 1010, 1019 n.9 (3d Cir. 1978)). In none ofthese
cases, however, did the defendant expressly object to the stipulation. In line with
Ferreboeuf~ absent an objection by the defendant, the court may presume that the
defendant consents to the waiver. 4 The State also relies on Old Chiefv. United
4
The State also relies on a line of cases that allow an attorney, during closing argument,
to concede guilt on certain counts in order to avoid a guilty verdict on more serious charges.
Suppl. Br. ofResp't at 10-18 (July 16, 2013). The State reasons that if an attorney can concede
guilt to an entire crime during closing argument, he or she should also be able to stipulate to an
8
State v. Humphries (Mario), No. 88234~7
States,.5l9U.S. 172,117 S. Ct: 644) 136 L. Ed. 2d 574 (1997), to support its
argument that the trial court's acceptance of the stipulation did not violate
Humphries's rights. Old Chief, however, holds only that a trial court abuses its
discretion when it fails to accept a stipulation to a prior conviction upon defense
counsel's request. Old Chief, 519 U.S. at 17 4. It does not hold that a court must
accept the stipulation over the defendant's objection, as is the issue in this case.
·Old Chief is therefore inapplicable to the present case.
·. Instead of examining the validity of the stipulation, the Court of Appeals
held that Humphries's subsequent decision to sign the stipulation waived his
objection or, alternatively, abandoned his challenge to the stipulation on appeal.
The Court of Appeals' reasoning is not sustainable.
Waiver of a constitutional right must be knowing, voluntary, and intelligent.
State v. Thomas, 128 Wash. 2d 553, 558, 910 P.2d 475 (1996). Here, the trial court
and counsel erroneously told Humphries that his consent to the stipulation was not
------------------
element of a charged crime. None of these cases, however, involved a situation where the
attorney con(~eded guilt during closing argument over the express objection of the defendant, and
they provide no support for the idea that an attorney can. Moreover, even if this were not the
case, an attorney's concession during ·closing argument does not waive any of the defendant's
relevant constitutional rights. The State is still required to bear its burden, present admissible
evidence, and convince a jury of every element of the crime beyond a reasonable doubt.
Similarly, In re Personal Restraint of Stenson, 142 Wash. 2d 710, 16 P.3d 1 (2001)-which
concerned the penalty phase of a capital case-is inapplicable, as the State in that case had
already proved the defendant's guilt beyond a reasonable doubt and the defendant had already
been convicted.
9
State v. Humphries (Mario), No. 88234· 7
required. The stipulation was then read to the jury as part of the State's case. It was
not until the State rested and the defense had presented its case that Humphries
signed the stipulation. At that point, the damage was done, and nothing suggests
that Humphries's signature was anything other than forced acquiescence to what
had already occurred. Without something in the record suggesting that he
voluntarily changed his mind, the signature cannot be considered a knowing,
'intelligent, and voluntary waiver of his constitutional rights.
As the dissent in the Court of Appeals opinion here recognized, even though
the waiver of a constitutional right may be informed by strategic considerations, it
cannot be involuntary. See Humphries, 170 Wash. App. at 804 n.12 (Dwyer, J.,
dissenting). Entering the stipulation as to an element of the crime over
Humphries's known objection would have constituted an involuntary waiver of his
due process right to hold the State to its burden of proof. The trial court erred when
it allowed the stipulation to be read to the jury over Humphries's known objection,
and the record does not indicate that his subsequent signature on the stipulation
constituted an informed and voluntary waiver of his rights once they had been
asserted. 5
----·--------
5
We emphasize that we are not holding that a defendant must enter a knowing,
intelligent, and voluntary waiver for a stipulation to be valid, as the dissent argues. Dissent in
part at 5. Nothing in this opinion alters the general procedure for entering a stipulation when the
defendant is silent and his consent validly presumed. Under the facts of this case, however, the
10
State v. Humphries (Mario), No. 88234-7
As an alternative ground to affirm, the Court of Appeals held that even if the
trial court erred in accepting the stipulation over Humphries's objection, such an
error was harmless. A•. constitutional error is harmless when there is no reasonable
doubt that any reasonable jury would have reached the same result in the absence
of the error. State v. Frost, 160 Wash. 2d 765, 782, 161 P.3d 361 (2007). The Court
of Appeals reasoned that even absent the stipulation, the State was fully prepared
,to and would have presented evidence of Humphries's prio'r serious offense
convictions for robbery. Humphries, 170 Wash. App. at 796. But as Judge Dwyer
correctly noted in the dissent, the State presented absolutely no evidence of
Humphries's prior conviction for a serious offense other than the improperly
admitted stipulation. It is irrelevant that the State "'was fully prepared to present
evidence'" of the prior conviction. Humphries, 170 Wash. App. at 809 (Dwyer, J.,
dissenting) (quoting State v. Smith, 148 Wash. 2d 122, 139, 59 P.3d 74 (2002)).
Instead, we focus on evidence that was actually admitted at trial, Smith, 148 Wash. 2d
at 13 9, and because no untainted evidence of a prior conviction for a serious
argument that Humphries's subsequent signC~:ture constituted a waiver fails under even the
simplest waiver analysis.
11
State v. Humphries (Mario), No. 88234-7
offense was admitted at trial, no reasonable jury could have found that element
proved. 6
b. Ineffective Assistance of Counsel
Humphries also argues that his assault conviction should be reversed
because he received ineffective assistance of counse1. 7 The Court of Appeals held
that Humphries failed to show ineffective assistance of counsel. We agree.
·'i· The defendant has the burden of establishing ineffective assistance of
counsel. To prevail, the defendant must show that (1) counsel's representation was
de:ficient, that is, it fell below an objective standard of reasonableness and (2) there
was prejudice, measured as a reasonable probability that the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
6
We disagree with the dissent that because the error in this case involved the exclusion of
evidence under Old Chief, our harmless error analysis must be altered for this context. Dissent in
part at 13. The dissent argues that we should embrace a new, unprecedented harmless error test.
According to the dissent's new analysis, because the stipulation precluded the State from
introducing any additional evidence, our harmless error analysis must go beyond the evidence
that the jury heard and be changed to what would likely be produced but for the stipulation. Our
harmless error analysis has always been focused in reference to evidence before the jury and not
some hypothetical, "but for" or "inevitable admission" variant that would alter our harmless error
analysis. What the jury heard is what matters-not what it could have heard.
7
There is an argument that the issue is not before this court. The decision and the briefing
is a bit muddled on this issue, with general references to convictions, trials, and reversal without
specifying which conviction is being discussed. Regarding the ineffective assistance of counsel
claim, Humphries seems to have challenged the assault conviction as based on propensity
evidence that could affect both convictions. Thus, the Court of Appeals' statement that he did not
challenge the assault eonviction is overbroad. Moreover, any propensity reasoning would have
had its genesis in the stipulation, which makes it difficult to separate the two issues.
12
State v. Humphries ``Jario), No. 88234-7
687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Judicial review of an
attorney"s performance is highly deferential, Strickland, 466 U.S. at 689, and such
performance is not deficient ifit can be considered a legitimate trial tactic, State v.
llendrickson, 129 Wash. 2d 61, 77-78,917 P.2d 563 (1996).
Here, Humphries argues that because his attorney failed to request an
instnwtion limiting the jury's consideration ofthe stipulation, the jury was allowed
~;;to improperly consider Humphries's prior "serious offense" as propensity evidence
for the assault charge. In order .to prevail on his ineffective assistance of counsel
claim, Humphries must show that not requesting a limiting instruction fell below
I ' '
an objective standard of reasonableness and resulted in prejudice. Where an
attom.ey does not request a limiting instruction regarding a prior conviction, courts
have applied a presumption that the omission was a tactical decision to avoid
reemphasizing prejudicial information. State v. Price, 126 Wash. App. 617, 649, 109
P.3d 27 (2005); State v. Barragan, 102 Wash. App. 754, 762, 9 P.3d 942 (2000); see
also Stamps v. Rees, 834 F.2d 1269, 1276 (6th Cir. 1987). Therefore, because we
presume the action is a reasonable tactical decision, the failure to request a limiting
instruction under the circumstances cannot establish an ineffective assistance of
counsel claim.
Humphries attempts to avoid this presumption by arguing that the prior
conviction would not have been "reemphasized" if a limiting instruction had been
13
State v. Humphries (Jvfario), No. 88234-7
requested at the time the evidence was introduced. This argument, however, splits
hairs, and although some cases use "reemphasize"-which arguably supports
~umphries's argument-others recognize that the tactic is to avoid giving prior
convictions "undue attention." 8 Humphries's counsel did not request a limiting
instruction, and this is presumed to be a reasonable defense tactic. Humphries has
failed to carry his burden in demonstrating that his counsel's performance was
·".deficient, and his ineffective assistance of counsel claim fails.
-··-----
8
Compare Price, 126 Wash. App. at 649 (using "'reemphasize"' (quoting Barragan, 102
Wash. App. at 762)), with Rees, 834 F.2d at 1276 (using "undue attention").
14
State v. Humphries (Mario), No. 88234-7
CONCLUSION
The Court of Appeals is reversed in part and affirmed in part. Humphries's
unlawful possession of a firearm conviction is reversed and remanded for a new
trial. His assault conviction is affirmed.
WE CONCUR:
()Yh ~/QP,-;:
WtprJ.
15
State v. Humphries (Mario)
No. 88234-7
STEPHENS, J. (dissenting in part)-The critical question in this case is
whether defense counsel can stipulate to a status element of a charged crime over
the defendant's objection. This question turns on the allocation of decision-making
authority between client and counsel-a question courts have grappled with since
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Any
modification of the law in this area must be sensitive to the precedent that has served
as a measure of effective assistance of counsel and the foundation of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Unfortunately,
the majority does not discuss this precedent. Instead, with minimal analysis, it
concludes that a trial court cannot accept counsel's decision to stipulate to an element
of a charged crime when it knows the defendant disagrees.
I respectfully dissent. The test of when defense counsel's chosen trial strategy
must yield to the defendant's objection is not, simply, that the defendant's
constitutional rights are directly implicated. Nor does the trial court's knowledge
that the defendant disagrees with his lawyer matter in answering the question of
whether client or counsel holds ultimate decision-making authority on a particular
State v. Humphries (Stephens, J. Dissent in part)
Issue. Because I agree with the trial court below that Humphries's counsel had the
authority to enter into the stipulation despite Humphries's objection, I would affirm.
While I agree with the majority that Humphries did not knowingly, intelligently, and
voluntarily waive his rights in connection with the stipulation, such a waiver was not
required.
The Decision at Issue Is One of Trial Strategy for Counsel To Make
Criminal defendants and their counsel often disagree over trial matters,
including what motions to bring, what defense theories to argue, whether to
challenge a juror, and whether to call or cross-examine particular witnesses. It is
therefore well established that counsel must have some decision-making authority,
for "[t]he adversary process could not function effectively if every tactical decision
required client approval." Taylor v. Illinois, 484 U.S. 400, 418, 108 S. Ct. 646, 98
L. Ed. 2d 798 (1988). Countless decisions are made throughout trial. Some require
extemporaneous decision making without opportunity to consult with the defendant.
And, many require a comprehensive understanding of complex criminal law and
procedure "that only trained experts can comprehend their full significance, and an
explanation to any but the most sophisticated client would be futile." ABA
STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND DEFENSE
FUNCTION std. 4-5.2 cmt. at 202 (3d ed. 1993). The law thus "afford[s] the attorney
a wide latitude and flexibility in his choice of trial psychology and tactics." State v.
Piche, 71 Wn.2d 583,590,430 P.2d 522 (1967); see In rePers. RestraintofStenson,
142 Wash. 2d 710, 733, 16 P.3d 1 (2001). As the United States Supreme Court
-2-
State v. Humphries (Stephens, J. Dissent in part)
succinctly put it, "the lawyer has - and must have - full authority to manage the
conduct of the trial." Taylor, 484 U.S. at 418.
Decisions by counsel have been given effect as to most trial matters, including
scheduling matters, New York v. Hill, 528 U.S. 110, 115, 120 S. Ct. 659, 145 L. Ed.
2d 560 (2000), what arguments to pursue, Jones v. Barnes, 463 U.S. 745, 751, 103
S. Ct. 3308, 77 L. Ed. 2d 987 (1983), what evidentiary objections to raise, I-lenry v.
Mississippi, 379 U.S. 443, 451, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965), and what
agreements to make regarding the admission of evidence, Hill, 528 U.S. at 115
(citing United States v. McGill, 11 F.3d 223, 226-27 (1st Cir. 1993)). Courts have
also recognized that a defendant must accept counsel's decision regarding whether
to forgo cross-examination, Taylor, 484 U.S. at 418, whether to call certain
witnesses, id., whether to request a lesser included offense instruction, State v. Grier,
171 Wash. 2d 17, 31-32, 246 P.3d 1260 (2011), whether to admit guilt in the penalty
phase, In re Stenson, 142 Wash. 2d at 735-36, and whether to present evidence of
insanity during the penalty phase of a capital case, State v. Cross, 156 Wash. 2d 580,
608, 132 P.3d 80 (2006).
This is not to say the defendant is kept out of the loop; "[a]n attorney
undoubtedly has a duty to consult with the client regarding 'important decisions,'
including questions of overarching defense strategy." Florida v. Nixon, 543 U.S.
175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (quoting Strickland, 466 U.S. at
688). "That obligation, however, does not require counsel to obtain the defendant's
consent to 'every tactical decision."' Id. at 187 (quoting Taylor, 484 U.S. at417-18).
-3-
State v. Humphries (Stephens, J. Dissent in part)
Nor is counsel "obliged to obtain a written waiver or instructions from the defendant
as to each and every turn or direction the accused wants his counsel to take." Piche,
71 Wash. 2d at 590. Rather, "an attorney has authority to manage most aspects of the
defense without obtaining his client's approval." Nixon, 543 U.S. at 187.
While defense counsel has wide latitude over matters of trial strategy, certain
decisions are of such moment that ultimate decision-making authority must reside
with the defendant. These decisions are of such a "fundamental nature" and "so
crucial to the accused's fate" that the accused must make them. ABA STANDARDS
std. 4-5.2 cmt. at 201. They include whether to be present during trial, Taylor, 484
U.S. at 418 n.24, whether to testify, Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct.
2704, 97 L. Ed. 2d 37 (1987), whether to waive the right to counsel, Faretta v.
California, 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), whether to
enter a guilty plea, Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S. Ct. 1245, 16 L. Ed. 2d
314 (1966), whether to agree to an abbreviated prima facie trial, id., whether to waive
the right to a jury trial, Jones, 463 U.S. at 751, and whether to take an appeal, id.
See ABA STANDARDS std. 4-5.2(a), at 199-200 (listing decisions over which the
accused has ultimate decision-making authority).
The decision to stipulate to a status element of a charged offense does not fall
within the categories of decision making that law and tradition have committed to
the defendant. While this decision touches upon the defendant's right to require the
State prove each element of the crime beyond a reasonable doubt and it waives the
right to a jury trial as to the stipulated element, it has never been deemed tantamount
-4-
State v. Humphries (Stephens, J. Dissent in part)
to a guilty plea. Indeed, courts have been reluctant to find a guilty plea equivalent
under more encompassing factual stipulations. In Nixon, the United States Supreme
Court permitted counsel to concede guilt during the guilt phase of a murder trial even
though the defendant did not understand or consent to the concession. 543 U.S. at
18 8-89. The Court found the concession was not tantamount to a guilty plea because
"a guilty plea is 'more than a confession which admits that the accused did various
acts,' it is a 'stipulation that no proof by the prosecution need be advanced."' !d. at
188 (quoting Boykin v. Alabama, 395 U.S. 238, 242 & n.4, 89 S. Ct. 1709, 23 L. Ed.
2d 274 (1969)). For similar reasons, this court held that a stipulated facts trial is not
a guilty plea equivalent. In re Det. of Moore, 167 Wash. 2d 113, 120-21, 216 P.3d
1015 (2009); State v. Johnson, 104 Wash. 2d 338, 342, 705 P.2d 773 (1985). If neither
the decision to concede guilt nor the decision to enter a stipulated facts trial
constitutes a guilty plea equivalent, then the decision to concede a defendant's easily
proven criminal history certainly does not. The majority does not contend otherwise.
The majority nevertheless holds that due process requires any decision that
implicates a constitutional right must belong to the defendant. Majority at 8. A list
of such decisions would surely be long. Under the majority's reasoning, it appears
the defendant must knowingly, intelligently, and voluntarily agree to counsel's
choice of what witnesses to call, what defense theories to present, when to cross-
examine a witness, and what jurors to select. All of these decisions impact the rights
of the accused to defend his case, to meet the witnesses against him, to compel the
attendance of witnesses on his behalf, and to have an impartial jury. CONST. art. I, §
-5-
State v. Humphries (Stephens, J. Dissent in part)
22; U.S. CoNST. amend. VI. By holding that any infringement on the defendant's
constitutional rights necessitates his consent, the majority suggests that many
decisions courts have heretofore recognized as within counsel's authority to make
are not in fact solely matters of strategic discretion.
The majority relies on State v. Thomas, 128 Wash. 2d 553, 558, 910 P.2d 475
( 1996), but that case does not hold that all constitutional rights require a knowing,
intelligent, and voluntary waiver by the defendant. Nor does United States Supreme
Court precedent "reflect an uncritical demand for a knowing and intelligent waiver
in every situation where a person has failed to invoke a constitutional protection."
Schneckloth v. Bustamante, 412 U.S. 218, 235, 93 S. Ct. 2041, 36 L. Ed. 2d 854
( 1973 ). Case law requires only that "the waiver of a fundamental constitutional right
must be made knowingly, voluntarily, and intelligently." Thomas, 128 Wash. 2d at 558
(emphasis added); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed.
1461 (1938) ('"courts indulge every reasonable presumption against waiver' of
fundamental constitutional rights" (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389,
393, 57 S. Ct. 809, 81 L. Ed. 1177 (1937); Hodges v. Easton, 106 U.S. 408, 412,
1 S. Ct. 307,27 L. Ed. 169 (1882))). This rule appreciates the fact that almost every
trial decision implicates some constitutional right of the accused. For example,
"[e]ach and every time a defense attorney declines to cross-examine a witness, the
attorney technically waives his client's sixth amendment right." Poole v. United
States, 832 F.2d 561, 564 (11th Cir. 1987). Counsel's failure to object to hearsay
evidence essentially waives a defendant's confrontation rights. Watkins v. Kassulke,
-6-
State v. Humphries (Stephens, J. Dissent in part)
90 F.3d 138, 141 (6th Cir. 1996). And, deliberately failing to object to the admission
of tainted evidence taken from an unlawful search implicates the Fourth Amendment
to the United States Constitution. Henry, 379 U.S. at 451. Despite their
constitutional implications, these decisions have been deemed a part of trial strategy
for counsel to make.
Rather than engaging with the weight of authority against its holding, the
majority focuses on cases addressing an entirely different question-when can a
court presume the defendant consents to his counsel's waiver of a constitutional
right? For example, the majority dismisses the State's argument that counsel has the
authority to stipulate to material facts as a matter of trial tactics by observing that
"[i]n none of [the cases cited by the State] did the defendant expressly object to the
stipulation." Majority at 8. The very focus of the majority's discussion confuses the
question of when an on-the-record colloquy is required-which is not at issue
here1-with the critical question of whose decision controls. If the decision to
stipulate to a status element belongs to counsel, as I believe it does, then it is
irrelevant whether Humphries initially objected or later agreed to the stipulation.
United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010) (noting that "if
consultation and consent by the client are not required with regard to these tactical
1
That question was at issue in State v. Woods, 143 Wash. 2d 561, 609, 23 P.3d 1046
(200 1) (discussing when defense counsel, as opposed to the court, bears responsibility for
informing the defendant of a particular right and explaining the merits and demerits of
waiving such right).
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State v. Humphries (Stephens, J. Dissent in part)
decisions, the client's expressed disagreement with counsel's decision cannot
somehow convert the matter into one that must be decided by the client").
The Constitution does not obligate counsel to accept the client's decision in
every instance. Rather, the opposite is true. The United States Supreme Court has
interpreted a defendant's Sixth Amendment right to assistance of counsel as more
encompassing than the mere presence or advice of counsel. Strickland, 466 U.S. at
685. It "envisions counsel's playing a role that is critical to the ability of the
adversarial system to produce just results." I d. In other words, '"the right to counsel
is the right to the effective assistance of counsel."' I d. at 686 (emphasis added)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90S. Ct. 1441, 25 L. Ed.
2d 763 (1970)). In fulfilling the "overarching duty" to advocate for the defendant's
cause, defense counsel must "bring to bear such skill and knowledge as will render
the trial a reliable adversarial testing process." Id. at 688.
The majority's decision potentially undermines counsel's ability to act
effectively. This case presents a prime example. The State accused Humphries of
first degree unlawful possession of a firearm. Clerk's Papers (CP) at 9-11. An
element of that charge is that Humphries owned, possessed, or controlled a firearm
after having been convicted of a serious offense. RCW 9.41.040. Humphries
maintained his innocence throughout trial; his defense focused on the fact that no
weapons or ammunition were found on him or at the scene of the alleged shooting.
Verbatim Report of Proceedings (Oct. 13, 2010) at 46-47. Despite this lack of
physical evidence, his attorney was concerned the jury would be distracted by
-8-
State v. Humphries (Stephens, J. Dissent in part)
Humphries's criminal history, which included dispositions for first degree robbery,
second degree robbery, and attempted second degree robbery. CP at 11. Counsel
advised Humphries it would be wise to stipulate to a prior serious offense conviction,
which would preclude the State from introducing evidence of his past crimes. Tr. of
Proceedings (Oct. 12, 2010) at 5-6. No one----not even Humphries or the majority-
questions the wisdom of counsel's advice. Evidence of Humphries's past crimes
could only prejudice the jury against him. Old Chiefv. United States, 519 U.S. 172,
185, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) ("there can be no question that
evidence of the name or nature of the prior offense [necessary to establish a prior
qualifying conviction] generally carries a risk of unfair prejudice to the defendant").
The State could easily prove the element of a prior serious offense conviction, as
evinced by the criminal history records it presented at Humphries's subsequent
sentencing. Humphries nevertheless refused to stipulate. By holding that counsel
could not pursue his trial strategy in the face of Humphries's expressed disapproval,
the majority expands constitutional waiver analysis beyond the class of decisions
previously recognized as involving fundamental rights.
Worse yet, the majority's holding places trial judges at risk of violating the
defendant's Sixth Amendment rights in an effort to secure a valid waiver. As the
United States Supreme Court has explained, the "Government violates the right to
effective assistance when it interferes in certain ways with the ability of counsel to
make independent decisions about how to conduct the defense." Strickland, 466
U.S. at 686. Under the majority's holding, when a defendant objects to counsel's
-9-
State v. Humphries (Stephens, J. Dissent in part)
trial strategy, the trial judge must inquire whether counsel has advised the defendant
about the decision, thereby potentially exposing attorney-client confidences and
counsel's trial strategy and intruding upon the attorney-client relationship. Thomas,
128 Wash. 2d at 557 n.2;In rePers. RestraintofLord, 123 Wn.2d296, 317,868 P.2d
835 (1994). Intrusions into the attorney-client relationship have been recognized as
sufficient grounds for an ineffective assistance of counsel claim. See Blanco v.
Singletary, 943 F.2d 1477 (11th Cir. 1991) (involving a judge's inquiry into why
certain witnesses the defendant wanted to be called were not called by defense
counsel).
It is important to acknowledge that the majority raises valid concerns about
the defendant's- authority to make trial decisions when he must suffer the
consequences. Some commentators have criticized the division of authority
recognized by the United States Supreme Court and formalized in the ABA
Standards. See, e.g., Pamela R. Metzger, Fear of Adversariness: Using Gideon to
Restrict Defendant's Invocation of Adversary Procedures, 122 YALE L.J. 2550
(20 13) (arguing the defendant should have greater authority over decisions affecting
constitutional rights). But even critics recognize the lines that have heretofore been
drawn. See id. at 2556-67 (acknowledging defendant's authority is limited to
decisions deemed "fundamental"); JAMES J. TOMKOVICZ, THE RIGHT TO THE
ASSISTANCE OF COUNSEL: A REFERENCE GUIDE TO THE UNITED STATES
CONSTITUTION 74 (2002) (recognizing that a "majority of the Supreme Court has
rejected" the position that counsel must defer to the defendant's wishes on
-10-
State v. Humphries (Stephens, J. Dissent in part)
significant questions). The division of authority between counsel and client attempts
to balance the defendant's ability to choose his own defense with his right to
effective assistance of counsel. See Faretta, 422 U.S. at 819 (recognizing that the
right to counsel "does not provide merely that a defense shall be made for the
accused; it grants to the accused personally the right to make his defense"). True,
the right to counsel "implicitly embodies a 'correlative right to dispense with a
lawyer's help."' !d. at 814 (quoting Adams v. United States ex rel. McCann, 317
U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942)). But once "a defendant chooses
to have a lawyer manage and present his case, law and tradition may allocate to the
counsel the power to make binding decisions of trial strategy in many areas." !d. at
820; Brookhart, 384 U.S. at 7-8; Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L.
Ed. 2d 837 (1963), overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72,
97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)). The majority's holding must be recognized
for what it is: not a limited exception to the traditional division of decision-making
authority between client and counsel, but a rejection of the very framework that has
supported a large body of law. I would hold that counsel's decision to stipulate to a
prior serious offense did not require Humphries's knowing, intelligent, and
voluntary waiver of his right to make the State prove this element. Therefore,
Humphries suffered no constitutional error-whether framed as a due process or a
Sixth Amendment violation. I would affirm on this basis.
-11-
State v. Humphries (Stephens, J. Dissent in part)
If the Stipulation Violated Humphries's Rights, the Error Was
Harmless beyond a Reasonable Doubt
Even if the trial court committed constitutional error in accepting defense
counsel's stipulation that Humphries "had previously been convicted of a serious
offense" over Humphries's objection, I disagree with the majority that the error was
prejudicial. CP at 12.2
The majority correctly observes that constitutional errors are subject to
harmless error analysis and are considered "harmless when there is no reasonable
doubt that any reasonable jury would have reached the same result in the absence of
the error." Majority at 11. In determining whether defense counsel's stipulation
was harmless, the majority echoes Judge Dwyer's reliance on the overwhelming
untainted evidence test and considers only the absence of other evidence introduced
at trial to prove a prior serious offense conviction. !d. (citing State v. Humphries,
170 Wash. App. 777, 809, 285 P.3d 917 (2012) (Dwyer, J., dissenting)). Noting that
the State presented no evidence in light of the stipulation, the majority concludes
that the error was not harmless. It rejects as "irrelevant" the fact "that the State 'was
fully prepared to present evidence' of the prior conviction." !d. (internal quotation
marks omitted) (quoting Humphries, 170 Wash. App. at 809 (Dwyer, J., dissenting)).
The majority contends its conclusion is supported by State v. Smith, 148
Wash. 2d 122, 139, 59 P.3d 74 (2002). But, Smith involved the erroneous admission
2
Counsel also stipulated that Humphries "had previously received written notice
that he was ineligible to possess a firearm" and that he "knew that he could not possess a
firearm." CP at 12. These factual stipulations seem to have been gratuitous. As instructed,
the jury did not need to accept these facts in order to convict. Id. at 26 (Instruction 8).
-12-
State v. Humphries (Stephens, J. Dissent in part)
of evidence. Here, we are concerned with an alleged error (acceptance of the
stipulation) that operated to preclude the State from introducing otherwise
admissible evidence. In other words, the error at issue, if there was error, involved
the erroneous exclusion of evidence, and we must examine the question of harmless
error in this context. Relying on a test that looks only to other evidence admitted
at trial is both artificial and unhelpful. Once defense counsel offered to stipulate to
a prior serious offense conviction, the State was obligated to accept this stipulation
and was precluded from presenting evidence of Humphries's criminal history. Old
Chief, 519 U.S. at 190-92.3 Because the alleged error in this case had a mandatory
exclusionary effect, a meaningful harmless error analysis requires that we look
beyond what was presented to the jury and consider the effect of the erroneous
decision at issue. This is consistent with the essential purpose of harmless error
inquiry, which asks, "Was the defendant afforded, not a perfect but, rather a fair
trial?-for the constitution guarantees no one a perfect trial." State v. Green, 71
Wash. 2d 372, 373, 428 P.2d 540 (1967). To answer this question, we look to the
record; "if the record supports a finding that the jury verdict would be the same
absent the error, harmless error may be found." State v. Berube, 150 Wash. 2d 498,
506, 79 P.3d 1144 (2003).
3
Old Chief does recognize that the prosecution can in some circumstances present
redacted criminal records without the name and nature of the prior conviction as
supplemental evidence of a defendant's past conviction notwithstanding a defendant's
stipulation. 519 U.S. at 191 n.IO. But, redacted criminal records would have had no
evidentiary value in this case. Here, the names of Humphries's prior convictions were
needed to establish their qualification as "serious offenses."
-13-
State v. Humphries (Stephens, J. Dissent in part)
The record in this case establishes that the State had certified copies of
Humphries's prior criminal history, CP at 56-88, and that the stipulation was-
admitted in lieu of the State's proffer. Absent the stipulation, the State would have
submitted its evidence to establish Humphries's prior convictions for a serious
offense. This evidence, beyond simply proving the element of a "prior serious
offense," carried a risk of unfair prejudice to Humphries. See Old Chief, 519 U.S.
at 185 (recognizing "risk of unfair prejudice to the defendant"). Defense counsel's
stipulation was therefore harmless beyond a reasonable doubt. If admission of the
stipulation violated Humphries's constitutional rights, I would affirm on this
alternative basis.
-14-
State v. Humphries (Stephens, J. Dissent)
-15-
State v. Humphries (Mario)
No. 88234-7
MADSEN, C.J. (concurring in the dissent)-Although I agree with the thorough
dissent by Justice Stephens, I write separately to underscore the untenable position that
the majority creates for trial counsel and the court on retrial.
The State charged Mario Humphries with third degree assault and unlawful
possession of a firearm based on three prior convictions for first degree robbery, second
degree robbery, and attempted robbery. In order to prove the crime of unlawful
possession of a firearm, the State was entitled to establish these convictions (necessary to
prove unlawful possession of a firearm) by placing copies of the judgment and sentences
into evidence for the jury to consider. Rather than allowing this damaging evidence of
prior robbery convictions, defense counsel stipulated that Humphries had a prior serious
felony, without disclosing the nature or the number of the convictions.
In my view, if counsel in this case had failed to offer such a stipulation and instead
required the State to submit the actual judgment and sentence documents, his failure to
stipulate would have fallen below the standard of proficient counsel, that failure to
stipulate could not be excused as "tactical," and the failure would be prejudicial.
No. 88234-7
Madsen, C.J. concurring in dissent
The majority's new rule encourages disputes between clients and counsel in a
decision that is so clearly about strategy and sets up unnecessary claims of ineffective
assistance of counsel. It is also frustrating because a retrial will result in either the State
presenting damaging evidence of prior robberies or the defendant stipulating, as was done
here. A stipulation is clearly less prejudicial than the proof of prior robberies. The
majority's decision imposes an unnecessary "do over" in a case where any effective
counsel would offer the stipulation counsel offered here, without which the defendant's
chances of success would be greatly diminished.
I decline to join an opinion that confuses the role of counsel in making the sort of
strategy calls at issue here or in setting defense counsel up for claims of ineffective
assistance of counsel. The court should affirm.
2
No. 88234-7
Madsen, C.J. concurring in dissent
3