State Of Washington, Resp-cross App V. Darryl W. Kennon, App-cross Resp ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80813-3-I
Respondent/
Cross-Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
DARRYL WILLIAM KENNON,
Appellant/
Cross-Respondent.
SMITH, J. — Darryl Kennon appeals his felony convictions for first degree
burglary, four counts of felony violations of court orders, and second degree
assault all with a domestic violence aggravator. Kennon alleges that he was
denied the constitutionally required presumption of innocence when the trial court
allowed additional security officers in the courtroom while the victim testified, that
his counsel was ineffective by failing to request the instruction for the lesser
included offense of third degree assault, and that the court violated his
fundamental rights when it entered a lifetime prohibition of his contact with his
children. The State cross appeals, asserting that the trial court erred when it
declined to sentence Kennon as a persistent offender under the Persistent
Offender Accountability Act (POAA), part of the Sentencing Reform Act of 1981
(SRA), chapter 9.94A RCW.
We conclude that the presence of three uniformed officers was neither
inherently prejudicial nor an abuse of discretion and that Kennon’s counsel was
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80813-3-I/2
not ineffective when they did not request an instruction for third degree assault.
However, because the court provided no reason for prohibiting Kennon’s contact
with his children for life, we remand for the court to determine whether the
infringement on Kennon’s rights is reasonably necessary to protect the children
from harm and, if so, to narrowly tailor the orders in duration and scope. Finally,
because a sentencing court lacks the authority to ignore the mandate under the
POAA, the trial court erred when it declined to impose a life sentence. We
remand for resentencing.
FACTS
Darryl Kennon and Zotica Kennon1 married in 2003 and separated in
2016. In 2017, Zotica sought domestic violence protection orders against
Kennon protecting Zotica and her and Kennon’s three children, K.K, 13 years old,
M.K., 9 years old, and V.K., 7 years old. The court granted Zotica’s request and
entered a domestic violence protection order protecting Zotica and her three
children. Pursuant to the order, Kennon was allowed to see his children every
other Saturday. However, Zotica allowed Kennon to see the children at other
times. The couple divorced in March 2018.
On April 5, 2018, Kennon came to Zotica’s home, and Zotica let him in.
They spoke while the children were present. Following this incident, in July
2018, Kennon pleaded guilty to violating the 2017 order. The violation resulted in
four domestic violence no-contact orders, which revoked Kennon’s ability to see
his children. Nonetheless, Zotica allowed Kennon to continue to see the
1 We refer to Zotica by her first name for clarity.
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children, and Kennon took them on a camping trip on August 10, 2018.
On August 14, 2018, Kennon repeatedly called Zotica on the phone while
she was at work, angry about her allegedly seeing someone new and concerned
that she was leaving the children home alone. Zotica testified that Kennon called
her “283 times.” Zotica left work because she was “too nervous” and began
cleaning her house. Kennon’s calls continued, and Zotica called the police after
she told him to stop calling her.
At around 4:00 p.m. that day, Kennon entered Zotica’s apartment while
the children were present. The door was open. Zotica was in her roommate’s
room. V.K. saw Kennon in the hallway and went out to speak with him. He
asked where Zotica was, and V.K. told him. Kennon entered the roommate’s
room, and Zotica testified that he pushed her in the stomach. Kennon, on the
other hand, testified that he “just tapped her and said, hey, you called the police
on me?” They exited the bedroom and went to the kitchen. Kennon was asking
Zotica “[q]uestions like, did you call the police on me?” Zotica admitted that she
did, and Kennon “got upset[,] and . . . he hit her.” Zotica testified that Kennon
pushed her and “tried to hit [her] face with his head,” but she was able to avoid
the contact.
V.K. stated that, at this time, she and her siblings “all started crying” and
“were telling him to stop it.” Kennon pushed her, pinned her in the laundry room
area, and then hit her eye “with his head.” She testified that she saw “something
red in [her] eye,” and blood began coming from her mouth and nose. Kennon
testified, “I slapped her in her face . . . with my right hand.” He alleged it was an
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open-handed slap and that he did it with his nondominant hand.
Zotica testified that Kennon told her that “he was going to kill [her],” and
Zotica begged for her life, asking him not to kill her “in front of the kids.” Zotica
testified that he then reached into his pocket and retrieved “a sledgehammer.”
Kennon testified that Zotica “reached under the kitchen sink, and pulled out the
hammer.” Kennon testified that he raised the hammer over his head, to try to
“pull[ ] it away from her.” K.K. threw something at Kennon’s back to try and get
him to stop. And Zotica grabbed the hammer and ran out of the house to the
apartment complex parking lot.
At this time, V.K. testified that she and her siblings left the house and
began screaming for help because they “didn’t want [their] mom to get hurt.”
Simultaneously, Zotica was running around a vehicle, and Kennon was chasing
her. Kennon testified that he “was trying to get her to stop[,] . . . [a]nd if she
would have stopped, [he] probably would have had the opportunity to apologize
for hitting her in the first place.” Zotica eventually dropped the hammer. She
testified that Kennon picked it up and threw it at her and then was “reaching in
[his] truck” for a baseball bat.
After multiple neighbors noticed the altercation and began calling the
police, Kennon got into his car and, according to V.K.’s testimony, was “trying to
drive away.” At some point, K.K. had gone inside the house, retrieved a knife,
and “was stabbing [Kennon’s] [vehicle’s] window shields” as Kennon drove away.
Zotica believed he was trying to run her over with his truck. Zotica ran away from
the apartment complex and got into the vehicle of a woman she saw driving. She
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No. 80813-3-I/5
ended up in an office near her apartment, “[u]nder the office table” where the
police found her when they responded to the scene. Zotica was transported to a
nearby hospital and treated for her injuries. She sustained an orbital wall
fracture. Kennon testified at trial that he had “no idea” what fractured the orbital
bone in Zotica’s face.
The State charged Kennon with seven domestic violence felonies: first
degree burglary (count 1), four counts of felony violation of a court order
(counts 2 through 5), second degree assault with a deadly weapon (count 6), and
second degree assault by reckless infliction of substantial bodily harm on Zotica
(count 7).
Trial began on August 7, 2019. Prior to her testimony, Zotica requested
that an additional officer be present. She had “concerns for her safety” and
noted that Kennon previously had an “outburst in court and [made] some sort of
threats to the judge in that case.” Neither the State nor the court independently
verified this information. Detective Gerald Gee also had concerns about a phone
call Kennon made to his sisters from jail. During the conversation, one of
Kennon’s sisters said, “[A]re you sure about that other thing and do you want to
talk to your brother first?” The State was unsure what the conversation was in
reference to but thought that it might be regarding its conversation with Kennon’s
brother “about potential alternatives to a life in prison sentence upon conviction.”
Because of this conversation, Detective Gee also asked the State if it would
request an additional officer.
Based on Zotica’s and Detective Gee’s requests, the State asked the
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No. 80813-3-I/6
court if an additional officer could be present while Zotica testified. The parties
and the court agreed that “Kennon has certainly behaved in an exemplary
manner during pretrial and trial proceedings.” And the court noted that there
were already two officers in the courtroom, “which is somewhat unusual” and that
Detective Gee also would be present for some of the testimony.
Nonetheless, the trial court granted the State’s request to seek an
additional officer, thereby allowing three uniformed officers in the courtroom and
Detective Gee in plain clothes. The court ruled: “I’m going to allow it because I
have reason to believe that [Zotica] is feeling traumatized and will feel very
traumatized at the time that she has to openly confront Mr. Kennon. And I think
that outweighs any danger of unfair prejudice to Mr. Kennon.” The court asked
Kennon if he would like a limiting instruction, but Kennon declined, not wanting to
draw more attention to the issue.
At one point, immediately following a recess during Zotica’s testimony, a
fourth uniformed officer was present in the courtroom. When defense counsel
noted their presence, they requested a recess to discuss the matter outside the
presence of the jury. Defense counsel noted that “there are jail officers lurking
behind the prosecutor’s table, and one . . . was standing about 10 feet behind
defense table.” Realizing that the fourth uniformed officer’s presence was a
mistake, the court dismissed the additional officer. The jury returned to the
courtroom with the three officers and Detective Gee present.
Following testimony from Zotica, all three children, and Kennon, among
other individuals and experts, the jury found Kennon guilty of first degree
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burglary, four counts of violation of a court order, and second degree assault by
reckless infliction of substantial bodily harm all with domestic violence
aggravators. The jury acquitted Kennon of second degree assault with a deadly
weapon.
At sentencing, the State offered two prior plea agreements, which showed
Kennon’s prior convictions for child molestation in the first degree and rape of a
child in the first degree. Based on these convictions and Kennon’s conviction for
burglary in the first degree, the State argued that the trial court was required to
impose a life sentence under the POAA, RCW 9.94A.570. Kennon, on the other
hand, asserted that his 1991 guilty plea for first degree child molestation was
facially invalid because it did not include two elements of the charged crime. He
further argued that it was unfair to impose a life sentence where the POAA
disproportionally sentences black men to prison for life and that he has not had
any other convictions since 1992. Specifically, he argued that, as applied to
Kennon, the POAA “is cruel and any cruel sentence is an unconstitutional
sentence.”
At first, the court concluded that it could not allow Kennon’s challenge to
the 1991 conviction. However, after some discussion, the court—while
acknowledging that it was without authority to do so—refused to impose a life
sentence under the POAA. The court stated:
I am very troubled by the persistent offender law, particularly
as it relates to this particular case. . . . I am aware though of the
disproportionality of African-American men in the criminal justice
system and in the life without parole population . . . . And there’s no
doubt in my mind that institutional racism plays a role. . . .
The reason I feel so conflicted right now, and I do, is
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No. 80813-3-I/8
because I took an oath to apply the law and to enforce it, whether I
agree with it or not because it’s not my call. It’s the legislature’s
call. And to a degree it’s the call of appellate courts higher than my
level of trial court. However, this is my judgment and sentence and
I have to take some ownership of it. And a life without parole
sentence, given your actions and your choices, which were really
bad in this case, just still seems to me to be very disproportionate.
So I’m going to do something I don’t do very often. And this is
going to go to the appellate court regardless of what I rule, and I
know it will.
. . . I am not going to count that child molestation conviction.
And I am not going to count it on the basis that in your plea, you did
not specifically admit to two necessary elements of the crime and
we've gone over what those are.
Instead, it imposed an exceptional sentence of 176 months. The court also
entered lifetime no-contact orders protecting Kennon’s children and Zotica after
the child advocate alleged that the children wanted the “full orders.”
Kennon appeals his conviction, and the State cross appeals his sentence.
ANALYSIS
Additional Security
Kennon alleges that the trial court violated his constitutional right to a fair
trial when it allowed additional officers to “lurk[ ] behind the prosecutor table”
during Zotica’s testimony. Because the officers’ presence was not inherently
prejudicial and the trial court has broad discretion to manage court proceedings,
we disagree.
“The presumption of innocence is a basic component of a fair trial under
our criminal justice system.” State v. Gorman-Lykken, 9 Wn. App. 2d 687, 692,
446 P.3d 694 (2019). “[T]he accused is . . . entitled to the physical indicia of
innocence which includes the right of the defendant to be brought before the
court with the appearance, dignity, and self-respect of a free and innocent man.”
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No. 80813-3-I/9
State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). We must “closely
scrutinize practices that may threaten the fairness of the trial.” State v. Butler,
198 Wn. App. 484, 493, 394 P.3d 424 (2017). To this end, “[c]ourtroom security
measures that single out defendants as particularly dangerous or guilty threaten
their right to a fair trial because those measures erode the presumption of
innocence.” Gorman-Lykken, 9 Wn. App. 2d at 692. However, the presence of
security at a defendant’s trial does not necessarily lead to an inference that a
defendant “is particularly dangerous or culpable.” Holbrook v. Flynn, 475 U.S.
560, 569, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986).
Furthermore, “[t]he trial court is generally in the best position to perceive
and structure its own proceedings.” State v. Dye, 178 Wn.2d 541, 547, 309 P.3d
1192 (2013). In particular, “a trial court has broad discretion to make a variety of
trial management decisions,” including ruling on “provisions for the order and
security of the courtroom.” Dye, 178 Wn.2d at 547-48. “[E]ven if we disagree
with the trial court” regarding its trial management decisions, “we will not reverse
its decision unless that decision is ‘manifestly unreasonable or based on
untenable grounds or untenable reasons.’” Dye, 178 Wn.2d at 548 (quoting In re
Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). “[W]here
special courtroom procedures implicate constitutional rights, it is not the
defendant’s burden to prove that [they have] been prejudiced, but [it is] the
prosecution’s burden to prove that a special dispensation for a vulnerable
witness is necessary.” Dye, 178 Wn.2d at 553.
With regard to the court’s decision to allow additional uniformed officers
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No. 80813-3-I/10
during Zotica’s testimony, two cases guide our analysis. In Butler, we held that
“[t]he presence of a second jail officer in the courtroom during a portion of the
victim’s testimony did not deprive [the defendant] of his right to a fair trial.” 198
Wn. App. at 486. Ivory Butler was charged with promoting commercial sexual
abuse of a minor. Butler, 198 Wn. App. at 486. At trial, the victim testified.
Butler, 198 Wn. App. at 489. During a portion of their testimony, there were two
uniformed officers present: one, presumably in a customary location by or in the
jury box, and one “‘directly in front of the witness stand but some 20 feet
away[,] . . . [and] eight feet away from the defendant.’” Butler, 198 Wn. App. at
489. We concluded that the second officer’s presence was not prejudicial,
reasoning that they were not conspicuously close to Butler, did not obstruct
Butler’s view of the witness, did not attract attention, and were not present for the
remainder of the victim’s testimony. Butler, 198 Wn. App. at 494. Additionally,
the trial court instructed the jury that a routine change in security personnel
caused the additional officer’s presence. Butler, 198 Wn. App. at 486-87. We
affirmed Butler’s conviction. Butler, 198 Wn. App. at 495.
In Gorman-Lykken, the court reviewed a trial court’s decision allowing a
corrections officer to stand next to the defendant while he testified. 9 Wn. App.
2d at 689. James Gorman-Lykken was charged and convicted of second degree
rape. Gorman-Lykken, 9 Wn. App. 2d at 689-90. Gorman-Lykken testified at
trial during which time a corrections officer stood next to the witness stand.
Gorman-Lykken, 9 Wn. App. 2d at 689. The trial court allowed the officer to be
next to the witness stand because the officer “was ‘not one of [the court’s] largest
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No. 80813-3-I/11
corrections officers” and she was the only officer in the courtroom. Gorman-
Lykken, 9 Wn. App. 2d at 690.
On appeal, the court first addressed whether the officer’s presence was
inherently prejudicial, focusing on the particular facts of the case. Gorman-
Lykken, 9 Wn. App. 2d at 694. It concluded the officer’s presence and location
were not inherently prejudicial because “[t]here was only one officer, and she did
not do anything to draw attention to herself[, and she] moved to and from the
witness box outside the presence of the jury.” Gorman-Lykken, 9 Wn. App. 2d at
695.
The court next addressed whether the trial court’s decision was an abuse
of discretion. Gorman-Lykken, 9 Wn. App. 2d at 695-96. The court adopted a
specific standard for when a trial court allows “a security officer to be stationed
next to the witness stand when the defendant testifie[s].” Gorman-Lykken, 9 Wn.
App. 2d at 697. It held that “the trial court must (1) state case-specific reasons
for the need for such security measure, and (2) determine that the need . . .
outweighs the potential prejudice.” Gorman-Lykken, 9 Wn. App. 2d at 697. The
court concluded that the trial court abused its discretion because it failed to
provide a case-specific reason for its ruling. Gorman-Lykken, 9 Wn. App. 2d at
698.
First, we determine whether the presence of additional security officers in
Kennon’s case was inherently prejudicial. Three uniformed officers were present
in the courtroom: one officer sat by the jury box, as is customary, one stood by
the rear door, and one sat in the back of the courtroom. Despite the trial court’s
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No. 80813-3-I/12
assertion that it was odd to have even two officers present, other trial courts have
noted “that sometimes one to three corrections officers [are] assigned to a
defendant in court,” and “[t]he routine use of security personnel in a courtroom
during trial generally is not an inherently prejudicial practice.” Gorman-Lykken, 9
Wn. App. 2d at 690, 693. Even if it were unusual to have three uniformed
officers, their placement throughout the courtroom was not inherently prejudicial:
they were not hovering around Kennon or standing next to Zotica as if protecting
her. Thus, the officers’ positions were inconspicuous. And although there were
only two officers present during Butler’s trial, the additional officer in this case
does not require a conclusion distinct from Butler. Moreover, we are wary of
presuming “that any use of identifiable security guards in the courtroom is
inherently prejudicial.” Holbrook, 425 U.S. at 569; compare Gorman-Lykken, 9
Wn. App. 2d at 696 (distinguishing the placement of a security officer by the
defendant while testifying because “the potential for prejudice is greater when a
security officer is stationed next to a testifying defendant than when an officer or
officers merely are present elsewhere in the courtroom”). For these reasons and
because the officers’ positions did not single out Kennon as particularly
dangerous, their presence was not inherently prejudicial. See, e.g., Holbrook,
475 U.S. at 571 (“Four troopers are unlikely to have been taken as a sign of
anything other than a normal official concern for the safety and order of the
proceedings.”).
Next, we adopt the second step in Gorman-Lykken, applying it more
generally to hold that a trial court must provide case-specific reasoning on the
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No. 80813-3-I/13
record for its decision to allow additional security measures during a defendant’s
trial.2 Here, the trial court provided a case-specific justification. Specifically,
when granting the State’s request for additional officers, the court referenced
Kennon’s vague and concerning phone call to his sister, a previous courtroom
outburst that led to Kennon’s expulsion from the court, and the victim’s real and
rational fear. And “[t]rial courts have a unique perspective on the actual witness
that an appellate court reviewing a cold record lacks.” Dye, 178 Wn.2d at 553.
Indeed, “the trial court is in the best position to analyze the actual necessity of a
special dispensation.” Dye, 178 Wn.2d at 553. Because the court provided a
case-specific analysis, it did not abuse its discretion, did not act manifestly
unreasonable, and did not base its decision on untenable grounds when it
allowed additional officers to be inconspicuously placed throughout the
courtroom.
Kennon disagrees and unpersuasively attempts to distinguish Butler
because “the additional security in Kennon’s case was not due to a routine shift
change” and because “[t]he jury in Butler was told about the shift change.” With
regard to his first contention, the fourth officer’s presence was due to a similarly
innocent issue, i.e., a miscommunication between the jail security’s supervisor
2 The State asserts that a case-specific inquiry like Gorman-Lykken is not
required when the officers are not stationed next to the defendant while they
testify. Although Gorman-Lykken limited its holding to such a situation,
“Washington courts have emphasized that the trial court must actually exercise
discretion based on the facts of the case in considering whether to allow a
courtroom security measure.” 9 Wn. App. 2d at 695-96. Accordingly, we
conclude that, whatever the security measure, a court must provide a reason for
its determination.
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and the State. As to the second contention, there was no limiting instruction in
Kennon’s case because he did not seek one. Although defense counsel
reasonably decided not to request a jury instruction regarding the officers, the
lack of an instruction does not justify concluding that the officers’ presence was
prejudicial or that the trial court abused its discretion.
Kennon also relies on State v. Jackson, 195 Wn.2d 841, 467 P.3d 97(2020), to support his assertion that “there can be no doubt that the jury saw the
additional security in the courtroom during Zotica’s testimony.” In Jackson, John
Jackson Sr. had a security leg brace on during trial that was not visible under his
clothes. 195 Wn.2d at 844, 847. However, when Jackson testified in his
defense, he argued that the jury could see the brace, and despite his objection,
the court did not require that the jail officers remove his leg brace. Jackson, 195
Wn.2d at 848. On appeal, because the State could not prove that the jury did not
notice the brace, which was a more sophisticated shackle, the court concluded
that the State failed to satisfy the constitutional harmless error analysis.
Jackson, 195 Wn.2d at 847, 858. Jackson is distinguishable because it involved
the inherently prejudicial issue of shackling. See Holbrook, 475 U.S. at 560(holding that “[t]he conspicuous, or at least noticeable, presence of guards in a
courtroom during trial is not the sort of inherently prejudicial practice that should
be permitted only where justified by an essential state interest”). Thus, we are
not persuaded.
Ineffective Assistance of Counsel
Kennon next asserts that he received ineffective assistance of counsel
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because his trial counsel failed to seek a jury instruction on the lesser included
offense as to count seven of third degree assault by negligence. We disagree.
The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington State Constitution guarantee the right to effective
assistance of counsel. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16
P.3d 601 (2001). “Where the claim of ineffective assistance is based on
counsel’s failure to request a particular jury instruction, the defendant must show
[they were] entitled to the instruction, counsel’s performance was deficient in
failing to request it, and the failure to request the instruction caused prejudice.”
State v. Classen, 4 Wn. App. 2d 520, 539-40, 422 P.3d 489 (2018). “Ineffective
assistance of counsel is a fact-based determination that is ‘generally not
amenable to per se rules.’” State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260(2011) (quoting State v. Cienfuegos, 144 Wn.2d 222, 229, 25 P.3d 1101 (2001)).
We review ineffective assistance claims de novo. Brett, 142 Wn.2d at 873.
Was Kennon Entitled to the Instruction?
First, Kennon cannot show that he was entitled to the lesser included
offense instruction.
A defendant is entitled to an instruction on a lesser included offense when,
among other requirements, “‘there is evidence that the defendant committed only
the inferior offense.’” State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d
1150 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133
Wn.2d 885, 891, 948 P.2d 381 (1997)). The evidence is sufficient where
“substantial evidence in the record supports a rational inference that the
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No. 80813-3-I/16
defendant committed only the lesser included . . . offense.” Fernandez-Medina,
141 Wn.2d at 461. And we “review the supporting evidence in the light most
favorable to the party [seeking] the instruction.” Fernandez-Medina, 141 Wn.2d
at 455-56.
Here, “[a] person is guilty of assault in the second degree if [they] . . .
[i]ntentionally assault[ ] another and thereby recklessly inflict[ ] substantial bodily
harm.” RCW 9A.36.021(1)(a). “A person is guilty of assault in the third degree if
[they], under circumstances not amounting to assault in the first or second
degree[,] . . . [w]ith criminal negligence, cause[ ] bodily harm accompanied by
substantial pain that extends for a period sufficient to cause considerable
suffering.” RCW 9A.36.031(1)(f).
The mens rea elements for these offenses differ. As to second degree
assault, the person must act with intent, i.e., “with the objective or purpose to
accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a). The
accused must also “know[ ] of and disregard[ ] a substantial risk that a wrongful
act may occur and [their] disregard of such substantial risk is a gross deviation
from conduct that a reasonable person would exercise in the same situation.”
RCW 9A.08.010(1)(c). With regard to third degree assault, the accused must act
with criminal negligence, i.e., they “fail[ ] to be aware of a substantial risk that a
wrongful act may occur and [their] failure to be aware of such substantial risk
constitutes a gross deviation from the standard of care that a reasonable person
would exercise in the same situation.” RCW 9A.08.010(1)(d).
Kennon testified to intentionally hitting Zotica. And third degree assault is
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No. 80813-3-I/17
justified only where the accused acts negligently. We are not persuaded by
Kennon’s assertion that he was unaware of the risk because he slapped Zotica
with his nondominant hand. There can be no reasonable inference that
Kennon’s actions were merely negligent because he intentionally assaulted
Zotica. And as this court acknowledged in State v. Loos, 14 Wn. App. 2d 748,
759, 764, 473 P.3d 1229 (2020), “the mens rea of criminal negligence is
undoubtedly an inferior degree of culpability than intent.” Second degree and
fourth degree assault require intent, whereas third degree assault does not. See
Loos, 14 Wn. App. 2d at 763-65 (holding that the trial court erred in instructing
the jury on fourth degree assault where the State had charged the defendant with
third degree assault and concluding that fourth degree assault is neither a lesser
included offense nor an inferior degree offense to third degree assault). Because
Kennon admitted that he acted with intent, Kennon was not entitled to an
instruction for third degree assault.
Was Kennon’s Counsel’s Performance Deficient?
Kennon also cannot overcome the presumption that counsel’s
performance was not deficient.
Defense counsel is not required “to pursue every claim or defense,
regardless of its merit, viability, or realistic chance for success.” Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009).
Indeed, counsel’s conduct is presumed effective and is not deficient if it “can be
characterized as legitimate trial strategy or tactics.” State v. Kyllo, 166 Wn.2d
856, 862-63, 215 P.3d 177 (2009). To rebut this presumption, Kennon must
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show “there is no conceivable legitimate tactic explaining counsel’s
performance”3 “based on the record established in the proceedings below.” 4
Kennon fails to satisfy this requirement.
Grier is instructive. There, Kristina Grier was intoxicated when a fight
broke out between her and Gregory Owen. Grier, 171 Wn.2d at 21, 23. Grier
shot Owen, who was later pronounced dead. Grier, 171 Wn.2d at 23-25. The
State charged Grier with second degree murder with a firearm sentencing
enhancement. Grier, 171 Wn.2d at 25. Following a discussion with Grier, her
counsel withdrew the lesser included offense instructions for manslaughter in the
first and second degree. Grier, 171 Wn.2d at 26-27. Because Grier’s attorney
asserted that Grier was not armed with a weapon when Owen was shot, “Grier
and her defense counsel reasonably could have believed that an all or nothing
strategy was the best approach to achieve an outright acquittal.” Grier, 171
Wn.2d at 42-43. Our Supreme Court held that the court must assume “that the
jury would not have convicted Grier of [the greater offense] unless the State had
met its burden of proof” and that “the availability of a compromise verdict would
not have changed the outcome of Grier’s trial.” Grier, 171 Wn.2d at 43-44. The
court concluded that Grier could not meet her burden of proving her counsel’s
performance was deficient because “[t]hat this strategy ultimately proved
unsuccessful is immaterial to an assessment of defense counsel’s initial
calculus.” Grier, 171 Wn.2d at 43.
3 State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
4 Classen, 4 Wn. App. 2d at 535.
18
No. 80813-3-I/19
Here, as discussed above, Kennon fails to establish that he was entitled to
the third degree assault instruction. And counsel is not ineffective where they
withdraw an instruction “of what [they] believed was a claim doomed to fail.” See
Knowles, 556 U.S. at 124-26 (holding that defense counsel was not ineffective
where they withdrew a not guilty by reason of insanity instruction, where counsel
believed they had no evidence to prove insanity). Based on the record, Kennon’s
counsel likely chose not to request the instruction because Kennon’s theory
admitted that he intentionally hit Zotica, precluding the validity of a claim that he
committed third degree assault by criminal negligence. Furthermore, counsel
requested an inferior degree offense instruction for fourth degree assault, which
invokes the mens rea that Kennon admitted to, i.e., intent. Thus, Kennon fails to
rebut the strong presumption that his counsel was effective as well as the related
Grier presumptions. His ineffective assistance of counsel claim is without merit.
Kennon asserts that “Grier and [In re Pers. Restraint of ]Crace[, 174
Wn.2d 835, 280 P.3d 1102 (2012),] should not be read to categorically preclude
prejudice in the context of an ineffective assistance claim involving [a] lesser
offense instruction.” Grier and Crace do not create a categorical exclusion.
However, they do create presumptions that (1) the State met its burden of proof
to convict the defendant of the greater offense and (2) the outcome of trial would
not be different had the court supplied a lesser included offense instruction. In
Grier, our Supreme Court created the two presumptions regarding ineffective
assistance of counsel claims and lesser included offenses, 171 Wn.2d at 43-44,
and, in Crace, our Supreme Court applied Grier’s presumption to a similar
19
No. 80813-3-I/20
scenario. There, Hoyt Crace challenged his trial counsel’s decision not to
request the lesser included offense for second degree assault with a deadly
weapon, i.e., unlawful display of a deadly weapon. Crace, 174 Wn.2d at 838-39.
And the court concluded that his claim failed. Crace, 174 Wn.2d at 838-39, 848.
Although Kennon’s argument sees support from the Ninth Circuit Court of
Appeals in Crace v. Herzog,5 our Supreme Court precedent binds us. See, e.g.,
W.H. v. Olympia Sch. Dist., 195 Wn.2d 779, 788, 465 P.3d 322 (2020) (holding
that, where there was “no reason to overturn” precedent, it binds the court’s
decision via “stare decisis”). Therefore, the Grier presumptions apply.
Fundamental Right To Parent
Kennon contends that the court’s orders prohibiting his contact with his
children violated his fundamental right to parent. Because the sentencing court
did not provide an explanation for the scope or duration of the orders, we agree
and remand for the court to address the parameters of the no-contact orders
under the reasonably necessary standard.
“Parents have a fundamental liberty interest in the care, custody, and
control of their children.” State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246(2001). “That right cannot be abridged without due process of law.” In re
Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992); Ancira, 107 Wn. App.
at 653. Nonetheless, a trial court may impose crime-related sentencing
5 798 F.3d 840, 847 (9th Cir. 2015) (holding that “[t]he Washington
Supreme Court’s methodology is a patently unreasonable application of
Strickland[ v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984))].”
20
No. 80813-3-I/21
conditions that limit a parent’s rights. See In re Pers. Restraint of Rainey, 168
Wn.2d 367, 380, 229 P.3d 686 (2010) (affirming the scope of a sentencing
condition, which prohibited the defendant’s contact with his child);
RCW 9.94A.505(9). Sentencing “‘[c]onditions that interfere with fundamental
rights,’” like a parent’s rights regarding their children, “must be ‘sensitively
imposed’ so that they are ‘reasonably necessary to accomplish the essential
needs of the State and public order.’” Rainey, 168 Wn.2d at 377 (alteration in
original) (quoting State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008)). “We
generally review sentencing conditions for abuse of discretion.” Rainey, 168
Wn.2d at 374. “But we more carefully review conditions that interfere with a
fundamental constitutional right, such as the fundamental right to the care,
custody, and companionship of one’s children.” Rainey, 168 Wn.2d at 374(citation omitted).
In Rainey, our Supreme Court addressed a lifetime no-contact order that
prevented Shawn Rainey from contacting his daughter. 168 Wn.2d at 370. A
jury had convicted Rainey of first degree kidnapping after he disappeared with
his daughter, L.R., taking her to Mexico. Rainey, 168 Wn.2d at 371. On appeal,
the court concluded that, “on the facts of [Rainey’s] case,” the State’s interests in
protecting (1) L.R.’s mother from Rainey’s harassment, (2) L.R. from witnessing
domestic violence between her parents, and (3) the victim of a crime, L.R., from
future harm by the defendant are compelling and support the trial court’s decision
to prohibit Rainey’s contact with L.R. Rainey, 168 Wn.2d at 377, 379.
Nonetheless, the court struck the no-contact order and remanded for
21
No. 80813-3-I/22
resentencing. Rainey, 168 Wn.2d at 381-82. It reasoned that “[t]he sentencing
court in this case provided no reason for the duration of the no-contact order” and
the “fact-specific nature of the inquiry” into a no-contact order’s duration requires
the sentencing court to “address the parameters of the no-contact order under
the ‘reasonably necessary’ standard.” Rainey, 168 Wn.2d at 381-82.
Here, like in Rainey, the court failed to provide any justification for the
scope and the duration of the sentencing conditions prohibiting Kennon’s contact
with his children. That is, the court provided no explanation, though it entered
the orders following the children’s advocate’s statement that “the children would
like the full orders in place.” Indeed, the State concedes that the trial court failed
to provide the required justification. Because the court failed to address the need
for and duration of the no-contact orders, the trial court erred.6 See State v.
Torres, 198 Wn. App. 685, 690, 393 P.3d 894 (2017) (holding that, where the trial
court did not analyze the need for a no-contact order against a parent regarding
their child, the trial court abused its discretion). On remand, the court must:
(1) address whether the no-contact orders “remain[ ] reasonably necessary in
light of the State’s interests in protecting” K.K., M.K., and V.K. from harm, (2) if
they are, then the court must narrowly tailor the orders, “both in terms of scope
and duration,” and (3) the court should consider less restrictive alternatives when
6 Kennon also asserts that the trial court erred when it imposed
Department of Corrections’ supervision fees. But as discussed below, the trial
court erred when it failed to apply the POAA and impose a life sentence. And “no
offender subject to [the POAA] may be eligible for community custody.”
RCW 9.94A.570. Therefore, the issue is moot.
22
No. 80813-3-I/23
it comes to the orders’ scopes and duration.7
POAA
In its cross appeal, the State contends that the trial court erred when it
failed to impose a life sentence under the POAA. Because the trial court erred
when it allowed Kennon to attack his prior conviction and lacked discretion under
the POAA, we agree.
Under the POAA, “a persistent offender shall be sentenced to a term of
total confinement for life without the possibility of release.” RCW 9.94A.570.
And a persistent offender is a defendant who has been convicted of a most
serious offense and (1) has two prior felonies that also are most serious offenses
or (2) has been convicted of rape of a child in the first degree, or child
molestation in the first degree. RCW 9.94A.030(37). A “most serious offense”
means any class A felony. RCW 9.94A.030(32)(a). “Burglary in the first degree
is a class A felony.” RCW 9A.52.020(2).
Applicable here, the jury convicted Kennon of burglary in the first degree
with the domestic violence aggravator. In addition, the State provided proof—
copies of the plea agreements—that Kennon pleaded guilty to (1) child
molestation in the first degree in 1991 (1991 conviction) and (2) rape of a child in
the first degree in 1992 (1992 conviction). In sum, Kennon has been convicted of
one most serious offense, first degree child rape, and first degree child
molestation.
7If the trial court decides that the no-contact orders are not appropriate
and allows the children to visit Kennon, the court also should review the no-
contact order protecting Zotica to accommodate any changes.
23
No. 80813-3-I/24
The court originally found that the State satisfied its burden of proving both
prior convictions exist by a preponderance of the evidence. However, after
Kennon’s arguments regarding racial injustices wrought by the application of the
POAA, the court allowed Kennon to collaterally attack the 1991 conviction
because the plea agreement did not include two elements of the crime of child
molestation.
Our Supreme Court rejected a similar challenge in State v. Ammons, 105
Wn.2d 175, 189, 713 P.2d 719, 718 P.2d 796 (1986). Specifically, one of the
defendants in a multidefendant appeal challenged the validity of his guilty plea
because it “failed to set forth the elements of the” charged crime. Ammons, 105
Wn.2d at 189. The court concluded that “[t]he defendant has no right to contest
a prior conviction at a subsequent sentencing.” Ammons, 105 Wn.2d at 188.
Kennon’s counsel on appeal “is unable to meaningfully distinguish Ammons.”
And because Kennon challenged the validity of his guilty plea for the same
reason the defendant in Ammons did, Ammons controls. Thus, the court should
not have permitted Kennon to attack the validity of the 1991 plea, and the trial
court erred in disregarding the 1991 conviction. Because Kennon’s prior
convictions and his current conviction constitute serious offenses, under the plain
meaning of the POAA, Kennon is a persistent offender subject to mandatory life
imprisonment. The court erred when it chose not to order the sentence that the
POAA mandates.
While Kennon admits that the POAA dictates a mandatory sentence of life,
he contends that life without the possibility of parole “constitutes cruel
24
No. 80813-3-I/25
punishment because it disproportionally impacts Black people.”8 “The Eighth
Amendment [to the United States Constitution] bars cruel and unusual
punishment while article I, section 14 [to the Washington Constitution] bars cruel
punishment.” State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888 (2014).
Accordingly, article I, section 14 is more protective than the Eighth Amendment.
State v. Moretti, 193 Wn.2d 809, 820, 446 P.3d 609 (2019). “We have
continually upheld sentences imposed under the POAA as constitutional and not
cruel under article I, section 14” of the Washington Constitution. Moretti, 193
Wn.2d at 820; see also Witherspoon, 180 Wn.2d at 889 (holding that the
defendant’s life sentence under the POAA was not cruel and unusual
punishment).
With regard to his contention that the POAA constitutes cruel punishment,
Kennon cites our Supreme Court’s decision in State v. Gregory, 192 Wn.2d 1,
23-24, 427 P.3d 621 (2018), in which the court held that the state’s death penalty
was unconstitutional as administered. The court concluded that, because the
death penalty was imposed in an arbitrary and racially biased manner, the
State’s “capital punishment law lacks ‘fundamental fairness’ and thus violates
article I, section 14” of the state constitution. Gregory, 192 Wn.2d at 24.
Although Gregory applied only to the administration of the death penalty,
8 Kennon also asserts that it is cruel and unusual because “there is a large
gap in time between [his] current offenses and his prior strike offenses.” But
Kennon fails to acknowledge that he spent a portion of the time following his
1992 conviction in jail. Specifically, Kennon was sentenced to 102 months.
Whether he spent that entire time in custody or not, the amount of time between
convictions is not a basis to conclude that the POAA constitutes cruel and
unusual punishment.
25
No. 80813-3-I/26
Kennon’s reliance on its analysis is not completely misplaced. Indeed, Justice
Yu has questioned the validity of the POAA based on the principles set forth in
Gregory.9
To this end, there is substantial evidence that the POAA applies to men of
color at alarmingly disproportionate rates.10 Unfortunately, this disproportionality
is the result of the systemic racial injustices throughout our criminal justice
system: men of color are disproportionally stopped, arrested, charged, and
convicted of crimes, which lead to a disproportionate number of black men with
three most serious offenses.11 But our Supreme Court has concluded that the
9 See Moretti, 193 Wn.2d at 840 (Yu, J., concurring) (“We should not be
satisfied with the status quo; permanent incarceration has neither reduced crime
nor increased confidence in our criminal justice system. The principles set forth
in Gregory compel us to ask the same questions about a life sentence without
the possibility of parole. Is it fairly applied? Is there a disproportionate impact on
minority populations? Are there state constitutional limitations to such a
sentence?”).
10 See STATE OF W ASH. SENTENCING GUIDELINES COMM’N, TWO-STRIKES AND
THREE-STRIKES: PERSISTENT OFFENDER SENTENCING IN W ASHINGTON STATE
THROUGH JUNE 2008, at 10 (Feb. 2009) (Out of the 314 persistent offenders
sentenced under the POAA up to 2008, 127 were black.),
http://www.cfc.wa.gov/PublicationSentencing/PersistentOffender/Persistent_Offe
nder_asof20080630.pdf [https://perma.cc/7AFY-C7KH]; see also Florangela
Davila, State ‘Three Strikes’ Law Hits Blacks Disproportionately, SEATTLE TIMES
(Feb. 18, 2002) (The Sentencing Guidelines Commission report “shows blacks
make up 3 percent of the statewide population but 37 percent of the state’s three-
strike lifers.”),
https://archive.seattletimes.com/archive/?date=20020218&slug=sentencing18m
[https://perma.cc/B6B5-LT3A].
The State describes Kennon’s assertion that the POAA has a
disproportionate impact on black people as simplistic and conclusory. To the
contrary, it is widely recognized as fact that three strikes laws like the POAA
have disproportionate impacts on black people.
11 See, e.g., Davila, supra (“Young black males are more likely to be
sentenced to prison; they are more likely to be sentenced and incarcerated for
drug offenses; and they are more likely to be arrested for violent and property
crimes than are their white counterparts.”); see also ASHLEY NELLIS, SENTENCING
26
No. 80813-3-I/27
POAA does not constitute cruel and unusual punishment. See Moretti, 193
Wn.2d at 820 (noting that Washington courts have continually upheld sentences
under the POAA, holding that life sentences under the POAA are not cruel).
Furthermore, unlike the death penalty, the POAA is not arbitrarily imposed
because it provides no discretion to the trial court. RCW 9.94A.570 (“A
persistent offender shall be” sentenced to life in prison without the probability of
parole. (emphasis added)).
Although Kennon presents evidence on appeal that supports a conclusion
that the POAA disproportionally affects men of color, particularly black men, he
provided information unlike the thorough study commissioned by the defendant in
Gregory. In Gregory, the studies provided evidence to support “a clear showing
that the rule is incorrect and harmful.” 192 Wn.2d at 34. Gregory’s studies
provided evidence on the effect of race and the imposition of the death penalty
that was updated, exhaustively vetted, and subjected to review by a Supreme
Court commissioner. 192 Wn.2d at 12-13. Kennon has not presented a similar
study. We are unable to reach a conclusion contrary to the Supreme Court’s in
Moretti without thorough data that is sufficiently vetted.
It is in the purview of the legislature to amend or abolish the POAA. See,
PROJECT, THE COLOR OF JUSTICE: RACIAL AND ETHNIC DISPARITY IN STATE PRISONS
10 (Jun. 14, 2016) (“Still other research finds that prosecutorial charging
decisions play out unequally when viewed by race, placing blacks at a
disadvantage to whites. Prosecutors are more likely to charge black defendants
under state habitual offender laws than similarly situated white defendants.”),
https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-
disparity-in-state-prisons/ [https://perma.cc/8WM8-GW7X].
27
No. 80813-3-I/28
e.g., Moretti, 193 Wn.2d at 830 (“Regardless of any personal opinions as to the
wisdom of this statute, we have ‘long deferred to the legislative judgment that
repeat offenders may face an enhanced penalty because of their recidivism.’”
(quoting State v. Fain, 94 Wn.2d 387, 390-91, 402, 617 P.2d 720 (1980))); see
also RCW 9.94A.728, official notes (listing the legislature’s amendments to the
POAA).
For the foregoing reasons and based on the record before us, we cannot
revisit this issue.
Statement of Additional Grounds for Review (SAG)
In his SAG, Kennon alleges that “the court failed to recognize that there
was no probable cause for the felony violation of a no-contact order convictions”
and that his trial counsel erred when it stipulated that he had “two prior
convictions necessary to elevate or even file charges for felony violation of no-
contact orders.”12 He asserts that “[t]he stipulation entered into by his lawyer was
based on inaccurate, mistaken and false information.” In so asserting, Kennon
attempts to attack his previous convictions for violation of no-contact orders.
Specifically, he asserts that there is exculpatory information including that he had
a key to the apartment and that he was invited. However, Kennon cannot attack
the validity of his prior convictions. See Ammons, 105 Wn.2d at 188 (concluding
that a defendant cannot attack a prior conviction at a subsequent sentencing).
Therefore, this assertion fails.
Kennon also contends that he was subject to double jeopardy when the
12 (Capitalization omitted.)
28
No. 80813-3-I/29
jury convicted him of four counts of felony violation of a court order. “The double
jeopardy provisions of the state and federal constitutions protect against (1) a
second prosecution for the same offense after an acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple punishments
for the same offense.” State v. Robinson, 8 Wn. App. 2d 629, 638, 439 P.3d 710(2019). “‘When a person is charged with multiple counts of the same offense,
each count must be based on a separate and distinct criminal act.’” State v.
Madden, 16 Wn. App. 2d 327, 332, 480 P.3d 1154 (2021) (internal quotation
marks omitted) (quoting Robinson, 8 Wn. App. 2d at 638). Here, it is clear that
Kennon was not subject to double jeopardy because each conviction rested on
separate and distinct contact. Kennon was charged and convicted of one count
each of violation of a court order for his contact with Zotica, K.K., M.K., and V.K.
on August 14, 2018. Therefore, Kennon’s contention is without merit.
Finally, Kennon cites information on the systemic prosecution, conviction,
and oversentencing of black males. As discussed above, we must acknowledge
the validity of these injustices in reaching the issue of Kennon’s sentence under
the POAA. Nonetheless, this information does not provide a basis to overturn
Kennon’s conviction, and there are no other legal bases to do so.
29
No. 80813-3-I/30
We remand for resentencing.
WE CONCUR:
30
No. 80813-3-I/1
State v. Kennon, NO. 80813-3-I
DWYER, J. (concurring)—I agree with the resolution of the issues
addressed in the majority opinion. I write separately because I would deny the
claim of ineffective assistance of counsel on a different basis.
In order to establish ineffective assistance of counsel, a defendant must
establish both that the defense attorney’s performance was deficient and that the
deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d
61, 77-78, 917 P.2d 563 (1996). “Where the claim of ineffective assistance is
based upon counsel’s failure to request a particular jury instruction, the
defendant must show he was entitled to the instruction, counsel’s performance
was deficient in failing to request it, and the failure to request the instruction
caused prejudice.” State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996(2012) (citing State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007)).
In Strickland itself—the seminal opinion in ineffective assistance of
counsel jurisprudence—the Supreme Court explicitly defined the type of
prejudice that must be shown to satisfy its requirements.
In making the determination whether the specified errors
resulted in the required prejudice, a court should presume, absent
challenge to the judgment on grounds of evidentiary insufficiency,
that the judge or jury acted according to law. An assessment of the
likelihood of a result more favorable to the defendant must exclude
the possibility of arbitrariness, whimsy, caprice, “nullification,” and
the like. A defendant has no entitlement to the luck of a lawless
decisionmaker, even if a lawless decision cannot be reviewed. The
1
No. 80813-3-I/2
assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision. It should not
depend on the idiosyncracies of the particular decisionmaker, such
as unusual propensities toward harshness or leniency.
Strickland, 466 U.S. at 694-95 (emphasis added).
Here, upon Kennon’s request, the court issued an inferior degree
instruction regarding assault in the fourth degree. The instruction given included
the following sentence, mirroring Washington Pattern Jury Instruction 4.11:1
If, after full and careful deliberation on these charges, you are not
satisfied beyond a reasonable doubt that the defendant is guilty,
then you will consider whether the defendant is guilty of the lesser
crime.
Jury Instruction 27 (emphasis added). Thus, as properly instructed, the jury had
no occasion to consider a lesser included offense instruction if it found the
defendant guilty of the greater offense.
Accordingly, had Kennon’s counsel requested an inferior degree
instruction regarding assault in the third degree, instruction 27 would have
controlled the jury’s deliberative process. Because the jury did unanimously
determine that Kennon was guilty of assault in the second degree, we know that
it would never have considered whether he was guilty of assault in the third
degree, even if an instruction regarding that crime had been requested and
granted. We say this because ineffective assistance of counsel jurisprudence
conclusively presumes that the jury follows its instructions on the law. Strickland,
466 U.S. at 694.
1 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.11
(4th ed. 2016).
2
No. 80813-3-I/3
Our Supreme Court previously explained as much in State v. Grier, 171
Wn.2d 17, 246 P.3d 1260 (2011), in which it determined that a defendant could
not establish that a failure to request a lesser included offense instruction on
manslaughter caused her prejudice.
Had the Court of Appeals instead assumed the jury would follow
the law by convicting Grier of second degree murder only where the
State had proved each of the required elements beyond a
reasonable doubt, it would not have found that the absence of a
manslaughter instruction led to an erroneous conviction. Indeed,
the proposed manslaughter instructions instructed the jury not to
consider manslaughter if convinced beyond a reasonable doubt
that Grier was guilty of second degree murder. . . . (“If, after full
and careful deliberation on this charge, you are not satisfied
beyond a reasonable doubt that the defendant is guilty, then you
will consider whether the defendant is guilty of the lesser crimes of
Manslaughter in the First Degree or Manslaughter in the Second
Degree.”). Because the jury returned a guilty verdict, we must
presume that the jury found Grier guilty beyond a reasonable doubt
of second degree murder.
Grier, 171 Wn.2d at 41. The court reemphasized this point later in its opinion.
Nor can Grier establish prejudice under the second prong of
Strickland. Assuming, as this court must, that the jury would not
have convicted Grier of second degree murder unless the State
had met its burden of proof, the availability of a compromise verdict
would not have changed the outcome of Grier’s trial. See
Strickland, 466 U.S. at 694 (“a court should presume . . . that the
judge or jury acted according to law”); 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).
Grier, 171 Wn.2d at 43-44.
The Grier decision was later followed and correctly applied by the court in
In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012).
Kennon, however, contends that Grier was wrongly decided. This is so,
he asserts, because two Ninth Circuit judges joined in a majority opinion that
3
No. 80813-3-I/4
criticized Grier on the basis that “a jury—even one following the law to the
letter—might reach a different verdict when presented with additional options.”
Crace v. Herzog, 798 F.3d 840, 848 n.3 (9th Cir. 2015).2 In so observing, the
federal circuit court panel does not demonstrate a command of Washington law.
As Grier notes, a jury that unanimously finds guilt on the greater offense has no
further opportunity to reach a different verdict. Here, the jury, by unanimous
agreement, found Kennon guilty of assault in the second degree—the greater
offense—beyond a reasonable doubt. Consistent with its instructions, it would
never have considered the option of assault in the third degree. Kennon cannot
show that he was prejudiced by the absence of an instruction on an option the
jury would never have considered.
I would resolve the ineffective assistance of counsel claim on this basis.
In all other respects, I join in the majority opinion.
2 There is nothing controlling about a Ninth Circuit opinion—even one dealing with federal
constitutional law. Instead, we have significant latitude when analyzing the decisions of the
various federal appellate courts. “[T]he geographical location of the court issuing the opinion is of
no moment. ‘We have never held that an opinion from the Ninth Circuit is more or less persuasive
than, for example, the Second, Sixth, Seventh, Eighth, or Tenth Circuits.’ In re Pers. Restraint of
Markel, 154 Wn.2d 262, 271 n.4, 111 P.3d 249 (2005). Thus, we are properly guided by the
principles of law announced in the most well-reasoned of the decisions we have reviewed. We
are not, however, bound to follow a holding of a lower federal court merely because it was
announced as such.” S.S. v. Alexander, 143 Wn. App. 75, 92-93, 177 P.3d 724 (2008).
4