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State v. Kamps5/13/2003
To establish ineffective assistance of counsel, Mr. Kamps must show (1) counsel's representation was deficient, and (2) the deficiency caused him prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996); Strickland v. Washington, 466 U.S. 668, 687-89, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If the defendant fails to establish either prong of the Strickland test, the appellate court need not examine the other prong. Hendrickson, 129 Wn.2d at 78.
We presume counsel properly represented the defendant. Id. at 77. Counsel's representation is deficient when it falls 'below an objective standard of reasonableness' under prevailing professional norms. In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992) (citing Strickland, 466 U.S. at 687-88). If we can characterize counsel's conduct as legitimate trial strategy or tactics, then we must conclude the defendant did not receive ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
We evaluate counsel's performance against the entire record. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972). If counsel's representation was deficient, this court will determine if prejudice results. Hendrickson, 129 Wn.2d at 78. To establish prejudice, the defendant must show a reasonable probability that but for the deficient representation, the result of the trial would have been different. Id. Regarding prior statements, Mr. Kamps asserts generally counsel did not object to pre-recorded statements, specifically the statement of Mr. Pourier. The record shows defense counsel requested more foundation. After voir dire, and after the trial court indicated the evidence was probably admissible because of Mr. Pourier's damaged memory, defense counsel stated he had no objection but asked certain highly prejudicial bad-act portions be excised. The trial court agreed. After the tape was played, defense counsel objected to it being played repeatedly.
The State presented evidence that the injuries inflicted on Mr. Pourier and the subsequent surgery seriously degraded his memory. This was sufficient foundation to admit the recorded statement as a recorded recollection under ER 803(a)(5). A defense objection on hearsay grounds would have been futile. Defense counsel's decision not to oppose admission of the recording was an understandable tactical decision.
Regarding cross-examination of Ms. Blankenship, Mr. Kamps, pro se contends counsel should have impeached her with prior inconsistent statements from the police report. The State concedes Ms. Blankenship was a poor witness, thus providing an opportunity to admit her prior statements under ER 803(a)(5). But the State argues it would have been a tactical error to invoke ER 803(a)(5), because it would have opened the door to even more incriminating evidence lying within Ms. Blankenship's statement.
The State has the better argument. Certainly, counsel could have attempted to use ER 803(a)(5) to get to certain inconsistencies between Ms. Blankenship's trial testimony and her police statement. The trial court might have admitted the statement. But that would have opened the door to the rest of Ms. Blankenship's statement under ER 106, the rule of completeness.
Considering Ms. Blankenship's entire statement, we have no difficulty understanding defense counsel's tactical decision not to introduce it into evidence. The statement paints a picture of Mr. Kamps gunning down the victim in a manner that would have defeated Mr. Kamps' self-defense theory. Consequently, Mr. Kamps' argument on this point is unpersuasive.
Regarding instructions, Mr. Kamps points to his counsel's handling of instructions 5
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