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State v. Kamps5/13/2003
, 14, 17 and 18. As noted, Instruction 5 contained a harmless error. Assuming counsel was deficient in not challenging Instruction 5, a corrected instruction would not have changed the result. Similarly, Instructions 14 and 17 cannot support an ineffectiveness claim. Mr. Kamps does not mention ineffectiveness in connection with Instructions 6, 9, and 15. Consequently, Instruction 18, proposed by Mr. Kamps, remains for our consideration.
Instruction 18 states:
The use of force upon or toward the person of another is justified to protect a third person when:
1. The actor would be justified in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and
2. Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
3. The actor believes that his intervention is necessary for the protection of such person; and
4. The apprehension of danger as perceived by the actor is reasonable under the circumstances. CP at 570.
Defense counsel articulated a tactical reason for proposing the instruction. His objective was to impose a burden on the State of proving Mr. Pourier reasonably believed he was protecting Ms. Peterson. An observer may question the tactic, after all, the jury verdict reflects acceptance of the State's theory. However, we will not second guess defense counsel's tactical decisions.
Moreover, evidence in the record supports the instruction; Mr. Pourier entered Mr. Kamps' residence in response to a report of an assault on Ms. Peterson. The domestic violence situation resulted in Mr. Pourier fighting with Mr. Kamps. The instruction was proper and counsel made a sound tactical decision in requesting it.
Regarding expert witnesses, Mr. Kamps moved for a new trial partly on the basis of counsel not putting a forensic investigator on the witness stand. Generally, 'the decision to call witnesses rests with counsel, not with the defendant.' In re Pers. Restraint of Stenson, 142 Wn.2d 710, 741, 16 P.3d 1 (2001) (citing Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988); State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967)). Assuming without deciding counsel was deficient in this respect, Mr. Kamps has not shown any reasonable probability the result would have been any different.
Further, counsel's decision not to use the investigator's testimony could be characterized as a legitimate trial tactic. A battle of experts over bullet wounds and shell cases would have served only to highlight for the jury the fact that Mr. Kamps shot Mr. Pourier nine times.
In sum, Mr. Kamps has not shown counsel's alleged deficiencies caused any resulting prejudice. Accordingly, his ineffectiveness claim is unpersuasive.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Brown, C.J.
WE CONCUR:
Schultheis, J.
Kato, J.
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