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Zombie “not a scientific term” so attorney error not “ineffective assistance”

March 20, 2012

The theory of the defense’s closing argument was that since the victim described the defendant as a zombie, the defendant was not acting with intent. But after strongly pressing the zombie defense in closing argument, the attorney failed to request jury instruction about unconsciousness. The Court decided that the attorney fell below Sixth Amendment reasonableness standards but that it was not ineffective assistance of counsel in this case because the error was not prejudicial. The Court says “zombie” is not a scientific term and that there was ample other evidence of consciousness to make the attorney’s error not prejudicial to the verdict.

JUAN THOMAS WILKINSON, Petitioner, v. HEDGPETH, Warden, Respondent.
1:09-cv-01672-JLT HC

December 2, 2011, Filed

Counsel’s failure to “emphasize” the intoxication defense in his closing argument was not, in the Court’s view, deficient. Clearly, in light of the excerpt of the closing argument quoted above, defense counsel had decided to argue unconsciousness, a complete defense to all charges, rather than voluntary intoxication, which would have left Petitioner without a defense to the assault charge. This tactical decision necessarily involved a trade-off: if the defense pursued voluntary intoxication, then Petitioner would likely have been convicted of assault even if the jury found he lacked the requisite intent for the other charged crimes. If the defense pursued the weaker unconsciousness as a complete defense, the chances of persuading the jury were lessened but, if successful, would result in an acquittal on all charges.

Thus, rather than argue intoxication, for which there was ample evidence of consumption but only inferential, i.e., non-scientific and non-expert, evidence of intoxication, counsel chose to pursue a defense for which the primary evidence was the testimony of the victim himself, i.e., that Petitioner acted like a “zombie.” Clearly, counsel hoped that in using the victim’s own description of Petitioner as the main evidence of the defense of unconsciousness, he would find a more receptive audience for what was, by any description, a brutal and seemingly unprovoked attack on the victim. Although it is easy to second-guess defense counsel’s tactical choice in light of what we know now, the Court cannot conclude that defense counsel’s decision to employ a defense that would, if persuasive, result in an acquittal on all, rather than most, charges, fell below an objective standard of reasonableness.

Moreover, evidence was elicited at trial that Petitioner had been drinking and the jury was properly instructed on voluntary intoxication. Thus, had the jury been convinced beyond a reasonable doubt that Petitioner was intoxicated, it could still have found Petitioner not guilty of all but the assault charge. It is doubtful that had counsel decided to press the intoxication defense in closing argument, would have had a significant impact on the jury’s decision one way or the other. Rather, it is far more likely that, as the 5th DCA found, the jury rejected the intoxication defense because the evidence of intoxication sufficient to negate intent was de minimis and the evidence of Petitioner’s intent to kill the victim was overwhelming. Accordingly, the Court does not find that trial counsel’s performance was deficient for failure to emphasize the intoxication defense in closing.

Regarding counsel’s choice of unconsciousness as a defense strategy, the Court is understandably hesitant to second-guess trial counsel’s tactical choices. However, having made such a tactical choice, it seems clear that a reasonable defense attorney would have then requested a jury instruction on the specific defense he has chosen. See United States v. Span, 75 F.3d 1383, 1387 (9th Cir. 1996)(holding that counsel’s performance may be constitutionally deficient if counsel fails to request appropriate jury instructions, including lesser included offense instructions). A defense counsel’s performance is not constitutionally ineffective if he or she, “with adequate knowledge of the law and the evidence,” chooses not to request an instruction as long as such a choice is reasonable. Butcher v. Marquez, 758 F.2d 373, 376-377 (9th Cir. 1985). However, merely labeling such a choice “trial strategy” does not automatically immunize an attorney’s performance from Sixth Amendment challenges. Span, 75 F.3d at 1389. Counsel’s performance is deficient if “[c]ounsel’s errors with the jury instructions were not a strategic decision to forego one defense in favor of another” but “the result of a misunderstanding of the law.” Id. at 1390.

Here, it appears that trial counsel’s failure to request an unconsciousness instruction after having determined to pursue a defense based on unconsciousness was not a tactical decision, but an oversight. Whether such an instruction would be inconsistent with an intoxication defense is irrelevant here, since defense counsel clearly chose not to pursue intoxication as a defense. Thus, the only explanation for counsel’s failure to request an instruction on unconsciousness is either inadvertence or ignorance of the law. In the Court’s view, once counsel committed to a defense of unconsciousness, as opposed to voluntary intoxication, he had the duty, as a reasonable attorney, to request that the jury be properly instructed as to the legal consequences of such a defense if the jury should believe it. Without such an instruction, counsel’s chosen defense would be effectively doomed. Put another way, trial counsel’s failure to request an instruction on his chosen defense would have severely limited any chances the defense had that jurors, even if persuaded by the evidence of Petitioner’s unconsciousness, would have had adequate legal instruction that would allow it to arrive at a more favorable verdict.

In light of the foregoing, and even indulging in a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, it appears that defense counsel’s failure to request an instruction on his own theory of the defense fell below the standard of reasonableness required by the Sixth Amendment, as construed in Strickland.

BUT the Court goes on to says that this below standard lawyering does not itself mean that Wilkinson had received ineffective assistance of counsel. The Court explains that Strictland is a two part test:

As mentioned, the 5th DCA’s opinion addressed the second prong of Strickland, i.e., prejudice, and ruled that Petitioner was not prejudiced by counsel’s failure to assert a defense of intoxication since there was overwhelming evidence that Petitioner possessed the requisite intent to kill the victim required by California law. Accordingly, this Court is bound by the more deferential AEDPA standard of review regarding this issue. Also as mentioned, this Court must therefore be doubly deferential, i.e., the Court must be convinced not only that the state court’s adjudication was wrong but that it was objectively unreasonable in determining that Petitioner was not prejudiced by his counsel’s actions. Yarborough, 540 U.S. at 5. For the reasons discussed below, the Court agrees with the state court’s determination that Petitioner was not prejudiced by counsel’s actions.

The Court continues:

The terms used by the victim, however, to describe Petitioner, e.g., “zombie” and “taken over,” are not scientific terms, and defense counsel did not present any scientific evidence or expert testimony about unconsciousness, either in general or specific to this case. Thus, the jury could, and clearly did, interpret Donnie’s testimony, and the precise words he used about Petitioner acting like a zombie and as if he had been taken over by someone else, as evidence of some mental state other than unconsciousness, e.g., anger, rage, or even mere loss of self-control. Moreover, as the 5th DCA pointedly observed, notwithstanding the victim’s characterization of Petitioner, there was simply no credible evidence, other than the defense’s interpretation of Donnie’s own words, that Petitioner was actually unconscious during the attack. To the contrary, for the reasons discussed previously, the evidence was overwhelming that Petitioner was both conscious and well aware of his actions during the assault. Accordingly, the Court agrees with the 5th DCA that Petitioner was not prejudiced by counsel’s failure to request an instruction on unconsciousness.

And so despite finding attorney “defense counsel’s failure to request an instruction on his own theory of the defense fell below the standard of reasonableness required by the Sixth Amendment”, still the Court concludes:

In the present case, the Court finds that Petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Accordingly, the Court DECLINES to issue a certificate of appealability

Will this opinion be further appealed? Are we sure zombie is not scientific-term? What exactly is a scientific-term? Also, are we really content to agree that “below the standard” of “the Sixth Amendment” is not the same as a “denial of a constitutional right” and thus unconstitutional “ineffective assistance of counsel” ??? Hello Ninth Circuit… ?

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