 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Slert8/9/2005
withdrawing or intends to withdraw from further aggressive action.') (emphasis added).
A defendant demonstrates ineffective assistance of counsel by proving (1) that counsel's representation fell below an objective and reasonable standard; and (2) that counsel's errors were serious enough to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986). A defendant's counsel is ineffective if there is a reasonable probability that, absent counsel's errors, the outcome of the trial would have been different. Strickland, 466 U.S. at 687-88. Further, an attorney's failure to propose a legally adequate jury instruction can constitute ineffective assistance. State v. Cienfuegos, 144 Wn.2d 222, 228-29, 25 P.3d 1011 (2001).
Here, after punching Benson, Slert left the truck, turned his back to Benson, walked 50 yards in the dark to his tent and over at least one log to fetch and light a lantern. Slert's actions clearly communicated to Benson his intention to withdraw from further conflict. Further, Slert's theory of the case was self-defense, thus his counsel's failure to propose a revival instruction supported by the evidence deprived Slert the ability to argue his central theory of the case and could have affected the trial outcome. Thus, under the circumstances here, Slert's counsel's performance fell below an objective and reasonable standard of representation and prejudiced his trial.
We reverse and remand for a new trial based on (1) the trial court's rejection of Slert's proposed instruction on justifiable homicide in resistance of a felony (residential burglary); and (2) ineffective assistance of counsel regarding the failure to propose a revival instruction.
III. CrR 3.
Slert argues that the trial court should have suppressed the statements he made after he received Miranda warnings and invoked his right to remain silent at the campsite. Slert focuses on: (1) his statements to McCrosky in the patrol car enroute from the crime scene to jail; and (2) his tape recorded statement made later at the jail. Slert argues that these statements should be suppressed because police failed to scrupulously honor Slert's invocation of his Miranda rights at the crime scene.
We review factual findings following a motion to suppress for substantial evidence; we review de novo the suppression order's conclusions of law. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002); State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Substantial evidence in the criminal context here means evidence sufficient to persuade 'an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.' State v. Summers, 107 Wn. App. 373, 388, 28 P.3d 780, 43 P.3d 526 (2001) (citation omitted). We review de novo whether the trial court derived the proper conclusions of law from its findings of fact.5 State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002), review denied, 149 Wn.2d 1025 (2003).
A trial court determines the voluntariness of a defendant's statement by reviewing the totality of the circumstances. State v. Aten, 130 Wn.2d 640, 663-64, 927 P.2d 210 (1996). Further, '{w}hen a trial court determines a confession is voluntary, that determination is not disturbed on appeal if there is substantial evidence in the record from which the trial court could have found the confession was voluntary by a preponderance of the evidence.' Aten, 130 Wn.2d at 664.
'A suspect or an accused who invokes the right to counsel but then initiates further communication or conversation with law enforcement officers w
Page 1 2 3 4 5 6 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|