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State v. Labrensky

December 19, 1996


Appeal from Superior Court of King County. Docket No: 95-8-03270-4. Date filed: 08/24/95.

Petition for Review Denied July 8, 1997,

PER CURIAM. Michael Labrensky appeals a juvenile court order of Disposition entered following his conviction of third degree assault. He argues that the trial court abused its discretion in ordering him to proceed to trial early with substitute counsel and that he was denied effective assistance of counsel. Finding no reversible error, we affirm the conviction.

Labrensky was charged with third degree assault when he allegedly sprayed mace at an acquaintance. Fact-finding in juvenile court was set for August 3, 1995. On July 19, 1995, the prosecutor discovered that "one of the State's essential witnesses", Josh McElvan, would not be available for the fact-finding because he was moving to Illinois on July 28. At the time of the charged incident, this witness had been waiting nearby in Labrensky's brother's car, and would testify that Labrensky got into the car saying, "I maced him." The witness had also seen a can of mace between the seats when he first got in the car.

On July 20, the prosecutor contacted the defense agency representing Labrensky and learned that Labrensky's counsel of record, Susan Hamilton, was out of the state attending a conference. After unsuccessfully attempting to communicate with personnel at the agency, the prosecutor spoke on July 24 with Ann Mahoney, who was assigned to handle the case in Ms. Hamilton's absence. The prosecutor informed her that he was setting a hearing for July 25 to move that McElvan's testimony be heard before he left town, more than one week in advance of the scheduled trial date.

Mahoney appeared at the hearing, opposing the motion to take McElvan's testimony in the absence of Labrensky's counsel of record. Mahoney also argued she did not have time to adequately prepare, the defense had not yet been able to interview the witness, and the State could transport the witness back to Washington for the trial. The hearing Judge granted the motion on the ground that McElvan was a crucial witness in that he was the only one to hear what Labrensky said when he got back in the car. The Judge also stated that it was "not a complex issue". Although she conceded there was "some prejudice" to Labrensky, she concluded it was not "unfairly prejudicial given the nature of the case, the length of the trial [an hour and a half] and the length of the interview."

Fact-finding began on July 27. Again, Ms. Mahoney appeared and objected to the proceedings in the absence of Ms. Hamilton. Asserting that the defense investigator had interviewed the witness the previous day, she had not yet seen the interview notes, and she was "unprepared to go forward", she moved for reconsideration and/or a continuance. The court offered only to give her time to review the notes, but she asserted they were not in the court, and in any case, she did not know how Ms. Hamilton would want her to proceed.

The court proceeded with fact-finding. After the State's opening statement, Mahoney declined to give an opening statement, saying she was unprepared. McElvan testified that he, Labrensky, and Labrensky's brother drove to a friend's house where they briefly visited. McElvan and Labrensky's brother returned to the car, and Labrensky remained outside talking with Aaron Olson. Then Labrensky got in the car, saying "I maced him." On further questioning, McElvan stated he had seen mace between the seats when he first got into the car. Mahoney declined to cross-examine the witness. The court recessed after this testimony.

On August 7, the fact-finding resumed with Susan Hamilton as counsel.

Aaron Olson, who knew Labrensky from school, testified that when they left the friend's house they spoke outside for a short time. As Olson turned his head, Labrensky sprayed him in the face with mace and jumped in the car. He saw something in Labrensky's hand but could not identify it as a can. He was blinded and suffered from irritation for several hours.

The police were called and interviewed Olson. Officer Niebusch testified Olson was unable to open his eyes and continually had to go to the bathroom to wash his face. The officer then went to Labrensky's residence, arrested him, and transported him in his patrol car to the police station. When he took Labrensky out of the car, he discovered a canister of mace on the floor near the youth's feet.

The court found Labrensky guilty as charged and imposed a standard range Disposition of 5 days.

Labrensky argues the court abused its discretion in granting the motion to accelerate the date of fact-finding in the absence of his appointed counsel. He contends the court's actions deprived him of the effective assistance of counsel.

In order to establish ineffective assistance of counsel, Labrensky must show both deficient performance of counsel and resulting prejudice to the defense. *fn1 State v. Jeffries, 105 Wash. 2d 398, 418, 717 P.2d 722, cert. denied, 479 U.S. 922, 93 L. Ed. 2d 301, 107 S. Ct. 328 (1986), quoting Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, 2064 (1984). This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687. There is a strong presumption that counsel rendered competent assistance. State v. Lord, 117 Wash. 2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 121 L. Ed. 2d 112, 113 S. Ct. 164 (1992). The reviewing court need not address both prongs of the test if the appellant makes an insufficient showing on one. State v. Garcia, 57 Wash. App. 927, 932, 791 P.2d 244, review denied, 115 Wash. 2d 1010, 797 P.2d 511 (1990).

Labrensky has failed to show that he was prejudiced. He has not identified what counsel would have accomplished through an opening statement or cross-examination of the witness that would have affected the outcome. Two other witnesses, the victim and the police officer, gave testimony similar to McElvan's. The victim testified Labrensky sprayed something in his eyes. The officer confirmed that McElvan appeared to be in considerable pain that evening and needed repeatedly to put water on his face. Furthermore, when he arrested and transported Labrensky, he found a can of mace afterward in the patrol car near ...

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