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State v. Glenn

April 28, 1997


Appeal from Superior Court of Snohomish County. Docket No: 94-1-01300-3. Date filed: 05/19/95. Judge signing: Hon. Joseph Thibodeau.

Authored by Susan R. Agid. Concurring: William W. Baker, Walter E. Webster.

The opinion of the court was delivered by: Agid

AGID, J. -- The Snohomish County Superior Court reversed Kathleen Glenn's conviction for driving while intoxicated, ruling that she received ineffective assistance of counsel. The Rule 9 intern who represented her successfully moved to suppress a .07 BAC DataMaster test result and failed to object to a question on cross examination regarding the veracity of another witness. The superior court believed it should not apply the usual presumption that counsel was effective to a Rule 9 intern. We hold that where the defendant presents no evidence that Rule 9 was violated, the presumption does apply. Because counsel's decisions were reasonable tactical choices, we conclude Glenn received effective assistance of counsel. We therefore reinstate her conviction and remand to the District Court for sentencing.


Around 7:30 p.m. on June 3, 1994, Kathleen Glenn and a friend, Norman Hein, met at a tavern in Snohomish County to play darts. About three hours later, after playing six games of darts, they decided to drive to a restaurant for dinner. Hein followed Glenn in a separate car. When they drove onto the freeway, Glenn merged into traffic behind a small pickup truck and in front of a Washington State Patrol car, and Hein merged behind the patrol car. They drove for about two miles on the freeway and then exited. As Glenn parked her car in the restaurant parking lot, the trooper, who had followed her off the freeway, stopped her. According to the trooper, Glenn was driving just half a car length behind the pickup truck for several hundred feet after merging onto the freeway, weaving continuously within her own lane of travel, and signaled her intention to exit from the freeway so abruptly that her vehicle jerked right onto the off-ramp. The trooper administered field sobriety tests in the parking lot and concluded, based on Glenn's inability to successfully perform all the tests, that she was obviously impaired by alcohol. He then administered a portable breath test to determine her blood alcohol level, which showed her blood alcohol at .11. Based on his observations, the trooper arrested Glenn for driving while intoxicated and took her to the Lynnwood Police Station. After speaking with an attorney, Glenn agreed to take another breath test. The result of that test, administered on a BAC DataMaster machine, was .07.

Glenn was charged with driving while intoxicated in Snohomish County District Court and arraigned on June 20, 1994. The Snohomish County Public Defender Association filed a notice of appearance which stated that Peter Mazzone, a law student admitted to limited practice under Admission to Practice Rule 9, would represent Glenn. On August 4, Mazzone filed pretrial motions to suppress both the field sobriety tests and the result of the BAC DataMaster test. On August 16, Mazzone appeared on Glenn's behalf to argue the motions. The district court granted his motion to suppress the portable breath test but, at the State's request, reserved ruling on the motion to suppress the BAC DataMaster test. The court also granted the State's request to continue trial from August 26 to September 16 because the trooper was unavailable due to a medical emergency. The defense did not object to that motion.

Lorraine Nightingale, an attorney with the Snohomish County Public Defender Association, appeared on Glenn's behalf when the hearing on the pretrial motions resumed on September 6. Nightingale noted that the court had reserved ruling on the motion to suppress the result of the BAC DataMaster test and cited an additional case to support the motion. The State then stipulated to suppression of the .07 BAC DataMaster test result, and the court granted the motion on that basis. After hearing testimony and argument on the motion to suppress the field sobriety tests, the court denied that motion.

On September 16, the date set for trial, Nightingale again appeared on Glenn's behalf and requested that trial be continued to the following Tuesday so that Mazzone could represent Glenn at trial. The court granted the request and the case went to trial on September 20. On direct examination, Glenn testified that she had consumed only two beers, contradicting the trooper who testified that Glenn told him she had consumed three beers. The prosecutor asked Glenn on cross examination whether the trooper "just made up the three part." The defense did not object, and Glenn replied that she had not said "three." At the Conclusion of trial, the jury found Glenn guilty of driving while intoxicated.

Glenn filed a notice of RALJ appeal in Snohomish County Superior Court on September 28, 1994. Prior to hearing the appeal, the court asked the Snohomish County Public Defender Association to submit an affidavit addressing the extent of Mazzone's trial experience and supervision in order to determine whether the requirements of Rule 9 had been met. The affidavit submitted in response to the court's request stated that Mazzone had previously tried seven cases to a jury and five to the bench and that Mazzone was supervised when he tried the first of each. After oral argument, the superior court ruled that the presumption that counsel rendered adequate assistance did not apply "because a Rule 9 intern is not a licensed attorney and lacks experience." The superior court then concluded that the successful motion to suppress the .07 BAC DataMaster result, together with the failure to object to the prosecutor's question on cross examination, constituted ineffective assistance of counsel. *fn1 The court therefore remanded the case for a new trial. We granted discretionary review and reverse.


I. Presumption of Effective Assistance

A defendant receives ineffective assistance of counsel if the complained-of attorney conduct (1) falls below a minimum objective standard of reasonable attorney conduct, and (2) there is a probability that the outcome would be different but for the attorney's conduct. State v. Benn, 120 Wash. 2d 631, 663, 845 P.2d 289 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)), cert. denied, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 382 (1993). To establish that counsel's performance was deficient, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. King, 130 Wash. 2d 517, 531, 925 P.2d 606 (1996) (quoting Strickland, 466 U.S. at 687). To establish that the deficient performance prejudiced the defense, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial." King, 130 Wash. 2d at 531 (quoting Strickland, 466 U.S. at 687). A defendant is denied his right to a fair trial when the result has been rendered unreliable by a breakdown in the adversary process. King, 130 Wash. 2d at 531. There is, however, a strong presumption that counsel has rendered adequate assistance and has made all significant decisions in the exercise of reasonable professional judgment. Benn, 120 Wash. 2d at 665. For this reason, if defense counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel. Benn, 120 Wash. 2d at 665.

The presumption that counsel was adequate arises from a concern that courts not "interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Strickland, 466 U.S. at 689. For this reason, the Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to ...

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