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State v. Falkner

May 5, 1997


Appeal from Superior Court of King County. Docket No: 93-1-05039-5. Date filed: 05/26/95.

Authored by Susan R. Agid. Concurring: Walter E. Webster, Mary K. Becker.

The opinion of the court was delivered by: Agid

AGID, J. -- Robert Falkner was convicted of second degree murder in the death of his wife, Barbara Falkner. He argues that the trial court erred when it denied his motion for a new trial because his trial counsel was constitutionally ineffective. We agree and reverse and remand for a new trial.


On Monday July 19, 1993, the Puyallup Fred Meyer parking lot cleaners found Barbara Falkner's body in her parked car. The Pierce County medical examiner determined that she died as a result of a blunt trauma injury to the head. He opined that someone hit her with a tire iron 20-30 hours before she was found. Robert and Barbara had been married only six or seven months, but they had a child and had lived together for three and a half years before their marriage. The marriage was "stormy," and Robert had recently filed for divorce. At the time of her death, Barbara continued to live with him in the couple's home with their child and Barbara's daughter from a previous marriage.

On the day before her death, Barbara told Robert that she was going to see her sister, Anne Barni, because Barni was upset. About an hour later, Robert called Barni's house, and she told him that Barbara would be home shortly. Barbara returned several hours later. Testimony at trial revealed that she was actually with her boyfriend, Eric Flanagan.

Robert testified that Barbara returned home after 2:30 a.m. and came in the house to collect some marijuana, which she told him she was going to sell to get enough money to move out of the house. Barbara left the house, but returned shortly thereafter, crying, and told Robert that she could not get her car unlocked. Robert thought she was extremely intoxicated and, after unlocking her car, he offered to drive her where she was going, which he believed to be the Fred Meyer store near their home. On the way to the store, she said she was going to the Fred Meyer store in Puyallup. Robert testified that he worried about leaving the children alone as long as it would take him to get to the Puyallup Fred Meyer, so he called his father to pick him up. Once they arrived at the Fred Meyer, he said he left Barbara sitting in the passenger seat of her car and went home with his father. He told his father that Barbara was drunk because he did not want him to know that he had assisted in her drug deal. He testified that he returned home to wait for his wife and eventually went to bed. He spent the next afternoon cleaning and doing laundry.

On the day the body was discovered, Officer Jones from the Auburn Police Department came to speak with Robert. Jones told him that the police department had found Barbara's car and asked him when he had last seen his wife. Robert told Jones that he had seen her around 10 p.m. the previous Saturday. He testified that he believed Barbara had been arrested for selling marijuana so he lied about the time of his last contact with her to avoid getting involved. He later told another officer that he had last seen Barbara around 3 a.m. on Sunday, the day before her body was discovered. He told that officer that she had returned home around 2:30, the two fought briefly, and she left the house.

At trial, the State alleged that, after arguing with her all evening, Robert took his wife to the untreated wood deck behind the couple's home in the middle of the night and hit her over the head with a blunt object while N., Barbara's daughter, watched from her bedroom. The State told the jury that he then put her body into her car and drove her to the Fred Meyer parking lot, calling his father to help him cover up his crime, and that Robert made incriminating statements to his father as they were driving home. *fn1 The State further alleged that Robert spent the following day cleaning his home to eliminate traces of blood from the murder.

The State presented lengthy scientific testimony about luminol tests performed on the house which appeared to show washed away blood stains around the bath and on the carpet and bureau handles, and testimony about the condition of the body. Numerous witnesses to events that evening also testified. Robert was convicted of second degree murder. He brought a motion for a new trial, arguing that Foshaug, his trial counsel, was constitutionally ineffective because he failed to undertake sufficient scientific investigation to effectively refute the State's claims, and that he failed to conduct witness interviews which would have facilitated developing the defense theory. The trial court denied the motion, finding that Foshaug was adequately prepared for the trial, made reasonable strategic choices to limit investigations, and researched issues fully, submitting numerous lengthy briefs and motions.


I. Standard of Review

To establish a claim of ineffective assistance of counsel, the defendant must show both that defense counsel's representation was so deficient that it fell below an objective standard of reasonableness, and that the deficient representation prejudiced him to the point that there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). In applying the first part of the test, the court should determine whether, under prevailing professional norms, trial counsel's purported failures fell enough below the standard of performance to be unreasonable. Strickland, 466 U.S. at 690. Next, the court must find that the defendant was prejudiced because trial counsel's ...

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