IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
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Respondent,
v.
ANTHONY ORLANDO MACK,
Appellant.
No. 64763-6-I
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 30, 2012
Spearman, J. — A jury convicted Anthony Mack of assault in the fourth
degree. On appeal, he claims he received ineffective assistance of counsel
because his attorney did not adequately impeach the victim about where the
assault took place. We conclude he does not establish prejudice and affirm.
FACTS
Early in the morning on May 12, 2009, Mack sought a day job. He was
unsuccessful and spent the day drinking two six-packs of beer and a bottle of
fortified wine. In the evening, he went to the Seattle Motor Inn.1 Mack was drunk
and being obnoxious, so the motel manager asked him to leave several times.
He was drinking a large can of beer. The manager called the police, who came
to the motel and told Mack to leave or they would arrest him. Mack went behind
the motel and continued drinking beer.
1
Mack referred to the Seattle Motor Inn at trial as the Black Angus Motel, its former name.
No. 64763-6-I/2
Approximately 20 minutes later Fay George, a housekeeper at the motel,
was cleaning a room on the first floor when Mack walked in. She had observed
his interactions with the manager and the police, so she told him to leave. He
asked if George wanted to party. After she said no and that she was going to tell
the manager that he had returned, Mack went outside and sat in a chair on the
sidewalk between the motel room George was cleaning and the office. George
left the room, and as she passed by Mack, he jumped out of the chair, swore at
her, and smacked her in the chest with his open beer can. Beer spilled out of the
can and onto George’s shirt and jacket. George reported the incident to the
manager and called 911. The manager confronted Mack and asked him to leave.
He reacted angrily, swearing and waving his beer around, but eventually left.
Officer Nicolas Bowns arrived and spoke with George. Mack returned to
the motel. He was carrying a bottle of liquor. By this time, other officers had
arrived. Mack initially refused officers’ repeated orders to get on the ground and
was non-compliant, intoxicated, and belligerent. He threw the bottle to the
ground near officers’ feet. Eventually he got on the ground and was arrested.
Mack was tried before a jury on charges of robbery in the second degree,
obstructing a law enforcement officer, and assault in the fourth degree.2 The
assault charge was based on the incident involving George. At trial, Mack
testified that he was drunk but had no memory of hitting George in the chest or
2
The obstruction charge related to allegations that Mack repeatedly refused to listen to officers’
commands to cooperate and get down on the ground. The robbery charge related to allegations
that Mack snatched several $20 bills from another housekeeper, Britini Rushing.
2
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pouring beer on her. A jury convicted him of assault, acquitted him of obstructing
a law enforcement officer, and deadlocked on robbery. He was sentenced within
the standard range.
DISCUSSION
On appeal, Mack claims that he received ineffective assistance of
counsel. App. Brief at 6. Claims of ineffective assistance are mixed questions of
fact and law that we review de novo. In re Pers. Restraint of Brett, 142 Wn.2d
868, 873, 16 P.3d 601 (2001). Criminal defendants have the right to effective
assistance of counsel under the Sixth Amendment to the United States
Constitution and article I, section 22 of the Washington Constitution. To prevail
on a claim of ineffective assistance, a defendant must satisfy the two-prong test
under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). If a defendant fails to establish either prong, we need not
inquire further. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
First, a defendant must show that counsel’s representation fell below an
objective standard of reasonableness. Id. Counsel’s errors must be “so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339
(1992). Second, it must be shown that counsel’s deficient performance was
prejudicial. Hendrickson, 129 Wn.2d at 78. Prejudice occurs when it is
reasonably probable that but for counsel’s errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694. There is a strong
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presumption of effective representation of counsel, and the defendant must show
that there was no legitimate strategic or tactical reason for the challenged
conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
Mack claims he received ineffective assistance because defense counsel
did not impeach George at trial with her prior inconsistent statements to Officer
Bowns regarding the location of the assault.3 He argues that this showed that
counsel was not adequately prepared and did not make a full and complete
investigation of the facts and the law. He further contends he was prejudiced
because impeachment on this point would have attacked George’s credibility
and convinced jurors that an inconsistency regarding such a basic fact must
have meant George’s entire story was fabricated.
The inconsistency asserted by Mack has to do with the suggestion in
Bowns’s report that the assault took place inside the motel room:
I spoke with a female victim (Fay George) at the Inn who said the
same suspect again returned, entered room 119 without authority,
and sat down. She knew of the suspect and the prior incidents and
told the suspect to leave. He confronted her, took a 40 ounce full
beer he was holding, struck her in the left chest, and spilled beer
on her jacket and clothing. As he walked from the room, the female
night manager (Heather Florence) confronted the suspect and told
him to leave.
George’s testimony at trial was that she left the room she had been cleaning to
notify the manager that Mack had returned, and that as she passed by Mack,
3
Although Mack’s opening brief described the prior inconsistent statements as George’s police
report, the State correctly points out that George did not provide police a written statement, and
that Mack is actually referring to Officer Bowns’s report of what George told him.
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No. 64763-6-I/5
who was sitting in a chair on the sidewalk between the motel room and the
office, “He jumped up out of the chair and started swearing at me. And then he -and I just kept walking. Right as I walked by, he smacked me in the chest with
the open beer that he had in his hand.” George testified that Mack hit her with
enough force on her upper chest that beer spilled out of the can and got all over
the inside of her jacket and the front of her shirt.
Even assuming counsel’s failure to impeach George on this point
constitutes ineffective assistance of counsel, Mack cannot show he was
prejudiced. It is not reasonably probable that, but for counsel’s failure to impeach
George about whether the assault took place inside or outside the motel room,
Mack would have been acquitted of assault. First, the record reflects that the jury
did hear other evidence that George reported the assault took place in the motel
room. At trial, the State played a recording of George’s conversation with the
911 operator for the jury, during which George stated that Mack “just walked in
the room I was cleaning and poured a beer on me.” Thus, to the extent the
inconsistency bore any significance at all, it was before the jury for
consideration.
Furthermore, the jury could have resolved any apparent inconsistencies in
George’s trial testimony and her previous statement to Bowns. The encounter
between George and Mack, from when he entered the room until the assault on
the sidewalk, was brief—“[l]ess than a minute.” The jury could have found that
George, in describing the incident to Bowns, conflated or summarized certain
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details. Or the jury could have inferred that Bowns’s report misstated George’s
statement to him. We defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence. State v.
Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn.
App. 410, 415-16, 824 P.2d 533 (1992).
Finally, the record shows that defense counsel did impeach George’s
testimony on at least one inconsistent statement, and did call George’s
credibility into question during closing argument. Therefore, it is not likely that
impeachment on the one issue of whether Mack struck George with the beer can
inside the motel room or outside the room would have made a difference in the
outcome of the trial.
We conclude that Mack does not meet the prejudice prong of Strickland.
Affirmed.
WE CONCUR:
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