No. 28174-4-III
Kulik, C.J. (dissenting) — Robert Larson was convicted of robbery, two assaults,
two drive-by shootings, and sentenced to 20 years. His counsel’s1 failure to pursue
exculpatory testimony from Anthony Kongchunji constituted deficient performance and
prejudiced Mr. Larson. I, therefore, dissent from the majority. I would vacate Mr.
Larson’s convictions and remand for a new trial.
The test for ineffective assistance is well established and requires the defendant to
show that “(1) defense counsel’s representation was deficient, i.e., it fell below an
objective standard of reasonableness based on consideration of all the circumstances; and
(2) defense counsel’s deficient representation prejudiced the defendant, i.e., there is a
reasonable probability that, except for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. McFarland, 127 Wn.2d 322, 334-35,
899 P.2d 1251 (1995).
Deficient Performance
1
Appellate counsel did not serve as trial counsel.
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The reasonableness of counsel’s representation is viewed in light of all of the
circumstances. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). There is a
strong presumption that counsel’s representation was effective. State v. Garrett, 124
Wn.2d 504, 520, 881 P.2d 185 (1994) (quoting Butcher v. Marquez, 758 F.2d 373, 376
(9th Cir. 1985)). Generally, the decision to call a particular witness is presumed to be a
matter of legitimate trial tactics. In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101
P.3d 1 (2004). However, this presumption can be overcome by showing that counsel
failed to investigate or subpoena a necessary witness. Id.
Our Supreme Court has recently reaffirmed that “a criminal defendant can rebut
the presumption of reasonable performance by demonstrating that ‘there is no
conceivable legitimate tactic explaining counsel’s performance.’” State v. Grier,
No. 83452-1, 2011 WL 459466, at *9 (Wash. Feb. 10, 2011) (quoting State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). Significantly, Grier also
recognizes that “[n]ot all strategies or tactics on the part of defense counsel are immune
from attack.” Id. “‘The relevant question is not whether counsel’s choices were
strategic, but whether they were reasonable.’” Id. (quoting Roe v. Flores-Ortega, 528
U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000)).
Here, defense counsel stopped pursuing Mr. Kongchunji’s testimony when Mr.
Kongchunji’s counsel denied access to him. The Ninth Circuit Court of Appeals has
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repeatedly found similar failures to adequately investigate and present known exculpatory
evidence at trial to constitute deficient and prejudicial performance by counsel. See, e.g.,
Lord v. Wood, 184 F.3d 1083, 1096 (9th Cir. 1999) (finding deficient performance and
prejudice where “trial counsel had at their fingertips information that could have
undermined the prosecution’s case, yet chose not to develop this evidence and use it at
trial”); Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999) (“A lawyer who fails
adequately to investigate, and to introduce into evidence, [information] that
demonstrate[s] his client’s factual innocence, or that raise[s] sufficient doubt as to that
question to undermine confidence in the verdict, renders deficient performance.”).
At a posttrial hearing, the trial court pointed out that defense counsel could have
used due diligence to at least attempt to compel Mr. Kongchunji’s testimony. This
followed defense counsel’s submitting the letter and declaration of Mr. Kongchunji. The
letter stated, in part:
I found out that Paul [Statler], Tyler [Gassman], and Robert [Larson] lost
their recent trial and I’m stunned. I don’t see how the jury could believe
Matthew [Dunham] at all because I’ve read his statement[s] and they are all
lies.
I thought that I should let you know that Paul, Tyler, and Robert
were not involved with any of the alleged incidents and the reason I know
this is because I was involved.
Clerk’s Papers (CP) at 222 (emphasis added). Likewise, when testifying in Mr. Statler’s
second trial, Mr. Kongchunji stated that he committed the Dishman robbery with the
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“[s]ame people I always go rob people with; Larry, Nick, Matt.” CP at 115 (emphasis
added). Clearly, this testimony refers to Larry Dunham, Nicholas Smith, and Matthew
Dunham, codefendants in other robberies. Mr. Kongchunji possessed crucial exculpatory
evidence. His testimony was necessary to ensure that Mr. Larson received a fair trial.
The majority concludes that defense counsel’s failure to call Mr. Kongchunji as a
witness at trial was a matter of trial tactics. Accordingly, the majority states: “[C]ounsel
had to balance any positive effect of Mr. Kongchunji’s exculpatory evidence against the
necessarily negative effect of him admitting on cross-examination that he had twice
earlier incriminated Mr. Larson. Given all, Mr. Larson fails to overcome the presumption
that his counsel’s failure to call Mr. Kongchunji was tactical.” Opinion at 9-10.
But this is not the issue. Defense counsel had already made the tactical decision to
call Mr. Kongchunji; what she lacked was the legal knowledge and skills to secure his
testimony. Stated differently, she was apparently unaware of the procedures available to
her to compel Mr. Kongchunji’s testimony.
Defense counsel admitted that she did not further interview or subpoena Mr.
Kongchunji because she felt that to do so would be to “cross the line” after Mr.
Kongchunji’s counsel had forbade additional interviews and indicated that his client
would invoke his Fifth Amendment rights.2 Report of Proceedings (May 20, 2009) RP at
11. She also stated that she thought “when you get a direct order from someone’s
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attorney not to talk to their client, I think it would be overstepping bounds to then
subpoena [Mr. Kongchunji] to court.” RP at 8. And later, “we did everything we could
to get the evidence before the Court, but it just wasn’t possible. There was nothing else
that we could have done. . . . Mr. Kongchunji was unavailable until after the trial. If we
could have gotten Mr. Kongchunji to testify, we certainly would have.” RP at 13, 21.
Defense counsel knew that Mr. Kongchunji possessed crucial exculpatory
evidence, yet she never asked the court for leave to conduct additional interviews or to
rule on whether Mr. Kongchunji’s testimony would have received Fifth Amendment
protection. Instead, she believed that Mr. Kongchunji was unavailable if his counsel said
he was. As a result, it is not possible to know whether or to what extent Mr. Kongchunji
would have been excused from testifying at trial.3
The State also contended the reason defense counsel made the decision not to call
Mr. Kongchunji was a matter of trial tactics. But no competent attorney after having
learned the full extent of Mr. Kongchunji’s testimony would have failed to put him on the
stand, especially given the State’s reliance on a witness no more credible than Mr.
Kongchunji. Counsel’s failure to adequately investigate and subpoena a witness
2
The rules of professional conduct permit counsel to contact a represented witness in
such a situation after obtaining permission from the court. RPC 4.2.
3
Had Mr. Kongchunji been excused from testifying by the trial court, counsel would
have then preserved the unavailability of this testimony for purposes of her new trial
motion.
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purporting to have actual knowledge of Mr. Larson’s innocence was unreasonable in this
case and, therefore, deficient.
Prejudice
To demonstrate prejudice, Mr. Larson must show that
“there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence
in the outcome.”
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Mr. Larson
“need not show that counsel’s deficient conduct more likely than not altered the outcome
in the case.” Strickland, 466 U.S. at 693.
Mr. Kongchunji had a powerful incentive to implicate Mr. Larson prior to
receiving a 14-year prison term for his own admitted involvement in this crime and the
related robberies; namely, a desire to avoid an even more severe sentence. With this
incentive exhausted, Mr. Kongchunji had no discernable motive to continue falsifying
information. To the contrary, Mr. Kongchunji no doubt weighed considerable
disincentives prior to coming forward, including criminal liability for perjury or similar
crimes, as well as implicating Larry Dunham and Nicholas Smith in another robbery.
That Mr. Kongchunji would be willing to take such risks without perceivable reward
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No. 28174-4-III
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strongly suggests that his testimony would be credible.
To say that Mr. Kongchunji’s testimony is necessary understates its importance.
The State secured a conviction in this matter based solely upon Matthew Dunham’s
uncorroborated testimony. Detective William Francis testified that Matthew Dunham’s
statement was the only evidence police had against Mr. Larson. Mr. Kongchunji’s letter
and subsequent testimony in Mr. Statler’s second trial not only exculpate Mr. Larson in
respect to the Berger-Jeffries robbery, but also explain how and why Mr. Larson became
implicated by Matthew Dunham and Mr. Kongchunji in the first place. This evidence
also has proven cogency. Mr. Statler was acquitted following a subsequent trial alleging
his involvement in the related Dishman robbery after Mr. Kongchunji testified to its
participants. There can be no doubt that Mr. Kongchunji’s testimony was necessary here.
Focusing, as I am required, “on the fundamental fairness of the proceeding whose
result is being challenged,”4 I conclude that counsel’s deficient performance prejudiced
Mr. Larson to an extent that undermines confidence in the outcome of his trial and creates
a serious likelihood that justice has not been done.
Accordingly, I respectfully dissent from the majority’s conclusion that Mr. Larson
received effective assistance of counsel. I would reverse Mr. Larson’s convictions and
remand for a new trial.
4
Strickland, 466 U.S. at 696.
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No. 28174-4-III
State v. Larson
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Kulik, C.J.
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