[No. 35944-8-II. Division Two. August 12, 2008.]
Rebecca W. Bouchey, for appellant.
Gerald A. Horne, Prosecuting Attorney, and Kathleen Proctor, Deputy, for respondent.
Authored by J. Robin Hunt.
Concurring: Marywave Van Deren, Joel Penoyar.
¶1 HUNT, J. -- Dustin R. Kelley appeals his first degree murder, second degree unlawful firearm possession, and second degree assault jury convictions with firearm sentence enhancements. He argues that (1) his trial counsel was ineffective when he failed to present evidence of his mental illness at trial and failed to propose a diminished capacity jury instruction and (2) the firearm sentence enhancement for his second degree assault conviction violates double jeopardy. We affirm.
FACTS
I. CRIMES
¶2 On February 22, 2006, at about 5:30 PM, Beau Pearson was visiting his friend Klaus Stearns in Stearns's mother's backyard trailer. Pearson had brought his friend Valerie Greenfield to "hang out" in the trailer with Stearns, and Stearns's friend, Kelly Kowalski. Stearns's mother, Petra Scholl, paged him to talk about his day. Stearns left the trailer and went into his mother's house to speak with her.
¶3 While Stearns was gone, Dustin Kelley parked a blue Acura in the alley behind Scholl's house and trailer, went into the trailer, confronted Pearson, who was sitting on the bed with Greenfield, and asked Pearson if he had been shot before. Kelley then walked to the trailer door, turned around, drew out two guns, walked back to Pearson, and said, "I smoke you and your bitch, too." Report of Proceedings (Nov. 16, 2006) at 609.
¶4 Pearson turned to Greenfield, told her he was sorry, and pushed her out of the way. Kelley then shot Pearson at least eight times, left the trailer, and went through the property's back gate. Pearson's gunshot wounds were immediately fatal.
¶5 After hearing the gunshots and watching Kelley leave the trailer, Stearns saw Greenfield come out of the trailer with a "zombied out" look and walk past him without making eye contact. Kowalski also came out of the trailer acting "very upset." Stearns went into the trailer and found Pearson slumped forward on the bed. After checking to see if Pearson was alive, Stearns called 911.
¶6 Officers arrived at the scene, took statements from the witnesses, and collected evidence. In the blue Acura that Kelley had left parked in the alley, an officer found a magazine clip of .45 caliber rounds, which matched bullets found in the trailer and in Pearson's body.
II. PROCEDURE
¶7 The State charged Kelley with first degree murder, second degree unlawful firearm possession, and second degree assault. The State also alleged firearm sentence enhancements for the first degree murder and second degree assault charges.
A. Trial
¶8 At trial, Stearns, Scholl, Greenfield, Kowalski, law enforcement officers, a forensic scientist, and the county's medical examiner testified for the State. Detective Robert Yerbury testified that he had interviewed Kelley's girl friend, Molly Matlock, on the day of the murder. Matlock had told him that (1) Kelley's drug use was "[c]asual"; (2) Kelley appeared "pretty serious" the day of the murder; (3) Kelley did not appear under the influence of drugs on the day of the murder; and (4) on the day of the murder, Kelley had told Matlock that he was going to confront someone about his brother's missing stereo equipment.
¶9 Matlock testified for the defense that (1) Kelley had been using methamphetamine during the two weeks before the murder; (2) Kelley's behavior before the murder was "[n]othing out of the ordinary"; (3) Kelley sometimes carried a gun; and (4) Kelley was "pretty clear-headed."
¶10 Kelley proposed a voluntary intoxication jury instruction, but the trial court declined to give it because there had been no evidence that Kelley was intoxicated at the time of the shooting. Kelley's counsel did not propose a diminished capacity jury instruction.
¶11 The jury found Kelley guilty as charged and returned special verdicts finding that Kelley had committed premeditated first degree murder and second degree assault while armed with a deadly weapon.
B. Sentencing
¶12 The trial court sentenced Kelley to a standard range sentence of 524 months of confinement for his first degree murder conviction, 60 months for his unlawful firearm possession conviction, and 48 months for his second degree assault conviction, all to run concurrently. The trial court also imposed firearm sentence enhancements of 192 months to run consecutively to the sentences for Kelley's first degree murder and second degree assault convictions.
¶13 Kelley appeals.
ANALYSIS
FIREARM SENTENCE ENHANCEMENT
¶14 Kelley argues that (1) the firearm sentence enhancement on his second degree assault conviction violates double jeopardy and (2) the United States Supreme Court's holding in Blakely [1-3] ¶15 Contrary to Kelley's argument, Division One correctly held that "[i]t is well settled that sentence enhancements for offenses committed with weapons do not violate double jeopardy even where the use of a weapon is an element of the crime." State v. Nguyen, 134 Wn. App. 863, 866, 142 P.3d 1117 (2006), review denied, 163 Wn.2d 1053 (2008). Nguyen argued that "the firearm enhancement 'acts like an element of a higher crime' and because the enhancement does not apply to certain crimes in which possession or use of a firearm is an element, the enhancement creates unintended, redundant punishment." 134 Wn. App. at 867. Nguyen's argument was identical to Kelley's argument. ¶16 In rejecting this argument, the Nguyen court noted that the legislature had provided exemptions from the firearm sentence enhancement for specific crimes and "[a]ny 'redundancy' in mandating enhanced sentences for other offenses involving use of a firearm is intentional." 134 Wn. App. at 868. Division One also held that "Blakely does not implicate double jeopardy but rather involves the procedure required by the Sixth Amendment for finding the facts authorizing the sentence." Nguyen, 134 Wn. App. at 868 (citing Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)). Adopting Nguyen, we hold that Blakely does not apply to Kelley's double jeopardy argument, nor does it change well-settled double jeopardy analysis. ¶17 Following Nguyen, we hold that Kelley's firearm sentence enhancement does not violate double jeopardy. Accordingly, we affirm his sentences. ¶18 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. EFFECTIVE ASSISTANCE OF COUNSEL ¶19 Kelley also argues that his trial counsel was ineffective because he failed (1) to introduce evidence of Kelley's mental illness at trial and (2) to propose a diminished capacity jury instruction. This argument fails. A. Standard of Review ¶20 We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To prove ineffective assistance of counsel, a defendant must show deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). ¶21 Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). B. Mental Illness Defense ¶22 Kelley first contends that his trial counsel should have presented evidence of his mental illness to the jury to show that he did not have the capacity to form the intent to murder Pearson. Kelley fails to show that his counsel's performance fell below an objective standard of reasonableness. When a defense counsel knows, or has reason to know of a capital defendant's medical and mental problems that are relevant to making an informed defense theory, defense counsel has a duty to conduct a reasonable investigation into the defendant's medical and mental health, have such problems fully assessed and, if necessary, retain qualified experts to testify accordingly. In re Personal Restraint of Brett, 142 Wn.2d 868, 880, 16 P.3d 601 (2001). But Kelley does not point to evidence that his counsel knew or should have known, at the time of trial, that he had potential mental illness. Thus, Kelley fails to meet his burden of showing that his counsel's performance was deficient. Additionally, the record provides no further information about what type of conduct disorder Kelley had in 2002. There is no evidence in the record that Kelley suffered from a conduct disorder, attention deficit hyperactivity disorder, or any other type of mental illness in 2006, when he murdered Pearson. Nor is there evidence in the record that Kelley had a mental illness that would have actually affected his ability to premeditate a murder. Because the record does not establish that Kelley suffered from a mental illness in 2006 or that he had a mental illness that affected his ability to premeditate a murder, Kelley fails to show that his trial outcome would have differed. Thus, Kelley also fails to satisfy the second prong of the ineffective assistance of counsel test.» C. Diminished Capacity Jury Instruction ¶23 Kelley next contends that his trial counsel should have proposed a diminished capacity jury instruction. This argument also fails. ¶24 As we previously noted, Kelley cannot establish that his counsel knew or should have known that he had a mental illness at the time he committed the crimes. Where, as here, counsel did not know and could not have known that the defendant had a mental illness that affected his capacity to premeditate the murder, counsel's performance is not deficient for failing to propose a diminished capacity jury instruction. a defendant must produce expert testimony demonstrating that a mental disorder, not amounting to insanity, impaired the defendant's ability to form the specific intent to commit the crime charged. State v. Ellis, 136 Wn.2d 498, 521, 963 P.2d 843 (1998). Kelley produced no such expert testimony. Thus, Kelley cannot establish that the trial outcome would have differed even if his counsel had proposed a diminished capacity jury instruction, because the trial court would have properly rejected the proposed instruction.» ¶25 We hold that Kelley has failed to show ineffective assistance of counsel. ¶26 We affirm. VAN DEREN, C.J., and PENOYAR, J., concur.