THE DIFFERENCE BETWEEN FOURTH DEGREE AND SECOND DEGREE ASSAULT CAN BE TRIAL STRATEGY

Division II of the Washington court of Appeals has just reversed the conviction of a man who was charged with 2nd degree assault. The decision is based on the fact that the defendant's lawyer did not ask for a jury instruction on the lesser included offense of 4th degree assault. In the case of State v. Breitung, the victims claim that Breitung approached the victims' vehicle, pointed a gun at them, and threatened to kill them. This constitutes 2nd degree assault because the defendant allegedly used a deadly weapon.

However, Breitung testified that he did not aim a gun at the victim's, but rather a microscope, which he put in his pocket once he got the victims to stop. Breitung testified that he later walked up to the vehicle and asked the victims to leave.

Breitung's lawyer argued that no assault occurred. Since the argument was that there was no assault, Breitung's lawyer did not ask for an instruction on the lesser included offense of assault 4. Second degree assault is an assault where the defendant intends to inflict great bodily harm, actually does inflict great bodily harm, or uses a deadly weapon. The assault in this case was the intentional act of putting the victims in reasonable apprehension of bodily harm or death. When there is no intent to inflict great bodily harm, no actual bodily harm or use of deadly weapon, then the assault wold be assault 4 rather than assault 2.

Breitung appealed his felony conviction of assault 2 on the grounds that it was ineffective assistance of counsel for his lawyer to not ask for a jury instruction on the lesser included offense of assault 4. The Washington Supreme Court found that, because Breitung himself testified that he pointed a microscope at the victims, there was evidence that he committed 4th degree assault and the defense should have asked for a jury instruction on that offense. Though the Court recognized that it was a trial strategy to not ask for the instruction because the defense was arguing that no assault whatsoever took place, it was too risky not to ask for the instruction on the lesser included offense because assault 4 is a misdemeanor and assault 2 is a violent felony with much more serious consequences.

To prove ineffective assistance of counsel, the defendant must show 1) that the defense lawyer was deficient and 2) that the defense was prejudiced by the deficiency. The second part usually means that there was a high probability that the case would have come out differently if it was not for the deficiency.

I agree with the dissenting opinion in this decision, that the defense lawyer should not have been required to ask for an instruction on assault 4. This is because it was likely that Breitung would be convicted of being in unlawful possession of a firearm, which Breitung admitted. Breitung was therefore already facing 9-12 month in prison on the firearm charge and the assault 2 conviction would not have made that much of a difference. Also, Breitung's testimony that he approached the victims with a microscope rather than a gun is, as the dissenting Judge said, “comedic.”

The trial lawyer was put in a tight spot in deciding between arguing an implausible version of the facts or taking a risk and arguing that no assault occurred whatsoever. As a Washington criminal defense lawyer, I do not believe that the trial lawyer's tactical decision not ask for a jury instruction on 4th degree assault amounted o ineffective assistance of counsel in this case.