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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                  )
                                                      )  No.  65736-4-I
                       Respondent,                    )
                                                      )  DIVISION ONE
   v.                                                 )
                                                      )
CHRISTOPHER WISE,                                     )  UNPUBLISHED OPINION
                                                      )
                       Appellant.                     )  FILED:  May 29, 2012
                                                      )

       Spearman, A.C.J.  --  Christopher Wise appeals from his conviction for second 

degree manslaughter, alleging that trial counsel's failure to request certain jury 

instructions was constitutionally deficient.  But the instructions given permitted 

counsel to fully argue the defense theory of the case.  And counsel's proposed 

special verdict instruction was consistent with the law in effect at the time of trial.  

Because Wise has failed to satisfy his burden of demonstrating deficient 

representation, we affirm.

                                              FACTS

       The State charged Christopher Wise with first degree manslaughter and 

second degree felony murder, based on first degree criminal mistreatment, following 

the death of Wise's mother, Ruby Wise, on June 16, 2009.  The State also alleged 

as an aggravating circumstance that Ruby was particularly vulnerable or incapable 

of resistance.

       At trial, Christopher Wise testified that he was born and grew up in California.   

No. 65736-4-I/2

Before his father's death in 1987, he promised his father that he would take care of 

his mother.  In 1992, after graduating from college, Wise moved to Washington to 

work as a computer programmer.

       In 1999, when she was about 78 years old, Ruby moved to Washington to be 

near her son.  A short time later, after she broke her hip, Ruby moved in with Wise.  

Wise eventually quit his job after "it just became real apparent to me that what made 

[Ruby] the happiest was having me around, and just being there, not necessarily as 

a nurse, just as a companion." The two lived on Ruby's social security and disability 

payments.  Ruby broke her hip again in 2003.

       Initially, according to Wise, Ruby was able to get around and to take care of 

herself, with minimal assistance.  She generally rejected opportunities to pursue 

social contacts, preferring to stay home or to do things with her son.

       As time went on, Ruby's mental and physical health gradually declined.  Wise 

acknowledged that she had problems with short-term memory and became 

increasingly "loopy," but felt that she remained generally lucid and able to 

communicate almost until she died. 

       Wise eventually became Ruby's caregiver for almost all aspects of her life, 

including providing her with food and drink, changing her diaper and bedding, and 

assisting with bathing.  In November 2008, Ruby fell out of bed.  She returned home 

after a few hours in the hospital, but Wise noticed more rapid deterioration after this 

incident.  

       About two weeks before she died, Ruby got into bed and indicated that he 

should not make any efforts to get her out again.  After she essentially stopped 

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eating, Wise continued to put food and drink into her mouth as long as she would 

take some.

       Wise noticed that Ruby's bed sores had become worse and "discuss[ed] it to 

some degree" with her.  Ruby rejected Wise's offer to call someone for help, as well 

as his offer to give her Tylenol or Advil.  And even though she did not like being 

touched, Wise maintained that he continued to move her to change her diaper as 

necessary and to provide food and drink to the extent she would accept it.  Wise 

insisted that "I just did whatever it was that made her the most comfortable."

       Shortly after midnight on June 16, 2009, Wise called 911 to report that Ruby 

had died.

       When King County Deputy Sheriff Scott McDonald arrived at Wise's house,

he immediately detected the smell of decaying flesh.  When he went into Ruby's 

room, he noticed that her body was extremely emaciated, with no visible fat and her 

skin drawn tightly over her ribs.  Ruby had several open sores on her back and 

buttocks, including one on her shoulder that went down to the bone.  There were

dried feces on her buttocks and thighs.  McDonald saw no bandages or wound

cleaning products, and the sheets were stained with blood and pus.

       Wise told detectives that his mother had not seen a doctor in about two years 

and that he was her only caregiver.  In the past few days, he had been feeding Ruby 

small amounts every two hours and brushing her teeth once a day.  Up until a week 

before her death, Wise would wash Ruby with a cloth and an alcohol rub.  Wise said 

he had noticed the bed sores and had tried to clean them. Several weeks before 

she died, Ruby told Wise, "'I am ready to go see dad, just let me be.'"

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No. 65736-4-I/4

       While executing a search warrant later on the day of Ruby's death, Detective 

Chris Johnson saw several bags of garbage piled up just inside the house.  Flies 

were hovering around the bags.  Flies were also hovering around the dirty pots, 

pans, and dishes stacked up in the kitchen.  There were rodent feces on the carpet, 

and Johnson noticed the general stench of "[u]ncleanliness, rot [and] grease."

       Wise acknowledged that he had used ear plugs to "tune [Ruby] out to some 

degree." In the weeks before she died, neighbors reported hearing moaning and 

calls of help from Ruby's bedroom.

       Ruby last saw a doctor in November 2008, after falling out of bed.  Before 

that, she had seen Dr. David Sweiger at Valley Medical Center in January 2007, who 

had prescribed medications for hypothyroidism and high blood pressure.  After April 

2008, Dr. Sweiger would no longer extend the prescriptions without seeing Ruby, 

and Wise purchased thyroid and blood pressure supplements for her at Costco.

       Chief Medical Examiner Dr. Richard Harruff conducted the autopsy on Ruby's 

body.  Harruff found that Ruby, who weighed 72 pounds, suffered from an extreme 

weight loss and was severely dehydrated.  He noted multiple deep pressure ulcers 

on her back, shoulders, and buttocks, several of which contained gangrenous and 

necrotic tissue and had infected the underlying bone.  Harruff concluded that Ruby 

most likely died of sepsis resulting from the pressure ulcers, exacerbated by 

cardiovascular disease, cerebral atrophy, emaciation, and dehydration.

       At defense counsel's request, the trial court agreed to give the pattern 

instruction on proximate cause.  See 11 Washington Practice: Washington Pattern 

Jury Instructions: Criminal 25.02, at 353 (3d ed. 2008) (WPIC). Defense counsel 

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argued that the instruction was necessary for the defense theory that Ruby had been 

instrumental in the decision to die at home, without further treatment.  During 

closing, defense counsel argued that Wise had loved his mother, had not withheld 

the necessities of life, and had acted strictly in accordance with her wishes to die at 

home without the intervention of others.

       The jury found Wise not guilty of first degree manslaughter and second 

degree felony murder, but guilty of the lesser included offense of second degree 

manslaughter.  The jury also found that Wise knew or should have known that Ruby 

was particularly vulnerable or incapable of resistance.  The court sentenced him to a 

total term of 39 months.

                                        DECISION

       Wise contends that defense counsel's performance was constitutionally 

deficient when he failed to propose an instruction informing the jury that unwanted 

medical attention constitutes an assault. He argues that without such an "assault 

defense" instruction, he was unable to sufficiently argue his theory that the failure to 

provide more aggressive care for his mother did not constitute criminal negligence.  

But the specific facts of this case do not support Wise's allegations.

       In order to sustain his burden of demonstrating ineffective assistance, Wise 

must show both (1) that defense counsel's representation fell below an objective 

standard of reasonableness and (2) resulting prejudice, i.e., a reasonable probability 

that but for counsel's deficient performance, the result of the proceeding would have 

been different.  State v. McFarland, 127 Wn.2d 322, 334 -- 35, 899 P.2d 1251 (1995).  

We recognize a "strong presumption" that counsel's performance was reasonable.  

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State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).  To rebut this 

presumption, Wise must show the absence of any "'conceivable legitimate tactic 

explaining counsel's performance.'" (Citation omitted.)  State v. Grier, 171 Wn.2d 

17, 42, 246 P.3d 1260 (2011)  We review ineffective assistance claims de novo.  

State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

       "Parties are entitled to instructions that, when taken as a whole, properly 

instruct the jury on the applicable law, are not misleading, and allow each party the 

opportunity to argue their theory of the case." State v. Redmond, 150 Wn.2d 489, 

493, 78 P.3d 1001 (2003) (citing State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 

(1980)).  But in order to demonstrate that defense counsel's failure to request an 

instruction constitutes deficient performance, Wise must show that the trial court 

would have given it.  State v. Powell, 150 Wn. App. 139, 154, 206 P.3d 703 (2009); 

State v. Flora, 160 Wn. App. 549, 556, 249 P.3d 188 (2011).

       Relying on State v. Koch, 157 Wn. App. 20, 237 P.2d 287 (2010), rev. denied, 

170 Wn.2d 1022, 245 P.3d 773 (2011), Wise asserts that "[i]t is a defense to a 

charge of manslaughter based on failure to provide medical treatment, that provision 

of the medical treatment by the accused would have constituted an assault of the 

deceased."  But because the court's analysis in Koch is highly fact specific, it 

provides no support for Wise's claim that counsel's performance was constitutionally 

deficient under the circumstances here.

       In Koch, the defendant moved in to care for his 86-year-old father, "a stern 

and private man who repeatedly told his adult children that he wished to die at home, 

where his wife had passed in 1996."  Koch, 157 Wn. App. at 25.  Koch had a lengthy 

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No. 65736-4-I/7

history of bitter confrontations with his father over his father's lack of proper hygiene 

and refusal to accept medical assistance.  In 2004, Koch slapped his father in 

frustration over his refusal to bathe or accept medical assistance.  His father then 

pressed charges against Koch, resulting in Koch's conviction for assault.

       Over the years, Koch's father had "physically rebuffed assistance from 

everyone," including his children and outsiders, and continued to spurn assistance 

after Koch moved in. In the months before his father died, Koch contacted hospice 

several times, but his father "'booted' them out after only a few minutes."  Koch, 157 

Wn. App. at 26.

       Shortly before he died, Koch's father "sat down in his chair and refused to get 

up for six days, during which he urinated and defecated on himself repeatedly, 

increasing the likelihood and severity of already difficult-to-prevent bedsores."  Koch, 

157 Wn. App. at 26.  Koch's repeated efforts to persuade his father to accept 

assistance were rejected.  After six days, Koch called for assistance, and his father 

was eventually moved to a hospital, where he was treated for dehydration, 

tachycardia, bed sores, urine burns, high blood sugar, and shock.  He died a week 

later.

       The State charged Koch with first degree manslaughter and first degree 

criminal mistreatment, alleging that he caused his father's death by allowing him to 

stay in his chair while his condition deteriorated.  At the conclusion of the evidence, 

defense counsel requested the following jury instruction:

       It is unlawful to use physical force or [sic] upon another person 
       absent that person's consent, even if the actor's purpose is to 
       provide the basic necessities of life.

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No. 65736-4-I/8

Koch, 157 Wn. App. at 28. The trial court denied the request, and the jury found 

Koch guilty of first degree criminal mistreatment and the lesser included offense of 

second degree manslaughter.

       On appeal, the court held that the failure to give the requested instruction 

constituted reversible error.  The court concluded that without an "assault defense"

instruction, the jury was unable to properly consider evidence that Koch had been 

reluctant to force care on his father in part out of fear that his father might once 

again press criminal charges:
       Because his father had previously pressed charges against him for 
       assault, Koch had reason to fear that forcing care on his father 
       would again expose him to criminal charges.  But the trial court's 
       instructions did not allow the jury to consider the legal ramifications 
       of this past history and the possibility of its serving as a defense to 
       the charges.

Koch, 157 Wn. App. at 35.  The court further reasoned that the instruction was also 

necessary for the jury to assess, under Koch's theory, whether he had acted 

knowingly or recklessly, elements of both the criminal mistreatment and 

manslaughter charges.  See Koch, 157 Wn. App. at 36-40.

       We note initially that Wise's arguments suggest defense counsel should have 

relied on Koch to request an "assault defense" instruction.  But Koch was decided 

after Wise's trial.  Wise does not address any other authority that would have 

supported counsel's request for such an instruction and does not suggest that 

defense counsel was deficient for failing to anticipate the decision in Koch.

       Moreover, the court in Koch repeatedly stressed the need for an instruction 

that
       provide[d] context for the jury's consideration of evidence of Koch's 

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No. 65736-4-I/9

       tenuous relationship with his father and the previous assault 
       incident, particularly as this evidence might bear on whether Koch's 
       reluctance to act was reasonable under the circumstances.

Koch, 157 Wn. App. at 28.  No comparable facts are present in this case.

       Wise's relationship with his mother differed fundamentally from the 

relationship between Koch and his father.  Wise maintained that he had enjoyed a 

long and loving relationship with his mother and that he was acting only in 

accordance with her wishes.  He also testified that he continued to provide her with 

all of the care that she permitted until her death, including changing her diaper, 

turning her and caring for her bed sores, and placing food and drink into her mouth, 

even against her apparent wishes.  He presented no evidence suggesting that he 

had any concern or fear that his actions might constitute an assault or that they 

could result in a criminal charge for assault.

       During closing argument, defense counsel maintained that the evidence 

showed that Wise loved his mother, had no financial motives to cause her death, 

and that contrary to the State's claims, he did not withhold the necessities of life and 

had continued to feed and care for her until her death.  Based in part on the 

proximate cause instruction, counsel argued that Wise's mother made the 

fundamental end-of-life choices that effectively determined the circumstances of her 

death and that Wise had been acting strictly in accordance with her unambiguous 

wishes.  Counsel asserted that Wise's actions were therefore reasonable and did not 

involve criminal culpability.  Counsel's strategy was clearly effective, as the jury 

rejected the charges of first degree manslaughter and second degree felony murder

based on criminal mistreatment, both of which required proof of recklessness.

                                              -9- 

No. 65736-4-I/10

       In order to convict Wise of second degree manslaughter, the State was 

required to prove, among other things, that he acted with criminal negligence.  See

RCW 9A.32.070.  Jury instruction 26 informed the jury that a person acts with 

criminal negligence "when he or she fails to be aware of a substantial risk that a 

death may occur and this failure constitutes a gross deviation from the standard of 

care that a reasonable person would exercise in the same situation."  See RCW 

9A.08.010(1)(d).  Here, the court's instructions, including the proximate cause 

instruction, permitted defense counsel to argue the theory that Wise's actions were 

reasonable in light of his mother's wishes and therefore did not amount to criminal 

negligence.  

       We also question whether the trial court would have given an "assault 

defense" in this case had defense counsel requested one.  The Koch court expressly 

noted that "there is no settled law addressing unwanted health care forced by one 

individual on another."  Koch, 157 Wn. App. at 35.  The court acknowledged that 

although the requested instruction was an accurate statement of the law, it was 

arguably incomplete.  The court concluded, however, that the instruction was 

necessary to permit the jury to consider Koch's defense that "he refrained from 

assisting his father for fear of being held criminally culpable again."  Id. at 36.

       Given the fundamentally different nature of Wise's claimed relationship with 

his mother, his alleged communications with her during her final days, and his 

steadfast assertions that he continued to provide care throughout her final illness, an 

"assault defense" instruction would have been misleading and inappropriate.  It is 

therefore highly unlikely that the trial court in the case would have given an "assault 

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No. 65736-4-I/11

defense" or comparable instruction.  See Flora at 556.

       Defense counsel's failure to request an "assault defense" instruction was not 

deficient performance.  

       Wise next contends that he received ineffective assistance when defense 

counsel proposed the following special verdict instruction:

       Because this is a criminal case, all twelve of you must agree in order to 
       answer the special verdict forms.  In order to answer the special verdict 
       forms "yes," you must unanimously be satisfied beyond a reasonable 
       doubt that "yes" is the correct answer.  If you unanimously have a 
       reasonable doubt as to this question, you must answer "no."
In State v. Bashaw, 169 Wn.2d 133, 147, 234 P.3d 195 (2010), decided after Wise's

trial, our Supreme Court held that it was reversible error to instruct the jury that it 

must be unanimous to answer "no" on a special verdict form.  

       But at the time of Wise's trial, the Court of Appeals decision in Bashaw had 

reviewed the relevant law in detail and determined that a comparable special verdict 

instruction was valid.  State v. Bashaw, 144 Wn. App. 196, 202-03, 182 P.3d 451 

(2008), rev'd, 169 Wn.2d 133, 234 P.3d 195 (2010). In assessing an attorney's 

performance, we must make every effort "to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to 

evaluate the conduct from counsel's perspective at the time." Strickland v. 

Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense 

counsel's failure to anticipate changes in the law does not constitute deficient 

performance.  See State v. Brown, 159 Wn. App. 366, 372, 245 P.3d 776, rev.

denied, 171 Wn.2d 1025, 257 P.3d 664 (2011).  Wise's claim of ineffective 

assistance therefore fails.

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No. 65736-4-I/12

       Affirmed.

WE CONCUR:

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