State Of Washington, Respondent V. Rashied Maceo Mitchell, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 80538-0-I
)
Respondent, )
)
v. )
)
RASHIED MACEO MITCHELL, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — Rashied Mitchell was convicted of first degree murder
following a jury trial. Mitchell was represented by two defense counsel. Following
trial, Mitchell received substitute defense counsel and made a motion for a new
trial, arguing his trial counsel provided ineffective assistance. The court denied the
motion. Mitchell makes the same arguments on appeal. Because the record
shows his trial counsel chose a legitimate, reasonable trial strategy and pursued it
using reasonable tactics, Mitchell fails to establish defense counsel’s performance
was deficient and ineffective. The court did not abuse its discretion by denying his
motion for a new trial.
Mitchell also argues he received ineffective assistance because the trial
court denied his motions for substitute defense counsel. Because Mitchell made
his motions after trial began, was able to communicate with counsel, and
disagreed over only trial strategy and tactics, he fails to establish the trial court
abused its discretion by denying his motions for substitute defense counsel.

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Therefore, we affirm.
FACTS
In mid-September of 2016, Tabitha Apling obtained a domestic violence
protection order against her boyfriend Rashied Mitchell after an incident at a fast
food restaurant. Mitchell was not allowed to have contact with Apling or their sons,
then five years old and seven months old, respectively. Mitchell went to live with
his mother Renee1 in her one-bedroom apartment. Apling still wanted Mitchell to
see his sons, however, and she relied on Renee for childcare when she was
working. Mitchell was struggling emotionally, and at least twice in two weeks,
Renee and others called the police after he posted suicidal comments online.
Between September 13 and September 24, Mitchell sent Apling 780 text
messages. On September 16, he texted, “You don’t realize you have broken me
and all of this has gone too far until I’m looking you in your eyes. . . . You can only
kick a pit so many times before they lash out and bite.”2 On September 24,
Mitchell texted Apling, “It’s past fun and games now because I will take my life. . .
. I’m going crazy and I’m not stable. . . . I have reached way over my limit where
now my sanity is really being affected.”3 Apling was afraid to see Mitchell, but
because Renee would be home that night, she agreed to speak with him when
picking up the kids after work.
1 Because Elina Renee Mitchell and her son have the same last name, we
refer to Renee by her preferred name.
2 Report of Proceedings (RP) (June 6, 2019) at 937.
3 Id. at 919.

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Renee saw nothing out of the ordinary with her son when Apling arrived
after 10:00 p.m. Mitchell sounded calm when they began talking. Renee was
lying down in her bedroom with her seven-month-old grandson. Her older
grandson was in the living room with his parents, playing video games. The older
grandson soon came running to the bedroom, crying because his “dad had a
gun.”4 Renee got up and saw Mitchell walking down the hallway with a handgun
pointed at his head. She recognized the gun as her son’s because she asked him
to get rid of it only a few weeks earlier, and he said he had. Apling was pulling on
the gun, trying to get it away from Mitchell’s head. Renee took her older grandson
into her bedroom, where her younger grandson had fallen asleep, and threw a
comforter over him to block his view.
Mitchell told Renee, “Mom, if you call [911], I’m going to shoot [myself and
Apling].”5 Despite his threat, Renee called 911 because Apling asked her to.
Mitchell learned 911 had been called and said to Apling, “It’s over now. . . . You
called the police on me. . . . You called the police. . . . You called the police.”6
Apling said, “Nobody called. Nobody called.”7 Renee saw Mitchell and Apling
“wrestling” for the gun, fall over a glass table in the bedroom, and enter the
bedroom closet while still wrestling to get the gun.8 Renee heard a gunshot.
4 RP (June 10, 2019) at 1006.
5 Id. at 1010-11.
6 Ex. 12, at 4.
7 Id.
8 RP (June 10, 2019) at 1013.

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Mitchell came out of the closet crying and trying to shoot himself in the head, but
the gun kept misfiring. Mitchell looked at Renee and said, “Go, Mom!”9
Renee ran out the door with the children and to the Federal Way police
officers who had just arrived in the parking lot outside. Renee told an officer that
her son was arguing with his girlfriend, he had a gun, they were wrestling over it,
she heard a gunshot, and she could no longer hear Apling’s voice. Inside the
apartment, Mitchell placed the gun beneath his jaw and pulled the trigger. Officers
outside heard the shot and used their loudspeakers to order Mitchell out of the
apartment. He complied, crawling out of the apartment where medics treated and
then took him to the hospital. Officers found Apling’s body inside the closet. She
was killed by a single, close-range gunshot that entered her left, upper back and
passed down through her heart.
Mitchell was charged with first and second degree murder, both with
domestic violence enhancements and a firearm enhancement. He was also
charged with four domestic violence felony violations of a no-contact order and
one count of unlawful possession of a firearm.
About one year later in August of 2017, Mitchell moved to dismiss his two
assigned defense counsels, arguing he lacked confidence in them because they
were inexperienced and had not communicated sufficiently with him. The court
denied his motion. In October of 2017, Mitchell again moved to dismiss his
attorneys, and the court denied his motion. On April 24, 2018, one month before
9 RP (June 10, 2019) at 1024.

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Mitchell’s trial was set, both defense counsel sought the court’s permission to
withdraw because Mitchell was unwilling to communicate with them, resulting in “a
complete breakdown in communication.”10 The court granted the motion and
ordered the appointment of substitute counsel. Mitchell’s trial was continued.
Kenan Isitt associated as defense counsel in May of 2018. Jason Moore
associated as defense co-counsel in November of 2018. They considered
whether a diminished capacity defense was viable but decided against it. When
trial began, Isitt and Moore planned on arguing the shooting was unintentional and
resulted either from voluntary intoxication or from an accident when Apling tried to
take the gun from Mitchell to stop him from killing himself. Over the course of trial,
they decided to focus solely on the accident theory and not call their intoxication
expert.
The State called multiple witnesses to testify, including Renee. On the third
day of trial, Mitchell moved for dismissal of his defense counsel and appointment
of substitute counsel. The court denied the motion. On the sixth day of trial,
Mitchell again moved to substitute new defense counsel. The court denied the
motion.
The jury found Mitchell guilty on all charges, including the enhancements.11
One month later, Isitt and Moore sought permission to withdraw because they
could no longer communicate at all with Mitchell. The court granted permission to
10 RP (Apr. 24, 2018) at 45.
11 The court granted the State’s motion to vacate the second degree murder
conviction on double jeopardy grounds.

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withdraw, appointed new defense counsel, and scheduled a date to hear Mitchell’s
CrR 7.5 motion for new trial.
Mitchell argued a new trial was required because Isitt and Moore provided
ineffective assistance by “fail[ing] to properly investigate or develop a diminished
capacity defense, fail[ing] to properly investigate and prepare a voluntary
intoxication defense, and fail[ing] to effectively cross examine” Renee.12 The court
heard oral argument, made findings of fact, concluded Isitt and Moore did not
provide ineffective assistance, and denied the motion for a new trial. Mitchell was
sentenced to 720 months’ incarceration.
Mitchell appeals.
ANALYSIS
I. Motion for New Trial
We review a decision to deny a motion for a new trial for abuse of
discretion.13 A trial court abuses its discretion when its decision is based upon
untenable evidentiary grounds or was made for untenable legal reasons.14 We
apply this deferential standard because “‘the trial judge who has seen and heard
12 Clerk’s Papers (CP) at 592.
13 State v. Hawkins, 181 Wn.2d 170, 179, 332 P.3d 408 (2014) (citing State
v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981)).
14 State v. Berry, 129 Wn. App. 59, 68, 117 P.3d 1162 (2005) (citing State v.
Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989)).

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the witnesses is in a better position to evaluate and adjudge than can we from a
cold, printed record.’”15
Mitchell moved for a new trial under CrR 7.5(a)(8), which authorizes a new
trial “when it affirmatively appears that a substantial right of the defendant was
materially affected . . . . (8) That substantial justice has not been done.” As he did
below, Mitchell argues a new trial is required because Isitt and Moore did not
provide effective assistance of counsel because, first, they failed to research and
investigate either a diminished capacity or voluntary intoxication defense, and
second, they failed to adequately cross-examine the State’s witnesses.
An allegation of ineffective assistance presents a mixed question of law and
fact.16 When the trial court’s findings of fact are unchallenged, we treat them as
verities.17 We review the trial court’s conclusions of law de novo.18
We presume defense counsel’s performance was effective.19 To
demonstrate he received ineffective assistance, Mitchell must show both that
counsel’s performance was deficient and that the deficient performance caused
15 Hawkins, 181 Wn.2d at 179 (quoting State v. Wilson, 71 Wn.2d 895, 899,
431 P.2d 221 (1967)).
16 State v. Lopez, 190 Wn.2d 104, 116, 410 P.3d 1117 (2018) (citing In re
Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001)).
17 In re Davis, 152 Wn.2d 647, 679, 101 P.3d 1 (2004) (citing State v. Hill,
123 Wn.2d 641, 647, 870 P.2d 313 (1994)).
18 Lopez, 190 Wn.2d at 117 (quoting Brett, 142 Wn.2d at 873-74).
19 Davis, 152 Wn.2d at 673 (citing State v. McFarland, 127 Wn.2d 322, 335,
899 P.2d 1251 (1995)).

No. 80538-0-I/8
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prejudice.20 “‘[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options’” are generally not deficient.21
Mitchell argues a new trial was required because his counsel did not
present viable defenses due to inadequate investigation. Effective assistance
“‘includes a “reasonable investigation” by defense counsel,’”22 and can also
include “‘expert assistance necessary to an adequate defense.’”23 The appropriate
“‘degree and extent of investigation required will vary depending upon the issues
and facts of each case.’”24
The same judge that presided over the trial considered the motion for a new
trial and made findings of fact in his oral ruling on the motion for a new trial.25
Mitchell has not challenged those findings, making them verities.26
20 Lopez, 190 Wn.2d at 109 (citing In re Pers. Restraint of Canha, 189
Wn.2d 359, 377, 402 P.3d 266 (2017)).
21 State v. Fedoruk, 184 Wn. App. 866, 880, 339 P.3d 233 (2014) (quoting
Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)).
22 Lopez, 190 Wn.2d at 116 (quoting State v. Boyd, 160 Wn.2d 424, 434,
158 P.3d 54 (2007)).
23 Id. (quoting State v. Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934
(2006)).
24 Fedoruk, 184 Wn. App. at 880 (quoting State v. A.N.J., 168 Wn.2d 91,
111, 225 P.3d 956 (2010)).
25 Mitchell asserts the trial court did not make findings of fact. But the
court’s oral ruling expressly referred to making findings, RP (Sept. 20, 2019) at
202, and it was clearly making “‘assertion[s] that a phenomenon . . . happened . . .
independent of or anterior to any assertion[s] as to its legal effect.’” See Williams,
96 Wn.2d at 221 (defining “finding of fact”) (quoting Leschi Improvement Council v.
Highway Comm’n, 84 Wn.2d 271, 283, 525 P.2d 774 (1974)).
26 Davis, 152 Wn.2d at 679.

No. 80538-0-I/9
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The findings and the record do not support Mitchell’s contentions. The trial
court found Isitt and Moore “reviewed or investigated” several experts about the
possibility of a diminished capacity defense.27 It found that “[n]one of the
witnesses that were investigated supported the idea that there was a diminished
capacity” and that there was a “lack of medical support for the diminished
capacity.”28 Regarding the voluntary intoxication defense, it “did not find that there
was a nexus between the . . . intoxication and the actual crime for which Mr.
Mitchell was convicted.”29 It found that the expert hired to evaluate and testify
about the effects of voluntary intoxication on Mitchell’s ability to form intent “was
unable to opine on whether there was an intent.”30 And, based upon the trial
record, it found “the accident defense was viable.”31
The trial judge was in the best position to evaluate Mitchell’s motion.32 The
court’s findings about Isitt and Moore’s performance are unchallenged and are
supported by the record. “Once counsel reasonably selects a defense . . . ‘it is not
deficient performance to fail to pursue alternate defenses.’”33 Thus, Mitchell fails
27 RP (Sept. 20, 2019) at 198.
28 Id. at 199, 201.
29 Id. at 202.
30 Id. at 199.
31 Id. at 198.
32 Hawkins, 181 Wn.2d at 179 (quoting Wilson, 71 Wn.2d at 899).
33 Davis, 152 Wn.2d at 722 (quoting Rios v. Rocha, 299 F.3d 796, 807 (9th
Cir. 2002)).

No. 80538-0-I/10
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to prove that Isitt and Moore conducted an unreasonable investigation under the
circumstances or did not present a viable defense.
Mitchell also argues defense counsel failed to research the relevant law for
a voluntary intoxication defense because they believed Mitchell would have to
testify. During a discussion in limine, Isitt explained “there would be no basis for a
voluntary intoxication defense” if Mitchell did not testify.34
A defendant is entitled to a voluntary intoxication instruction when, among
other requirements, there is substantial evidence of drinking and evidence that the
drinking affected the defendant’s ability to form the intent alleged.35 Mitchell told
the intoxication expert that he consumed a large bottle of brandy and two 1.5
ounce bottles of brandy on the day of the killing, but no witness testified to this.
Although Renee testified about Mitchell’s overconsumption of alcohol generally,
none of her testimony indicated he drank that day. And because the police never
ordered a blood draw or urine test for Mitchell, his medical records do not indicate
how much alcohol he drank. The only evidence showing Mitchell drank that day
was a small, empty bottle of brandy in Renee’s kitchen and the smell of alcohol on
his breath. Renee also testified that her son sounded “calm” and seemed normal
when Apling arrived.36
34 RP (June 4, 2019) at 833.
35 State v. Kruger, 116 Wn. App. 685, 691, 67 P.3d 1147 (2003) (citing
State v. Gallegos, 65 Wn. App. 230, 238, 828 P.2d 37 (1992)).
36 RP (June 10, 2019) at 1005.

No. 80538-0-I/11
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To the extent other evidence could have been used as proof of voluntary
intoxication, the record is also unsupportive. Mitchell was on prescription fentanyl
the day of the killing,37 but the intoxication expert explained fentanyl would not,
without more, make him unable to form the intent to kill. Mitchell was the only
witness who could establish he drank enough alcohol or took enough drugs to lose
the ability to form intent that day. Because having him testify would be incredibly
risky, he fails to show defense counsel was deficient by making a strategic
decision on that basis.
Mitchell contends defense counsel were ineffective because they did not
sufficiently cross-examine Renee. “Courts generally entrust cross-examination
techniques, like other matters of trial strategy, to the professional discretion of
counsel. . . . [W]e need not determine why trial counsel did not cross examine if
that approach falls within the range of reasonable representation.”38 Whether to
cross-examine a witness is often tactical because it could open the door to
damaging evidence or not provide evidence useful to the defense.39
Renee testified and was a “key” witness for the defense.40 Her testimony
was critical to establishing Mitchell’s accident theory. For example, she testified
that Mitchell never pointed the gun at Apling, only pointing it at himself or straight
37 Mitchell also had a valid prescription for oxycodone to help manage his
chronic pain, but no evidence demonstrated he had taken it that day.
38 Davis, 152 Wn.2d at 720.
39 In re Brown, 143 Wn.2d 431, 451, 21 P.3d 687 (2001) (citing In re Pers.
Restraint of Gentry, 137 Wn.2d 378, 404, 972 P.2d 1250 (1999)).
40 RP (June 3, 2019) at 530.

No. 80538-0-I/12
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up in the air. She also testified about Mitchell and Apling “wrestling” for the gun
and how Apling was pulling on the gun.41
Mitchell argues he received ineffective assistance because of the following
exchange with defense counsel on cross-examination:
[Defense counsel]: And during this struggle [for the gun] was when
they fell over the glass table?
[Renee]: Yes.
[Defense counsel]: And that glass table was adjacent to the closet,
correct?
[Renee]: Yes.
[Defense counsel]: And correct me if I’m wrong, they fell over the
glass table during the struggle for the gun, and
then they get back up again?
[Renee]: Yes.
[Defense counsel]: And they were still struggling for the gun at that
point?
[Renee]: Yes.
[Defense counsel]: Was [Mitchell] trying to point the gun at his
head still?
[Renee]: Yes.
[Defense counsel]: And then they fell into the closet?
[Renee]: Yes. I don’t know if they fell into the closet. I
just know that the struggle, you know, led them
into the closet.
[Defense counsel]: They struggled into the closet. And was it fairly
quickly after that that you heard the gunshot?
41 RP (June 10, 2019) at 1013.

No. 80538-0-I/13
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[Renee]: Yes.
[Defense counsel]: You say a few seconds?
[Renee]: Yes.[42]
Mitchell argues defense counsel should have refreshed Renee’s
recollection to establish that Mitchell and Apling fell into the closet. But the record
does not show it would have been appropriate to refresh Renee’s recollection.
Before a witness’s recollection may be refreshed, it must be demonstrated that
their memory needs refreshing.43 The record does not show Renee could not
remember the events leading up to the shooting, so seeking to refresh her
recollection would not have been appropriate. Thus, Mitchell’s real argument is
that defense counsel should have impeached Renee with a prior inconsistent
statement. But Renee was a key defense witness. Deciding against undermining
the credibility of a key defense witness is reasonable, especially when her
testimony is consistent with the defense’s theory of the case. The implication is
the same for the jury whether Mitchell and Apling fell into the closet or struggled
into the closet. Because “we need not determine why trial counsel did not cross
examine if that approach falls within the range of reasonable representation,”44
Mitchell fails to establish the decision not to impeach Renee was deficient.45
42 Id. at 1049-50 (emphasis added).
43 State v. McCreven, 170 Wn. App. 444, 475, 284 P.3d 793 (2012) (citing
State v. Little, 57 Wn.2d 516, 521, 358 P.2d 120 (1961)).
44 Davis, 152 Wn.2d at 720.
45 We also note that Renee’s prior statements were consistent with her trial
testimony. Mitchell relies upon several documents, including an application for a
search warrant written by the lead investigating detective, as proof Renee said

No. 80538-0-I/14
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Mitchell’s trial counsel conducted a reasonable investigation into defense
theories, chose a reasonable case theory based on the evidence, and made
reasonable strategic decisions around cross-examination.46 Mitchell fails to
establish his defense counsel’s performance was deficient.47 Because their
performance was not deficient, he fails to establish ineffective assistance of
counsel.48
II. Motion to Substitute Counsel
Mitchell argues the court deprived him of the right to effective defense
counsel when it denied his motions for substitute counsel during trial. We review a
trial court’s decision to deny a motion for substitute counsel for abuse of
discretion.49
Apling and Mitchell fell into the closet. But Renee told the detective that Mitchell
and Apling wrestled or went into the closet. She did not say they fell. During the
interview, the detective recast Renee’s statement as Mitchell and Apling “tumbling”
into the closet, CP at 473, and Renee did not correct him. This detail was then
repeated in the detective’s application for a search warrant and his certificate for
determination of probable cause.
46 To the extent Mitchell argues limited cross-examination prevented him
from establishing his theories of voluntary intoxication or diminished capacity, it is
immaterial because the accident theory was valid and reasonable. “Once counsel
reasonably selects a defense . . . ‘it is not deficient performance to fail to pursue
alternate defenses.’” Davis, 152 Wn.2d at 722 (quoting Rios, 299 F.3d at 807).
47 See Fedoruk, 184 Wn. App. at 880 (reasonable strategic decisions made
after investigation of relevant law and facts are not deficient).
48 Lopez, 190 Wn.2d at 109.
49 State v. Hampton, 184 Wn.2d 656, 663, 361 P.3d 734 (2015) (citing State
v. Aguirre, 168 Wn.2d 350, 365, 229 P.3d 669 (2010)).

No. 80538-0-I/15
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An indigent defendant has the right to counsel but not to the counsel of their
choice.50 An indigent defendant can move for substitute counsel upon a showing
of good cause, such as a total breakdown in communications or an irreconcilable
conflict.51 A defendant’s loss of trust or confidence in their attorney does not
warrant substituting new counsel.52
Mitchell appears to argue irreconcilable conflict pretrial between himself and
his attorneys led to a total breakdown in communications by the time of trial. But
when Mitchell moved for substitute counsel on the third day of trial, Moore told the
court, “I don’t have any issues communicating with Mr. Mitchell.”53 Mitchell did not
correct or disagree with him. When Mitchell again moved for substitute counsel on
the sixth day of trial, he did not mention poor communication. And a post-trial
declaration from Mitchell filed in support of his CrR 7.5 motion details multiple
meetings both before and during trial in which Isitt, Moore, and Mitchell
communicated about his defense.54 The record does not show a total breakdown
in communication before or during trial.
50 Id. at 662-63 (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 144,
151, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006)).
51 State v. Thompson, 169 Wn. App. 436, 457, 290 P.3d 996 (2012) (citing
State v. Schaller, 143 Wn. App. 258, 267-68, 177 P.3d 1139 (2007)).
52 Id. (citing State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997)).
53 RP (June 3, 2019) at 547.
54 See CP at 815 (“Prior to trial, I had many questions for defense counsel
Isitt and Moore about my trial defense . . . . They told me that diminished capacity
was a very hard defense to prove . . . They also said they were probably not going
to introduce anything about my mental health at trial. . . . I was told they were
thinking about an intoxication defense. . . . The next day, Mr. Isitt and Mr. Moore

No. 80538-0-I/16
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The question is whether Mitchell’s disagreements with his attorneys
amounted to an irreconcilable conflict. A court weighs three factors to determine
whether an irreconcilable conflict existed: “(1) the extent of the conflict, (2) the
adequacy of the inquiry, and (3) the timeliness of the motion.”55
Regarding the third factor, Mitchell’s motions for substitute counsel were
made during a trial that had already been delayed by more than one year following
the replacement of Mitchell’s original defense counsel. Jury voir dire alone lasted
two-and-a-half days. As the trial judge explained when denying Mitchell’s second
motion on the sixth day of trial, “I can’t in good conscience discharge counsel at
this stage of the game.”56
“[O]ne of the basic limits on the right to counsel of choice is ‘a trial court’s
wide latitude in balancing the right to counsel of choice . . . against the demands of
its calendar.’”57 “‘[W]here the request for change of counsel comes during the trial,
or on the eve of trial, the Court may, in the exercise of its sound discretion, refuse
to delay the trial to obtain new counsel and therefore may reject the request.’”58
came to see me. . . . [During trial] Mr. Moore told me that I wouldn’t like his
opening [statement].”).
55 In re Pers. Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001)
(citing United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)).
56 RP (June 11, 2019) at 1107.
57 Hampton, 184 Wn.2d at 663 (alteration in original) (quoting Gonzalez-
Lopez, 548 U.S. at 152).
58 Stenson, 142 Wn.2d at 732 (quoting United States v. Williams, 594 F.2d
1258, 1260-61 (9th Cir. 1979)).

No. 80538-0-I/17
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Because a jury had been empaneled to hear a long-delayed trial, this factor
strongly favors upholding the trial court’s decision.
For the second factor, Mitchel contends the court failed to conduct an
adequate inquiry into his motion. But the record shows the court heard Mitchell’s
motions as soon as they were raised and took them seriously. The colloquies
were conducted in limine, Mitchell was given time to speak without interference
from the court or counsel, and the judge asked defense counsel questions to
explore and test Mitchell’s allegations. The court also invited Mitchell to make a
written motion for reconsideration after denying his first motion, which was made
orally.
Mitchell analogizes to United States v. Nguyen,59 but it is not apt. Unlike
that case, the judge tested Mitchell’s allegations by asking defense counsel
probing questions; Mitchell did not provide extrinsic evidence showing he could not
communicate with his attorneys; defense counsel did not agree that all
communication had broken down; the trial had been going on for several days;
and the judge had been observing Mitchell and his attorneys during trial. Mitchell
fails to demonstrate the court’s inquiry was inadequate. This factor favors
upholding the trial court’s decision.
For the first factor, the extent of the conflict, we consider “the extent and
nature of the breakdown in communication between attorney and client” and the
59 262 F.3d 998 (9th Cir. 2001).

No. 80538-0-I/18
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breakdown’s effect on representation.60 The nature of the conflict between
Mitchell and defense counsel was, as the trial court noted, “a strategy dispute.”61
In his first motion for substitute counsel, Mitchell pointed out disagreements with
defense counsel about which witnesses to call, whether to raise a mental health
defense, and whether to defer to his opinions on which jurors to empanel. When
Mitchell made his second motion for substitute counsel, he said, “I don’t believe
that I have been defended the right way”62 because of defense counsel’s decisions
about which witnesses to call, questions to ask witnesses on direct and cross-
examination, and other evidentiary decisions.
The core concern of denial of a motion to substitute new counsel is denial
of the defendant’s Sixth Amendment right to effective assistance of counsel.63
Legitimate trial strategy and tactics “cannot serve as a basis for a claim” for
ineffective assistance of counsel.64 Mitchell and defense counsel communicated
about trial strategy and tactics but disagreed. As discussed above, Mitchell has
not demonstrated Isitt and Moore provided deficient representation. This factor
favors upholding the trial court’s decision.
60 Stenson, 142 Wn.2d at 724.
61 RP (June 3, 2019) at 545.
62 RP (June 11, 2019) at 1101.
63 See Stenson, 142 Wn.2d at 722 (“If the relationship between lawyer and
client completely collapses, the refusal to substitute new counsel violates the
defendant's Sixth Amendment right to effective assistance of counsel.”) (citing
Moore, 159 F.3d at 1158).
64 State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002) (citing State v.
Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978)).

No. 80538-0-I/19
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Because the record does not show a total breakdown in communication or
an irreconcilable conflict, Mitchell fails to show the trial court abused its discretion
by denying his motions for substitute defense counsel.
Therefore, we affirm.
WE CONCUR: