1. Failure To Present Evidence of Mental Deficiencies during Sentencing Trial

 

¶43 RCW 10.95.070 provides statutory mitigating factors that a jury may consider in imposing the death penalty. For purposes of this argument, Elmore argues the particular significance of two factors:

 

HN7 (2) Whether the murder was committed while the defendant was under the influence of extreme mental disturbance;

... .

(6) Whether, at the time of the murder, the capacity of the defendant to appreciate the wrongfulness of his or her conduct  [*257]  or to conform his or  [***24] her conduct to the requirements of law was substantially impaired as a result of mental disease or defect.

RCW 10.95.070.

 

¶44 He claims that he was denied effective assistance of counsel because his trial attorneys, through inexperience, failed to investigate and present evidence regarding these statutory mitigating circumstances.

 

4 Specifically, Elmore argues that there was ample, compelling evidence that he was under the influence of extreme mental disturbance and was unable to conform his conduct to the requirements of the law because of child sexual and physical abuse, adult sexual trauma, and neuropsychological impairment.

 

WA[14-18] [14-18] ¶45 HN8 Whether to present mitigating evidence is a strategic decision. State v. Woods, 143 Wn.2d 561, 609, 23 P.3d 1046 (2001).  [***25] Mitigating evidence includes any relevant factors that do not constitute a legal excuse for the offense but which, in fairness and mercy, may justify a less severe punishment. State v. Pirtle, 127 Wn.2d 628, 671, 904 P.2d 245 (1995); In re Pers. Restraint of Rupe, 115 Wn.2d 379, 397, 798 P.2d 780 (1990). There is a strong presumption that trial counsel's performance was adequate, and exceptional deference must be given when evaluating counsel's strategic decisions. Strickland, 466 U.S. at 689.

 

¶46 With regard to Mr. Komorowski's testimony during the reference hearing, the trial court made the following findings of fact:

 

¶47 Mr. Komorowski wanted to focus on petitioner's remorse and personal responsibility. FOF at 33. He was concerned that the State would examine petitioner if a mental health defense were raised, and that petitioner would make damaging statements to a state mental health expert. The defense team made a strategic determination  [*258]  that a mental health defense would be detrimental. FOF at 34. Mr. Komorowski was also concerned that petitioner had made a damaging statement to Dr. Kleinknecht about his sexually deviant feelings.

 

¶48 As the case progressed, petitioner began to verbalize a lack [***26] of remorse, which was troubling to the defense team. This happened after the victim's mother wrote petitioner a letter stating that she felt her relationship with petitioner would never be the same.

Petitioner no longer felt that he had anyone to apologize to for his crime. FOF at 34-35. If the State realized that petitioner  [**347]  was no longer remorseful, the defense team was concerned that the State would play a videotape of petitioner asking the media for help finding Kristy's body. FOF at 36.

 

¶49 Mr. Komorowski testified that petitioner objected to the presentation of a mitigation case and threatened to act out in the courtroom if mitigation was put on for the jury. Petitioner did not want any family members called as witnesses or any aspect of his life put on as evidence. Mr. Komorowski had to basically deceive petitioner to get his mother and sister into the courtroom. Id.

 

¶50 There is no question that the defense team did investigate petitioner's mental health deficiencies. Rather, the issue is whether counsel's failure to conduct further evaluations amounted to deficient representation. We believe it did not. The defense team made a strategic decision to not present mental health mitigation  [***27] evidence. The potential for damaging rebuttal evidence was almost certain after Elmore admitted his deviant sexual feelings toward young girls. HN9 The failure to present mitigating evidence is reasonable where the evidence may have opened the door to damaging rebuttal evidence. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 744, 16 P.3d 1 (2001) (citing Kwan Fai Mak v. Blodgett, 970 F.2d 614, 618 (9th Cir. 1992)). [Footnote 5 omitted]  [*259]

¶51 Further, as the defense team predicted, there was a battle of the experts during the reference hearing. The expert witnesses did not agree on whether, or to what extent, Elmore's mental deficiencies affected his ability to conform to lawful behavior. In the absence of clear mental health evidence, there was a risk that such evidence would have detracted from counsel's strategy to show Elmore's remorse and willingness to accept responsibility, in addition to inviting damaging rebuttal. Accordingly, Elmore has not shown that counsel's decision not to present mental health mitigation evidence fell below accepted professional norms.