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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                      No.  37675-0-II / 38874-0-II

                             Respondent,
                                                           ORDER WITHDRAWING
       v.                                                  UNPUBLISHED OPINION

KI LEE,

                             Appellant.

       Upon reconsideration as directed by our Supreme Court, we are withdrawing the April 13, 

2010 unpublished opinion in the above matter.

       It is ordered that the April 13, 2010 unpublished opinion is withdrawn and the new 

opinion is filed this same date.

       Dated this _________ day of _______________________, 2011.

                                                           Chief Judge 

37675-0-II / 38874-0-II

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  37675-0-II

                             Respondent,

       v.

KI KANG LEE,                                                    consolidated with

                             Appellant.
                                                                 No.  38874-0-II
In re the Personal Restraint Petition of:

KI KANG LEE,

                           Petitioner.                     UNPUBLISHED OPINION

       Penoyar, C.J.  --  Ki Kang Lee appeals his conviction for attempted first degree murder

with a deadly weapon enhancement.  He raises ineffective assistance of counsel claims for his trial 

counsel's failure to seek a lesser included instruction for attempted second degree murder, failure 

to sufficiently prepare for trial, and, alternatively, failure to properly build a voluntary intoxication 

defense.  He also contends that the trial court erred in refusing to issue a voluntary intoxication 

instruction and in admitting evidence of Lee's threats to the victim's family as prior bad acts under 

ER 404(b).  In a personal restraint petition (PRP) consolidated with his appeal, he raises 

additional claims of ineffective assistance of counsel and asserts that cumulative error warrants 

remand for a new trial.  We affirm the convictions and deny the PRP.

                                               2 

37675-0-II / 38874-0-II

                                            FACTS

       Lee and Jin Kyung Kim started dating in late 2002.  In 2005, they opened a bakery in 

Tacoma.  Because of visa restrictions, the fact that Kim's family lives in Korea, and a tumultuous 

relationship with Lee, Kim returned to Korea.  Lee contacted Kim on several occasions and asked 

her to return to the United States.  Kim returned for short periods.  Lee became quite upset on 

several occasions when Kim refused to return, and he threatened to kill Kim's parents unless she 

did so.  He also left abusive voicemail messages for Kim and her family members.  Despite these 

threats, Kim briefly returned to help Lee open a second bakery in Tacoma. 

       Lee asked Kim to return to the United States to participate in a trial involving their 

business, promising to end the relationship and not physically hurt Kim or her family members if 

she would do so.  Kim agreed, returning to the United States on October 31, 2006.  Lee picked 

Kim up at the airport midday and they started to argue soon thereafter.  Lee insisted that Kim stay 

with him during her visit, but Kim refused.  Kim accompanied Lee on a series of errands, 

including a brief stop at the bakery, where Lee placed a cake box in the trunk of his car.  

       Later that night, Kim and Lee attended a business dinner at a restaurant.  Lee drank a 

bottle of Korean alcohol at dinner.  When Kim and Lee left the restaurant, Kim sat in the driver's 

seat because she did not want to stay with Lee and she was concerned Lee would not take her to 

a hotel.  Before they left the restaurant, Lee removed the cake box from the trunk of his car and 

placed it in the back seat.  Lee then sat in the front passenger seat.  

       As Kim was driving, Lee asked Kim for her father's phone number but did not say why he 

wanted it.  Kim refused to give it to him.  An argument ensued and Lee ordered Kim to pull over 

to the side of the road and continued to ask for Kim's father's number.  After Kim refused again, 

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37675-0-II / 38874-0-II

Lee grabbed a kitchen knife from the cake box on the rear passenger seat and stabbed her.  Kim 

then relented.  While making the phone call, Lee stuck the knife into a tissue box.  Kim tried to 

grab Lee's hands, but he put his hands around her neck and choked her, asking her "Do you want 

me to kill you this way?"  4 Report of Proceedings (RP) at 111.  After she released his hands, Lee 

stopped choking her and stabbed her again once or twice while waiting for the call to Kim's father 

to connect.  Lee again stuck the knife in the tissue box and held Kim's head against the seat while 

he spoke to her father, asking him "Do you love your daughter?"  4 RP at 114.  While Lee was on 

the phone, Kim escaped from the car and ran down the street.  Lee chased her with the knife.  

Several witnesses tackled Lee and restrained him until police arrived.  

       Emergency medical technicians treated Kim on the scene, and an ambulance took her to a 

hospital where doctors treated her for several knife-inflicted lacerations.  Kim also had red marks 

on her neck consistent with choking.  

       The State charged Lee with attempted1 first degree murder with a deadly weapon.2     The 

State amended the information to add the first degree assault with a deadly weapon charge.3  

       Before trial, the State moved to admit Kim's testimony that Lee had threatened her and 

her family.  Lee objected to this testimony.  The trial court admitted this testimony under ER 

1 "A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he 
or she does any act which is a substantial step toward the commission of that crime."      RCW 
9A.28.020(1).

2 "A person is guilty of murder in the first degree when . . . [w]ith a premeditated intent to cause 
the death of another person, he or she causes the death of such person or of a third person . . . ."  
RCW 9A.32.030(1)(a).

3 "A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily 
harm[,] . . . [a]ssaults another with a firearm or any deadly weapon or by any force or means 
likely to produce great bodily harm or death . . . ." RCW 9A.36.011(1)(a).
                                               4 

37675-0-II / 38874-0-II

404(b).  

       At trial, Kim testified that (1) after she tried to cut off communication with Lee, he 

threatened to kill her family and asked her to pick a member of her family for him to kill; (2) Lee 

left numerous voicemail messages -- as many as 88 in one day -- in which he cursed and threatened 

her family; (3) Lee told her that he would promise not to hurt her or her family if she agreed to 

come back and help with the trial related to their bakery business.  She also testified that during 

the attack she thought Lee told her that she "needed to die" and was "someone that should die."  

4 RP at 110. 

       Dr. Lori   Thiemann, a Western State Hospital psychologist who evaluated Lee's 

competency before trial, testified that Lee was capable of forming intent at the time of the offense.  

Dr. Thiemann also testified that Lee's intoxication would not have prevented him from forming 

intent or the requisite premeditation.  

       Dr. Paul Leung, a psychiatrist, testified in Lee's defense.  Leung testified that Lee could 

not remember the details of the events of the night in question.  He explained that he believed the 

memory loss derived from Lee's mind rejecting the traumatic, extraordinary events of the evening.  

Dr. Leung testified that Lee suffered from major depression and that he took medications that 

would have increased side effects when mixed with alcohol.  Dr. Leung testified that Lee had told 

him that he had consumed "quite a bit of alcohol" in the restaurant on the evening in question.  8 

RP at 389.  Dr. Leung did not know if that quantity of alcohol was enough to have made Lee pass 

out.  Dr. Leung did not testify that the alcohol or medications would have caused Lee to black out 

or would have caused Lee's inability to remember the evening.  Dr. Leung ultimately opined that 

Lee could not have formed intent and that he did not intend or plan to harm Kim.  With regard to 

                                               5 

37675-0-II / 38874-0-II

Lee's threats, Dr. Leung testified that, in Asian culture, people sometimes make statements that 

sound like threats even though they do not intend the statements as threats.  On cross-

examination, Dr. Leung stated that Lee engaged in "goal-directed" behavior, such as discussing 

with Kim which of them would drive, asking Kim for her father's phone number, and moving the 

cake box from the trunk area to the backseat.  8 RP at 413.  

       Lee did not testify on his own behalf.  Lee proposed a series of jury instructions, including 

voluntary intoxication, diminished capacity, and to convict instructions for the inferior degree 

crimes of second degree and third degree assault.  The trial court refused Lee's proposed 

instruction on voluntary intoxication, finding that Dr. Leung had been unable to offer an opinion 

as to intoxication that night and that the evidence presented did not reasonably connect Lee's 

intoxication with the inability to form the required level of culpability.  The trial court issued all of 

Lee's remaining proposed instructions.  The jury convicted Lee of attempted first degree murder 

and first degree assault and returned special verdicts finding that Lee was armed with a deadly 

weapon on each of those counts.  The trial court found that the assault conviction merged with 

the attempted murder conviction and sentenced Lee only on the attempted murder conviction.   

       Lee filed a direct appeal and a personal restraint petition (PRP), which we consolidated.  

In an unpublished opinion, the majority reversed Lee's conviction for attempted first degree 

murder with a deadly weapon, concluding that his counsel had provided ineffective assistance by 

failing to seek a lesser included instruction on attempted second degree murder.4  State v. Lee, 

noted at 155 Wn. App. 1025, 2010 WL 1454310, at *2, remanded, 171 Wn.2d 1018, 259 P.3d 

4 We did not consider Lee's assault conviction because the trial court did not sentence Lee on that 
count to avoid violating double jeopardy.  Lee, 2010 WL 1454310, at *1 n.1.  We also considered 
Lee's PRP moot because Lee's conviction was reversed and remanded on the basis of the direct 
appeal. Lee, 2010 WL 1454310, at *1 n.2.
                                               6 

37675-0-II / 38874-0-II

145 (2011).

       Our Supreme Court granted review and remanded back to us "for reconsideration in light 

of State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011)."     State v. Lee, 171 Wn.2d 1018.  We 

asked for additional briefing on the application of Grier and withdrew our earlier opinion.  

                                          ANALYSIS

I.     Ineffective Assistance of Counsel

       Lee raises several ineffective assistance of counsel claims on direct appeal and in his PRP.5  

On direct appeal, Lee argues that he received ineffective assistance of counsel when his counsel 

failed to (1) propose a to convict instruction for the lesser included offense of attempted second 

degree murder, (2) adequately prepare witnesses for trial, and (3) present evidence to sufficiently 

establish a voluntary intoxication defense.  In his PRP, Lee argues that counsel failed to offer the 

lesser included instruction, call witnesses, competently examine and cross-examine witnesses, 

investigate the case, and present mitigating evidence.  

       The federal and state constitutions guarantee effective assistance of counsel.  U.S. Const. 

amend. VI; Wash. Const. art. I, § 22.  An appellant claiming ineffective assistance of counsel must 

show deficient performance and resulting prejudice.  Strickland v. Washington, 466 U.S. 668, 

689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  To prove deficient performance, the defendant 

must show that counsel's performance fell "below an objective standard of reasonableness."

Strickland, 466 U.S. at 688.  "There is a strong presumption that counsel's performance was 

reasonable."   State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).  "When  counsel's 

conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient."  

5 RAP 16.3.
                                               7 

37675-0-II / 38874-0-II

Kyllo, 166 Wn.2d at 863.  To satisfy the prejudice prong, the defendant must show that the 

outcome of the proceedings would have differed but for counsel's deficient performance.  Grier, 

171 Wn.2d at 34.  "The proper standard for attorney performance is that of reasonably effective 

assistance." Strickland, 466 U.S. at 687.  

       A petitioner may request relief through a PRP when he is under an unlawful restraint.6

RAP 16.4(a)-(c).  A personal restraint petitioner must prove either a (1) constitutional error that 

results in actual and substantial prejudice or (2) nonconstitutional error that "'constitutes a 

fundamental defect which inherently results in a complete miscarriage of justice.'"  In re Pers. 

Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004) (quoting In re Pers. Restraint of 

Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)).  The petitioner must prove the error by a 

preponderance of the evidence.  In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 

(2004).

       When a PRP is based on ineffective assistance of counsel, a personal restraint petitioner 

need not "'satisfy a heightened prejudice requirement under actual and substantial prejudice that 

exceeds the showing of prejudice necessary to successfully establish the Strickland prejudice 

prong.'"  In re Pers. Restraint of Monschke, 160 Wn. App. 479, 491, 251 P.3d 884 (2010), 

(quoting In re Pers. Restraint of Crace, 157 Wn. App. 81, 112-14, 236 P.3d 914 (2010), review 

granted, 171 Wn.2d 1035 (2011)).  

       A.     Failure To Propose Instruction on Attempted Second Degree Murder

       Lee asserts on direct appeal and in his PRP that his trial counsel was ineffective for failing 

to propose a to convict instruction for the lesser included offense of attempted second degree 

6 Lee is under a "restraint" as he is confined under a judgment and sentence resulting from a 
decision in a criminal proceeding. RAP 16.4(b).
                                               8 

37675-0-II / 38874-0-II

murder.  In our first opinion, our majority held that Lee's counsel was ineffective for failing to 

seek the lesser included instruction on attempted second degree murder.  Lee, 2010 WL 1454310 

at *2.  Upon reconsideration in light of Grier, we hold that counsel was not ineffective for failing 

to propose the instruction.  

       The threshold question is whether Lee was entitled to the lesser included offense 

instruction.  A defendant's right to present a lesser included offense instruction to the jury is 

statutory.  RCW 10.61.006; RCW 10.61.010; State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 

116 (1990).  A defendant is entitled to a lesser included offense instruction if two criteria are met:  

(1) each of the elements of the lesser offense must be a necessary element of the offense charged 

(legal prong), and (2) the evidence in the case must support an inference that the lesser crime was 

committed (factual prong).  State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).  The 

factual prong of Workman is satisfied when, viewing the evidence in the light most favorable to 

the party requesting the instruction, substantial evidence supports a rational inference that the 

defendant committed only the lesser included or inferior degree offense to the exclusion of the 

greater one.  State v. Fernandez-Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000).  The State 

concedes in its brief that this case meets the legal prong.  

       To evaluate the second prong of the Workman test, we must look at the elements of the 

charged crime as compared to the lesser crime.  Attempted first degree murder is committed with 

premeditation but attempted second degree murder is not.  RCW 9A.32.030(1)(a); RCW 

9A.32.050(1)(a); RCW 9A.28.020.  The law defines premeditation as "'the deliberate formation 

of and reflection upon the intent to take a human life[, involving] the mental process of thinking 

beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'"

                                               9 

37675-0-II / 38874-0-II

State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998) (quoting State v. Ortiz, 119 Wn.2d 

294, 312, 831 P.2d 1060 (1992)).

       Several pieces of evidence support a rational inference that Lee committed only attempted 

second degree murder, including:  (1) he was severely depressed at the time of the attack; (2) he 

was taking a series of psychotropic medications; (3) the alcohol he consumed at the restaurant 

beforehand would have exacerbated any side effects of those medications; (4) his threats against 

the victim, in light of cultural differences, were not necessarily meant to convey an actual threat of 

harm to the victim; and (5) he had the bakery knife in his car only because he planned to have it 

sharpened.  Thus, Lee satisfies the factual prong of the Workman test.

       We next consider whether defense counsel's failure to seek the lesser included instruction 

constituted deficient performance.  Lee's defense counsel was not deficient here.

       In our prior opinion, the majority held that counsel's failure to seek the lesser included 

instruction was deficient as it was an improper "all or nothing" strategy and not a legitimate trial 

tactic because Lee's defense related only to intent, which is an essential element of both first and 

attempted second degree murder.  Lee, 2010 WL 1454310, at *3.  We now reach the opposite 

result and follow Grier to hold that Lee did not receive deficient performance.

       First, Lee did not pursue an all-or-nothing approach.  In an all-or-nothing approach, 

defense counsel forgoes a lesser included offense instruction in the hopes that the jury will acquit 

the defendant entirely.  See Grier, 171 Wn.2d at 39.  In the instant case, Lee was charged with 

attempted first degree murder and first degree assault with a deadly weapon.  CP 1-2, 31.  

Because a jury determined to convict had a second, less serious option, counsel's decision not to 

request a to convict instruction on the lesser included offense was not an all-or-nothing approach, 

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37675-0-II / 38874-0-II

but rather a legitimate trial tactic.

       Second, our Supreme Court clarified in Grier that an all-or-nothing strategy can be a 

legitimate trial tactic that does not constitute ineffective assistance of counsel.  171 Wn.2d at 42.  

In that case, Grier alleged that she received ineffective assistance resulting in her conviction for 

second degree murder when her counsel withdrew instructions for the lesser included offenses of 

first and second degree manslaughter.  Grier, 171 Wn.2d at 20.  The Supreme Court reversed this 

court's opinion and affirmed the conviction, holding that, based on the facts, the defendant and 

defense counsel could have decided that the all-or-nothing approach was the best strategy to 

achieve acquittal -- thus, there was no deficient performance.  Grier, 171 Wn.2d at 43.  The 

Supreme Court explained that, even when "the risk is enormous and the chance of acquittal is 

minimal, it is the defendant's prerogative to take this gamble, provided her attorney believes there 

is support for the decision."  Grier, 171 Wn.2d at 39.  

       Here, like in Grier, Lee fails to show that defense counsel's decision not to request a 

lesser included instruction was not tactical.  To instruct on attempted second degree murder as 

well as attempted first degree murder, defense counsel would have had to argue both that Lee did 

not attempt to murder Kim and that he did not premeditate his attempt.  See                RCW 

9A.32.030(1)(a); RCW 9A.32.050(1)(a).  Defense counsel, in consultation with Lee, could have 

concluded that a more clean and comprehensible strategy was to just argue Lee had not attempted 

murder at all.  In fact, Lee's counsel requested a jury instruction on the lesser included offenses of 

second and third degree assault, demonstrating that counsel considered the possibility of lesser 

included offense instructions and was capable of obtaining them.  

       Given the facts of this case, Lee does not show that his counsel's failure to request a to 

                                               11 

37675-0-II / 38874-0-II

convict instruction for attempted second degree murder was not strategic.   It is not for us to 

question that strategy.  As the Grier court noted, the "complex interplay between the attorney and 

the client in this arena leaves little room for judicial intervention." 117 Wn.2d at 40.  Simply 

because defense counsel's strategy     was ultimately unsuccessful does not mean that his 

performance was deficient.  See Grier, 171 Wn.2d at 43 ("That this strategy ultimately proved 

unsuccessful is immaterial to an assessment of defense counsel's initial calculus; hindsight has no 

place in an ineffective assistance analysis.");  see also Strickland, 466 U.S. at 689 ("[A] fair 

assessment of attorney performance requires that every effort be made 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.").  

       Lee has not met the high burden of proving that his trial counsel's performance was 

deficient.  Because Lee fails to prove the first prong of the Strickland test, we need not consider 

whether prejudice resulted.  Lee's  claim for ineffective assistance for failure to request an 

instruction on attempted second degree murder fails. 

       Because we now reject Lee's challenge to his conviction on these grounds, we proceed to 

address those arguments raised by Lee in his direct appeal and PRP that we did not address in our 

prior opinion.

       B.     Failure to Consult on Attempted Second Degree Murder Instruction

       Lee contends in his PRP that he received ineffective assistance of counsel when counsel 

failed to consult with him about whether to seek the attempted second degree murder instruction.  

"Absent evidence in the record of a failure to consult, . . . we presume consultation occurred."

State v. Breitung, No. 84580-8, 2011 WL 6824965, at *3 (Wash. Dec. 29, 2011) (holding, in a 

                                               12 

37675-0-II / 38874-0-II

direct appeal, that Breitung failed to show ineffective assistance based on failure to consult 

because no evidence in the record showed that consultation did not occur).  Lee submitted only 

his own declaration to support this claim, asserting that his counsel did not discuss the lesser 

included instruction with him and that he would have sought the instruction if consulted.  A 

petitioner may not support his PRP claims based solely on self-serving affidavits. See In re Pers. 

Restraint of Reise, 146 Wn. App. 772, 789, 192 P.3d 949 (2008).  Without additional support, 

Lee fails to establish material disputed issues of fact sufficient to trigger a full hearing on the 

merits or for a reference hearing pursuant to RAP 16.11(a) and RAP 16.12.  Lee fails to support 

his claim of deficient performance; accordingly, we need not consider the prejudice prong of the 

Strickland test.  Lee's claim for ineffective assistance for failure to consult on whether to request 

an instruction on attempted second degree murder fails.

       C.     Voluntary Intoxication Defense

       Lee next contends both that the trial court erred in refusing to give his requested 

instruction for voluntary intoxication and that his counsel provided ineffective assistance in failing 

to adequately develop a voluntary intoxication defense.  We will address both arguments here.

              1.      Trial Court's Refusal to Give Pattern Voluntary Intoxication Instruction

       Lee contends in his direct appeal that the trial court erred when it denied his request to 

give the pattern jury instruction for voluntary intoxication.7 We disagree.  

       A defendant is entitled to an instruction on the defendant's theory of the case if the 

evidence supports the instruction.  State v. Werner, 170 Wn.2d 333, 336, 241 P.3d 410 (2010).  

7 The pattern jury instruction reads: "No act committed by a person while in a state of voluntary 
intoxication is less criminal by reason of that condition.  However, evidence of incrimination may 
be considered in determining whether the defendant [acted with intent]." 11 Washington Practice: 
Pattern Jury Instructions: Criminal 18.10, at 282 (3d ed. 2008); see also RCW 9A.16.090.
                                               13 

37675-0-II / 38874-0-II

Failure to provide such an instruction is reversible error.  See State v. Redmond, 150 Wn.2d 489, 

495, 78 P.3d 1001 (2003).  Generally, we review the adequacy of jury instructions de novo as a 

question of law.  State v. Cross, 156 Wn.2d 580, 617, 132 P.3d 80 (2006).

       To receive a jury instruction on voluntary intoxication, the defendant must show that:  (1) 

the crime charged includes a particular mental state as an element, (2) there is substantial evidence 

of drinking, and (3) the defendant presents evidence that the drinking affected the defendant's 

ability to form the requisite mental state.  State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 

P.3d 294 (2004).  The evidence "must reasonably and logically connect the defendant's 

intoxication with the asserted inability to form the required level of culpability to commit the 

crime charged."  State v. Gabryschak, 83 Wn. App. 249, 252-53, 921 P.2d 549 (1996).  Evidence 

of drinking, standing alone, is insufficient; there must be substantial evidence of the alcohol's 

effect on the defendant's mind and body.  Gabryschak, 83 Wn. App. at 253; see also State v. 

Finley, 97 Wn. App. 129, 135, 982 P.2d 681 (1999) ("[T]he court is required to give a voluntary 

intoxication instruction only in those cases in which the level of mental impairment caused by 

alcohol or drugs clearly affected the defendant's criminal responsibility by eliminating the 

necessary mens rea.").

       Because intent is an element of first degree murder and assault, the test's first element is 

met.  See RCW 9A.36.011, .030(1)(a).  Regarding the second factor, evidence indicates that Lee 

had a bottle of alcohol8 at dinner.  Thus, the second prong is met.  

       To support his contention that he was unable to form the requisite intent, Lee relies on 

State v. Kruger, 116 Wn. App. 685, 67 P.3d 1147 (2003).  In Kruger, the court held that the 

8 The materials submitted by Lee with his PRP indicate that the liquor was Soju, a "strong Korean 
Liquor." PRP Ex. 1A, at 3.
                                               14 

37675-0-II / 38874-0-II

defendant was entitled to the instruction because there was evidence that the defendant did not 

react to pepper spray, blacked out, vomited, and slurred his speech.  116 Wn. App. at 692; see 

also  State v. Rice, 102 Wn.2d 120, 122-23, 683 P.2d 199 (1984) (defendants entitled to 

intoxication instruction where they drank beer all day, took between two and five Quaaludes, and 

could not hit ping-pong balls, and one did not feel it when struck by a vehicle);  but see

Gabryschak, 83 Wn. App. at 254 (evidence that defendant was angry, physically violent, and 

threatening when intoxicated was not enough to establish that he was too intoxicated to form the 

required intent). 

       In the instant case, Lee presented some evidence that his alcohol use affected him.  

Specifically, Dr. Leung testified that Lee generally took medications for depression.  Dr. Leung 

testified that Lee "could not remember the details of what happened" the night of the incident, 

which may be consistent with a blackout.  8 RP at 387.  Dr. Leung also testified that he believed 

that Lee "did not know what he was doing," and that the alcohol "would have expanded the side 

effect of the medications."  8 RP at 387, 389.  But Kim testified that she chose to drive on the 

night of the incident only in part because Lee had been drinking; her "main purpose" in driving 

"was to look for a motel."  4 RP at 104.  And, as the State established in its cross-examination of 

Dr. Leung, Lee engaged in "goal-directed" behavior that suggested that he knew what he was 

doing, such as discussing with Kim which of them would drive, asking Kim for her father's phone 

number, and moving the cake box from the trunk area to the backseat.  

       Lee also points to the evidence presented by the State that Lee smelled of alcohol at the 

time of arrest and required restraint by witnesses.  Neither fact establishes a question of fact as to 

whether Lee had the ability to form the requisite mental state.  Resisting restraint by witnesses 

                                               15 

37675-0-II / 38874-0-II

could easily have nothing to do with intoxication.  

       This case is distinguishable from Kruger.  While evidence was presented here that alcohol 

and other influences on Lee's state of mind called into question whether he was intending to kill 

Kim, the evidence did not connect Lee's intoxication with his asserted inability to form the intent 

to kill. In other words, the evidence tended to show what he was intending, not whether he was 

capable of forming the intent.  Because substantial evidence does not support the voluntary 

intoxication instruction, the trial court did not err when it refused to give the pattern instruction.  

              2.      Ineffective Assistance for Failure to Develop a Voluntary Intoxication 
                      Defense

       Lee contends on direct appeal and in his PRP that his counsel was ineffective for failing to 

properly develop a voluntary intoxication defense.  Specifically, he asserts that his counsel should 

have (1) asked witnesses whether he appeared intoxicated the night of the crime, (2) determined 

the alcohol content of the liquor that Lee consumed that night, (3) determined whether Lee took 

his medications the day of the crime, and (4) if he had taken his medications, determined the 

effects of mixing these medications with alcohol.  

       To show prejudice under Strickland, Lee must show that proper preparation and 

investigation would have resulted in sufficient evidence to support the giving of the instruction 

such that the trial court would have permitted the instruction.  Assuming without deciding that 

counsel's investigation was deficient, Lee fails to show prejudice.

       For the claim raised in the direct appeal, we may only consider the evidence in the record.  

See State v. McFarland, 127 Wn.2d 323, 335, 899 P.2d 1251 (1995) ("Where, as here, the claim 

is brought on direct appeal, the reviewing court will not consider matters outside the trial 

                                               16 

37675-0-II / 38874-0-II

record.").  As explained above, the record is insufficient to establish that Lee's drinking affected 

his ability to form the requisite mental state.  Therefore, based on this record, he was not entitled 

to the instruction and he fails to show that the outcome of the proceedings would have differed 

but for counsel's deficient performance.  

       We may consider additional evidence when evaluating this claim raised in Lee's PRP.  The 

petitioner must support the petition with facts or evidence and may not rely solely on conclusory 

allegations.  RAP 16.7(a)(2)(i); Cook, 114 Wn.2d at 813-14; see also In re Pers. Restraint of 

Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988).  For allegations "based on matters outside 

the existing record, the petitioner must demonstrate that he has competent, admissible evidence to 

establish the facts that entitle him to relief."  In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 

828 P.2d 1086 (1992). "If the petitioner's evidence is based on knowledge in the possession of 

others, he may not simply state what he thinks those others would say, but must present their 

affidavits or other corroborative evidence.  The affidavits . . . must contain matters to which the 

affiants may competently testify." Rice, 118 Wn.2d at 886.  The petitioner must show that the 

"factual allegations are based on more than speculation, conjecture, or inadmissible hearsay."  

Rice, 118 Wn.2d at 886.

       "Once the petitioner makes this threshold showing, the court will then examine the State's 

response," which must "answer the allegations of the petition and identify all material disputed 

questions of fact."  Rice, 118 Wn.2d at 886.  "[T]o define disputed questions of fact, the State 

must meet the petitioner's evidence with its own competent evidence" and only after "the parties'

materials establish the existence of material disputed issues of fact" will we direct the trial court 

"to hold a reference hearing in order to resolve the factual questions." Rice, 118 Wn.2d at 886-

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87.

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       When reviewing a PRP, we have three options:

              1. If a petitioner fails to meet the threshold burden of showing actual 
       prejudice arising from constitutional error, the petition must be dismissed; 

              2. If a petitioner makes at least a prima facie showing of actual prejudice, 
       but the merits of the contentions cannot be determined solely on the record, the 
       court should remand the petition for a full hearing on the merits or for a reference 
       hearing pursuant to RAP 16.11(a) and RAP 16.12; [or]

              3. If the court is convinced a petitioner has proven actual prejudicial error, 
       the court should grant the [PRP] without remanding the cause for further hearing.

In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).

       Lee submitted affidavits on this question in his PRP.  Those affidavits do not provide 

enough evidence to justify a reference hearing as to whether Lee would have been entitled to the 

instruction had he received effective assistance of counsel.  

       Lee submitted a forensic psychological report completed by staff at Western State 

Hospital.  The report states that Lee "could not recall the details of that evening." PRP Ex. 1A at 

6.  It states that Lee reported during the evaluation that he had consumed drinks during dinner.  

The report also notes that Lee reported drinking seven to eight shot-sized glasses of Soju, a 

Korean liquor that contains 25 percent alcohol, and that he denied using substances other than his 

prescribed psychotropic medicine that day.  Lee also reported that he remembered nothing 

between paying the bill at the restaurant and changing clothes at the police station, except running 

and seeing headlights.  

       Lee submitted his own affidavit, which states "Dr. Thiemann accurately described [in 

Western State Hospital's forensic psychological report] what I told her about consuming liquor at 

the restaurant just prior to the events that resulted in the criminal charges I faced." PRP Ex. 6 at 

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2.  Lee does not independently state in his affidavit whether he took his medication on the day of 

the crime, how much alcohol he consumed, or how the alcohol affected him.  

       Lee also submitted a letter to counsel written by Dr. Leung.  In that letter, Dr. Leung 

opines that Lee's inability to remember the events in question constituted "amnesia": "It is my 

opinion that the entire alleged incident of attacking Jin Kim was so traumatic and alien to Ki Lee's 

conscious mind that he simply rationalized and believed that it could never happen." PRP Ex. 1B 

at 8.  It also states that Lee "was under the influence of alcohol that he had consumed during the 

dinner." PRP Ex. 1B at 8.  Dr. Leung also stated that "[i]t is my opinion that Mr. Ki Lee did not 

intend to attack [Kim] or did not knowingly attack her."        PRP Ex. 1B at 8.  Regarding 

intoxication, the letter states only, "He remembered that he had alcohol during dinner." PRP Ex.

1B at 6.  

       Lee also submitted an affidavit from Jongwon Yi, the person whom Lee and Kim allegedly 

met with at the restaurant.  He states only that he met Lee and Kim at the restaurant, that they 

discussed a business issue related to Lee's bakery, that he was the first to depart the meeting, and 

that he was not interviewed for the criminal case.  The affidavit says nothing about Lee's state of 

intoxication.

       Lee additionally submitted an affidavit from Dr. Steve Baek.  Dr. Baek declared that he 

attended the meeting at the restaurant and that during the time he was there, which was only a 

portion of the time the others were there, he saw Lee consume several shots of a Korean Liquor, 

Soju.  He declared, "I did not count his shots, but I recall he consumed nearly two full bottles.  I 

am familiar with Soju bottles containing approximately seven to eight shots per bottle.  Mr. Lee 

was obviously intoxicated by the time I left the restaurant." PRP Ex. 4 at 1.  Dr. Baek does not 

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mention whether he was interviewed by counsel.  Lee presented no evidence that counsel was 

even aware of Dr. Baek and his potential testimony.

       Lee submitted another affidavit from Ju Yeop Kim.  Ju Yeop Kim declared that he 

observed Lee "express displeasure with a certain knife" being dull on October 29, 2006.  PRP 

Ex.5 at 1.  He agreed that the knife was dull.  He also declared that he was never interviewed, 

subpoenaed, or asked to testify.  Lee presented no evidence that counsel was even aware of Ju 

Yeop Kim and his potential testimony.

       The additional affidavits provide ample evidence that Lee had been drinking.  The only 

evidence, however, of the third prong of the voluntary intoxication test, evidence that the drinking 

affected his or her ability to form the requisite mental state, are Dr. Baek's assertion that "Mr. Lee 

was obviously intoxicated," and the forensic report and Dr. Leung's letter suggesting that Lee did 

not remember anything after leaving the restaurant also suggests that drinking may have affected 

his ability to form the requisite mental state.  PRP Ex. 4 at 1.

       Lee argues that his counsel should have questioned witnesses at trial about whether Lee's 

behavior indicated that he was intoxicated.  He does not indicate which witnesses might have been 

able to speak to this or present evidence in his PRP as to what any witness might have said that 

would have changed the outcome of the trial.

       This does not constitute substantial evidence that Lee was unable to form the necessary 

intent to commit the crime required by Gabrushchak, 83 Wn. App. at 253, and is not enough to 

make a prima facie case requiring a reference hearing.  Lee fails to present sufficient evidence to 

show even a disputed material fact as to whether he would have been entitled to a voluntary 

intoxication instruction.  Therefore, any deficient performance was not prejudicial because it did 

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not affect the outcome.  Thus there is no indication that Lee's counsel's performance was 

ineffective by failing to develop the voluntary intoxication defense.  We decline to grant Lee's 

PRP on these grounds.

       D.     Failure to Interview Kim

       Lee next asserts on direct appeal that his trial counsel provided ineffective assistance 

because he did not interview Kim until after the trial began.  We disagree.

       "[T]here is no absolute requirement that defense counsel interview witnesses before trial."  

In re Pers. Restraint of Pirtle, 136 Wn.2d 467,  488, 965 P.2d 593 (1998) (concluding that 

defendant failed to show deficient performance when "counsel spent considerable time reviewing 

evidence and obtaining answers to various questions" with detectives even though he did not 

conduct formal interviews).  Lee cannot demonstrate that his counsel's failure to interview Kim 

before trial fell below an "objective standard of reasonableness."  Strickland, 466 U.S. at 688.  

Here, the record indicates that Kim lived in Korea.  She flew to the United States to testify and 

appears to have arrived only two days before the trial started.  Neither the State's attorney nor 

Lee's defense counsel had interviewed Kim as recently as one week before the trial.  Lee fails to 

overcome the presumption of reasonableness.  His ineffective assistance of counsel claim fails on 

these grounds. 

       E.     Failure to Adequately Prepare Expert

       Lee next asserts on direct appeal that his trial counsel provided ineffective assistance 

because he insufficiently prepared Lee's expert witness, Dr. Leung.  Lee contends that Dr. Leung, 

the defense's only witness, appeared unprepared for questioning.  More specifically, he asserts 

that he received ineffective assistance when counsel did not to provide Dr. Leung with (1) a copy 

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of the State's expert report from Western State Hospital until the morning before his testimony; 

(2) witness statements that were part of the case's discovery; (3) the transcribed victim statement; 

or (4) the victim's medical records, crime scene photos, or emergency call tapes.  

       As the State points out, Dr. Leung specifically testified that his opinion would not have 

changed with any additional information.  Because Lee fails to show prejudice, we need not 

consider the deficient performance prong of the Strickland test.  Lee's ineffective assistance claim 

on these grounds also fails.

       F.     Failure to Adequately Investigate and Prepare for Trial

       Lee next asserts in his PRP that he received ineffective assistance of counsel when his 

counsel did not call Ju Yeop Kim, Dr. Baek, Yi, or Hyuk Seo9 to testify in this case.  The decision 

to call a witness is usually a tactical matter and will not support a claim of ineffective assistance.  

State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981).  A defendant can overcome this 

presumption by demonstrating that counsel did not adequately investigate or prepare for trial.  

Byrd, 30 Wn. App. at 799.  

       Ju Yeop Kim's declaration states that the knife "was very dull," that it "needed to be 

sharpened," that "Lee commonly took knives away from the bakery to be sharpened," and that he 

"was never interviewed about the knife . . . prior to Mr. Lee's trial."   PRP Ex. 5.  But Kim 

testified that Lee moved the box containing the knife from the trunk area to the backseat of the 

vehicle.  Regardless of the reason Lee originally put the knife in the car, this evidence suggests 

that he intended to use the knife to harm Kim at that point.  Ju Yeop Kim's statement does not 

9 The PRP does not discuss Seo's potential testimony in the argument portion of the PRP.  Lee 
only mentions that Seo would have testified regarding the sharpening of the bakery knives in the 
factual background section.  The PRP does not contain an affidavit from Seo.
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indicate that Lee moved the knife from the trunk to the backseat because he wanted it sharpened.  

Thus, even if Lee's trial counsel called Ju Yeop Kim to testify and solicited this testimony, it 

would not have negated the evidence substantiating his conviction.  It would have been a 

reasonable decision for defense counsel not to call Ju Yeop Kim.  Furthermore, Lee's affidavit 

supporting his PRP does not allege that he told his trial counsel that Ju Yeop Kim could provide 

this information.  

       Dr. Baek's declaration states that he "observed [Lee] consume several shots of a Korean 

liquor, Soju" and that "[Lee] was obviously intoxicated by the time [Dr.  Baek] left the 

restaurant." PRP Ex. 4.  Presumably, Lee's trial counsel did not seek Dr. Baek's testimony at 

trial because consumption of alcohol alone is insufficient evidence when seeking a voluntary 

intoxication instruction and because it would not have aided the court in its determination on that 

issue.  This is not substantial evidence of the alcohol's effect on Lee's mind and body, as required 

under Gabryschak.  83 Wn. App. at 253.  Also, Lee's affidavit supporting his PRP does not allege 

that he told his trial counsel that Dr. Baek could provide this information.  

       Yi's declaration states that he met with Lee on October 31, 2006 at a restaurant and that 

"part of the purpose of the meeting included a discussion [he] had with [Lee] about a business 

issue related to his bakery business and his landlord." PRP Ex. 3.  Nothing in this declaration 

indicates that Yi would have provided relevant testimony, particularly because the declaration 

states that he "was the first to depart the meeting but the others may have stayed longer." PRP 

Ex. 3. Again, Lee's affidavit supporting his PRP does not allege that he told his trial counsel that 

Yi could provide this information.  

       While the presumption of effective assistance of counsel can be overcome when an 

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attorney fails to properly investigate, determine appropriate defenses, or properly prepare for trial, 

Lee has not shown such to sufficiently rebut this presumption.  See Byrd, 30 Wn. App. at 799.  

Lee also fails to show how the testimony of Ju Yeop Kim, Dr. Baek, and Yi would have changed 

the outcome in this case.  In light of the general rule that the decision to call a witness is tactical, 

coupled with Lee's failure to show deficient performance and resulting prejudice, his argument 

fails.

II.    Prior Bad Acts

       Lee next contends in his direct appeal that the trial court erred when it admitted under ER 

404(b) Kim's testimony that Lee had previously threatened Kim's family.  He does not contend 

that the trial court erred in admitting evidence of threats to Kim herself.  The State does not 

respond.10

       To preserve an issue, a party must bring a specific objection at trial to allow the trial court 

"an opportunity to correct any error."  Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 

(1983).  Objections not raised at trial are usually waived unless they are manifest errors affecting 

constitutional rights.  RAP 2.5(a).  "'Evidentiary errors under ER 404 are not of constitutional 

magnitude'" and are harmless unless the outcome of the trial would have differed had the error 

not occurred.  State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999) (quoting State v. 

Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).  Lee did not object on these grounds at trial.  

Lee objected to the admission of the evidence of the threats to both Kim and her family on ER 

404(b) grounds.  He did not make an independent argument specifically regarding the threats 

10 The State inaccurately characterizes Lee's argument as an ineffective assistance of counsel 
claim.  It is not.  See Appellant's Br. at 2 ("The trial court erred by allowing evidence of prior 
threats made by Mr. Lee."); Appellant's Br. at 25 ("This determination by the trial court was 
prohibited by ER 404(b) and it was error to allow the inquiry.").
                                               25 

37675-0-II / 38874-0-II

made to Kim's family.  Lee failed to preserve any error relating to the admission of the evidence 

of threats to Kim's family. 

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III.   Cumulative Error

       Lee finally contends in his PRP that he is entitled to relief under the cumulative error 

doctrine.  We may reverse a defendant's conviction when the combined effect of errors during 

trial effectively denied the defendant his right to a fair trial, even if each error standing alone 

would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006); State v. Hodges, 

118 Wn. App. 668, 673-74, 77 P.3d 375 (2003). Because we find no error, we hold that Lee was 

not deprived of his right to a fair trial.

       We affirm Lee's convictions and deny his PRP.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                           Penoyar, C.J.

We concur:

       Van Deren, J.

       Johanson, J.

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