Opinion
65324-5-I
02-13-2012
State of Washington, Respondent, v. Michael V. Tovar Appellant.
UNPUBLISHED OPINION
Schindler, J.
A jury convicted Michael V. Tovar of rape in the second degree while armed with a deadly weapon. Tovar claims the trial court erred by preventing him from cross-examining the victim about a prior allegedly false accusation of rape. Tovar also claims that the failure to object to a passing reference to prison and the failure to request a jury instruction on rape in the third degree constituted ineffective assistance of counsel, and that his attorney disregarded his request to testify at trial. We affirm.
FACTS
A.P. and B.P. got married when A.P. was 20-years-old and B.P. was 21-years-old. A.P. and B.P. have three children. In 2006, A.P. and B.P. moved from Utah to Washington. A.P. worked as the manager of a children's shoe store in Bellevue. Sometime after moving to Washington, A.P. and B.P. engaged in "swinging." The couple separated in August 2008. B.P. testified that it was A.P.'s decision to separate.
We use initials for the complaining witness, her spouse, and previous victims in order to protect their privacy.
She did not feel like she got to experience being a young single woman because we got together when she was so young and got married so young. And she wanted more freedom and relationships. And she just wanted to be more independent. So she wanted me to move out.
In February 2009, A.P. met Michael V. Tovar on an adult website catering to people looking for "purely carnal, sexual" relationships. A.P. and Tovar chatted online and exchanged text messages before meeting a few days later.
From the beginning of the month-long relationship, Tovar was jealous and insecure. Tovar got angry about any reference or contact A.P. had with former sexual partners, and repeatedly expressed concerns about his sexual prowess. A.P. said that Tovar talked about "his dark guy" as the "protective" and "primary driving, controlling force" that told him that "I specifically was not going to be . . . satisfied with his size and that I would . . . cheat on him at some point." But Tovar continued to tell A.P. he wanted to have a relationship with her and wanted A.P. to be his "safe place."
On February 17, Tovar went to A.P.'s workplace to confront her again about "preferring bigger men." Afterwards, Tovar wrote A.P. a lengthy letter describing his insecurities and dark side, but apologized and told A.P. that he loved her. After receiving the letter, A.P. and Tovar started living together but continued to argue about A.P.'s past and Tovar's insecurities.
But, you know, there were times like when I was just like -- I can't do anything about my past, yet he keeps on bringing it up. I can't change it. So I really didn't know what to do or like how to like continue having like a relationship with him. But, you know, I felt somewhat responsible. Like I really wanted -- you know, like I had the experience of going through a life training that just really like helped.
A couple of days before March 15, A.P. broached the possibility of swinging with other people. Tovar agreed but was "very adamant, you know, only women." On Sunday, March 15, A.P. argued with Tovar about his position.
He was very adamant, you know, only women. And so I was just kind of like -- you know, I challenged that. I was like, well, why is it like that? Why other women and not men?
Q. How did that go over, by the way?
A. Not very good. Although he said that maybe someday he would consider it as long as the guy had a smaller dick than him.
Q. Were those his words or your words?
A. His.
While driving in the car later that same day, A.P. told Tovar the relationship was over.
And I was like, this is ridiculous, this is done, you know, and kind of made mention of that it wasn't going to being working. This is way too many problems for such a short period of time. And, you know, it's just like not something I can keep on working at.
Tovar went into a rage and began driving aggressively, screaming at A.P. and punching the dashboard with his right hand. "He was screaming at me. I mean, he was like freaking out, like in a frenzy."
A.P. jumped out of the car at a stoplight and walked to a nearby shopping center. A.P. said that when she went into a Big Lots store to get away from Tovar, he followed her. After Tovar continued to scream at A.P., she tried to calm him down.
I'm trying to calm him down and, you know, control the scene and the situation. I don't, you know, want to have the scene made. But I was really hoping somebody would like call the police or something because, you know, it was out of control. I felt like I was in danger and at risk. Like everybody like in the store was like, holy shit, you know. Nobody responded to help or anything.
Tovar told A.P. that he was sorry, and she agreed to go with him to get something to eat.
While at the restaurant, Tovar drank several glasses of wine. A.P. said that she had never seen Tovar drink alcohol. A.P. said that when they left, Tovar was "hanging" on her and she "could barely . . . hold him up, " and Tovar was "practically passed out" in the car.
A.P. took Tovar home before going to pick up her three young children at B.P.'s house. A.P. said she was able to "maneuver" Tovar into the house and told him "he needed to get control of himself. I also told him that tomorrow -- it was over and he needed to move out." A.P. said that before she left, Tovar "stumbled around and like laid on the ground in the . . . entryway."
A.P. returned home at approximately 11:30 p.m. The three young children were asleep in the car. She carried each child from the car to their bedroom. While A.P. was watching television in her bedroom, she heard Tovar in the upstairs bathroom making telephone calls to friends and family members. A.P. said that Tovar then went downstairs to the kitchen and start yelling about his feelings of inadequacy. When A.P. went downstairs, Tovar had stabbed his left hand. A.P. said she was "terrified."
And so, I mean, I had never seen anything like it. I mean, you know, I've never seen anybody like try to inflict so much pain upon themselves. So, you know, I was pretty terrified.
A.P. took all of the kitchen knives and locked them in her car. When A.P. returned, she said that both of Tovar's hands were bleeding, and she gave Tovar Band-Aids for his wounds. A.P. told Tovar that she wanted him to move out the next morning and went back upstairs to go to bed.
After she got upstairs, Tovar walked into the bedroom carrying a samurai sword and a folding hunting knife with a black handle and a steel blade. Tovar played with the sword, and kept flipping the knife open and shut, cutting himself. Tovar turned off the lights, threw the sword on the floor, and walked to the closet. A.P. heard Tovar cutting his clothes with the knife, and cutting himself.
Tovar alternated between using either a "pathetic, sad, . . . crying voice, " and a "really strong and angry" voice threatening A.P. At one point, Tovar told A.P. that her children would be fine without her.
Q. How seriously did you take his threats of self-injury or suicidal ideation?
A. Considering everything, I took it very seriously. I really believed that either both of us would be dead in the morning or possibly just him, hopefully, because I didn't want -- but he was talking to himself in his dark guy voice, and his dark guy was telling himself that [B.P.] was a really good dad and it would be fine, my kids would be fine with just him.
A.P. said that she tried to "be calm . . . . Because every time I would freak out and start to cry, he would like get really aggressive and angry and like come at me." Tovar told her that when she cried, his dark guy told him to hurt her.
Tovar shoved A.P. onto the bed, put the knife down on the bed, put his hands around A.P.'s throat, and held a pillow over her face. A.P. said that she was unable to breathe, and that she kicked and tried to twist away from him. Tovar jammed his hands down A.P.'s throat and squeezed her face, causing extraordinary pain.
A. He also -- after he told me -- after he, you know, covered my face with the pillow, he told me I shouldn't cry or shouldn't freak out because it angered the dark guy, made the dark guy, you know, want to hurt me.
Q. In what kind of voice did he say that?
A. In this, like, you know, in his -- like trying to be sympathetic voice, his normal voice, I guess. But then I was still very emotional. So he just like got angry again, the dark guy or something came out. And he like put his hands like in my face with his thumbs like in my mouth and just like squeezed down on my face, like had his hands like all the way down in my face and was just like squeezing it and like trying to stretch it out. I don't know what he was doing, but it felt like he was going to like rip apart my lips.
A.P. said that at some point, Tovar "stabbed the thick feather pillow next to my head." A.P. begged Tovar to let her leave and go sleep with her children. Tovar said no, and told A.P. that he needed her to be his "safe place." A.P. finally persuaded Tovar to let her check on the children. Tovar went with her, and took his knife and held onto her wrists. After checking on the children, Tovar pulled A.P. back to the bedroom. A.P. said that she complied because she "didn't want him by my kids."
Tovar put the hunting knife on the side table of the bed and forced A.P.'s legs apart. Tovar told A.P. that he was going to "fuck[ her] like no other guy has ever fucked [her]." A.P. shook her head and said no, but did not physically resist.
A. I was still crying and I just, you know, tried to like, you know, not like connect -- like not connect my mind to what was going on. Just tried to like, you know, get through it, I guess.
Q. Did you give any thought to whether or not if you did physically resist, how that would have played out?
A. Oh, yeah. I had no . . . intention of resisting him after the whole night I had experienced. He's very strong, especially when he was in his dark guy mode. Very aggressive. And like I had no chance.
Afterwards, Tovar "seemed to snap out of his dark guy mode and like looks at me and say[s] oh, my God, did I just rape you? . . . I feel so bad. Then he was kind of like, now I guess I've given you something that nobody else has."
A.P. told Tovar, "[I]t's over. You need to leave tomorrow." Tovar told A.P. that they could "work this out, " and asked her to have sex and "make love . . . so that we could remember so that it didn't end with, you know, the rape." A.P. said that she shook her head no, but did not say no.
A. I still shook my head, but I did not say no the second time. You know, I --
Q. You shook your head no, but you didn't verbalize no, is that what you mean?
A. Yes, exactly. So I guess I more or less --
Q. Did you feel like you were in a position --
A. I didn't have a choice, no. I mean, he did it before without me wanting to. Like I didn't -- the knife was still right there. Like he flips like this. I didn't know like when he was going to flip again.
Afterwards, A.P. told Tovar that he needed to go before the children woke up. Tovar agreed but asked A.P. to not call the police. "He told me he couldn't go back to prison and that, you know, I don't know like what it's like in there." A.P. went into the children's bedroom and waited for Tovar to leave.
To avoid any reference to the prior convictions, the testimony at trial did not mention Tovar's statement that he could not go "back" to prison.
When Tovar left, A.P. e-mailed B.P. because she needed "his help with the kids and taking care of things." In the e-mail, A.P. told B.P. that Tovar had assaulted her. After A.P. took the two older children to school, she and her youngest child went to B.P.'s workplace. Because A.P. had left her cell phone at work, she used B.P.'s cell phone to talk to her parents in Utah about what had happened. A.P. "felt very strongly" that "for my safety and for my family, " she needed to report the rape.
After the children got out of school, A.P. went to the Fairwood Precinct in Renton and reported the rape to Deputy Ryan Olmsted. Deputy Olmsted contacted Special Assault Unit Detective Marylisa Priebe-Olson.
Detective Priebe-Olson interviewed A.P. for approximately two hours and took a taped statement. Detective Priebe-Olson said that A.P. "was obviously shaking, upset, would cry a little bit at times. Her hair was kind of a mess. She said she was still wearing the same clothes that she had been wearing during the incident." A.P. played a voicemail that Tovar left on her cell phone and showed the Detective the text messages that Tovar sent the night before while she was picking up the children.
Detective Priebe-Olson photographed the injuries to A.P.'s mouth, lips, and throat. Detective Priebe-Olson also took photographs of A.P.'s car as well as the butcher block of knives that were on the floorboard of the passenger front seat. Detective Priebe-Olson told A.P. not to speak to Tovar on her own and to forward any text messages or e-mails that Tovar sent to her.
Detective Priebe-Olson also went to A.P.'s house to collect evidence. Detective Priebe-Olson took photographs and placed a number of items into evidence, including a pillow with a puncture mark and a bloodstain, and samurai swords. After unsuccessfully trying to locate Tovar, Detective Priebe-Olson issued a bulletin for his arrest.
The next morning, the Detective contacted Tovar's family and friends to ask for their help in locating him, and reviewed Tovar's Facebook page. On March 14, Tovar changed his relationship status on his Facebook page from "being in a relationship" to "single." On March 16 at 7:46 p.m., Tovar posted: "Michael Tovar is missing his family." On March 17 at 7:20 p.m., he posted: "Michael Tovar is under the gun, " and at 8:01 p.m., he posted: "Michael Tovar is facing some life-altering challenges right now." At 11:19 p.m., Tovar posted a message saying: "Michael Tovar is going to miss his son for the next 10–20."
As instructed, A.P. forwarded the e-mail and text messages Tovar sent her to Detective Priebe-Olson. On March 18, the Detective and A.P. arranged to meet so that Detective Priebe-Olson could listen to the conversation between A.P. and Tovar. Detective Priebe-Olson took notes during the lengthy and emotional three-hour cell phone conversation between A.P. and Tovar.
During the conversation, A.P. asked Tovar "if he was okay." In response, Tovar said that he talked to his mother and "[s]he wants me to turn myself in too." When A.P. asked Tovar, "Where are you?" He responded, "Oh sure. I tell you and you tell the detective. Like she isn't listening to me right now. What is the thing you remember? What was the worst?" In response, A.P. told him, "The bruises inside my mouth. . . . Yes. You put both your hands inside my mouth, and it hurt." Tovar said, "I'm sorry, " and "started crying." According to the Detective's notes, Tovar then said:
I didn't want to text all this stuff. I didn't remember everything. My attorney doesn't want me talking to you. He's going to kill me for talking to you. Sorry about everything. I don't remember everything. This is not good for me. It's just part of a lot of insecurities. Sorry for my insecurities. I tried to be what you wanted me to be.
A.P. asked Tovar about the rape and dragging her back into the bedroom. "After you raped me, you said, did I just rape you? And I said yes. I was crying and scared." In response, Tovar told A.P., "I remember being scared. I remember being sad. . . . I remember us talking on the kids. I remember holding you."
Tovar said that he also remembered "being in the bathroom with my hand hurting." A.P. told Tovar, "You cut yourself. You scared me. Your dark guy was there." Tovar told A.P. that the "[d]ark guy is not here today. I just want to be with you." When A.P. told Tovar that he was "having a conversation with dark guy. He said the kids would be fine with their dad. You said you were going to kill yourself and me. You cut yourself, " Tovar told her, "Sounds like I owe you a lot of apologies. I can't go back to prison. I can't believe you are doing this to me. I cared about you. He used you. I guess it shows how irrelevant you are. I can't go to prison."
At trial, Detective Priebe-Olson did not refer to Tovar's statement about going "back" to prison.
At some point during the conversation, Tovar asked A.P., "How come you did not prosecute the cop? He didn't care about you." In response, A.P. said, "You hurt me. He didn't hurt me." Tovar said, "I don't remember hurting. You bring out the dark side in me. All the emotional buildup, you just want to put me down."
Toward the end of the conversation, Tovar tells A.P. that it is his "last day" and that he told his son that he was "going away." Tovar said that he was sorry and told A.P., "I'm going to end my life, " and he would let her know "when and where I do it" and "where to find the body." Before hanging up, Tovar reminds A.P. that she promised not to contact the police for two hours.
A. He said: Remember your promise.Q. And what did she say?A. She said: Two hours. I will wait two hours.
Using the cell phone signal, the police were able to locate Tovar. Police repeatedly issued commands to Tovar to turn off the engine and get out of the car. Tovar told the police he could not comply. According to the police,
Tovar was emotionally kind of ramping up and down. He would scream and cry. You could see him throwing his hands and flapping in the car. He kept insisting he couldn't comply with us, he couldn't do it, he didn't know how to put the vehicle in park. He didn't know how to turn the vehicle off.
Detective John Branham spent approximately 20 minutes trying to negotiate with Tovar to get him to cooperate. Tovar refused to cooperate, screamed, and then floored the accelerator of the car. The car went down an embankment and hit a tree. Tovar had slit his throat with a hunting knife, nicking his jugular vein. The police performed life-saving measures until medics arrived and transported Tovar to a hospital. The police found several knives in Tovar's car, including two bloody folding hunting knives with black handles and steel blades.
The State charged Tovar with one count of rape in the second degree while armed with a deadly weapon. Tovar entered a plea of not guilty, and asserted a defense of consent.
Pretrial Motions
The State filed a motion to admit ER 404(b) evidence. The State presented evidence showing that Tovar sexually and physically abused his former spouse A.S., and threatened to shoot himself because he was jealous of her prior relationships. Tovar told A.S. about his "dark guy" and referred to her as his "safe place."
The State also sought to admit Tovar's conviction for burglary in the first degree and unlawful imprisonment of his former girlfriend B.B. The State asserted that Tovar accused B.B. of infidelity, used a knife to threaten to cut her and to cut himself, and strangled her until she lost consciousness. Tovar later returned to B.B.'s house with a loaded gun and held her hostage.
The trial court granted the defense motion to exclude the ER 404(b) evidence in the State's case in chief but ruled that "depending on how the defense of consent is raised, . . . we would readdress this basically if the Defendant testifies."
The State also sought to admit evidence of Tovar's flight from the police and of his suicide attempt. The trial court ruled that evidence of Tovar's flight was relevant and admissible, but excluded evidence that Tovar attempted to commit suicide when he fled from the police. However, the court ruled that "if the Defendant testifies, then we are going to have to revisit the scope of the ruling."
The State moved to exclude evidence about A.P.'s past sexual history under the rape shield statute, RCW 9A.44.020. The State conceded that past sexual conduct between A.P. and Tovar was admissible, but notes that Tovar had not identified any acts or conduct it planned to introduce based on the defense theory of consent.
Tovar filed a motion to admit evidence of a previous allegation of rape by A.P. The defense argued that the allegation that Medina Police Officer Ismael Ramirez raped her was false and the evidence was admissible to impeach her credibility. The court denied the motion on the grounds that the defense did not show the prior allegation of rape was false.
In a motion to reconsider, the defense claimed the rape allegation against Officer Ramirez was false because A.P. did not tell her co-workers that Officer Ramirez raped her until after she learned the charges against her had not been dismissed. The trial court denied the motion to reconsider.
Trial
The trial lasted nine days. The State called a number of witnesses, including Tyson Baker, B.P., Detective Priebe-Olson, A.P., the doctor who examined A.P., and the police officers who arrested Tovar.
Tyson Baker is a friend of Tovar's and co-owner of a fitness facility. Baker said that he has known Tovar for approximately five years, and that Tovar does not drink.
Not a drinker. I know we had a conversation, the fact that he doesn't drink because it's not a good thing for him. We had been out before where he just [said], I don't drink alcohol, and I shouldn't.
Baker testified that Tovar called early in the morning of March 16, and "seemed pretty upset and said he wanted to talk to Glen or myself or just, hey, I'm having a tough time, buddy. Can I talk to you?" Baker met Tovar at approximately 6:45 a.m. and spent about an hour with him.
Tovar told Baker he had a fight with his girlfriend and he was upset. "I remember him saying he had to go back and get his things. It was over, and he was really upset about it." Tovar told Baker:
The evening beforehand. The big thing was, I know they went out. . . . And I remember him saying that he had alcohol, which he doesn't normally drink. And he said he had too much to drink. And he said, I don't drink.
Baker described Tovar as "definitely stressed out, " exhausted, and visibly shaking.
Oh, yes. He was definitely stressed out. He looked exhausted, like he didn't sleep. He was shaking. His hands were shaky. He was really stressed out.
. . . .
Looked like he hadn't slept. The only thing I can remember is his hands, he was just shaking. He was really just uncomfortable. But definitely looked like he didn't sleep, looked like he was exhausted.
Baker testified that Tovar had cuts on both hands "through the tops of his hands, " and they were covered with Band-Aids.
I asked him what happened. I didn't pry into it. My assumption was that he maybe punched a wall when I first saw it. He said -- I remember him saying that he potentially blacked out. They had a big fight, they were yelling at each other. But didn't say directly what had happened with regards to his hands, no.
Baker said that Tovar's hands "were cut pretty good. . . . I remember he had nice gashes right through the middle of his fingers."
Q. You are pointing to your left hand?
A. Yes. Because I could see them. Both his hands were here, and he was eating oatmeal. His hands were shaking. That [sic] how I noticed. Hey, what happened to your hands? What's going on?
Q. When you were testifying about the gashes to his finger, you were pointing to your left hand and all four fingers on the left hand. Is that what you recall?
A. Yes.
Q. Can you describe what you noticed with the right hand? Anything specific?
A. I can't. I know that both hands had bandages on them. They looked like they were poorly bandaged, like put on like he just threw on some Band-Aids. They were cut pretty good. I did see some of the cuts, not just the bandages.
B.P. testified that he and A.P. had been married nine years and had three children, ages eight, seven, and four. B.P. said that A.P. cared about Tovar "a lot. And it was more than any other guy that she had briefly hung out with during the time that we were separated."
I think it was a -- at first for her, it was really good. I think she found that she was really happy. I think that's part of the reason she was asking whether it could work out with me still, was because she realized that being a young single woman was not all that it was cracked up to be. I think she liked being in a relationship better. And so I think she had found that with Michael. So she seemed really happy with him.
It wasn't until like later that she brought up that some of the things that she was a little bit concerned about.
B.P. said that he and A.P. briefly discussed getting back together two or three times while separated. B.P. testified that he and A.P. reconciled in late March.
During Detective Priebe-Olson's testimony, the court admitted without objection 104 pages of text messages between A.P. and Tovar that spanned their month-long relationship. The text messages from Tovar repeatedly refer to his insecurities and inadequacy as well as his dark guy. The court also admitted the voicemail Tovar left for A.P. on her cell phone the night of the rape. The voicemail and the text message Tovar sent the night of March 15 indicate that he was intoxicated.
The text message Tovar sent A.P. at approximately 4:00 a.m. on March 16 states:
Love my babygir[l] although you like[ ]daddy [B.P.] better than me for sex and stuff. I wish was enuff [sic] man for you not to want other other man sex[.] Men dicks inside yu [sic]. I'll awlwys [sic] be good man to you and our ch[i]ldren. I love all of you. Forever. Wish I could be loved by you that much to [sic]. Not enougf [sic] to want othr [sic] men inside you. U r special to me and yor [sic] sex is a gift a be [sic] for other guys affirms I mean nothing respect to you. No respect or love ing [sic] mike cuz [sic] I'm not real man luke [sic] black guys. I love u 4ever nd [sic] ever comit [sic] my life to u and c[h]ildren. Is a big deal. Commitment. Never cheat on u!!!! Ivan [sic] count on me. Always truthful on you. Cuz [sic] I respect you so vry [sic] very much. Beautiful human. No other men deserve you. I wnt [sic] to be only 1. I want to earn th[a]t privilege. Please. Please. I am goodman [sic] forever. Make proud. I love yu [sic]. Sad on floor.
A redacted version of the voicemail was played for the jury, and a transcription of the voicemail was provided to the jury and admitted as an exhibit. The voicemail states, in pertinent part:
Always been in danger of somebody cheating on me; somebody using me; somebody lying to me. Somebody beautiful and ah, if my girlfriend is my enemy; my girl. Today you said you're not my saving place. Maybe I should believe you; maybe you're not my saving place but I want you to be my saving place. Oh, I'll believe in minding me so much. You don't know. Said you want to be good to you and the children. So you hung up but my goal now to you Tovar not that I'm worth; I'm worthy of not cheating on me. Everyday I go out of my way to do things so that you'll know that I'm a good man that would be good to you and your children. . . . Do you see these things; do you see them; (inaudible) them? I look at them and I admire them so much that I feel like I don't deserve them. Never like I know; such a strong man. I can turn anything; I can be it.
In addition, the court admitted the evidence seized from the house, including the samurai swords, the pillow cases and couch cushions with bloodstains, a pillowcase with a puncture mark and bloodstains, photographs of the bedroom and of A.P.'s bruising, the clothing A.P. wore that night, and copies of Tovar's Facebook page.
The doctor who examined A.P., Dr. Scott Milne, testified that A.P. told the medical staff that Tovar was armed with knives and threatened to harm himself and hurt her, and that he cut himself.
Reports around 11:00 p.m. on 3/15/2009, patients [sic] states assailant pulled out knives and a sword and threatened to harm himself and did cut himself. He did verbalize to himself the need or feeling to want to hurt the victim. Discussion and fighting continued until about 0500, or 5:00 in the morning, on 3/16/2009, when assailant raped victim twice. Patient states assailant was "proud to call one time rape and the other time making love."
(Internal quotation marks omitted.)
Dr. Milne testified that A.P. had bruising inside her mouth on both sides near the jawbone, as well as red abrasions inside her lips and on the back of her throat.
A. Bruising comes from essentially crushing blood vessels. So it requires a reasonable level of force to do that. As far as the element of pain that goes with that, that's always difficult to assess because pain is such a subjective thing.
Q. In this case, was [A.P.] still complaining of pain inside her mouth?
A. Yes, she was.
Q. It looked like on there a level of six out of ten. Am I correct about that?
A. Yes.
Before A.P. testified, the defense sought permission to ask two questions during cross-examination: "Have you ever told Mr. Tovar that you had been raped? And was that approximately two months before this particular incident that you told him that?" The defense argued the questions were relevant to show why Tovar was "insecure in the relationship, that there were other issues that were going on besides those that were being brought out by the State." The State argued there was no connection between Tovar's insecurities and telling Tovar about the rape. The court denied the defense request.
I agree. I've heard nothing, particular in the text messages, that have anything to do with any insecurity that may have arisen because of rape allegations. It had to do with, as [the prosecutor] described it, bodily endowment and performance. So I'm satisfied the answer is no.
During cross-examination, the defense impeached A.P. with inconsistent statements that she made, including whether Tovar had injuries on his neck or chest, and when Tovar stabbed the pillow with his knife.
Tovar did not testify. Joe and Teresa Paviglianti testified on behalf of the defense. The couple met Tovar through a personal advertisement in early 2009. The Pavigliantis testified that on the morning of March 16, they did not see any injuries on Tovar's neck or chest.
Another defense witness, Jolyn Hendrix, testified that she previously worked with A.P. and that A.P. had a reputation for being untruthful. But during cross-examination, Hendrix admitted that A.P. "did not appreciate [Hendrix] discussing things with co-workers about [A.P.'s] private life, " and that due to the "tension between [Hendrix] and [A.P.], " she no longer worked at the children's shoe store.
In closing, the State argued that the evidence showed Tovar's jealousy and insecurities resulted in the rape of A.P. on March 16. The State pointed to the text messages and Tovar's Facebook page, as well as the other evidence corroborating A.P.'s testimony. The State argued that the evidence did not support Tovar's defense of consent. The defense argued that A.P. was not credible, that Tovar did not rape A.P., and sex was consensual. The defense pointed to the text messages that showed no threats of violence. The defense claimed that A.P. lied about the rape in order to reconcile with B.P.
The jury found Tovar guilty as charged of rape in the second degree while armed with a deadly weapon. Following an evidentiary hearing, the court denied Tovar's motion for a new trial. The court imposed an indeterminate minimum sentence of 120 months together with an additional 48 months for the deadly weapon enhancement.
ANALYSIS
Exclusion of Prior Rape Allegation
Tovar claims the trial court violated his constitutional right to present a defense and cross-examine A.P. by excluding evidence that A.P. falsely accused Officer Ramirez of raping her. Tovar also challenges denial of his request to cross-examine A.P. about his knowledge of the prior rape.
Both the federal and the state constitution guarantee a defendant the right to confront and cross-examine an adverse witness. U.S. Const. amend. VI; Wash. Const. art. I, § 22 (amend. 10); State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). But there is no constitutional right to present irrelevant evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). Further, even relevant evidence may be deemed inadmissible if the State can show a compelling interest to exclude prejudicial or inflammatory evidence. Darden, 145 Wn.2d at 625.
We review a claim of a denial of the Sixth Amendment right to present a defense de novo. Jones, 168 Wn.2d at 719 (citing State v. Iniguez, 167 Wn.2d 273, 280–81, 217 P.3d 768 (2009)). We review the decision to exclude evidence for abuse of discretion. State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007). The trial court's balancing of the danger of prejudice against the probative value of the evidence is subject to abuse of discretion that we will overturn "only if no reasonable person could take the view adopted by the trial court." Posey, 161 Wn.2d at 648. We also review a trial court's relevancy determinations for manifest abuse of discretion. State v. Gregory, 158 Wn.2d 759, 835, 147 P.3d 1201 (2006). A trial judge, not an appellate court, is in the best position to evaluate the dynamics of a jury trial and, therefore, the prejudicial effect and relevancy of evidence. Posey, 161 Wn.2d at 648.
Where the defense to a rape charge is consent, past sexual history with the defendant is admissible, but the rape shield statute precludes evidence of other past sexual conduct. RCW 9A.44.020. The admissibility of past sexual conduct is within the discretion of the court. State v. Hudlow, 99 Wn.2d 1, 17-18, 659 P.2d 514 (1983).
The rape shield statute, RCW 9A.44.020, provides:
(1) In order to convict a person of any crime defined in this chapter it shall not be necessary that the testimony of the alleged victim be corroborated.
(2) Evidence of the victim's past sexual behavior including but not limited to the victim's marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim's consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense.
(3) In any prosecution for the crime of rape or for an attempt to commit, or an assault with an intent to commit any such crime evidence of the victim's past sexual behavior including but not limited to the victim's marital behavior, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is not admissible if offered to attack the credibility of the victim and is admissible on the issue of consent only pursuant to the following procedure:
(a) A written pretrial motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the past sexual behavior of the victim proposed to be presented and its relevancy on the issue of the consent of the victim.
(b) The written motion shall be accompanied by an affidavit or affidavits in which the offer of proof shall be stated.
(c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and the hearing shall be closed except to the necessary witnesses, the defendant, counsel, and those who have a direct interest in the case or in the work of the court.
(d) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the defendant regarding the past sexual behavior of the victim is relevant to the issue of the victim's consent; is not inadmissible because its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice; and that its exclusion would result in denial of substantial justice to the defendant; the court shall make an order stating what evidence may be introduced by the defendant, which order may include the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
(4) Nothing in this section shall be construed to prohibit cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim's past sexual behavior, but the court may require a hearing pursuant to subsection (3) of this section concerning such evidence.
It is well-established that evidence of a prior rape accusation is not relevant unless the defendant can demonstrate that the accusation was false. State v. Demos, 94 Wn.2d 733, 736-37, 619 P.2d 968 (1980); State v. Harris, 97 Wn.App. 865, 872, 989 P.2d 553 (1999). Because Tovar did not establish that A.P. falsely accused Officer Ramirez of raping her, the trial court did not abuse its discretion in excluding evidence of the prior accusation.
In support of his motion to admit evidence that A.P. made a prior false allegation of rape, Tovar relied on an affidavit dated April 2, 2009 for a search warrant. The search warrant sought the cell phone records of Officer Ramirez as well as other evidence "of the crime(s) of Rape 3rd degree and Official Misconduct." The affidavit states, in pertinent part:
On 3-19-09 I was advised that the King County Sheriff's Office Det. Priebe-Olson had been investigating their case #09-062384 involving a sexual assault victim [A.P.] by her boyfriend. During this investigation, on 3-18-09 Det. Priebe-Olson had overheard [A.P.]'s boyfriend state on the phone that she "didn't report the cop for raping her." When Det. Priebe-Olson inquired about this statement, [A.P.] told the detective that she was raped by a Medina Police Officer, named Ismael Ramirez.
The affidavit also states that on March 30, 2009, A.P. was interviewed by the prosecutor about Officer Ramirez and that she gave a tape-recorded statement. A.P. told the prosecutor that she was stopped and arrested by Officer Ramirez on November 23, 2008 for driving with a suspended license (DWLS). A.P. said that Officer Ramirez handcuffed her and placed her in the rear seat of his patrol car for 45-50 minutes. When Officer Ramirez searched her car, he found a small amount of what appeared to be marijuana. A.P. said that while she was in the patrol car,
[Officer Ramirez] opened the partition between the front and back seats. He kept looking at her and telling her she was attractive and beautiful. He reached over to fix her scarf and put his hand on her. She told him she didn't want a marijuana charge and that the DWLS charge was incorrect as she paid the ticket right away. He told her don't worry and that the charges would go away. He cited and released her.
A.P. told the prosecutor that the next morning, Officer Ramirez called her and asked her to meet him at a bar in Issaquah. He told A.P. that he would give her a letter to dismiss the charges. A.P. met Officer Ramirez at the bar and later agreed to go to his apartment with him but said that she told Officer Ramirez that she would not have sex with him. A.P. said that Officer Ramirez later pushed her down onto his bed and placed her hands above her head. When A.P. told Officer Ramirez that she did not want to have sex with him, he said, "You don't really mean that, " and engaged in sexual intercourse with her.
A.P. told the prosecutor that each time she went to court, she contacted Officer Ramirez to ask when the charges would be dismissed. The affidavit states that Officer Ramirez e-mailed the prosecutor and sought to have the charges against A.P. dismissed. Based on false assertions made by Officer Ramirez about the evidence, the prosecutor dismissed the charges against A.P.
The State argued that because the affidavit did not show A.P. had made a false allegation against Officer Ramirez, the evidence was barred by the rape shield statute. In support, the State also submitted the information and the certification for determination of probable cause charging Officer Ramirez with official misconduct with a sexual motivation. The certification for determination of probable states that Officer Ramirez promised to give A.P. a letter to get the charges against her dismissed, and A.P. acquiesced when Officer Ramirez raped her because she felt that "she had a lot to lose." The certification for determination of probable cause states that A.P. and Officer Ramirez continued to exchange text messages and Officer Ramirez said that he wanted to see her again. A.P. told Officer Ramirez by text message that she did not think that would be a good idea and that she had clearly told him that "she did not want to have sex but he took sex anyway." The certification also states that A.P. discussed what had happened with B.P. and he advised against contacting the authorities because it would be her word against the police officer's word.
A.P. called Officer Ramirez and told him she was upset because he did not follow through with his end of the bargain by getting the case dismissed. A.P. and Officer Ramirez continued to exchange text messages and phone calls, and eventually, Officer Ramirez was able to have the charges against A.P. dismissed.
The defense argued the rape allegation was false because even though A.P. knew the identity of Officer Ramirez, she did not report the rape to the police, and that despite her unequivocal assertion that she had been raped, the State did not charge Officer Ramirez with rape.
Secondly, the State is not charging Officer Ramirez with rape in any degree. He is being charged with official misconduct with a finding of sexual motivation, which [A.P.] says unequivocally she was raped; she was forced on the bed; her hands were held about her, and that he had intercourse with her without her permission.
She said the very same thing in this case, and my client is being charged with rape in the second degree, and Officer Ramirez is not, and we think that is highly relevant because, one, it shows her character.
It shows not necessarily that she just goes around crying rape, but that she has done that in the past where it doesn't look like she made a true allegation in that case.
. . . .
She went to court following their date, and the ticket had not been taken care of. So, it was at that point that we feel that she got upset and she was mad that she had gone out with him and had sex with him and he had not held up his end of the bargain.
And in speaking with witnesses, it wasn't until after she found out her ticket had not been taken care of that she started telling people how mad she was at him and how upset she was and how he basically just raped her. And it wasn't until that point that it really came out.
Yes, she still did not go to the police because we believe she was just saying that out of anger because her ticket had not been taken care of.
All the facts in this case, your Honor, I think support our position that her credibility is in question, and this prior rape allegation should come in.
The trial court ruled that the prior rape allegation was inadmissible because Tovar did not show that A.P. falsely accused Officer Ramirez of raping her. The trial court ruled, in pertinent part:
Well, I am going to deny the motion at this point. I'm satisfied that there is not a basis to -- there certainly are questions as to the report and certainly the conduct of Officer Ramirez, but I'm satisfied that it is not within the purview of a false allegation of rape.
. . . .
And based on the information that I have been provided, both of your briefs, I am satisfied the State charged what they thought they could prove.
So, the motion is denied as to the incident involving Officer Ramirez. . . . We can revisit it if there is additional information.
Before jury selection on January 4, 2010, the defense asked the court to reconsider the ruling excluding evidence that A.P. falsely alleged Officer Ramirez raped her.
[T]he fact that [A.P.] did not report the rape until Mr. Tovar brought it up while Detective Priebe-Olson happened to be listening to her call, her actions of calling and texting Officer Ramirez after their date, going out with Officer Ramirez again, [A.P.] saying that Officer Ramirez "didn't hurt [her]" and that she was going to "ruin him", all go to show that [A.P.] was not raped by Officer Ramirez. [A.P.] consented to sexual intercourse, and when she did not receive the benefit she expected in return, she became angry and changed her story and claimed she was raped.
The court denied the defense motion. The court ruled:
I'm going to deny the motion to reconsider. I am satisfied that this is far afield. Even the Defense brief indicates the witness apparently is alleged to have made an agreement with this officer that a ticket is to be dismissed in exchange for an intimate relationship. And after that occurs, it does not occur, she is quoted as saying, he basically raped me.
Whether it's legally rape or not, certainly it is alleged to have been a quid pro quo, a dismissal of the case, the ticket, in exchange for sexual activity.
I'm satisfied that we are far afield. And clearly when she is quoted as saying, he basically raped me, whether that's legally true or not --obviously the prosecutor's office hasn't filed those series of charges, although they did file other charges -- I am satisfied that it doesn't rise to the level of a false claim that is going to be allowed in this case.
The statements of the three co-workers, Brooklyn Lafarge, Rhianon Perry, and Jolyn Hendrix were marked and admitted as pretrial exhibits later in the trial. Lafarge and Perry said that Officer Ramirez told A.P. that he would drop charges if she would go out with him. A.P. said that Officer Ramirez raped her but "she felt like she needed to see him again to make sure that all charges are dropped." Hendrix said that after the charges were not dropped, A.P. got angry and told her Officer Ramirez raped her.
Before cross-examining A.P., the defense also argued that based on her testimony during direct, the defense was entitled to ask her what Tovar knew about the previous rape.
Because if they had discussed [A.P.] being raped in the past, it goes to her credibility as to her saying that Mr. Tovar was going to give her something she never had, meaning rape; and once he gets done, "Now I have given you something that you've never had, " meaning rape.
The court denied the request.
Basically this is a motion to reconsider, and it is denied.
Just for the record, I'm satisfied that it isn't sufficient to breach the rape shield statute, nor do I think the inference that you are making from the comments are what was in Mr. Tovar's mind, if he made those comments. I'm satisfied that nothing has happened in her testimony to change that.
Tovar argues on appeal that because A.P. did not report the rape to the authorities, and because the State did not charge Officer Ramirez with rape despite A.P.'s unequivocal statement to the prosecutor that Officer Ramirez raped her, the rape accusation was false. We disagree.
The offer of proof by the defense did not show that A.P. falsely accused Officer Ramirez of raping her. There is no evidence that A.P. ever withdrew her consistent statement that Officer Ramirez raped her or that she ever said that the accusation was false. Nor does the fact that the State charged Officer Ramirez with official misconduct with sexual motivation rather than filing rape charges against him show that the allegation was false. Hughes v. Raines, 641 F.2d 790, 792 (9th Cir. 1981) ("The fact that the district attorney chose not to prosecute, in itself, could mean no more than that he decided he did not have sufficient evidence to obtain a conviction."). Because Tovar did not establish that the accusation that Officer Ramirez raped A.P. was false, the trial court did not err by ruling the evidence was irrelevant.
At the time of trial, the charges against Officer Ramirez were pending.
Tovar attempts to argue that in both instances, A.P. discussed the alleged rapes with B.P. in order to reconcile. The record does not show that A.P. discussed reconciliation with B.P. at the same time that she discussed what happened with Officer Ramirez. The declarations of the co-workers submitted as part of Tovar's motion to reconsider also do not establish the accusation was false. The co-workers said that A.P. continued communicating with Officer Ramirez after the rape because of the outstanding criminal charges. The co-workers stated that A.P. portrayed sex with Officer Ramirez as non-consensual or "forceful, " and described A.P. as distressed about the incidents but feeling like she had no other choice.
Nor did the trial court abuse its discretion in ruling that questioning A.P. about Tovar's knowledge of the prior rape was irrelevant. As the trial court ruled, the inference the defense wanted to draw from Tovar's statement to A.P. during the rape, "[N]ow I guess I've given you something that nobody else has, " was speculative. Further, the ruling did not prevent Tovar from presenting his theory that A.P. was not credible and lied in order to get back together with B.P.
Claim of Ineffective Assistance of Counsel
In the alternative, Tovar argues that he was denied his constitutional right to effective assistance of counsel at trial. Specifically, Tovar claims that trial counsel: (1) failed to object to the testimony that Tovar was previously in prison, (2) failed to request an instruction on the inferior degree offense of third degree rape, and (3) disregarded Tovar's request to testify.
A criminal defendant has the right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate ineffective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Strickland, 466 U.S. at 687; State v. McFarland, 127 Wn.2d 322, 334–35, 899 P.2d 1251 (1995).
In order to prevail on a claim of ineffective assistance of counsel, Tovar must demonstrate (1) deficient performance, that his attorney's representation fell below the standard of reasonableness; and (2) resulting prejudice, that but for the deficient performance, the result would have been different. Strickland, 466 U.S. at 687; State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in Strickland). If a defendant fails to establish either prong, we need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
To establish deficient performance, Tovar has the heavy burden of showing that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. There is a strong presumption of effective representation of counsel, and the defendant has the burden to show that based on the record, there are no legitimate strategic or tactical reasons for the challenged conduct. McFarland, 127 Wn.2d at 335-36. As the Supreme Court explained in Strickland:
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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, [350 U.S. 91, ] 101[, 76 S.Ct. 158, 100 L.Ed. 83 (1955)].Strickland, 466 U.S. At 689.
(1) Failure to Object
Tovar claims that trial counsel's performance was deficient because he failed to object to a reference to prison during A.P.'s testimony. At trial, A.P. testified that after the rape, Tovar "told me he couldn't go to prison and that, you know, I don't know like what it's like in there."
Tovar cannot establish his attorney was deficient in failing to object to a passing reference to prison. We presume that a failure to object constituted a legitimate trial strategy. "Counsel's decisions regarding whether and when to object fall firmly within the category of strategic or tactical decisions." State v. Johnston, 143 Wn.App. 1, 19, 21, 177 P.3d 1127 (2007). Nor can Tovar establish prejudice based on an ambiguous passing reference to prison.
(2) Rape in the Third Degree
Tovar argues that trial counsel provided ineffective assistance of counsel by not requesting a jury instruction for the lesser offense of rape in the third degree. Rape in the third degree is an inferior degree offense of rape in the second degree. State v. Ieremia, 78 Wn.App. 746, 753-54, 899 P.2d 16 (1995).
RCW 9A.44.050(1)(a) defines rape in the second degree as follows:
A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:
(a) By forcible compulsion."Forcible compulsion" means that "the force exerted" was "directed at overcoming the victim's resistance" and was "more than that which is normally required to achieve penetration." State v. McKnight, 54 Wn.App. 521, 527-28, 774 P.2d 532 (1989). Forcible compulsion does not require "a showing that the victim offered physical resistance." McKnight, 54 Wn.App. At 525.
RCW 9A.44.060(1) defines rape in the third degree as follows:
A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person, not married to the perpetrator:
(a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct, or
(b) Where there is threat of substantial unlawful harm to property rights of the victim.RCW 9A.44.010(7) defines "consent" to mean that "at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact." Forcible compulsion is not an element of third degree rape. State v. Charles, 126 Wn.2d 353, 355-56, 894 P.2d 558 (1995).
An inferior degree instruction is appropriate when there is evidence that the defendant committed only the lesser degree offense. Ieremia, 78 Wn.App. at 754. Viewing the evidence in the light most favorable to the defendant, the evidence must be sufficient to " 'permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.' " State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000) (quoting State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)). It is not enough that the jury might disbelieve the State's evidence. Fernandez-Medina, 141 Wn.2d at 456. When the evidence is consistent with both the inferior and superior degree offense, a trial court may refuse to instruct the jury on the inferior degree offense. See State v. Gamble, 168 Wn.2d 161, 181-82, 225 P.3d 973 (2010).
Below, defense counsel proposed a jury instruction for rape in the third degree based on "harm to property rights of the victim." See RCW 9A.44.060(1)(b). Defense counsel conceded that the evidence did not support giving an instruction on the consent prong of rape in the third degree. "We are not asking for an instruction on the consent prong."
I would point out that there are two alternative means to meeting rape in the third degree. The first one does deal with consent. And I would agree that if we were arguing or asking the Court to instruct the jury on rape in the third degree based on the first prong of rape in the third degree, being consent, we probably wouldn't be able to ask for it.
But I believe there is a possibility that the jury would be able to find rape in the third degree under the second prong with regard to a threat to the alleged victim's property rights. And so, Your Honor, we would ask the Court to give the lesser included rape in the third degree, along with the accompanying instructions.
The trial court refused to give the proposed instruction.
I am satisfied Ieremia, which is 78 Wn.App. 746, a 1995 case, is controlling. And I'm further convinced that there is no evidence to support your last argument because it is a threat of substantial unlawful harm to property rights of another. And I frankly don't see any evidence. Stabbing a pillow is not substantial property rights.
As the defense attorney correctly conceded, because the evidence did not permit the jury to find that Tovar committed only the lesser offense of rape in the third degree, Tovar cannot establish ineffective assistance of counsel by failing to request a jury instruction on the lesser offense.
(3) Right to Testify
Next, Tovar claims that trial counsel disregarded his right to testify at trial. A criminal defendant has a right to testify on his or her own behalf. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999). In order to show ineffective assistance of counsel, the defendant must also show that his testimony would have a reasonable probability of affecting a different outcome. Strickland, 466 U.S. at 688-93; Robinson, 138 Wn.2d at 763-64. Because the defendant's testimony may have no impact, and may have a negative impact, we do not presume prejudice. Robinson, 138 Wn.2d at 769.
An attorney performs deficiently when the attorney "actually prevent[s the defendant] from testifying." Robinson, 138 Wn.2d at 764. "[W]hile the decision to testify should ultimately be made by the client, it is entirely appropriate for the attorney to advise and inform the client in making the decision to take the stand." Robinson, 138 Wn.2d at 763.
In order to establish that an attorney prevented the defendant from testifying,
the defendant must prove that the attorney refused to allow him to testify in the face of the defendant's unequivocal demands that he be allowed to do so. In the absence of such demands by the defendant, however, we will presume that the defendant elected not to take the stand upon the advice of counsel.Robinson, 138 Wn.2d at 764.
Here, the court granted Tovar's motion to appoint new counsel to bring a motion for a new trial. On March 1, 2010, the attorney filed a motion for a new trial, arguing trial counsel violated Tovar's constitutional right to testify at trial. Tovar also argued trial counsel failed to investigate, interview witnesses, obtain experts, and failed to adequately cross-examine A.P.
Tovar's trial counsel Brian Todd and Katy Dacanay, and Tovar testified at the hearing on the motion for a new trial. Todd and Dacanay testified that they informed Tovar that he had the right to testify but advised him not to testify because it was likely that the court would allow the State to introduce prejudicial evidence in rebuttal. Todd and Dacanay testified that Tovar elected not to testify. Todd testified that before resting the defense case, he checked with Tovar and Tovar indicated that he was "good to go."
Tovar testified that he consistently informed his trial counsel that he wanted to testify. Tovar said that the night before the defense rested, Tovar showed trial counsel a list of questions to ask him. Tovar testified that he did not speak up in court because he had been told not to address the court. The trial court also reviewed declarations submitted by Todd, Dacanay, Tovar, and a former spouse of Tovar's, W.L. W.L.'s declaration states that Tovar called her the night before the defense rested its case, and Tovar instructed her to call trial counsel and tell them he was adamant about testifying.
The court concluded that trial counsel provided effective assistance of counsel and denied the motion for a new trial. Noting that Tovar's testimony conflicted with trial counsel's testimony, the court ruled that trial counsel's testimony was more credible, and "Tovar was not impermissibly prevented from testifying." The court ruled, in pertinent part:
I am satisfied that there was no protestation from Mr. Tovar at the time [defense counsel] rested his case.
I am satisfied, based on all of the history, that in weighing the credibility of his attorneys, who I find to have done a thorough job in representing his interests, the fact that I don't think any defense counsel would have advised his client to testify under the circumstances. And in view of the fact that I have to weigh the credibility and what is clearly a long history of emotional insecurity, emotional tribulations on the part of Mr. Tovar, and based on the documents that he's presented, I am satisfied that these attorneys are more accurate, that their advice, which was sound advice that he not testify, was in fact the accurate recitation of the facts in this case; and I am satisfied Mr. Tovar was not impermissibly prevented from testifying.
The trial court did not abuse its discretion in denying the motion for new trial and rejecting Tovar's testimony as not credible. State v. West, 139 Wn.2d 37, 42, 48, 983 P.2d 617 (1999).
Statement of Additional Grounds
In a lengthy statement of additional grounds, Tovar raises nine other issues. Many arguments are raised for the first time on appeal. Absent manifest constitutional error, we do not consider arguments raised for the first time on appeal. RAP 2.5(a). The record is insufficient to review a number of the other arguments.
Tovar also claims the State violated the Privacy Act, RCW 9.73.030, when Detective Priebe-Olson sat next to A.P. and listened to the cell phone conversation with Tovar. Because the procedure followed is authorized, we disagree. See State v. Corliss, 123 Wn.2d 656, 662, 870 P.2d 317 (1994) (concluding that tilting the telephone receiver so an officer can hear the conversation is not prohibited under the Privacy Act).
The State filed a motion in this court to unseal "defense motions for expert services" filed under seal in the trial court. Because the State does not argue that the trial court erred in sealing the defense requests for expert services, and the trial court entered an order granting the State access to the sealed documents, we deny the State's motion to unseal. See General Order of this court on sealed or redacted materials.