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State v. Benavidez

The Court of Appeals of Washington, Division Three
Aug 21, 2007
140 Wn. App. 1017 (Wash. Ct. App. 2007)

Opinion

No. 25257-4-III.

August 21, 2007.

Appeal from a judgment of the Superior Court for Benton County, No. 05-1-01105-3, Cameron Mitchell, J., entered June 1, 2006.


Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kulik, J.


Lucio Cruz Benavidez appeals his conviction for first degree robbery, contending opinion testimony and prosecutorial misconduct denied him the right to a fair trial. We affirm.

FACTS

In August and September 2004, four convenience stores were robbed, three in Sunnyside (Yakima County) and one in nearby Prosser (Benton County). The robber (or robbers) in each case wore a bandana, carried a gun, and shared the same getaway driver, Yvette De La Fuente.

On October 2, 2004, Sunnyside Police Detective James Orth interviewed Ms. De La Fuente based on a tip. Ms. De La Fuente told Detective Orth she and Mr. Benavidez participated in all four robberies. Ms. De La Fuente reported Mr. Benavidez, with others, robbed the stores wearing a bandana, and that she drove the get away car. She told Detective Orth that Mr. Benavidez and his brother, Marcos Cruz Herrera, robbed the Prosser convenience store and Mr. Benavidez "always carrie[d] a gun." Report of Proceedings (RP) at 261, 262.

Sunnyside police officers lawfully searched Ms. De La Fuente's car and hotel rooms shared with the suspects, including Mr. Benavidez. Officers found three bandanas in Ms. De La Fuente's car, and in the hotel rooms they found two black sweatshirts (consistent with the Prosser robbery victim's description of the robbers' attire) and a thin black garbage bag stuffed inside a roll of toilet paper (consistent with a bag described by the Prosser robbery victim). Mr. Benavidez was arrested prior to the search on separate charges. Police found a loaded gun in his pants pocket.

Ms. De La Fuente pled guilty to four counts of first degree rendering criminal assistance. In her statement on plea of guilty for the Sunnyside robberies, she stated she knew Mr. Benavides committed the crimes of first degree robbery, and provided him transportation to prevent his arrest. In her statement on plea of guilty for the Prosser robbery, she stated, "I gave assistance to my boyfriend knowing he was committing a first degree robbery by helping him leave." RP at 209. She admitted Mr. Benavidez was her boyfriend. Mr. Benavidez's brother, Mr. Herrera, pled guilty to first degree robbery of the Prosser convenience store.

The State charged Mr. Benavidez, in the respective counties, with a total of four counts of robbery. Mr. Benavidez entered an Alford plea to three counts of second degree robbery in the Sunnyside cases, and pled not guilty to first degree robbery, while armed with a firearm, in Prosser.

North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

At trial, Detective Orth testified he questioned Ms. De La Fuente about the use of masks and she repeatedly told him the men wore bandanas. According to Detective Orth, he "was trying to tie them all together and make sure they were all doing the same thing, the same people, make sure we had the right people." RP at 268. While testifying about the Sunnyside robberies, he stated: "All three of these robberies were committed by the same people using the same MO, the same type of weapon, the same everything. That's how we match things up and make sure we have the right people." RP at 270. Prosser Police Detective Ed Blackburn then testified the Sunnyside Police Department "did a very good job here, in my opinion. We didn't have a lot of clues. Their information solved our Prosser case." RP at 314.

Ms. De La Fuente became a hostile witness for the State at trial, answering that she could not remember most critical details. She did identify Mr. Benavidez as her boyfriend at the time of the Prosser robbery. The court allowed her prior statements to be used for impeachment purposes. Her guilty pleas in all four cases became trial exhibits. Mr. Herrera denied Mr. Benavidez was involved in the Prosser robbery.

During closing arguments, the prosecutor told the jury: "An Alford Plea is for somebody who is caught, who knows they're caught, who knows the evidence is there to convict them, but just cannot bring themselves to say, I am guilty." RP at 468. He further stated: "Ladies and gentlemen, he's not going to admit it. He didn't admit anything in Yakima County. He pled guilty by this method of saying, okay, you caught me, but I don't want to admit anything. He needs to be held accountable." RP at 473-74. The prosecutor raised the issue of Mr. Benavidez's multiple defenses and told the jury: "Well, that's fine, but I guess what I'd say is get a defense and stick with it." RP at 485. He argued defense counsel essentially asked the jury to let Mr. Benavidez "off the hook," and he asked the jury to hold Mr. Benavidez accountable. RP at 487.

The jury found Mr. Benavidez guilty as charged. Mr. Benavidez appeals.

ANALYSIS A. Police Opinion Testimony

The issue is whether the cited opinion testimony rises to the level of a manifest constitutional error that may be raised for the first time on appeal. Mr. Benavidez contends the detectives provided improper opinion testimony of his guilt, invading the jury's fact-finding process and his right to an unbiased jury trial.

Generally, we will not consider an evidentiary issue raised for the first time on appeal, any error is deemed waived. RAP 2.5(a)(3); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). A narrow exception exists, however, for "manifest error[s] affecting a constitutional right." RAP 2.5(a)(3); Kirkman, 159 Wn.2d at 926. "Impermissible opinion testimony regarding [a] defendant's guilt may be reversible error because such evidence violates the defendant's constitutional right to a jury trial, which includes the independent determination of the facts by the jury." Kirkman, 159 Wn.2d at 927. The defendant must show the error is "manifest," meaning the testimony included an explicit or nearly explicit opinion of guilt that resulted in actual prejudice. Id. at 926-27.

Here, Mr. Benavidez fails to show a manifest constitutional error. Neither detective provided an explicit or nearly explicit opinion of guilt. Detective Orth discussed the process used to conduct an investigation, which included a comparison of the facts of each case, the alleged individuals involved, and whether the information matched. This process was not specific to Mr. Benavidez's case. Next, Detective Blackburn addressed the police investigation. After receiving information from the Sunnyside Police department, where Ms. De La Fuente identified Mr. Benavidez in the Prosser robbery, he considered the case solved. Neither detective provided a personal belief that Mr. Benavidez committed the crime charged.

Further, even if the detectives' statements were improper, any error was harmless. The record shows overwhelming, untainted evidence of guilt. State v. James, 158 P.3d 102, 110 (2007). Ms. De La Fuente told Detective Orth that Mr. Benavidez and Mr. Herrera committed the Prosser robbery. She pled guilty to first degree rendering criminal assistance for her role as the get away driver, identifying her boyfriend, Mr. Benavidez, in her statement on plea of guilty. Further, Mr. Herrera pled guilty to the Prosser robbery and the police found the bandanas and other related items at Ms. De La Fuente's direction, all lending substantial credence to the State's case theory.

B. Prosecutor Misconduct

The issue is whether the prosecutor engaged in misconduct during closing arguments. Mr. Benavidez contends the prosecutor's argument regarding the Alford plea and defense counsel's conduct were improper, could not have been cured by a jury instruction, and denied him a fair trial.

A defendant may claim prosecutorial misconduct for the first time on appeal. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). The defendant must show the prosecutor engaged in misconduct and the misconduct prejudiced the jury. Id. We review a prosecutor's statements for misconduct "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." Id. Misconduct is prejudicial if "there is a substantial likelihood that the . . . misconduct affected the verdict." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). When raised for the first time on appeal, the prosecutor's comments must be "so flagrant and ill intentioned that it cause[d] an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Id. at 86.

Mr. Benavidez has not shown the prosecutor engaged in misconduct or that the prosecutor's comments were so prejudicial that they could not have been cured by a jury instruction. First, the prosecutor was entitled to argue inferences from the record regarding the Alford plea and he did not introduce facts outside the record. While Ms. De La Fuente's statement was allowed solely for impeachment purposes, her guilty pleas were trial exhibits. Second, he did not disparage defense counsel. He pointed out that Mr. Benavidez argued two inconsistent defenses strategies and that defense counsel was seeking acquittal. Mr. Benavidez has not shown reversible error.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SCHULTHEIS, A.C.J., KULIK, J., concur.


Summaries of

State v. Benavidez

The Court of Appeals of Washington, Division Three
Aug 21, 2007
140 Wn. App. 1017 (Wash. Ct. App. 2007)
Case details for

State v. Benavidez

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. LUCIO CRUZ BENAVIDEZ, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Aug 21, 2007

Citations

140 Wn. App. 1017 (Wash. Ct. App. 2007)
140 Wash. App. 1017