Opinion
No. 33702-9-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 05-1-00016-6, David E. Foscue, J., entered July 29, 2005.
Counsel for Appellant(s), Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Pros Ofc, Montesano, WA.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Penoyar, JJ.
Robert M. Chicano appeals his second degree assault conviction, contending that the State failed to disprove his self-defense claim and that he was denied his right to effective assistance of counsel. We affirm.
On November 30, 2004, Brad Thompson was having lunch at Privatsky's in Aberdeen when Chicano entered the restaurant. Thompson turned away to avoid Chicano because there was animosity between them as Chicano was dating his former girlfriend. Thompson then rose, grabbed his sweatshirt, and moved toward the door. As he was doing this, Chicano confronted him, pushed him against the wall and down to the ground, and punched him several times. According to Thompson, Chicano said, "I am going to kick your ass, you are a f-ing faggot." Report of Proceedings (RP) (June 30, 2005) at 54. As Thompson got up to leave the restaurant, he asked Chicano, "what did I do?" 2 RP (July 1, 2005) at 242. He then reported the incident to the Aberdeen High School principal.
Privatsky's, now known as the Bobcat Cafe), catered primarily to high school students. At the time, Chicano was a student but Thompson was not.
Either from Chicano's punches or from hitting the pole, Thompson suffered a broken jaw. An oral surgeon wired Thompson's jaw shut for four weeks and placed elastic restrictions on it after that until it completely healed. According to Thompson, he lost 25 pounds because he had difficulty eating only liquids.
The State charged Chicano with second degree assault, a violation of RCW 9A.36.021(1)(a).
At trial, Sevye Trautman testified that he accompanied Chicano into the restaurant. RP 102. He pointed out Thompson to Chicano, saying, "[T]here is your boyfriend in the corner." 1 RP at 103. Chicano responded, according to Trautman, that he was going to fight Thompson. He then watched as Chicano went up to Thompson, pushed him in the chest, threw him against a wall and a pole, and punched him.
Chicano admitted assaulting Thompson but claimed to have done so in self-defense. Chicano explained that he began dating Justine Sturm in September 2003 and that Thompson was jealous and angry. In January and February 2004, Sturm allegedly received ICQ messages from Thompson in which Thompson called Sturm foul names, threatened to kill Chicano, and said that he did not like that she was dating Chicano. Sturm shared these messages with Chicano and they upset and angered him. In September 2004, Chicano was with Sturm when they came upon Thompson walking the other way. Chicano told Thompson that he wanted to settle their differences but Thompson allegedly said, "[F]uck you. I will kill you mother fucker." 2 RP at 225. Chicano also explained that he had come upon Thompson in Fall 2003 and at that time had shoulder checked him because he was angry about some things Thompson had said about Sturm.
ICQ in common parlance is an internet communications tool referred to as "I seek you."
The record is not clear about when this incident occurred. Thompson testified that it occurred while he was recovering from hernia surgery during the September 2003 semester. His mother testified that he had surgery in November 2003. We refer to it as the Fall 2003 incident.
Chicano testified that he was very afraid of Thompson, that when he saw him turn away in the restaurant, he feared that Thompson was reaching for a knife or weapon and was going to kill him. He said that when he was certain that Thompson did not have a weapon in his hand, he pushed Thompson into a wall and onto the ground and punched him several times.
According to Aberdeen Police Officer Rebecca Ellis, Chicano never told her that he felt threatened by Thompson until her second interview with him on December 9, 2004. At the earlier November 30 interview, he only told her that he was upset about some remarks Thompson had made about Sturm, that he wanted to take full responsibility for what he had done, and that he was having a bad day. He also did not tell her about the Fall 2003 or September 2004 confrontations.
A jury convicted Chicano. He now appeals.
I. Sufficiency of the Evidence.
According to ICQ.com, "ICQ [is an] acronym for `Internet CQ' CQ being the old Morse-code telegrapher's radio call for `Calling anyone who receives me and wishes to answer' (___-___-___,___-___)." http://www.icq.com/press/acronyms.html.
Chicano first contends that the State failed to rebut his self-defense claim.
RCW 9A.16.020 describes the lawful use of force:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
. . . .
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.
In State v. Walden, our Supreme Court explained the law of self-defense:
To be entitled to a jury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense; however, once the defendant produces some evidence, the burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt. See State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495, 22 A.L.R.5th 921 (1993) (defendant bears initial burden of producing evidence killing occurred in circumstances amounting to self-defense); State v. Acosta, 101 Wn.2d 612, 619, 683 P.2d 1069 (1984) (State bears burden of disproving self-defense in second degree assault prosecution).
Evidence of self-defense is evaluated "from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees." Janes, 121 Wn.2d at 238 (citing [State v.] Allery, 101 Wn.2d [591,] at 594[, 682 P.2d 312 (1984)]). This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done. Janes, 121 Wn.2d at 238.
State v. Walden, 131 Wn.2d 469, 473-74, 932 P.2d 1237 (1997). "[T]he general rule in Washington is that reasonable force in self-defense is justified if there is an appearance of imminent danger, not actual danger itself." State v. Bradley, 141 Wn.2d 731, 737, 10 P.3d 358 (2000).
Here, there is no dispute that Chicano assaulted Thompson as he admitted doing so. The only question is whether the State rebutted his evidence that he did so in self-defense. Essentially, the question for the jury was whether it believed Chicano's claim that he feared imminent harm. On November 30, Thompson did nothing to provoke the attack other than being in the restaurant and turning his back on Chicano. Chicano, by his own admission, approached Thompson, pushed him into the wall, knocked him to the ground, and landed several punches. The jury then had to decide if his justification for doing so was reasonable based on an incident in Fall 2003 when Thompson allegedly shoulder checked Chicano, some ICQ messages in January and February 2004 in which Thompson allegedly threatened to kill Chicano, and another incident in September 2004 on campus when Thompson allegedly threatened to kill Chicano.
Importantly, Thompson testified that during the Fall 2003 incident, Chicano shoulder-checked and threatened him not the other way around. His mother's testimony supported this claim. Further, Thompson testified that he did not send the ICQ messages to Sturm. And Thompson testified that there was no September 2004 encounter. Further evidence for the jury to consider was that Chicano never mentioned that Thompson had threatened him until December 9 during his second interview with Officer Ellis. It was not until that time that he and Sturm produced the ICQ messages. Further, Trautman testified that Chicano said he was going to fight Thompson. Thompson testified that Chicano said he was "going to kick [his] ass." 1 RP at 54. And Thompson's response to the assault was to ask what he had done to deserve it. What this discussion illustrates is that the evidence was in dispute, the jury was charged with resolving the dispute, and it disbelieved Chicano's self-defense claim.
This court will not substitute its judgment for the jury's when the evidence supports the verdict. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (credibility determinations are for the jury, not the reviewing court); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992) (this court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence). Chicano's claim fails.
II. Effective Assistance of Counsel.
Chicano next claims that defense counsel denied him his right to effective representation when he failed to object to the admissibility of evidence about the Fall 2003 incident. He claims that this evidence was inadmissible propensity evidence that undercut his self-defense theory as it tended to show that Chicano was not afraid of Thompson, and caused undue prejudice.
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We begin with the presumption that counsel's assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122, review denied, 105 Wn.2d 1013 (1986). This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting his counsel's conduct. State v. McFarland, 127 Wn.2d 322, 334-38, 899 P.2d 1251 (1995).
Chicano claims that counsel should have objected when the State introduced evidence about the Fall 2003 incident. But Chicano fails to note that it was defense counsel who first brought this testimony out. During his cross-examination of Thompson, defense counsel sought to challenge Thompson's claim that he had no conflicts with Chicano:
Q. Earlier this morning I asked you if you had any problems with Mr. Chicano and your response was no; is that right?
A. Correct.
Q. And I asked if you had any discussions with him and you said no, is that right; is that fair?
A. No. I said I talked to him a couple of times before.
Q. And you still didn't have any problems with Mr. Chicano; is that right?
A. That's what I said earlier but, something else came to light after you asked it a second time.
Q. Something else came to light, so are you telling the truth now or are you telling the truth then?
. . . . [Objection sustained.]
Q. Do you have something else to add, then?
A. I believe, I thought I was before, and I was, under my knowledge telling the truth earlier. But when I remembered something later when you asked me, so . . .
Q. So you are afraid of Robbie?
A. To put it bluntly, yeah.
Q. You are afraid of Robbie but you never had any problems with him, right?
A. I had before when I went to school.
Q. Could you explain further then?
A. Um, when he was dating Justine I had had abdominal surgery and I came back to school about two weeks before I was doctor recommended to and we passed by each other a couple of times between classes and he was walking with Justine and glared at me and shoulder checked me, and it upset me pretty bad because I had 20 stitches in my stomach, not recovered yet.
1 RP 90-91. It was because of this testimony that during redirect examination, the prosecutor sought to clarify what happened. Thompson responded:
A. I was on my way to meet my mother in the parking lot to — for her to administer my medication for my pain and my anti-biotics and he was coming from weight lifting with Justine, and I attempted to avoid him but he walked straight towards me and shoulder checked me on my way and kept walking and called me a fag.
Q. Did you tell your mother about it at that time?
A. I did.
1 RP at 99-100. Later during the trial, the State presented his mother's testimony about this same incident. She testified:
It was his first day back to school and I was waiting for him in the parking lot and he approached the car shaking and visibly upset and said, did you see that, and I said no, and he said he was walking to his class and he crossed — he was outside, he crossed paths with Robbie Chicano who was walking with Justine Sturm. Robbie did a shoulder block on him, kind of went out of his path of travel to run into Brad with his shoulder and Brad of course was due for his pain pill so he was already uncomfortable and having his torso twisted after surgery.
1 RP at 166.
As defense counsel brought this issue before the jury, Chicano's argument that he should have objected during Thompson's redirect on hearsay grounds has no basis. Clearly, defense counsel was trying to establish that there was genuine conflict between Chicano and Thompson by rebutting Thompson's claim that there was none. This was a legitimate strategic decision and, as such, is not reviewable. See State v. Carter, 56 Wn. App. 217, 224, 783 P.2d 589 (1989) (generally a court will not consider those matters it regards as tactical decisions or matters of trial strategy). "If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel." State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986); State v. Adams, 91 Wn.2d 86, 90-91, 586 P.2d 1168 (1978); State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972).
But even assuming the testimony should not have been allowed, the event was over a year before the incident here and several months before Thompson allegedly threatened to kill Chicano. Further, Chicano admitted shoulder checking Thompson but said he did so because he was angry about what Thompson had been saying about Sturm. At that time, there was no evidence that he had reason to fear Thompson. There was little, if any, prejudice from this testimony. At the least, it established an ongoing animosity that lent support to Chicano's self-defense claim.
We find no reversible error and thus we affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and PENOYAR, JJ., concur.