Opinion
No. 24905-1-III.
April 24, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00366-2, Robert G. Swisher, J., entered January 19, 2006.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Kulik, J., and Kato, J. Pro Tem.
Appealing his conviction on one count of attempted second degree child rape, Clodoveo Espina asks this court to find that his confrontational rights were violated by the trial court's exclusion of impeachment evidence concerning the fact of the complaining witness's juvenile adjudications. Mr. Espina also claims he was prejudiced by deficient performance of his counsel. We find no error and affirm.
Facts
Clodoveo Espina met M.S. in 1999. They began a relationship and Mr. Espina moved in with Ms. S. and her children in 2001, shortly after the birth of her fourth child. Although he was not the father, Mr. Espina treated this child as his own and gave her his last name. Thereafter, the couple had a child together. Mr. Espina was very active in the care of the children, particularly when Ms. S. was working late or absent from the home for days at a time due to her substance abuse.
In November 2003, Ms. S.'s daughter, C.S., who was 15 years old at trial, moved in with her grandmother because, in her words, "I had gotten in a fight with [Mr. Espina] and he hit me, so I pushed him and I ran away from my house that day." Report of Proceedings (RP) at 83.
In July 2004, C.S. told a juvenile detention probation officer and a detention counselor that Mr. Espina had been repeatedly molesting her since 1999 or 2000. Mr. Espina, 35 years old at trial, was charged with one count of first degree rape of a child and one count of attempted second degree rape of a child.
At trial, C.S.'s 15-year-old best friend testified that in 2002 or 2003, C.S. disclosed to her that Mr. Espina had been molesting her. The defense did not object. The juvenile detention probation officer and the detention counselor also testified, again without objection, regarding C.S.'s statements to them.
In other testimony, C.S.'s 11-year-old brother testified that C.S. had told him that Mr. Espina had been molesting her. But C.S. testified that she does not recall whether she made such a statement; she remembers telling him that an uncle had molested her.
C.S.'s aunt also testified that C.S. had told her that Mr. Espina "had been touching her without her permission." RP at 46. In the context of the testimony, it is unclear whether this touching relates to the physical confrontation in November or if she was making a disclosure of sexual abuse.
Before the defense cross-examined C.S., the court ruled that Mr. Espina could not elicit testimony from C.S. regarding her prior juvenile adjudications on two charges of third degree theft and one charge of possession of stolen property.
Mr. Espina testified and denied that he had molested C.S. The vice principal at Park Middle School testified that C.S. had a reputation at school for dishonesty. Mr. Espina also presented evidence to impeach a statement that C.S. had made concerning the molestation. Specifically, C.S. told the jury and the juvenile probation counselor that one of her brothers had caught Mr. Espina molesting her. Her two brothers denied seeing any molestation. Her younger brother, however, testified that at one occasion, he opened his mother's bedroom door to see C.S. and Mr. Espina lying on a bed, fully clothed, facing each other.
Mr. Espina testified that the event that precipitated C.S.'s moving out was a physical argument concerning her refusal to get off of the telephone when he had told her to do so. According to Mr. Espina, he approached her to take the telephone away, and she said, "`You are not going to take it.'" RP at 145. He denied hitting C.S. and told the jury that she pushed him and tried to goad him into hitting her before leaving the house yelling, "`Jose, I promise you, you are never going to have your daughters again. Watch me,'" and, "`Watch your back.'" RP at 146. Believing she ran away, Mr. Espina called police, who found C.S. at her aunt's house. Recalled for rebuttal, C.S. again stated that Mr. Espina hit her.
According to the testimony of C.S.'s aunt, it was on this occasion that C.S. told her aunt that Mr. Espina "had been touching her without her permission." RP at 46.
Mr. Espina was convicted of one count of attempted second degree child rape.
Exclusion of Evidence
Juvenile adjudications are generally presumed inadmissible. State v. Gerard, 36 Wn. App. 7, 12, 671 P.2d 286 (1983). ER 609(d) provides:
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(Emphasis added.) The trial court has broad discretion to admit or exclude evidence of a witness's juvenile adjudications when the evidence is offered solely for general impeachment purposes. Gerard, 36 Wn. App. at 11 (citing State v. Temple, 5 Wn. App. 1, 4, 485 P.2d 93 (1971)). A trial court's decision to admit or exclude the evidence under ER 609(d) is reviewed for abuse of discretion, as long as the trial court properly interprets the rule. See State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008, review denied, 157 Wn.2d 1025 (2006).
At trial, Mr. Espina argued that the evidence concerning C.S.'s juvenile adjudications was admissible under ER 609(d) because credibility of the witness was crucial to the case and recent theft crimes involved dishonesty, which was important for the jury to consider when weighing the evidence. The State pointed out that the defense had other means and opportunities to introduce evidence of C.S.'s credibility and argued that the juvenile adjudication evidence was not necessary for a fair determination of Mr. Espina's guilt or innocence. The court agreed with the State.
On appeal, Mr. Espina does not challenge the admissibility of the juvenile adjudications under the evidentiary rule. He asserts instead that the exclusion of the evidence of C.S.'s prior juvenile adjudications violated his constitutional right to confront a witness against him. The court may address this issue even though it is being raised for the first time on appeal. State v. Connie J.C., 86 Wn. App. 453, 455-56, 937 P.2d 1116 (1997) (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)).
The confrontation clause guarantees defendants the right to cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998). However, "`the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (emphasis omitted) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985) (per curiam)). A confrontation clause violation will not be reversed if the error is harmless. State v. Davis, 154 Wn.2d 291, 304, 111 P.3d 844 (2005), aff'd, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); Van Arsdall, 475 U.S. at 684.
Division One of this court has held that when a witness's juvenile adjudication is offered only for the general purpose of impeachment, rather than to show a particular bias, interest, or motive in testifying, the confrontation clause is not implicated. Gerard, 36 Wn. App. at 11 (citing Davis, 415 U.S. 308). This is consistent with federal authority. See Van Arsdall, 475 U.S. at 678-80.
Thus, there is a two-step analysis to this confrontation clause challenge. First, we determine whether the defendant was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of each witness. 475 U.S. at 678-79. Second, if we find an error under the confrontation clause, we must determine whether the error was harmless beyond a reasonable doubt. Id. at 684.
Here, Mr. Espina did not provide any reasons for admitting the juvenile adjudications beyond general impeachment of the witness's credibility. Mr. Espina's confrontation rights were not at issue.
Mr. Espina relies on Temple, 5 Wn. App. 1. In Temple, the defendant appealed the trial court's exclusion of evidence that an eyewitness to a homicide had been adjudged delinquent and had spent approximately a year in a juvenile institution primarily because he had no other home. Id. at 3. The defendant argued that the evidence was necessary to show that because of his juvenile detention history he was accustomed to being told what do to; thus, the witness was particularly susceptible to the suggestions of his interrogators. Id. at 4. The court noted that a defendant's constitutional right to confront the witnesses against him is at stake when the trial court rules on the exclusion of evidence concerning a witness's juvenile history. Id. But "`[t]he extent of the cross-examination of a witness upon collateral matters which tend to affect the weight to be given the witness' testimony, rests within the sound discretion of the trial court.'" Id. at 4-5 (alteration in original) (quoting State v. Goddard, 56 Wn.2d 33, 37-38, 351 P.2d 159 (1960)). The decision was affirmed because of the collateral nature of the proposed cross-examination. Id. at 5. Temple also predates the United States Supreme Court's decisions in Davis, 415 U.S. 308 and Van Arsdall, 475 U.S. 673.
Even under a general confrontation clause analysis, Mr. Espina's claim fails. Whether a defendant's confrontation right has been denied is determined on a case-by-case basis after examination of all the surrounding circumstances and the evidence admitted at trial. State v. Ahlfinger, 50 Wn. App. 466, 474, 749 P.2d 190 (1988); see Davis, 154 Wn.2d at 295. A trial court's decision to limit the scope of cross-examination will not be disturbed unless it is the result of manifest abuse of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). The evidentiary analysis is similar to the harmless error test in Van Arsdall.
To determine whether a violation of the right to confrontation was harmless, the appellate court must decide "whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at 684. In so determining, the court considers whether the evidence was cumulative, the importance of the witness's testimony, the extent of corroborating and contradicting testimony, the extent of cross-examination otherwise permitted, and the strength of the State's case. In re Pers. Restraint of Benn, 134 Wn.2d 868, 914, 952 P.2d 116 (1998) (quoting Van Arsdall, 475 U.S. at 684).
Here, the record shows that Mr. Espina was able to effectively cross-examine witnesses against him. Mr. Espina was permitted to advance his theory that C.S. fabricated the molestation allegations and she was motivated to do so by Mr. Espina's altercation with her about the telephone. He was also permitted to suggest that she was making good on her threat to make sure that he would never see his children again. To show that C.S. was fabricating the allegation, Mr. Espina introduced evidence concerning C.S.'s credibility through her vice principal at school who testified that she had a reputation at school for dishonesty. He also introduced evidence that C.S. was in a juvenile detention facility after having been picked up on a probation violation warrant. And he impeached her statement concerning her brother's eyewitness account. He was able to present and/or argue all of his theories to the jury.
In summary, while credibility was a major issue in this case due to the nature of the charges, the evidence of dishonesty Mr. Espina introduced was probably more compelling than the fact of her juvenile theft adjudications. He was also able to admit other evidence relative to the witness's credibility.
Ineffective Assistance of Counsel
"In order to establish ineffective assistance of counsel, the petitioner must show that counsel's performance was deficient and not a matter of trial strategy or tactics, and that the petitioner was prejudiced." In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 95, 66 P.3d 606 (2003) (citing Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). This court's scrutiny of counsel's performance is highly deferential and the reviewing court indulges in a strong presumption of reasonableness. State v. Garrett, 124 Wn.2d 504, 518-19, 881 P.2d 185 (1994); Strickland, 466 U.S. at 689, 691. "Because the presumption runs in favor of effective representation, the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Prejudice results only when there is a reasonable probability that but for the counsel's performance, the outcome would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Mr. Espina argues through counsel and in a statement of additional grounds for review that his counsel's failure to object to hearsay testimony during the trial constituted ineffective assistance of counsel. He claims that the testimony of the witnesses would not be admitted under the excited utterance exception.
The State properly argues that Mr. Espina used the testimony for his own benefit. Specifically, Mr. Espina used the statements of the juvenile detention counselor and the two brothers to impeach C.S.'s account of the events — which he pointed out to the jury in his closing argument. A party may not assign error to the admission of evidence that the party used in its case. Storey v. Storey, 21 Wn. App. 370, 376, 585 P.2d 183 (1978); 1 John Henry Wigmore, Evidence in Trials at Common Law § 18, at 836-38 nn. 35-37 (Peter Tillers rev. ed. 1983).
Mr. Espina also cannot show that neglecting the opportunities to make hearsay objections was not strategic. The hearsay was blatant. And, again, Mr. Espina ultimately made good use of the testimony. The testimony had more value in the manner that Mr. Espina used it than he would have if the testimony was excluded. Considering the benefit Mr. Espina derived from the admission of the evidence, there is no reasonable probability the outcome would have been different had he made sustainable objections.
Also in his statement of additional grounds for review, Mr. Espina contends that his counsel was ineffective for failing to subpoena additional witnesses and in his examination of particular witnesses.
The former contention cannot be examined on direct review. The decision whether to call certain witnesses, which is subject to differences of opinion, is presumed to be a matter of legitimate trial tactics. In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004). The presumption can be rebutted by showing counsel failed to investigate available defenses, adequately prepare for trial, or subpoena necessary witnesses. Id. Mr. Espina does not identify the witnesses he wished to have subpoenaed. He also claims that counsel informed him that the witnesses would not be favorable, but Mr. Espina thought otherwise. The proper avenue for bringing claims based on evidence outside the record is through a properly supported personal restraint petition. McFarland, 127 Wn.2d at 335.
In the latter pro se contention, Mr. Espina asserts that counsel did not sufficiently examine the vice principal on C.S.'s credibility and failed to examine C.S.'s brother concerning her credibility. The examination of witnesses is generally a matter left to the professional discretion of counsel. Davis, 152 Wn.2d at 720.
Finally, Mr. Espina contends that counsel failed to argue that C.S. threatened Mr. Espina to make sure that he never saw his daughters again. The evidence was presented and was before the jury. The matter of closing arguments is considered trial tactics and will not be second-guessed by the courts. See State v. Lord, 117 Wn.2d 829, 885, 822 P.2d 177 (1991); State v. Silva, 106 Wn. App. 586, 597-98, 24 P.3d 477 (2001).
Even if Mr. Espina could show deficient performance in any of these regards, he cannot show prejudice. There is no indication that the result would have been any different. Mr. Espina was acquitted on the charge of first degree rape. Any claimed shortcomings in defense counsel's objections, witness selection, and examination technique do not undermine the verdict of the jury.
Affirmed.
A majority of the panel has determined that 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. KULIK, J. and KATO, J. Pro Tem., concur.