Opinion
No. 59022-7-I.
November 19, 2007.
Appeal from a judgment of the Superior Court for King County, No. 06-1-01811-3, Theresa B. Doyle, J., entered October 23, 2006.
Affirmed by unpublished per curiam opinion.
Paul Fuentes appeals his judgment and sentence for the first-degree assault of his friend's girlfriend, Ruth Rucker. The trial court had tenable reasons to deny his motion for a mistrial based on one witness' improper statements. The additional grounds he raises pro se are without merit. Therefore, we affirm.
In the early morning hours of October 22, 2005, someone stabbed Ruth Rucker in the back, almost killing her, inside the home of her boyfriend's cousin. Her boyfriend, Leoshus Jones, called 911 and stayed on the telephone in the house until police arrived on the scene. He answered their questions regarding the events leading up to the assault.
Earlier in the evening prior to the assault, Jones had a small party at his cousin's house. A few friends and acquaintances attended, including another cousin of Jones (Delina Jones), Rucker, and Jones' close friend Paul Fuentes. Many of them drank alcohol, and Jones and Rucker both testified that they were drunk that night. Many people at the party also smoked cigarettes that night.
Delina Jones will be referred to by her first name for clarity.
Delina testified that she arrived at the house around 7:30 or 8:00 p.m. and left around midnight. During that time, she and Fuentes got into a verbal altercation because he made a racially charged comment to her. Both of them had been drinking alcohol. Later, Delina testified that Fuentes retrieved a knife from the kitchen, but Jones took it away from him. The altercation between Fuentes and Delina turned physical when Fuentes pushed her, and Delina responded by punching Fuentes several times. Later, Rucker and some other friends arrived, and Delina left the party a few minutes after that.
Rucker and Jones both testified that at some point in the night, they went into one of the back rooms to lift weights. When they returned to the living room, only Fuentes remained in the house. Someone noticed that the Play Station that had been used to play music that evening was missing, and a verbal altercation ensued between Fuentes and Rucker regarding who had stolen it. Rucker yelled at Fuentes to leave the house and tried to call Jones' cousin who resided there. Rucker testified that she then saw Fuentes go into the kitchen and take out a knife, possibly from his pocket. As he walked past her from the kitchen toward the front door, he moved as if to give her a hug. But instead, he reached around her and stabbed her in the back. Jones testified that his back was turned during this brief exchange. Fuentes then quickly left the house on foot.
Jones called 911. He stated to the operator, "I just — I — I — Somebody stabbed her, Paul Fuentes." He stayed on the telephone line until police arrived, where they found him leaning over Rucker trying to assist her. They handcuffed him for safety reasons but did not arrest him. Jones provided a statement, and the officers on the scene generally found Jones to be cooperative. Based on Jones' allegation that Fuentes had committed the assault and fled on foot, police used a canine unit to attempt to track Fuentes' trail but did not find him after approximately an hour of searching.
The State charged Fuentes with first-degree assault with a deadly weapon allegation. At trial, the case turned largely on the credibility of the witnesses. The only physical evidence offered in this case, aside from photographs, was two soiled towels (one white and one blue) and a kitchen knife that police found in a pile outside the front door. No blood was found on the knife or the white towel. Blood was found on the blue towel, and the DNA from the blood matched that of Jones. DNA was found on the knife handle, and tests showed that Jones was a possible contributor but that Rucker and Fuentes were excluded as possible contributors. A non-weathered cigarette butt and ashes were found on top of the towel pile. Fuentes was determined to be the major DNA contributor to the sample taken from the cigarette, along with one other unknown contributor. Pre-trial, counsel for both parties agreed that the knife found in the pile of towels was probably not the knife used in the assault.
Fuentes' theory of the case at trial was to suggest that Jones, not Fuentes, stabbed Rucker. Defense counsel impeached Jones' testimony with several inconsistent statements, most of which related to minor details of the night's events. For example, although Jones testified that he never left Rucker's side from the time she was stabbed, counsel pointed out that he must have left the room to retrieve the telephone he used to call 911. Also, Fuentes heavily relied on the fact that police found the front door dead bolted when they arrived on the scene, although Jones testified that the door was left open after Fuentes' flight. Fuentes suggested that Jones had assaulted Rucker inside the locked house and that the two of them falsely blamed the act on Fuentes. Fuentes did not testify in his defense.
During Jones' testimony at trial, the prosecutor asked Jones how often he had contact with Fuentes before the assault. Jones responded, "Constantly. Unless he was in jail." The State moved to strike the statement, and the trial court granted that motion and instructed the jury to disregard the statement. Later in his testimony, the prosecutor asked Jones about the sequence of events the night in question. Jones stated,
Delina's friend that was from Louisiana said that she was in the back room and that [Fuentes] had tried to rape her.
Report of Proceedings (Sept. 13, 2006) at 87.
Fuentes objected. The trial court sustained the objection and instructed the jury to disregard the statement. After the break for noon recess, Fuentes moved for a mistrial based upon these two improper statements. For reasons that will be discussed below, the trial court denied the motion.
At the close of the trial, the jury found Fuentes guilty of first-degree assault as charged and found that he had been armed with a deadly weapon during the commission of the crime. The trial court sentenced him to 171 months in prison for the assault, the high end of the standard range, and the mandatory 24-month enhancement for the deadly weapon finding. Fuentes appeals.
MISTRIAL
Fuentes argues that the trial court abused its discretion in denying his motion for a mistrial in response to Jones' two improper statements during his testimony. We disagree.
A mistrial should only be granted based on a witness' inadmissible testimony if the defendant is so prejudiced by the testimony that nothing short of a new trial would ensure that he receive a fair trial. We will only overturn a denial of a motion for a mistrial if there is a substantial likelihood that the inadmissible evidence affected the jury's verdict. In analyzing an error's effect on the trial, courts consider: (1) the seriousness of the error, (2) whether it was cumulative of other evidence, and (3) whether the trial court properly instructed the jury to disregard it. Jurors are presumed to follow the trial court's limiting instructions.
State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987).
State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994).
Id. at 77.
The decision to grant or deny a mistrial is within the sound discretion of the trial court and is reversible only for abuse of that discretion. A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. When making this determination, appellate courts do not weigh conflicting evidence or make credibility determinations. Our inquiry is limited to whether the trial court had tenable reasons for concluding that Fuentes was not prejudiced by the improper testimony.
State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006).
Id.
See State v. Rodriguez, 103 Wn. App. 693, 696, 699-700, 14 P.3d 157 (2000) (trial judge is in the best position to determine the effects of trial irregularities on the jury), aff'd, 146 Wn.2d 260, 45 P.3d 541 (2002); State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000) (appellate courts must defer to the fact-finder's determinations of credibility, conflicting testimony, and persuasiveness of the evidence).
See Rodriguez, 103 Wn. App. at 700.
In State v. Wilburn and State v. Escalona, this Court recognized that improper testimony that the defendant had previously committed the same crime as the one charged is highly prejudicial and can be grounds for a mistrial.
State v. Wilburn, 51 Wn. App. 827, 755 P.2d 842 (1988), overruled on other grounds by Adams v. Dep't of Labor Indus., 128 Wn.2d 224, 905 P.2d 1220 (1995); Escalona, 49 Wn. App. 251.
Evidence of a crime that is similar or identical to the one charged is more prejudicial than a dissimilar crime or act because it is more likely to convince a jury that the defendant committed the same type of act again. On the other end of the spectrum, in State v. Condon, this court held that a general reference to the fact that the defendant had previously spent time in jail did not affect the defendant's right to a fair trial for murder because such ambiguous references do not indicate a propensity to commit murder.
See State v. Newton, 109 Wn.2d 69, 76-77, 743 P.2d 254 (1987) (quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)); State v. Condon, 72 Wn. App. 638, 649, 865 P.2d 521 (1993) (distinguishing Wilburn and Escalona because those cases involved evidence of crimes "similar or identical" to the charged crimes, making them "extremely prejudicial").
72 Wn. App. 638, 649, 865 P.2d 521 (1993).
Here, the trial court denied the motion for a mistrial for several reasons. First, the court concluded that the hearsay rape allegation by Delina's unnamed female friend was utterly unsubstantiated and not credible. Jones provided no specifics about the alleged victim or the circumstances surrounding the alleged rape, and everyone at the party that night had been drinking alcohol. Second, the court concluded that the rape allegation was less prejudicial in this assault trial than it would have been in a rape trial. Because the crimes were of different types, prejudice was not at its highest. Third, the court believed that its instruction to disregard the statement could cure any prejudice.
The court also offered to give a curative instruction, but Fuentes never proposed one. On cross-examination of Jones and in closing argument, defense counsel attempted to rehabilitate by pointing out the lack of credibility of the rape allegation. This clarified to the jury that Jones did not know the name of the alleged rape victim and did not report the incident to anyone before mentioning it in his trial testimony.
The trial court did not abuse its discretion in denying the motion for a mistrial. Based upon Condon, Wilburn, and progeny, the court correctly reasoned that the vague, unsubstantiated, dissimilar acts alleged by Jones, while serious, were not sufficiently prejudicial to warrant a new trial. The jury was able to conclude from the evidence that Jones had no credible basis to allege a rape by Fuentes. Even if credible, such an alleged act was dissimilar to the one alleged against Rucker. The spontaneous statements were not the subject of a motion in limine, and the prosecutor did not purposely solicit them from Jones.
Furthermore, the trial court was correct that the improper statements likely would not affect the outcome of the trial. Although the evidence in this case leaves open the physical possibility that Jones, not Fuentes, committed the assault in this case, there was no affirmative evidence admitted at trial that Jones was the perpetrator. In contrast, both Jones and Rucker testified that Fuentes committed the act, and the jury was entitled to find their testimony credible. Additional witnesses corroborated Jones' and Rucker's credibility. The investigating officers found Jones to be cooperative, concerned for Rucker's health, and insistent that they find Fuentes. And Delina testified that the relationship between Jones and Rucker was healthy. Finally, Fuentes' DNA on the cigarette placed him at the scene reasonably close to the time of the incident. Taken together, the evidence against Fuentes was strong, and the improper statements likely did not affect the jury's verdict.
Likewise, the instruction to disregard the reference that Fuentes had spent time in jail could have cured any prejudice caused by that improper statement. As in Condon, the ambiguous reference that Fuentes spent time in jail does not prove that he was convicted of any crime, let alone a crime similar to the one in this case. In addition, the jury also heard testimony that Jones had spent time in jail. To the extent that the outcome of the trial depended on the respective credibility of Jones and Fuentes, both of whom the jury learned had spent time in jail, the comment about Fuentes' time in jail likely did not affect the verdict.
See 72 Wn. App. at 649.
Fuentes claims that State v. Miles addresses whether a curative instruction can erase the prejudice caused by testimony about an "unrelated crime." But in fact, the improper testimony in Miles was of the same type of crime as the charged crime. The court reasoned,
73 Wn.2d 67, 436 P.2d 198 (1968).
This testimony was calculated to and undoubtedly did implant in the minds of the jury the idea that the defendants had committed other robberies of this type and were therefore most likely to have committed the one charged.
73 Wn.2d at 70 (emphasis added).
Miles is distinguishable from this case. While serious, the improper rape allegation here was of a different type of crime than the charged crime of assault and was correspondingly less prejudicial.
Fuentes further argues that Jones' testimony at trial was not credible, making the evidence in this case weak. He is correct that his counsel impeached Jones' testimony on several occasions. But as mentioned above, most of the inconsistencies related to minor details. For example, Fuentes correctly states that Jones' testimony that he was never handcuffed is repudiated by officers' testimony that they handcuffed him. The jury was entitled to believe that the inconsistent statements merely established that his memory was faulty, not that he lied about the assault on Rucker.
ADDITIONAL GROUNDS FOR REVIEW
Fuentes filed a pro se Statement of Additional Grounds for Review raising several additional issues. We conclude that none of them requires reversal.
Fuentes alleges numerous errors by his counsel that he claims constitute ineffective assistance of counsel. Most of these alleged errors involve strategic decisions by his counsel, such as the decision whether to object to testimony, which cannot constitute deficient performance for purposes of an ineffective assistance claim except under egregious circumstances. Other alleged errors, such as Fuentes' request for a psychological evaluation, are not supported by the record. Fuentes has not explained how any of these alleged errors prejudiced his trial. Therefore, he has not established that ineffective assistance of counsel denied him a fair trial.
See State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
See State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (To succeed on a claim of ineffective assistance of counsel, a defendant must show that the deficient performance resulted in prejudice that, with reasonable probability, affected the outcome of the trial.).
Next, Fuentes argues that a jury instruction left no possibility for a hung jury because it required each juror to agree. His argument is defied by the plain language of that jury instruction, which also stated, "If you cannot agree on a verdict, do not fill in the blank provided. . . ."
Fuentes next argues that his counsel never moved to strike the testimony of the improper rape allegation. But the error, if any, was harmless because the court immediately instructed the jury to disregard the statement.
Fuentes contends that certain of Jones' prior convictions should have been admissible for impeachment purposes and that his history of domestic violence toward women should have been ruled admissible "to prove his violence toward women." Under ER 404(b), such prior bad acts are never admissible to prove a witness' propensity to commit crimes. And there is nothing in the record to support his argument that the trial court erred. Rather, the trial court ruled that prior convictions for crimes of dishonesty would be admitted under ER 609 if offered for purposes of impeachment.
Fuentes further argues that Jones' allegation that Fuentes attempted to stab him with the knife at the time of the assault against Rucker violated ER 404(b). Fuentes did not object to this evidence at trial. Nevertheless, Jones' allegation, which he later recanted, was relevant under the res gestae exception to complete the story of the crime by explaining its immediate context.
See State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980), aff'd, 96 Wn.2d 591, 637 P.2d 961 (1981).
Finally, Fuentes makes two arguments — one regarding his standard range sentence and one regarding his transcribed threat of two persons in the courtroom during sentencing proceedings — that are unsupported by specific legal argument or facts from the record. We are therefore unable to review them.
See RAP 10.10(c).
We affirm the judgment and sentence.