Opinion
No. 23899-7-III.
October 5, 2006.
Appeal from a judgment of the Superior Court for Grant County, No. 04-1-00075-3, Kenneth L. Jorgensen, J., entered February 8, 2005.
Counsel for Appellant(s), Maurina A Ladich, Attorney at Law, 1110 W 2nd Ave, Pmb 80, Spokane, WA, 99201.
Counsel for Respondent(s), John Dietrich Knodell III, Attorney at Law, Pros Atty Grant Co Crthse, Po Box 37, Ephrata, WA, 98823-0037.
Affirmed by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Kato, J.
Marco Garnica was convicted of attempted first degree kidnapping with sexual motivation, attempted second degree rape, and second degree assault. He received a life sentence without the possibility of parole under RCW 9.94A.570 as a persistent offender. On appeal, he alleges prosecutorial misconduct, ineffective assistance of counsel, and error in denying his request for a mistrial. Finally, Mr. Garnica asserts his due process and jury rights under Blakely were violated when the trial court found that he was a persistent offender and sentenced him to life in prison. We reject Mr. Garnica's assertions of error and therefore affirm his conviction and sentence.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed 2d 403 (2004).
FACTS
On the evening of July 11, 2003, Marco Garnica went to the home of V.R., who was 15 years old at the time. V.R. was acquainted with Mr. Garnica because he was friends with V.R.'s brother. Mr. Garnica knocked on the door and V.R. answered. Mr. Garnica asked V.R. to go with him to a party, but she refused.
When V.R. turned to go back into her house, Mr. Garnica grabbed her from behind by the neck. Mr. Garnica began pulling V.R. toward his car. V.R. testified that Mr. Garnica punched her repeatedly in the face and attempted to rip her clothing off. V.R. also testified that Mr. Garnica eventually took her bra off and grabbed her breasts.
V.R. fled back to her house and sought help from her brother Tomas. V.R. looked very frightened and was bleeding profusely. She told her brother that "Marcos" had tried to kidnap her and had attacked her. Report of Proceedings (RP) (October 20, 2004) at 96. Tomas contacted the police and V.R. was taken to the hospital.
The treating physician noted that V.R. had swelling and bruising on her face and a deep laceration on her nose. She also had a broken nose. V.R. eventually had surgery to repair her broken nose. The attack also left V.R. with scars along her arms.
At the hospital, law enforcement presented a photo lineup to V.R. that included Mr. Garnica. V.R. immediately identified Mr. Garnica as her attacker.
Mr. Garnica was charged with attempted first degree kidnapping with sexual motivation, attempted second degree rape, and second degree assault.
During opening remarks at trial, the prosecutor described Mr. Garnica as a "violent sexual predator." RP (October 20, 2004) at 36. The prosecutor went on to describe the attempted kidnapping, assault, and attempted rape of V.R. by Mr. Garnica. The prosecutor stated that Mr. Garnica grabbed V.R. from behind by the neck, dragged her toward his car, and then he "savagely beat" and attempted to rape her. RP (October 20, 2004) at 37. Mr. Garnica made no objection to the prosecutor's remarks during opening statement. However, he moved the court for a mistrial the next morning based on prosecutorial misconduct. Mr. Garnica claimed that the prosecution's use of the term "violent sexual predator" impermissibly suggested that Mr. Garnica "had a criminal history for violent sexual offenses." RP (October 21, 2004) at 4. The trial court denied this motion.
During the trial, one of V.R.'s cousins testified that Mr. Garnica admitted that he had hit and kicked V.R., but Mr. Garnica denied that he attempted to rape or abduct her. The witness then testified that Mr. Garnica's admission occurred while the two were incarcerated together. Mr. Garnica objected to this testimony as prior bad acts testimony, but the trial court overruled this objection. Mr. Garnica provided similar testimony at trial. He denied any attempted rape or kidnapping, but admitted that he "slapped" V.R. after she spontaneously hit him on the chin. RP (October 21, 2004) at 218.
Mr. Garnica presented a witness, Chris Mathews, who was also incarcerated with Mr. Garnica while he awaited trial. Mr. Mathews testified that he did not notice any hostile interactions between Mr. Garnica and V.R.'s cousin during the time that they were incarcerated together. During cross-examination, the prosecutor attempted to explore Mr. Mathews' bias by asking whether Mr. Garnica was providing Mr. Mathews protection while in jail and whether he felt an obligation toward Mr. Garnica.
During closing arguments, the prosecutor emphasized that the "issues can be summed up in one word, and that word is credibility." RP (October 22, 2004) at 12. He then noted that V.R. had no motivation to make up her accusation against Mr. Garnica. He also noted that V.R.'s testimony was corroborated by other evidence in the case. The prosecutor contrasted this with the arguably inconsistent and illogical nature of Mr. Garnica's version of events that evening.
Mr. Garnica was convicted of all three charges. The State sought a life sentence without the possibility of parole based on Mr. Garnica's status as a persistent offender. Mr. Garnica, through counsel, stipulated to both of the prior offenses that qualified him as a persistent offender. However, he challenged the imposition of a life sentence, arguing that this sentence constituted cruel and unusual punishment in violation of both the state and federal constitutions. The trial court determined that Mr. Garnica was a persistent offender based on his stipulated criminal history and imposed a life sentence without the possibility of parole. This appeal followed.
ANALYSIS Prosecutorial misconduct
"A criminal defendant's right to a fair trial is denied when the prosecutor makes improper comments and there is a substantial likelihood that the comments affected the jury's verdict." State v. Jungers, 125 Wn. App. 895, 901, 106 P.3d 827 (2005). A criminal defendant who alleges prosecutorial misconduct must establish both improper conduct and resulting prejudice. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). This court views the allegedly improper statements in the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. Id.
If the defendant failed to object to the improper statements, any argument for prosecutorial misconduct is waived unless the statements were "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Id. at 578 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). If the resulting prejudice could have been cured by a curative instruction to the jury, and the defendant did not request one, then reversal is not required. Id. Moreover, counsel is permitted latitude to argue the facts in evidence and reasonable inferences therefrom, so long as any statements are supported by the record. Id. at 577.
"The absence of a motion for mistrial at the time of the argument strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Additionally, prosecutors are given wider latitude in the arguments and inferences they are permitted to make from the evidence when their remarks are in response to defense counsel's statements. Id. at 662-63.
Here, Mr. Garnica objects to the prosecution's use of the phrase "violent sexual predator." He asserts that this comment was highly inflammatory, that it likely prejudiced the jury, and that this comment improperly implied that Mr. Garnica had a history of violent sex offenses.
Where a statement is merely "ill conceived rhetoric" that does not use appropriate evidence, such a statement is misconduct on the part of the prosecutor. State v. Rivers, 96 Wn. App. 672, 675-76, 981 P.2d 16 (1999). Mr. Garnica asserts that the court in Rivers established a per se rule that prosecutors may not refer to a criminal defendant as a "predator." This is a misreading of the case. Nothing in Rivers suggests that any use of the term "predator" by a prosecutor will automatically be deemed misconduct.
In Rivers, the use of the term "predator" is not per se misconduct. Similarly here, the prosecutor's comment that Mr. Garnica was a violent sexual predator was an inference from the evidence of his violent assault, attempted abduction, and attempted rape of V.R.
The prosecutor also referenced a witness having served time with Mr. Garnica. But the prosecutor's remarks focused exclusively on the inconsistencies in the witness's testimony and on his bias. "Bias and interest are relevant to the credibility of a witness." State v. Whyde, 30 Wn. App. 162, 166, 632 P.2d 913 (1981). As such, the prosecution was entitled to make arguments on these bases. Furthermore, the prosecutor appeared to take appropriate steps to limit what inferences the jury should draw from the incarceration of Mr. Garnica and Mr. Mathews.
And, Mr. Garnica himself drew the fact of his incarceration with Mr. Mathews to the jury's attention. The prosecution subsequently explored the relationship that Mr. Garnica himself put into evidence.
It is prosecutorial misconduct for a prosecutor to give a personal opinion about the credibility of a witness. State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). It is not misconduct, however, for a prosecutor to make arguments regarding a witness's veracity that are based on inferences from the evidence. Rivers, 96 Wn. App. at 674-75.
The prosecutor in this case did emphasize that the central issues in the case would be determined based on credibility. But he never expressed a personal opinion regarding V.R.'s or Mr. Garnica's credibility. Instead, the prosecutor called upon the jury to examine the relative consistency of V.R.'s testimony and the fact that she had no motive to lie. The prosecutor then contrasted this with the inconsistencies in Mr. Garnica's story and the fact that he would have a motive to lie. The prosecutor was merely arguing inferences from the evidence that would aid the jury in determining which version of events was the most credible. This is not misconduct.
Cumulative error
The cumulative error doctrine applies where "there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). None of the prosecutor's remarks constituted misconduct that would require a new trial. Therefore, because there are not several trial errors in this case, the doctrine of cumulative error does not apply.
Moreover, any cumulative prejudicial effect that might exist based on the prosecutor's remarks was obviated by the court's instructions to the jury. Before opening remarks, the trial court instructed the jury that the opening statements by the attorneys were not themselves arguments or evidence. The trial court again instructed the jury in closing that the attorneys' remarks and arguments were not evidence, and that the jury was to disregard any such remark, statement, or argument that was not supported by the evidence or the law. This court presumes that the jury followed the court's instruction. State v. Howard, 52 Wn. App. 12, 24, 756 P.2d 1324 (1988). There is insufficient basis to support a finding of resulting prejudice from the allegedly improper remarks of the prosecutor.
Ineffective assistance of counsel
Criminal sentences in Washington are governed by the Sentencing Reform Act of 1981. See RCW 9.94A. A criminal sentence varies based upon the defendant's offender score and the seriousness level of the crime. State v. Wiley, 124 Wn.2d 679, 682, 880 P.2d 983 (1994). "The offender score measures a defendant's criminal history." Id. at 683. The State is required to prove a defendant's criminal history by a preponderance of the evidence. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002).
"[I]llegal or erroneous sentences may be challenged for the first time on appeal," regardless of whether defense counsel registered a proper objection before the trial court. State v. Ross, 152 Wn.2d 220, 229, 95 P.3d 1225 (2004) (quoting State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)). However, a sentencing court "may rely on a stipulation or acknowledgment of prior convictions without further proof." In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 873-74, 123 P.3d 456 (2005). A defendant waives the right to challenge an allegedly invalid sentence where the alleged error involves facts that the defendant stipulated to. Id. at 875.
Here, Mr. Garnica, through the representations of counsel, admitted to the two offenses that formed the basis for the imposition of a life sentence as a persistent offender. The trial court was entitled to rely on the stipulation to his criminal history. As such, Mr. Garnica cannot now challenge the inclusion of these offenses in the calculation of his offender score.
However, Mr. Garnica asserts that he received ineffective assistance of counsel in connection with this stipulation. A criminal defendant who alleges ineffective assistance of counsel must show both that counsel's performance was deficient and that this deficiency prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This court engages in a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335. "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." Id. at 336.
In order to be entitled to relief, Mr. Garnica must show this court that, but for the alleged ineffective assistance, there is a reasonable probability that the outcome of his sentencing hearing would have been different. See, e.g., State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001). Mr. Garnica failed to make this showing.
Mr. Garnica fails to allege that, had defense counsel not stipulated to the prior offenses, the State would have been unable to prove them. Mr. Garnica does not assert that these offenses were not, in fact, part of his criminal history. As such, he has not shown how he was prejudiced by his counsel's stipulations to these prior offenses at trial.
Blakely — Persistent Offender Status
Mr. Garnica asserts that the trial court violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed 2d 403 (2004), by imposing a life sentence without possibility of parole under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570. Under the POAA, a sentencing court is required to sentence a persistent offender to a term of confinement for life without the possibility of parole. A "persistent offender" is a person who is currently being sentenced in Washington for any felony considered a "most serious offense," and who has two prior felony convictions that would constitute "most serious offenses." RCW 9.94A.030(32).
The legislature has enumerated which felonies constitute "most serious offenses" at RCW 9.94A.030(28).
As noted in State v. Smith, 150 Wn.2d 135, 141, 75 P.3d 934 (2003), "the United States Supreme Court has never held that recidivism must be pleaded and proved to a jury beyond a reasonable doubt." While the decision in Smith came out prior to Blakely, there is nothing in Blakely that alters the court's power to rely on a defendant's prior conviction when setting a sentence. Because status as a persistent offender is exclusively dependent on facts regarding past convictions, these facts need not be proved to a jury beyond a reasonable doubt. Smith, 150 Wn.2d at 141-43.
Sufficiency of the evidence
Mr. Garnica asserts that there was insufficient evidence to support the jury's verdict of guilt for three offenses: attempted first degree kidnapping with sexual motivation; attempted second degree rape; and second degree assault.
"A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). When a criminal defendant challenges the sufficiency of the evidence, this court will draw all reasonable inferences from the evidence in favor of the state and against the defendant. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). This court will reverse a conviction for insufficient evidence only if no rational trier of fact could find that all of the elements of the crime were proved beyond a reasonable doubt. Id. This court "may infer criminal intent from conduct, and circumstantial evidence as well as direct evidence carries equal weight." State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
Here, drawing all reasonable inferences from the evidence in favor of the State, we find sufficient evidence to support the conviction. A trier of fact could find all elements of the crimes were proved beyond a reasonable doubt.
Mr. Garnica restrained V.R. through the use of force. He grabbed V.R. by the neck and pulled her toward his car while punching her in the face. V.R. testified that Mr. Garnica tried to rip off her clothing and removed her bra. Mr. Garnica grabbed V.R.'s breasts.
It is a reasonable inference from these facts, coupled with the overall violence of Mr. Garnica's attack, that Mr. Garnica intended on engaging in sexual intercourse by forcible compulsion and that his actions constituted a substantial step towards committing second degree rape.
Mr. Garnica correctly points out that he disputed at trial that he caused V.R.'s injuries. However, credibility determinations are for the jury, and this court defers to the jury's determinations on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75. The verdict reflects that the jury found V.R.'s testimony to be more credible. This determination was well within the jury's power to make.
Hearsay evidence
Admission or exclusion of relevant evidence is within the sound discretion of the trial court and the trial court's decision will not be reversed absent a manifest abuse of that discretion. Swan, 114 Wn.2d at 658. As a general rule, hearsay evidence is inadmissible. See ER 802. However, hearsay may be admissible under the rules of evidence, by other court rules, or by statute.
Here, Mr. Garnica complains of two general types of statements: (1) statements made by V.R. to the other people in the house regarding the attack once she fled from Mr. Garnica, and (2) statements that Mr. Garnica made to other people about the alleged assault, attempted kidnapping, and attempted rape. Both types of statements are permissible under the rules of evidence.
V.R.'s statements immediately after escaping from Mr. Garnica were excited utterances. An excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." ER 803(2). Excited utterances are an exception to the prohibition against hearsay. See, e.g., State v. Davis, 154 Wn.2d 291, 297, 111 P.3d 844 (2005). V.R.'s statements clearly fall within this category.
Mr. Garnica's own statements to others are admissible against him as an admission by a party opponent because the statements were Mr. Garnica's admissions offered against him by the State. Admissions by a party opponent are not hearsay. ER 801(d)(2). Therefore, these statements were properly admitted by the trial court.
We affirm Mr. Garnica's convictions and sentence.
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.
SWEENEY, C.J., and KATO, J., concur.