Opinion
No. 30081-8-II, Consolidated with No. 30083-4-II
Filed: January 11, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-03133-3. Judgment or order under review. Date filed: 03/07/2003. Judge signing: Hon. Frederick Fleming.
Counsel for Appellant(s), Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Miry Kim, Pierce Co Pros Attorney 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Jose Ramirez-Garcia and Nickalus Gonzalez appeal their convictions of four counts of first degree attempted murder, arguing prosecutorial misconduct and insufficient evidence. We hold that sufficient evidence supported the convictions on all counts, but that the prosecutor committed misconduct, requiring reversal and a new trial.
Ramirez-Garcia and Gonzalez raise other errors that, in light of our reversal, we do not address.
FACTS
The State charged Ramirez-Garcia and Gonzalez with four counts of attempted first degree murder for firing a weapon at a car occupied by Linda Thompson, Anthony Gillis, Vanessa Rawlings, and Jacob McCrady. Several days before the May 27, 2002 shooting, Rawlings had stolen a quantity of methamphetamine from Ramirez-Garcia. Although she later attempted to return the drugs, Ramirez-Garcia threatened to kill Rawlings and her family.
The State charged and the trial court instructed that each defendant acted either as a principal or an accomplice.
On the day of the shooting, Rawlings received a telephone call from a friend who asked Rawlings to meet him at a casino parking lot. In response, Rawlings, Thompson, Gillis, and McCrady drove to the casino.
When the four arrived, Ramirez-Garcia and Gonzalez, who had arrived a few minutes earlier, ran toward the car. Accounts varied as to what happened next, but someone fired one to two shots at the car. Gillis, who also had a handgun, came out of the car and fired at Ramirez-Garcia and Gonzalez, at which point Ramirez-Garcia and Gonzalez fled. At trial, McCrady testified that he feared both Ramirez-Garcia and Gonzalez because they were members of the `Mexican mafia.' 6 Report of Proceedings at 492. During the State's closing argument, the prosecutor commented on this testimony. The defense did not object.
A gas station clerk testified that she heard two shots and saw someone shooting at the driver side door, but the clerk could not identify who fired the shots. The casino and an adjacent gas station surveillance cameras captured some of the incident. The tapes show up to five men moving about the parking lot and around the car as it sat in the parking lot.
Rawlings testified that one of the two men running toward the car had something in his hand which appeared to be a gun. Gillis claimed to have seen one of the men run up to the car after the first shot, point the gun at the driver's head from approximately five feet away and fire, but McGrady reported no such thing. McGrady was not certain whether any shots were fired prior to Gillis getting out of the car and did not know whether Gillis or the men approaching had shot first. There was also disagreement about the number of shots actually fired: Gillis heard three gunshots, Rawlings heard no gunshots, Thompson heard gunshots but did not say how many. The police found no ballistic evidence, such as casings or bullets, and the gun the assailants used was never recovered.
The jury convicted both Ramirez-Garcia and Gonzalez and they appeal.
ANALYSIS Prosecutorial Misconduct
Ramirez-Garcia and Gonzalez first contend that the prosecutor improperly elicited testimony from McCrady and emphasized to the jury in closing argument that both Ramirez-Garcia and Gonzalez could be members of the Mexican mafia. They assert that the misconduct justifies a new trial.
To prevail on a prosecutorial misconduct claim, a defendant must establish improper conduct resulting in prejudice. State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995). Prejudice occurs when there is a substantial likelihood the misconduct affected the jury's verdict. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997) (citing State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995)). We do not reverse if the error could have been obviated by a curative instruction that the defense did not request. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
Here, the prosecutor asked McCrady whether he was concerned about being involved with Rawlings, Thompson, and Gillis. He replied: `Yeah. . . . Because they were robbing people that you don't mess with, I guess. . . . I heard Mexican mafia.' 6 RP at 491-92. The prosecutor then emphasized this answer by arguing: `You will all remember the testimony of Jacob. Jacob told you that he wasn't at all happy about being involved with people who were being tracked down by Mexican mafia, as he described.' 7 RP at 540.
Other than McCrady's comment, no evidence at trial indicated that the incidents described related to organized crime and the State improperly referred to it. As such, the State injected into argument a new and prejudicial issue, which an objection and instruction would not have cured. The references to the Mexican mafia were improper and prejudicial and necessitate a new trial.
Moreover, the fact that the witness first made a racial reference does not give the State free license to repeat the racial epithet.
Sufficiency of Evidence
Ramirez-Garcia and Gonzalez also contend that insufficient evidence supports their convictions on counts II (Linda Thompson), III (Anthony Gillis), and IV (Jacob McCrady) of first degree attempted murder. They assert that the State failed to establish that they formed a premeditated intent to murder Thompson, Gillis, and McCrady, and that these convictions must be reversed and dismissed.
Although we reverse and remand for a new trial, we address this argument because if the evidence is insufficient, the remedy is reversal and dismissal. State v. DeVries, 149 Wn.2d 842, 853, 72 P.3d 748 (2003) ('A defendant whose conviction has been reversed due to insufficient evidence cannot be retried.') (citing State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205 (1982)).
When a defendant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A challenge to the sufficiency of the evidence admits the truth of the State's evidence and any reasonable inferences from it. State v. Gear, 30 Wn. App. 307, 310, 633 P.2d 930 (citing State v. Holbrook, 66 Wn.2d 278, 401 P.2d 971 (1965)), review denied, 96 Wn.2d 1021 (1981). We consider circumstantial and direct evidence equally reliable, and we do not review credibility determinations on appeal. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980); State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To prove first degree attempted murder of Thompson, Gillis, and McCrady, the State had to establish that Ramirez-Garcia and Gonzalez formed premeditated intent to cause the death of these victims and took a substantial step toward committing the crimes. State v. Price, 103 Wn. App. 845, 851, 14 P.3d 841 (2000), review denied, 143 Wn.2d 1014 (2001); RCW 9A.32.030; RCW 9A.28.020(1). Premeditation is the deliberate formation of and reflection upon the intent to take a human life and involves the mental process of thinking beforehand, deliberation, reflection, weighing, or reasoning for a period of time, however short. State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995) (citations omitted).
We begin by noting that Ramirez-Garcia and Gonzalez do not raise this argument with respect to count I, the attempted murder of Rawlings. Thus, the facts here are similar to those in Price, where the defendant fired one shot into a car containing two victims. 103 Wn. App. 845. In Price, we affirmed the conviction of two counts where the evidence established that the defendant fired one shot and where the defendant did not dispute that he possessed the requisite intent to kill one of the car's two occupants. 103 Wn. App. at 853-4. Here, as in Price, Ramirez-Garcia and Gonzalez do not dispute the requisite intent as to Rawlings. And, as in Price, they need not have fired more than one bullet to attempt to kill more than one victim. Ramirez-Garcia's and Gonzalez's arguments that insufficient evidence supports their convictions fail.
Based on prosecutorial misconduct, we reverse and remand for a new trial.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.