Opinion
No. 37120-1-II.
October 13, 2009.
Appeal from the Superior Court, Lewis County, No. 07-1-00543-3, Nelson E. Hunt, J., entered December 17, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Korsmo, J.
Guadalupe Solis-Diaz, Jr. appeals his convictions for six counts of first degree assault, one count of drive by shooting, and one count of second degree unlawful possession of a firearm. Solis-Diaz argues that the trial court erred by (1) excluding expert testimony on heuristic reasoning, (2) limiting cross-examination of a witness on an unrelated plea agreement, (3) permitting the State to question a witness about who was present in the courtroom during trial, and (4) denying his motion in limine to exclude all evidence of gang affiliation. Solis-Diaz further argues that he received ineffective assistance of counsel. Because his claims are without merit, we affirm the trial court.
FACTS
Late in the evening of August 10, 2007, or early in the morning of August 11, 2007, Jesse Dow went to a Shell gasoline station in Centralia, Washington, to purchase some cigarettes. His friend, Shenna Fisco, was with him in the car. As they were about to leave the gas station, a car pulled up with two men inside. Dow recognized the driver of the car by his street name, Pollo. The men got out of the car and appeared to grab something out of the trunk of their car. Dow did not know what they were grabbing, but he "assumed they were grabbing weapons or something." 1 Report of Proceedings (RP) at 46. At the time, Dow did not recognize the passenger in the car. Fisco "freaked out" when the men appeared to grab something from the trunk of the car. 1 RP at 42. Dow calmed Fisco down and told her to drive back to the Tower Tavern, the bar they had recently left to get cigarettes.
In court, Dow identified the passenger of the car as Solis-Diaz.
Dow told Fisco to go inside the tavern and said that he would stay outside to "take care of" the situation. 1 RP at 46. The car that was at the Shell station approached the bar slowly with the passenger window partially rolled down. As it passed, the passenger in the car stuck a gun out the window and fired seven shots at the people standing in front of the bar. No one was injured and the car sped away.
Officer Rubin Ramirez arrived at the Tower Tavern just after the shots were fired. After receiving a description of the car — a white "Monte Carlo" type car — Ramirez searched the area but he could not locate the car. 3 RP at 34. Ramirez returned to the tavern where he marked and identified bullet holes and casings. On August 13, Ramirez contacted Dow with a photo montage to see if he could identify the two people involved in the shooting. Dow immediately recognized and identified "Pollo" Velasquez as the car's driver. 3 RP at 40. Dow did not identify the passenger from the montage.
Fisco also identified Velasquez as the driver from a photo montage. She reluctantly identified a second man as the passenger and shooter, but at trial she testified that she never told the police that she was "100 percent sure." 2 RP at 25.
Several days later, Officer Mary Humphrey, Sergeant Patrick Fitzgerald, and Detective Carl Buster reviewed the surveillance video from the Shell station. Two of the officers recognized the passenger as Solis-Diaz. After making the initial identification, the officers contacted Solis-Diaz's probation officer, Jennifer Helm. Helm viewed the video and volunteered that the passenger was Solis-Diaz. Based on this identification, Buster created a new photo montage to show Dow and Fisco. From this photo montage, Fisco identified Solis-Diaz as the shooter.
Responding to a call for aid, Buster assisted Fitzgerald pull over a vehicle matching the description of the car used for the shooting. Solis-Diaz was not in the car, but the officers impounded and searched it. In the car, they found a recoil spring from a handgun and a newspaper clipping about the shooting. Later that day, Dow identified Solis-Diaz as the shooter from a photo montage.
Police then arrested Solis-Diaz. Buster read Solis-Diaz his Miranda warnings and then questioned him about the shooting. Solis-Diaz was "very calm" throughout the interview. 4 RP at 3. He "yawned a lot" and seemed "disinterested in being there." 4 RP at 3. Buster showed Solis-Diaz a photo from the Shell station video that showed Velasquez standing next to Solis-Diaz, who was carrying a gun. Solis-Diaz did not react to the photo. Solis-Diaz later said that he did not shoot at Dow. When asked if Fisco or the other witnesses needed to be careful for fear of retaliation for talking with the police, Solis-Diaz responded, "No, [h]ell, no, no." 4 RP at 23. Solis-Diaz did not admit to being the shooter but some of his responses to questions suggested that he was involved in some way. After the interview, Solis-Diaz told Buster that if he gave him a couple of days, he could locate the gun.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
When asked by Buster if he had a message for those shot at, Solis-Diaz responded, "Sorry." 4 RP at 22. Solis-Diaz had previously commented that the people standing in front of the tavern that night were innocent, so Buster followed up by asking Solis-Diaz if he wanted those people to know that "they're innocent and that you're sorry." 4 RP at 23. Solis-Diaz responded, "Yeah, for them, I know, nobody's fault." 4 RP at 23.
On August 20, 2007, the State charged Solis-Diaz with six counts of first degree assault, one count of drive by shooting, and one count of second degree unlawful possession of a firearm.
In violation of RCW 9A.36.011(1)(a), RCW 9A.36.045(1), and RCW 9.41.040(2)(a)(iii), respectively.
Over the course of a five day trial, the State produced numerous witnesses, including Dow, Fisco, Buster, Ramirez, Helm, other police officers, and numerous other people who witnessed the shooting at the Tower Tavern. Dow and Fisco positively identified Solis-Diaz as the shooter and several other witnesses discussed Solis-Diaz's connection to the LVL gang. Dow explained that the only reason he could think of for the shooting was retaliation against him for an argument he had with another LVL gang member, Josh Rhodes. Dow was not specific but could not think of any other reason why someone would shoot at him.
Solis-Diaz called several witnesses as well, including his half-sister Stephanie Dan-Lopez, who told the jury that she had been with Solis-Diaz on the night of the shooting. On cross and redirect, Dan-Lopez testified that she, Solis-Diaz and her boyfriend watched a movie together on Saturday evening, August 11. However, the shooting occurred the night before, late in the evening of August 10 or early on Saturday morning, August 11.
Solis-Diaz's mother, Elizabeth Dan, also testified on his behalf. Dan testified that she had gone out drinking on August 10 and returned home about one o'clock the next morning. She stated that Solis-Diaz was there when she got home that night and that he stayed home with her the rest of the night. On cross-examination, Dan testified that she was sure she had been out on Saturday night, which was August 11, not August 10.
Solis-Diaz called an expert witness, Robert Apgood, who testified that the video from the gas station was of "poor quality," making it difficult to identify people from facial features. 5 RP at 100. Apgood testified, however, that "if [one were] familiar with the mannerisms of an individual," such as physical posture, one could positively identify someone from the video. 5 RP at 106.
The jury convicted Solis-Diaz on all counts and the trial court sentenced him to 1,111 months in prison. Solis-Diaz now appeals.
ANALYSIS
I. Expert Testimony
On the morning of the fifth day of trial, the State learned that in addition to discussing the video tape quality, the defense intended to have expert witness Apgood also testify about "heuristic reasoning." 5 RP at 69. Heuristic reasoning, as explained to the trial court, is a theory that "when the brain sees something and something is missing, [the brain] automatically fills it in." 5 RP at 69. Defense counsel confirmed that though the State had an opportunity to speak with Apgood before trial, Apgood had not filed a report, and Apgood's curriculum vitae had not been provided to the State until that morning. The trial court allowed Apgood to testify to everything except heuristic reasoning.
It appears from the record that the State tried to contact Apgood before trial, but no one answered the phone, and the State did not leave a contact number.
Solis-Diaz argues that the trial court lacked authority to exclude the heuristic reasoning testimony as a discovery violation. The State responds that, though suppression of testimony should be a last resort for discovery violations, the trial court did have authority to suppress the testimony and that it did so properly. We agree with the State.
CrR 4.7(h)(7)(i) permits the superior court to exclude a defense witness whose identity was not timely disclosed to the State. See State v. Hutchinson, 135 Wn.2d 863, 881-83, 959 P.2d 1061 (1998). Before using exclusion as a sanction for a CrR 4.7 violation, the trial court must consider: (1) the effectiveness of less severe sanctions; (2) the impact of witness preclusion on the evidence at trial and the outcome of the case; (3) the extent to which the witness's testimony will surprise or prejudice the State; and (4) whether the violation was willful or in bad faith. Hutchinson, 135 Wn.2d at 882-83. We review the trial court's decision for an abuse of discretion. See Hutchinson, 135 Wn.2d at 882. A trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or when untenable reasons support the decision. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The trial court prohibited testimony on heuristic reasoning because Solis-Diaz had not informed the State of the nature of the expert testimony until the morning of the fifth day of trial.
The trial court stated:
This is an area that is just ripe for cross examination. To say, okay, he's going to come into court one day and testify on heuristic reasoning and how it applies to several police officers . . . who view a video which allegedly has the defendant in it. It's not something we hoist off on the [S]tate and say, Okay, do what you can with it on a moment's notice. I'm not going to allow that testimony. The rest of it you can go ahead with, but the heuristic reasoning part of that,
no.
. . . .
[Y]ou didn't provide any notice of [the heuristic reasoning testimony]. I wouldn't have known that unless you had told me. How is [the State] supposed to know that? Does he just guess?
. . . .
[I]n an expert situation if you have a report done you're supposed to disclose not only the report, if there is one done, but also the areas in which the expert is going to be testifying. You don't wait until the day of trial and either hope no one has found out about it or spring it on the [S]tate in this fashion.
5 RP 71-73.
We apply the Hutchinson factors. First, the trial court considered the less severe alternative of allowing the defense to provide an offer of proof but it decided that was inappropriate as it would delay the trial by one day. It does not appear that the trial court considered any other alternatives. Second, it is unclear whether the testimony would have had an impact on the case. It is possible that the testimony would have influenced the jury's reasoning. However, it is unlikely that the trial court would have permitted the testimony in any event. The trial court questioned whether the witness's theory would have passed the Frye test, and, even if it did, the trial court had not yet ascertained whether the witness was even qualified to testify on the subject.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The State noted at trial that it did not appear from Apgood's curriculum vitae that he "had any type of training related to [heuristic reasoning]. All his training seems to be either legal or computer based. I think this would be a mental process, so I think it is outside of his area of expertise." 5 RP at 69.
Next, there is no question that the trial court considered whether the testimony surprised and prejudiced the prosecution. From the record, it is clear the trial court thought the prosecution would be prejudiced if the testimony were allowed to proceed. Finally, the trial court did not make a finding that the defense concealed the testimony in bad faith, but the record shows that the trial court thought that the defense certainly should have notified the prosecution — and the trial court — of its intent to offer testimony on heuristic reasoning well before the fifth day of trial.
Given that the trial court considered all four factors discussed in Hutchinson, and that its decision is both reasonable and based on tenable grounds, the trial court did not abuse its discretion in excluding the testimony.
II. Plea Agreement Questioning
Solis-Diaz claims that the trial court abused its discretion by not allowing him to cross examine one of the shooting witnesses, Sean Thomas, on the details of his plea bargain in another case. The State responds that because the plea bargain was on an unrelated matter, it had no effect on Solis-Diaz's case, and the trial court ruled properly. We agree with the State.
Cross examination should generally be limited to the subject matter of the direct examination and to the witness's credibility. In re Det. of Duncan, 142 Wn. App. 97, 107, 174 P.3d 136 (2007) (citing ER 611(b)). The evidence a party seeks to admit to show bias, ill will, interest, or corruption must be specific enough to be free from vagueness. State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 (1965). A trial court properly excludes evidence that only vaguely tends to show bias in an indefinite or speculative way. See Jones, 67 Wn.2d at 512.
Solis-Diaz provided no evidence to the trial court that the plea agreement Thomas received, related to a separate crime, had any role on Thomas's willingness to testify in this case. The prosecuting attorney argued that the plea agreement was unrelated and that no deal had been made in exchange for Thomas's testimony against Solis-Diaz.
Given the information presented to the trial court and the lack of any contrary allegations, the trial court did not abuse its discretion by prohibiting questions about the plea agreement.
III. Questions About Courtroom Spectators
During Dow's direct examination, the State asked him if certain people were in the courtroom. Solis-Diaz argues that by allowing the State to ask Dow if certain people were in the courtroom, the State led the jury to improperly infer that those individuals were connected to the defendant in a negative way. In briefing, Solis-Diaz asks whether the "'evidence' of the alleged gang members['] presence in [the] courtroom was relevant, when there was no attempt to make a showing that they were connected to the shooting . . . and no attempt was made to show that the Defendant had anything to do with their being there." Appellant's Br. at 30. Further, Solis-Diaz argues that allowing the questions "violated ER 403 [because] the evidence went to character and there was no attempt made to show why those people were [in the courtroom]." Appellant's Br. at 31. We affirm the trial court's ruling on the objection.
The admission or exclusion of evidence lies within the trial court's discretion which we will not disturb absent a showing of an abuse of discretion. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). After reviewing the record, it is unclear exactly what the State was trying to elicit by asking Dow if certain people were in the courtroom. Dow was able to identify two people but he was unable to say definitively whether they were part of the LVL gang. Further, when asked if he had seen Solis-Diaz "hanging out" with any of the men he had been asked to identify, Dow responded "No" each time. 1 RP at 51. When the State asked whether Dow knew if Solis-Diaz was associated with the LVL gang, he responded, "I don't know for sure." 1 RP at 49. If the State intended to show the jury that the men in the courtroom were gang members, or that Solis-Diaz was in a gang or associated with the men in the back of the room, it did not succeed. Dow's responses were equivocal at best. In fact, Dow's responses to the State's questioning conform with what Solis-Diaz contends in his briefing: "There is nothing to show that [Solis-Diaz] had anything to do with the alleged gang." Appellant's Br. at 31.
Specifically, when asked if these men were associated with the LVL gang, Dow responded, "[a]s far as I know. . . . I mean, I have no clue why else we would be getting shot at down there." 1 RP at 51.
Under these circumstances, it is difficult to see how Solis-Diaz was actually prejudiced. If nothing else, the jury heard information that there were people in the courtroom who may have been in a gang and who the witness had not seen "hanging out" with Solis-Diaz. 1 RP at 51. Because there appears to be no prejudice from the questioning, we find that the trial court did not abuse its discretion by permitting the questions.
IV. Gang Affiliation
Solis-Diaz next argues that the trial court erred by denying his motion in limine to suppress all evidence of Solis-Diaz's alleged LVL gang affiliation because there was no offer of proof of what the evidence would be, and thus, no way for the trial court to review that evidence taking into account ER 403 or ER 404(b). The State argues that the trial court's ruling was proper because the gang evidence was relevant to prove Solis-Diaz's motive and intent.
We review a trial court's ER 403 and ER 404(b) rulings for abuse of discretion. State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994); State v. Campbell, 78 Wn. App. 813, 821, 901 P.2d 1050 (1995). When the motion was heard, the trial court did not ask for an offer of proof. The trial court stated that because the State's case theory was that the motive for the shooting was retaliation, gang evidence could by admitted as an exception under ER 404(b). The court stated that the evidence's prejudicial value was "outweighed to a substantial extent by [its] probative value." 1 RP at 13. The trial court told defense counsel that "if you want me to review it, I can do that if at a later date something changes." 1 RP at 13.
From the record, it appears that most preliminary matters were discussed, in detail, in chambers and then put onto the record once the trial began. Thus, discussion on the record of this issue is limited.
Solis-Diaz, citing Campbell, 78 Wn. App. 813, acknowledges that the trial court can admit evidence of gang membership where that evidence indicates motive. As noted in State v. Boot, evidence of a defendant's gang membership may be relevant to show motive and premeditation. See 89 Wn. App. 780, 789, 950 P.2d 964 (1998). In Boot, the trial court admitted evidence of the defendant's gang affiliation as more probative than prejudicial because it showed the context in which the murder was committed and it demonstrated that the defendant had a deliberate intent to kill the victim. 89 Wn. App. at 789-90. However, evidence of gang membership lacks probative value "when it proves nothing more than a defendant's abstract beliefs." Campbell, 78 Wn. App. at 822 (citing Dawson v. Delaware, 503 U.S. 159, 164-67, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992)).
In Campbell, the trial court permitted evidence of gang membership because "there was a nexus between gang culture, gang activity, gang affiliation, drugs, and the homicides" at issue. 78 Wn. App. at 818. We affirmed the trial court's decision to admit the evidence because the "fact that Campbell was a member of a gang and a drug dealer provided the basis for the State's theory of the case. . . . The challenged evidence clearly was highly probative of the State's theory — that Campbell was a gang member who responded with violence to challenges to his status and to invasions of his drug sales territory." Campbell, 78 Wn. App. at 821-22.
In this case, as Solis-Diaz notes, there were two possible motives put forward for the shooting: (1) "revenge for an altercation with Mr. Dow," and (2) "the temerity of Mr. Dow wearing a blue bandana." Appellant's Br. at 34. As the State points out, while it could have still "prove[d] that Solis-Diaz was the person who leaned out the car window and fired the bullets, the crime simply did not make sense without the gang connection." Resp't's Br. at 23.
The trial court did not abuse its discretion by denying Solis-Diaz's motion in limine. Given the information that the trial court had at the time, it was not an abuse of discretion to permit the gang evidence where it was highly probative of the State's case theory and where it gave context to the crimes. The trial court left the door open for Solis-Diaz to renew his objection or to revisit the issue where the circumstances warranted.
We note that Solis-Diaz's own attorney asked Fitzgerald whether his client "actively claimed gang membership." 2 RP at 185. Fitzgerald responded "Yes." 2 RP at 185.
V. Ineffective Assistance of Counsel
Finally, Solis-Diaz claims that his right to effective counsel was violated when his attorney failed to "object to numerous statements containing rumor and hearsay about [Solis-Diaz's] gang involvement, speculation about motive for the shootings, and [for failing] to pin down [Solis-Diaz's] alibi. . . ." Appellant's Br. at 34. Solis-Diaz also argues that his counsel should have challenged the admission of his past criminal record. We disagree.
Solis-Diaz alleges ineffective representation for failure to challenge admission of his criminal record, but he does not mention this issue in the argument that follows. Accordingly, we do not review his claim on this issue.
Washington has adopted the Strickland test to determine whether a defendant had constitutionally sufficient representation. State v. Cienfuegos, 144 Wn.2d 222, 226, 25 P.3d 1011 (2001). The defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced him. Cienfuegos, 144 Wn.2d at 226-27 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In other words, Solis-Diaz bears the burden of showing that, but for the ineffective assistance, there is a reasonable probability that the trial outcome would have differed. Cienfuegos, 144 Wn.2d at 227 (citing Strickland, 466 U.S. at 694). The benchmark for judging ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Deficient performance is not shown by matters that go to trial strategy or tactics. Cienfuegos, 144 Wn.2d at 227. Courts maintain a strong presumption that counsel's representation was effective. See State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). Though Solis-Diaz makes general allegations about his attorney, he makes no specific cites to the record. Instead he makes general assertions of error.
See RAP 10.3(a)(6): "The brief of the appellant or petitioner should contain . . . [t]he argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record." RAP 10.4(f) states that references to the record should "designate the page and part of the record."
Solis-Diaz argues that his attorney should have objected to testimony regarding his gang involvement, because those statements contained "rumor and hearsay." Appellant's Br. at 34. He also argues that his attorney should have objected to witnesses discussing the possible motive for the shooting, witness statements that Solis-Diaz was likely doing a "worker bee's" job, and other testimony. Appellant's Br. at 37-38. Solis-Diaz mentions these alleged errors, but he does not cite to the record. Regardless, defense counsel's decisions about whether to object are generally considered trial tactics and cannot generally be a basis for an ineffective assistance of counsel claim. State v. Neidigh, 78 Wn. App. 71, 77, 895 P.2d 423 (1995). Further, trial counsel's decisions concerning methods of examining witnesses are trial tactics. See Hendrickson, 129 Wn.2d at 77-78. In hindsight, it is easy to look back at what Solis-Diaz's trial attorney could have done differently. That does not mean that Solis-Diaz received ineffective representation.
When the claim is based on counsel's failure to challenge the admission of evidence, the defendant must show (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct, (2) that the objection to the evidence would likely have been sustained, and (3) that the result of the trial would have differed had the evidence not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). Solis-Diaz merely lists his grievances. Our review of the record shows that defense counsel's case theory was that, given the poor quality of the video and varying accounts of the shooting, there was reasonable doubt as to whether Solis-Diaz fired the shots. Gang membership did not affect this argument.
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.
VAN DEREN, C.J. and KORSMO, J., Concur.