Opinion
No. 59679-9-I.
September 15, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-1-00421-3, George N. Bowden, J., entered February 28, 2007.
Following the death of his infant son, Bernie Venegas was charged with and convicted of second degree intentional murder and homicide by abuse. On appeal, Venegas challenges the trial court's determination that he was competent to stand trial, its ruling denying his request for a bill of particulars on the charge of homicide by abuse, certain evidentiary rulings, and the sufficiency of the evidence to support his convictions.
We reject these contentions but accept the State's concession that Venegas' convictions on both charges violate the prohibition against double jeopardy. Accordingly, we affirm Venegas' conviction for homicide by abuse, vacate his conviction for second degree murder, and remand to the trial court.
FACTS
On the morning of December 15, 2002, paramedics responded to an emergency call involving Venegas' 10-month-old son, L.V. When the aid teams arrived, Venegas was attempting to perform CPR (cardiopulmonary resuscitation) on his son. L.V.'s heart had stopped beating, and he was not breathing. After L.V.'s condition was stabilized, he was transported to a nearby hospital in Everett. While there, L.V. was diagnosed as having a devastating neurological injury from the cardiac arrest and the consequent loss of oxygen to his brain.
L.V. was taken by ambulance to Children's Hospital in Seattle. Later tests revealed that he had recently-fractured bones in his wrist, leg, and ribs. He also had a number of scabs on his fingertips.
Detective Donald Denevers of the Everett Police Department interviewed Venegas on several occasions. In the initial interview, he denied knowing anything about how L.V. stopped breathing. In a taped interview with Detective Denevers on January 21, 2003, however, Venegas admitted feeling guilty about what he had done to L.V. Venegas stated that he covered L.V.'s mouth to stifle his crying and held it there for no more than a few minutes.
The State charged Venegas with assault in the first degree. In February 2003, police discovered Venegas on the floor of his apartment with a knife in his abdomen. He admitted stabbing himself, saying that he had just lost his son and wanted to hurt himself. On March 3, 2003, Venegas was admitted to Fairfax Hospital for a mental health evaluation as a result of the stabbing incident. He was later committed to Western State Hospital for evaluation and treatment. In a forensic evaluation dated June 17, 2003, Drs. Margaret Dean and Indra Finch opined that Venegas was not competent to stand trial and recommended competency restoration treatment. In three reports filed in 2003 and 2004, Dr. Doug Campbell offered the opinion that the restoration efforts had been unsuccessful. Charges against Venegas were dismissed without prejudice.
L.V. died on February 27, 2004. The medical examiner classified the death as a homicide. The State refiled charges against Venegas, charging him with second degree intentional murder and homicide by abuse.
On April 18, 2005, based on a March 25, 2005 evaluation finding Venegas competent, the parties stipulated to Venegas' competency. However, on July 29, 2005, the defense moved for another competency evaluation. The defense request was supported by a report from defense expert, Dr. Kenneth Muscatel. In that report, Dr. Muscatel concluded that Venegas was not competent because he has delusions about the case. Venegas returned to Western State Hospital for further observation and competency restoration treatment.
Based on a report dated October 16, 2006, authored by Dr. Barry Ward, a forensic psychologist at Western State Hospital, the trial court held a competency hearing on November 1, 2006, to determine if Venegas had regained his competency to stand trial. At the hearing, the State presented the reports and testimony of Dr. Ward. Dr. Ward testified that he conducted a number of personal interviews with Venegas, reviewed his other medical records, and reviewed staff reports based on continuous observation. Dr. Ward opined:
That . . . his beliefs regarding [L.V.] are not delusional and . . . that he is capable of rationally looking at the evidence about [L.V.'s] death and rationally planning a defense knowing that the State's going to present substantial evidence that may convince a jury that [L.V.] is dead.
Venegas also took the stand. When asked if he believed L.V. was dead, Venegas replied,
I cannot make the definitive ascertation because of the fact that the body was not in my presence at the time of deceasement [sic].
(Alteration in original.)
Venegas went on to express his willingness to consult with his attorney in order to secure an acquittal. The court also asked Venegas the following question:
If [defense counsel] were to make some recommendations to you of how he thinks he could best represent you at trial, would you give due consideration to any recommendations that he may have?
[VENEGAS]: Oh, that's affirmative, Your Honor.
At the conclusion of the hearing, the court ruled Venegas was competent to stand trial. The court orally explained its decision:
Clearly everyone concedes that [Venegas] understands the nature of the charge and the dynamics of trial and the roles of the participants. On the question of his ability to assist in his defense, one of the things that the defense has relied on in helping to show that his belief system[H22073] precludes his inability to assist with his defense is the belief that [L.V.] is still alive. And my recollection is that Dr. Ward indicated that his opinion was that his beliefs about [L.V.] were not delusional and that he was capable of rationally evaluating the evidence and assisting his in his defense. And, further, that the beliefs that he held with respect to [L.V.] may not be genuine.
As I heard Mr. Venegas, when he was talking about his son, I guess I came to much the same conclusion. His focus wasn't so much that his son was alive and well and being held in a witness protection program, it was that his son had been taken into protective custody and was in foster care, which is, in fact, what the status was when Mr. Venegas last had some contact with his son or direct awareness of that.
What he's been careful to say today is that because he wasn't present when his son died and he hasn't been presented with sufficient, conclusive evidence of his son's death, he's unwilling to concede that point. And that, to me, is a far different position than what's been represented as some wild delusion that his son is in a witness protection program.
. . . .
I won't repeat all of what Dr. Ward said because I think he's spoken much more clearly about the history of the case and I think carefully delineating what conclusions he has with respect to the issue of competency which I will accept and endorse as my findings. But without coming to any definitive diagnosis as to what specifically might be a mental health diagnosis for Mr. Venegas given that those diagnoses have changed from provider to provider and from time to time. I think what I have looked at, which is reasonably significant as it weighs on the issue of competency, are the observations that people have had when he has been on the ward in that his day-to-day functioning appears very normal and, in many ways, atypical of the other mentally ill patients at Western State Hospital.
. . . .
. . . [W]hile I have regard for the opinions expressed by Dr. Muscatel and those who found Mr. Venegas incompetent, those are, nonetheless, opinions that now are quite dated in relation to what is also a contemporaneous issue. Is he competent today for whatever proceedings we are about to undertake? And I do feel, based largely on Dr. Ward's testimony, that on these issues with respect to whether he understands the nature of these proceedings and whether he has the capability of assisting in his defense on these charges, I think he is competent.
Before trial, Venegas filed a request for a bill of particulars on the homicide by abuse charge. He also moved to exclude the testimony of Dr. Naomi Sugar, a child abuse specialist at Children's Hospital, about facts that were "suspicious for abuse." The court denied both the motions.
The jury found Venegas guilty of second degree intentional murder and homicide by abuse. Finding that the two offenses encompassed the same criminal conduct, the trial court used an offender score of zero to impose standard range sentences on Venegas' convictions.
ANALYSIS
Venegas contends that his constitutional rights were violated when the trial court found him competent to stand trial. The Fourteenth Amendment to the United States Constitution and Washington law both prohibit trying an incompetent person. RCW 10.77.050; In re Personal Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001).
"Incompetency" is defined as lacking the "capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect." RCW 10.77.010(14).
Venegas argues only that he was incapable of assisting his attorney, not that he failed to understand the nature of the proceedings against him.
In determining competence, the trial court considers the "`defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel.'" Fleming, 142 Wn.2d at 863 (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302, cert. denied sub nom. Dodd v. Rhay, 387 U.S. 948 (1967)). "Deference is given to the trial court's competency determination because of the court's opportunity to observe the individual's behavior and demeanor." State v. Hicks, 41 Wn. App. 303, 306, 704 P.2d 1206 (1985). We review a competency finding for abuse of discretion. State v. Crenshaw, 27 Wn. App. 326, 330, 617 P.2d 1041 (1980), aff'd, 98 Wn.2d 789, 659 P.2d 488 (1983). Venegas argues that his recurring delusions, including whether L.V. was still alive, made him incapable of the communication necessary to assist in his defense. Because his delusions prevented him from making rational decisions about his case, Venegas argues, he was unable to assist his attorney in preparing a defense. Thus, he argues his convictions must be reversed. We disagree.
Citing Panetti v. Quarterman, __ U.S. __, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007), Venegas argues that the "ability to assist" requirement of the competency determination as stated in State v. Harris, 114 Wn.2d 419, 789 P.2d 60 (1990), is no longer good law. Even if that were so, the outcome of this case would remain unchanged. Venegas' argument would be persuasive only if the court relies on the opinions expressed in psychological evaluations conducted in 2003, 2004, and 2005 and ignores Dr. Ward's more recent evaluation. The trial court's analysis was correct because it was based on his observation of Venegas and his finding that Dr. Ward's analysis was persuasive. The trial court did not abuse its discretion in finding Venegas met the constitutional and statutory requirements of competency.
Venegas next contends that the court erred in refusing to grant his motion for a bill of particulars. Again, we disagree. The function of a bill of particulars is to allow the defense to prepare for trial by providing it with sufficient details about the charge and eliminating surprise. State v. Noltie, 116 Wn.2d 831, 845, 809 P.2d 190 (1991); State v. Peerson, 62 Wn. App. 755, 768-70, 816 P.2d 43 (1991), review denied, 118 Wn.2d 1012 (1992). Furnishing a "bill of particulars is discretionary with the trial court and its ruling will not be disturbed absent a showing of abuse of discretion." Noltie, 116 Wn.2d at 844.
In ruling on a motion for a bill of particulars,
"[T]he test . . . should be whether it is necessary that defendant have the particulars sought in order to prepare his defense and in order that prejudicial surprise will be avoided. . . . If the needed information is in the indictment or information, then no bill of particulars is required. The same result is reached if the government has provided the information called for in some other satisfactory form."
Noltie, 116 Wn.2d at 845 (quoting 1 C. Wright, Federal Practice § 129, at 436-37 (2d ed. 1982)).
The affidavit of probable cause filed in this case described the injuries to L.V. that the State would be relying on to establish the "pattern of abuse." Venegas makes no claim of prejudicial surprise. Nor did the trial court's ruling preclude him from seeking to exclude evidence he considered to be overly prejudicial or irrelevant. There is no showing that Venegas was denied a fair trial based on the court's ruling. We find no abuse of discretion.
Venegas also contends the trial court erroneously permitted Dr. Sugar to express an opinion about whether L.V.'s injuries were the result of Venegas' abuse. Venegas argues that, because Dr. Sugar's testimony was a lay opinion and was not based on her expertise as a medical consultant on child abuse and neglect, the trial court erroneously admitted the opinion testimony. But Venegas is asserting a ground for exclusion different from the one raised at his trial. A party may not raise a new ground for excluding evidence on appeal because the trial court must first be given an opportunity to rule on the objection. See State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983).
Venegas argued at trial that because the State had no expert who could testify that the fractures sustained by L.V. were the result of deliberate abuse, Dr. Sugar's opinion that the injuries were "suspicious for abuse" was too indefinite and should be excluded.
State v. Carpenter, 52 Wn. App. 680, 683, 763 P.2d 455 (1988). The issue has therefore not been preserved for our review. Venegas also contends the court violated his right to confront witnesses when it prohibited him from questioning Dr. Sugar about whether L.V.'s cluster of injuries established a "pattern of abuse." During the cross-examination of Dr. Sugar, the following exchange took place:
Can you, from those two different times of causation, determine that this child had been the victim of a pattern of physical assault?
I mean, is there evidence there to establish that this child had been the victim of an ongoing pattern of physical assault?
MR. BALDOCK: Object. It asks for opinion on ultimate issue, Your Honor.
THE COURT: Sustained.
While a criminal defendant has the right to confront and cross-examine adverse witnesses, this right is not without limitations. State v. Ahlfinger, 50 Wn. App. 466, 474, 749 P.2d 190, review denied, 110 Wn.2d 1035 (1988) ("The Sixth Amendment right to cross-examine witnesses is not absolute but must be applied to advance the accuracy of the truth-determining process in criminal trials."). The trial court's ruling on the scope of cross-examination will not be disturbed absent a manifest abuse of discretion. State v. Dickenson, 48 Wn. App. 457, 466, 740 P.2d 312, review denied, 109 Wn.2d 1001 (1987).
The court's challenged evidentiary ruling did not unduly interfere with Venegas' ability to present a defense. Venegas was clearly able to cross-examine Dr. Sugar on the relevant subject matter. When asked by defense counsel if she could say that there were more than two different times at which L.V. was injured, Dr. Sugar replied, "I cannot." Later, defense counsel asked Dr. Sugar the following questions:
Q Doctor, you've just indicated that each of these specific injuries in constellation most likely indicate physical abuse. Can you say specifically that any one of those injuries was the direct cause of can you say that the rib injuries are the direct result of deliberate physical abuse?
A No, I cannot say that.
Q Can you say the tibia injury is the direct result of deliberate physical abuse?
A No, I cannot.
Q Can you say the wrist injury is a direct result of deliberate physical abuse?
A I cannot if it were in isolation.
Q And with regard to the abrasions to the fingertips, can you say those specifically are the direct result of deliberate physical abuse?
A I cannot.
Q And can you say that this child's loss of oxygen and central nervous system injury was the result of deliberate intentional suffocation?
A I cannot.
The trial court did not abuse its discretion in limiting the scope of cross-examination.
Venegas next challenges the sufficiency of the evidence to convict him of homicide by abuse. The State must prove all elements of the charged crime beyond a reasonable doubt. State v. Aver, 109 Wn.2d 303, 310, 745 P.2d 479 (1987). The test for a challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child and that person has previously engaged in a pattern or practice of assault or torture of that child. RCW 9A.32.055. Venegas argues that the evidence is insufficient to establish that he engaged in a pattern or practice of assault against his son before and separate from the fatal injury. This claim fails.
Here the record contains ample evidence that L.V. suffered a series of injuries over a period of several weeks. Venegas asserts that he and his wife provided innocent explanations for each of the injuries and that no one ever saw him actually hit L.V. But direct evidence and circumstantial evidence are equally reliable. State v. Liden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007). L.V. received multiple fractures of varying ages for which there were not adequate explanations. Dr. Sugar opined that "by far the most likely diagnosis and assessment is that he was subject to physical abuse." Another physician who treated L.V. at Children's Hospital, Dr. David Jardine, testified that he didn't believe the fractures occurred from anything other than nonaccidental trauma. Other witnesses testified that they overheard Venegas threaten L.V. with harm. This evidence was sufficient to establish that Venegas engaged in a pattern or practice of assaulting L.V. shortly before the fatal injury.
Venegas also argues that there is insufficient evidence in the record to establish that he acted with extreme indifference to L.V.'s life. The infant suffered a severe brain injury due to the loss of oxygen. There was testimony that L.V.'s airway would have had to be restricted for more than one minute to have caused his irreparable brain injury. When L.V. stopped struggling, Venegas released him and went back to bed. The evidence was sufficient to find that Venegas acted under circumstances manifesting an extreme indifference to the life of L.V.
Venegas also contends the State failed to present sufficient evidence to support his conviction for second degree intentional murder. This claim fails as well.
A person is guilty of second degree murder as charged in this case when "[w]ith intent to cause the death of another person but without premeditation, he or she causes the death of such person." RCW 9A.32.050(1)(a).
Characterizing the State's evidence of intent to kill as "weak," Venegas argues that "this Court should hold the State did not meet its burden of proving this element, and reverse and dismiss Venegas' conviction for second-degree murder." When the sufficiency of the evidence is challenged in a criminal case, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Venegas points out that he attempted to resuscitate L.V. using CPR. Just because Venegas later regretted his actions and sought to revive L.V. does not mean that he did not act with the requisite intent to kill. He had previously threatened to harm L.V. And he admitted that he put his hand over L.V.'s mouth and one nostril and could see that the other nostril was likely blocked by nasal secretions. Given the time it took for Venegas to suffocate L.V., the jury could reasonably infer that he intended to kill L.V. The State presented sufficient evidence to convict Venegas of second degree murder.
Venegas also contends his convictions for both second degree murder and homicide by abuse violate double jeopardy. We accept the State's concession of error. See State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007) (convictions for homicide by abuse and second degree murder for a single homicide violate double jeopardy). When, as here, alternative theories of liability for an alleged criminal act are presented, there is no double jeopardy concern in allowing the jury to reach separate verdicts based on each theory. State v. Michielli, 132 Wn.2d 229, 238, 937 P.2d 587 (1997); State v. Trujillo, 112 Wn. App. 390, 409-10, 49 P.3d 935 (2002), review denied, 149 Wn.2d 1002 (2003). But to avoid a double jeopardy problem, the judgment and sentence must reflect that the defendant was convicted of only one crime and received only one sentence. State v. Johnson, 113 Wn. App. 482, 488, 54 P.3d 155 (2002), review denied, 149 Wn.2d 1010 (2003). We remand for the trial court to amend the judgment and sentence to reflect a conviction for homicide by abuse.
We reject the State's contention that "[s]ince the court treated the two convictions as the same criminal conduct during sentencing, there is no requirement to remand for re-sentencing." The same criminal conduct determination in this case does not cure the double jeopardy problem. Venegas would still have two separate convictions (arising from a single homicide) on his record.
Venegas also raises several claims in his Statement of Additional Grounds for Review. Venegas claims that the testimony of Enoch Cheung and Angela Bashaw is different from the statements they had given to police. Venegas also complains that the tape recording of the interview he gave to Detective Denevers in January 2003 was partially destroyed and was missing approximately two pages of testimony. Although by no means clear, Venegas appears to argue that this evidence should not have been admitted at his trial. But there was no objection on this ground to the evidence at trial. Any evidentiary error has therefore not been preserved for appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Moreover, in claiming that their recollection of certain events "changed on the witness stand," Venegas appears to question whether Mr. Cheung and Ms. Bashaw are credible witnesses. "Credibility determinations are for the trier of fact and are not subject to appellate review." Liden, 138 Wn. App. at 117.
Venegas also appears to challenge the sufficiency of the evidence. He notes that (1) L.V.'s injuries to his wrist and leg were bracing or compression fractures and (2) a video introduced into evidence at his trial showed that L.V. was alive and moving prior to his death in February 2004. Neither fact is remarkable, however. As previously noted, there was expert testimony that L.V.'s multiple fractures, including the ones to his wrist and leg, were most likely caused by abuse. Similarly, the evidence is overwhelming that Venegas inflicted the injury that was the ultimate cause of L.V.'s death. As previously noted, the State presented ample evidence to convict Venegas of second degree intentional murder and homicide by abuse.
We affirm Venegas' conviction for homicide by abuse. We accept the State's concession, vacate Venegas' conviction for second degree murder, and remand for the trial court to correct the judgment and sentence. For the Court: