Opinion
No. 59363-3-I.
March 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-10168-5, Gregory P. Canova, J., entered December 7, 2006.
Affirmed by unpublished per curiam opinion.
A jury convicted Jaime Isaias Hernandez of assault in the first degree with a deadly weapon. Hernandez appeals his conviction, asserting that the trial court violated his constitutional right to confront and cross-examine the victim by excluding the victim's toxicology report. Because the trial court did not abuse its discretion, any error was harmless, and Hernandez's statement of additional grounds lacks merit, we affirm.
FACTS
Gabriel Garcia-Rodriguez and Jaime Isaias Hernandez both lived in an apartment complex in Woodinville. The two argued when Garcia-Rodriguez had Hernandez's relative's car towed because it was parked in his parking space in the complex parking lot.
On the evening of December 31, 2003, as Garcia-Rodriguez and his friend started to drive out of the apartment complex parking lot, Hernandez walked in front of Garcia-Rodriguez's car. Hernandez and Garcia-Rodriguez began to argue. Eventually, Garcia-Rodriguez drove off. After they left, Garcia-Rodriguez's friend asked him why he didn't "get out of the car to really take care of the problem" and Garcia-Rodriguez told him that he would take care of the problem later.
After Garcia-Rodriguez returned to his apartment later that night, he went looking for Hernandez. He found Hernandez in a stairwell of the apartment complex. The two men began to argue again. Garcia-Rodriguez pushed Hernandez. Hernandez pulled out a gun and shot Garcia-Rodriguez three times at close range, then ran away.
A resident of the apartment complex, Veronica Sanchez-Velasco heard gunshots and screaming. She opened her door and saw Garcia-Rodriguez leaning forward and holding his stomach. Garcia-Rodriguez asked her to call the police. Garcia-Rodriguez told Sanchez-Velasco that "Jaime" had shot him. Sanchez-Velasco recognized the name Jaime because she had worked with Hernandez. The 911 operator asked Sanchez-Velasco what kind of car Hernandez was driving and Sanchez-Velasco identified Hernandez's Pathfinder. Sanchez-Velasco also gave the 911 operator Hernandez's license plate number. When the police ran the license plate number, they learned that the car was registered to Hernandez.
Police and paramedics responded to the 911 call. The paramedics took Garcia-Rodriguez to the hospital. The surgeon testified that Garcia-Rodriguez was shot at point-blank range in the abdomen, left thigh, and buttock, requiring surgery. Garcia-Rodriguez's toxicology screen was positive for cocaine, opiates, and cannabinoids. Police investigating the scene found four bullets and six casings. Later, Garcia-Rodriguez identified Hernandez in a photo montage.
Hernandez was charged with assault in the first degree with a deadly weapon. Hernandez fled to Minnesota and then South Dakota. Approximately three years later, he was arrested in South Dakota.
Before trial, the State filed a motion to suppress evidence of Garcia-Rodriguez's toxicology report. Because there was no evidence that Garcia-Rodriguez was impaired at the time of the altercation and the defense did not intend to call an expert to testify about the toxicology report or how the reported substances affected Garcia-Rodriguez's perception, the court granted the motion to exclude the report. But the court ruled that if testimony was elicited from either the officers or the paramedics who responded to the 911 call that Garcia-Rodriguez appeared to be under the influence, he would allow testimony about drug use. Without expert medical testimony, the court ruled the probative value of the evidence was outweighed by its prejudicial effect.
At trial, Garcia-Rodriguez testified about the altercation. During cross examination, defense counsel asked Garcia-Rodriguez about his drug use. The trial court granted the State's motion to strike the question. Hernandez testified on his own behalf. Hernandez said his friend Chuey shot Garcia-Rodriguez.
The jury found Hernandez guilty of assault in the first degree while armed with a firearm. Hernandez appeals.
ANALYSIS
Motion to Suppress
Hernandez asserts that the trial court violated his Sixth Amendment right to confront and cross-examine Garcia-Rodriguez by granting the motion to suppress evidence of the toxicology report. Hernandez argues that evidence of Garcia-Rodriguez's drug use was relevant because it was a factor for the jury to consider when determining credibility.
Under the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution, a criminal defendant has the right to confront and cross-examine adverse witnesses. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). But the evidence must be relevant. State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996). Under ER 401, relevant evidence is that which tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." But under ER 403, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.
The scope of cross examination is a decision within the trial court's discretion. State v. Russell, 125 Wn.2d 24, 92, 882 P.2d 747 (1994). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable Page 5 grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The facts here are analogous to State v. Tigano, 63 Wn. App. 336, 344, 818 P.2d 1369 (1991). In Tigano, the defendant claimed that he should have been allowed to present testimony about a witness's pattern of drug use to attack the witness's credibility. The court held that evidence of drug use is only admissible to impeach if there is a reasonable inference that the witness was under the influence of drugs either at the time of the incident or at the time of testifying at trial. State v. Tigano, 63 Wn. App. 336, 344, 818 P.2d 1369 (1991). Evidence of drug use on other occasions is generally inadmissible because it is impermissibly prejudicial. Tigano, Wn. App. at 344-45; see also State v. Hettich, 70 Wn. App. 586, 591-92, 854 P.2d 1112 (1993) (holding the court did not abuse its discretion by excluding evidence of marijuana use because there was no evidence that the victim was under the influence at the time of the accident).
Here, there was no evidence that Garcia-Rodriguez was under the influence of drugs either at the time of the incident or while testifying. And there was no expert medical testimony to explain the toxicology report and how the reported substances affected Garcia-Rodriguez's perception. On this record, the trial court did not abuse its discretion in ruling that the probative value of the toxicology report was outweighed by the danger of unfair prejudice.
State v. Perez, 139 Wn. App. 522, 161 P.3d 461 (2007) is distinguishable. In Perez, the court held that it was an abuse of discretion to not allow the defense to question the witness about his physical state at the time of trial when there was evidence that he was under the influence. Perez, 139 Wn. App. at 530.
Harmless Error
Even if the trial court erred by excluding evidence of the toxicology report, the error was harmless. Confrontation clause violations are subject to harmless error analysis. State v. Shafer, 156 Wn.2d 381, 395, 128 P.3d 87, cert. denied, 127 S. Ct. 553 (2006). If the untainted evidence of guilt is overwhelming, the error is harmless. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).
Here, there is no dispute about the earlier altercation or that Garcia-Rodriguez went looking for Hernandez. In addition to Garcia-Rodriguez's testimony, Sanchez-Velasco also testified that Garcia-Rodriguez identified Hernandez as the assailant, she knew Hernandez, she recognized his car, and she identified his car to the 911 operator. When the police scanned the license plate number, they found that the car was registered to Hernandez. When police investigated the scene of the altercation, they found four bullets and six casings. And Garcia-Rodriguez later identified Hernandez in a photo montage. This untainted evidence of Hernandez's guilt is overwhelming and even if the trial court erred, the error is harmless.
Additional Grounds for Review
In his Statement of Additional Grounds for Review, Hernandez claims there was insufficient evidence to convict him of assault in the first degree, the trial court violated his right to a speedy trial, the prosecutor committed misconduct, and he received ineffective assistance of counsel at trial and on appeal.
First, Hernandez claims that Garcia-Rodriguez's injuries did not amount to great bodily injury and there was insufficient evidence that Hernandez shot Garcia-Rodriguez. We review a challenge to the sufficiency of the evidence by viewing the evidence in the light most favorable to the State and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 144 Wn.2d 197, 212, 26 P.3d 890 (2001). 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). It is the role of the trier of fact, not the appellate court, to resolve conflicts in the testimony and to evaluate the credibility of witnesses and the persuasiveness of evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Sufficient evidence supports Hernandez's conviction for assault in the first degree. There is no dispute that Garcia-Rodriguez was shot point blank in the abdomen, left thigh, and buttock and required surgery for these injuries. Sanchez-Velasco knew both Garcia-Rodriguez and Hernandez and identified Hernandez to the 911 operator. Sanchez-Velasco also identified Hernandez's Pathfinder and the police verified that the Pathfinder belonged to Hernandez.
A person is guilty of assault in the first degree when he intends to inflict great bodily harm and assaults another with a firearm. RCW 9A.36.011(1)(a).
Hernandez also asserts that the trial court violated his right to a speedy trial. Based on the record designated on appeal, we cannot address this argument. State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985) (an appellate court's review is confined to matters in the record on appeal).
Next, Hernandez argues that the prosecutor committed misconduct by asking the jury to convict him of a weapon enhancement. Hernandez also argues the trial court erred by instructing the jury on the weapon enhancement because there was no gun presented at trial. Based on the testimony about bullets and casings found by the police and Garcia-Rodriguez's injuries, there was no error.
Hernandez also claims that he received ineffective assistance of counsel at trial and on appeal. To establish ineffective assistance of counsel, Hernandez must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). An attorney's decisions pertaining to trial tactics do not provide a basis for finding ineffective assistance. State v. Doogan, 82 Wn. App. 185, 189, 917 P.2d 155 (1996). Hernandez contends that trial counsel was ineffective because he did not adequately interview him or other witnesses before and at trial. But the fact that Hernandez's attorney thoroughly cross-examined witnesses reflects his preparation for trial. And because Hernandez does not address how further interviews would have changed the outcome at trial, he cannot show prejudice.
Hernandez also asserts that appellate counsel was ineffective because he failed to raise the issues that Hernandez addresses in his Statement of Additional Grounds. Because these issues are without merit, Hernandez's assertion of ineffective assistance of counsel fails.
We affirm.