Opinion
No. 59159-2-I.
June 23, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-07872-0, Paris K. Kallas, J., entered November 20, 2006.
Affirmed by unpublished per curiam opinion.
Alberto Martinez-Luis appeals his judgment and sentence for first degree murder and second degree assault. Disclosure of the identity of a confidential informant is not required when the evidence that the informant possesses is cumulative or inculpatory. Following an in camera hearing, the trial court properly ruled that the identity of the confidential informant that Martinez-Luis sought to discover should not be disclosed. We also conclude that the jury instructions clearly stated the law and did not mislead the jury. Moreover, Martinez-Luis' counsel was not ineffective. Finally, the issues that Martinez-Luis raises in his statement of additional grounds do not warrant relief. We affirm.
State v. Potter, 25 Wn. App. 624, 629, 611 P.2d 1282 (1980).
On June 3, 2005, Ramon Cabrera-Moreno (Ramon) and Martinez-Luis were involved in a physical fight at the home of Armando Orozco-Marquez (Armando) in Renton. Ramon prevailed in the fight, and he left the area in a car driven by Misael Cardenas-Sepulveda (Misael). Soon thereafter, Armando agreed to drive Martinez-Luis home. Jose Rois-Ruiz (Jose) went with them.
We refer throughout this opinion to individuals other than the appellant by first name for purposes of clarity. No disrespect is intended by the use of first names.
Martinez-Luis remained angry with Ramon and directed Armando to drive to an address where he thought Ramon would be. While they were driving, they observed Misael's car with Ramon in the passenger seat. Ramon was speaking to a woman outside the vehicle. Martinez-Luis got out of Armando's truck, walked up to Ramon, and shot him once in the chest with a revolver. Martinez-Luis also pointed the gun at the driver, Misael. Ramon later died as a result of the single gunshot wound to the chest.
The police investigation initially focused on Armondo after one eyewitness identified "Mondo" as the shooter. Later, this same witness changed her story and identified Martinez-Luis as the shooter. Misael also identified Martinez-Luis as the shooter.
Police arrested Martinez-Luis on June 4, 2005. Although he initially denied any involvement in the shooting of Ramon, Martinez-Luis eventually told police that he shot Ramon with a gun provided by Armando.
The State charged Martinez-Luis with first degree murder of Ramon and second degree assault of Misael, both with firearm enhancements. A jury convicted him on both counts. Martinez-Luis appeals.
IDENTITY OF CONFIDENTIAL INFORMANT
Martinez-Luis argues the trial court abused its discretion by refusing to order disclosure of a confidential informant's (CI) identity. We disagree.
The State has a privilege to keep confidential the identity of informants. This privilege is recognized in this state by both statute and court rule. The purpose of the privilege is to encourage citizens to communicate their knowledge to police in order to further and protect the public interest in law enforcement. However, the privilege is not absolute, and "if disclosure of an informer's identity `is relevant and helpful to the defense . . . or is essential to a fair determination of the cause, the privilege must give way. In these situations, the trial court may require disclosure.'"
Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); State v. Harris, 91 Wn.2d 145, 148, 588 P.2d 720 (1978).
Potter, 25 Wn. App. at 627.
Id.
Id. (quoting Roviaro, 353 U.S. at 60-61).
An in camera hearing is the preferred means of applying the Roviaro standard. The burden of showing that circumstances exist that would justify disclosing the identity and setting aside the anonymity of the informant is on the defendant.
Harris, 91 Wn.2d at 150.
Potter, 25 Wn. App. at 629.
The defense counsel should be afforded the opportunity to submit written questions to be asked by the trial court if they will not lead to the disclosure of the informant's identity.
Id.
"The trial court should consider carefully at the in camera hearing the State's interest against disclosure, including (1) the interest in preserving the free flow of information to law enforcement agencies, (2) whether the informant is currently acting as an informant in other cases, and (3) whether there has been or may be any personal danger to the informant if his or her identity is disclosed." "The trial court should balance these interests against the relative degree of relevance and materiality to the defendant when considering such factors as the nature of the charge, possible defenses and the facts of the particular case."
Id.
Id. at 629-30.
Here, Martinez-Luis moved for disclosure of the identity of the CI that may have had contact with the police prior to his arrest. The trial court decided that he had met his initial burden to show that an in camera hearing was necessary. Moreover, the court used the interrogatories that Martinez-Luis submitted during the questioning of the CI at that hearing. Thereafter, the court made its oral ruling that is the subject of the claim here. Specifically, Martinez-Luis argues that under State v. Harris, the court's ruling that "some of the informant's testimony was exculpatory" shows that the trial court erred, and that disclosure is required.
Clerk's Papers at 26.
91 Wn.2d 145, 148-49, 588 P.2d 720 (1978).
Brief of Appellant at 10-11.
In its oral ruling denying the motion, the trial court stated as follows:
The defendant may overcome [the] privilege if the defendant carries the burden of showing the Roviaro factors, either that the disclosure [is] relevant and helpful to the defense, or that it [is] essential to insure a fair trial.
In making this determination, the Court must make the determination concerning the free flow of information in law enforcement against the defendant's right to prepare a defense. This is necessarily a determination the Court has to make on the facts of this particular case, considering the crime charged, the possible defense, the possible significance of the testimony, and any other relevant factors. Under the Potter decision, the Court should also consider the interest of observing a free flow of information to law enforcement, whether the informant is currently acting as an informant in other cases, and any personal danger to the informant if the identity is disclosed. If the defendant establishes those[,] either Roviaro prong, the Court cannot substitute its judgment. In other words, the Court cannot decide that the defendant would not want to use the evidence, that is something that defense counsel decides. And if the Roviaro factors are established, the Court, I believe, is required to disclose.
Case law makes it clear, especially the Vargas decision, Salazar, and Potter, that disclosure is not necessary if the information would be either cumulative or portends only to prove the defendant's guilt.
With these principles in mind, I deny the defense motion to exclude the — to introduce the identity of the confidential informant.
[The State] has spent some time talking about some of the evidence that was introduced at the in camera hearing. And to the extent it could be deemed exculpatory, it is cumulative of evidence already available to the defense , especially since we've agreed that the evidence that I'm going to simply call other suspect evidence is admissible.
To the extent testimony was provided at [the] hearing that is not cumulative, I can only characterize that evidence as devastating to the defense. . . .
I recognize that the Court is not to substitute its judgment, I'm well aware of that, and in commenting on the demeanor, I do not in any way intend to imply that I am weighing whether this is something that would be helpful to the defense. Instead, I don't think there's any way of characterizing it as anything other than tending only to prove the defendant's guilt.
[M]y ruling also rests on the information provided in [the detective's] declaration. I'm not going to address the specifics, but his declaration does address the Potter factors as to whether or not the confidential informant is currently working and whether or not the disclosure would pose a risk of danger
For these reasons, the motion to disclose the identity of the confidential informant is denied.
Report of Proceedings (March 2, 2006) at 50-53 (emphasis added).
The trial court carefully considered the arguments of the parties, strictly followed the prescribed procedure, and correctly applied governing precedent to decide this matter. The cases cited by the court, State v. Potter, State v. Vargas, and State v. Salazar, clearly control the situation here. The court expressly ruled that other suspect evidence would be admissible at trial. The evidence sought from the CI was cumulative to the other suspect evidence. As the trial court correctly ruled, this alone supported its exercise of discretion to deny disclosure of the CI's identity. Moreover, the court also considered the other factors that Potter identifies in further support of its decision. The court's analysis in this respect was also correct.
25 Wn. App. 624, 611 P.2d 1282 (1980).
58 Wn. App. 391, 793 P.2d 455 (1990).
59 Wn. App. 202, 796 P.2d 773 (1990).
We note that Martinez-Luis does not challenge the court's characterization of the CI's information as cumulative. Presumably, that is among the reasons for his decision not to designate the sealed portions of the record for review by this court. Accordingly, there is no basis for this court to inquire further into the procedures the trial court followed in addressing the issues now on appeal.
The trial court did not abuse its discretion in denying the motion to disclose the identity of the CI.
JURY INSTRUCTION
Martinez-Luis argues that the jury instruction given, which defined premeditation, violated his right to due process under state and federal constitutions. We disagree.
Although Martinez-Luis did not object at trial to the jury instructions given or propose a clarifying instruction, we address this issue because it is one of constitutional magnitude.
See RAP 2.5(a)(3); see also State v. Roberts, 142 Wn.2d 471, 500-01, 14 P.3d 713 (2000) (reviewing jury instruction raised for the first time on appeal where nature of instructional error was of sufficient constitutional magnitude).
Jury instructions are sufficient if they adequately state the law, do not mislead the jury, and allow each party to argue its theory of the case.
Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000).
This court reviews the adequacy of challenged jury instructions de novo.
State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005).
Here, the state charged Martinez-Luis with first degree murder.
Accordingly, the court gave Jury Instruction 8, defining that crime, which stated:
A person commits the crime of murder in the first degree when, with a premeditated intent to cause the death of another person , he or she causes the death of such person.
Clerk's Papers at 81 (emphasis added).
The court also instructed the jury on the definition of "premeditated." Jury Instruction 9, which is identical to WPIC 26.01.01, stated:
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life , the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
Clerk's Papers at 82 (emphasis added).
Martinez-Luis challenges Instruction 9 and argues that premeditation requires proof of a "deliberate formation of and reflection upon the intent to take a human life." He argues the definition of "premeditated" given by the court fails to narrow the deliberative process to premeditation on the taking of a human life. He argues the instruction is ambiguous, and according to this definition, a person may deliberate about something other than taking a human life before forming the intent to kill and still be convicted of premeditated murder.
State v. Townsend, 142 Wn.2d 838, 848, 15 P.3d 145 (2001) (quoting State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995) (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982))).
We note that our supreme court has addressed similar challenges to WPIC 26.01.01 as it is currently worded. It has repeatedly approved this instruction, stating nearly a decade ago that "further challenge to the instruction is frivolous."
State v. Clark, 143 Wn.2d 731, 770, 24 P.3d 1006 (2001).
Here, the trial court also instructed the jury to "consider the instructions as a whole." In following these instructions, the ordinary juror would read Instructions 8 and 9 together with respect to the nature of deliberation required for premeditation. In Instruction 8, the word "premeditated" modifies the word "intent." This grammatical signal makes clear that in order to convict, the jury must find the defendant premeditated or "thought over beforehand" the "intent to cause the death of another."
Clerk's Papers at 72 (Jury Instruction 1).
There is no reason to conclude that an ordinary juror would understand Instruction 9, especially when read together with Instruction 8, to suggest that a defendant may deliberate about something other than killing another person and still be guilty of premeditated murder. This instruction accurately states the law and does not mislead the jury. Moreover, the way that Martinez-Luis construes Instruction 9 to create ambiguity is not reasonable. It disregards the court's instruction to consider the jury instructions as a whole.
Martinez-Luis next argues that the last sentence of Instruction 9 compounds the alleged ambiguity because it explains premeditation in substantially the same way that "intent" is defined.
The last sentence of Instruction 9 stated: "The law requires some time, however long or short, in which a design to kill is deliberately formed." The court's instruction defining "intent" stated: "A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime." Martinez-Luis contends that under these instructions, a jury may convict a defendant of premeditated murder who deliberates for only an instant. He concedes that our supreme court held in State v. Rice that WPIC 26.01.01 does not impermissibly render "premeditation" synonymous with "intent." Yet, he argues that the Rice court did not consider this question in the context of other ambiguities present in the instruction and, therefore, Rice is not dispositive. Rice is binding on this court and dispositive. We reject his argument to the contrary.
WPIC 26.01.01.
Clerk's Papers at 83 (Jury Instruction 10).
110 Wn.2d 577, 603-04, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989).
INEFFECTIVE ASSISTANCE OF COUNSEL
Martinez-Luis argues that his trial counsel was ineffective. We disagree. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the outcome would have been different. If one of the two prongs of the test is absent, we need not inquire further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336.
Matter of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Here, Martinez-Luis argues that his counsel refused to present an alibi defense. Specifically, Martinez-Luis argues that his counsel's performance was deficient because it was not reasonable for counsel to believe that his alibi defense was a recent fabrication and thus, refuse to present it.
Martinez-Luis' argues he was prejudiced by his counsel's failure to put his alibi defense before the jury because, if the jury had believed it, he would have been acquitted. We find this argument unpersuasive.
The jury considered overwhelming evidence of Martinez-Luis' guilt, including three eyewitnesses who all identified him as the shooter, a fourth eyewitness who identified him as the shooter to a police officer, and his own confession that he shot the victim. Considering this evidence, we conclude that had the alibi testimony had been offered, it would not likely have changed the result. Martinez-Luis fails in his burden to show there is a reasonable probability that the outcome of his trial would have been different if the alibi defense had been presented.
We note that at trial, Martinez-Luis also expressed dissatisfaction with his counsel's performance to the trial court before sentencing. The trial court delayed sentencing and appointed new counsel to investigate his claim. Martinez-Luis' trial counsel, Kevin Donnelly, was examined by the prosecutor and by substitute defense counsel. After the inquiry, the trial court denied Martinez-Luis' motion for a new trial and stated:
I find that the defendant has failed to prove either one of [the Strickland] prongs. And accordingly, the motion is denied. There is an objective standard of reasonable conduct, it is a broad standard that encompasses quite a range of conduct. . . . That being said, on the continuum of representation, Mr. Donnelly's performance was at the high end. And Mr. Martinez-Luis received stellar representation at trial. The guilty verdicts are the results of the State's overwhelming evidence of guilt. While the law hires this court to engage in a strong presumption of effective representation, there is no need of such a presumption in this case. From the first pre-trial motions, to the last word in closing argument, to the sentencing brief, Mr. Donnelly provided vigorous and stellar representation. . . . [T]he decision to reject the last-minute alibi presented by the defendant's wife was tactical and sound, not to mention based on ethical code.
Report of Proceedings (November 9, 2006) at 6-8.
We will not disturb a trial court's decision to grant or deny a new trial
unless it is a manifest abuse of discretion. For the reasons stated in our analysis above, we also conclude that the trial court did not abuse its discretion when it denied Martinez-Luis' motion for a new trial based on allegations of ineffective assistance.
State v. Dawkins, 71 Wn. App. 902, 906, 863 P.2d 124 (1993).
STATEMENT OF ADDITIONAL GROUNDS
Martinez-Luis filed pro se a statement of additional grounds raising several additional issues for review. None warrant relief.
Martinez-Luis first argues that the prosecutor committed misconduct by showing a booking photo of Martinez-Luis to a witness after he indicated he did not see the person who shot Roman in the courtroom. Martinez-Luis claims the prosecutor then escorted the witness from the courtroom, had a conversation with him, and returned to tell the jury that the witness told him that he would never forget the face of the man who killed Roman.
While it is true that Misael testified he did not see the person who shot Roman in the courtroom, Misael also identified a photo of Martinez-Luis as the shooter. When asked whether there was any doubt that the person he saw shoot Roman was the person in the photo and the same person he saw being arrested, Misael testified, "No doubt at all. I have this in my head. How could you think that I could forget that face?"
Following this testimony, the court recessed, and Misael was excused from the courtroom. Nothing in the record indicates that the prosecutor escorted Misael from the room or had a conversation with him. In closing argument, the State reminded the jury that Misael said he could never forget the shooter's face. Nothing in the record supports Martinez-Luis' claim of misconduct.
Martinez-Luis next argues the "state denied exculpatory evidence of proof that another person committed the crime." He claims that during the police investigation, two known witnesses and the confidential informant identified Armando as the shooter. We note that both witnesses who testified at trial were questioned about their initial identification of the shooter as Armando. To the extent he challenges the court's ruling on the confidential informant, we do not review his claim for lack of a record as discussed earlier in this opinion.
Martinez-Luis next argues that his counsel was ineffective by failing to present an alibi defense and failing to present evidence that police allegedly ruled him out as the source of fingerprints found on the victim's vehicle. In addition, Martinez-Luis claims his counsel failed to interview a police officer who received information from Misael that Armando was the shooter. We conclude that Martinez-Luis' counsel was not ineffective in making these decisions.
Martinez-Luis next argues that the evidence showed Armando killed Roman. Martinez-Luis points to the fact that he was allegedly ruled out as the source of fingerprints on the victim's vehicle and that, initially, eyewitnesses told police Armando was the shooter. But much of the evidence suggesting Armando committed this crime was admitted at trial. And to the extent he challenges the jury's credibility determinations regarding the witnesses' identification of the person who killed Roman, we do not review his claim. Moreover, we conclude that the record contains sufficient evidence to support the jury's verdict.
See State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997) ("Credibility determinations are within the sole province of the jury and are not subject to review.").
See State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (Evidence is sufficient to sustain a conviction if, viewing it in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.).
We affirm the judgment and sentence.