Opinion
No. 29650-1-II.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-06114-5. Judgment or order under review. Date filed: 11/08/2002. Judge signing: Hon. Karen Strombom.
Counsel for Appellant(s), Wayne Clark Fricke, Attorney at Law, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405-4850.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Daniel Mulholland appeals his conviction of six counts of first degree assault and one count of drive-by shooting, arguing insufficient evidence, instructional error, and ineffective assistance of counsel. We affirm.
FACTS
We set forth the facts elicited during trial.
According to Joshua Tullar, on November 26, 2001, two males arrived at the Tacoma home of his grandmother, Jeannine Tullar. One man emerged from the passenger side of a van and asked for Joshua's uncle. Joshua replied that his uncle was at work and asked whether he could assist.
We use first names for clarity.
According to Joshua, the man got out of the van, approached him, and said: ``Look son, this is the way it's gonna be. If I don't have my TV at my house in 24 hours, I'm shooting your house, and if it's necessary, I'll chop up your bodies and scatter them across the state,' and he didn't care who was in the house.' II Report of Proceedings (RP) at 58.
Joshua told Jeannine about the threat. Joshua identified the vehicle as a black mini Astro van with a slanted front end and white line. And at trial, he identified a photograph of Mulholland's van as the one at his grandmother's home on the day of the shooting.
Later that day, around 5 p.m., six Tullar family members ate dinner in their illuminated living room. The living room window, which looked out onto the street, did not have drawn curtains or blinds. The Tullars heard gunfire and took cover on the floor. A family member removed a baby from a highchair and another put Jeannine's wheelchair-bound husband on the floor and gave him heart medicine. After the gunfire stopped, Russell Tullar called 911.
About the same time, Jeannine's neighbor, Edward Dean, walked on the street opposite the Tullar home. He noticed a white man in the driver seat of a dark blue or black van with a white line parked on the opposite side of the street in front of the Tullar residence. Dean also heard gunfire and took cover. After the gunfire ceased, Dean saw the van move quickly away, driving up and over the curb. Dean later identified a photograph of Mulholland's van as the van he had seen in front of the Tullar residence at the time of the shooting.
Police officers responded to the 911 call. They saw bullet damage to the front of the house, found three shell casings, and noted damage to the house interior. Because his grandmother had not called 911 when Joshua reported the earlier threat, he told the police about it and described the van and driver.
Later that evening, police dispatch received a request for a `civil standby' to assist in recovering a television set. III RP at 207. The requester wanted law enforcement assistance at the Tullar residence. Dispatch told the responding officer that the vehicle description of the person requesting the civil standby matched the description that had been broadcast earlier as being involved in the Tullar residence shooting. Officer Todd Kitselman located the vehicle, contacted Mulholland, and asked him to step out of the van. Kitselman saw a shell casing in the middle of the driver's seat when Mulholland left the van. Kitselman placed Mulholland in wrist restraints and advised him of his Miranda rights. Kitselman said that Mulholland admitted being at the Tullar residence earlier asking for his television set, but he denied making any threats. Kitselman also testified that when he asked Mulholland where he had been earlier that evening, Mulholland replied that he had been at McChord Air Force Base buying earrings for his wife. Mulholland said that a receipt inside his vehicle corroborated his alibi. But the receipt identified an earring purchase at the Tacoma Mall Sears store on a different day some two weeks earlier. According to Kitselman, Mulholland shrugged his shoulders in reply to being asked about the discrepancy and said, `I don't know.' III RP at 224. Kitselman then asked Mulholland about the shell casings he found in the van. Mulholland responded that he did not own a gun and he believed that the casings came from his target shooting some three weeks earlier.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Based on these incidents, the State charged Mulholland with six counts of first degree assault and one count of drive by shooting. Mulholland testified at trial and claimed an alibi. He said that on the evening of the shooting, he had dropped one son off at home and then had driven to his other son's apartment to help him move. He also testified that he owned a black Oldsmobile Silhouette van and not a Chevy Astro van. Mulholland further testified that he did not own a gun and that the shell casings found in his van remained after target shooting three weeks earlier.
The parties stipulated that someone used Mulholland's ATM card to purchase gasoline at 5:20 p.m. on November 26, 2001, at 2523 Pacific Avenue in Tacoma. Mulholland testified that he bought gas there.
Police forensic specialists collected and compared three shell casings and a spent bullet recovered at the Tullar residence and two shell casings found in Mulholland's van. A forensic expert testified that the ammunition was fired from the same .45 caliber automatic weapon. The weapon was never recovered.
A jury convicted Mulholland as charged and he appeals.
ANALYSIS Sufficiency of the Evidence
Mulholland first contends that insufficient evidence supports his conviction of first degree assault. He asserts that no evidence placed him at the shooting or established intent to inflict great bodily harm.
Sufficient evidence supports a conviction when, viewed in the light most favorable to the State, it permits any rational fact finder to establish the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). We accord circumstantial and direct evidence equal weight. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We reserve credibility determinations for the fact finder and we need not be convinced of Mulholland's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
In order to convict, the State must prove the defendant's identity and his presence at the crime scene beyond a reasonable doubt. State v. Thomson, 70 Wn. App. 200, 211, 852 P.2d 1104 (1993), aff'd, 123 Wn.2d 877 (1994). Here, taken in the light most favorable to the State, the evidence shows that on November 26, 2001, Mulholland purchased gasoline in Tacoma around the time of the shooting. The evidence also shows that Mulholland owned a van that he drove to the Tullar residence where he threatened the Tullar family. And expert testimony linked the evidence found in Mulholland's van with that found at the Tullar home. The jury chose not to believe Mulholland's alibi and we do not question such credibility determinations on appeal. Thus, Mulholland's identity argument fails.
Mulholland also argues that insufficient evidence demonstrated his intent to inflict the great bodily harm required to convict him of assault. A fact finder may infer intent to harm from an event's facts and circumstances, and the State may show intent through prior threats and the manner of assault. State v. Shelton, 71 Wn.2d 838, 839, 431 P.2d 201 (1967); State v. Ferreira, 69 Wn. App. 465, 468-69, 850 P.2d 541 (1993).
RCW 9A.36.011 provides: `(1) A person is guilty of assault in the first degree if she or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death.'
Citing Ferreira, 69 Wn. App. at 468-69, Mulholland argues that because no injuries occurred, he had no intent to cause great bodily harm as first degree assault requires. Mulholland misplaces his reliance on Ferreira. In Ferreira, insufficient evidence supported a juvenile adjudication of first degree assault because the juvenile fired into a house that was only `likely apparent' to be occupied. 69 Wn. App. at 469. Instead, the trial court found the juvenile guilty of second degree assault because Ferreira `intended to create apprehension or fear to the likely occupants of the house.' Ferriera, 69 Wn. App. at 469-70.
Here when shots were fired into the home, six Tullar family members sat in an illuminated and unobscured living room where its windows looked out onto the street. The Tullars' occupation was readily apparent when the shots were fired. In response, they all dove or were pulled to the floor. This, coupled with Mulholland's earlier threat and his rapid retreat, establishes sufficient evidence of his intent to inflict great bodily harm. His argument fails.
Jury Instructions Alternative Means of First Degree Assault
Mulholland further contends that the trial court erred in giving instruction 11 because insufficient evidence supported its second paragraph. He asserts that instruction 11 denoted alternative means of committing the crime and that the court may not instruct the jury on an alternative means absent sufficient evidence to support it. And Mulholland argues, absent sufficient evidence supporting both alternative means, where the jury renders a general verdict, it cannot stand
Our constitutions guarantee a criminal defendant the right to an expressly unanimous jury verdict. U.S. Const. amend. VI; Wash. Const. art. I, sec. 22; State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988). In an alternative means case, `the evidence includes only one event, even though it discloses alternative means by which the defendant may have participated in that event.' State v. Hanson, 59 Wn. App. 651, 657 n. 7, 800 P.2d 1124 (1990); Kitchen, 110 Wn.2d at 410.
RCW 9A.36.011 specifies three alternative means of committing first degree assault. Here, the State charged Mulholland with, and the court instructed the jury on, only one means — assault with a firearm. Instruction 11 provided:
RCW 9A.36.011(1) states:
A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:
(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or
(b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance; or
(c) Assaults another and inflicts great bodily harm.
An assault is an act, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
An assault is also an act, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
Clerk's Papers (CP) at 112.
The court's `to convict' jury instruction provided:
INSTRUCTION NO. 6
To convict the defendant of the crime of Assault in the First Degree as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 26th day of November, 2001, the defendant intentionally assaulted another person, thereby assaulting Joshua Tullar;
(2) That the assault was committed with a firearm;
(3) That the defendant acted with intent to inflict great bodily harm; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 107.
Mulholland argues that because the jury instruction gave two definitions of assault, this created an alternative means case. We disagree. Although instruction 11 provided two alternative definitions of assault, the sole `to convict' instruction instructed the jury to find Mulholland guilty if he assaulted the victims with a firearm while acting with intent to inflict great bodily harm. Mulholland's argument fails.
Mulholland argues that State v. Bland, 71 Wn. App. 345, 860 P.2d 1046 (1993), supports his contention. In Bland, the court reversed where the defendant fired a wild shot that showered glass on a sleeping victim and the jury was instructed on assault through an unlawful touching or fear and apprehension. The court held that insufficient evidence supported finding fear or apprehension in a sleeping victim. The Bland case differs factually from Mulholland's.
Also, that Mulholland shot at an obviously occupied home sufficiently supports the trial court's giving an alternative methods of assault definitional instruction.
Transferred Intent
Mulholland further contends that instruction 14 does not fairly state the law on transferred intent when no victim sustains injury. Because Mulholland failed to object at trial, we decline to review this issue. RAP 2.5(a).
Instruction 14 provided: `It is not a defense to the charge of Assault in the First Degree that a victim of the assaultive acts was not the intended victim. A person is guilty of assault if he acts intentionally to assault one person but assaults another person.' CP at 115.
Although we decline to fully review this issue, we note that assault can occur in the absence of injury.
Statement of Additional Grounds
In his statement of additional grounds (SAG), Mulholland contends that he received ineffective assistance of counsel.
The Washington State and United States constitutions guarantee a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, sec. 22. We determine whether a defendant received effective assistance of counsel under a two-part test:
the defendant must show deficient performance resulting in prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We presume effective representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). And we do not consider legitimate tactical or trial strategy decisions. State v. Hughes, 118 Wn. App. 713, 730, 77 P.3d 681 (2003).
Mulholland first asserts that his counsel was ineffective because she did not present evidence on his behalf at trial. He contends that he gave her a `white plastic bag of spent cartriges [sic] and clips that [he] and [his] grandson had collected for two years.' SAG at 1. Nothing in the record supports Mulholland's assertion and we do not review it. McFarland, 127 Wn.2d at 335.
Mulholland next asserts that he did not understand the arresting officer when advised of his Miranda rights because Mulholland did not have his hearing aid. He argues that his counsel should have presented a Veteran's Administration letter noting that his hearing aids were in Denver when the police arrested him in Tacoma.
Here, the trial court held a CrR 3.5 hearing and determined that Mulholland voluntarily, intelligently, and knowingly signed a Miranda rights waiver and then spoke to the police. He does not challenge these findings. State v. Rehn, 117 Wn. App. 142, 153, 69 P.3d 379 (2003). Mulholland's argument fails.
Mulholland also asserts that his attorney failed to talk to his witnesses until immediately before trial and that she did little to substantiate his defense.
An attorney has a duty to investigate the case and interview witnesses. State v. Burri, 87 Wn.2d 175, 181, 550 P.2d 507 (1976). Mulholland's claim fails because counsel interviewed the witnesses, albeit just before trial, and the decision whether to call witnesses was a trial tactic that we do not review on an ineffective assistance of counsel claim. State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995).
Affirmed.
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, JJ., concur.