Opinion
No. 51567-5-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-02349-1. Judgment or order under review. Date filed: 11/25/2002. Judge signing: Hon. Michael J Fox.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Wenceslao Vera Ramirez (Appearing Pro Se), 601 East Olive Way Apt. 105, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower 700 Fifth Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Wenceslao Ramirez appeals his conviction by jury verdict of third degree assault, contending that his trial counsel was ineffective for failing to object to the wording of a limiting instruction given to the jury. He fails to demonstrate that he was unfairly prejudiced by his counsel's allegedly deficient performance. We also reject Ramirez's pro se statement of additional grounds for review. Accordingly, we affirm.
FACTS
One evening, Eric Valdez attended a party where he was attacked by a group of young men. Following the beating, Valdez was unconscious, covered in blood, and his clothing was torn. He was eventually rushed to a medical center for emergency care and treatment. Ramirez and at least four others were charged with having participated in the assault. Several of them entered pleas of guilty. Ramirez and Andres Rodriguez went to trial on charges of first degree assault.
At the joint trial, Ramirez and Rodriguez were positively identified as members of the group that attacked Valdez. Testimony was presented that those young men were all members of a street gang known as `VL' or `Vatos Locos.' According to the testimony of various witnesses, Ramirez initiated the physical confrontation with Valdez, and Rodriguez and others then joined in. While Ramirez and Rodriguez both fought Valdez, Rodriguez committed the more serious acts of violence. Rodriguez repeatedly stomped on Valdez's face even after Valdez was knocked to the ground and rendered unconscious. Witnesses also testified that Ramirez and his companions yelled `VL' as they were leaving the scene. The detectives who eventually arrested Ramirez and were present when he waived his rights testified that he denied being at the party. Detective Olivarez also described certain aspects of gang protocol and codes of conduct, including why gang members would rally to assist a fellow member engaged in a fight. Others testified that Ramirez contacted them following the fight and told them to tell police that he didn't attend the party.
Ramirez took the stand in his own defense. He disputed much of the testimony presented by the other witnesses. Ramirez admitted being at the party with others who hit and kicked Valdez, but denied playing any role in the vicious attack. While admitting that he went to the party with members of Vatos Locos, Ramirez denied having any gang affiliation. The jury found Rodriguez guilty of the lesser degree of second degree assault and Ramirez guilty of the lesser degree of third degree assault. This appeal followed.
DECISION
Ramirez argues that his trial counsel provided ineffective representation by failing to propose the correct limiting instruction. To establish a claim of ineffective assistance of counsel, Ramirez must demonstrate that his attorney's performance was deficient and that the deficient performance prejudiced the defense and deprived him of a fair trial. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Because Ramirez must prove both prongs to establish a claim of ineffective assistance, `the issue may be resolved upon a finding of lack of prejudice without determining if counsel's performance was deficient.' State v. Lord, 117 Wn.2d 829, 884, 822 P.2d 177 (1991).
Ramirez contends that his trial counsel should have objected to the limiting instruction because it was confusing and not nearly as precise as it should have been. Without a properly worded limiting instruction, Ramirez argues, the jury was free to consider the gang evidence for any number of impermissible purposes. Thus, Ramirez argues his assault conviction should be reversed and his case remanded for a new trial. We disagree.
The court's instruction 10 provided as follows:
`Evidence has been introduced in this case on the subject of gangs for the limited purpose of showing motive and any reasons for any conduct engaged in by any person involved in this case. You must not consider this evidence for any other purpose.'
This instruction was read to the jury immediately before Detective Olivarez testified and again at the end of the trial when all the other instructions were read.
Ramirez has not shown that his counsel's failure to object to the instruction limiting the use of gang evidence unfairly prejudiced Ramirez. To establish prejudice in this setting, Ramirez must establish that there is a reasonable probability that, but for counsel's omission, the outcome of the trial would have been different. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Nothing suggests that the jury misused the gang evidence here. As Ramirez now concedes, the expert testimony on gang protocol and codes of conduct was relevant to show motive. Nor was there any theory presented or argued by the State from which the jury might have inferred that Ramirez was prone to violence or guilty of assault based solely on his gang affiliation. Rather, the State called numerous witnesses who testified regarding Ramirez's involvement in the altercation. And while Ramirez denied fighting with Valdez, other defense and prosecution witnesses identified Ramirez as one of the participants who both punched and kicked Valdez. The evidence against Ramirez was strong, if not overwhelming. Under the circumstances, Ramirez has not established that but for his counsel's alleged deficiency, the result of the trial would have been different. Therefore, Ramirez's claim of ineffective assistance of counsel necessarily fails.
In view of this, we find it unnecessary to address Ramirez's argument that the limiting instruction is too imprecise and not worded correctly.
Ramirez has filed a pro se statement of additional grounds for review under RAP 10.10. He contends that the defense was denied an opportunity to question jurors about an incident involving a dismissed juror. In Washington, a criminal defendant has a constitutional right to an unbiased and unprejudiced jury. State v. Davis, 141 Wn.2d 798, 824, 10 P.3d 977 (2000). The decision of whether a juror is impartial and whether a mistrial is required are matters for the discretion of the trial court. State v. Colbert, 17 Wn. App. 658, 664-65, 564 P.2d 1182 (1977).
Here, the trial court excused one of the jurors, Juror 14, after receiving information that the juror had expressed concern that codefendants Ramirez and Rodriguez had access to the jury panel's biographical information and might retaliate against him. The trial court then questioned the panel as a whole in open court about whether they heard the comments by Juror 14, whether it would have an impact on them, and whether they would still be able to be fair and impartial. After speaking with the jury, the court concluded that a mistrial was not necessary. The effect on the jury of Juror 14's remarks is a question which was properly determined in the sound discretion of the trial court. We find no error.
Ramirez next appears to argue that the trial court erred by denying a mistrial based on a question the prosecutor posed to the mother of Valdez during direct examination. When asked whether she had health insurance, Valdez's mother replied `No.' Immediately following this answer, a defense objection was sustained and the jury was admonished to disregard the last response. An instruction to disregard certain testimony is presumed to be followed by the jury. State v. Hightower, 36 Wn. App. 536, 548, 676 P.2d 1016 (1984).
We review the trial court's denial of a motion for mistrial for abuse of discretion. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). In determining whether an irregularity may have influenced the jury, we examine (1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it. Hopson, 113 Wn.2d at 284. The single question asked by the prosecutor in this case, however objectionable, was not the type of misconduct that could not be cured by an instruction to disregard. Ramirez was entitled to a fair trial, not a perfect one. See Colbert, 17 Wn. App. at 664. We find no abuse of discretion.
Affirmed.
COLEMAN, KENNEDY and APPELWICK, JJ., concur.