Opinion
No. 34615-0-II.
October 23, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-1-00798-0, James J. Stonier, J., entered March 29, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Antonio Rial, Jr. appeals his conviction of first degree murder while armed with a firearm. We hold that Rial was not denied effective assistance of counsel when his counsel did not argue self-defense. We hold that Rial was not denied effective assistance of counsel when his counsel disclosed a potential conflict of interest. Finally, we do not review Rial's claim for the first time on appeal that the trial court admitted improper opinion testimony, as there was no manifest constitutional error. We affirm.
FACTS
Nicklis Marston and Antonio Rial had been acquaintances and friends for a couple of years. And, at separate times, both Marston and Rial had been involved in a relationship with Katherine Weir. In 2005, a son was born to Marston and Weir. At the hospital, Rial tried to congratulate Marston on the birth of his son. But Marston refused his offer of congratulations and walked away.
We note in the record there are two different spellings of Marston's first name, Nicklis and Nicklas. We use Nicklis in this opinion.
Thereafter, the relationship between Marston and Rial began to sour. Marston and Rial were involved in several altercations. Weir's mother, Corena Weir, described one of these altercations:
Uh, Nick came over he — him and Leto came over, and they were harassing Tony. And they went outside and they were scuffling around. Tony was on his own. Nick had Leto. Leto proceeded to go to the trunk of his car, and grab for a gun.
This is when, uh, Brandon Davis walked up and said, no, this ain't gonna happen. It's gotta stay mutual. I'm both your friends and this can't be. And this is when he took the gun from Leto and — and the fight broke — broke the fight up.
3A RP at 518-19.
The next day after this altercation, several people, including Marston, "showed up" at Richard Barker's house in Longview. 2 RP at 184-85. They were working on a car in the garage, playing pool in the garage, and talking with each other. Rial stopped by the house to pick up a bike frame from one of his friends and confronted Marston. After a quick conversation with Marston, Rial took the bike frame and left.
Rial returned to Barker's house later that afternoon. Barker greeted him; but Rial failed to acknowledge him and walked straight into the garage. Then, shortly after Rial had gone through the garage door, Barker heard three or four gunshots. Barker's sister, Stacy Barker, heard screaming. A few people ran out of the garage, saying that Rial had shot Marston. Barker and his sister called 911. Two bullets struck Marston causing his death.
Meanwhile, Rial fled the scene. He approached a friend, Richard White, who was working on his car. Rial pointed a gun at him and told him to drive to "somewhere safe." 4A RP at 841. Rial placed the gun under the car seat. White then drove to Oregon, where his family and friends lived.
Once in Oregon, White removed the gun from the car and hid it under a rock. Eventually, Steve Johnson, one of Marston's friends, retrieved the gun. Johnson took the gun to Longview and "Joey or some cat was supposed to give it to the cops." 3A RP at 617. Ultimately, the Longview Police Department located the gun, finding that the profile of a DNA sample located on the gun was consistent with the profile of Rial's DNA sample. And forensic analysis confirmed that the bullets that killed Marston had been fired from the recovered gun.
Later, Johnson and several other people beat up Rial.
A few days after the shooting, the Longview Police Department received an anonymous tip that Rial was walking along a road in Oregon. The Columbia County Sheriff's Office picked up Rial, who was subsequently transported to a hospital for medical treatment. Then, after Rial had been transferred back to the Columbia County jail, detectives from the Longview Police Department interviewed Rial. Rial was unable to remember much of what happened before, during, or after the shooting.
The State charged Rial with first degree murder while armed with a firearm. Before his jury trial, Rial's defense counsel notified the trial court that Johnson, one of the State's witnesses, was his former client. Rial's defense counsel asked the trial court "to appoint separate counsel to cross-examine him and deal with him as a witness in the case." 1 RP at 140. And the trial court agreed with his suggestion.
Also, before his jury trial, the trial court admonished Rial:
Mr. Rial, I noticed that you are tending to react to some things that go on. You know, to some degree, that's natural. All right. That's going to happen. I caution you, one, that if it gets extreme, I will take — I'll send the jury out and we'll talk about it. Two, it may actually damage your case.
So, you know, you need to — as — remain as poker-faced as possible, everybody in the courtroom, because the jury needs to decide this case solely on the evidence, and the evidence presented in open court. All right. 1 RP at 145.
Thus, the trial court: (1) partially disqualified Rial's trial counsel and (2) limited the substitute counsel from inquiring about the newly endorsed witness from Rial's trial counsel. And just before Johnson testified, the trial court appointed substitute counsel to represent Rial solely for the purpose of cross-examining Johnson. The substitute counsel then advised the trial court:
[O]bviously the reason for my first contact with [Johnson] today is, I'm relatively new to getting into this matter. And so I wanted to just familiarize myself with him and what his expected testimony was today in light of the conflicting reports that I have seen with respect to the investigators and the officers that have already talked to Mr. Johnson.
3A RP at 603.
Ultimately, the jury found Rial guilty as charged. The trial court sentenced Rial to a standard range sentence of 422 months confinement. Rial timely appealed. Under RAP 9.11 we remanded to the trial court for an evidentiary hearing to determine whether an actual conflict of interest existed between Rial and his counsel. The trial court concluded that no actual conflict existed.
ANALYSIS I. Ineffective Assistance of Counsel for Failing to Argue Self-Defense
Rial claims that he was denied effective assistance of counsel when his trial counsel failed to argue self-defense. We disagree.
To establish ineffective assistance of counsel, Rial must show that: (1) his counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. 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). Rial must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). And to show prejudice, Rial must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335.
Rial argues that his counsel's performance was deficient because self-defense was "the only plausible defense that could have been raised." Br. of Appellant at 23. According to Rial, self-defense was "the method that . . . would generate the highest probability of achieving [an acquittal]." Br. of Appellant at 26. Among other things, Rial notes that: (1) Marston bullied him on several occasions; (2) when he entered the garage, a gun was near Marston; (3) a witness saw somebody trying to hide a gun after the shooting; and (4) he ultimately admitted to the police that he shot Marston in self-defense.
Kevin Bolton, a neighbor of Richard Barker, testified that after the shooting he saw a guy "taking a gun and hiding it in the corner of the garage." 2 RP at 236.
But the State argues that this evidence alone does not tend to prove that Rial killed Marston in self-defense. After all, in order to properly raise the issue of self-defense, the defendant bears the initial burden of producing some credible evidence tending to show that the killing was done in self-defense. State v. Acosta, 101 Wn.2d 612, 619, 683 P.2d 1069 (1984); State v. Walker, 40 Wn. App. 658, 662, 700 P.2d 1168, review denied, 104 Wn.2d 1012 (1985).
Moreover, the right to use deadly force in self-defense is founded on the existence of a necessity. Walker, 40 Wn. App. at 662. "The evidence must establish a confrontation or conflict, not instigated or provoked by the defendant, which would induce a reasonable person, considering all the facts and circumstances known to the defendant, to believe that there was imminent danger of great bodily harm about to be inflicted." Walker, 40 Wn. App. at 662.
Here, Rial did not testify and did not present any defense. Thus, as the State notes, "The only evidence put forth that could arguably support self-defense were the statements [Rial] made to detectives and revealed during their testimony in the State's case-in-chief." Br. of Resp't at 12. Detectives Timothy Deisher and Robert Huhta testified that Rial did not remember much of what happened during the shooting. Nevertheless, Rial told the detectives that after he walked into the garage, Marston "pulled a gun on him." 4 RP at 709; 5 RP at 981. Fearing that Marston would shoot him, Rial told the detectives that he then kicked the gun out of Marston's hands. Rial explained to them that he and Marston wrestled for the gun. Rial then told the detectives that he ultimately picked up the gun and the gun fired. Finally, Rial said that he did not remember shooting the gun and did not remember how many times the gun fired.
Faced with this evidence, Rial's counsel believed that the best or only defense available was to seek an acquittal by showing that Rial lacked premeditation for the murder. In fact, before the trial court instructed the jury, Rial's counsel had the following colloquy with the trial court:
THE COURT: I jumped the gun. Counsel, you were not going to raise self-defense; is that correct, that was a conscious decision?
[RIAL'S COUNSEL]: It was a conscious decision.
THE COURT: And you've discussed that with your client, you're not raising that; is that correct?
[RIAL'S COUNSEL]: That's correct.
THE COURT: All right. Okay. Because I will give that instruction, if you request. I just want to be sure that that's on the record. Okay? All right.
[RIAL'S COUNSEL]: I understand.
5 RP at 1000-01.
Then, during closing argument, Rial's counsel argued:
And when Mr. Rial came into the garage at a relatively fast pace, was there before anyone even realized he was coming, the gun on the table — Mr. [Marston] leans forward — looking at the physical evidence, Mr. [Marston] leans forward. Mr. Rial, within four or five feet of him sees this and reacts terribly wrong. It's nothing — it's reaction. And he shoots Mr. [Marston].
And Mr. [Marston] may not be going for the weapon, but if you look at the circumstances leading up to this, the fact that — I guess just the way we get up from a chair. We don't get up straight. . . . We get up, pushing forward, and that's how he's shot from left to right, this direction. I would suggest that supports the idea that Mr. [Marston] is getting up. He's in this proximity of the weapon. Mr. Rial sees this and he just reacts in a way that is consistent with what's been happening these past days. And what that does is that — that takes away premeditation. And it may as well — it may also take away intent.
. . . .
Anyway, deliberation is a process, and it's more than just forming intent. Because you can form the intent and be guilty of second degree murder. And if you don't premeditate that, if you don't go through a deliberative process, you're not guilty of first degree murder.
When I think of deliberation, I think of a jury, because you go through a careful process of looking at evidence. It doesn't have to be a long process, but it does have to be a thoughtful process. It has to be a conscious process. It has to be a process where you're aware of what you're doing. And that's not what we had here. We had Mr. Rial going in quickly and reacting, and that's not deliberation. It may not be that he even had the time to form the intent. He's in the — basically in a spot where he's had significant problems with Mr. [Marston], sees this weapon, and reacts.
5 RP at 1039-40, 1043.
The record before us conclusively establishes that Rial's counsel was not deficient. Rather than choose a trial strategy based on self-defense, he chose a trial strategy based on a lack of premeditation. "While it is easy in retrospect to find fault with tactics and strategies that failed to gain an acquittal, the failure of what initially appeared to be a valid approach does not render the action of trial counsel reversible error." State v. Renfro, 96 Wn.2d 902, 909, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982). Legitimate trial strategy or tactics cannot be the basis for an ineffective assistance of counsel claim. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994). In light of the foregoing, we find that Rial was not denied effective assistance of counsel.
If one prong of the test fails, this court does not need to address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
For the first time on appeal, Rial claims that Detective Huhta's testimony about Rial's inability to remember much of what happened before, during, or after the shooting was an improper opinion on his credibility under ER 704. Rial explains that "[t]his testimony constituted an opinion on an ultimate issue to be decided by the trier of fact and invaded the province of the jury." Br. of Appellant at 28. We disagree.
Although we concluded in State v. Kirkman, 126 Wn. App. 97, 106, 107 P.3d 133 (2005), rev'd, 159 Wn.2d 918 (2007), that improper opinion testimony violates a constitutional right and may be raised for the first time on appeal, our Supreme Court recently disagreed. State v. Kirkman, 159 Wn.2d 918, 935-37, 155 P.3d 125 (2007). In Kirkman, our Supreme Court relied on State v. Madison, 53 Wn. App. 754, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989), and City of Seattle v. Heatley, 70 Wn. App. 573, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994), in concluding that "[a]dmission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a `manifest' constitutional error." Kirkman, 159 Wn.2d at 936. Furthermore, a manifest error requires a nearly explicit statement by the witness. Kirkman, 159 Wn.2d at 936. Finally, our Supreme Court noted that requiring an explicit or almost explicit witness statement on an ultimate issue of fact was consistent with their precedent holding the manifest error exception is narrow. Kirkman, 159 Wn.2d at 937.
In Madison, Division One of this court indicated its general reluctance to recognize improper opinion testimony as a manifest constitutional error:
Appellate courts are and should be reluctant to conclude that questioning, to which no objection was made at trial, gives rise to "manifest constitutional error" reviewable for the first time on appeal. The failure to object deprives the trial court of an opportunity to prevent or cure the error. The decision not to object may be a sound one on tactical grounds by competent counsel, yet if raised successfully for the first time on appeal, may require a retrial with all the attendant unfortunate consequences. Even worse, and we explicitly are not referring to counsel in this case, it may permit defense counsel to deliberately let error be created in the record, reasoning that while the harm at trial may not be too serious, the error may be very useful on appeal.
Madison, 53 Wn. App. at 762-63.
In Heatley, Division One of this court noted, "The decision to admit or exclude opinion testimony generally involves the routine exercise of discretion by the trial court under, among other rules, ER 401, 403, 701, 702 and 704. These rules govern evidentiary questions that do not necessarily implicate constitutional rights." Heatley, 70 Wn. App. at 585.
Here, the State did not ask Detective Huhta for his opinion of Rial's credibility. Instead, the State asked Detective Huhta to relate the conversation he had with Rial. And the State asked Detective Huhta about his experience in interviewing suspects. In other words, Detective Huhta's testimony contained neither an explicit nor a nearly explicit statement of opinion on Rial's credibility.
Furthermore, Rial's counsel did not object to Detective Huhta's answers. Rial's counsel then cross-examined Detective Huhta. And the trial court ultimately instructed the jury that it was the sole judge of credibility and the sole judge of the value or weight to accord each witnesses's testimony.
Nothing in the record suggests that Detective Huhta's testimony was unfairly prejudicial, i.e., that it persuaded the jury to abdicate its responsibility and decide the case on a basis other than the evidence and the pertinent law. Under these circumstances, we conclude that there was no manifest constitutional error in Rial's case. Therefore, we do not review the alleged error for the first time on appeal.
III. Ineffective Assistance of Counsel for Conflict of Interest
Rial claims that he was denied effective assistance of counsel because his trial counsel had an actual conflict of interest. As authority for his argument, Rial relies on former RPC 1.9 (2006). But the purpose of former RPC 1.9 is to protect the former client's interest, not the current client's interest. See United States ex rel. Lord Elec. Co. v. Titan Pac. Constr. Corp., 637 F. Supp. 1556, 1562 (W.D. Wash. 1986); State v. White, 80 Wn. App. 406, 414-16, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996); Teja v. Saran, 68 Wn. App. 793, 798, 846 P.2d 1375, review denied, 122 Wn.2d 1008 (1993). Thus, because he is not aggrieved under former RPC 1.9, Rial has no standing to challenge his trial counsel's actions under this rule.
Paragraph nine of the newly adopted comments to newly amended RPC 1.9 also states that "[t]he provisions of this Rule are for the protection of former clients." (Emphasis added.)
Nevertheless, we analyze Rial's claim that he was denied effective assistance of counsel using former RPC 1.7 (2006), which in part provides:
Effective September 1, 2006, our Supreme Court amended RPC 1.7, which now in part provides:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
. . .
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
. . .
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing (following authorization from the other client to make any required disclosures).
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Normally, we engage in a two-part inquiry to determine whether an actual conflict of interest deprived a defendant of effective assistance of counsel: (1) was there a conflict of interest and (2) if so, did the conflict adversely affect defense counsel's performance? Mickens v. Taylor, 535 U.S. 162, 174-75, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); White, 80 Wn. App. at 411. And if a defendant satisfies the above two-part inquiry, we presume prejudice. Strickland, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); In re Pers. Restraint of Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983).
An actual conflict of interest exists when defense counsel owes duties to a party whose interests are adverse to those of the defendant. State v. Byrd, 30 Wn. App. 794, 798, 638 P.2d 601 (1981); State v. Nielsen, 29 Wn. App. 451, 454, 629 P.2d 1333 (1981). Former RPC 1.7(b) prohibits counsel from representing a client if the counsel's duties to another client or a third person materially limit that representation. White, 80 Wn. App. at 412. And the trial court has a duty to inquire into a potential conflict of interest when there are special circumstances such that the trial court knows or should reasonably know that a particular conflict exists. White, 80 Wn. App. at 413. Among other things, this duty ensures that the trial court will jealously guard a defendant's right to effective counsel. Contra Richardson, 100 Wn.2d at 678.
As used, the phrase "actual conflict of interest" is shorthand for a conflict of interest that actually affected the attorney's performance. Mickens, 535 U.S. at 171.
But in Mickens, the United States Supreme Court held that automatic reversal is not constitutionally required when a trial court fails to inquire about a potential conflict of interest of which it was or should have been aware. Mickens, 535 U.S. at 172. The defendant still must demonstrate a conflict of interest that adversely affected his counsel's performance. Mickens, 535 U.S. at 174; see State v. Dhaliwal, 150 Wn.2d 559, 570-71, 79 P.3d 432 (2003).
Under Mickens and Sullivan, the defendant bears the burden of proving that a conflict of interest adversely affected his counsel's performance. Mickens, 535 U.S. at 174; Sullivan, 446 U.S. at 350; Dhaliwal, 150 Wn.2d at 573. A mere possibility of a conflict of interest is not enough to warrant reversal. Dhaliwal, 150 Wn.2d at 573. "[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." Sullivan, 446 U.S. at 350.
Here, the trial court obviously knew that a possible conflict of interest under RPC 1.7 existed. After all, Rial's trial counsel informed the trial court:
Yes. I brought this to the Court's attention Friday. Mr. Johnson was endorsed, I think on Friday, as a witness. He's a prior client of mine, and [I will] be asking the Court to appoint separate counsel to cross-examine him and deal with him as a witness in the case.
1 RP at 140. Rial's counsel then asked the trial court "to appoint separate counsel to cross-examine him and deal with him as a witness in the case." 1 RP at 140. The trial court agreed, saying, "[B]asically, you'll have no contact with — except to indicate what you think are the relevant areas, but you won't be disclosing any information regarding Mr. Johnson. And that that defense attorney can do cross-examination of Mr. Johnson." 1 RP at 141. Rial's counsel then concluded, "And I've reviewed, I guess RPC 1.9, which deals with former clients. And I think that this is maybe being done out of an abundance of caution but I think it is probably the safest route to go here." 1 RP at 141.
But there is no record that an actual conflict of interest ever existed. At a remand hearing to determine whether a conflict of interest adversely affected Rial's counsel, the trial court found that Rial's counsel had previously represented Johnson in pleading guilty to a drug possession charge. "The specific facts of the case in which [Rial's counsel] previously represented Mr. Johnson were unrelated to the facts involved in the murder charge against Mr. Rial." CP at 105. Rial's counsel had "no doubt" that Johnson acknowledged his criminal history to him during his representation. CP at 105. But Rial's counsel was not aware of any other potential confidences or secrets that he might have obtained while representing Johnson. "Out of a sense of duty" to Johnson, Rial's counsel disclosed his concerns about a possible conflict of interest to the trial court. CP at 105. And the trial court found that Rial's counsel "felt uncomfortable about cross-examining Mr. Johnson in a manner that might expose [him] to future criminal liability." CP at 105.
Prior representation of an adverse witness does not, by itself, constitute an actual conflict of interest. See, e.g., State v. Ramos, 83 Wn. App. 622, 922 P.2d 193 (1996). At the end of the remand hearing, the trial court concluded that Rial's counsel's prior representation of Johnson did not create an actual conflict of interest.
Johnson was an important witness. He and several people "beat up" Rial. 3A RP at 623. And he claimed to be one of the few people who handled the murder weapon before the Longview Police located it.
Nevertheless, even after an evidentiary hearing on remand, Rial has failed to establish an actual conflict of interest because he has not shown how his counsel's prior representation of Johnson affected his counsel's performance at trial. Rial has had ample opportunity to prove that his counsel was operating under an actual conflict of interest, but he has failed to do so.
We briefly address the trial court's direction to the defendant to maintain a "poker face?" during the trial. 1 RP at 145. A trial court has the right to maintain order and decorum in its courtroom. State v. DeWeese, 117 Wn.2d 369, 380, 816 P.2d 1 (1991). And a trial court could plainly control a defendant who made threatening gestures or statements to influence witnesses on the stand. DeWeese, 117 Wn.2d at 380. Here, we find no constitutional error as asserted. But we regard a better practice as not insisting on some type of neutral expression from a defendant who is neither disruptive nor threatening. Neutrality, when events are humorous or sad to all persons in the courtroom can be interpreted as unfeeling or evincing a psychopathy that is abnormal. And, it places an arbitrariness in the hands of the judge that cannot be measured for review.
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.
HUNT, J. and QUINN-BRINTNALL, J., concur.