March 31, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06150-9, Andrea A. Darvis, J., entered November 9, 2006.
Affirmed by unpublished opinion per Cox, J., concurred in by Appelwick, C.J., and Lau, J.
Michael Allen Rideaux appeals his convictions of one count of first degree murder and two counts of attempted first degree murder. The trial court did not abuse its discretion by excluding evidence of alleged bias and of a prior juvenile adjudication of a witness. Moreover, it did not abuse its discretion in denying his motion for a mistrial and his separate motion for a continuance of his sentencing hearing. He fails in his burden to show his counsel was ineffective at trial. There was no cumulative error. Rideaux's statement of additional grounds fails to establish any basis for relief. We affirm.
In the early morning hours of March 12, 2005, shots fired from one of two cars driving northbound on SR 167 in Auburn hit and killed the driver of the other car. The shots also hit two other occupants of the car.
The evening before this incident, a number of individuals were socializing and drinking alcohol at the apartments of Johnny Rodriguez and his sister, Danielle Pettit. Dee Davis, Ramon Porter, Rick Rae, Johnny Rodriguez, and Michael Rideaux, among others, were present at the apartment. Tension arose between Rae and Porter and their respective groups of friends. Eventually, Davis and Rodriguez fought.
When the fight broke up, Porter and Davis "sped off" in Davis's car. According to Rodriguez's testimony at trial, he noticed his necklace was missing after the fight. He then went into his apartment and grabbed his automatic weapon, a MAK-90. He intended to follow Davis's car to retrieve his necklace somehow. He jumped in his car and threw the gun in the backseat. Rae got into the passenger's seat, and Rideaux got in the back.
When they caught up with Davis's vehicle, Rideaux started shooting. The shots killed Davis. They also injured his girlfriend, Maudy Flores-Martinez, who was in the passenger seat, and Porter, who was in the back seat.
A 12:51 a.m., police found Davis's car in a swampy area across the southbound lanes of SR 167. Investigators did not recover the gun or any physical evidence.
The State charged both Rideaux and Rodriguez with one count of first degree murder and two counts of attempted first degree murder. The State gave Rae use immunity for his trial testimony. Rodriguez pled guilty to second degree murder and second degree assault. A jury convicted Rideaux on all counts.
Credibility Evidence Evidence of Bias
Rideaux first argues the trial court abused its discretion when it excluded evidence of alleged bias of a key State witness. We disagree.
A defendant has a constitutional right to present testimony in his defense and to confront and cross examine adverse witnesses. The right to cross examine witnesses is not absolute. Relevant evidence is admissible unless otherwise prohibited. A defendant does not have a constitutional right to present irrelevant evidence. Generally, evidence of bias is relevant to a witness's credibility. A trial court properly limits cross examination where the circumstances only remotely tend to show bias or prejudice of the witness, or where evidence is vague or speculative.
Darden, 145 Wn.2d at 619.
Here, Danielle Pettit testified that Rideaux confessed to shooting Davis, Flores, and Porter. Rideaux sought to impeach her credibility by showing she was biased. He offered evidence that allegedly showed Pettit had lied to protect her brother, Johnny Rodriguez, three years earlier. On July 4, 2003, police arrived at Pettit's apartment to investigate a report that shots had been fired. Pettit told police she had never seen or known her brother to have guns, and no guns were ever in her home. Police found a shotgun while searching her apartment. Police never determined who owned the gun. Rideaux proffered statements from other members of Pettit's and Rodriguez's family saying they knew Pettit covered for Rodriguez with police in 2003.
The trial court correctly excluded this evidence as irrelevant to show bias and "collateral" to this case. Significantly, Rideaux's evidence did not establish that the shotgun involved in the 2003 incident belonged to Rodriguez. Even if it had, it does not prove that Pettit was biased against Rideaux. The jury would have had to speculate whether Pettit's history of covering for her brother motivated her to accuse Rideaux of this shooting.
Rideaux argues that State v. Jones requires a different result. That case involved an undercover drug buy and turned on whether the jury believed Jones or the police agent. The defendant offered to prove with two witnesses, in addition to his own testimony, that the officer said to Jones that he would testify in a manner than would "fry" him. Division Two of this court reversed Jones' conviction and held that the proffered testimony was admissible because it was offered to prove the actual bias of the State's witness against Jones, not to impeach the police agent on a collateral matter. Jones is distinguishable. Unlike the evidence in Jones, Rideaux's evidence does not show Pettit's bias toward him. Rideaux's evidence proves only that Pettit had a gun in her home in 2003 and that she may have covered for her brother with police on that occasion, which is unrelated to this one.
Jones, 25 Wn. App. at 748.
Jones, 25 Wn. App. at 750.
Rideaux also misreads State v. McDaniel to carve out an exception to ER 608(b) permitting admission of collateral evidence of a witness's conduct where it is alleged to show bias, even after a trial court has determined that same evidence is not relevant to bias. McDaniel states only that evidence relevant to show bias is admissible, despite being otherwise collateral.
McDaniel, 37 Wn. App. at 772-73.
Evidence of Prior Juvenile Adjudications, ER 609
Rideaux next argues the trial court abused its discretion by excluding evidence of a key witness's juvenile convictions. We disagree.
In a criminal case, evidence of prior convictions involving dishonesty is generally admissible to attack the credibility of a witness. However, evidence of juvenile convictions is generally not admissible under the rule. A court may allow evidence of a juvenile conviction if otherwise admissible to attack the credibility of an adult and if the court is satisfied that it is necessary for a fair trial. In the absence of any "special reasons" beyond general impeachment, juvenile adjudications remain inadmissible. Here, Rae testified that Rideaux rode in the back seat and shot at the occupants in the other vehicle. Rideaux sought to impeach his credibility with two prior juvenile adjudications for theft, a crime of dishonesty. Rideaux argues that because Rae was such an important State witness, it was necessary to admit the juvenile adjudications.
ER 609(d) (emphasis added).
Rideaux fails to explain how he has overcome the presumption that such prior juvenile adjudications are inadmissible as the rule states. Specifically, there is no showing in this record that admission of this evidence is "necessary for a fair determination of the issue of guilt or innocence," as the rule provides.
There was other admissible evidence to impeach Rae's credibility. For example, the State gave Rae use immunity for his testimony. In short, the desire to impeach alone is insufficient to permit the admission of this evidence. After considering the availability of other impeachment evidence, the trial court reasonably determined that fairness did not require it to admit Rae's juvenile offenses. There was no abuse of discretion.
Rideaux contends the trial court erred in denying his motion for a mistrial based on a claimed trial irregularity, unexpected testimony by a State witness. We disagree.
A prosecuting attorney is obligated under CrR 4.7(a)(1)(i) to disclose to the defendant the substance of any oral statements of witnesses the State intends to call. The constitution does not require a trial court to declare a mistrial in every instance where the State violates a discovery rule. A mistrial should be granted only when "the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." A trial court's decision whether to grant a mistrial is reviewed for an abuse of discretion.
CrR 4.7 (a)(1)(i).
Here, the State learned the day before Flores-Martinez testified that she would say she saw the rear window of the car from which the shots were fired rolled part-way down. This testimony was different from prior statements by this witness. The State acknowledges that it failed to disclose this new information to the defense. Flores-Martinez also failed to tell the defense this new information prior to trial.
On direct examination, Flores-Martinez testified:
Q: Did you notice anything about the windows on that other vehicle, whether they were up or down?
Report of Proceedings (Aug. 31, 2006) at 23-24.
When asked if she could see anything like a face or a rifle or anything, she answered:
Well, when I was sitting down, when I ducked down, `cause I wasn't trying to get hit, I seen a black — I don't know how long it was, I just seen the tip of it.
Report of Proceedings (Aug. 31, 2006) at 27.
Following this testimony, defense counsel properly asked for a side bar so that the jury would not be privy to the discussions among the court and both counsel. During the discussions, the defense explained its surprise at hearing these facts for the first time. Counsel moved for a mistrial on the bases that counsel had been surprised by the testimony and believed her testimony had been influenced. The State indicated that this was also the first time it heard Flores-Martinez indicate she had seen anything like a gun.
Assuming for purposes of our discussion that these events constitute a trial irregularity, Rideaux fails to demonstrate prejudice. Without citing authority, Rideaux argues he suffered prejudice that no curative instruction could have ameliorated because the jury witnessed defense counsel's surprise during testimony. The record does not support this last assertion as to what the jury did or did not see insofar as counsel's surprise. Moreover, his argument that the court permitting the jury to take a recess during the sidebar gave undue attention and weight to Flores-Martinez's testimony is unpersuasive.
In denying the motion, the trial court noted that defense counsel was careful and professional when asking for a sidebar. The court concluded that even if the State had disclosed the new information, the jury would not have heard anything different. Furthermore, taking a recess after the testimony was not unusual because other recesses had occurred throughout trial for various reasons.
The trail court did not abuse its discretion in allowing this testimony and denying the motion for a mistrial.
MOTION FOR CONTINUANCE AT SENTENCING
Rideaux claims the trial court abused its discretion when it denied his motion for continuance at sentencing. He claims this violated his Sixth Amendment right to counsel, requiring reversal. We disagree.
The Sixth Amendment guarantees a defendant the right to be represented by counsel of his choice. However, this right is limited. A trial court has great latitude in balancing the right to counsel of choice against the needs of fairness and the demands of its calendar. A trial court does not violate a defendant's Sixth Amendment right by denying his untimely request to retain counsel of his or her choice. The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court.
Id. at 2565-66.
Here, the jury returned its verdict on September 15, 2006. On October 11, the court held a status conference to confirm who would represent Rideaux at sentencing and to schedule the sentencing hearing. Although Rideaux had alerted the court that he planned to hire new counsel, at the status conference, Page 12 Rideaux's trial counsel informed the court that new counsel would not be stepping in after all. By agreement of all parties, the court set sentencing for November 9.
At sentencing, Rideaux informed the court for the first time that he had retained new counsel to represent him at sentencing at a future date. He asked for a continuance so his new counsel could review the record and prepare a sentencing memorandum. He argued that his request was untimely because his family could not secure funds to retain new counsel until a bankruptcy court approved the funds, which had occurred only the night before sentencing.
The trial court denied Rideaux's admittedly untimely motion. The court noted that the briefing was complete on the exceptional sentence issue. Moreover, members of the victim's family, who had long awaited closure in this matter, were in attendance.
In State v. Early, the defendant retained counsel two days before trial began and sought a continuance. The court had postponed trial four times, giving Early six months in which to retain private counsel. Because appointed counsel was prepared, and the witnesses and jury were ready, the trial court denied Early's motion as untimely. Division Three of this court affirmed, noting that a continuance to secure or replace counsel will routinely be denied where the lack of representation is due to the defendant's own lack of diligence.
Early, 70 Wn. App. at 456.
Id. at 458.
Id. at 458-59.
Our case is similar to Early because it was Rideaux's lack of diligence in updating the court about his financial situation, timeline, and reasons for retaining new counsel that led to denial of his motion. Not only did Rideaux's counsel inform the court that he would not retain new counsel, the record contains no evidence that Rideaux communicated with the court thereafter concerning what was, apparently, his ongoing effort to secure new counsel. Nor does it reflect that Rideaux informed the trial court that his ability to secure new counsel depended on a bankruptcy court ruling. Under these circumstances, Rideaux's motion was untimely. This untimely motion fares no better by characterizing the alleged error as a violation of his constitutional right to counsel of choice.
Finally, Rideaux argues that United States v. Golzales-Lopez requires reversal because denying one counsel of choice is a structural error. But Gonalez-Lopez is not applicable because Rideaux was not wrongly denied his right to counsel of his choice.
United States v. Gonzales-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 2566, 165 L. Ed. 2d 409 (2006) (holding that the erroneous deprivation of the right to counsel of choice is not subject to harmless-error analysis).
The trial court did not abuse its discretion by denying Rideaux's motion.
INEFFECTIVE ASSISTANCE OF COUNSEL
Rideaux contends that defense counsel's trial tactics constitute deficient performance because they made it more likely that the jury believed he was the shooter. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his 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 verdict would have been different. If one of the two prongs of the test is absent, we need not inquire further.
McFarland, 127 Wn.2d at 336.
At trial, Detective Robert Jones testified on direct about his interviews with Rideaux and the investigation. The State did not question Detective Jones whether Rideaux told the detective what he purportedly did after the shooting or whether he was in the car. On cross-examination, defense counsel and the detective had the following exchange:
Defense Counsel: Well isn't it true that on one occasion [Rideaux] went with you to go try to find the lake where the gun was allegedly thrown?
Report of Proceedings (Sept. 12, 2006) at 98-99.
The State argued this opened the door to Rideaux's proffer. Defense counsel contended that any discussion with police about helping them search for the lake where the weapon was abandoned occurred after the proffer was complete. Defense counsel insisted he had good reason to elicit the testimony to counter the State's experts and argument that the lack of a murder weapon did not matter because DNA or fingerprints could not have been taken from a gun that had been submerged in water for nearly a year. He sought to discredit this anticipated argument by showing that if true, detectives would not have looked for the gun in the first place.
The trial court ruled that the door to the proffer agreement had not been opened, but allowed the State to elicit testimony from the detective about the search, including testimony that suggested Rideaux was in the vehicle. The detective testified:
You know, he couldn't be specific with us. It was more of a — it happened so quick, a short distance, and then they got off 167.
Report of Proceedings (Sept. 12, 2006) at 129.
The State also elicited testimony rebutting the suggestion that Rideaux cooperated with police. The detective testified that Rideaux made inconsistent statements regarding his whereabouts the night of the shooting. Once police told Rideaux they had surveillance video from the club where he claimed to have been that night, he changed his story, saying he never went out.
On appeal, Rideaux contends his counsel was ineffective because no legitimate reason existed for counsel to elicit evidence that strongly suggested he was in the car at the time of the shooting. He further argues that this line of examination contradicted counsel's earlier opening statements that only non-credible evidence placed Rideaux in the car at the time of the shooting. He also argues that defense counsel compounded the error by arguing that Rideaux would have testified consistently with his statements to police if he had testified at trial.
This, he argues, paved the way for the State to argue in rebuttal that Rideaux would have testified untruthfully if he had testified.
We need not decide whether defense counsel's performance was deficient. We note that while in hindsight defense counsel's tactic may have been unwise, this does not render the tactic itself illegitimate.
See Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time.").
More importantly, Rideaux fails to establish there is a reasonable probability that but for his counsel's performance the outcome of his trial would have been different. The record contains substantial evidence to support the jury's verdict that Rideaux was in the vehicle at the time of the shooting. The testimony elicited by defense counsel during the examination of the detective added nothing of substance. Eyewitnesses Rodriguez and Rae testified that Rideaux was in the car and was the shooter. Pettit and Mattos testified that Rideaux confessed to being the shooter. It is pure speculation to argue that without the testimony of Detective Jones placing him at the scene of the shooting, the jury might have disbelieved the testimony of Rodriguez and Rae.
See Strickland, 466 U.S. at 694.
Finally, Rideaux argues it is significant that the jury requested copies of his statements to police. We will not speculate on why the jury made the request. We note that both parties asked Detective Jones about what Rideaux did and did not say in his statements to police. It is entirely plausible that the jury sought to review the requested material for clarification. This does nothing to advance Rideaux's arguments.
Rideaux fails to demonstrate that his counsel at trial was ineffective.
Rideaux argues the State committed misconduct by referring to defense arguments as "tricks." We disagree.
A defendant claiming prosecutorial misconduct bears the burden to establish that the prosecutor's conduct was both improper and prejudicial. "Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request." Failure to object to a prosecutor's improper remark constitutes waiver unless "the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."
Id. at 640.
Here, during voir dire, defense counsel referred to some of his own interactions with the jury as "tricks." In closing, defense counsel vigorously argued inferences from the evidence as though conclusive of the defense's version of events. In rebuttal, the State argued that the defense had introduced new facts during closing. The prosecutor argued, "You've seen quite a few of the defense's little tricks in this trial, and you've seen a number of them today in closing argument." The prosecutor also encouraged the jury to "go back, look at your notes, don't fall for that trick."
Report of Proceedings (Sept. 13, 2006) at 155.
Report of Proceedings (Sept. 13, 2006) at 157.
See Gentry, 125 Wn.2d at 595 (holding that defendant failed to prove reversible misconduct where prosecuting attorney commented on lack of evidence produced by the defense, and defendant did not contemporaneously object or request a curative instruction); see also Drummond v. State, 624 S.W.2d 690, 694 (Tex. 1981) (holding where State referred to defense tactics as "tricks," defendant objected, and trial court instructed jury to disregard, the instruction cured any resulting prejudice).
Rideaux argues that cumulative error denied him a fair trial. We disagree. Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal when the combined effects of the errors denied the defendant a fair trial. Because no prejudicial error occurred, the doctrine is not applicable to this case.
STATEMENT OF ADDITIONAL GROUNDS
Rideaux filed pro se a statement of additional grounds for review raising two issues. We conclude that his arguments are without merit.
He argues the State committed misconduct by failing to disclose that Flores-Martinez would testify about the rear window of the car from which shots were fired. The court did not err in denying the motion for mistrial, as discussed above.
He next argues that the court abused its discretion by not excluding witness Mitchell Stoemmer after the State omitted him from its witness list and later sought to call him as a witness after locating him. The court did not abuse its discretion in allowing Stoemmer to testify considering that defense counsel elected to interview Stoemmer and have him testify rather than exclude him and withdraw its missing witness jury instruction.
We affirm the judgment and sentence.