No. 28002-7-IIThe Court of Appeals of Washington, Division Two.
Filed: April 29, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 01-1-01859-2 Judgment or order under review Date filed: 10/05/2001
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
HOUGHTON, J.
Jos` Henrique Silva Maciel appeals his conviction of first degree assault, unlawful manufacture of a controlled substance, and unlawful possession of a controlled substance, arguing that the trial court erred in denying his motion to suppress evidence and in instructing the jury. He also claims that he received ineffective assistance of counsel.
We affirm.
FACTS
On April 2, 2001, Pierce County Sheriff Deputies James Wilson and Brian Witt went to a mobile home outside of Roy, Washington, to serve a felony arrest warrant on Angela Pierce. They arrived just after 12:30 p.m. Outside the home, the deputies observed an unoccupied vehicle with the engine running. An extension cord ran from the vehicle into the mobile home through a window, apparently powering something inside.
Wilson turned off the vehicle so that anyone fleeing the mobile home could not use it to escape. When he disconnected the extension cord from the vehicle, he heard a thud from inside the home.
As Witt approached the front door, he smelled a solvent-type chemical odor coming from inside. As he knocked on the front door and announced his presence, Wilson stationed himself at the back door. There was no response to his call, but Witt heard movement from inside, as though something had been knocked over. He suspected that Pierce was inside.
Shortly after their arrival and just as Witt stepped back from the door to confer with Wilson, a chemical-smelling fog emerged from inside the home. Based on Witt’s training and experience, he believed that the home contained a methamphetamine lab. He also suspected that turning off the vehicle had triggered a chemical reaction that could lead to an explosion or fire. The deputies were concerned that someone, perhaps now incapacitated by the chemical fumes, was still inside because they heard movement but received no response to their announcements.
At approximately 12:45 p.m., Witt radioed his sergeant for authorization to make a forced entry to apprehend Pierce. After receiving authorization, Witt called for assistance.
While waiting for assistance, the deputies spoke to a neighbor, who told them that `the female’ from the mobile home had left before they arrived. 1 Report of Proceedings (RP) at 13. The deputies decided that forced entry was no longer necessary if Pierce was not home.
Witt then contacted the Sheriff’s Department methamphetamine lab team and reported that the deputies suspected an active methamphetamine lab. A team member told Witt to ventilate the mobile home by opening the back door with a special crowbar, lessening the possibility of an explosion or medical hazard to any occupants. Deputy Jim Jones arrived as backup about 1 p.m. He brought a crowbar that would not cause sparks that could ignite flammable materials or vapors in the home.
At approximately 1:10 p.m., the three deputies again knocked and announced themselves and warned that they were going to ventilate the mobile home. They received no response. They used the crowbar to pry open the back door of the mobile home. When they pulled down a blanket that was hanging in the doorway, Jones saw someone retreat to a rear bedroom.
The deputies then entered the mobile home. Because of the fumes, they determined that anyone inside should leave. The deputies conducted a protective sweep, searching for human beings who might be endangered, not contraband. They approached the back bedroom, announced their presence, but received no response.
On entering the bedroom, they saw a person, later identified as Ancil Jones, lying face down on the floor. After Jones handcuffed Ancil, Witt put him in one of the patrol cars.
After the deputies removed Ancil, they saw legs sticking out from under a bed. Jones ordered the individual out, but he did not respond. Jones kicked the legs twice.
As the deputy started to kick the legs again, the individual yelled, `Fuck you, mother fuckers’ and, at least twice, fired a gun up through the mattress, in the deputies’ direction. 3 RP at 251. The deputies retreated while returning gunfire. As they left, Jones ‘[h]eard no movements, no rustlings, no shuffles, no moans, no groans,’ and the body under the bed remained still. 3 RP at 306.
Outside, Witt heard the gunfire and radioed for Special Weapons and Tactical (SWAT) team assistance. The deputies left the individual under the bed and secured the mobile home until the SWAT team arrived about fifteen to twenty minutes later.
The SWAT team assumed control of the area. Although at first the team members thought the individual was dead, they discovered he was unconscious and required medical assistance. They later identified Silva Maciel as the man under the bed.[1]
The methamphetamine lab team arrived, obtained a search warrant, and searched the mobile home. The lab team concluded that there was an active methamphetamine lab in the bathroom. The State Crime Laboratory later confirmed this conclusion.
The State charged Silva Maciel with two counts of first degree assault, one count of unlawful manufacture of a controlled substance (methamphetamine), and one count of unlawful possession of a controlled substance (methamphetamine) with intent to deliver, each with a firearm enhancement.
Silva Maciel moved to suppress evidence under CrR 3.6.[2] He argued that the deputies had time to obtain a telephonic search warrant before entering the mobile home but chose instead to enter without a warrant.
The trial court orally ruled that once the deputies properly turned off the vehicle, they created an emergency that justified a warrantless entry into the mobile home. The trial court directed counsel to prepare written findings and conclusions.[3]
The matter was then tried to a jury. Silva Maciel testified at trial that it was Ancil’s methamphetamine lab. Silva Maciel also testified that he was at the mobile home on April 2, `helping [Ancil Jones make methamphetamine] in the bathroom.’ 5 RP at 500. Silva Maciel further testified that he was trying to commit suicide, not harm the deputies, when he fired shots under the bed.
At the conclusion of trial, the court, without exception, gave the jury two definitions of assault. First, that an assault is an intentional shooting. Second, that an assault is an intentional, but failed shooting.
The jury convicted Silva Maciel as charged and he appeals.
ANALYSIS
Motion to Suppress
Silva Maciel first contends that the trial court erred in denying his CrR 3.6 motion to suppress. He asserts that substantial evidence does not support the trial court’s finding that an emergency existed, justifying the deputies’ warrantless entry into the mobile home.[4]
On review, we determine whether substantial evidence supports the trial court’s findings of fact and, if so, whether the findings support the trial court’s conclusions of law. Evidence is substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).
The trial court denied Silva Maciel’s motion to suppress evidence, noting that once the deputies properly shut off the running vehicle, they created an emergency permitting them to enter the mobile home without a search warrant to determine if anyone was in need of aid.
To establish an emergency that justifies a warrantless search, [T]he State must show that: (1) the searching officer subjectively believed an emergency existed; and (2) a reasonable person in the same circumstances would have thought an emergency existed. In determining whether the first of these conditions is satisfied, the court may examine whether the officer’s acts were consistent with his or her claimed motivation.
State v. Downey, 53 Wn. App. 543, 545, 768 P.2d 502 (1989) (citations omitted).
Here, substantial evidence supports the trial court’s finding that an emergency existed. The State established that the deputies subjectively believed that there was an emergency when they turned off the vehicle, heard a thud and movement inside the home, smelled and saw a chemically-laced fog emanating from the structure, and received no response to their announced presence. These facts likewise support the trial court’s finding that a reasonable law enforcement officer would have believed that an emergency existed. Finally, the deputies’ acts were consistent with their claimed motivation in that they called for backup, special equipment, and methamphetamine lab abatement assistance.
Sufficiency of the Evidence
Silva Maciel next contends that the evidence was insufficient to prove his intent to assault the deputies.
When we review challenges to the sufficiency of the evidence, we use the familiar tests found in State v. Salinas, 119 Wn.2d 192-201, 829 P.2d 1068 (1992); State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628
(1980); State v. Delmarter, 94 Wn.2d 634, 637-38, 618 P.2d 99 (1980); and State v. Fiser, 99 Wn. App. 714, 718-19, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000). Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. A defendant claiming insufficiency admits the truth of the State’s evidence and all reasonable inferences drawn in favor of the State, with circumstantial evidence and direct evidence being equally reliable. In considering the evidence, ‘[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal.’ State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The deputies testified that when they confronted Silva Maciel in the bedroom, he yelled `Fuck you, mother fuckers’ and then fired a gun at least twice up through the bottom of the mattress in their direction. 3 RP at 251. Silva Maciel also testified, claiming that he intended to kill himself and not harm the deputies.
The jury chose to believe the deputies and not Silva Maciel. We will not disturb that credibility finding on appeal. Camarillo, 115 Wn.2d at 71. Sufficient evidence establishes that Silva Maciel intended to assault the deputies when he yelled obscenities at them and fired shots up through the bed. Jury Instruction 14
Silva Maciel next challenges instruction 14. We review claimed errors of law in jury instructions de novo; an instruction that misstates the applicable law is reversible error if it causes prejudice. State v. Atkinson, 113 Wn. App. 661, 667, 54 P.3d 702 (2002). Finally, failing to object to a proposed jury instruction at trial generally precludes appellate review, unless the error implicated is of constitutional magnitude. RAP 2.5; State v. Rosul, 95 Wn. App. 175, 179-80, 974 P.2d 916, review denied, 139 Wn.2d 1006 (1999). Due process requires that jury instructions define every element of the offense charged and failing to do so is error of constitutional magnitude. State v. Haberman, 105 Wn. App. 926, 935, 22 P.3d 264 (2001).
Here, the trial court instructed:
An assault is an intentional shooting of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A shooting is offensive, if the shooting would offend an ordinary person who is not unduly sensitive.
An assault is also an act, with unlawful force, 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.
Clerk’s Papers (CP) at 26 (instruction 14).[5]
In closing, the State argued:
In terms of an assault itself, that’s described or defined to you in the jury instructions. And one of the key issues is that it is not necessary that bodily injury actually be inflicted for it to constitute an assault. The assault is defined as an intentional shooting of another or a person that is harmful or offensive, regardless of whether any injury is done. And a shooting is offensive if the shooting would offend an ordinary person who is not unduly sensitive.
Getting shot at is offensive. Having bullets come winging up just a few feet from you, that’s offensive. And the fact that these deputies managed to escape without harm doesn’t make it any less of an assault. That’s just them being extremely lucky that day.
6 RP at 602.
We begin by noting that counsel failed to object to instruction 14 or to propose an alternative, which ordinarily precludes our review, unless the claimed error is of constitutional magnitude. Rosul, 95 Wn. App. at 179-80. Next, we observe that the definition of assault is not an element of the crime and, thus, even assuming error, it is not of constitutional magnitude. See State v. Daniels, 87 Wn. App. 149, 155-56, 940 P.2d 690 (1997), review denied, 133 Wn.2d 1031 (1998). Nevertheless, because Silva Maciel also argues that his counsel was ineffective in failing to object, we review the assigned error.
Silva Maciel contends that instruction 14 improperly defined assault in two ways when only one applied. He asserts that this instruction, combined with the State’s closing argument based on it, prejudiced him.
He appears to argue that, because the instruction defining assault referred to a battery and the State referred to a shooting, it prejudiced him because there was no battery. Turning to the State’s argument first, we note that although the prosecutor first referred to shooting another person, she then noted that it must be offensive, regardless of the lack of injury, and finally noted that ‘[g]etting shot at is offensive.’ 6 RP at 602. This argument fits the facts here. Moreover, the `to convict’ instruction clearly did not require a battery, rather than requiring an act `with intent to inflict great bodily harm.’ CP at 23 (instruction 11). Silva Maciel was not prejudiced. Ineffective Assistance of Counsel
Finally, Silva Maciel contends that he received ineffective assistance of trial counsel because (1) counsel failed to object to instruction 14, failed to offer a substitute, and failed to object to the prosecutor’s argument regarding that instruction; and (2) counsel failed to investigate a diminished capacity defense.
Both the United States and the Washington State constitutions guarantee a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, sec. 22. The test for ineffective assistance of counsel has two parts. One, it must be shown that defense counsel’s conduct was so deficient that it fell below an objective standard of reasonableness. Two, it must be shown that such conduct prejudiced the defendant and that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have been different. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816
(1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
In reviewing this type of challenge, we presume that the assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122, review denied, 105 Wn.2d 1013 (1986). We will not consider matters that are regarded as tactical decisions or trial strategy. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Silva Maciel argues that counsel failed to except to instruction 14 or to the State’s closing argument based on it. We have addressed this argument above.
Silva Maciel also argues that counsel failed to seek a diminished capacity defense. Our review of the record shows that this was an appropriate tactical decision and, thus, Silva Maciel’s argument fails.
A diminished capacity defense would have required evidence that Silva Maciel had been drinking or using drugs and that the drinking or drug use had an effect on his ability to form the requisite mental state at issue. State v. King, 24 Wn. App. 495, 501-02, 601 P.2d 982 (1979). Although Silva Maciel was in a mobile home that contained drug-laced vapors, he also testified that he intended to harm himself, not the deputies. Silva Maciel’s ineffective assistance claim fails because a diminished capacity defense would be inconsistent with his defense.
Having determined that counsel’s representation either did not fall below that expected of competent counsel or was tactical, we do not address whether Silva Maciel was prejudiced.
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.
QUINN-BRINTNALL, A.C.J. and SEINFELD, J., concur.
The court shall determine whether an evidentiary hearing is required based upon the moving papers. . . . [Silva Maciel’s CrR 3.6 hearing was held on August 3, 2001. I RP at 3.] (b) Hearing. If an evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law.
On February 19, 2003, Silva Maciel moved to amend his brief to assign error to the findings and conclusions and to file a supplemental brief. We granted the motion. In his supplemental brief, he does not argue that he was prejudiced by the late entry or that the findings were tailored to counter his issues. Thus, we limit our analysis to reviewing whether the trial court properly denied the motion to suppress. State v. Gaddy, 114 Wn. App. 702, 705, 60 P.3d 116 (2002) (trial court’s late entry of written findings and conclusions after a CrR 3.6 hearing may warrant reversal of a conviction if an appellant can show prejudice from the delay or that the written findings were simply tailored to meet the issues presented in the appellant’s opening brief).