No. 58828-1-I.The Court of Appeals of Washington, Division One.
May 5, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-13607-1, LeRoy McCullough, J., entered September 11, 2006.
Affirmed
by unpublished per curiam opinion.
PER CURIAM.
Victor Martinez appeals his conviction for first degree assault, contending that the trial court erred in denying his motion to suppress evidence where a search warrant affidavit failed to establish an informant’s veracity. He also argues that prosecutorial misconduct deprived him of a fair trial, the trial court erred by failing to instruct the jury on an inferior degree offense, and ineffective assistance of counsel at sentencing requires remand. Because he fails to demonstrate any trial court error or prejudice resulting from prosecutorial misconduct or ineffective assistance of counsel, we affirm.
FACTS
Charles Hernandez was sitting with a friend at the Crown Bar and Grill in Burien when a man approached and punched him in the face. Security personnel separated the two and escorted them outside. In the parking lot, when he saw the man who attacked him, Hernandez took a metal bar from his own car and broke the front passenger window of his attacker’s car. Security personnel again intervened, and Hernandez went back to his car. Just then, several shots were fired, striking Hernandez in the face as well as the passenger side of his car.
Christopher Vala, a bouncer at the bar, reported to police that while working the door, he remembered seeing a man who was six feet tall, possibly Hispanic, with a medium build and a shaved head, wearing a Tony Dorsett football jersey. After breaking up the fight in the bar and witnessing the incident in the parking lot, Vala saw the man in the jersey reach for something that may have been a weapon in his waistband as he got into a red four door car backed into a parking space next to Hernandez’s car. Vala dropped to the ground as he heard six shots and saw muzzle flashes coming from the red car.
Lucas Vindeen told police that he saw Hernandez get into his car and then heard between five and seven shots coming from a dark colored four door vehicle.
Jesse Bayer, who also provided security at the bar, escorted a person named “Joe” out of the bar after the incident with Hernandez. He then witnessed Hernandez break the window of Joe’s car and return to his own car. When Bayer heard six shots and dropped to the ground, he saw sparks coming from Hernandez’s car. He also observed a red older four door Honda with one occupant backed into a parking space east of Hernandez’s car. The driver of the red car, who appeared to be Hispanic, with some facial hair and dark colored hair, was leaning over the passenger side and holding his right hand out the passenger window.
A few days after the shooting, Joseph Hempel and his attorney contacted police to provide information. Hempel reported that he was at the bar with his friends Miranda, Candace, and Yolanda when Candace’s boyfriend “Victor” came in wearing a jersey with white numbers on it. Later, when he was drunk, Hempel exchanged “bad looks” with Hernandez and then punched him. After being escorted outside by security personnel, Hempel stood next to his car with the three women as Hernandez approached. Hempel heard an impact but did not see what Hernandez did to the car. Security personnel told them to get into their cars. Hempel was looking toward the street when he heard gunshots. He saw Victor in Miranda’s red Subaru with the lights off, driving away from the area where Hernandez was parked and then pulling out of the parking lot. He told police he did not see Victor fire a weapon and was unsure whether Victor was leaving directly after the shots or at the same time.
According to Hempel, as they drove away, Candace said, “I can’t believe Victor just shot the gun.” During a telephone call the next day, Miranda told Hempel that Victor “was shooting at the car . . . because Victor has your back.”
After viewing jail booking photos of Hispanic males named Victor, Hempel identified Victor Martinez as the person he saw at the bar. Hempel also directed police to a house in Federal Way rented by Miranda where Victor and Candace were living. While driving past the house, police observed a red Subaru parked outside.
Police also viewed a surveillance video from the bar and observed a male in a Tony Dorsett jersey talking to Hempel inside the bar. Further police investigation revealed that (1) a Miranda Gilmore was associated with the house in Federal Way; (2) Martinez had been arrested while driving the red Subaru one month earlier, and police found a loaded stolen handgun in the car; and (3) Martinez had prior weapons violations.
Based on this information, police obtained a search warrant for the Federal Way house, the red Subaru and Martinez’s person. Police arrested Martinez, and the State charged him with first degree assault with a firearm, four counts of first degree unlawful possession of a firearm, one count of possession of a firearm, and possession of methamphetamine with intent to deliver. The trial court denied Martinez’s CrR 3.6 motion to suppress evidence alleging a lack of probable cause to support the search warrant. A jury found Martinez guilty on all seven counts, and the trial court imposed a standard range sentence.
Martinez appeals.
ANALYSIS
Martinez first contends that trial court erred in denying his motion to suppress evidence discovered in the search of Miranda’s house, the red Subaru, and his person because the search warrant affidavit failed to demonstrate Hempel’s veracity. In particular, Martinez contends that Hempel had a motive to lie, in that he believed he was a suspect in the shooting and wanted to deflect blame.
We review a magistrate’s decision to issue a search warrant for abuse of discretion, resolving doubts in favor of the magistrate’s determination of probable cause. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). Where the existence Page 6 of probable cause depends on an informant’s tip, the Aguilar-Spinelli test requires that the affidavit in support of a search warrant must establish both (1) the basis of the informant’s information and (2) the informant’s veracity. State v. Jackson, 102 Wn.2d 432, 435-36, 688 P.2d 136 (1984); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Here, several factors established Hempel’s veracity. First, Hempel’s willingness to come forward and identify himself is a strong indicator of reliability because he could be held accountable for false accusations. State v. Chenoweth, 160 Wn.2d 454, 483, 158 P.3d 595 (2007). Second, Hempel made statements against penal interest when he admitted that he punched Hernandez in the face without provocation while in the bar. “Statements against penal interest are intrinsically reliable because a person is unlikely to make a self-incriminating admission unless it is true.” Chenoweth, 160 Wn.2d at 483.
Third, Hempel’s statement was consistent with the statements provided by Hernandez, Vala, Vindeen, and Bayer. When taken together, the statements indicate that (1) Hempel punched Hernandez while inside the bar; (2) security personnel took them outside; (3) Hernandez knocked out Hempel’s window and then returned to his own car; (4) the shots came from the sole occupant of a car parked near Hernandez’s car; and (5) Hempel was in his own car with the three women when the shots were fired. Thus, the independent sources of consistent information provide support for Hempel’s veracity. See, e.g., State v. Riley, 34 Wn. App. 529, 534, 663 P.2d 145 (1983) (although first informant’s statement was conclusory and lacked information supporting inference of reliability, information provided by second informant and police affiant established sufficient corroboration to satisfy veracity prong of Aguilar-Spinelli test); see also State v. Kennedy, 107 Wn.2d 1, 8, 726 P.2d 445 (1986) (reviewing warrantless stop and search of car based on tips from police and citizen informants, as well as officer’s own observations, all of which corroborated each other).
Finally, contrary to Martinez’s argument, the witness statements did not suggest that Hempel was the shooter and police investigation corroborated Hempel’s statement. According to Vala and Bayer, the shooter was a Hispanic male wearing a football jersey. Police investigation of the surveillance video confirmed that Hempel spoke with a person matching that description inside the club. Police also independently confirmed Martinez’s association with the red Subaru parked outside of Miranda’s house as well as his past possession of guns. In light of all these strong indications of reliability, the trial court did not err in holding that the Aguilar-Spinelli test was satisfied and denying the motion to suppress.[1]
Martinez next contends that the prosecutor’s misconduct regarding the testimony of Jeffrey Etherington deprived him of a fair trial. To prevail on a claim of prosecutorial misconduct, Martinez must show both improper conduct and prejudicial effect. State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000). Prejudice is established only if there is a substantial likelihood that the misconduct affected the jury’s verdict. Roberts, 142 Wn.2d at 533. Failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129
(1995).
When the police searched the Federal Way house pursuant to the search warrant, they found Etherington inside with his girl friend Miranda Gilmore. Etherington, who had been in jail on the night of the shooting, gave a taped statement to Detective Anthony McNabb indicating that Martinez confessed to him and informed him of various details of the incident. At trial, the State called Etherington as a witness. Etherington testified that he was high on methamphetamine at the time of the interview and that the bulk of his statement to police consisted of his own embellishments of facts supplied to him by Gilmore. The prosecutor then questioned him in detail based on a transcript of his taped statement. The prosecutor later called Detective McNabb to testify about the interview with Etherington, asking whether Etherington indicated what kind of gun Martinez used in the shooting. Martinez objected on hearsay grounds. The prosecutor argued that his purpose was to impeach Etherington. The trial court overruled the objection. Martinez did not ask the court for a limiting instruction.
In closing, the prosecutor referred to the details of Etherington’s taped statement and argued that it was more credible than his denials at trial. Martinez did not object. Now on appeal Martinez claims that the argument deprived him of a fair trial. In particular, he contends that (1) the prosecutor misled the jury on the proper use of the impeachment evidence and (2) Etherington’s statement to police provided the only direct evidence linking Martinez to the shooting and bolstered the otherwise weak credibility of the other witnesses.
But as the State points out, nothing in Etherington’s testimony was unique. Other witnesses testified about the details of the shooting, and Gilmore and Hempel both claimed that Martinez admitted that he intentionally shot at Hernandez. And the prosecutor’s discussion of Etherington’s testimony was a very brief portion of his entire argument. Because Martinez fails to explain how any prejudice could not have been neutralized by an admonition to the jury, he cannot establish grounds for reversal based on prosecutorial misconduct.
Martinez also argues that the trial court erred by refusing to instruct the jury on second degree assault as an inferior degree offense. A defendant is entitled to an instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense. State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998). At issue here is the third, or factual prong.
To meet the factual prong, the evidence, when viewed in the light most favorable to the requesting party, must affirmatively establish the defendant’s theory that only the inferior offense was committed — “it is not enough that the jury might disbelieve the evidence pointing to guilt.” State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150
(2000).
Martinez contends that the jury could have concluded that Martinez “merely fired through the floorboards of the car and into the ground and had no intention of shooting Page 13 Mr. Hernandez.” But Martinez fails to identify any evidence in the record to support this theory. As the State points out, Miranda Gilmore testified that Hempel called her the day after the shooting and asked “if Victor shot at the floor or in the sky.” According to Gilmore, Victor “said he shot at the person.” Hempel testified that when he spoke to Gilmore on the phone, he asked her “what Victor was shooting at.” Nothing in this testimony could affirmatively establish that only second degree assault was committed. Martinez fails to demonstrate any error in the trial court’s denial of his request for an inferior degree instruction.
Finally, Martinez claims that he received ineffective assistance of counsel at sentencing. To establish ineffective assistance, Martinez must show that counsel’s performance was deficient and that prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). To demonstrate prejudice, Martinez must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s errors. Thomas, 109 Wn.2d at 226.
Martinez contends that his attorney failed to argue that his four convictions for unlawful possession of a firearm constituted the same criminal conduct, resulting in a higher offender score. But Martinez had an offender score of 14. Even if defense counsel had successfully urged the trial court to count all four firearm convictions as one point, his score would still be above nine, such that his standard range would be the same. See RCW 9.94A.510. Because Martinez cannot establish prejudice, his ineffective assistance claim fails.
Affirmed.
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