State v. Munguia

• Decision Date: 19 July 2001
• Docket Number: No. 17721-1-III.,17721-1-III.
• Citation: 107 Wash. App. 328,26 P.3d 1017,107 Wn. App. 328
• Parties: STATE of Washington, Respondent, v. Jose Angel MUNGUIA, Appellant.
• Court: Washington Court of Appeals

26 P.3d 1017

107 Wn. App. 328

107 Wash. App. 328

STATE of Washington, Respondent, v. Jose Angel MUNGUIA, Appellant.

No. 17721-1-III.

Court of Appeals of Washington, Division 3.

July 19, 2001.

Kevin L. Holt, Kennewick, for Appellant.

Andrew K. Miller, Prosecuting Attorney, Kennewick, for Respondent.

BROWN, J.

Jose A. Munguia, a juvenile, was convicted as an adult in Benton County of aggravated first degree murder. On appeal, Mr. Munguia asserts trial court error in certain evidence rulings and prosecution error in alleged trial misconduct, including selective prosecution. We affirm, holding the trial court's evidence rulings were proper and no prosecutor misconduct occurred. For the first time we decide a selective prosecution claim may not be raised for the first time on appeal.

FACTS

In July 1997, Guivi G. Darbeliani died from gunshot wounds to the head. His body was found in an irrigation canal near Prosser. The next day, Ricardo Sanchez, 17, was arrested in Pasco driving Mr. Darbeliani's car. Ricardo's younger brother, Valentin Sanchez, 14, was soon taken into custody as a suspect. Both boys implicated Mr. Munguia, aged 15, who was then arrested for aggravated first degree murder. The juvenile court declined jurisdiction.

Mr. Munguia claimed self-defense stemming from an alleged sexual advance by Mr. Darbeliani toward Valentin. The prosecutor refused to plea bargain. A defense computer specialist investigated the victim's computer where web pages to homosexual Internet sites were discovered. The court, reasoning this was improper reputation evidence, granted the State's motion in limine to exclude that computer evidence.

The trial court allowed cross examination testimony contradicting Mr. Munguia's claim of unfair treatment in detention. Over a bad acts objection, Mr. Munguia admitted he was in isolation for quite some time for keeping a pod key, talking between cells, being disrespectful to the staff, and using foul language.

After the court permitted the State to examine Ricardo as a hostile witness, the State elicited testimony about Ricardo's reduced need for extra security at the penitentiary after he decided to testify for Mr. Munguia rather than against him. Defense counsel did not initially object. Later, the following exchange took place during the defense cross examination:

Q. Ricardo, what you said there at the end to Mr. Miller that you felt bad about what happened to Mr. Darbeliani is true, correct?

A. Yes.

Q. And even to this day it still bothers you?

A. Yes.

Q. But that's not because you intended to rob him?

A. No.

Q. That's because a man died?

A. Yes.

Q. Now, what you said about him being involved with having his hand around your brother; was that true?

A. Yes.

Report of Proceedings (RP) at 685-86. The prosecutor objected, arguing the questions were leading and "[c]learly he is defense counsel's witness. He is going to say whatever defense counsel says ." RP at 686. Again, defense counsel did not initially object.

After a weekend recess, Mr. Munguia unsuccessfully requested a mistrial based upon the prosecutor's questions regarding Ricardo's reduced security need and willingness "to say whatever defense counsel says." RP at 686. The court provided a curative instruction reminding the jury that attorney comments were not evidence.

Later, defense counsel asked, and the court permitted, the record to reflect that the prosecutor threw a notepad and pen in the courtroom and raised his voice. Although the prosecutor denied the substance, the trial court observed it had allowed a "certain amount of theatrics" from both sides. RP at 1443.

During closing, the prosecutor argued Valentin changed his story after obtaining counsel. Later, the prosecutor invited the jury to decide whether "any independent corroborative evidence that any of these character attacks on Guivi [were] true." RP at 2076. Defense counsel objected; the trial court instructed the prosecutor to rephrase the statement. The prosecutor continued, "[d]on't dignify a fantastic defense that isn't supported by any evidence." RP at 2078. Mr. Munguia unsuccessfully requested a mistrial, contending he was barred from bringing in evidence to support his defense; namely, the evidence from the victim's computer.

The jury found Mr. Munguia guilty as charged. This appeal followed.

ISSUES

In order, we discuss whether the trial court erred when (A) admitting evidence of Mr. Munguia's behavior while in juvenile pretrial detention in violation of the bad acts doctrine contained in ER 404(b), or (B) denying Mr. Munguia's proposed computer evidence as improper reputation evidence. Next, we examine Mr. Munguia's assignments of prosecutor misconduct in (C) engaging in trial conduct denying him a fair trial, or (D) denying equal protection by engaging in selective prosecution.

ANALYSIS

A. Alleged Bad Acts

"The decision to admit evidence lies within the sound discretion of the trial court and should not be overturned on appeal absent a manifest abuse of discretion." State v. Bourgeois, 133 Wash.2d 389, 399, 945 P.2d 1120 (1997) (citing State v. Crenshaw, 98 Wash.2d 789, 806, 659 P.2d 488 (1983)). Mr. Munguia contends his actions while incarcerated would be analogous to prior bad acts addressed under ER 404(b).

Under ER 404(b), evidence of bad acts is inadmissible if it is offered to establish a person's character or to show he acted in conformity with that character. But, contrary to Mr. Munguia's assertion, this is not an ER 404(b) situation. In reviewing the context of the questions, the prosecutor was not focusing on Mr. Munguia's character. Rather he was attempting to rebut Mr. Munguia's allegation that he was treated unfairly while incarcerated by introducing contradicting evidence. The court directed the prosecutor to first ask, "isn't the real reason you were treated differently at least due in part of the way you acted[?]" RP at 1838. Since Mr. Munguia answered "no" to this question, the court allowed the prosecutor to impeach him. RP at 1838. See State v. Hubbard, 103 Wash.2d 570, 576, 693 P.2d 718 (1985)

(impeachment by contradiction is in reality substantive rebuttal evidence). Further, in balancing the probative value of the testimony with the prejudicial effect, the court concluded the testimony was proper since Mr. Munguia denied any responsibility for his punishment while in juvenile detention. The trial court did not err.

B. Computer Files as Reputation Evidence

A ruling on a motion in limine is reviewed for abuse of discretion. State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995). Mr. Munguia contends evidence regarding the sexual files in Mr. Darbeliani's computer should have been allowed because it would have corroborated Mr. Munguia's self-defense argument as evidence of reputation.

In general, character evidence is not admissible to prove a person acted in conformity therewith on a particular occasion. ER 404(a). "In particular, evidence of specific acts of conduct is inadmissible if it is offered to prove the character of the person, and that the person acted in conformity with that character." State v. Bell, 60 Wash.App. 561, 564, 805 P.2d 815 (1991); ER 404(b); ER 405(a). Evidence of a victim's past homosexual behavior "clearly falls under the general rule." Bell, 60 Wash.App. at 564, 805 P.2d 815.

Evidence of a person's reputation may "be admitted in certain circumstances to show that a victim acted in conformity with his or her character where the defendant claims that he acted in self-defense." Id.; ER 404(a)(2); ER 405(a). Evidence offered by a defendant in support of a self-defense theory must be relevant. ER 402. To be relevant, evidence must have a tendency to prove or disprove a particular fact, and the fact must be "of consequence to the determination of the action...." ER 401.

Evidence of homosexual Internet sites on Mr. Darbeliani's computer does not tend to prove that he attempted to sexually assault Valentin or attack Mr. Munguia when he claimed to have intervened. Further, no indication exists in the record of Mr. Munguia's knowledge of Mr. Darbeliani's computer sites. See State v. Hixson, 94 Wash.App. 862, 867, 973 P.2d 496 (1999)

(victim's prior criminal history is irrelevant for sentencing purposes because the defendant was unaware of the victim's history at the time of the shooting). Hence, the evidence on Mr. Darbeliani's computer was irrelevant; the trial court did not abuse its discretion in excluding it.

C. Fair Trial

To prevail on a prosecutorial misconduct allegation, a defendant must show both improper conduct and prejudicial effect. State v. Pirtle, 127 Wash.2d 628, 672, 904 P.2d 245 (1995) (citing State v. Furman, 122 Wash.2d 440, 455, 858 P.2d 1092 (1993)). Prejudice is established by showing a substantial likelihood that the misconduct affected the jury's verdict. Pirtle, 127 Wash.2d at 672,904 P.2d 245. The defendant "bears the burden of establishing both the impropriety of the prosecutor's conduct and its prejudicial effect." Furman, 122 Wash.2d at 455,858 P.2d 1092. Absent a proper objection, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered. State v. Hoffman, 116 Wash.2d 51, 93, 804 P.2d 577 (1991),aff'd by McGinnis v. Blodgett, 67 F.3d 307, 1995 WL 574644 (9th Cir.1995), cert. denied, 516 U.S. 1160, 116 S.Ct. 1046, 134 L.Ed.2d 192 (1996).

First, Mr. Munguia contends the prosecutor improperly stated: "clearly he [Ricardo] is defense counsel's witness. He is going to say whatever defense counsel says." RP at 686. He unsuccessfully requested a mistrial, thus the focus is whether the trial court abused its discretion by denying the defense motion for a mistrial. A "high degree of deference" is paid to the trial court in its decision to deny a mistrial for prosecutorial misconduct. State v. Luvene, 127...