State  v. Gasteazoro–Paniagua

• Decision Date: 20 February 2013
• Docket Number: No. 41103–2–II.,41103–2–II.
• Citation: 294 P.3d 857
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jose Miguel GASTEAZORO–PANIAGUA, Appellant.

294 P.3d 857

STATE of Washington, Respondent,

v.Jose Miguel GASTEAZORO–PANIAGUA, Appellant.

No. 41103–2–II.

Court of Appeals of Washington, Division 2.

Feb. 20, 2013.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, B. Renee Alsept, Attorney at Law, Vancouver, WA, for Appellant.

Abigail E. Bartlett Clark County Prosecuting Attorney's Office Vancouver, WA, for Respondent.

PUBLISHED IN PART OPINION

QUINN–BRINTNALL, J.

¶ 1 A jury found Jose Gasteazoro–Paniagua guilty of first degree attempted murder with a firearm enhancement and first degree unlawful possession of a firearm. Gasteazoro–Paniagua appeals, alleging that (1) his statements were improperly admitted because they were made after he requested counsel, (2) the trial court violated his right to be present at trial, (3) the trial court erred by refusing to give a novel jury instruction regarding the alleged jailhouse informant's testimony, (4) the trial court erred by allowing the State to introduce extrinsic evidence of the victim's prior inconsistent statements, (5) the trial court erred by denying his motion for a mistrial, (6) the trial court erred by admitting officer testimony about hearsay statements witnesses made to the police, (7) the State committed misconduct during closing arguments, and (8) the jury instructions regarding the firearm enhancement violated the unanimity requirement in State v. Bashaw, 169 Wash.2d 133, 234 P.3d 195 (2010), overruled by State v. Nunez, 174 Wash.2d 707, 285 P.3d 21, (2012), and State v. Goldberg, 149 Wash.2d 888, 72 P.3d 1083 (2003), overruled by Nunez, 174 Wash.2d 707, 285 P.3d 21. Discerning no reversible error, we affirm.

¶ 2 In the published portion of this opinion we address Gasteazoro–Paniagua's challenge to the admission of statements he made during the police interview. The remaining issues are fact specific and are addressed in the unpublished portion of our opinion.

FACTS

¶ 3 On December 30, 2009, at approximately 10:30 pm, a man dressed in a dark-colored hooded sweatshirt entered the Buy Low Market in Clark County, Washington, and shot Jose Muro five times. Muro was stocking the Buy Low's walk-in refrigerator when he was shot. He survived. The police did not recover the gun.

¶ 4 Muro and Gasteazoro–Paniagua were best friends but had a falling out when Gasteazoro–Paniagua had an affair with Muro's brother's wife, Nicole Sanchez. Muro called Gasteazoro–Paniagua about an hour before he was shot in response to a text message from Gasteazoro–Paniagua. Although they were no longer friends, Gasteazoro–Paniagua asked Muro if he wanted to meet for a drink; Muro declined, telling Gasteazoro–Paniagua that he was at work.

¶ 5 On January 7, Yakima Police Department officers arrested Gasteazoro–Paniagua in Yakima. Detectives Rick Buckner and Lindsay Schultz of the Clark County Sheriff's Department interviewed Gasteazoro–Paniagua just after midnight at the Yakima Police Department. At Gasteazoro–Paniagua's arraignment on June 10, the State filed a second amended information charging Gasteazoro–Paniagua with attempted first degree murder with a firearm enhancement and a first degree unlawful possession of a firearm charge. RCW 9.41.040(1)(a); RCW 9.94A.533(3), .825. Gasteazoro–Paniagua pleaded not guilty to all charges.

¶ 6 Gasteazoro–Paniagua moved to suppress statements he made to police during the interview with the detectives in Yakima. Following a CrR 3.5 hearing, the trial court found that Gasteazoro–Paniagua had waived his rights to counsel and to silence and concluded that his statements were voluntary and admissible. A jury trial began on June 14, 2010. Gasteazoro–Paniagua stipulated to a previous conviction for a serious offense. On June 17, Gasteazoro–Paniagua moved for mistrial, arguing that one of the investigating officers identified him in the store surveillance video in violation of the court's ruling in limine to exclude police opinion testimony as to his guilt. The trial court denied the motion.

¶ 7 On June 23, Gasteazoro–Paniagua moved to exclude the testimony of T.J., an alleged jailhouse informant.¹ The trial court denied the motion. Based on his characterization of T.J. as a jailhouse informant, Gasteazoro–Paniagua proposed a jury instruction that specifically instructed the jury to treat T.J.'s testimony with caution. The trial court declined to give Gasteazoro–Paniagua's proposed instruction. On June 29, a jury found Gasteazoro–Paniagua guilty as charged. On July 8, Gasteazoro–Paniagua filed a CrR 7.6 motion for new trial, asserting that the trial court erred by denying his motion for mistrial and alleging several instances of prosecutorial misconduct. The trial court denied the motion and sentenced Gasteazoro–Paniagua to 429.75 months confinement for the first degree attempted murder conviction, and 89 months for the first degree unlawful possession of a firearm conviction, to be served concurrently.

¶ 8 Gasteazoro–Paniagua timely appeals.

ANALYSIS

Request for an Attorney During Police Interview

¶ 9 Gasteazoro–Paniagua alleges that the trial court erred by denying his CrR 3.5 motion to suppress the statements that he made to the police during the interview in Yakima.² Gasteazoro–Paniagua argues that during the interview, he made an unequivocal request for counsel and the detectives were required to immediately stop questioning him. Because the officers continued to question him, Gasteazoro–Paniagua contends that his Fifth Amendment rights were violated and the statements were inadmissible. But Gasteazoro–Paniagua's statement was not an unequivocal request for counsel and, as a result, the trial court did not err by denying Gasteazoro–Paniagua's CrR 3.5 motion to suppress the statements he made to the police.

¶ 10 We review the trial court's findings of fact from a CrR 3.5 hearing to determine if they are supported by substantial evidence. State v. Broadaway, 133 Wash.2d 118, 131, 942 P.2d 363 (1997). We review de novo whether the trial court's conclusions of law are properly derived from its findings of fact. State v. Pierce, 169 Wash.App. 533, 544, 280 P.3d 1158 (citing State v. Grogan, 147 Wash.App. 511, 516, 195 P.3d 1017 (2008), remanded,168 Wash.2d 1039, 234 P.3d 169 (2010)), review denied,No. 87766–1, 175 Wash.2d 1025, 291 P.3d 253 (Wash. Dec. 4, 2012). Unchallenged findings of fact are verities on appeal. Pierce, 169 Wash.App. at 544, 280 P.3d 1158 (citing State v. Lorenz, 152 Wash.2d 22, 30, 93 P.3d 133 (2004)). After making a knowing, voluntary, intelligent waiver of Miranda³ rights, a defendant must unequivocally request an attorney in order to invoke his right to counsel. State v. Radcliffe, 164 Wash.2d 900, 906–07, 194 P.3d 250 (2008); see also State v. Nysta, 168 Wash.App. 30, 40–41, 275 P.3d 1162 (2012); Pierce, 169 Wash.App. at 544, 280 P.3d 1158. To be unequivocal, the defendant “ ‘must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’ ” Nysta, 168 Wash.App. at 41, 275 P.3d 1162 (quoting Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)).

¶ 11 It is undisputed that Gasteazoro–Paniagua made a knowing, voluntary, and intelligent waiver of his rights at the beginning of the interview. But Gasteazoro–Paniagua argues that during the interview, he made an unequivocal request for counsel which required the detectives to immediately stop all questioning until an attorney was provided. During the interview, Buckner stated, “[W]e don't end up here with you in custody unless we've got a probable cause.” 8 RP at 88. Gasteazoro–Paniagua responded, “I mean I guess I'll just have to talk to a lawyer about it and, you know, I'll mention that you guys are down here with a story.” 8 RP at 88–89.

¶ 12 Our Supreme Court has held that the statement “maybe [I] should contact an attorney” is clearly an equivocal statement, not an unequivocal request. Radcliffe, 164 Wash.2d at 907–08, 194 P.3d 250 (citing Davis, 512 U.S. at 455, 114 S.Ct. 2350). In contrast, statements such as “I gotta talk to my lawyer” and “I'm gonna need a lawyer because it wasn't me” are unequivocal requests for an attorney. Nysta, 168 Wash.App. at 42, 275 P.3d 1162;Pierce, 169 Wash.App. at 544–45, 280 P.3d 1158.

¶ 13 Unlike the statements in Nysta and Pierce, Gasteazoro–Paniagua's statement was not in the present tense and did not refer to his lawyer or any lawyer in particular. Furthermore, “guess” indicates doubt. Webster's Third New International Dictionary 1008 (2002) (Guess means to form a judgment without knowledge, conjecture, estimate, surmise.). An indication of doubt cannot be considered an unequivocal request. Id. 2494 (Unequivocal means leaving no doubt, expressing only one meaning; expressing finality.); see also Taylor v. Indiana, 689 N.E.2d 699, 703 (Ind.1997).

¶ 14 Other jurisdictions have determined that using the phrase “I guess” is equivocal and does not invoke a defendant's right to counsel. United States v. Clark, 746 F.Supp.2d 176, 185 (D.Me., 2010) (holding that because the statement “I guess” conveyed uncertainty, the defendant did not unambiguously invoke his right to counsel); Taylor, 689 N.E.2d at 703 (defendant's statement, “ ‘I guess I really want a lawyer, but, I mean, I've never done this before so I don't know’ ” was “an expression of doubt, not a request”). “I guess” is also considered to be equivocal in other circumstances. See, e.g., California v. Valdez, 55 Cal.4th 82, 136, 144 Cal.Rptr.3d 865, 281 P.3d 924 (2012) (“Witness No. 13 answered the prosecution's questions, not with a simple ‘yes' or a ‘no,’ but with a decidedly equivocal, ‘I believe so’ or ‘I guess.’ ”); McDaniel v. Kentucky, 341 S.W.3d 89, 98 (Ky.2011) (Cunningham, J., dissenting) (“The majority is correct that S.W. gave equivocal answers such as, ‘I guess,’ and ‘It's hard to say.’ ”); United States v. Nelson, 450 F.3d 1201, 1212 ...