State v. Aguirre
| Decision Date | 04 March 2010 |
| Docket Number | No. 82226-3.,82226-3. |
| Citation | 229 P.3d 669,168 Wash.2d 350 |
| Parties | STATE of Washington, Respondent, v. Daniel Marshall AGUIRRE, Petitioner. |
| Court | Washington Supreme Court |
COPYRIGHT MATERIAL OMITTED
Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Petitioner.
Carol L. La Verne, Thurston County Prosecutor's Office, George Oscar Darkenwald, Olympia, WA, for Respondent.
¶ 1 Daniel Marshall Aguirre appeals his convictions and sentence for assault and rape. Aguirre alleges that the trial court erred by admitting the testimony of the prosecution's expert, excluding defense testimony and limiting cross-examination, instructing the jury on the definition of "unlawful force," and refusing to continue sentencing following his retention of new counsel. Aguirre also alleges that the trial court's addition of a deadly weapon enhancement to his sentence for assault with a deadly weapon violates double jeopardy. Under the analysis articulated below, we affirm the Court of Appeals and reject all of Aguirre's claims.
¶ 2 Both the victim and Aguirre are members of the United States Army. II Verbatim Report of Proceedings (VRP) (Feb. 13, 2007) at 325; IV VRP (Feb. 15, 2007) at 699. The two met as a consequence of their military service when the victim enrolled in a noncommissioned officer training program for which Aguirre served as an instructor. II VRP (Feb. 13, 2007) at 328; IV VRP (Feb. 15, 2007) at 705. They began a romantic relationship on the same day that the victim graduated from the training program in early June. II VRP (Feb. 13, 2007) at 330-31; IV VRP (Feb. 15, 2007) at 709, 711.
¶ 3 Their relationship deteriorated over the course of the summer. On Friday, August 26, 2006, Aguirre phoned the victim and requested that she meet him at his house; the victim agreed to do so. II VRP (Feb. 13, 2007) at 339. She arrived at the house before Aguirre and waited for him inside. Id. The victim testified that Aguirre appeared to be in a bad mood when he entered the house a few minutes later in the company of another soldier. Id. at 340, 342. Aguirre's bad mood eventually escalated to anger and violence directed at the victim. Id. at 343-46. At one point, Aguirre sat on the victim's legs and ran the blade of a combat knife up and down her face and throat while warning her to "never break the circle of trust or leave him" and asking her, "`How does it feel to date a psychopath?'" Id. at 346-47. The victim testified that Aguirre "explained to me that he had stopped taking his pills and that I was his pill and that as long as he had me, that was fine." Id. at 347.
¶ 4 The victim escaped outside but ultimately returned to the house when she failed to locate her car keys in order to drive home. Id. at 349-50. Later that night, Aguirre forcibly raped her. Id. at 351-52. The victim slept on the couch and left the next morning after finding her car keys. Id. at 353. Despite the violence that she had suffered at his hands, the victim returned to Aguirre's house later in the day to see him. Id. at 355. They quarreled and the victim called the police; however, she did not report the assault or the rape to the officer who responded to the call. Id. at 357-58.
¶ 5 The victim sustained bruises to her nose, ribs, arms, inner thighs, and right calf during the altercation with Aguirre. Id. at 448, 474. When she arrived at work on Monday, August 28, 2006, her co-workers noticed the bruises and encouraged her to contact the authorities. Id. at 359-60. The victim drove to the Lacey Police Department and was interviewed by Jeffrey Wilkinson, a Thurston County Deputy Sheriff, that same day. Id. at 360, 469-76. The ensuing prosecution resulted in Aguirre's convictions of second degree assault and second degree rape. V VRP (Feb. 16, 2007) at 965.
¶ 6 During trial, the events relevant to the five issues that Aguirre raises in the present appeal are as follows:
¶ 7 First, the trial court admitted the testimony of Cheryl Stines, a sergeant with extensive experience investigating physical and sexual abuse cases. III VRP (Feb. 14, 2007) at 495. Sergeant Stines had interviewed the victim following the assault and rape. Id. at 509-10. Stines testified as to the general demeanor of victims of sexual assault and domestic violence and described the victim's demeanor during the interview, but she did not give her opinion on whether the victim's demeanor indicated that the victim was a sexual assault victim. Id. at 506-09.
¶ 8 Second, the trial court excluded the proffered testimony of James Aguirre,1 the defendant's brother, regarding the victim's efforts to get in touch with the defendant following the rape and assault. Id. at 587-92. The defense sought to admit J. Aguirre's testimony to establish that the victim had lied about contacting J. Aguirre in order to reach the defendant, thereby undermining her credibility. Id. at 588-89. The trial court ruled that this testimony amounted to impeachment on a collateral matter and, therefore, was inadmissible. Id. at 592-93. Citing the rape shield statute,2 the court also limited Aguirre's ability to cross-examine the victim about seeing another man during her relationship with Aguirre. IV VRP (Feb. 15, 2007) at 746, 754.
¶ 9 A third event pertinent to this appeal followed the close of evidence. Shortly after deliberations commenced, the jury requested clarification from the court regarding the definition of "unlawful force." V VRP (Feb. 16, 2007) at 952; Clerk's Papers (CP) at 61. The trial court answered that "unlawful force ... refers to any force alleged to have occurred that was not consented to and that otherwise meets the definition of assault as contained in Instruction # 12." CP at 61.3 Defense counsel did not object to—and, in fact, approved of—this definition. V VRP (Feb. 16, 2007) at 953. The jury went on to find Aguirre guilty of second degree assault and second degree rape. Id. at 965. By special verdict, the jury also found that Aguirre had been armed with a deadly weapon during the assault. Id. at 966.
¶ 10 Another relevant event occurred almost two months later when the court reconvened for sentencing. III VRP (Apr. 10, 2007) at 3. Less than one week earlier, Aguirre had submitted a motion to substitute counsel. Id. at 4. His new counsel, in turn, requested to continue sentencing for eight weeks in order to give herself adequate time to prepare. Id. The trial court denied the requested continuance, noting that the victim had flown across the country from her new home in Pennsylvania for the proceedings and had a right to promptly proceed with sentencing.4 Id. at 17, 19-20. However, the court granted a brief continuance to enable the defendant's military chain of command to attend the sentencing. Id. at 20-21. Aguirre's new counsel thought that the shorter continuance did not give her sufficient time to prepare for sentencing, and Aguirre accordingly withdrew his motion to substitute counsel. Id. at 18. His trial attorney continued as the counsel of record at sentencing. Id. at 22.
¶ 11 The final event of note took place two days later, when Aguirre was sentenced to 14 months for the assault and 125 months for the rape. VRP (Apr. 12, 2007) at 24. The trial court added 12 month deadly weapon enhancements to both charges, for a total sentence of 163 months.5 Id. at 24-25. Aguirre appealed. CP at 142-57. The Court of Appeals rejected all of Aguirre's claims and affirmed the trial court's judgment and sentence in an unpublished opinion. State v. Aguirre, noted at 146 Wash.App. 1048, 2008 WL 4062820.
¶ 12 Aguirre subsequently petitioned this court for review, alleging that the trial court erred by (i) admitting the testimony of Sergeant Stines, which Aguirre alleges amounted to improper vouching for the victim's credibility; (ii) excluding the proffered impeachment testimony of J. Aguirre and limiting Aguirre's ability to cross-examine the victim, (iii) incorrectly defining "unlawful force" for the jury, and (iv) denying the requested eight-week continuance in violation of his right to counsel. The petition further argued that the addition of a weapon enhancement to his sentence for the second degree assault violated double jeopardy. We treat these claims separately and resolve them as follows:
ANALYSIS
¶ 13 Aguirre first argues that Sergeant Stines' testimony describing the victim constituted impermissible vouching for the victim's credibility and that the trial court's decision to admit it was error. We review trial court judgments regarding the admissibility of expert testimony for abuse of discretion. State v. Kirkman, 159 Wash.2d 918, 927, 155 P.3d 125 (2007). That is, such judgments merit reversal only if the trial court acts on unreasonable or untenable grounds. In re Det. of Anderson, 166 Wash.2d 543, 549, 211 P.3d 994 (2009) (citing Indus. Indem. Co. of Nw., Inc. v. Kallevig, 114 Wash.2d 907, 926, 792 P.2d 520 (1990)).
¶ 14 In considering testimony that addresses witness demeanor, "the court will consider the circumstances of the case, including the following factors: `(1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.'" Kirkman, 159 Wash.2d at 928, 155 P.3d 125 (internal quotation marks omitted) (quoting State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001)). If expert testimony satisfies these requirements, the court may, in its discretion, admit the testimony into evidence.
¶ 15 Stines' testimony satisfied the requirements of the Kirkman test. Stines did not reiterate the victim's testimony or explain how that testimony was consistent with the victim having suffered domestic violence. Pet. for Review at 6. On the contrary, Stines gave a general description of the demeanor of domestic violence victims, stating...
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