State v. Apodaca

• Decision Date: 14 January 2019
• Docket Number: No. 76517-5-I,76517-5-I
• Court: Washington Court of Appeals
• Parties: THE STATE OF WASHINGTON, Respondent, v. ALFRED VICTOR APODACA, Appellant.

THE STATE OF WASHINGTON, Respondent, v. ALFRED VICTOR APODACA, Appellant.

No. 76517-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

January 14, 2019

UNPUBLISHED OPINION

MANN, A.C.J. — Alfred Apodaca appeals his conviction for assault in the second degree. Apodaca argues that his counsel was ineffective for not objecting to the admission of booking photos in a photomontage. Apodaca also alleges that the prosecutor disparaged defense counsel during closing argument by accusing defense counsel of providing jurors with "misinformation" and coaching Apodaca's testimony.

We affirm.

I.

On September 14, 2016, off-duty Renton Police Officer, Christopher Cramer, was in the Fry's Electronics' parking lot, and saw an altercation between a man and a woman from about 50 feet away. Cramer called 911 and took down the license plate of a red Chevrolet Blazer associated with the couple. Cramer described the woman as wearing a red shirt with her hair styled in a bun. Cramer described the man as Caucasian with long brown hair and a beard. Before uniformed officers arrived, the couple left together in the Blazer. The license plate listed Apodaca as the registered owner.

At approximately 9:00 p.m., Megan Wolfe called her close friend, Sherrie Buller. Wolfe was hysterical and asked Buller to come pick her up. Wolfe did not know where she was, explaining that "Al" had thrown her out of the car at the Fry's Electronics in downtown Renton, after punching and choking her. Wolfe said that Al was "after her" and she was hiding in a ditch. Buller stayed on the phone with Wolfe, asking her to find a landmark so Buller could come get her. Eventually, Wolfe identified the Wonderland Estates mobile home park on Maple Valley Highway, and Buller drove to that location to get her. Wolfe walked four miles from the Fry's Electronics to the Wonderland Estates.

When Buller found Wolfe at the mobile home park, Buller noticed bruising on Wolfe's arms and neck, and swelling and bruising on her face. Buller also noted "finger marks" on both sides of Wolfe's throat. Buller drove Wolfe to Valley Medical Center, calling 911 on the way. While Buller and Wolfe were at the hospital, Buller saw incoming text messages from someone named "Alfred" on Wolfe's cell phone.

Renton Police Officers Dennis Moynihan and Jacob Thielman responded to Valley Medical Center. Moynihan noted that Wolfe was walking with a limp, holding her rib cage, wincing in pain, and had bruising on her neck. Moynihan also noted that Wolfe was wearing a pink shirt, had brown hair, styled in a bun, and that he recognized the description from earlier in the evening when he was dispatched to Fry's Electronics.

Initially, Wolfe explained that her injuries were from an accidental fall that occurred at her new boyfriend "Al's" house—not Apodaca, her old boyfriend. When Moynihan pressed Wolfe for more information about Apodaca, she became fearful and looked away, refusing to answer questions. Moynihan told Wolfe that Apodaca may be arrested, and Wolfe became "hysterical." While Wolfe was giving the officers her statement, she and Buller had an argument because Buller was upset that Wolfe was not cooperating with the officers. Buller believed that Apodaca assaulted Wolfe because she had never heard of a new boyfriend. After providing an initial statement, Wolfe abruptly left the hospital without completing treatment.

On September 16, 2016, Officer Cramer was shown a photomontage of six men with long dark hair and beards, to pick the man he saw in the Fry's Electronics' parking lot, but Cramer did not select Apodaca. The photomontage was compiled from six booking photographs from the South Correctional Entity Regional Jail, or "SCORE jail," as it was referred to in testimony.

On September 20, 2016, Wolfe called Buller, asking to be picked up from a 7-Eleven near Apodaca's residence. Buller noted new bruises on Wolfe's neck and fresh finger impressions. Buller drove Wolfe to the police station where her injuries were documented. Officer Moynihan and Thielman indicated that during this interaction with Wolfe, she was more forthcoming and told them that "Al" was Alfred Apodaca, and he assaulted her on September 14th and 20th.

Apodaca was later arrested. The State charged Apodaca with four domestic violence felony crimes and two domestic violence aggravators based on allegedly strangling and punching Wolfe on September 14, and September 20, 2016.

The jury found Apodaca guilty of assault in the second degree, and felony violation of a court order, related to the September 14th incident. The jury acquitted Apodaca of the charges related to September 20th, and found the crimes did not involve domestic violence. The court granted the State's motion to vacate the felony violation of a court order, due to double jeopardy concerns. The court sentenced Apodaca to 43 months. Apodaca appeals.

II.

Apodaca argues first that he received ineffective assistance of counsel. We disagree.

A.

The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court set forth the prevailing standard for reversal of criminal convictions based on ineffective assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). Ineffective assistance is a two-pronged inquiry: a defendant must first show that counsel's performance was deficient, and second, that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687.

To show that counsel's performance was deficient, a defendant must demonstrate that representation fell "below an objective standard of reasonableness." Strickland, 466 U.S. at 688 ("[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms"). "The threshold for deficient performance is high, given the deference afforded to decisions of defensecounsel in the course of representation." Grier, 171 Wn.2d at 33. A defendant must overcome "a strong presumption that counsel's performance was reasonable." State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). "When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient." Kyllo, 166 Wn.2d at 863. "Conversely, a criminal defendant can rebut the presumption of reasonable performance by demonstrating that 'there is no conceivable legitimate tactic explaining counsel's performance.'" Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

A defendant arguing that his counsel was deficient based on the failure to challenge the admission of evidence must show (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct, (2) that an objection to the evidence would likely have been sustained, and (3) that the result of the trial would have been different had the evidence not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998) (citations omitted). "Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989) (citations omitted).

"To satisfy the prejudice prong of the Strickland test, the defendant must establish that 'there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different.'" Grier, 171 Wn.2d at 34 (quoting Kyllo, 166 Wn.2d at 862)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

B.

Apodaca argues that his counsel was ineffective for failing to object to testimony that the photomontage was created using booking photos that informed the jury that Apodaca had previously been in jail. Apodaca argues his counsel should have objected to this evidence, sought to limit its admission, or otherwise attempted to prevent its consideration.

During cross-examination of Officer Thielman, defense counsel introduced the subject of the photomontage by asking Thielman "how did you create that montage?" After referring to his report, Thielman explained:

So in my report I say I contacted SCORE jail, because the SCORE jail, they can create a montage of people that have been booked into SCORE jail a lot quicker than we can as a police department. They use booking photos while we use Washington DOL photos and we don't have access to every single one.

So I contacted SCORE and requested they create a photomontage with Apodaca in it.

Thielman then explained that he had prepared the montage to show Officer Cramer, the off-duty officer who had witnessed the September 14, 2016, altercation in the Fry's parking lot and called 911. Thielman then confirmed that Officer Cramer had reviewed the photomontage and did not identify Apodaca as the man he had seen.

On re-direct examination, the State questioned Officer Thielman further about the montage and asked "[a]re there photos in there of the montage that you got from SCORE?" Thielman answered "[y]es there are." The State followed up asking "[a]rethose photos are they a fair and accurate depiction of the montage that SCORE sent to you?" Thielman confirmed "yes."

During the subsequent direct examination of Officer Cramer, the State offered the photomontage packet. The packet included the Renton Police Department Montage Report, filled out by Officer Cramer, indicating that he viewed the montage, chose the person in photograph one, and described the alleged incident and location. Also included were the six pictures that Officer Cramer viewed. The defense only objected to the last two pages of the packet, which included an additional copy of all six men on one page and a page that listed the name of...