State v. Barajas

• Decision Date: 04 December 2007
• Docket Number: No. 24932-8-III.,24932-8-III.
• Citation: 177 P.3d 106,143 Wn. App. 24
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Florentino S. BARAJAS a/k/a: Jorge Garcia Alaniz, Alberto Silva, Florentino Barajas-Silva, Florentino Silva Baraj as, Florentino B. Silva, Appellant.

177 P.3d 106

143 Wn. App. 24

STATE of Washington, Respondent, v. Florentino S. BARAJAS a/k/a: Jorge Garcia Alaniz, Alberto Silva, Florentino Barajas-Silva, Florentino Silva Baraj as, Florentino B. Silva, Appellant.

No. 24932-8-III.

Court of Appeals of Washington, Division 3.

December 4, 2007.

Publication Ordered February 12, 2008.

Randy J. Flyckt, Adams Co. Pros. Office, Ritzville, WA, for Respondent.

Janet G. Gemberling, Gemberling & Dooris PS, Spokane, WA, for Appellant.

KULIK, J.

¶ 1 Florentino Barajas appeals his convictions for two counts of attempted first degree murder and one count of unlawful possession of a firearm. On appeal, Mr. Barajas asserts that the trial court abused its discretion when it denied him access to the master jury pool list for Adams County; that there was insufficient evidence of the essential element of premeditation; and that the prosecutor committed misconduct by using a derogatory term and by misstating the standard for premeditation to describe the nature of the defendant's intent.

¶ 2 We conclude that the trial court acted within its discretion in its initial ruling denying access to the master jury list, that there was sufficient evidence of premeditation, and that the prosecutor's comments—while improper —could have been remedied by a curative instruction. We affirm.

FACTS

¶ 3 Deputy Dale Wagner was on routine road patrol when Florentino Barajas passed him driving a white pickup truck. Deputy Wagner recognized Mr. Barajas and was aware that Mr. Barajas was driving without a valid driver's license.

¶ 4 Deputy Wagner conducted a traffic stop. When the truck stopped, Mr. Barajas exited the cab and walked toward the front of the vehicle. Mr. Barajas was wearing a red jacket. Deputy Wagner ordered Mr. Barajas back into the truck. Mr. Barajas appeared agitated.

¶ 5 When asked for his license, registration, and proof of insurance, Mr. Barajas told the deputy that he "didn't have anything." Report of Proceedings (RP) III at 53. But he did provide Deputy Wagner with a birth certificate for a person named Jorge Alaniz. Mr. Barajas had previously been deported for a prior felony conviction and had reentered the United States illegally. Mr. Barajas testified that he presented the fake name and papers because he had already been deported and did not want to be deported again.

¶ 6 The deputy informed Mr. Barajas that he was being placed under arrest for driving without a valid driver's license. Mr. Barajas looked upset and kept saying "no" over and over. RP III at 56. Deputy Wagner ordered Mr. Barajas out of the truck.

¶ 7 Deputy Wagner ordered Mr. Barajas to put his hands on the truck where the deputy could see them. While Mr. Barajas was in this position, the deputy approached him from behind, tapped Mr. Barajas between the shoulder blades, and then backed away. Deputy Wagner stated that this tap was, "Wust a touch to see the reaction." RP III at 122. In response, Mr. Barajas spun around and took a defensive stance. Mr. Barajas came at the deputy and took a swing with his fist.

¶ 8 The punch missed Deputy Wagner, who then reached for his baton. While the deputy tried to pull out his baton, Mr. Barajas raced back to the truck and drove away. Deputy Wagner pursued him. Other officers were called in for assistance.

¶ 9 Mr. Barajas drove into a driveway next to a house. Deputy Wagner pulled into the driveway behind the truck. Mr. Barajas got out of the truck and ran into the residence. Mr. Barajas went into the house to retrieve his gun. While he was inside the residence, he got his gun and loaded it with ammunition.

¶ 10 Deputy Wagner waited for backup to arrive outside of the residence. Deputy Jeffrey Lane was the first to arrive. The officers secured the other people who were present in front of the house. The officers believed that Mr. Barajas was still inside the house.

¶ 11 After securing the area, Deputy Wagner placed a telephone call to another officer. During this call, he observed Mr. Barajas running from the area behind the house and diving into a row of trees. Mr. Barajas was still wearing the red jacket.

¶ 12 A third officer, Officer Jerry Dobson, arrived. The three officers formulated a plan to bring Mr. Barajas into custody. The officers were concerned that Mr. Barajas had a weapon. In light of this concern, the officers decided that Deputy Wagner and Deputy Lane would approach Mr. Barajas's position with guns drawn, while Officer Dobson would stay behind at the house for containment purposes.

¶ 13 Deputy Wagner used an irrigation ditch to conceal his movement toward Mr. Barajas. Deputy Lane approached from the opposite direction. As they approached, both officers caught sight of Mr. Barajas's discarded red jacket.

¶ 14 Mr. Barajas was partially concealed in a shallow ditch near the tree line. He had piled tumbleweeds around himself in an attempt to hide. Mr. Barajas had his back turned to the officer when Deputy Wagner spotted him. Deputy Wagner ordered Mr. Barajas to show his hands. He made this order in both English and Spanish.

¶ 15 Coming from the opposite direction, Deputy Lane also saw Mr. Barajas partially hidden in the weeds. He also ordered Mr. Barajas to put his hands up.

¶ 16 Mr. Barajas sat up in the ditch and raised his hands. He appeared to be upset. Deputy Wagner ordered Mr. Barajas to roll out of the ditch, but Mr. Barajas refused to comply. Instead, Mr. Barajas pulled out a gun and aimed it at Deputy Lane.

¶ 17 Deputy Lane felt apprehensive and started to retreat. Mr. Barajas shot Deputy Lane in the chest and leg. Although Deputy Lane was wearing a bullet-proof vest, he sustained injuries to his chest in addition to the gunshot wound to his left thigh.

¶ 18 Deputy Lane and Deputy Wagner opened fire. Mr. Barajas dropped back into the ditch while Deputy Wagner retreated toward the tree line. Deputy Wagner fell to the ground during his retreat. When Deputy Wagner turned around, he saw Mr. Barajas five or six feet away, aiming a gun at him. Deputy Wagner heard gunshots and opened fire on Mr. Barajas again.

¶ 19 Once Deputy Wagner returned fire, Mr. Barajas turned and ran toward a nearby equipment yard. Deputy Wagner ran to where Deputy Lane had been shot and assisted him back to the police vehicles to call for help.

¶ 20 Police set up a containment area to catch Mr. Barajas. He was eventually detained and questioned by police. During the recorded interrogation, Mr. Barajas admitted to shooting at Deputy Lane three times. But Mr. Barajas stated that he shot at the officer only because the officer shot at him first. Mr. Barajas also claimed that Deputy Wagner seemed very angry and had thrown Mr. Barajas up against his truck during the initial stop. Mr. Barajas was shot in the hand and the cheek during the gun fight.

¶ 21 Mr. Barajas was charged with two counts of attempted first degree murder and one count of first degree unlawful possession of a firearm.

¶ 22 Mr. Barajas made a motion to the trial court for a complete list of the names and addresses of all eligible jurors in Adams County. The reasons for requesting the list were the nature of the charged offenses, the publicity the case had received, and the constitutional right to a fair and impartial jury. As part of this request, Mr. Barajas told the court that he needed to determine the ethnic background of the Adams County jury pool so he could compare the jury pool with the ethnic background of the county at large. While the trial court suggested that defense counsel might attempt: to obtain the list directly from the Office of the Administrator for the Courts (OAC), the court made no final ruling at the first hearing.

¶ 23 Without obtaining the trial court's official permission, Mr. Barajas's counsel proceeded to contact the OAC to request a copy of the master jury pool list. The OAC provided the master list on a compact disc (CD) to the Adams County Superior Court Clerk. The CD was then given to another employee of the court, who gave a copy to Mr. Barajas's counsel.

¶ 24 Shortly after Mr. Barajas's counsel printed the list from the CD, the trial court sent Mr. Barajas an e-mail informing him that the master list CD contained private information and directed counsel to return the CD to the court. Counsel did so.

¶ 25 The State requested a hearing to consider Mr. Barajas's receipt of the master list of potential Adams County jurors without court permission. The State requested this hearing to determine whether improper access to the master jury list occurred, what information was obtained by Mr. Barajas, and what sanctions, if any, would be appropriate. The. State also requested that Mr. Barajas's defense counsel be disqualified from representing him. The State asserted that defense counsel committed jury tampering when he obtained the master jury list without court permission.

¶ 26 The trial court found that it was a violation of GR 18 and GR 31 for defense counsel to obtain the master jury list without a court order. While these rules were violated, the trial court concluded that this violation did not warrant sanctions or the removal of defense counsel. But the trial court did warn defense counsel that it "[did not] want these things happening anymore." RP (Oct. 17, 2005) at 71. The court further stated that it would impose sanctions for any future violation of GR 18 or GR 31.

¶ 27 At the hearing, the trial court invited defense counsel to address the jury list issue at a future time. Defense counsel did not do so. At the close of the State's case, Mr. Barajas made a motion to dismiss both counts of attempted first degree murder. He asserted that the State failed to prove the element of premeditation. The trial court denied the motion.

¶ 28 Mr. Barajas took the stand in his own defense. He testified that when he was initially stopped by Deputy Wagner, he was unaware that the deputy had attempted to pull him over, and that he stopped in order to make some repairs...