State v. Pedro
| Decision Date | 23 February 2009 |
| Docket Number | No. 60949-1-I.,60949-1-I. |
| Citation | 148 Wn. App. 932,201 P.3d 398 |
| Parties | STATE of Washington, Respondent, v. Brandon G. PEDRO, aka Brandon Pedro-Guerra, Appellant. |
| Court | Washington Court of Appeals |
Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant.
Dennis McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.
¶ 1 A jury convicted Brandon Pedro Guerra of one count of first degree assault, one count of second degree assault, and one count of unlawful possession of a firearm. Pursuant to RCW 9.94A.533(3), he received a firearm enhancement on the first degree assault conviction and a deadly weapon enhancement on the second degree assault conviction. Pedro-Guerra argues that the prosecutor was guilty of misconduct in questioning the victim. We conclude there was no misconduct. He appeals the firearm enhancement on the grounds that RCW 9.94A.533(3) violates equal protection, because it exempts some crimes involving use or possession of a gun from the enhancements but not first degree assault. Pro se, Pedro-Guerra argues that there was insufficient evidence to support his conviction of first degree assault. Finding that a rational basis supports the distinction between crimes that are exempt from enhancement and those subject to enhancement, we affirm.
¶ 2 The State charged Brandon Pedro-Guerra with first degree assault, second degree assault, and unlawful possession of a firearm. The assault charges arose from two separate assaults of Zackary Terrell.
¶ 3 Pedro-Guerra and Terrell knew each other from "the streets." Terrell sold Pedro-Guerra an iPod for $20 in August 2006. Two days later at the Crestview Apartments, Pedro-Guerra told Terrell the iPod did not work. Later, the two were riding the same Metro bus, and Pedro-Guerra asked for his money back. An argument ensued. Terrell got off the bus, at which point Pedro-Guerra ran toward Terrell and attempted to hit him. Terrell grabbed Pedro-Guerra and the two fell into the bushes. Terrell got up and left. Pedro-Guerra told Terrell ". . . I'll be back."
¶ 4 A few moments later, Pedro-Guerra ran toward Terrell and hit him in the face with a softball-sized rock. Terrell fell to the ground. As he attempted to get up, Pedro-Guerra hit Terrell on the back of the head. Pedro-Guerra ran away. Terrell suffered fractures to his skull and medial orbital wall, as well as a laceration on the back of his head.
¶ 5 On August 29, 2006, Terrell boarded a Metro bus and saw Pedro-Guerra at the back. Terrell exited the bus at his stop. Pedro-Guerra exited immediately after Terrell, from a different door. Terrell testified that he turned around and saw Pedro-Guerra running toward him, so he ran. Pedro-Guerra asked Terrell, "where are you going, Cuz?" Terrell continued to run away from Pedro-Guerra toward his apartment complex. Terrell testified that Pedro-Guerra then fired four or five shots at him as he ran. Officer Peterson, who happened to be driving by as the shots were fired, testified that he saw a man in front of a bus lifting his arm, a muzzle flash coming from his hand, and that he appeared to be running while shooting. In an effort to follow the shooter, Officer Peterson turned around in traffic, but lost sight of him.
¶ 6 Amber Johnson, a passenger on the same Metro bus, exited behind Terrell. She heard someone running from behind her and moved out of the way. She identified the person as Pedro-Guerra. After moving past Johnson, Pedro-Guerra fired five shots at Terrell. Johnson testified that she was standing very close to Pedro-Guerra as he fired the shots.
¶ 7 The jury convicted Pedro-Guerra of first degree assault and unlawful possession of a firearm for the shooting incident, and second degree assault for the incident with the rock. The jury also returned special verdicts finding that Pedro-Guerra was armed with a firearm for the first degree assault and armed with a deadly weapon for the second degree assault. With an offender score of six, Pedro-Guerra received a standard range sentence of 174 months, with a 60-month firearm enhancement on the first degree assault and a 12 month deadly weapon enhancement on the second degree assault conviction, to run consecutively.
¶ 8 When a defendant claims prosecutorial misconduct, he bears the burden of establishing both the impropriety of the prosecuting attorney's comments and their prejudicial effect. State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006). To determine whether a prosecutor's comments constitute misconduct, a reviewing court first decides whether the comments were improper, and, if so, whether a substantial likelihood exists that the comments prejudiced the jury. State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003). An appellate court reviews alleged misconduct "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." Id.
¶ 9 Prior to trial, the parties agreed that no gang evidence would be elicited. The court ordered both attorneys to instruct their witnesses not to testify about gangs or gang membership. Pedro-Guerra claims that the following exchange with respect to the meaning of "cuz," during direct examination of Terrell, violated the court's pretrial order and was prejudicial:
Q What did you do when you looked back and saw him running?
A I started running.
Q Was he saying anything?
A I don't think so.
Q Okay. Did anyone say anything about Cuz?
A Yeah, he did.
Q What did he say?
A He said, where are you going, Cuz?
Q What does "Cuz" mean? I mean, did you sort of — what does it mean to you?
A It could mean a lot of stuff.
THE COURT: Can we have a sidebar, please? (A sidebar is had.) . . .
Q . . . Mr. Terrell, is going "Cuz" sort of like going, hey you?
A Yeah.
Pedro-Guerra asserts that the prosecutor committed misconduct by eliciting testimony from Terrell that Pedro-Guerra referred to him as "cuz," a term associated with the Crips. Pedro-Guerra insists that, in conjunction with the evidence already before the jury, that Pedro-Guerra was wearing dark blue clothing and a do-rag,1 the reference to "cuz" prejudiced the jury against him. The State contends that defense counsel's failure to object waives appellate review. Alternatively, the State claims that no misconduct occurred, because Terrell never testified that "cuz" had gang connotations. To the contrary, he testified that it meant "hey you."
¶ 10 Pedro-Guerra failed to object below to the prosecutor's questions and raises prosecutorial misconduct for the first time on appeal. Failure to object to a prosecutor's improper remark constitutes waiver, unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432. There is insufficient evidence to suggest that the prosecutor's remark was flagrant and ill intentioned. The prosecutor stated on the record that The issue is waived.
¶ 11 Pedro-Guerra contends that defense counsel's failure to object constitutes an exception to the objection requirement. Generally, to preserve an issue for appeal, a party must object to inadmissible evidence when it is offered during trial, even when the trial court has already excluded it through a pretrial order. State v. Weber, 159 Wash.2d 252, 271, 149 P.3d 646 (2006) (citing State v. Sullivan, 69 Wash.App. 167, 172, 847 P.2d 953 (1993)). An exception to the objection requirement exists where "an unusual circumstance exists `that makes it impossible to avoid the prejudicial impact of evidence that had previously been ruled inadmissible.'" Weber, 159 Wash.2d at 272, 149 P.3d 646 (quoting Sullivan, 69 Wash.App. at 173, 847 P.2d 953). Examples of such unusual circumstances are when the other party's questions were "`in deliberate disregard of the trial court's ruling, or an objection by itself would be so damaging as to be immune from any admonition or curative instruction by the trial court.'" See, e.g., State v. Ra, 142 Wash.App. 868, ¶ 22, ¶ 23, 144 Wash.App. 688, 175 P.3d 609 (2008) ()(internal quotation marks omitted) (quoting Weber, 159 Wash.2d at 272, 149 P.3d 646).
¶ 12 Here, the prosecutor's line of questioning was cut short by the court's request for a sidebar. After the sidebar, the prosecutor was allowed to ask Terrell a leading question about what "cuz" meant. In Ra, the defendant and the detective actually answered the questions creating a link to gang activity and causing clear prejudice. Terrell testified that "cuz" was like "hey you." Unlike Ra, nothing in the answer connected the word with a gang or gang activity.
¶ 13 We hold that the prosecutor did not commit misconduct and no prejudice occurred.
¶ 14 Pedro-Guerra contends that RCW 9.94A.533(3) violates the state and federal guarantees of equal protection. The Washington Constitution article I, section 12, and the Fourteenth Amendment to the U.S. Constitution ensure that persons similarly situated as to the legitimate purposes of a law receive equal treatment. State v. Manussier, 129 Wash.2d 652, 672, 921 P.2d 473 (1996); State v. Coria, 120 Wash.2d 156, 169, 839 P.2d 890 (1992)....
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