State v. Perez-Cervantes

• Decision Date: 24 August 2000
• Docket Number: No. 66719-5.,66719-5.
• Citation: 6 P.3d 1160,141 Wash.2d 468
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Antonio PEREZ-CERVANTES, Respondent.

6 P.3d 1160

141 Wash.2d 468

STATE of Washington, Petitioner, v. Antonio PEREZ-CERVANTES, Respondent.

No. 66719-5.

Supreme Court of Washington, En Banc.

Argued January 11, 2000.

Decided August 24, 2000.

John Ladenburg, Pierce County Prosecutor, John Martin Neeb, Deputy, Tacoma, for Petitioner.

Ronald D. Ness & Assoc., Judith Michele Mandel, John L. Cross, Port Orchard, for Respondent.

ALEXANDER, J.

Antonio Perez-Cervantes was found guilty of the second degree murder of Samuel Thomas. Perez-Cervantes appealed his conviction to the Court of Appeals, and asserted there that the trial court erroneously prevented his counsel from arguing to the jury that it was Thomas' use of illicit drugs and his failure to seek medical attention, rather than the stab wounds he received at the hand of the defendant, that caused his death. The Court of Appeals agreed with Perez-Cervantes' contention and, therefore, reversed his conviction. We reverse the Court of Appeals, concluding that there was insufficient evidence to support Perez-Cervantes' alternative causation theory.

I.

Samuel "Lucky" Thomas allegedly robbed Antonio Perez-Cervantes. Thereafter, and presumably in retribution, Perez-Cervantes and several accomplices severely beat Thomas. During the affray, Perez-Cervantes twice stabbed Thomas with a pocketknife. The stabbing punctured an artery between Thomas' ribs, which caused blood to rush into the left side of his chest cavity. The blood eventually exerted enough pressure on Thomas' left lung to dangerously restrict his breathing.

Paramedics were summoned to the scene of the incident and, on arrival, determined that Thomas should be transported to a hospital for surgery. During surgery, doctors inserted a tube into his chest and successfully evacuated the blood and air from his chest cavity. Thomas remained at the hospital for several days, until his condition stabilized sufficiently to permit him to be released. He then went home to recuperate.

Two days after he was released from the hospital, Thomas began complaining to his girl friend, Annette Holman, about his injuries. Two days later, he began experiencing chest pain and shortness of breath. When Thomas' breathing became alarmingly shallow, Holman called 911 to summon help. Unfortunately, Thomas stopped breathing before the medics arrived. Efforts to resuscitate him failed and he was pronounced dead.

An autopsy on Thomas' body indicated that, at the time of his death, he had approximately five liters of fresh blood in his left chest cavity. Pierce County medical examiner, Dr. Emmanuel Lacsina, found significant hematoma around the area of the stab wound and, therefore, ruled out any other trauma as the cause of Thomas' internal bleeding and death. He determined that Thomas' "death was due to a stab wound," with chronic obstructive pulmonary disease, which Dr. Lacsina described as "real bad emphysema," as the only "contributing factor." Verbatim Report of Proceedings (VRP) vol. II at 26, 27.

Toxicology tests revealed the presence of the "breakdown product[s]" of heroin and cocaine in Thomas' bloodstream at the time of death. VRP vol. II at 22. Consequently, Dr. Lacsina amended the death certificate to add "acute cocaine and heroin abuse as contributing factors." VRP vol. II at 27.

Thereafter, an eyewitness to the attack on Thomas informed a Tacoma police detective that Perez-Cervantes had stabbed Thomas. Based on that information, the Pierce County prosecutor charged Perez-Cervantes with murder in the second degree.

At trial, Dr. Lacsina was the only witness who testified about the cause of Thomas' death. He said that Thomas died from "internal bleeding as a result of the stab wound." VRP vol. II at 24. He also testified that cocaine use could have caused an elevation in blood pressure, leading to "re-bleeding" from Thomas' stab wound, and that heroin use could have masked the pain of this re-bleeding.

Although Dr. Lacsina opined that the levels of cocaine in Thomas' blood could be enough to cause a "heart attack or a jolt," he agreed that "the presence of blood in [Thomas'] stab wound" ruled out the possibility that Thomas' death was due to a drug overdose. VRP vol. II at 28. He, therefore, classified Thomas' death as a "homicide," rather than as "undetermined," the classification for a death by drug overdose. VRP vol. II at 43. Dr. Lacsina did not express an opinion as to whether any amount of cocaine and/or heroin could independently cause spontaneous rupturing of a drug user's vascular structure. He did indicate, however, that the toxicology test results did not change his opinion as to cause of death.

Following presentation of the evidence, the State moved to limit closing argument by defense counsel "relating to the cause of death." VRP vol. III at 9. After hearing argument on the motion, the trial judge stated: "[t]here are other contributing factors; that's the evidence, contributing factors. But there is no testimony, none has been offered, that those factors rise to the level of cause." VRP vol. III at 13 (emphasis added). He, therefore, granted the State's motion and prohibited defense counsel from arguing to the jury that Thomas' drug use or failure to seek medical care caused his death. The trial judge instructed the jury regarding proximate cause, and intervening cause, as follows:

If you are satisfied beyond a reasonable doubt that the acts of the defendant were a proximate cause of the death of the deceased, it is not a defense that the conduct of the deceased or another may also have been a proximate cause of the death.

If a proximate cause of the death was a later independent intervening act of the deceased or another that the defendant, in the exercise of ordinary care, could not reasonably have anticipated as likely to happen, the defendant's acts are superseded by the intervening cause and are not a proximate cause of the death.

However, if in the exercise of ordinary care, the defendant should reasonably have anticipated the intervening cause, that cause does not supersede defendant's original acts and defendant's acts are a proximate cause. It is not necessary that the sequence of events or the particular injury be foreseeable. It is only necessary that the death fall within the general field of danger which the defendant should have reasonably anticipated.

Instruction 15, Clerk's Papers (CP) at 79. Perez-Cervantes' counsel did not object to the giving of this instruction.

Despite the trial court's previous ruling, Perez-Cervantes' counsel attempted to present argument that Thomas' drug use caused his death. The trial judge sustained the State's objection to the argument, indicating, "you're arguing the cause of death and I've already ruled on that." VRP vol. III at 53. The jury subsequently returned a verdict of guilty on the charge of murder in the second degree.

Perez-Cervantes appealed to the Court of Appeals, Division Two. That court reversed the trial court, concluding that because "[t]he trial court, in effect, took the question of cause of death from the jury and directed a verdict" of guilty, "Perez-Cervantes's due process rights were violated." State v. Perez-Cervantes, 90 Wash.App. 566, 573, 952 P.2d 204, review granted, 136 Wash.2d 1008, 966 P.2d 904 (1998). We granted the State's petition for review.

II.

The State asserts that the Court of Appeals wrongly concluded that the trial court erred in precluding Perez-Cervantes' counsel from arguing to the jury that Thomas' death was caused by his use of drugs, or his failure to seek medical attention. In support of this argument, it contends that "when there is no evidence ... from which the jury could find a cause of death other than the stabbing, ... no argument could be made that there was an intervening cause of death." Supplemental Br. of Pet'r at 12.

In considering the State's argument, we are not unmindful of the importance of closing argument to a defendant in a criminal case. As the United States Supreme Court has noted, it is the defendant's "last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt." Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). We have observed that counsel must be afforded "the utmost freedom in the argument of the case" and "some latitude in the discussion of their causes before the jury." Sears v. Seattle Consol. St. Ry. Co., 6 Wash. 227, 232, 233, 33 P. 389, 33 P. 1081 (1893).

On the other hand, argument by counsel must be restricted to the facts in evidence and the applicable law, lest the jury be confused or misled. Consequently, the trial judge has discretion to restrict closing arguments. Indeed, no less authority than the United States Supreme Court has written:

The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations.... He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.

Herring, 422 U.S. at 862,95 S.Ct. 2550. Consistent with that notion, we have long held that the trial court should "in all cases... restrict the argument of counsel to the facts in evidence." Sears, 6 Wash. at 233, 33 P. 389; accord State v. Rose, 62 Wash.2d 309, 312, 382 P.2d 513 (1963)

; State v. Mode, 57 Wash.2d 829, 836, 360 P.2d 159 (1961). Counsel's statements also must be confined to the law as set forth in the instructions to the jury. State v. Estill, 80 Wash.2d 196, 199, 492 P.2d 1037 (1972).

Rulings by a trial court restricting the scope of argument are reviewed with a view toward determining if the trial court abused its discretion. State v. Costello, 29 Wash. 366, 371, 69 P. 1099 (1902); see also Chezum v. Parker, 19 Wash. 645, 651-52, 54 P. 22 (1898); State v. Bokien, 14 Wash. 403, 416, 44 P. 889 (1896); State v. Cecotti, 31 Wash.App. 179, 183, 639 P.2d 243, ...