State v. Prado
| Decision Date | 29 April 2008 |
| Docket Number | No. 24917-4-III.,24917-4-III. |
| Citation | 144 Wn. App. 227,181 P.3d 901 |
| Parties | STATE of Washington, Respondent, v. Hector M. PRADO, Appellant. |
| Court | Washington Court of Appeals |
Lenell Rae Nussbaum, Attorney at Law, Seattle, WA, for Appellant.
Douglas J. Shae, Attorney at Law, Wenatchee, WA, for Respondent.
¶ 1 Hector M. Prado appeals his conviction for first degree assault. He raises several issues concerning the trial court's instructions to the jury. He also contends he was denied effective assistance of counsel, and challenges the court's restitution. In his statement of additional grounds for review, Mr. Prado alleges prosecutorial misconduct. Finding no error, we affirm.
¶ 2 In the early morning of July 27, 2005, Belinda Dillard and her boyfriend, Daniel Guyer, were at Trav's Restaurant and Lounge in Wenatchee, Washington. While Ms. Dillard was sitting in the bar, she noticed Mr. Prado was trying to get her attention. Ms. Dillard turned to Mr. Prado and asked him his name and where he was from. Mr. Prado said that he was from Chicago and that he was in Wenatchee on business. Ms. Dillard introduced Mr. Prado to Mr. Guyer. Mr. Prado came over to the table and shook Mr. Guyer's hand and they continued talking. When Mr. Guyer left the table to use the restroom, Mr. Prado leaned over and kissed Ms. Dillard. Ms. Dillard then told Mr. Prado that she had to find Mr. Guyer, and Ms. Dillard and Mr. Guyer left the bar.
¶ 3 While Ms. Dillard and Mr. Guyer were walking to their car, Ms. Dillard told Mr. Guyer that Mr. Prado had kissed her. Mr. Guyer became angry. He got into the car and drove away, leaving Ms. Dillard. Ms. Dillard started to walk home. As she crossed the street, she heard a car honk, turned around, and saw Mr. Prado. Mr. Prado asked Ms. Dillard if she wanted a ride. When Ms. Dillard said "no thank you," Mr. Prado asked again if he could take her home. 3 Report of Proceedings (RP) (Jan. 9, 2006) at 342. Ms. Dillard again declined. At this point, Ms. Dillard saw Mr. Guyer driving through the alley.
¶ 4 Mr. Guyer pulled up to the front of Mr. Prado's car and got out. He went over to Mr. Prado's car and banged on the driver's-side window. Mr. Prado got out of the car and the two men began pushing each other. Ms. Dillard then noticed Mr. Prado's car rolling backwards. Because neither Mr. Prado nor Mr. Guyer noticed the car rolling, Ms. Dillard reached into the car and pushed the emergency brake. When she got out of the car, Mr. Prado came back to the car, got in and drove away.
¶ 5 Ms. Dillard then noticed Mr. Guyer in the middle of the street, bleeding from his chest. Mr. Guyer also had two stab wounds in his side. Mr. Guyer was taken to the hospital, where he later died. An autopsy revealed that Mr. Guyer died as a result of a stab wound to the chest.
¶ 6 On July 29, 2005, Mr. Prado was charged with one count of second degree murder. The information was amended to charge Mr. Prado with one count of second degree murder and one count of first degree assault with a deadly weapon. The matter proceeded to a jury trial.
¶ 7 At trial, Mr. Prado testified that when Mr. Guyer went to the bathroom, Ms. Dillard put her arms around him and they kissed. He said Mr. Guyer came out of the bathroom and told Ms. Dillard that it was time to leave the bar. Mr. Prado said he went to the restroom and left the bar a few minutes later. While he was stopped at a stoplight, Mr. Prado said he saw Ms. Dillard on the sidewalk. He said he rolled down his window and asked her if she needed a ride. He said that while he was talking to Ms. Dillard, Mr. Guyer pulled his car over right in front of him, got out of the car and began banging on Mr. Prado's window. Mr. Prado said Mr. Guyer was banging on the window violently and that he was really scared. Mr. Prado said that he did not know what to do, so he pulled a knife out of the console of his car and got out of the car to intimidate Mr. Guyer.
¶ 8 Mr. Prado testified that he showed the knife to Mr. Guyer and told him to "calm down." 5 RP (Jan. 11, 2006) at 562. He said that a few seconds later, Mr. Guyer came toward him and they started to struggle. He said that he was afraid because Mr. Guyer was trying to take the knife out of his hand. Mr. Prado said that during the struggle, he remembered feeling the knife penetrate Mr. Guyer, but that it wasn't "too hard." 5 RP (Jan. 11, 2006) at 563. He said that he did not remember any other time when his knife stabbed Mr. Guyer during the struggle. He said that once he was able to escape Mr. Guyer's grasp, he ran toward his car and drove home. He said he took the knife and threw it in the garbage behind his house.
¶ 9 At the conclusion of the testimony, the court gave the following instructions to the jury:
It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by use of lawful force. The law does not impose a duty to retreat.
A person commits the crime of assault in the first degree when, with intent to inflict great bodily harm, he or she assaults another with any deadly weapon.
To convict the defendant of the crime of assault in the first degree as charged in count II of the information, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of July, 2005, the defendant assaulted Daniel Guyer;
(2) That the assault was committed with a deadly weapon;
(3) That the defendant acted with intent to inflict great bodily harm; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
An assault is an intentional touching, striking, or cutting of another person that is harmful or offensive. A touching, striking or cutting is offensive if the touching, striking or cutting would offend an ordinary person who is not unduly sensitive.
An assault is also an act, with unlawful force done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
A person commits the crime of assault in the second degree when, under circumstances not amounting to assault in the first degree, he assaults another with a deadly weapon.
To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of July, 2005, the defendant:
(a) intentionally assaulted Daniel Guyer and thereby recklessly inflicted substantial bodily harm; or
(b) assaulted Daniel Guyer with a deadly weapon; and
(2) That the acts occurred in the State of Washington[.]
If you find from the evidence that element (2) and either element (1)(a) or (1)(b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. Elements (1)(a) and (1)(b) are alternatives and only one need be proved.
On the other hand, if after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
A person commits the crime of assault in the third degree when, under circumstances not amounting to assault in either the first or second degree, he, with criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.
To convict the defendant of the crime of assault in the third degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of July, 2005, the defendant caused bodily harm to Daniel Guyer[;]
(2) That the physical injury was caused by a weapon or other instrument or thing likely to produce bodily harm;
(3) That the defendant acted with criminal negligence; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
It is a defense to a charge of assault in the first degree as well as the lesser included offense of assault in the second and third degree that the force used was lawful as defined in this instruction.
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person or a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, and when the force is not more than is necessary.
The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident.
The State has the burden of proving beyond a...
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