State v. Rodriguez, No. 63166-7-I (Wash. App. 6/7/2010)
| Decision Date | 07 June 2010 |
| Docket Number | No. 63166-7-I.,63166-7-I. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. NOEL ALI RODRIGUEZ, Appellant. |
Appeal from King County Superior Court. Docket No: 08-1-12153-1. Judgment or order under review. Date filed: 03/09/2009. Judge signing: Honorable Susan J Craighead.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA, 98122.
Jennifer J Sweigert, Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842,
Noel Ali Rodriguez (Appearing Pro Se), Doc# 298017, Washington State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA, 99362.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Dennis John Mccurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA, 98104-2362.
Noel Ali Rodriguez appeals his convictions for incest in the first degree, assault in the second degree, felony harassment, unlawful imprisonment, interfering with reporting domestic violence, and tampering with a witness, contending that the trial court committed several errors during trial. He also challenges the denial of his motions to continue or sever the witness tampering charge added to the information after the court impaneled the jury and on the same day the prosecution made its opening statement. In addition, he claims that a no-contact order included as a condition of his judgment and sentence violated his fundamental right to parent.
We hold that the trial court abused its discretion when it denied Noel's motion for a continuance because this deprived him of a meaningful opportunity to investigate and prepare an adequate defense to the new charge. We also hold that the no-contact order violated Noel's right to parent because the State failed to demonstrate why an absolute prohibition on contact between Noel and his child is reasonably necessary to accomplish the State's compelling interest in protecting this child from witnessing domestic violence. We reject Noel's remaining assignments of error.
Cela Rodriguez immigrated to the United States from Nicaragua. She left four children behind, including Sonia Munoz-Ruiz and Jose Munoz-Ruiz. In 1991, Cela married Noel.1 The couple had two children together, Sarah and Francisco.
In 2000, Cela brought Sonia and Jose to Washington to live with her and Noel. At that time, Sonia was 15, Jose was 13, and Noel was 35. The following year, Noel began abusing Sonia. In one incident, he badly beat her in front of her family. He pushed her into a wall, pulled her hair, slapped her face, and choked her, saying, "Don't fuck with me, because I'll kill you."
The couple separated in 2002, and around the same time, Cela obtained restraining orders against Noel from King County and the City of Burien. They divorced in 2004. Their decree of dissolution imposed continuing restraints against Noel.
From the spring of 2003 to the fall of 2004, Sonia, Jose, and Cela met with Louis Raphael Vila, a psychotherapist on staff in the mental health department of Consejo Counseling and Referral. During these sessions, Jose informed Louis that when he was 14 and his sister was 16, he witnessed Noel and Sonia have sexual intercourse on four occasions. Child Protective Services was notified, but no prosecution followed.
When Sonia turned 18, she moved in with her stepfather, Noel. They conceived a child, N.R., who was born in 2003. Sonia was 19 at the time. She and Noel later married, though the record is unclear as to when.
Noel's abuse of Sonia continued well into their marriage. When Sonia was four months pregnant, Noel, in front of his friends, became angry and hit her in the face with an open hand. He stopped hitting her when his friends began laughing and the group left the house. And in 2008, after the couple got into a fight while driving north on Interstate 5, he hit her in the face while she was driving and grabbed the steering wheel, causing her to lose control of the vehicle. N.R. was in the back seat. Not long after this incident, Sonia decided she wanted to divorce Noel.
The events producing this case began the evening of October 1, 2008, when Sonia went to Noel's house to pick up her son. Nobody was home, so she waited. She eventually fell asleep watching TV. Around 2:00 a.m., Noel and N.R. returned to the house. Because it was late, Sonia planned to stay the night and leave the next morning.
Noel tried to kiss Sonia, but she turned away. She also refused to answer his questions about whether she had another boyfriend. He became angry and accused her of cheating on him. Sonia testified that he put both hands on her throat and immobilized her. She also testified that she could smell alcohol on his breath. According to the same testimony, N.R. tried to push his father away and asked repeatedly for him to let go of his mother. Sonia reached for her cellular phone, but Noel held her against the wall by her throat. Sonia testified that the pressure hurt, making it difficult for her to breathe. She also reported to the police that he pulled her hair, bit her face, and threatened to kill her. When he let her go, Sonia again reached for her cellular phone, but Noel took the phone away and smashed it on the ground.
The State charged Noel with one count of assault in the second degree (domestic violence), one count of felony harassment (domestic violence), unlawful imprisonment (domestic violence), incest in the first degree, interfering with reporting domestic violence, and one count of domestic violence in the fourth degree.
In a motion in limine, defense counsel sought to exclude Louis's testimony regarding Jose's statements made in the 2003 counseling sessions. On January 26, a Monday, the trial court ruled that if Jose testified, Louis's testimony could then be admitted. The court impaneled a jury the same day and scheduled opening statements for the following morning.
That Monday night, Noel called his sister, Marilyn Boland, from jail. He asked her to tell his brother, Harry, to speak to Jose so he realizes "it's my fucking life here," "it's 11 years that they're going to give me," and "if Jose doesn't show up, if they don't get him, . . . that son of a bitch Vila can't say shit." On Tuesday morning, the prosecutor asked to reschedule opening statements for Wednesday afternoon because the State was unable to make contact with Sonia. The court granted the request. Then, Tuesday evening, the State notified defense counsel of its intent to amend the information to add a witness tampering charge based on Noel's phone call to his sister.2 Wednesday morning, the court, over defense counsel's objection, granted the State's motion to amend. Defense counsel then motioned for a continuance, severance, or a mistrial, all of which were denied.
At trial, Sonia refused to answer the prosecutor's questions about when she and Noel first had sex, stating, "It's something that I don't want to talk about." Jose was also reluctant to testify. He admitted that he underwent counseling for trauma suffered at home but couldn't remember ever witnessing Noel and Sonia have sex. Louis then testified that Jose had disclosed to him in 2003 that on four occasions Jose saw Noel and Sonia have intercourse. At the time she was only 16 years old.
A jury found Noel guilty of all six charges. In addition, for the assault, felony harassment, and unlawful imprisonment charges, the jury found two aggravating factors: these crimes were committed as part of an ongoing pattern of domestic violence and were committed in front of a child. At sentencing, the court imposed a total period of confinement of 84 months and a no-contact order prohibiting Noel from having any contact with Sonia or N.R. for a period of 10 years.
Noel contends that the trial court abused its discretion when it denied his motion for a continuance after permitting the State to amend the information to add a witness tampering charge on the day trial began. We agree.
CrR 3.3(f) allows a court to grant a motion for a continuance if it "is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." We review a trial court's decision under this rule for an abuse of discretion.3 A trial court abuses its discretion when it bases its decision on untenable grounds or reasons.4
Article 1, section 22 of the Washington Constitution guarantees that "'an accused person must be informed of the criminal charge he or she is to meet at trial, and cannot be tried for an offense not charged.'"5 Denial of a continuance that results in a defendant receiving inadequate notice abridges due process of law and constitutes an abuse of discretion.6
In State v. Purdom,7 our Supreme Court reversed a conviction where, as here, the information was amended on the first day of trial, and the trial judge denied defense counsel's subsequent motion for a continuance. In that case, the prosecutor advised defense counsel three days before trial that it would seek to replace the charge of conspiracy to deliver a controlled substance to accomplice to delivery of a controlled substance. The court observed that "'[a]n amendment to an information at trial may prejudice a defendant by leaving him without adequate time to prepare a defense to a new charge.'"8 Because the trial court's decision deprived the defendant of that opportunity, the court held that "as a matter of law [the] substantial rights of the defendant were violated by amending the charge on the day of trial without granting a continuance when one was requested."9
Like Purdom, the State's motion to amend the information to add a new charge on the day of trial caught Noel's counsel by surprise. In fact, Noel's counsel had even less time to prepare than...
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