State v. Vasquez
| Decision Date | 08 July 2014 |
| Docket Number | C/w No. 44607-3-II,No. 43422-9-II,C/w No. 44485-2-II,C/w No. 44616-2-II,43422-9-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JUAN JOSE GOMEZ VASQUEZ, Appellant. In re Personal Restraint of JUAN JOSE GOMEZ VASQUEZ, Petitioner. |
JOHANSON, C.J. — A jury found Juan Jose Gomez Vasquez guilty of unlawful delivery of a controlled substance contrary to RCW 69.50.401(2)(b). Gomez Vasquez appeals his conviction, contending that (1) he received ineffective assistance of counsel, (2) the State committed prosecutorial misconduct, and (3) that the trial court erroneously denied Gomez Vasquez's right to self-representation. Gomez Vasquez also filed two statements of additional grounds (SAG) and three personal restraint petitions (PRP) which are consolidated with thisappeal.1 We hold that (1) Gomez Vasquez's ineffective assistance of counsel claims fail because he is unable to demonstrate resulting prejudice, (2) the prosecutor's misconduct was not flagrant and ill intentioned and incurable by instruction, (3) that Gomez Vasquez waived his right to self-representation by proceeding through trial with counsel, and (4) that Gomez Vasquez's SAG arguments fail. We also deny Gomez Vasquez's PRPs. Accordingly, we affirm his conviction.
Kevin Gordon used drugs for over 25 years. In June 2011, police pulled Gordon over and found an ounce of methamphetamine in Gordon's possession. Officer Don Walkinshaw arrived at the scene and inquired as to Gordon's willingness to work for the police. Aware that he was facing up to 20 years in prison if convicted on his charges, Gordon agreed to plead guilty when offered a more lenient sentence in exchange for his work as a confidential informant (CI). Shortly thereafter, Gordon began to conduct "reliability buys" for Officer Walkinshaw. 2 Report of Proceedings (RP) at 197.
In August 2011, Officer. Walkinshaw put Gordon in contact with Officer James Buchanan. On August 18, Gordon went to the police station and, in the presence of Officer Buchanan, called and spoke to Gomez Vasquez reaching an agreement to exchange cash for drugs at a location in Pierce County. Before taking Gordon to the meeting location, Officer Buchanan conducted a standard prebuy search which required Gordon to empty his pockets and submit to a thorough search, frisk, and pat down of his person. Officer Buchanan provided Gordon with a scale and prerecorded money to purchase a quarter ounce of methamphetamine.
Gordon went to the location where he and Gomez Vasquez agreed to meet while Officer Buchanan and other members of his investigation team conducted surveillance. But because the technology unit was unavailable, Officer Buchanan was unable to record audio or video of the day's events. Gordon arrived at the location and entered a van in which Gomez Vasquez was a passenger. Gordon gave Gomez Vasquez the money and Gomez Vazquez left on a bicycle returning a few minutes later with a package that needed to be "weigh[ed] out," but Gordon discovered that the scale he had been given was not functioning, so he was taken to Gomez Vasquez's residence to complete the transaction. Members of Officer Buchanan's surveillance team followed the van from the original location back to Gomez Vasquez's home as Gordon relayed the changing plans to Officer Buchanan via text message. Gordon arrived at Gomez Vasquez's residence where Gordon was given a quarter ounce of methamphetamine. After the transaction, Officer Buchanan retrieved Gordon who produced a baggie of what was later confirmed to be methamphetamine. Officer Buchanan again searched Gordon. On August 30, Officer Buchanan applied for a search warrant.
On September 7, Officer Buchanan and several other members of the Tacoma Police Department executed the search warrant at the residence where Gordon purchased the methamphetamine. During the ensuing search, police recovered marijuana, prescription pills, a gun, a scale, and documents with Gomez Vasquez's name on them. But the officers did not find methamphetamine or any of the marked money Gordon used to buy the drugs. During the search, Officer Kenneth Smith read Gomez Vasquez Miranda2 warnings. Afterwards, Gomez Vasquez agreed to speak to Officer Buchanan. Gomez Vasquez initially claimed that he. onlyconsumed drugs, but when he was advised that police had observed the earlier controlled buy, Gomez Vasquez admitted to selling methamphetamine and heroin.
The State initially charged Gomez Vasquez with two counts of unlawful delivery of a controlled substance, second degree unlawful possession of a firearm, two counts of possession of a legend drug, and unlawful possession of a controlled substance. But the State amended the charges to one count of unlawful delivery of a controlled substance.
Either by agreement of both parties or for administrative necessity, Gomez Vazquez's trial date was continued a total of five times. Although his counsel agreed to continue the case, Gomez Vasquez himself objected to any continuance during his omnibus hearing, desiring that the record reflect the assertion of his speedy trial rights. Gomez Vasquez refused to sign each subsequent order continuing the trial date.
Gomez Vasquez also moved to suppress the admissions he made during the execution of the search warrant on grounds that he did not knowingly and voluntarily waive his right to remain silent. Notwithstanding some evidence that Gomez Vasquez appeared tired or possibly high on drugs, the trial court ruled that the statements were made after Gomez Vasquez voluntarily waived his Miranda rights. Additionally, Gomez Vasquez filed a motion in which he claimed to waive his right to counsel and contended that he wished to represent himself pro se. But Gomez Vasquez was represented by counsel throughout trial and did not bring this motion to the trial court's attention until the day he was scheduled to be sentenced.
At trial, Officer Buchanan testified on behalf of the State. On redirect examination, the prosecutor asked Officer Buchanan to describe the items found in the house and elicited the following testimony:
3 RP at 304. Gomez Vasquez did not object to Officer Buchanan's testimony on redirect nor did he object to the prosecutor's closing argument. The jury found Gomez Vasquez guilty as charged.
At sentencing, Gomez Vasquez complained that the court failed to address the various pro se motions that he had submitted before and after trial, including a motion for arrest of judgment and new trial. The trial court denied his motion for a new trial the following week.
Gomez Vasquez appeals his conviction for unlawful delivery of a controlled substance and his sentence of 75 months confinement. Gomez Vasquez also filed three PRPs which are consolidated by order to his direct appeal.
Gomez Vasquez argues that his trial counsel rendered ineffective assistance by failing to move to exclude prejudicial gun evidence and by failing to object or request a sidebar once the testimony involving the weapon was adduced. Because Gomez Vasquez fails to show resulting prejudice, his ineffective assistance of counsel argument fails.
To prevail on an ineffective assistance of counsel claim, a defendant must show both deficient performance and resulting prejudice; failure to show either prong defeats this claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). An appellate court reviews an ineffective assistance claim de novo, beginning with a strong presumption that trial counsel's performance was adequate and reasonable and giving exceptional deference when evaluating counsel's strategic decisions. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)). Thus, to establish deficient performance, a defendant must show that counsel's performance fell below an objective standard of reasonableness. McNeal, 145 Wn.2d at 362. To establish prejudice, a defendant must show that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
Here, counsel for Gomez Vasquez did not object to Officer Buchanan's testimony regarding the gun found during the search nor did counsel object to the prosecutor's gun remarks during closing argument. Because the unlawful firearm possession charge was dismissed before trial, evidence relating to the gun was no longer relevant to Gomez Vasquez's case and.the trial court likely would have sustained an objection under ER 402.3
Even assuming such an objection would have been sustained, Gomez Vasquez cannot show that...
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