State Of Washington v. Hailu D. Mandefero ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69925-3-1
Respondent, DIVISION ONE
v.
HAILU DAGNEW MANDEFERO, UNPUBLISHED
Appellant. FILED: June 1,2015
Cox, J. — Hailu Mandefero appeals his judgment and sentence, claiming
that the evidence is insufficient to support his convictions of first degree assault,
second degree assault, and second degree unlawful possession of a firearm.
Specifically, he contends that there is insufficient evidence to establish identity.
Reviewing the evidence in the light most favorable to the State, it is clear that a
rational trier of fact could find beyond a reasonable doubt that Mandefero
committed all three crimes. We affirm.
All three charges were based on a shooting that occurred in May 2012 at
Ezell's Chicken in Skyway. During this incident, Jae Brione Gary was shot
multiple times as he sat in his car parked in front of this restaurant. Two of the
shots fired at Gary's car missed him and went through the windows of the
restaurant, where Sandra Torres was working. The shots were fired from the
No. 69925-3-1/2
vicinity of a truck that had pulled in behind Gary's car as he sat talking with his
cousin.
Police responded to the scene of the shooting and spoke with Gary before
he was transported to the hospital for his wounds. Gary was, at first, reluctant to
say who shot him while being questioned near a small crowd of bystanders. But
he did identify his shooter once he was in the confines of the ambulance that
later transported him to the hospital. Specifically, he stated that he was shot by
"Haiua" from Money Gang.1 He also said he would point out his assailant in a
high school yearbook.
Police officers arrested Hailu Mandefero later that night. At the time of his
arrest, he was at a hospital with his friend, Kevin Hubbard. Mandefero gave
inconsistent statements to police about his whereabouts and activities earlier that
evening.
The State charged Mandefero with assault in the first degree of Jae Brione
Gary, assault in the second degree of Sandra Torres, and unlawful possession of
a firearm in the second degree. The two assault charges included firearm
allegations pursuant to RCW 9.94A.553(3).
Gary refused to speak with the investigating detective and did not respond
to the detective's attempts to contact him. Thus, the State obtained a material
witness warrant for Gary, who testified at trial. He testified that after the shooting
he told police who responded to the scene that his assailant was Hailu and that
he was talking about Mandefero. But he recanted his earlier identification of
Clerk's Papers at 4-5; see also Ex. 9 and 10.
No. 69925-3-1/3
Mandefero. He claimed it was Hubbard that shot him and that he could not see
anyone else in the truck that pulled in behind his car at Ezell's.
At trial, the State also presented the testimony of Deputy Michael
Glasgow, one of the officers who responded to the shooting at Ezell's. He
testified that he was with Gary in the ambulance just after the shooting and that
Gary told him that "Hailu and some ni[**]ers" had shot him.2 Deputy Glasgow
also testified that Gary told him he would point out this person in a yearbook and
that this person was associated with the "Money Gang." The jury also heard a
recording of Gary's statements to Deputy Glasgow in the ambulance that the
deputy made on his cellphone.
Mandefero did not testify and rested without presenting any evidence. His
theory of defense during closing argument was that the State "got the wrong
guy."3 Defense counsel focused on Gary's testimony at trial identifying Hubbard
as the assailant and argued that Hubbard acted alone.
The juryfound Mandefero guilty of all crimes, as charged.
Mandefero appeals.
SUFFICIENCY OF THE EVIDENCE
Mandefero argues that the evidence is insufficient to support his three
convictions. Specifically, he contends that there is insufficient evidence to
establish identity. We hold that the evidence in this record supports the jury
verdicts in all respects.
2 Report of Proceedings (Oct. 24, 2012) at 146.
3 Report of Proceedings (Nov. 6, 2012) at 36.
No. 69925-3-1/4
Due process requires the State to prove beyond a reasonable doubt all
the necessary facts of the crime charged.4 "The test for determining the
sufficiency of the evidence is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt."5 "[A]ll reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the defendant."6
A reviewing court need not be convinced of the defendant's guilt beyond a
reasonable doubt, but only that substantial evidence supports the State's case.7
A trier of fact may properly render a guilty verdict based on circumstantial
evidence alone, even if the evidence is also consistent with a hypothesis of
innocence.8 Circumstantial evidence and direct evidence are equally reliable.9
This court defers to the trier of fact on "issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence."10 "Credibility
determinations are for the trier of fact and are not subject to review."11
4 State v. Colquitt. 133 Wn. App. 789, 796, 137 P.3d 892 (2006).
5 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068(1992).
6ld
7 State v. Fiser. 99 Wn. App. 714, 718, 995 P.2d 107 (2000).
8 State v. Kovac. 50 Wn. App. 117, 119, 747 P.2d 484 (1987).
9 State v.Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
10 id, at 874-75.
11 Id. at 874.
No. 69925-3-1/5
A person commits the crime of assault in the first degree under RCW
9A.36.011(1)(a) when, with intent to inflict great bodily harm, he assaults another
with a firearm or deadly weapon or by any force or means likely to produce great
bodily harm or death.
A person commits the crime of assault in the second degree under RCW
9A.36.021(1)(c) when he assaults another with a deadly weapon.
A person commits the crime of unlawful possession of a firearm in the
second degree under RCW 9.41.040(2)(a)(i) when he has previously been
convicted of a felony and knowingly has in his possession or control a firearm.
Here, Mandefero does not challenge the sufficiency of the State's
evidence that the three crimes were committed. Rather, he challenges the
sufficiency of the evidence that he was the shooter. We conclude that there is
sufficient evidence to establish his identity as the shooter.
First, evidence indicated that Mandefero had a motive to shoot Gary.
Gary testified at trial that he had a "beef with Mandefero.12 He described an
incident a couple of weeks before the shooting where he stole Mandefero's chain
necklace in front of a crowd of people.13 Gary testified that he did this because
he thought Mandefero had cheated his cousin out of money.14
The jury also heard the recording of a jail phone call after Mandefero was
arrested on these charges. The speaker referenced this chain necklace incident
12 Report of Proceedings (Oct. 24, 2012) at 80.
13 Jd at 80-94.
14 Id. at 81.
No. 69925-3-1/6
stating, "Ain't nobody gonna snatch your chain ever again, promise you that."15
Mandefero laughed in response. This conversation further suggests that the
chain necklace incident was the motive for the shooting.
Mandefero does not point to any evidence to refute this evidence of
motive. Accordingly, we conclude that there is sufficient evidence to support the
State's theory that Mandefero had a motive to seek revenge against Gary for
stealing his chain necklace by shooting him. This is circumstantial evidence that
Mandefero was the shooter.
Second, there was also evidence that Mandefero had the opportunity to
shoot Gary. Mandefero had his cell phone when he was arrested at the hospital
following the shooting. Call records for Mandefero's phone and Hubbard's phone
were admitted into evidence at trial.16 The phone records contain call logs that
list both incoming and outgoing calls for both phones that night. The records also
show the specific cell phone towers that each phone used to transmit these calls.
The jury heard testimony that when a phone call is made, it generally uses
the nearest tower of the phone's service provider.17 There are many factors that
affect cell tower reception, but generally, when a certain tower is identified, the
phone is within a three mile radius of the tower.18
15 Ex. 46; Ex.43.
16 Ex. 62; Ex. 63.
17 Report of Proceedings (Nov. 5, 2012) at 39.
18 Jd at 37-40, 43, 54-55.
No. 69925-3-1/7
The cell tower records indicate that both Mandefero and Hubbard traveled
a path that corresponded to the State's theory of the case. Both men were north
of Ezell's prior to the shooting. An incoming call placed Mandefero north of
Ezell's at 8:43:05 p.m.19 An incoming call to Hubbard's phone at 8:43:36 p.m.
shows that Hubbard was also north of Ezell's at that time.20 Another incoming
call at 9:05 p.m. showed that Mandefero had moved south, in the direction of
Ezell's.21 After the shooting, both men were moving south of Ezell's.22 In short,
the cell phone records support the State's theory that Mandefero was with
Hubbard in the area of the shooting around the time of the shooting.
Additionally, the records show that neither Mandefero nor Hubbard used
his phone at the time of the shooting.23 Mandefero did not use his phone
between 9:05 p.m. and 9:14 p.m.24 Hubbard did not use his cell phone between
8:43 p.m. and 9:10 p.m.25 This is further circumstantial evidence that Mandefero
had the opportunity to shoot Gary.
19 See Ex. 66.
20 See Ex. 65.
21 See Ex. 66.
22 See Ex. 65; Ex.66.
23 See Ex. 65: Ex. 66.
24 See Ex. 63.
25 See Ex. 62.
7
No. 69925-3-1/8
Mandefero challenges what is to be derived from the cell phone evidence.
But his challenges go to the weight of the evidence, something that the jury
decided against him. Thus, his arguments are not persuasive.
We turn to the main point of contention—identity. Mandefero urges that
the evidence is insufficient to show that he committed the charged crimes. We
disagree.
Gary, at first, was unwilling to identify who shot him when Deputy Glasgow
arrived on the scene and questioned him about what happened. This initial
exchange occurred while a number of bystanders were close by. But when
medical personnel arrived and placed Gary into an ambulance before
transporting him to a hospital, he answered the deputy's questions.
Deputy Glasgow testified at trial that after he told Gary he would not tell
anybody, Gary told him who shot him.26 The deputy testified, "[Gary] said it was
something along the name of Hailu and some ni[**]ers."27 Gary also said that he
would show Deputy Glasgow a picture of Hailu, that Hailu was in a burgundy
truck, that Hailu was from the "Money Gang," and that Hailu was African.28
Deputy Glasgow recorded portions of this conversation in the ambulance on his
smartphone. This recording was played for the jury.
The State presented evidence to corroborate this identifying information.
Specifically, it presented evidence that Mandefero had "Money" tattooed on one
26 Report of Proceedings (Oct. 24, 2012) at 146.
27 Id
28 Id at 148-49; Ex. 10.
8
No. 69925-3-1/9
hand and "Gang" tattooed on the other, surrounded by dollar signs.29 It also
presented evidence from Mandefero's Facebook page, where Mandefero
claimed membership in the Money Gang.30
Notably, Gary admitted at trial that after the shooting he told Deputy
Glasgow that his assailant was Hailu.31 He further admitted that he was then
talking about Hailu Mandefero.32
Gary identified Mandefero as his assailant again when he woke up in the
hospital, after being transported from the scene of the shooting. At trial, Gary
testified that he told his mother at the hospital that Mandefero had shot him.33 He
also told her that Hubbard was involved, and he told his family that if they caught
either Mandefero or Hubbard to "[s]erve him how I got served."34
Notwithstanding these pre-trial statements, Gary recanted his prior
identifications of Mandefero.35 As we already noted, Gary testified at trial only
after being compelled to do so on a material witness warrant.
29 Report of Proceedings (Oct. 29, 2012) at 134.
30 Ex. 40.
31 Report of Proceedings (Oct. 24, 2012) at 51.
32 id
33 jd at 58.
34 id
35 Id. at 118-20.
No. 69925-3-1/10
At trial, Gary testified that he only saw Hubbard and that he did not see
anybody else. He said he was purposely misleading Deputy Glasgow when
interviewed at the scene of the crimes.
But the jury also heard evidence that Gary did not want to cooperate and
had a motive to recant his pre-trial statements. The jury knew that Gary was
arrested on a material witness warrant as a reluctant witness. Gary testified at
trial that he knew detectives were looking for him and that he did not respond to
their calls. He told the detectives that he was not going to cooperate.
Gary testified that he still wanted revenge. But he said that he intended to
take care of things his way rather than go through the legal system. The
following exchange occurred at trial:
[Gary]: Honestly, I'm not about putting no man away. I don't know
how much time he is looking at, but I'm taking, you know, I'm about
20. I know we are around the same age. I'm not about putting no
man away for no amount of time.
[Prosecutor]: All right. So you just don't want to see anybody go to
jail-
[Gary]: I mean . . .
[Prosecutor]: - whether they shot you or not?
[Gary]: Pretty much.^
The officer who arrested Gary on the material witness warrant also
testified about Gary's reluctance to testify. He testified that Gary told him that he
did not want to snitch, he wanted to keep things on the streets, and he was afraid
36 Report of Proceedings (Oct. 24, 2012) at 65.
10
No. 69925-3-1/11
of what would happen to him if he testified against Mandefero.37 The officer
further testified that Gary was "vehemently opposed to come and stand before
the court" and that Gary's first words were, "I'm going to f[**]k the case up."38
On the basis of this and the other evidence, the jury could have
reasonably found that Gary's initial identifications of Mandefero as his shooter
were credible. Likewise, the jury could also have reasonably found that Gary
was not telling the truth at trial when he recanted his prior identifications.
The State cites a number of extrajurisdictional cases to argue that Gary's
pretrial identifications, alone, are sufficient evidence to prove identity despite the
fact that Gary recanted at trial. The most notable of the cases cited by the State
is Commonwealth v. Brown, a recent case from the Supreme Court of
Pennsylvania, which conducts a thorough review of cases analyzing the
sufficiency of convictions based exclusively on recanted identifications.39 The
State argues that under any of the approaches taken by various other
jurisdictions, the evidence in this case is sufficient.
We conclude that it is unnecessary for this court to address the
approaches of these other jurisdictions in this case. That is because this case is
not one that rests solely on Gary's pretrial identifications. As the trial court
correctly explained when it denied the motion for a new trial, this case "revolved
37 Report of Proceedings (Oct. 30, 2012) at 63.
38 id at 64.
39 617 Pa. 107, 52A.3d 1139(2012).
11
No. 69925-3-1/12
much more around the circumstantial evidence than the direct evidence from []
Gary."40
Here, in addition to the circumstantial evidence showing motive and
opportunity, there was further circumstantial evidence to support the identity of
Mandefero as the shooter. For example, Mandefero's actions and statements at
the hospital shortly after the shooting at Ezell's also supports the State's case.
Mandefero gave conflicting accounts to police about his whereabouts that
night. An officer who spoke to Mandefero at the hospital testified that he
"appeared nervous" and did not want to talk.41 The officer then described
Mandefero's conflicting stories. Mandefero first told him that Hubbard called him
and asked him to pick him up at a 76 Station on Renton Avenue. The officer
testified that this is near an Ezell's Chicken. Mandefero told the officer that he
went with his sister to pick Hubbard up at this location.
After the officer asked Mandefero for his sister's contact information, the
officer testified that Mandefero "changed his account as to what happened."42
Mandefero then told the officer that he and Hubbard's girlfriend picked up
Hubbard at Chuck E. Cheese in Kent.
Overall, the fact that Mandefero was with Hubbard after the shooting, the
fact that Mandefero does not dispute that Hubbard was involved in the shooting,
40 Report of Proceedings (Jan. 31, 2013) at 25.
41 Report of Proceedings (Oct. 25, 2012) at 82.
42 id at 96.
12
No. 69925-3-1/13
and the fact that Mandefero provided conflicting accounts about his whereabouts
near the time of the shooting, further supported the State's case.
Finally, circumstantial evidence also supported the State's theory that
there were two shooters involved. Gary admitted that he initially told his mother
that both Hubbard and Mandefero were involved. And at trial, Gary identified
Hubbard as a passenger in the truck.
Officers recovered multiple shell casings from two different caliber guns at
the scene—.40 caliber and 9mm. An officer testified that the two different types
of casings were in two different areas. Specifically, the bulk of the .40 caliber
casings were closer to Gary's car and the 9mm casings were further away.
Officers recovered a .45 caliber handgun in the glove compartment of
Gary's car. Thus, neither the .40 caliber shell casings nor the 9mm shell casings
came from the .45 caliber handgun. This also supports the State's theory that
two shooters were involved.
In sum, the jury was entitled to find that Mandefero and Hubbard were the
two shooters. Gary's initial identification of Mandefero as the shooter coupled
with the circumstantial evidence that we discussed constitutes sufficient evidence
to convict Mandefero of the charged crimes.
Mandefero argues that "the majority of the evidence suggested that there
was only one shooter: Hubbard."43 Mandefero then states that though it was
"theoretically possible" that someone else joined Hubbard in the shooting, "no
facts made the State's two-shooter theory any more likely than the defense's
43 Brief of Appellant at 26.
13
No. 69925-3-1/14
one-shooter theory."44 He asserts that the evidence of two shooters "is equivocal
at best."45 These arguments are simply not borne out by the record before us. A
jury is free to choose between conflicting inferences and did so in this case.
Mandefero argues that no rational jury could find that Mandefero was
present when Hubbard shot Gary and that the "cell phone [record] evidence
conclusively excludes the State's theory that [] Mandefero was with Hubbard
before and during the shooting."46 This simply is not true for the reasons we
already explained earlier in this opinion.
Mandefero argues that Gary's statements to Deputy Glasgow were
"unreliable, speculative, and at best equivocal."47 These characterizations are
simply inaccurate. And he argues that "Deputy Glasgow bullied Gary into
identifying someone."48 This assertion is not supported by the record.
Mandefero argues that Gary's identification was based purely on
speculation. And he argues that "the location of Gary's injuries strongly suggest
that Gary did not see who shot him."49 But these arguments are about credibility
44 Jd at 26-27.
45 id at 29.
46 id at 32.
47 Id at 38.
48 Id
49 Id. at 42.
14
No. 69925-3-1/15
and the weight of the evidence. We defer to the jury on credibility of witnesses
and persuasiveness of evidence.50
Mandefero relies on State v. Vasquez51 for the proposition that equivocal
witness statements pertaining to identification violate Due Process and cannot
support a criminal conviction. But while Gary's statements were contradictory,
none of them were equivocal. Thus, despite Mandefero's assertions to the
contrary, they do not "suffer from the same legal ambiguity" as in Vasquez.52
Mandefero's reliance on this case is not persuasive.
Finally, Mandefero argues that the evidence does not support a conviction
based upon accomplice liability. But there was no such instruction given to the
jury. Rather, it convicted on the basis that Mandefero was the principal
responsible for the charged crimes. For that reason, we do not further address
this argument.
WAIVER
Mandefero's first assignment of error asserts that "the trial court erred
when it denied [his] Knapstad motion at the close of the State's case."53 This
motion is more properly characterized as a motion to dismiss. But Mandefero
fails to support this assignment of error with argument.
50 Thomas. 150 Wn.2d at 874-75.
51 178Wn.2d 1, 309 P.3d 318 (2013).
52 Brief of Appellant at 45.
53 Id at 1.
15
No. 69925-3-1/16
A party waives an assignment of error not supported by sufficient
argument or citation to the record.54 That is the case here. Therefore, we do not
address this assignment of error any further.
MATTERS OUTSIDE THE RECORD
The State argues that this court should disregard matters outside the trial
court record. We agree and have done so.
In a direct appeal, the reviewing court will not consider matters outside the
trial record.55 Moreover, a court examines sufficiency based on the evidence
admitted at trial.56
Here, to support his claim of insufficiency, Mandefero relies on matters
outside the appellate record. For example, he extensively discusses a "Citrus
nightclub shooting."57 He argues that this shooting occurred under "remarkably
similar facts to those of the Ezell's shooting."58 And he argues that the evidence
"when viewed in the context of both shootings, clearly points to Hubbard being
the lone gunman in both shootings."59 To provide details of this shooting, he
cites the State's sentencing memorandum from that case. But no evidence of
54 Skagit County Pub. Hosp. Dist. No. 1 v. Dep't of Revenue, 158 Wn.
App. 426, 440, 242 P.3d 909 (2010).
55 State v.McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
56 See State v.Jackson. 82 Wn. App. 594, 608, 918 P.2d 945 (1996).
57 Brief of Appellant at 22-24, 28-29.
58 id at 28.
59 id at 29.
16
*w
No. 69925-3-1/17
this shooting was presented to the jury, and the sentencing memorandum that
Mandefero cites is not in this appellate record.
In another example, Mandefero cites a jail phone call where he allegedly
stated that he "had nothing to hide."60 But again, Mandefero cites a document
that is not in this appellate record.61
Mandefero provides no explanation for these violations of the Rules of
Appellate Procedure. And we see none. While such disregard of the RAPs
could result in the imposition of sanctions, we exercise our discretion and decline
to impose sanctions in this case.
We affirm the judgment and sentence.
^J-
WE CONCUR
\
JUlM&f-,
V?
ro
60 Brief of Appellant at 18.
61 Id (citing Report of Proceedings (Nov. 26, 2012) at 59-60).
17