State of Washington v. Alfredo Leonell Silva Diaz ( 2018 )

FILED
JULY 19, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35167-0-III
Respondent, )
)
v. )
)
JOSHUA DAVID AVALOS, ) UNPUBLISHED OPINION
TOMAS MIGUEL LOPEZ and RAFAEL )
D. OCHOA, JR., )
)
Defendants, )
)
ALFREDO LEONELL SILVA DIAZ, )
)
Appellant. )
FEARING, J. — Alfredo Silva Diaz challenges his convictions for fourth degree
assault and prison riot resulting from his attack on a fellow prisoner. He assigns error to
the trial court’s permission of testimony surrounding a document never produced in
discovery and the trial court’s refusal to deliver a self-defense jury instruction. Since the
trial court allowed limited testimony regarding the document in rebuttal to Silva Diaz’s
counsel’s questions and did not admit the document as an exhibit, and since evidence did
not support a self-defense jury instruction, we affirm.
No. 35167-0-III
State v. Silva Diaz
FACTS
Alfredo Silva Diaz is an inmate at Grant County Jail where he shared cell four
with Miguel Lopez. Joshua Avalos resided in cell two in the same jail dorm with
roommate Rafael Ochoa. An inmate is kept in his cell twenty-three hours a day and is
given one hour outside his cell on a rotating schedule with other inmates. Inmates on
break can talk to or pass notes to other inmates presently inside a cell.
On September 30, 2016, Corrections Officer Justin Grubb returned Miguel Lopez
from court to his jail cell shared with Alfredo Silva Diaz. Joshua Avalos and Rafael
Ochoa then enjoyed their hour of release from their shared cell. Officer Grubb did not
return Avalos and Ochoa to their cell before returning Lopez to his cell. Grubb,
concerned about a fight, twice asked Lopez if he had any problems with Avalos or
Ochoa. Both times, Lopez remained silent but rolled his eyes.
Despite enjoying his one hour of break time, Joshua Avalos sat in his cell with the
door closed, but unlocked so that Avalos could open the door at his own accord. As
Corrections Officer Justin Grubb unlocked Alfredo Silva Diaz’s cell door, Avalos exited
his cell, turned toward Silva Diaz’s cell, and assumed a defensive stance. Officer Grubb
recognized the stance as a preattack posture that could lead to a physical altercation.
When Grubb opened the door to Miguel Lopez’s and Silva Diaz’s cell door, Silva Diaz
stepped toward the officer as if to ask a question. Silva Diaz instead darted from his cell
toward Avalos. Grubb attempted to grab Silva Diaz as Silva Diaz dove past him in order
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State v. Silva Diaz
to reach Avalos, but to no avail. Silva Diaz and Avalos fought. As Officer Grubb chased
Silva Diaz and Avalos, Lopez ran toward Rafael Ochoa, who had just re-entered the dorm
area, and attacked him. Grubb unsuccessfully attempted to end the fight between Silva
Diaz and Avalos, but received punches instead. Grubb sought to call for help on his radio
but his radio was knocked off during the struggle. He then stepped back and tased Silva
Diaz. Grubb also pointed the Taser at Avalos, who surrendered.
PROCEDURE
The State of Washington charged Joshua Avalos and Alfredo Silva Diaz with
prison riot and assault in the fourth degree. The State tried Avalos and Silva Diaz
together. Avalos requested a bench trial, whereas Silva Diaz proceeded to a jury trial.
Prior to trial, in a demand for discovery, Silva Diaz requested all discovery required by
court rule and all Grant County Jail reports. In his supplemental motion for discovery,
Silva Diaz requested from the State his criminal history and all law enforcement reports.
The State responded in its “Compliance with Omnibus Order and CrR 4.7(a)” that it had
produced all applicable documents and records. Clerk’s Papers (CP) at 94.
Before trial, the trial court granted a motion in limine that restricted any evidence
or reference to law enforcement agents’ prior contacts with Silva Diaz. This ruling
prohibited any references from law enforcement databases such as one commonly
referred to as “Spillman.” CP at 29.
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State v. Silva Diaz
At trial, the State sought to introduce evidence through Corrections Officer Justin
Grubb that Alfredo Silva Diaz had previously been sanctioned for fighting in jail. The
State requested admission as an exhibit a sanction report. The State argued that the
exhibit proved an element of the crime of prison riot, because the State needed to show
that Silva Diaz knew of the jail’s order not to fight. Unfortunately, the State had not
provided Silva Diaz with this infraction record or notice of intent to use the record.
Alfredo Silva Diaz objected to the State’s use of the sanction report on the ground
that the State failed to disclose the information and that it violated the motion in limine
that prohibited discussion of prior contact with law enforcement and earlier detentions.
The trial court sustained the objection since the infraction record was not previously
disclosed and because it was evidence of prior bad acts. The court, however, allowed the
State to identify that such a policy existed. Corrections Officer Justin Grubb then
testified that fighting violated jail policy and the inmates have access to a handbook that
describes all of the jail rules. Silva Diaz’s counsel asked Officer Grubb if he advised
Silva Diaz of the rules when Silva Diaz was booked into jail, to which he responded no.
The State renewed its request to introduce evidence that Silva Diaz had been
advised of the jail’s policy against fighting. The State argued that Silva Diaz opened the
door by asking Grubb if he had advised Silva Diaz of the policy. Alfredo Silva Diaz
denied that he opened the door because his questioning related only to the issuance of the
handbook. Silva Diaz also argued against introduction of the evidence because the State
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State v. Silva Diaz
was now using the information to establish an element of the crime, which it could have
presented in its case-in-chief. Further, Silva Diaz argued the State sought to refresh
Officer Justin Grubb’s memory based on hearsay since he did not issue the sanction
against Silva Diaz for fighting, was not present when the written sanction was prepared,
and was not the custodian of the sanction report. Silva Diaz noted that the written
sanction, that the State sought to introduce, was not the original and was not signed by
either himself or a law enforcement officer.
When the State renewed its attempt to introduce as an exhibit the written sanction
report, Alfredo Silva Diaz mainly objected to introduction of the report based on
nondisclosure of the evidence. Silva Diaz argued the discovery violation prejudiced him.
Silva Diaz also argued that the trial was already into two or three levels of redirect and
re-cross when the State sought to insert the information. Defense counsel did not have
the opportunity to review the sanction with Silva Diaz. Crucial parts of the trial had
already passed, such as jury selection and calling witnesses, and, if Silva Diaz had known
the State would seek introduction of the sanction, he might have conducted his earlier
defense differently. Finally, defense counsel noted his trial strategy and closing argument
would need to be modified and that he could not effectively modify the strategy during
the fifteen minutes allowed for him to review the sanction report.
Alfredo Silva Diaz asked for a one-day continuance, or alternatively, due to
scheduling, a mistrial. The trial court refused to grant either. Instead, the court extended
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State v. Silva Diaz
the recess to one hour for Silva Diaz’s counsel to review the withheld sanction report
with Silva Diaz. Silva Diaz and his counsel then reviewed the sanction report for the first
time, although the State still would not afford the two their own copy. After reviewing
the sanction information, Silva Diaz renewed all his objections. Defense counsel
explained that the report referenced two incidents, the second of which resulted in
criminal charges. Counsel emphasized that the record incorporated Alfredo Silva Diaz’s
criminal history, which the order in limine prohibited mention of criminal history, and the
State should have disclosed the record in discovery. Counsel also observed that the
document did not indicate whether Silva Diaz had been warned not to fight, the reason
for which the State offered the document as an exhibit.
The trial court overruled Alfredo Silva Diaz’s objection and allowed the State to
ask Corrections Officer Justin Grubb, based on the Grant County Jail sanction record,
whether Silva Diaz had previously been informed that fighting was against jail policy.
Grubb thereby testified that Silva Diaz had been sanctioned and, as a result of the
sanction, had been informed of the jail’s policy against fighting.
After closing, Alfredo Silva Diaz submitted self-defense jury instructions to the
court. Silva Diaz contended that, when Corrections Officer Justin Grubb opened Silva
Diaz’s cell while Joshua Avalos was on break, Grubb placed Silva Diaz in a position
where he needed to attack or be attacked himself. Silva Diaz argued a self-defense
instruction was also warranted because a video recording showed that, before the fight,
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State v. Silva Diaz
Avalos walked by Silva Diaz’s cell and made hand gestures that could be interpreted as
threatening communications. A recording also showed Avalos sitting in his cell waiting,
as if prepared for a fight. Silva Diaz emphasized Grubb’s testimony that Avalos entered
a pre-attack mode. Lastly, Silva Diaz highlighted a dispute existed as to who hit who
first and that Silva Diaz’s advance toward Avalos did not prove Silva Diaz as the
assaulter. The trial court denied the self-defense instruction on the lack of facts to
support a theory of self-defense.
The jury convicted Silva Diaz as charged. The trial court sentenced Silva Diaz to
a standard range sentence of twenty-four months’ confinement.
LAW AND ANALYSIS
Discovery Violation
The issue is whether the trial court abused its discretion when allowing
Corrections Officer Justin Grubb to testify to the earlier sanction of Alfredo Silva Diaz
for fighting in the jail.
The trial court has wide discretion in ruling on discovery violations. State v.
Linden, 89 Wn. App. 184, 189-90, 947 P.2d 1284 (1997). These decisions will not be
disturbed on appeal unless the court abused its discretion. State v. Linden, 89 Wn. App.
at 190. Abuse of discretion occurs if the trial court’s exercise of discretion was
manifestly unreasonable, or exercised on untenable grounds, or made for untenable
reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Even if
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the court committed error, the appellant must demonstrate that the error materially
affected the outcome of the trial. State v. Linden, 89 Wn. App. at 190. The potential
prejudice resulting from noncompliance with the discovery rules lies in the defense’s
ability to properly anticipate and prepare. State v. Brush, 32 Wn. App. 445, 455, 648
P.2d 897 (1982).
CrR 4.7 governs criminal discovery. State v. Pawlyk, 115 Wn.2d 457, 471, 800
P.2d 338 (1990). The rule requires a prosecutor to disclose to the defendant, no later than
the omnibus hearing, any documents, papers, photographs, or other objects that may be
used in the prosecutor’s case. CrR 4.7(a)(1)(v). This disclosure is a continuing
obligation on the State. CrR 4.7(h)(2). The State’s duty applies to evidence whether it be
considered for use in the State’s case-in-chief, for rebuttal, for impeachment purposes, or
in some other way. State v. Falk, 17 Wn. App. 905, 908, 567 P.2d 235 (1977). But, even
when illegally obtained statements are suppressed, the State may introduce evidence of
the statement to rebut a statement the defendant makes at trial. State v. Greve, 67 Wn.
App. 166, 171-72, 834 P.2d 656 (1992).
This state construes the rules of criminal discovery liberally in order to serve the
purposes underlying CrR 4.7, which are, to provide adequate information for informed
pleas, to expedite trial, minimize surprise, afford opportunity for effective cross-
examination, and meet the requirements of due process. State v. Copeland, 89 Wn. App.
492, 497, 949 P.2d 458 (1998). CrR 4.7(h)(7)(i) lists sanctions for the prosecutor’s
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State v. Silva Diaz
noncompliance with discovery requests. If at any time during the course of the
proceedings the court finds that a party failed to comply with an applicable discovery
rule, the court may order such party to permit the discovery of material and information
not previously disclosed, grant a continuance, dismiss the action, or enter such other
order it deems just under the circumstances. CrR 4.7(h)(7)(i).
Alfredo Silva Diaz argues the trial court erred by allowing the State to use the jail
sanctions report that the State failed to disclose during discovery. Due to the discovery
violation, Silva Diaz asked for a mistrial or a one-day continuance, which the court
denied. Silva Diaz now argues the court erred by denying both options. The State of
Washington argues the court did not err because it gave defense counsel an hour to
review a two-page document and adjust his trial strategy accordingly. Also, the State
justifies use of the document, despite never giving notice of its existence, as rebuttal to a
statement or inference made by defense counsel.
When the State expressed its desire to introduce the sanction record, the court
denied the State’s request, in part, because the document was never produced in
discovery. Then, defense counsel elicited testimony from Corrections Officer Justin
Grubb that implied Silva Diaz had no knowledge of the jail’s handbook of rules,
including the rule against fighting. Finding defense counsel opened the door, the court
then allowed the State to ask a narrow and pointed question regarding the sanction record
and whether inmates are informed of the rule against fighting after being sanctioned. The
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State v. Silva Diaz
court did not allow the document to be introduced into evidence, and the State did not use
the document for any other purpose. The court thereby properly allowed use of the
document for impeachment purposes.
Alfredo Silva Diaz cannot show that the State’s use of the document to question
Corrections Officer Justin Grubb materially affected the outcome of the trial. While
Silva Diaz was not granted a day’s continuance, he was granted an hour to review the
short document with counsel. This allowed time for defense counsel to recoup and adjust
any trial strategy. Silva Diaz does not demonstrate how his earlier strategy would have
differed if he knew the State would have introduced the evidence.
Alfredo Silva Diaz argues use of the document for questioning purposes materially
affected the outcome because the document related directly to an element of the crime.
Yet, Silva Diaz also told the trial court that the document was irrelevant and should not
be used for questioning because it did not state that Silva Diaz had been informed of the
rule against fighting. A document cannot be both irrelevant and materially affect an
outcome of the trial. Nonetheless, we view the document as nonprejudicial because
common sense dictates that fighting would be against jail rules.
Self-Defense
The issue is whether sufficient evidence supported the rendering of a self-defense
jury instruction. The trial court’s decision to give a jury instruction is reviewed for abuse
of discretion if based on a matter of fact. Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d
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State v. Silva Diaz
286 (2009). If the trial court merely decides whether the record contains the kind of facts
to which a doctrine applies, the review is abuse of discretion. Kappelman v. Lutz, 167
Wn.2d at 6.
The State charged Alfredo Silva Diaz with fourth degree assault. Fourth degree
assault includes the intentional harmful or offensive touching of another person
regardless of whether it results in physical injury. State v. Tyler, 138 Wn. App. 120, 130,
155 P.3d 1002 (2007). A person acts in self-defense when he or she reasonably believes
that he or she is about to be injured, and he or she uses no more force than necessary to
prevent an offense against her person. RCW 9A.16.020(3).
To determine whether a defendant is entitled to an instruction of self-defense, the
trial court must view the evidence from the standpoint of a reasonably prudent person
who knows all the defendant knows and sees all the defendant sees. State v. Read, 147
Wn.2d 238, 242, 53 P.3d 26 (2002). When assessing a self-defense claim, the trial court
applies both a subjective and objective test. State v. Read, 147 Wn.2d at 242-43. The
trial court is justified in denying a request for a self-defense instruction only when no
credible evidence appears in the record to support a defendant’s claim of self-defense.
State v. Roberts, 88 Wn.2d 337, 346, 562 P.2d 1259 (1977). Mutual combat is not a
defense to fight in a jail. State v. Weber, 137 Wn. App. 852, 860, 155 P.3d 947 (2007).
We agree with the trial court that evidence did not support a self-defense claim.
Alfredo Silva Diaz argues that Joshua Avalos can be seen passing by Silva Diaz’s cell
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State v. Silva Diaz
making threatening hand gestures. Yet, the video recording of the incident does not show
that occurred. Silva Diaz also emphasizes Corrections Officer Justin Grubb's testimony
that Avalos was in an attack stance once Officer Grubb opened Silva Diaz's cell and that
Silva Diaz had to attack or be attacked. Nevertheless, self-defense was not a viable
theory because Silva Diaz could have stayed in his cell and no fight would have occurred.
Silva Diaz charged at Avalos and Silva Diaz dove past Grubb in order to reach Avalos.
Silva Diaz was then not in immediate danger of being attacked.
CONCLUSION
We affirm Alfredo Silva Diaz's convictions.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, J. ~
WE CONCUR:
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