State of Washington v. Eriberto Gonzalez ( 2013 )

FILED
June 27, 2013
In the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 28618-5-111
Respondent, )
)
v. )
)
ERIBERTO GONZALEZ, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. - Eriberto Gonzalez appeals his conviction for first degree murder,
contending that the trial court erred when it denied his trial lawyer's motion to withdraw.
Mr. Gonzalez had thrown water at his lawyer and overturned counsel's table, resulting in
a physical altercation between him and his lawyer in the presence of the jury. He also
argues that the trial court's instruction to the jury on how to answer a special verdict form
was erroneous.
The challenge to the jury instruction fails in light of intervening, controlling
authority from the Washington Supreme Court. As to the motion to withdraw, our review
of the record reveals that the trial court carefully considered the trial lawyer' s reasons for
the motion but did so with the benefit of its own observation of the precipitating events,
its knowledge of the lawyer's history with the case, and its assessment of the lawyer's
No. 2861 8-5-II1
State v. Gonzalez
capability of continuing to effectively represent his client. We find no abuse of discretion
and affirm.
FACTS AND PROCEDURAL BACKGROUND
Eriberto Gonzalez was charged in 2007 with the first degree murder of a
convenience store clerk. Adolfo Banda was appointed to serve as his lawyer.
Approximately two-and-a-half years after charges were filed, the case proceeded to trial.
As Mr. Banda commented to the court early on in the trial, he had by that time come to
know the case intimately.
During the first several days of trial, the trial court noticed that Mr. Gonzalez was
expressing disagreement or concern to Mr. Banda after Mr. Banda cross-examined State
witnesses. The court inquired about it outside the presence of the jury and Mr. Gonzalez
told the court he did not believe that Mr. Banda was doing a good job because he was
allowing State witnesses to get away with damaging evidence. The court explained to
Mr. Gonzalez that "[s]ometimes there are very significant reasons why certain material is
not developed and explored. And that usually requires the-you know, the guiding hand
of an experienced lawyer." Report of Proceedings (RP) at 356. The trial court later read
to Mr. Gonzalez from an appellate decision explaining the responsibility of the lawyer to
decide tactics to be used at trial and the need for a lawyer to exercise his or her judgment,
which may mean forgoing argument on every point that may seem important to the client.
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On the sixth day of what proved to be an eight-day trial, Mr. Gonzalez had a
physical altercation with Mr. Banda in the presence of the jury, after which the court
ordered restraints placed on Mr. Gonzalez. It entered findings and conclusions in support
of its decision to restrain him. Although the decision to shackle Mr. Gonzalez is not
assigned error on appeal, we reproduce the following portions of the court's findings
because they reflect its observations of the event that precipitated Mr. Banda's motion to
withdraw and his continuing representation.
The court found, in part:
I
The trial began on Monday, September 21, 2009. The defendant
wore no restraint devices. He sat in court at counsel table beside Adolfo
Banda, his lawyer, and Marlene Goodman, the defense investigator. For
strategic reasons the defense team chose to sit on the side of the counsel
table nearest the jury. The defendant was well behaved in the presence of
the jury during the first week of trial.
II
On Monday, September 28, 2009 at 3:50 p.m., a witness, Jennifer
Sharp, had just finished testifYing. The defendant became upset. He threw
his Styrofoam cup of water at Mr. Banda. The defendant stood up and
turned over the table. Reflexively, Mr. Banda defended himself by pushing
the defendant toward the jury box. The defendant banged his head on the
jury box. Five officers subdued the defendant. The judge excused the jury
from the courtroom.
IV
On Tuesday, September 29, 2009, the court, out of the presence of
the jury, considered whether to restrain the defendant in the presence of the
jury to prevent further courtroom outbursts, to prevent escape, and protect
the safety of everyone in the courtroom, including the jury ....
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No. 28618-5-III
State v. Gonzalez
V
The court ruled that handcuffs and shackles would be placed on the
defendant. The court asked the defendant to remain seated at all times in
the jury's presence to prevent the restraints from being seen by the jury.
The court advised the other trial participants to remain seated and not rise
when the jury or the judge entered or exited the courtroom to prevent the
restraints from becoming visible. The court moved the defense team to the
opposite side of the counsel table to prevent the restraints from being seen
by the jury.
VIII
The trial resumed. The defendant was well behaved in court on
Tuesday.
IX
On Wednesday, September 30,2009, at 9:50 a.m., before the jury
had been brought into the courtroom for the morning session, the
defendant, who was consulting with his lawyer Mr. Banda, stood up and
head butted Mr. Banda. Mr. Banda bled from over his ey~. Mr. Banda
assured the court that the injury was minor. Mr. Banda received medical
attention.
X
The court advised the defendant that further disruptive behavior by
him would lead to his removal from the courtroom and he would give up
his right to be present for the remainder of the trial.
XI
The court no longer a1l0wed Mr. Gonzalez to sit beside either Mr.
Banda or Ms. Goodman. A corrections officer sat between Mr. Gonzalez
and his defense team.
XII
Mr. Gonzalez's intent in misbehaving in the courtroom on
September 28, 2009 and on September 30, 2009 was to undermine the trial.
The court cannot allow a defendant to undermine a trial by purposefully
misbehaving in the courtroom.
XII[I]
On Wednesday, October 1,2009, the trial resumed. There was no
further misbehavior by the defendant.
Clerk's Papers at 4-6.
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No. 286l8-5-II1
State v. Gonzalez
At the commencement of proceedings the morning after the initial altercation, Mr.
Banda moved to withdraw, stating he did not believe Mr. Gonzalez would receive an
effective defense if he remained his attorney "given what happened and what the jury saw
and the way I feel." RP at 827. Mr. Gonzalez joined in the request. The court denied the
motion. It observed, as it had earlier in the trial, that it was not unusual for criminal
defendants to second-guess their lawyers given what is at stake, and stated, "it seems to
me that despite the friction and disagreement, that a lot of progress was made in getting
through the witnesses and the evidence and that Mr. Banda was able to do what he could
to work with what he had to work with. And my observation is that there's no reason at
this point to stop the trial from going forward." Id. at 828.
Mr. Banda then moved for a mistrial. In response to that motion, the court
questioned each juror individually, inquiring of each whether they were comfortable
continuing to serve in light of what had happened, whether they could continue to be fair
and impartial, and whether they could focus on the evidence, disregarding the prior day's
scuffle. Each of the jurors responded without qualification that they wished to continue
and could be fair. After completing the juror interviews, the court denied the motion for
mistrial.
When the jurors returned to the courtroom, the trial court briefly discussed what
had happened the prior afternoon, the assurances of impartiality it had obtained from .
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No. 28618-5-III
State v. Gonzalez
them, and some security changes that had been made in the courtroom. It also instructed
the jury that
[w]hat happened [yesterday afternoon] and those events are not
evidence that you are to consider in determining whether the Defendant is
guilty of the crime. Those events that happened yesterday afternoon are
simply some of the many events that happen in a trial and happened in this
trial but are separate from the evidence.
RP at 860.
At the conclusion of trial the jury found Mr. Gonzalez guilty as charged. The trial
court sentenced him to 467 months' confinement, including the 120-month firearm
enhancement, and 36 months' community custody. He appeals.
ANALYSIS
Mr. Gonzalez makes three assignments of error. The first is to the trial court's
denial of Mr. Banda's motion to withdraw. The second and third are related challenges
to the court's instruction to the jury on how to answer the firearm enhancement special
verdict form and to then imposing the sentencing enhancement on the basis of that
instruction and verdict form. We address them in that order.
I
In challenging the trial court's denial of Mr. Banda's motion to withdraw, Mr.
Gonzalez relies upon two lines of authority.
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No. 28618-5-II1
State v. Gonzalez
The first is case law addressing when an indigent defendant's dissatisfaction with
his appointed counsel warrants substitution of counsel, since Mr. Gonzalez joined in Mr.
Banda's request to tenninate the attorney-client relationship.
A criminal defendant who is dissatisfied with appointed counsel must show good
cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable
conflict, or a complete breakdown in communication between the attorney and the
defendant. State v. Stenson, 132 Wn.2d 668,734,940 P.2d 1239 (1997) (citing Smith v.
Lockhart, 923 F.2d 1314,1320 (8th Cir. 1991)). "Attorney-client conflictsjustity the
grant of a substitution motion only when counsel and defendant are so at odds as to
prevent presentation of an adequate defense[;] [t]he general loss of confidence or trust
alone is not sufficient to substitute new counsel." ld. (citations omitted). Factors to be
considered in a decision to grant or deny a motion to substitute counsel are (1) the
reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3)
the effect of any substitution upon the scheduled proceedings. ld. (citing State v. Stark,
48 Wash. App. 245, 253, 738 P.2d 684 (1987)). Whether an indigent defendant's
dissatisfaction with his court appointed counsel is meritorious and justifies the
appointment of new counsel is a matter within the discretion of the trial court. State v.
DeWeese, 117 Wn.2d 369,375-76,816 P.2d 1 (1991).
The trial court weighed all of these factors. The third-the effect on the scheduled
proceedings-strongly weighed against substitution, where the parties were nearing
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No. 28618-5-III
State v. Gonzalez
completion of trial in a two-and-a-half-year-old case. As to the second, the trial court had
previously told Mr. Gonzalez that Mr. Banda was experienced and it commented on its
perception of the progress that was being made when it denied Mr. Banda's motion to
withdraw. As to the first factor, Mr. Gonzalez had offered no persuasive reason for his
dissatisfaction with Mr. Banda. From the complaints he expressed to the judge, it
appears that Mr. Gonzalez wanted any point he perceived as operating in his favor
brought up early and often, without appreciating that some points are best reserved for
the right witness (e.g., a witness who will affirm the point rather than challenge it) or
even for closing argument. The trial court was well within its discretion in refusing to
allow Mr. Banda to withdraw on the basis of Mr. Gonzalez's dissatisfaction.
The second line of authority relied upon by Mr. Gonzalez is case law establishing
that where a constitutional right to counsel exists, the Sixth Amendment provides a
correlative right to representation that is free from conflicts of interest. Wood v. Georgia,
450 U.S. 261,271, 101 S. Ct. 1097,67 L. Ed. 2d 220 (1981) (citing Cuyler v. Sullivan,
446 U.S. 335, 100 S. Ct. 1708,64 L. Ed. 2d 333 (1980)). A conflict of interest exists if
there is a significant risk that the representation of a client will be materially limited by a
personal interest of the lawyer. RPC 1.7(a)(2). Mr. Gonzalez argues that once he
attacked Mr. Banda, the lawyer had a conflict of interest by virtue of being "Gonzalez'
lawyer and his crime victim." Br. of Appellant at 12. Whether the circumstances
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No. 28618-5-III
State v. Gonzalez
demonstrate a conflict under ethical rules is a question of law, which is reviewed de
novo. State v. Regan, 143 Wash. App. 419, 428, 177 P.3d 783 (2008).
"A defendant's misconduct toward his attorney does not necessarily create a
conflict of interest." State v. Fualaau, 155 Wash. App. 347, 360, 228 PJ4 771 (2010).
Fualaau involved facts similar to this case. During cross-examination of a witness, the
defendant became increasingly agitated and the court called a recess so that the defendant
and his lawyer could confer. Before the jurors could leave the courtroom, though, the
defendant lunged at his attorney, grabbed him with both arms, and said something about
needing his psychiatric medication. A corrections officer had to intervene and force the
defendant to release his lawyer. The lawyer moved for a mistrial and to withdraw from
representing his client. Both motions were denied.
Division One of this court found no conflict of interest to have been created by the
defendant's assault, observing that "[o]ur Supreme Court has held that even where a
defendant 'has demonstrated the possibility that his attorney was representing conflicting
interests,' the defendant nevertheless 'failed to establish an actual conflict' where he did
not demonstrate how his attorney's conflict of interest affected his attorney's
performance at triaL" [d. at 362 (quoting State v. Dhaliwal, 150 Wn.2d 559,573, 79 PJd
432 (2003)). Although a defendant need not demonstrate that the outcome of the trial
would have been different but for the conflict, the defendant must show that some
plausible alternative defense strategy or tactic might have been pursued but was not and
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No. 28618-5-II1
State v. Gonzalez
that the alternative defense was inherently in conflict with or not undertaken due to the
attorney's other loyalties or interests. Id. (quoting Regan, 143 Wn. App. at 428).
Here, Mr. Gonzalez contends that Mr. Banda's representation of him suffered after
the assault as evidenced by the fact that Mr. Banda did not call witnesses as planned. But
the record strongly indicates otherwise. Before the assault, Mr. Banda had represented to
the court that he did not anticipate calling witnesses unless needed for purposes of
rebuttal. After the assault, and at the conclusion of the State's case, Mr. Banda reported
to the court that based on Mr. Gonzalez's wishes, he expected the next morning to recall
two witnesses and playa recording of a phone call made by Mr. Gonzalez from j ail, even
though he firmly believed that the evidence was damaging to the defense case. The next
morning, however, Mr. Banda reported that he and Mr. Gonzalez had met with their
investigator the prior evening, discussed Mr. Banda's strategy further, and Mr. Gonzalez
had accepted Mr. Banda's advice. The record demonstrates, then, that Mr. Banda's
strategy continued to be guided by Mr. Gonzalez's best interest.
Because Mr. Gonzalez has failed to demonstrate any actual conflict on the part of
Mr. Banda, we need not reach a further point made in Fualaau that would appear to have
equal application here: that a defendant can forfeit his Sixth Amendment right by
misconduct. Id. at 360 (citing State v. Mason, 160 Wn.2d 910,924, 162 PJd 396
(2007)). The trial court found that Mr. Gonzalez's intent in attacking Mr. Banda had
been to undermine the trial. Forfeiture by misconduct "is grounded in equity-the notion
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No. 28618-5-III
State v. Gonzalez
that people cannot complain of the natural and generally intended consequences of their
actions." Mason, 160 Wn.2d at 926. A defendant may forfeit rights by threatening or
assaulting his or her attorney in the courtroom. Fualaau, 155 Wn. App. at 360 (citing
United States v. McLeod, 53 FJd 322,326 (11th Cir. 1995».
The trial court did not err or abuse its discretion in denying the motion to
withdraw.
II
Mr. Gonzalez's remaining challenges are to the trial court's instruction to the jury
on how to complete the firearm enhancement special verdict form and its increase in his
sentence on the basis of that instruction and form. He relies in each case on the
nonunanimity rule for such verdicts articulated in State v. Bashaw, 169 Wn.2d 133,234
PJd 195 (2010) and State v. Goldberg, 149 Wash. 2d 888, 72 P.3d 1083 (2003). After Mr.
Gonzalez filed his opening brief, the Washington Supreme Court overruled Bashaw and
Goldberg in State v. Guzman Nunez, 174 Wash. 2d 707, 285 PJd 21 (2012) on the very
issue identified by Mr. Gonzalez for appeal. Guzman Nunez makes clear that the trial
court's instruction was correct and the firearm enhancement was properly included in
determining Mr. Gonzalez's sentence.
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No. 28618-5-111
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Affinned.
A majority of the panel has determined that 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.
Sidd?J:Y?o ' (}
WE CONCUR:
I
~,
Korsmo, C.J.
ev
Kulik, J.
12