State of Washington v. Miguel Angel Sanchez ( 2020 )

FILED
OCTOBER 20, 2020
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. 36721-5-III
Respondent, )
)
v. )
)
MIGUEL ANGEL SANCHEZ, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, A.C.J. — Miguel Sanchez appeals from five convictions arising from
assaulting and contacting his former girlfriend, challenging his counsel’s effectiveness
and the admission of motive evidence for the assault. Finding no prejudicial error, we
affirm.
FACTS
Mr. Sanchez and the victim, Ms. Candelaria, were engaged to be married and lived
together with her children. On December 18, 2018, Ms. Candelaria confronted him over
his drug use. The argument turned physical and Sanchez choked her. After she broke free
No. 36721-5-III
State v. Sanchez
and fled outside, he caught her and struck her while dragging her back to the house. A
passing motorist saw the incident and allowed Candelaria to call 911. Sanchez then fled.
Police located Mr. Sanchez in a Walmart parking lot two days later. An officer
told Sanchez he was under arrest for “some warrants,” but Sanchez kept asking the
officer questions. The officer stated that asking questions
is a common tactic for somebody that doesn’t want to be arrested. Usually
leads into a foot chase is my experience. It’s kind of a delay tactic and
that’s exactly what happened.
Report of Proceedings at 72. Mr. Sanchez fled the officer, but was caught and arrested.
A no-contact order was issued December 21. Despite being served with the order,
Sanchez repeatedly contacted Candelaria from jail and attempted to influence her
testimony. As a result, the prosecutor ultimately filed charges of second degree assault,
witness tampering, and three gross misdemeanor counts of violation of a no-contact
order. The case proceeded to jury trial in the Benton County Superior Court.
The State moved in limine to be permitted to use evidence of the defendant’s flight
from authorities and solicit Ms. Candelaria’s explanation for why the assault occurred.
Over defense objection, the court ruled that the State could present limited evidence on
both topics.
At trial, Ms. Candelaria testified about the onset of the assault. She was surprised
to see the defendant at home at a time he was supposed to be at work. She believed he
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was “high” and accused him of using drugs. He denied the accusation and began packing
his clothes. Their argument grew into an assault.
An officer who authenticated the jail conversation videos for the jury testified, in
response to questioning by defense counsel, that he identified Mr. Sanchez on the videos
in part based on looking at his “police photos.” There was no objection to the statement.
The jury convicted Mr. Sanchez on the five counts and also returned findings that
the crimes constituted domestic violence. The jury also determined that the second
degree assault constituted aggravated domestic violence due to the presence of a minor.
Based on that aggravating factor, the court imposed an exceptional sentence of 102
months on the assault charge and lesser concurrent terms on the remaining offenses.
Mr. Sanchez timely appealed to this court. A panel considered his appeal without
conducting argument.
ANALYSIS
The appeals raises contentions of ineffective assistance and error in the admission
of the drug use testimony. We address the claims in that order.
Ineffective Assistance
This issue alleges that counsel erred by failing to object to some testimony and in
eliciting other testimony. He does not satisfy the heavy burden of proof placed on an
ineffective assistance argument.
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The principles governing this argument are very well settled. An attorney’s failure
to perform to the standards of the profession will require a new trial when the client has
been prejudiced by counsel’s failure. State v. McFarland, 127 Wash. 2d 322, 333-335, 899
P.2d 1251 (1995). Courts must be highly deferential to counsel’s decisions when
evaluating ineffectiveness claims. A strategic or tactical decision is not a basis for
finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). Under Strickland, courts evaluate counsel’s performance using a two-
prong test that requires determination whether or not (1) counsel’s performance failed to
meet a standard of reasonableness and (2) actual prejudice resulted from counsel’s failures.
Id. at 690-692. When a claim fails one prong, a reviewing court need not consider both
Strickland prongs. Id. at 697; State v. Foster, 140 Wash. App. 266, 273, 166 P.3d 726
(2007). If the evidence necessary to resolve the ineffective assistance argument is not in
the record, the claim is not manifest and cannot be addressed on appeal. McFarland, 127
Wash. 2d at 334.
The governing authority in the specific context raised by Mr. Sanchez is further
refined by the case law. As the Strickland court noted, no two lawyers would try a case
in the same manner. 466 U.S. at 689. Accordingly, discerning error relating to the
admission of testimony from an undeveloped appellate record is largely a fruitless
undertaking because the decision to object is a “classic example of trial tactics.” See
State v. Madison, 53 Wash. App. 754, 763, 770 P.2d 662 (1989). “Only in egregious
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State v. Sanchez
circumstances, on testimony central to the State’s case, will the failure to object
constitute incompetence of counsel.” Id. A reviewing court presumes that a “failure to
object was the product of legitimate trial strategy or tactics, and the onus is on the
defendant to rebut this presumption.” State v. Johnston, 143 Wash. App. 1, 20, 177 P.3d
1127 (2007) (citing cases).
Against this backdrop of authority, the challenges to counsel’s trial performance
utterly fail. The first and third challenges involve the testimony that the officer was
attempting to arrest Sanchez for “some warrants” and he responded by asking questions
before fleeing. Mr. Sanchez now claims these items were significantly prejudicial and
required his attorney to object. He cannot overcome the “presumption” of trial tactics.
Id. Sanchez was arrested two days after the assault; jurors would understandably believe
there was an arrest warrant outstanding. The reference to plural warrants likely was
error, but counsel understandably would not want to call attention to the point by
objecting or clarifying the situation. Trial counsel reasonably would want to leave the
matter undeveloped. Little or nothing would be gained by objecting.
The questioning and flight fell within the scope of the trial court’s ruling in limine
concerning “flight” testimony. Appellant does not challenge the pre-trial ruling
permitting this testimony. He therefore cannot show that counsel erred by declining to
object further to testimony that the court had already admitted.
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The remaining challenge is to the failure to object to testimony, elicited by the
defense attorney, that the officer identified the defendant in the jail video through his
“police photos.” This argument, too, fails to rebut the presumption of attorney tactics,
and for very good reason. Counsel was attempting to prevent a foundation from being
established to admit the jail audio/video recordings. The basis for the officer’s
knowledge that Mr. Sanchez was the man in the video was highly relevant information.
The dependency of the officer on police photos also was an easy topic for the defense to
attack. It would be unexceptional information to the jury that the police maintain
photographs of the people placed in jail. In this context, there was nothing unfairly
prejudicial about the existence of police photographs.
Mr. Sanchez fails to establish that his attorney erred, let alone establish that he was
significantly prejudiced by the alleged errors. Since he had to establish both, he has
failed to establish that defense counsel provided ineffective assistance.
Drug Use Testimony
Mr. Sanchez also argues that the court erred in permitting Ms. Candelaria to testify
that the two argued over what she believed to be his drug usage. Counsel properly
challenged the evidence as unfairly prejudicial, but the court admitted limited testimony
on the topic.
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Evidentiary rulings are reviewed for abuse of discretion. State v. DeVincentis, 150
Wash. 2d 11, 17, 74 P.3d 119 (2003). Appellate courts also will only consider evidentiary
challenges on appeal if the same challenge was presented to the trial judge. State v.
Powell, 166 Wash. 2d 73, 82-83, 206 P.3d 321 (2009); State v. Guloy, 104 Wash. 2d 412, 422,
705 P.2d 1182 (1985). Discretion is abused if it is exercised on untenable grounds or for
untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
The admission of evidence under the Rules of Evidence does not present a constitutional
issue. Dowling v. United States, 493 U.S. 342, 352, 110 S. Ct. 668, 107 L. Ed. 2d 708
(1990). Nonconstitutional error is harmless if, within reasonable probability, it did not
affect the verdict. State v. Zwicker, 105 Wash. 2d 228, 243, 713 P.2d 1101 (1986).
Mr. Sanchez now argues that Ms. Candelaria’s one statement that the argument
occurred because she believed he was using drugs was inadmissible under ER 403 and
ER 404(b). The latter argument is not properly before us because he did not make such a
claim in the trial court. Powell, 166 Wash. 2d at 82-83; Guloy, 104 Wash. 2d 422. We need
not decide whether his claim of ER 403 error has merit, because there is no reasonable
probability that the single statement affected the verdict. The medical evidence
supported the victim’s testimony that she had been choked. Neither attorney discussed
the allegation in closing argument, the bulk of which addressed the tampering charge.
The testimony, at worst, amounted to harmless error.
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Affirmed.
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.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
_________________________________
Lawrence-Berrey, J.
_________________________________
Siddoway, J.
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