State Of Washington, Respondent/cr-appellant v. Christopher Garcia Gonzalez, Appellant/cr-respondent

TILED
COURT OF APPEALS OIV I L.;,.
STATE OF WASHINGTOH '
2018 JUL -9 AB 8:39
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 75845-4-1
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
CHRISTOPHER GARCIA GONZALEZ, )
) FILED: July 9, 2018
Appellant. )
)
VERELLEN, J. Christopher Garcia Gonzalez appeals his conviction for
second degree murder and theft of a motor vehicle. Gonzalez assigns error to the
trial court's denial of his request to instruct the jury on the lesser included offense
of second degree manslaughter. Because the evidence does not support an
inference that Gonzalez committed second degree manslaughter rather than
second degree murder, the trial court did not abuse its discretion when it denied
Gonzalez's request.
Gonzalez also claims the prosecutor committed misconduct during closing
argument. Given the prosecutor's entire argument, the evidence, and the jury
instructions, we conclude it is unlikely the prosecutor's challenged remarks
affected the jury's verdict.
Therefore, we affirm.
No. 75845-4-1/2
FACTS
On September 20, 2015, Lynnwood police officers found the body of
Christopher Davis. A belt was found wrapped three times around Davis's neck
and cinched tight so it would not come loose. Davis's blood was also found on the
floor, walls, and on two dumbbells found near him. The medical examiner
concluded that Davis had been struck in the head before the belt was wrapped
around his neck. The medical examiner determined the cause of death was
ligature strangulation and the manner of death was homicide.
On October 15, 2015, police found Gonzalez in California driving Davis's
car. The police also connected Gonzalez to the crime through e-mails, text
messages, and cell phone location records. The State charged Gonzalez with
second degree murder and theft of a motor vehicle.
When considering the parties' proposed instructions, the trial court denied
Gonzalez's request to instruct the jury on the lesser included offense of second
degree manslaughter.
During trial, the State introduced a jail phone call from Gonzalez to his
girlfriend. During closing argument, the State replayed the call. The prosecutor
emphasized Gonzalez's pattern of deception and his repeated statements during
the phone call that he only "allegedly" committed the murder. The prosecutor then
stated, "[O]n that jail call, during that conversation, you never heard him say
anything about being innocent. Challenge met. Find him guilty."1
I Report of Proceedings(RP)(Sept. 15, 2016) at 1090.
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No. 75845-4-1/3
The jury found Gonzalez guilty on both counts.
Gonzalez appeals.
ANALYSIS
I. Lesser Included
Gonzalez contends the trial court abused its discretion when it refused to
instruct the jury on the lesser included offense of second degree manslaughter.
"A defendant is entitled to an instruction on a lesser included offense when
(1) each of the elements of the lesser included offense is a necessary element of
the charged offense and (2)the evidence in the case supports an inference that
the lesser crime was committed."2 Courts refer to the first part of the test as the
"legal prong" and the second part as the "factual prong."3 The parties agree the
legal prong is satisfied.4
We review a trial court's decision under the factual prong for abuse of
discretion.5 In determining the factual prong, the panel reviews "the evidence in
the light most favorable to the party requesting the instruction."6 The evidence
must raise an inference that only the lesser included offense was committed
instead of the charged offense.7
2 state v. Henderson, 182 Wash. 2d 734, 742, 344 P.3d 1207(2015).
3 State v. Berlin, 133 Wash. 2d 541, 546, 947 P.2d 700(1997).
4 See id. at 551 ("We hold first and second degree manslaughter are lesser
included offenses of second degree intentional murder.").
5 Henderson, 182 Wash. 2d at 743.
6 State v. Wade, 186 Wash. App. 749, 772, 346 P.3d 838 (2015).
7 State v. Fernandez-Medina, 141 Wash. 2d 448, 455, 6 P.3d 1150(2000).
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No. 75845-4-1/4
To determine whether the evidence supports an inference that Gonzalez
committed second degree manslaughter rather than second degree murder, we
must compare the definitions of the two crimes.8 A person is guilty of second
degree murder when "[w]ith intent to cause the death of another person but
without premeditation, he or she causes the death of such person."8 "A person
acts with intent or intentionally when he or she acts with the objective or purpose
to accomplish a result which constitutes a crime."10 A person is guilty of second
degree manslaughter when "with criminal negligence, he or she causes the death
of another person."11
A person is criminally negligent or acts with criminal negligence
when he or she fails to be aware of a substantial risk that a wrongful
act may occur and his or her failure to be aware of such substantial
risk constitutes a gross deviation from the standard of care that a
reasonable person would exercise in the same situation.[12]
Here, the trial court refused to instruct the jury on second degree
manslaughter because the evidence did not establish that Gonzalez acted with
criminal negligence:
I don't think the evidence supports a criminal negligence argument in
putting the belt around the neck to begin with and constricting it in
such a way as to render someone unconscious. A person should
8 See Henderson, 182 Wash. 2d at 743("To determine whether the evidence
supports an inference that Henderson committed first degree manslaughter rather
than first degree murder by extreme indifference, we must carefully compare the
definitions of the two crimes.").
9 RCW 9A.32.050(1)(a)(emphasis added).
18 RCW 9A.08.010(1)(a).
11 RCW 9A.32.070(1)(emphasis added).
12 RCW 9A.08.010(1)(a).
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No. 75845-4-1/5
know that there's a substantial risk of death in that action by itself.
That, coupled with the previous activity that must have taken place in
terms of the lacerations on the head, which were caused possibly by
the barbells that were there, and the blood distribution around the
room indicates there was a substantial struggle that took place prior
to that. All of that evidence, taken together, would only support a
jury finding of either intentional murder or reckless conduct and not
negligent conduct.(131
In State v. Wade, this court considered whether Wade was entitled to a jury
instruction on the lesser included offenses of first degree and second degree
manslaughter after a jury convicted him of second degree murder.14 There, the
victim died of asphyxia from strangulation. This court concluded,"There was no
evidence that the strangulation was either reckless or the result of criminal
negligence" because "[t]he undisputed testimony established that whether [the
victim] was intentionally strangled manually or with a ligature, Wade had to
continue to apply pressure, even after she lost consciousness, for one to two
minutes."15 We held the court did not err in denying the request to instruct the jury
on first degree and second degree manslaughter.16
Similarly, even viewed in the light most favorable to Gonzalez, there is no
evidence in this case that the strangulation was the result of criminal negligence
rather than intent. The police found Davis with a belt wrapped around his neck
three times. The belt was "drawn tight at the back of the neck by passing the free
13 RP (Sept. 14, 2016) at 1028.
14 186 Wash. App. 749, 346 P.3d 838 (2015).
15 id. at 772.
16 Id. at 773.
No. 75845-4-1/6
end under one of the loops and pulling it tight."17 And the belt was cinched in such
a way to prevent it from coming loose or unraveling. The medical examiner
determined Davis died from ligature strangulation.
The police also found blood on the floors and walls around Davis's body.
Two dumbbells were found near Davis's body and DNA from blood on the
dumbbells matched Davis. The medical examiner determined that Davis was
struck in the head before the belt was wrapped around his neck.
Gonzalez argues the court should not have considered the evidence of a
struggle prior to Davis's death. But the trial court is not required to take a limited
view of the evidence. The court "must consider all of the evidence that is
presented at trial when it is deciding whether or not an instruction should be
given."18
Gonzalez also argues "[i]t was the constriction caused by the belt that
allowed for strangulation to take place, and not constant pressure by the
perpetrator."19 The medical examiner testified that loss of consciousness occurs
within 10 to 15 seconds after blood flow is blocked and that death occurs within
minutes if the pressure is not released. The medical examiner determined that
Davis "los[t] consciousness and proceeded to die over a period of subsequent
minutes" from the "belt around his neck."2° Although it does not appear that
17 RP (Sept. 14, 2016) at 980.
18 Fernandez-Medina, 141 Wash. 2d at 456.
19 Appellant's Br. at 12.
29 RP (Sept. 14, 2016) at 994-95.
6
No. 75845-4-1/7
Gonzalez manually applied pressure to Davis's neck in the time between
unconsciousness and death, the evidence supports an inference that, following a
struggle, Gonzalez wrapped the belt around Davis's neck and cinched it in such a
way to ensure constant pressure, even after Davis lost consciousness. The
evidence does not support a reasonable inference that Gonzalez negligently forgot
to loosen the belt after Davis was rendered unconscious.
Because the evidence does not support an inference that Gonzalez
committed second degree manslaughter rather than second degree murder, we
conclude the court did not abuse its discretion when it denied Gonzalez's request
to instruct the jury on the lesser included offense.
II. Prosecutorial Misconduct
Gonzalez argues a new trial is required because the State committed
prosecutorial misconduct during closing argument. Gonzalez claims the
prosecutor's statements shifted the burden of proof and commented on his right to
remain silent.
"Allegations of prosecutorial misconduct are reviewed under an abuse of
discretion standard."21
To prevail on a claim of prosecutorial misconduct, the defendant bears the
burden of establishing that the conduct was both improper and prejudicia1.22
21 State v. Brett, 126 Wash. 2d 136, 174-75, 892 P.2d 29(1995).
22 State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43(2011)(quoting
State v. Magers, 164 Wash. 2d 174, 191, 189 P.3d 126 (2008)).
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No. 75845-4-1/8
"Once a defendant establishes that a prosecutor's statements are improper, we
determine whether the defendant was prejudiced under one of two standards of
review."23 If the defendant objected at trial, the defendant must show "a
substantial likelihood that the misconduct affected the jury's verdict."24 "If the
defendant did not object at trial, the defendant is deemed to have waived any
error, unless the prosecutor's misconduct was so flagrant and ill intentioned that
an instruction could not have cured the resulting prejudice."25
In analyzing prejudice, we evaluate the prosecutor's challenged statements
"within the context of the prosecutor's entire argument, the issues in the case, the
evidence discussed in the argument, and the jury instructions."26 "A prosecutor
has wide latitude in closing argument to draw reasonable inferences from the
evidence and to express such inferences to the jury."27
Here, during trial, the court introduced a jail phone call between Gonzalez
and his girlfriend. In the call, Gonzalez initially denied he was charged with
murder and then repeatedly used ttie word "allegedly" to discuss the murder. Prior
to closing argument, the prosecutor informed the court that he intended to play the
jail call during closing. The prosecutor told the court he would focus on
23State v. Emery, 174 Wash. 2d 741, 760, 278 P.3d 653(2012).
24 In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 704, 286 P.3d 673
(2012).
25 Emery, 174 Wash. 2d at 760-61.
26 State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432(2003).
27 State v. Boehninq, 127 Wash. App. 511, 519, 111 P.3d 899 (2005).
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No. 75845-4-1/9
Gonzalez's use of the word "allege ly" and that Gonzalez "never says he's
innocent."28 Gonzalez objected and argued that such argument flipped the burden
of proof. The court overruled Gonzalez's objection.
While the objection by defense counsel focused on burden flipping, there
was some discussion in the prosecutor's argument and the court's oral ruling of
the right to remain silent. For purposes of this opinion, we will assume the
objection preserved Gonzalez's claim of error that the prosecutor's statements
improperly commented on his right io remain silent.
During closing, the State repayed the call and made the following
argument:
You heard the defendant say "allegedly." And he said it maybe two
or three more times during the course of that call. It's up for you to
discern what was meant by that. And what I'm about to say is not in
any way—I don't want it to sound that I am in any way walking away
from the very high burden that. . . I have to prove to you in this case
that the defendant murdered Chris Davis and he stole his car. It's
not meant by that in any way. But on that day, on that jail call, during
that conversation, you never hear him say anything about being
innocent. Challenge met. Find him guilty.(29]
Gonzalez claims the prosecutor improperly shifted the burden of proof. The
State bears the burden of proving "beyond a reasonable doubt, every element
necessary to constitute the crime w th which the defendant is charged."3°
28 RP (Sept. 15, 2016) at 1044.
28 Id. at 1089-90.
38 Glasmann, 175 Wash. 2d at 713.
9
No. 75845-4-1/10
Although the prosecutor has wide latitude during closing, it is improper for the
prosecutor to argue or imply that the burden of proof rests With the defendant."31
During the call, Gonzalez's girlfriend confronted Gonzalez with the fact that
the State charged him with murder. At first, Gonzalez denied any knowledge of
the murder charge and claimed to be "in here for DUI."32 Later in the call, he
acknowledged the murder charge.
Okay, okay, let me be honest with you. For whatever they have me
booked on, it's not really what they—it's allegedly. You know what
I'm saying? They could be s'eying that I did that, but yet they don't
have enough evidence to prove that I did that. It's allegedly.[331
The prosecutor never implied that Gonzalez had any duty to present
evidence or to prove his innocence, rather the prosecutor was responding to
Gonzalez's claim that the State could not prove that he committed the murder.
The prosecutor never misstated the law and he correctly identified the burden of
proof multiple times during his closing argument. In this narrow setting, the
prosecutor's statements did not shift the burden of proof. We acknowledge that
the statements are close to the line and, in almost any other scenario, the
argument would be improper. We caution against the risk inherent in addressing a
defendant's failure to profess his or her innocence. The better practice is to avoid
any unintended inference.
31 Thorgerson, 172 Wash. 2d at 453.
32 Ex. 175.
33 Id.
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No. 75845-4-1/1 1
Gonzalez also claims the prosecutor improperly commented on his
constitutional right to remain silent and contends we should apply the
constitutional harmless error standard. Before a defendant can rely on his right to
remain silent, he must invoke it.34 "The only exceptions to the invocation
requirement are that(1) a defendant need not take the witness stand to invoke the
privilege at trial, and (2) a defendant subject to a custodial interrogation or other
governmental coercion need not invoke the privilege."35
Here, Gonzalez made the statements to his girlfriend and not in the context
of a custodial interrogation. Additionally, Gonzalez was not silent. When his
girlfriend confronted him about the murder charge, he at first denied the fact and
later used the word "allegedly" to discuss the murder. Gonzalez's constitutional
right to remain silent was not implicated by the admission of the phone call and the
prosecutor's closing argument.
Even if Gonzalez's right to remain silent was implicated, the constitutional
harmless error standard is applied only when the State "comments" on an
accused's silence.36 "Comment" means the State uses the accused's silence to
suggest to the jury that the refusal to talk is an admission of guilt.37
34 State v. Pinson, 183 Wn. App. 411,418, 333 P.3d 528(2014).
35 Id.
36 State v. Easter, 130 Wash. 2d 228, 236-37, 242, 922 P.2d 1285(1996)(The
Fifth Amendment to the United States Constitution and article 1, section 9 of the
Washington State Constitution guarantee a criminal defendant the right to remain
silent).
37 State v. Lewis, 130 Wash. 2d 700, 707, 927 P.2d 235 (1996).
11
No. 75845-4-1/12
Here, the prosecutor did not mproperly comment on Gonzalez's right to
remain silent because he did not suggest that any of Gonzalez's statements during
the call constituted an admission of guilt. The mere reference to Gonzalez's
silence concerning his innocence does not constitute misconduct. The prosecutor
told the jury it was for them to interpret Gonzalez's use of the word "allegedly."
And the prosecutor emphasized the heavy burden on the State. We conclude
Gonzalez fails to satisfy his burden of establishing that the prosecutor's
statements were improper.
Gonzalez also fails to show a substantial likelihood that the misconduct
affected the jury's verdict. When viewed in the context of the entire closing
argument, the prosecutor's reference to the jail call was not significant. During his
argument, the prosecutor illustrated Gonzalez's pattern of dishonesty:
Let's talk about deception. Let's talk about a defendant who some
days before he kills Christopher Davis deletes his Gmail account.
He deletes the account that he uses to communicate initially with Mr.
Davis. He flees to California all of a sudden. ... And his deception
in fleeing was obviously to get away. But he doesn't just delete his
Gmail account and he doesn't just flee to California. He deletes his
text messages of his contact with Mr. Davis and others[38]
The prosecutor argued the jail call was a prime example of Gonzalez's repeated
deception:
So it's not just about what the defendant did. It's about what the
defendant said. It's about what he said in that phone call to his
[girlfriend.] But more significantly it's about what he said to Detective
Jorgensen and Detective Arnett. Because he said things that just
weren't accurate. He said, when asked, that he got the car from
38 RP (Sept. 15, 2016) at 1076-77.
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No. 75845-4-1/13
some Salvadorian gang dude in Everett. Well, we know where he
got the car. He got the car from Christopher Davis after he killed
him. He said that he never had an e-mail address. . . .
But he also told Detective Jorgenson that he didn't have a
phone. ... But then he actuOly said, well, I may have had that
phone,. . . but I lost it ... . Well, that's just not true because you
know where the phone was found. The phone was found in Mr.
Davis's car on October 15th of 2015.
So, he also told Detective Jorgensen and Detective Arnett that
he'd been to California since the end of August. And, again, we
know that's not true. He was clearly in Lynnwood, Washington for
much of, for all of the first part of September.... This defendant
was never in California at the end of August... .
He's also deceptive to others. He's deceptive to [his girlfriend]
in the jail phone call. He was also deceptive with regards to his
phone records and his e-mail.[39]
The prosecutor's theme of deception is reasonably supported by the
evidence admitted during trial. Detectives Jorgenson and Arnett both testified
about Gonzalez's dishonesty during the investigation.
Additionally, the court's instructions cured any potential, prejudice. The
court instructed the jury that "the layers' statements are not evidence."40 The
court told the jury to "disregard any emark, statement, or argument that is not
supported by the evidence or the law."41 The court also instructed the jury about
39 RP (Sept. 15, 2016) at 1078-79.
40 CP at 54.
41 Id.
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No. 75845-4-1/14
the burden of proof.42 And "[Burors are presumed to follow the court's
instructions."43
Given the prosecutor's entire argument, the evidence, and the jury
instructions, we conclude it is unlikely the prosecutor's challenged remarks
affected the jury's verdict.
Therefore, we affirm.
WE CONCUR:
I r t cA-c c. Ni —I
I,
42CP at 57("The State is the plaintiff and has the burden of proving each
element of each crime beyond a resonable doubt. The defendant has no burden
of proving that a reasonable doubt bxists as to these elements.").
43 In re Pers. Restraint of PhIps, 190 Wash. 2d 155, 172, 410 P.3d 1142
(2018).
14