Opinion
No. 25056-3-III.
May 29, 2007.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 05-1-00438-7, Donald W Schacht, J., entered March 28, 2006.
Valentin Palomares appeals his convictions for first degree burglary and second degree assault. He contends the trial court erred in failing to appoint new counsel, in allowing extra security measures during trial, and in allowing the State to present evidence of gang activities and behaviors. Finding no error, we affirm.
FACTS
On December 21, 2004, at approximately 2:00 a.m., Mr. Palomares, Ricardo Serrano, Juan Aguilar, Javier Ortega, and Ricardo Mata forced their way into Jose Alvarado's apartment, pulled him outside and beat him, and then followed him inside and continued to hit, kick, and punch him. They were all members of the "18th Street" gang in Walla Walla. During the attack, Mr. Palomares and Mr. Aguilar told Mr. Alvarado he "was out of the gang." Report of Proceedings (RP) at 110.
The State charged Mr. Palomares with first degree burglary and second degree assault. The court appointed counsel to represent Mr. Palomares. Three days later, counsel informed the court that while acting as a judge pro tem, he signed a search warrant for Mr. Ortega's house, and Mr. Palomares was convicted of a crime in connection with that search. Mr. Palomares asked for new counsel based on the warrant issue. Further, he complained his counsel had put him down (disparaged him) to another attorney. The court denied his request, stating the prior case was an unrelated matter, counsel had no other involvement in the matter other than signing the warrant, and that he provided no factual basis to show counsel was biased.
Before trial, the court held a Hartzog hearing to establish the appropriate security measures for trial. The court determined it would not shackle or handcuff Mr. Palomares, but it would allow two correction officers in the courtroom and one in the hall, and a member of the jail staff in either the courtroom or the hall.
State v. Hartzog, 96 Wn.2d 383, 635 P.2d 694 (1981).
At trial, the State's case theory was that Mr. Palomares, with other gang members, assaulted Mr. Alvarado because he was "jumped out" of the gang. RP at 209. Sergeant Michael Moses had training and experience with gang-related crimes. The court allowed Sergeant Moses to testify, over Mr. Palomares' objection, to "his experience concerning gangs, gang mentality, general concepts of codes of silence and loyalty, hierarchy of leadership and behavior, to describe things such as jumping out and jumping in. And . . . how that applies to their behavior, that type of thing." RP at 212. The court found the gang-related evidence was relevant to motive and intent and necessary to provide the jury with an understanding of gang culture and the State's case theory. The court stated no evidence showed the incident was anything other than a gang-related assault.
Sergeant Moses testified to the number of local gangs, including the 18th Street gang, gang membership, practices for joining or leaving a gang — namely assault, gang hierarchy, and gang beliefs. He testified the gang belief system included gaining respect through violence and a code of silence that required taking care of problems without police involvement. He provided a personal example of having gone to visit an assault victim taken to Harbor View Hospital who refused to tell him what happened. Sergeant Moses testified Mr. Palomares and his brother started the gang and that conflicts arose shortly thereafter, including assaults and a "large flurry of retaliatory drive-by shootings." RP at 233. He testified Mr. Palomares was an established member of the 18th Street gang, a veteran, meaning a person of rank.
Mr. Palomares moved for a mistrial based on Sergeant Moses' testimony that he started the 18th Street gang and that multiple drive-by shootings followed the gang's creation. The court denied the motion, stating the evidence did not outweigh Mr. Palomares' right to a fair trial in light of eye witness testimony. It stated Sergeant Moses did not testify that the 18th Street gang was responsible for the increased assaults and drive-by shootings, and the fact that those activities were gang-related was not new information to the jury. The court then instructed the jury "to disregard any testimony by Sergeant Moses regarding specific gang behavior or gang activity prior to the alleged incident herein." RP at 257.
The jury found Mr. Palomares guilty of both crimes and Mr. Palomares appealed.
ANALYSIS A. Request for New Counsel
The issue is whether the trial court erred in failing to appoint new counsel for Mr. Palomares. Mr. Palomares contends defense counsel was biased based on the fact that he signed a search warrant for Mr. Ortega's home, while acting as a judge pro tem, and Mr. Palomares was convicted of a crime in connection with that search, and since defense counsel put him down to another attorney.
We review a defendant's request for new counsel for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997). We review a trial court's decision regarding a violation of the Rules of Professional Conduct (RPC) de novo. State v. Hunsaker, 74 Wn. App. 38, 42, 873 P.2d 540 (1994).
Under the RPC, "a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer . . ., unless all parties to the proceeding give informed consent, confirmed in writing." RPC 1.12(a). Similarly, under the Code of Judicial Conduct, "a pro tempore judge should not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by the Rules of Professional Conduct." CJC Application (A)(2)(b).
A defendant must show good cause to warrant substitution of a court-appointed counsel. Stenson, 132 Wn.2d at 734. Substitution is appropriate only when client and counsel "are so at odds as to prevent presentation of an adequate defense." Id. "The general loss of confidence or trust alone is not sufficient to substitute new counsel." Id. "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." Id.
Here, defense counsel signed a search warrant for Mr. Ortega's house while acting as a judge pro tem. Mr. Palomares was charged and convicted of a crime in connection with that case. Defense counsel did not participate in the case, other than signing the search warrant, and the current charges did not arise out of the previous incident. Defense counsel did not believe the situation created an attorney-client conflict. In fact, counsel did not even remember signing the warrant until he was told of the situation.
Further, Mr. Palomares' argument that a conflict existed based on alleged rumors that his counsel put him down to another counsel was unsubstantiated. Given all, the court did not abuse its discretion in denying Mr. Palomares' motion for new counsel. Stenson, 132 Wn.2d at 733-34.
B. Security Measures
The issue is whether the trial court erred in allowing additional correction officers in the courtroom during trial. Mr. Palomares contends the additional security measures marked him as dangerous and undermined his presumption of innocence.
We review a trial court's security measures during trial for abuse of discretion. State v. Hartzog, 96 Wn.2d 383, 400-01, 635 P.2d 694 (1981). A court abuses its discretion if its decision is manifestly unreasonable, or based on untenable grounds or reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
A defendant is generally entitled to appear free from physical restraint at trial. State v. Monschke, 133 Wn. App. 313, 336, 135 P.3d 966 (2006), review denied, 2007 Wash. Lexis 171 (Wash. Mar. 6, 2007). However, this right must be balanced against the State's interest in an orderly trial. State v. Flieger, 91 Wn. App. 236, 241, 955 P.2d 872 (1998). The trial court may provide additional security measures as needed after consideration of the following factors:
[T]he seriousness of the present charge against the defendant; defendant's temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.
Hartzog, 96 Wn.2d at 400 (quoting State v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353 (1976)). The court may choose from a wide variety of permissible security measures, including the use of additional security personnel. Hartzog, 96 Wn.2d at 401. A defendant contesting the presence of additional security personnel must be able to show jury prejudice. State v. Basford, 1 Wn. App. 1044, 1050-51, 467 P.2d 352 (1970).
Here the court addressed each of the Hartzog factors. It stated Mr. Palomares was charged with two serious offenses, the current charges constituted a third strike against Mr. Palomares, no security provisions existed in the courtroom, and that alternative security measures, other than physical restraints, were available. It allowed additional security personnel to be placed inside and outside the courtroom; it did not physically restrain Mr. Palomares. Further, Mr. Palomares provided no proof that the presence of additional security personnel prejudiced the jury. Basford, 1 Wn. App. at 1050-51. He did not object to the presence of additional security personnel during the Hartzog hearing or during trial. We find no abuse of discretion in the court's rulings.
C. Gang Testimony
The issue is whether the trial court erred in denying Mr. Palomares' motion for a mistrial based on specific gang-related testimony. Mr. Palomares contends the testimony was inadmissible under ER 404(a) and 404(b), and that it was so prejudicial that it could not have been cured by an instruction.
We review a trial court's evidentiary rulings and the denial of a motion for a mistrial for abuse of discretion. State v. Cronin, 142 Wn.2d 568, 585, 14 P.3d 752 (2000); State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). We will overturn the denial of a motion for a mistrial only where "there is a `substantial likelihood' th[at] prejudice affected the jury's verdict." Russell, 125 Wn.2d at 85. A mistrial should be granted only when no other curative measures can be taken to ensure a fair trial. Id. Issues not argued are deemed abandoned. State v. Myers, 6 Wn. App. 557, 573, 494 P.2d 1015 (1972); see State v. Mora, 110 Wn. App. 850, 858, 43 P.3d 38 (2002).
Character evidence is generally not admissible to prove conformity therewith. ER 404(a)(1). Similarly, evidence of "other crimes, wrongs, or acts" are not admissible to show a defendant is a "criminal type" and is likely to have committed the crime charged. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995); ER 404(b). However, ER 404(b) evidence may be admitted for other legitimate purposes such as motive and intent. State v. Campbell, 78 Wn. App. 813, 821, 901 P.2d 1050 (1995); ER 404(b). The court must identify the purpose for its admission, whether it's relevant, and whether it's more probative than prejudicial. Campbell, 78 Wn. App. at 821. The court may instruct a jury to disregard improperly admitted evidence and the jury is presumed to follow the instruction. Russell, 125 Wn.2d at 84.
Here, the State attempted to prove Mr. Palomares assaulted Mr. Alvarado to get him "jumped out" of the 18th Street gang. RP at 209. The court carefully reviewed the State's purpose for the admission of gang-related testimony, its relevance, and its prejudicial effect. It determined the evidence was relevant to show motive and intent, and that it was not overly prejudicial. The court determined the evidence would provide the jury with necessary information to understand the State's theory of the case; a nexus existed between the testimony and the assault of Mr. Alvarado.
The court denied Mr. Palomares' motion for a mistrial, reasoning a mistrial was not necessary since the testimony about drive-by shootings was not directed at any particular gang, and since these behaviors were not unknown to the jury as being gang-related. It instructed the jury "to disregard any testimony . . . regarding specific gang behavior or gang activity prior to the alleged incident herein." RP at 257.
Further, the court did not abuse its discretion in allowing the State to introduce Sergeant Moses' testimony. Campbell, 78 Wn. App. at 821-22. Sergeant Moses' testimony was based on his experience and training and not based on the statements of others. See ER 801(c). The court instructed the jury to disregard portions of the evidence, and the jury is presumed to follow that instruction. Russell, 125 Wn.2d at 84. Mr. Palomares has not shown the admission of the evidence was so prejudicial as to require a new trial. Id. at 85; Campbell, 78 Wn. App. at 821.
Mr. Palomares lists two additional assignments of error, but does not address them on appeal (sixth amendment confrontation clause issue, and the admission of gang-related testimony chilled his right to testify). These assignments of error are deemed abandoned. Myers, 6 Wn. App. at 573; see Mora, 110 Wn. App. at 858.
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.
Kulik, J., Kato, J. Pro Tem., Concur.