State v. Perez-Martinez

STATE OF WASHINGTON, Respondent, v. REYCEL PEREZ-MARTINEZ, Appellant.

Nos. 43384-2, 43517-9-II, 43569-1-II

Court of Appeals of Washington, Division 2

March 4, 2014

UNPUBLISHED OPINION

Bjorgen, J.

A jury convicted Reycel Perez-Martinez of first degree assault for shooting Eric Luna-Claro. Perez-Martinez appeals, alleging that (1) the trial court erred by denying his motion to replace his appointed counsel, (2) the prosecutor committed three different types of misconduct, and (3) insufficient evidence supports his conviction. He also raises numerous other issues in two personal restraint petitions (PRPs) consolidated with his direct appeal.

We reject Perez-Martinez's direct appeal claims. The trial court's decision to deny Perez-Martinez's motion for new counsel was not an abuse of its discretion Perez-Martinez waived two of his prosecutorial misconduct claims and the third has no merit, and sufficient evidence supports his conviction. Because Perez-Martinez does not present his PRP claims in a way that allows us to review them in an informed manner, we decline to reach the merits of these claims. We affirm.

FACTS

Perez-Martinez and Luna-Claro were "best friend[s]" in Cuba before each separately immigrated to this country. II Trial (Mar 12, 2012) at 136. After arriving in Washington, Luna-Claro worked as a maintenance worker, but he supplemented his legitimate income by selling illegal drugs, becoming a distributor for a drug cartel in 2010. After reconnecting with Luna-Claro, Perez-Martinez began asking him for assistance in obtaining work in the drug trade. . Luna-Claro gave Perez-Martinez the name and information of his contact in the cartel, which led to a meeting between Perez-Martinez and members of the cartel and attempts to train Perez-Martinez as a drug courier.

A few months after Luna-Claro introduced Perez-Martinez to his cartel contact, law enforcement officials seized five kilograms of cocaine, valued at approximately $150, 000, that the cartel had sent to Luna-Claro. Unfortunately for Luna-Claro, the cartel considered him liable for payment on the shipment regardless whether he received it. Luna-Claro managed to pay some $30, 000, but he could not pay the balance of the debt.

Not long after Luna-Claro's difficulties with the cartel began, Perez-Martinez showed up at his door with an associate.^[1] At trial, Luna-Claro and Perez-Martinez presented starkly different accounts of what transpired after Perez-Martinez entered Luna-Claro's house.

According to Luna-Claro, he, Perez-Martinez, and Perez-Martinez's associate went into his garage, where they began "talking about business, about drugs." II Trial (Mar. 12, 2012) at 144-45. Luna-Claro sat down in a chair and Perez-Martinez, unexpectedly and without provocation, pulled out a pistol and shot him in the abdomen from a distance of four or five feet. While Luna-Claro lay on the ground, Perez-Martinez walked up to him and pulled the trigger to shoot him again, but the gun did not fire. Perez-Martinez then kicked Luna-Claro several times, turning to leave when Luna-Claro's wife came to the garage to investigate the shot and yelled for him to get out. At trial, Luna-Claro opined that the cartel had sent his best friend to kill him because of his unpaid debt.

According to Perez-Martinez, he arrived at Luna-Claro's house to confront him about a storage locker Luna-Claro had opened in his name, ostensibly so that Perez-Martinez would have a local bill to establish residency in Washington. Perez-Martinez was upset about the locker because he believed Luna-Claro was using it for his drug trade. After Perez-Martinez entered Luna-Claro's house with his unknown associate, they all went to the garage where they discussed the dispute. Luna-Claro became angry at Perez-Martinez, swore at him, and then pulled a gun from his waistband "very slow[ly]." IV Trial (Mar. 14, 2012) at 553-54. Perez-Martinez lunged at Luna-Claro, and the two struggled for the gun, which discharged during the struggle. Perez-Martinez, who testified he was "in fear for [his] life, " later explained that nerve damage in his hand might have caused him to fire the gun without knowing that he had pulled the trigger, IV Trial (Mar. 14, 2012) at 555-56. After the shot, Luna-Claro asked Perez-Martinez to take the gun and flee because the sound might draw a police response. Perez-Martinez complied and later disposed of the gun off a local freeway.

The State charged Perez-Martinez with first degree attempted murder and first degree assault, seeking enhanced penalties for each charge due to his use of a firearm.

Before trial, Perez-Martinez moved for new appointed counsel. When asked why he wanted new counsel, Perez-Martinez stated that his attorney was "not doing a good job for" him, that his attorney worked for the prosecution, and that his attorney said that he had killed Luna-Claro. I Motions (Dec. 12, 2011) at 5-7. The trial court explained to Perez-Martinez that his attorney did not work for the prosecution and that, since the State had not charged him with murder, he must have misheard or misunderstood what his attorney had said. The court denied the motion for new counsel.

When the court again considered the issue several months later, Perez-Martinez stated that he wanted new counsel because his attorney had found no other witnesses to help defend him and his attorney had misled him into believing the State would present some kind of plea deal. He then stated that he simply did not trust his attorney. The trial court noted that, given the facts the State had alleged, it seemed unlikely that Perez-Martinez's attorney could find other witnesses, because he could not give the attorney the information necessary to find Arnaldo. Concerning the plea deal, the State informed the court that it had offered a plea, but that Perez-Martinez had rejected it. Perez-Martinez then again refused the offer in open court. Finally, the court attempted to allow Perez-Martinez to speak in private with his attorney about the offer, but Perez-Martinez refused, saying he would not speak with counsel. Again, the court declined to appoint Perez-Martinez new counsel.

At trial, the State presented Luna-Claro and witnesses whose testimony corroborated his account: Police officers testified that their repeated searches of Luna-Claro's house disclosed no evidence that he possessed a gun. Officers also testified that searches of the garage disclosed one spent and one live round. One officer testified that this evidence was consistent with Luna-Claro's story that Perez-Martinez attempted to shoot him twice, but that only one bullet fired. Another officer testified that, based on the lack of gunshot residue on Luna-Claro's clothes, he was not shot at close range, as in a struggle for control of a gun, but from a distance, as Luna-Claro testified. Luna-Claro's neighbors testified that Perez-Martinez approached the house and left in different directions, suggesting a plan to avoid identification and capture.

Perez-Martinez testified in his own defense. Given Perez-Martinez's testimony about his fear for his life, the trial court determined it would instruct the jury on self-defense over the State's objections.

During closing arguments, the State argued that the evidence indicated that Perez-Martinez had fabricated his self-defense story. It also challenged whether Perez-Martinez had acted in self-defense, even if the jury accepted his version of events, claiming that Perez-Martinez had stated that he accidentally shot Luna-Claro instead of shooting him in self-defense.^[2] Finally, the State told the jury that Luna-Claro had been "open" with them and had "told the truth" based on his admission of his criminal activities and the corroborating physical evidence. V Jury Trial & Sentencing Hearing (Mar. 15, 2012) at 689, 693.

The jury found Perez-Martinez not guilty of attempted murder, but convicted him of first degree assault with a firearm enhancement. Perez-Martinez timely appeals.

Perez-Martinez also pursued collateral post-conviction relief. He filed two separate motions in the trial court asking for, among other things, a vacation of his conviction, arrest of the judgment against him, a writ of habeas corpus, and a new trial. The superior court transferred these motions to us for consideration as a timely PRP under CrR 7.8(c)(2). This court's commissioner consolidated Perez-Martinez's PRPs, Nos. 43517-9-II and 43569-1-II, with his direct appeal.

ANALYSIS

I. Denial of the Motion for New Counsel

Perez-Martinez first argues that the trial court erred by denying his motion for new counsel. He maintains that the trial court failed to give proper consideration to his claims of an irreconcilable conflict with his attorney and denied his motion on improper grounds. Under governing standards, the trial court properly denied the motion.

Criminal defendants have a constitutional right to counsel. U.S. Const, amend. VI; Wash. Const, art. I, § 22. The right to counsel secures the defendant a fair trial by ensuring a functioning adversarial process, rather than a meaningful attorney-client relationship. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Therefore,

[t]o justify the appointment of new counsel, a defendant "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. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004) (quoting State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997)). We review a trial court's denial of a motion for the appointment of new counsel for an abuse of discretion. Varga, 151 Wn.2d at 200.

Perez-Martinez claims that...