State v. Quintana

STATE OF WASHINGTON, Respondent, v. Barbara Quintana, Appellant.

No. 41098-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

Dated: May 16, 2012

UNPUBLISHED OPINION

Hunt, J. - Barbara Quintana appeals her jury trial conviction for vehicular assault. She argues that (1) the trial court violated her right to be present at all critical stages of her trial; (2) the trial court erred in failing to suppress a photograph of her bruised and naked torso because it resulted from an unlawful search when a Washington State Patrol detective took the photograph without her consent, while she was lying unconscious in a hospital bed, suspected of, but not under arrest for, vehicular assault; (3) there was insufficient evidence to support her vehicular assault conviction; (4) the trial court failed to give a necessary unanimity instruction; and (5) she received ineffective assistance of counsel. In her Statement of Additional Grounds (SAG),¹Quintana advances a different ineffective assistance of counsel theory and also contends that the"prosecutor impeached his own witnesses." SAG at 1. We affirm.

FACTS

I. Vehicular Assault

A. High-Speed Single-Vehicle Crash

Standing in front of the Skokomish Department of Public Safety's annex building around 6:00 p.m. on August 23, 2009, Officer Timothy Smith and Sergeant Chris Newton observed a green Chevrolet Blazer driving between 80 and 90 miles per hour on an adjacent road in a 35-mile-per-hour speed zone and onto a highway. Newton believed he observed an adult male in the driver's seat, but he was unable to make out the passenger's features.² As Newton and Smith gave chase in their patrol vehicles, the Blazer struck a utility pole north of the annex building.

Newton arrived at the scene one to three minutes after the Blazer had driven past the annex building and observed a male "climbing . . . almost exiting on the way out of the driver's side window,"³ with "basically almost . . . one foot on the ground and the other foot coming—and [his] entire body and foot was coming out of the window." II Verbatim Report of Proceedings (VRP) at 139. When the man, later identified as Dion Obi, finally exited the vehicle, he fell down, stood up, and attempted to flee.

Newton ran after Obi and threatened him with a Taser gun. Obi got down on the ground. Barbara Quintana "came from around the passenger side of the vehicle from the front," "yellingand screaming";⁴ Newton, who could not see the vehicle's passenger side from where he was standing, had not previously seen Quintana. Hearing "yelling and screaming from inside of the vehicle," Newton observed David Wahwassuck in a rear passenger seat with an apparently broken leg or ankle. II VRP at 144.

Officer Smith arrived shortly thereafter and observed Quintana "[s]itting at the passenger seat of the vehicle" with "her feet extended out" of the ajar passenger door and Obi "approximately thirty feet from the vehicle on the . . . driver's rear corner," "lying on his back unconscious." II VRP at 122. The driver's side front door was closed. Obi had a large laceration near his left ear and blood on his neck and clothing. When Obi regained consciousness, he was "pretty disoriented" and "[c]ouldn't tell [Officer Smith] what happened or why he was injured and on the ground." II VRP at 123. Smith observed a partially-full can of beer underneath Obi, who was placed under arrest sometime before 8:00 p.m.

At roughly 7:00 p.m., some 35-40 minutes after the crash, Washington State Patrol (WSP) Trooper Aaron Bidewell arrived, by which time Quintana and Obi "had already been removed" from the scene. II VRP at 168. Bidewell believed that Wahwassuck, still in the crashed Blazer, had a compound leg fracture. A volunteer firefighter advised Smith that, when he (the firefighter) was treating Wahwassuck, he "located beside [Wahwassuck] a half-full bottle of Bacardi." II VRP at 127. Newton provided Bidewell with the Blazer's occupants' names and told Bidewell that he (Newton) believed Obi had been driving at the time of the crash. Bidewell "relayed"⁵Newton's conclusion to a "Trooper Merritt,"⁶ from the upcoming WSP shift; either Bidewell or "scene supervisor" Sergeant Connolly⁷ (by then also present at the crash site) asked Merritt to "respond to the hospital for a blood draw based on Mr. Obi being the driver at the time for a vehicular assault." II VRP at 227-28.

Bidewell also examined the crashed Blazer, "smell[ed] a strong odor of intoxicants,"⁸ and observed "a set of lady's shoes in the front of [the driver's] seat" and "a set of men's . . . tan work boots" on the vehicle's passenger side roof. II VRP at 170. Around 7:45 p.m., WSP Corporal Debbie Laur arrived and conducted a collision investigation. By that time, emergency response personnel had transported Wahwassuck to a hospital.

Around 8:00 p.m., WSP Detective Brian George⁹ arrived and was advised that one of the two initially responding Skokomish police officers had told a WSP trooper that Obi had been driving and had seen Obi exiting the Blazer after the crash. George left the crash scene and arrived at the hospital to which emergency personnel had transported Obi and Quintana. At that time, George was "focusing" on Obi as a suspect and believed that Quintana had been a passenger. II VRP at 228.

B. Investigation

1. At hospital

The hospital staff had given Quintana several drugs, including morphine. George found Quintana intubated, heavily sedated, "basically unconscious," and unable to talk. I VRP at 26. George filled out a consent authorization for Quintana's medical release form, which contained a preprinted line reading, "The information will be used on my [Quintana's] behalf for the following purpose"¹⁰; at the end of this line, George wrote, "collision report."¹¹ I VRP at 30. George left the completed form with Trooper Merritt, who was at the hospital.

Aware that emergency response personnel had reported bruising just below Quintana's breast line, George asked the emergency room physician whether Quintana had bruising on her chest. In response, the physician removed a blanket covering the unconscious Quintana's bruised chest, after which George photographed Quintana's face and naked upper torso. George also viewed and photographed Obi's face and one of his knees.

Around 5:00 a.m. the following morning, August 24, WSP Trooper Jason Roe arrived at the hospital to relieve Merritt from his shift. Merritt told Roe that Obi was the suspect driver and was unconscious and that Quintana was believed to have been a passenger and was also unconscious. Merritt also gave the medical release authorization form to Roe and told him to try to obtain Quintana's signature. Several hours later, Quintana woke up; Roe showed her the form and explained that it was a medical release form and that her signature would "release her medical information regarding the collision to help with [the WSP's] investigation." I VRP at 36.Quintana nodded her head in response to the explanation, but she did not sign the form.

One and a half hours later, Roe returned to Quintana's hospital room. The hospital staff had removed the tubes from Quintana, and she was awake and able to answer Roe's questions. Quintana signed the medical release form. Roe also spoke to Obi, who denied having driven the Blazer the night before. Hospital staff collected blood samples from both Obi and Quintana. From Obi they took both a "medical" blood sample (physician-ordered) and a "legal" blood sample (WSP-ordered). II VRP at 263. At WSP's request, the hospital staff also took a "legal" blood sample from Quintana,¹² after which, at some point, Obi was transferred from the hospital to jail. II VRP at 263.

2. Forensic

Unconvinced that Obi had been driving, George investigated further. He had observed blood inside the Blazer and that its windshield had been "crushed, based on the person in the passenger seat [striking] the windshield of the vehicle"; and he anticipated that the passenger had left behind "trace evidence" such as hair. II VRP at 229. After George obtained and executed a search warrant to recover trace evidence from the Blazer, crime lab technicians recovered hair from the passenger-side windshield. George believed this hair was short-length male facial hair; aware that Obi had facial fair at the time of the crash, George told the prosecutor's office that he no longer believed Obi had been the driver. Obi was released from custody.¹³

George sent blood and hair samples from inside the Blazer, including from the passenger-side windshield, to the WSP Crime Lab. In October, Quintana arrived at the WSP office and met with George to retrieve her personal property recovered from the accident scene. George used swabs to take samples from Quintana to determine her DNA profile to compare with the blood and hair evidence from the Blazer. WSP Crime Lab testing established that blood from the Blazer's steering wheel matched Quintana's DNA profile and that tissue taken from the passenger-side windshield matched Obi's DNA profile.

II. Procedure

The State charged Quintana with vehicular assault of Wahwassuck under RCW 46.61.522.

A. Pretrial CrR 3.6 Hearing

Quintana moved in limine to exclude her medical records based on the invalidity of her consent while injured and sedated in the hospital shortly after the accident.¹⁴ The trial court ruled, "Because [Quintana] was heavily sedated at the time that she gave Trooper Roe consent to her medical records, the court finds that her consent was not voluntary, and therefore her medical records, except for the blood evidence, are not admissible." Clerk's Papers (CP) at 80. This evidence was neither offered nor admitted at trial.¹⁵

But the trial court rejected Quintana's argument that it should also exclude her bloodevidence. The trial court concluded that, under State v. Smith,¹⁶ Quintana's "blood sample and the results of any tests revealing intoxicants in the blood are not privileged and are admissible." CP at 80-81.

B. Jury...