State v. Valles

STATE OF WASHINGTON, Respondent, v. BENJAMIN VALLES, JR., Appellant.

No. 79589-9-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

June 22, 2020

UNPUBLISHED OPINION

LEACH, J. — Benjamin Valles appeals his conviction for first degree assault and first degree robbery. He asserts he received ineffective assistance of counsel because his trial counsel did not object to evidence of an out-of-court statement from a non-testifying expert witness that was inadmissible hearsay and violated his Sixth Amendment right to confrontation. He also claims the State violated his constitutional right to jury unanimity because evidence does not support the "display of a deadly weapon" means of committing first degree robbery included in the elements jury instruction.

Valles has not shown that his counsel's failure to object was not a legitimate trial tactic. And, the State presented sufficient evidence to support a finding that he displayed a deadly weapon. So, we affirm his conviction. But, we remand for the trial court to correct Valles's offender score and to strike the supervision fees from the judgment and sentence.

BACKGROUND

On October 16, 2017, Anthony Hale was walking home from the Beacon Hill light rail station when a man stabbed him in the neck and mouth. The man said, "give me your fuckin' wallet or I'll kill you." Hale threw the man his wallet. The man picked up the wallet and ran away. Hale called 911 and described the man as Hispanic with tattoos above his eyebrows. Hale initially thought he had only been punched. Police responded and paramedics took Hale to Harborview Medical Center.

Between 1:00 p.m. and 1:30 p.m., Louis Mousseau arrived at his church located half a block away from the crime scene. He saw a man in the alleyway tell a woman, "We have to get out of here, they're on their way." A nearby home surveillance video also captured a man and a woman walking down the alleyway at 1:30 p.m. Mousseau heard sirens and gave police a description of the man he saw in the alleyway. Mousseau did not notice if the man had any tattoos and did not see either the man or the woman holding anything in their hands.

Elizabeth Santiago, a King County Metro bus driver, was driving when she received a police alert with a description of a suspect with tattoos around his eyes. At 1:40 p.m., Santiago saw a man with tattoos around his eyes board her bus. Santiago flagged two police officers. When the officers approached the bus, Valles got off. Officers contacted Valles at a bus stop. They frisked Valles and found no weapons.

Officers brought Mousseau to the bus stop and asked if he recognized Valles. He identified Valles as the man in the alleyway. Officers showed Hale aphotomontage containing Valles's photo. When Hale identified someone other than Valles as his attacker, they released Valles. Officers found Hale's wallet in the alley. They did not find a knife. Three days later, police arrested Valles.

At trial, Ai-Lien Ton, a latent fingerprint examiner trainee for the Seattle Police Department, testified that she conducted the print analysis in this case. Ton matched Valles's fingerprint with a latent print from a credit card in Hale's wallet. After she matched the print, she sent her work to her supervisor for review. Ton testified that three individuals, her supervisor, trainer, and another examiner independently reviewed her work and verified her findings. None of these individuals testified.

The jury convicted Valles of first degree assault and first degree robbery, and returned special verdicts finding Valles was armed with a deadly weapon.

Valles appeals.

ANALYSIS

Ineffective Assistance of Counsel

Valles asserts his defense counsel provided ineffective assistance by failing to object to Ton's testimony because it violated Valle's Sixth Amendment right to confrontation and was inadmissible hearsay under Evidence Rule (ER) 802.

The Sixth Amendment to the United States Constitution, and article I, section 22 of the Washington State Constitution, each guarantee a defendant the right to effective assistance of counsel in criminal proceedings.¹ We reviewineffective assistance of counsel claims de novo.² To establish this claim, Valles must show (1) defense counsel's conduct fell below an objective standard of reasonableness, and (2) that a reasonable possibility exists that, but for counsel's deficient performance, the outcome of his trial would have been different.³ Our scrutiny of defense counsel's performance is highly deferential, and we employ a strong presumption of reasonableness.⁴ "To rebut this presumption, the defendant bears the burden of establishing the absence of any 'conceivable legitimate tactic explaining counsel's performance.'"⁵ Failure to satisfy either prong of the test defeats an ineffective assistance of counsel claim.⁶

First, we address the issue of whether defense counsel's conduct was deficient by failing to object to Ton's testimony because it was inadmissible hearsay under ER 802 or violated Valle's Sixth Amendment right to confrontation.

Hearsay is an out of court statement offered to prove the truth of the matter asserted.⁷ Hearsay is inadmissible unless an exception or exclusion applies.⁸ "Generally, one expert may not relay the opinion of another nontestifying expert without running afoul of the hearsay rule."⁹

Valles cites State v. Wicker in where a fingerprint expert testified that a supervisor verified her fingerprint analysis.¹⁰ In Wicker, we determined the testimony about the supervisor's verification was inadmissible hearsay because it was an assertion that the supervisor agreed the fingerprints matched.¹¹

Ton's testimony was hearsay. But, we cannot say that defense counsel was deficient by not objecting on hearsay grounds. If defense counsel had successfully objected on hearsay grounds, the State would have likely called the supervisor, trainer, and other examiner to testify. The testimony would likely confirm Ton's results and bolster the State's case. It would also place greater focus on the fingerprint evidence and perhaps cause the jury to place more importance on it. It is conceivable that defense counsel's decision not to object on hearsay grounds was a "legitimate tactic."

For the same reason, it is conceivable that defense counsel's decision not to object on Sixth Amendment grounds was a legitimate tactic. The Sixth Amendment provides criminal defendants the right to confront the witnesses against them.¹² Admission of a testimonial statement violates a defendant's right to confront the witness unless the witness is unavailable and the defendant previously had an opportunity to cross-examine the witness regarding the statement.¹³ Here, if defense counsel had objected on confrontation clausegrounds, the State would have likely called the other experts to testify that they confirmed Ton's results. Because defense counsel's decision not to object on hearsay or confrontation grounds was a conceivable legitimate trial tactic, we cannot say their performance was deficient.

Next, even if defense counsel's performance was deficient, it did not prejudice Valles. Absent the fingerprint evidence, ample evidence supports Valle's conviction, including Mousseau's identification of Valles, and the neighbor's personal surveillance video of Valles in the alleyway.

Jury Unanimity

Valles challenges his conviction for robbery in the first degree claiming the State violated his constitutional right to jury unanimity because evidence does not support one of the three means of committing the crime described in the court's instructions, the display of a deadly weapon.

Article I, section 21 of the Washington State Constitution guarantees criminal defendants the right to a unanimous jury verdict.¹⁴ "This right may also include the right to a unanimous jury determination as to the means by which the defendant committed the crime when the defendant is charged with (and the jury is instructed on) an alternative means crime."¹⁵ Generally, an alternative means crime "is one by which the criminal conduct may be proved in a variety of ways."¹⁶

"When a crime can be committed by alternative means, express jury unanimity as to the means is not required where each of the means is supported by substantial evidence."¹⁷ In this circumstance, "we infer that the jury rested its decision on a unanimous finding as to the means."¹⁸ If the record does not include sufficient evidence to support one alternative means, a particularized expression of jury unanimity is required.¹⁹ "Evidence is sufficient if after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."²⁰

RCW 9A.56.200(1)(a) provides that a person is guilty of first degree robbery if, in the commission a robbery or immediately after, they are (i) "armed with a deadly weapon"; or (ii) "displays what appears to be a firearm or other deadly weapon"; or (iii) "inflicts bodily injury." So, first degree robbery is an alternative means crime.

The jury was instructed that to convict Valles of first degree robbery, it needed to find all six of the following elements beyond a reasonable doubt:

(1) That on or about October 16, 2017, the defendant unlawfully took personal property from the person or in the presence of another;

(2) That the defendant intended to commit theft of the property;

(3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person;

(4) That the force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking;

(5) (a) That in the commission of these acts or in immediate flight therefrom the defendant was armed with a deadly weapon; or(b) That in the commission of these acts or in immediate flight therefrom the defendant displayed what appeared to be a deadly weapon; or

(c) That in

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