State v. BarraganState v. Barragan
- Reporters:
- ,
- Before:
- Schultheis, Brown A.C.J., Kato
Miguel Barragan was convicted of first degree assault for stabbing a fellow inmate with a pencil. On appeal he contends the trial court erred in admitting evidence of prior assaults and in giving the jury an instruction defining “deadly weapon.” He also argues he had ineffective assistance of counsel. Finding no error, we affirm.
FACTS
In March 1998, Mr. Barragan was residing in a dorm facility at the Grant County jail. Sharing Mr. Barragan‘s dorm room was Steven Garcia and around eight other inmates. Late one night, after “lights out,” Mr. Barragan and Mr. Garcia got into a fight. According to Mr. Garcia, Mr. Barragan swung first and told Mr. Garcia, “You‘re gonna die.” More blows were exchanged and Mr. Barragan then reportedly said, “I‘m gonna hit you tonight, don‘t even try to fall asleep.” As Mr. Garcia pushed an intercom alarm button, Mr. Barragan picked up a pencil from the floor and swung it toward Mr. Garcia‘s left eye. Mr. Garcia blocked the first swing, but only partially blocked a second blow, which struck him in the left temple. The pencil shattered as it hit Mr. Garcia‘s head, and over one-half inch of it was embedded in his temple. An officer who used forceps to remove the pencil from Mr. Garcia‘s temple later testified that it was as difficult to remove as a nail. The actual wound, however, was not serious.
Mr. Barragan was charged with one count of attempted first degree murder, one count of first degree assault, and one count of harassment, with alternative counts for second degree assault and third degree assault. All charges included a
WERE UNPROVED PRIOR ASSAULTS PROPERLY ADMITTED?
In a pretrial hearing, the State moved to admit certain statements made by Mr. Barragan to Mr. Garcia some time before the night of the fight. As support for the harassment charge, the State intended to elicit from Mr. Garcia that Mr. Barragan had bragged about earlier assaults against fellow inmates, instilling fear in Mr. Garcia that Mr. Barragan‘s threats of violence would be carried out. Over the objection of defense counsel that the validity of these statements must be proved, the court admitted them, finding them relevant to the harassment charge. The court also offered to give the jury a limiting instruction, but defense counsel never requested such an instruction. On appeal, Mr. Barragan contends the statements were improperly admitted under
Evidence of other crimes, wrongs, or
In this case, the trial court found that Mr. Barragan‘s statements regarding other violent conflicts was relevant to the charge of harassment. A defendant is guilty of harassment if he or she knowingly threatens to cause bodily injury or death to the person threatened.
Mr. Garcia testified that when Mr. Barragan became angry, swung at him, and yelled, “You‘re gonna die,” he was frightened because Mr. Barragan had told him about other fights he had won in other penal institutions. Adding credence to these stories of other battles was the fact that Mr. Garcia had witnessed Mr. Barragan fight with another cellmate earlier that day. Mr. Garcia‘s knowledge of Mr. Barragan‘s prior violent acts was relevant to the reasonable fear element of harassment. See Ragin, 94 Wash. App. at 411-12, 972 P.2d 519 (similar facts, same conclusion). The trial court properly identified on the record this purpose for admitting the evidence and did not abuse its discretion in admitting the evidence on this basis. State v. Brown, 132 Wash.2d 529, 571, 940 P.2d 546 (1997).
Although the trial court did not specifically weigh probative versus prejudicial effect, the record is sufficient to permit meaningful review of this second requirement for
Finally, Mr. Barragan contends the court erred by failing to determine whether the prior fights actually occurred. The better practice is to hold an evidentiary hearing to determine, by a preponderance of the evidence, whether uncharged crimes occurred. Binkin, 79 Wash.App. at 290, 902 P.2d 673. But as noted in Binkin, a pretrial hearing is only necessary when a prior bad act is contested. Mr. Barragan does not dispute the fact that he had engaged in earlier fights with inmates or that he had spoken of these fights with Mr. Garcia. In fact, he admitted at trial that he had told Mr. Garcia of other fights and had even shown Mr. Garcia an infraction report filed regarding one of the fights. On these facts, an evidentiary hearing for the
MAY A PENCIL BE A “DEADLY WEAPON“?
Mr. Barragan next assigns error to the jury instruction defining “deadly weapon” as it relates to the charge of first degree assault. He contends the instruction is unjustified because a pencil could not constitute a deadly weapon.
To support the charge of first degree assault, the State had to prove that, with intent to inflict great bodily harm, Mr. Barragan assaulted Mr. Garcia with a deadly weapon.
An item may be either a deadly weapon per se, such as a firearm or explosive, or a deadly weapon in fact, due to the manner of its use. State v. Shilling, 77 Wash.App. 166, 171, 889 P.2d 948 (1995). A pencil is not a deadly weapon per se. To justify a deadly weapon instruction, the State had to show that the pencil had both the inherent capacity to cause substantial bodily injury or death and that it was readily capable of causing such injury or death under the circumstances of its use. State v. Skenandore, 99 Wash.App. 494, 499, 994 P.2d 291 (2000); see also State v. Hutchinson, 135 Wash.2d 863, 885, 959 P.2d 1061 (1998) (an instruction must state the applicable law correctly and must be supported by the evidence), cert. denied, 525 U.S. 1157, 119 S.Ct. 1065, 143 L.Ed.2d 69 (1999); Benn, 120 Wash.2d at 654, 845 P.2d 289. The circumstances of a weapon‘s use include the intent and ability of the user, the degree of force, the part of the body to which it was applied, and the actual injuries that were inflicted. Shilling, 77 Wash.App. at 171-72, 889 P.2d 948.
Here, a reasonable trier of fact could have found that the pencil, as wielded by Mr. Barragan, constituted a deadly weapon. According to Mr. Garcia‘s testimony, Mr. Barragan swung the pointed end of the pencil— with force—at Mr. Garcia‘s left eye, and only missed Mr. Garcia‘s eye because the blow was deflected. Due to the force of the attack and the fact that Mr. Barragan accompanied it with the promise, “You‘re gonna die,” a reasonable person could infer that Mr. Barragan intended to commit great bodily harm or death with the pencil. Expert testimony is unnecessary to prove the obvious fact that a pencil can put out an eye. And the testimony of the officer who pulled out the embedded pencil—describing it as like pulling out a nail with pliers—indicates that while the actual injury was minor, it could have been serious if not deflected from the eye. On the whole, the evidence is substantial that the pencil constituted a deadly weapon under the circumstances of its use.
DID MR. BARRAGAN RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?
Mr. Barragan‘s final argument is that he received ineffective assistance of counsel. To successfully argue ineffectiveness, he must show that his counsel‘s performance was deficient and that prejudice resulted from the deficiency. Donald, 68 Wash.App. at 550, 844 P.2d 447. We strongly presume that counsel‘s conduct constituted sound trial strategy. Id. Mr. Barragan cites four general areas of inadequate representation. In each case, trial counsel exhibited sound, legitimate trial strategy.
• Failure to propose a limiting instruction. Although the trial court offered to give the jury a limiting instruction regarding the proper use of the
• Failure to submit a self-defense instruction. Mr. Barragan contends that because he testified at trial that the fight was started by Mr. Garcia, his counsel should have proposed a self-defense instruction. On the contrary, the evidence does not support a self-defense instruction. One cannot deny striking someone and then claim to have struck that person in self-defense. State v. Aleshire, 89 Wash.2d 67, 71, 568 P.2d 799 (1977). Mr. Barragan was not entitled to a self-defense instruction because he denied the underlying act that was the basis for all the assault counts. State v. Gogolin, 45 Wash.App. 640, 643-44, 727 P.2d 683 (1986).
• Failure to subpoena telephone records or witnesses from the cell. Mr. Garcia testified at trial that Mr. Barragan attacked him after Mr. Barragan talked to his girlfriend on the telephone. Mr. Barragan testified that he had been talking to his father on the telephone and Mr. Garcia started the fight because he wanted to use the telephone. Although Mr. Barragan assigns error to his counsel‘s failure to subpoena the telephone records, he argues only that the records would have shown who was telling the truth. He does not claim that the records would have proved him right. Most important, Mr. Barragan cannot show that establishing who started the fight would have had any impact on the ultimate charge of assault. Accordingly, he does not show that the result of the proceedings would have been different if his counsel had subpoenaed these records. State v. Lord, 117 Wash.2d 829, 883, 822 P.2d 177 (1991).
Mr. Barragan also contends his counsel should have subpoenaed the other inmates in his dorm. Failure to call a witness is rarely grounds to support ineffective assistance of counsel. State v. Robinson, 79 Wash.App. 386, 396, 902 P.2d 652 (1995). A prison officer testified at trial that he interviewed all the inmates who shared the dorm with Mr. Barragan and Mr. Garcia, and every man claimed to have slept through the incident. While it is possible that Mr. Barragan‘s counsel may have been more effective in eliciting information from these witnesses, Mr. Barragan neither makes this claim nor contends that these witnesses would have exonerated him. He fails to demonstrate that trial counsel‘s performance was unreasonable or that it prejudiced his defense.
Affirmed.
BROWN, A.C.J., and KATO, J., concur.