IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal ) No. 75682-6-1 Restraint Petition of ) c;) CP ) ) ". *11 HAILU DAGNEW MANDEFERO, ) UNPUBLISHED OPINION -11 , 7 7.= ) -t)0 Petitioner. ) FILED: January 14, 2019 0-n-ri ) alon
VERELLEN, J. — Hailu Mandefero filed a personal restraint petitionl challenging the judgement and sentence imposed following his jury conviction for
first degree assault, second degree assault, and second degree unlawful
possession of a firearm. The State concedes that the trial court erred in failing to
consider Mandefero's youth as a mitigating factor supporting an exceptional
sentence downward, and that Mandefero is entitled to resentencing. We accept
the State's concession and remand to the superior court for resentencing
consistent with this opinion. We deny and dismiss Mandefero's other claims.2
1 We treat Mandefero's petition filed February 13, 2017 as superseding his original petition filed August 12, 2016. 2 As a general rule, personal restraint petitions must be filed within one year after the judgment and sentence becomes final, unless the petitioner can show that his judgment and sentence is facially invalid or was not entered by a court of competent jurisdiction, or an exception under RCW 10.73.100 applies. RCW 10.73.090. Mandefero's attorney filed this petition after the expiration of the one-year time limit but argues that the time limit should be equitably tolled due to the fraud and bad faith of the prior attorney Mandefero retained to file the petition. The State agrees that, under the circumstances, the time limit should be equitably No. 75682-6-1/2
FACTS
This case arose from a shooting at Ezell's Chicken in Skyway on the night
of May 1, 2012.3 At approximately 9:08 p.m., JaeBrione Gary was sitting in his car
parked in front of the restaurant when a truck pulled in behind him and multiple
shots were fired. Gary was hit several times. Two of the shots went through the
windows of the restaurant where Sandra Torres was working. At the scene of the
shooting, officers found two different types of fired shell casings, indicating that
more than one firearm was used.
Gary was initially reluctant to identify who shot him while being questioned
near a crowd of bystanders. However, in the ambulance on the way to the
hospital, Gary told Deputy Michael Glasgow that he was shot by "Hailu and some
niggers."4 Gary identified Hailu as a Blood associated with Money Gang.
Mandefero has "Money Gang" tattooed on the back of his hand.
Approximately two hours after Gary was shot, Kevin Hubbard arrived at
Valley Medical Center in Renton with two gunshot wounds. When officers arrived
at the hospital to investigate, they found Mandefero with Hubbard. Mandefero
gave inconsistent explanations about his whereabouts that evening, and officers
arrested him in connection with the shooting.
tolled. We accept the State's concession and treat Mandefero's petition as timely filed. 3 Unless otherwise noted, facts are taken from this court's opinion in Mandefero's direct appeal, State v. Mandefero, No. 69925-3-1 (Wash. Ct. App. June 1, 2015 (unpublished), http://www.courts.wa.gov/opinions/pdf/699253.pdf. 4 Report of Proceedings(RP)(Oct. 24, 2012) at 146.
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The day after the shooting, Gary told his mother that he believed Mandefero was
the shooter because he had a "beef' with Mandefero.5 Gary testified that
approximately two weeks prior to the shooting, he had ripped a gold chain
necklace off of Mandefero's neck in front of a group of people and bragged about it
to friends. Gary told his family that they should retaliate against either Mandefero
or Hubbard if they saw them.
Gary subsequently refused to talk to detectives, and the State sought a
material witness warrant. At trial, Gary recanted his earlier identification of
Mandefero. He testified that he initially told Detective Glasgow that "some Bloods
from the Central District" were responsible for the shooting and the shooter was
named "Little Rue."6 He testified that he subsequently told Detective Glasgow that
Mandefero was the shooter but only "[Necause I thought Key shot me, and I was
trying to keep Key out of trouble."7 Gary testified that he only saw Hubbard in the
passenger seat of the truck and did not see the driver.
The State presented evidence showing that Hubbard called Mandefero
twice approximately 30 to 45 minutes prior to the shooting. Cellphone tower
records after this time placed Mandefero and Hubbard together at or near
Mandefero's residence, north of Ezell's, and showed that they were moving
towards Ezell's immediately prior to the shooting and moving away from it
5 Id. at 80. 6 Id. at 50. 7 Id. at 52.
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afterwards. The State also presented a recording of a jail phone call Mandefero
made after he was arrested. The other speaker referenced the incident with the
chain necklace, stating, "Ain't nobody gonna snatch your chain ever again,
promise you that,"8 and Mandefero laughed.
A jury convicted Mandefero as charged. This court affirmed Mandefero's
convictions on direct appeal.
DISCUSSION
To successfully challenge a judgment and sentence by means of a personal
restraint petition, a petitioner must establish actual and substantial prejudice arising
from constitutional error or nonconstitutional error that inherently results in a
"complete miscarriage of justice."9
1. Evidence of Gang Affiliation
Mandefero argues that the admission of evidence of his gang affiliation was
unfairly prejudicial and deprived him of his right to a fair trial. This court reviews
evidentiary rulings for abuse of discretion.19 A trial court abuses its discretion
when its order is manifestly unreasonable or based on untenable grounds.11
8 Mandefero, No. 69925-3-1, slip op. at 6. 9 In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). 10 State v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009). Generally, a trial court's admission of evidence does not implicate constitutional issues. See State v. Gresham, 173 Wn.2d 405, 433, 269 P.3d 207(2012)(evidentiary errors under ER 404(b) are not constitutional errors). 11 State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217(2009)(quoting State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342(2008)).
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Prior to trial, the State moved to admit evidence of Mandefero's affiliation with
Money Gang. The State acknowledged that gang affiliation was not a motive for the
crime, stating,"We don't believe this was necessarily a gang-gang feud. This is
personal issues that these individuals have between each other."12 However, the
State claimed that Mandefero's gang affiliation was highly relevant to prove the
identity of the shooter.
And that is because the way the victim identified his assailant as being a Money Gang Member, and all of the evidence that we have from the defendant's own cellphone, and his own Facebook page about Money Gang, Money Gang Mob, MGM all over his Facebook page.
And it's basically, the probative purpose would be to explain that Mr. Gary and the defendant aren't in necessarily gangs that are at war with each other or at feud with each other, and the fact that this was a personal issue between these two, but they were certainly aware of whom the other one was, knew them by gang monikers, or at least the defendant knew Mr. Gary by gang moniker. So their familiarity sort of goes again to identification.[13]
Mandefero objected and moved to exclude any evidence of gang affiliation.
The trial court ruled:
The word gang doesn't belong in this case, except where the defendant himself allegedly has used it to talk about Money Gang Mob or where Mr. Gary used it to talk about who it is that shot him and his identification.
There really shouldn't be any explanation of the meaning of the term gang or what a gang detective's job is or how gang members are validated or any of that. None of that should be coming to the jury, even though I think it was very relevant for discovery here.
12 RP (Oct. 10, 2012) at 157. 13 RP (Oct. 11,2012) at 28, 30-31.
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What is relevant here is the associations. When you come right down to it, what is important in this case is whether Mr. Mandefero was friends with, shall we say, good friends with some of the other players in this case, and not good friends with the alleged victim here, Mr. Gary, for whatever reason. And I think the reason that is critical is because it goes so much to motive here. And it also goes to context for the parts of the phone calls that I have admitted.
1 also think it is fair to the extent that the defendant himself used the term Money Gang Mob, or Mr. Gary did, for Detective Gagliardi to make reference to those two facts. But not to other people's reference to themselves as Money Gang Mob members or what a clique is either. 1 really don't think that is pertinent in this case [14]
Three witnesses made reference to Mandefero's association with Money
Gang: Gary, Deputy Glasgow, and Deputy Joseph Gagliardi. Gary testified that he
told officers that Mandefero was with Money Gang "to throw the police off' and that
he "didn't know if he was with that shit or not."15 Gary testified that "it was a
coincidence that his name was actually Hailu and that he had had the shit tattooed
on him."16
Deputy Glasgow testified that Gary told him Mandefero was associated with
Money Gang. During Deputy Glasgow's testimony, the trial court instructed the jury:
Let me explain something, ladies and gentlemen. This is not evidence that anybody was involved with a gang in the sense of a
14 RP (Oct. 19, 2012) at 30-33.
15 RP (Oct. 24, 2012) at 54.
16 Id.
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criminal gang. It's only evidence about what words, okay, were used to explain what the association was, again, between the person that was talked about and the group.(171
Detective Gagliardi testified regarding Mandefero's Money Gang tattoo and
the fact that Mandefero frequently referred to himself as a member of Money Gang
or Money Gang Mob on his Facebook page. On cross-examination, Detective
Gagliardi acknowledged that there was no evidence that Money Gang was a criminal
street gang as defined by RCW 9.94A.030(12). And the parties entered a stipulation
that was read to the jury: "Hailu Mandefero is not affiliated with any street gang
called the "Bloods" or any similar name. He is not considered to be a "Blood."18
Evidence is relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence."18 But relevant evidence shall
be excluded "if its probative value is substantially outweighed by the danger of
unfair prejudice."2° Because of the danger that a defendant will be unfairly
prejudiced, evidence of gang affiliation is admissible only if there is "a nexus
between the crime and gang membership."21
17 Id. at 148-49. The trial court later clarified for the record that it "put finger quotes around the word gang" and used a "skeptical intonation" when stating the word "gang." Id. at 150. 18 RP (Nov. 1,2012) at 72.
19 ER 401. 29 ER 403. 21 State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009).
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Here, the evidence was relevant. Gary identified the shooter as "Hailu" and
a member of Money Gang. The fact that Mandefero was indisputably associated
with a group called Money Gang both corroborated Gary's original identification
and cast doubt on the credibility of Gary's recantation at trial.
Citing State v. Asaeli,22 Mandefero argues that the trial court erred in
permitting testimony about the Money Gang affiliation because there was no
evidence that Money Gang was actually a gang. In Asaeli, the court held gang
evidence to be prejudicial because the State argued a murder was gang-related
but presented insufficient evidence that the gang existed or that the defendants
were members of the gang. Here, the State did not argue that the crimes were
gang-related, and it is immaterial whether Money Gang was actually a gang.
Instead, Mandefero's self-identification as a member of a group he called Money
Gang was relevant to Gary's initial identification of the shooter. The trial court's
well-reasoned rulings on the admission of evidence regarding Money Gang were
not an abuse of discretion.23
22 150 Wn. App. 543, 208 P.3d 1136 (2009). 23 To support his claim of error, Mandefero attaches a news article from the Seattle Times dated November 15, 2012 regarding the verdict in Mandefero's trial. The article includes a quote from the presiding juror, who stated "the case was 'a sad commentary' on the gang life." Mandefero alleges that the article proves that he was prejudiced by the admission of gang-related evidence. But a juror's post- verdict statement regarding matters which inhere in the verdict cannot be used to attack the jury's verdict. State v. Nq, 110 Wn.2d 32, 44, 750 P.2d 632(1988).
8 No. 75682-6-1/9
2. Admission of Mandefero's Statements
Mandefero next argues that the trial court erred in admitting statements he
made to Deputy Jeff Barden and Deputy Chris Johnson the night of the incident
before he was given Miranda24 warnings.
At the CrR 3.5 hearing, Deputy Barden testified that he was dispatched to
Valley Medical Center to investigate the identity of a shooting victim. When he
arrived at approximately 12:20 a.m., Deputy Barden saw Mandefero leave Hubbard's
treatment room and walk towards the hospital exit. He approached Mandefero and
asked if he could speak with him. Mandefero said that "he had no problem speaking
with" Deputy Barden.25 Deputy Barden asked "in generalistic terms" why Mandefero
was at the hospita1.26 Mandefero told Deputy Barden that Hubbard called him and
told him he was going to the hospital. Deputy Barden noted that Mandefero
appeared nervous and changed his account of the evening several times. For
example, Mandefero first stated that he did not know why Hubbard was at the
hospital but subsequently stated Hubbard told him he had been shot. Mandefero
said that Hubbard asked him to pick him up at a gas station on Renton Avenue
South but later stated that he picked Hubbard up at a restaurant in Kent. Mandefero
also told Deputy Barden that his sister drove to pick up Hubbard but later said that
Hubbard's girlfriend drove.
24 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 25 RP (Oct. 10, 2012) at 29. 26 Id. at 30.
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After the conversation, Mandefero asked if he was free to leave. Deputy
Barden told Mandefero he could not leave because detectives wanted to speak with
him and directed Mandefero to wait in a nearby lounge. Deputy Barden did not read
Miranda warnings to Mandefero at any time during their contact.
Detective James Belford arrived at the hospital at around 1:15 a.m.
Mandefero told Detective Belford that "his father and an attorney told [him]to never
talk to the police."27 Mandefero told Detective Belford "that he did not know what
happened and that he came to the hospital to visit his friend."28 Mandefero refused
to answer any questions. Detective Belford told Mandefero "to remain there and wait
there[, llet me go talk to his friend, and !would come back and talk to him again."28
Detective Chris Johnson arrived at the hospital around 2:05 a.m. Detective
Johnson turned on a recorder and told Mandefero he "wanted to talk to him about
what happened and that [he] would like to record it."3° Mandefero refused to give a
recorded statement. Detective Johnson read Mandefero his Miranda rights and
turned the recorder off.
The trial court issued written findings of fact and conclusions of law. The trial
court concluded that Mandefero's "first contact with law enforcement on the night of
May 1, 2012 with Deputy Barden was not a custodial situation" because the
27 1d. at 70. 28 Id. 29 Id. at 71-72. 3° Id. at 85.
10 No. 75682-6-1/11
conversation "could be considered a consensual conversation or a Terry31 stop."32
The trial court concluded that "[a]ll of the statements made by [Mandefero] during the
initial contact with Deputy Barden are admissible in the State's case in chief, as they
were not the result of custodial interrogation."33 However, the trial court determined
that once the conversation with Deputy Barden ended and Mandefero was directed
to the lounge, Mandefero was in custody for the purposes of Miranda. The trial court
concluded that any statements Mandefero made to Detective Belford and Detective
Johnson were inadmissible.
We review findings of fact entered after a CrR 3.5 hearing for substantial
evidence.34 We review de novo whether the trial court's conclusions of law are
supported by its findings of fact.35 "Unchallenged findings of fact entered following
a suppression hearing are verities on appeal."36
Compliance with Miranda is required when a defendant's statement is the
product of custodial interrogation. A suspect is in custody once his or her freedom
of action is curtailed to a degree associated with formal arrest.37 Custody is
determined by looking at whether a reasonable person in the suspect's position
31 Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). 32 Clerk's Papers(CP)at 155(Court of Appeals No. 699253-1). 33 Id. 34 State v. Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250 (2008). 35 State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993(2005). 36 Id. 37 Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
11 No. 75682-6-1/12
would have felt his or her freedom was curtailed to a degree associated with
formal arrest.38 But an officer may briefly detain an individual "'if necessary to
maintain the status quo while obtaining more information."38 Such a "temporary
and relatively nonthreatening detention" does not constitute custody for the
purposes of Miranda."
Mandefero does not specifically challenge any of the trial court's findings of
fact or conclusions of law. To the extent that Mandefero challenges the trial court's
findings that he was not in custody while speaking to Deputy Barden, Mandefero fails
to show that those findings were not supported by substantial evidence. Mandefero
spoke with Deputy Barden voluntarily and stated he had no problem doing so. The
conversation took place near the exit doors to the hospital. Deputy Barden spoke in
a conversational manner and did not isolate or restrain Mandefero. And Mandefero
testified at the CrR 3.5 hearing that he believed if he answered Deputy Barden's
questions he would be free to leave. The general conversation Mandefero had with
Deputy Barden about his whereabouts could not have led a reasonable person to
believe that he was in custody.
38 State v. Daniels, 160 Wn.2d 256, 266, 156 P.3d 905 (2007)(quoting Miranda, 384 U.S. at 440). 39 State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513(2002)(quoting State v. Miller, 91 Wn. App. 181, 184, 955 P.2d 810, 961 P.2d 973(1998)) 49 Howes v. Fields, 565 U.S. 499, 510, 1328. Ct. 1181, 182 L. Ed. 2d 17 (2012)(quoting Maryland v. Shatzer, 559 U.S. 98, 113, 130 S. Ct. 1213, 175 L. Ed. 2d 2045 (2010)).
12 No. 75682-6-1/13
Moreover, Mandefero fails to demonstrate actual and substantial prejudice
resulting from the admission of his statements to Deputy Barden. "'[I]n order to
prevail in a collateral attack, a petitioner must show that more likely than not he
was prejudiced by the error."'" As this court concluded in Mandefero's direct
appeal, there was significant evidence, both direct and circumstantial, implicating
Mandefero. Mandefero had motive to shoot Gary, cell tower evidence showed that
he and Hubbard were together near the scene of the crime at the time of the
shooting, and Gary identified Mandefero as the shooter. Mandefero does not
demonstrate that he would more likely than not have been acquitted absent
Deputy Barden's testimony regarding his inconsistent statements.
3. Ineffective Assistance of Counsel
Mandefero contends that he received ineffective assistance of counsel.
To establish ineffective assistance of counsel, a petitioner must demonstrate both
(1) that his attorney's representation was deficient, i.e., that it fell below an
objective standard of reasonableness, and (2) resulting prejudice, i.e., a
reasonable probability that, but for counsel's deficient performance, the result of
the proceeding would have been different.42 "If either part of the test is not
41In re Pers. Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498 (2013)(quoting In re Pers. Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982)). 42 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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satisfied, the inquiry need go no further."43 There is a strong presumption that a
defendant received effective representation."
Mandefero asserts, in conclusory fashion, that trial counsel was ineffective for
failing to call Hubbard to testify, retain an "eyewitness expert," and call Gary's mother
to cross-examine her as to Gary's identification of Mandefero as the shooter. But a
personal restraint petition must set out both the facts underlying the claim and the
evidence available to support the factual assertions.45 Unsupported assertions or
vague allegations are not sufficient.46 Mandefero does not identify what any of
these witnesses would have testified, nor does he provide any information
regarding efforts that trial counsel made or did not make to investigate or procure
these witnesses. Mandefero does not meet his burden to demonstrate that trial
counsel was ineffective.
4. Sufficiency of the Evidence
Mandefero challenges the sufficiency of the evidence supporting all three
convictions.47 He contends that the evidence identifying him as the shooter was
43 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). 44 McFarland, 127 Wn.2d at 335. 45 In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). 46 id. (competent, admissible evidence, such as affidavits, required to establish facts entitling petitioner to relief). 47 As part of this challenge, Mandefero argues that the trial court erred in allowing both Gary and Deputy Glasgow to testify that Gary identified Mandefero as the shooter to his mother while in the hospital. He argues that the testimony was inadmissible hearsay. But under ER 801(d)(1)(iii), out-of-court statements identifying a person are not hearsay if the declarant testifies at trial and is subject to cross-examination.
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speculative at best. But this same claim was raised and rejected in Mandefero's
direct appea1.48 A personal restraint petition may not relitigate an issue that was
raised and rejected on direct appeal unless relitigation is required in the interests
of justice." "[R]eexamination of an issue decided in a prior appeal is limited to
cases where an intervening change in the law or some other circumstance justified
the failure to raise a crucial argument on appeal."5°
Mandefero asserts that newly discovered evidence entitles him to relitigate
this claim. He attaches to his petition a copy of Hubbard's January 17, 2014 guilty
plea to second degree assault for his role in the shooting of Gary. But the State's
theory at trial was that Mandefero and Hubbard acted together in shooting Gary.
Hubbard's guilty plea was consistent with the evidence presented at trial and does
not serve as a basis for relitigating Mandefero's sufficiency claim.
5. Sentencing
Mandefero argues that the trial court erred in failing to consider his request
for an exceptional sentence downward based on his youth, concluding that it
lacked the authority to do so. The State concedes that Mandefero was entitled to
have his request considered, and that he is entitled to resentencing. Accordingly,
we remand for resentencing, directing the trial court to consider Mandefero's
request for an exceptional sentence downward based on his youth.
48 Mandefero, No. 69925-3-1, slip. op. at 3. 49 In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872(2013) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1(2004)). 50 In re Pers. Restraint of Mines, 190 Wn. App. 554, 570, 364 P.3d 121 (2015)(citing id.).
15 No. 75682-6-1/16
We vacate Mandefero's sentence and remand for resentencing consistent with this
opinion, but dismiss his other claims.
WE CONCUR:
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