Personal Restraint Petition Of Jose Antonio Nava

• Court: Court of Appeals of Washington
• Decided: August 19, 2024
• Docket: 84856-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

In the Matter of the Personal Restraint No. 84856-9-I of

JOSE ANTONIO NAVA, UNPUBLISHED OPINION

Petitioner.

BOWMAN, J. — Jose Antonio Nava seeks relief through this personal

restraint petition (PRP) from his jury conviction for first degree murder. He

argues he is entitled to relief because his trial attorney provided ineffective

assistance, the State suppressed evidence in violation of Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), newly discovered evidence

warrants a new trial, and the cumulative effect of these errors deprived him of his

rights to due process and a fair trial. We disagree and deny his petition.

FACTS1

On February 19, 2018, Tye Burley won $2,000 at a casino and rented a

hotel room, which he shared with his friend and drug supplier, Jeremy Dailey.

Dailey planned to steal Burley’s money and called on his friends, Jared Evans,

Nava, and Nava’s brother, Jorge Nava Martinez Jr., to help.

1 We repeat the relevant facts set forth in our prior opinion only as necessary for the issues we address in this PRP. See State v. Nava, No. 80948-2-I (Wash. Ct. App. June 14, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/809482.pdf. No. 84856-9-I/2

Nava Martinez told the others he would get a “cuete”2 for the robbery. The

men knew Burley was taking his girlfriend, Kristin Schram, to a tattoo shop on

February 20, 2018, and they planned to mace and rob Burley as he left the shop.

The men drove a white Dodge Durango belonging to Nava’s girlfriend, Tiffany

Beston, to the tattoo shop. But they aborted the plan when a police car drove by.

They instead went to Burley’s hotel to carry out the robbery.

The four men sat in the Durango and smoked methamphetamine, awaiting

Burley’s return to the hotel. When Burley and Schram returned, Nava and Nava

Martinez got out of the car and confronted them. One of the men pointed a gun

at Schram, and she ran away. Nava and Nava Martinez then beat Burley to the

ground and robbed him, and Nava Martinez shot Burley in the head. Nava, Nava

Martinez, Dailey, and Evans fled the scene, split the money, and abandoned the

car.

Burley died from his injuries two days later. Everett police officers found

the abandoned Durango about a week after the murder. The police never

recovered the gun used to kill Burley. But the medical examiner removed a bullet

jacket and two lead fragments from Burley’s head. Forensic testing showed a

.38 caliber handgun fired the bullet. Nava and Nava Martinez fled to California,

where police later identified and arrested them.

The State charged Nava, Nava Martinez, Dailey, and Evans with first

degree murder with firearm enhancements. Dailey and Evans pleaded guilty to

reduced charges in exchange for “truthful” testimony against Nava and Nava

2 “Cuete” can be slang for “gun” in Spanish.

2 No. 84856-9-I/3

Martinez. At trial, the State called Nava’s girlfriend, Beston, who testified she

owned a Beretta Pico .380 caliber handgun, which she kept in a lockbox in her

home. Beston said Nava knew of the gun and had access to it. She discovered

that her gun was missing several months after Burley was shot.

Washington State Patrol Crime Laboratory (WSPCL) forensic scientist

Dijana Coric testified about the bullet jacket recovered from Burley. Coric

testified that she entered its characteristics into a Federal Bureau of Investigation

(FBI) database, which returned a list of guns that could fire a bullet with the same

characteristics. A Beretta Pico .380 was not on the list. Even so, Coric testified

that the list generated through the FBI database was not “all-inclusive,” so she

could not entirely rule out Beston’s gun as the source of the bullet jacket without

seeing the gun. But on cross-examination, Coric agreed that it was highly

unlikely that a Beretta Pico .380 fired the bullet jacket.

Dailey testified against Nava at trial. Dailey testified that he was

threatened while in jail to write two letters claiming Nava Martinez and Nava did

not kill Burley, and that the brothers were in the back seat of the Durango during

the robbery. He sent one letter to “some address,” and he was supposed to send

the other to Nava Martinez’s attorney. But Dailey did not send the second letter

because he was told to make a phone call to Nava’s mother instead, proclaiming

the brothers’ innocence.

A jury convicted Nava of first degree murder while armed with a firearm,

and the court sentenced him to 331 months. Nava appealed the conviction,

alleging that 1) the State improperly minimized its burden of proof during jury

3 No. 84856-9-I/4

selection, 2) the trial court erred in denying Nava’s motions for a mistrial after

witnesses twice violated a pretrial order, 3) the prosecutor committed misconduct

by vouching for two witnesses, 4) the trial court erred in admitting certain

evidence, 5) the cumulation of these errors resulted in a denial of a fair trial, and

6) the court improperly imposed a DNA3 fee.4 We rejected Nava’s claims,

affirming his conviction.5 But we remanded to the trial court to strike the DNA

fee.6

Nava then timely filed this PRP.

ANALYSIS

Nava argues he is entitled to relief because he had ineffective assistance

of counsel, the State suppressed exculpatory evidence in violation of Brady,

newly discovered evidence warrants a new trial, and the cumulative effect of

these errors deprived him of his rights to due process and a fair trial.7

Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173

Wn.2d 123, 132, 267 P.3d 324 (2011). A petitioner may seek relief if they are

under unlawful restraint. RAP 16.4(a). To succeed on a PRP, a petitioner must

show that either 1) they were “actually and substantially prejudiced by

constitutional error,” or 2) their “trial suffered from a fundamental defect of a

3 Deoxyribonucleic acid. 4 Nava, No. 80948-2-I, slip op. at 5. 5 Id. at 16. 6 Id. 7 On July 15, 2024, Nava moved to adopt the arguments of co-petitioner Nava Martinez’s brief under RAP 10.1(g). We deny the motion as untimely under RAP 10.2(a).

4 No. 84856-9-I/5

nonconstitutional nature that inherently resulted in a complete miscarriage of

justice.” In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450

(2013).

1. Ineffective Assistance of Counsel

Nava claims he received ineffective assistance of counsel because his

trial attorney failed “to call a forensic scientist to rebut the State’s testimony” that

a Beretta Pico .380 could not be excluded as the gun that fired the bullet jacket.

We disagree.

An ineffective assistance of counsel claim presents mixed questions of law

and fact that we review de novo. State v. K.A.B., 14 Wn. App. 2d 677, 707, 475

P.3d 216 (2020). The Sixth Amendment to the United States Constitution and

article I, section 22 of the Washington Constitution guarantee effective

assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011).

There is a strong presumption that counsel’s representation was reasonable.

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To succeed on a claim

of ineffective assistance of counsel, the defendant must show 1) that “counsel’s

performance was deficient” and 2) that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). If a petitioner fails to satisfy either of the Strickland prongs,

we need not address the other. Id. at 697.

To determine whether deficient performance resulted in prejudice, we

apply the same standard in a PRP as we do on appeal. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 845-47, 280 P.3d 1102 (2012). That is, a successful

5 No. 84856-9-I/6

ineffective assistance of counsel claim satisfies the PRP’s actual prejudice

requirement. Id. at 846-47. To show prejudice, a petitioner must establish there

is a reasonable probability that “the result of the proceeding would have been

different” absent counsel’s deficient performance. Id. at 843. The “likelihood of a

different result must be substantial, not just conceivable.” Harrington v. Richter,

562 U.S. 86, 111-12, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

Here, we need not reach Nava’s claim of deficient performance because

he fails to show prejudice. Nava argues counsel’s failure to call an expert

deprived him of “the ability to develop a theory that the firearm used in the

incident was not the Beretta Pico .380 that belonged to Beston.” But this was

precisely the defense Nava’s attorney developed at trial.

At trial, defense counsel cross-examined WSPCL forensic scientist Coric8

as to the source of the bullet jacket, prompting her to concede that it was highly

unlikely Beston’s gun fired it. Defense counsel also cross-examined Beston

about when she noticed her gun was missing to cast doubt on the State’s

suggestion that Nava Martinez used her gun to kill Burley.9 And in closing

argument, defense counsel highlighted that Beston’s gun “was not the weapon

8 The State tried Nava and Nava Martinez jointly. Nava Martinez’s attorney conducted the cross-examination of Coric. Nava does not argue his attorney was ineffective for failing to separately cross-examine Coric. He challenges only his attorney’s failure to call an expert witness. 9 Beston testified that she had just “recently” discovered her gun was missing when officers came to her house looking for it, which was a few months before trial.

6 No. 84856-9-I/7

that caused . . . Burley’s death,” and that her gun was different from “the kind of

gun that was described to” the jury as the murder weapon.10

Nonetheless, even if Nava’s attorney called a witness to testify that

Beston’s gun could not have been used to kill Burley, Nava fails to show that the

testimony would have affected the outcome of his trial. Ample evidence shows

that Nava and Nava Martinez robbed Burley and that Nava Martinez shot Burley

in the head with a .38 caliber firearm.

Dailey testified that Nava Martinez told him he planned to get a gun for the

robbery. Dailey said that while waiting at the hotel to rob Burley, Nava Martinez

was in the driver’s seat of the car and Nava was in the front passenger seat.

When Burley arrived, Nava and Nava Martinez got out of the car and ran over to

him. Dailey testified that he then heard a gunshot, and the brothers ran back to

the Durango. Nava Martinez was holding a gun and yelling that he shot Burley in

the head.

Evans corroborated Dailey’s testimony. He similarly testified that when

Burley got to the hotel, Nava and Nava Martinez “went and robbed him.” He said

that he could not see the robbery but heard Burley scream “ ‘help,’ ” and then he

heard a gunshot. Evans testified that Nava and Nava Martinez then ran back

into the truck and Nava Martinez said, “ ‘I shot him in the head.’ ” Investigators

later found Nava’s DNA on the gearshift and Nava Martinez’s DNA on the

steering wheel of the Dodge Durango.

10 Schram described the gun as silver with “a pretty long barrel.” Beston’s Beretta Pico .380 is a small, semi-automatic pistol intended for concealed carry, with a short 2.7-inch barrel.

7 No. 84856-9-I/8

The evidence also showed that Nava fled after the shooting. Beston

testified that when Nava returned home after the shooting, he was “frantic” and

told her they had to leave. She said they spent the next several nights in hotels

in Mount Vernon and Bellingham. Beston testified that they then spent a few

nights at an acquaintance’s house, when Nava suddenly left without explanation.

The police later arrested Nava and Nava Martinez in California.

Because Nava can show no prejudice from his allegations of deficient

performance, we reject his claim of ineffective assistance of counsel.11

2. Newly Discovered Evidence

Nava claims that the letters Dailey wrote proclaiming the innocence of

Nava and Nava Martinez amount to newly discovered evidence warranting a new

trial.12 We disagree.

RAP 16.4(c)(3) provides relief for a petitioner if “[m]aterial facts exist which

have not been previously presented and heard, which in the interest of justice

require vacation of the conviction, sentence, or other order.” We review a claim

under RAP 16.4(c)(3) using the same test as a motion for new trial under CrR

7.5. In re Pers. Restraint of Fero, 190 Wn.2d 1, 15, 409 P.3d 214 (2018). A

11 Nava also argues the State violated Brady, 373 U.S. at 87, by failing to disclose a photograph of the bullet jacket showing its cannelures, or grooves, and that the photograph amounts to newly discovered evidence warranting a retrial. According to Nava, the evidence was critical to his ability to argue that Beston’s gun was not used to kill Burley. We note that the bullet jacket itself was both disclosed to Nava and admitted as evidence. Regardless, even if Nava could show a Brady violation or that the photographs were newly discovered evidence, he fails to show prejudice for the same reasons discussed above. 12 In his PRP, Nava does not specifically identify newly discovered evidence as the theory supporting his argument. But the State treats his argument as one of newly discovered evidence, and Nava adopts the same basis for his argument on reply. As a result, we analyze his claim under the rubric of newly discovered evidence.

8 No. 84856-9-I/9

petitioner is entitled to a new trial based on newly discovered evidence if he can

show that

(1) the results will probably change if a new trial is granted; (2) the evidence was discovered since trial; (3) the evidence could not have been discovered before trial by exercising due diligence; (4) the evidence is material, and (5) the evidence is not merely cumulative or impeaching.

In re Pers. Restraint of Delmarter, 124 Wn. App. 154, 162, 101 P.3d 111 (2004).

If any of these factors are missing, we should deny the request for a new trial.

State v. Roche, 114 Wn. App. 424, 435, 59 P.3d 682 (2002).

Nava argues that neither he nor his investigator were “aware of [Dailey’s]

letters” before trial, and that he “did not have the opportunity to discover the[ir]

existence.” His claim is unconvincing.

Nava knew or should have known about the letters prior to or during the

trial. The court spent significant time discussing the admissibility of the phone

call Dailey made to Nava’s mother and the scope of the direct and cross-

examination of Dailey on this topic. In these discussions, the parties mentioned

the letters several times. And Dailey testified about the letters. He said that he

wrote “a letter stating that [Nava Martinez] and [Nava] didn’t have anything to do

with [the shooting].” But Dailey testified that the letter was not true and that he

only wrote it to avoid beatings in prison.

Still, even if Nava could show the letters amount to newly discovered

evidence, he cannot show prejudice. Again, when seeking postconviction relief,

a petitioner must demonstrate that a nonconstitutional error resulted in a

complete miscarriage of justice. In re Pers. Restraint of Swagerty, 186 Wn.2d

9 No. 84856-9-I/10

801, 807, 383 P.3d 454 (2016). Here, the letters themselves were not admitted

at trial. But Dailey testified about the phone call between him and Nava’s

mother, during which he told her that the brothers were not involved in the

murder. And the letters contained the same information. As a result, Nava fails

to show that his failure to discover the letters before trial resulted in a complete

miscarriage of justice.13

Nava fails to show he received ineffective assistance of counsel, the State

violated Brady, newly discovered evidence warrants a new trial, or cumulative

errors deprived him of a fair trial. As a result, we deny his petition.

WE CONCUR:

13 Nava claims that the cumulative effect of the trial errors, when taken together, “deprived him of his rights to due process and a fair trial.” See State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006) (“Cumulative error may warrant reversal, even if each error standing alone would otherwise be considered harmless.”). Because Nava identifies no trial error, the cumulative error doctrine does not apply.