FILED MAY 16, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39256-2-III Respondent, ) ) v. ) ) J. JESUS GUTIERREZ-VALENCIA, ) UNPUBLISHED OPINION ) Appellant. )
COONEY, J. — Following a jury trial, Jesus Gutierrez-Valencia was convicted of
first degree kidnapping, second degree rape, second degree assault, unlawful
imprisonment, felony harassment, and interfering with reporting of domestic violence and
was later sentenced. On appeal Mr. Gutierrez-Valencia argues that he was afforded
ineffective assistance of counsel, that the trial court improperly allowed the jury to
consider inadmissible hearsay, and that the cumulative effect of the errors deprived him
of a fair trial.
We disagree and affirm. No. 39256-2-III State v. Gutierrez-Valencia
BACKGROUND
Vera1 and Mr. Gutierrez-Valencia were in a romantic relationship and sporadically
resided together between 2010 and 2019. In October 2018, at the directive of Vera, Mr.
Gutierrez-Valencia moved from her apartment. After the breakup, Mr. Gutierrez-
Valencia would daily park his truck near Vera’s residence. Vera would often allow Mr.
Gutierrez-Valencia to enter her apartment, and occasionally permitted him to stay the
night.
On January 9, 2019, Vera dropped her daughters off at school before returning to
her apartment. Upon her arrival, Vera found Mr. Gutierrez-Valencia waiting for her.
Vera allowed Mr. Gutierrez-Valencia to enter her apartment; thereafter, their accounts of
what occurred diverge.
VERA’S ACCOUNT
Vera testified that Mr. Gutierrez-Valencia claimed her sweater smelled of men’s
cologne and accused her of being with another man. Mr. Gutierrez-Valencia began
striking Vera in the face with a closed fist. Mr. Gutierrez-Valencia told Vera that he
wanted to have sex with her and, out of fear, she complied. Mr. Gutierrez-Valencia
pushed Vera into the bedroom where the two engaged in various sexual acts, including
intercourse.
1 To protect the privacy interests of the victim, we use a pseudonym throughout this opinion.
2 No. 39256-2-III State v. Gutierrez-Valencia
After about 20 minutes in the bedroom, the two went to the kitchen. Even though
Vera repeatedly denied she was seeing another man, Mr. Gutierrez-Valencia insisted that
Vera inform him who she was sleeping with. When the opportunity arose, Vera
attempted to escape through her front door. Mr. Gutierrez-Valencia grabbed Vera by her
hair and pulled her back inside the apartment. Vera resisted by clinging to the doorframe,
and screaming and yelling for help.
Vera eventually fell to the floor inside the apartment where Mr. Gutierrez-
Valencia repeatedly hit and kicked her. As Vera attempted to get up from the floor, she
fell and struck her head against the wall. Vera later noticed a dent in the wall in the area
where she had struck her head. During the altercation, Vera felt pain in her ear and
realized she was missing an earring.
As Vera resisted, Mr. Gutierrez-Valencia produced a pocketknife and held it to
Vera’s throat. According to Vera, “[H]e also said that see if someone’s going to like you
without an eye when I take your eye out.” Rep. of Proc. (RP) at 413. During the
altercation, Mr. Gutierrez-Valencia wrapped his hands around Vera’s neck, causing her to
feel as though she might faint. Throughout the altercation, Mr. Gutierrez-Valencia
repeatedly threatened to kill Vera.
When law enforcement officers arrived, Mr. Gutierrez-Valencia told Vera to
remain quiet and led her into the bathroom while holding his pocketknife to her throat.
Seeing that Mr. Gutierrez-Valencia appeared frightened by law enforcement’s presence,
3 No. 39256-2-III State v. Gutierrez-Valencia
Vera told him she would go outside and tell the police everything was fine. Mr.
Gutierrez-Valencia agreed and directed Vera to wash the blood from her face and to “put
something on.” RP at 414-15. Vera washed her face, applied foundation to her face, and
ran out the front the door.
MR. GUTIERREZ-VALENCIA’S ACCOUNT
Mr. Gutierrez-Valencia testified Vera offered him a shower while she prepared
breakfast. When Mr. Gutierrez-Valencia exited the shower, Vera inquired if he would
prefer to first eat or have sex. The two then had consensual sex before eating breakfast.
During breakfast, Vera informed Mr. Gutierrez-Valencia that her ex-boyfriend had
threatened to go to the children’s school and pick them up if she refused to go on a date
with him. Mr. Gutierrez-Valencia questioned why, if Vera was truly afraid of her ex-
boyfriend, she had not reported his conduct to the police. Vera lacked an explanation and
attempted to leave.
When Vera ran past Mr. Gutierrez-Valencia, he instinctively reached out and
grabbed her by the hair to stop her from screaming. While Mr. Gutierrez-Valencia
gripped Vera’s hair, she jerked around and hit her face on the door. Mr. Gutierrez-
Valencia suddenly experienced pain in his back and released Vera. After Mr. Gutierrez-
Valencia released Vera, she “kept throwing herself on the ground” and “hitting herself on
the door.” RP at 693.
4 No. 39256-2-III State v. Gutierrez-Valencia
When officers arrived, Mr. Gutierrez-Valencia instructed Vera to open the door.
Vera told Mr. Gutierrez-Valencia to “stay really quiet” and that the police would “leave
in a little bit.” RP at 696. However, the police then hit the door harder and louder. Vera
asked Mr. Gutierrez-Valencia to allow her to apply makeup to her face before answering
the door. Vera then opened the door and ran from the apartment, screaming that Mr.
Gutierrez-Valencia wanted to kill her.
The officers directed Mr. Gutierrez-Valencia to exit the apartment. Mr. Gutierrez-
Valencia complied and was placed under arrest. Officer Thomas Tovar, a certified
Spanish speaker with the Yakima Police Department, questioned Mr. Gutierrez-Valencia.
Mr. Gutierrez-Valencia told Officer Tovar that he and Vera had been arguing about her
ex-boyfriend. He told Officer Tovar that Vera allowed him into the apartment during the
day, but not at night. Mr. Gutierrez-Valencia explained that he pulled Vera by the hair
and she had hit her head on the wall. He told Officer Tovar that once he released Vera,
she began hitting herself. When asked if he had raped Vera, Mr. Gutierrez-Valencia
responded that all the sexual contact was consensual.
POSTINCIDENT
Following the altercation, Vera was transported to the hospital for a sexual assault
examination. Registered Nurse Amber Diosdado examined Vera and collected evidence.
During the examination, Vera informed Nurse Diosdado that she had been restrained,
threatened, hit, and strangled to the point she felt she was going to pass out. Vera also
5 No. 39256-2-III State v. Gutierrez-Valencia
told Nurse Diosdado that she felt stressed, threatened, and unable to walk away. Nurse
Diosdado noted that Vera had abrasions around her neck, bruising around her eyes, lower
jaw, and arms, and a cut on her lip. Vera complained of feeling nauseated and having
throat or neck pain.
At the Yakima Police Department, Officer Tovar photographed what appeared to
be blood on Mr. Gutierrez-Valencia’s hands and clothing. Officer Tovar discovered a
pocketknife in Mr. Gutierrez-Valencia’s possession. Detectives Curtis Oja and Lukas
Hinton took reference DNA samples from Mr. Gutierrez-Valencia for comparison with
the samples collected from Vera at the hospital.
TRIAL
Mr. Gutierrez-Valencia was charged with first degree kidnapping, second degree
rape, second degree assault, unlawful imprisonment, felony harassment, and interfering
with reporting of domestic violence.
At trial, Vera and Mr. Gutierrez-Valencia testified consistent with the above.
During Vera’s testimony the following exchange occurred:
[PROSECUTOR:] You said that he had already threatened to kill you? [VERA:] Yes. [PROSECUTOR:] What do you mean? [VERA:] Well, every time he would come he would be like, you know, if you leave me I’m going to kill you. We’re going to be together forever. And all of the abuse and everything, I was already scared that he was going to do it because what happened in January was not the first time he had hit me. There’s been lots of other times.
6 No. 39256-2-III State v. Gutierrez-Valencia
RP at 402 (emphasis added). Defense counsel objected to the testimony being
inadmissible evidence of prior bad acts. The court sustained the objection and
commented that the jury had already heard evidence of prior threats Mr. Gutierrez-
Valenica had made against Vera.
On cross-examination, defense counsel asked Vera if she had fallen during the
altercation. She responded in the affirmative. On redirect, the State asked Vera whether
any of her property had been damaged when she was knocked down. She responded that
the wall had been dented near the location where she had fallen. When asked where the
dent came from, Vera stated, “I don’t know if I hit my head there. I remember falling
and hitting my head.” RP at 438.
The jury heard testimony from Nurse Diosdado regarding her examination of Vera
and the statements Vera had made to her. Dr. Scott Chapman testified about Vera’s
injuries, noting she had a laceration to her lip, bruising on her arm, back, cheek bones,
and around her eyes. Dr. Chapman testified that Vera’s neck had significant bruising,
petechia, and tenderness. Dr. Chapman opined the petechia was the result of having her
neck “squeezed quite hard.” RP at 590. Dr. Chapman concluded his testimony by
opining about the potential injury that could be caused by a pocketknife.
Detective Oja testified regarding the biological samples collected from Mr.
Gutierrez-Valencia and the photographs taken of Vera’s injuries a few days after the
7 No. 39256-2-III State v. Gutierrez-Valencia
incident. Detective Oja also testified to the photographs taken at Vera’s apartment and
the damage to the wall.
The jury heard testimony from Ofelia Castillo-Guerrero. Ms. Castillo-Guerrero
testified that she had called law enforcement after seeing a woman come from Vera’s
residence “yell[ing] the word help, help, help many times.” RP at 442. She testified she
then saw her neighbor get pulled back into her apartment by her hair.
The jury heard testimony from Officers Chris Taylor and Harrison Sargent.
Officer Taylor testified, “So once we knocked on the door and received no answer, we
confirmed with Officer Tovar that the witness had said that she had seen a female being
pulled into that apartment.” RP at 377. Defense counsel objected to the testimony as
hearsay. The court sustained the objection. Officer Taylor continued, testifying that
Officer Tovar had “advised [of] the immediacy of the situation,” at which point Officer
Taylor and Officer Harrison Sargent decided to force entry. RP at 378. Officer Taylor
testified that, after ramming the door, a female exited the apartment and “immediately
said . . . help me. He’s going to kill me.” RP at 380.
After being escorted to his patrol car, Officer Taylor asked Vera what had
occurred. Defense counsel objected to the testimony as hearsay. The trial court
overruled the objection under the excited utterance exception to the hearsay rule. Officer
Taylor then answered, “She said the male, Jose Gutierrez, had threatened to kill her with
a knife.” RP at 381.
8 No. 39256-2-III State v. Gutierrez-Valencia
Officer Sargent testified:
At that point we learned from Officer Tovar that the witness told him that she had observed an argument between a male and a female out in the parking lot. The female was screaming and crying for help yelling for the police. And she had said that the male had forcibly pulled back⎯
RP at 460. Defense counsel objected to the testimony as hearsay. The trial court
sustained the objection. Officer Sargent testified that he and Officer Taylor had decided
to force entry into the apartment. Officer Sargent testified that a female exited the
apartment and that he “saw visible injuries on her face and what looked like what
appeared to be blood on her shirt. And she had mentioned something about he was going
to kill me.” RP at 462. Defense counsel objected to the testimony as hearsay. The trial
court sustained the objection.
Officer Sargent then testified that, after securing Mr. Gutierrez-Valencia, he went
inside the apartment with Vera and began the interview process. Officer Sargent
testified:
She seemed very scared, seemed like she was having trouble breathing, kind of gasping, still very worked up. Like I said, when I was up closer to her I could see she had a swollen lip, looked like maybe blood on her lip, looked like bruising on her face, maybe a bloody nose. And she was holding onto her left arm like I had said. And I also noticed some blood on her ear. When I asked her about it she said the earring had been ripped out during the altercation.
RP at 464-65. Defense counsel objected to the testimony as hearsay. The trial court
sustained the objection.
9 No. 39256-2-III State v. Gutierrez-Valencia
The jury found Mr. Gutierrez-Valencia guilty on all counts. He was later
sentenced to 264 months of confinement. Mr. Gutierrez-Valencia timely appeals.
ANALYSIS
Mr. Gutierrez-Valencia contends the trial court improperly allowed the jury to
consider inadmissible hearsay, that he was afforded ineffective assistance of counsel, and
that the cumulative effect of the errors deprived him of a fair trial.
HEARSAY
Mr. Gutierrez-Valencia argues that Officer Taylor’s testimony that Vera told him
Mr. Gutierrez-Valencia had threatened to kill her was inadmissible hearsay that should
have been excluded from evidence. Because Vera’s statement falls under the excited
utterance exception to the hearsay rule, we disagree.
We review evidentiary decisions for abuse of discretion. State v. Rodriquez, 187
Wn. App. 922, 939, 352 P.3d 200 (2015). “Abuse of discretion occurs when the trial
court’s ruling is manifestly unreasonable or based on untenable grounds or reasons.” Id.
Hearsay is a statement, other than one made by a declarant while testifying at the
trial, offered to prove the truth of the matter asserted. As a general rule, hearsay is
inadmissible. However, hearsay may be admissible if an exception applies.
An excited utterance is an exception to hearsay. An excited utterance is a
statement “relating to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.” ER 803(a)(2). A statement
10 No. 39256-2-III State v. Gutierrez-Valencia
qualifies as an excited utterance if a startling event occurred, the declarant made the
statement while under the stress or excitement of the event, and the statement relates to
the event. State v. Magers, 164 Wn.2d 174, 187-88, 189 P.3d 126 (2008). The first and
second element may be determined from circumstantial evidence, such as the declarant’s
behavior, appearance, condition, and the circumstances under which the statement is
made. State v. Young, 160 Wn.2d 799, 809-10, 161 P.3d 967 (2007). “The ‘key
determination is whether the statement was made while the declarant was still under the
influence of the event to the extent that [the] statement could not be the result of
fabrication, intervening actions, or the exercise of choice or judgment.” Id. at 807
(alteration in original) (quoting State v. Brown, 127 Wn.2d 749, 758, 903 P.2d 459
(1995)).
Here, the statement at issue is Officer Taylor’s testimony that “[s]he said the male,
Jose Gutierrez, had threatened to kill her with the knife.” RP at 381. Vera made the
statement within a minute of running from her apartment crying and yelling, “[H]elp
me. He’s going to kill me.” RP at 380. Vera was crying, shaking, and was extremely
emotional when she made the statement.
The close proximity in time between the altercation and the statement, the violent
nature of the confrontation, Vera’s extremely emotional presentation, and the statement
relating to the event, supports the trial court’s finding that Vera was under the stress of
11 No. 39256-2-III State v. Gutierrez-Valencia
the condition when she made the statement. The trial court did not abuse its discretion in
admitting the excited utterance.
Mr. Gutierrez-Valencia contends that because Officer Taylor had asked Vera what
happened, Vera’s statement was not an excited utterance. We disagree.
Excited utterances “can be prompted by a question which itself follows an exciting
event, such as asking a crime victim what happened.” State v. Owens, 128 Wn.2d 908,
913, 913 P.2d 366 (1996). However, “the statements must be ‘provoked by the
occurrence itself’ rather than by the subsequent questioning.” Id. (quoting State v. Rivas,
49 Wn. App. 677, 685, 746 P.2d 312 (1987)). When a victim is subject to extended
questioning that allows the victim to reflect on the consequences of the statement, the
statement may be the product of the questioning rather than provoked by the occurrence.
Mr. Gutierrez-Valencia directs us to State v. Ryan, 103 Wn.2d 165, 176, 691 P.2d
197 (1984), to support his argument that answers in response to questions call into
question the reliability of an excited utterance. Unlike the facts before us, in Ryan an
unknown amount of time passed between the act and the declarant’s reporting of it, and
the declarant lacked any observable indications of assault, pain, or distress. Id. at 177.
Further, our Supreme Court’s holding in Owens distinguishes between statements made
during an extended questioning versus those made in response to being asked what
happened. 128 Wn.2d at 913.
12 No. 39256-2-III State v. Gutierrez-Valencia
Officer Taylor asked Vera “what happened” within a minute of her exiting the
apartment. RP at 380. Based on Vera’s demeanor, the close proximity in time between
the confrontation and the statement, and the officer asking only a single question, Vera’s
response was likely provoked by the occurrence rather than a result of her reflecting on
the consequences of her response to Officer’s Taylor’s question.
The trial court did not abuse its discretion when it admitted Vera’s statement to
Officer Taylor.
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
Mr. Gutierrez-Valencia argues that his right to effective assistance of counsel
under the Sixth Amendment to the United States Constitution was violated because his
trial attorney failed to move for a mistrial “based on State witnesses’ repeated
introduction of inadmissible hearsay . . . and prior bad acts evidence.” Appellant’s
Opening Br. at 15-16. Mr. Gutierrez-Valencia further argues that his trial counsel was
deficient in failing to object when the State, on redirect examination, exceeded the scope
of cross-examination.
A criminal defendant has a constitutionally guaranteed right to effective assistance
of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez, 190
Wn.2d 104, 115, 410 P.3d 1117 (2018). Ineffective assistance of counsel claims are
issues of a constitutional magnitude and thus can be considered for the first time on
appeal. State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). We review ineffective
13 No. 39256-2-III State v. Gutierrez-Valencia
assistance of counsel claims de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d
310 (1995).
The burden is on the defendant alleging ineffective assistance to prove that
counsel’s actions were deficient. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d
1251 (1995). To succeed on an ineffective assistance of counsel claim, a defendant must
show their counsel’s actions fell below an objective standard of reasonableness based on
consideration of all circumstances, and if so, that there is a reasonable probability that,
but for counsel’s performance, the outcome of the proceeding would have been different.
Id. If either is not satisfied then the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862,
215 P.3d 177 (2009).
In reviewing the record, there is a strong presumption that counsel’s performance
was reasonable. McFarland, 127 Wn.2d at 335. We review the reasonableness of
counsel’s performance from counsel’s perspective at the time of the alleged error and in
light of all the circumstances. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct.
2574, 91 L. Ed. 2d 305 (1986). When counsel’s conduct can be characterized as a
legitimate trial strategy or tactic, then their performance is not deficient. Kyllo, 166
Wn.2d at 863.
If a defendant is capable of showing that defense counsel’s performance was
deficient, the defendant must also prove prejudice. State v. Thomas, 109 Wn.2d 222,
225-26, 743 P.2d 816 (1987). In order to show prejudice, the defendant must show that
14 No. 39256-2-III State v. Gutierrez-Valencia
the errors had more than a simple “conceivable effect on the outcome.” Strickland v.
Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice is
demonstrated by a showing that the proceedings would have been different but for
counsel’s deficient performance. McFarland, 127 Wn.2d at 337. On claims pertaining to
trial counsel’s failure to bring a motion, a defendant is prejudiced only if the defendant
can show that the motion likely would have been granted. State v. Emery, 174 Wn.2d
741, 754-55, 278 P.3d 653 (2012).
DEFENSE COUNSEL’S FAILURE TO MOVE FOR A MISTRIAL
Defense counsel objected to hearsay and prior bad acts. Although the court
sustained each objection, Mr. Gutierrez-Valencia contends the evidence was so improper
that the jury was tainted to the point that curative instructions would not have resolved
the resulting prejudice. Consequently, Mr. Gutierrez-Valencia argues defense counsel
was deficient in failing to move for a mistrial.
“[A] mistrial should be granted only when the defendant has been so prejudiced
that nothing short of a new trial can insure that [the] defendant will be tried fairly.” State
v. Gilcrest, 91 Wn.2d 603, 612, 590 P.2d 809 (1979). When deciding a motion for a
mistrial, the court must consider, “(1) the seriousness of the irregularity, (2) whether
the statement in question was cumulative of other evidence properly admitted, and
(3) whether the irregularity could be cured by an instruction.” State v. Escalona, 49 Wn.
App. 251, 254, 742 P.2d 190 (1987). “‘A mistrial should be granted only when ‘nothing
15 No. 39256-2-III State v. Gutierrez-Valencia
the trial court could have said or done would have remedied the harm done to the
defendant.’’” State v. Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983) (quoting
Gilcrest, 91 Wn.2d at 612).
The first three statements Mr. Gutierrez-Valencia challenges were cumulative of
other properly admitted testimony. The first statement—Officer Taylor’s testimony that
a witness saw “a female being pulled into that apartment”—was cumulative of Ms.
Castillo-Guerrero’s testimony that she “saw a hand pulling [Vera’s] hair.” RP at 377,
442. The second statement—Officer Sargent’s testimony that the female was “screaming
and crying for help yelling for the police” and that she was “forcibly pulled back”—is
cumulative of Ms. Castillo-Guerrero’s testimony that she heard a woman yelling “help,
help, help, many times,” and “saw a hand pulling [Vera’s] hair.” RP at 460, 442. The
third statement—Officer Sargent’s testimony that Vera “had mentioned something about
he was going to kill [her]”—is cumulative of Vera’s testimony that she “was . . . scared
he was going to kill me,” and that she “felt like I was going to die.” RP at 462, 410-11.
The fourth statement—Officer Sargent’s testimony that when he asked Vera about
the blood on her ear “she said the earring had been ripped out”—was cumulative of other
properly admitted evidence. RP at 465. Vera testified, “[W]hen he was hitting me I
remember my ear was hurt and I was missing one of my earrings.” RP at 423. The court
admitted photographs showing injuries to Vera’s right ear. Officer Taylor testified he
photographed droplets of blood on the floor. In close proximity to the droplets of blood,
16 No. 39256-2-III State v. Gutierrez-Valencia
Officer Taylor discovered an earring that appeared similar to the earring Vera was
wearing in her left ear.
Because these four statements are cumulative of other properly admitted evidence,
Mr. Gutierrez-Valencia is unable to show he has been so prejudiced that nothing short of
a new trial would have ensured a fair trial. He has further failed to establish that a motion
for a mistrial would have been granted had one been brought.
The fifth statement Mr. Gutierrez-Valencia challenges is Vera’s testimony that
“what happened in January was not the first time he had hit me. There’s been lots of
other times.” RP at 402. Mr. Gutierrez-Valencia argues that the holding in Escalona
controls.
In Escalona, Mr. Escalona was on trial for second degree assault with a deadly
weapon. At trial, the State’s sole witness to the alleged crime testified Mr. Escalona
“already has a record and had stabbed someone.” 49 Wn. App. at 253. On Mr.
Escalona’s motion, the testimony was struck but the court denied his motion for a
mistrial. Mr. Escalona was convicted and appealed. On appeal, the court focused on the
seriousness of the irregularity given “the paucity of credible evidence against Escalona.”
Id. at 255. The court recognized the offending witness’s testimony “was essentially the
State’s entire case, contained many inconsistencies” and “[t]here were no other witnesses
to the alleged crime except Escalona himself, whose testimony was not substantially
impeached.” Id.
17 No. 39256-2-III State v. Gutierrez-Valencia
Unlike the facts in Escalona, here, the State presented more than a paucity of
credible evidence. The State offered the testimony of Vera and photographic evidence of
her significant injuries. The State offered testimony from independent witnesses,
photographs that corroborated Vera’s account, a pocketknife found in Mr. Gutierrez-
Valencia’s possession, and scientific evidence related to biological fluids collected from
both Vera and Mr. Gutierrez-Valencia. Further, medical testimony was given by the
nurse who conducted a sexual assault examination of Vera, and Vera’s treating physician
opined on the signs of strangulation he found present on her neck.
Although Vera’s statement was improper, its utterance was harmless given the
substantial evidence that was properly admitted. Vera’s statement was also partially
cumulative of other evidence. In sustaining Mr. Gutierrez-Valencia’s objection, the court
noted, “We did have evidence, we heard the testimony from the witness that she was
hoping to gain time. She already spoke about that there had been threats to kill against
her. I think that going into the details of what happened before is more prejudicial.”
RP at 404.
Even if defense counsel was deficient in failing to move for a mistrial, Mr.
Gutierrez-Valencia is unable to show such a motion would have been granted. Further,
Mr. Gutierrez-Valencia has failed to establish that he was so prejudiced by the evidence
that nothing short of a new trial would have ensured a fair trial. Defense counsel was not
ineffective in failing to move for a mistrial.
18 No. 39256-2-III State v. Gutierrez-Valencia
DEFENSE COUNSEL’S FAILURE TO OBJECT
Mr. Gutierrez-Valencia contends his defense counsel was ineffective for failing to
object to the State, on redirect examination, questioning Vera about a dent in the wall of
her apartment.
Defense counsel’s actions will not be viewed as ineffective or deficient when their
conduct can be classified as a legitimate trial strategy or tactic. Kyllo, 166 Wn.2d at 863.
“A classic example of trial tactics is when and how an attorney makes the decision to
object during trial testimony.” State v. Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424
(2021) (citing State v. Madison, 53 Wn. App. 754, 762-63, 770 P.2d 662 (1989)). On
appeal, “[i]f a defendant [appellant] centers their claim on ineffective assistance of
counsel on their attorney’s failure to object, then ‘the defendant must show that the
objection would likely have succeeded.’” Id. (quoting State v. Crow, 8 Wn. App. 2d 480,
508, 438 P.3d 541 (2019)). “‘Only in egregious circumstances, on testimony central to
the State’s case, will the failure to object constitute incompetence of counsel justifying
reversal.’” Id. (quoting Crow, 8 Wn. App. 2d at 509).
Redirect examination is utilized “to clarify matters which have become confused
in the process of cross-examination, to rehabilitate a witness before the trier of fact, or to
rebut testimony elicited on cross-examination.” State v. Mack, 80 Wn.2d 19, 20-21, 490
P.2d 1303 (1971). As a general rule “when a party opens up a subject of inquiry on direct
or cross-examination, he contemplates that the rules will permit cross-examination or
19 No. 39256-2-III State v. Gutierrez-Valencia
redirect examination, as the case may be, within the scope of the examination in which
the subject matter was first introduced.” State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d
17 (1969).
Here, during direct examination, Vera testified that she reported to paramedics that
she “had a really bad pain in my head.” RP at 423. The State asked how she acquired the
pain and Vera replied, “I remember hitting the wall when I was trying to get up. I
remember I fell back and I hit the wall. I was trying to get back up when he was hitting
me.” RP at 424.
During cross-examination, defense counsel asked Vera whether she fell to the
floor during the physical confrontation. Vera responded in the affirmative. Defense
counsel never inquired whether any property was damaged or asked where Vera may
have hit her head.
On redirect examination the State asked Vera, without objection from the defense,
“When you were knocked down was there any damage to your property that happened?”
RP at 438. Vera replied that she remembered damage to the wall. She described the
damage as a big dent in the wall. The State then asked, without objection from the
defense, where the dent came from. Vera answered, “I don’t know if I hit my head there.
I remember falling and hitting my head.” Id.
Even if defense counsel should have objected to the State exceeding the scope of
cross-examination on redirect examination, Mr. Gutierrez-Valencia is unable to show an
20 No. 39256-2-III State v. Gutierrez-Valencia
objection would have been successful. The State’s questioning on redirect was likely
intended to rehabilitate Vera’s assertation that she hit her head. Moreover, the jury
previously heard Vera testify that that she had fallen, hit her head on the wall, and
suffered pain as a result. Vera’s testimony on redirect that she had a dent in the wall
added little to the State’s already strong evidence.
Mr. Gutierrez-Valencia has failed to establish that an objection to the State
exceeding the scope of cross-examination would have been successful. Accordingly, he
has failed to show the outcome of the trial would have been different had his trial
attorney objected. Defense counsel was not ineffective in failing to object.
CUMULATIVE ERRORS
Mr. Gutierrez-Valencia argues that the cumulative effect of the errors deprived
him of a fair trial. Having determined there was a lack of prejudicial errors, we disagree.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Cooney, J. WE CONCUR:
Lawrence-Berrey, C.J. Fearing, J.