State of Washington v. Johnathon Michal T. Flores

Court of Appeals of Washington

State of Washington v. Johnathon Michal T. Flores

386 P.3d 298, 197 Wash. App. 1

CourtCourt of Appeals of Washington

DecidedDecember 6, 2016

Docket32507-5-III

StatusPublished

Cited by3 cases

This text of 386 P.3d 298 (State of Washington v. Johnathon Michal T. Flores) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State of Washington v. Johnathon Michal T. Flores, 386 P.3d 298, 197 Wash. App. 1 (Wash. Ct. App. 2016).

Pincite

Opinion

Korsmo, J.

¶1 Johnathon Flores appeals his convictions for first degree assault and first degree robbery, primarily arguing that he was constructively denied counsel because his appointed attorney did not have the requisite experience under the Standards for Indigent Defense (SID). We conclude in the published portion of this opinion that a violation of the SID is evidence of deficient performance to be considered in assessing an ineffective assistance of counsel challenge and does not constitute a denial of counsel. In the unpublished portion, we conclude that trial counsel’s performance, while deficient, was not ineffective. The convictions are affirmed.

*4 FACTS

¶2 Mr. Flores, his half brother Jesse Flores, and his half sister Faith Flores confronted Jeffrey Weitman in the home of Sandra McCorkle in Omak on May 16, 2013. 1 Weitman, age 34, had been dating McCorkle, age 63, for a decade. The previous day, Faith Flores had gotten into an altercation with Weitman at the residence of her friend McCorkle over the belief that Weitman was contacting another woman via Facebook. Faith telephoned her brother Johnathon in Spokane, and had the two men speak. Johnathon told Weitman, a former high school classmate, that he would be coming to talk to him.

¶3 Despite being restricted to staying in Spokane County by the terms of an earlier judgment and sentence, Johnathon traveled to Omak to assist in dealing with Weitman. On the 16th, Weitman called McCorkle and received permission to borrow some lawn equipment. He drove to the house, entered it, and proceeded to the kitchen. There he was confronted by the three Flores siblings.

¶4 Jesse Flores was armed with a knife, which he displayed at some point early in the encounter. The three Flores family members demanded that Weitman empty his pockets in order to discover and return any items stolen from McCorkle. Weitman put his wallet, $80, keys, and an MP3 (audio file format) player in a basket near the door. Faith Flores then escorted Ms. McCorkle to another room. At some point thereafter, an altercation took place and Jesse Flores stabbed Weitman. The three Flores siblings fled, splitting up briefly before meeting together later. They took the $80; Weitman’s keys ended up in the freezer and his cell phone on the floor by the door.

*5 ¶5 All three were eventually charged in Okanogan County Superior Court with varying robbery and assault charges. Jesse Flores pleaded guilty, while Faith Flores reached a plea deal that required her to testify against her brother. Johnathon, charged with first degree robbery and first degree assault, both alleged to have been committed with a deadly weapon, elected to take his case to trial. The trial court appointed the Okanogan County contract indigent defender to represent Johnathon Flores. The law office of MacDougall & Prince held the indigent defender contract for the county. Clerk’s Papers (CP) at 156. That office soon thereafter assigned Emma Paulsen to represent Johnathon Flores. She filed a notice of appearance dated June 6, 2013. CP at 155.

¶6 Ms. Paulsen represented Johnathon Flores until withdrawing five months later. When Ms. Paulsen withdrew, Mubarak Raheem substituted as counsel for Johnathon Flores. CP at 154. The contact address Mr. Raheem filed with the court was different than that of the Mac-Dougall & Prince firm. CP at 154, 156. During the litigation, Mr. Raheem filed documents with the court on pleading paper bearing his office’s name and address, as well as on pleading paper from the MacDougall & Prince firm.

¶7 Mr. Raheem provided the sole representation for Mr. Flores in front of the jury. Faith Flores testified for the prosecution, as did Mr. Weitman, Ms. McCorkle, and several law enforcement officers. Jesse Flores was the sole witness to testify for the defense.

¶8 Weitman testified that he was assaulted by the two Flores brothers and was stabbed by Jesse. Defense counsel questioned Weitman about his telephone conversation with Johnathon, confirming that Johnathon had been calm and had not threatened him. Cross-examination also developed that Weitman weighed around 350 pounds and was five inches taller and more than 200 pounds heavier than Jesse. Weitman was not asked about his statement to a defense *6 investigator or whether he had conversations with Johnathon Flores’ wife.

¶9 Faith Flores testified that she called both of the brothers and asked for their help with Weitman. Although she did not tell them what to do, she wanted them to beat Weitman up for disrespecting her and also regain checks belonging to McCorkle. She had McCorkle tell Weitman that the Flores siblings were not present, and then the three of them hid in the house in anticipation of Weitman’s arrival. Defense counsel impeached Faith with the terms of her plea agreement that called for her to spend 25 months in prison for robbery. She also admitted that she had planned to take Weitman’s car.

¶10 McCorkle testified that she witnessed the three Flores siblings corner Weitman in the kitchen. Faith walked her out of the kitchen after Jesse had stepped on McCorkle’s foot, causing her pain. She had not wanted anyone to get hurt but knew something had happened by the sound of breaking glass.

¶11 The defense called Jesse Flores to testify. He admitted responsibility for stabbing Weitman and denied that the others had known or expected that he would do so. He also claimed responsibility for taking Weitman’s property. He told the jury that Johnathon had only come to talk to Weitman and was not involved in the altercation or theft. The stabbing occurred when Weitman tried to escape by fighting his way past Jesse.

¶12 Defense counsel then sought to call the defense investigator concerning his interview with Weitman. The trial court sustained the prosecutor’s objection to calling the witness on the basis that no foundation had been established to impeach Weitman since he had never been asked about the interview. A similar objection was sustained concerning any testimony from Michaela Flores, the defendant’s wife, about conversations between her and Weitman. Defense counsel then sought to recall Weitman to the stand to set a foundation for impeaching him. The trial court *7 again sustained the prosecutor’s objection, noting that Weitman had been excused and had not been on the defense witness list.

¶13 In closing argument, the defense argued that Johnathon was an innocent bystander who had only traveled to Okanogan to talk to Weitman about the way he treated Faith Flores. Ms. Flores, the chief instigator of the confrontation, had been pursuing her own agenda and had not recruited Jonathon for criminal activity. The jury did not accept the argument and, instead, found Johnathon Flores guilty of both crimes and the accompanying deadly weapon allegations.

¶14 Mr. Raheem filed a motion for a new trial, focusing on alleged juror misconduct, late disclosure of evidence, and the court’s refusal to recall Weitman to the stand. Ms. MacDougall appeared with Mr. Raheem for the posttrial hearings and argued the new trial motion. The court stood by its original ruling concerning Weitman’s testimony and the court denied the motion.

¶15 Mr.

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