State of Washington v. Manuel Carrosco Mendoza Jr.

• Court: Court of Appeals of Washington
• Decided: March 30, 2021
• Docket: 37123-9
• Status: Unpublished

Opinion

FILED MARCH 30, 2021 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STATE OF WASHINGTON, ) ) No. 37123-9-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) MANUEL CARROSCO MENDOZA JR., ) ) Appellant. )

FEARING, J. — Manuel Mendoza appeals his conviction for unlawful possession of

a firearm. He asserts that his trial counsel performed ineffectively when cross-examining

at length two law enforcement officers about the initial responding officer’s exclusion of

another suspect as the one who carried a weapon in a backpack. We conclude that the

questioning was a legitimate trial strategy and affirm Mendoza’s conviction.

FACTS

We outline the facts now, but provide more details when outlining the testimony

of law enforcement officers that gives rise to the claim of ineffective assistance of

counsel. On the evening of October 27, 2017, Yakima Police Sergeant Ritchie Fowler

responded to a report of a crime involving a gun at a Subway sandwich shop in Yakima. No. 37123-9-III State v. Mendoza

As he neared the shop, he stopped a man who matched the description of the crime

suspect.

The detained individual gave Sergeant Ritchie Fowler permission to check his

backpack. Fowler felt the backpack and discerned what he believed to be a gun. As

Fowler attempted to seize the bag, the man threw the backpack at him and ran. Fowler

gave chase, but lost sight of the individual. Fowler opened the backpack and discovered

a 40-caliber pistol.

Later that night, another law enforcement officer discovered a Washington State

identification card belonging to Manuel Mendoza in the same vicinity. Sergeant Ritchie

Fowler identified Manuel Mendoza as the man who bore the backpack containing the

gun. During the course of the evening and before the apprehension of Mendoza, Fowler

ruled out a second suspect stopped by police as the individual who threw the backpack.

PROCEDURE

The State of Washington charged Manuel Mendoza with first degree unlawful

possession of a firearm. At trial, Mendoza relied on a theory of mistaken identity.

During cross-examination of two police officers, the officers testified that Sergeant

Ritchie Fowler informed them that the other suspect whom they had detained was the

wrong individual.

During trial, the prosecution first called Sergeant Ritchie Fowler to testify.

According to Sergeant Fowler, on October 27, 2017 at 7:30 p.m., he responded to a report

2 No. 37123-9-III State v. Mendoza

of a crime at the Subway shop on Yakima Avenue and First Street. Emergency dispatch

described the suspect as a white male wearing tennis shoes, basketball shorts, and a gray

sweatshirt with a West Coast Chopper logo. When Fowler responded to the scene, he

saw an individual matching the description of the suspect in an alley. Fowler stopped and

reversed his cruiser, but lost sight of the individual. Fowler entered and traversed the

alley. He again spotted the same individual walking near a motel. Because the person

matched the description given of the suspect, Sergeant Fowler blocked the individual’s

path, with his patrol car, between the motel and a laundromat. The individual also wore a

hat.

According to his trial testimony, an unaccompanied Sergeant Ritchie Fowler

exited his car, stopped the individual, and explained the purpose of his detaining the man.

The man stood two feet in front of Fowler. Sergeant Fowler told the individual that he

matched the description of the suspect seen leaving the scene of a crime at Subway.

Fowler told the individual to empty his pockets. The individual removed a cell phone,

among other objects. The individual wore a backpack, and Sergeant Fowler asked if he

could check the pack. The individual responded affirmatively, and Fowler felt the

backpack. Sergeant Fowler discerned a hard object that felt like a gun. Fowler grabbed

the top of the backpack in order to seize it. The individual removed the backpack from

his back and threw the backpack at Fowler. The man ran and Fowler pursued him. The

3 No. 37123-9-III State v. Mendoza

individual outran the backpack laden officer. Sergeant Fowler opened the backpack and

saw a semiautomatic 40-caliber pistol.

During trial, Sergeant Ritchie Fowler identified Manuel Mendoza as the individual

whom he confronted on the evening of October 27. Fowler testified that he recognized

him from their interaction between the laundromat and the motel.

Upon the suspect disappearing from sight, Sergeant Ritchie Fowler called for

additional officers and a K-9 dog to assist. The responding officers and Fowler traced the

direction that the individual had fled. While Fowler attempted to determine the

individual’s location, two officers discovered a Washington identification card across the

street from where Fowler had spoken with the suspect. The card belonged to Manuel

Mendoza.

On cross-examination of Sergeant Ritchie Fowler, defense counsel inquired as to

the lighting in the parking lot in which Sergeant Fowler confronted the suspect. Fowler

responded:

The whole area is lit up right there . . . . the Red Apple shines kind of down on the—on the lot . . . I didn’t need any lighting.

Report of Proceedings (RP) at 183. Sergeant Fowler estimated that he observed the

individual that night for one to two minutes.

The State’s next witness, Yakima Police Officer Darius Williams, testified that he

responded, to the report of a crime. Williams thereafter received a communication from

4 No. 37123-9-III State v. Mendoza

Sergeant Ritchie Fowler that an individual, similar in description to the suspect of the

Subway crime, had run from him. Williams, located a block away, responded to Sergeant

Fowler’s location and saw him in pursuit of a male. Officer Williams unsuccessfully

attempted to block the suspect with his police cruiser. He saw the man briefly.

Officer Darius Williams followed the fleeing suspect eastbound as the individual

ran through business properties. Officer Cole then contacted Williams and informed him

that he had detained a suspect on North First Street. The State questioned Williams:

Q Okay. But that wasn’t the suspect that you were looking for, was it? A It was not the one we were following, no.

RP at 191.

During trial, Officer Darius Williams further testified that he returned to the area

where he had last seen the suspect fleeing from Sergeant Ritchie Fowler. He then found

a Washington State identification card on the ground. The identification card pictured

Manuel Mendoza. The card was clean and flat, despite its high traffic location, leading

Officer Williams to opine that the card had recently fallen to the ground.

On cross-examination, defense counsel questioned Officer Darius Williams:

Q Officer Williams, when you first arrived you saw—suspect running? —that correct? A To assist—Sgt. Fowler? Q Yeah. A Yes, sir. Q And—he was on—side of north Second Street? A Yes.

5 No. 37123-9-III State v. Mendoza

Q Running through businesses? A Uh-huh. Eastbound. Q You didn’t get a real good look at—person that was running, correct? A Not—face, no. Q Okay. Shortly after you saw this, you got a call about another— subject they had found on—north First Street. A On the 500 block of north First Street, yes, sir. Q And, he was (inaudible) the—possible suspect at that time. A Uh-huh. Q But apparently somebody determined he was not the person you were looking for. A Yes. Sgt. Fowler and I—responded to the area and he [Fowler] told us that that was not the suspect. Q Okay. So that’s how it was determined, because Sgt. Fowler said he was— A Uh-huh. Q —suspect. Okay. This person was taken down and cuffed, (inaudible). A Yes. Q Okay.

RP at 195-96 (emphasis added).

During trial, the State next called K-9 Officer Robert Walters to testify. On

October 27, 2017, Officer Walters responded to a request from Sergeant Ritchie Fowler

to conduct a K-9 track. The dog did not track a suspect. Walters and Officer Darius

Williams decided to walk the area where Fowler reported a suspect had run. He and

Officer Williams went to this location and found an identification card. Walters repeated

Darius Williams’ testimony about the cleanliness of the card in a highly trafficked area.

The card listed the name of Manuel Mendoza. Officer Walters and Officer Williams

6 No. 37123-9-III State v. Mendoza

called Sergeant Ritchie Fowler to the scene, and he confirmed that the person on the

identification card matched his memory of the appearance of the suspect he had pursued.

On cross-examination, defense counsel inquired whether Officer Robert Walters

first contacted a suspect other than Manuel Mendoza. Officer Walters affirmed the

stopping of another person, and Walters elaborated:

A . . . Officer Cole called down that he had—thought he detained someone that was matching the description from the initial call. Officer Cole (inaudible) to detain him, and I showed up to that location first, in order to detain this person and place him into handcuffs, yes, sir. Q Okay. Ultimately it was determined that was not the person— you were looking for. A Correct. He was not involved in the initial dispatch call. Q How did—how did you make that determination. A To be honest I—I don’t note [that] in my report of how we determined Mr. Willers was not involved. I don’t know if it was the description, his location or it was from video surveillance from—the initial dispatched crime. I don’t know off the top of my head. Q Okay. When you had contact with him he was not exactly cooperative was he? A No, he was not. Q In fact you thought he might be—(inaudible) to find a weapon on him.

RP at 205-06.

Officer Robert Walters testified that he determined that this other suspect did not

have a firearm. Defense counsel then inquired if Officer Walters ever spoke with

Sergeant Ritchie Fowler when he had contacted the other suspect. Officer Walters

explained that Sergeant Fowler came to the location where Officer Cole detained the

7 No. 37123-9-III State v. Mendoza

other suspect and determined that he was not involved. Officer Walters acknowledged

that he never saw the suspect that Sergeant Ritchie Fowler initially pursued.

Defense counsel cross-examined Officer Robert Walters about his direct testimony

of the night being bright at 7:30 p.m. in late October. Counsel also questioned whether

Cobo, Officer Walters’s dog, had traced near the discovered identification card. Defense

counsel asked why the dog failed to trace the suspect by the scent of the owner on the

identification card. Officer Walters did not directly answer the question, but responded

that he directed Cobo to follow the scent of a human and not to discover objects.

During trial, the State also called Officer Casey Kim to testify. Officer Kim

assumed custody of the backpack and its contents, including the firearm. Kristin Drury,

the Yakima Police Department forensic lab supervisor, later testified that the firearm

from the backpack functioned. She discovered no fingerprints on the pistol. Drury

swabbed the firearm for a DNA sample, but did not send the swabs for testing.

At the conclusion of its case, the State recalled Sergeant Ritchie Fowler to testify.

Sergeant Fowler testified that, pursuant to his report, he now recalled that the person he

detained removed an identification card when he asked the man to empty his pockets.

Fowler confirmed that, when Officer Robert Walters and Officer Darius Williams

showed him the Washington identification card, he identified the individual as the person

who threw the backpack at him.

8 No. 37123-9-III State v. Mendoza

LAW AND ANALYSIS

On appeal, Manuel Mendoza claims that he received ineffective assistance of

counsel because counsel elicited testimony from two witnesses confirming that Sergeant

Ritchie Fowler ruled out another suspect as the one who bore the firearm in the backpack.

He argues that defense counsel lessened the State’s burden by introducing this testimony.

We disagree. The questioning of the officers served a legitimate trial strategy of showing

that other officers suspected another individual. The questioning also served to show that

Sergeant Ritchie Fowler, alone, turned officers away from that suspect and toward

Mendoza. To establish ineffective assistance of counsel, a defendant must establish that

his attorney performed deficiently and this deficient performance prejudiced the

defendant. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Failure to show

either prong of the test defeats the claim. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient performance, a defendant

must present facts which show that the performance fell below an objective standard of

reasonableness based on consideration of all the circumstances. State v. McFarland, 127

Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The defendant must overcome a strong

presumption that counsel’s performance was not deficient. State v. Nichols, 161 Wn.2d

1, 8, 162 P.3d 1122 (2007). A defendant shows prejudice when there is a reasonable

probability that, except for counsel’s unprofessional errors, the result of the proceeding

would have been different. State v. McFarland, 127 Wn.2d at 335.

9 No. 37123-9-III State v. Mendoza

This court will not find counsel’s conduct to be deficient if it constituted a

“legitimate trial strategy or tactics.” State v. Kyllo, 166 Wn.2d 856, 863 (2009). When

the effect of defense counsel’s performance lowers the State’s burden of proof, counsel

has not engaged in a legitimate trial strategy. State v. Kyllo, 166 Wn.2d at 869; State v.

Rodriguez, 121 Wn. App. 180, 187, 87 P.3d 1201 (2004). A fair assessment of attorney

performance requires that we eliminate the distorting effects of hindsight and evaluate the

conduct from counsel’s perspective at the time. Strickland v. Washington, 466 U.S. 668,

689 (1984).

Manuel Mendoza presented a defense theory of mistaken identity. In turn,

Mendoza focuses his argument of ineffective assistance of counsel on the testimony of

three witnesses. The State’s first witness, Sergeant Ritchie Fowler, testified on cross-

examination that, on the night of October 27, 2017, he spoke with the suspect for up to

two minutes. Based on this interaction, he identified, in the courtroom, Manuel Mendoza

as the individual with whom he had spoken. The prosecution never inquired about

another detained man that was considered a possible suspect.

Defense counsel raised the subject of another suspect during cross-examination of

Officers Darius Williams and Robert Walters. In questioning Officer Williams, defense

counsel, without framing a question, noted that someone had determined that the other

suspect was not the individual with whom Sergeant Fowler interacted. In response,

Williams stated, “Yes. [Sergeant] Fowler and I—responded to the area and he told us

10 No. 37123-9-III State v. Mendoza

that that was not the suspect.” RP at 196. Defense counsel did not object to this hearsay

remark.

During cross-examination of Officer Robert Walters, defense counsel asked

whether Officer Walters spoke with Sergeant Ritchie Fowler while he detained the other

suspect. Walters initially answered that he did not recall speaking with Sergeant Fowler

directly. He elaborated, however, that Fowler determined that the individual was not the

right suspect.

Manuel Mendoza complains that trial defense counsel erred by not objecting to

Officer Darius Williams’s unsolicited comment that Sergeant Ritchie Fowler determined

that the other individual was not the correct suspect. He further criticizes counsel for

allowing two witnesses to state that Fowler ruled out the other suspect. Mendoza argues

that the testimony rendered Fowler more credible in the jurors’ eyes. By connecting

Fowler with the elimination of the other individual from suspicion, defense counsel

purportedly assisted the prosecution and lessened its burden.

In hindsight, Manuel Mendoza might be correct, although we doubt such.

Regardless, Mendoza fails to note that Sergeant Ritchie Fowler identified Mendoza in

court as the one in whose backpack he found the gun. Defense counsel needed to detract

from this identification and one legitimate strategy in doing so was to show that two other

officers thought another person might be the suspect. The testimony of the two officers

also supported a defense argument that law enforcement shortcut the investigation.

11 No. 37123-9-III State v. Mendoza

In addition to our conclusion that trial counsel did not perform ineffectively, we

conclude that Manuel Mendoza shows no prejudice. Because of the strength of Sergeant

Ritchie Fowler’s identification of Mendoza, the outcome would have remained the same

regardless of whether trial counsel questioned the other officers about their interaction

with the other suspect.

STATEMENT OF ADDITIONAL GROUNDS

Manuel Mendoza forwards six additional grounds for review.

1. Manuel Mendoza contends that defense counsel provided ineffective assistance

of counsel when he failed to communicate with him during the course of his prosecution

and thereby denied him the right to assist in his own defense. Again, to show ineffective

assistance of counsel, Mendoza must show that his counsel performed deficiently and

that this performance served to prejudice him. State v. Kyllo, 166 Wn.2d 856, 862

(2009).

Manuel Mendoza claims he encountered a difficult time reaching defense counsel

with whom he wanted to prepare for trial. He believes that his input would have

strengthened his defense. Nevertheless, Mendoza fails to explain how his assistance

would have led to a successful defense.

2. Manuel Mendoza next contends that his trial counsel performed ineffectively

when failing to suppress evidence of DNA and of a fingerprint analysis. Nevertheless,

Kristin Drury, the Yakima Police Department forensic laboratory supervisor, testified that

12 No. 37123-9-III State v. Mendoza

she did not find any fingerprints on the firearm. Drury swabbed the gun for DNA, but

did not send the swabs for analysis.

3. Manuel Mendoza contends that defense counsel performed ineffectively when

leading witnesses to where the jury is unable to assess the credibility of the witnesses.

He complains that leading questions by his trial counsel were calculated and pervasive.

We note that leading questions are permitted on cross-examination. Mendoza fails to

show that defense counsel acted improperly or that he suffered prejudice by the

questions.

4. Manuel Mendoza contends that a jury instruction should have informed the jury

on how to weigh discrepancies in witness’ testimony. One of the jury instructions that

the trial court delivered read:

You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In considering a witness’s testimony, you may consider these things: the opportunity of the witness to observe or know the things he or she testifies about; the ability of the witness to observe accurately; the quality of a witness’s memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness’s statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.

Clerk’s Papers at 9. This common jury instruction properly instructed the jury.

5. Manuel Mendoza cites to legal authority which mentions the establishment of

the corpus delicti of a crime. The term corpus delicti may be used when describing to

13 No. 37123-9-III State v. Mendoza

whether the State has successfully met its burden of proving a case beyond a reasonable

doubt. State v. Angulo, 148 Wn. App. 642, 648, 200 P.3d 752 (2009). The corpus

delicti of unlawful firearm possession requires the State to prove a connection between

the defendant and the firearm possession. State v. Wright, 76 Wn. App. 811, 818, 888

P.2d 1214, review denied, 127 Wn.2d 1010, 902 P.2d 163 (1995). Mendoza suggests that

insufficient evidence existed to connect him to the firearm in his prosecution.

Nevertheless, testimony established that Sergeant Ritchie Fowler identified Mendoza as

the individual whom he confronted in the laundromat parking lot. Fowler felt the

backpack and felt a gun. The backpack contained the gun. Mendoza threw the backpack

containing the firearm at Fowler.

6. Manuel Mendoza contends that the prosecuting attorney committed misconduct

by telling the jury “[a]nd your chances of winning the lottery are probably about as good

as getting bit by a shark in Yakima.” RP at 308. He contends that this comment meant

that the jury could only acquit him with an emotional decision. The point of the

prosecutor’s argument is difficult to discern even in context. Nevertheless, the comment

does not convey that the jury was required to make a decision based on emotion.

CONCLUSION

We affirm Manuel Mendoza’s conviction for unlawful possession of a firearm.

14 No. 37123-9-III State v. Mendoza

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.

_________________________________ Fearing, J.

WE CONCUR:

______________________________ Siddoway, A.C.J.

______________________________ Staab, J.