State v. Perez

269 P.3d 372, 166 Wash. App. 55
CourtCourt of Appeals of Washington
DecidedJanuary 24, 2012
DocketNo. 29597-4-III
StatusPublished
Cited by7 cases

This text of 269 P.3d 372 (State v. Perez) 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 v. Perez, 269 P.3d 372, 166 Wash. App. 55 (Wash. Ct. App. 2012).

Opinion

Sweeney, J.

¶1 This appeal is from a conviction for attempting to elude. The defendant claims that the evidence was not sufficient to support the elements of attempting to elude. Clearly, it is. He also assigns error to the court’s refusal to grant a new trial based on juror misconduct. The juror reported to the judge early in the trial that he recalled a passing familiarity with the defendant and his family. The court did not report this to counsel until after the verdict. We conclude nonetheless that there is no showing of actual bias, the defendant would not have had a challenge for cause, and therefore the judge did not abuse his discretion by denying the motion for new trial.

FACTS

¶2 Sergeant Brian L. Jones of the Moses Lake Police Department patrolled the city of Moses Lake on the afternoon of June 8,2010. He drove an unmarked gray 2009 Ford Crown Victoria squad car with exempt plates, a spotlight, and internal emergency lights (rather than the traditional external light bar and police push bar). Sergeant Jones wore his uniform.

¶3 At around 4:13 p.m., Sergeant Jones passed Christopher Perez driving in the opposite direction. Sergeant Jones believed Mr. Perez’s license had been suspended so he turned around to follow Mr. Perez. A camera mounted in the patrol car recorded the pursuit. Sergeant Jones caught up to Mr. Perez. Mr. Perez increased his speed from 25 miles per hour (the posted speed limit) to at least 50 miles per [59]*59hour. A single car separated the patrol car from Mr. Perez’s car.

¶4 Sergeant Jones activated his emergency lights and passed the intervening car. He then watched as Mr. Perez sped past a pedestrian walking a dog; the pedestrian threw up his arms and his dog bolted. Sergeant Jones briefly activated his siren to warn the pedestrian that he too would pass. Mr. Perez ran a stop sign at an intersection. Sergeant Jones followed Mr. Perez into the parking lot of an apartment complex. Mr. Perez got out of his car and ran. Sergeant Jones pursued on foot, caught up with him, and arrested him.

¶5 The State charged Mr. Perez with attempting to elude and driving while license suspended/revoked in the first degree. The case proceeded to a jury trial. The State showed the jury the video of the pursuit, and Sergeant Jones narrated events. The video showed Mr. Perez get out of his car, leave the driver’s door open, and run. Mr. Perez moved to dismiss the attempting to elude charge and argued that the evidence was insufficient. He said that he did not know Sergeant Jones was signaling for him to stop. The court concluded that the evidence was sufficient to send the matter to the jury and denied his motion to dismiss. The jury also concluded the State’s showing was sufficient and found Mr. Perez guilty on both counts.

¶6 On the date set for sentencing, Mr. Perez’s counsel told the court that she had received a telephone message from Mr. Perez over the weekend; he told her that one of the jurors was acquainted with him and his family. The court then told the parties that he had received a message from the bailiff after the jury was selected (but before the verdict) that one of the jurors thought he might be acquainted with Mr. Perez’s father. The court apparently had instructed the bailiff to inform the court if the juror said anything else about the matter. The court decided to summon the juror for further inquiry.

[60]*60¶7 The juror testified that he did not recognize the name “Christopher Perez” until after the trial started. He then remembered that he may have met Mr. Perez at church some 20-plus years earlier but did not recall any specifics. He also remembered being casually acquainted with Mr. Perez’s father and mother from church. A long time back, he saw a police report regarding Mr. Perez but he had no knowledge of the charges agáinst Mr. Perez when he arrived for jury duty. And the juror testified that his acquaintance with the family did not affect his view of things.

f 8 Mr. Perez moved for a new trial and argued that he was denied the opportunity to challenge this juror. The court found that the juror had had only infrequent contact with the Perez family, could not recall any specific activity with Mr. Perez himself, arid had forgotten what he read in a police report. And the court denied the motion for a new trial. We will expand on this factual narrative more fully in our discussion of Mr. Perez’s assignment of error to the court’s refusal to grant a new trial. Mr. Perez appeals his conviction for attempting to elude.

DISCUSSION

Sufficiency of the Evidence — Eluding

¶9 Mr. Perez contends that the evidence does not support the conviction for attempting to elude a pursuing police vehicle. We review the evidence in the light most favorable to the State and decide whether any rational trier of fact could have found the essential elements of eluding. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). Mr. Perez’s challenge admits the truth of the evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). And “all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.” Id. The credibility of the witnesses is for the jury. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

[61]*61¶10 The State had to show a couple of things to prove the crime of attempting to elude a pursuing police vehicle. First, the State had to show that Mr. Perez willfully failed or refused to bring his vehicle to a stop after being given a visual or audible signal to bring the vehicle to a stop by a police officer, and next, that in doing so, he drove in a reckless manner. RCW 46.61.024(1).

¶11 Mr. Perez contends that the evidence does not show that he willfully failed to stop. He argues that he was never aware a police officer was behind him, and he never saw lights or heard a siren. What is apparent here is that the jury did not believe him. And the State’s evidence supports just the opposite conclusion.

¶12 Sergeant Jones recognized Mr. Perez and believed he had a suspended license. He turned his patrol car around, activated his emergency lights, and followed Mr. Perez. Mr. Perez immediately accelerated to over 50 miles per hour in a 25-mile-per-hour zone. Mr. Perez frightened a pedestrian, scared a dog, and then ran a stop sign. Sergeant Jones activated his siren briefly. Mr. Perez threw open his car door, left the door open, and ran. The jury watched the entire 40-second pursuit and could easily infer that Mr. Perez saw the police and tried to get away by car and later on foot.

Ineffective Assistance of Counsel — Affirmative Defense

¶13 Mr. Perez next contends that his lawyer was ineffective because she failed to propose an instruction on “reasonable belief,” an instruction permitted by RCW 46.61.024(2) (reasonable person would not believe the signal to stop was given by a police officer). We review the claim of ineffective assistance de novo. State v. McFarland,

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Cite This Page — Counsel Stack

Bluebook (online)
269 P.3d 372, 166 Wash. App. 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perez-washctapp-2012.