State Of Washington, Respondent V. Oscar Luis Urbina, Appellant

OCR transcription for search; preserved printed pages are authoritative

FILED
4/22/2019
Court of Appeals
Division |
State of Washington

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

STATE OF WASHINGTON, No. 77795-5-I

Respondent,

UNPUBLISHED OPINION
OSCAR LUIS URBINA,
FILED: April 22, 2019

)

)

)

)

V. )
)

)

)

Appellant. )

)

VERELLEN, J. — If a defendant decides to testify, his counsel may not coerce
the defendant to forgo testifying. But after a defendant testifies, defense counsel
can make a legitimate tactical decision not to recall the defendant to “speak to the
jury” after cross-examination. Oscar Luis Urbina appeals his conviction for second
degree rape. He contends defense counsel denied his right to testify in his own
defense because his attorney did not recall him to the stand to give additional
testimony. Because Urbina testified in his own defense and defense counsel
made the reasonable tactical decision not to recall him, no error occurred.

Therefore, we affirm.

FACTS
M.B. was raped on April 14, 2014. After going to Harborview Medical

Center, a sexual assault nurse examiner took photos of her injuries and obtained a

No. 77795-5-1/2

sample of the perpetrator’s DNA.' The police submitted the sample to a database,
but it did not match any existing profile. No arrests were made, and the
investigation stalled for almost two years.

In early March of 2016, Urbina raped A.R., and the police obtained a
sample of his DNA after arresting him. After submitting Urbina’s DNA to a
database, it matched the sample taken from M.B.? The police investigated Urbina
for the attack on M.B. They confirmed Urbina’s license plate matched that of
M.B.’s attacker, save for one number, and his car also matched her attacker's.
The police took a new DNA sample from Urbina, which also matched M.B.’s rapist.
Urbina was charged with the second degree rape of M.B.

During trial, only Urbina testified in his defense. After he testified to his
innocence, defense counsel had no more questions for him, and the court told
Urbina he could leave the witness stand. Urbina asked to speak directly to the
jury. The court told Urbina to consult with his attorney about his prospective
testimony and stopped him from speaking further. Outside the presence of the
jury and after speaking with his client, defense counsel told the court he was not

going to recall Urbina for additional testimony.

' Deoxyribonucleic acid.

2 The DNA database conducts an automatic daily search comparing new
samples to existing profiles and notifies users of any matches.

No. 77795-5-1/3

The jury found Urbina guilty of second degree rape. The court sentenced

him to 211 months incarceration running consecutively to his sentence for raping

A.R.S

Urbina appeals.

ANALYSIS

Both the United States and Washington constitutions provide a criminal
defendant the exclusive right to decide to testify in his own defense.* A defendant
also has the “[a]utonomy to decide that the objective of the defense is to assert
innocence.”® Accordingly in Washington, “a defendant’s right to testify is violated if
‘the final decision that he would not testify was made against his will." To prove
this, a defendant must show by a preponderance of the evidence that his attorney
“actually prevented him from testifying,” thereby rendering ineffective assistance.’

We review claims of ineffective assistance of counsel de novo.® To prove

he received ineffective assistance, a defendant must show (1) that his counsel’s

3 Although Urbina attacked A.R. in 2016 after attacking M.B. in 2014, he was
convicted and sentenced for the second degree rape of A.R. before the start of his
trial for raping M.B.

4 McCoy v. Louisiana, U.S._, 138 S. Ct. 1500, 1508, 200 L. Ed. 2d 821
(2018); Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987);
State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999).

5 McCoy, 138 S. Ct. at 1508.

8 Robinson, 138 Wn.2d at 763 (quoting United States v. Teague, 908 F.2d
752, 759 (11th Cir. 1990), vacated by 932 F.2d 899 (11th Cir. 1991), rev’d on reh’g
on other grounds by en bane, 953 F.2d 1525 (11th Cir. 1992)).

7 Id. at 764.
8 State v. Lopez, 190 Wn.2d 104, 117, 410 P.3d 1117 (2018).

No. 77795-5-/4

performance was deficient and (2) caused him prejudice.? In this context, a
defense counsel provided ineffective assistance if she actually prevented the
defendant from testifying. '°

Here, Urbina testified. He directly asserted his innocence. He denied
having sex with M.B., he denied ever having seen M.B. before the trial, and he
alleged M.B. lied when she testified about him raping her. Urbina offered an alibi,
explaining that he was in a late night church service with his wife when the attack
occurred. But at the end of direct examination, Urbina said he had additional
testimony.

Q. Is your assertion here today that [M.B.] is fabricating or
making [it] up when she said that you assaulted her?

A. Of course. Of course. Because | have never seen the gal
ever. | don’t—I don’t know what to add because under the—due to
the advice of my lawyer, | have been asked not to talk, and so I’m
not sure what else | can say. |’m following the steps as instructed by
my lawyer, that | shouldn’t talk, but | wanted to talk. | almost did, but
| have respect [for] authority just like | respect the Bible.!1)

When defense counsel declined to redirect following cross-examination, Urbina
asked to “say something . . . that is important for my defense.”'2 The court told
Urbina to step down from the witness stand to speak with his attorney. After

speaking with Urbina, defense counsel declined to recall his client.

9 Id. at 109.

10 Robinson, 138 Wn.2d at 766.

‘1 Report of Proceedings (RP) (Nov. 15, 2017) at 672.
'2 Id. at 678.

No, 77795-5-1/5

At this point, |, as defense counsel, am not going to recall Mr. Urbina,
and we have no further witnesses. The defense would rest for the
record. Mr. Urbina disagrees. He wants to speak to the jury. | don’t
think that is supported. I’m not going to recall him.

... [A]s his attorney, I’m making the decision on what

evidence I’m choosing to put on the stand. We have gone through

the court procedure and discussed potentially opening the door to

the prior conviction [for raping A.R.]. There are other issues that Mr.

Urbina has raised with me, but, at this point, | am going to rest.!13]

Urbina contends his opportunity to testify and profess his innocence does
not satisfy his right to testify because his attorney “stripped [him] of the ability to
personally decide what he wishes the jury to hear from him.”*4

But “[p]reserving for the defendant the ability to decide whether to maintain
his innocence should not displace counsel’s or the court's respective trial
management roles.” It is “a practical necessity” for defense counsel to control
trial management because “[t]he adversary process could not function effectively

if every tactical decision required client approval.’’'® Tactical decisions include

which arguments to advance,"’ which witnesses to call,'8 and which questions to

13 Id. at 684, 685.
'4 Appellant’s Br. at 5-6.

'S McCoy, 138 S. Ct. at 1509 (citing Gonzalez v. United States, 553 U.S. 242,
249, 128 S. Ct. 1765, 170 L. Ed. 2d 616 (2008)).

'6 Gonzalez, 553 U.S. at 249 (quoting Taylor v. Illinois, 484 U.S. 400, 418, 108
S. Ct. 646, 98 L. Ed. 2d 798 (1988)).

7 Id.
'8 Id.; accord State v. Rafay, 168 Wn. App. 734, 841, 285 P.3d 83 (2012).

No. 77795-5-I/6

ask those witnesses.'? And, absent coercion, tactical advice from defense counsel
about whether to testify “infringes no right, but simply discharges defense
counsel's ethical responsibility to the accused.’”2°

Urbina testified to his innocence after his attorney called him to the stand.
Urbina stated that his counsel advised him against giving certain testimony, and
he decided to follow that advice at that time. Urbina may have regretted heeding
his counsel’s advice soon after doing so, but in absence of coercion, his regrets
have no bearing on whether defense counsel provided ineffective assistance.
After hearing Urbina’s proposed testimony, defense counsel made a reasonable
tactical decision not to recall his client given the risk of opening the door to

damaging evidence of Urbina’s recent conviction for raping A.R.2' Urbina testified

19 See In re Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004) (“Courts generally
entrust cross-examination techniques, like other matters of trial strategy, to the
professional discretion of counsel.”).

20 Robinson, 138 Wn.2d at 763-64 (quoting Lema v. United States, 987 F.2d
48, 52 (1st Cir. 1993)).

21 During the sentencing hearing, Urbina used the opportunity to discuss what
he wanted to say at trial: “In the trial, | wanted to talk, and they did not give me the
opportunity to do so. . . . [BJut | would have liked to say, if | ha[d] the opportunity[,]

... when | was accused, in March of 2016, March 7th—so, | was accused of rap[ing
A.R.]. [| hired this woman, and | was detained. For prostitution. She was—and she
had accused me of rape. That's all. And the [trial for raping A.R.] was here in April
[of 2017], so | know that he want[ed] to combine [the two rape charges into a single
trial]. | didn’t know where | was going. So we got there, but the detective woman and
the detective man were there, who were here during the trial—I’m innocent. . . . In
2015, | have the paper, in October, so | was detained four or five days, and that
occasion was .. . | had a problem, but it was not for rape. And then when | had three
days being in the jail . . . she [took] the DNA from me. | don’t know why. So | asked
her why she was doing that because | was already there because of rap[ing A.R.].

So she told me that two numbers of my car license were involved in a [crime] and
that's why they were [there]. So they took the DNA.” RP (Dec. 8, 2017) at 759-60.

No. 77795-5-I/7

to his alibi defense and fails to show that defense counsel coerced or otherwise
actually prevented him from testifying. He fails to establish ineffective assistance
of counsel.22

Therefore, we affirm.

a

WE CONCUR:

Lord 1 Se Qohu, OF
, U

at 759-60. Urbina continued in this vein by impugning the investigation into M.B.’s
rape, the evidence against him, and M.B.’s credibility.

22 We note that Urbina also argues the trial court infringed on Urbina’s right to
testify “[b]y accepting defense counsel’s position” and not ordering defense counsel
to question Urbina further. Appellant's Br. at 6. Urbina provides no support for this
argument’s underlying presumption that trial courts should step into defense
counsel's shoes in deciding trial tactics.