F|LED
4.i22f2019
Court oprpea|s
Division |
State of Washington

iN THE COURT OF APPEALS OF THE STATE OF WASH|NGTON
DlV|S|ON ONE

STATE OF WASH|NGTON, NO. 77795-5-|

Respondent,

UNPUBL|SHED OP|N|ON
OSCAR LU|S URB|NA,
FlLED: Apri| 22, 2019

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Appel|ant. )
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VERELLEN, J. - lf 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.

F_A_QI_§
l\/l.B. Was raped on April 14, 2014. After going to Harborview l\/ledical

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

No. 77795-5-|/2

sample of the perpetrator’s DNA.1 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.

ln early l\/larch 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 l\/l.B.2 The police investigated Urbina
for the attack on l\/l.B. They confirmed Urbina’s license plate matched that of
l\/l.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 l\/l.B.’s rapist.
Urbina was charged with the second degree rape of l\/l.B.

During tria|, 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.

 

1 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-|/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.3

Urbina appealsl

ANALYSlS

Both the United States and Washington constitutions provide a criminal
defendant the exclusive right to decide to testify in his own defense.4 A defendant
also has the “[a]utonomy to decide that the objective of the defense is to assert
innocence.”5 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.”’6 To prove
this, a defendant must show by a preponderance of the evidence that his attorney
“actually prevented him from testifying,” thereby rendering ineffective assistance7

We review claims of ineffective assistance of counsel de novo.8 To prove

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

 

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

4 |\/lCCov v. LOuisiana, U.S. ___, 138 S. Ct. 1500, 1508l 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 lVlcCoy, 138 S. Ct. at 1508.

6 Robinson, 138 Wn.2d at 763 (quoting United States v. Teaque, 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 bv en banc, 953 F.2d 1525 (11th Cir. 1992)).

7j_d_._at 764.
8 State V. LOQeZ, 190 Wn.2d 104, 117, 410 P.3d 1117 (2018).

NO. 77795-5-|/4

performance was deficient and (2) caused him prejudice9 ln this context, a
defense counsel provided ineffective assistance if she actually prevented the
defendant from testifying10

Here, Urbina testified He directly asserted his innocence He denied
having sex with lVl.B., he denied ever having seen lVl.B. before the triall and he
alleged l\/l.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 examinationl Urbina said he had additional
testimony.

Ct. ls your assertion here today that [l\/l.B.] is fabricating or
making [it] up when she said that you assaulted her?

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

When defense counsel declined to redirect following cross-examination Urbina
asked to “say something . . . that is important for my defense."12 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 ig_. at 109.

10 Robinson, 138 Wn.2d at 766.

11 Report of Proceedings (RP) (Nov. 15, 2017) at 672.
12 l_c_l_, at 678.

No. 77795-5-|/5

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

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

evidence l’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 l\/|r.

Urbina has raised with me, but, at this point, l arn going to rest.l13]

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.”1‘1

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.’l15 lt 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.”’16 Tactical decisions include

which arguments to advance,17 which witnesses to call,18 and which questions to

 

13 i_d_. at 684, 685.
14 Appellant’s Br. at 5-6.

15 l\/lcCoy, 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)).

16 Gonzalez, 553 U.S. at 249 (quoting Taylor v. lllinois, 484 U.S. 400, 418, 108
s. ct. 646, 98 L. Ed. 2d 798 (1988)).

17 |g__
18 l_tL; aCCOrd State v. Rafay, 168 Wn. App. 734, 841, 285 P.3d 83 (2012).

No. 77795-5-|/6

ask those witnesses.19 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.”’20

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.21 Urbina testified

 

19 §_e_e ln re Davis, 152 Wn.2d 847, 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 hearingl Urbina used the opportunity to discuss what
he wanted to say at trial: “ln the trial, l wanted to talk, and they did not give me the
opportunity to do so. . . . [B]ut l would have liked to say, ifl ha[d] the opportunity[,]

. . . when l was accused, in l\/larch of 2018, l\/larch 7th-so, l was accused of rap[ing
A.R.]. l hired this woman, and l 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 l know that he want[ed] to combine [the two rape charges into a single
trial]. l didn’t know where l was going. So we got there, but the detective woman and
the detective man were there, who were here during the trial-l’m innocent . . . ln
2015, | have the paper, in October, so l was detained four or five days, and that
occasion was . . . l had a problem, but it was not for rape. And then when l had three
days being in the jail . . . she [took] the DNA from me l don’t know why. So l asked
her why she was doing that because l 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-|/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.

WE CONCURI

AM/, 7 919an Qv
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at 759-60. Urbina continued in this vein by impugning the investigation into l\/l.B.’s
rape, the evidence against him, and l\/l.B.’s credibilityl

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

