                                                                          FILED 

                                                                      December 2, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 30944-4-111
                                              )
                     Appellant,               )
                                              )
              v.                              )
                                              )
JOSE RUIZ-ALCALA,                             )         UNPUBLISHED OPINION
                                              )
                     Respondent.              )

       BROWN, A.C.J. - The State appeals the Yakima County Superior Court's decision

granting Jose Ruiz-Alcala a new trial based upon the court deciding he received

ineffective assistance of counsel. The court concluded Mr. Ruiz-Alcala did not receive a

fair trial because he was prejudiced by defense counsel's failure to object to the

admissibility of certain evidence and by mentioning a gun, all of which the court

reasoned was inadmissible. The State contends the court abused its discretion in

granting the new trial as all the evidence was relevant, admissible, part of a legitimate

trial strategy, and not prejudicial. We find no abuse of discretion, and affirm.

                                          FACTS

       In June 2011, the local drug task force aerially observed a large marijuana grow

operation near the Ahtanum Ridge area. Officers suspected an abandoned logging

road was a drop point for reaching the grow and placed surveillance cameras there.
No. 30944-4-111
State v. Ruiz-Alcala


Review of the surveillance footage showed a pattern of vehicles arriving and dropping

off people on Fridays then returning to pick them up on Sundays. Detective Mark

Negrete obtained license plate numbers and still photographs of drivers' faces from the

footage. One vehicles was registered to Gerardo Alcala, Mr. Ruiz-Alcala's brother, but

the photograph of the vehicle's driver did not match Mr. Ruiz-Alcala's license.

       On August 9, 2011, the marijuana grow was eradicated. The grow had 10,000 to

15,000 plants within two weeks of harvesting, the odor of marijuana was very strong,

and a campsite was found nearby. The following day, officers executed a search

warrant at the address seen on Mr. Alcala's registration. Officers found Mr. Ruiz-Alcala

there and identified him as the man in the photograph. Mr. Ruiz-Alcala initially denied it

was him in the photograph. While searching the premises, officers found a scale and

plastic baggies, items commonly associated with packaging marijuana. In Mr. Ruiz­

Alcala's bedroom, officers found a small bag of seeds and marijuana. The seeds were

later identified as marijuana seeds. Outside the house, officers found twine and tarp of

the same color as that seen at the grow campsite, as well as another bag of seeds.

Forensic examination of these seeds showed they were not marijuana seeds. A drug

sniffing dog alerted on several vehicles parked at the search address. The dog was

trained to alert on the odor of marijuana, cocaine, methamphetamine, and heroin.

      The State charged Mr. Ruiz-Alcala with manufacture of a controlled substance,

marijuana. At trial, without objection by defense counsel, the State introduced the

twine, tarp, scales, plastic baggies, both bags of seeds, and testimony describing the



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State v. Ruiz-Alcala


behavior of the drug sniffing dog. In his cross-examination of Detective Robert Tucker,

defense counsel showed tarps, twine, and plastic bags are common household items.

Defense counsel's cross-examination of Deputy Jesus Rojas, the dog's handler,

revealed the dog could not differentiate between drugs nor was there a way to tell how

much time had elapsed since any drugs had been present.

       In Mr. Ruiz-Alcala's testimony, he said he played volleyball with the two men he

was seen picking up at the drop site. The men told Mr. Ruiz-Alcala they were going

camping and asked him to pick them up the following night. While he had never been to

the drop site, he had previously driven in that area. When he arrived to pick up the

men, Mr. Ruiz-Alcala said the men did not smell and he did not question their lack of

camping gear. In response to a question by defense counsel, Mr. Ruiz-Alcala said he

knew nothing about the gun found in his brother's room.

      The jury found Mr. Ruiz-Alcala guilty as charged. After a hearing where the trial

court questioned the relevance of the marijuana seeds and the drug sniffing dog's

alerts, defense counsel filed a brief memorandum requesting a new trial as a result of

ineffective assistance of counsel. The trial court granted Mr. Ruiz-Alcala a new trial,

finding the result of the trial would have been different had defense counsel sought to

exclude the small baggie containing marijuana seeds, the conduct of the dog, and the

tarp. The court found defense counsel's mention of the gun to be prejudicial error. The

State appealed.




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State v. Ruiz-Alcala


                                       ANALYSIS

       The issue is whether the trial court abused its discretion under CrR 7.5(a)(8) in

granting Mr. Ruiz-Alcala a new trial based on finding Mr. Ruiz-Alcala received

ineffective assistance of counsel. The State contends defense counsel engaged in

strategic or tactical conduct and Mr. Ruiz-Alcala fails to show prejudice.

       A trial court may grant a new trial when "substantial justice has not been done."

CrR 7.5(a)(8). Unless constituting a manifest abuse of discretion, decisions granting or

denying a new trial are not disturbed. State v. Dawkins, 71 Wn. App. 902, 906, 863

P.2d 124 (1993). However, stronger evidence of an "abuse of discretion is required to

set aside an order granting a new trial than one denying it." Id. at 907. "An abuse of

discretion exists unless it can realistically be said that no reasonable person would take

the position adopted by the trial court." Id. (internal quotations omitted). When

reviewing the grant of a new trial based on a finding of ineffective assistance of counsel,

we apply the abuse of discretion standard. Id.

      The Sixth Amendment of the United States Constitution guarantees a criminal

defendant the right to effective assistance of counsel. Strickland v. Washington, 466

U.S. 668, 686,104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). To establish ineffective

assistance of counsel, a defendant must prove (1) defense counsel's representation

was deficient, i.e., it was below an objective standard of reasonableness under the

circumstances and (2) the deficient representation prejudiced him, i.e., a reasonable

probability exists the outcome would have been different without the deficient



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No. 30944-4-111
State v. Ruiz-Alcala


representation. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

We must strongly presume effective representation. Id. at 335. Ineffective assistance

of counsel claims cannot be based on defense counsel's legitimate strategic or tactical

decisions. Id. at 335-36.

       Washington courts recognize U[c]ounsel's decisions regarding whether and when

to object fall firmly within the category of strategic or tactical decisions." State v.

Johnston, 143 Wn. App. 1, 19, 177 P.3d 1127 (2007). Failing to object constitutes

ineffective assistance of counsel U[o]nly in egregious circumstances, on testimony

central to the State's case." Id. Thus, to prove ineffective assistance of counsel for

failing to object, a defendant must "show that the failure to object fell below prevailing

professional norms, that the objection would have been sustained, and that the result of

the trial would have been different if the evidence had not been admitted." State v.

Sexsmith, 138 Wn. App. 497,509,157 P.3d 901 (2007).

       The trial court mainly found a new trial was warranted because defense counsel

failed to object to evidence of the marijuana seeds and the drug sniffing dog. These

errors, compounded by defense counsel's mention of the gun and failure to object to the

tarp, raised concerns that Mr. Ruiz-Alcala did not receive a fair trial. 1 Whether or not

anyone failure amounted to deficient performance, in the end the trial court decided



        1 The trial court stated U[t]he prosecution presented no evidence that the
defendant had ever personally been to the site where the marijuana was being grown."
Clerk's Papers at 114. The State challenges this conclusion, arguing sufficient
evidence was produced to support a conviction. While sufficient evidence is present, it
is not clear why the State argues this point, except that the court refused to so rule as it

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No. 30944-4-111
State v. Ruiz-Alcala


within its broad discretion that Mr. Ruiz-Alcala did not receive sUbstantial justice within

the meaning of CrR 7.5(a)(8).

       The first concern addressed by the trial court was defense counsel's failure to

object to the marijuana seeds. The trial court noted in its written decision and its

findings and order for a new trial that it would have sustained an objection to the seeds

based on ER 404(b) or ER 403, and defense counsel's failure to object to the seeds fell

below prevailing professional norms. The State contends the failure to object was a

tactical move as counsel "believed that the jury would be able to see through [the

miniscule amount of seeds] in terms of there being no connection." Report of

Proceedings (April 24, 2012) at 5. But the seeds were central to the State's case:

without the seeds, no other direct evidence inferred Mr. Ruiz-Alcala's knowledge of

marijuana manufacture, an element the State had to prove. See 11 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 50.11 (2), at 963 (3d ed.

2008). Without the seeds, the evidence showed (1) on one occasion (2) Mr. Ruiz-Alcala

picked up two men alleged to come from the grow yet who did not smell like marijuana

(3) in a car owned by his brother that, at some time, smelled like one of four drugs and

(4) he owned common household items that could be used to package drugs.

      Furthermore, the trial court reasoned Mr. Ruiz-Alcala was prejudiced to some

extent by the admission of this evidence, especially given how heavily the State

emphasized the seeds and their importance in its closing, for the jury to make


did not believe evidence sufficiency was the issue. Because the grant of a new trial was
based on a different ground, we do not further address evidence sufficiency.

                                             6
No. 30944-4-111
State v. Ruiz-Alcala


assumptions about why Mr. Ruiz-Alcala had marijuana seeds in his bedroom. We

cannot say the record, minus the seeds, strongly supports Mr. Ruiz-Alcala's guilt on the

manufacturing count. But we can say the trial judge was in the best position to decide

whether substantial justice was done under the circumstances. In other words, the trial

court viewed Mr. Ruiz-Alcala's defense counsel's performance as substandard based

on its view of the whole trial.

       While the reasons enunciated by the trial court may alone not constitute

ineffective assistance of counsel, the trial court reasoned they added cumulatively in

effect to deprive Mr. Ruiz-Alcala of substantial justice. Furthermore, the trial court

indicated it would have sustained an objection to the blue tarp evidence, a matter within

the trial court's discretion. The trial court, in its perspective of the overall trial, criticized

the defense counsel's mention of the gun owned by Mr. Alcala as serving no purpose

and painting Mr. Ruiz-Alcala in a bad light. Concerning the failure to object to the drug

sniffing dog's conduct and the blue tarp found in Mr. Ruiz-Alcala's home, defense

counsel could be argued to have utilized legitimate strategic cross-examination to

undermine the significance of the evidence, but the trial court is in the best position to

gauge the prejudicial effect against the trial evidence.

       In sum, we conclude the State fails to point to strong evidence of an abuse of

discretion by the trial court in declaring a new trial was warranted. Given this record, we

cannot say the trial court erred in its new trial rulings and in concluding under CrR

7.5(a)(8) that substantial justice had not been done. The trial judge enjoys a unique



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No. 30944-4-111
State v. Ruiz-Alcala


position to determine if a defendant has received a fair trial. Finally, considering the

views about the State's case expressed by the judge and to insure a fair trial to both

parties, we remand for a new trial before a new judge.

      Affirmed.

      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.



                                                         ~.f:4r.
                                                         Brown, AC.J. 

WE CONCUR: 


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Korsmo, J.                                               Lawerence-Berrey, J




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