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In re Personal Restraint of Gomez

Supreme Court of Washington, En Banc

May 8, 2014

In the Matter of the Personal Restraint of Maribel Gomez, Petitioner

Argued March 12, 2013.

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[Copyrighted Material Omitted]

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Appeal from Grant County Superior Court. 04-1-00312-4.

Jacqueline McMurtrie and M. Fernanda Torres (of Innocence Project Northwest Clinic, University of Washington School of Law ), for petitioner.

D. Angus Lee, Prosecuting Attorney for Grant County, and Kevin J. McCrae, Deputy, for respondent.

Travis Stearns, Sarah A. Dunne, Nancy Lynn Talner, and Benjamin A. Mayer on behalf of Washington Defender Association and American Civil Liberties Union of Washington, amici curiae.

Robert C. Boruchowitz and Suzanne Lee Elliott on behalf of Washington Association of Criminal Defense Lawyers and The Defender Initiative, amici curiae.

Amy I. Muth on behalf of The Innocence Network, amicus curiae.

Pamela B. Loginsky on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.

WE CONCUR: James M. Johnson, Justice Pro Tem. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Debra L. Stephens, Justice Steven C. Gonzá lez.

OPINION

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[180 Wn.2d 342] J.M. Johnson, J. [*]

¶ 1 It is difficult to imagine a child more vulnerable than Rafael Arechiga-Gomez, who came into this world drug-addicted. The State system designed to safeguard vulnerable children did not save Rafael. His short life was punctuated by severe and continual abuse at the hands of his own mother, Maribel Gomez. During the brief periods of time that he was in his mother's care, Rafael endured a broken right tibia, bruises, lacerations to his nipples, a broken left femur, an occipital skull fracture, pinched ears, an infected scab injury to the back of his skull, burns on his left hand, burns on his tongue, at least one other skull fracture, an impact injury to his forehead, fractures to both upper arms, and the fatal blow to his head that ended his life at only 25 months.

¶ 2 This case arises from the legal defense of Maribel Gomez against charges of manslaughter and homicide by abuse for the death of her son. The question is one of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution.

¶ 3 Gomez has not met her burden of proving ineffective assistance of counsel. The trial court transcripts paint a picture of a supremely fair trial at which Gomez was represented by a highly competent attorney. Having received a fair trial with effective attorney assistance, the [180 Wn.2d 343] State was able to prove all elements of homicide by abuse. We accordingly deny her personal restraint petition.

Issues

¶ 4 I. Did Gomez receive counsel free of conflicts of interest?

¶ 5 II. Did Gomez receive effective assistance of counsel?

Facts

¶ 6 Gomez gave birth to Rafael on August 7, 2001, in the backseat of her car. He was

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taken to the hospital, where he tested positive for methamphetamine, cocaine, and other nonprescribed controlled substances as a result of her drug use during pregnancy. Rafael was placed in foster care and was later declared a dependent of the State of Washington. In the 10 months he was in foster care, from August 10, 2001, through June 4, 2002, Rafael did not sustain any significant injuries. At the time he was placed in Gomez's custody, Rafael was an " easy" baby who could feed himself.

¶ 7 In September 2002, three months after leaving foster care and returning to his biological family, Rafael was taken to Samaritan Hospital for a fractured right tibia. He also had numerous bruises on his abdomen and back in the shape of a hand print. The following day, the physician's assistant who casted Rafael's leg noticed lacerations on both of his nipples.

¶ 8 In early December 2002, less than three months after his broken tibia, Rafael was taken to Quincy Valley Medical Center for a broken left femur. He was then transferred to Central Washington Hospital, where Gomez falsely reported a history of a normal pregnancy and reported no prior hospitalizations. In addition to the proximal femur fracture, he was diagnosed with an occipital skull fracture, a pinch mark bruise to his ear, an infected scab injury to the occipital bone at the back of the skull, burns on his left [180 Wn.2d 344] hand, and a burn on his tongue. When the x-rays were reviewed, an additional skull fracture was noted that was in the early stages of healing. More than one physician had concerns of abuse, and Child Protective Services (CPS) was contacted. One treating physician, Dr. Cook, " had no doubt that Rafael had been physically abused." Finding of Fact (FF) 2.17. Rafael was returned to his foster family, where he again sustained no serious injuries.

¶ 9 Rafael was returned to Gomez three months later on March 21, 2003. Gomez testified that Rafael rolled off the bed and hit his forehead about a week before his death. She testified that she took him to CPS to show the injury to her case worker, Murray Twelves, and his supervisor, Cecelia DeLuna. Mr. Twelves and Ms. DeLuna both testified that Gomez never brought Rafael into CPS to show them his injury.

¶ 10 On September 9, 2003, less than six months after being returned to Gomez's care for the final time, the events occurred that led to Rafael's death. Gomez testified that she was feeding soup to Rafael when he threw himself backward in a tantrum with a mouth full of soup. According to Gomez, Rafael hit his head on the floor, lost consciousness, and died the next day. Rafael was declared dead on September 10, 2003, at approximately 25 months old. An autopsy was performed one day after his death. The autopsy indicated blunt force injuries of the head to include

abrasions of the face, right ear, and scalp; subgaleal hemorrhages of the occipital scalp and supragaleal hemorrhage of the frontal scalp, acute and subacute; occipital skull fractures, acute and chronic, focal organizing epidural hemorrhage; acute subdural and subarachnoid hemorrhages; cerebral edema; and focal acute ischemic changes of the cerebrum. The autopsy further revealed bilateral retinal hemorrhages, contusions of the back and upper extremities, and periosteal and epiphyseal-metaphyseal injuries of the proximal humeri. The injuries showed variably acute to subacute and chronic features. The features of the skull fractures suggested acute/recent fractures [180 Wn.2d 345] superimposed on an area of previous skull injury. Dr. Ross' autopsy findings were consistent with non-accidental trauma. Based on the autopsy findings and the investigative history, Dr. Ross concluded that Rafael died as a result of blunt force injuries of the head. He indicated that the manner of death was homicide .

FF 2.33 (emphasis added).

¶ 11 The autopsy revealed multiple skull fractures of varying ages, as well as new injuries that had not been noted while Rafael was alive. These new injuries included breaks to his upper arms. Dr. Feldman testified that this occurred when Rafael's arms were jerked severely enough to separate the bones at the shoulders. Although Gomez testified that Rafael exhibited self-injurious behaviors, the foster mother, the

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day care provider, and the case worker all testified that they had never observed such behavior.

¶ 12 Rafael's death in Gomez's presence gave rise to dependency proceedings in 2004 and 2006 to determine the status of the other children of Gomez and Jose Arechiga, Rafael's father. During the 2004 proceedings, both Gomez and Arechiga argued that Rafael's injuries resulted from accidents or Rafael's odd behavior. During the dependency proceedings, Robert Moser, a local defense attorney, represented Arechiga and another attorney represented Gomez.

¶ 13 Around the time of the 2004 proceedings, the State charged Gomez with manslaughter. Instead of having her attorney at the dependency proceedings defend her against the manslaughter charge, Gomez retained Arechiga's attorney, Moser. Moser's experience included trying misdemeanors as a district court deputy prosecutor and practicing criminal and tort law privately.

¶ 14 When Moser began representing Gomez, he based his investigation of her case on the facts and impressions he gathered from the 2004 proceedings. At the proceedings he heard testimony from friends, neighbors, social workers, and doctors who had seen Rafael while he was alive or after [180 Wn.2d 346] his death and who had reviewed his medical records for CPS. Such testimony led him to believe that Gomez's argument about accidents and self-injury would not persuade a judge or jury. Moser states, however, that when he learned new information from Gomez concerning this argument, he endeavored to interview new witnesses. Because Gomez speaks Spanish and, as Moser admits, her English skills are " not very good," App. 4, at 4, [1] the two sometimes spoke through a bilingual friend of Gomez's or a court interpreter.

¶ 15 In addition to investigating lay witnesses, Moser sought out expert witnesses to opine on the cause of Rafael's death. Moser's theory of the case appears to have been that Rafael's death was not due to his fall while eating soup the day before his death, but rather a fall he took from a bed and onto his head a few days prior. Moser eventually retained Dr. Janice Ophoven, a forensic pathologist who specializes in diagnosing the cause of child injuries and deaths, to opine on the cause of Rafael's death.

¶ 16 Dr. Ophoven requested autopsy slides and radiology images from Moser, but Moser did not fulfill her request until around the start of trial. He did, however, write to Dr. Ophoven to provide her with background information, including that Rafael had suffered many injuries that were " suspicious for child abuse." App. 18, at 2. Dr. Ophoven misunderstood Moser's letter to mean that CPS had confirmed the history of abuse.

¶ 17 At trial, Dr. Ophoven testified that Rafael died of aspiration pneumonia (choking) and conceded that Rafael had been abused. Her ultimate conclusion was that the cause of death was undetermined. The trial judge concluded that Rafael died of blunt force trauma and that Gomez caused his death. The trial judge also concluded that the upper arm injury, occipital skull fracture and epidural [180 Wn.2d 347] hemorrhage, bruised/gouged ear injuries, and lacerated nipples were all the result of assaults by Gomez. She was convicted of manslaughter and homicide by abuse.

¶ 18 On appeal, the manslaughter conviction was vacated on double jeopardy grounds. State v. Gomez, noted at 147 Wn.App. 1003, 2008 WL 4561499, Gomez then filed a personal restraint petition, which was denied by the Court of Appeals. In re Pers. Restraint of Gomez, noted at 164 Wn.App. 1017, 2011 WL 4839109, Petitioner then filed a motion for discretionary review before this court, which was granted. In re Pers. Restraint of Gomez, 175 Wn.2d 1005, 284 P.3d 742 (2012).

Standard of Review

¶ 19 To prevail on a collateral attack on a judgment and sentence by way of a personal restraint petition, a petitioner must generally first establish that a constitutional error has occurred and it has resulted in

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actual and substantial prejudice or that a nonconstitutional error has caused a complete miscarriage of justice. In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285 (2010) (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004)). However, " if a personal restraint petitioner makes a successful ineffective assistance of counsel claim, he has necessarily met his burden to show actual and substantial prejudice." In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). An appellate court will review a claim of ineffective assistance of counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009) (citing In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001)).

¶ 20 In order for a petitioner to prevail on an ineffective assistance claim, she must overcome the presumption that her counsel was effective. State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). To do this, she [180 Wn.2d 348] must demonstrate that " (1) 'counsel's representation fell below an objective standard of reasonableness' and (2) 'the deficient performance prejudiced the defense.'" In re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Accordingly, to prevail on her claim, Gomez must first prove that Moser's " acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. She must then demonstrate " that there is a reasonable probability that, but for counsel's ...


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