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State v. Perez-Cervantes8/24/2000
of logical probability.' State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). In short, there was no evidence that affirmatively established that Perez-Cervantes acted recklessly or with criminal negligence in plunging the blade of his knife into Thomas. Whatever Perez-Cervantes' subjective intent, his objective intent to kill was manifested by the evidence admitted at trial. His requested instructions rested on the theory that the jury might disbelieve some of the evidence indicating his intent to kill, and find, by default, that he must have acted with recklessness or criminal negligence. This is not enough. See State v. Berlin, 133 Wn.2d at 546. The trial court properly refused to give Perez-Cervantes' requested instruction.
In his pro se supplemental brief, Perez-Cervantes makes additional claims of error, as follows: (1) he was unconstitutionally prevented from testifying in his own behalf; (2) his counsel was ineffective; (3) the trial court improperly admitted testimony of two witnesses; (4) the trial judge was biased against him; and (5) there was insufficient evidence to support his conviction.
Each of these claims is fundamentally flawed and deserves little discussion from this court in light of the fact that his brief contains only the barest of conclusory allegations. With respect to the first two assertions, Perez-Cervantes fails to make the factual showing required to compel further inquiry into whether he was denied either the right to testify, State v. Robinson, 138 Wn.2d 753, 760, 982 P.2d 590 (1999), or the right to effective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
With respect to the third claim, Perez-Cervantes asserts that the trial court erred in admitting the testimony of two of the State's witnesses.
Specifically, he contends that the testimony of the witnesses was not credible because they were 'under the influence of drugs' and their testimony was hearsay. Supplemental Br. of Appellant at 5. Because there was no objection to any of this testimony at trial, Perez-Cervantes may not now be heard to object. RAP 2.5(a); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). Moreover, Perez-Cervantes does not make any concrete allegations to demonstrate why the trial court abused its discretion in admitting the clearly relevant, though damaging, testimony of the two witnesses. He also fails to specify which aspects of the testimony was hearsay. For those reasons and because credibility determinations are properly the province of the jury, State v. Bencivenga 137 Wn.2d 703, 974 P.2d 832 (1999), we conclude that there was no error in admitting this testimony.
Perez-Cervantes' claim that the trial court was biased against him deserves no discussion because it is totally unsupported by any citation to the record. Finally, the claim that the evidence was insufficient to support his conviction fails because, assuming the truth of the State's evidence of guilt, a rational trier of fact could find each of the essential elements of second degree murder. State v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998).
IV.
In sum, we hold that the trial court committed none of the errors that Perez-Cervantes claims it made. The Court of Appeals is, therefore, reversed and the judgment of the trial court is reinstated.
JOHNSON, J. (dissenting)
There is no question about the established rules of law that are pertinent to this case--the majority simply does not apply them. The State bears the burden to prove all elements of the crime cha
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