Ocampo v. Vail
| Decision Date | 09 June 2011 |
| Docket Number | No. 08–35586.,08–35586. |
| Citation | 2011 Daily Journal D.A.R. 8467,649 F.3d 1098,11 Cal. Daily Op. Serv. 7035 |
| Parties | Santana OCAMPO, Petitioner–Appellant,v.Eldon VAIL, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Suzanne Lee Elliott, Seattle, WA, for the petitioner-appellant.Robert M. McKenna, Attorney General of Washington, and Gregory J. Rosen, Assistant Attorney General, Olympia, WA, for the respondent-appellee.Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, Senior District Judge, Presiding. D.C. No. 3:07–cv–05671–FDB.Before: WILLIAM C. CANBY, JR., JOHN T. NOONAN and MARSHA S. BERZON, Circuit Judges.
Following a jury trial in Washington state court, Santana Ocampo was found guilty of first-degree murder for the August 9, 2003, fatal shooting of Julio Morales–Castro. Ocampo maintains that his constitutional right to confront witnesses was denied in his jury trial by the admission of testimony by law enforcement officers regarding statements made by a potential witness who did not testify. The district court denied his federal petition for habeas corpus relief. We reverse.
Julio Morales–Castro was fatally shot in the head on the evening of August 9, 2003, while sitting in his car outside a pool hall in Tacoma, Washington. Members of the Hispanic gang Surreño 13 frequently “hung out” in the area. A witness at the scene reported seeing a blue minivan driving away after the shooting; other witnesses reported seeing three young, male, Hispanic gang members running from the scene.
The primary issue at trial was whether Ocampo was present at the scene of the crime. The prosecution claimed that Ocampo was in the van and, with a Surreño 13 gang member named Jose Hernandez,1 attempted to steal Morales–Castro's car before shooting him. Ocampo's defense was that he was at a party, a Quinceañera,2 the entire time.
Detectives investigating the shooting showed photos of several Surreño 13 gang members to witnesses, who identified Hernandez as one of the young men running from the scene.3 Hernandez implicated Ocampo and led detectives to Baldemar Vela and Mesial Vasquez, who were also interviewed.
At trial, Detective Webb testified that during his first interview with police, Hernandez named the person who shot Morales–Castro. Webb went on to state that, on the basis of this information, he drafted a search warrant for Ocampo's residence and arrested Ocampo when the search warrant was served. Webb also reported that on the basis of the information provided by Hernandez, he believed Ocampo was the shooter.
Hernandez also testified at the trial. He named Ocampo as the shooter, maintaining that his factual account at trial was consistent with the information he provided the police in his initial post-arrest statement. 4
Another witness at Ocampo's trial was Vela. (Both he and Hernandez were problematic witnesses for reasons discussed below.) Vasquez, in contrast, did not appear at trial. Instead, two detectives were allowed to testify that his statements to police had corroborated Hernandez's statements to the police, and by implication, his testimony at trial. This appeal is focused on those detectives' testimony about what Vasquez had said to the police.
Although this appeal centers on the two detectives' testimony about Vasquez, we begin by discussing Vela's and Hernandez's police interviews and trial testimony in detail. Their statements and testimony are pertinent both to the merits of the confrontation issue, for reasons that will appear, and to assessing the degree of prejudice caused by any Confrontation Clause violation.
Vela was reluctant to provide information to police because he was afraid of retaliation by the Surreño 13 gang. He did tell detectives, however, the following:
Vela, out drinking with Hernandez on the night of the shooting, gave a ride in his van to Hernandez and two of Hernandez's friends. When Vela stopped near the pool hall to purchase beer, Hernandez and his two friends got out of the van and went in one direction, while Vela walked in another. About two minutes before Hernandez reappeared, Vela heard what he thought was the sound of a firecracker.
When he returned from wherever he had gone, Hernandez, nervous and sweating, found Vela outside the store and insisted that they needed to leave because “someone was tripping on him.” 5 Vela and Hernandez then took different routes back to Vela's van. When Vela arrived, Hernandez and his two friends were already seated in the van. According to Vela, he drove, and Hernandez was in the front passenger seat. As he was driving, Vela heard someone in the backseat say, “I was tripping, so I had to shoot him.”
After giving his story, Vela identified Hernandez from a montage of black-and-white photographs. What happened next is disputed: According to Vela's trial testimony, he could not identify the two friends with Hernandez the night of the shooting. During his interrogation, the detectives gave him a single, color, Polaroid photograph and asked if the person in the photograph was one of Hernandez's friends. Vela testified that when he told the detectives that he did not know, they responded by telling Vela that the person in the photograph had already admitted to being in the van. Vela then responded by saying,
Detectives Yerbury and Ringer testified differently from Vela. They explained that when interviewed, Vela was so scared of gang retaliation that he talked about moving away or joining the military. According to the detectives, Vela “minimized his knowledge” and spoke in vague generalities. The detectives showed Vela a photograph of Ocampo, who was being interviewed in a different room. They did this because they were concerned that if they waited until Ocampo had been booked, Vela would be uncooperative and back-pedal. According to the detectives, Vela readily identified Ocampo as one of Hernandez's two friends,6 although he did not know if Ocampo was the one who spoke of shooting someone.
Hernandez agreed to testify for the State in exchange for a second-degree murder plea agreement with a recommended sentence of 244 months.7 He testified as follows:
On the night of the shooting, Vela gave him, Ocampo and Vasquez a ride. When Vela stopped at the pool hall, Hernandez and Ocampo wandered off and decided to steal a car they saw because it had valuable tires and rims. Ocampo told Hernandez that he had a gun and would keep a lookout while Hernandez broke into the car. As Hernandez was walking toward the car, Morales–Castro left the pool hall and headed toward the same car. Hernandez then attempted to walk away, but Ocampo urged him not to. Complying, Hernandez continued forward and stood near the front of Morales–Castro's car while Ocampo approached Morales–Castro and asked him for bus money. Morales–Castro responded he had no money. He then attempted to drive off, but Ocampo shot him in the head.
The State also called a juvenile detention officer, who testified that Hernandez had confided that he was in custody for murder and that he was the shooter. He informed her that she was the only one who knew the truth, and that he was going to plead not guilty. Hernandez then told another detention officer the same thing. The two officers decided that they had to file a report about his confessions and did so. The State argued to the jury that Hernandez's confessions were lies, designed to show off to his friends and to ensure that he was not regarded as a snitch.
As noted, this case centers on what Detectives Ringer and Webb said at trial about corroborating statements made by the other passenger in the van that night, Vasquez. Vasquez was not available at trial because, according to the State's “best information ... he and his family [had] returned to Mexico.”
Ringer had not personally interrogated Vasquez. He nonetheless testified that Vasquez's statements helped eliminate as suspects some individuals whom other witnesses had identified as being involved in the shooting: 8
A As we investigated further, we found that one of the photographs, Jose Hernandez's identification of him, was accurate, but then some of the others were people that they knew but had not actually been involved in the shooting.
Q Okay. How were you able to determine that?
A Well, eventually Jose Hernandez was arrested, he gave a statement. Later we contacted Baldemar Vela, and he gave a statement that verified what Jose Hernandez said. And still later, Mesial Vasquez was interviewed and he also verified the other two. And these excluded several individuals that had been named that night [by witnesses who saw young men fleeing after the shooting].
Q So he verified—Baldemar and he verified Jose Hernandez's statement?
A That's my understanding, yes.
Later in his testimony, Ringer again emphasized that Vasquez's statements had been used to rule out people who had previously been suspects:
Q Now, some of the photographs that were identified by these people later turned out, at least according to your investigation, to not be involved in this case, right?
A That's correct.
Q And the reason you say you knew that was because of a statement given by Jose Hernandez, right?
A That was just part of it. Statement given by Jose Hernandez, statement given by Baldemar Vela, statement by Mesial Vasquez.
The prosecution later sought to use Detective Ringer's testimony about Vasquez's statements to confirm Hernandez's participation and to implicate Ocampo:
Q Were you able to corroborate that [Hernandez] actually was a participant?
A Yes.
Q How were you able to do that?
A Through his own—his own admissions, through Baldemar Vela, through Mesial Vasquez.
Q What do you mean through Mesial Vasquez?
A My understanding, [sic] statement he gave also indicated...
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