Campos–alvarez v. United States, s. 08–CF–669

Docket Nº08–CF–875.
Citation16 A.3d 954
Case DateApril 07, 2011
CourtCourt of Appeals of Columbia District

16 A.3d 954

Elmer CAMPOS–ALVAREZ and Marta Campos, Appellants,

Nos. 08–CF–669


District of Columbia Court of Appeals.

Argued Sept. 27, 2010.Decided April 7, 2011.

[16 A.3d 957]

Jessica Brand, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant Campos–Alvarez.Ferris R. Bond, Washington, for appellant Campos.Elizabeth H. Danello, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, and Roy W. McLeese III, Daria J. Zane, and Jennifer A. Kerkhoff, Assistant United States Attorneys, were on the brief, for appellee.Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.GLICKMAN, Associate Judge:

Appellants Elmer Campos–Alvarez and Marta Campos were tried together before a jury on charges arising out of a gang-related shooting. The jury found Elmer Campos–Alvarez guilty of assault with intent to kill while armed, aggravated assault while armed, three counts of assault with a dangerous weapon, and several related weapons offenses. It found Marta Campos guilty of obstruction of justice and conspiracy to obstruct justice. Although appellants raise several grounds for reversal, for the most part we affirm their convictions.

I. The Evidence at Trial1
A. The Shooting

On the evening of August 5, 2002, Kenny Loza, his uncle Noel Loza, and his friend Javier Morales were attacked outside an apartment building in Northwest Washington, D.C. They were coming out of the building together when two men entered the driveway. At trial, Kenny Loza and Morales identified appellant Elmer Campos–Alvarez as one of the two men.

According to Kenny Loza, Campos–Alvarez confronted him, uttered a few angry words, pulled out a gun, and started shooting. Kenny was shot in the back and collapsed near where he had been standing. Noel Loza testified that Campos–Alvarez and his companion “shot directly at my nephew [Kenny] first, and then they shot at me as we were running.” Noel managed to escape inside the apartment building, though he sustained gunshot wounds to his arm, knee, and hip. Javier Morales, who was standing somewhat apart from Kenny and Noel when the shooting began, also made it back inside the building, after first taking refuge behind a parked car and firing his own gun at the two assailants. “[E]verything happened so fast,” Morales testified.

[16 A.3d 958]

Other witnesses saw the shootings but could not identify the attackers. James Bryant was in the lobby of the apartment building when the gunfire erupted. He heard multiple gunshots and saw yellow flashes outside, which appeared to come from the driveway. Bryant was injured by glass fragments from the shattered front door. Jose Benitez also heard multiple gunshots as he and his daughter left the building and rushed back inside. Terrence Burnett was parking his jeep in front of the building when he heard the shots and saw sparks flying from the hands of two young men.

B. The Motive

Over defense objection, the government presented evidence at trial that the motive behind the assault on the Lozas and Javier Morales was gang-related. Kenny Loza and Morales were members of Vatos Locos, a Salvadorian gang. Appellant Campos–Alvarez belonged to Mara R (also called La Raza), a different Salvadorian gang. In the summer of 2002, Mara R was involved in a violent feud with Vatos Locos. Roque Lopez, a former Mara R gang member, testified at trial that Vatos Locos had “done a lot of shootings to us,” and that Vatos Locos leader Oscar Chavez had killed a man named Walter Villatoro. Although Villatoro was not an actual member of Mara R, he had affiliated himself with that gang, and he was a friend of Campos–Alvarez.

According to Roque Lopez, Campos–Alvarez and his friend Jaime Alvarez visited him early in the evening on August 5, 2002. Campos–Alvarez invited Lopez and his acquaintance Jose Luca “to go take revenge from the V.L. people,” and said he planned “to go shooting” at a nearby location where Vatos Locos members gathered. Lopez declined the invitation. He talked with Campos–Alvarez again some time after the shooting. Campos–Alvarez “told me that they went into the building where the V.L. people was [ sic ],” Lopez testified, “and that they saw the V.L. people, and they began shooting.” Campos–Alvarez purportedly identified one of the Vatos Locos targets as Javier Morales and said that they shot at will and “didn't care who they g[o]t.” Campos–Alvarez also asked Lopez whether Kenny Loza was alive or still in the hospital.

C. Attempts to Prevent Kenny Loza's Testimony

Campos–Alvarez was not arrested until 2006. His former girlfriend, Miradis Viera–Miranda, visited him while he was in the D.C. Jail awaiting trial. She testified that Campos–Alvarez asked her to offer Kenny Loza $5,000 to induce him not to appear in court. Campos–Alvarez renewed this request when Viera–Miranda visited him again in January 2007. He was angered when Viera–Miranda later told him that she “didn't want to get involved in nothing.”

Appellant Marta Campos, Campos–Alvarez's sister, telephoned Viera–Miranda repeatedly to press her about contacting Kenny Loza. Campos left several voice mail messages for Viera–Miranda, who usually did not pick up the phone because she “didn't want to get involved.” Sometimes Campos and Campos–Alvarez were on the call together to ask Viera–Miranda to help “them” out. On one occasion, Marta told Viera–Miranda that she and Campos–Alvarez were going to give her three thousand dollars “to get in contact with Kenny.”

Viera–Miranda testified that in some of the phone calls, made between January and April 2007, Campos specifically asked her to “offer” Kenny Loza “money so he won't come to court.” Kenny Loza confirmed at trial that Viera–Miranda informed

[16 A.3d 959]

him that Marta Campos “told her to call me to offer me money so I wouldn't come to court to testify against [Campos–Alvarez].” According to Viera–Miranda, Campos–Alvarez insisted to her “that he was innocent,” and she professed to believe that the money was being offered to prevent an innocent man (Campos–Alvarez) from being convicted.

Marta Campos also approached Javier Morales's cousin, Melvin Morales, to obtain Kenny Loza's telephone number and address. Melvin's sister Elizabeth Morales overheard Campos tell him she “wanted to speak to Kenny to offer him money to not show up to court.” Kenny Loza recalled talking with Elizabeth Morales about Campos's efforts to give him money “[n]ot to come testify against [Campos–Alvarez].”

Melvin Morales, who was the brother of Vatos Locos leader Enrique Morales, was called at trial as a defense witness. He testified that Marta Campos asked him to tell Kenny Loza to be sure her brother was the shooter if he was going to testify against him in court.2 If Loza was certain, then he should “go to court and do what he got to do.” But if he was not sure Campos–Alvarez shot him, or was not going to testify truthfully, then he should not go to court “because why would he want to get someone in jail for something they didn't do.” If everything “went well” and the case was dismissed, Morales testified, Kenny Loza could “probably get some money” from Campos–Alvarez.

II. Elmer Campos–Alvarez's Claims on Appeal
A. Admissibility of Evidence of Gang Activity

Campos–Alvarez's main contention on appeal is that the trial judge erred in admitting the evidence of his membership in Mara R and the violent rivalry between Mara R and Vatos Locos. Campos–Alvarez argues that this evidence was unnecessary to advance the government's case and served only to inflame the jury against him. According to Campos–Alvarez, guilt by association subverted his defense. We disagree.

The admissibility of the evidence of gang membership and activity was raised in advance of trial. The government moved for leave to introduce the evidence, contending that it showed the context of and motivation for the shootings. Campos–Alvarez moved in limine to exclude the evidence, arguing it was unnecessary and unduly prejudicial because, under the prosecution's theory of the case, he had a motive to commit the shootings to avenge the killing of his friend Walter Villatoro regardless of his membership in Mara R. The judge rejected appellant's argument and permitted the prosecution to present the proffered gang evidence. The judge reasoned that the evidence would be helpful in making sense of the crime, “[p]articularly where there [was] no evidence that the victim ... was the person that shot the friend [Walter Villatoro].” Proof that the attack took place in the context of ongoing gang rivalry showed that it was “more than just revenge for the shooting of a friend.”

The trial judge's decision to admit the gang evidence is subject to review for abuse of discretion.3 Evidence is relevant, if it has “any tendency to make the existence of any fact that is of consequence more or less probable than it would be

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without the evidence.” 4 When gang evidence is relevant, the trial judge must “balance the probative value of the gang references against their potential for prejudice.” 5 We recognize that a defendant may be prejudiced in the eyes of the jury by evidence of his gang involvement. This court has “cautioned trial judges to consider carefully before admitting evidence of gang retaliation, and then only after ensuring that the government's evidence is relevant, necessary and supported by competent evidence.” 6 The “trial judge has the discretion to exclude [such] evidence if its probative value is substantially outweighed by the danger of unfair prejudice.” 7 There is, however, no special admissibility rule for gang-related evidence: it is subject to the same balancing standard as applies to the admission of evidence generally.8 Such balancing “is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision.” 9

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