In re Pers. Restraint of Ramirez

• Decision Date: 23 November 2021
• Docket Number: 54813-5-II
• Court: Washington Court of Appeals
• Parties: In Re the Personal Restraint of: DANIEL GALEANA RAMIREZ, Petitioner.

In Re the Personal Restraint of: DANIEL GALEANA RAMIREZ, Petitioner.

No. 54813-5-II

Court of Appeals of Washington, Division 2

November 23, 2021

UNPUBLISHED OPINION

Worswick, J.

Daniel Galeana Ramirez seeks relief from personal restraint imposed as a result of his 2016 convictions for two counts of first degree assault while armed with a firearm. He argues (1) that the trial court erred when it admitted speculative testimony (2) that he was denied a fair trial because police interviewed a Spanish-speaking victim without using a certified interpreter, (3) that he was denied due process when the trial court allowed the State to ask a compound question to the jury venire during voir dire, (4) that he was denied due process and a fair trial when the trial court sentenced him to a higher sentence than the State recommended, and (5) cumulative error denied him of a fair trial. We deny Galeana Ramirez's petition.

FACTS

I. Background and Pretrial Procedure

A. October 2014 Robbery and Assault

Galeana Ramirez filed this petition to seek relief from a 2016 conviction that arises out of two related incidents that occurred in October 2015. State v. Ramirez, 7 Wn.App. 2d 277, 280, 432 P.3d 454 (published in part), review denied, 193 Wn.2d 1025, 445 P.3d 567 (2019). We previously decided Galeana Ramirez's direct appeal, along with those of his codefendants, Alejandro Ramirez and Steven Nicolas Russell, in January 2019. Ramirez, 7 Wn.App. 2d at 280. We set forth the relevant factual background in that opinion: ¹

Jose Leiva-Aldana and Agustin Morales-Gamez were walking home on the night of October 24, when they were accosted by two men. The men demanded money, tried to take Leiva-Aldana's wallet and took Morales-Gamez's cell phone. The men, later identified as [Alejandro] Ramirez and Russell, physically assaulted Leiva-Aldana and Morales-Gamez; during the assault, Morales-Gamez was hit in the head with a hard metal object.^[1] Morales-Gamez fought back with a small knife and the attackers fled. Leiva-Aldana and Morales-Gamez reported the incident to the police.

After reporting the incident to police, Leiva-Aldana and Morales-Gamez walked home in the early morning hours of October 25. As they approached their home, they were again accosted and assaulted by two men, later identified as Russell and [Daniel] Galeana Ramirez. During this second assault, the attackers shot Leiva-Aldana in the stomach and shrapnel from a bullet hit Morales-Gamez in the foot.

Officers discovered a cell phone at the scene of the October 24 robbery incident. Detective Dave Cox sent the cell phone to the Computer Crime Institute at Dixie State University in order for them to perform a "chip-off" procedure. Verbatim Report of Proceedings (VRP) (June 30, 2016) at 19. Chip-off forensics is a high-tech method of extracting and analyzing data stored on flash memory chips. This method often allows the extraction of data from devices even if the device is damaged or the data has been deleted. See VRP (June 30, 2016) at 26. Detective Cox later received the cell phone back with hundreds of pages of data extracted from the cell phone.

. . .

. . . Based solely on the October 25 incident, the State charged Galeana Ramirez with first degree assault of Leiva-Aldana (count I) and first degree assault of Morales-Gamez (count II).

Ramirez, 7 Wn.App. 2d at 280-81. The State also charged Russell and Ramirez with multiple crimes. Ramirez, 7 Wn.App. 2d at 281.

B. Joinder and Transportation

Before trial, the State moved to join Russell's, Ramirez's, and Galeana Ramirez's cases. The trial court granted the motion and ordered the cases joined for trial over defense counsels' objections. Subsequently, each appellant filed motions to sever which the trial court denied.

Prior to voir dire, Galeana Ramirez's counsel expressed concern about how the defendants were being brought into the courtroom. Counsel stated that while the defendants were obviously in custody and being guarded by jail staff, they were brought down a hallway past the room where jurors were sitting. The trial court responded that counsel could ask about this during voir dire and declined the request to start the trial on another day. Despite the trial court's invitation, none of the defense counsel questioned the jury panel about this issue.

Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 10 https://www.courts.wa.gov/opinions/pdf/D2%2049245-8-II%20Published%20Opinion.pdf.^[2]

C. Pretrial Motion to Admit Cell Phone Testing Results

Before trial, the parties learned that William Matthews, the technician who performed the chip-off data extraction from the cell phone found at the scene of the robbery, could not be located for trial. The State sought to admit the data extraction results by laying a foundation with Joan Runs Through, the assistant director of the Computer Crime Institute.

At the hearing on this matter, Runs Through admitted that she did not extract the data and that her testimony relied entirely on the report of testing done by Matthews. Runs Through testified generally about the type of data Matthews could have extracted from the cell phone, which included text and short message service messages, pictures, Internet activity, and calendar information. Runs Through also testified that she was familiar with the chip-off process and that she had taught the process to other technicians at the university. Specifically, she testified that there is nothing that a technician or an examiner can do to change data on the chip. Runs Through further testified that she looked through the extracted cell phone information and that the process had worked correctly.

Defense counsel objected to Runs Through's testimony and argued that the cell phone evidence should be excluded unless Matthews testified. The trial court disagreed and ruled that Runs Through could testify about the chip-off process.

Ramirez, 7 Wn.App. 2d at 281-82.

D. Jury Venire Voir Dire

During voir dire of the jury venire, the State asked prospective jurors questions about whether the prospective jurors had been victims of a crime and whether it would affect their ability to be impartial decision-makers. The State first questioned the jury venire generally if anyone had been a victim of a crime, before turning to individual prospective jurors to ask questions.

The State asked five different prospective jurors, who had identified themselves as victims, to generally describe the crime, how long ago it had been, and whether it would be difficult for them to sit as jurors. After questioning the initial five, the State asked the jury venire generally if any of them had been a victim of a crime:

[PROSECUTOR]: Anybody here-a lot of people answered yes to that question so I'm just going to throw it out to anybody here who has been a victim of a crime, is there anything about that experience, is the wound too raw?

Is there something about that experience that makes you think, 'Hey, I don't know if I can sit on this jury and be fair?' Ma'am, what's your number?

PROSPECTIVE JUROR: 83.

[PROSECUTOR]: 83. And may I inquire what happened to you ma'am?

PROSPECTIVE JUROR: Violence.

[PROSECUTOR]: Okay. And is that something fairly recent?

PROSPECTIVE JUROR: Yes.

[PROSECUTOR]: All right. And, you know, I don't want to get into your private affairs, understandably this is something that has affected you. You're telling me that this is going-if you were selected to sit on this jury, that you could not put what happened to you to one side, is that what you're saying?

PROSPECTIVE JUROR: Yes.

2 VRP (June 28, 2016) at 69-70. The trial court then excused prospective juror 83 for cause without objection.

II. Trial

The case proceeded to joint trial of Galeana Ramirez, Ramirez, and Russell. The victims, police officers, and Runs Through all testified. We summarized their testimony on direct appeal.

A. Cell Phone Analysis

At trial, Runs Through testified extensively about the chip-off process and the preparation of the resulting report. She did not testify about the contents of the cell phone found at the scene of the robbery. The trial court admitted portions of the report. Based on the report exhibits, Detective Cox testified about the data extracted from the phone that allowed him to connect the cell phone to Russell and then to connect Russell to Ramirez. Detective Cox also testified that the data extracted from the cell phone included text messages from Russell to Ramirez inviting Ramirez to go out for a beer at 7:00 pm on the night of October 24.

Ramirez, 7 Wn.App. 2d at 282. B. October 24 Incident

At trial, the jury heard the following evidence related to the October 24 incident.

On October 24, 2015, Morales-Gamez and Leiva-Aldana were walking home when they were attacked from behind in an alley near their home. The event was captured by [nearby] video cameras.

Morales-Gamez testified that when the men attacked them 'they were yelling and they wanted [Morales-Gamez and Leiva-Aldana] to give them the wallet, [their] money.' VRP (June 29, 2016) at 92. The men hit Morales-Gamez in the head with something metal and he fell to the ground. Morales-Gamez also testified that the men took his cell phone. Morales-Gamez defended himself with a knife during the incident. After the attack, Morales-Gamez asked a nearby woman who witnessed the incident to call the police.

Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 10-11. Leiva-Aldana's testimony and that of two witnesses corroborated Morales-Gamez's account. Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 11-12.

Detective Jason Perkinson testified that on October 24, he was working security at Grays Harbor Community Hospital. While working, he saw two men, later identified as Russell and Ramirez,

...