In re Pers. Restraint of Quintero

• Docket Number: 38585-0-III
• Decision Date: 18 January 2024
• Parties: In the Matter of the Personal Restraint of JOSE MANUEL QUINTERO, Petitioner.
• Court: Washington Court of Appeals

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In the Matter of the Personal Restraint of JOSE MANUEL QUINTERO, Petitioner.

No. 38585-0-III

Court of Appeals of Washington, Division 3

January 18, 2024

OPINION

Lawrence-Berrey, J.

In this timely personal restraint petition (PRP), Jose Quintero raises five grounds for relief and raises an additional claim in his conclusion. In his second supplemental brief, he raises two new untimely claims and asserts a cumulative error argument for the first time. We decline to consider his two new untimely claims, but conclude that his cumulative error argument, premised on arguments raised in his timely petition, is not a new claim, and consider it.

Mr. Quintero's most noteworthy claim is that two nonconstitutional rulings were erroneous and violated his right to a fair trial, and his petition should be granted under the less strenuous "constitutional error" standard. We agree that the trial court's two rulings were erroneous and potentially highly prejudicial. We nevertheless determine that the errors, singularly or cumulatively, were nonconstitutional.

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Washington courts have yet to describe what type of nonconstitutional errors warrant collateral relief. We adopt the habeas corpus standard: The erroneous admission of prejudicial evidence will not justify collateral relief unless the evidence had a substantial and injurious effect on the jury's decision. In assessing this, we consider the importance of the wrongly admitted evidence and the overall strength of the State's case. The importance of wrongly admitted evidence is determined by the prosecutor's conduct with respect to the evidence, whether the evidence bore on an issue plainly critical to the jury's decision, and whether it was material to the establishment of a critical fact or whether it was instead corroborated and cumulative. The strength of the prosecution's case, absent erroneously admitted evidence, is probably the single most critical factor.

We conclude that the two nonconstitutional errors do not meet this standard for granting relief and deny Mr. Quintero's petition.

FACTS

In 2014 and 2015, Janette Rojas Balderas (Ms. Rojas) worked as a confidential informant for the Walla Walla Police Department. Ms. Rojas had agreed to help law enforcement conduct controlled buys of narcotics in exchange for leniency on her pending criminal charges. Throughout her time working as an informant, Ms. Rojas completed 15 controlled buys for law enforcement.

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In one of the controlled buys, Ms. Rojas purchased methamphetamine from Charley Lozano (Mr. Lozano). Law enforcement then charged Mr. Lozano with delivery of methamphetamine based on Ms. Rojas's controlled buy. Mr. Lozano eventually pleaded guilty and was scheduled to be sentenced on August 10, 2015. Through the discovery process in that case, Mr. Lozano learned Ms. Rojas's identity as the informant.

Ms. Rojas told police she heard the 18th Street Gang, a criminal street gang, had "green-lighted" her, meaning the gang identified her as a target because she was an informant for law enforcement. Rep. of Proc. (RP) at 963. Witnesses stated Mr. Lozano, a member of the 18th Street Gang, wanted Ms. Rojas dead. Jose Quintero was also a member of the 18th Street Gang.

Two days before Mr. Lozano's sentencing, on August 8, 2015, there was a going away party for Mr. Lozano. At around midnight that evening, Ms. Rojas and her boyfriend, Jon Cano, were sitting outside their home when they were each shot multiple times. Ms. Rojas was shot 11 times and Mr. Cano was shot 5 times. Both died. The shootings occurred on East Walnut Street in Walla Walla, Washington. There were no eyewitnesses.

In October 2015, Mr. Quintero was being held on $100,000 bail in the Walla Walla County jail on unrelated charges. During that time, he wrote two different rap

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lyrics that glorified gang lifestyle, including shooting "'snitches.'" PRP, App. H. At the time, his cellmate, Birzavit Carmona Hernandez, had been arrested for a shooting at the Green Lantern Tavern and his bail was $500,000. Mr. Carmona Hernandez gave Mr. Quintero's rap lyrics to police.

In April 2016, seven months after the Walnut Street murders, the State charged Mr. Quintero with two counts of murder in the first degree while armed with a firearm and one count of unlawful possession of a firearm in the first degree.

Pretrial

In his report, the lead detective in the case noted: "The rap lyrics are about the 18th Street gang's lifestyle to include: partying, rivalries, shootings, killing 'snitches', and 18th Street gang members being locked up for crimes. I did not note anything specific about this homicide on either of the rap lyrics." PRP, App. H.

In a motion in limine, Mr. Quintero sought to exclude evidence of the rap lyrics he had written. His counsel argued:

Facially, the lyrics describe certain gang-related values and activities, but do not provide any details of the homicides that are the subject of this case. Indeed, the State's lead gang detective, upon reviewing the lyrics, concluded in his report that they did not contain anything of evidentiary value

The lyrics are substantially more prejudicial than probative. They do not tend to make any fact at issue in the case more or less probable, and do not provide any information about the shootings of Janette Rojas and Jon

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Cano. However, they tend to have a prejudicial effect by inviting inferences about Mr. Quintero's character and propensities, by suggesting that he romanticizes gang relationships and activities. Because the prejudicial effect substantially outweighs any probative value of the lyrics, they should be excluded under ER 401, 402, and 403.

. . . .

. . . The lyrics are fictional forms of artistic expression that do not set forth the nexus between the contents of the lyrics and the facts of the charged crime. They serve merely as a "dog whistle" to the prejudices of the jury and to depict [Mr. Quintero] as the kind of person who would commit the crime at issue. Such evidence is highly inflammatory and should not be admitted.

Clerk's Papers (CP) at 49-50.

The State argued the lyrics were admissible to show Mr. Quintero's "association with the 18th Street Gang, to show his knowledge of gang activities, and to show motive." CP at 108-09. It contended Mr. Quintero's lyrics were admissible under ER 404(b) because they showed his support for murdering "ratas" or "snitches," which directly related to Mr. Quintero's motive in the case. CP at 109. The State also argued that the bail amount listed in the lyrics, $500,000, was identical to the bail set for Mr. Quintero.^[1]

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The trial court granted Mr. Quintero's motion in limine in part. It ordered: "The Court will allow a redacted portion of the lyrics that allegedly describes the charged crime and related circumstances, such as the bail imposed upon defendant." CP at 189. The lyrics were redacted for trial.

In another motion in limine, Mr. Quintero's defense counsel sought to prevent the State from calling Jose Lozano, Mr. Lozano's brother, who was the alleged driver on the night of the shootings.^[2] The State had named Jose Lozano as a potential witness and the defense anticipated he might not cooperate if called to the stand. Originally, Jose Lozano was a codefendant, charged with first degree murder, but the cases were severed before Mr. Quintero's trial.

The State argued Jose Lozano could no longer claim a Fifth Amendment to the United States Constitution right because he had already pleaded guilty. Jose Lozano had pleaded guilty to a substantially reduced charge in exchange for a sentencing recommendation of two years.

The defense responded that if Jose Lozano refused to testify and the court held him in contempt and it all happened in the presence of the jury, this would be highly

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inflammatory and prejudicial. Defense counsel warned if this happened during trial, she might move for a mistrial because it would invite adverse inferences to be drawn by the jury, which would be impermissible. Following oral argument on the motion in limine, the court reserved ruling on the matter for trial, stating: "If you think you have a hostile and/or uncooperative witness we do not want to create a scene in front of the jury. I understand [defense counsel's] concern in that regard." RP at 178.

In yet another motion in limine, the defense sought to limit the State's ballistics evidence that the shell casing marks "matched" or were fired from the same firearm. CP at 39. The defense requested that any testimony purporting to establish a match should be qualified by informing the jury of the error rate and that "the certainty of such conclusions should be allowed to be stated only on a 'more likely than not' basis." CP at 44. To support the argument, the defense had hired Dr. Raymond Grimsbo. It was Dr. Grimsbo's opinion that "reliable sources . . . critique the shortcomings and unscientific assumptions of current ballistics analysis methodologies, including the methodology employed by the Washington State Patrol Crime Lab in the present case." PRP, App. G at 2-3.

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The trial court denied Mr. Quintero's request to limit the State's ballistic evidence. The court instructed counsel that the ballistics witnesses "shall" not testify that their methods or conclusions are certain. CP at 189.

Trial

The case proceeded to a jury trial. The State introduced approximately 160 exhibits and called 23 witnesses. Three of Mr. Quintero's fellow gang members- Birzavit Carmona Hernandez, Diego Bante Rivera, and Jose Lozano-testified for the State. Their testimonies are particularly relevant.

Birzavit Carmona Hernandez

Mr. Carmona Hernandez testified he was in jail in October 2015 because he had been charged with murder in the first degree and assault in the first degree. The charges stemmed from the shooting at the Green Lantern Tavern in Walla...