State v. Aguilar
| Decision Date | 07 February 2019 |
| Docket Number | No. 34761-3-III,34761-3-III |
| Parties | STATE OF WASHINGTON, Respondent, v. JOSE ABILIO AGUILAR AGUILAR, Appellant. |
| Court | Washington Court of Appeals |
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING OPINIONThe court has considered appellant's motion for reconsideration and is of the opinion the motion should be denied. Therefore,
IT IS ORDERED the motion for reconsideration of this court's decision of February 7, 2019, is denied.
IT IS FURTHER ORDERED that the last sentence of footnote 4 shall be deleted and the following shall be inserted in its place:
It, therefore, appears that the State realized the link between the clothing in the garage and the murder by September 2013.
IT IS FURTHER ORDERED that footnote 5 shall be deleted and the following shall be inserted in its place:
Mr. Aguilar's forensics expert had the shirt and jeans in his possession from March 5, 2015, through August 13, 2015. During this period, the State was unable to conduct its own forensics testing of this clothing.
PANEL: Judges Lawrence-Berrey, Korsmo, and Fearing
FOR THE COURT:
/s/_________
ROBERT LAWRENCE-BERREY
CHIEF JUDGE
LAWRENCE-BERREY, C.J. — Jose Abilio Aguilar Aguilar appeals his convictions for first degree murder with one of two aggravating factors found by the jury and second degree assault with a firearm. The trial court concluded that sufficient evidence supported the egregious lack of remorse aggravator, but not the deliberate cruelty aggravator, and imposed an exceptional sentence of 472 months.
Mr. Aguilar contends: (1) insufficient evidence supported a finding of premeditation, a necessary element of first degree murder, (2) the State committed governmental misconduct by delaying discovery and amending the charges multiple times, improperly forcing him to choose between his constitutional speedy trial right and his right to effective counsel, (3) the prosecutor committed misconduct, and(4) cumulative error requires reversal of his convictions. Mr. Aguilar also submitted a statement of additional grounds for review in which he contends: (1) the trial court erred by failing to provide a Petrich1 instruction for the aggravating factors, and (2) the trial court violated the real facts doctrine where it based its finding of egregious lack of remorse on facts the State only argued supported the deliberate cruelty aggravator.
We affirm.
On October 16, 2012, a hunter discovered the body of Carmelita Lopez Santos in a secluded wooded area approximately 100 yards from the Buckshot Wildlife Area parking lot in Grant County, Washington. Ms. Lopez had been shot multiple times in her face, neck, and torso. The medical examiner concluded that Ms. Lopez had suffered four pre-mortem wounds: one to her left arm, one to her right cheek, one to her neck, and one that penetrated her chest and exited her back. She further concluded that any of the latter three wounds could have caused Ms. Lopez's death. The examiner also concluded that Ms. Lopez suffered multiple post-mortem wounds. Detectives found 12 spent shellcasings in the Buckshot parking lot and 5 more by Ms. Lopez's body.
A gate at the parking lot cut off vehicle access to a north-running service road, bordered to the west by a barbed wire fence. It had rained the night before October 16, and detectives found fresh shoe prints at the gate as well as a black spiked heel shoe. They discovered a matching shoe in sagebrush further down the dirt service road. The shoe prints continued from the gate and down the road toward the wooded area where the hunter discovered Ms. Lopez's body. The prints appeared fresh and some of the prints appeared to have been made by someone walking in a single spiked high-heeled shoe. Detectives also found grass that was stained red/brown near the gate and along the road, including near one of the high-heeled prints, and found a dark, heavily stained drag mark that ran from the barbed wire fence into the tree line.
In the days following the murder, Ms. Lopez's family members and friends received several telephone calls from her cell phone. On one occasion, the caller was aggressive and angry that people were calling the telephone. When Ms. Lopez's family offered to drive to the caller to pick up the phone and offered money for its return, the caller hung up. Later, the caller stated that Ms. Lopez's boyfriend in Mexico was asking him for money to release Ms. Lopez. He stated that Ms. Lopez's boyfriend said that Ms.Lopez was fine and with him in Mexico. The caller stated he would speak with the boyfriend demanding the money.
The State's investigation eventually focused on Jose Aguilar. Mr. Aguilar's housemate, Jose Galban Garcia, spoke at length with investigators. Mr. Aguilar and Ms. Lopez were in a relationship, but they broke up around May 2012. After May 2012, Mr. Aguilar told Mr. Galban he wanted to get back together with Ms. Lopez, and Mr. Galban heard Mr. Aguilar call her all the time. However, by October 2012, Ms. Lopez was engaged to another man.
On October 15, Mr. Aguilar told Mr. Galban he was going to see his girlfriend. When Mr. Galban saw Mr. Aguilar at their shared residence later that evening, he appeared drunk and nervous, and the shirt, jeans, and boots he was wearing appeared to have blood on them. Mr. Galban later saw a newspaper article about Ms. Lopez's murder and brought it to Mr. Aguilar's attention. According to Mr. Galban, Mr. Aguilar "laughingly told [him] that he was the one" responsible for Ms. Lopez's murder. Report of Proceedings (RP) (Apr. 14, 2016) at 2896.
Approximately two weeks later, Mr. Aguilar told Mr. Galban that he had taken Ms. Lopez to the Columbia River on October 15. In recounting the events of October 15, Mr. Aguilar indicated he told Ms. Lopez to get out of the car, and that he was going to killher, but she would not get out of the car. Mr. Aguilar also told Mr. Galban that Ms. Lopez had asked him "what are you going to get out of this?" RP (Apr. 14, 2016) at 2902. Mr. Aguilar said he shot Ms. Lopez near his car, that she was still alive after that initial shot, and that he took her "to the brush," where he covered her body with tree branches. Id.
After this discussion, Mr. Aguilar insisted that he drive Mr. Galban to a store to get more beer. The pair purchased two beers, and Mr. Aguilar drove Mr. Galban to an irrigation pond. Mr. Aguilar was angry and regretted confessing the murder to Mr. Galban. He became fearful that Mr. Galban would turn him in and pointed a gun at Mr. Galban. Mr. Galban promised that he would not tell anyone about what Mr. Aguilar had confessed. Mr. Aguilar decided not to shoot Mr. Galban and apologized to him.
Police arrested Mr. Aguilar on October 29, 2012. Law enforcement executed a search of Mr. Aguilar's residence following his arrest. They recovered a 9 mm Smith and Wesson from his bedroom, as well as two pairs of cowboy boots with a pair of socks inside each. The gun was determined to be the same gun that fired the bullets and shell casings found at the crime scene. The gun slide and grip contained deoxyribonucleic acid (DNA) matching that of Ms. Lopez. One pair of boots tested positive for blood and DNA consistent with Ms. Lopez's DNA and contained trace DNA consistent with Mr.Aguilar's profile. Additionally, a sock inside the boot contained a mixed DNA profile consistent with both Ms. Lopez's profile and Mr. Aguilar's profile. The police also seized a bag containing what appeared to be a bloody shirt and jeans and a woman's purse from Mr. Aguilar's detached garage. However, those items were not tested until much later.
Following Mr. Aguilar's arrest, a detective spoke with Mr. Aguilar while Ms. Lopez's family members silently listened to the conversation on speakerphone. Following the interview, Ms. Lopez's nephew immediately confirmed that Mr. Aguilar's voice was the one he heard on the previous telephone calls.
Mr. Aguilar was arraigned on November 6, 2012, on charges of first degree murder, second degree assault, intimidating a witness, and alien in possession of a firearm without an alien firearm license.3 The first three counts alleged Mr. Aguilar was armedwith a firearm.
On November 27, 2012, and again on January 15, 2013, Mr. Aguilar continued his omnibus hearing due to voluminous discovery. He requested two additional continuances on January 23 and March 18. Mr. Aguilar indicated the second of these continuances was necessary because a CrR 3.5/3.6 suppression hearing was still needed, witness interviews still needed to be completed, and the defense was waiting on evidence that had not yet been returned from the Washington State Patrol Crime Laboratory.
The parties entered an omnibus order on June 25, 2013, setting trial for July 31, 2013. The order set July 12 as the final deadline for "any and all police reports, lab reports, experts the State intends to rely on at trial." Clerk's Papers (CP) at 1140. The order also set the suppression hearing for July 17. At that time, the State indicated it planned to amend the information by adding a kidnapping charge and an unidentified aggravator. The following day, the State provided written confirmation it had complied with the omnibus order and CrR 4.7(a) and provided the defense with all reports and statements it would use at trial.
On June 28, the State produced new evidence consisting of receipts and photographs of Mr. Aguilar that law enforcement found during the search of Mr. Aguilar's residence. Law enforcement placed the evidence in a storage locker andprosecutors were unaware of its existence until examining the locker's contents in preparation for trial.
At a status hearing on July 16, Mr. Aguilar's counsel raised concerns about the evidence disclosed by the State on June 28 and the witness list provided by the State, which included new names and did not provide...
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