State v. Condon
| Decision Date | 16 April 2013 |
| Docket Number | No. 29710-1-III,29710-1-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JOEL CAMERON CONDON, Appellant. |
SIDDOWAY, A.C.J. — Joel Condon, the shooter in a home invasion robbery that resulted in the death of Carmelo Ramirez, appeals his conviction for aggravated first degree murder and burglary. He raises eight challenges, but we find reversible error in only one instance: the trial court's failure to instruct the jury on second degree intentional murder as a lesser degree offense to the State's charge of first degree premeditated murder. We affirm Mr. Condon's convictions of first degree burglary, unlawful possession of a firearm, and a firearm enhancement. We reverse his conviction of aggravated first degree murder on the basis of the instructional error and remand for a new trial on the murder charges.
At around 8 p.m. on an evening in January 2009, two men burst through the front door of the home in Toppenish where Carmelo Ramirez and Enedina Gregorio lived with their three children. Evidence later revealed that the two men—Joel Condon and Jesus Padilla Lozano—had impulsively decided to rob the home of a drug dealer from whom a mutual acquaintance had purchased cocaine earlier in the evening. Their acquaintance described the dealer as having flashed a great deal of cash. Apparently Mr. Condon and Mr. Lozano traveled to the wrong residence, because instead of encountering a drug dealer, they encountered Mr. Ramirez and Ms. Gregorio preparing to eat dinner, their 13-year-old son Jesus watching television with his cousin, and two younger children playing in a bedroom.
Three witnesses testified at trial to their personal knowledge of the invasion. Their testimony was somewhat conflicting. Among the uncontested evidence was that the two men burst into the home; that the taller of the two (Mr. Condon was several inches taller) brandished a handgun immediately upon entering; that the two men yelled demands in English, which the Spanish-speaking family members either did not understand or only partially understood; that early on in the encounter, Ms. Gregorio followed her 13-year-old son Jesus into a bedroom where the two younger children had been playing and helped the three children escape out a back window; and that Ms. Gregorio then either returned or was pulled back into the main room of the home.
Ms. Gregorio's version of events was that after helping the children escape she returned to the main room, where she saw her husband trying to take the handgun from Mr. Condon. She testified that Mr. Lozano grabbed her, she struggled, but he succeeded in throwing her face-down on a sofa where he held her hands behind her back. She stated that she then heard a shot ring out shortly after Martin Gutirrez, a friend of the family who had been invited to dinner, arrived at the front of the home. The prosecutor suggested in closing argument that the men had seen the headlights of Mr. Gutirrez's car. Ms. Gregorio inferred that the shooting began because, with the arrival of Mr. Gutirrez, the men were scared. The intruders then ran from the home through the back door and she and her husband ran out the front, enlisting Mr. Gutirrez to drive Mr. Ramirez to the hospital.
Ms. Gregorio did not realize that her husband had been seriously injured, although it turned out he had been shot twice, with one bullet entering his thigh and the other passing through his elbow into his chest, where it clipped his aorta. Mr. Ramirez lost consciousness before Mr. Gutirrez could reach the hospital; nurses at the Farm Workers Clinic, where Mr. Gutirrez stopped to get more immediate help, were unable to save him.
Mr. Lozano's version was that on the day of the crime he and Mr, Condon had been riding around with Mr. Condon's friend "Eight Ball" and Eight Ball's girl friend. Mr. Lozano had known Mr. Condon (whom he knew as "Wak-Wak") for only a month. Since meeting, they had smoked pot together virtually every day, often hanging out withEight Ball. In the early evening, Eight Ball left the car to purchase cocaine and, on his return, told the others about the cash he observed in the home of the dealer. Upon hearing that, Mr. Condon and Mr. Lozano decided to commit the robbery. Mr. Lozano testified that the plan was only to steal money and drugs. He claimed to be unaware until they entered the home that Mr. Condon had a gun.
According to Mr. Lozano, he and Mr. Condon were dropped off by Eight Ball's girl friend about a quarter mile from the Ramirez/Gregorio home and walked to what they believed was the drug dealer's home, where Mr. Condon kicked in the door and entered first. Following their entry, Mr. Ramirez defended against the invasion by fighting with Mr. Lozano, not with Mr. Condon, and eventually managed to get Mr. Lozano into a chokehold. It was after "I was like turning purple," according to Mr. Lozano, that Mr. Condon fired two shots at Mr. Ramirez. Report of Proceedings (RP) at 797. Mr. Lozano agreed that he and Mr. Condon then ran out through the back of the home, although he claims he returned once, for just a moment, to see if he could find any cash, because "we were there for money so I might as well—you know, not went for nothing." RP at 798.
Jesus Ramirez, who was 15 by the time of trial, testified that he was sitting in the living room with his cousin when the men burst in; his parents were in the kitchen and stood up immediately upon the intrusion. Jesus left for his bedroom where his younger brother and sister joined him. He was directing them to hide under his bed when hismother came in, followed by the smaller intruder, whose entry she blocked. She opened the window and told the children to leave, which they did.
Mr. Lozano dropped his cell phone during the crime and police quickly traced it to him through the telephone number of his mother, who placed calls to the phone the evening of the crime and whose number was stored within the phone. Within days, there were news reports that Mr. Lozano was a suspect, in response to which he initially fled to Mexico.
He did not stay long, turning himself in approximately six weeks later. In a recorded statement that he provided to Detective Brian Jackson approximately seven weeks after the crime, he described the man he knew as Wak-Wak as a tall, light skinned "native," who had a tattoo on his neck of a scroll with writing. Ex. 106, at 15. Other detectives in the department later identified Mr. Condon from the description.
Shortly after the State filed charges against Mr. Condon and before his arraignment, the State requested an order requiring him to participate in a lineup. Mr. Condon asked the court to order that the lineup be double-blind and sequential. A double-blind sequential lineup is one in which neither the officer conducting the lineup nor the witness knows which person is the suspect and which are the decoys. The participants in the lineup are presented to the witness in sequence, rather than simultaneously. The court ordered the lineup but denied Mr. Condon's request that it be sequential and double-blind.
Detective Jackson, the lead investigator on the case, conducted a six-person lineup in which Mr. Condon and the five others, each wearing jail-issued clothing and Ace bandages around their necks (to hide Mr. Condon's tattoo), stood side-by-side. Mr. Condon was taller than the others; Detective Jackson would later explain that he used individuals who were in custody and tried to include only individuals who were at least six feet tall, but was unsuccessful. Mr. Condon was the only Native American. Detective Jackson testified that this was because the other Native Americans available to participate all had long hair that would distinguish them from Mr. Condon, whose hair was short. In addition to Mr. Condon, then, the participants comprised four Hispanics and one Caucasian. Mr. Condon's lawyer objected to the lineup procedure and to the use of a Caucasian police officer as one of the decoys.
Ms. Gregorio was the first witness asked to view the lineup and quickly identified Mr. Condon. She made her identification within 10 seconds, stating that "she couldn't be one hundred percent but she was pretty sure" and "she recognized him from his face." RP at 89. Jesus Ramirez and his cousin were unable to identify anyone from the lineup after a minute of observation.
Mr. Condon moved to suppress Ms. Gregorio's identification of him, arguing the lineup was impermissibly suggestive. At the hearing on his motion to suppress, he called Dr. Geoffrey Loftus, an experimental psychologist whose area of research is human perception and human memory. Dr. Loftus testified to what he believed to beshortcomings in the conduct of the lineup and aspects of Ms. Gregorio's identification that, in his opinion, cast doubt on the reliability of the identification. The court denied the motion to suppress.
Shortly before trial, Mr. Lozano made a deal with the State. He testified against Mr. Condon at trial.
At trial, Ms. Gregorio made an in-court identification of Mr. Condon and testified about her pretrial identification. At trial she claimed to be "one hundred percent sure that it was him." RP at 749.
In the court's conferences with the lawyers during the course of trial, Mr, Condon asked that the jury be instructed on second degree intentional murder as a lesser offense to first degree premeditated murder. After hearing extensive argument on the issue, the trial court refused to give the instruction.
The jury convicted Mr. Condon of aggravated first degree murder, first degree burglary, unlawful possession of a firearm in the second degree, and firearm enhancements. The trial court imposed the mandatory minimum penalty for aggravated first degree murder: life without the possibility of parole. RCW 10.95.030. It imposed a sentence of 176 months for the conviction of first degree burglary ...
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