State v. Dejesus

Citation436 P.3d 834,7 Wash.App.2d 849
Decision Date11 March 2019
Docket NumberNo. 79073-1-I,79073-1-I
Parties STATE of Washington, Respondent, v. Geraldo Castro DEJESUS, Appellant.
CourtCourt of Appeals of Washington

Casey Grannis, Nielsen Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.

Randall Avery Sutton, Kitsap County Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4614, for Respondent.

PUBLISHED OPINION

Appelwick, C.J.¶ 1 DeJesus appeals two convictions of first degree premeditated murder, two convictions of attempted first degree premeditated murder, and one conviction of first degree burglary. He argues that the trial court erred by not having a Frye 1 hearing and admitting ballistic identification evidence.

He also asserts that the trial court abused its discretion in excluding other suspect evidence, limiting defense counsel’s closing argument, and admitting evidence that, weeks after the shooting, he falsely reported to police a kidnapping and robbery. He asserts that cumulative error deprived him of his right to a fair trial. Finally, he argues that the evidence was insufficient for the jury to find that he had premeditated intent to kill two of the victims. We affirm.

FACTS

¶ 2 At 2:18 a.m. on March 28, 2015, police responded to reports of a shooting at the Kariotis Mobile Home Park. When Deputy Brandon Myers arrived at the park, Justin Helwick came out of the trailer at space 47, and told him that someone inside had been shot. Inside the trailer, Myers found a man lying on his stomach, covered in blood. The man, Mathew Dean, told Myers that he had been shot three times. Myers radioed for a medical crew to help Dean, but the aid crew that had been dispatched was busy at another location at the park. Myers and Detective Cory Manchester, carried Dean to Myers’s patrol car. They drove Dean to the entrance of the park, where they met medics who moved Dean into an ambulance. Dean survived but required multiple surgeries.

¶ 3 At 2:28 a.m., Patrol Sergeant Mike Davis also arrived at the scene. Helwick directed Davis and fellow officers to the trailer at space 21, where the shooting occurred. The officers surrounded the trailer. Davis heard screams from inside, and then Jalisa Lum, carrying her two year old son, Kaden, exited the home. Kaden2 had a bullet wound

above his eye. Officer Jeff Schaefer attempted cardiopulmonary resuscitation on Kaden. Medical aid arrived, and Schaefer took Kaden to the ambulance. Kaden died. According to the autopsy, the cause of Kaden’s death was a gunshot wound to the head.

¶ 4 Davis, along with three other officers, went inside the trailer. Toward the back of the home, the officers found a woman who had been shot and appeared to be dead. That woman, Heather Kelso, had been shot once in each thigh and twice in the head.

¶ 5 Lum was Kelso’s roommate. Lum moved into Kelso’s trailer at space 21 near the beginning of 2015. On March 27, 2015, Dean went to Kelso’s home. That night, their romantic relationship progressed further than it had in the past. Around 1:00 a.m., Kelso went to the back porch to smoke a cigarette. Dean heard gunshots and ran to the porch. Kelso was holding her legs and yelling that she had been shot. Dean pulled her into the house and laid her down. He then went into Lum’s room, and felt that he had been shot. He jumped through the window, breaking it, and ran to Helwick’s trailer.

¶ 6 Lum was lying in her bed when she heard Kelso say, without "rais[ing] her voice hardly," that she had been shot. Lum heard more gunshots and heard Dean ask her for help. Lum then got out of her bed and, with her body, covered her son on the ground. While she was on the floor, she heard "a lot of gunshots." Then, she heard someone she thought was Dean come through her room and ask her for help or to call 911. After she heard the window shatter, Lum testified that "somebody opened up the door again, [and] shot towards me and Kaden." She felt the bullet go by her face, and pretended to be dead. After she did not hear anything for about three minutes, she reached for her cellphone, which she had placed on the floor before she went to sleep. She then called 911.

¶ 7 After the shooting, police quickly identified Geraldo DeJesus as a person of interest. In the past, DeJesus and Kelso had a relationship, had lived together, and had a child together. Their relationship was rocky and remained conflicted during Kelso’s pregnancy. They ended their relationship after the child was born.

¶ 8 On February 24, 2015, Kelso filed a report about DeJesus with Child Protective Services (CPS). The same day, she got a temporary domestic violence protection order against DeJesus. Kelso got a permanent protection order against DeJesus on March 5, 2015. In March 2015, DeJesus expressed frustration with not being able to see his daughter. On March 24, CPS mailed a letter to DeJesus, notifying him that it had closed the investigation.

¶ 9 On March 27, 2015, Kelso had a confrontation with DeJesus at a McDonald’s restaurant. She called Elizabeth Forrester, Kelso’s surrogate mother and friend, and told her about the confrontation. Later that day, DeJesus visited his and Kelso’s child, who was sick and staying with Forrester.

¶ 10 Around 5:50 a.m. after the shooting, police found DeJesus’s car in a parking lot next to an apartment building in Port Orchard. Ivy Rose DeJesus, DeJesus’s ex-wife, lived in the building. A heavy police presence set up outside the building, and, using a loudspeaker-like device, called for DeJesus to exit.

¶ 11 After DeJesus exited, police handcuffed him, read him his Miranda 3 rights, and interviewed him in the front passenger seat of a detective’s car. The officers told DeJesus that they were investigating the murder of Kelso and an infant. Detective Michael Grant testified that DeJesus’s reaction was "indifferent." Grant noticed that DeJesus had a scrape on his left shin. DeJesus told the police that he had injured his leg, and his hip, at work. The detectives asked DeJesus what he had been wearing the night before, and he told them that he had changed clothes. He gave the police permission to collect the items that he said he had been wearing. The police collected a brown hooded sweatshirt with a zipper, a gray T-shirt, a pair of blue jeans, and another T-shirt.

¶ 12 Police searched Ivy’s4 residence. They found a Smith and Wesson gun case. Inside the case, police found a loaded magazine, a cleaning brush, and some literature about the gun. A spent shell casing was inside an envelope tucked inside the inner lining of the gun case.5 The magazine had 15 Federal brand 9mm hollow-point rounds in it.

¶ 13 A former Washington State Patrol Crime Laboratory analyst examined evidence in this case. She compared the cartridge case from the Smith and Wesson envelope and the cartridge casings from the scene. She concluded that the cartridge casings from the scene had consistent markings with the casing found in the Smith and Wesson envelope, indicating that they were fired from the same gun.

¶ 14 The State charged DeJesus with first degree premeditated murder of Kelso, with aggravating circumstances (count 1); first degree felony murder of Kelso, with special allegations (count 2); first degree burglary, with special allegations (count 3); first degree premeditated murder of Kaden, with special allegations (count 4); first degree felony murder of Kaden, with special allegations (count 5); first degree murder by extreme indifference of Kaden, with special allegations (count 6); attempted first degree premeditated murder of Dean, with a special allegation (count 7); and attempted first degree premeditated murder of Lum, with a special allegation (count 8). The jury found DeJesus guilty as charged. By agreement, the trial court vacated the felony murder convictions to avoid double jeopardy. The court sentenced DeJesus to life imprisonment. DeJesus appeals.

DISCUSSION

¶ 15 DeJesus makes six arguments. First, he argues that the trial court erred in failing to conduct a Frye hearing and admitting expert testimony on ballistic identification. Second, he argues that the trial court abused its discretion in excluding other suspect evidence. Third, he argues that the trial court violated his right to counsel by restricting counsel’s closing argument. Fourth, DeJesus argues that the trial court abused its discretion in admitting evidence that he told police that he had been kidnapped and robbed a few weeks after the shooting. Fifth, he argues that cumulative error deprived him of his right to a fair trial. And sixth, he argues that the evidence was insufficient to support findings that he premeditated the murder of Kaden and attempted murder of Lum.¶ 16 Many of DeJesus’s arguments focus on the various evidentiary rulings the trial judge made during the trial. A trial court's evidentiary rulings are reviewed for abuse of discretion. In re Pers. Restraint of Duncan, 167 Wash.2d 398, 402, 219 P.3d 666 (2009). A trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds, or for untenable reasons. Id. A decision is based on untenable grounds or for untenable reasons if the trial court applies the wrong legal standard or relies on unsupported facts. Id. at 403, 219 P.3d 666.

I. Frye Test

¶ 17 DeJesus argues first that, because it was inadmissible under the Frye standard, the trial court erred in allowing the State’s witness to testify about ballistics identification.

A. General Acceptance

¶ 18 Under Frye, the primary goal is to determine whether the evidence offered is based on established scientific methodology. Anderson v. Akzo Nobel Coatings, Inc., 172 Wash.2d 593, 603, 260 P.3d 857 (2011). Specifically, the court considers "(1) whether the underlying theory is generally accepted in the scientific community and (2) whether there are techniques, experiments, or studies utilizing that theory which are capable of producing reliable results and are generally...

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14 cases
  • State v. Hatfield
    • United States
    • Court of Appeals of Washington
    • 2 December 2019
    ...we considered a nearly identical challenge to the validity of ballistic identification methodology in State v. DeJesus, 7 Wn.App. 2d 849, 436 P.3d 834 (2019). In DeJesus, the challenged scientific evidence stemmed from a Washington State Patrol Crime Laboratory analyst's comparison of two s......
  • State v. Hatfield
    • United States
    • Court of Appeals of Washington
    • 2 December 2019
    ...a nearly identical challenge to the validity of ballistic identification methodology in State v. DeJesus. 7 Wn. App. 2d 849, 436 P.3d 834 (2019). In DeJesus, the challenged scientific evidence stemmed from a Washington State Patrol Crime Laboratory analyst's comparison of two spent shell ca......
  • Watness v. City of Seattle, 78819-1-I
    • United States
    • Court of Appeals of Washington
    • 30 December 2019
    ...the primary goal is to determine whether the evidence offered is based on established scientific methodology." State v. DeJesus, 7 Wash. App. 2d 849, 859-60, 436 P.3d 834, review denied, 193 Wash.2d 1024, 448 P.3d 54 (2019). To do so, the court considers "(1) whether the underlying theory i......
  • 21st Mortg. Corp. v. Nicholls
    • United States
    • Court of Appeals of Washington
    • 13 March 2023
    ...is to determine whether the evidence offered is based on established scientific methodology." State v. DeJesus, 7 Wn.App. 2d 849, 859-60, 436 P.3d 834 (2019) (citing Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 603, 260 P.3d 857 (2011)). However, "if the proffered evidence does not......
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