State v. DeSantiago

• Court: Washington Supreme Court
• Writing for the Court: OWENS, J.
• Citation: State v. DeSantiago, 68 P.3d 1065, 149 Wash.2d 402 (Wash. 2003)
• Decision Date: 15 May 2003
• Docket Number: No. 71918-7.
• Parties: STATE of Washington, Petitioner, v. Armando Mayorga DeSANTIAGO, Enrique DeSantiago, Pedro Mendoza CArranza, Victor Carrillo Diaz, Elpidio Ramirez Reyes, Respondents. State of Washington, Petitioner, v. Armando Mayorga DeSantiago, Respondent.

68 P.3d 1065

149 Wash.2d 402

STATE of Washington, Petitioner, v. Armando Mayorga DeSANTIAGO, Enrique DeSantiago, Pedro Mendoza CArranza, Victor Carrillo Diaz, Elpidio Ramirez Reyes, Respondents.

State of Washington, Petitioner, v. Armando Mayorga DeSantiago, Respondent.

No. 71918-7.

Supreme Court of Washington, En Banc.

Argued September 24, 2002.

Decided May 15, 2003.

John Knodell, Grant County Prosecutor, Ephrata, for petitioner.

Antonio Salazar, Russell Abrutyn, Seattle, for respondents.

Elaine Winters, Washington Appellate Project, Seattle, amicus curiae on behalf of Wash. Assn. of Criminal Lawyers.

OWENS, J.

At issue in this case is whether the testimony of three key witnesses from the defendants' first trial, which ended in a mistrial, could be read to the jury on retrial without violation of the sixth amendment to the United States Constitution or ER 804. The witnesses were unavailable at the time of retrial, the former testimony is sufficiently reliable, and the defendants had similar motive when they cross-examined the witnesses at the first trial. Therefore, we hold that admission of the former testimony was proper.

In addition, the jury found that the defendants were armed with both a firearm (a gun) and a deadly weapon (a knife). The second issue here is whether one sentence enhancement for the firearm and a second sentence enhancement for the deadly weapon may be imposed for a single underlying offense. We hold that where a jury determines that a defendant was armed with more than one weapon, RCW 9.94A.510 unambiguously requires the sentencing judge to apply the proper enhancement for each firearm or other deadly weapon carried. However, the total sentence remains presumptively limited by the statutory maximum for the underlying crime.

FACTS

At the first trial, Eduardo Sanchez (E.Sanchez) testified that when he and Reina Serrano (Serrano) returned home on the night of February 19, 1999, a car blocked them into their driveway and three men appeared on foot from behind their house. The men put a gun to E. Sanchez's head and a knife to his ribs and forced him into their car. The kidnappers took him to a hotel in Kennewick, contacted his family, and demanded a ransom. After two nights they drove E. Sanchez back to Moses Lake, where his father, Jose Sanchez (J. Sanchez), delivered the ransom and E. Sanchez was released. E. Sanchez identified all five defendants: Enrique DeSantiago (E.DeSantiago), Victor Carrillo Diaz (Diaz), Pedro Mendoza Carranza (Carranza), and Elpidio Ramirez Reyes (Reyes) had abducted him, and Armando Mayorga DeSantiago (A.DeSantiago) had joined the group at the hotel.

Serrano testified about the abduction and the damage she found inside her home including cut phone lines, damage to the door, and open sodas in the kitchen. J. Sanchez testified that the kidnappers contacted him and Serrano after the abduction. At the direction of the police, J. Sanchez arranged an exchange of $11,000 for his son's safe return. Just after E. Sanchez's release, the defendants were arrested. Despite testimony from all three witnesses, the jury could not reach a verdict in the first trial.

Three days before the second trial, the court held an evidentiary hearing on the admissibility of the witnesses' prior testimony. The Grant County prosecutor explained that after the court set a new trial date, he mailed subpoenas to the family. A few days later, an anonymous family member reported that the family had moved. Both a detective and a family friend revealed that the witnesses had been reluctant to testify at the first trial and moved because they were afraid of the defendants.

The prosecutor assigned a detective to try to locate the missing witnesses. The anonymous family member explained that Serrano and the Sanchezes had moved to Mexico but refused to say exactly where they were. Although they reportedly considered moving to Texas, the detective could not elicit contact information for relatives there. The local family member persistently refused to reveal the family's location, despite four or five attempts to obtain further information. The testimony of all three witnesses was admitted and read to the jury at the second trial. Several other witnesses also connected the defendants to the abduction. However, the defendants claimed that E. Sanchez willingly accompanied them to the hotel, no weapons were involved, and the two days were spent drinking beer in the hotel room. They also claimed that the payment from J. Sanchez was in fact a refund for a pickup truck, which Diaz had purchased from the Sanchezes but for which they had failed to produce a title. Any requests for money were demands for either the title or a refund.

On cross-examination, read from the first trial, Eduardo and Jose Sanchez denied knowing anything about the pickup. Yet, at the second trial, Diaz offered for the first time a Department of Licensing record indicating that shortly before the kidnapping, the Sanchezes were the owners of a 1990 blue Chevrolet pickup truck. Diaz's attorney had acquired the pickup truck registration on the day before the evidentiary hearing for the second trial. However, the defense did not bring the registration to the court's attention until three days into trial, long after the evidentiary hearing and after the Sanchezes' testimony had been read to the jury.

The jury found A. DeSantiago and E. DeSantiago guilty of kidnapping and the remaining defendants guilty of both kidnapping and burglary. The jury also returned a special verdict, finding that during the kidnapping, the defendants were armed with a firearm (the handgun) and a deadly weapon (the knife). At sentencing, the court imposed both a firearm enhancement and a deadly weapon enhancement on each kidnapping conviction. Thereafter, the Court of Appeals dismissed A. DeSantiago's prior convictions. At his resentencing, his new lawyer argued that both enhancements could not be applied to a single underlying offense, though he conceded that the longer firearm enhancement must govern. That judge agreed and removed the shorter deadly weapon enhancement from his sentence.

All the defendants assign error to the admission of the former testimony. E. DeSantiago, Diaz, Carranza, and Reyes assign error to the imposition of both enhancements to one underlying offense. The State assigns error to the removal of A. DeSantiago's deadly weapon enhancement. The Court of Appeals affirmed the convictions but held for the defendants on the sentencing issue. State v. DeSantiago, 108 Wash.App. 855, 881, 33 P.3d 394 (2001).

ISSUES

(1) Was the former testimony admissible under the confrontation clause of the Sixth Amendment and ER 804?

(2) Do both the firearm enhancement and the deadly weapon enhancement apply to a single offense committed with two weapons?

ANALYSIS

A. Former Testimony

The confrontation clause places two conditions on the admission of former testimony. The State must show that the declarant is "unavailable" at the time of trial and the statement must bear sufficient "`indicia of reliability.'" Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)). Similarly, ER 804(a)(5) mandates that the proponent of the hearsay statement must show inability to procure the declarant's attendance "by process or other reasonable means." Finally, former testimony of an unavailable witness is admissible only if the party against whom it is offered "had an opportunity and similar motive to develop the testimony by ... cross ... examination" when the witness testified. ER 804(b)(1). The former testimony in this case is inadmissible if it fails to satisfy either the confrontation clause or ER 804. A trial court's decision to admit evidence is reviewed for abuse of discretion. State v. Neal, 144 Wash.2d 600, 609, 30 P.3d 1255 (2001).

1. Unavailability. In Roberts, a witness was deemed unavailable for trial where the prosecutor had repeatedly attempted to serve her at her last known address, she had left the state, her relatives had been unable to contact her, and her whereabouts were unknown. 448 U.S. at 75,100 S.Ct. 2531. The Roberts court recognized that the "good-faith effort" required of the State did not include futile acts having "great improbability [of] locating the witness." Id. at 75-76, 100 S.Ct. 2531. Likewise, in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), the witness at issue was deemed unavailable because he had moved permanently to Sweden, making the state "powerless to compel his attendance." Id. at 211-12, 92 S.Ct. 2308.

Here, several attempts to find the witnesses at their last known address had failed. They were reported to be somewhere in Mexico, possibly planning to move to Texas. The State repeatedly contacted a family member who knew where the witnesses were but would not reveal their location. Any possible contacts in Texas also remained unknown. Because the witnesses were out of the country and could not be located, they were sufficiently unavailable to satisfy the confrontation clause.

ER 804(a)(5) requires a prosecutor to attempt to procure attendance "by process or other reasonable means." A prosecutor offering an "out-of-court statement of a witness beyond the legal reach of a subpoena" must show that he or she "made an effort to secure the voluntary attendance of the witness[ ] at trial." Rice v. Janovich, 109 Wash.2d 48, 57, 742 P.2d 1230 (1987). Here, the State did use reasonable means to locate the witnesses in order to secure voluntary attendance, but relatives refused to reveal their location in Mexico.

The defendants argue that the State should have done more to secure the witnesses' presence. First, they claim the prosecutor should have complied with CR 45(c) service requirements, instead of mailing the subpoenas, relying on State v. Adamski, 111 Wash.2d 574, 761 P.2d 621 (1988). Yet...