State v. Farias-Gallegos
| Decision Date | 12 June 2014 |
| Docket Number | No. 30709-3-III,30709-3-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. RAMIRO FARIAS-GALLEGOS, Appellant. |
IT IS ORDERED the motion for reconsideration of this court's decision of April 24, 2014, is denied.
IT IS FURTHER ORDERED the opinion of April 24, 2014, is amended.
Under ISSUE 8. LFOs, paragraph 3, page 31, it shall read:
v.
RAMIRO FARIAS-GALLEGOS, Appellant.
No. 30709-3-III
FEARING, J. — A jury found Ramiro Farias-Gallegos guilty of first degree assault for shooting at J.M., on August 30, 2011, in Pasco. Farias-Gallegos assigns nine errors on appeal: (1) the prosecution committed misconduct when it disclosed gang evidence in discovery, allowed defense counsel to discuss gangs in voir dire, and then elected not to offer the gang evidence at trial; (2) defense counsel was ineffective when it failed to move to suppress an out-of-court, show-up identification; (3) the trial court erred when it instructed the jury that—in order to convict Farias-Gallegos—it must find he possessed a firearm, but did not specify the firearm's caliber; (4) the trial court erred when it refused to instruct the jury on accomplice liability; (5) the trial court admitted hearsay in violation of the confrontation clause when it allowed officers to testify that Farias-Gallegos"matched" witnesses' descriptions of the shooter; (6) there is insufficient evidence to support his conviction; (7) cumulative errors combined to deny him a fair trial; (8) the trial court failed to inquire into Farias-Gallegos' ability to pay before finding that he has or will have the ability to pay legal financial obligations (LFOs); and (9) the trial court erred when it imposed gang-related community custody conditions unrelated to the circumstances of the crime or the crime itself. We agree the trial court should not have permitted the officers' testimony that Farias-Gallegos matched descriptions given by witnesses, but rale that the error was harmless. We affirm the other rulings of the trial court and affirm the conviction.
On August 30, 2011, at about 2:30 p.m., J.M. drove to work. J.M. stopped at a stop sign and saw no cars or pedestrians. He accelerated his car, but immediately slammed his brakes to avoid hitting two male pedestrians. The two pedestrians angrily approached J.M.'s driver side window. J.M. rolled down the window and the three argued. One of the men, who the State believes to have been Ramiro Farias-Gallegos, said to J.M., Report of Proceedings (RP) at 116.
The pedestrian who referenced his "gang" pulled a gun and threatened to shoot J.M. J.M. testified at trial, 3 RP at 116. When the pedestrian pointed his gun at J.M., the lattersaid, 3 RP at 116. J.M. added, "If you sh[o]ot me with it I'm pretty sure it [will] hurt a lot but [won't kill] me." 3 RP at 124. Both pedestrians walked away and J.M. drove off. As J.M. drove away, however, one man, who the State believes to have been Farias-Gallegos, fired the gun at J.M. multiple times. J.M. was not hit, but one bullet pierced his driver's side door.
J.M. parked and exited his car to inspect the damage. The two men ran away. J.M. called the police to report the shooting and then drove home. Dispatch told police that one man wore a blue shirt and the other wore blue or gray. J.M. later returned to the scene to speak with police.
Many individuals witnessed the shooting from a distance. The witnesses testified at Farias-Gallegos' trial. The description of the shooter varied from witness to witness. J.O., age 12, saw the argument and one man with a gun. He testified that the gun was silver. J.O. heard four to five gunshots. He was unable to describe the shooter or the shooter's companion.
Myrna Ochoa heard gunfire from her home's front porch, and immediately sought to get her son inside. She saw two pedestrians arguing with a driver. At trial, she testified that, because nearly six months had passed, she could not accurately remember how the two pedestrians looked, but believed that the shooter wore a white shirt.
Elvida Murillo and Lucia Valencia both heard multiple gun shots. Both saw twoyoung men running away towards "B" Street, At trial, Murillo testified her memory was fuzzy, but recalled the two men wore T-shirts. Another witness, Ricardo Castaneda, testified that he saw two men running on "B" Street.
J.M. testified the gun pointed at him was black. He also testified that both pedestrians wore blue jeans, the one who threatened him wore a gray shirt, and the other man wore a white shirt.
Police arrived at the scene after the shooting. J.M. told officers that the gun was semi-automatic. Such a gun would expel shell casings when fired. Police never found a semi-automatic gun. Police removed a bullet from J.M.'s car and found four shell casings at the scene. Officers testified that the shells were either from a .32 or .380 caliber handgun.
Officer Ryan Flanagan wrote in his incident report that the shells were from a .32 caliber handgun. After examining the shells at Farias-Gallegos' trial, Flanagan confirmed the shells were from a .32 caliber handgun. Officer Dean Perry wrote in his incident report that the shells came from a .380 caliber gun. Perry testified he examined the shells at the scene by bending down onto his hands and knees, but did not pick them up. After examining the shells again at trial, Officer Perry testified that they could be either from a .32 or .380 caliber gun.
Police, relying on dispatch and witness descriptions, surrounded the adjacent neighborhoods and searched for the two men in the direction of "B" Street. Officer DeanPerry passed two men near a known "gang house." One man wore a white shirt and the other wore a gray shirt. When Officer Perry turned his patrol car around to speak with them, the two men ran. Perry radioed news of the fleeing men to his fellow officers. From an overpass, Sergeant Ruben Marquez saw a man wearing a white shirt, but lost track of him after he ran under a tree. Officer Flanagan saw one young man, wearing a gray shirt and blue jeans, running through a field. Flanagan lost sight of the man after the man ran behind a house. On the far side of this house, Officer Michael Wright found a man hiding under a car wearing a gray shirt and blue jeans. Officer Michael Nelson arrested this man. Flanagan confirmed this was the same man he chased through a field. Perry confirmed the arrested man was one of the two who ran from him. The arrested man was Ramiro Farias-Gallegos.
Police arrested Farias-Gallegos one hour after and three blocks from the shooting. Farias-Gallegos explained to officers he hid from them because of an outstanding warrant for an unpaid traffic ticket. There was no such warrant. Police continued to search for the gun and other suspect, but found neither.
Police brought J.M. to the site of the arrest to identify or exclude Farias-Gallegos as the shooter. At trial, Officer Jesse Romero described the process of the identification:
Basically we took our victim over where they have a detained person. That detained person will then be placed out in front of them, in front of a patrol car where he is not able to see our victim but our victim is able to see the suspect at the time.
Police displayed Farias-Gallegos, but no one else, to J.M. While sitting in Officer Romero's patrol car from "about two cop cars away," J.M, looked at Farias-Gallegos for about a minute before identifying him as the person who threatened him through his open car window. 3 RP at 122. He reflected for a minute, because "I don't want no oe [sic] to go to jail for something they didn't do," 3 RP at 122. According to J.M., at the time of the identification, he was angry, but not afraid. He was upset by the damage to his car, not because he could have been hurt. J.M. also identified Farias-Gallegos in court, during trial, as the person who threatened him with a handgun.
At the beginning of jury selection at trial, the trial court read the second amended information to the pool of potential jurors;
Ladies and gentlemen, Mr. Farias-Gallegos is charged with the crime of Assault in the First Degree, indicating that on or about August 30, 2011, with intent to inflict great bodily harm upon the person of [J.M.] did assault such person with a firearm, to wit, a .32 caliber handgun, and specially alleging that Mr. Farias-Gallegos or an accomplice at the time of said crime was armed with a firearm.
1 RP at 3 (emphasis added).
After reading the charge against Farias-Gallegos, the court asked jurors whether they knew officers who...
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