State v. Lavadores

• Citation: 214 P.3d 86,230 Or. App. 163
• Decision Date: 05 August 2009
• Docket Number: 060532950.,A134791.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Freddy A. LAVADORES, aka Fredy A. Lavadores, Defendant-Appellant.
• Court: Court of Appeals of Oregon

214 P.3d 86

230 Or. App. 163

STATE of Oregon, Plaintiff-Respondent, v. Freddy A. LAVADORES, aka Fredy A. Lavadores, Defendant-Appellant.

060532950.

A134791.

Court of Appeals of Oregon.

Argued and Submitted January 29, 2009.

Decided August 5, 2009.

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ROSENBLUM, Judge, and DEITS, Senior Judge.

ROSENBLUM, J.

Defendant appeals his convictions for attempted murder, second-degree assault, and third-degree assault. He asserts that the court erred in denying his motion for judgment of acquittal (MJOA) on those charges and in admitting his codefendant's redacted statements without an opportunity for cross-examination, in violation of his confrontation right under the federal constitution.¹ The issues presented here are very similar to those in State v. Navarrete-Pech, 230 Or.App. 157, 213 P.3d 1262 (2009), and, because defendant was tried jointly with the defendant in Navarrete-Pech, the evidentiary record is identical. In this case, we conclude that the trial court did not err in denying defendant's MJOA, but that it did err in admitting his codefendant's testimonial statements.² We further conclude that that error was not harmless. Accordingly, we reverse and remand.

On May 12, 2006, defendant drove to an apartment complex in Portland with three passengers in his vehicle. One of the passengers was defendant's codefendant at trial, Navarrete-Pech (codefendant). The other two passengers were never arrested, and are referred to by their nicknames, "Yucca" and "Chacua."³ Chacua left the vehicle when it arrived and was not involved in the assaults or attempted murder. Yucca left the vehicle shortly after Chacua did and began speaking with three individuals—the victim, Jaime, and Kiler—who were sitting on the apartment stairs, drinking beer. Yucca talked to them about a past fight, but they responded that they did not know what he was talking about.

Yucca told either Kiler or the victim that he looked like a man who had hit him in the head with a bottle during the previous fight. Yucca then returned to the vehicle, where defendant and codefendant were waiting. Shortly thereafter, Yucca, defendant, and codefendant returned to the apartments and approached the victim, Jaime, and Kiler. Yucca asked for a beer and, simultaneously, punched the victim in the face.

Jaime responded by punching Yucca and shoving him. After being shoved, Yucca was located about 10 feet away from the victim and Jaime, who were standing close to each other. Yucca pulled out a pistol and pointed it at the victim and Jaime. Jaime threw his beer bottle at Yucca and taunted him. Yucca then stated to the victim, "Mother fucker, I told you I'd whoop your ass." At that point, according to the victim, either defendant or codefendant tried to "get involved" but was prevented from doing so by the victim's friends, who had come out of one of the apartments after the altercation began.⁴

Jaime continued to argue with Yucca, while the victim began moving toward the doorway of the apartment. Codefendant then told Yucca, "[J]ust kill him and let's go" or "[S]hoot him." Yucca fired in the direction of the victim and Jaime, and a bullet struck the victim in the arm. After the shooting, defendant and codefendant ran to defendant's vehicle. Shortly thereafter, Yucca arrived at the vehicle. Defendant drove away with Yucca and codefendant.

Both defendant and codefendant were subsequently arrested, and the pistol used in the shooting was found in defendant's car at the time of his arrest. Defendant and codefendant were interviewed by Detectives Halpin and Hergert of the Portland Police Bureau, respectively. Defendant admitted that the pistol was his. He told Halpin that he had given it to Yucca earlier in the day because Yucca "wanted it" and he thought Yucca "could handle it." Defendant also told Halpin that they had gone to the apartment complex because Chacua wanted to get some cocaine there and that defendant was "standing right there" at the time of the shooting.

Codefendant acknowledged to Hergert that, while Chacua had gone to the apartments to get drugs, Yucca, defendant, and he went there to fight some men with whom Yucca had previously fought. Codefendant also described Yucca's initial departure from the vehicle and Yucca's return to the vehicle where he and defendant were waiting. Codefendant stated that, when Yucca returned, Yucca told them that he had found the person at the apartment complex whom he was looking for (the man whom he had fought with previously and who had broken a bottle over his head) and told them, "[L]et's go fight [the men on the stairs.]" Codefendant said that they agreed and followed him back to the apartments. Codefendant told Hergert that both he and defendant knew that Yucca had brought the pistol to the apartments, because Yucca had shown it to them in defendant's vehicle as they drove to the apartment complex.

Defendant and codefendant were charged with attempted murder, second-degree assault, and third-degree assault on the theory that they aided and abetted Yucca's crimes. Yucca was not arrested or charged. Hergert and Halpin testified at trial, and their testimony included statements made by both defendant and codefendant, neither of whom testified. Defendant and codefendant objected to the introduction of each others' statements as a violation of their federal confrontation right. The court allowed the testimony, but ordered that statements by codefendant that specifically referred to defendant be redacted and, similarly, that any statements by defendant that specifically referred to codefendant be redacted. Both defendant and codefendant repeatedly objected to the redaction, arguing that redaction would not be effective. The court concluded that the redacted statements would not violate defendant's or codefendant's right to confront adverse witnesses and overruled their objections. The pertinent portions of codefendant's statements to Hergert, as redacted, are as follows:

"[Codefendant] said that he was at his house, and that there were three other guys there with him[.] * * * [A]ll four of them left his location, four guys, in a green vehicle[.]

"* * * * * "[Codefendant] said they were heading over there to the apartments because they had some problems with guys in the apartments, that the four of them left his house earlier that day, and that they were going to go over there and fight these guys, but that, again, Chacua * * * was not going to get involved in the fight[.]

"* * *[Codefendant said that Yucca] shows them a gun that he has on the way over [to the apartment complex.] * * * [T]hey all see this.

"* * * [W]hen asked, `Why are you guys going over there[?]' his response was, `to fight.'

"[Codefendant said that] when they get there * * * [Yucca] goes to the apartment complex, and that he comes back and tells them those guys are there, and that, says, you know, `Let's go get them,' and so they agree to go fight and what they're going to do, he says, is going to fight, throw punches, and throw bottles.

"And, again, it's going to be three of the four, all of them but Chacua, because Chacua knows both sides."

"* * * * *

"[Codefendant said] next [Yucca] fires the gun one time, and that several of them run back to the vehicle—to the vehicle they arrived in, but that, again, Chacua, the one person who was not going to get involved, stays behind. Does not leave with them.

"[When asked why codefendant and the several other people were going there to the fight, codefendant said the victim] was bragging about beating up [Yucca] the other day, that they had an altercation a few weeks prior, that this guy was bragging about it.

"* * * * *

"[When asked whether he agreed to Yucca's request that they go fight the men on the stairs, codefendant said,] `Several of them do. Yes.'"

The pertinent portions of defendant's statements to Halpin, as redacted, are as follows:

"[When asked who accompanied him to the apartment complex, defendant answered] that he and three others went there because one of the other individuals wanted to get some more coke, and one of them said that they could get it.

"[When asked what happened next, defendant] said that a person named Chacua had left the vehicle to get some coke, and that the other three of them waited in the car, and they waited there for about a half an hour[.] * * * Yucca[] got tired of waiting, and so he left, and he went to look for Chacua, and then Yucca came back to the car, and he was commenting that he had just seen an individual that he had had a problem with in the past.

"* * * [Defendant] at first told us that he waited in the car, and that the others went. * * * [T]hen he admitted that, no, he had gone with them and there was a fight and a shooting, and he said he was standing right there at the time of the shooting.

"[Defendant] said that they'd gone over to this guy that Yucca had had the problem with, and that Yucca had punched this guy, and another guy present, named Jaime, started fighting with Yucca, and hit Yucca with a bottle, and then Yucca pulled a gun out of his pocket and he shot the person that he originally had a problem with.

"* * * * *

"[When asked if defendant admitted that he and several other people went over to the victim, defendant said,] `Yeah.' He said, `yeah,' he said, `We went over to [the victim.]'

"* * * * *

"[When asked what happened after the shooting, defendant answered] `[w]e took off, except Yucca stayed behind[.]' * * * They ran to his car to leave, but one of the guys was saying to wait for Yucca, and so they waited...