State v. Magana

• Decision Date: 20 December 2016
• Docket Number: No. 33701-4-III,33701-4-III
• Citation: 197 Wash.App. 189,389 P.3d 654
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Sergio MAGANA, Jr. Appellant.

197 Wash.App. 189

389 P.3d 654

STATE of Washington, Respondent,

v.Sergio MAGANA, Jr. Appellant.

No. 33701-4-III

Court of Appeals of Washington, Division 3.

December 20, 2016

Kristina M. Nichols, Nichols Law Firm, PLLC, P.O. Box 19203, Spokane, WA, 99219-9203, Appellant.

Shawn P. Sant, Maureen R. Astley, Franklin County Prosecutor's Office, 1016 N. 4th Ave., Pasco, WA, 99301-3706, for Respondent.

Pennell, J.¶1 A criminal defendant is entitled to a fair trial, but not a perfect one. Some of the evidence admitted during Sergio Magana, Jr.'s trial for third degree rape should have been excluded. Nevertheless, reversal of Mr. Magana's conviction is unwarranted because none of the evidence was prejudicial. We therefore affirm Mr. Magana's conviction, but reverse several technical aspects of Mr. Magana's sentence for correction on remand.

FACTS

¶2 Fourteen-year-old Y.L. first met Sergio Magana, Jr. through Facebook. Y.L. described Mr. Magana as being in his 20's. After exchanging text messages, Y.L. and Mr. Magana made plans to meet at Y.L.'s home. Mr. Magana had expressed a desire to be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside Y.L.'s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told Y.L. not to mention his name and to delete all of their text messages because her "age scare[d] him." 1 Verbatim Report of Proceedings (July 23, 2015) at 134.

After approximately two weeks, Y.L. reported Mr. Magana's conduct to the police. Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text messages could be extracted.

¶3 The police then began looking for Mr. Magana. After about six weeks, Mr. Magana made contact with the police and spoke to a detective over the telephone. The detective described Mr. Magana as "fishing for information." Id. at 97. During the call, Mr. Magana arranged to meet with the police. However, he never showed up for his appointment. About a month later, Mr. Magana finally met with a police detective in person. He was advised of his Miranda¹ rights and acknowledged that he had met Y.L. over Facebook, but he denied having intercourse.

¶4 Mr. Magana was charged with one count of third degree rape of a child. Following a mistrial and then a second trial, he was found guilty by a jury and sentenced by the trial court. A number of community custody conditions were imposed as part of Mr. Magana's sentence. Mr. Magana appeals.

ANALYSIS

Challenges to the jury's guilty verdict

Evidence of pre-arrest silence

¶5 Mr. Magana argues the State violated his right against self-incrimination by eliciting testimony regarding his failure to appear for his initial police interview. He claims this was an improper comment on his right to silence, in violation of the Fifth Amendment to the United States Constitution. In support of his position, Mr. Magana cites Washington Supreme Court cases which hold the Fifth Amendment rule on silence applies to a suspects' interactions with police prior to arrest. State v. Easter, 130 Wash.2d 228, 922 P.2d 1285 (1996) ; State v. Lewis, 130 Wash.2d 700, 927 P.2d 235 (1996).

¶6 While the Washington cases cited by Mr. Magana provide persuasive support, they are ultimately unhelpful as they have been overruled by subsequent precedent from the United States Supreme Court. In Salinas v. Texas, –––U.S. ––––, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013), the United States Supreme Court addressed a long-standing conflict between various state and federal courts over whether the Fifth Amendment bars introduction of a defendant's pre-arrest silence as evidence of guilt. In a 5-4 plurality decision, the Court found no prohibition. Salinas did not resolve all questions regarding how the Fifth Amendment rule applies prior to arrest. Three justices recognized the Fifth Amendment's protections might apply if explicitly invoked; the other two justices in the plurality concluded no constitutional issue could apply outside of a custodial interview. But this difference is immaterial here.

The rule from Salinas is that, absent an express invocation of the right to silence, the Fifth Amendment is not an obstacle to the State's introduction of a suspect's pre-arrest silence as evidence of guilt.

¶7 Salinas controls Mr. Magana's case. Legally, this is not an area where our state's constitution affords greater protection than the federal constitution. Easter, 130 Wash.2d at 235, 922 P.2d 1285 ; State v. Earls, 116 Wash.2d 364, 375, 805 P.2d 211 (1991). Accordingly, after Salinas the Fifth Amendment analysis set forth in Easter, Lewis, and their progeny is no longer good law. Factually, Mr. Magana was not under arrest or any sort of police custody. His scheduled police interview was voluntary. To the extent Mr. Magana's failure to appear for the interview was relevant, the State was entitled to present this evidence.

Violation of the in limine ruling

¶8 Mr. Magana appeals the trial court's failure to declare a mistrial after a police witness testified, in violation of an order in limine, to a statement made by Mr. Magana prior to being read his Miranda rights.² We review the trial court's decision for abuse of discretion, keeping in mind that a mistrial should only be granted "when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." State v. Johnson , 124 Wash.2d 57, 76, 873 P.2d 514 (1994). Relevant to the analysis is the seriousness of the alleged error, whether erroneously factual information was cumulative, and whether a curative instruction was given. Id.

¶9 We are satisfied the trial court did not abuse its discretion in denying Mr. Magana's motion. The transcript confirms the officer's statement was not elicited purposefully. It was not repeated to avoid reemphasizing it to the jury. And the trial court gave a curative instruction. Also important to our analysis, the challenged testimony was not particularly prejudicial. Subsequent to Miranda, Mr. Magana had offered to assist law enforcement with local criminal cases. This testimony did not violate the in limine order and was properly admitted. The only pre-Miranda statement at issue was the clarification that Mr. Magana wanted to help with narcotics cases. This added detail was of minor significance. There was no indication Mr. Magana was involved in drugs or that the assault on Y.L. was drug related. Given all these circumstances, the momentary violation of the trial court's in limine order by the State's witness was not sufficiently significant to require a mistrial.

Admission of business records

¶10 Mr. Magana contends the State's photo lineup exhibit was hearsay and admitted into evidence without proper foundation. The State counters that the exhibit was a properly authenticated business record. We review the trial court's evidentiary decision for abuse of discretion. Salas v. Hi – Tech Erectors , 168 Wash.2d 664, 668, 230 P.3d 583 (2010).

¶11 The exhibit at issue consists of three pages. The first page is an array of six hand-numbered photos, one of which depicts Mr. Magana. The second page is entitled "Lineup ID Report." Ex. 1. It appears to be a computer-generated report that documents biographical information, including dates of birth, for the six individuals depicted on the photo array. The third page is a copy of the written admonishment form Y.L. signed prior to reviewing the photo array. During the photo identification process, Y.L. reviewed the first and third pages of the exhibit, but not the second.

¶12 At trial, the State's law enforcement witness testified about how he created the six photo array contained on page one of the exhibit. He also explained how Y.L. signed the admonishment form on page three. However, no testimony was presented regarding the creation of the Lineup ID Report included on page two. In fact, it appears submission of the Lineup ID Report as part of the exhibit was almost an oversight. After eliciting testimony regarding the photo array and admonishment form, the State successfully moved for admission of the exhibit over Mr. Magana's hearsay objection. The State then asked the officer whether the exhibit referenced the age of the individuals depicted in the photo array. At first, the officer said no. But when the State pointed out that the exhibit had a second page, the officer agreed that the exhibit contained information regarding age. Defense counsel objected to this line of questioning, but was overruled because the exhibit had already been admitted.

¶13 A document may be admitted as a business record as long as a witness testifies to the document's identity and mode of preparation, and explains that the document "was made in the regular course of business, at or near the time of the act, condition or event...." RCW 5.45.020 ; ER 803(6). While the State's witness adequately testified as to the creation of the photo array and the admonishment form, the same was not true for the Lineup ID Report. The State presented no testimony about where the Lineup ID Report came from or how it was made. On its face, the Lineup ID Report appears to have been created in an entirely different way than the photo array and admonishment form. The State was required to establish a foundation for the Lineup ID Report prior to admission as a business record. The failure to do so was error.

¶14 The fact that the Lineup ID Report was sandwiched between two properly admitted records as part of a single exhibit does not excuse the State's failure to establish an individual evidentiary foundation. To the contrary, the manner in which the State submitted the Lineup ID Report into evidence is troubling. The record before this court does not clarify whether the trial court, opposing counsel, or even the witness were aware that the Lineup ID Report had been included as part of the State's exhibit until after admission. In the future, counsel for the State shall take greater caution in ensuring that evidentiary...