State v. Nava (In re Pers. Restraint Petition Nava)

• Citation: 311 P.3d 83,177 Wash.App. 272
• Decision Date: 22 October 2013
• Docket Number: Nos. 28222–8–III, 30001–3–III.,s. 28222–8–III, 30001–3–III.
• Parties: STATE of Washington, Respondent and Cross Appellant, v. Salvador S. NAVA, Appellant. In the Matter of the Personal Restraint Petition of Salvador Nava, Petitioner.
• Court: Court of Appeals of Washington

177 Wash.App. 272

311 P.3d 83

STATE of Washington, Respondent and Cross Appellant,

v.Salvador S. NAVA, Appellant.

In the Matter of the Personal Restraint Petition of Salvador Nava, Petitioner.

Nos. 28222–8–III, 30001–3–III.

Court of Appeals of Washington,

Division 3.

Oct. 22, 2013.

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Salvador Nava, Walla Walla, WA, pro se for Petitioner.

David Brian Trefry, Attorney at Law, Spokane, WA, James Patrick Hagarty, Yakima County Prosecuting Attorney's Office, Yakima, WA, for Respondent/Cross–Appellant.

SIDDOWAY, A.C.J.

¶ 1 In order for a witness's unsworn tape-recorded statement to police to be admitted as a recorded recollection, the proponent of the evidence must establish among other factors that the record accurately reflects the witness's prior knowledge. State v. Alvarado, 89 Wash.App. 543, 551, 949 P.2d 831 (1998) held that this fourth factor of the foundation may be satisfied without the witness's direct averment of accuracy at trial. In this case, because Salvador Nava fled the country following the murder of Antone Masovero in May 2001 and was not apprehended and tried for the murder until eight years later, the State's case was based in part on the admission, as recorded recollections, of statements of four witnesses tape-recorded by Yakima police detectives in 2001. Three of the recorded statements were admitted even though at trial the witnesses disavowed, to some degree, the accuracy of their 2001 statements.

¶ 2 We hold that the trial court did not abuse its discretion in finding that the foundation for admitting the evidence was satisfied even in the face of the witness's disavowals, where the disavowals were equivocal or not credible, and were countered by other evidence—best assessed by the trial court—suggesting that the recorded statements had been accurate. Mr. Nava was allowed to present evidence and argument to the jury challenging their weight and credibility.

¶ 3 In the unpublished portion of the opinion, we reject Mr. Nava's challenge to the admission of gang evidence, his claim of ineffective assistance of counsel, and issues raised by a statement of additional grounds and a personal restraint petition (PRP) consolidated with his appeal. We agree with the State's cross appeal that the trial court's exceptional sentence downward cannot stand. We affirm the convictions, reverse the sentence and remand for resentencing, and dismiss Mr. Nava's PRP.

FACTS AND PROCEDURAL BACKGROUND

¶ 4 Shortly after midnight one night in May 2001, Antone Masovero was shot and killed as he sat as a passenger in a sedan that Anthony Martinez had just pulled up to a taco truck in a supermarket parking lot. Although over a dozen people were in the vicinity of the taco truck at the time of the shooting, most scattered before police arrived.

¶ 5 Police Officer Mark Lewis was performing traffic patrol nearby when he heard gunshots and saw muzzle flashes coming from the direction of the lot. He radioed in a report and was driving toward the lot when Mr. Martinez drove the gold Nissan Altima sedan in which Mr. Masovero sat, fatally wounded, out of the lot, its lights off, traveling toward the officer in the wrong lane of traffic. As Mr. Martinez approached the officer, he turned to his left into what appeared to be a street but was instead a curbed back entrance to a fire station. A gate across the station entrance stopped him and Officer Lewis pulled in and blocked him from the rear. Officer Lewis and other responding officers detained Mr. Martinez, his front seat passenger, and two passengers who had been sitting in the back with Mr. Masovero. Mr. Masovero had been shot twice through the head and was slumped in the left rear passenger seat, his head and shoulders covered in blood. It was apparent to officers that he was dead.

¶ 6 Officers were immediately dispatched to identify any witnesses in the parking lot or nearby homes, but only Guadalupe Rojas and her husband Angel Rojas, who had arranged with their children to meet in the parking lot following a nearby quinceañera,¹ were able to provide helpful information. Mr. and Ms. Rojas traveled to the police station and provided statements to then-Detective (later Sergeant) Joe Salinas.² Mr. Rojas described a man he had seen walk up to the sedan in which Mr. Masovero was sitting and fire the fatal shots; from his description, detectives prepared a photomontage that they presented to Mr. Rojas the next morning. Although he was not able to make a firm identification, Mr. Rojas did tap his finger on the picture of Salvador Nava, the fourth picture in the array, as “look[ing] like” the shooter. Report of Proceedings (RP) (Jan. 29, 2009) at 78.

¶ 7 The four surviving passengers from the Martinez sedan were also questioned by police within hours following the shooting, but none provided information that was helpful in establishing who committed the assault. Only two survivors in the sedan would later be called as trial witnesses by the State; both claimed that Mr. Masovero was shot within less than a minute after they arrived at the taco truck. Both denied that there had been any altercation between anyone in their car and persons in the lot before the shooting began. Both claimed to have ducked down and covered their heads as soon as shots were fired and did not see who did the shooting.

¶ 8 Police found a .25 caliber semiautomatic pistol approximately 10 to 15 feet from where Mr. Martinez's vehicle was detained by Officer Lewis. It turned out the vehicle was stopped very near the home of a cousin of Mr. Nava. The gun was found by a firearm examiner to be inoperable. The police also found unspent cartridges of .45 and .380 caliber ammunition in the lot but no spent shell casings. They found dented but unopened beer cans as they walked the streets adjacent to the parking lot.

¶ 9 Mr. Martinez's sedan was impounded and when later examined, revealed three bullet holes or impact marks in or near the rear driver's side door and the right rear headrest. Based on the examination of the car and the results of an autopsy, Sergeant Salinas concluded and later testified that two shots struck Mr. Masovero and as many as three additional shots were fired at the car.

¶ 10 Officers investigating the crime believed that Mr. Masovero's murder was related to the murder of Victor Serrano, which had occurred 10 days earlier. Mr. Serrano was associated with a Sureño gang active in Yakima and went by the tag name Smurf. That murder took place at or very near Antone Masovero's home and Sergeant Salinas, who worked on both homicides, recalled that Mr. Masovero allegedly handed the gun used to murder Mr. Serrano to the shooter.

¶ 11 The afternoon following the murder, then-Detective Salinas attended the autopsy of Mr. Masovero. There, he was able to see the clothing that Mr. Masovero was wearing at the time he was shot. It included a red belt with the number 14 on it. Sergeant Salinas would later testify that the Norteno gang claims an allegiance or an affiliation to the color red as well as the number 14, the fourteenth letter of the alphabet being “N.” Two bullets were retrieved from Mr. Masovero's head during the autopsy. They proved to be hollow point bullets that would have been fired from a .38 special caliber or .357 magnum caliber revolver.

¶ 12 Three days after the shooting, officers executed a search warrant for the home of Cesar and Marisa Perez and invited Detective Salinas to assist. The basis for the search was drug related but officers anticipated that it might yield evidence connected with the Masovero murder. The Perezes were friends of Mr. Nava and, it turned out, had been present in the parking lot at the time of the shooting.

¶ 13 Only Ms. Perez and a baby were present at the Perez home when officers arrived to execute the warrant. During the search, officers found and seized weapons, a small amount of drugs, and an article about the Masovero murder that had been cut out of the newspaper. One of the officers commented that they should arrest Ms. Perez and take her to the station. Detective Salinas responded—later admitting that he was playing “the good cop”—that he thought Ms. Perez wanted to talk. RP (Feb. 3, 2009) at 458. Ms. Perez, who had by that time heard that people had accused her husband of the Masovero murder, started crying and, according to Detective Salinas, “blurted out, what if I tell you who did the shooting.” Id. They took her to the police station where she provided a tape-recorded statement.

¶ 14 Ms. Perez told officers that a number of her and her husband's friends were present in the parking lot the night of the shooting, having arranged to meet there following a quinceañera in Selah. She and her husband arrived in their car, accompanied by her husband's sister Sandra Perez and their friend Crystal. Chava (the name by which she knew Mr. Nava, a friend of her husband's) had arrived in a different car with a man she knew as Panic (later identified as Andres Orozco), Lance Nanamkin, and two women she did not know.

¶ 15 According to Ms. Perez, her group and Mr. Nava's group had been at the taco truck for about 20 minutes when the gold sedan in which Mr. Masovero was a passenger arrived, at which point an altercation immediately began between the driver of the sedan and Mr. Nava, Mr. Orozco, and Mr. Nanamkin. She told the officers that in the course of the argument and yelling, Mr. Nava retrieved a gun from the ear in which he had been riding, walked back to the sedan, and shot the passenger in the driver's side of the back seat, who she believed had a gun. She said that Mr. Nanamkin also had a gun and had tried to shoot but his gun jammed. She said that Mr. Orozco had thrown a full beer can at the sedan but that he overshot the sedan and the can landed in the street.

¶ 16 In answering the officers' questions, she implicitly accepted their characterization of the men in the...