State v. Ortiz
| Decision Date | 11 June 1992 |
| Docket Number | No. 57551-7,57551-7 |
| Citation | 119 Wn.2d 294,831 P.2d 1060 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Mario ORTIZ, Appellant. |
Washington Appellate Defender Ass'n, Helen A. Anderson, Seattle, for appellant.
David S. McEachran, Whatcom County Prosecutor, Bellingham, for respondent.
Mario Ortiz appeals his aggravated first degree murder conviction following a third jury trial. Upon consideration of his claims, we affirm his conviction.
Mario Ortiz was convicted of aggravated first degree murder for the rape and murder of Fannie Slotemaker. The victim's body was discovered wrapped in blankets in a bedroom of her house. She had been stabbed several times in her throat, arm, chest and abdomen, and there were defensive wounds on her arms. Her face had been crushed. After she had been stabbed, she was dragged from room to room, probably by her hair. The victim had also been raped. When her body was discovered, she was naked from the waist up, but a pair of slacks had been put on her. There was a laceration in the opening to her vagina. The victim was 77 years old.
The knife used as the murder weapon had been taken from the victim's kitchen. The murderer left extensive bloody shoe prints throughout the scene which indicated that only one perpetrator was involved.
While investigating the scene, the police called in Joel Hardin, an agent with the United States Border Patrol. Hardin has extensive experience tracking human beings. He is the most senior tracker in the Border Patrol and has tracked over 5,000 people during his career. Hardin testified that his observations of the victim's house indicated that only one person other than the victim was present. He followed the trail left by that person across a field and through a raspberry patch to the housing development where Ortiz lived.
Hardin testified that he was able to tell that the person he was following was between 5 feet 7 inches and 5 feet 8 inches in height, and weighed 140 to 160 pounds. In addition, he said that he could tell that the suspect was familiar with raspberry bushes by the manner in which he avoided wire supports. He also observed that the person had probably been approached by a dog and had reassured that dog. On cross examination, Hardin testified that he had made the determination that he was tracking a young Mexican male, and said that this conclusion was based on his interpretation of the trail.
The Whatcom County Deputy Medical Examiner, Dr. Gibb, performed an autopsy. He obtained fluid samples from the victim's vagina and discovered spermatozoa and acid phosphatase in the samples, which indicated that intercourse had occurred.
The vaginal samples collected from the victim's body were diluted with saline, frozen by Dr. Gibb and turned over to the police. They sent the samples, along with other evidence in this case, to the Federal Bureau of Investigation Laboratory in Washington D.C., by parcel post registered mail shortly after receiving them. The samples had thawed when they were received and were refrigerated. They were not examined for almost 2 months from the time they were collected. When the specimens were examined, they were not suitable for testing due to putrefaction from bacterial growth.
Both the defendant and the victim have type O blood, and the defendant is a secretor. Based on that information, and statistical data about the general population, the court concluded that there is a 55 to 60 percent chance that someone other than Ortiz could have been the contributor of the semen found in the victim.
Ortiz was arrested in Othello a few days after the murder on different charges. On the way to the police station, with no prompting or questioning, Ortiz said, This statement motivated the police to question Ortiz further and he made other incriminating statements. Upon further investigation, Ortiz was charged in June 1981. He was ruled competent to stand trial, and following a jury trial in November 1981, was found guilty of murder. On appeal, the conviction was reversed due to the improper admission of rebuttal evidence. State v. Ortiz, 34 Wash.App. 694, 664 P.2d 1267, review denied, 100 Wash.2d 1017 (1983).
A second competency hearing was held prior to defendant's next trial, and Ortiz was found competent. Ortiz was again convicted of aggravated murder in the first degree, but the trial court declared a mistrial due to juror misconduct. 1
After the trial was set for a third time, Ortiz brought an interlocutory appeal to this court to have certain evidence suppressed and to have a determination made on his competency. We held that the trial court had not abused its discretion when it found Ortiz competent to stand trial. State v. Ortiz, 104 Wash.2d 479, 484, 706 P.2d 1069 (1985), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). We also refused to suppress evidence obtained following Ortiz's lawful arrest, including the statement made on the way to the police station. Ortiz, 104 Wash.2d at 484-85, 706 P.2d 1069.
Prior to his third trial, in September 1986, a final competency hearing was held at defendant's request. Extensive testimony was taken, including testimony from the defendant. It was clear from all the testimony that Ortiz's abilities are very minimal due to his mental retardation. While acknowledging that it may have found otherwise in the first instance, the trial court concluded that no change in Ortiz's condition had been demonstrated and, therefore, our prior decision on competency was binding.
After another interlocutory appeal was denied, a third trial was held in October 1988. The jury returned a guilty verdict, and the trial court entered judgment and sentence. Ortiz appealed, and the Court of Appeals certified the case to this court.
A number of issues are raised. First, we must again consider Ortiz's competency. Second, Ortiz claims that the State's failure to preserve potentially exculpatory evidence requires dismissal. Third, we determine if Hardin's testimony regarding tracking was properly admitted. Fourth, the sufficiency of the evidence to support the element of premeditation is challenged. Fifth, Ortiz claims that he was entitled to an instruction of second degree murder as a lesser included offense. Finally, we examine the trial court's exclusion of evidence of a similar crime. On each issue, we affirm the trial court.
Ortiz argues that the trial court erred when it refused to find him incompetent to stand trial. A person is competent to stand trial if he has the capacity to understand the nature of the proceedings against him and can assist in his defense. State v. Hahn, 106 Wash.2d 885, 894, 726 P.2d 25 (1986); RCW 10.77.010(6); RCW 10.77.050.
In State v. Ortiz, 104 Wash.2d at 483-84, 706 P.2d 1069, this court held that Ortiz was indeed competent to stand trial:
[W]e hold that the trial court was correct in using the traditional analysis for determining competency and thus did not abuse its discretion in finding that petitioner was competent to stand trial. We note that other jurisdictions have held persons with similar IQ's competent to stand trial.
We acknowledged the trial court's finding that both requirements of the 2-part test were met, and rejected Ortiz's argument that a more stringent test should be adopted.
Upon remand, the trial court held a third competency hearing in September 1986, and entered a written memorandum decision on September 25, 1986. The court refused to exercise its discretion, and instead made the following decision:
Having implicitly weighed all the factors which went into the trial courts' decisions, the Supreme Court sustained those holdings. This Court cannot, then, take a different stance unless it can be said that new information presented has altered the status quo ante.
Supplemental Clerk's Papers, at 136. This reasoning is sound. Ortiz claimed incompetency based on mental retardation, but did not produce any evidence that his condition had changed since his previous competency hearings. Based on the finding that there had been no significant change, the trial court correctly denied Ortiz's motion.
Exculpatory evidence
Ortiz argues that the State's failure to preserve potentially exculpatory evidence was an error of such magnitude that dismissal is mandated. The trial court found that because the semen samples collected by Dr. Gibb from the victim were not properly preserved through either freezing or drying, the samples putrefied from bacterial growth. The samples were probably fit for blood group testing when collected, and there was a 55 to 60 percent chance that such tests would yield a blood type other than that of Ortiz, based on the distribution of blood types in the population. The court also found that there was a reasonable possibility that the samples would have been exculpatory. The trial court concluded, however, that the State had acted reasonably and in good faith, and had made earnest efforts to preserve the samples, and refused to dismiss.
To determine if a failure to preserve exculpatory evidence amounts to a denial of due process, we apply the standard recently set forth in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In that case, the defendant was convicted of child molestation, sexual assault and kidnapping. Youngblood, at 52, 109 S.Ct. at 333. The State negligently failed to preserve semen samples that were collected from the victim and his clothing, and tests which could have exonerated the defendant were not performed. Youngblood, at 53-54, 109 S.Ct. at 334-35. In reinstating the conviction, the Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Youngblood, at 58, 109 S.Ct. at 337.
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