State v. Ortuno-Perez

• Decision Date: 28 November 2016
• Docket Number: No. 72849-1-l,72849-1-l
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Santiago ORTUNO-PEREZ, Appellant.

196 Wash.App. 771

385 P.3d 218

STATE of Washington, Respondent,

v.Santiago ORTUNO-PEREZ, Appellant.

No. 72849-1-l

Court of Appeals of Washington, Division 1.

FILED: November 28, 2016

Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101-3647, for Appellant.

Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent.

Dwyer, J.¶1 Following a jury trial, Santiago Ortuno-Perez was convicted of murder in the second degree, committed while armed with a firearm. Ortuno-Perez's planned defense was that another person who was armed at the scene—Austin Agnish—committed the charged offense.

Prior to trial, Ortuno-Perez sought permission from the trial court to identify Agnish to the jury as the killer, to cross-examine the State's witnesses for bias in their testimony, and to introduce additional evidence indicating that a person other than Ortuno-Perez committed the murder. The trial court excluded the evidence and later clarified that Ortuno-Perez was precluded from arguing that anyone else at the murder scene committed the crime, notwithstanding that the evidence proffered by Ortuno-Perez tended to logically connect Agnish to the killing and notwithstanding that, as the trial evidence made clear, the victim was slain at close range by someone at the scene. The trial court erred by so ruling.

¶2 The trial court's "other suspect" rulings were not harmless. The rulings prevented Ortuno-Perez from offering evidence at trial tending to show that Agnish was the true killer and from advancing the defense theory that the State's eyewitnesses presented biased, contradictory, and untruthful testimony. Furthermore, the rulings effectively reduced Ortuno-Perez's trial defense to shallow cross-examinations of the State's witnesses. Without the ability to draw meaningful conclusions from the evidence actually admitted at trial and assert that someone other than him fired the fatal shot, Ortuno-Perez's general denial defense, in the face of undisputed evidence that the victim was shot by someone standing nearby, effectively amounted to either a nonsensical claim that the shooting did not happen or a meek suggestion that the State somehow failed to prove its case. Unsurprisingly, this defense was unsuccessful. As the trial played out, the trial court's "other suspect" rulings deprived Ortuno-Perez of his right to present a defense. Accordingly, we reverse and remand for a new trial.

I

¶3 In the early morning hours of October 12, 2013, Jesus Castro was shot in the head while standing outside of a house in Renton. He died several days later.

¶4 The single shot was fired at close range from a .22 caliber firearm. At the time the shot was fired, anywhere between 5 to 12 people were standing in close proximity to Castro. In that group were 2 individuals particularly pertinent here, Santiago Ortuno-Perez and Austin Agnish—each of whom was armed with a handgun at the time.

¶5 On the same day that Castro was shot, Ortuno-Perez was identified as a suspect and subsequently arrested outside of a house in Kent. While conducting a search of Ortuno-Perez's jacket after his arrest, the police found a .22 caliber bullet in the left outside breast pocket. The bullet, although of the same caliber as the bullet that killed Castro, was not of the same style and could have been from a different manufacturer. The weapon that was used to murder Castro was never found.

¶6 In a search of the house outside of which Ortuno-Perez was arrested, the police seized clothing similar to that which Ortuno-Perez was described as wearing at the time of the shooting. This clothing was tested for traces of blood but none was found.

¶7 In the days that followed, Ortuno-Perez was identified as the shooter by several witnesses who were present at the scene, including Agnish, Zachary Parks, and Dechas Blue.

¶8 Ortuno-Perez was subsequently charged with one count of murder in the first degree, committed while armed with a firearm.

¶9 Prior to trial, the State indicated that it would rely on the testimony of Agnish, Parks, Blue, and another witness, Joey Perdoza, to present evidence adverse to Ortuno-Perez. These witnesses were either acquaintances or close friends of one another. The State further intended to call another eyewitness, Castro's girlfriend, Erika Lazcano—with whom Castro had a child—to testify against Ortuno-Perez.

¶10 Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence that another person, not him, killed Castro. In particular, his counsel sought to identify Austin Agnish as the shooter, to cross-examine the State's witnesses for potential bias in their testimony, and to present additional evidence indicating that a person other than Ortuno-Perez was the shooter. The trial court denied Ortuno-Perez's request because Ortuno-Perez had not demonstrated that Agnish had taken steps to commit the crime.

¶11 Four days later, Ortuno-Perez's counsel filed a detailed offer of proof regarding the "other suspect" evidence that the defense would have introduced but for the trial court's adverse ruling. At a hearing that same day, Ortuno-Perez's counsel attempted to clarify the scope of the trial court's evidentiary ruling, asking whether it included questions on cross-examination seeking to reveal witnesses' biases and additional evidence implying the existence of a shooter who was not Ortuno-Perez. The trial court indicated that such questions and other evidence were indeed excluded, stating that,

[THE COURT]: ... [O]ther suspect [evidence], really, is about pointing the finger to a specific other person or persons. And that's what the Court has indicated you may not do in this case.

[DEFENSE COUNSEL]: So even saying—I will drop it after this—saying anyone else at that scene could have committed this crime, is that pointing the finger at somebody?

[THE COURT]: Basically yes.

¶12 At trial, the State argued that Ortuno-Perez killed Castro. The State's presentation of its case made clear that one of the individuals standing near Castro fired the fatal shot. In particular, the State offered a medical expert's testimony that, at the time of the gunshot, the barrel of the murder weapon was between two inches and two feet from Castro's head.

¶13 Agnish, Parks, Blue, and Perdoza testified adversely to Ortuno-Perez. Agnish, Parks, and Perdoza attested to being reluctant to testify at trial, claiming that they had received death threats for testifying in the case. Lazcano also testified against Ortuno-Perez, identifying him in court as the shooter, notwithstanding her prior statements to the police immediately after the incident in which she was unable to identify who shot Castro.

¶14 On the 10th day of testimony, after the State presented its last witness, Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had been denied by the trial court's "other suspect" rulings. Specifically, Ortuno-Perez argued that, in addition to being unable to present any evidence that tended to connect Agnish to Castro's murder, the rulings prevented him from being able to effectively confront the State's witnesses based on their testimony at trial. The trial court denied the motion. Immediately thereafter, the State and Ortuno-Perez rested their cases. Ortuno-Perez did not testify.

¶15 The jury convicted Ortuno-Perez of murder in the second degree, committed while armed with a firearm. He was sentenced to 280 months of confinement.

¶16 Ortuno-Perez now appeals.

II

A

¶17 Over the course of nearly a century and an intervening United States Supreme Court decision, Washington's "other suspect" evidence rule—applicable to proffered evidence that a specific person other than the defendant committed the charged crime—has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value.

¶18 In State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932), our Supreme Court acknowledged the common law rule. The issue in Downs was whether the trial court improperly excluded evidence that a specific person other than Downs or his codefendant committed the burglary at issue. The defendants sought to present evidence that "Madison Jimmy," a well known safe burglar, was in town on the night in question and planned to argue to the jury that he, not the defendants, stole from the safe. Downs, 168 Wash. at 666, 13 P.2d 1. Upon the State's objection, the trial court excluded the evidence. Downs, 168 Wash. at 666, 13 P.2d 1. Our Supreme Court found no error in the trial court's ruling. Noting that the defendants had failed to adduce evidence pointing to "Madison Jimmy" as the burglar, the court cited to the "general rule" of other jurisdictions, requiring that "[b]efore such testimony can be received, there must be such proof of connection with the crime, such a train of facts or circumstances as tend clearly to point out someone besides the accused as the guilty party." Downs, 168 Wash. at 667, 13 P.2d 1 (citing State v. Caviness, 40 Idaho 500, 235 P. 890 (1925) ). The court concluded that "[t]he fact that the so-called ‘Madison Jimmy’ was present in Seattle on the night of the burglary and may have had the opportunity to commit it, does not amount to even a justifiable suspicion that he did so." Downs, 168 Wash. at 667–68, 13 P.2d 1. The proffered evidence, the court observed, "would not create a reasonable inference as to the innocence of appellants." Downs, 168 Wash. at 668, 13 P.2d 1.

¶19 Nearly 70 years later, the United States Supreme Court examined whether a recent modification to South Carolina's common law "other suspect" evidence rule deprived a defendant of his right to present a defense. Holmes v. South Carolina, 547 U.S. 319, 327, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).¹ The modified South Carolina rule excluded more evidence than did the common law rule, permitting a trial court to exclude a defendant's "other suspect"...