State v. Otero, No. 32778-3-II (Wash. App. 2/6/2007)
| Decision Date | 06 February 2007 |
| Docket Number | No. 32778-3-II.,(consolidated with No. 32808-9-II).,32778-3-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON Respondent, v. EDDIE AMADOR OTERO, Appellant. STATE OF WASHINGTON Respondent, v. ANGEL MATA BARASA, Appellant. |
Appeal from Clark Superior Court. Docket No: 04-1-01722-0. Judgment or order under review. Date filed: 01/06/2005 Judge signing: Honorable Robert L Harris.
Counsel for Appellant(s), Albert Armstrong III, Purcell & Adams, 7127 196th St Sw Ste 201, Lynnwood, WA, 98036-5046.
John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA, 98632-3714.
Counsel for Respondent(s), Michael C. Kinnie, Attorney at Law, 1200 Franklin, Po Box 5000, Vancouver, WA, 98666-5000.
A jury convicted Eddie Otero and Angel Barasa of two counts each of attempted first degree premeditated murder. When Otero and Barasa learned that their fellow Nortino gang members had been attacked by members of the Sorinos, a rival gang, they drove to an apartment complex where Sorinos lived, pulled up to a group of three people, asked them for their gang affiliation, and then opened fire, injuring two people.
In this consolidated appeal, Otero and Barasa assert several grounds for reversal, including lack of probable cause for a search warrant, errors in evidentiary rulings, prosecutorial misconduct, denial of the right to confrontation, insufficiency of the evidence, and a Blakely1 sentencing violation. We affirm.
Otero and Barasa were members of the Nortino gang. They learned that members of the Sorinos, their rival gang, had attacked three young Nortinos with baseball bats.
Otero and Barasa planned to retaliate. They met with two associates, including Steven Sanchez, and armed themselves with firearms and ammunition. Around 2:30 in the morning, they drove a grey Suburban van to a nearby apartment complex. Otero drove, Sanchez sat in the back driver's side, and Barasa sat in the back passenger's side.2
The apartment complex often was the site of gang friction between the Sorinos and the Nortinos. Jennifer O'Neil, Juan Barboza, and Barboza's sister, Yesenia, had just finished a late night movie and stepped outside to smoke. Barboza's brother-in-law and neighbor was Manny, a Sorino who often had conflicts with the Nortinos.
The three smokers watched as the Suburban passed, turned around at a dead-end street, and then returned. It stopped in front of them and someone yelled from the Suburban, "Where you vatos from?" 6-A Report of Proceedings (RP) at 486. This question was meant to elicit what gang they associated with. Barboza began to answer, "[W]e're from Vancouver," but before he finished the last word, shots erupted from the rear passenger side of the Suburban. 6-A RP at 487.
The three ran, panicked, into the apartment. Barboza collapsed with a bullet in his side that caused a potentially fatal wound. O'Neil's forehead began to bleed, later requiring stitches. In the next apartment, a stray bullet hit a parakeet in the wing. As the Suburban sped off, Otero asked Sanchez why he had not fired his weapon.
At the crime scene, the police found several . 45 caliber and .380 caliber shell casings in the street. Police executed a search warrant and seized two .380 rounds at Otero's apartment. Sanchez gave an official statement in which he implicated Otero and Barasa in the shooting. Police typed up the statement, which Sanchez initialed.
The State charged Otero and Barasa with attempted first degree premeditated murder of O'Neil and Barboza (counts 1 and 2). The State also alleged that the defendants committed the offenses while armed with firearms.
Claiming that the probable cause for the search warrant was insufficient or stale, Otero moved to suppress (1) the .380 rounds found in his apartment and (2) his post-arrest statements on the theory that the statements were fruits of an unlawful search. The trial court denied the motion.
Several evidentiary disputes arose during the trial. Defense counsel brought a motion in limine to exclude evidence of Otero and Barasa's gang affiliation, including photographs depicting Barasa and other men displaying gang colors, tattoos, and hand gestures. The trial court held two hearings on whether such evidence was unduly prejudicial and violated ER 403 or 404(b). It excluded some evidence as unfairly prejudicial but allowed other evidence of gang affiliation, including several of the photographs.
At trial, Sanchez was the State's key witness. He testified to facts largely consistent with his written statement to police, but his testimony differed in two respects. In Sanchez's statement to police, he said that the appellants learned of the Nortinos' assault directly from the victims, but at trial he said that the appellants learned of the assault from an unnamed third party. Also, in his statement, he identified Barasa as one of the shooters, but at trial Sanchez said he did not know who fired shots or whether the shots were fired from inside or outside the Suburban. Sanchez testified that he knew those two portions of his written statement were untrue but that he initialed the statement because he wanted the police to treat him with leniency.
During cross-examination, both Otero and Barasa questioned Sanchez extensively about the written statement he gave to police and asked him to read nearly the entire statement line by line to the jury. The only portion of the statement that the defense did not have Sanchez read to the jury was a pre-printed clause stating that the statement was made under oath.3
After Sanchez read the jury his statement at the appellants' request, the State moved to admit a written copy of the statement. The appellants objected on hearsay and relevance grounds. The trial court admitted Sanchez's statement as Exhibit 21, reasoning:
[T]he problem in itself is the jurors have heard a great deal about it, and the first question they will ask is, Where is the exhibit?
. . . . I am going to admit it. The rule clearly permits prior consistent statements as well as inconsistent statements be admitted. The whole document has been testified to, and as such, I think the jury is going to be in a position to amply determine what is its purpose in which it was used and the manner of the statements therein and what is inconsistent, what is consistent, and evaluate his testimony because it is basically the same, the substance that he gave before them, and they will have to evaluate it under the same purposes. 6-A RP at 464-66.
Late in the trial, Maurice Simon, a jailhouse informant, contacted authorities and alleged that Otero had admitted trying to influence Sanchez's testimony. Both appellants objected to admitting Simon's testimony. The trial court overruled the objections, but gave the jury an instruction limiting the evidence to Otero and ensuring it did not consider Simon's testimony as evidence against Barasa.
A dispute also arose when the State questioned Detective Jay Alie. The prosecutor asked Alie about his first interview with the victims' neighbor, Rebecca Swisher, and then asked, "And why'd you go back out to talk to her that second time?" 10-A RP at 1427. Alie responded, "Detective Henderson had told me that [Swisher's] daughters, who had been in town on the day of the incident, may have had contact with possible suspects prior to the incident." 10-A RP at 1427. Barasa objected on hearsay grounds, but Otero did not object. The trial court ruled that the statement was not offered to prove the truth of the matter asserted and thus was not hearsay, apparently because it was offered only to establish why Alie returned to interview Swisher a second time. Barasa also objected on grounds of surprise, because the information was "not disclosed, not in the reports." The trial judge simply responded "proceed." 10-A RP at 1427.
The State continued:
Q. Did you talk to [Swisher] about that?
A. Yes. So I went out there and I talked to her. She told me that her two daughters had been out in front of their house, that two Hispanic men in a gray Suburban had pulled up and talked to them, spoke to them in Spanish. She said one of her daughters speaks Spanish. And then those men had driven off. She suggested her daughters might have seen them and might be able to give me some information about that.
Q. Okay, and did she say when that happened?
A. My impression of how she described it was that it happened during the daytime prior to the shooting, on the day of the shooting, prior to darkness.
Q. Okay. And did you — did you track down the daughters and find out if, in fact —
A. Yes, I did.
Q. — they were witnesses?
A. I talked to the daughters —
10-A RP at 1428.
Both Otero and Barasa's attorneys then objected on grounds of hearsay and surprise. The State relented, asking no further questions, and the appellants did not request a curative instruction.
The trial court gave special verdict forms to the jury that asked the jury to find whether Otero or Barasa were armed with a deadly weapon at the time of the shooting. The trial court also instructed the jury that "[f]or purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant or an accomplice was armed with a firearm at the time of the commission of the crimes." 2 Clerk's Papers (CP) (Barasa) at 123; 2 CP (Otero) at 167. The jury returned special verdicts indicating that Otero and Barasa were armed with deadly weapons and found both men guilty as charged. The trial court then imposed a firearm enhancement on both appellants' sentences.
At sentencing, Otero and Barasa objected that the sentence enhancements violated Blakely because the jury entered a special verdict that the defendants were armed with a deadly weapon, not a firearm. The trial court held that Blakely's jury trial requirements were...
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