State v. Ramires
| Decision Date | 08 January 2002 |
| Docket Number | No. 19127-3-III.,19127-3-III. |
| Citation | 109 Wash.App. 749,37 P.3d 343 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Wuenceslao RAMIRES, Appellant. |
Hugh M. Spall, Jr., Attorney at Law, Ellensburg, for Appellant.
Kenneth L. Ramm, Jr., Deputy Prosecuting Attorney, Yakima, for Respondent.
OPINION PUBLISHED IN PART
Wuenceslao Ramires appeals his convictions for attempted first degree murder, taking a motor vehicle without permission, and two counts of unlawful possession of a firearm. We affirm, after considering and rejecting in the published portion of this opinion his contentions of error connected to the admission of excited utterances and photographic identification, and exceptional sentencing. In the unpublished portion of this opinion, we reject his pro se contentions related to evidence sufficiency, sentencing, and the failure to give an intoxication instruction.
In the late evening of June 24, 1999, Yakima Police Officer Douglas Robinson made a routine traffic stop of a Pontiac automobile. With flashlight in hand, Officer Robinson approached the car. He could see two short people in the car, a female passenger with long hair, and a male driver.
Officer Robinson noted neither person looked at him as he approached the vehicle. He could not see either person's hands. As he reached the vehicle's rear wheel on the driver's side, the driver suddenly turned toward Officer Robinson and grinned. Sensing something was wrong, Officer Robinson stopped, but the driver immediately displayed a gun and shot him twice in the chest; both shots hit Officer Robinson's bulletproof vest near his heart.
As the vehicle raced away, Officer Robinson used his lapel microphone to call for help. Within seconds, Officer Scott Gylling arrived, followed soon by several other officers and paramedics. Officer Gylling followed the ambulance that transported Officer Robinson to the hospital. While on a gurney and before reaching the hospital emergency room entrance, Officer Robinson used a cell phone to call his wife. After an initial examination, and while still in the emergency room, Officer Robinson described the events and suspects to Officer Gylling. Officer Gylling's report later became the center of an excited utterance controversy described later in this opinion.
The Pontiac was found crashed not far away from the shooting scene. Evidence was recovered from the car.
The next morning, Officer Benny Hensley saw Wuenceslao Ramires and Rosa Lopez walking in downtown Yakima. Officer Hensley noted they matched the description given by Officer Robinson and were acting suspiciously. During an investigative stop and protective weapon's search, a .22-caliber revolver was found hidden in the crotch of Mr. Ramires's pants. Two bus tickets to Fresno, California were found in Ms. Lopez's possession.
Detective David Cortez soon interviewed Mr. Ramires. Mr. Ramires admitted having given a false name when arrested, and indicated he was on his way to Mexico with his girlfriend. Mr. Ramires told Detective Cortez he had purchased some guns in Mattawa to use when stealing a car. Instead, he and Ms. Lopez found the unoccupied Pontiac in Mattawa and drove it to Yakima. Shortly after arriving in Yakima, Mr. Ramires was pulled over by Officer Robinson. Mr. Ramires admitted shooting the officer twice as the officer approached the car. Detective Cortez testified there was no indication that Mr. Ramires was under the influence at the time he gave his statement.
Later that morning, Officer Jesse Rangel visited Officer Robinson at the hospital and showed him a photographic montage. Officer Robinson already knew a suspect had been arrested. The montage included a photo of Mr. Ramires, taken the morning of his arrest. Officer Rangel told Officer Robinson the photomontage included the suspect. After reviewing the montage for a few minutes, Officer Robinson identified Mr. Ramires as the person who shot him. Officer Robinson indicated the person in photo number five had the same complexion, eyes, and dark shirt, as the person who shot him. Apparently, the other photographs showed persons wearing white t-shirts. Officer Robinson circled and initialed the number five photograph. The montage became the focus of a later trial court ruling regarding impermissible suggestiveness.
Mr. Ramires was charged with attempted first degree murder, taking a motor vehicle without permission, and two counts of second degree unlawful possession of a firearm. While awaiting trial, Mr. Ramires wrote several letters to Ms. Lopez, asking her to take the blame for the shooting because she would be charged as a minor and would receive a shorter sentence. However, Ms. Lopez's trial testimony mirrored Mr. Ramires's earlier confession.
Mr. Ramires's trial testimony differed dramatically from his earlier confession. He testified it was Ms. Lopez who shot Officer Robinson, and he had no knowledge she was carrying weapons at the time of the shooting. Mr. Ramires testified that the day after the shooting, when he and Ms. Lopez saw a police car driving by, Ms. Lopez became scared because she was still carrying the gun, so Mr. Ramires agreed to hide it in his pants. Mr. Ramires conceded his confession, but indicated he had initially taken the blame for the crime in order to protect Ms. Lopez.
The jury found Mr. Ramires guilty as charged. After finding aggravating factors discussed below, the trial court imposed an exceptional sentence on the attempted first degree murder conviction. Then, Mr. Ramires appealed.
The issue is whether the trial court erred by abusing its discretion when admitting as an excited utterance under ER 803(a)(2), Officer Robinson's hearsay description of the shooting events given to Officer Gylling in the hospital emergency room.
A trial court's decision to admit evidence is reviewed for an abuse of discretion. State v. Williamson, 100 Wash.App. 248, 255, 996 P.2d 1097 (2000). An evidentiary decision may be an abuse of discretion if it is based upon facts that are not supported by the evidence. Id. However, a trial judge's findings, if supported by the evidence, will not be disturbed on appeal. Id.
The State concedes Officer Gylling's reiteration of Officer Robinson's description of the event was hearsay. ER 801(c). However, statements relating to a startling event or condition, made while the declarant was under the stress of excitement caused by the event or condition, are admissible as exceptions to the hearsay exclusion. ER 803(a)(2). The rule is based upon the premise that:
`under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control.' 6 J. Wigmore, Evidence § 1747, at 195 (1976). The utterance of a person in such a state is believed to be `a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock', rather than an expression based on reflection or self-interest.
State v. Chapin, 118 Wash.2d 681, 686, 826 P.2d 194 (1992) (quoting 6 J. Wigmore, Evidence § 1747, at 195 (1976)).
The trial judge must by a preponderance of the evidence make a preliminary finding that the declarant was still under the influence of the event at the time the statement was made. ER 104(a); Williamson, 100 Wash.App. at 257, 996 P.2d 1097. Whether a declarant makes statements while still under the stress of an event is a highly factual determination. State v. Sims, 77 Wash.App. 236, 238, 890 P.2d 521 (1995). A key focus is whether the statement is the result of fabrication, intervening actions, or the exercise of choice or judgment. State v. Brown, 127 Wash.2d 749, 759, 903 P.2d 459 (1995). Spontaneity is critical. Williamson, 100 Wash.App. at 258, 996 P.2d 1097. Evidence that the declarant has calmed down before making a statement tends to negate a finding of spontaneity. State v. Doe, 105 Wash.2d 889, 893-94, 719 P.2d 554 (1986).
An excited utterance may be made in response to questioning, but this tends to counter the element of spontaneity. Williamson, 100 Wash.App. at 258, 996 P.2d 1097; Chapin, 118 Wash.2d at 690, 826 P.2d 194. A declarant's ability to provide detailed information about the event also tends to show a calm, reflective state of mind. State v. Sellers, 39 Wash.App. 799, 804, 695 P.2d 1014 (1985); State v. Dixon, 37 Wash.App. 867, 874, 684 P.2d 725 (1984). The lapse of time between the startling event and the declaration is also a factor, although not as critical or dispositive. Williamson, 100 Wash.App. at 258, 996 P.2d 1097. The longer the time interval, the greater the need for proof that the declarant did not actually engage in reflective thought. Chapin, 118 Wash.2d at 688, 826 P.2d 194.
At a January 18, 2000 pretrial hearing, the State marked Officer Gylling's report of his contacts with Officer Robinson following the shooting as Exhibit A, and made an oral offer of proof regarding Officer Gylling's proposed testimony. The State offered that the time span was within an hour, hour and a half after the incident. Report of Proceedings (RP) (Jan. 18, 2000) at 7. The trial court admitted Exhibit A, which is not part of our record. The defense objected, mainly arguing that because Officer Robinson was available to testify directly, the hearsay would at best be cumulative, without probative value, and prejudicial; then the defense asked the court to err on the side of caution and simply permit Officer Robinson to testify to what he told people. RP (Jan. 18, 2000) at 7-8.
The trial court approved the offer under ER 803(a)(2) and other portions of the report that were present sense impressions under ER 803(a)(1). Regarding the excited utterance portion of Exhibit A, the court reasoned that although the report was not time specific it would accept the offer of proof that this information was taken a short...
To continue reading
Request your trial
-
State v. Scabbyrobe
...suggestive solely when the defendant is the only possible choice given the witness's earlier description." State v. Ramires , 109 Wash. App. 749, 761, 37 P.3d 343 (2002) ; State v. Burrell , 28 Wash. App. 606, 611, 625 P.2d 726 (1981) (suspect described as having "frizzy Afro" hairstyle; de......
-
State v. Oeung
... ... Brown , 128 Wn.App. 307, ... 312, 116 P.3d 400 (2005). Generally, "courts have found ... lineups or montages to be impermissibly suggestive solely ... when the defendant is the only possible choice given the ... witness's earlier description." State v ... Ramires , 109 Wn.App. 749, 761, 37 P.3d 343 (2002). A ... defendant making a claim of an impermissible identification ... procedure must first show that the procedure was ... impermissibly suggestive. If the defendant fails to meet this ... initial burden, the inquiry ends. Brown , ... ...
-
State v. Derri
...generally been applied "when the defendant is the only possible choice given the witness's earlier description ." State v. Ramires , 109 Wash. App. 749, 761, 37 P.3d 343 (2002) ) (emphasis added); see, e.g. , State v. Kinard , 109 Wash. App. 428, 431, 433, 36 P.3d 573 (2001) (photomontage w......
-
State v. Walker, No. 22003-6-III (WA 12/28/2004)
...ability to provide detailed information about the event . . . tends to show a calm, reflective state of mind.' State v. Ramires, 109 Wn. App. 749, 758, 37 P.3d 343, review denied, 146 Wn.2d 1022 (2002). The lapse of time between the startling event and the declaration is also a factor, but ......
-
Evidence at the electronic frontier: introducing e-mail at trial in commercial litigation.
...of the tongue" given that written response to show cause order was not consistent with "excited utterance"). (245.) State v. Ramires, 758, 37 P.3d 343, 348 (Wash. Ct. App. 2002), rev. denied, 2002 Wash. LEXIS 501 (Aug. 7, (246.) See, e.g., Dawson v. Commonwealth, 867 S.W.2d 493, 496 (Ky. Ct......