State v. Ramirez, 34872-5-III
| Decision Date | 30 August 2018 |
| Docket Number | No. 34872-5-III,34872-5-III |
| Citation | 425 P.3d 534 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Christopher B. RAMIREZ, Appellant. |
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, Marla Leslie Zink, The Law Office of Marla Zink, PLLC, 1037 Ne 65th St. #80840, Seattle, WA, 98115 for Appellant.
Brian Clayton O'Brien, Spokane County Prosecuting Attorney, Gretchen Eileen Verhoef, Spokane County Prosecutors Office, Larry D. Steinmetz, County Prosecuting Attorney Office, 1100 W Mallon Ave., Spokane, WA, 99260-2043 for Respondent.
Lenell Rae Nussbaum, Law Office of Lenell Nussbaum, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121, Boaz I. Cohen, David S. Frankel, Aaron L. Webman, Kramer, Levin, Naftalis & Frankel, LLP, 1177 Avenue Of The Americas, New York, NY, 10036, Amicus Curiae on behalf of the Innocence Project, Inc., The Innocence Project Northwest, The Innocence Network.
OPINION PUBLISHED IN PART
¶ 1 Christopher Ramirez appeals his convictions and sentence for two counts of premeditated first degree murder and one count of first degree unlawful possession of a firearm. We affirm.
¶ 2 On November 1, 2014, at approximately 9:34 p.m., law enforcement received reports of gunfire from Spokane Valley’s Broadway Square Apartments. When officers arrived at the scene, they connected the gunfire to apartment four of the complex, which had been occupied by brothers Arturo and Juan Gallegos. Juan Gallegos’s deceased body was outside the apartment. He had sustained multiple gunshot wounds. Arturo Gallegos was discovered inside a bedroom to apartment four with a single, fatal gunshot wound to the head.
¶ 3 The evidence indicated Arturo Gallegos had been shot while sitting inside his room, on top of his bed. There did not appear to have been a precipitating struggle or any sort of theft or ransacking of his room or apartment. Gunpowder stippling left on Arturo Gallegos’s face indicated he had been shot at close range. A bloodstained hat and glove were located on the bed.
¶ 4 A further review of the scene suggested Juan Gallegos was shot and killed after Arturo Gallegos. Although Arturo Gallegos had been shot only once, his bedroom contained three shell casings. The door from Arturo Gallegos’s bedroom into the apartment hallway was marked with two bullet holes. Door fibers surrounding the holes indicated the bullets had traveled from inside the bedroom into the hallway. No bullet fragments or markings were found in the hallway. Instead, the hallway wall was smeared with blood, which was later identified as belonging to Juan Gallegos. On the floor of the hallway were a pair of flip flops that had been discarded in an irregular fashion. Next to the flip flops was another blood stain from Juan Gallegos. Juan Gallegos’s body was found outside the main door, in front of apartment three. He was barefoot and had suffered 11 gunshot wounds.
¶ 5 Officers theorized that Juan Gallegos was initially shot while attempting to open the door to his brother’s bedroom after hearing the gunshot that killed Arturo Gallegos. Once Juan Gallegos was shot through the door, he tried to escape down the apartment hallway, losing his flip flops along the way. Juan Gallegos was able to escape from the apartment, only to be shot and killed outside.
¶ 6 As part of the investigation, officers talked to residents of the Broadway Square Apartments. No one saw the shooting or an apparent assailant. However, one of the residents reported hearing something near the fence behind the apartment complex around the time of the shootings. A K-9 handler investigated the area and picked up a track that went south from the complex for about two blocks to an address on East Valleyway Avenue in Spokane Valley.
¶ 7 Once at the East Valleyway address, officers were approached by a man named Carlton Hritsco. Mr. Hritsco asked if the officers were looking for a " ‘Mexican guy.’ " 3 Report of Proceedings (RP) (Oct. 6, 2016) at 476. Mr. Hritsco explained that he had been outside of his house and smoking a cigarette when he heard someone approach. The individual told Mr. Hritsco his name was "Demon." Id . at 514. The individual made Mr. Hritsco nervous, so Mr. Hritsco texted a friend, asking the friend to come over. The text went through at 9:41 p.m. Mr. Hritsco told law enforcement he felt certain he would be able to recognize the individual who had identified himself as Demon. A sheriff’s deputy showed Mr. Hritsco photographs of five individuals from the Spokane area who were known to use the moniker Demon. The photographs were pulled up, one-by-one, on the computer screen inside the deputy’s vehicle. Although one of the five photographs depicted Christopher Ramirez, Mr. Hritsco was not able to make a positive identification. Mr. Hritsco did say that Demon had been using his cell phone during their interaction. He also added that Demon was looking for a ride and had asked for directions to the bus.
¶ 8 The morning after the murders, law enforcement contacted Arturo Gallegos’s daughter, Rosemary Valerio, and her husband, Angel Valerio. Mr. Valerio identified Mr. Ramirez as someone who had problems with Arturo and Juan Gallegos.2 Mr. Ramirez is Rosemary Valerio’s cousin and the nephew of Arturo and Juan Gallegos. Mr. Valerio disclosed that on July 15, 2014, Mr. Ramirez had sent a text message to his uncles, Arturo and Juan, along with several others, that read, " " 2 RP (Oct. 6, 2016) at 376. Mr. Ramirez had also previously acknowledged pulling out a knife on Arturo Gallegos. Mr. Valerio disclosed that Mr. Ramirez went by the nickname Demon.
¶ 9 Mr. Ramirez was arrested on November 2, 2014. Officers obtained a sample of Mr. Ramirez’s DNA4 and it was discovered Mr. Ramirez was the major contributor to DNA found on the interior portions of the bloodstained hat and glove found on Arturo Gallegos’s bed. The blood was determined to have come from Arturo Gallegos. A search of Arturo Gallegos’s cell phone revealed Mr. Ramirez had made plans to meet up with Arturo Gallegos on the evening of the murders. Telephone records also indicated Mr. Ramirez had placed a call at 9:59 p.m. on November 1 to the Spokane Transit Authority’s bus schedule hotline.
¶ 10 After Mr. Ramirez’s arrest, a sheriff’s detective used Mr. Ramirez’s booking photo to prepare a new photomontage to present to Mr. Hritsco. The montage contained six photos. Each photo was shown to Mr. Hritsco, one at a time. Mr. Hritsco again was unable to make an identification.
¶ 11 No firearm was ever recovered in connection with the murders of Arturo and Juan Gallegos.
¶ 12 Mr. Ramirez was charged with two counts of premeditated first degree murder for the deaths of Arturo and Juan Gallegos, and one count of unlawful possession of a firearm. Mr. Ramirez’s case was delayed for several months to allow for competency evaluations. After he was deemed competent, Mr. Ramirez’s trial was scheduled to start on October 3, 2016.
¶ 13 Approximately two weeks before trial, Mr. Ramirez’s attorneys filed a motion to exclude Mr. Hritsco’s testimony regarding the conversation he had with the man named Demon. The motion claimed the State lacked sufficient evidence to connect Mr. Ramirez with the man who spoke to Mr. Hritsco. Defense counsel argued that, given the lack of connection, Demon’s statements were not statements of a party opponent, but inadmissible hearsay. The defense argued that testimony regarding Demon’s statements would be irrelevant, in violation of ER 401, and more prejudicial than probative in violation of ER 403. The defense also claimed that introducing statements by an unknown, out-of-court witness would violate Mr. Ramirez’s constitutional right of confrontation.5 No other constitutional objections were raised regarding Mr. Hritsco’s testimony.
¶ 14 The defense also filed a motion to exclude a report and testimony from FBI6 Special Agent Jennifer Banks. The State had proffered Special Agent Banks as an expert witness on historical cell site analysis. According to the report prepared by Special Agent Banks, records obtained from Mr. Ramirez’s cell phone provider placed him near the Broadway Square Apartments 10 minutes before the first 911 call was placed on November 1, 2014. The defense argued that Special Agent Banks’s testimony should be struck based on late disclosure and because it failed to meet both the Frye7 standard for admissibility and the criteria for expert testimony under ER 702.
¶ 15 Three days before trial, the State informed Mr. Ramirez’s attorneys that it had received additional information from Mr. Hritsco. During an interview on September 30, 2016, Mr. Hritsco disclosed that he had seen photographs of Mr. Ramirez in the media. Based on those photos, Mr. Hritsco said he was absolutely sure Mr. Ramirez was the individual he had talked to the night of the murders. Mr. Hritsco claimed the hair in the photos shown to him by law enforcement had prevented him from previously making a positive identification.
¶ 16 The parties argued the pending pretrial motions on the morning set for trial. The defense continued to claim Mr. Hritsco’s testimony should be excluded because the individual named Demon who talked to Mr. Hritsco was an unknown hearsay declarant.
Apparently recognizing that the recent information obtained from Mr. Hritsco undercut this argument, the defense argued the most recent statement should "not be considered for purposes" of the pretrial motions hearing because the statement "wasn’t submitted timely." 1 RP (Oct. 3, 2016) at 57. No constitutional concerns were raised regarding Mr. Hritsco’s testimony. Nor did the defense question Mr. Hritsco’s reliability. However, the defense noted that if Mr. Hritsco’s most recent information had been disclosed at an earlier date,...
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