State v. Romero
| Citation | 113 Wn. App. 779,113 Wash. App. 779,54 P.3d 1255 |
| Decision Date | 03 October 2002 |
| Docket Number | No. 20591-6-III.,20591-6-III. |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Isaias Ramirez ROMERO, aka Luis Romero Ramirez, aka Manuel Martinez, aka Paco Aguilar Ramirez, Appellant. |
Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Appellant.
Kenneth L. Ramm, Jr., Deputy Prosecuting Attorney, Yakima, WA, for Respondent.
A jury found Isaias Ramirez Romero guilty of unlawfully possessing a firearm. A trial witness commented on Mr. Romero's constitutional right to remain silent. We conclude the comment was reversible error. In doing so, we establish a framework for analyzing direct and indirect comment issues. Additionally, we reject Mr. Romero's challenge to the State's failure to collect fingerprint evidence and decide the evidence was sufficient to support a conviction. Accordingly, we reverse and remand for a new trial.
The State charged Mr. Romero with one count of unlawful possession of a firearm in the first degree based upon the events described here. At trial, Union Gap police officer Alba Levesque testified she and another officer responded to a report of shots fired at a mobile home park at around midnight on the evening of July 4, 2001. Using a flashlight, Officer Levesque saw Mr. Romero coming around the front of one of the mobile homes. Because Mr. Romero was holding his right hand behind his body, Officer Levesque repeatedly ordered Mr. Romero to show his hands and step away from the mobile home. Mr. Romero did not comply and ran around the far side of the mobile home. Through windows on the near side of the mobile home, the officers could see Mr. Romero enter the mobile home.
After setting up a perimeter, Officer Levesque and Sergeant Dan Rehfield approached the front door of the mobile home and called repeatedly for its occupants to come outside. Two Hispanic males and one white male came out of the front door and the officers detained them.
Officer Levesque and Sergeant Rehfield entered the mobile home. Sergeant Rehfield found some shotgun shell casings on the ground as they approached the front porch. The officers entered the mobile home and found Mr. Romero and Alex Jimenez lying on a bed with their eyes closed, along with three sleeping children. Mr. Romero later testified he was asleep. At trial, the State argued he was feigning sleep.
According to Officer Levesque, a description from witnesses from another mobile home led her to identify Mr. Romero as the person shooting the shotgun. Officer Levesque testified Mr. Romero was wearing blue shorts that went below the knee and a grey shirt with a checkered pattern. Officer Levesque identified Exhibit 1 as the shirt worn by Mr. Romero at the time of his arrest.
Martel Gonzalez testified he heard a gunshot, looked out his window and saw Mr. Romero twice shoot a firearm described as a short shotgun without a shoulder stock. Mr. Romero stood among a group of four men as he fired the weapon. It was nighttime but lighting in the area enabled Mr. Gonzalez to see Mr. Romero's face. Mr. Gonzalez said he was positive Mr. Romero was the person firing the shotgun. Mr. Gonzalez testified that Mr. Romero was wearing blue shorts and a blue checkered shirt. Mr. Gonzalez also identified Exhibit 1 as the shirt then worn by Mr. Romero.
On cross-examination, Mr. Gonzalez said one other man at the shooting scene wore a plaid shirt and long shorts. Mr. Gonzales also said he "did not concentrate very much" on the men's faces but rather on their actions. Report of Proceedings (RP) at 65. But on redirect, Mr. Gonzalez was "one hundred percent" positive that Mr. Romero was the man shooting the firearm. RP at 68.
Sergeant Rehfield testified that the owner or tenant of the mobile home arrived during the investigation and gave permission to search the residence for weapons. Sergeant Rehfield said the officers searched the exterior and interior of the mobile home because "they did not respond to our questions ...." RP at 80. Inside the mobile home, Sergeant Rehfield found a shotgun wrapped in clothing behind a toilet. The shotgun was a short pump action with a pistol grip.
With respect to Mr. Romero's arrest, Sergeant Rehfield testified as follows:
RP at 82. Mr. Romero did not object to the second answer.
Sergeant Rehfield said they also detained Mr. Jimenez. The Sergeant described Mr. Jimenez as a "fairly large individual, approximately 5'8", wearing a T-shirt." RP at 83. Sergeant Rehfield estimated Mr. Jimenez weighed approximately 200 pounds.
Virginia Martinez, the tenant of the concerned mobile home, gave the officers permission to search her residence for the firearm. Ms. Martinez said she did not keep a firearm in her home. On cross-examination, Ms. Martinez noted a plaid object appearing in Exhibits 2 and 3 (the shotgun photos). Ms. Martinez did not recognize the item, and was not sure the object in the photograph was actually a shirt "because you cannot actually see what it is." RP at 102. She did indicate the object looked like a shirt belonging to her mother.
According to Detective Monty McNearney's testimony, the spent shotgun casings recovered from the scene matched the shotgun recovered from the mobile home. The State did not have the weapon tested for fingerprints, even though the defense made that request, because Detective McNearney believed it unnecessary in light of the eyewitness and because the shotgun had been mishandled, making an analysis futile.
The State rested. Then, Mr. Romero unsuccessfully moved to dismiss for lack of evidence and for failing to suppress the identification and fingerprint evidence.
Mr. Romero then testified. Mr. Romero admitted the necessary predicate felony. He saw Mr. Jimenez wearing a checkered shirt like the one shown in the photographic exhibits. Mr. Romero suggested the shotgun and the shirt in which it was wrapped belonged to Mr. Jimenez and that it was Mr. Jimenez who fired the weapon. Mr. Romero admitted he fled when confronted by the police because of an outstanding warrant for failure to appear for probation. Later, Mr. Romero saw Mr. Jimenez clad in an undershirt or T-shirt. Mr. Romero denied holding the shotgun and wanted the weapon tested for fingerprints. On cross-examination, Mr. Romero said he weighed about 135 pounds. And he admitted that his shirt did not look exactly like Mr. Jimenez's.
The jury found Mr. Romero guilty as charged. Mr. Romero appealed.
The issue is whether part of Sergeant Rehfield's trial testimony was an impermissible comment on Mr. Romero's exercise of his constitutional right to remain silent, and if so, was the error harmless. Mr. Romero can raise this issue, a manifest error affecting a constitutional right, for the first time on appeal. State v. Curtis, 110 Wash.App. 6, 11, 37 P.3d 1274 (2002); State v. Nemitz, 105 Wash.App. 205, 214, 19 P.3d 480 (2001); State v. Rogers, 70 Wash.App. 626, 630, 855 P.2d 294 (1993); RAP 2.5(a)(3).
Mr. Romero's right to silence is derived from the Fifth Amendment, applicable to the States via the Fourteenth Amendment, and Article I section 9 of the Washington Constitution. State v. Easter, 130 Wash.2d 228, 238, 922 P.2d 1285 (1996). In Washington, a defendant's constitutional right to silence applies in both pre and post-arrest situations. Easter, 130 Wash.2d at 243, 922 P.2d 1285. In the post-arrest context, it is well-settled that it is a violation of due process for the State to comment upon or otherwise exploit a defendant's exercise of his right to remain silent. See, e.g., Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); State v. Fricks, 91 Wash.2d 391, 395-96, 588 P.2d 1328 (1979).
The State may not use a defendant's constitutionally permitted silence as substantive evidence of guilt. State v. Lewis, 130 Wash.2d 700, 705, 927 P.2d 235 (1996); Easter, 130 Wash.2d at 236, 922 P.2d 1285; Curtis, 110 Wash.App. at 11-12, 37 P.3d 1274. Thus, "[a] police witness may not comment on the silence of the defendant so as to infer guilt from a refusal to answer questions." Lewis, 130 Wash.2d at 705, 927 P.2d 235.
A respected legal commentator has noted "a fine line between [what] is forbidden and what is allowed." Karl B. Tegland, 5B Washington Practice, Evidence: Law and Practice § 801.46 at 353 (4th ed.1999). For example, our Supreme Court held it is a violation of the defendant's right to silence for a police officer to testify that the defendant refused to talk to him or her. See Easter, 130 Wash.2d at 241, 922 P.2d 1285 (); Lewis, 130 Wash.2d at 706, 927 P.2d 235 (). Further, it is unfair for the State to emphasize the defendant's silence in closing argument. See Easter, 130 Wash.2d at 242-43, 922 P.2d 1285.
On the other hand, our Supreme Court has reasoned an officer's indirect reference to the defendant's silence is not error absent further comment inferring guilt. Lewis, 130 Wash.2d at 705-07, 927 P.2d 235. "A comment on an accused's silence occurs when used to the State's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt." Id. at 707, 927 P.2d 235 (citing Tortolito v. State, 901 P.2d 387, 391 (Wyo.1995)). In Lewis, the officer did not testify...
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...In Washington, a defendant's constitutional right to silence applies in both pre and post arrest situations. State v. Romero, 113 Wn. App. 779, 786-87, 54 P.3d 1255 (2002); Easter, 130 Wn.2d at 243. During the closing arguments of this case the prosecutor began by asking who the victim was.......
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