State v. Tinajero
| Decision Date | 22 August 2013 |
| Docket Number | 28327-5-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. RODOLFO RAMIREZ TINAJERO, Appellant. |
THE COURT has considered appellant's motion for reconsideration and the answer thereto, and is of the opinion the motion should be denied. Therefore,
IT IS ORDERED, the motion for reconsideration of this court's decision of June 13, 2013 is hereby denied.
IT IS FURTHER ORDERED the opinion filed June 13, 2013 is amended by deleting the following language that begins the second full paragraph on page 30: "Although the closing arguments were not provided in our record on appeal."
Rodolfo Ramirez Tinajero was convicted of the first degree rape of a woman he lured into an orchard with a promise of work. Among the evidence against him was testimony of another woman who claimed to have been the victim of an attempted rape by Mr Tinajero[1] several months earlier, under similar circumstances. He was sentenced as a persistent offender to life in prison without the possibility of release.
He challenges his conviction on a number of grounds, with several arising out of the court's admission of testimony from the victim of the earlier alleged rape. We find only one error: that limited hearsay evidence was admitted in violation of his right of confrontation under the Sixth Amendment to the United States Constitution. Because other evidence was available to establish the same facts, the constitutional violation was harmless. We affirm.
Yakima police arrested Rodolfo Ramirez Tinajero for the first degree rape of Maria V. in August 2007, within a week and a half after the rape occurred. Mr. Tinajero had previously been identified as a suspect or person of interest in the attempted first degree rape of another woman, Beatriz S which had taken place four months earlier, in April.
Maria V., the victim in this case, had been working in the fields in 2007 and on the day of the rape drove her car, alone, to the Buena area, hoping to find work. She made several stops and inquiries without success until encountering Mr Tinajero, who told her that he could direct her to a place where workers were being hired and that she should follow his car.
She followed him to an orchard where he stopped, stepped out of his car, walked to her car, and told her he believed they were not going to start work that day. Seeing that there was no one working there, she said she was going to leave, at which point he said "no, " pulled out a knife, and said "you're not going to leave, you're going to do what I tell you to do now." Report of Proceedings (RP) at 654. He ordered her to walk into the orchard. When he reached a remote location, he raped her, holding his knife to her neck.
After he was finished, he walked her back to where their cars were parked, ordered her to stand at her car looking away from his, and then drove off. She drove back to her home, where her husband saw that she was upset and asked her what was wrong. She only reluctantly told him what had happened. He drove her to the police station where she spoke to officers. They suggested that she go to the hospital, which she did, the next morning; a rape kit was taken. She later spoke to Yakima County Sheriffs Detective Richard Mottice.
Her description of the man who raped her included the fact that he had a gap in his teeth. For that reason, Detective Mottice showed her a photo montage prepared for his investigation of the attempted rape of Beatriz S.; Ms. S. had provided a similar description of the man who assaulted her. Mr. Tinajero had a gap in his teeth and his picture had been included in the montage. Ms. S. had not identified anyone from the montage but Ms. V. immediately identified Mr. Tinajero as the man who raped her.
Mr. Tinajero was charged, an arrest warrant issued, and he was arrested within a few days. Following his arrest, Detective Mottice went to speak with him at the Yakima County jail, where Mr. Tinajero was read his Miranda[2] rights and agreed to give a recorded statement. When the detective asked Mr. Tinajero if he forced Ms. V. to have sex with him, Mr. Tinajero replied, RP at 1070. He claimed that Ms. V. discussed her need for money, asked if there was something she could do for him, agreed to have intercourse that then occurred in the orchard, and that he paid her with a $50 bill.
The detective also took the opportunity to ask Mr. Tinajero questions related to his investigation of the April rape attempt of Ms. S. He first asked if Mr. Tinajero had a cell phone. Ms. S. had been lured to the orchard where she was assaulted through a phone call and had been able to provide the telephone number. Mr. Tinajero admitted having a phone and provided the same number reported by Ms. S. The detective posed further questions to Mr. Tinajero about the earlier crime, including whether he had met a woman in an orchard on Progressive Road, whether he attempted to rape her, and how many calls Mr. Tinajero might have made to her from his cell phone. Mr. Tinajero's responses were inconsistent and unnatural. Among other statements, he said, "I didn't have anything to do with her, " "With that person, we just happened to meet there, " and that if he did call her it was "maybe" RP at 1073-75.
Following the interview, the detective obtained a warrant to search Mr. Tinajero's apartment. Among items seized during the search was a certificate of title to a red Nissan Sentra that matched Ms. V.'s description of the car Mr. Tinajero drove on the day of the rape. The Nissan was parked outside the apartment. The detective found another certificate of title (although not in Mr. Tinajero's name) for a 1984 gray Nissan with the license number 911 MXF, parked next to the red Nissan. The gray Nissan matched Ms. S.'s description of the car driven by the man who attempted to rape her, including its license plate number, which Ms. S. had written down upon reaching her own car. The police also found a utility knife and a pocketknife on the back porch.
Before Mr. Tinajero's trial for the rape of Ms. V. the State provided notice that it intended to offer the testimony of Ms. S., relying on RCW 10.58.090. At the time of the State's motion, the statute provided for liberal admission of evidence of a defendant's other sex offenses, essentially rejecting limitations that would otherwise apply under ER 404(b). The statute required the State to disclose the evidence in advance and the court to determine that the evidence was not unduly prejudicial. In light of the State's notice, the trial court considered whether to admit Ms. S.'s testimony under the statute or, alternatively, under ER 404(b) at a pretrial hearing.
At the time of the hearing, the State called Ms. S., Detectives Mottice and Robert Tucker, and Juan Rodriguez, who had served as an interpreter when Detective Mottice conducted his jailhouse interview of Mr. Tinajero. Ms. S. testified that she had responded earlier in 2007 to a telephone number given in connection with a radio advertisement of farm work. In several calls to and from what proved to be Mr. Tinajero's phone number, she was told by a man how to get to the orchard where work was available and to meet him there if she wanted to begin work the following week. When she arrived at the location he had described, there was a man wearing work gloves and appearing to be pruning grapes with loppers but no one else was working in the vicinity. When she pulled over, he identified himself as the man who had spoken to her and told her to follow him to where she would be working. As she followed him farther into the orchard she became uneasy and reluctant to continue. At that point he pulled out a knife, held it to her neck, and forced her to walk to a more secluded area where he attempted to rape her. Police later recovered a pair of gloves and loppers in the vicinity of the attempted rape; Ms. S. identified them as similar to those of her attacker. By the time of the hearing, DNA (deoxyribonucleic acid) results had identified Mr. Tinajero's DNA on the gloves.
At the hearing, Mr. Tinajero challenged the constitutionality of RCW 10.58.090 on ex post facto grounds but the court rejected his argument. It found the evidence of the attempted rape of Ms. S. to be admissible under both the statute and ER 404(b). In support of its ruling on ER 404(b), it made findings that the act was established by a preponderance of the evidence; was admissible as evidence of a common scheme or plan, intent, and identity; and that its probative value outweighed the risk of prejudice.
At trial, Mr. Tinajero's lawyer informed the court that his client wished to testify but wanted advance assurance that if direct examination was limited to the events of the afternoon of the alleged rape of Ms. V., the State would not be permitted to examine him about the earlier attempted rape of Ms. S. The defense lawyer expressed Mr. Tinajero's desire to preserve his Fifth Amendment right as it related to the State's charges concerning Ms. S. Evidence of the attempted rape of Ms. S. had, by that point, already been admitted. The court refused to rule out cross-examination in advance, stating it would consider objections to particular questions during examination. Mr. Tinajero elected not to testify.
The jury found Mr. Tinajero guilty...
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