State v. Zamora
| Decision Date | 08 June 2021 |
| Docket Number | No. 37019-4-III,37019-4-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JOSEPH MARIO ZAMORA, Appellant. |
SIDDOWAY, J. — After a 911 caller's dog barked at a person walking down the private road in front of her home, she reported that the person appeared to be looking into cars. Joseph Zamora turned out to be walking to the home of his niece. He proved to be high on drugs, however, and the State concedes that after police responded to the 911 call, a confrontation with Mr. Zamora "escalated far beyond what should have happened when a lone officer confronted a suspicious trespasser on a cold, icy winter night." Br. of Resp't at 32. Mr. Zamora's near death while resisting arrest resulted in an internal police investigation and prompts him to make some novel arguments on appeal.
We affirm the convictions but remand for resentencing.
On Super Bowl Sunday, February 5, 2017, Joseph Zamora, who was homeless at the time, spent time at the home of his brother, James Murphy. That evening, he decided to walk to where his niece, Alyssa Murphy lived, a few blocks away. Mr. Zamora later admitted to smoking methamphetamine two or three days earlier, but he could not recall if he smoked any meth that day.
At around 9:30 p.m. that evening, then-Moses Lake Police Officer Kevin Hake1 was on patrol when he received a report of a suspicious person carrying a suitcase and looking into vehicles on Space Street. The complaint had been phoned in by Brandi Moncada, who lived on Space Street and reported that an individual wearing "darkish clothes" and carrying some sort of bag was lurking around cars parked on the street. Report of Proceedings (RP) at 288. Because of the lack of street lighting, Ms. Moncada could not tell if the individual was male or female.
It had been snowing and road conditions were bad, but Officer Hake was only a quarter mile away, so he was able to respond quickly. When he arrived at Space Street he immediately saw what turned out to be Joseph Zamora, carrying some kind of case, walking down the road. Officer Hake and Mr. Zamora were traveling in the same direction, so the officer drove beyond him, pulled over, and got out of his patrol car. He signaled with his hand at Mr. Zamora, who was then about 20 feet away, and told Mr. Zamora he needed to speak with him. Mr. Zamora continued to walk toward Officer Hake and stopped when he reached him.
Officer Hake did not have a body camera and his patrol car dash camera did not work. He would later testify that he proceeded to ask Mr. Zamora where he was going, where he was coming from, what his name was, and for identification, but Mr. Zamora would not answer. Instead, Mr. Zamora leaned in to read Officer Hake's name tag, stood back up straight, and stared at him. Officer Hake became nervous, sensing that something was not right. He claims Mr. Zamora had no expression in his eyes, which he described as "the size of silver dollars." RP at 321. Mr. Zamora appeared to be "looking through" Officer Hake. Id. Officer Hake noticed that Mr. Zamora's left hand was partially in his left pocket and that some of his fingers were holding a boot by pinching it against his body. He appeared to be "fiddling with something" with the fingers in his pocket, and Officer Hake thought he might have drugs he was trying to discard. RP at 322.
When Mr. Zamora stepped to his right as if to go around Officer Hake, the officer stuck out his arm and told Mr. Zamora he was not free to leave. He got on his radio and said, "I've got one resisting." RP at 323. Mr. Hake explained at trial that there had been a storm, the roads were icy, and he "wanted to get people coming to my location, because I knew it was going to take some time." RP at 324. Even though Mr. Zamora had done nothing threatening, Officer Hake was scared and felt "something was going to happen." RP at 324.
After Officer Hake told Mr. Zamora that deputies needed to speak to him because they had a report of someone looking through vehicle windows, Mr. Zamora turned, the boot fell from his grip, and the officer saw movement in Mr. Zamora's left arm. Officer Hake responded by grabbing at Mr. Zamora, hooking Mr. Zamora's arms at the elbows, and trying, unsuccessfully, to use his own leg to sweep Mr. Zamora's legs out from under him. Officer Hake describes that as being the moment "when the struggle started." RP at 326.
Blow by blow details of what turned out to be a lengthy struggle between Mr. Zamora, Officer Hake, and other officers are immaterial to the issues that Mr. Zamora raises on appeal. Suffice it to say the struggle was intense and unrelenting. Officer Hake, although taller and heavier than Mr. Zamora, realized that Mr. Zamora was stronger. Before other officers arrived, Officer Hake and Mr. Zamora exchanged dozens of blows and the officer eventually drew his handgun and placed it against Mr. Zamora's ear, temple, and in his mouth; over the radio, Officer Timothy Welsh heard Officer Hake say, "Put your hands behind your back, I'll fucking kill you." RP at 644. Officer Hake was prepared to shoot Mr. Zamora until he heard sirens, assuring him that help was coming.
The arrival of Officer Welsh was not enough to cause Mr. Zamora to quit resisting, and even two against one, the officers were unable to handcuff him. Officer Welsh tried to control Mr. Zamora's left arm, having observed that Officer Hake wascontrolling Mr. Zamora's right side, but Mr. Zamora was able to "out-muscl[e]" him. RP at 628. It was only after four more officers arrived that they were able to handcuff Mr. Zamora. He continued kicking and flailing, so they used rope to hobble him; in the process of the officers trying hobble his legs, Mr. Zamora managed to kick Officer Welsh squarely in the chest. Officers then tied Mr. Zamora's hobbled feet to his handcuffs.
In the course of restraining Mr. Zamora, the officers collectively struck him repeatedly, pepper sprayed him in the face twice, and officers Welsh and Omar Ramirez used their stun guns to drive stun2 him with five second bursts: Officer Ramirez drive stunned Mr. Zamora's upper body twice, while Officer Welsh drive stunned his lower body once. The officers contended the force was necessary, given Mr. Zamora's unremitting physical resistance and unnatural stamina and strength.
After Mr. Zamora was successfully restrained, he was moaning, and the officers summoned medical aid.
Responding emergency medical technicians (EMTs) determined on arriving that Mr. Zamora was not breathing and had no pulse. They immediately started CPR,3 administered oxygen, gave him epinephrine, and administered two defibrillations. Oncehis heart started again, they transported him to the emergency room of Samaritan Hospital in Moses Lake, from which he was transferred to Sacred Heart Hospital in Spokane.
Before the transfer, Mr. Zamora was treated at Samaritan Hospital by Dr. Joshua Frank. Dr. Frank was told that Mr. Zamora had been very aggressive, erratic and exceedingly strong when resisting arrest. The doctor later testified that the most common cause of such behaviors would be that the individual was under the influence of a substance, usually a stimulant. A urine sample revealed that Mr. Zamora had methamphetamine, amphetamine, and THC4 in his system. Mr. Zamora's sister visited him at Sacred Heart Hospital shortly after he was admitted and four weeks later, while he was still in the intensive care unit. Photographs she took of him were later admitted at trial.
When police searched Mr. Zamora's left jacket pocket following his arrest, they found a blue handled folding knife with the blade locked open.
It turned out that the house to which Mr. Zamora was walking was the home of the parents of his niece Alyssa's boyfriend, Crawford, who is the father of her child. Crawford's parents, the Torreses, live on Space Street. Alyssa had lived in their home for two years. Mr. Zamora's struggle with police took place in the Torreses' front yard.Crawford's father, Javier Torres, even watched the struggle from his living room window, not knowing that Alyssa's uncle was involved.
The investigation uncovered no evidence that anyone's car was broken into that night or that any property was stolen. It turned out that the "suitcase" Mr. Zamora was carrying was the case for a DJ Hero music video game. RP at 744.
Internal investigation and pretrial motions in limine
The State did not immediately charge Mr. Zamora. The lawyer appointed to represent him learned from interviewing the six Moses Lake police officers who responded to the incident that none had prepared a police report. An internal investigation had been commenced by the Moses Lake Police Department, apparently almost immediately. Responding officers were told by some unidentified person at a "higher level" that rather than prepare a report, they would be submitting to an interview. RP at 234. The officers' interviews were transcribed and produced to defense counsel, who discovered that they all included language, consistent with Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), that the officers' statements could not be used against them in a criminal prosecution.5 The internal investigation apparently found no wrongdoing by the officers.
The separate investigation into whether Mr. Zamora should be charged was referred to Sergeant Matt Andersen of the Washington State Patrol, who spoke to Officer Hake briefly on the night of the incident. Defense counsel learned from officer interviews that none of them agreed to be interviewed by Sergeant Andersen; the sergeant relied instead on their Garrity statements. Sergeant Andersen did speak with other witnesses, including Mr. Zamora, and wrote a report in September 2017 that recommended that charges of assault in the third degree and disarming a law enforcement officer be filed against Mr. Zamora. In May 2018...
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