Opinion
No. 32536-5-II.
Filed: April 18, 2006.
Appeal from Superior Court of Pierce County. Docket No. 03-1-03985-5. Judgment or order under review. Date filed: 11/19/2004. Judge signing: Hon. James R. Orlando.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.
Counsel for Respondent(s), Donna Yumiko Masumoto, Pierce Co Prosec Atty Office, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
UNPUBLISHED OPINION
A jury convicted Santana Ocampo of first degree murder. On appeal, he maintains that the trial court abused its discretion in admitting a suggestive photo identification; several witnesses gave improper opinions about the veracity of key witnesses; the prosecutor committed misconduct; and testimonial hearsay statements were improperly admitted. We affirm.
FACTS
Late on the evening of August 9, 2003, Julio Morales-Castro was shot in the head while he sat in his car outside a pool hall. Morales-Castro died from these injuries. At the scene, a witness reported seeing a blue minivan drive away after the shooting. Other witnesses reported seeing three or more young Hispanic male gang members running from the scene of the shooting. The area around the pool hall was a common hangout for members of the Hispanic gang Surreo 13.
Detectives identified Jose Hernandez as one of the males running from the scene. Detective David Devault interviewed Hernandez, who implicated Ocampo. Based on Hernandez's statements, Detectives Robert Yerbury and John Ringer interviewed Baldemar Vela.
Vela told the detectives he was reluctant to provide information because he was afraid Surreo 13 would retaliate. Vela explained that on the night of the shooting, he was out drinking and partying with Hernandez. Vela gave a ride in his van to Hernandez and two of Hernandez's friends. Hernandez sat in the front seat. Vela stopped near the pool hall to purchase beer. Hernandez and his two friends got out of the van and went in a different direction from Vela.
Vela was talking to someone when Hernandez reappeared. Two minutes earlier, Vela heard what he thought was the sound of a firecracker. Hernandez was nervous and sweating and his two friends were standing across the street. Hernandez told Vela that they needed to leave because 'someone was tripping on him.' 3 Report of Proceedings (RP) at 416. The four then took off in Vela's van, again with Vela and Hernandez in the front seat. As he was driving, Vela overheard someone in the backseat say, 'I was tripping, so I had to shoot him.' 3 RP at 422.
Vela identified Hernandez from a montage of black and white photos. What happened next is disputed. According to Vela, he never looked at Hernandez's two friends on the night of the shooting and could therefore not identify them. The detectives gave him a single Polaroid color photograph and asked if the person was one of the friends. When Vela stated that he did not know, the detectives responded by telling Vela that the person had already admitted to being in the van. Vela then said, 'He probably was. If he is saying he was in my van, then he was.' 3 RP at 459.
Detectives Yerbury and Ringer denied Vela's version of the interview. The detectives explained that Vela was scared enough of gang retaliation that he talked about moving away or joining the military. Vela 'minimized his knowledge,' talking in vague generalities. 4 RP at 525. After Vela identified Hernandez, the detectives wanted to see if he could identify Ocampo. But the detectives did not have a picture of Ocampo. He had never been booked into jail and had not obtained a driver's license or identification card. Because the detectives were concerned that if they waited until Ocampo was arrested Vela would be uncooperative and backpedal from what he had told them, they took a Polaroid photograph of Ocampo, who was being interviewed in a different room. When they showed the picture to Vela, he readily identified Ocampo as one of Hernandez's two friends, although he could not say if he was the one who made the claim of shooting Morales-Castro.
The State charged Ocampo with first degree murder. Before trial, Ocampo moved to suppress Vela's identification. The trial court denied the motion after hearing Vela and Detective Ringer's testimony. The court found that Vela was not credible in denying that he had identified Ocampo or in asserting that he had not seen Hernandez's friends on the night of the shooting. The court concluded that although the single photograph of Ocampo was unduly suggestive, Vela's identification contained sufficient indicia of reliability to make it admissible. The court found significant Vela's certainty in the identification; Vela's prolonged opportunity to observe Ocampo on the night of the shooting; Vela's motivation to observe Ocampo after the shooting; and that Vela's identification was made only two weeks after the shooting.
At trial, the State called Hernandez, who agreed to testify truthfully at Ocampo's trial as part of a plea agreement to second degree murder. Hernandez testified that on the night of the shooting, Vela gave a ride to him, Ocampo, and Mesial Vasquez. When Vela stopped at the pool hall, Hernandez and Ocampo wandered off and came across a car with nice tire rims. The two decided to steal the car. Ocampo told Hernandez that he had a gun and would keep a lookout while Hernandez broke into the car. Hernandez began walking toward the car when Morales-Castro exited the pool hall and headed toward the same car. Hernandez headed in a different direction. Once Morales-Castro was in the car, Ocampo approached him and asked for $2 to catch the bus. Morales-Castro stated that he had no money and then attempted to drive off, but as he did so, Ocampo pulled out his gun and shot Morales-Castro in the head.
The State also called Carla Bach, a juvenile detention officer at the Pierce County juvenile detention facility. Bach testified that during one shift, Hernandez approached her while several other detainees were around and he loudly asked if she knew why he was in custody. Bach indicated that she did not know and Hernandez responded, 'I am here for murder.' 6 RP at 809. Hernandez then smiled and said that he was the shooter. Bach testified that she did not initially file a report on Hernandez's claim because, in her experience, juvenile detainees routinely exaggerated and misstated their crimes to gain status in the facility. Bach testified that the detainees would 'battle' each other, going back and forth with who had the 'better' crime. 6 RP at 810. Bach then explained why a report was eventually filed on Hernandez:
Like I said, I have known Jose since he came in I think at 12; always really liked him. And my coworker, Dawn, we both have had a really good rapport with Jose, so I happened to see her on break and I told her of the incident because that was the main staff that works in foxtrot [detention pod] and she just kind of — we both blew it off and said, there's no way, no way he could have been the shooter. That pretty much ended the conversation.
Then I think, I don't know if it was the next day or within that week, Jose talked to her and admitted the same thing that he admitted to me, so we both thought at the time we needed to make a report.
6 RP at 813. Bach clarified on cross-examination that they decided to file a report after Hernandez's second disclosure because they felt it was a Sserious enough situation.' 6 RP at 822.
Ocampo did not testify, but he presented several witnesses who each testified that Ocampo was at a party at the time of the shooting. Ocampo argued in closing that Hernandez killed Morales-Castro and that he was lying to save himself and possibly Vasquez.
The jury found Ocampo guilty as charged. This appeal followed.
ANALYSIS Vela's Identification
Ocampo maintains that the trial court erred in admitting Vela's identification of him as being in the backseat of the van on the night of the shooting. Ocampo argues that the identification procedure was fatally flawed by the detectives' use of a single color photo when they had previously shown Vela black and white photomontages. We disagree.
An out-of-court identification violates due process if it is based on suggestive factors that 'give rise to a very substantial likelihood of irreparable misidentification.' State v. Hilliard, 89 Wn.2d 430,438, 573 P.2d 22 (1977) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)). An identification tainted by suggestive factors is still admissible if, under the totality of the circumstances, the identification is reliable. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Vaughn, 101 Wn.2d 604, 607-08, 682 P.2d 878 (1984). This determination involves several considerations: the opportunity of the witness to view the defendant at the time of the crime; the witness's degree of attention; the accuracy of the witness's prior description of the defendant; the level of certainty demonstrated at the confrontation; and the time between the crime and the confrontation. Biggers, 409 U.S. at 199; Vaughn, 101 Wn.2d at 608 .
The trial court correctly concluded that Vela's identification was tainted by the fact that he was shown only a single photo. 'The presentation of a single photograph is, as a matter of law, impermissibly suggestive.' State v. Maupin, 63 Wn. App. 887, 896, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992). The suggestiveness was heightened by the use of a color Polaroid photo when Vela had previously been shown black-and-white booking photos. Nonetheless, a trial court has broad discretion to determine whether a tainted identification is reliable and therefore admissible. State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001), review denied, 146 Wn.2d 1022 (2002). A court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
The court concluded that several factors made the identification reliable in spite of the taint: Vela's certainty in the identification; the short period between the shooting and the identification; and Vela's prolonged opportunity and motive to observe Ocampo, particularly after someone began talking about the shooting. Ocampo disputes the court's ruling, relying on Vela's testimony that he did not identify Ocampo and that he did not see who Hernandez's two friends were. But the court found Vela's testimony not credible. The court found credible Detective Ringer's testimony that Vela readily identified Ocampo. We do not review credibility determinations. In re Pers. Restraint of Davis, 152 Wn.2d 647, 682-83, 101 P.3d 1 (2004). Ocampo fails to show that the trial court abused its discretion in admitting Vela's identification.
Opinion Testimony
Ocampo maintains that the State offered several improper opinions on the veracity of Hernandez and Vela's testimony and statements to detectives. It is improper for a witness to give an opinion on guilt or the veracity of the defendant or a witness. State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003) (improper opinion testimony violates 'the defendant's constitutional right to a jury trial and invade[s] the fact-finding province of the jury'); State v. Jerrels, 83 Wn. App. 503, 507, 925 P.2d 209 (1996). We take a narrow view of what constitutes improper opinion testimony. State v. Demery, 144 Wn.2d 753, 760, 30 P.3d 1278 (2001). '[T]estimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.' City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994). Whether testimony constitutes an impermissible opinion depends upon the circumstances of each case. Heatley, 70 Wn. App. at 579 .
Ocampo first contends that Detective Devault gave an improper opinion on Hernandez's veracity. Detective Devault testified that, based on his interview of Hernandez, he obtained an arrest warrant for Ocampo. The prosecutor then asked the following question: 'Did you feel that he was telling the truth to you?' 3 RP at 369. Detective Devault responded without objection, 'Yes, I do.' 3 RP at 369. Assuming this exchange was improper, Ocampo may not now raise the issue.
See Jerrels, 83 Wn. App. at 508 (mother improperly testified that she believed her children were telling the truth when they accused the defendant of sexual abuse).
A party is estopped from assigning error to the admission of evidence that the party relied upon in its case. Storey v. Storey, 21 Wn. App. 370, 376, 585 P.2d 183 (1978), review denied, 91 Wn.2d 1017 (1979). Likewise, a defendant who makes a tactical choice hoping for some advantage 'may not later urge his own action as a ground for reversing his conviction even though he may have acted to deprive himself of some constitutional right.' State v. Elmore, 139 Wn.2d 250, 280 n. 7, 985 P.2d 289 (1999) (quoting State v. Lewis, 15 Wn. App. 172, 177, 548 P.2d 587, review denied, 87 Wn.2d 1005 (1976)), cert. denied, 531 U.S. 837 (2000); see also In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 488, 965 P.2d 593 (1998) (defense counsel afforded wide latitude and flexibility in his choice of trial psychology and tactics).
Ocampo did not object to the detective's testimony that he believed Hernandez at the interview precisely because it supported his theory of the case. Ocampo's trial defense was that law enforcement and the prosecutor's office negligently and recklessly investigated Morales-Castro's murder. See, e.g., 7 RP at 1007 (defense counsel's closing argument: 'That is the definition of negligence. The police investigation started off negligent'). It was Ocampo's position that the State 'closed this case when they got the statement from [Hernandez]. This case was closed. Done. Let's convict the 16-year-old kid, first-degree murder based on Jose Hernandez without even doing the investigation.' 7 RP at 1028. Ocampo maintained that the State rushed to judgment and blindly accepted Hernandez's statements as gospel, thus overlooking the real killer, Hernandez. See, e.g., 4 RP at 550 (defense counsel questioning Detective Ringer: 'Was there ever any suspicion or any need in your mind to corroborate the story [Hernandez] is telling you? Do you guys just take it at face value, 'that was good enough for us, case closed?"); 7 RP at 1003 (defense counsel's closing argument: 'Hernandez shot and killed Julio Morales Castro. . . . Jose Hernandez lied about it to save himself. He lied about it to save or cover for two other people.'). Ocampo is precluded from assigning error to Detective Devault's testimony for the first time on appeal.
Ocampo also contends that Detective Ringer testified to 'believ[ing] Hernandez's version of events over others.' Br. of Appellant at 13 (citing 4 RP at 539). But again, Ocampo is estopped from raising this assignment of error. Moreover, we note that Ocampo cites his cross-examination of the detective, where he testified that witnesses at the crime scene identified members of the Surreo 13 gang that Hernandez told them were not involved. Ocampo elicited this testimony. Detective Ringer did not offer an opinion on the veracity of Hernandez's disclosures.
Ocampo next contends that Detective Ringer testified that 'Vela was not being truthful when he testified he could not identify Ocampo as one of the persons in the back of his van.' Br. of Appellant at 16. Ocampo is incorrect. Detective Ringer did not offer an opinion on the truthfulness of either Vela's trial testimony or his statements to the detectives. What Detective Ringer did testify to was his opinion that when Vela talked to the detectives, he talked in vague generalities and appeared to be minimizing his knowledge of the night of the shooting. Detective Ringer also testified to his concern that Vela would change his story if the detectives did not have him immediately attempt to identify Ocampo. Detective Ringer's testimony was based on his experience in interviewing people and Vela's own admitted fear of gang retaliation if he cooperated. See ER 702, 704; Heatley, 70 Wn. App. at 578 . Detective Ringer's testimony was not improper.
Lastly, Ocampo contends that Bach gave an improper opinion by testifying that she and her coworker did not initially believe Hernandez was the shooter. But again, the record reflects that Ocampo did not object because Bach's testimony aided his trial defense. Before Bach's testimony, Ocampo sought and obtained assurances that Bach would not offer a current opinion on whether Hernandez was the shooter. Bach testified that a report was not initially filed for Hernandez's shooting claim because they thought he was 'puffing' and they believed there was 'no way, no way he could have been the shooter.' 6 RP at 813. Bach then explained that the situation became serious, and a report was necessary, when Hernandez again claimed to be the shooter. Bach's testimony supported Ocampo's defense: Although Bach and her coworker really liked Hernandez, they were no longer confident in their disbelief of his claims. We reject this assignment of error.
Prosecutorial Misconduct
Ocampo maintains that the prosecutor committed misconduct in eliciting Hernandez's testimony that his plea agreement required truthful testimony and in asking Vela if he was accusing the detectives of improper behavior. We disagree.
In State v. Green, 119 Wn. App. 15, 24, 79 P.3d 460 (2003), review denied, 151 Wn.2d 1035, cert. denied, 543 U.S. 1023 (2004), Division One of this court held that a plea agreement provision requiring truthful testimony should be redacted upon request because it improperly vouches for a witness's credibility. But see ER 603 (requiring a witness to declare under oath or affirmation that she will testify truthfully). However, the failure to object waives any error. Green, 119 Wn. App. at 24-25 n. 19. If there is no redaction request, the prosecutor does not commit misconduct by making an argument based on the plea agreement provision. State v. Clapp, 67 Wn. App. 263, 274, 834 P.2d 1101 (1992) (prosecutor could tell jury that witness 'escaped prosecution in exchange for his truthful testimony'), review denied, 121 Wn.2d 1020 (1993).
Here, Ocampo did not object to the prosecutor's question and Hernandez's testimony that, as part of his plea agreement, the State would make a certain sentencing recommendation if Hernandez promised to testify truthfully at Ocampo's trial. Again, the decision not to object appears to have been a tactical one, aimed at establishing the State's devotion to a man Ocampo professed to be a liar and the real murderer. Without an objection, it was permissible for the prosecutor to argue in closing that the State decided to offer Hernandez a reduced charge in exchange for his truthful testimony, and that it did so only after it obtained additional evidence corroborating Hernandez's account. Contrary to Ocampo's argument on appeal, the prosecutor did not offer a personal opinion on Hernandez's credibility. This assignment of error fails.
See generally State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984) (if an accomplice's testimony is the only evidence against the defendant, trial court must instruct the jury to subject the testimony to careful examination and to act upon it with great caution), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 157, 761 P.2d 588 (1988), and State v. McKinsey, 116 Wn.2d 911, 914, 810 P.2d 907 (1991).
Ocampo also contends that the prosecutor committed misconduct by asking Vela: 'So you are going to sit here and tell us that the police acted that improperly when they talked to you?' 3 RP at 462. For support, Ocampo cites State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997), and State v. Casteneda-Perez, 61 Wn. App. 354, 810 P.2d 74, review denied, 118 Wn.2d 1007 (1991). In Fleming, 83 Wn. App. at 213-14, the court held improper the prosecutor's argument that the jury had to convict the defendant unless it thought the victim was lying, confused, or fantasizing about being raped. In Casteneda-Perez, 61 Wn. App. at 362-63, the court held improper the prosecutor's questioning of witnesses and the defendant on whether they were accusing police officers of lying.
Fleming and Casteneda-Perez are inapt. The prosecutor's question here rebutted defense counsel's questioning during cross-examination. There, Vela testified that the detectives were 'pretty aggressive' during his interview with them, that six to eight detectives surrounded him and badgered him with questions, and that the detectives misled him into making a positive identification of Ocampo. 3 RP at 453. The prosecutor did not commit misconduct by following up on Vela's testimony and asking whether he was accusing the detectives of misconduct during the interview. See State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994) ('Remarks of the prosecutor, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel and are in reply to his or her acts and statements.'), cert. denied, 514 U.S. 1129 (1995). Vasquez and Right to Confrontation.
Ocampo lastly maintains that his right to confrontation was violated by the admission of testimonial hearsay statements from Vasquez. The admission of testimonial hearsay violates a defendant's right of confrontation unless the declarant is unavailable and there was a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). A statement is 'testimonial' if a reasonable person in the declarant's position would expect it to be used prosecutorially. Crawford, 541 U.S. at 52; State v. Shafer, 156 Wn.2d 381, 390 n. 8, 128 P.3d 87 (2006). This definition includes statements elicited in response to structured police questioning during an investigation. Crawford, 541 U.S. at 52-53 n. 4; State v. Walker, 129 Wn. App. 258, 268, 118 P.3d 935 (2005).
According to Hernandez, Vasquez was the fourth person in Vela's van on the night of the shooting but he was not with Hernandez and Ocampo when the shooting occurred. Vasquez did not testify at trial. In arguing that Vasquez's statements were improperly admitted, Ocampo first cites a passage where a detective testified that he spoke with Vasquez about the shooting and that Vasquez was reluctantly helpful. But the detective did not testify to the substance of any statements Vasquez made. Ocampo was able to cross-examine the detective on whether any statements were made. Ocampo's right to confrontation was not violated here.
Ocampo next cites Detective Ringer's testimony concerning identifications made by witnesses at the crime scene:
Q And when you showed these photographs, were you able to identify anybody in the photographs?
A They did make identifications.
Q You seem reluctant to say that. . . . Why are you reluctant?
A Well, in the long run some of the identification proved erroneous.
Q Why do you say that?
A As we investigated further, we found that one of the photographs, Jose Hernandez's identification of him, was accurate, but then some of the others were people that they knew but had not actually been involved in the shooting.
Q Okay. How were you able to determine that?
A Well, eventually Jose Hernandez was arrested, he gave a statement. Later we contacted Baldemar Vela, and he gave a statement that verified what Jose Hernandez said. And still later, Mesial Vasquez was interviewed and he also verified the other two.
4 RP at 515. The prosecutor used this testimony in closing argument:
'Ladies and gentlemen, Jose's gone back and forth to some extent about the facts of this, but his statements, the core of his statements, were corroborated by Mesial Vasquez, Baldemar Vela and Marcos, as well as physical evidence.' 7 RP at 993.
As the prosecutor's closing reflects, the detective's testimony implies that Vasquez gave a statement to law enforcement corroborating Hernandez's statement of those involved in the shooting. However, the record establishes that defense counsel was keenly aware of the Vasquez/Crawford issue and did not view the quoted testimony to be problematic or objectionable. Later in Detective Ringer's testimony, defense counsel made the following remarks in a sidebar:
[DEFENSE COUNSEL]: Your honor, with the questioning that's happening, I see where this is going. They are going to bring in next a statement by Mesial Vasquez [that] Santana Ocampo was in the van. Mesial Vasquez is not here, we are not able to confront this witness, don't know where he is. State's not going to produce him and I want to make sure there is no hearsay from Mesial Vasquez of my client being in that van coming into this testimony. . . .
[PROSECUTOR]: [Defense counsel] asked if there had been any evident — actually, he made the statement there had been no efforts to corroborate and I think that there certainly were, and I think there certainly was, and I think there has — there was testimony both through direct and redirect and now in cross that indicates Mr. Vasquez's corroborating exactly what everybody else is corroborating.
THE COURT: Well, I don't think it opens the door to introduce Vasquez's statement beyond the extent that there has already been testimony to efforts to corroborate. I think that's a dangerous road to go down and certainly don't want to have Crawford-related problem.
[PROSECUTOR]: I have gone as far as I intend to go in that regard. I just have a couple more.
THE COURT: All right.
[DEFENSE COUNSEL]: I understand. I had to make sure that didn't happen.
4 RP at 556-57.
Ocampo is not entitled to a new trial based on this issue. First, he did not object to Detective Ringer's testimony. See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990) ('The absence of a motion for mistrial at the time of the argument strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial.'), cert. denied, 498 U.S. 1046 (1991).
Second, and as previously noted, Detective Ringer's testimony only implied the outlines of Vasquez's statement. See State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992) (RAP 2.5(a), permitting a manifest constitutional error to be raised for the first time on appeal, requires an error that is 'unmistakable, evident, or indisputable, as distinct from obscure, hidden, or concealed,' and having 'practical and identifiable consequences in the trial.'). Third, Ocampo did not object to the prosecutor's closing. See State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (defendant's failure to object waives improper closing remarks unless the comments are so flagrant and ill-intentioned that the resulting prejudice could not be alleviated by a curative instruction), cert. denied, 523 U.S. 1007 (1998). Fourth, defense counsel incorporated Vasquez's corroboration in the beginning of his closing argument where he suggested that Hernandez was the shooter and that he was lying to save himself and possibly Vasquez. Thus, the State's reference to Vasquez's corroboration did not undermine Ocampo's trial defense that he had an alibi and that Hernandez and Vasquez were trying to pin their actions on him.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and VAN DEREN, J., concur.