Opinion
Nos. 28222–8–III 30001–3–III
10-22-2013
STATE of Washington, Respondent and Cross Appellant, v. Salvador S. NAVA, Appellant. In the Matter of the Personal Restraint Petition of Salvador Nava, Petitioner.
Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant. Salvador Nava, Walla Walla, WA, pro se for Petitioner. David Brian Trefry, Attorney at Law, Spokane, WA, James Patrick Hagarty, Yakima County Prosecuting Attorney's Office, Yakima, WA, for Respondent/Cross–Appellant.
Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.
Salvador Nava, Walla Walla, WA, pro se for Petitioner.
David Brian Trefry, Attorney at Law, Spokane, WA, James Patrick Hagarty, Yakima County Prosecuting Attorney's Office, Yakima, WA, for Respondent/Cross–Appellant.
SIDDOWAY, A.C.J. ¶ 1 In order for a witness's unsworn tape-recorded statement to police to be admitted as a recorded recollection, the proponent of the evidence must establish among other factors that the record accurately reflects the witness's prior knowledge. State v. Alvarado, 89 Wash.App. 543, 551, 949 P.2d 831 (1998) held that this fourth factor of the foundation may be satisfied without the witness's direct averment of accuracy at trial. In this case, because Salvador Nava fled the country following the murder of Antone Masovero in May 2001 and was not apprehended and tried for the murder until eight years later, the State's case was based in part on the admission, as recorded recollections, of statements of four witnesses tape-recorded by Yakima police detectives in 2001. Three of the recorded statements were admitted even though at trial the witnesses disavowed, to some degree, the accuracy of their 2001 statements.
¶ 2 We hold that the trial court did not abuse its discretion in finding that the foundation for admitting the evidence was satisfied even in the face of the witness's disavowals, where the disavowals were equivocal or not credible, and were countered by other evidence—best assessed by the trial court—suggesting that the recorded statements had been accurate. Mr. Nava was allowed to present evidence and argument to the jury challenging their weight and credibility. ¶ 3 In the unpublished portion of the opinion, we reject Mr. Nava's challenge to the admission of gang evidence, his claim of ineffective assistance of counsel, and issues raised by a statement of additional grounds and a personal restraint petition (PRP) consolidated with his appeal. We agree with the State's cross appeal that the trial court's exceptional sentence downward cannot stand. We affirm the convictions, reverse the sentence and remand for resentencing, and dismiss Mr. Nava's PRP.
FACTS AND PROCEDURAL BACKGROUND
¶ 4 Shortly after midnight one night in May 2001, Antone Masovero was shot and killed as he sat as a passenger in a sedan that Anthony Martinez had just pulled up to a taco truck in a supermarket parking lot. Although over a dozen people were in the vicinity of the taco truck at the time of the shooting, most scattered before police arrived.
¶ 5 Police Officer Mark Lewis was performing traffic patrol nearby when he heard gunshots and saw muzzle flashes coming from the direction of the lot. He radioed in a report and was driving toward the lot when Mr. Martinez drove the gold Nissan Altima sedan in which Mr. Masovero sat, fatally wounded, out of the lot, its lights off, traveling toward the officer in the wrong lane of traffic. As Mr. Martinez approached the officer, he turned to his left into what appeared to be a street but was instead a curbed back entrance to a fire station. A gate across the station entrance stopped him and Officer Lewis pulled in and blocked him from the rear. Officer Lewis and other responding officers detained Mr. Martinez, his front seat passenger, and two passengers who had been sitting in the back with Mr. Masovero. Mr. Masovero had been shot twice through the head and was slumped in the left rear passenger seat, his head and shoulders covered in blood. It was apparent to officers that he was dead.
¶ 6 Officers were immediately dispatched to identify any witnesses in the parking lot or nearby homes, but only Guadalupe Rojas and her husband Angel Rojas, who had arranged with their children to meet in the parking lot following a nearby quinceañera, were able to provide helpful information. Mr. and Ms. Rojas traveled to the police station and provided statements to then-Detective (later Sergeant) Joe Salinas. Mr. Rojas described a man he had seen walk up to the sedan in which Mr. Masovero was sitting and fire the fatal shots; from his description, detectives prepared a photomontage that they presented to Mr. Rojas the next morning. Although he was not able to make a firm identification, Mr. Rojas did tap his finger on the picture of Salvador Nava, the fourth picture in the array, as "look[ing] like" the shooter. Report of Proceedings (RP) (Jan. 29, 2009) at 78.
A quinceañera is a coming of age party celebrating a 15th birthday.
By the time of trial, Joe Salinas was a police sergeant and was generally addressed as such in the trial record. At the time of the Masovero murder and his assignment to lead the investigation into the murder, he served as a detective, however, and in recounting facts from that time frame, we refer to him as Detective Salinas.
¶ 7 The four surviving passengers from the Martinez sedan were also questioned by police within hours following the shooting, but none provided information that was helpful in establishing who committed the assault. Only two survivors in the sedan would later be called as trial witnesses by the State; both claimed that Mr. Masovero was shot within less than a minute after they arrived at the taco truck. Both denied that there had been any altercation between anyone in their car and persons in the lot before the shooting began. Both claimed to have ducked down and covered their heads as soon as shots were fired and did not see who did the shooting.
¶ 8 Police found a .25 caliber semiautomatic pistol approximately 10 to 15 feet from where Mr. Martinez's vehicle was detained by Officer Lewis. It turned out the vehicle was stopped very near the home of a cousin of Mr. Nava. The gun was found by a firearm examiner to be inoperable. The police also found unspent cartridges of .45 and .380 caliber ammunition in the lot but no spent shell casings. They found dented but unopened beer cans as they walked the streets adjacent to the parking lot.
¶ 9 Mr. Martinez's sedan was impounded and when later examined, revealed three bullet holes or impact marks in or near the rear driver's side door and the right rear headrest. Based on the examination of the car and the results of an autopsy, Sergeant Salinas concluded and later testified that two shots struck Mr. Masovero and as many as three additional shots were fired at the car.
¶ 10 Officers investigating the crime believed that Mr. Masovero's murder was related to the murder of Victor Serrano, which had occurred 10 days earlier. Mr. Serrano was associated with a Sureño gang active in Yakima and went by the tag name Smurf. That murder took place at or very near Antone Masovero's home and Sergeant Salinas, who worked on both homicides, recalled that Mr. Masovero allegedly handed the gun used to murder Mr. Serrano to the shooter.
¶ 11 The afternoon following the murder, then-Detective Salinas attended the autopsy of Mr. Masovero. There, he was able to see the clothing that Mr. Masovero was wearing at the time he was shot. It included a red belt with the number 14 on it. Sergeant Salinas would later testify that the Norteño gang claims an allegiance or an affiliation to the color red as well as the number 14, the fourteenth letter of the alphabet being "N." Two bullets were retrieved from Mr. Masovero's head during the autopsy. They proved to be hollow point bullets that would have been fired from a .38 special caliber or .357 magnum caliber revolver.
¶ 12 Three days after the shooting, officers executed a search warrant for the home of Cesar and Marisa Perez and invited Detective Salinas to assist. The basis for the search was drug related but officers anticipated that it might yield evidence connected with the Masovero murder. The Perezes were friends of Mr. Nava and, it turned out, had been present in the parking lot at the time of the shooting.
¶ 13 Only Ms. Perez and a baby were present at the Perez home when officers arrived to execute the warrant. During the search, officers found and seized weapons, a small amount of drugs, and an article about the Masovero murder that had been cut out of the newspaper. One of the officers commented that they should arrest Ms. Perez and take her to the station. Detective Salinas responded—later admitting that he was playing "the good cop"—that he thought Ms. Perez wanted to talk. RP (Feb. 3, 2009) at 458. Ms. Perez, who had by that time heard that people had accused her husband of the Masovero murder, started crying and, according to Detective Salinas, "blurted out, what if I tell you who did the shooting." Id. They took her to the police station where she provided a tape-recorded statement.
¶ 14 Ms. Perez told officers that a number of her and her husband's friends were present in the parking lot the night of the shooting, having arranged to meet there following a quinceañera in Selah. She and her husband arrived in their car, accompanied by her husband's sister Sandra Perez and their friend Crystal. Chava (the name by which she knew Mr. Nava, a friend of her husband's) had arrived in a different car with a man she knew as Panic (later identified as Andres Orozco), Lance Nanamkin, and two women she did not know.
¶ 15 According to Ms. Perez, her group and Mr. Nava's group had been at the taco truck for about 20 minutes when the gold sedan in which Mr. Masovero was a passenger arrived, at which point an altercation immediately began between the driver of the sedan and Mr. Nava, Mr. Orozco, and Mr. Nanamkin. She told the officers that in the course of the argument and yelling, Mr. Nava retrieved a gun from the car in which he had been riding, walked back to the sedan, and shot the passenger in the driver's side of the backseat, who she believed had a gun. She said that Mr. Nanamkin also had a gun and had tried to shoot but his gun jammed. She said that Mr. Orozco had thrown a full beer can at the sedan but that he overshot the sedan and the can landed in the street.
¶ 16 In answering the officers' questions, she implicitly accepted their characterization of the men in the gold sedan as Norteños, a rival gang of the Sureños. She, too, referred to the men as Norteños. She told the officers that as he was shooting, Mr. Nava yelled, "[T]hat was for my homie Smurf." Id. at 480. She was aware that someone named Smurf had been killed two weeks earlier. She said that in the several days after the shooting her husband had talked to Mr. Nava, who knew the police were looking for him and was scared that "the cops might—they'll find him and if the cops don't find him, the Norteños will." Id. at 476.
¶ 17 In the course of her interview, Ms. Perez identified pictures of Mr. Nava, Mr. Nanamkin, and Mr. Orozco. Detective Salinas used the photos to prepare and post a notice that the three men were wanted for questioning in connection with the murder. Mr. Nanamkin was located shortly thereafter and officers obtained a search warrant for the Nanamkin home.
¶ 18 When officers served the warrant at Mr. Nanamkin's home, his mother was present and showed them her son's room. Officers found and seized paraphernalia marked "VSL," which Sergeant Salinas later testified stands for a local Sureño gang, Varrio Sureños Lokota. Police photographs of the room captured Mr. Nanamkin's moniker "Sleepy," which was displayed on the doorframe. Sergeant Salinas would later testify that "[w]hat stood out most" was a large photo of Victor Serrano—Smurf—"[p]osted prominently in his room on one of the walls." RP (Feb. 4, 2009) at 613–14.
¶ 19 The next witness to provide helpful information was Maribelle Olivas. Ms. Olivas was one of the two women, unknown to Ms. Perez, with whom Mr. Nava was riding on the night of the shooting. Ms. Olivas owned the white Honda Accord that the group was traveling in that evening. After Mr. Masovero's murder, she heard rumors that because she owned the car in which Mr. Nava was riding threats were being made against her, not necessarily by the men in the gold sedan, but "just the guys that have the color red." RP (Feb. 2, 2009) at 344. She was on probation at the time for drug charges and expressed concern about her safety to her probation officer, who notified Detective Salinas.
¶ 20 Detective Salinas met with Ms. Olivas five days after the shooting. She initially denied knowing anything about the shooting, but then relented and agreed to provide a tape-recorded statement. She told the detective that the group in her car had arrived at the taco truck between a quarter and a half hour before the gold sedan belonging to Anthony Martinez arrived. She knew Mr. Martinez and recognized his car. Earlier in the evening, Ms. Olivas had let her friend Alicia Velasquez drive her car, but on arriving at the taco truck, Ms. Olivas moved into the driver's seat, fearing that something bad was going to happen. She attributed her worry to the gang activity that had been going on, saying "everybody was out for revenge. It's basically that there was a war going on between them.... The blues and the reds." Id. at 336. She told the detective that she believed the men that were with her and Ms. Velasquez "belonged to the blue." Id.
¶ 21 Ms. Olivas said that as Mr. Martinez's car approached the taco truck the driver began "exchanging words back and forth" with the men standing by the truck. Id. at 337. With that, she put her car in reverse, pulled out from where she was parked, and prepared to leave. She saw the driver of Mr. Martinez's car step out and it appeared to her that he was reaching for a gun; she could see that Mr. Nava had a gun in his hand, which he pointed at the Martinez car. It appeared that Mr. Nanamkin had a gun as well. At that point, Ms. Velasquez joined Ms. Olivas in the Honda as did Mr, Orozco, and Ms. Olivas drove off. In departing, she heard shots that sounded as if they came from one gun. She assumed it was Mr. Nava's since he had been pointing a gun and preparing to shoot when she last looked at him.
¶ 22 According to Ms. Olivas, Ms. Velasquez, who considered Mr. Nava her boyfriend, "jumped off" shortly after getting into the car. Id. at 340. Ms. Olivas continued on with Mr. Orozco, dropping him off at his home before proceeding to the home of one of her cousins.
¶ 23 Mr. Orozco was questioned by Detectives Michael Tovar and David Cortez approximately a month after the shooting. Mr. Orozco did not come in voluntarily but was picked up for questioning about the Serrano and Masovero murders.
¶ 24 When interviewed, Mr. Orozco told police he was with friends, including Mr. Nava, Crystal and Sleepy, the name by which he referred to Mr. Nanamkin, on the night Mr. Masovero was shot. He told the detectives that they left a quinceañera in Selah and went to the taco stand in the supermarket parking lot where he got out of the car and a man started "talking shit" to him. RP (Jan. 29, 2009) at 155. Mr. Orozco confronted the man, who he claimed ran away. Two other cars then came their way and, according to Mr. Orozco, the occupants of the cars started "throwing signs." Id. at 157. Mr. Orozco then saw Mr. Nava fire a revolver three or four times.
¶ 25 Mr. Orozco was not sure where Sleepy was during the altercation but he did not see anyone other than Mr. Nava with a weapon. He also did not hear anyone say anything. After the shots were fired, he got in the car with Ms. Olivas who was frightened and tearful, and the two took off. Ms. Olivas dropped him off at his home.
¶ 26 Mr. Nanamkin was eventually charged with and pleaded guilty to manslaughter. Efforts to locate Mr. Nava proved unsuccessful. A warrant for his arrest issued, however, and in July 2008 he was apprehended in El Paso, Texas. When questioned by Detective Arturo Ruiz of the El Paso Police Department, Mr. Nava originally denied having lived in Washington but eventually admitted that he had been at the scene of the Masovero shooting in May 2001. He denied having a gun or being the shooter. He was returned to Yakima to stand trial on one count of first degree murder, four counts of first degree assault, and one count of second degree unlawful possession of a firearm. The murder and assault charges alleged that he was armed with a firearm.
¶ 27 Before trial, the State and the defense notified the court that several witnesses were expected to claim a lack of recollection and the State might offer tape-recorded statements they had given to detectives in 2001 as recorded recollections under ER 803(a)(5). Mr. Nava filed a motion in limine, asking the trial court to exclude the statements based principally on his inability to conduct meaningful cross-examination of witnesses claiming an insufficient recollection.
¶ 28 As anticipated, four witnesses who had provided tape-recorded statements shortly after the murder and were called as witnesses at trial proved to have an insufficient recollection to testify fully and accurately. The first was Mr. Orozco. The procedure followed by the trial court with Mr. Orozco and later witnesses was for the State to first call the witness; for the lawyers to examine and cross-examine the witness to the extent possible about the night of the shooting; and, when the witness's ability to testify to relevant matters was exhausted, to excuse the jury. Outside the presence of the jury, the State presented evidence bearing on the remaining elements of the required foundation, including playing the proffered tape-recorded statement. The trial court then heard argument from the lawyers; ruled on the admissibility of the recording; and, if it found the recording admissible, allowed the State to play the recording for the jury after which the witness would be subject to further examination and cross-examination.
¶ 29 Mr. Orozco was the first witness whose tape-recorded statement was offered by the State as a recorded recollection. With the jury present, he testified when asked if at one time he had a memory of what took place the night of Mr. Masovero's murder, "Not really, I was drunk." RP (Jan. 29, 2009) at 85. He later expanded, saying, "I was drunk drunk. I can't remember nothing." Id. at 86. He explained that he had been drinking "[b]eer, tequila, whatever, doing drugs." Id. Asked if he had a memory of events on the day he provided a recorded statement to police, he testified, "They picked me up early in the morning. I was drunk, I don't know." Id. at 93. He testified that he "used to do a lot of crack and crank, cocaine, every day." Id.
¶ 30 Asked if he was lying to police in providing the recorded statement, Mr. Orozco testified:
A I probably was. I'm a liar.
Q Okay.
A I lie to my wife, I lie to everybody.
Q Why would you have lied to the police at that time?
A I wanted to go home, man, they scare me. I just wanted to go home.
I just told them what they wanted to hear, whatever, you know. I just wanted to go home, that's it.
Id. at 93–94. Mr. Orozco reiterated a couple more times that he probably lied to police before the State asked the trial court if it could take up an issue outside the presence of the jury.
¶ 31 With the jury absent, the State called David Cortez, formerly a detective and by the time of trial a police officer, who had sat in on the tape-recorded interview of Mr. Orozco in June 2001. Asked if Mr. Orozco had been under the influence of any intoxicant or controlled substance at the time he gave the statement, the officer responded, "No, not that I recall," and then testified that Mr. Orozco had not been difficult to interview, that the interview went smoothly; and that "[t]here wasn't any time where Mr. Orozco didn't quite understand what he was being asked, didn't have any or give any indication that he was tired, that he was under the influence or that he couldn't remember something." Id. at 119–20. He testified that Mr. Orozco was able to describe events chronologically, spoke coherently and logically, and did not change his story, and that information provided by Mr. Orozco in June 2001 was consistent with physical evidence recovered at the scene. He testified that Mr. Orozco's recollection appeared to be fresh in his mind and that he never expressed any fear of retaliation or concerns for his safety.
¶ 32 With the jury still absent, Mr. Orozco was recalled and his 14–minute tape-recorded statement was played for the court. The lawyers were allowed to examine him further and Mr. Orozco admitted that it was his voice on the recording.
¶ 33 After hearing argument of counsel, the trial court ruled that it would admit the recorded recollection. It found all four elements of the required foundation had been established, explaining, with respect to former knowledge and accuracy, that it found that Mr. Orozco was presently "being evasive. He just doesn't want to cooperate in any regard with regard to this," adding, "I'm going to find that this is his statement that was in fact made to the police on June 17th at a time when it was fresh in his memory and that we're going to let the jury decide what they want to do with it." Id. at 150.
¶ 34 The next witness whose recorded statement was offered as evidence by the State was Peter Lopez, the passenger sitting next to the right rear window of Mr. Martinez's sedan when Mr. Masovero was shot. The same procedure was followed. Mr. Lopez testified that he assumed his statement was accurate and that he valued honesty. The admission of his statement (in which he testified that he never saw the shooter) is not challenged.
¶ 35 The third recorded statement offered was that of Maribelle Olivas. Ms. Olivas testified that in 2001 she was abusing alcohol and drugs, and was in treatment. She claimed to be unable to remember whether she told officers the truth. Outside the presence of the jury, her recorded statement was played with Ms. Olivas on the stand. When asked following the playing of her statement if there was any reason that the statement that had been played was not accurate and truthful, she answered:
At that time I was in treatment, I was (inaudible) and I could not get in any trouble whatsoever at all and I did not want them to find out about this. Even though we [sic] did find out about it, so they knew and at that time I still was drinking and I was not supposed to be drinking so I didn't want them to find out anything about what I was doing on the weekends.
RP (Feb. 2, 2009) at 360. Asked again if she had any reason for believing the statement she gave was not accurate, she answered:
I don't think it was very accurate. I could tell by the recording that I was hung over and I could tell that I probably just told him what he wanted to hear just so I didn't have to continue talking to him.
Id.
¶ 36 The trial court also heard testimony from Sergeant Salinas outside the presence of the jury, addressing facts bearing on the reliability of the procedure for taking Ms. Olivas's statement, his observations bearing on Ms. Olivas's truthfulness, and the consistency of her statement with other evidence. Having heard the testimony and the arguments of the lawyers, the trial court again found the recording admissible, observing, as to accuracy, "[S]he says, I was hung over. Now, that affects whether or not she has—she's telling us now that it may affect her ability to have all the events clearly laid out. Whether or not she told the police officer what he wanted to hear, that doesn't send me a clear signal that she's disavowing the statement." Id. at 363. ¶ 37 Thereafter, when the recording was played to the jury and the parties completed their questioning of Ms. Olivas, defense counsel asked if she did not just tell the officer what he wanted to hear. This time, Ms. Olivas answered:
Pretty much toward the beginning, you know, I—really I was pretty honest about what we did, you know, going out and stuff, but I think toward the end I think I just wanted to get out of there.
Id. at 384 (emphasis added). Outside the presence of the jury, the court observed that "[s]ometimes it's necessary to hear what people say a couple of times in order to get a real feeling for what they're really saying," and that her answer before the jury suggested that she was not disavowing accuracy, "she just wanted to get out of there. And she was going to cut to the chase on everything and just give an abbreviated version of it or some version that wasn't as thorough and complete. She just wanted to get out of there." Id. at 385.
¶ 38 The last witness whose recorded statement was offered by the State was Marisa Perez. When asked with the jury present if the events of the night of the shooting were fresh in her memory in May 2001, she answered, "No, because when they caught me I was under pressure and I was really scared and I got the impression like if I was being arrested." RP (Feb. 3, 2009) at 427. When asked why she felt she was under pressure, she answered:
Because a different incident had happened and they were questioning—all these questions telling me my husband was going to jail and that they were going to take my baby away and I don't—just throwing a bunch of questions at me.
Id. She testified that her memory of the events "was never fresh." Id. at 428.
¶ 39 Outside the presence of the jury, her recorded statement was played. When asked by the prosecutor after listening to the recording whether it now sounded like the matter was fresh in her memory when she gave the statement, she answered, "Sounds like I was scared and I wanted to protect my husband." Id. at 451. Yet when defense counsel then asked whether she was lying to the officer, she answered, "I might have said some stuff that were [sic] misinterpreted or ... I don't feel like I was lying. I don't remember what I said, how could it be if I was lying." Id. at 452 (emphasis added).
¶ 40 Sergeant Salinas testified outside the presence of the jury that he had not prompted Ms. Perez in answering his questions and that she provided details in her statement that were consistent with statements from other witnesses and with physical evidence in the parking lot. He also testified that after she provided the recorded statement she called her husband Cesar, and he heard her tell Cesar to "come on in and tell them the truth because I already have," after which Mr. Perez came in and provided a similar statement. Id. at 456.
Mr. Perez was in California at the time of trial. Although the State instituted proceedings in California to compel his appearance, there was difficulty in getting him on the intended flight to Spokane. The State ultimately decided to rest its case without calling him.
¶ 41 Having heard the tape-recorded statement and the testimony of Ms. Perez and Sergeant Salinas, the trial court again found that the State had demonstrated the necessary foundation and admitted the recorded statement. The court commented that it recognized that Ms. Perez, like other witnesses, had conflicted feelings "as to what happened, as to their loyalties [and] as to their own jeopardy" that would perhaps affect their recall as to certain events and may "shade their testimony a little bit," but it had not heard her disavow the accuracy of her statement made in May 2001. Id. at 460. It reiterated that the defense had the right to question the witnesses as to their motivations and argue to the jury how much credibility or weight should attach to their statements, but that they were nonetheless admissible.
¶ 42 The jury found Mr. Nava guilty on all counts. In sentencing Mr. Nava, the court imposed a total sentence of 520 months, which it originally believed could be arrived at by sentencing him within the standard range and running the assault and firearm counts concurrently, but consecutive to the murder count. ¶ 43 When the lawyers presented a proposed judgment and sentence the following week, however, they reported to the court that a total sentence of 520 months could be achieved only by imposing a sentence for the first count (first degree premeditated murder) of 220 months—less than the low end of the standard range for his offender score—and running that sentence concurrent with the remaining counts. That is what the court did, then, in order to preserve what it said it continued to believe was the appropriate total sentence. Its only finding was a marginal notation next to the 220–month base sentence for count one that "[t]he court finds that the multiple offense policy permits the court to go below the standard range under RCW 9.94A.535. " Clerk's Papers at 8.
Since the May 13, 2001 crime date, the pertinent sections of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, have been recodified or renumbered. As do the parties, we cite to the current statutes because the language of the provisions has remained substantively unchanged.
¶ 44 Mr. Nava appealed his convictions and the State cross appealed the exceptional downward sentence. Mr. Nava also filed a PRP that has been consolidated with this appeal.
ANALYSIS
¶ 45 Mr. Nava presents three assignments of error on appeal: First, that the trial court erred in admitting the tape-recorded statements of Mr. Orozco, Ms. Olivas, and Ms. Perez; second, that the court erred in admitting gang evidence; and third, that he was denied effective assistance of counsel where his lawyer failed to request a limiting instruction addressing the gang evidence. The State cross appeals, assigning error to the sentence imposed by the trial court. We discuss Mr. Nava's first assignment of error in the published portion of this opinion and the remaining issues on appeal, cross appeal, and the consolidated PRP in the unpublished portion.
Mr. Nava's opening brief identified five, but he has abandoned two. He conceded in his reply that his assignment of error to the trial court's failure to give a limiting instruction on the jury's use of the gang evidence fails in light of the Washington Supreme Court's intervening decision in State v. Russell, 171 Wash.2d 118, 123–24, 249 P.3d 604 (2011). Reply Br. of Appellant at 30. His assignment of error to prosecutorial misconduct, for the prosecutor's citation of evidence that was not a part of the record, was decisively countered by the State's response, which relied upon a correction to the record. Following that correction of the record Mr. Nava implicitly abandoned the prosecutorial misconduct charge in his reply and in oral argument.
Admission of Recorded Recollections
¶ 46 Mr. Nava first assigns error to the trial court's admission of the tape-recorded statements given to Yakima detectives in 2001 by Mr. Orozco, Ms. Olivas, and Ms. Perez. Decisions involving evidentiary issues lie largely within the sound discretion of the trial court and ordinarily will not be reversed on appeal absent a showing of abuse of discretion. State v. Castellanos, 132 Wash.2d 94, 97, 935 P.2d 1353 (1997). A trial court abuses its discretion if it improperly applies an evidence rule. State v. Young, 160 Wash.2d 799, 806, 161 P.3d 967 (2007), Here, Mr. Nava's challenge focuses on the trial court's determination of a preliminary question concerning the admissibility of evidence. ¶ 47 The proponent of evidence must establish the elements of a required foundation by a preponderance of the evidence. State v. Benn, 120 Wash.2d 631, 653, 845 P.2d 289 (1993) (citing State v. Tharp, 96 Wash.2d 591, 594, 637 P.2d 961 (1981) ). The trial court generally determines preliminary questions concerning the admissibility of evidence and in doing so is not bound by the rules of evidence except those with respect to privileges. ER 104(a). On appeal, we will uphold the trial court if its determination of the preliminary questions is supported by substantial evidence. Benn, 120 Wash.2d at 653, 845 P.2d 289.
After Mr. Nava filed his opening brief the trial court entered findings of fact and conclusions of law supporting its rulings to admit the recorded statements under ER 803(a)(5) and gang evidence subject to ER 404(b). Mr. Nava argued in his reply that the findings and conclusions were tailored and that the State improperly failed to give notice to appellate counsel that it was presenting them. The State responded by obtaining leave to supplement the appellate record with correspondence from the trial court from which it appears that preparation of the findings and conclusions was very much a court-driven process. We do not view the trial court's findings as reflecting any change in its oral rulings that would require leave from this court under RAP 7.2. On the other hand, and while no procedural rule requires that the State give a defendant's appellate counsel notice of proceedings in the trial court, the failure to provide appellate counsel with notice of presentment as a courtesy is viewed with disfavor by our court. State v. Corbin, 79 Wash.App. 446, 451, 903 P.2d 999 (1995) ; State v. Cunningham, 116 Wash.App. 219, 227, 65 P.3d 325 (2003). We choose to disregard the court's findings and conclusions. The trial record is adequate for appeal.
¶ 48 A recorded statement given to police is inadmissible hearsay unless it qualifies for an exception to the hearsay rule. The exception for "recorded recollections" is one such exception. A record qualifies as a recorded recollection if it is
[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.
ER 803(a)(5). A recorded recollection is admitted as substantive evidence.
¶ 49 Courts evaluating a record or memorandum for admission under ER 803(a)(5) have gleaned four elements of a foundation from the rule. Admission is proper when the proponent of the evidence demonstrates that (1) the record pertains to a matter about which the witness once had knowledge, (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony, (3) the record was made or adopted by the witness when the matter was fresh in the witness's memory, and (4) the record reflects the witness's prior knowledge accurately. State v. Mathes, 47 Wash.App. 863, 867–68, 737 P.2d 700 (1987).
¶ 50 In Alvarado, Division One of our court adopted the view of the Sixth Circuit Court of Appeals and several other courts that the fourth element of the foundation—that the record reflects the witness's prior knowledge accurately—may be satisfied without the witness's direct averment of accuracy at trial. 89 Wash.App. at 551, 949 P.2d 831 (quoting State v. Marcy, 165 Vt. 89, 680 A.2d 76, 80 (1996) and United States v. Porter, 986 F.2d 1014, 1017 (6th Cir.1993), whose reasoning was adopted by Marcy ). Instead, to determine whether the record reflects the witness's prior knowledge accurately, Alvarado announced that "[t]he court must examine the totality of the circumstances, including (1) whether the witness disavows accuracy; (2) whether the witness averred accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthiness of the statement." Id. at 551–52, 949 P.2d 831.
¶ 51 In Alvarado, the witness in question had provided three statements to police. In his second statement he stated he lied in the first because he feared the defendants, but in his third statement he asserted that the information recounted in the second and third statements was true. At trial he testified that he did not recall the incident at all and could not verify if any of his statements were true or not. Id. at 547, 949 P.2d 831. The trial court admitted the second and third statements as reliable but it excluded the first statement that the witness had admitted in later statements was untrue.
¶ 52 This case requires us to decide the relative importance of a declarant's trial testimony disavowing or calling into doubt the accuracy of his or her recorded recollection. Alvarado and later Washington decisions have usually involved witnesses who did not disavow the report or memorandum being offered as a recorded recollection. Id. at 552, 949 P.2d 831 (witness never recanted or disavowed the accuracy of the statements admitted by the court); State v. Derouin, 116 Wash.App. 38, 46, 64 P.3d 35 (2003) (same); State v. White, 152 Wash.App. 173, 185, 215 P.3d 251 (2009) (declarant claimed to have been " ‘too intoxicated’ " to know if the statement initialed by her was accurate but did not disavow it).
¶ 53 No reported Washington decision has yet held that if a witness disavows accuracy, other circumstances supporting the correctness of the record can outweigh the disavowal. In State v. Floreck, 111 Wash.App. 135, 139, 43 P.3d 1264 (2002), the court distinguished Alvarado where a witness, whose statement it concluded should not have been admitted, testified that her earlier statement was a lie—but this was after the court had already concluded that ER 803(a)(5) was not a basis for admission anyway, since the declarant had a sufficient recollection to testify. And in Alvarado, the trial court excluded the one statement—the first—that the witness at one time claimed was a lie. In Derouin, however, the witness mildly disavowed the accuracy of her signed statement when she refused to rule out inaccuracy, testifying that she had signed mortgage papers in the past without knowing what she was signing. Noting that "[t]he only facts going against admission are from [the witness's] testimony," the court stated in Derouin, "Her testimony alone, under Alvarado, is not enough to support suppression of the statement when there are sufficient indicia of the statement['s] accuracy to admit it." 116 Wash.App. at 47, 64 P.3d 35. No reported Washington decision has presented the disavowal of a witness that is as forceful as those presented here—at least none as forceful as Mr. Orozco's.
¶ 54 Alvarado discussed the view of two recognized commentators on Washington evidence law that the witness should normally vouch that a statement correctly reflects his or her former knowledge. 89 Wash.App. at 550, 949 P.2d 831 (quoting ROBERT H. ARONSON, THE LAW OF EVIDENCE IN WASHINGTON 803–35.0 (2d ed.1994); 5B KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 368, at 187 (3d ed.1989)). Following Alvarado, neither commentator has appeared to share the appellate court's confidence that evidence of accuracy other than the witness's own vouching can suffice. Professor Tegland still speaks of the "bright-line traditional requirement" that the witness testify to the probable accuracy of the statement that Alvarado abandoned "for better or for worse." 5C KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 803.29, at 86 (5th ed.2007); and see id. at 85 n. 1 (citing 2 McCormick on Evidence § 283 (John William Strong ed., 4th ed.1992) and 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 443 (2d ed.1994) as support for the traditional requirement). Professor Aronson writes that "[i]t is questionable whether the Court of Appeals' expansion of the historic requirement that the witness testify that the prior statement was accurate when made comports with Washington hearsay jurisprudence." ROBERT H. ARONSON, THE LAW OF EVIDENCE IN WASHINGTON § 803.04[6], at 803–51 (4th ed.2012). Other commentators have been even more critical of the broad view, characterizing the Sixth Circuit's decision in Porter, on which Alvarado relied, as "arguably incorrect." 30C MICHAEL H. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 7046 n. 4 (2011 Interim ed.).
Professor Aronson also questions whether Alvarado comports with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), but the defendant's right of confrontation was not raised in Alvarado nor does Mr. Nava raise it here.
¶ 55 We nonetheless find the reasoning of Alvarado, Porter , and like cases persuasive, even when it means that a trial court might admit a record that a witness has disavowed. Most important is that the language of ER 803(a)(5) providing the basis for the fourth element of the foundation—its requirement that the memorandum or record "reflect [the witness's former] knowledge correctly"—provides no textual basis for requiring that the witness personally vouch for the accuracy of the recorded statement. The well settled statement of the fourth element of the foundation—"that the record reflects the witness's prior knowledge accurately"—does not require personal vouching by the witness either. The Advisory Committee's Note accompanying Fed.R.Evid. 803(a)(5) when proposed in 1972 states, in part, that " [n]o attempt is made in the exception [for recorded recollections] to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate." 56 F.R.D. 183, 307 (1973). ER 803(a)(5) was copied verbatim from Fed.R.Evid. 803(a)(5). See ER 803(a)(5) at 91 Wash.2d 1165 (1978); cmt. 803 at 91 Wash.2d 1168.
¶ 56 In no other context is a fact finder expected to determine what a person knew or believed by relying exclusively on what that person claims he or she knew or believed. This is so even in applying other exceptions to the hearsay rule that depend on the reliability we ascribe to certain types of out-of-court statements. For example, we do not automatically accept a recanting witness's protestation that what appeared to others to be her excited utterance was actually a fabrication. In Young, a child victim made seemingly distraught statements after being sexually molested by her mother's boyfriend, only to claim later that she was lying. Our Supreme Court held that " ‘the trial court does not err by weighing the witness's credibility against the evidence indicating that the statements were spontaneous and reliable.’ " 160 Wash.2d at 808, 161 P.3d 967 (quoting State v. Briscoeray, 95 Wash.App. 167, 173, 974 P.2d 912 (1999) ). The same should be true here. As observed in Derouin, 116 Wash.App. at 46, 64 P.3d 35, "[O]ther evidence establishing the accuracy of [a recorded recollection] could be just as credible as, if not more so, than the declarant's testimony at trial that the statement was accurate when made."
¶ 57 Needless to say, a witness's disavowal of a record of his or her prior knowledge is highly important evidence in determining whether the record is accurate and we view our holding as creating a narrow opening, at most, for admitting a recorded recollection that a witness disavows. To overcome the witness's disavowal there must be not only other reliable evidence that the record accurately reflects the witness's prior knowledge but also an articulable reason, supported by the record, why the trial court disbelieves the witness's current disavowal.
¶ 58 It will be the rare case in which a proponent of a recorded recollection will be able to satisfy both these requirements if the witness's disavowal is resolute, as Mr. Orozco's, in particular, was here. In such a case, the court must find the disavowal to be essentially perjurious in addition to finding sufficient independent evidence of reliability.
¶ 59 It is hard to imagine a civil case that will require the court to make a ruling on admissibility like the ones required in Alvarado, Porter , and here. It is unlikely that a witness who once created a record of her firsthand knowledge and who cannot remember enough to testify about the matters she recorded will, at the same time, claim to know that her record is unreliable. It is even more unlikely that the party offering the recorded recollection will be able to present the court with other credible evidence that the record does accurately reflect the witness's prior knowledge, despite her disavowal. Unless a witness is just being especially cautious (insisting, for instance, that "I can't be positive") we foresee a recorded recollection being admitted over the witness's disavowal predominantly in criminal cases involving reluctant witnesses, such as prosecutions of domestic and gang violence.
¶ 60 Derouin was a domestic violence case and in deciding it, Division One of this court observed that broadly viewing evidence bearing on the accuracy of a statement "is especially relevant in cases of domestic violence since the victim may have a stronger motive to forget the past statement than to remember it." Derouin, 116 Wash.App. at 46, 64 P.3d 35 ; accord White, 152 Wn, App. at 184–85. Prosecutions for acts of gang-related violence may also depend upon information provided by witnesses who, at trial, have a stronger motive to forget a past statement than to remember it.
¶ 61 Along these lines, one treatise has recognized that courts may apply the foundation requirements for recorded recollection somewhat differently in the case of what it calls "recalcitrant" or "stubborn" witnesses, "usually aris [ing] when a prosecutor seeks to elicit incriminating testimony from the defendant's friend, coconspirator, spouse or relative." 5 CLIFFORD S. FISHMAN, JONES ON EVIDENCE § 32:34, at 83 (7th ed.2003). In the case of such witnesses, it provides examples of some courts that hold to the traditional bright-line foundation but others that have demonstrated a willingness to relax the requirement that the witness explicitly acknowledge that the statement was accurate when made. Discussing Porter, the treatise states that the Sixth Circuit may have "broken new ground in application of the rule—or perhaps has merely made explicit what other courts have permitted without acknowledging it." Id. at 89.
¶ 62 Here, the State presented credible evidence that the tape-recorded statements accurately reflected Mr. Orozco's, Ms. Olivas's, and Ms. Perez's prior knowledge and the trial court provided reasons, supported by the record, why it either did not believe the witness's current disavowal or did not regard it as a disavowal.
¶ 63 The recorded recollections were tape-recorded interviews of the witnesses, most of which were audible and clear, with the witnesses answering questions in their own words. Each of the recorded statements was acknowledged by the witness, at trial, to be a record of his or her questioning by detectives. Each witness audibly vouched for the truth of his or her statement when it was recorded in 2001 and also agreed at that time, audibly, that no force was used or threat or promise made to induce him or her to provide the statement. The statements of Ms. Perez and Ms. Olivas were recorded within a matter of days of the murder of Mr. Masovero and the statement of Mr. Orozco was recorded within approximately a month thereafter.
¶ 64 Each witness provided details that were largely consistent with each other and with the physical evidence. Mr. Nava disputes this, but what he characterizes as inconsistencies and contradictions are either facts addressed with some witnesses but not with others; inconsistencies that are minor or admit of a ready explanation; or a global dispute between the passengers of the Olivas and Perez cars on the one hand, and the Martinez car on the other, over whether the shooting was preceded by yelling and argument or was entirely unprovoked.
For example, one inconsistency relied upon by Mr. Nava is between Mr. Orozco's statement that he alone left the parking lot with Ms. Olivas, while Ms. Olivas's statement was that Ms. Velasquez was in the car as well. Yet Ms. Olivas also testified that when she "drove off from the scene," the people in the car were "[j]ust me and Andres [Orozco]." RP (Feb. 2, 2009) at 340. According to Ms. Olivas's statement, Ms. Velasquez was in the car for only moments before "jump[ing] off," apparently at the end of an alley leaving the parking lot. Id.
¶ 65 Unlike us, the trial court was able to observe each witness's demeanor at trial and compare that to the witness's demeanor in the tape-recorded interviews.
¶ 66 The court provided reasons, supported by the record, for disbelieving or discounting the witness's disavowals. It found that Mr. Orozco was simply choosing to be uncooperative at trial. There is sufficient evidence in the transcript to support this and insofar as it was based on the court's assessment of Mr. Orozco's credibility, we defer to the trial court; we do not weigh the credibility of witnesses. In re Welfare of Sego, 82 Wash.2d 736, 739–40, 513 P.2d 831 (1973).
¶ 67 The court concluded that Mr. Orozco's and Ms. Olivas's testimony as to their drinking and drug use during the 2001 time frame went to the weight of their statements, not their admissibility, a conclusion supported by other decisions. See White, 152 Wash.App. at 185, 215 P.3d 251 (witness's statement that she had been " ‘too intoxicated’ " to remember whether her report was accurate held admissible in light of other indicia of reliability); Porter, 986 F.2d at 1017 (recorded statement admissible despite witness's trial testimony that she was " ‘screwed up’ " on drugs at the time statement was made and was not sure she had been accurate). ¶ 68 The trial court recognized that while Ms. Perez's testimony might have been affected by her conflicting loyalties and her and her husband's jeopardy, she, like Ms. Olivas, was equivocal about the accuracy of her statement. Both women sometimes characterized themselves as having been truthful and neither ever clearly recanted what they had said. Having determined that the statements were admissible, the trial court allowed defense counsel to cross-examine each witness on matters bearing on the weight and credibility of their recorded statements as provided by ER 104(e).
¶ 69 Substantial evidence supports the trial court's determination of the preliminary questions required to establish the foundation for admitting the three recorded statements whose admission is challenged on appeal. It did not abuse its discretion in admitting them.
¶ 70 We affirm the convictions. For reasons discussed in the unpublished portion of the opinion, we reverse the sentence and remand for resentencing to a term that includes an enhanced sentence on count one of at least 331 months and a sentence for count one that shall run consecutively to the sentences for counts two through five. If the sentences on counts two through five are to run concurrently, the court shall enter findings and conclusions supporting that exceptional downward sentence. For reasons that, again, are discussed below, we dismiss Mr. Nava's PRP.
¶ 71 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. RCW 2.06.040.
WE CONCUR: BROWN, and KULIK, JJ.