PUBLISHED IN PART
Appeal from Yakima Superior Court. Docket No: 01-1-00902-3. Date filed: 06/15/2009. Judge signing: Honorable Michael E Schwab.
Salvador S. Nava, pro se.
Eric J. Nielsen (of Nielsen Broman & Koch PLLC ), for appellant.
James P. Hagarty, Prosecuting Attorney, and David B. Trefry, Deputy, for respondent.
AUTHOR: Laurel H. Siddoway, A.C.J. WE CONCUR: Stephen M. Brown, J., Teresa C. Kulik, J.
[177 Wn.App. 274] ¶ 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 Wn.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.
[177 Wn.App. 275] ¶ 3 In the unpublished portion of the opinion, we reject Mr.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 [177 Wn.App. 276] 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.
¶ 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 [177 Wn.App. 277] 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 14th 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 [177 Wn.App. 278] 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 [177 Wn.App. 279] 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. [177 Wn.App. 280] 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, " [E]verybody 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 [177 Wn.App. 281] 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 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 [177 Wn.App. 282] 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 [177 Wn.App. 283] 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.
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 ...