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State v. Arredondo

Supreme Court of Washington, En Banc

May 4, 2017


          FAIRHURST, C.J.

         Fabian Arredondo appeals his accomplice liability convictions of one count of second degree murder and three counts of first degree assault. A jury found beyond a reasonable doubt that Arredondo, a Norteno gang member, drove a vehicle from which his cousin and fellow Norteno, Rudy Madrigal, fired gunshots into a vehicle occupied by alleged Sureflo gang members. One shot struck the driver, Ladislado Avila, in the head, and he later died at the hospital as a result of his gunshot wound.

         The Court of Appeals affirmed. State v. Arredondo, 190 Wn.App. 512, 360 P.3d 920 (2015). We granted Arredondo's petition for review on only two issues, both of which were trial court rulings on motions in limine. State v. Arredondo, 185 Wn.2d 1024, 369 P.3d 502 (2016). First, the trial court allowed the State to introduce ER 404(b) evidence linking Arredondo to an uncharged February 9, 2009 drive-by shooting. Second, the trial court barred Arredondo from cross-examining the State's key witness, Maurice Simon, about Simon's past mental health diagnoses, as well as past alcohol and drug use. Simon would later testify that Arredondo admitted his role in the shooting to him while they shared a jail cell.

         In neither instance did the trial court commit reversible error. We affirm.


         A. Factual background

         Late in the evening of December 4, 2009, Arredondo and Madrigal attended a party in Toppenish along with other Nortenos. Surehos Miguel Vasquez, Avila, and Gabriel Rodarte attended the party as well. The local Norteno and Sureno gangs have a history of bad blood. A fistfight ensued shortly after the Surenos arrived. Vasquez was involved and appeared to get the worst of it. Once the fistfight ended, partygoers dispersed. Rodarte, Vasquez, and Avila left together, along with Maximino Castillo, to whom they offered a ride as they were leaving. Of these four, only Rodarte and Castillo testified at trial.[1]

         Shortly after leaving the party, Avila and his passengers noticed a blue Honda with tinted windows headed in the opposite direction of their car. The Honda made a U-turn and began to follow them. This eventually led to a high speed chase. The chase terminated when someone in the Honda fired shots into Avila's car. The Toppenish Police Department received a shots fired call at 1:10 a.m. on December 5, 2009. One of the shots struck Avila in the head. He lost control of the vehicle and crashed into a tree. Avila later died at the hospital from his gunshot wound. His passengers were not seriously injured. Neither Rodarte nor Castillo could identify the Honda's occupants, other than to say they looked like two males.

         On December 12, 2009, the Toppenish police recovered a vehicle matching the Honda used in the shooting. It was parked between two businesses on a gravel drive in Wapato and had been wiped clean of all incriminating evidence. The police were unable to recover fingerprint, deoxyribonucleic acid, or any other physical evidence from the vehicle.

         Arredondo was arrested that same day based on statements from others who attended the party. They indicated Arredondo drove the Honda during the shooting. In the days following his arrest, Arredondo shared a cell with Simon in the Yakima County jail. Simon later claimed that during their time in the cell, Arredondo admitted his role in the shooting.

         B. Motions in limine

         Prior to the trial, Arredondo made a motion in limine to bar evidence the State sought to introduce pursuant to ER 404(b) of Arredondo's involvement in a previous drive-by shooting with suspected Norteno/Sureno gang ties. He was never charged in the incident. Following offers of proof, the trial court ruled the State could present testimony from Detectives Dustin Dunn and Jaban Brownell relating to this incident for noncharacter purposes. It did so after finding that the evidence had probative value and that the "probative value outweighs the prejudicial effect." Suppl. to Oct. 10, 2011 Verbatim Report of Proceedings (SVRP) at 26-27.

         Arredondo also made a motion in limine for the trial court to determine what scope limitations would apply to his cross-examination of Simon regarding Simon's previous mental health diagnoses and past drug and alcohol use. This motion followed a pretrial interview in which Simon indicated that he had previously been diagnosed with posttraumatic stress disorder (PTSD) and other mental health limitations. Simon also indicated in the interview that he had been an alcoholic and drug abuser in the past.

         The court said it would withhold its ruling on the motion until it had a chance to "listen to [Simon] outside the presence of the jury." SVRP at 9. When that occurred, Simon described his past mental health diagnoses, short-term memory limitations, and previous drug and alcohol use. Simon also indicated that none of these issues would affect his testimony regarding Arredondo's admission. He further indicated that he had not used drugs or alcohol in the prior six to eight months. The court then barred inquiries during cross-examination into Simon's mental health or his past substance abuse because Simon did not appear currently impaired and evidence associated with previous limitations would be irrelevant, not probative, and highly prejudicial.

         C. Arredondo's trial

         Arredondo testified in his own defense and indicated he had no role in the December 5, 2009 shooting. He claimed he left the party with his friend Gabriel Limone in a white Chevrolet Impala and that they went directly to his uncle's house from the party. Limone was not available to testify to confirm this account. Effrain Arredondo, Arredondo's uncle, was available. He testified that his nephew arrived at his house between 12:00 and 12:15 a.m. the morning of December 5, 2009 and did not leave again until 9:30 a.m. that same morning.

         The State presented little evidence directly linking Arredondo to the shooting. As the trial court noted, the case had a "strong undercurrent of intimidation.... Many of the witnesses are -- are visibly afraid to be here and to be testifying." 3 Verbatim Report of Proceedings (VRP) (Oct. 13, 2011) at 405. For example, Arredondo refused to say who at the party had firearms because it would be dangerous for him to "talk against another Norteno." 6 VRP (Oct. 19, 2011) at 789-90, 793.

         Maria Marquez Vevallos was one of the only people to testify who had attended the party. She indicated that her brother, Alberto Marquez, owned a blue Honda Accord and he indicated that night that he lent it to some "homeys." 4 VRP (Oct. 17, 2011) at 544-45. She believed Arredondo was the "homey" her brother referenced. Id. at 548. She also indicated she had not seen the vehicle since the party. Her brother was not available to testify.

         Consistent with an offer of proof previously provided by the State, Detectives Dunn and Brownell testified that on February 9, 2009, they were dispatched to the scene of a drive-by shooting in a known Sureho gang neighborhood. The victim claimed the shooting came from a vehicle resembling a Mercedes. Dunn located a .38 caliber spent shell casing at the scene. Two weeks later, Community Corrections Officer (CCO) Michael Hisey and Probation Officer Jim Stine visited Arredondo at his home regarding an unrelated matter. Upon arriving, they noticed a silver Mercedes. They located keys to the vehicle in Arredondo's pocket and, upon searching the vehicle, found a .38 caliber spent shell casing in the car. The Washington State Patrol Crime Laboratory confirmed that the shell casing in the Mercedes matched the one that Dunn recovered at the scene of the February 9, 2009 shooting and that both casings were fired from the same weapon.

         Before Officer Dunn's testimony on the February 9, 2009 shooting, the trial court instructed the jury that his testimony could be used only for purposes of "issues of identity and motive and intent" and could not be used to determine if Arredondo "acted in a similar fashion on February the 9th of 2009 to what he's alleged to have done on December the 5th of 2009." 4 VRP at 466. Similarly, prior to CCO Hisey's testimony, the court instructed the jury to "consider testimony relating to that alleged event [as] applying] equally to this witness's testimony." Id. at 479. Finally, following the trial, the court issued written jury instructions to consider this evidence only for purposes of defendant's "alleged intent, motive and/or identity" and not for any other purpose. Clerk's Papers (CP) at 63. The trial court asked whether Arredondo had any objections to this written jury instruction on multiple occasions. Arredondo indicated he had none.

         Simon told the jury that he and Arredondo shared time in a cell together and during that time, Arredondo admitted his role in the December 5, 2009 drive-by shooting. Simon's testimony included details he would not otherwise have reason to know, including the fact that Arredondo used a Honda Accord that he wiped down before ditching, that his uncle would provide him an alibi for that evening, and that "he wouldn't have been in there if it weren't for his stupid cousin who had ran his mouth in front of a couple people who ended up reporting it." 5 VRP (Oct. 18, 2011) at 573. Simon also testified that Arredondo disclosed the names of some of the victims and others present at the party who Arredondo was concerned may implicate him in the shooting. Both Simon and Detective Brownell confirmed that Simon approached law enforcement with this information. They did not seek him out.

         The jury returned a guilty verdict on all charges: Avila's second degree murder count and the first degree assault count on Vasquez, Rodarte, and Castillo. The trial court issued a judgment and sentence consistent with this verdict.

         D. Subsequent procedural history

         Arredondo appealed several rulings to the Court of Appeals, including whether the trial court's holding allowing introduction of evidence of the prior drive-by shooting was reversible error and whether the trial court's ruling barring cross-examination into Simon's mental health and past drug use was a violation of Arredondo's confrontation right. See Const, amend VI. In a published decision, the Court of Appeals upheld the trial court on all counts. Arredondo, 190 Wn.App. at 512. We granted review on only the ER 404(b) and cross-examination issues. Order, State v. Arredondo, No. 92389-2 (Wash. Apr. 29, 2016).

         II. ISSUES[2]

         A. Did the trial court abuse its discretion in allowing the State to introduce evidence of Arredondo's involvement in the February 9, 2009 drive-by shooting?

         B. Did the trial court abuse its discretion when it barred inquiry into Simon's mental state during cross-examination?

         III. ANALYSIS

         The trial court did not abuse its discretion and, therefore, did not commit error when admitting evidence of the February 9, 2009 drive-by shooting. It reasonably applied the relevant standard under ER 404(b) in admitting such evidence. Nor did the trial court abuse its discretion and thereby violate Arredondo's confrontation right under the Sixth Amendment to the federal constitution when barring questions into Simon's mental state. It reasonably held the evidence irrelevant, not probative, and highly prejudicial, consistent with the standards this court articulated in State v. Darden, 145 Wn.2d 612, 41 P.3d 1189 (2002).

         A. The trial court did not abuse its discretion in admitting evidence of Arredondo's involvement in the February 9, 2009 drive-by shooting

         1. Standard of review

         The interpretation of an evidentiary rule is a question of law that we review de novo. Diaz v. State, 175 Wn.2d 457, 461-62, 285 P.3d 873 (2012) (citing State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)). So long as the trial court interpreted the rule correctly, we will review its decision to admit or exclude evidence under ER 404(b) for "an abuse of discretion." State v. Gresham, 173 Wn.2d 405, 419, 263 P.3d 207 (2012) (citing Foxhoven, 161 Wn.2d at 174). "Abuse of discretion" means "no reasonable judge would have ruled as the trial court did." State v. Mason, 160 Wn.2d 910, 934, 162 P.3d 396 (2007) (citing State v, Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). Put another way, to reverse we must find the decision is '"unreasonable or is based on untenable reasons or grounds.'" Id. at 922 (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)).

         2. The trial court reasonably applied ER 404(b)

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

ER 404(b).

         In order for a trial court to admit evidence of past wrongs, ER 404(b) requires the trial court to

"(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the [permissible] purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) ...

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