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.
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.
neither instance did the trial court commit reversible error.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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
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.
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.
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.
Motions in limine
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)
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.
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.
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.
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.
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.
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.
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.
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.
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.
Subsequent procedural history
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,
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?
the trial court abuse its discretion when it barred inquiry
into Simon's mental state during cross-examination?
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).
trial court did not abuse its discretion in admitting
evidence of Arredondo's involvement in the February 9,
2009 drive-by shooting
Standard of review
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)).
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
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) ...