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State v. Vela

Court of Appeals of Washington, Division 3

September 5, 2017

STATE OF WASHINGTON, Respondent,
v.
JESUS DUARTE VELA, Appellant.

          LAWRENCE-BERREY, A.C.J.

         Jesus Duarte Vela[1] appeals his conviction for second degree murder. Duarte Vela asserted self-defense at trial. The trial court permitted Duarte Vela to testify he was fearful of the victim, but would not allow Duarte Vela to explain why he feared the victim or the severity of the injury he feared. The jury rejected Duarte Vela's self-defense claim and convicted him of second degree murder.

         On appeal, Duarte Vela argues the trial court's evidentiary rulings were erroneous and violated his right under the Sixth Amendment to the United States Constitution to present a defense. We agree and, therefore, reverse his conviction for second degree murder and remand for retrial.

         FACTS AND PROCEDURE

         A. Facts

         On February 20, 2014, Duarte Vela shot and killed Antonio Menchaca in Okanogan County. The question at trial was why Duarte Vela shot and killed Menchaca.

         Menchaca was once married to Blanca Duarte, Duarte Vela's sister. The former couple had two children, Jesus and a younger sister. Menchaca left Okanogan in 2007. His whereabouts during the seven years between then and the shooting were not clearly established: At some point after 2007 he had been incarcerated, in May 2012 border patrol agents returned him to Mexico and, in February 2014, he travelled from Mexico to his sister's home in Fresno, California.

         On February 18, 2014, Menchaca traveled from his sister's home to Okanogan, in part to see his children. Menchaca arrived at Blanca's apartment in the morning hours of February 20. Jesus, then 17 years old, saw his dad hugging his younger sister around 7:00 a.m. that morning. Jesus was afraid and called Duarte Vela, his uncle. He explained to Duarte Vela that his dad was at the apartment and asked Duarte Vela to pick him up after school that day. Duarte Vela's wife, Billie Jo Wilson, was home when Duarte Vela received the call and learned from Duarte Vela that Menchaca was back in town.

         Duarte Vela decided to go to his sister's apartment to make sure she and her family were safe. He knew that Menchaca had threatened Blanca in the past. Duarte Vela was fearful of Menchaca and concerned that Menchaca posed a threat to Duarte Vela's family. For these reasons, he took his gun with him.

         When Duarte Vela arrived at his sister's apartment, Menchaca was the only person there. Duarte Vela asked why he was at the apartment and told him that Blanca did not want to see him. Duarte Vela told him to stay away from Duarte Vela's family. Menchaca assured him that he would return to Fresno. Duarte Vela felt relieved and went to work.

         That afternoon, Billie Jo, together with her two younger children, drove to the turnout at the head of her shared driveway to pick up her oldest daughter who was arriving by school bus. A sport utility vehicle (SUV) pulled into the turnout just after Billie Jo parked. The SUV driver and passenger both looked directly at Billie Jo. She thought the passenger was Menchaca. As Duarte Vela arrived at the turnout, the SUV left. Billie Jo told her husband there were two people in the SUV, she thought the passenger was Menchaca, and she was frightened. She knew that Menchaca had caused problems with the family years earlier. Duarte Vela was frightened for his children and drove after the SUV.

         Duarte Vela signaled for the SUV driver to pull over, and he did. Duarte Vela pulled alongside the SUV. Duarte Vela recognized the driver as Luis Martinez, a distant relative. He did not see anyone else in the SUV. Duarte Vela said his wife reported she saw an SUV with two people in it and thought that one of the people was Antonio Menchaca. Duarte Vela explained he was concerned because he did not know what Menchaca's plans were and said he did not want Menchaca to cause any problems for his family. Martinez assured Duarte Vela, '"It's only by [sic] myself" 2 Report of Proceedings (RP) (Jan. 28, 2015) at 438. He did not mention that Menchaca had hidden himself in the back seat as they had left the turnout.

         Duarte Vela returned to his wife. She was still frightened. Soon after, they both saw Martinez drive by with Menchaca in the front passenger seat. Duarte Vela realized he had been lied to, Menchaca was in the SUV a few minutes earlier, and Menchaca was not returning to Fresno as he had earlier promised.

         Duarte Vela, even more concerned that Menchaca posed a threat to his family, followed the SUV. Martinez saw Duarte Vela and pulled his SUV to the side of the road and parked it. Duarte Vela stopped his truck in front of it. Duarte Vela and the two men exited their vehicles. Duarte Vela still had his gun hidden in his pocket. The way the two men walked toward Duarte Vela caused him to become nervous. Duarte Vela asked why they were earlier parked by his family. Menchaca said something about being owed money by a person who lived near the turnout, but Duarte Vela did not believe him. Menchaca's tone of voice sounded threatening to Duarte Vela. At about this time, Duarte Vela began to draw his gun and Menchaca's hand went inside his pocket to reach for something. Duarte Vela fired two or three shots. One shot struck Menchaca in one arm, went through his torso, and lodged in his other arm. Either during or just before the shots, Menchaca displayed a paper in his hand, not a weapon. An injured Menchaca ran into a nearby orchard where he soon died.

         Martinez, and also Duarte Vela or his wife, called 911. Both callers said Duarte Vela shot Menchaca. Two sheriffs deputies went to Duarte Vela's house and found him outside standing on the porch with a telephone in his hand. Duarte Vela was advised of his rights and agreed to answer questions. Duarte Vela related the events of that day, explained he was both angry and fearful when he confronted Menchaca that afternoon, and admitted, "'I didn't do the right thing probably.'" 3 RP (Jan. 29, 2015) at 513. The State charged Duarte Vela with various firearm offenses and second degree murder.

         The trial occurred in January 2015. Prior to jury selection, the State moved in limine to exclude evidence of Menchaca's prior bad acts. Duarte Vela responded that he sought to admit certain prior bad acts of Menchaca known to him to establish the reasonableness of his fear of Menchaca.

         B. Contested evidentiary rulings

         1. Menchaca's prison threat made around spring of 2012

         Duarte Vela proffered the testimony of his brother, Alphonso, who would testify that he had a telephone conversation while Menchaca was in prison two or three years earlier during which Menchaca threatened to return to Okanogan and kill Duarte Vela's entire family. Alphonso also would testify that he told Duarte Vela of this threat.

         Duarte Vela argued that the prison threat was admissible to show his state of mind-reasonable fear of Menchaca-which was an element of his self-defense case. The State argued that the threat was too remote, not relevant to self-defense, and not admissible under any hearsay exception. The trial court eventually refused to allow Duarte Vela and his brother to testify about Menchaca's prison threat, mostly because the threat was too remote in time.

         The trial court explained:

Well, I'm concerned about the remoteness and the uncertainty of the timeline. The range two to three years seems to me to be pretty broad. I would like it if we could pin that down.
The other concern I have is that these-if it was two to three years ago and assuming-Well, the problem is we don't know, number one, if the victim was in prison at the time. I assume he was. I don't really have any reason to doubt that. But what I don't know is when he got out. Did he get out within a week or two of that phone call or did he get out a week or two prior to coming to the State of Washington? And the reason I think that's important is because if he got out within a short time of making the phone call but he never came to Washington, then it seems to me it's-there's a relevancy issue. There's a remoteness issue. On the other hand, if he got out within just a week or two or a month, some short period of time, then indeed it may be highly relevant and it is not remote. So I think what I have to do is to hear more.
And, [defense counsel], I'm going to advise you to call Alfonso Duarte as a witness. But understand, I'll be listening very closely for . . . foundational questions ... to establish the time frame for . . . when this phone call happened and if it can be established as to when the victim got out of prison so that the Court is able to rule on the issue of remoteness.

RP (Jan. 27, 2015) at 12-13. After further argument from the State, the court reiterated, "If he was released two or three years ago, then indeed this is too remote." RP (Jan. 27, 2015) at 14.

         Later at trial, the State brought forth a report from the border patrol that it had returned Menchaca to Mexico in May 2012. This showed that Menchaca had been released from prison before that time, which would have been at least two and one-half years before the January 2015 trial. Presumably because of the trial court's comments that "two or three years ago [was] too remote, " Duarte Vela did not call Alphonso to testify.

         2. Menchaca's abduction of Maricruz Duarte in 2007

         Duarte Vela also proffered the testimony of his younger sister, Maricruz Duarte, who would testify that Menchaca had abducted her in 2007 when she was just 15 years old, and that Duarte Vela knew about this. The State argued it had evidence Maricruz and Duarte Vela had retracted portions of the abduction accusation and that the testimony was not relevant to Duarte Vela's state of mind. The trial court excluded the evidence on the basis that the testimony was irrelevant and inadmissible.

         3. Menchaca's domestic violence against Blanca for years until they separated five or six years before trial

         Duarte Vela also proffered the testimony of Blanca who would testify that Menchaca had repeatedly battered her throughout their marriage, including after they left Okanogan in 2007 to go to Fresno, and that she had told Duarte Vela about this. She would have testified that the domestic violence occurred throughout their marriage and ended five or six years before trial, presumably because they separated at that time.

         Duarte Vela also sought to offer the testimony of his wife, who witnessed some of the domestic violence when the couple lived in Okanagan.

         The trial court excluded both testimonies as too remote in time.

         4. Miscellaneous evidence excluded throughout trial

         In addition to excluding the above offered testimonies, the trial court excluded Duarte Vela from testifying: (1) what he had been told by his family members about Menchaca's threat to kill his family and Menchaca's domestic violence against Blanca, (2) why he feared Menchaca being around his family, (3) why he believed he needed to arm himself when he went to his sister's apartment to confront Menchaca, (4) that his wife told him the SUV driver and Menchaca gave her a threatening look when the SUV first parked in or near the pullout, (5) why he followed the SUV the first time, (6) why he believed there were two people in the car when he followed the SUV the first time, (7) Martinez's statement to him that he was alone in the SUV, (8) what he felt when he saw Martinez later drive by with Menchaca in the passenger seat, (9) why he had an elevated fear as he went after the SUV for the second time, (10) his wife being upset when he returned and explained that Menchaca was not in the SUV, (11) his belief that something was wrong when Martinez and Menchaca both got out of the car and walked toward him, (12) what he feared Menchaca and Martinez might do as they walked toward him, and (13) the degree of bodily harm he feared just before he shot Menchaca, as Menchaca became upset and reached into his pocket.

         C. "NO DUTY TO RETREAT" INSTRUCTION AND JURY VERDICT

         Toward the end of trial, Duarte Vela requested a "no duty to retreat" instruction. In denying the instruction, ...


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