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State v. Rodriguez-Perez

Court of Appeals of Washington, Division 3

December 7, 2017


          Lawrence-Berrey, A.C.J.

         Luis Guadalupe Rodriguez-Perez and William Escobar Martinez, tried jointly, appeal their convictions. Both men were convicted of second degree murder. Martinez was additionally convicted of unlawful possession of a firearm.

         Both men argue they are entitled to a new trial because of prosecutorial misconduct and error in the reasonable doubt instruction. Martinez asserts two additional arguments. He argues the trial court violated his right to present a defense when it excluded evidence that the shooting was gang related, and that he was not a gang member but Rodriguez-Perez was. He also argues the trial court erred by excluding testimony from his expert that casts doubt on cross racial identification.

         We disagree with appellants' arguments and generally affirm. We publish in part to emphasize two aspects of our opinion. First, prosecutors should be very careful when adding commentary to PowerPoint slides used during closing argument. Commentary must be based on the evidence and assist the jury's understanding of it. Second, the right to present a defense is not absolute and, in appropriate cases, gives way to other legitimate interests, including a codefendant's right to a fair trial. Here, the trial court did not err in protecting codefendant Rodriguez-Perez's right to a fair trial by excluding evidence of his gang membership, even though such exclusion somewhat weakened Martinez's defense.


         In the early evening of March 22, 2014, Rodriguez-Perez, Martinez, and Efren Iniguez spent time together before attending a concert later that night at the Seasons Performance Hall in Yakima, Washington. The concert promoted local rap artists and singers. The trio got haircuts, returned to where Rodriguez-Perez and Iniguez lived, showered and dressed. Martinez borrowed red clothes from Rodriguez-Perez to wear. The trio enjoyed some tequila and smoked marijuana. Martinez noticed that Rodriguez-Perez had a gun in his waistband, the same gun he always carried with him. Rodriguez-Perez drove his friends to the event, and parked the car within two blocks of the venue. As the men approached the Seasons, they could observe security at the door using a wand to check concertgoers for weapons. Rodriguez-Perez turned away from the door and walked away. Minutes later Rodriguez-Perez returned and entered.

         At some point during the event, 40 to 50 people abruptly went outside and many of them began to fight. An outside surveillance video showed Martinez running toward the parked car with Rodriguez-Perez seconds behind, walking toward the parked car. The video showed them, minutes later, walking back together toward the Seasons.

         Back at the fight, Da'Marius Morgan punched Justin Navarro, also known as "Klick Klack"[1] in the head. Navarro fell down, but got back up. The two continued arguing. While they were arguing, three or more shots were fired by a third person at Morgan. One of the bullets pierced Morgan's heart and he died. A bullet also struck Isaiah Prince in the leg and wounded him. Prince could not identify who shot him or Morgan.

         Estevan Montero was working security at the event and witnessed the shooting from inside the building. He saw three individuals near his truck, and one of them shot a handgun toward Morgan four or five times. The three men later were identified as Rodriguez-Perez, Martinez, and Iniguez. Montero saw Morgan collapse and fall, and the three men run away, down an alley.

         Aaron Adams was also at the event. He saw a fight break out between two groups. Adams saw Morgan throw a punch and knock someone out. Adams saw two men run behind a truck, pull out firearms, fire at Morgan, and then run down a nearby alley.

         Daniel Cerda was watching his son perform at the event and saw the fight and shooting. Cerda also saw the shooting, and saw the shooter run down the nearby alley.

         William Telakish recorded much of the fight with his phone. The video showed Rodriguez-Perez, Martinez, and Iniguez just before the shooting standing where witnesses said the shooter or shooters stood. The Telakish video did not show who shot Morgan.

         A second surveillance video showed Rodriguez-Perez, Martinez, and Iniguez running from the shooting toward an alley. It also showed Rodriguez-Perez tossing something into a bush.

         Law enforcement arrived and began questioning witnesses. They quickly proceeded to the alley described by the witnesses, where they saw angry people yelling and running toward a bush. Two individuals began kicking two men who were crouched down and hiding in the bush. The officers pulled Rodriguez-Perez and Martinez out of the bush and took them into custody. While canvassing the scene, law enforcement found a black jacket, a white shirt, a red cap and a cell phone in the bushes where Rodriguez-Perez and Martinez were hiding.

         At a show-up near the crime scene, Montero and Adams identified Martinez as the shooter, based on Martinez's distinctive hairstyle, hat, and clothing. But Adams also said that Rodriguez-Perez might be the shooter if he had been wearing a hat and subsequently discarded it. Cerda also identified Martinez as the shooter.

         That night, law enforcement interviewed both suspects separately at the police station. Martinez said that Rodriguez-Perez was the shooter, and that the gun belonged to Rodriguez-Perez. Martinez played a video recording on his phone from one month earlier that showed Rodriguez-Perez pointing a gun at the camera.

         The next morning, a man walking his dog found a gun in a bush near where officers had found Rodriguez-Perez and Martinez. Forensic tests established that the gun was the murder weapon. In addition, the gun's magazine had a fingerprint that matched Rodriguez-Perez's fingerprint.


         The State charged Rodriguez-Perez and Martinez, both as principals and accomplices, with second degree murder of Morgan and first degree assault of Prince. The State also charged Martinez with first degree unlawful possession of a firearm.

         On September 10, 2014, the State requested consolidation of the cases. At the same hearing, Rodriguez-Perez and Martinez moved the court to sever their trials. In their motions, the men argued that their defenses were mutually antagonistic. The State responded that the defenses were not mutually antagonistic because Martinez would argue Rodriguez-Perez was the shooter, while Rodriguez-Perez would argue the shooter was a third person. The trial court agreed with the State that the defenses were not sufficiently antagonistic for severance purposes, and granted consolidation.

         On February 24, 2015, Rodriguez-Perez made motions in limine. One of the motions asked the trial court to exclude gang evidence. The State agreed that gang evidence was not relevant. Martinez reserved on the issue after indicating he might go either direction.

         During a later hearing, Martinez sought an order allowing Dr. Geoffrey Loftus to testify about the unreliability of eyewitness identification. The trial court generally allowed Dr. Loftus to testify, but did not allow him to testify on the narrow issue of cross racial eyewitness identification.

         Trial commenced with jury selection on March 5, 2015. Opening statements were made on March 9, 2015. The State then began presenting its case.

         On March 16, 2015, during a short break in the State's case, Martinez addressed the gang evidence issue that he previously reserved. Martinez indicated he now wanted to admit gang evidence. He argued that one security guard indicated the fight was between two rival gangs, the Fun Boys and the West Side Hustlers. The guard indicated he saw Morgan punch Navarro, a rapper affiliated with the Fun Boys, causing Navarro to fall to the ground, and then someone from the Fun Boys fired shots at Morgan. Continuing, Martinez added that Sergeant Cortez would testify that Rodriguez-Perez was a member of the Fun Boys, and would also testify that he (Martinez) was not a known gang member. Rodriguez-Perez objected, and said the security guard, who previously testified, did not testify it was gang related. The trial court reserved ruling on the issue.

         On March 27, 2015, the State rested. Rodriguez-Perez and Martinez renewed their motions to sever. Pursuant to CrR 4.4(a)(2), their renewed motions were limited to the grounds they previously argued. Both defendants generally argued that severance was required because their defenses were mutually antagonistic. The trial court again denied their motions to sever.[2]

         The trial court next addressed the outstanding motion in limine pertaining to the admission of gang evidence. The trial court directed Martinez to make an offer of proof. Martinez's offer of proof was similar to the previous offer, and is set out in detail later in this opinion. After hearing the offer of proof, the trial court excluded gang evidence on the basis that Martinez had failed "to establish that the shooting was to advance a particular gang purpose or value." 15 Report of Proceedings (RP) (Mar. 27, 2015) at 2861. The trial court additionally reasoned that admitting gang evidence would be unfairly prejudicial to Rodriguez-Perez.

         Martinez then testified in his own defense. He testified that Rodriguez-Perez owned the gun that shot Morgan, and that Rodriguez-Perez was the shooter. Martinez also testified he did not know that Rodriguez-Perez had a gun until he shot Morgan. He further testified he did not do or say anything that encouraged or helped Rodriguez-Perez shoot Morgan. In accordance with the trial court's ruling, Martinez did not testify about Rodriguez-Perez's gang affiliation or about his own lack of gang affiliation.

         The trial court then instructed the jury. The reasonable doubt instruction, objected to by both Rodriguez-Perez and Martinez, stated:

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

         Clerk's Papers (CP) (Martinez) at 327.

         In closing arguments, the State used a PowerPoint presentation to summarize the evidence presented to the jury over the previous three weeks. The PowerPoint presentation consisted of photographs, frames of videos, and summaries of Martinez's testimony-all of which were admitted at trial. Each PowerPoint slide had a caption that described the contents of the slide, and the slides that summarized Martinez's testimony included editorial comments. Neither Rodriguez-Perez nor Martinez objected to these captions or editorial comments during closing arguments.

         The jury found both men guilty of second degree murder. The jury also found Martinez guilty of unlawful possession of a firearm. At sentencing, the trial court told the two men that it was waiving discretionary legal financial obligations because they both were indigent. The trial court struck costs of incarceration for Martinez, but failed to strike costs of incarceration for Rodriguez-Perez. Both men appealed, and we consolidated their appeals.


         A. Purported prosecutorial misconduct

         Rodriguez-Perez and Martinez contend the prosecutor committed misconduct by using inflammatory captions on his PowerPoint presentation during closing arguments. Martinez separately contends that some of the slides improperly commented on his credibility. Rodriguez-Perez also separately contends that the prosecutor committed misconduct by improperly vouching for Martinez's testimony. We disagree with all of these contentions.

         To show prosecutorial misconduct, the defendant has the burden of establishing that (1) the State acted improperly, and (2) the State's improper act prejudiced the defendant. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). Misconduct is prejudicial if there is a substantial likelihood it affected the verdict. Id. at 760-61. A prosecutor commits misconduct by personally vouching for a witness's credibility. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). The State has wide latitude in drawing and expressing reasonable inferences from the evidence, including inferences about credibility. State v. Thompson, 169 Wn.App. 436, 496, 290 P.3d 996 (2012). Courts review allegations of prosecutorial misconduct during closing argument in light of the entire argument, the issues in the case, the evidence discussed during closing argument, and the court's instructions. State v. Sakellis, 164 Wn.App. 170, 185, 269 P.3d 1029 (2011).

         However, a defendant who fails to object to the State's improper act at trial waives any error, unless the act was so flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011). In making that determination, the courts "focus less on whether the prosecutor's misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured." Emery, 174 Wn.2d at 762.

         1. The prosecutor did not improperly vouch for Martinez

         Improper vouching occurs if the prosecutor (1) places the prestige of the government behind the witness, or (2) indicates that evidence not presented at trial supports the witness's testimony. State v. Robinson, 189 Wn.App. 877, 892-93, 359 P.3d 874 (2015). Rodriguez-Perez contends the State vouched for Martinez because it claimed in its opening statement that Martinez was the shooter, but during closing adopted one of Martinez's contentions that Rodriguez-Perez was the shooter. Rodriguez-Perez's argument is that by changing its theory and adopting one of Martinez's contentions, the prosecutor placed the prestige of the government behind Martinez. The prosecutor's closing, considered as a whole, does not support this argument.

         During closing, the prosecutor argued two alternative theories. One theory was based on witness identification and argued that Martinez was the shooter. The other theory was based on the physical evidence that the gun belonged to Rodriguez-Perez, that the gun's magazine had Rodriguez-Perez's fingerprint, and that Rodriguez-Perez possessed the gun soon after the shooting and then threw it into a bush. This second theory was buttressed by Martinez's testimony that Rodriguez-Perez was the shooter. In arguing this second theory, the prosecutor emphasized that the jury should still find Martinez guilty as an accomplice.

         But the prosecutor did not put the prestige of the government behind Martinez. Although the prosecutor's second alternative argument in closing was consistent with Martinez's testimony that he was not the shooter, the prosecutor disagreed with Martinez's testimony much more than he agreed with it. During closing, the prosecutor repeatedly emphasized portions of Martinez's testimony that the jury should not believe. For example, the prosecutor emphasized that Martinez was lying about not knowing why Rodriguez-Perez delayed entering the Seasons, was lying about why he ran to the parked car when the fight began, and was lying about his claimed ignorance that Rodriguez-Perez had a gun with him before Rodriguez-Perez shot Morgan. Because the prosecutor's argument did not put the weight of the government behind Martinez's testimony, we conclude the prosecutor did not improperly vouch for Martinez.

         2. The prosecutor did not improperly comment on Martinez's credibility

         A prosecutor may comment on a witness's veracity as long as a personal opinion is not expressed and as long as the comments are not intended to incite the passion of the jury. State v. Stith, 71 Wn.App. 14, 21, 856 P.2d 415 (1993). There is a difference between the prosecutor's personal opinion, as an independent fact, and an opinion based on or deduced from the evidence. State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006) (quoting State v. Armstrong, 37 Wash. 51, 54-55, 79 P. 490 (1905)). Misconduct occurs only when it is clear and unmistakable that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion. Id. at 54 (quoting State v. Papadopoulos, 34 Wn.App. 397, 400, 662 P.2d 59 (1983)). Martinez argues the prosecutor improperly commented on his credibility in PowerPoint slides 44, 47, 50, and 56.

         The slides, depicted below, contain Martinez's testimony in regular type, and the State's editorial comments and contrary assertions in italics:

• [Rodriguez-Perez] had pistol in waistband at house ...

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