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.
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
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.
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.
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.
the fight, Da'Marius Morgan punched Justin Navarro, also
known as "Klick Klack" 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
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.
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.
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.
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
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.
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
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.
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
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.
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
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.
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.
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.
commenced with jury selection on March 5, 2015. Opening
statements were made on March 9, 2015. The State then began
presenting its case.
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.
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
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.
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.
trial court then instructed the jury. The reasonable doubt
instruction, objected to by both Rodriguez-Perez and
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.
Papers (CP) (Martinez) at 327.
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.
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.
Purported prosecutorial misconduct
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
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).
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.
The prosecutor did not improperly vouch for Martinez
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.
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.
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.
The prosecutor did not improperly comment on Martinez's
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.
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