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State v. Romero-Ochoa

Supreme Court of Washington, En Banc

May 16, 2019


          STEPHENS, J.

         A jury convicted Leonel Romero-Ochoa of burglary, unlawful imprisonment, assault, and multiple counts of rape, arising from an incident in which he broke into a woman's home, beat her, and raped her twice. At trial, Romero-Ochoa sought to admit evidence that the victim had applied for a U visa in connection with these crimes. A U visa grants temporary legal resident status to a person who is the victim of a qualifying crime and who helps law enforcement investigate or prosecute that crime. The trial court excluded the U visa evidence.

         Romero-Ochoa appealed his convictions on the ground that exclusion of the U visa evidence violated his state and federal constitutional rights to present a defense and to confront witnesses. Wash. Const, art. I, § 22; U.S. Const, amend. VI. Division Two of the Court of Appeals agreed. It reversed all but the unlawful imprisonment conviction, holding the constitutional error was harmless beyond a reasonable doubt as to that conviction but not as to the others, because "[a]lthough the State's evidence against [Romero-]Ochoa was strong, its strength depended entirely on the jury finding [the victim]'s testimony credible." State v. Romero-Ochoa, No. 48454-4-II, slip op. at 1, 8, 15 (Wash.Ct.App. Dec. 28, 2017) (unpublished),, PDF.

         We granted the State's petition for review, which raised only the harmless error issue. State v. Romero-Ochoa, 191 Wn.2d 1005 (2018). On that issue, we now reverse the Court of Appeals and hold that any error in excluding the U visa evidence was harmless as to all of Romero-Ochoa's convictions. We therefore reinstate the convictions for rape, burglary, and assault and remand for the Court of Appeals to consider the claim of sentencing error it did not reach before.[1]


         The State charged Romero-Ochoa with burglary, kidnapping, and multiple counts of rape, arising from an incident in which he climbed through the victim's bedroom window and repeatedly beat and raped her.

         Before trial, the State moved to exclude any reference to the immigration status of the victim, any witness, or the defendant. The defense sought to introduce evidence that the victim had twice applied for a U visa, once relating to an assault by her ex-husband and once relating to the events giving rise to this case. According to defense counsel, the prior U visa application had not been approved. The second application was on hold, pending certification from local law enforcement that the victim "ha[d] been cooperative with authorities." 3 Verbatim Report of Proceedings (VRP) (Oct. 14, 2015) at 94. According to the deputy prosecutor, this certification could come either from her office or from the police, but her office maintained a policy not to consider any application while a case was still pending. It was undisputed that the victim sought this certification from the prosecutor's office. It was also undisputed that the prosecutor told her the office would not consider the merits of U visa certification while a criminal case was still pending, but that the victim could resubmit her request when the case was closed.

         The trial court initially excluded only evidence of the prior U visa application, provided such evidence did not become necessary to impeach the victim regarding when she became aware of the U visa program. It also permitted the defense, over the State's objection, to question the potential jurors about their attitudes regarding immigration. The court specifically noted that it was allowing this line of questioning because it was appropriate to explore potential jurors' attitudes about race or national origin at a trial where a Latino defendant would be testifying in Spanish using an interpreter.[2] Several days later and after consulting additional authority, the trial court excluded any evidence of the current U visa application. It explained:

I think once you start bringing in the issue of immigration status, it becomes a very slippery slope. And given the emotional reactions one way or another, which we saw during voir dire ....
I just am concerned about the inflammatory effect of that kind of evidence, and I'm going to exclude any evidence of the U visa or anything else about immigration of either parties, any of the witnesses. And that's my ruling.

5 VRP (Oct. 19, 2015) at 28. Acknowledging the lack of Washington case law on point and the existence of out-of-state authority contrary to its ruling, the court clarified that it was finding the U visa application relevant but that its "probative value is overwhelmed by the prejudicial effect." Id. at 32.

         At trial, the State presented testimony from 19 different witnesses; Romero-Ochoa was the only witness for the defense. The victim described the events at issue as involving two separate acts of stranger rape in the context of a horrific home invasion; in contrast, Romero-Ochoa described the events as consensual sex in the context of a secret affair spanning years. The jury returned guilty verdicts on two counts of first degree rape, two counts of second degree rape, one count of first degree burglary, one count of unlawful imprisonment, and one count of second degree assault. By special verdicts, the jury found that Romero-Ochoa committed the burglary and assault with a sexual motivation; that he restrained the victim by physical force, intimidation, or deception; and that he committed second degree assault by strangulation.

         Romero-Ochoa appealed his conviction on the ground that, by excluding the U visa evidence, the trial court violated his constitutional rights to confront adverse witnesses and to present a defense. Division Two agreed that the trial court committed constitutional error, and it reversed on every count except unlawful imprisonment. Romero-Ochoa, No. 48454-4-II, slip op. at 1. As to that count, the Court of Appeals found the trial court's error harmless. Id. The distinction it drew was based on the fact that a neighbor saw Romero-Ochoa grab the victim by the hair and drag her back into her home, supporting the unlawful imprisonment conviction, but no third party visually witnessed the burglary, assault, or rapes inside the victim's home. Id. at 15-16. According to the Court of Appeals, this meant that proof of the burglary, assault, and rapes turned entirely on the victim's credibility. Id. The Court of Appeals reversed and remanded for a new trial on all but the unlawful imprisonment charge. Id. at 16. As noted above, the court did not reach Romero-Ochoa's claim of sentencing error. Id. at 16-17.

         The State filed a motion for reconsideration, which Division Two denied, and then petitioned this court for review. The State did not challenge the Court of Appeals' holding on the admissibility of the U visa evidence. Instead, it argued only that this court should overturn the Court of Appeals' holding on harmless error because it erroneously implied an eyewitness corroboration requirement in conflict with well-settled precedent. We granted review.


         Both the state and federal constitutions guarantee a criminal defendant the right to present a defense and to confront adverse witnesses at trial, but violations of those rights are subject to constitutional harmless error review. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Lui, 179 Wn.2d 457, 495, 315 P.3d 493 (2014); State v. Jones, 168 Wn.2d 713, 724, 230 P.3d 576 (2010). An error is harmless and not grounds for reversal if the appellate court is assured beyond a reasonable doubt that the jury would have reached the same verdict without the error. Lui, 179 Wn.2d at 495; Jones, 168 Wn.2d at 724; Van Arsdall, 475 U.S. at 684.

         In the context of an erroneous exclusion of impeachment evidence, "[t]he correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, [we can] nonetheless say that the error was harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at 684. Consistent with our overwhelming untainted evidence test, this inquiry requires us to find the error harmless if, in light of the entire trial record, we are convinced that the jury would have reached the same verdict absent the error.[3] Relevant considerations include the properly admitted direct and circumstantial evidence (i.e., the strength of the State's case and the plausibility of the defense theory) and the overall significance of the erroneously admitted or excluded evidence in this context (e.g., whether it was cumulative or corroborated, or consistent with the defense theory). Van Arsdall, 475 U.S. at 684 (where trial court erroneously excluded impeachment evidence in violation of confrontation clause protections, factors relevant to the harmless error analysis "include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case"); Lui, 179 Wn.2d at 496-97 (erroneous admission of autopsy report harmless in light of properly admitted forensic, motive, and other circumstantial evidence, and the fact that defendant's testimony was contradicted by other witnesses and DNA (deoxyribonucleic acid) evidence); State v. Hieb, 107 Wn.2d 97, 110-12, 727 P.2d 239 (1986) (erroneous admission of hearsay harmless where "overwhelming circumstantial evidence" supported State's theory and defendant's theory was incompatible with physical evidence); State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985) (erroneous admission of hearsay harmless in light of "the overwhelming amount and credibility of the properly admitted evidence").

         Harmless error review requires close scrutiny of all the evidence. As detailed below, 13 separate witnesses corroborated the victim's account of her attack. These witnesses included neighbors who heard the attack and witnessed the victim trying to escape, first responders who saw the victim run out of her house half naked and crying, detectives and technicians who gathered crime scene and forensic evidence, and medical personnel who treated the victim and documented her injuries and physiological indicators of stress. The only witness for the defense was Romero-Ochoa, who admitted to sexual intercourse with the victim but said it was consensual, the result of a chance encounter with a former secret lover. The victim's sister took the stand to rebut numerous aspects of Romero-Ochoa's story.

         The victim testified at trial and gave the following account of the attack: By July 3, 2014, the victim and her daughter had lived in unit A at the San Francisco Avenue trailer home park for three or four years. Before she and her daughter went to sleep that night, the victim closed all the windows in their home, including the window, which did not lock, in the room where she and her daughter slept. The victim woke up at about 3 a.m. to find a strange man (whom she identified at trial as Romero-Ochoa) standing over her bed; when she asked him who he was, he said, "Just be quiet. Don't say anything." 6 VRP (Oct. 20, 2015) at 9. At that point, the victim stood up and ran into her living room, where Romero-Ochoa grabbed her by the hair, pulled her over to the couch, and pressed his hands on her mouth and neck so that she could barely speak. He climbed on top of her, started taking off his pants, and took off her shorts and underwear. She told him to leave her alone and he told her to be quiet. He kissed her neck and legs for about 2 minutes, telling her, "'I like you"' and "Tm doing this to you because I like you, "' and then raped her for about 20 minutes. Id. at 12. During the rape, the victim was crying and screaming, and Romero-Ochoa repeatedly hit her in the face, covered her mouth, and told her to be quiet.

         At some point while she was still being raped, the victim told herself to calm down and think of an escape plan. Because Romero-Ochoa smelled strongly of alcohol and appeared to her to be drunk, she thought she might be able to distract him by offering him a beer. She asked him if he would like a beer, he said yes, and she told him he could get it out of the refrigerator. He told her that she would get it for him and then grabbed her by the hair and pulled her toward the refrigerator. After the victim took a beer from the refrigerator, Romero-Ochoa grabbed it with both hands, and she was able to run out of the house, taking a small blanket with her. She ran about 10 meters to the house across from hers and banged on the windows, but nobody answered. Romero-Ochoa chased her, grabbed her by the hair, and hit her twice in the face. Romero-Ochoa threw her on the ground and dragged her about 2 meters back to her house. Back inside the house, Romero-Ochoa threw her back on the sofa and raped her again for 20 to 25 minutes, covering her mouth. This time, the victim was crying but not screaming or saying anything because she was scared he ...

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