State of Washington v. Alejandro S. Martinez (Majority)
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FILED JUNE 28, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, v. ALEJANDRO S. MARTINEZ, Appellant. ) ) ) ) ) ) ) ) ) No. 37343-6-III OPINION PUBLISHED IN PART SIDDOWAY, C.J. — Twenty-three years after then 16-year-old Alejandro Martinez is alleged to have raped his young stepbrother, and 20 years after the youngster’s allegation came to light and was charged as a crime, Alejandro, who had gone by the name “Alex” for many years,1 was located across the country. He returned to Benton County to stand trial and was convicted of the charge. On appeal, Alex assigns error to the trial court’s abuse of discretion in granting joinder of his prosecution with that of his brother Eduardo, prohibiting questioning about illegal immigration during voir dire, and admitting alias evidence. He also assigns error to the trial court’s failure to apply sentencing laws in effect in 1995. 1 To avoid confusion given the number of parties and witnesses with the common paternal or maternal surnames, we refer to the members of those families by their first names. We intend no disrespect. No. 37343-6-III State v. Martinez In the published portion of the opinion, we hold that the trial court did not abuse its discretion in granting the State’s motion for joinder of the brothers’ cases. We explain why several arguments raised on appeal misapprehend the Washington Supreme Court’s decision in State v. Bluford, 188 Wn.2d 298, 393 P.3d 1219 (2017), and confuse joinderof-offenses and joinder-of-defendants situations. In the unpublished portion of the opinion, we agree with Alex that he is entitled to resentencing under more lenient sentencing laws in place at the time of his crime and reject his remaining challenges. The conviction is affirmed and the case remanded for resentencing. FACTS AND PROCEDURAL BACKGROUND Alejandro Martinez was born in the state of Morelos in Mexico and came to the United States in 1991 with his mother, Urbina Martinez Miranda. He was about 13 years old at the time. When Urbina returned to Mexico, she left Alejandro with a man, Zamora, with whom she had been in a relationship. Alejandro lived with Zamora at an orchard in Grandview. In 1993, Urbina met and married Santiago P.V.2 in Mexico. Their blended family consisted of Urbina’s son Eduardo, who is a year younger than Alejandro, and Santiago’s To protect the privacy of Santiago’s sons we substitute pseudonyms for first names and initials for surnames. See Gen. Orders of Division III, In re Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012). 2 2 No. 37343-6-III State v. Martinez three young sons, who we will refer to pseudonymously as Emiliano, Julian, and Rodrigo. Soon after the marriage, the couple, Eduardo, and Santiago’s sons traveled to the United States and settled in Prosser. For about a year, the family lived in a single-wide trailer in a mobile home park on Highway 22. According to Santiago, Alejandro lived with them part of the time, and lived part of the time in Grandview. In the summer of 1995, Santiago purchased a recreational type trailer and located it in a trailer park behind the Burger King in Prosser (hereafter the “Prosser trailer park”). Reports differ as to whether Alejandro lived with the family at the trailer part of the time or only stayed there occasionally. In 1995, Urbina and Santiago separated several times. They eventually divorced. During one of the separations, Santiago moved with his three sons to Grandview and the boys enrolled at Whitstran Elementary. The two families did not see or hear from each other thereafter. Three years later, allegations of sexual abuse to Julian and Emiliano came to light when a parent of a Whitstran student brought to the school’s attention an explicit drawing that had circulated on the school bus. It bore Julian’s name. Most prominent in the drawing was a depiction of a man having anal sex with a woman. The principal of Whitstran Elementary, Sarah Juzeler, met with fourth-grader Julian to discuss the drawing bearing his name. 3 No. 37343-6-III State v. Martinez Julian initially denied creating the drawing, but before long admitted authorship and disclosed he had been sexually abused three years earlier by his stepbrother Eduardo. As a mandatory reporter, Principal Juzeler notified Child Protective Services of what she had been told. The allegation was referred to the Benton County Sheriff’s Office and Detective Lee Cantu undertook the investigation in late September 1998. He and a sexual assault counselor conducted interviews of Julian and Emiliano. According to Detective Cantu, Julian told him that Eduardo had sexually abused him. He told the detective he believed Eduardo and Urbina still lived at the Prosser trailer park. The detective then spoke with Emiliano, who told the detective that both Eduardo and Alejandro had sexually abused him. Like Julian, Emiliano believed Eduardo and Urbina were still living at the Prosser trailer park. Detective Cantu contacted the boys’ father, Santiago, who disclaimed any knowledge of the abuse, which was never reported to him by either Emiliano or Julian. According to Detective Cantu, Santiago also told him that Eduardo was living at the Prosser trailer park, and told him he believed Alejandro was in New York. On October 12, Detective Cantu went to the Prosser trailer park in hopes of finding Eduardo and Alejandro. He went to the manager’s mobile home and knocked on the door, but no one answered. A handwritten sign in the window identified “Alejandro Martinez” as the manager, and provided a telephone number, which the detective called. 4 No. 37343-6-III State v. Martinez The individual who answered spoke English and identified himself as Alejandro Martinez. The detective told Alejandro that his name had been provided in connection with a case the nature of which he did not identify, and he would like to speak with him. Alejandro said he was at work and would not get off until 5 p.m., but he provided the name of the produce warehouse where he was working and Detective Cantu drove there to meet with him. On arriving, the detective contacted the warehouse manager and asked if he had an employee by the name of Alejandro Martinez. The manager said no, but they did have an employee named Ricardo Martinez. Detective Cantu met with this employee who identified himself as Alejandro Martinez, but had no identification to produce when requested by the detective. Alejandro communicated with the detective in English and waived his Miranda3 rights. An advice of rights form that was later admitted at trial includes, in Detective Cantu’s handwriting, the Benton County case number, the date and time the rights were read, the location where the rights were read, Alejandro’s name, and a date of birth, address, and phone number that the detective stated were provided by Alejandro. The date of birth provided was January 25, 1979. The form is legibly signed “Alejandro S. 3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 5 No. 37343-6-III State v. Martinez Martinez” in two places, acknowledging being informed of rights and waiving them. The form is also signed by Detective Cantu, as witness. Detective Cantu asserts that at the inception of the interview, he told Alejandro he was investigating an incident involving Emiliano and Julian that occurred in the fall of 1995 but did not specifically describe it as sexual abuse. Alejandro told the detective he remembered the incident but “it was very hard for him to talk about.” Report of Proceedings (RP) (Trial)4 at 639. Alejandro then gave a written statement to the detective in Spanish, which translated to: “Me, Alejandro, did that with [Emiliano] one time,” with no identification of what “that” was. RP (Trial) at 643. The signed confession was later admitted at trial. Asked where Eduardo could be found, Alejandro said Eduardo was living with him and his mother at the Prosser trailer park. Detective Cantu told Alejandro he would be sending information to the prosecutor to support a charge of rape of a child in the first degree. He did not immediately book Alejandro due to overcrowding at the jail, however. According to the detective’s notes of the interview, he spoke with Alejandro for a little over 40 minutes. Three days later, the detective tried to contact Alejandro and Eduardo at the Prosser trailer park but found no Martinez family member there. Alejandro did not answer calls to the phone number Detective Cantu had reached him at a few days earlier. “RP (Trial)” refers to the three consecutively-paginated volumes reported by Cheryl Pelletier that include the final trial taking place in September and October 2019. 4 6 No. 37343-6-III State v. Martinez Detective Cantu forwarded information to the prosecutor that resulted in charges being filed. An information filed on November 2, 1998, charged Alejandro S. Martinez with one count of first degree rape of a child (Emiliano) under former RCW 9A.44.073 (1988). An information filed on December 14, 1998, charged Eduardo S. Martinez with two counts of first degree rape of a child (Emiliano and Julian) under former RCW 9A.44.073. Warrants were issued in 1998 for both brothers’ arrest. Detective Cantu would later testify at trial that the warrants issued “were placed in the system. The national system as well as the local [system],” but that he took no other steps to locate Alejandro or Eduardo. RP (Trial) at 650. The record does not reveal that any action was taken on the charges for over two decades. 2018 In the years that passed, Eduardo and Alejandro moved to Connecticut, worked, married, purchased homes, and started families. Alejandro consistently went by “Alex,” not Alejandro, and often used his paternal surname Ocampo, with or without his maternal surname Martinez. We refer to him hereafter as Alex, except when we describe testimony of members of the P.V. family and Detective Cantu, who knew him as Alejandro. In November 2018, Eduardo was driving on a Connecticut highway when someone rear-ended him. The police responded to the accident and a check of Eduardo’s 7 No. 37343-6-III State v. Martinez identification documentation turned up an outstanding arrest warrant for a Connecticut driving under the influence (DUI) charge from October 1997. According to Eduardo, he had failed to resolve that old charge because he had caused an accident at the time, and he became concerned he might be jailed or even deported. It was in connection with the continued prosecution of the old DUI charge that Connecticut police became aware of the outstanding Washington warrants and associated charges. Benton County obtained fugitive from justice warrants for Alex and Eduardo, who lived next to each other in a duplex in Bridgeport. Both were arrested a few weeks later. Eduardo waived extradition and Detective Cantu traveled to Connecticut to transport him to Washington. He was arraigned on his charges on March 25, 2019. Alex returned to Washington to surrender himself. He was arraigned on May 1, 2019. At arraignment, Alex’s lawyer told the court that the State’s charges were against Alejandro S. Martinez, which was incorrect, and that his client’s name was Alex Ocampo Martinez. He told the court that the State’s birthdate for his client was also wrong. The State’s position was and remained that Alex adopted a different name and date of birth after becoming aware of the molestation investigation. It has never changed its identifying information for Alejandro. 8 No. 37343-6-III State v. Martinez Eduardo’s first trial on the charges began on May 13, 2019, shortly after Alex was arraigned. It ended in a mistrial. On May 31, the State filed a motion to join its cases against Alex and Eduardo and consolidate them for trial. In moving for joinder, the State argued that “[t]he charges and the evidence in the defendants’ cases are virtually identical” and proceeding with one trial as opposed to two would “minimize the number of occasions that [Julian] and [Emiliano] must testify as to the sexual abuse they suffered as young children.” Clerk’s Papers (CP) at 304. At the hearing on the motion, the State emphasized that at Eduardo’s trial Emiliano testified that the brothers had “tak[en] turns” molesting him and Julian. RP (Munoz)5 at 77. It also argued that their defenses were consistent, since Eduardo had testified at his trial and “flat-out denied” ever molesting either brother; he had also testified he did not think Alex was around in October 1998 when Detective Cantu claims to have interviewed him. RP (Munoz) at 77-78. Alex’s briefing to the court pointed out that in Bluford, the Washington Supreme Court had recently clarified that prejudice to a defendant is relevant to a decision on 5 RP (Munoz) refers to the single volume reported by Renee L. Munoz that includes argument of the State’s joinder motion on June 13, 2019. 9 No. 37343-6-III State v. Martinez joinder, just as it is to a decision on severance. 188 Wn.2d at 305.6 At the hearing Alex’s lawyer argued that the unfairness in Alex’s case was not knowing whether Eduardo would testify at the second trial: [A]s a historical background for me, I can tell you honestly that I never make a decision on whether my client’s gonna testify until after we’ve heard all of the evidence. You know, in this case I’d have to make that decision before we go there, and I think it puts him in a terribly awkward position, and I think it violates his rights for confrontation. RP (Munoz) at 80. The trial court granted the joinder motion, finding that Alex had not identified any specific prejudice and “difficulties that foreseeably inure in mounting a joint defense . . . while concededly not insignificant . . . are legally insufficient as a basis to resist the motion.” CP at 8. A second trial, this time against both brothers, began in June. The second trial ended in a mistrial after the jurors informed the court they were deadlocked with no hope of reaching a verdict. 6 The State had argued in Bluford, with some support from published decisions of Division Two of this court, that when joinder rather than severance is being considered, the only issue is whether it is allowable in accordance with the plain language of the rule; the likelihood of prejudice is not relevant. The Supreme Court took the opportunity in Bluford to disapprove of Division Two’s approach and confirm, as established in State v. Thompson, 88 Wn.2d 518, 525, 564 P.2d 315 (1977), overruled on other grounds by State v. Thornton, 119 Wn.2d 578, 580, 835 P.2d 216 (1992), that the likelihood of undue prejudice to the defendant must also be considered when the State moves for joinder. Bluford, 188 Wn.2d at 307-09. 10 No. 37343-6-III State v. Martinez A third trial began in August. It ended in a mistrial on Alex’s motion, after counsel for Eduardo was perceived by the trial court to have violated an in limine order, to the potential detriment of Alex. In motions in limine argued before the fourth trial, the State sought to offer certain evidence from which it contended consciousness of guilt could be inferred, including evidence of Alex’s self-identification as Alex Ocampo and Alex Ocampo Martinez after Detective Cantu’s investigation and the filing of charges. Admission of the evidence turned out not to be at issue, since Alex responded that he would offer evidence that he self-identified as Alex Ocampo and Alex Ocampo Martinez. In what amounted to a counter-motion, Alex asked the court to prohibit the State from arguing that his self-identification as Alex Ocampo and Alex Ocampo Martinez supported an inference of consciousness of guilt. The trial court denied the countermotion, ruling that “[b]oth sides have an opportunity to argue their positions to the jury.” RP (Trial) at 316. The fourth trial began in late September. Witnesses called by the State included Detective Cantu; Julian and Emiliano’s father, Santiago; Principal Juzeler; Emiliano; and Julian.7 7 Urbina had died a couple of years before the trial. 11 No. 37343-6-III State v. Martinez Detective Cantu was asked in his direct examination if he saw the Alejandro Martinez that he interviewed in 1998 in the courtroom; he said he did and identified Alex. The detective also testified that after he picked up Eduardo at a Norwalk, Connecticut, courthouse, they drove to LaGuardia Airport, and during the drive, Eduardo volunteered a couple of things: that he moved to Connecticut but returned to Prosser following the 1997 DUI charge and that he returned to Connecticut when he learned authorities needed to speak with him about the charges at issue in this case. Santiago testified that Alejandro had lived with the family at the Highway 22 mobile home park for a time and also lived with the family off and on when they moved to the Prosser trailer park. Asked by Alex’s lawyer if he recalled that Urbina had a nephew “in the area” who was also named Alejandro Martinez, Santiago said he did, but he did not know where he lived or who he had worked for. RP (Trial) at 893-94. Emiliano testified to being born in March 1988, making him 31 years old at the time of trial. He testified that he recalled the abuse by Alejandro and Eduardo happening during the first quarter of his second-grade year. Alejandro was the first to abuse him by putting his penis in Emiliano’s mouth; then he inserted his penis in Emiliano’s anus “repeatedly.” RP (Trial) at 1042. He testified that this occurred in the bedroom, and both of his younger brothers were present in the trailer. He testified that Eduardo had not been present. 12 No. 37343-6-III State v. Martinez Emiliano testified that Eduardo later assaulted him as well, calling him into the bedroom where he “proceeded to pull my pants down and insert his penis in my anus.” RP (Trial) at 1044. Emiliano testified he was raped by Eduardo on more than one occasion, often in the bedroom. Asked if he was able to fight back, he said he could not because Alejandro and Eduardo were older, bigger and stronger. In the fall of 1995, when this is alleged to have occurred, Alejandro would have been 16 years old and Eduardo would have been nearly 15. Emiliano testified that he knew that his younger brother Julian had also been raped, “[b]ecause it happened to me” and “I could just hear him screaming, begging for him to stop.” RP (Trial) at 1045. He testified that he also saw Julian being raped once, in the trailer’s bathroom. Emiliano testified that he never talked to Julian or anyone else about the abuse, because he was scared and “they threatened us.” RP (Trial) at 1046. Julian testified to being born in 1989, making him 30 years old at the time of trial. He testified that he was assaulted by Eduardo, who took him in the back room of the trailer and put his penis in Julian’s anus. He remembered pain, and that he was crying, and that it was against his will. He also recalled that it happened on a few occasions. Emiliano was present in the trailer when it happened. Julian testified he knew it happened to Emiliano, too, because Emiliano was taken to the back room and Julian could hear him crying. Julian did not fight back because Eduardo was older than him and 13 No. 37343-6-III State v. Martinez he was scared. It happened in the first quarter of his first-grade year, so he would have been 6 years old at the time. Julian testified that Alejandro never molested him. Alex and Eduardo testified in their own defense. Alex testified that others have referred to him as Alejandro, but he, personally, has always gone by Alex. Asked about his birthdate, he testified that he was born on March 21, 1978, which is not the date of birth attributed to him by the State. He testified that he came to the United States in 1991 and lived with a family acquaintance in Grandview. He occasionally stayed with his mother in the Prosser trailer park once she returned to the United States. Alex testified that in November 1995, he left Washington with plans to go to Chicago, but ended up going to Connecticut. He testified that he moved to Mexico in 1998, stayed for about a year, and then returned to Connecticut where he continued to live until the charges in this case brought him back to Washington. Alex testified that the first he ever heard of the charges against him in Washington was in March 2019, when police came to his home looking for him and Eduardo. He denied meeting Detective Cantu at any time prior to 2019. He testified that his cousin Alejandro Martinez was a couple of years older than him and he believed he had lived in Prosser in 1995. He denied ever molesting Emiliano. In cross-examination, the State questioned Alex about a school record from Prosser High School that identified student “Alejandro S. Martinez.” RP (Trial) at 1304. The record listed Alejandro’s parent or guardian as Urbina Martinez, identified him as 14 No. 37343-6-III State v. Martinez living at the Highway 22 mobile home park address, and it reflected January 25, 1979, as the date of birth—the same date provided to Detective Cantu by the “Alejandro Martinez” interviewed in 1998. Alex testified that he could not say the record was incorrect but “it wasn’t me.” RP (Trial) at 1303. Eduardo testified after Alex. He testified he first left Washington in February 1996. He had dropped out of school, and Alex had driven from Connecticut to pick him up. In October 1997 he received the DUI in Connecticut and, fearful of problems the DUI could cause, he returned to Washington in February 1998 and lived with his mother. He testified that he remained in Washington for only four months. Eduardo denied having any knowledge of the investigation or pending case against him in Washington until sometime after his November 2018 auto accident. It was during the revived proceedings on his 1997 DUI that he learned about it from Connecticut law enforcement. He denied ever telling Detective Cantu that he fled Washington when he learned the police were looking for him; he testified that he only told Detective Cantu about fleeing Connecticut for Washington after being charged with the DUI. In questioning by Alex’s lawyer, Eduardo testified that he believed his cousin Alejandro Martinez was older than Alex, but could not say for sure. He did not know where the cousin had worked, other than that he was “basically working in the field.” RP (Trial) at 1328. 15 No. 37343-6-III State v. Martinez The jury found the brothers guilty as charged. Based on what was identified as a seriousness level for the charges of XII, Alex’s standard range was 93 to 123 months. The court sentenced Alex to a period of total confinement of 120 months and 24 months of community custody. He appeals. ANALYSIS I. ALEX DOES NOT DEMONSTRATE THAT THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING JOINDER Alex’s first assignment of error is that the trial court abused its discretion in granting the State’s motion to join the charge against him with the charges against Eduardo. CrR 4.3(b) allows two or more defendants to be joined in the same charging document under several circumstances. If joined under CrR 4.3(b), the charges against them are consolidated for trial unless the court orders severance. CrR 4.3.1. The State contends that joinder was proper under CrR 4.3(b)(3), which permits joinder even when conspiracy is not charged and all of the defendants are not charged in each count, if it is alleged that the several offenses charged: (i) (ii) were part of a common scheme or plan; or were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the others. In arguing that joinder was improper, Alex relies heavily on case law addressing the special prejudice that arises when evidence of a defendant’s prior sex crimes is 16 No. 37343-6-III State v. Martinez admitted under ER 404(b) on, e.g., “common scheme or plan” grounds. He argues that this special prejudice existed in the joint trial, since evidence of Eduardo’s rapes was admitted. But evidence of a defendant’s own prior crimes risks being used by jurors “to prove the character of a person in order to show action in conformity therewith,” hence the special rule limiting admissibility. ER 404(b). No legal authority is cited that evidence of a crime committed by a defendant’s family member, or friend, or cohort, presents a similarly special risk, and no rule specially prohibits such evidence. ER 404(b) has no application when evidence of a different person’s rapes has relevance in a case, although ER 403 could apply.8 8 All of the following cases relied on by Alex involve the need to exclude evidence of a defendant’s own prior acts under ER 404(b) and are inapposite: State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982) (“‘Once the accused has been characterized as a person of abnormal bent, driven by biological inclination it seems relatively easy to arrive at the conclusion that he must be guilty.’” (quoting M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 IOWA L. REV. 325, 333-34 (1956))); State v. Ramirez, 46 Wn. App. 223, 227, 730 P.2d 98 (1986) (“[A]n intelligent application of ER 404(b) is particularly important in sex cases.”); State v. Gresham, 173 Wn.2d 405, 433, 269 P.3d 207 (2012) (“When the support of RCW 10.58.090 is removed, we are . . . left with evidence admitted in violation of ER 404(b).”); State v. Sutherby, 165 Wn.2d 870, 886, 204 P.3d 916 (2009) (Had child pornography charges been severed, “highly likely” that its possession would have been excluded under ER 404(b).); State v. Carleton, 82 Wn. App. 680, 684, 919 P.2d 128 (1996) (“‘Evidence of prior misconduct is likely to be highly prejudicial.’” (quoting State v. Lough, 125 Wn.2d 847, 862, 889 P.2d 487 (1995))); State v. Gunderson, 181 Wn.2d 916, 925, 337 P.3d 1090 (2014) (The risk of unfair prejudice of a defendant’s prior acts of domestic violence is very high.). 17 No. 37343-6-III State v. Martinez Alex also argues on appeal that the trial court failed to heed Bluford because in analyzing the risk of undue prejudice to Alex it did not address the four factors analyzed in Bluford: “‘(1) the strength of the State’s evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial.’” 188 Wn.2d at 311-12 (quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994)). But Bluford, like Russell, was a joinder-of-offenses by a single defendant case, not a joinder-of-defendants case, as the four factors illustrate (“each count,” “each count,” “each count,” and “other charges”). As Russell explained, those factors relate to the risk of prejudice where an individual defendant offers different defenses to different counts, detracting from the credibility of the defenses, or where multiple charges against an individual defendant invite the jury to cumulate evidence or infer a criminal disposition. They are not necessarily the same risks of prejudice likely to be present in a joinder-of-defendants situation. Indeed, in Bluford, when the Supreme Court turned to the analysis of that joinder-of-offenses case, its overarching concern was ER 404(b). Recognizing this difference, both the State and Alex reasonably relied in their briefing to the trial court on a then-recent joinder-of-defendants case, State v. Moses, 193 Wn. App. 341, 359, 372 P.3d 147, review denied, 186 Wn.2d 1007 (2016). Moses involved child mistreatment that had been jointly charged against a husband and wife. As pointed out by the court, in the joinder-of-defendants context: 18 No. 37343-6-III State v. Martinez Specific prejudice may be demonstrated by showing: “(1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant’s innocence or guilt; (3) a co-defendant’s statement inculpating the moving defendant; (4) or gross disparity in the weight of the evidence against the defendants.” Id. at 360 (quoting State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995) (quoting United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985))). CanedoAstorga’s statement of the prejudice considerations in joinder-of-defendants cases had often been relied on by Washington courts, including by the Supreme Court. See State v. Emery, 174 Wn.2d 741, 753, 278 P.3d 653 (2012). Bruton9 concerns predominated in Moses. The defendant argued that his wife’s pretrial statement, which had been ruled admissible, inculpated him. The trial court disagreed and this court affirmed. The wife professed innocence, and statements she made that would be understood to refer to the defendant were not inculpatory. Moses, 193 Wn. App. at 359. In this case, the trial court observed that no Bruton issue was presented. While an incriminating statement from each of Alex and Eduardo would be admitted in evidence, neither statement incriminated the other brother. No party disagreed. 9 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). 19 No. 37343-6-III State v. Martinez As previously noted, the State pointed out in its briefing and argument that there were no antagonistic defenses. Alex did not identify any position Eduardo had taken in his first trial that would be problematic for his own defense. The only prejudice Alex identified to the trial court was that he would not know until the end of the State’s case whether Eduardo was going to testify. Turning to the evidence that Alex now argues would have been excluded if he had been tried separately, the State pointed out testimony at Eduardo’s aborted trial that Alex and Eduardo “took turns” with Emiliano and Julian. There was testimony that both Alex and Eduardo threatened their young stepbrothers. The rapes took place in the same opportunistic circumstance: when the young boys were left at home with their older stepbrothers while their parents worked. As in all cases of a child’s delayed report of sexual abuse, it was not only relevant but important to be able to present evidence why Emiliano’s allegation against Alex first came to light in 1998, and why he did not say anything to anyone earlier, especially when he had another older stepbrother who could presumably protect him. In the trial court’s written order granting joinder, the trial court alluded to the types of specific prejudice identified in Moses and found none of them present. Alex never argued in the trial court that there was a massive and complex quantity of evidence. He never argued in the trial court that there was a gross disparity in the weight of the 20 No. 37343-6-III State v. Martinez evidence against the defendants.10 The court’s order heeds Bluford’s clarification that prejudice must be considered before ordering joinder, finding that Alex did not identify any specific prejudice to him from a consolidated trial. Despite relying on Moses in the trial court, Alex now argues it was error for the trial court to rely on it. He argues that Moses addressed severance, not joinder, so it should not be relied on after Bluford. But Bluford supports the relevance of severance cases. It characterized pretrial joinder and severance as “often ‘six of one, half dozen of the other’ because the issues are so closely related.” 188 Wn.2d at 309. It observed that “[e]ver since Washington first allowed for the joinder of offenses, our courts have recognized the close relation of joinder and severance” and “we have typically analyzed joinder and severance together.” Id. at 307-08. As Bluford points out, the salient differences are that if charges are joined in the original charging document, asking for severance is the defendant’s only course of action, and because joinder in forwardlooking, review of a joinder ruling looks at only facts known to the judge at the time of the ruling, not those developed later. Id. at 310. Alex’s final challenge is that the trial court applied an incorrect balancing test after Bluford when it stated in its order, the resisting party “must . . . demonstrate that joinder 10 He does argue for the first time on appeal that the case against Eduardo was stronger. But the State had a written confession from Alex, with Detective Cantu’s identification of him as the individual who provided it. It had no confession from Eduardo. 21 No. 37343-6-III State v. Martinez is ‘manifestly prejudicial,’ and thus outweighs the substantial interest in joinder.” Br. of Appellant at 14-16. But Alex argued for a virtually identical balancing test in his briefing to the trial court. See CP at 5, 13-17. Alex’s trial lawyer evidently did not see daylight between Moses’s language about balancing “manifest prejudice” against a “substantial interest in joinder,” and Bluford’s language about balancing “clear, undue prejudice” against “important considerations of economy and expedition in judicial administration.”11 He described them to the trial court as “similar” tests. Id. at 5. While we would be disposed to use Bluford’s language as the most recent and controlling statement of the required balancing, Alex does not demonstrate that speaking of “manifest prejudice” rather than “clear, undue prejudice” was error. If it had been error, it was invited. Cf. City of Seattle v. Patu, 147 Wn.2d 717, 721, 58 P.3d 273 (2002) (erroneous jury instruction was invited error). No abuse of discretion in ordering joinder is shown. 11 Bluford provided the following statement of how the competing interests are balanced: [I]f joinder will cause clear, undue prejudice to the defendant’s substantial rights, no amount of judicial economy can justify requiring a defendant to endure an unfair trial. However, where the likely prejudice to the defendant will not necessarily prevent a fair trial, “‘the court must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.’” 188 Wn.2d at 311 (quoting State v. Smith, 74 Wn.2d 744, 755, 446 P.2d 571 (1968) (quoting, in turn, Drew v. United States, 331 F.2d 85, 88 (1964)), overruled in part on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975). 22 No. 37343-6-III State v. Martinez We affirm the conviction and remand for resentencing. A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered II. THE TRIAL COURT’S LIMITATION OF VOIR DIRE WAS NOT CONSTITUTIONAL ERROR OR A REVERSIBLE ABUSE OF DISCRETION Alex next assigns error to the trial court’s ruling preventing defense counsel from questioning members of the venire about their attitude toward illegal immigration. Part way through voir dire, outside the presence of the jury, Eduardo’s lawyer asked if he could question whether prospective jurors held strong feelings about people being in the United States illegally. Alex’s lawyer joined the request, observing that the country appeared politically divided on the topic and the questioning could reveal prejudices. Asked by the court why it was relevant, the defense lawyers suggested that the back story of the defendants and victims suggested they were in the country illegally; Detective Cantu’s interview of Alejandro at the fruit warehouse would lead to discussion of the use of false names by undocumented workers; and the defense may rebut the allegation of flight with evidence of the defendants’ fear of deportation. The defense lawyers also argued that the questioning could serve as a proxy for questions about racial bias, since people are defensive when asked outright about racial bias and tend not to 23 No. 37343-6-III State v. Martinez provide helpful information. Neither defense lawyer had specific proposed questions, although both suggested that asking about Donald Trump’s promise to build a border wall with Mexico would be a way to ferret out the jurors’ attitudes. The trial court heard considerable argument and even continued consideration of the issue overnight, allowing the defendants to further address it the following morning. It ultimately ruled that it would not allow inquiry into prospective jurors’ attitudes about illegal immigration, but would allow the lawyers to inquire whether venire members had any prejudice against those of Hispanic descent or ethnicity. It explained it had reviewed ER 413 and was satisfied that none of the evidence identified by defense counsel went to the bias or prejudice of a witness, nor was immigration status an essential fact to prove an element of, or defense to, the offenses charged. In assigning error to the court’s ruling, Alex does not challenge it as an abuse of discretion but only as violating his constitutional right to a fair trial by an impartial jury. The right to trial by jury includes the right to an unbiased and unprejudiced jury. U.S. CONST. amend. VI, XIV; WASH. CONST. art. I, § 22. The state constitutional right to an impartial jury does not provide any greater protection than the federal constitutional right. State v. Munzanreder, 199 Wn. App. 162, 174, 398 P.3d 1160, review denied, 189 Wn.2d 1027 (2017); State v. Rivera, 108 Wn. App. 645, 648 n.2, 32 P.3d 292 (2001). In noncapital cases, the United States Supreme Court has found the constitutional right to an impartial jury to require that a defendant be allowed to question prospective 24 No. 37343-6-III State v. Martinez jurors about racial bias in only narrow circumstances. In Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973), the Court held that Ham was constitutionally entitled to require the asking of a question specifically directed to racial prejudice “under the facts shown by this record.” Id. at 527. Several years later, in Ristaino v. Ross, 424 U.S. 589, 597, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976), the Court clarified that because Ham was a prominent civil rights activist and defended against a charge of possessing marijuana on the basis he had been framed for his civil rights activities, “[r]acial issues . . . were inextricably bound up with the conduct of the trial.” It observed that Ham’s reputation as an activist and the defense he interposed “were likely to intensify any prejudice that individual members of the jury might harbor.” Id. The Court in Ristaino held that petitioner Ross, who was Black, had no constitutional right to pose similar questions to prospective jurors in his prosecution for violent crimes against a white security guard. The circumstances “did not suggest a significant likelihood that racial prejudice might infect [his] trial.” Id. at 598. The Court rejected a per se rule that would require defense counsel to be allowed to specifically question prospective jurors about racial prejudice in cases in which the defendant was a different race from the victim, or because of the race of his own or adverse witnesses. Id. at 596 n.8. It reasoned that “policy as well as constitutional considerations militate against the divisive assumption as a per se rule that justice in a court of law may turn 25 No. 37343-6-III State v. Martinez upon the pigmentation of skin [or] the accident of birth.” Id. (citing Connors v. United States, 158 U.S. 408, 415, 15 S. Ct. 951, 39 L. Ed. 1033 (1895)). Given the narrowness of the constitutional right to specifically question about racial bias, a federal court’s denial of a defendant’s request for such questioning is almost always challenged as an abuse of discretion under nonconstitutional rules. In Ristaino, the Court had observed in a footnote that exercising its supervisory authority, it would have required the questioning that Ross requested. Id. at 598 n.9. It pointed to its decision in Aldridge v. United States, 283 U.S. 308, 51 S. Ct. 470, 75 L. Ed. 1054 (1931), as one in which it had reversed the conviction of a Black man for the murder of a white policeman because of the court’s refusal to question the venire about racial prejudice, without grounding the outcome on any constitutional requirement. Id. a 597-98 nn.9 & 10. In Rosales-Lopez v. United States, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981), the Court again stated that because there is no constitutional presumption of juror bias for or against members of any particular racial or ethnic group, there is no constitutional rule requiring inquiry as to racial prejudice in every prosecution of a defendant who is a member of such a group. Id. at 189-90 (citing Ristaino, 424 U.S. at 597). Only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court’s denial of a defendant’s request to examine the jurors’ ability to deal 26 No. 37343-6-III State v. Martinez impartially with this subject amount to an unconstitutional abuse of discretion. Absent such circumstances, the Constitution leaves it to the trial court, and the judicial system within which that court operates, to determine the need for such questions. Id. at 190. Turning to the federal supervisory rule, the opinion in Rosales-Lopez observed that if a defendant claims a meaningful ethnic difference between himself and the victim, a request to conduct voir dire into racial prejudice should ordinarily be granted. Id. at 191 n.7. It held that “[f]ailure to honor [the defendant’s] request, however, will be reversible error only where the circumstances of the case indicate that there is a reasonable possibility that racial or ethnic prejudice might have influenced the jury.” Id. at 191. For the first time on appeal, Alex contends that the questioning he and Eduardo sought to pursue falls within categories for which, he contends, such questioning is mandated by State v. Frederiksen, 40 Wn. App. 749, 700 P.2d 369 (1985). Frederiksen makes passing reference to the right to an impartial jury, but it involved an abuse of discretion challenge and relies on a federal abuse of discretion case, United States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983) and ultimately on United States v. Robinson, 475 F.2d 376, 380-81 (D.C. Cir. 1973).12 12 See Perez v. Prunty, 139 F.3d 907 n.2 (9th Cir. 1998) (unpublished) (pointing out that States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983), “did not announce a constitutionally-compelled rule,” but was authorized by the court’s supervisory powers). 27 No. 37343-6-III State v. Martinez We could end our analysis here, because Alex did not assign error to an abuse of discretion, only a constitutional violation. No constitutional violation has been shown. Because the trial court’s consideration of the defendants’ request should not have ended with consideration of ER 413, however, we address the trial court’s exercise of its discretion. The trial court justified its limitation on voir dire based on ER 413’s limits on the admissibility of evidence of a party’s or witness’s immigration status. The fact that the defendants could not point to any evidence of immigration status admissible under ER 413 was a relevant consideration, but depending on the case, it would not be the only consideration. The trial court erred in not recognizing that it was required to more broadly consider any real possibility that racial or ethnic prejudice might influence the jury. Alex and Eduardo reasonably contended that even in a trial conducted in conformity with ER 413, jurors would infer that they were undocumented. Since the evidence rules would not protect them from a risk of juror bias, they deemed voir dire and their ability to exercise peremptory challenges as their best protection. Another, similarly-situated defendant might decide against highlighting the issue in voir dire. But Alex’s and Eduardro’s position was a rational one, and when a defendant faces a foreseeable risk that admissible evidence will suggest that they are undocumented, a trial court should respect the defendant’s concern. 28 No. 37343-6-III State v. Martinez Careful thought should be given to how such voir dire will be conducted, however, and here, Alex and Eduardo’s request fell short of what a trial court is reasonably entitled to expect. Even given the opportunity to refine and support their request overnight, they never provided the court with proposed questioning other than to suggest asking jurors their attitudes about former President Trump’s border wall. Questioning of that sort would have politicized voir dire, presenting its own problems for the fairness of the trial.13 E.g., State v. Loughbom, 196 Wn.2d 64, 69–70, 470 P.3d 499 (2020) (“Justice can be secured only when a conviction is based on specific evidence in an individual case;” “We do not convict to make an example of the accused, we do not convict by appeal to a popular cause”). The questions should be framed in narrow terms, avoiding politics. In Rosales-Lopez, for example, in which a defendant of Mexican descent was prosecuted for his alleged participation in a plan by which three Mexican residents were illegally brought into the United States, questioning untied to partisan politics was permitted. 451 U.S. at 185-86.14 13 Politicizing voir dire by discussing border security was argued to be reversible error in State v. Zamora, No. 37019-4-III, slip op. at 32-34 (Wash. Ct. App. June 8, 2021) (unpublished), available at https:///www.courts.wa.gov/opinions/pdf/370194_unp.pdf, review granted in part on this issue, 198 Wn.2d 1017 (2021). Questions posed in Rosales-Lopez, which was tried in 1979, were, “Do any of you have any feelings about the alien problem at all?” and “Do any of you have any particular feelings one way or the other about aliens or could you sit as a fair and impartial juror if you are called upon to do so?” 451 U.S. at 186. 14 29 No. 37343-6-III State v. Martinez A trial court has considerable discretion to direct voir dire “with reasonable expedition.” Frederiksen, 40 Wn. App. at 753. The trial court allowed the defendants to question prospective jurors about prejudice against persons of Hispanic descent or ethnicity. Here, not having been presented with any carefully crafted questions, the trial court could reasonably perceive the request for permission to question jurors about former President Trump’s border wall with Mexico as “a vague, speculative inquiry to see if [counsel] could unearth something prejudicial.” Id. at 755. Clearly no violation of Alex’s constitutional right to an impartial jury was demonstrated. Nor does Alex assign error to or demonstrate a prejudicial abuse of discretion by the trial court. III. THE COURT DID NOT ABUSE ITS DISCRETION IN RULING ON THE STATE’S “CONSCIOUSNESS OF GUILT” MOTION IN LIMINE Alex’s next assignment of error challenges a ruling made in the course of addressing a State motion in limine seeking permission to offer evidence of what it characterized as the defendants’ flight and Alex’s use of an “alias,” as reflecting consciousness of guilt. CP at 473-75. The State’s proposed evidence of use of an alias was that Alejandro began using the names Alex Ocampo and Alex Ocampo Martinez after learning from Detective Cantu that the results of the detective’s investigation would be forwarded to the prosecutor for possible prosecution. 30 No. 37343-6-III State v. Martinez In responding to the State’s motion, Alex’s lawyer made it clear that Alex would himself present evidence that he used the names Alex Ocampo and Alex Ocampo Martinez, just as he had in the prior trials. He took the position that these were his name. Accordingly, the admissibility of evidence of Alex’s use of the names was never disputed. In what amounted to a countermotion in limine, Alex argued that the State was laboring under a misunderstanding of Hispanic naming conventions in attaching any significance to Alex’s use of the names. He argued that this was culturally insensitive, if not racist, and the State should be precluded from arguing that Alex began using the names after 1998 to evade apprehension. The State responded that it was not being disrespectful of Alex’s cultural heritage but it was a fact that by using different iterations of his name, Alex had avoided coming to the attention of law enforcement for many years. The court ruled, “Both sides have an opportunity to argue their positions to the jury.” RP (Trial) at 316. It is this ruling that is being challenged by Alex. Most of the consciousness of guilt cases on which Alex relies are inapposite because the defendants in those cases were arguing for the exclusion of evidence, they were not arguing that the evidence was admissible but an inference was foreclosed. See State v. Freeburg, 105 Wn. App. 492, 499, 20 P.3d 984 (2001) (defendant objected to evidence that he was carrying a handgun at the time of his arrest); State v. McDaniel, 31 No. 37343-6-III State v. Martinez 155 Wn. App. 829, 838, 855, 230 P.3d 245 (2010) (defendant objected to evidence that he attempted to elude when police, seeking to arrest him on warrants, tried to pull over the car in which he was a passenger and did not cooperate after the stop); State v. Smith, 55 Wn.2d 482, 484, 348 P.2d 417 (1960) (defendant objected to the fact that evidence of her unproved aliases was inadvertently provided to the jury). State v. Cartwright, 76 Wn.2d 259, 263, 456 P.2d 340 (1969), is also cited by Alex; it is different and frankly unhelpful to him. In that case, several witnesses testified to conduct by Cartwright, but referred to him as Martin, the name by which they knew him. Cartwright did not challenge the fact that the witnesses were allowed to testify and refer to him by the name Martin, but did challenge the trial court’s refusal to give a jury instruction that he had the right to use a different name without incurring an inference of criminality. Id. at 263-64. The Supreme Court held that it was not error to refuse to give the requested instruction. Alex cites two cases for the proposition that it is improper to infer guilt or criminal activity from racist misconceptions: State v. Monday, 171 Wn.2d 667, 678-79, 257 P.3d 551 (2011), and State v. Barber, 118 Wn.2d 335, 346-47, 823 P.2d 1068 (1992). But he does not point to any racist misconception that was advanced by the State. Although the State used the word “alias” in its motion in limine, it never used that word to refer to Alex’s use of his paternal surname when the jury was present. Alex does not identify 32 No. 37343-6-III State v. Martinez anywhere in the record where the State questioned, let alone denigrated, Hispanic naming conventions. In fact, it was through Detective Cantu that Alex’s lawyer presented evidence of Hispanic naming conventions. In response to Alex’s lawyer’s questions, Detective Cantu testified that “typically in my culture, you take the father’s last name.” RP (Trial) at 836. Detective Cantu agreed with Alex’s lawyer that sometimes a Hispanic person’s surnames get inverted through no fault of their own, with the detective adding that “I think we here in the U.S. are the ones that do that because perhaps we don’t understand how it’s being utilized.” RP (Trial) at 836. The State was able to demonstrate that all of the documents Alex pointed to as identifying him as Alex Ocampo or Alex Ocampo Martinez were created after 1998.15 Detective Cantu testified that the name Benton County used in investigating was Alejandro S. Martinez, and Alex’s use of the names Alex Ocampo and Alex Ocampo Martinez made it more difficult to locate him. Alex does not demonstrate that the trial court abused its discretion in allowing the State to argue that jurors could infer consciousness of guilt from name changes that foreseeably added difficulty to Alex’s apprehension. Alex offered his Mexican passport, birth certificate, driver’s licenses (Connecticut and Washington), and marriage license. 15 33 No. 37343-6-III State v. Martinez IV. ALEX DEMONSTRATES THAT RESENTENCING IS REQUIRED Finally, Alex points out that several sentencing errors were made because the parties and the court overlooked the need to apply the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, as in effect in 1995, when the crime occurred. Most serious is a failure to take into consideration the earlier and more lenient seriousness level and associated sentencing range for the crime. RCW 9.94A.345 commands, “Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.” State v. Jenks, 197 Wn.2d 708, 715, 487 P.3d 482 (2021). The plain language is unambiguous. Id. RCW 9.94A.345 applies to all sentences imposed under “this chapter,” meaning the SRA. Id. Application of prior law is also required by the saving clause provided by RCW 10.01.040.16 In increasing the seriousness level of first degree rape of a child in 1997, the legislature expressed no intent that the change should apply retroactively. LAWS OF 1997, ch. 340, §§ 1-4. RCW 10.01.040 applies to 16 RCW 10.01.040 provides: Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein. 34 No. 37343-6-III State v. Martinez substantive changes in the law, not procedural ones, and changes to criminal punishments are substantive. Jenks, 197 Wn.2d at 721. Alex was convicted of committing first degree rape of a child in violation of former RCW 9A.44.073 (1988) on or about August 1, 1995 to October 30, 1995. In 1995, a conviction of first degree rape of a child carried a seriousness level of XI. Former RCW 9.94A.320 (1995) (presently codified at RCW 9.94A.515). He had no prior criminal history. Under the sentencing grid applicable in 1995, the standard range sentence for an offender score of zero was 78 to 102 months. Former RCW 9.94A.310 (1995) (presently codified at RCW 9.94A.510). The State concedes that Alex was sentenced based on an assumed sentencing range of 93 to 123 months, that the 120month sentence imposed by the trial court exceeds the high end of his correct sentencing range, and that resentencing is required. Alex argues a remand is required to correct other errors in his judgment as well, including the imposition of legal financial obligations that were not authorized in 1995. The State concedes some but not all of these alleged additional errors. Since a full resentencing will be required to apply the correct standard range, we decline to address other corrections that might be required. The parties can present their positions on proper judgment terms to the sentencing court. 35 No. 37343-6-III State v. Martinez We affirm the convictions and remand for resentencing. Siddoway, C.J. WE CONCUR: _____________________________ Fearing, J. _____________________________ Pennell, J. 36
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