State v. Carballo

HAZELRIGG, J.

PUBLISHED OPINION

— Cesar Chicas Carballo and his co-defendant were both convicted of first degree murder and conspiracy to commit first degree murder following a joint jury trial. The co-defendant's girlfriend was the key witness in the State's case and provided a detailed account of the crime and its planning. Requests from both defendants to cross-examine her about her immigration status as it related to a possible motive to lie were considered in the context of ER 413, but denied. Chicas Carballo appealed, arguing the court improperly allowed un-redacted statements by his co-defendant in violation of Chicas Carballo's right to confrontation under United States v. Bruton. He further asserts that the denial of his request to explore immigration matters as to this critical witness violated his Sixth Amendment right to present a defense. Because the court's rulings on the ER 413 issue constitute reversible error, we need not reach Chicas Carballo's other challenges on appeal. We reverse and remand for a new trial.

In April of 2016, a couple saw a body on a street in Tacoma and called 911. Police responded to the area soon after and located a man, later identified as Samuel Cruces Vasquez, bleeding heavily, but alive. There was a sport utility vehicle (SUV) parked nearby that was still running with its driver door open and blood inside the vehicle. There was also a butterfly knife on the ground, blue latex gloves inside the SUV, and a shoe pinched between the SUV and another vehicle. Cruces Vasquez was later pronounced dead at the hospital.

About three weeks after the incident, a witness contacted police and told them what he had observed. The witness explained that he was driving when someone exited a car and signaled for him to stop. He stated that he kept driving out of safety concerns. He looked in his rearview mirror as he drove away and saw two people emerge from the vehicle. He said one of them beat the person who had signaled him to stop.

Surveillance footage from a nearby business captured some of the events that night. In one video, a woman, later identified as Mayra Karina Calderon Flores, could be seen walking on the street and another individual later walked to the SUV. After that, there appeared to be movement inside the SUV. Cruces Vasquez could be seen exiting the SUV and was then run over by an unidentified car. The autopsy revealed Cruces Vasquez had been stabbed eight times and suffered blunt trauma injuries. Blood from the knife found on the ground matched Cruces Vasquez's DNA. The shoe located between the vehicles was connected to Jose Jonael Ayala Reyes by his own admission and DNA from inside a latex glove found in the vehicle was identified as that of another man involved in the incident. None of the physical evidence collected in the case was linked to Cesar Chicas Carballo.

Investigation determined that Cruces Vasquez had clocked out of work at 10:10 p.m. on the night of the crime and that he had received numerous calls and texts from Ayala Reyes' phone number. Ayala Reyes and Cruces Vasquez had worked together at a pizza restaurant. Earlier in April, Cruces Vasquez' brother helped Ayala Reyes get a bus ticket to California. Ayala Reyes had told Cruces Vasquez' brother that he was in the MS-13 gang and that he provided money to people in California when he received his paychecks. He said the amounts were around $20 or $30. Ayala Reyes claimed the money was later sent by the gang members in California to El Salvador.

Ayala Reyes was taken into custody in July 2016. He admitted to being one of a number of participants in the stabbing of Cruces Vasquez, but didn't provide names of the others involved. Ayala Reyes acknowledged the knife found at the scene was his and that he had stabbed Cruces Vasquez one time in the leg, but denied killing him. He also claimed that Cruces Vasquez sold drugs.

Ayala Reyes was dating Flores. Flores was also questioned by police about the stabbing. After extensive police interrogation, Flores provided the street names of the individuals involved: Sombra, Tas, and Sicario. After police showed her a photo of Chicas Carballo, Flores identified him as the individual named Tas. Flores' identification of the suspects by name and photograph, and the further explanations she provided, did not occur until police threatened to arrest her and indicated she might be removed from the United States if she didn't tell them what occurred. Flores similarly identified Juan Jose Gaitan Vasquez as Sombra. The DNA from the blue gloves recovered at the crime scene was linked to Gaitan Vasquez and he separately pleaded guilty to charges stemming from Cruces Vasquez' death. A detective with the Tacoma Police Department later identified Sicario as Edenilson Misael Alfaro.

At trial, Flores testified that Ayala Reyes sent money to Sicario to support gang activity. She explained that he sent the money "[b]ecause of drugs . . . [Ayala Reyes] had" and she later turned over money transfer receipts to law enforcement. The receipts indicated that Ayala Reyes wired money to Chicas Carballo in California in amounts of $200, $300, and $260 on June 6, 25, and July 7 of 2016.

Flores testified that Ayala Reyes rented an apartment in April 2016 and that she was present in the apartment when she heard him talking with Tas, Sombra, and Sicario about killing Cruces Vasquez. Flores claimed that all of the individuals involved were members of MS-13. She described Sicario as the "main one." Flores had never seen Sicario prior to the date she heard them discussing the plan. She further testified that Ayala Reyes went to California a few weeks before the killing and met with Sicario because of drugs. She asserted that the apartment had been rented when Ayala Reyes returned from California specifically so that gang members could come there, but that it was also intended as the residence for her and Ayala Reyes.

Flores said on the day of the attack on Cruces Vasquez, Ayala Reyes was picked up by three men in a truck. She later went to the apartment and, while cooking for them, heard the four men discussing how they would kill Cruces Vasquez. s to the prosecutor for filing against him. Id. Orn's examination of the victim on this matter was limited to one question, which left the jury with incomplete information and potentially incorrect inferences from which to assess the witness' credibility. Id. at 918, 921. The victim was a key witness for the State as "the only testifying eyewitness to the shooting" and, as such, the Supreme Court found the trial court abused its discretion as to the evidentiary ruling, which resulted in a violation of Orn's Sixth Amendment rights. Id. at 921-22. However, the error was ultimately deemed harmless in light of the wealth of other "[u]ncontradicted evidence [which] linked Orn to the shooting." Id. at 923 (alterations in orginal).

As in Grant and Orn, the court here was aware that the evidence sought by the defense was highly relevant. Chicas Carballo's counsel made the midtrial request to explore Flores' immigration status after much of her direct examination had been presented. His request was discussed outside the presence of jury and he reiterated his specific focus on Flores' potential motive to lie based on threats of deportation by law enforcement during her original interview with detectives. The court indicated its position that no new information had been presented since it had issued the conditional ruling on Ayala Reyes' pretrial motion. Chicas Carballo's attorney responded by stating, "I think it's very relevant that she would stick to her guns for 234 pages [of transcribed statements] that she didn't know anything, and after threats of jail and immigration issues and leading questions[,] she finally remembers something."

The court stated it was unwilling to alter its prior ruling unless new information came to light, which clearly demonstrates that the first ruling was not final. In response to the midtrial request by Chicas Carballo, the court said, "Unless she says something different today, or the reason I made this up is because I was threatened by deportation, that wouldn't appear to be new information." The State appeared to recognize that some of the information about her status was already before the court and said Flores was unlikely to say anything because she was concerned about immigration issues. This comment by the State, coupled with its later request to explore Flores' status for different reasons in its own examination, suggests that this topic was highly relevant to the case and that Chicas Carballo should have been allowed to explore such in the furtherance of his defense. It also reinforces that the court and the State both had the benefit of the same information that would have been provided in an offer of proof if Chicas Carballo had precisely complied with the procedural requirements of ER 413. This further highlights the lack of prejudice to the State from Chicas Carballo's request to explore the motive to lie as it related to his ability to put on a defense.

In her testimony, Flores conceded to lying and even went so far as admitting during cross-examination that she was fearful she might be arrested and that she was pregnant and did not "want something bad for [her] son." Had she been confronted with the deportation threat and its applicability to her because of her immigration status, a jury could reasonably find that her fear of arrest and for her son's welfare was related to the threat of deportation by police and the corresponding risk of her son's birth in a country she had chosen to leave, rather than in the United States. This is a powerful motive to lie, particularly after dishonesty had been demonstrated by extensive and effective impeachment of this critical witness. Without evidence of a possible motive for Flores' untruthfulness, the impeachment lacked its sting. This ruling also left the State in a much better position to suggest general fear as justification for her motive to change her story when talking to detectives, despite the fact that the court, State, and defense were all were aware that her immigration status was woven throughout the facts of the case. Chicas Carballo was deprived of the opportunity to introduce evidence to rebut or challenge the State's characterization of the reasons for her untruthfulness.

The trial court appeared unwilling to engage in reweighing the relevance and potential prejudice when Chicas Carballo asserted that Flores' motive to lie, fear from a police threat based on her immigration status, was critical to his defense. As with the evidence of bias in Orn and alibi testimony in Grant, the evidence Chicas Carballo sought was highly relevant and the prejudicial effect on the State was comparatively low in terms of the overall fairness of the trial. Further, concern as to prejudice is undercut by the fact that many of those involved in this case were immigrants. Even if not expressly identified as such to the jury, testimony by various witnesses about El Salvador and the fact that the defendants and Flores participated in the trial with the assistance of interpreters could have led any of the seated jurors to reasonably speculate that several of the trial participants may be immigrants. Therefore any fear of generalized anti-immigrant prejudice by the jury would cut against those parties equally, but most particularly against the defendants. The State recognized how integral immigration was to the case when it sought permission to discuss Flores' experiences in El Salvador prior to coming to the United States. However, the court warned that doing so would open the door for the defense to cross-examine her about her status, so the State withdrew its request. The mere fact of the State's request, and proffered reasoning, is telling as to the strong probative nature of this realm of testimony which was restricted by the trial court.

This court recently considered the denial of a defense request to introduce evidence of immigration status in State v. Bedada, 13 Wn. App. 2d 185, 463 P.3d 125 (2020). Bedada also involved a trial that occurred shortly after ER 413 had become effective. In that case, we considered the ability to present a defense in light of limits the court placed on cross-examination as to immigration status, concluding that the trial court failed to weigh the probative value against the prejudicial nature of such evidence. Id. In Bedada, the defendant sought to introduce evidence of his own immigration status in order to establish a motive to lie by the victim, his wife, based on her desire to have him removed from the country. Id. at 188-90. When first discussed in motions in limine, the trial court found that it would be unduly prejudicial to the State to have the defendant's immigration status known as the jury might focus on his potential deportation and did not find that the information was relevant. Id. at 190-91. Bedada did not file the requisite pretrial motion to introduce the evidence under ER 413. Id. at 195.

The issue was revisited during trial and defense explained the relevance was due to a motive to fabricate. However, the trial court indicated it was a balancing issue and that neither immigration status nor consequences were relevant. Id. at 191-92. We held that the information was highly relevant and the trial court's failure to properly weigh the proffered evidence was an abuse of discretion. Id. at 204. Our analysis reinforced that the State bears the burden to establish that the evidence sought would be so prejudicial as to disrupt the fairness of the fact-finding process. Id. at 201. Like the case at hand, the trial court in Bedada provided no justification for its conclusion that the evidence was not relevant. Id. at 200.

As with Grant and Orn, Bedada also guides our review here. Chicas Carballo sought to introduce evidence of the key witness' motive to fabricate. The State even admitted in their closing that Flores did not voluntarily provide her story to police. As in Bedada, no one disputed whether the evidence was reliable and the trial court here similarly failed to engage in the necessary analysis. Id. at 201. The State does not argue prejudice in this case and focuses instead on the relevance of the information. The trial court seems to have proceeded with caution in its application of the newly effective ER 413 and improperly placed the burden on Chicas Carballo. This was a misapplication of the standard.

Additionally, the record before us demonstrates that there was no discussion of a limiting instruction as to the evidence sought by the defense, nor does it appear the final subsection of ER 413(a) was considered by the court in any of its rulings on the matter. ER 413(a)(5) provides, "Nothing in this section shall be construed to exclude evidence that would result in the violation of a defendant's constitutional rights." The ability to provide the motive to fabricate after the key witness admits to being untruthful is critical for the defense in a case in which the State's theory relied so heavily on that witness' credibility. Flores was intimately involved with the co-defendant and was captured on security footage near the scene shortly before Cruces Vasquez was attacked. She was the only live witness whose credibility could be directly assessed by the jury and who tied Chicas Carballo to the events surrounding Cruces Vasquez' death. After defense attacked Flores' credibility in closing, the State focused its rebuttal argument on the various reasons she was credible, how she should be understood as truthful, and generally attempting to rehabilitate her after her admissions of lying to police.

"[T]he right to present evidence of a witness's bias is essential to the fundamental constitutional right of a criminal defendant to present a complete defense, which encompasses the right to confront and cross-examine adverse witnesses." Orn, 482 P.3d at 919 (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105 (1974); Chambers, 410 U.S. at 294; Jones, 168 Wn.2d at 720; Darden, 145 Wn.2d at 620). Violation of the right to present a defense and to confront witnesses is constitutional error. Jones, 168 Wn.2d at 724-25. "Constitutional error is presumed prejudicial and the State bears the burden of showing the error was harmless beyond a reasonable doubt." State v. Chambers, 197 Wn. App. 96, 128, 387 P.3d 1108 (2016).

The State has not met its burden of establishing that the error was harmless. In Orn, the Supreme Court held that even if the key witness had not testified at all, in light of the entire record, the trial outcome would have been the same due to the "uncontradicted evidence" linking Orn to the crime. 482 P.3d at 923. The record before us, however, is strikingly different. Ayala Reyes did not expressly name Chicas Carballo as one of the perpetrators in his statements to police, there was no DNA or other physical evidence to connect Chicas Carballo to the scene, and he was not identified in the security footage that was introduced. At oral argument before this court, the State reiterated that Flores was the key witness to implicate Chicas Carballo in the murder. Absent Flores' testimony, the only evidence remaining as to Chicas Carballo's possible connection to the murder or conspiracy were phone records showing that he had communicated with Ayala Reyes and the money transfer receipts between them. As such, we cannot conclude that this error was harmless. In light of the violation of Chicas Carballo's right to present a defense, and State's failure to demonstrate that this error was harmless beyond a reasonable doubt, we reverse and remand for a new trial.

/s/_________ WE CONCUR: /s/_________ /s/_________