State v. Alvarez , 45 Wash. App. 407 ( 1986 )

Munson, J.

—Miguel Alvarez appeals a judgment entered on a jury verdict in which he was found guilty as an accomplice to first degree murder in the death of Lupe Mendez and not guilty as an accomplice to second degree murder in the death of Gabriel Mendez. We affirm, after discussing the assignments of error seriatim.

The record supports the following facts, although there is a great deal of conflict in the testimony. Late in the evening of July 1, 1984, the defendant and his brother, Jose, also known as Popo, were involved in a heated argument at a tavern with one of the victims and another individual. After the tavern closed, the Alvarez brothers went to the residence where the shooting later occurred and made inquiries about the victims. When Serafín Martinez advised them the Mendezes were not there, Popo stated they were looking for them in order to kill them. The defendant and his brother then left.

They returned 30 minutes later; both were armed with handguns. They located the victims in a bedroom. Immediately prior to shots being fired, Popo made the statement: "We came to kill you." No objection was raised to admission of this statement; it was corroborated by another witness present during the murders.

While Mr. Martinez was the only witness to establish the defendant returned with Popo and entered the bedroom, other testimony and physical evidence recovered by police were consistent with his testimony. Two women, present in the bedroom during the murders, acknowledged the defendant may have been there, although they could not specifically recall seeing him. One woman was admittedly drunk at the time; the other's attention was drawn to Lupe Mendez.

Further, Mr. Martinez's account of the shootings was consistent with that of the two women in several significant respects so as to corroborate his presence when the murders occurred. All three witnesses agreed Popo shot Lupe Mendez. The fact the women did not recall Mr. Martinez being in the bedroom at that exact moment of the shootings can be attributed to the same reasons they did not recall seeing the defendant. Moreover, 10 shell casings were found at the scene of the crime. Eight of the casings were .22 caliber; the other two appeared to be .32 caliber. Seven bullets retrieved from the bodies of the victims and one found on the bed apparently came from the same .22 caliber weapon. This supports Mr. Martinez's testimony that both the defendant and his brother were armed and two weapons were fired.

First, Mr. Alvarez assigns error to the trial court's allowing testimony of the statement his brother, Popo, allegedly made in his presence on the first occasion the Alvarez brothers came to the residence. The court overruled the defendant's objection to this testimony after determining the out-of-court statement provided circumstantial evidence of the declarant's (Popo's) then existing state of mind. The court further found Popo unavailable, that the statement was spontaneous and trustworthy in the sense it was against penal interest, and it was corroborated by the declarant's undisputed involvement in the homicides 30 minutes later.

Out-of-court statements which tend to prove a plan, design, or intention of the declarant are admissible under ER 803(a)(3).¹ See generally 5A K. Tegland, Wash. Prac., Evidence § 364 (1982 & Supp. 1986). Here, Serafín Martinez's testimony was admissible as tending to prove the underlying offense for which the defendant was charged as an accomplice; i.e., Popo's intention to kill the victims and his premeditation to do so. The statement, likewise, tended to establish the accused's knowledge of that crime, assuming the jury chose to believe he was present when the statement was made, standing within 3 meters of the declarant, and overheard it. See United States v. Sears, 663 F.2d 896, 904 (9th Cir. 1981); see also K. Tegland § 336. For this purpose, the evidence is not subject to challenge as hearsay. K. Tegland § 336; see also State v. Mounsey, 31 Wn. App. 511, 522 n.3, 643 P.2d 892, review denied, 97 Wn.2d 1028 (1982); State v. Haga, 13 Wn. App. 630, 637, 536 P.2d 648, review denied, 86 Wn.2d 1007 (1975), cert. denied, 425 U.S. 959, 48 L. Ed. 2d 204, 96 S. Ct. 1740 (1976).

Popo's statements were evidence of his present existing state of mind shortly before the murders and "appear to have been made in a natural manner and not under circumstances of suspicion." Ford v. United Bhd. of Carpenters, 50 Wn.2d 832, 837, 315 P.2d 299 (1957); see also State v. Smith, 85 Wn.2d 840, 854, 540 P.2d 424 (1975). Likewise, their admission was necessary because the declarant was admittedly unavailable; "there is [also] circumstantial probability of [their] trustworthiness," since the declarant returned to the residence, in the company of this defendant, for the purpose indicated by his earlier statement. Raborn v. Hayton, 34 Wn.2d 105, 108-09, 208 P.2d 133 (1949).

Although Mr. Alvarez claimed he was not present when the statements were allegedly made, this contention goes to the weight of Mr. Martinez's testimony rather than its admissibility. By the same token, whether there was, in fact, any inconsistency in Mr. Martinez's testimony concerning Popo's statements goes to the issue of witness credibility and was a matter for the jury to decide.

Mr. Alvarez also claims admission of this evidence violated his constitutional right to confront adverse witnesses. This contention is not well taken in light of State v. Bernson, 40 Wn. App. 729, 739, 700 P.2d 758, review denied, 104 Wn.2d 1016 (1985), wherein we stated:

The admissibility of hearsay against a defendant in a criminal case is subject to overriding constitutional considerations. "The sixth amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to confront witnesses against him." State v. Parris, 98 Wn.2d 140, 144, 654 P.2d 77 (1982). When hearsay is admitted, this constitutional guaranty requires a determination of "(1) reliability of the testimony sought to be admitted, and (2) availability of the source (the out-of-court declarant) to appear, swear, and be cross-examined". State v. Smith, [85 Wn.2d 840, 849, 540 P.2d 424 (1975)]. Ms. Remington's death satisfies the requirement of unavailability. The concern is, therefore, with the reliability of the statements.

"Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." State v. Parris, supra at 145 (quoting Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980)). Here, the statements clearly fell within the ambit of ER 803(a)(3), a hearsay exception which is well recognized in Washington. See State v. Smith, supra at 854, and citations. We find no error in the admission of this evidence.

(Footnote omitted.)

Here, the declarant was unavailable in the constitutional sense since he was admittedly in Mexico. Mancusi v. Stubbs, 408 U.S. 204, 33 L. Ed. 2d 293, 92 S. Ct. 2308 (1972). Reliability can be inferred without more because the out-of-court statements "clearly fell within the ambit of ER 803(a)(3)". Bernson, at 739. Hence, no right of confrontation was violated.

In addition, from our review of the record and the facts set forth herein, if there was an error it was harmless. While we have no transcription of the closing arguments, the admission of the testimony regarding Popo's statement finally was admitted late in the trial, but without much emphasis; the result would not change if this statement had been suppressed.

Second, Mr. Alvarez contends the prosecutor failed to disclose that when Mr. Martinez was taken into custody as a material witness, he had cocaine on his person; thus, his right to a fair trial was prejudiced. In this regard, the omission must be evaluated in the context of the entire record. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); see also State v. Koloske, 100 Wn.2d 889, 899, 676 P.2d 456 (1984). A conviction must be set aside and a new trial ordered only when the undisclosed evidence creates a reasonable doubt that did not otherwise exist. State v. Williams, 96 Wn.2d 215, 229, 634 P.2d 868 (1981).

The prosecutor apparently first learned of Mr. Martinez's cocaine possession just prior to final argument to the jury. There is no indication the defense made a request for discovery of this or any other evidence concerning Mr. Martinez.

After trial, Mr. Martinez was charged with unlawful possession of a controlled substance; he pleaded guilty, was sentenced, and given credit for time served while held as a material witness in the present case. At oral argument, the prosecutor indicated Mr. Martinez was not given any special consideration in terms of the charge; there is no evidence suggesting otherwise.

Mr. Alvarez asserts that had the jury been apprised of Mr. Martinez's arrest this may have caused the jurors to give less weight to his testimony and could have explained certain purported inconsistencies therein. However, this is nothing more than conjecture and does not establish materiality in the constitutional sense so as to require reversal of the conviction. Evidence of the arrest of the witness would not be admissible, see State v. Harmon, 21 Wn.2d 581, 588, 152 P.2d 314 (1944), unless there was a further showing of possible prejudice or bias toward the defendant as a result. See State v. Vavra, 33 Wn. App. 142, 146, 652 P.2d 959 (1982). Here, there was clearly no understanding or agreement between the prosecutor and the witness concerning the disposition of the cocaine offense which could be perceived as influencing Mr. Martinez's testimony. Vavra, at 146.

Moreover, the record indicates any possible concern the witness may have had about his arrest was outweighed by his concern over his personal safety in testifying adversely to the defendant. Not only was he taken into custody in order to assure his presence at trial, but he admitted that his testimony was affected by the presence of another brother of the defendant and another individual in the courtroom. Prior to this time, Mr. Martinez stated he would "have to walk with precaution" once outside of jail. Under the circumstances, there was no reasonable likelihood the witness' testimony was significantly influenced, if at all, so as to require the conviction be set aside on the basis of the prosecutor's omission. Koloske, at 899.

Third, Mr. Alvarez challenges the sufficiency of the evidence to support his conviction, claiming the State's chief witness, Mr. Martinez, was not credible given 13 purported inconsistencies in his testimony and a lack of corroboration thereto. However, it has never been the province of this court to judge witness credibility; that responsibility lies with the jury which alone had the opportunity to view the demeanors of those testifying. Our review of the evidence is limited to "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)). As indicated, we find the evidence sufficient to support the verdict.

Fourth, although for the first time on appeal, Mr. Alvarez contends the verdicts are inconsistent—he having been acquitted on the charge associated with Gabriel Mendez's death (there was testimony he shot Gabriel), whereas Popo shot Lupe Mendez. Apparently, the jury chose to believe Mr. Martinez's testimony in this regard and would explain why the defendant was acquitted in Gabriel's death. This defendant was not prejudiced by the jury's finding.

Fifth, Mr. Alvarez contends he should have been granted a new trial because in his post-trial motion he had located a witness who would testify he had been with the defendant, without Popo, after leaving the tavern and at the time of the first occasion Mr. Martinez testified this defendant and his brother came to the residence. This was not newly discovered evidence; the defendant knew of this witness, but evidently had not been able to locate him prior to trial. The testimony merely corroborated the defendant's testimony. The "missing" witness testified at the post-trial motion that he had lived in the same residence prior to, during, and after the homicide and up to the present time. While the defendant contends he attempted to locate this witness, the effort expended in that regard is not of record. Further, the witness would not contend he was with the defendant at the time of the homicide, but would testify they had separated prior thereto. Thus, he could not corroborate the defendant's testimony that this defendant was walking up to the residence where the homicide occurred at the time the shots were fired. We find the trial court did not abuse its discretion in denying the motion for new trial on this ground.

Likewise, a new trial would not have been justified on the basis of the letter purportedly written by Popo while he was in Mexico, claiming full responsibility for the deaths of the victims. It was patently self-serving. K. Tegland §§ 403-05. The court did not err in denying the motion for a new trial. State v. York, 41 Wn. App. 538, 543, 704 P.2d 1252 (1985).

Sixth, the contention Mr. Alvarez was not accorded an interpreter or that his interpreter was not sworn is not borne out by the record.

Last, the contention he did not knowingly consent to a pro tempore judge is not well taken. The appropriate document agreeing to his service is contained in the record. We find this assignment of error without merit.

The conviction is affirmed.

Thompson, J., concurs.

1 ER 803 states:

"(a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

"(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's wilL"