i
FILED
SEPTEMBER 12, 2013
1 In the Office of the Clerk of Court
I WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 29645-8-111
Respondent, )
)
v. )
)
VICENTE RUIZ, AKA VICENTE ) OPINION PUBLISHED IN PART
MENDEZ, )
)
Appellant. )
. KORSMO, C.J. Five men were murdered in a Pasco garage in 1987 by two
gunmen. One ofthe gunmen pleaded guilty and testified under oath at his plea hearing
about how he and his cousin, appellant Vicente Ruiz, I committed the massacre. When
Mr. Ruiz was apprehended and tried in 2010, his cousin refused to answer when
questioned by the prosecutor consistent with his previous testimony. The primary
contention in this appeal is whether the prosecutor erred in questioning the recalcitrant
witness despite his refusal to answer. We conclude that this was permissible and affirm
the convictions for five counts of aggravated2 first degree murder and one count of
attempted frrst degree murder.
1 Inthe record, we note different spellings for Mr. Ruiz's first name. For the
purposes of this opinion, we will use the spelling that appears on the information.
2 The offense ofaggravated murder consists of frrst degree intentional murder plus
the presence of one or more statutory aggravating factors. RCW 10.95.020.
No. 29645-8-II1
State v. Ruiz
FACTS
The sole survivor of the shootings was Aldo Montes-Llamas 3 who was working
with the other five men inside Medina's Body Shop on the evening of October 13, 1987.
About 6:45 p.m., he saw two men arrive in a Mazda RX-7. The two men had contact
outside the building with two mechanics; the mechanics then departed and the two men
entered the shop. One of them was holding a .357 handgun in one h~md and what
appeared to be a .38 pistol in the other. The second man carried a chrome Mini 14 rifle.
They rounded up the body shop workers and started shooting.
Mr. Montes-Llama dived under a car; a ricocheting bullet struck him in the
abdomen. When the shooting ended, the two men went to their car and left; Mr. Montes-
Llama drove himself to a police station and reported the shootings. An ambulance took
him to the hospital while law enforcement descended upon the body shop.
Detective Henry Montelongo spoke to Montes-Llama at the hospital. He told the
detective that the men were "Calentones" and mentioned the name "Vicente." The
detective knew the Calentones as a branch of the Mendez family in Pasco. Meanwhile,
the body shop owner, Clifford Medina, named Vicente Mendez (Ruiz) as a possible
3He used the false name of Jesse Rocio in 1987 and was referred to by that name
in much of the trial proceedings. We use his correct name throughout this opinion.
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No. 29645-8-III
State v. Ruiz
suspect and told them Mendez was associated with a blue Camaro. Police began
searching for a blue Camaro or RX-7.
A dark gray RX-7 was located at a Pasco apartment early in the morning of
October 14. The apartment manager identified Vicente Ruiz as a renter of one of the
apartments, but indicated he also lived at an apartment in Kennewick. A search warrant
was served on the Pasco apartment and the RX-7. There was no one in the apartment, but
police found male clothing, 22 bags of marijuana, and a single round of .223 ammunition.
In the Mazda police found a receipt from Phil's Sporting Goods for .223 rifle ammunition
purchased less than an hour before the shooting at the body shop. A fingerprint on a
window belonged to Vicente Ruiz. A straw hat with a dark band and a bag of Oberto
beefjerky were recovered from the Mazda. A convenience store manager later turned
over a video showing two Hispanic teen males, one of whom was wearing a straw hat
with a dark band, in her store purchasing Oberto beefjerky on the afternoon of the 13th.
Police showed Mr. Montes-Llama a photomontage; without hesitation he picked
out Vicente Ruiz as one of the shooters. He identified Pedro Mendez-Reyna as the other
shooter from a second montage. One of the mechanics also identified Ruiz in the
photomontage, although at trial he did not recall doing so. The owner of the RX-7 told
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No. 29645-8-111
State v. Ruiz
Detective Montelongo that he had allowed Vicente Ruiz4 to test drive the car on the
afternoon of the shooting; Ruiz had loaned him a T oronado to use during the test drive.
The identified Kennewick apartment belonged to Ruiz's girl friend, Diana Garcia.
She was pregnant with the couple's second child. A search of her apartment turned up
documents 5 linked to Mr. Ruiz and an empty .38 caliber ammunition box. Garcia told
police that Ruiz and Mendez-Reyna stopped at the apartment shortly after 7:00 p.m. on
October 13. After that visit she had no contact with Ruiz until his arrest in 2007.
Forensic evidence showed that 14 shell casings recovered at the crime scene were
Winchester .223 rounds fired from the same weapon. The other bullet fragments
recovered at the scene came from either a.38 or a .357 magnum.
Pedro Mendez-Reyna was arrested in Texas in 1993. He was charged with five
counts of aggravated first degree murder and one count of attempted first degree murder.
In exchange for a guilty plea to the charged counts, the prosecutor agreed to forego the
death penalty. Mr. Mendez-Reyna also testified extensively under oath at the plea
hearing. His testimony on examination by his attorney detailed the killings and the
4 The test driver used the name of "Oscar" during their interactions.
5 These documents were suppressed and not used at trial.
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No. 29645-8-111
State v. Ruiz
actions of both he and Mr. Ruiz. The plea agreement did not require that Mendez-Reyna
testify against Ruiz.
Mr. Ruiz was arrested in Mexico in 2007 and extradited to the United States. He
told Detective Montelongo that he and his brothers had left Pasco in 1987 for a
preplanned vacation in Mexico. At trial, the defense indicated that Mr. Ruiz had returned
to Mexico to attend his sister's Quincenanera (l5th birthday celebration).
Trial attempts in 2008 and 2010 ended in mistrials. The first mistrial was declared
after the court granted a defense request for a continuance during jury selection in order
to conduct deoxyribonucleic acid (DNA) testing. The second mistrial occurred after
additional evidence was provided during trial testimony and the defense was granted
additional time to investigate. Venue was changed to Spokane County for a third trial
that commenced in November 2010.
Both parties listed Mr. Mendez-Reyna as a witness. During the second trial, the
defense sought to prevent the State from calling Mendez-Reyna, arguing that he would
assert his Fifth Amendment privilege. After the court denied that motion, the defense
sought to limit questioning if Mr. Mendez-Reyna continued to assert the privilege despite
the court's ruling. The parties extensively briefed and argued the issue. The trial judge
concluded that the State would be permitted to ask its questions even if the witness
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State v. Ruiz
refused to answer. The defense was given a standing objection to "any and all questions"
asked of Mendez-Reyna. Report of Proceedings (RP) at 2619.
The prosecution called Mr. Mendez-Reyna to testify. After the witness confinned
his name, the first substantive question the prosecutor asked was: "Referring to the
defendant here in court today, second man from the wall; is that gentleman your first
cousin?" Mr. Mendez-Reyna answered, "I plead the Fifth. I don't know that man." RP
at 2627 (emphasis added). The prosecutor then asked a series of additional leading
questions and Mr. Mendez-Reyna gave an identical response each time, stating "I plead
the Fifth." Each time, the court ordered him to answer the question and he refused. The
following are the questions the prosecutor asked:
*Is the defendant, Vicente Ruiz, who is here in the courtroom today, is he your first
cousin?
*Was your father and his mother brother and sister?
*1 want to take you back to October 13, 1987. On that date were you residing in Seattle,
Washington?
*On October 13th, 1987 were you visiting in Pasco, Washington?
*All right. Mr. Mendez-Reyna, on October 13th, 1987, did you have contact with the
defendant, Vicente Ruiz, who you see here in the courtroom today in the City of Pasco,
Washington?
*Did the defendant, Vicente Ruiz, ask your assistance in confronting six individuals with
whom he had had a problem earlier in the day?
*Did you accompany the defendant, Vicente Ruiz, to a business called Phil's Sporting
Goods in Pasco, Washington?
*Did you see ammunition being purchased at Phil's Sporting Goods for a Mini 14 rifle?
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No. 29645-8-111
State v. Ruiz
*After leaving Phil's Sporting Goods, did you get back into a motor vehicle with the
defendant?
*Did you see that there were three firearms in the motor vehicle, a Mini 14 rifle, a .357
Magnum handgun and a.38 special handgun?
*After leaving Phil's Sporting Goods, did you and the defendant, Vicente Ruiz, proceed
to Javier's Seafood Restaurant to look for the individuals?
*After not finding the individuals there, did you then go to Medina's Body Shop in
Pasco, Washington?
*Did you encounter two individuals outside Medina's Body Shop who appeared to be
mechanics?
*After the two mechanics had left, did you and the defendant, Vicente Ruiz, that you see
here in the courtroom today, enter Medina's Body Shop carrying guns?
*Was the defendant, Vicente Ruiz, carrying two handguns and were you carrying the
Mini 14 rifle?
*Once you were in the body shop, were all six individuals present rounded up and placed
into one room?
*Did some argument ensue at that point?
*Did you see the defendant, Vicente Ruiz, open fire with the handguns he had in his
possession?
*Did you also open fire with the Mini 14 rifle?
*Did you see individuals fall to the ground?
*Did you see any of the individuals in the body shop with firearms?
*Did all of the individuals fall to the ground as far as you could see?
*Did any of them appear to be moving?
*Did you check the individuals to see if they were still alive?
*Is it not correct none of the individuals, none of the individuals in the body shop, beside
yourself and the defendant, had firearms that you could see?
*Did you then leave the body shop without checking the individuals?
*After leaving Medina's Body Shop on October 13, did you and the defendant, Vicente
Ruiz, go first to Reno, Nevada, then to Los Angeles and then to Mexico?
*All right, Mr. Mendez-Reyna, take a look at the individual in the courtroom today,
second man from the right, your cousin, Vicente Ruiz, was that the man who was with
you on October 13th, 1987, and along with you, shot and killed those other men?
The defense did not attempt to question Mr. Mendez-Reyna.
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State v. Ruiz
The jury was not infonned that Mr. Mendez-Reyna had been convicted of the
murders and the prosecutor never addressed the topic of his trial testimony during closing
argument. The court did give the jury instruction number 6, which provided:
Questions asked a witness that go unanswered are not substantive evidence
of any matter, to the extent a question may suggest a particular answer, it
should not be considered by you as any proof of such matters.
Clerk's Papers (CP) at 53. The jury also was given the standard opening instruction that
reminded them that what the lawyers say is not evidence and should not be considered as
such. CP at 46.
The defense presented several theories at trial, with the primary one an attempt to
portray Mr. Montes-Llamas as a shady character involved in drug-running through
Medina's. He and the others were accused of deliberately or mistakenly misidentifying
Mr. Ruiz as one of the killers. Additional evidence of misidentification and confusion
was presented. The defense argued the case to the jury on the various misidentification
theories.
Nonetheless, the jury convicted Mr. Ruiz as charged. On each count the jury
unanimously found that the offenses were committed with the aggravating factor that
there were multiple victims murdered as part of a common scheme or plan. As a result of
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No. 29645-8-111
State v. Ruiz
the verdicts, the court sentenced Mr. Ruiz to life in prison without possibility of parole.
He then timely appealed to this court.
ARGUMENT
Mr. Ruiz presents three claims in this appeal. He primarily argues that it was error
for the court to call and the prosecutor to question Mr. Mendez-Reyna in light of the
refusal to answer. He also argues that the court deprived him of a defense by not
allowing identification evidence from a deceased witness and that it was error for his
prior misdemeanor arrest to get before the jury.6 We address the first claim in the
published portion of this opinion and consider his other claims in the unpublished
portion.
6 He also argues that the cumulative effect of these errors deprived him of a fair
trial. In light of our assessment of the three arguments, we do not address that claim.
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No. 29645-8-111
State v. Ruiz
Mendez-Reyna Testimony. Mr. Ruiz argues that the trial court erred in permitting
Mr. Mendez-Reyna to take the stand in light of his assertion of the Fifth Amendment and
that the prosecutor committed misconduct in questioning him. We treat his arguments as
two sides of the same coin and conclude that the court correctly required the witness to
testify and that the prosecutor had a good faith basis for asking each question. There was
no error.
While Washington courts have not yet addressed the specific questions presented
by Mr. Ruiz, we do believe that some basic principles inform our review. Trial court
rulings relating to the admission of evidence are reviewed for abuse of discretion. State
v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). Discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker,
79 Wn.2d 12,26,482 P.2d 775 (1971).
Calling Mr. Mendez-Reyna to the Stand. The common law has long recognized a
duty to testify. The United States Supreme Court once summarized the history of that
obligation:
The power of government to compel persons to testify in court or
before grand juries and other governmental agencies is firmly established in
Anglo-American jurisprudence. The power with respect to courts was
established by statute in England as early as 1562, and Lord Bacon
observed in 1612 that all subjects owed the King their "knowledge and
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No. 29645-8-111
State v. Ruiz
discovery." While it is not clear when grand juries first resorted to
compulsory process to secure the attendance and testimony of witnesses,
the general common-law principle that "the public has a right to every
man's evidence" was considered an "indubitable certainty" that "cannot be
denied" by 1742. The power to compel testimony, and the corresponding
duty to testifY, are recognized in the Sixth Amendment requirements that an
accused be confronted with the witnesses against him and have compulsory
process for obtaining witnesses in his favor.
Kastigar v. United States, 406 U.S. 441, 443-44, 92 S. Ct. 1653,32 L. Ed. 2d 212 (1972)
(footnotes omitted).
Washington similarly recognizes an obligation of a witness to testifY. E.g., State
v. Parker, 79 Wn.2d 326,331,485 P.2d 60 (1971)/ State v. Green, 71 Wn.2d 372,378,
428 P.2d 540 (1967).8 Statutes confirm that obligation. RCW 5.56.010; RCW
7 "Every person within the jurisdiction of a court of competent jurisdiction-with
a few exceptions related to the office of the chief executive-owes a duty when
summoned by the court to come forward and speak the truth. It is a duty which may be
enforced by imprisonment, fine and the imposition of other judicial sanctions. Without
the power to compel witnesses to testifY, trials would be reduced from a quest for the
truth in the most momentous affairs of life to pointless and inconclusive debates and the
judicial systems would face inevitable extinction." Parker, 79 Wn.2d at 331.
8 "One of the basic obligations resting on everyone living under the protection of
our constitutions is that, when called upon to give evidence in court he will, without
reservation, speak the truth; that he will not avoid or evade this duty through fear, malice,
or hope or promise of reward. The court and every party to a judicial proceeding
indeed, society itself-has a right to assume that the duty to give truthful evidence will be
discharged and it need not be anticipated that that duty will be betrayed." Green, 71
Wn.2d at 378.
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No. 29645-8-III
State v. Ruiz
I
7.21.010(1)(c); RCW 10.52.040. Courts typically use the contempt power to address a
refusal to testify. RCW 5.56.061; ch. 7.21 RCW.
The primary exception to the obligation to testify is the Fifth Amendment's
privilege against compulsory self-incrimination. Kastigar, 406 U.S. at 444. The
privilege can be asserted on a blanket basis by a criminal defendant. State v. Dietado,
102 Wn.2d 277,293,687 P.2d 172 (1984); State v. Lougin, 50 Wn. App. 376, 381, 749
P.2d 173 (1988). In most other instances, however, it must be asserted on a question by
question basis. State v. Levy, 156 Wn.2d 709, 732, 132 P.3d 1076 (2006); Lougin, 50
Wn. App. at 381 ("In general, a claim of privilege may be raised only against specific
questions, and not as a blanket foreclosure of testimony."). When a person has been
convicted of a crime and there is no longer any possibility of appeal, the Fifth
Amendment privilege no longer exists because there is no potential jeopardy for
testifying. State v. Barone, 329 Or. 210, 231, 986 P.2d 5 (1999), eert. denied, 528 U.S.
1086 (2000); 1 MCCORMICK ON EVIDENCE § 121 at 527 (Kenneth S. Broun ed., 6th ed.
2006) (absent some specific showing that collateral attack is likely to succeed, most
courts treat finality of conviction as unqualifiedly removing the risk of incrimination).
It is the duty of the trial judge to determine if privileged information is sought.
Parker, 79 Wn.2d at 332 (citing Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814,
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No. 29645-8-111
State v. Ruiz
95 L. Ed 1118 (1951)). A judge's decision in this area is reviewed for abuse of
discretion. Id. Against this backdrop, the parties do not contest that Mr. Mendez-Reyna.
did not have a valid Fifth Amendment protection against self-incrimination. He did not
appeal his sentence, which thus became final in 1994. RCW 10.73.090(3)(a). As there
was no basis for claiming the protections of the Fifth Amendment, the trial court did not
err by allowing the State to call Mr. Mendez-Reyna to the stand.
Nonetheless, Mr. Ruiz contends that Washington does not allow a witness to be
called if she or he is going to assert a priVilege. He relies upon State v. Nelson, 72 Wn.2d
269,432 P.2d 857 (1967). Nelson is easily distinguishable. There a codefendant,
Patrick, who had pleaded gUilty to a lesser murder charge validly asserted his Fifth
Amendment privilege "to all questions relating to the events of the night in question." Id.
at 277. The privilege was valid because Patrick was still subject to possible prosecution
on related charges from the incident. Id. Patrick had claimed the privilege in a previous
trial and asserted prior to this trial that he would do so again. Id.
The prosecutor called Patrick to the stand and he answered some questions
unrelated to the night in question, but asserted the privilege in front of the jury on 28
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No. 29645-8-111
State v. Ruiz
questions concerning the murder. Id. The plurality opinion9 concluded that the
questioning of Patrick constituted a violation of Nelson's confrontation right. Id. at 285.
The critical fifth vote came from the concurring opinion of Justice Hill, who considered
the prosecutor's actions to be a prejudicial trial tactic. Id. at 286. "However, 1 want to
make it clear that 1 am, by my concurrence, not committing myself to the same
conclusion under the same circumstances should this case again reach this court." Id.
Noting that the statute of limitations had now run, Patrick could not claim the privilege at
a retriaL "A witness cannot invoke the Fifth Amendment merely to protect another from
punishment." Id.
Mr. Ruiz's case is not the same as Mr. Nelson's case. Unlike Nelson, Mr.
Mendez-Reyna had no valid privilege he could assert. This fact is critical due to the
nature of the problem presented when a privilege is exercised in front ofajury.
Washington has long rejected the practice of forcing a witness to invoke a privilege,
whether constitutional or statutory, in front of the jury. State v. Charlton, 90 Wn.2d 657,
585 P.2d 142 (1978) (spousal privilege); Statev. Jackson, 83 Wash. 514, 516, 145 P. 470
(1915) (self-incrimination). The basis for that "is that the State cannot and will not be
Three justices signed the opinion and a fourth justice concurred in the result.
9
Nelson,72 Wn.2d at 285.
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No. 29645-8-III
State v. Ruiz
permitted to put forward an inference of guilt, which necessarily flows from an
imputation that the accused has suppressed or is withholding evidence, when by statute or
constitution he simply is not compelled to produce the evidence." Charlton, 90 Wn.2d at
662. The government may not change the shield of protective privilege into an
evidentiary sword.
The problem of a criminal defendant appearing to block evidence is not presented
when a witness refuses to testify or asserts a nonexistent privilege. Rather, the issue is
one of the witness attempting to shelter the defendant by refusing to testify. The Oregon
Supreme Court has spoken to that problem:
Viewed realistically, a refusal to testify by an already convicted
accomplice cannot stem from his desire to protect himself and must,
therefore, stem from his desire to protect the defendant. The defendant
cannot complain if the jury chooses to draw the logical inference that a
truthful answer would have implicated defendant. This being the logical
inference, we see no reason for not permitting the prosecutor to present the
matter to the jury through the device of calling a convicted accomplice who
the prosecutor knows will make the inference possibly by the witness
remaining silent.
State v. Abbott, 275 Or. 611, 616, 552 P.2d 238 (1976) (footnote omitted).
I
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The same issue is presented if a witness, rather than asserting a nonexistent
privilege, simply declined to answer a question or a series of questions. The State is not
attempting to exploit a privilege, but, rather, is attempting to gain evidence from a
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No. 29645-8-111
State v. Ruiz
witness who has no legal basis to decline to provide the information. The inference to be
drawn from a refusal to answer is that the witness is protecting someone, not that the
inquiry is substantive evidence of fact. Id. That inference comes from the actions of the
witness, not the actions of the court in permitting the testimony or of the prosecutor for
soliciting it. Thus, there is no violation of the Fifth Amendment because there was no
privilege being exploited.
Questioning a privileged witness also implicates the Sixth Amendment right to
confront witnesses. The United States Supreme Court has recognized that asking a series
of questions of a witness who asserts his self-incrimination privilege puts the defense in
the position of being unable to cross-examine the witness, thus violating the Sixth
Amendment. Douglas v. Alabama, 380 U.S. 415,85 S. Ct. 1074,13 L. Ed. 2d 934
(1965). The Nelson plurality recognized the same fact. 72 Wn.2d at 285.
We do not see that this problem exists when the witness does not have a valid
privilege. Since the witness cannot refuse to answer, there was no reason that the defense
cannot ask leading questions of the witness. Indeed, as a matter of tactics, if the
recalcitrant witness wrongly asserted the privilege on cross-examination, the defense
would be free to point this fact out and argue that the witness was actually protecting
someone else. In the present case, however, counsel for Mr. Ruiz understandably would
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No. 29645-8-III
State v. Ruiz
not want to question Mr. Mendez-Reyna lest he actually answer a question contrary to the
previous testimony and permit the prosecutor to enter that testimony as substantive
evidence of guilt. Defense counsel reasonably stayed away from questioning Mendez-
Reyna, although they could have done so.
In both Abbott and Barone, the Oregon Supreme Court faced situations where
witnesses in each case had wrongly refused to answer questions put to them by the
respective prosecutors. In each instance, the court concluded that it was not error for the
witness to be called and questioned. Barone, 329 Or. at 232; Abbott, 275 Or. at 616. The
trial court relied upon Barone in permitting Mr. Mendez-Reyna to be called to the stand.
In the absence of contrary Washington authority, the trial court's reliance upon the
Oregon authority was a tenable ground for permitting the testimony.
For all three reasons-no privilege existed, confrontation was possible, and
tenable grounds existed for permitting the testimony-the trial court did not err by
overruling the defense objection to having Mr. Mendez-Reyna testify for the
prosecution. IO We also note that on policy grounds, the court correctly ordered Mr.
Mendez-Reyna to take the stand. A refusal to obey a court order and provide truthful
10We do not consider whether the fact that Mr. Mendez-Reyna was also listed as a
defense witness would waive the defense objection.
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State v. Ruiz
unprivileged testimony should not, except in the most unusual circumstances, be a basis
for excusing a prospective witness. The judge, not the witness, is in control of the trial.
It is difficult to understand how a court can in good conscience assert its authority only
over the law abiding if it declines to assert its authority over those who pay it no heed.
The duty all citizens owe to provide information to the court cannot rest solely in the
hands of the witness less the. courts become nothing other than a voluntary dispute
resolution system of little value to anyone. 11
Neither the court nor the parties could realistically compel Mr. Mendez-Reyna to
testify truthfully given his sentence. However, that fact does not mean that the court was
required to abandon its effort to have him testify truthfully.
The trial court did not err in denying the motion to exclude Mr. Mendez-Reyna's
testimony.
Questioning Mr. Mendez-Reyna. Mr. Ruiz also takes issue with the prosecutor's
decision to call and question Mr. Mendez-Reyna to the stand in light of his anticipated
refusal to testify. While much of this argument was answered in our previous discussion,
IIThe Parker court put the issue more starkly, "Without the power to compel
witnesses to testify, trials would be reduced from a quest for the truth in the most
momentous affairs of life to pointless and inconclusive debates and the judicial systems
would face inevitable extinction." 79 Wn.2d at 331.
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State v. Ruiz
a few additional points do need to be addressed. The prosecutor did not commit
misconduct in calling a witness to the stand who had no privilege and had previously
provided evidence under oath; there was a factual basis in the trial record for nearly every
question asked by the prosecutor.
Several well-settled standards govern this argument. "A person being tried on a
criminal charge can be convicted only by evidence, not by innuendo." State v. Yoakum,
37 Wn.2d 137, 144,222 P.2d 181 (1950). It is reversible error when the prosecutor
"makes a conscious and flagrant attempt to build its case out of inferences arising from
use of the testimonial privilege." Nelson, 72 Wn.2d at 280 (quoting Namet v. United
States, 373 U.S. 179, 186,83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963»; see State v.
Carlisle, 73 Wn. App. 678, 680-81, 871 P.2d 174 (1994). It also is error to question a
witness in a manner that suggests evidence exists outside of the record that has been
provided to the jury. "Counsel is not permitted to impart to the jury his or her own
personal knowledge about an issue in the case under the guise of either direct or cross-
examination when such information is not otherwise admitted as evidence." State v.
Denton, 58 Wn. App. 251, 257, 792 P.2d 537 (1990).
When a prosecutor's questions imply the existence of a prejudicial fact, the
prosecutor must be able to prove that fact. State v. Miles, 139 Wn. App. 879, 886, 162
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No. 29645-8-111
State v. Ruiz
P.3d 1169 (2007). Failure to do so may be prejudicial misconduct. Id. at 887. The
reason is "not because the facts are inadmissible, but because no witness is willing and
available to testify as to those facts." Id. at 888 (quoting 5 KARL B. TEGLAND,
WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE § 103.22 at 96 (4th ed.1999)). As
the Miles court further explained, the focus must be on whether the prosecutor is
imparting his own knowledge without testifying. Id. at 887.
A defendant claiming prosecutorial misconduct must show that the prosecutor's
conduct was both improper and prejudicial in the context of the entire record and
circumstances at trial. Id. at 885. Prejudice exists if there is a substantial likelihood that
the misconduct affected the verdict. Id. We do not believe Mr. Ruiz has shown either
error or harm. I
Initially, we reiterate that since Mr. Mendez-Reyna had no valid privilege to
claim, it was proper for the prosecutor to call him to the stand to see if he would in fact
honor his obligation under the law to answer questions. Unlike the error in Nelson,
where the witness was privileged not to testify, Mr. Mendez-Reyna had no privilege and
was obligated to testify. The prosecutor did not err in seeking his information.
That does not mean that the questioning itself was proper. Mr. Ruiz strenuously
argues that the repeated questioning in light of Mr. Mendez-Reyna's refusal to answer
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No. 29645-8-111
State v. Ruiz
amounted to trial by innuendo. We have carefully reviewed the record and disagree.
With the exception of two questions of little import, there was either a factual basis for
each question in the trial record, or the question was a reasonable inference based on trial
testimony.
The sole exceptions were the questions "Did the defendant, Vicente Ruiz, ask your
assistance in confronting six individuals with whom he had a problem earlier in the day?"
and "After leaving Medina's Body Shop on October 13,1987, did you and the defendant,
Vicente Ruiz, go first to Reno, Nevada, then to Los Angeles and then to Mexico?" The
first question actually was backed by testimony from Ms. Garcia. However, that
testimony had been admitted solely for impeachment purposes and was not substantive
evidence. The second question was not fully supported by the record. Although there
was significant evidence of Mr. Ruiz's flight (he had abandoned all of his possessions in
his apartment as well as his pregnant girl friend and their son, never to see any of them
for 20 years before his capture in Mexico), there was no substantive evidence that Mr.
Mendez-Reyna accompanied him on his travels.
Although not supported by the substantive evidence, the first question is not
significant because the State's case was not built around any motive theory. The other
question had partial support in the record (and the inferences therefrom), but whether or
21
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No. 29645-8-III
State v. Ruiz
not Mr. Mendez-Reyna accompanied Mr. Ruiz on his flight was simply not significant to
the case. In light of these facts, we do not believe that the two questions were so far off
the mark as to make them improper.
We likewise do not believe that the questions were improperly prejudicial. The
questioning did not suggest that the prosecutor had additional evidence that the jury had
not seen. The prosecutor also did not argue Mr. Mendez-Reyna's testimony in closing
argument or otherwise stress it. The jury also was instructed that nonanswers were not
substantive evidence and should not be treated as such. Mr. Mendez-Reyna's testimony
did not amount to a significant factor in this case; unlike Nelson, it did not give critical
weight to a weak case. Nelson, 72 Wn.2d at 285. Instead, it was a small part of a strong
State's case. In similar circumstances, our court has concluded that no prejudicial error
resulted. See Dictado, 102 Wn.2d at 295-96 (privilege asserted extensively in redirect
examination not prejudicial error); Parker, 79 Wn.2d at 3 31 (defense witness claimed
privilege 12 times before the jury). Mr. Ruiz likewise was not prejudiced by the
22
No. 29645-8-III
State v. Ruiz
testimony.12 Because he has not shown error or prejudice, Mr. Ruiz has not established a
basis for relief.
That does not necessarily mean that we approve of the extended questioning that
took place here. The final 28 questions all met with the same response-Mr. Mendez-
Reyna was refusing to answer. Although the jury was told not to consider the substance
of the questions as evidence (unlike what occurred in the cases relied upon by Mr. Ruiz),
the jury was permitted to conclude that the witness was protecting someone, probably
Mr. Ruiz. While we believe it was fair to permit the questioning and this inference, it
does not mean that the jury needed to hear the same answer 28 times. 13 Also, laying out
the State's theory of the case in questioning, as opposed to closing argument, was
argumentative. Repetitive and argumentative questions are subject to restriction under
ER 403. At no time during the questioning of Mr. Mendez-Reyna did defense counsel
object to the cumulative nature of the assertion of privilege. Counsel had sought to
12 In other cases, error relating to the timing of the assertion of the privilege has
been found harmless beyond a reasonable doubt. See Levy, 156 Wn.2d at 732-33;
Lougin, 50 Wn. App. at 382.
13 In Barone, the privilege was asserted on only four questions. Barone, 329 Or. at
230. In Abbott, the witness refused to answer one question and then engaged in a brief
exchange with the prosecutor about why he was not answering. Abbott, 275 Or. at 614.
23
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No. 29645-8-111
State v. Ruiz
exclude the testimony entirely on Fifth and Sixth Amendment grounds, and had received
a standing objection to any and all questions on that basis.
The failure to raise an evidentiary objection to the trial court waives the objection.
State v. Guloy, 104 Wn.2d 412,422, 705 P.2d 1182 (1985); State v. Boast, 87 Wn.2d 447,
451-52,553 P.2d 1322 (1976). As explained in Guloy:
A party may only assign error in the appellate court on the specific ground
of the evidentiary objection made at trial. Since the specific objection made
at trial is not the basis the defendants are arguing before this court, they
have lost their opportunity for review.
Guloy, 104 Wn.2d at 422 (citation omitted).
The defense did not present an ER 403 argument at trial and accordingly no relief
is available on appeal, but we note this issue in the event a similar case should arise in the
future. 14 Whether after the third or the twenty-third question, there probably was a point
where the trial court, in its discretion, could determine that nothing new was being
accomplished by the questioning and that the witness would not change his mind. Even
though he had responded to the first two questions, at some point it was clear that Mr.
Mendez-Reyna was not going to change his mind and answer any more questions,
although exactly when that point was reached cannot be determined from a cold record.
14 In light of our conclusion that prejudicial error was not established, the failure to
raise an evidentiary objection does not amount to ineffective assistance of counsel.
24
No. 29645-8-111
State v. Ruiz
If the defense thought that point was reached in the questioning, it could have raised the
issue with the trial court, at sidebar if necessary to protect against appearing to be in
cahoots with Mr. Mendez-Reyna's behavior.
We conclude that Mr. Ruiz has not established prejudicial error from the
questioning of the recalcitrant witness in this case. The case was well and fairly tried by
veteran counsel on both sides. It was hard fought consistent with the serious nature of the
charges. Seeing no significant error, we affirm the convictions.
The remainder ofthis opinion has no precedential value. Therefore, it will be filed
for public record in accordance with the rules governing unpublished opinions. RCW
2.06.040.
Presentation ofDefense. Mr. Ruiz next argues that the trial court violated his right
to present a defense by excluding evidence that a deceased sporting goods store owner
had identified Mr. Ruiz's brother, Antonio Mendez, as one of the purchasers of the
ammunition used in the killings. The trial court did not err and, even if it had, any error
was harmless beyond a reasonable doubt.
Phil Van Hoy, then owner of Phil's Sporting Goods, was shown two montages to
see ifhe could identity the purchasers of the ammunition that the receipt in the RX-7
indicated had come from his store. Mr. Van Hoy had identified Antonio Mendez, brother
25
No. 29645-8-111
State v. Ruiz
to Mr. Ruiz, as one of the two young men. When shown the other montage, Mr. Van
Hoy "just wasn't sure" if Mr. Ruiz was the other. Mr. Van Hoy died before trial. The
court excluded his identification as hearsay under ER 801 (d)( 1)(iii).
ER 801 ( c) defines "hearsay" as "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Hearsay is generally inadmissible unless there is an applicable exception. ER
802. ER 801 (d)( 1)(iii) provides that a statement "of identification of a person made after
perceiving the person" is not hearsay if the declarant testifies at the trial or hearing and is
subject to cross-examination.
There is no dispute that the Van Hoy identification evidence had some relevance
under ER 401 to a defense theory that Ruiz may have been mistaken for Antonio Mendez
as one of the shooters. Even so, the evidence was not admissible under ER 80 1(d)(1)(iii)
,
because Van Hoy was deceased at the time of trial and no other hearsay exception
applied. See State v. Grover, 55 Wn. App. 923, 933-34, 780 P .2d 901 (1989) (identifier
I
must testify at trial even when identification statement introduced through another
witness); 5B KARL B. TEGLUND, WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE §
801.29, at 382-83 (5th ed. 2007) (if identifying witness has died, the prior out-of-court
identification would remain inadmissible unless it falls within some other hearsay
26
No. 29645-8-II1
State v. Ruiz
exception or can be classified as nonhearsay). The ruling excluding the Van Hoy
identification evidence was not an abuse of discretion under our evidentiary rules.
Recognizing that the rule excluded the identification by the late Mr. Van Hoy, Mr.
Ruiz argues that the mechanical application of the hearsay rule is inconsistent with the
purpose of the rule and also violates his constitutional right to present a defense. Because
of his right to present a defense, he argues that under Holmes v. South Carolina, 547 U.S.
319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006), state evidentiary rules must give way to
his constitutional right. IS We have not viewed Holmes so expansively. State v. Hilton,
164 Wn. App. 81, 101-02,261 P.3d 683 (2011). However, we need not revisit Holmes
.because Mr. Ruiz has not established that his right to present a defense was violated.
Mr. Ruiz argues that since the purposes of the hearsay rule are to ensure reliability
and protect th~ right to confrontation,16 the hearsay rule should give way here since the
I
parties both agree what Mr. Van Hoy said and since his right of confrontation would not
I
be offended by evidence he was offering. The State responds that it is equally entitled to
ensure information at trial is reliable. It contends that because it was deprived of the
I
I
IS In Holmes, a South Carolina rule excluded defense third party perpetrator
evidence when the State's case was forensically strong. 547 U.S. at 323. By prohibiting
the defense theory of the case, the state rule violated the constitution. Id. at 328.
16 State v. Chapin, 118 Wn.2d 681, 685-86, 826 P.2d 194 (1992).
27
No. 29645-8-III
State v. Ruiz
ability to question Mr. Van Hoy concerning both the reliability of his identification and
Mr. Mendez-Reyna's prior testimony that he and Mr. Ruiz were the two who made the
purchase, it would be unreliable to admit the identification. 17 In other words, the State's
focus is on the reliability of Mr. Van Hoy's identification while Mr. Ruiz's focus is on
the police report about that identification. We are not convinced that Mr. Van Hoy's
identification was so reliable that the constitution required the hearsay rule to be
overridden in this circumstance.
Nonetheless, we do not believe admission ofthe evidence would have disrupted
the truth-seeking function to the prejudice of the State. While the identification of Mr.
Mendez as one of the purchasers would have been harmful to the State, it was still free to
I
I
develop the fact that Mr. Van Hoy was uncertain of Mr. Ruiz's presence and could not
rule it out. Evidence that Antonio Mendez and Mr. Ruiz looked similar, and that Mr. ~
t
J
Ruiz rather than Antonio Mendez was driving the RX-7 that contained the sales receipt,
made it quite easy for the State to argue that Mr. Van Hoy was mistaken. Under these
I
facts, we believe the trial court could have admitted the Van Hoy identification despite
t
~.
I,
[
I
17The State also argues it is patently unfair to allow the Van Hoy identification
evidence where it cannot offer Mendez-Reyna's testimony indicating that he and Mr.
Ruiz were the purchasers. However, that problem arises from a different circumstance
and is not a basis for excluding Van Hoy's identification on some sort of a tit-for-tat I
theory. The two issues are distinct.
28 t
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No. 29645-8-111
State v. Ruiz
ER 801 (d)( 1)(iii) due to lack of significant prejudice to the State. However, it was not
required to do so.
But, even if there was constitutional error, it was harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 18,24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
While useful to the defense, the Van Hoy identification was not so significant that it was
error to exclude it, particularly in light of the other testimony that the defense was able to
use to argue its theory of the case. There also was no evidence putting Antonio Mendez
at the shooting or in the getaway vehicle. He, unlike Mr. Ruiz and Mr. Mendez-Reyna,
did not flee the area never to voluntarily return. As there was no evidence linking
Antonio Mendez to the crimes, there was no reason to believe that Mr. Van Hoy's
identification would have added significant information to the case.
As previously discussed, the direct and circumstantial evidence that Ruiz went to
Medina's Body shop in the Mazda RX-710aned to him on October 13 and participated in
the homicides is very strong. That evidence of guilt is further bolstered by Ruiz's leaving
his personal belongings, pregnant girl friend, and their child behind to immediately flee
to Mexico and avoid prosecution for 20 years. Admission of Van Hoy's statements that
Antonio Mendez was present when the ammunition was purchased, but that he was not
sure about Ruiz, undoubtedly would not have changed the trial outcome.
29
No. 29645-8-111
State v. Ruiz
The court did not err in excluding the evidence, nor did the ruling prejudicially
affect the defense case. Any error was harmless beyond a reasonable doubt.
ER 404(b). Mr. Ruiz also contends that he was harmed by the admission of
evidence that he had been arrested for a misdemeanor traffic offense four years before the
murder. The court did not abuse its discretion in admitting information about the source
of the defendant's fingerprints.
t
Mr. Ruiz had been arrested for driving under the influence in late 1983. He was
fingerprinted at that time and a booking photo also was taken. The fingerprints were used
for comparison when he was returned to Franklin County in 2007 and to identity the print
found in the RX-7. The booking photo was used for the photomontages shown to
witnesses in 1987. Reference was made to the source of these two items by investigators
and technicians called to explain fingerprint comparisons or montages shown to the
witnesses. The original 1983 arresting officer testified that he had arrested Mr. Ruiz
following a traffic stop.
The defense sought to exclude the information under ER 403 as prejudicial
character evidence that showed criminal propensity. The trial court found that the
probative value of the evidence outweighed its prejudicial impact, particularly in view of
30
No. 29645-8-III
State v. Ruiz
the fact that the defense had put identity in issue in its opening statement. The court
excluded testimony about the basis of the 1983 traffic arrest.
The purpose of ER 404(b) is to exclude evidence that suggests that one is a
"criminal type" who was acting in accordance with that propensity. State v. Lough, 125
Wn.2d 847,853,889 P.2d 487 (1995). ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
In other words, the rule prohibits admitting evidence to show a person's character to
prove the person acted in conformity with that character on a particular occasion. State v.
Everybodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002).
Mr. Ruiz correctly argues that the testimony that he was arrested and booked into
jail raises ER 404(b) concerns. State v. Acosta, 123 Wn. App. 424, 433, 98 P.3d 503
(2004). The question then becomes whether the trial court correctly struck its balance in
weighing the probative value of the evidence against its prejudicial impact. The prindple
issue in the case was the identity of the second gunman. Thus, the foundation of the
State's physical evidence of identity was an important aspect of the case. It was
necessary for the witnesses to tie the fingerprints examined or the photographs displayed
31
No. 29645-8-III
State v. Ruiz
to the defendant, Mr. Ruiz, and they did that through the initial arrest records. Given the
significance of the evidence, the trial court had a tenable basis for concluding that the
probative value of that information outweighed any prejudicial impact the prior arrest
might have had.
The evidence also was not overplayed at trial. The circumstances of the arrest
were not placed in evidence and the information was never used to show or argue that
Mr. Ruiz had a general criminal propensity or character. Instead, it was simply
mentioned in passing as the source of the materials-something a reasonable juror would
probably have concluded anyway from the existence of the records. Being told that the
arrest was for a "traffic stop" was probably the least prejudicial manner of conveying the
information. The brief mention of the 1983 arrest was not unduly prejudicial information
in light of its foundational importance to the significant physical evidence.
There was no abuse of discretion.
Affirmed.
Korsmo, C.J.
32