IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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AND ROILAND FERNANDEZ UNPUBLISHED OPINION
MEDINA,
Appellants. FILED: November 2, 2015
Lau, J. — Jorge Barroso and Roiland Fernandez Medina were each convicted in
a joint trial of first degree burglary. Medina was also convicted of misdemeanor
unlawful display of a firearm. They contend the trial court erred in excluding alleged
drug evidence found in the victim's apartment, in refusing to give self-defense and
reasonable doubt jury instructions, and in violating their confrontation clause rights by
denying face-to-face interaction with witnesses. They also argue the deputy prosecutor
improperly commented on their decision not to testify. Because the trial court properly
excluded the alleged drug evidence, properly declined to give the defendants' proposed
jury instructions, violated no confrontation clause rights, and the deputy prosecutor's
comments were proper, we affirm the convictions.
No. 73638-8-1/2
FACTS
On April 7, 2013, Travis Swan, Snezhana Stetsyuk, DeAngelo White, and two-
year-old Kayliana were visiting Dijon Wiley and Kyla King at the Willow Apartments in
Lakewood, Washington. Wiley stepped outside to smoke a cigarette and noticed a car
parked behind his parking space. Wiley and Fernandez Medina argued when Wiley
asked him to move the car. Fernandez Medina told Wiley, "I have something for you. I
will be right back." Report of Proceedings (RP) (Jan. 13, 2014) at 376. Fernandez
Medina drove off.
Fernandez Medina returned about 10 to 30 minutes later with Jorge Barroso,
Barbara Gener Ono, and Lazaro Valle-Matos. They walked up to Wiley's apartment
door. One of them was carrying a wooden baseball bat. Fernandez Medina knocked
on the door and said, "I am back." RP (Jan. 13, 2014) at 386. Stetsyuk and King told
them repeatedly to leave and that a child and weapons were in the house. Fernandez
Medina told Wiley to come out. The door was forced open. Fernandez Medina
immediately hit Wiley in the face. Fernandez Medina and Wiley struggled just inside the
door of the apartment. Valle-Matos, Ono, and Barroso tried to follow Fernandez Medina
through the door. Valle-Matos held a large knife. White had a gun that he always
carried with him. When White saw Valle-Matos' knife, he said that he was armed and
would shoot. White shot Valle-Matos when Valle-Matos tried to stab Wiley.
After the gunshot, Fernandez Medina, Barroso, and Ono quickly left. Valle-
Matos died later that evening from the gunshot wound. Police responded and arrested
Fernandez Medina, Barroso, and Ono nearby.
No. 73638-8-1/3
The State charged Barroso and Fernandez Medina with one count of first degree
burglary and one count of second degree assault. Prior to trial, the State moved to
exclude evidence of two packages of white powder police found underneath a mattress
in Wiley's apartment. Defense counsel claimed the drug evidence was admissible as
part of the res gestae of the crime, to explore possible bias on the part of the State's
witnesses who were not charged with any drug offenses, and to challenge the
thoroughness of the police investigation. The trial court granted the motion on grounds
that the evidence was more prejudicial than probative. The trial court allowed defense
counsel to ask witnesses about alcohol or drug use on the night of the incident to test
their perceptions.
After the State rested its case, the court dismissed the second degree assault
charge against Barroso. The jury convicted Barroso and Fernandez Medina each of
one count of first degree burglary on accomplice and principal liability. The jury found
Fernandez Medina not guilty of second degree assault but guilty of the lesser included
misdemeanor crime of unlawful display of a weapon. The defendants appeal.1
ANALYSIS
Exclusion of Alleged Drug Evidence
Fernandez Medina argues the trial court abused its discretion when it excluded
evidence that police discovered two small bags of white powder in Wiley's apartment.
No tests were performed on the white powder substance. This court reviews a trial
court's evidentiary rulings for an abuse of discretion. State v. Grier. 168 Wn. App. 635,
644, 278 P.3d 225 (2012). A trial court abuses its discretion only if the decision is
1Codefendant Barbara Ono is not part of this appeal.
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No. 73638-8-1/4
"manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons." State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Fernandez Medina contends that this alleged drug evidence was admissible as (1) res
gestae evidence, (2) evidence of bias, or (3) to impeach the thoroughness of the police
investigation. Because the evidence was unrelated to the crime charged and the trial
court allowed defense counsel to ask Wiley about drug use and any preferential
treatment from the State, the trial court did not abuse its discretion when it excluded the
alleged drug evidence.
Res Gestae
First, Fernandez Medina argues the alleged drug evidence discovered in Wiley's
apartment was relevant as "res gestae" evidence. Washington courts have recognized
that "res gestae" or "same transaction" evidence may be admissible to "complete the
story of the crime on trial by proving its immediate context of happenings near in time
and place." State v. Lane. 125 Wn.2d 825, 831, 889 P.2d 929 (1995) (quoting State v.
Tharp. 27 Wn. App. 198, 204, 616 P.2d 693 (1980)). Fernandez Medina contends that
the alleged drug evidence would have "completed the picture" of the events leading up
to the shooting because drug use could explain Wiley's angry and belligerent behavior.
But the alleged drug evidence Fernandez Medina sought to admit was not
immediately relevant to the context of the charged crime. For example, in State v.
Trickier. 106 Wn. App. 727, 25 P.3d 445 (2001), Trickier was charged with possession
of a stolen credit card. Trickier. 106 Wn. App. at 733. The State sought to admit as res
gestae evidence that police discovered at least 16 pieces of other stolen property in
Trickler's possession. Trickier. 106 Wn. App. at 734. The court held that the trial court
No. 73638-8-1/5
abused its discretion when it admitted this evidence because it was not immediately
relevant to the charged crime and unfairly prejudiced the defendant:
While the events leading up to the discovery of the stolen credit
card were relevant and somewhat probative, it was not shown that Mr.
Trickler's possession of other allegedly stolen items was an inseparable
part of his possession of the stolen credit card, which is the test commonly
used in this state ... After hearing the witnesses' testimony and seeing
evidence of 16 pieces of stolen property, the jury was left to conclude that
Mr. Trickier is a thief.
Trickier. 106 Wn. App. at 734 (emphasis added). Similarly, Fernandez Medina has
failed to show that the alleged drug evidence discovered in Wiley's apartment was an
inseparable part of the circumstances surrounding the charged crime. If the alleged
drugs had somehow been related to the altercation between Wiley and Fernandez
Medina, it might be admissible as res gestae evidence. But Fernandez Medina has
failed to show that the alleged drug evidence is in any way related to the events leading
up to the altercation other than police happened to discover two bags of white powder
underneath Wiley's mattress well after the events occurred.
Fernandez Medina claims that the evidence might explain Wiley's behavior, but
the trial court specifically tailored its ruling to allow defense counsel to inquire about
Wiley's drug use. Typically, a witness' use of alcohol or other drugs at the time of the
events in question is generally admissible to show that the witness may not remember
the events accurately. State v. Clark. 48 Wn. App. 850, 743 P.2d 822 (1987). But a
witness' general use of alcohol or other drugs, unrelated to the specific events in
question, is inadmissible for impeachment unless the proponent is able to offer some
proof of the effects of the drugs upon the credibility of the witness at the time of trial.
State v. Tigano. 63 Wn. App. 336, 818 P.2d 1369 (1991). Here, Fernandez Medina
No. 73638-8-1/6
argues the alleged drug evidence should have been admitted as res gestae evidence
because it could explain Wiley's behavior. But the trial court already allowed defense
counsel to ask the witnesses about any substances they may have used on the night in
question:
[A]ny issues regarding drugs found are irrelevant except to the
extent that the parties can present evidence that any witness and/or
defendant appeared to be impaired or under the influence of a controlled
substance and/or alcohol. That type of evidence, impairment, that might
affect conduct is generally admissible. This is not a drug-related case,
and so, in general, other—unless there is evidence that this dispute was
over some sort of a drug deal or something of that nature, it's not relevant
to the proceedings as I see it.
RP (Jan 13, 2014) at 279-80 (emphasis added). The trial court allowed defense
counsel to introduce drug evidence insofar as it was related to the witnesses'
impairment. If defense counsel believed that drug usage might be relevant to Wiley's
behavior, they were free to ask Wiley if he had used any substances that night. The
record shows defense counsel specifically asked Wiley if anyone in his apartment had
consumed any substances. The State objected, referring to its motion in limine seeking
to exclude drug evidence. But the trial court overruled the State's objection,
commenting that defense's question was "an appropriate question to ask." RP (Jan. 15,
2014) at 766. In other words, defense counsel was able to address drug evidence for
the precise purpose they claimed it was relevant—whether Wiley's behavior or
perception was impaired due to drug use.
Fernandez Medina relies heavily on State v. Grier. 168 Wn. App. 635, 278 P.3d
225 (2012). Grier is inapplicable here. Grier appealed her second degree murder
conviction, arguing the trial court erred when it admitted res gestae evidence.
Specifically, the trial court admitted evidence that Grier had insulted two witnesses and
No. 73638-8-1/7
threatened one of them with a gun. Grier. 168 Wn. App. at 643-44. The court held that
the trial court did not abuse its discretion because this evidence illustrated "the
continuing events leading to the murder." Grier. 168 Wn. App. at 647-48. Unlike this
case, the res gestae evidence offered in Grier was directly relevant to factual issues
underlying the second degree murder charge. Further, the evidence offered in Grier
provided the crime's context by detailing the specific events leading up to the shooting.
Fernandez Medina failed to show that the drug evidence here is relevant to his burglary
and assault charge. The record shows defense counsel specifically asked Wiley
whether he had consumed any substances that night. Under these circumstances, the
trial court acted well within its discretion when it excluded the alleged drug evidence.
Bias
For similar reasons, Fernandez Medina has failed to show that the trial court
should have allowed the alleged drug evidence to show that Wiley received preferential
treatment from the State. Fernandez Medina contends that the State never charged
Wiley with any drug offense despite finding two bags of white powder in his apartment.
He claims declining to charge Wiley was a form of preferential treatment the State
granted Wiley in exchange for his testimony. Therefore, the alleged drug evidence was
necessary to show bias.
But Fernandez Medina was expressly allowed to cross-examine any witness
regarding preferential treatment. Generally, a criminal defendant has a constitutional
right to impeach a prosecution witness with evidence of bias. Davis v. Alaska. 415 U.S.
308, 316-18, 94 S. Ct. 1105, 39 L Ed. 2d 347 (1974). However, "the scope or extent of
such cross-examination is a matter within the discretion of the trial court." State v.
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Kimbriel. 8 Wn. App. 859, 866, 510 P.2d 255 (1973) (quoting State v. Willis. 3 Wn. App.
643, 645, 476 P.2d 711 (1970)). Although the trial court here excluded the alleged drug
evidence, he expressly allowed defense counsel to ask witnesses "whether police or
prosecutors have offered or made any promises or threats for their testimony." RP
(Jan. 13, 2014) at 291-92. This ruling was well within the trial court's discretion,
particularly in light of the general rule that a witness' drug or alcohol use is inadmissible
except to show that it impacted the witness' behavior or perception. See, e.g.. Clark. 48
Wn. App. at 850.
Fernandez Medina cites Kimbriel to support his argument. But Kimbriel does not
apply to this case because there is no evidence of preferential treatment here. Defense
counsel essentially sought to admit the evidence for an improper purpose—to invite the
jury to view Wiley in a bad light.
Evidence of Inadeouate Police Investigation
Fernandez Medina also argues that the alleged drug evidence was relevant to
discredit the caliber of the police investigation. He claims that, because police did not
test the substance, this amounts to "sloppy police work" sufficient to attack the State's
theory of the case. Br. of Appellant Fernandez Medina at 18.
This argument fails. Although evidence of sloppy police work may be relevant to
impeaching the thoroughness of a police investigation, such evidence is typically only
relevant in limited circumstances. For instance, mishandled or inadequately collected
evidence may be relevant when the allegedly tainted evidence is presented to show the
defendant's guilt. See, e.g.. State v. Rafav. 168 Wn. App. 734, 803, 295 P.3d 83
(2012). Poor police investigation may also be relevant to show that investigators failed
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No. 73638-8-1/9
to pursue leads that the alleged crime was committed by someone other than the
defendant. See United States v. Crosby. 75 F.3d 1343, 1347 (9th Cir. 1996). Here, the
alleged drug evidence was irrelevant to the charged crimes. The presence or absence
of the alleged drugs in Wiley's apartment had no bearing on whether Fernandez Medina
committed either burglary or assault. Similarly, that evidence did not tend to show that
someone else had committed the burglary or assault. The trial court did not abuse its
discretion when it concluded that the alleged drug evidence was inadmissible as more
prejudicial than probative.
Self-Defense Instruction (Fernandez Medina)
Fernandez Medina argues the court erred when it declined to give his proposed
self-defense instruction to the jury. The trial court did not abuse its discretion when it
concluded that no evidence indicated Fernandez Medina acted in self-defense.
We review the trial court's decision not to provide a self-defense instruction for an
abuse of discretion:
The standard of review when the trial court has refused to instruct
the jury on self-defense depends on why the court refused the instruction .
.. If the trial court refused to give a self-defense instruction because it
found no evidence supporting the defendant's subjective belief of
imminent danger of great bodily harm, an issue of fact, the standard of
review is abuse of discretion. If the trial court refused to give a self-
defense instruction because it found no reasonable person in the
defendant's shoes would have acted as the defendant acted, an issue of
law, the standard of review is de novo.
State v. Read. 147 Wn.2d 238, 243, 53 P.3d 26 (2002). Here, the record shows that the
trial court refused to give the self-defense instruction because it found no evidence
supporting Fernandez Medina's subjective belief that he was in danger of injury. See
RP (Jan. 21, 2014) at 1277 ("There is no testimony that your client believed on any
No. 73638-8-1/10
grounds that he was actually in danger of injury and acted in defense of himself....").
Accordingly, an abuse of discretion standard applies here. Fernandez Medina does not
argue that any other standard applies. A trial court abuses its discretion only if the
decision is "manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons." Junker. 79 Wn.2d at 26.
When a defendant asks the trial court to instruct the jury on self-defense in an
assault case,2 the defendant has the burden of introducing some evidence
demonstrating that he reasonably believed he was about to be injured. State v. Woods.
138 Wn. App. 191, 199, 156 P.3d 309 (2007). The trial court must view the evidence in
the light most favorable to the defendant. State v. Callahan. 87 Wn. App. 925, 933, 943
P.2d 676 (1997). "Although it is essential that some evidence be admitted in the case
as to self-defense, there is no need that there be the amount of evidence necessary to
create a reasonable doubt in the minds of jurors on that issue." State v. Janes. 121
Wn.2d 220, 237, 850 P.2d 495 (1993) (quoting State v. McCullum. 98 Wn.2d 484, 488,
656 P.2d 1064 (1983)). While this is a low burden, "it is not nonexistent." Janes. 121
Wn.2d at 237. Indeed, "a self-defense instruction is not available to an aggressor."
State v. George. 161 Wn. App. 86, 96, 249 P.3d 202 (2011): see also State v. Currie. 74
Wn.2d 197, 198, 443 P.2d 808 (1968) ("In a prosecution for assault it is not improper to
refuse an instruction on self-defense where there is nothing to justify a reasonable
inference that the defendant acted in legitimate self-defense. The undisputed evidence
2 There is some confusion as to whether Fernandez Medina presented his self-
defense theory.
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No. 73638-8-1/11
clearly establishes that the defendant was the aggressor and precipitated the incident in
Question." (emphasis added) (citations omitted)).
The trial court did not abuse its discretion when it declined to give Fernandez
Medina's proposed self-defense instruction because he failed to present any evidence
that he had a reasonable belief that he was about to be injured. In fact, the record
shows that Fernandez Medina "precipitated the incident in question," and therefore
denying his proposed self-defense instruction was proper. Currie. 74 Wn.2d at 198.
As discussed above, the series of events culminating with the physical altercation
began with a verbal argument between Fernandez Medina and Wiley in the parking lot
of the apartment complex. Eventually Fernandez Medina left, telling Wiley, "I have
something for you. I will be right back." RP (Jan. 13, 2014) at 376. Fernandez Medina
went to Wiley's apartment complex to visit Wiley's neighbor, James Schlagel. Schlagel
testified that he went over to Fernandez Medina's apartment shortly after Fernandez
Medina argued with Wiley in the parking lot. Schlagel said that Fernandez Medina was
in his apartment with three others. Fernandez Medina told Schlagel that "he had to get
his gun." RP (Jan. 21, 2014) at 1164. Schlagel explained: "He [Fernandez Medina]
went into his apartment and came out suddenly, real quick, and [came] running, and he
had the pistol in his pants, and I could see him having it. He said, 'Get in the car.' I
went... and the car was full, a couple—several people in there, four, I think, or
something." RP (Jan. 21, 2014) at 1164. Schlagel said they drove back to the
apartment complex where he lived. Then, Fernandez Medina and the other three men
with him went to apartment 5—where Wiley lived—and "beat on the door and yelled
out." RP (Jan. 21, 2014) at 1167.
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No. 73638-8-1/12
Snezhana Stetsyuk, who was inside Wiley's apartment at the time, testified that
she saw four men approach the door to the apartment. She recognized Fernandez
Medina was among them. She remembered him from the earlier argument with Wiley.
She testified that "they started banging on the door," so they gave them verbal warnings
to leave: "We started yelling, 'there is a two-year-old girl in here. There is a licensed
carrier with a gun in here and take your problems elsewhere, and leave us alone.' They
kept on banging and banging " RP (Jan. 13, 2014) at 383. Kyla King, Wiley's wife,
testified that Fernandez Medina was telling Wiley to come outside of the apartment.
DeAngelo White, who was also in the apartment, testified that "someone was banging
on the door. It wasn't a regular knock, so it's boom, boom, boom, boom. Someone is
just banging on the door." RP (Jan. 14, 2014) at 514. He also stated that the
individuals inside the apartment gave Fernandez Medina and the others verbal
warnings to leave: "So Kyla [Wiley's wife] was also screaming, you know, 'We have a
gun in here. My little sister is in here. You know, get away from here. There is a gun in
here, we'll shoot.'" RP (Jan. 14, 2014) at 524.
Multiple witnesses testified that after the door opened, Fernandez Medina stated
"I'm back" and punched Wiley in the face3:
[STETSYUK:] Fernandez said ... "I am back." He said the B word
and then punched him [Wiley] right away.
RP(Jan. 13, 2014) at 386.
[WILEY:] I started walking toward the door because, you know, clearly
you just broke my door, and you know, I got hit in the face.
[STATE:] And is the person who hit you here in court?
[WILEY:] Yes.
3 The record also shows that Valle-Matos reached in and tried to stab Wiley.
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No. 73638-8-1/13
[STATE:] Who was it?
[WILEY:] The one with the cream shirt.
[STATE:] So Mr. Fernandez Medina?
[WILEY:] Yes.
RP(Jan. 15, 2014) at 735-37.
[WHITE:] [T]he next thing I know ... Fernandez and Dijon [Wiley] are
face to face, and then Fernandez threw a blow at [Wiley].
RP(Jan. 14, 2014) at 517.
[STATE:] What was the distance from you to Dijon [Wiley] at the time
he was hit in the face?
[KING:] I was probably not even like two feet away from him .. .
[STATE:] Did you see the individual who hit him?
[KING:] Yes.
[STATE:] Go ahead and describe that person for us.
[KING:] The person would be the defendant in the purple dress-up
shirt.
[STATE:] Okay. Now, up until this point in your testimony, had you
seen Defendant Fernandez Medina up until this point?
[KING:] No.
[STATE:] Okay. So is the first time you saw him, this incident at the
door?
[KING:] Yes.
[STATE:] How much of him did you see at that time?
[KING:] I have seen—I have seen his face and basically everything
that he was wearing and all of that pretty much. He didn't really talk
much. It was that, "I'm back" and then hit him.
RP (Jan. 14, 2014) at 643-45. The witnesses' testimony shows that Fernandez Medina
precipitated the incident in question here. He and Wiley got in an argument in the
parking lot. Fernandez Medina left, but he told Wiley that he would be back and that he
had something for him. He then went back to his apartment and got his gun and three
friends—Barbara Ono, Lazaro Valle-Matos, and Barroso. The four of them then
returned to Wiley's apartment. Three of the four men outside Wiley's apartment were
armed; Fernandez Medina had a gun, Valle-Matos had a knife, and either Ono or
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No. 73638-8-1/14
Barroso had a baseball bat. They did not leave despite repeated verbal warnings from
the individuals inside the apartment. Fernandez Medina banged on the door and told
Wiley to come out. After the door was pushed open, Fernandez Medina punched Wiley.
Fernandez Medina claims that "there was evidence from which the jury could
infer Wiley was the aggressor." Br. of Appellant Fernandez Medina at 22. But the
citation following this assertion is a discussion between defense counsel and the trial
court, not evidence. Fernandez Medina states that "not everyone saw the first slap, and
the jury could have found given the evidence of Wiley's aggression, that Wiley struck
first." Br. of Appellant Fernandez Medina at 23. Nothing in the record supports an
inference that Wiley struck first. At best, the record shows that DeAngelo White may
not have seen who threw the first punch:
[MS. HIGH]: [Y]ou had indicated that you had heard a slap, unmistakable
sound of someone being hit; is that right?
[WHITE]: Yes.
[MS. HIGH]: But you didn't actually see who threw that first punch, did
you?
[WHITE]: No.
RP (Jan. 14, 2014) at 569.4 This does not show that Wiley struck first, particularly in
light of the evidence from the other witnesses, discussed above, who all testified that
Fernandez Medina hit Wiley.
Fernandez Medina also relies on other evidence suggesting that Wiley was
acting aggressively. For example, White testified that after the argument with
Fernandez Medina in the parking lot, Wiley said he would "be ready if anyone comes
4 This exchange occurred during cross-examination. It is inconsistent with
White's testimony during direct examination, where he stated that Fernandez Medina
punched Wiley.
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No. 73638-8-1/15
back." RP (Jan. 14, 2014) at 555. White also agreed that Wiley was "amped up" after
the argument. RP (Jan. 14, 2014) at 552. When Fernandez Medina came back to
Wiley's apartment, Wiley walked to the door and said, "What the F you want?" RP (Jan.
15, 2014) at 733. Fernandez Medina also points to the "threats" made by individuals
inside the apartment. For example, King yelled that they had a gun and would shoot.
RP(Jan. 14, 2014) at 524.
These few instances in the record do not "justify a reasonable inference that the
defendant acted in legitimate self-defense." Currie, 74 Wn.2d at 198. Nor do they show
that Fernandez Medina believed he was in danger of injury. Woods. 138 Wn. App. at
199. Fernandez Medina characterizes Wiley's behavior as "aggressive," but nothing in
the record suggests that Wiley's behavior led Fernandez Medina to believe he might be
in danger. On the contrary, Fernandez Medina precipitated the events culminating in
the physical altercation. After the initial argument, Fernandez Medina warned Wiley that
he would be back, he left the parking lot, he retrieved three friends and weapons, and
then he returned specifically to confront Wiley. The record shows the individuals inside
the apartment were afraid of Fernandez Medina and wanted him to leave. After the
argument in the parking lot, King said they just waited in their apartment for the
defendants to come back. She said that she was worried because she did not know
what was going to happen and because there was a child in the house. She continued:
"I told them to please go away because there was a child and there is weapons in the
house ... I yelled loud enough to where they could hear me through the door... I kept
repeating it because they just kept knocking." RP (Jan. 14, 2014) at 650. The alleged
"threats" Fernandez Medina claims support his self-defense argument were verbal
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No. 73638-8-1/16
warnings intended to persuade Fernandez Medina to leave. Under these
circumstances, the trial court did not abuse its discretion when it denied Fernandez
Medina's proposed self-defense instruction.5 See Currie. 74 Wn.2d at 198.
Prosecutorial Misconduct
Barroso contends the prosecutor made improper statements during closing
argument that allegedly commented on Barroso's failure to testify. Specifically, Barroso
claims that the prosecutor stated that certain facts were "undisputed" and that there was
"no evidence" showing contrary facts throughout closing argument. These comments,
he argues, necessarily invited the jury to draw a negative inference from his decision
not to testify. We disagree.
Both the federal and state constitutions protect a criminal defendant's rights to
remain silent and be free from self-incrimination. U.S. Const, amend. V; Wash. Const.
art. 1, § 9. A prosecutor violates these rights when he or she improperly comments on
a defendant's refusal to testify. State v. Ramirez. 49 Wn. App. 332, 336, 742 P.2d 726
(1987). A prosecutor's statements are impermissible when they are of "such character
that the jury would 'naturally and necessarily accept it as a comment on the defendant's
failure to testify.'" Ramirez. 49 Wn. App. at 336 (quoting State v. Crawford. 21 Wn. App.
146, 152, 584 P.2d 442 (1978)). However, "a prosecutor may state that certain
testimony is not denied, without reference to who could have denied it... and may
comment that evidence is undisputed." State v. Morris. 150 Wn. App. 927, 931, 210
P.3d 1025 (2009) (citation omitted); see also State v. Ashbv. 77 Wn.2d 33, 37, 459
P.2d 403 (1969) ("Surely the prosecutor may comment upon the fact that certain
5 None of the defendants testified.
16
No. 73638-8-1/17
testimony is undenied, without reference to who may or may not be in a position to deny
it and, if that results in an inference unfavorable to the accused, he must accept the
burden ... because the choice to testify or not was wholly his."). When a prosecutor
asserts that certain facts are undisputed or that there was no evidence as to contrary
facts, there is no violation unless "no one other than [the defendant] himself could have
offered the explanation the State demanded." State v. Fiallo-Lopez. 78 Wn. App. 717,
729, 899 P.2d 1294.
All of the allegedly improper statements Barroso cites are permissible because
they either (1) comment that evidence is "undisputed," or (2) state that certain testimony
is not denied without any reference to who could deny it. See Morris. 150 Wn. App. at
931.
Barroso alleges that the following statements impermissibly comment on his
refusal to testify:
The prosecutor stated that the evidence showed "what Dijon Wiley did and where
he was at the time he sustained the slap or the hit or whatever it was that was done
to him as soon as that door was open." RP (Jan. 22, 2014) at 1351. The prosecutor
next said that this evidence was "all but undisputed." RP (Jan. 22, 2014) at 1351.
The prosecutor later commented that it was "virtually undisputed that inside that
apartment was a two-year-old child," and that "there was no testimony from anyone
about an invitation to come into that apartment." RP (Jan. 22, 2014) at 1352.
The prosecutor continued to illustrate the consistency of the witnesses'
testimony:
There is no evidence that Dijon Wiley, that when the door
was opened, they stepped back so that he could step out and they
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No. 73638-8-1/18
could get it on in the parking lot, no evidence of that whatsoever.
No one testified that that happened. There was no evidence that
Valle-Matos backed away from the door in order to allow the fight to
be brought outside, none of them.
RP(Jan. 22, 2014) at 1360.
After describing what the witnesses' stated about the events near the door of the
apartment, the prosecutor asked, "in that description, do you see any evidence
whatsoever of just being present at the scene as though one were a bystander?" RP
(Jan. 22, 2014) at 1368.
"[Tjhey were at the door not backing away, not saying, you know, there is gonna
be a fight out here in the parking lot, no testimony of that whatsoever." RP (Jan.
22, 2014) at 1368.
Regarding the witnesses: "Is there any evidence that they all got together and got
all their stories straight? None whatsoever." RP (Jan. 22, 2014) at 1370.
"Barroso . .. intentionally walked toward that apartment. Don't think there is
whole lot of dispute about that. Intentionally positioned themselves at the door of
the apartment. No dispute about that." RP (Jan. 22, 2014) at 1371.
These statements are permissible because the prosecutor did not directly or
indirectly reference who could deny it. Many of the witnesses at trial could have denied
these statements because they personally witnessed the events in question. In other
words, Barroso was not the only person who could have denied these facts. Defense
counsel had a complete opportunity to cross-examine each witness about the
circumstances surrounding the incident in the apartment, the defendants' behavior, and
whether the witnesses "got their stories straight." Therefore, the prosecutor's
statements here do not directly or indirectly comment on Barroso's refusal to testify.
18
No. 73638-8-1/19
See Fiallo-Lopez. 78 Wn. App. at 729 (statements impermissible because "no one other
than [the defendant] could have offered the explanation the State demanded."); see also
Morris. 150 Wn. App. at 931-32 ("We agree with the State that it was no more improper
for the prosecutor to comment on the consistency of the testimony of the six witnesses
who testified in the State's case-in-chief than it was for defense counsel to point out the
inconsistencies in that same testimony.").
Barroso relies primarily on Fiallo-Lopez and State v. Fleming. 83 Wn. App. 209,
921 P.2d 1076 (1996). These cases are distinguishable. In Fleming, the court held that
the prosecutor's statements were impermissible because they "improperly shifted the
burden to the defendants to disprove the State's case." Fleming. 83 Wn. App. at 214.
Specifically, the prosecutor argued that the only way the jury could acquit was if they
proved that the State's witnesses were lying:
Ladies and gentlemen of the jury, for you to find the defendants,
Derek Lee and Dwight Fleming, not guilty of the crime of rape in the
second degree, with which each of them have been charged, based on
the unequivocal testimony of [D.S.] as to what occurred to her back in her
bedroom that night, you would have to find either that [D.S.] has lied about
what occurred in that bedroom or that she was confused; essentially that
she fantasized what occurred back in that bedroom.
Fleming. 83 Wn. App. at 213. The prosecutor than continued, stating there was no
evidence that the witness had lied and that the defendants had not explained some of
the evidence in the case:
[T]here is absolutely no evidence . .. that [D.S.] has fabricated any
of this or that in any way she's confused about the fundamental acts that
occurred upon her back in that bedroom. And because there is no
evidence to reasonably support either of those theories, the defendants
are guilty as charged of rape in the second degree.
... [I]t's true that the burden is on the State. But you ... would
expect and hope that if the defendants are suggesting there is a
19
No. 73638-8-1/20
reasonable doubt, they would explain some fundamental evidence in this
[matter]. And several things, they never explained.
Fleming. 83 Wn. App. at 214. The prosecutor's statements in Fleming did three things:
(1) they suggested that the only way the jury could acquit was if they found that the
victim either lied or was confused, (2) they indicated there was no evidence that the
victim had lied or was confused, and (3) they directly commented on the defendants'
failure to explain the evidence in the case. The court held that the combination of these
statements improperly shifted the evidentiary burden and infringed upon the defendants'
Fifth Amendment rights. Fleming. 83 Wn. App. at 216.
Fleming is distinguishable here. First, the prosecutor here never directly or
indirectly commented on the defendants' failure to explain any evidence. Second, the
prosecutor's statements here did not improperly shift the evidentiary burden by
suggesting the defendant's had failed to disprove anything asserted by the State's
witnesses. The prosecutor merely stated that certain facts were "undisputed,"
"undenied," or that there was "no evidence" showing contrary facts, and he never
indicated that the defendants were the only ones who could explain those facts. These
statements are permissible. See, e.g.. Morris. 150 Wn. App. at 931.
Next, Barroso relies on Fiallo-Lopez. In that case, the prosecutor stated there
was "no evidence to explain why Fiallo-Lopez was present at the restaurant and at
Safeway precisely when Lima and Cooper were there for the drug transaction." Fiallo-
Lopez. 78 Wn. App. at 729. The prosecutor also "argued that there was no attempt by
the defendant to rebut the prosecution's evidence regarding his involvement in the drug
deal." Fiallo-Lopez. 78 Wn. App. at 729. Fiallo-Lopez is distinguishable for two
reasons: first, unlike the prosecutor in Fiallo-Lopez. the prosecutor here never argued
20
No. 73638-8-1/21
that "there was no attempt by the defendant to rebut the prosecution's evidence."
Fiallo-Lopez. 78 Wn. App. at 729. Second, the court in Fiallo-Lopez determined the
prosecutor had committed misconduct in part because "no one other than Fiallo-Lopez
himself could have offered the explanation the State demanded." Fiallo-Lopez. 78 Wn.
App. at 729 (emphasis added). That is not the case here. Each allegedly improper
statement Barroso cites in this case involves the prosecutor asserting that a certain fact
is undisputed or that no evidence showed contrary facts. Unlike in Fiallo-Lopez.
Barroso is not the only one who could explain those facts. Many of the testifying
witnesses were present for those alleged events, and defense counsel had an
opportunity to cross-examine each witness as to those alleged facts. None of the
prosecutor's statements were improper. See Morris. 150 Wn. App. at 931 ("[a]
prosecutor may state that certain testimony is not denied, without reference to who
could have denied it..." (emphasis added)).
Finally, absent a timely objection, a prosecutor's alleged misconduct cannot be
raised on appeal unless it was so flagrant and ill-intentioned that no curative instruction
could have obviated the resulting prejudice. State v. Warren. 165 Wn.2d 17, 29,195
P.3d 940 (2008). As discussed above, there was no misconduct here. Regardless, any
prejudice to Barroso could have been corrected with a curative instruction. Further, we
are reluctant to find prejudice when the trial court instructs the jury that a defendant's
decision not to testify cannot be used to infer guilt or prejudice. See Morris, 150 Wn.
App. at 932. The trial court provided such an instruction in this case. Barroso's
prosecutorial misconduct claim fails.
21
No. 73638-8-1/22
Confrontation Clause
Barroso claims the trial court violated his rights under the confrontation clause
when, at several points during the trial, he was unable to view witness testimony. But a
few minor interferences with Barroso's view of a witness does not amount to a
confrontation clause violation. Barroso argues that the confrontation clause requires a
completely uninhibited line-of-sight between the defendant and the witness throughout
an entire trial. However, such a rigid rule is not supported by case law or the underlying
purpose of the confrontation clause. Rather, "substantial compliance" is usually
adequate. Maryland v. Craig. 497 U.S. 836, 847, 110 S. Ct. 3157, 111 L. Ed. 2d 666
(1990) (quoting Ohio v. Roberts. 448 U.S. 56, 69, 100 S. Ct. 2531, 65 L. Ed. 2d 597
(1980)).
The confrontation clause of the Sixth Amendment, made applicable to the states
through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused
shall enjoy the right... to be confronted with the witnesses against him." U.S. Const.
Amend. VI. The confrontation clause "guarantees the defendant a face-to-face meeting
with witnesses appearing before the trier of fact." Cov v. Iowa. 487 U.S. 1012, 1016,
108 S. Ct. 2798,101 L Ed. 2d 857 (1988). Typically, the purposes of the confrontation
clause are fulfilled when the witness is physically present, under oath, subject to cross-
examination, and the trier of fact can observe the witness' demeanor. Maryland. 497
U.S. at 846.
However, the requirement for face-to-face confrontation is not without exception.
A strict, literal reading of the confrontation clause would "abrogate virtually every
hearsay exception, a result long rejected as unintended and too extreme." Roberts. 448
22
No. 73638-8-1/23
U.S. at 63. Accordingly, the Supreme Court has acknowledged that "[i]t is all but
universally assumed that there are circumstances that excuse compliance with the right
of confrontation." Maryland. 497 U.S. at 850 (quoting Graham, The Right of
Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One. 8 Crim. L
Bull. 99, 10709 (1972)). "[Substantial compliance with the purposes behind the
confrontation requirement" is sufficient. Maryland. 497 U.S. at 847 (quoting Roberts,
448 U.S. at 69). Therefore, although there is a "'preference for face-to-face
confrontation at trial,'" the Supreme Court has nevertheless "interpreted the
Confrontation Clause in a manner sensitive to its purposes and sensitive to the
necessities of trial and the adversary process." Maryland, 497 U.S. at 849 (quoting
Roberts, 448 U.S. at 63).
Barroso identifies only five instances where defense counsel actually objected to
an alleged inability to see either a witness or the jury. First, during jury selection,
defense counsel objected to the arrangements of the courtroom, stating that he and
Barroso could not see the entire jury panel. But the trial court offered an
accommodation, which defense counsel accepted:
MR. PEALE: I raised the issue previously about the arrangement of
defendants and attorneys and the courtroom, I would like to
make the Court aware that the greater part of the jury panel
is blocked visually for me and my client. And looking across
the array of attorneys and because of the architecture and
the placement of the prosecutor, et cetera, much of the
panel in the box is blocked out from view. I have a perfect
view of the general audience area.
THE COURT: I invite you to stand at any point in time, yourself. If
you are unable to see a particular juror as opposed to the
whole panel, I invite you to stand. If you remind me, I will
ask jurors in the box to stand when they respond to a
question.
23
No. 73638-8-1/24
If your client can't see a particular juror, I invite him to
slide one direction or another a short distance so that—but
not to stand, but so that he can see that particular juror. And
so if you remind me, I will ask each juror to stand. There is
no such thing as a perfect courtroom. This is one of the best
in the county. Probably doesn't come up near the standards
of the many courtrooms you've practiced in throughout the
state, particularly King County, but we will do the best we
can.
MR. PEALE: Your Honor, it's always the judge that's the thing I rely
upon, and I am very happy with Your Honor.
THE COURT: Flattery gets you a lot around here, so keep it up.
Anything else?
MR. PEALE: No. Thank vou. Your Honor.
RP (Jan. 8, 2014) at 235-36 (emphasis added). Next, Barroso cites a moment during
testimony when the display of pictures was near a defendant's head. But again, the trial
court made an accommodation that counsel accepted:
MR. JURSEK: And then the only other issue was that when the
pictures are shown, they are shown directly over top of my
client's head, and I think over the course of the trial, that
could become an issue that I am concerned about. I mean,
just—
THE COURT: We are all trying—
MR. JURSEK: If he could sit off to the side, perhaps?
THE COURT: That's fine. You can have the photos in front of you.
We have a lot—we have three defendants here, lots of
lawyers. We have interpreters. The Court's doing its utmost
to make sure that accommodations are met. I need the
cooperation of attorneys and not just complaints, if you will,
to make a record.
If you have a specific suggestion, I'd certainly
welcome it...
MR. JURSEK: And my issue is not that we can't see the pictures and
look at them. It's just every time a piece of evidence is
shown, it's gonna be right below my client's head, and my
concern is cumulatively, that can be prejudicial to my client.
THE COURT: If it's a problem, you can bring it up one at a time ...
MR. JURSEK: Thank you, Your Honor. I think we are missing each
other on the point of my objection.
24
No. 73638-8-1/25
THE COURT: What is the point of your objection?
MR. JURSEK: It was that there is going to be a photo of evidence
shown, and every picture that's shown on the screen, my
client's head is going to be immediately in plain view of that.
THE COURT: I did miss that.
MR. JURSEK: I believe over time, that's going to be prejudicial.
THE COURT: Maybe he can slide three feet this way.
MR. JURSEK: That would be great. That would solve the problems.
THE COURT: I don't have any problems with that. I told counsel,
you can stand whenever you want. I don't want your clients
to, but if they can slide one way or another.
MR. JURSEK: Is it okay if he is there and I am here?
THE OFFICER: (Witness nods head affirmatively)
THE COURT: Thank you, Mr. Jursek. Did you have anything
further?
MR. JURSEK: That was it. Your Honor. Thank vou.
RP (Jan. 13, 2014) at 357-61 (emphasis added). During Snezhana Stetsyuk's
testimony, defense counsel noted they could not see how the witness was describing a
certain event, so the prosecutor asked the witness to describe the same event again for
that attorney's benefit:
[STATE:] What was their [the defendants'] positioning in relationship to
each other?
[STETSYUK:] They are in a—walking in a line, so all four.
[STATE:] So single file?
[STETSYUK:] Uh-huh. (Witness answers affirmatively.) Not like,
you know, one, two, three. They were just in a line like one,
two, three, four.
[STATE:] Okay. So four walking together?
[STETSYUK:] Yeah.
[STATE:] Okay. Now, you've indicated one of the people you did
recognize—
MR. PEALE: Excuse me, Your Honor. I can see shoulders moving,
and I understand there was a description being made, but I
couldn't see it, and words haven't explained that to me, so.
[STATE:] I can rephrase.
MR. PEALE: So I don't know what the witness is saying by
description.
THE COURT: Okay. Go ahead.
25
No. 73638-8-1/26
[STATE:] For the benefit of Mr. Perez Barroso's lawyer, can you go
ahead and describe for us again the manner in which the
four individuals were walking toward the apartment?
[STETSYUK:] They were walking like this as in one person, two
person, three person, four person, all together.
RP (Jan. 13, 2014) at 380-81 (emphasis added). Barroso's attorney did not object
following the State's accommodation. During DeAngelo White's testimony, defense
counsel stated they could not see where the State was directing a laser pointer. Again,
the trial court instructed the State to re-demonstrate and defense counsel did not object
after this accommodation:
[STATE]: So you are saying that the incident outside was happening
more over in this direction?
[WHITE:] Yeah, like right over that way, next to the boat.
MR. PEALE: I am sorry, Your Honor. I didn't see where counsel—
THE COURT: Move it again, please.
[STATE:] As I am showing with the laser pointer, was the incident
outside over toward this direction in relationship to the front
door?
[WHITE:] Yes.
RP (Jan. 14, 2014) at 492-93. A few moments later, counsel stated he could not see
what White was drawing:
[STATE:] Now, would you also show us and use something other than
an "X," a different letter or a circle, for where the—what was
happening between Dijon and Mr. Fernandez Medina?
MR. PEALE: Excuse me. May I interrupt, Your Honor? Can we
have the witness stand to the side?
THE COURT: Let's let him draw first, then you can get as close as
you'd like, Mr. Peale. It's probably easier for him to stand
where he's able to utilize his hand and draw first. I will let
him draw, and then if you are confused as to where he's
drawn, please clarify.
MR. PEALE: I am not confused. My client needs to be able to see.
THE COURT: Absolutely. He doesn't need to see it exactly at the
moment that it's drawn. Stand wherever you'd like as you
draw what counsel has asked you about.
26
No. 73638-8-1/27
RP (Jan. 14, 2014) at 498. Defense counsel later objected to demonstrative testimony
and the court stated he could clarify during cross-examination:
MR. PEALE: Your Honor, I will object to the testimony as it was
entirely blocked from view of my client. No drawing was
made. It was demonstrated by movement of an object in a
hand while speaking. We couldn't see where he was talking
about. My client was blocked by the witness's back.
THE COURT: Certainly. And, counsel, on cross-examination, you
can use a pointer to clarify anything if you don't believe Mr.
Schact [the prosecutor] has clarified it through questioning.
RP (Jan. 14, 2014) at 501-02. A few minutes later, the witness continued to use hand
motions to describe testimony and the trial court repeatedly reminded the witness to
testify such that the jury and counsel could see what he was doing:
MR. PEALE: Your honor, I am gonna object to the demonstrative
testimony by the witness when he is blocked from view of
the jury. He is making motions, describing behaviors. Jury
can't see it because he's behind the pillar.
THE COURT: Okay. Try not to use your hands. Stay where you are
at. Keep your voice up. I know it's a lot to ask of you. We
have got a lot of people in a fairly small area, so try to keep
your voice up and just answer the question.
[WHITE:] Okay. I got it.
[WHITE:] So then I don't know. Like, I wasn't—like, I could not
see past the wall, so like, I didn't know if like he had opened
the door or what. I mean, you could hear—
THE COURT: Let me just stop you just a second. If you just want
him to point, I don't mind him being where he is. But if you
are asking him to explain things, I really prefer the jury be
able to see him, so you are gonna have to pick and choose
which of the two you want him to do; point from there, or if
you'd like him to testify, I'd like you to have him so he can be
seen by all the jurors.
[STATE:] One final question using the laser pointer... what I'd like
you to do with the laser pointer is show where his feet were.
[WHITE:] Okay. All right.. . Fernandez was standing right in front of
him. There was a guy off to this side, a guy off to this side ...
THE COURT: Hold on a second. Counsel, as I mentioned, if you
want him to point to something, fine where he is at. If not,
we will have him where the jury can see him.
27
No. 73638-8-1/28
[STATE:] Okay.
RP (Jan. 14, 2014) at 519-21. The record does not support Barroso's argument. These
few interruptions during a crowded but otherwise normal trial do not amount to a
violation of the confrontation clause. The record shows that, occasionally, counsel
and/or defendants had difficulty viewing specific testimony from the witnesses—for
example, pointing to diagrams or using hand movements to demonstrate certain events.
But the record also shows the trial court's efforts to accommodate all of these
interruptions.6 Defense counsel appears to have accepted these accommodations in all
cases, either explicitly on the record or implicitly by declining to object following the
accommodation. Further, as the trial court noted, if defense counsel had an issue with
any of the witness' testimony, he was free to clarify that testimony during cross-
examination. Therefore, defense counsel was free to ask any witness to repeat earlier
testimony—for instance, pointing to a diagram or drawing—in a way that his client could
see it. "p"]he Confrontation Clause is generally satisfied when the defense is given a
full and fair opportunity to probe and expose [testimonial] infirmities through cross-
examination " Delaware v. Fensterer. 474 U.S. 15, 22, 106 S. Ct. 292, 88 L Ed.
2d. 15 (1985). To the extent that any of these incidents infringed on Barroso's
confrontation clause rights, those infringements were minimal, and the right to face-to-
face confrontation is not absolute. Maryland. 497 U.S. at 837. Any interpretation of the
confrontation clause must be "sensitive to its purposes and sensitive to the necessities
6 The record shows the trial court's extraordinary efforts to accommodate all the
participants in this physically cramped courtroom.
28
No. 73638-8-1/29
of trial and the adversary process." Maryland. 497 U.S. at 849 (quoting Roberts. 448
U.S. at 63).
The underlying purpose of the face-to-face requirement illustrates that there was
no violation here. Face-to-face confrontation is preferred because it enhances the
accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an
Innocent person. See Coy, 487 U.S. at 1019-20 ("It is always more difficult to tell a lie
about a person to his face than behind his back.") The Supreme Court has also "noted
the strong symbolic purpose served by requiring adverse witnesses at trial to testify in
the accused's presence." Maryland. 497 U.S. at 847: see also Cov, 487 U.S. at 1017
("[T]here is something deep in human nature that regards face-to-face confrontation
between accused and accuser as 'essential to a fair trial in a criminal prosecution.'"
(quoting Pointer v. Texas. 380 U.S. 400, 404, 85 S. Ct. 1065, 13 L Ed. 2d 923 (1965)).
Barroso achieved a face-to-face confrontation with the adverse witnesses in this
case within the meaning of the confrontation clause. The record shows that throughout
nearly the entire trial the defendants had a full view of all the witnesses. It was only
during these few instances when witnesses were asked to move to different parts of the
courtroom, draw a diagram, point to something on a picture, or use their hands that the
defendants had difficulty perceiving all the nuances of the witnesses' testimony.
Barroso fails to explain how these few instances of logistical difficulty—all of which were
immediately remedied by the trial court—in any way prevented a face-to-face
confrontation of the witnesses such that those witnesses were somehow more likely to
provide false testimony. Further, as mentioned above, Barroso had an opportunity to
29
No. 73638-8-1/30
explore any witness' testimonial deficiencies with cross-examination. Under these
circumstances, Barroso cannot show that his confrontation clause rights were violated.
Barroso fails to cite any authority analogous to this case. Barroso primarily relies
on Coy. In that case, the Supreme Court reversed the defendant's conviction when the
trial court implemented a screen that was "specifically designed to enable the
complaining witnesses to avoid viewing appellant as they gave their testimony." Cov.
487 U.S. at 1020. The court recognized that circumstances in Cov were extreme, and
that other exceptions might exist to the requirement that a defendant be allowed to
confront adverse witnesses face-to-face. Cov. 487 U.S. at 1021 ("[T]he irreducible
literal meaning of the Clause: 'a right to meet face to face all those who appear and give
evidence at trial.... We leave for another day, however, the question whether any
exceptions exist." (quoting California v. Green. 399 U.S. 149, 175, 90 S. Ct. 1930, 26 L.
Ed. 2d. 489 (1970)). The court clearly answered this question in Maryland: "The
Confrontation Clause does not guarantee criminal defendants an absolute right to a
fact-to-face meeting with the witnesses against them at trial." Maryland. 497 U.S. at
836-37. Rather, this right must be sensitive to the necessities of the trial process. One
of those necessities is adjusting to the physical layout of the courtroom. See State v.
Dye. 178 Wn.2d 541, 309 P.3d 1192 (2013) (a trial court has broad discretion to make a
variety decisions regarding the conduct of trial).
Even if these interruptions amounted to a violation of the confrontation clause,
that violation was harmless error. See State v. Watt. 160 Wn.2d 626, 635, 160 P.3d
640 (2007) ("we hold that confrontation violations ... are subject to a harmless error
analysis."). A constitutional error is harmless if the court is convinced that beyond a
30
No. 73638-8-1/31
reasonable doubt that any reasonable jury would have reached the same result in the
absence of the error. Watt. 160 Wn.2d at 635. Had the interruptions Barroso cites not
occurred in this case, any reasonably jury would have reached the same result. As
explained above, these interruptions posed minimal interference with the trial as a
whole. The trial court accommodated each interruption. The record shows that,
generally, these interruptions mainly affected defense counsel and not the jury. Given
the overwhelming evidence in this case, any reasonable jury would have reached the
same result absent the errors.
Reasonable Doubt Instruction
Both defendants argue that the trial court erred when it declined to use defense
counsel's proposed reasonable doubt instruction. The State offered, and the court
accepted, a reasonable doubt instruction providing: "If, from such consideration [of the
evidence or lack of evidence], you have an abiding belief in the truth of the charge, you
are satisfied beyond a reasonable doubt." Clerk's Papers (CP) at 114. Defense
counsel proposed, and the trial court rejected, a similar instruction without the "belief in
the truth" language. RP (Jan. 22, 2014) at 1285. Citing State v. Emery. 174 Wn.2d
741, 278 P.3d 653 (2012), the defendants argue that by "equating proof beyond a
reasonable doubt with a 'belief in the truth of the charge,' the jury instruction blurs the
critical role of the jury." Br. of Appellant Fernandez Medina at 25.
Washington courts have repeatedly rejected this argument. State v. Federov.
181 Wn. App. 187, 200, 324 P.3d 784 (2014) (Finding no error where the trial court
used the same "reasonable belief" instruction used here—WPIC 4.01—stating that "the
'belief in the truth' phrase accurately informs the jury its 'job is to determine whether the
31
No. 73638-8-1/32
State has proved the charged offenses beyond a reasonable doubt.'" (quoting Emery.
174 Wn.2d at 760)). The defendants nevertheless ask us to reconsider Federov. We
decline to do so. Federov controls here. The trial court did not abuse its discretion
when it denied defense counsel's proposed reasonable doubt instruction.
Statement of Additional Grounds
Fernandez Medina provides five additional grounds for reversal under RAP
10.10. They are meritless.
Motion to Sever
First, Fernandez Medina argues the trial court abused its discretion by declining
to sever the trials. The trial court acted within its discretion when it declined to sever the
trials.
A trial court has broad discretion to grant or deny a motion to sever and its
decision will be reversed only upon a showing of manifest abuse of discretion. State v.
Kalakoskv. 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). Fernandez Medina fails to
articulate any reasons why the court abused its discretion here. Instead, he contends
that the court "never fully ruled on this important issue." Statement of Additional
Grounds (SAG) at 2. Fernandez Medina misreads the record. Fernandez Medina cites
a passage during motions in limine where the trial court asked the State if it wanted to
redact prejudicial statements from the codefendants or sever the trials. Fernandez
Medina claims this passage shows the trial court "flip flopp[ed]." SAG at 2. The record
clearly shows the trial court's concern over the admission of codefendant statements in
violation of Bruton v. United States. 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476
(1968). The trial court gave the State a clear choice: redact the offending statements or
32
No. 73638-8-1/33
sever the trials. RP (Jan. 8, 2014) at 220 ("So, unless the State is prepared to proceed
with eliminating any reference at all to any other people in any of the statements of each
defendant,... I am gonna sever the trials in this case ...."). The State elected to
redact the prejudicial statements rather than face a severed trial.
Introduction of Barroso's Statement
Fernandez Medina argues the trial court erred by introducing Barroso's
statement. Fernandez Medina misreads the record. He cites the same passage from
motions in limine where the trial court threatened to sever the trials if the State did not
redact prejudicial codefendant statements. Fernandez Medina claims this passage
shows that the State planned to "skirt" the trial court's order to redact the statements.
SAG at 4. This passage shows the exact opposite; the trial court specifically instructed
the State to redact the prejudicial statements or face a severed trial. Fernandez Medina
argues Barroso's statement was admitted and read to the jury, but he does not cite
anywhere in the record to support this assertion. This court is not obligated to search
the record in support of claims made in a defendant/appellant's statement of additional
grounds for review. State v. O'Connor. 155 Wn. App. 282, 229 P.3d 880 (2010).
Expert Witness
Fernandez Medina argues Detective Brian Johnson was never properly disclosed
or deposed as an expert witness. Like his previous arguments, Fernandez Medina fails
to cite anything in the record supporting this assertion. See O'Connor. 155 Wn. App. at
282. Further, the record shows that the trial court properly allowed Detective Johnson's
testimony. See RP (Jan. 15, 2014) at 907 ("I don't see anywhere here that there is any
surprise evidence to you, any discovery violation. It's clear what the officer is going to
33
No. 73638-8-1/34
testify to. The report has been provided and submitted. Pictures have been provided.
So your objection is overruled. State may proceed with this evidence."). Nothing in the
record suggests the State failed to comply with discovery rules regarding expert
witnesses. See CrR 4.7(a)(1); State v. Hutchinson. 135 Wn.2d 863, 876-77, 959 P.2d
1061 (1998). Therefore, the trial court did not abuse its discretion when it allowed
Detective Johnson to testify. See Hutchinson. 135 Wn.2d at 882 (Evidentiary rulings
reviewed for abuse of discretion).
Detective Johnson's Testimony
Fernandez Medina claims that Detective Johnson's testimony included
"generalizations, and impermissible inferences, and questionable opinions [that] are not
supported by the factual evidence." SAG at 7. But Fernandez Medina fails to cite to
anything in the record demonstrating any improper testimony. He only cites to a portion
of the record where his attorney argues that Detective Johnson should not be allowed to
testify. As discussed above, the trial court did not abuse its discretion when it allowed
Detective Johnson to testify.
In Court Identification
Finally, Fernandez Medina claims that "there were several [misidentifications] by
the witnesses as to who was who, and as to who did what." SAG at 8. Specifically, he
claims that Jeffery Taylor's in court identification was prejudicial, citing State v.
Sanchez. 171 Wn. App. 518, 288 P.3d 351 (2012), and State v. Salinas. 169 Wn. App.
210, 279 P.3d 917 (2012). Fernandez Medina's argument relies on inapposite
authority. Defense counsel had a full and fair opportunity to cross-examine Taylor and
other witnesses about their identification testimony. Fernandez Medina's only citation to
34
No. 73638-8-1/35
the record is a portion of Jeffery Taylor's testimony where he identifies the defendants in
court and then testifies that he saw them at the scene of the crime. This is not an
impermissible identification statement within the meaning of the case law Fernandez
Medina cites.
CONCLUSION
For the foregoing reasons, we affirm.
tyjd
WE CONCUR:
Cm^-
35
State Of Washington v. Jorge Barroso And Roiland Fernandez Medina
Combined Opinion