State Of Washington, V. Cesar Chicas-carballo

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 82054-1-I
)
Respondent, ) DIVISION ONE
)
v. ) PUBLISHED OPINION
)
CESAR CHICAS CARBALLO, )
)
Appellant. )
)

HAZELRIGG, J. — Cesar Chicas Carballo and his co-defendant were both

convicted of first degree murder and conspiracy to commit first degree murder

following a joint jury trial. The co-defendant’s girlfriend was the key witness in the

State’s case and provided a detailed account of the crime and its planning.

Requests from both defendants to cross-examine her about her immigration status

as it related to a possible motive to lie were considered in the context of ER 413,

but denied. Chicas Carballo appealed, arguing the court improperly allowed un-

redacted statements by his co-defendant in violation of Chicas Carballo’s right to

confrontation under United States v. Bruton.1 He further asserts that the denial of

his request to explore immigration matters as to this critical witness violated his

Sixth Amendment right to present a defense. Because the court’s rulings on the

1 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
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ER 413 issue constitute reversible error, we need not reach Chicas Carballo’s

other challenges on appeal. We reverse and remand for a new trial.

FACTS

In April of 2016, a couple saw a body on a street in Tacoma and called 911.

Police responded to the area soon after and located a man, later identified as

Samuel Cruces Vasquez, bleeding heavily, but alive. There was a sport utility

vehicle (SUV) parked nearby that was still running with its driver door open and

blood inside the vehicle. There was also a butterfly knife on the ground, blue latex

gloves inside the SUV, and a shoe pinched between the SUV and another vehicle.

Cruces Vasquez was later pronounced dead at the hospital.

About three weeks after the incident, a witness contacted police and told

them what he had observed. The witness explained that he was driving when

someone exited a car and signaled for him to stop. He stated that he kept driving

out of safety concerns. He looked in his rearview mirror as he drove away and

saw two people emerge from the vehicle. He said one of them beat the person

who had signaled him to stop.

Surveillance footage from a nearby business captured some of the events

that night. In one video, a woman, later identified as Mayra Karina Calderon

Flores,2 could be seen walking on the street and another individual later walked to

the SUV. After that, there appeared to be movement inside the SUV. Cruces

Vasquez could be seen exiting the SUV and was then run over by an unidentified

2 Ms. Calderon Flores is referred to as Flores throughout the record. For clarity, we will use
that portion of her last name to identify her as well.

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car. The autopsy revealed Cruces Vasquez had been stabbed eight times and

suffered blunt trauma injuries. Blood from the knife found on the ground matched

Cruces Vasquez’s DNA3. The shoe located between the vehicles was connected

to Jose Jonael Ayala Reyes by his own admission and DNA from inside a latex

glove found in the vehicle was identified as that of another man involved in the

incident. None of the physical evidence collected in the case was linked to Cesar

Chicas Carballo.

Investigation determined that Cruces Vasquez had clocked out of work at

10:10 p.m. on the night of the crime and that he had received numerous calls and

texts from Ayala Reyes’ phone number. Ayala Reyes and Cruces Vasquez had

worked together at a pizza restaurant. Earlier in April, Cruces Vasquez’ brother

helped Ayala Reyes get a bus ticket to California. Ayala Reyes had told Cruces

Vasquez’ brother that he was in the MS-134 gang and that he provided money to

people in California when he received his paychecks. He said the amounts were

around $20 or $30. Ayala Reyes claimed the money was later sent by the gang

members in California to El Salvador.

Ayala Reyes was taken into custody in July 2016. He admitted to being one

of a number of participants in the stabbing of Cruces Vasquez, but didn’t provide

names of the others involved. Ayala Reyes acknowledged the knife found at the

scene was his and that he had stabbed Cruces Vasquez one time in the leg, but

denied killing him. He also claimed that Cruces Vasquez sold drugs.

3 Deoxyribonucleic Acid.
4 Mara Salvatrucha 13.

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Ayala Reyes was dating Flores. Flores was also questioned by police about

the stabbing. After extensive police interrogation, Flores provided the street

names of the individuals involved: Sombra, Tas, and Sicario. After police showed

her a photo of Chicas Carballo, Flores identified him as the individual named Tas.

Flores’ identification of the suspects by name and photograph, and the further

explanations she provided, did not occur until police threatened to arrest her and

indicated she might be removed from the United States if she didn’t tell them what

occurred. Flores similarly identified Juan Jose Gaitan Vasquez as Sombra. The

DNA from the blue gloves recovered at the crime scene was linked to Gaitan

Vasquez and he separately pleaded guilty to charges stemming from Cruces

Vasquez’ death. A detective with the Tacoma Police Department later identified

Sicario as Edenilson Misael Alfaro.

At trial, Flores testified that Ayala Reyes sent money to Sicario to support

gang activity. She explained that he sent the money “[b]ecause of drugs . . . [Ayala

Reyes] had” and she later turned over money transfer receipts to law enforcement.

The receipts indicated that Ayala Reyes wired money to Chicas Carballo in

California in amounts of $200, $300, and $260 on June 6, 25, and July 7 of 2016.

Flores testified that Ayala Reyes rented an apartment in April 2016 and that

she was present in the apartment when she heard him talking with Tas, Sombra,

and Sicario about killing Cruces Vasquez. Flores claimed that all of the individuals

involved were members of MS-13. She described Sicario as the “main one.”

Flores had never seen Sicario prior to the date she heard them discussing the plan.

She further testified that Ayala Reyes went to California a few weeks before the

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killing and met with Sicario because of drugs. She asserted that the apartment

had been rented when Ayala Reyes returned from California specifically so that

gang members could come there, but that it was also intended as the residence

for her and Ayala Reyes.

Flores said on the day of the attack on Cruces Vasquez, Ayala Reyes was

picked up by three men in a truck. She later went to the apartment and, while

cooking for them, heard the four men discussing how they would kill Cruces

Vasquez. She testified that Sombra said he was going to stab Cruces Vasquez.

Ayala Reyes was to lure Cruces Vasquez by calling him. Flores claimed that Ayala

Reyes and Sombra were to do the killing because they were not in the gang. The

men grabbed gloves provided by Ayala Reyes. Flores said she had seen two

knives; one a butterfly knife and the other a knife that Sombra passed around. The

four men and Flores left the apartment to go to the location where the killing was

to occur. She indicated that Chicas Carballo was the driver. Flores said that when

the men left to meet Cruces Vasquez the night of the attack, she initially rode with

them, but was dropped off before they reached their destination and she walked

home.

Later that night, Flores went to the apartment to meet Ayala Reyes and saw

Tas, Sombra, and Sicario leave in their vehicle. She observed blood on the

passenger side door. Ayala Reyes recounted the killing to Flores claiming he

stabbed Cruces Vasquez in the leg, that Sombra stabbed him in the neck, and that

they beat him on the street, ultimately killing him. Flores thought the killing was

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because Cruces Vasquez sold drugs and that Ayala Reyes had killed him to be

part of “La Mara.”

In March of 2017, Chicas Carballo was interrogated by law enforcement in

California. He maintained that he drove to Washington with two others based on

an offer of a construction job. Chicas Carballo stated that he did not remember

the specifics as to the timing or precise destination of the trip to Washington. He

indicated one of the men was named “Juan,” “Jose,” or “Juan Jose,” and that he

met this man at MacArthur Park in Los Angeles when he was looking for work. He

stated that he did not know the other individual who rode with them in the car and

that when they arrived in Washington, Juan/Jose repeatedly called the man who

was offering the construction job. Chicas Carballo said at one point he was told to

wait in the car and that Juan/Jose left and came back, reporting that he could not

reach the man offering the work. He said that the three men then went back to

California. Chicas Carballo asserted that he had been tricked into going to

Washington for work and denied knowing anything about the killing.

After denial of motions to sever their cases, Chicas Carballo and Ayala

Reyes proceeded to a joint trial as co-defendants. Chicas Carballo’s defense

theory was that Flores lied and that the State had failed to prove beyond a

reasonable doubt that he was involved in the killing. The jury returned guilty

verdicts on all counts for both Chicas Carballo and Ayala Reyes.5 6 The jury also

5 This included a separate count of second degree felony murder, which was later vacated

on double jeopardy grounds.
6 This court recently affirmed Ayala Reyes’ convictions in an unpublished opinion. State v.

Ayala Reyes, No. 81393-5-I (Wash. Ct. App. July 27, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/813935.pdf.

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returned special verdicts concluding that a deadly weapon was used in the

commission of the crimes and finding a gang aggravator for the offenses. The

court did not impose an exceptional sentence for Chicas Carballo based on the

gang aggravator, but did impose a total of 608 months confinement, running the

base sentence for the two serious violent offenses and their corresponding terms

for deadly weapon enhancements consecutively. Chicas Carballo now appeals.

ANALYSIS

Chicas Carballo asserts that a violation of his right to confrontation by the

trial court’s failure to properly apply the Bruton test to Ayala Reyes’ statements to

police which were introduced at trial, violation of his Sixth Amendment right to

present a defense due to improper application of ER 413, and cumulative error

deprived him of a fair trial. In a statement of additional grounds for review, Chicas

Carballo also claims that he is entitled to a new trial based on Flores’ dishonesty.

As we find the Sixth Amendment/ER 413 challenge dispositive, we need not reach

the other assignments of error.7

Chicas Carballo avers that his Sixth Amendment right to present a defense

was violated when the trial court refused to allow him to introduce evidence during

her testimony of a potential motive for Flores to lie. This court reviews general

limitations on the scope of cross-examination for abuse of discretion. State v. Lee,

188 Wn.2d 473, 486, 396 P.3d 316 (2017). A trial court necessarily abuses its

7 If the State chooses to introduce Ayala Reyes’ statements to police upon retrial, any

potential Bruton issue could be comprehensively addressed in the trial court with briefing and
proposed redactions, consistent with case law, which would provide a sufficient record for review
on any subsequent appeal.

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discretion if the ruling is based on erroneous interpretation of the law or the court

fails to recognize that it has discretion. State v. Gaines, 16 Wn. App 2d 52, 57,

479 P.3d 735, 737 (2021). However, a claim for denial of one’s Sixth Amendment

right to put on a defense is reviewed de novo. State v. Jones, 168 Wn.2d 713,

719, 230 P.3d 576 (2010).

“The right of an accused in a criminal trial to due process is, in essence, the

right to a fair opportunity to defend against the State’s accusations.” Chambers v.

Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). The

evidence a defendant seeks to admit “must be of at least minimal relevance.” State

v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002). If the proposed evidence

is relevant, it is the prosecution’s burden to establish that the evidence is so

prejudicial as to disrupt the fairness of the fact-finding process at trial. Jones, 168

Wn.2d at 720. The State’s interest in excluding prejudicial evidence must be

balanced against the defendant’s need for the evidence proposed and relevant

information can be withheld only if the prosecution’s interest outweighs the

defendant’s need. Id. “We must remember that ‘the integrity of the truth[ ]finding

process and [a] defendant’s right to a fair trial’ are important considerations.” Id.

(quoting State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983)). Our supreme

court has “therefore noted that for evidence of high probative value ‘it appears no

state interest can be compelling enough to preclude its introduction consistent with

the Sixth Amendment and [article I, section 22 of the Washington Constitution].’”

Id. (quoting Hudlow, 99 Wn.2d at 16) (alterations in original).

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The primary and most important component of the right to confrontation is

that of meaningful cross-examination of an adverse witness. Darden, 145 Wn.2d

at 620. “Confrontation therefore helps assure the accuracy of the fact-finding

process.” Id. This right to confront must be “zealously guarded.” Id. “The right to

cross-examine for bias is especially important where . . . that bias stems from a

witness’s motive to cooperate with the State.” State v. Orn, __ Wn. 2d __, 482

P.3d 913, 919 (2021). “[T]he more essential the witness is to the prosecution’s

case, the more latitude the defense should be given to explore fundamental

elements such as motive, bias, [or] credibility.” Darden, 145 Wn.2d at 619

(alterations in original).

Although Chicas Carballo was allowed to impeach Flores with various

inconsistencies in her police interview and trial testimony, he was prevented from

exploring her possible motive to lie. This left the State in a position in which it could

shade the jury’s perception of why Flores might change her story. The court,

prosecution, and defense were all aware that Flores was not a United States

citizen and therefore was subject to removal under federal immigration law.

However, the trial court did not allow Chicas Carballo to cross-examine her about

her immigration status as it related to a possible deportation threat by law

enforcement that was uttered during her interrogation. Flores was an essential

witness in the State’s case against Chicas Carballo, particularly in light of the

absence of any other direct evidence that connected him to the crimes.

Before trial, Ayala Reyes moved under ER 413 to introduce evidence of

Flores’ immigration status as motive to lie, but on a slightly different ground than

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later urged by Chicas Carballo. The trial court denied Ayala Reyes’ motion, but

indicated in its oral and written ruling that the matter could be revisited based on

any additional evidence that came out at trial. Chicas Carballo did not present a

pretrial motion, but the court based its denial of his midtrial request on its earlier

ruling on Ayala Reyes’ ER 413 motion, specifically referencing the consideration

of additional evidence. The court stated “I denied a motion to allow that testimony

without prejudice should additional evidence be provided. I’m not hearing any

additional evidence. It sounds like the same issue as was already provided.”

ER 413 had gone into effect approximately one month before the trial

began. ER 413 provides:

(a) Criminal Cases; Evidence Generally Inadmissible. In any
criminal matter, evidence of a party’s or a witness’ immigration status
shall not be admissible unless immigration status is an essential fact
to prove an element of, or a defense to, the criminal offense with
which the defendant is charged, or to show bias or prejudice of a
witness pursuant to ER 607. The following procedure shall apply
prior to any such proposed uses of immigration status evidence to
show bias or prejudice of a witness:
(1) A written pretrial motion shall be made that includes an
offer of proof of the relevancy of the proposed evidence.
(2) The written motion shall be accompanied by an affidavit or
affidavits in which the offer of proof shall be stated.
(3) If the court finds that the offer of proof is sufficient, the court
shall order a hearing outside the presence of the jury.
(4) The court may admit evidence of immigration status to
show bias or prejudice if it finds that the evidence is reliable and
relevant, and that its probative value outweighs the prejudicial nature
of evidence of immigration status.
(5) Nothing in this section shall be construed to exclude
evidence that would result in the violation of a defendant’s
constitutional rights.

While Chicas Carballo did not present a pretrial motion, or formally join in

Ayala Reyes’ motion, he did make his position known to the court at the time it was

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argued. The ruling on Ayala Reyes’ motion was expressly left open for new

evidence, but more importantly, by relying on it to deny Chicas Carballo’s midtrial

request to cross-examine Flores about her immigration status, the trial judge

bound Chicas Carballo to both Ayala Reyes’ motion and the court’s ruling on such.

This particular posture creates dissonance in the trial court’s two separate rulings

against Chicas Carballo on this issue. After trial, Chicas Carballo filed a motion

for relief from judgment based in part on the court’s denial of his midtrial request

to examine Flores’ immigration status. The judge denied the motion for relief from

judgment on the basis that Chicas Carballo had failed to file a pretrial motion under

ER 413, despite the fact that the judge had treated Ayala Reyes’ motion as Chicas

Carballo’s for purposes of the midtrial ruling.

We find guidance in an opinion by Division Two of this court in our review

of evidentiary rulings in the context of the right to present a defense. In State v.

Grant, the accused argued his right to put on a defense was violated when the trial

court denied his request to present an alibi witness due to failure to strictly comply

with the procedural requirements set out by statute.8 10 Wn. App. 468, 470–72,

519 P.2d 261 (1974). Prior to the start of trial, the prosecution made a timely

demand for the identities of any alibi witnesses the defense expected to call. On

the last day of the trial, defense sought to present testimony from newly discovered

alibi witnesses. The trial court denied the request as untimely under the statute

which imposed procedural requirements for alibi witnesses. Id. at 471–72. On

review, the trial court’s ruling was rejected on the basis that a procedural rule

8
At the time of Grant, procedures as to alibi defenses were set out by statute. They are
now contained in CrR 4.7(b)(2)(xii).

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cannot be utilized to infringe on an individual’s constitutional right to present a

defense. Id. at 474–75. Division Two noted that the evidence sought by the

defense was highly relevant, noting that it was “evidence which, on its face and if

believed by a jury, would be seriously supportive of [Grant’s] asserted alibi.” Id. at

472. The court went on to

deem it imperative that in the absence of totally inexcusable neglect
no criminal case should be submitted to the trier of the facts without
all available material facts being made known to the trier of the facts,
not only to the end that substantial justice shall be done, but also
because in performing its high function in the best way, justice must
satisfy the appearance of justice.

Id. at 474. Grant only reinforces that it has long been the law in our state that rules

which impose procedural requirements cannot be wielded as a sword by the State

to defeat the constitutional rights of an accused in a criminal trial.

After oral argument in this matter, our supreme court issued its opinion in

State v. Orn, 482 P.3d 913. Orn was convicted of attempted first degree murder.

Id. at 918. The victim testified at trial, but Orn’s attempt to cross-examine him

about bias was restricted by the trial court. Id. The victim had worked as a

confidential informant for the Kent Police Department in exchange for law

enforcement declining to refer certain felonies to the prosecutor for filing against

him. Id. Orn’s examination of the victim on this matter was limited to one question,

which left the jury with incomplete information and potentially incorrect inferences

from which to assess the witness’ credibility. Id. at 918, 921. The victim was a key

witness for the State as “the only testifying eyewitness to the shooting” and, as

such, the Supreme Court found the trial court abused its discretion as to the

evidentiary ruling, which resulted in a violation of Orn’s Sixth Amendment rights.

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Id. at 921–22. However, the error was ultimately deemed harmless in light of the

wealth of other “[u]ncontradicted evidence [which] linked Orn to the shooting.” Id.

at 923 (alterations in orginal).

As in Grant and Orn, the court here was aware that the evidence sought by

the defense was highly relevant. Chicas Carballo’s counsel made the midtrial

request to explore Flores’ immigration status after much of her direct examination

had been presented. His request was discussed outside the presence of jury and

he reiterated his specific focus on Flores’ potential motive to lie based on threats

of deportation by law enforcement during her original interview with detectives.

The court indicated its position that no new information had been presented since

it had issued the conditional ruling on Ayala Reyes’ pretrial motion. Chicas

Carballo’s attorney responded by stating, “I think it’s very relevant that she would

stick to her guns for 234 pages [of transcribed statements] that she didn’t know

anything, and after threats of jail and immigration issues and leading questions[,]

she finally remembers something.”

The court stated it was unwilling to alter its prior ruling unless new

information came to light, which clearly demonstrates that the first ruling was not

final. In response to the midtrial request by Chicas Carballo, the court said, “Unless

she says something different today, or the reason I made this up is because I was

threatened by deportation, that wouldn’t appear to be new information.” The State

appeared to recognize that some of the information about her status was already

before the court and said Flores was unlikely to say anything because she was

concerned about immigration issues. This comment by the State, coupled with its

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later request to explore Flores’ status for different reasons in its own examination,

suggests that this topic was highly relevant to the case and that Chicas Carballo

should have been allowed to explore such in the furtherance of his defense. It also

reinforces that the court and the State both had the benefit of the same information

that would have been provided in an offer of proof if Chicas Carballo had precisely

complied with the procedural requirements of ER 413. This further highlights the

lack of prejudice to the State from Chicas Carballo’s request to explore the motive

to lie as it related to his ability to put on a defense.

In her testimony, Flores conceded to lying and even went so far as admitting

during cross-examination that she was fearful she might be arrested and that she

was pregnant and did not “want something bad for [her] son.” Had she been

confronted with the deportation threat and its applicability to her because of her

immigration status, a jury could reasonably find that her fear of arrest and for her

son’s welfare was related to the threat of deportation by police and the

corresponding risk of her son’s birth in a country she had chosen to leave, rather

than in the United States.9 This is a powerful motive to lie, particularly after

dishonesty had been demonstrated by extensive and effective impeachment of this

critical witness. Without evidence of a possible motive for Flores’ untruthfulness,

the impeachment lacked its sting. This ruling also left the State in a much better

9 While it does not drive our analysis here, it is noteworthy that Ayala Reyes’ pretrial motion
under ER 413 was aimed at a different potential motive for Flores to lie; her possible receipt of an
immigration benefit, specifically a U visa. Chicas Carballo, however, asserted Flores’ motive to lie
was based on the threat of a negative immigration consequence by way of deportation,
communicated to her by law enforcement during her interrogation.
Questions of one’s immigration status, including eligibility for a benefit or risk of a particular
consequence, are fact-specific and often highly nuanced. For that reason alone, the trial court erred
by not conducting an independent analysis of Chicas Carballo’s midtrial request under ER 413,
rather than relying upon its earlier conditional ruling on Ayala Reyes’ motion.

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position to suggest general fear as justification for her motive to change her story

when talking to detectives, despite the fact that the court, State, and defense were

all were aware that her immigration status was woven throughout the facts of the

case. Chicas Carballo was deprived of the opportunity to introduce evidence to

rebut or challenge the State’s characterization of the reasons for her

untruthfulness.

The trial court appeared unwilling to engage in reweighing the relevance

and potential prejudice when Chicas Carballo asserted that Flores’ motive to lie,

fear from a police threat based on her immigration status, was critical to his

defense. As with the evidence of bias in Orn and alibi testimony in Grant, the

evidence Chicas Carballo sought was highly relevant and the prejudicial effect on

the State was comparatively low in terms of the overall fairness of the trial. Further,

concern as to prejudice is undercut by the fact that many of those involved in this

case were immigrants. Even if not expressly identified as such to the jury,

testimony by various witnesses about El Salvador and the fact that the defendants

and Flores participated in the trial with the assistance of interpreters could have

led any of the seated jurors to reasonably speculate that several of the trial

participants may be immigrants. Therefore any fear of generalized anti-immigrant

prejudice by the jury would cut against those parties equally, but most particularly

against the defendants. The State recognized how integral immigration was to the

case when it sought permission to discuss Flores’ experiences in El Salvador prior

to coming to the United States. However, the court warned that doing so would

open the door for the defense to cross-examine her about her status, so the State

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withdrew its request. The mere fact of the State’s request, and proffered

reasoning, is telling as to the strong probative nature of this realm of testimony

which was restricted by the trial court.

This court recently considered the denial of a defense request to introduce

evidence of immigration status in State v. Bedada, 13 Wn. App. 2d 185, 463 P.3d

125 (2020). Bedada also involved a trial that occurred shortly after ER 413 had

become effective. In that case, we considered the ability to present a defense in

light of limits the court placed on cross-examination as to immigration status,

concluding that the trial court failed to weigh the probative value against the

prejudicial nature of such evidence. Id. In Bedada, the defendant sought to

introduce evidence of his own immigration status in order to establish a motive to

lie by the victim, his wife, based on her desire to have him removed from the

country. Id. at 188–90. When first discussed in motions in limine, the trial court

found that it would be unduly prejudicial to the State to have the defendant’s

immigration status known as the jury might focus on his potential deportation and

did not find that the information was relevant. Id. at 190–91. Bedada did not file

the requisite pretrial motion to introduce the evidence under ER 413. Id. at 195.

The issue was revisited during trial and defense explained the relevance

was due to a motive to fabricate. However, the trial court indicated it was a

balancing issue and that neither immigration status nor consequences were

relevant. Id. at 191–92. We held that the information was highly relevant and the

trial court’s failure to properly weigh the proffered evidence was an abuse of

discretion. Id. at 204. Our analysis reinforced that the State bears the burden to

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establish that the evidence sought would be so prejudicial as to disrupt the fairness

of the fact-finding process. Id. at 201. Like the case at hand, the trial court in

Bedada provided no justification for its conclusion that the evidence was not

relevant. Id. at 200.

As with Grant and Orn, Bedada also guides our review here. Chicas

Carballo sought to introduce evidence of the key witness’ motive to fabricate. The

State even admitted in their closing that Flores did not voluntarily provide her story

to police. As in Bedada, no one disputed whether the evidence was reliable and

the trial court here similarly failed to engage in the necessary analysis. Id. at 201.

The State does not argue prejudice in this case and focuses instead on the

relevance of the information. The trial court seems to have proceeded with caution

in its application of the newly effective ER 413 and improperly placed the burden

on Chicas Carballo. This was a misapplication of the standard.

Additionally, the record before us demonstrates that there was no

discussion of a limiting instruction as to the evidence sought by the defense, nor

does it appear the final subsection of ER 413(a) was considered by the court in

any of its rulings on the matter. ER 413(a)(5) provides, “Nothing in this section

shall be construed to exclude evidence that would result in the violation of a

defendant’s constitutional rights.” The ability to provide the motive to fabricate after

the key witness admits to being untruthful is critical for the defense in a case in

which the State’s theory relied so heavily on that witness’ credibility. Flores was

intimately involved with the co-defendant and was captured on security footage

near the scene shortly before Cruces Vasquez was attacked. She was the only

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live witness whose credibility could be directly assessed by the jury and who tied

Chicas Carballo to the events surrounding Cruces Vasquez’ death. After defense

attacked Flores’ credibility in closing, the State focused its rebuttal argument on

the various reasons she was credible, how she should be understood as truthful,

and generally attempting to rehabilitate her after her admissions of lying to police.

“[T]he right to present evidence of a witness’s bias is essential to the

fundamental constitutional right of a criminal defendant to present a complete

defense, which encompasses the right to confront and cross-examine adverse

witnesses.” Orn, 482 P.3d at 919 (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S.

Ct. 1105 (1974); Chambers, 410 U.S. at 294; Jones, 168 Wn.2d at 720; Darden,

145 Wn.2d at 620). Violation of the right to present a defense and to confront

witnesses is constitutional error. Jones, 168 Wn.2d at 724–25. “Constitutional

error is presumed prejudicial and the State bears the burden of showing the error

was harmless beyond a reasonable doubt.” State v. Chambers, 197 Wn. App. 96,

128, 387 P.3d 1108 (2016).

The State has not met its burden of establishing that the error was harmless.

In Orn, the Supreme Court held that even if the key witness had not testified at all,

in light of the entire record, the trial outcome would have been the same due to the

“uncontradicted evidence” linking Orn to the crime. 482 P.3d at 923. The record

before us, however, is strikingly different. Ayala Reyes did not expressly name

Chicas Carballo as one of the perpetrators in his statements to police, there was

no DNA or other physical evidence to connect Chicas Carballo to the scene, and

he was not identified in the security footage that was introduced. At oral argument

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No. 82054-1-I/19

before this court, the State reiterated that Flores was the key witness to implicate

Chicas Carballo in the murder. Absent Flores’ testimony, the only evidence

remaining as to Chicas Carballo’s possible connection to the murder or conspiracy

were phone records showing that he had communicated with Ayala Reyes and the

money transfer receipts between them. As such, we cannot conclude that this

error was harmless. In light of the violation of Chicas Carballo’s right to present a

defense, and State’s failure to demonstrate that this error was harmless beyond a

reasonable doubt, we reverse and remand for a new trial.

WE CONCUR:

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