Dwyer, J.
¶ 1 Following a jury trial, Santiago Ortuno-Perez was convicted of murder in the second degree, committed while armed with a firearm. Ortuno-Perez's planned defense was that another person who was armed at the scene — Austin Agnish — committed the charged offense. Prior to trial, Ortuno-Perez sought permission from the trial court to identify Agnish to the jury as the killer, to cross-examine the State's witnesses for bias in their testimony, and to introduce additional evidence indicating that a person other than Ortuno-Perez committed the murder. The trial court excluded the evidence and later clarified that Ortuno-Perez was precluded from arguing that anyone else at the murder scene committed the crime, notwithstanding that the evidence proffered by Ortuno-Perez tended to logically connect Agnish to the killing and notwithstanding that, as the trial evidence made clear, the victim was slain at close range by someone at the scene. The trial court erred by so ruling.
¶ 2 The trial court's "other suspect" rulings were not harmless. The rulings prevented Ortuno-Perez from offering evidence at trial tending to show that Agnish was the true killer and from advancing the defense theory that the State's eyewitnesses presented biased, contradictory, and untruthful testimony. Furthermore, the rulings effectively reduced Ortuno-Perez's trial defense to shallow cross-examinations of the State's witnesses. Without the ability to draw meaningful conclusions from the evidence actually admitted at trial and assert that someone other than him fired the fatal shot, Ortuno-Perez's general denial defense, in the face of undisputed evidence that the victim was shot by someone standing nearby, effectively amounted to either a nonsensical claim that the shooting did not happen or a meek suggestion that the State somehow failed to prove its case. Unsurprisingly, this defense was unsuccessful. As the trial played out, the trial court's "other suspect" rulings deprived Ortuno-Perez of
¶ 3 In the early morning hours of October 12, 2013, Jesus Castro was shot in the head while standing outside of a house in Renton. He died several days later.
¶ 4 The single shot was fired at close range from a .22 caliber firearm. At the time the shot was fired, anywhere between 5 to 12 people were standing in close proximity to Castro. In that group were 2 individuals particularly pertinent here, Santiago Ortuno-Perez and Austin Agnish — each of whom was armed with a handgun at the time.
¶ 5 On the same day that Castro was shot, Ortuno-Perez was identified as a suspect and subsequently arrested outside of a house in Kent. While conducting a search of Ortuno-Perez's jacket after his arrest, the police found a .22 caliber bullet in the left outside breast pocket. The bullet, although of the same caliber as the bullet that killed Castro, was not of the same style and could have been from a different manufacturer. The weapon that was used to murder Castro was never found.
¶ 6 In a search of the house outside of which Ortuno-Perez was arrested, the police seized clothing similar to that which Ortuno-Perez was described as wearing at the time of the shooting. This clothing was tested for traces of blood but none was found.
¶ 7 In the days that followed, Ortuno-Perez was identified as the shooter by several witnesses who were present at the scene, including Agnish, Zachary Parks, and Dechas Blue.
¶ 8 Ortuno-Perez was subsequently charged with one count of murder in the first degree, committed while armed with a firearm.
¶ 9 Prior to trial, the State indicated that it would rely on the testimony of Agnish, Parks, Blue, and another witness, Joey Perdoza, to present evidence adverse to Ortuno-Perez. These witnesses were either acquaintances or close friends of one another. The State further intended to call another eyewitness, Castro's girlfriend, Erika Lazcano — with whom Castro had a child — to testify against Ortuno-Perez.
¶ 10 Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence that another person, not him, killed Castro. In particular, his counsel sought to identify Austin Agnish as the shooter, to cross-examine the State's witnesses for potential bias in their testimony, and to present additional evidence indicating that a person other than Ortuno-Perez was the shooter. The trial court denied Ortuno-Perez's request because Ortuno-Perez had not demonstrated that Agnish had taken steps to commit the crime.
¶ 11 Four days later, Ortuno-Perez's counsel filed a detailed offer of proof regarding the "other suspect" evidence that the defense would have introduced but for the trial court's adverse ruling. At a hearing that same day, Ortuno-Perez's counsel attempted to clarify the scope of the trial court's evidentiary ruling, asking whether it included questions on cross-examination seeking to reveal witnesses' biases and additional evidence implying the existence of a shooter who was not Ortuno-Perez. The trial court indicated that such questions and other evidence were indeed excluded, stating that,
¶ 12 At trial, the State argued that Ortuno-Perez killed Castro. The State's presentation of its case made clear that one of the individuals standing near Castro fired the fatal shot. In particular, the State offered a medical expert's testimony that, at the time of the gunshot, the barrel of the murder weapon was between two inches and two feet from Castro's head.
¶ 13 Agnish, Parks, Blue, and Perdoza testified adversely to Ortuno-Perez. Agnish, Parks, and Perdoza attested to being reluctant
¶ 14 On the 10th day of testimony, after the State presented its last witness, Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had been denied by the trial court's "other suspect" rulings. Specifically, Ortuno-Perez argued that, in addition to being unable to present any evidence that tended to connect Agnish to Castro's murder, the rulings prevented him from being able to effectively confront the State's witnesses based on their testimony at trial. The trial court denied the motion. Immediately thereafter, the State and Ortuno-Perez rested their cases. Ortuno-Perez did not testify.
¶ 15 The jury convicted Ortuno-Perez of murder in the second degree, committed while armed with a firearm. He was sentenced to 280 months of confinement.
¶ 16 Ortuno-Perez now appeals.
¶ 17 Over the course of nearly a century and an intervening United States Supreme Court decision, Washington's "other suspect" evidence rule — applicable to proffered evidence that a specific person other than the defendant committed the charged crime — has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value.
¶ 18 In
¶ 19 Nearly 70 years later, the United States Supreme Court examined whether a recent modification to South Carolina's common law "other suspect" evidence rule deprived a defendant of his right to present a defense.
¶ 20 The Supreme Court noted the manner in which the common law "other suspect" rule was consistent with constitutional mandates.
¶ 21 The Supreme Court held that the South Carolina rule was unconstitutionally arbitrary because it assumed that the prosecution's evidence should be credited rather than focusing on whether the proffered evidence, if credited, might tend to support a reasonable doubt as to the defendant's guilt without being repetitive, harassing, or confusing. Thus, the Court ruled, the application at trial of the South Carolina rule violated Holmes' "right to have `"a meaningful opportunity to present a complete defense."'"
¶ 22 Our Supreme Court recently explained that, since
¶ 23 Our Supreme Court reversed the trial court's decision, explaining that it had "never adopted a per se rule against admitting circumstantial evidence of another person's motive, ability, or opportunity. Instead, our cases hold that if there is an adequate nexus between the alleged other suspect and the crime, such evidence should be admitted."
¶ 24 As in
180 Wash.2d at 380-81, 325 P.3d 159.
¶ 25 Thus, the threshold analysis for "other suspect" evidence involves a straightforward, but focused, relevance inquiry, reviewing the evidence's materiality and probative value for "whether the evidence has a logical connection to the crime."
¶ 26 Trial court decisions on the admission of evidence are reviewed for abuse of discretion.
¶ 27 The Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant a meaningful opportunity
¶ 28 As with all evidence, the proponent bears the burden of establishing the admissibility of "other suspect" evidence.
¶ 29 Evidence is relevant when it is both material — the fact to be proved "`is of consequence in the context of the other facts and the applicable substantive law'" — and probative — the evidence has a "tendency to prove or disprove a fact."
¶ 30 Ortuno-Perez asserts that, by excluding his proffered "other suspect" evidence pointing to Agnish as the actual killer, the trial court abused its discretion in its pretrial evidentiary rulings because its rulings were based on an incorrect application of Washington's "other suspect" case authority. Ortuno-Perez further contends that the "other suspect" evidence he proffered tended to support a reasonable doubt as to his guilt. We agree.
¶ 31 Prior to trial, Ortuno-Perez's counsel sought permission to present evidence to the jury that Agnish, not Ortuno-Perez, killed Castro.
¶ 32 The trial court denied Ortuno-Perez's request based on its review of Washington's "other suspect" case law.
¶ 34 Four days after the trial court's "other suspect" evidence ruling, and still prior to trial, defense counsel filed a sworn offer of proof regarding the evidence that it would have presented pointing to Agnish as the actual killer:
¶ 35 At a hearing on the same day that the offer of proof
¶ 36 The trial court again adhered to its ruling, stating that Washington's "other suspect" case law
¶ 37 The trial court, in its pretrial rulings, twice incorrectly applied Washington's "other suspect" case law. First, the trial court excluded evidence pointing to Agnish as the actual killer because the proffered evidence did not demonstrate "steps taken" by Agnish to commit the crime. However, our case law has never held that "other suspect" evidence must be excluded when a defendant cannot prove that the identified perpetrator had taken steps to commit the crime. Rather, as discussed above, the threshold analysis for "other suspect" evidence involves a straightforward, but focused, relevance inquiry, reviewing the evidence's materiality and probative value for "whether the evidence has a logical connection to the crime."
¶ 38 In addition, in response to a request for clarification by Ortuno-Perez's counsel on the scope of the trial court's "other suspect" rulings, the court indicated that its rulings precluded Ortuno-Perez from "pointing the finger at somebody" — in particular, from arguing or postulating that anyone else at the scene of the crime could have committed the crime. This ruling, too, was erroneous. Where, as here, the evidence is clear that a crime occurred (the fact that Castro was shot to death was undisputed), a defense of general denial is, of logical necessity, a defense that "someone else did it." This is not the same as an "other suspect" defense — which seeks to put the blame on a particular "other suspect." Here, it was clear that Castro was dead and that he was killed by someone at the scene. By refusing to allow Ortuno-Perez to argue from the evidence that he had been misidentified as the killer (logically meaning that someone else at the scene was the killer), the trial court converted the general denial defense to an argument that either Castro was not murdered (an illogical argument) or that the State did not prove that Ortuno-Perez was the shooter (illogical absent the context that someone else present may have instead been the shooter). The trial court's "other suspect" rulings were untenable.
¶ 39 The evidence proffered by Ortuno-Perez relating to Agnish's potential culpability was of a type that tended to logically connect Agnish to Castro's murder. If credited by the jury, it would establish Agnish's motive (a gang clash), his opportunity (he was present at the murder scene and in close proximity to Castro at the instant of the shooting), and his means (he was armed with a handgun). Thus, the evidence proffered was plainly relevant to the question of the identity of Castro's murderer and was of a type that, if credited by the jury, would support a reasonable doubt as to Ortuno-Perez's guilt.
¶ 40 Accordingly, the trial court abused its discretion by improperly excluding the proffered evidence.
¶ 41 The damage to Ortuno-Perez's defense was not limited to merely the inability to ask the jury to acquit based on evidence that Agnish may have been the killer — "other suspect" evidence raising a reasonable doubt. As the trial played out, Ortuno-Perez was also unfairly prejudiced in two major respects: his
¶ 42 At trial, the State argued that Ortuno-Perez killed Castro. The State's presentation of its case made clear that one of the several individuals standing near Castro fired the fatal shot. To that effect, the State offered a medical expert's testimony that, at the time of the gunshot, the barrel of the murder weapon was between two inches and two feet from Castro's head.
¶ 43 The State called several witnesses who had been at or near the site of the shooting to testify against Ortuno-Perez, including Blue,
¶ 44 Agnish began his testimony by discussing his relationship with Blue, Perdoza, Parks, and Ortuno-Perez. Agnish testified that he considered Blue "a brother," that he was "really good friends" with Perdoza, that he had not known Parks before he met him on the night of the shooting, and that he was a friend of Ortuno-Perez.
¶ 45 Agnish next testified that, prior to his arrival at the house where the shooting occurred, he was spending time with Perdoza, Blue, Parks, and Ortuno-Perez. Agnish stated that, later that night, he drove himself, Perdoza, and Blue in his car to the fateful house and that Ortuno-Perez had driven himself and Parks there. Agnish testified that when he arrived, he stayed outside of the house with several other people, including Ortuno-Perez and Perdoza.
¶ 46 Agnish testified that, while standing outside, he saw a car containing Castro,
¶ 47 Agnish further testified that, in the immediate aftermath of the shooting, "The broads coming out. They screamed, and were screaming at me, `Don't shoot.'" Agnish also indicated that he was afraid to testify because he had received death threats both for talking to the police about the murder and for being a potential witness at Ortuno-Perez's trial.
¶ 49 Perdoza was the State's next witness. Perdoza also began his testimony by discussing his relationship with Blue, Agnish, Parks, and Ortuno-Perez. He testified that he was not familiar with Blue, Parks, or Ortuno-Perez, but that he had been a friend of Agnish for three years.
¶ 50 Perdoza testified that, at the time of the incident, he and Agnish were standing outside of the house. Perdoza testified to seeing an argument between two men who were speaking Spanish. Perdoza then stated that, as he turned away, he "heard a loud pop noise," which startled him and caused him to run to Agnish's car. Perdoza testified that, thereafter, he quickly looked back to where the shooting happened and saw one person who was "[j]ust standing there." Perdoza also indicated that he was reluctant to testify because he had been receiving death threats for being a potential witness at Ortuno-Perez's trial.
¶ 51 On cross-examination, Ortuno-Perez's counsel pointed out inconsistencies between Perdoza's statements to the police and his trial testimony, including how much and what types of alcohol he had consumed. Defense counsel further inquired into contradictory statements made by Perdoza regarding the length of time that he had known Agnish.
¶ 52 The State then called Erika Lazcano. Lazcano testified that, at the time of the incident, she was getting her daughter out of the car (from the rear passenger side). She heard someone conversing with Castro in English. Lazcano testified that the person she saw talking to Castro was wearing a black beanie and a hoody.
¶ 53 Lazcano testified that she then "heard the gunshot." Lazcano stated that, at the time of the shot, she was holding her daughter in her arms and was walking toward Castro. From this vantage point, Lazcano was able to see that "Jesus went to the ground, he hit the floor, he got shot." Lazcano then approached Castro as he was laying on the driveway. Lazcano recalled that, as she did this, "everybody ran and got in their car." At this point, Lazcano stated, she "was scared at the same time because I didn't know if he was going to shoot me and my daughter because I didn't move my car." At the end of her direct examination, Lazcano identified Ortuno-Perez as the man she saw shoot Castro.
¶ 54 On cross-examination, Ortuno-Perez's counsel highlighted disparities between Lazcano's testimony and statements she made in a 911 call and to the police shortly after the shooting. These variances included where she had parked her car on the night of the shooting, her description of the shooter, and her actions immediately after the shooting. Defense counsel also pressed Lazcano on her trial testimony in which she indicated — for the first time at trial — that the information that she gave to the 911 operator and to the police after the shooting was inaccurate.
¶ 56 On cross-examination, Ortuno-Perez's counsel confronted Parks with contradictions between his initial statements to the police and his trial testimony. These contradictions related to the description of the guns that he claimed Ortuno-Perez showed him prior to arriving at the house where the shooting occurred and whether he moved Castro's body after he was shot.
¶ 57 The State called its last witness on the 10th day of testimony. Immediately thereafter, Ortuno-Perez moved for a mistrial based on the trial court's "other suspect" rulings and the resulting testimony that was elicited at trial. Ortuno-Perez argued that he was deprived of his right to present a defense and his right to confront witnesses because the trial court excluded evidence pointing to Agnish as the actual killer and the trial court precluded Ortuno-Perez from effectively cross-examining any of the witnesses about whether they had a motive to lie about who shot Castro.
¶ 58 The trial court denied Ortuno-Perez's motion. The defense rested without calling witnesses.
¶ 59 The trial court's rulings unfairly inhibited Ortuno-Perez's ability to confront the witnesses against him. This manifested itself in several different ways.
¶ 60 First, the trial court prohibited Ortuno-Perez from confronting Lazcano with — and informing the jury of — the fact that her first description of the shooter was a match for Agnish. Instead, cross-examination (and argument) on this point was limited solely to noting that Lazcano's initial description did not match Ortuno-Perez.
¶ 61 As noted previously, immediately after Castro was shot, Lazcano went up to his body. She then looked at Agnish and shouted, "Don't shoot me." But defense counsel was not allowed to question her as to why she shouted this at a person who matched her initial description of her boyfriend's killer. (Nor, during closing argument, was defense counsel allowed to argue the logical inference that she shouted this because she had just seen Agnish murder Castro.) Instead, when Lazcano told the jury that she shouted this because she was afraid that Agnish was mad at her for not yet moving her car, defense counsel was required to merely accept the answer and move on.
¶ 62 In addition, Agnish, Perdoza, and Parks testified that they had been threatened as a result of their cooperation with the prosecution. The jury was left with the inference that Ortuno-Perez was the source of the threats. Due to the prior rulings, defense counsel was unable to explore whether the threats were the result of gang connections — or emanated from gang members — not promoted by Ortuno-Perez.
¶ 63 Finally, the primary State's witnesses were all acquainted. If Agnish was, indeed, the killer, they all had a reason to cover for him. And, if he was the killer, Lazcano had a reason to fear him. But due to prior rulings, defense counsel was unable to pursue these avenues of inquiry on cross-examination.
¶ 64 In these ways, the pretrial rulings excluding the proffered "other suspect" evidence
¶ 65 The Sixth Amendment right to counsel encompasses the delivery of closing argument.
¶ 66 Closing argument "is the defendant's `last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt.'"
¶ 67 Allowing attorneys to argue inferences from the evidence is a rudimentary aspect of this right.
¶ 68 A ruling on "other suspect" evidence is a ruling that determines whether evidence may be admitted at trial. Here, however, the trial court extended the reach of its "other suspect" rulings, instructing defense counsel that it could not, in closing argument, say anything that "pointed to" anyone other than Ortuno-Perez as the killer. By so ruling, the trial court prohibited defense counsel from arguing the effect of inferences that could reasonably be drawn from the evidence that was actually admitted at trial. This ruling further unfairly prejudiced Ortuno-Perez's right to present a defense.
¶ 69 For instance, Lazcano's initial description of the killer was testified to in front of the jury. The jury also personally observed Agnish in court. But while Ortuno-Perez was allowed to argue to the jury that the initial description did not describe him, he was not allowed to argue to the jury that the initial description did describe Agnish.
¶ 70 Similarly, while the jury heard testimony regarding Lazcano shouting at Agnish not to shoot her, Ortuno-Perez was forbidden to argue the connection between this exclamation
¶ 71 The trial court's restrictions on the defendant's closing argument went well beyond its pretrial evidentiary "other suspect" rulings. In practice, it prevented the defense from presenting any logical closing argument to the jury: in the face of clear evidence that 1) Castro was shot to death and 2) the shot was fired at close range, Ortuno-Perez was prevented from arguing that one of the other people standing in close proximity to Castro must have fired the shot. This left him with two pathetic choices — arguing vacuously that the prosecution "hadn't proved its case" against him or arguing that Castro was not shot at all. With the latter a complete impossibility, he was left with merely the former. This was a denial defense, to be sure, but not the strongest, most logical denial defense afforded by the evidence adduced at trial, coupled with reasonable inferences therefrom.
¶ 72 In this way, too, Ortuno-Perez was denied his right to present a complete defense.
¶ 73 The trial court's erroneous rulings were not harmless. An error of constitutional magnitude is harmless only if the State can prove beyond a reasonable doubt that the jury would have reached the same result in the absence of the error.
¶ 74 We are not so persuaded. The trial court errors discussed above may well have altered the jury's view of the evidence.
¶ 75 Because of the manner in which we resolve this appeal, we need not address any of the other errors claimed by defense counsel to have occurred or raised by Ortuno-Perez in his statement of additional grounds. Our restraint in this regard should be viewed as neither an affirmance nor a rejection of the trial court rulings at issue. The parties are free to fully litigate them should they arise on remand.
¶ 76 Similarly, our resolution of the "other suspect" issue with regard to Agnish does not foreclose, on remand, the possibility that other, or additional, evidence may be unearthed pointing to yet another possible perpetrator. If so, that issue may be fully and fairly litigated on remand.
¶ 77 The proffered "other suspect" evidence was such that it could have caused a reasonable juror to doubt whether Ortuno-Perez was guilty as charged. Thus, the trial court erred by excluding it. This error was compounded by the trial court's subsequent restrictions on cross-examination and closing argument. A new trial is required.
¶ 78 Reversed and remanded.
We concur:
Verellen, J.
Spearman, J.
ER 103(a).
Such an offer serves three purposes.
When we review a trial court decision to exclude evidence, we evaluate the court's analysis of the proof offered in light of general evidentiary admissibility principles. Thus, we ordinarily assume that the trial court is making its admissibility evaluation in response to only the ground stated, ER 103(a), that matters discussed by counsel are within the contemplation of the judge,
During appellate oral argument, the State asserted that some of the evidence contained in Ortuno-Perez's written offer of proof was inadmissible for reasons other than the "other suspect" analysis. We are not in a position to determine if this is true or not true. Nothing in the trial record indicates that such an argument was advanced to the trial judge. More importantly, it is clear that the excluded evidence was excluded solely based on the State's "other suspect" objection to its admissibility.
On cross-examination, defense counsel inquired into Blue's relationship with Agnish, who Blue referred to as "Sav", and established that Blue had never met Perdoza or Ortuno-Perez before the night of the shooting. Defense counsel further elicited testimony from Blue indicating that he did not see Ortuno-Perez with a gun in his hand when he saw him after the shooting and that, in comparing the statements that he made to the police on the night of the shooting with his trial testimony, Blue had been inconsistent in describing what transpired after the shooting.