* State of Washington v. Alejandro S. Martinez

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
ALEJANDRO S. MARTINEZ,
Appellant.
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No. 37343-6-III
OPINION PUBLISHED IN PART
SIDDOWAY, C.J. — Twenty-three years after then 16-year-old Alejandro Martinez
is alleged to have raped his young stepbrother, and 20 years after the youngster’s
allegation came to light and was charged as a crime, Alejandro, who had gone by the
name “Alex” for many years,1 was located across the country. He returned to Benton
County to stand trial and was convicted of the charge.
On appeal, Alex assigns error to the trial court’s abuse of discretion in granting
joinder of his prosecution with that of his brother Eduardo, prohibiting questioning about
illegal immigration during voir dire, and admitting alias evidence. He also assigns error
to the trial court’s failure to apply sentencing laws in effect in 1995.
1 To avoid confusion given the number of parties and witnesses with the common
paternal or maternal surnames, we refer to the members of those families by their first
names. We intend no disrespect.
FILED
JUNE 28, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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In the published portion of the opinion, we hold that the trial court did not abuse
its discretion in granting the State’s motion for joinder of the brothers’ cases. We explain
why several arguments raised on appeal misapprehend the Washington Supreme Court’s
decision in State v. Bluford, 188 Wn.2d 298, 393 P.3d 1219 (2017), and confuse joinder-
of-offenses and joinder-of-defendants situations.
In the unpublished portion of the opinion, we agree with Alex that he is entitled to
resentencing under more lenient sentencing laws in place at the time of his crime and
reject his remaining challenges. The conviction is affirmed and the case remanded for
resentencing.
FACTS AND PROCEDURAL BACKGROUND
Alejandro Martinez was born in the state of Morelos in Mexico and came to the
United States in 1991 with his mother, Urbina Martinez Miranda. He was about 13 years
old at the time. When Urbina returned to Mexico, she left Alejandro with a man,
Zamora, with whom she had been in a relationship. Alejandro lived with Zamora at an
orchard in Grandview.
In 1993, Urbina met and married Santiago P.V.2 in Mexico. Their blended family
consisted of Urbina’s son Eduardo, who is a year younger than Alejandro, and Santiago’s
2 To protect the privacy of Santiago’s sons we substitute pseudonyms for first
names and initials for surnames. See Gen. Orders of Division III, In re Use of Initials
or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012).
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three young sons, who we will refer to pseudonymously as Emiliano, Julian, and
Rodrigo. Soon after the marriage, the couple, Eduardo, and Santiago’s sons traveled to
the United States and settled in Prosser.
For about a year, the family lived in a single-wide trailer in a mobile home park on
Highway 22. According to Santiago, Alejandro lived with them part of the time, and
lived part of the time in Grandview. In the summer of 1995, Santiago purchased a
recreational type trailer and located it in a trailer park behind the Burger King in Prosser
(hereafter the “Prosser trailer park”). Reports differ as to whether Alejandro lived with
the family at the trailer part of the time or only stayed there occasionally.
In 1995, Urbina and Santiago separated several times. They eventually divorced.
During one of the separations, Santiago moved with his three sons to Grandview and the
boys enrolled at Whitstran Elementary. The two families did not see or hear from each
other thereafter.
Three years later, allegations of sexual abuse to Julian and Emiliano came to light
when a parent of a Whitstran student brought to the school’s attention an explicit drawing
that had circulated on the school bus. It bore Julian’s name. Most prominent in the
drawing was a depiction of a man having anal sex with a woman. The principal of
Whitstran Elementary, Sarah Juzeler, met with fourth-grader Julian to discuss the
drawing bearing his name.
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Julian initially denied creating the drawing, but before long admitted authorship
and disclosed he had been sexually abused three years earlier by his stepbrother Eduardo.
As a mandatory reporter, Principal Juzeler notified Child Protective Services of what she
had been told.
The allegation was referred to the Benton County Sheriff’s Office and Detective
Lee Cantu undertook the investigation in late September 1998. He and a sexual assault
counselor conducted interviews of Julian and Emiliano.
According to Detective Cantu, Julian told him that Eduardo had sexually abused
him. He told the detective he believed Eduardo and Urbina still lived at the Prosser
trailer park. The detective then spoke with Emiliano, who told the detective that both
Eduardo and Alejandro had sexually abused him. Like Julian, Emiliano believed
Eduardo and Urbina were still living at the Prosser trailer park.
Detective Cantu contacted the boys’ father, Santiago, who disclaimed any
knowledge of the abuse, which was never reported to him by either Emiliano or Julian.
According to Detective Cantu, Santiago also told him that Eduardo was living at the
Prosser trailer park, and told him he believed Alejandro was in New York.
On October 12, Detective Cantu went to the Prosser trailer park in hopes of
finding Eduardo and Alejandro. He went to the manager’s mobile home and knocked on
the door, but no one answered. A handwritten sign in the window identified “Alejandro
Martinez” as the manager, and provided a telephone number, which the detective called.
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The individual who answered spoke English and identified himself as Alejandro
Martinez. The detective told Alejandro that his name had been provided in connection
with a case the nature of which he did not identify, and he would like to speak with him.
Alejandro said he was at work and would not get off until 5 p.m., but he provided the
name of the produce warehouse where he was working and Detective Cantu drove there
to meet with him.
On arriving, the detective contacted the warehouse manager and asked if he had an
employee by the name of Alejandro Martinez. The manager said no, but they did have an
employee named Ricardo Martinez. Detective Cantu met with this employee who
identified himself as Alejandro Martinez, but had no identification to produce when
requested by the detective. Alejandro communicated with the detective in English and
waived his Miranda3 rights.
An advice of rights form that was later admitted at trial includes, in Detective
Cantu’s handwriting, the Benton County case number, the date and time the rights were
read, the location where the rights were read, Alejandro’s name, and a date of birth,
address, and phone number that the detective stated were provided by Alejandro. The
date of birth provided was January 25, 1979. The form is legibly signed “Alejandro S.
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Martinez” in two places, acknowledging being informed of rights and waiving them. The
form is also signed by Detective Cantu, as witness.
Detective Cantu asserts that at the inception of the interview, he told Alejandro he
was investigating an incident involving Emiliano and Julian that occurred in the fall of
1995 but did not specifically describe it as sexual abuse. Alejandro told the detective he
remembered the incident but “it was very hard for him to talk about.” Report of
Proceedings (RP) (Trial)4 at 639. Alejandro then gave a written statement to the
detective in Spanish, which translated to: “Me, Alejandro, did that with [Emiliano] one
time,” with no identification of what “that” was. RP (Trial) at 643. The signed
confession was later admitted at trial. Asked where Eduardo could be found, Alejandro
said Eduardo was living with him and his mother at the Prosser trailer park.
Detective Cantu told Alejandro he would be sending information to the prosecutor
to support a charge of rape of a child in the first degree. He did not immediately book
Alejandro due to overcrowding at the jail, however. According to the detective’s notes of
the interview, he spoke with Alejandro for a little over 40 minutes.
Three days later, the detective tried to contact Alejandro and Eduardo at the
Prosser trailer park but found no Martinez family member there. Alejandro did not
answer calls to the phone number Detective Cantu had reached him at a few days earlier.
4 “RP (Trial)” refers to the three consecutively-paginated volumes reported by
Cheryl Pelletier that include the final trial taking place in September and October 2019.
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Detective Cantu forwarded information to the prosecutor that resulted in charges
being filed. An information filed on November 2, 1998, charged Alejandro S. Martinez
with one count of first degree rape of a child (Emiliano) under former RCW 9A.44.073
(1988). An information filed on December 14, 1998, charged Eduardo S. Martinez with
two counts of first degree rape of a child (Emiliano and Julian) under former RCW
9A.44.073. Warrants were issued in 1998 for both brothers’ arrest.
Detective Cantu would later testify at trial that the warrants issued “were placed in
the system. The national system as well as the local [system],” but that he took no other
steps to locate Alejandro or Eduardo. RP (Trial) at 650. The record does not reveal that
any action was taken on the charges for over two decades.
2018
In the years that passed, Eduardo and Alejandro moved to Connecticut, worked,
married, purchased homes, and started families. Alejandro consistently went by “Alex,”
not Alejandro, and often used his paternal surname Ocampo, with or without his maternal
surname Martinez. We refer to him hereafter as Alex, except when we describe
testimony of members of the P.V. family and Detective Cantu, who knew him as
Alejandro.
In November 2018, Eduardo was driving on a Connecticut highway when
someone rear-ended him. The police responded to the accident and a check of Eduardo’s
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identification documentation turned up an outstanding arrest warrant for a Connecticut
driving under the influence (DUI) charge from October 1997. According to Eduardo, he
had failed to resolve that old charge because he had caused an accident at the time, and he
became concerned he might be jailed or even deported.
It was in connection with the continued prosecution of the old DUI charge that
Connecticut police became aware of the outstanding Washington warrants and associated
charges. Benton County obtained fugitive from justice warrants for Alex and Eduardo,
who lived next to each other in a duplex in Bridgeport. Both were arrested a few weeks
later.
Eduardo waived extradition and Detective Cantu traveled to Connecticut to
transport him to Washington. He was arraigned on his charges on March 25, 2019.
Alex returned to Washington to surrender himself. He was arraigned on May 1,
2019. At arraignment, Alex’s lawyer told the court that the State’s charges were against
Alejandro S. Martinez, which was incorrect, and that his client’s name was Alex Ocampo
Martinez. He told the court that the State’s birthdate for his client was also wrong. The
State’s position was and remained that Alex adopted a different name and date of birth
after becoming aware of the molestation investigation. It has never changed its
identifying information for Alejandro.
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Eduardo’s first trial on the charges began on May 13, 2019, shortly after Alex was
arraigned. It ended in a mistrial.
On May 31, the State filed a motion to join its cases against Alex and Eduardo and
consolidate them for trial. In moving for joinder, the State argued that “[t]he charges and
the evidence in the defendants’ cases are virtually identical” and proceeding with one
trial as opposed to two would “minimize the number of occasions that [Julian] and
[Emiliano] must testify as to the sexual abuse they suffered as young children.” Clerk’s
Papers (CP) at 304. At the hearing on the motion, the State emphasized that at Eduardo’s
trial Emiliano testified that the brothers had “tak[en] turns” molesting him and Julian.
RP (Munoz)5 at 77. It also argued that their defenses were consistent, since Eduardo had
testified at his trial and “flat-out denied” ever molesting either brother; he had also
testified he did not think Alex was around in October 1998 when Detective Cantu claims
to have interviewed him. RP (Munoz) at 77-78.
Alex’s briefing to the court pointed out that in Bluford, the Washington Supreme
Court had recently clarified that prejudice to a defendant is relevant to a decision on
5 RP (Munoz) refers to the single volume reported by Renee L. Munoz that
includes argument of the State’s joinder motion on June 13, 2019.
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joinder, just as it is to a decision on severance. 188 Wn.2d at 305.6 At the hearing Alex’s
lawyer argued that the unfairness in Alex’s case was not knowing whether Eduardo
would testify at the second trial:
[A]s a historical background for me, I can tell you honestly that I never
make a decision on whether my client’s gonna testify until after we’ve
heard all of the evidence.
You know, in this case I’d have to make that decision before we go
there, and I think it puts him in a terribly awkward position, and I think it
violates his rights for confrontation.
RP (Munoz) at 80.
The trial court granted the joinder motion, finding that Alex had not identified any
specific prejudice and “difficulties that foreseeably inure in mounting a joint defense . . .
while concededly not insignificant . . . are legally insufficient as a basis to resist the
motion.” CP at 8.
A second trial, this time against both brothers, began in June. The second trial
ended in a mistrial after the jurors informed the court they were deadlocked with no hope
of reaching a verdict.
6 The State had argued in Bluford, with some support from published decisions of
Division Two of this court, that when joinder rather than severance is being considered,
the only issue is whether it is allowable in accordance with the plain language of the rule;
the likelihood of prejudice is not relevant. The Supreme Court took the opportunity in
Bluford to disapprove of Division Two’s approach and confirm, as established in State v.
Thompson, 88 Wn.2d 518, 525, 564 P.2d 315 (1977), overruled on other grounds by
State v. Thornton, 119 Wn.2d 578, 580, 835 P.2d 216 (1992), that the likelihood of undue
prejudice to the defendant must also be considered when the State moves for joinder.
Bluford, 188 Wn.2d at 307-09.
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A third trial began in August. It ended in a mistrial on Alex’s motion, after
counsel for Eduardo was perceived by the trial court to have violated an in limine order,
to the potential detriment of Alex.
In motions in limine argued before the fourth trial, the State sought to offer certain
evidence from which it contended consciousness of guilt could be inferred, including
evidence of Alex’s self-identification as Alex Ocampo and Alex Ocampo Martinez after
Detective Cantu’s investigation and the filing of charges. Admission of the evidence
turned out not to be at issue, since Alex responded that he would offer evidence that he
self-identified as Alex Ocampo and Alex Ocampo Martinez.
In what amounted to a counter-motion, Alex asked the court to prohibit the State
from arguing that his self-identification as Alex Ocampo and Alex Ocampo Martinez
supported an inference of consciousness of guilt. The trial court denied the counter-
motion, ruling that “[b]oth sides have an opportunity to argue their positions to the jury.”
RP (Trial) at 316.
The fourth trial began in late September. Witnesses called by the State included
Detective Cantu; Julian and Emiliano’s father, Santiago; Principal Juzeler; Emiliano; and
Julian.7
7 Urbina had died a couple of years before the trial.
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Detective Cantu was asked in his direct examination if he saw the Alejandro
Martinez that he interviewed in 1998 in the courtroom; he said he did and identified Alex.
The detective also testified that after he picked up Eduardo at a Norwalk, Connecticut,
courthouse, they drove to LaGuardia Airport, and during the drive, Eduardo volunteered
a couple of things: that he moved to Connecticut but returned to Prosser following the
1997 DUI charge and that he returned to Connecticut when he learned authorities needed
to speak with him about the charges at issue in this case.
Santiago testified that Alejandro had lived with the family at the Highway 22
mobile home park for a time and also lived with the family off and on when they moved
to the Prosser trailer park. Asked by Alex’s lawyer if he recalled that Urbina had a
nephew “in the area” who was also named Alejandro Martinez, Santiago said he did, but
he did not know where he lived or who he had worked for. RP (Trial) at 893-94.
Emiliano testified to being born in March 1988, making him 31 years old at the
time of trial. He testified that he recalled the abuse by Alejandro and Eduardo happening
during the first quarter of his second-grade year. Alejandro was the first to abuse him by
putting his penis in Emiliano’s mouth; then he inserted his penis in Emiliano’s anus
“repeatedly.” RP (Trial) at 1042. He testified that this occurred in the bedroom, and both
of his younger brothers were present in the trailer. He testified that Eduardo had not been
present.
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Emiliano testified that Eduardo later assaulted him as well, calling him into the
bedroom where he “proceeded to pull my pants down and insert his penis in my anus.”
RP (Trial) at 1044. Emiliano testified he was raped by Eduardo on more than one
occasion, often in the bedroom.
Asked if he was able to fight back, he said he could not because Alejandro and
Eduardo were older, bigger and stronger. In the fall of 1995, when this is alleged to
have occurred, Alejandro would have been 16 years old and Eduardo would have been
nearly 15.
Emiliano testified that he knew that his younger brother Julian had also been
raped, “[b]ecause it happened to me” and “I could just hear him screaming, begging for
him to stop.” RP (Trial) at 1045. He testified that he also saw Julian being raped once, in
the trailer’s bathroom. Emiliano testified that he never talked to Julian or anyone else
about the abuse, because he was scared and “they threatened us.” RP (Trial) at 1046.
Julian testified to being born in 1989, making him 30 years old at the time of trial.
He testified that he was assaulted by Eduardo, who took him in the back room of the
trailer and put his penis in Julian’s anus. He remembered pain, and that he was crying,
and that it was against his will. He also recalled that it happened on a few occasions.
Emiliano was present in the trailer when it happened. Julian testified he knew it
happened to Emiliano, too, because Emiliano was taken to the back room and Julian
could hear him crying. Julian did not fight back because Eduardo was older than him and
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he was scared. It happened in the first quarter of his first-grade year, so he would have
been 6 years old at the time. Julian testified that Alejandro never molested him.
Alex and Eduardo testified in their own defense. Alex testified that others have
referred to him as Alejandro, but he, personally, has always gone by Alex. Asked about
his birthdate, he testified that he was born on March 21, 1978, which is not the date of
birth attributed to him by the State. He testified that he came to the United States in 1991
and lived with a family acquaintance in Grandview. He occasionally stayed with his
mother in the Prosser trailer park once she returned to the United States.
Alex testified that in November 1995, he left Washington with plans to go to
Chicago, but ended up going to Connecticut. He testified that he moved to Mexico in
1998, stayed for about a year, and then returned to Connecticut where he continued to
live until the charges in this case brought him back to Washington.
Alex testified that the first he ever heard of the charges against him in Washington
was in March 2019, when police came to his home looking for him and Eduardo. He
denied meeting Detective Cantu at any time prior to 2019. He testified that his cousin
Alejandro Martinez was a couple of years older than him and he believed he had lived in
Prosser in 1995. He denied ever molesting Emiliano.
In cross-examination, the State questioned Alex about a school record from
Prosser High School that identified student “Alejandro S. Martinez.” RP (Trial) at 1304.
The record listed Alejandro’s parent or guardian as Urbina Martinez, identified him as
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living at the Highway 22 mobile home park address, and it reflected January 25, 1979, as
the date of birth—the same date provided to Detective Cantu by the “Alejandro
Martinez” interviewed in 1998. Alex testified that he could not say the record was
incorrect but “it wasn’t me.” RP (Trial) at 1303.
Eduardo testified after Alex. He testified he first left Washington in February
1996. He had dropped out of school, and Alex had driven from Connecticut to pick him
up. In October 1997 he received the DUI in Connecticut and, fearful of problems the
DUI could cause, he returned to Washington in February 1998 and lived with his mother.
He testified that he remained in Washington for only four months.
Eduardo denied having any knowledge of the investigation or pending case against
him in Washington until sometime after his November 2018 auto accident. It was during
the revived proceedings on his 1997 DUI that he learned about it from Connecticut law
enforcement. He denied ever telling Detective Cantu that he fled Washington when he
learned the police were looking for him; he testified that he only told Detective Cantu
about fleeing Connecticut for Washington after being charged with the DUI.
In questioning by Alex’s lawyer, Eduardo testified that he believed his cousin
Alejandro Martinez was older than Alex, but could not say for sure. He did not know
where the cousin had worked, other than that he was “basically working in the field.”
RP (Trial) at 1328.
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The jury found the brothers guilty as charged. Based on what was identified as a
seriousness level for the charges of XII, Alex’s standard range was 93 to 123 months.
The court sentenced Alex to a period of total confinement of 120 months and 24 months
of community custody. He appeals.
ANALYSIS
I. ALEX DOES NOT DEMONSTRATE THAT THE TRIAL COURT ABUSED ITS DISCRETION IN
ORDERING JOINDER
Alex’s first assignment of error is that the trial court abused its discretion in
granting the State’s motion to join the charge against him with the charges against
Eduardo.
CrR 4.3(b) allows two or more defendants to be joined in the same charging
document under several circumstances. If joined under CrR 4.3(b), the charges against
them are consolidated for trial unless the court orders severance. CrR 4.3.1.
The State contends that joinder was proper under CrR 4.3(b)(3), which permits
joinder even when conspiracy is not charged and all of the defendants are not charged in
each count, if it is alleged that the several offenses charged:
(i) were part of a common scheme or plan; or
(ii) were so closely connected in respect to time, place and occasion that
it would be difficult to separate proof of one charge from proof of
the others.
In arguing that joinder was improper, Alex relies heavily on case law addressing
the special prejudice that arises when evidence of a defendant’s prior sex crimes is
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admitted under ER 404(b) on, e.g., “common scheme or plan” grounds. He argues that
this special prejudice existed in the joint trial, since evidence of Eduardo’s rapes was
admitted. But evidence of a defendant’s own prior crimes risks being used by jurors “to
prove the character of a person in order to show action in conformity therewith,” hence
the special rule limiting admissibility. ER 404(b). No legal authority is cited that
evidence of a crime committed by a defendant’s family member, or friend, or cohort,
presents a similarly special risk, and no rule specially prohibits such evidence. ER 404(b)
has no application when evidence of a different person’s rapes has relevance in a case,
although ER 403 could apply.8
8 All of the following cases relied on by Alex involve the need to exclude evidence
of a defendant’s own prior acts under ER 404(b) and are inapposite: State v. Saltarelli, 98
Wn.2d 358, 363, 655 P.2d 697 (1982) (“‘Once the accused has been characterized as a
person of abnormal bent, driven by biological inclination it seems relatively easy to arrive
at the conclusion that he must be guilty.’” (quoting M.C. Slough & J. William Knightly,
Other Vices, Other Crimes, 41 IOWA L. REV. 325, 333-34 (1956))); State v. Ramirez, 46
Wn. App. 223, 227, 730 P.2d 98 (1986) (“[A]n intelligent application of ER 404(b) is
particularly important in sex cases.”); State v. Gresham, 173 Wn.2d 405, 433, 269 P.3d
207 (2012) (“When the support of RCW 10.58.090 is removed, we are . . . left with
evidence admitted in violation of ER 404(b).”); State v. Sutherby, 165 Wn.2d 870, 886,
204 P.3d 916 (2009) (Had child pornography charges been severed, “highly likely” that
its possession would have been excluded under ER 404(b).); State v. Carleton, 82 Wn.
App. 680, 684, 919 P.2d 128 (1996) (“‘Evidence of prior misconduct is likely to be
highly prejudicial.’” (quoting State v. Lough, 125 Wn.2d 847, 862, 889 P.2d 487
(1995))); State v. Gunderson, 181 Wn.2d 916, 925, 337 P.3d 1090 (2014) (The risk of
unfair prejudice of a defendant’s prior acts of domestic violence is very high.).
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Alex also argues on appeal that the trial court failed to heed Bluford because in
analyzing the risk of undue prejudice to Alex it did not address the four factors analyzed
in Bluford: “‘(1) the strength of the State’s evidence on each count; (2) the clarity of
defenses as to each count; (3) court instructions to the jury to consider each count
separately; and (4) the admissibility of evidence of the other charges even if not joined
for trial.’” 188 Wn.2d at 311-12 (quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d
747 (1994)). But Bluford, like Russell, was a joinder-of-offenses by a single defendant
case, not a joinder-of-defendants case, as the four factors illustrate (“each count,” “each
count,” “each count,” and “other charges”). As Russell explained, those factors relate to
the risk of prejudice where an individual defendant offers different defenses to different
counts, detracting from the credibility of the defenses, or where multiple charges against
an individual defendant invite the jury to cumulate evidence or infer a criminal
disposition. They are not necessarily the same risks of prejudice likely to be present in a
joinder-of-defendants situation. Indeed, in Bluford, when the Supreme Court turned to
the analysis of that joinder-of-offenses case, its overarching concern was ER 404(b).
Recognizing this difference, both the State and Alex reasonably relied in their
briefing to the trial court on a then-recent joinder-of-defendants case, State v. Moses, 193
Wn. App. 341, 359, 372 P.3d 147, review denied, 186 Wn.2d 1007 (2016). Moses
involved child mistreatment that had been jointly charged against a husband and wife.
As pointed out by the court, in the joinder-of-defendants context:
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No. 37343-6-III
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Specific prejudice may be demonstrated by showing:
“(1) antagonistic defenses conflicting to the point of being irreconcilable
and mutually exclusive; (2) a massive and complex quantity of evidence
making it almost impossible for the jury to separate evidence as it related to
each defendant when determining each defendant’s innocence or guilt; (3) a
co-defendant’s statement inculpating the moving defendant; (4) or gross
disparity in the weight of the evidence against the defendants.”
Id. at 360 (quoting State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995)
(quoting United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985))). Canedo-
Astorga’s statement of the prejudice considerations in joinder-of-defendants cases had
often been relied on by Washington courts, including by the Supreme Court. See State v.
Emery, 174 Wn.2d 741, 753, 278 P.3d 653 (2012).
Bruton9 concerns predominated in Moses. The defendant argued that his wife’s
pretrial statement, which had been ruled admissible, inculpated him. The trial court
disagreed and this court affirmed. The wife professed innocence, and statements she
made that would be understood to refer to the defendant were not inculpatory. Moses,
193 Wn. App. at 359.
In this case, the trial court observed that no Bruton issue was presented. While an
incriminating statement from each of Alex and Eduardo would be admitted in evidence,
neither statement incriminated the other brother. No party disagreed.
9 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
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No. 37343-6-III
State v. Martinez
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As previously noted, the State pointed out in its briefing and argument that there
were no antagonistic defenses. Alex did not identify any position Eduardo had taken in
his first trial that would be problematic for his own defense. The only prejudice Alex
identified to the trial court was that he would not know until the end of the State’s case
whether Eduardo was going to testify.
Turning to the evidence that Alex now argues would have been excluded if he had
been tried separately, the State pointed out testimony at Eduardo’s aborted trial that Alex
and Eduardo “took turns” with Emiliano and Julian. There was testimony that both Alex
and Eduardo threatened their young stepbrothers. The rapes took place in the same
opportunistic circumstance: when the young boys were left at home with their older
stepbrothers while their parents worked.
As in all cases of a child’s delayed report of sexual abuse, it was not only relevant
but important to be able to present evidence why Emiliano’s allegation against Alex first
came to light in 1998, and why he did not say anything to anyone earlier, especially when
he had another older stepbrother who could presumably protect him.
In the trial court’s written order granting joinder, the trial court alluded to the
types of specific prejudice identified in Moses and found none of them present. Alex
never argued in the trial court that there was a massive and complex quantity of evidence.
He never argued in the trial court that there was a gross disparity in the weight of the
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No. 37343-6-III
State v. Martinez
21
evidence against the defendants.10 The court’s order heeds Bluford’s clarification that
prejudice must be considered before ordering joinder, finding that Alex did not identify
any specific prejudice to him from a consolidated trial.
Despite relying on Moses in the trial court, Alex now argues it was error for the
trial court to rely on it. He argues that Moses addressed severance, not joinder, so it
should not be relied on after Bluford. But Bluford supports the relevance of severance
cases. It characterized pretrial joinder and severance as “often ‘six of one, half dozen of
the other’ because the issues are so closely related.” 188 Wn.2d at 309. It observed that
“[e]ver since Washington first allowed for the joinder of offenses, our courts have
recognized the close relation of joinder and severance” and “we have typically analyzed
joinder and severance together.” Id. at 307-08. As Bluford points out, the salient
differences are that if charges are joined in the original charging document, asking for
severance is the defendant’s only course of action, and because joinder in forward-
looking, review of a joinder ruling looks at only facts known to the judge at the time of
the ruling, not those developed later. Id. at 310.
Alex’s final challenge is that the trial court applied an incorrect balancing test after
Bluford when it stated in its order, the resisting party “must . . . demonstrate that joinder
10 He does argue for the first time on appeal that the case against Eduardo was
stronger. But the State had a written confession from Alex, with Detective Cantu’s
identification of him as the individual who provided it. It had no confession from
Eduardo.
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No. 37343-6-III
State v. Martinez
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is ‘manifestly prejudicial,’ and thus outweighs the substantial interest in joinder.” Br. of
Appellant at 14-16. But Alex argued for a virtually identical balancing test in his briefing
to the trial court. See CP at 5, 13-17. Alex’s trial lawyer evidently did not see daylight
between Moses’s language about balancing “manifest prejudice” against a “substantial
interest in joinder,” and Bluford’s language about balancing “clear, undue prejudice”
against “important considerations of economy and expedition in judicial
administration.”11 He described them to the trial court as “similar” tests. Id. at 5. While
we would be disposed to use Bluford’s language as the most recent and controlling
statement of the required balancing, Alex does not demonstrate that speaking of
“manifest prejudice” rather than “clear, undue prejudice” was error. If it had been error,
it was invited. Cf. City of Seattle v. Patu, 147 Wn.2d 717, 721, 58 P.3d 273 (2002)
(erroneous jury instruction was invited error).
No abuse of discretion in ordering joinder is shown.
11 Bluford provided the following statement of how the competing interests are
balanced:
[I]f joinder will cause clear, undue prejudice to the defendant’s substantial
rights, no amount of judicial economy can justify requiring a defendant to
endure an unfair trial. However, where the likely prejudice to the defendant
will not necessarily prevent a fair trial, “‘the court must weigh prejudice to
the defendant caused by the joinder against the obviously important
considerations of economy and expedition in judicial administration.’”
188 Wn.2d at 311 (quoting State v. Smith, 74 Wn.2d 744, 755, 446 P.2d 571
(1968) (quoting, in turn, Drew v. United States, 331 F.2d 85, 88 (1964)), overruled
in part on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975).
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No. 37343-6-III
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We affirm the conviction and remand for resentencing.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered
II. THE TRIAL COURT’S LIMITATION OF VOIR DIRE WAS NOT CONSTITUTIONAL ERROR
OR A REVERSIBLE ABUSE OF DISCRETION
Alex next assigns error to the trial court’s ruling preventing defense counsel from
questioning members of the venire about their attitude toward illegal immigration.
Part way through voir dire, outside the presence of the jury, Eduardo’s lawyer
asked if he could question whether prospective jurors held strong feelings about people
being in the United States illegally. Alex’s lawyer joined the request, observing that the
country appeared politically divided on the topic and the questioning could reveal
prejudices. Asked by the court why it was relevant, the defense lawyers suggested that
the back story of the defendants and victims suggested they were in the country illegally;
Detective Cantu’s interview of Alejandro at the fruit warehouse would lead to discussion
of the use of false names by undocumented workers; and the defense may rebut the
allegation of flight with evidence of the defendants’ fear of deportation. The defense
lawyers also argued that the questioning could serve as a proxy for questions about racial
bias, since people are defensive when asked outright about racial bias and tend not to
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No. 37343-6-III
State v. Martinez
24
provide helpful information. Neither defense lawyer had specific proposed questions,
although both suggested that asking about Donald Trump’s promise to build a border
wall with Mexico would be a way to ferret out the jurors’ attitudes.
The trial court heard considerable argument and even continued consideration of
the issue overnight, allowing the defendants to further address it the following morning.
It ultimately ruled that it would not allow inquiry into prospective jurors’ attitudes about
illegal immigration, but would allow the lawyers to inquire whether venire members had
any prejudice against those of Hispanic descent or ethnicity. It explained it had reviewed
ER 413 and was satisfied that none of the evidence identified by defense counsel went to
the bias or prejudice of a witness, nor was immigration status an essential fact to prove an
element of, or defense to, the offenses charged.
In assigning error to the court’s ruling, Alex does not challenge it as an abuse of
discretion but only as violating his constitutional right to a fair trial by an impartial jury.
The right to trial by jury includes the right to an unbiased and unprejudiced jury.
U.S. CONST. amend. VI, XIV; WASH. CONST. art. I, § 22. The state constitutional right
to an impartial jury does not provide any greater protection than the federal constitutional
right. State v. Munzanreder, 199 Wn. App. 162, 174, 398 P.3d 1160, review denied, 189
Wn.2d 1027 (2017); State v. Rivera, 108 Wn. App. 645, 648 n.2, 32 P.3d 292 (2001).
In noncapital cases, the United States Supreme Court has found the constitutional
right to an impartial jury to require that a defendant be allowed to question prospective
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No. 37343-6-III
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jurors about racial bias in only narrow circumstances. In Ham v. South Carolina,
409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973), the Court held that Ham was
constitutionally entitled to require the asking of a question specifically directed to racial
prejudice “under the facts shown by this record.” Id. at 527. Several years later, in
Ristaino v. Ross, 424 U.S. 589, 597, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976), the Court
clarified that because Ham was a prominent civil rights activist and defended against a
charge of possessing marijuana on the basis he had been framed for his civil rights
activities, “[r]acial issues . . . were inextricably bound up with the conduct of the trial.” It
observed that Ham’s reputation as an activist and the defense he interposed “were likely
to intensify any prejudice that individual members of the jury might harbor.” Id.
The Court in Ristaino held that petitioner Ross, who was Black, had no
constitutional right to pose similar questions to prospective jurors in his prosecution for
violent crimes against a white security guard. The circumstances “did not suggest a
significant likelihood that racial prejudice might infect [his] trial.” Id. at 598. The Court
rejected a per se rule that would require defense counsel to be allowed to specifically
question prospective jurors about racial prejudice in cases in which the defendant was a
different race from the victim, or because of the race of his own or adverse witnesses.
Id. at 596 n.8. It reasoned that “policy as well as constitutional considerations militate
against the divisive assumption as a per se rule that justice in a court of law may turn
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No. 37343-6-III
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upon the pigmentation of skin [or] the accident of birth.” Id. (citing Connors v. United
States, 158 U.S. 408, 415, 15 S. Ct. 951, 39 L. Ed. 1033 (1895)).
Given the narrowness of the constitutional right to specifically question about
racial bias, a federal court’s denial of a defendant’s request for such questioning is almost
always challenged as an abuse of discretion under nonconstitutional rules. In Ristaino,
the Court had observed in a footnote that exercising its supervisory authority, it would
have required the questioning that Ross requested. Id. at 598 n.9. It pointed to its
decision in Aldridge v. United States, 283 U.S. 308, 51 S. Ct. 470, 75 L. Ed. 1054 (1931),
as one in which it had reversed the conviction of a Black man for the murder of a white
policeman because of the court’s refusal to question the venire about racial prejudice,
without grounding the outcome on any constitutional requirement. Id. a 597-98 nn.9
& 10.
In Rosales-Lopez v. United States, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22
(1981), the Court again stated that because there is no constitutional presumption of juror
bias for or against members of any particular racial or ethnic group, there is no
constitutional rule requiring inquiry as to racial prejudice in every prosecution of a
defendant who is a member of such a group. Id. at 189-90 (citing Ristaino, 424 U.S.
at 597).
Only when there are more substantial indications of the likelihood of racial
or ethnic prejudice affecting the jurors in a particular case does the trial
court’s denial of a defendant’s request to examine the jurors’ ability to deal
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No. 37343-6-III
State v. Martinez
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impartially with this subject amount to an unconstitutional abuse of
discretion.
Absent such circumstances, the Constitution leaves it to the trial court, and
the judicial system within which that court operates, to determine the need
for such questions.
Id. at 190.
Turning to the federal supervisory rule, the opinion in Rosales-Lopez observed that
if a defendant claims a meaningful ethnic difference between himself and the victim, a
request to conduct voir dire into racial prejudice should ordinarily be granted. Id. at 191
n.7. It held that “[f]ailure to honor [the defendant’s] request, however, will be reversible
error only where the circumstances of the case indicate that there is a reasonable
possibility that racial or ethnic prejudice might have influenced the jury.” Id. at 191.
For the first time on appeal, Alex contends that the questioning he and Eduardo
sought to pursue falls within categories for which, he contends, such questioning is
mandated by State v. Frederiksen, 40 Wn. App. 749, 700 P.2d 369 (1985). Frederiksen
makes passing reference to the right to an impartial jury, but it involved an abuse of
discretion challenge and relies on a federal abuse of discretion case, United States v.
Jones, 722 F.2d 528, 529 (9th Cir. 1983) and ultimately on United States v. Robinson,
475 F.2d 376, 380-81 (D.C. Cir. 1973).12
12 See Perez v. Prunty, 139 F.3d 907 n.2 (9th Cir. 1998) (unpublished) (pointing
out that States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983), “did not announce a
constitutionally-compelled rule,” but was authorized by the court’s supervisory powers).
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No. 37343-6-III
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We could end our analysis here, because Alex did not assign error to an abuse of
discretion, only a constitutional violation. No constitutional violation has been shown.
Because the trial court’s consideration of the defendants’ request should not have ended
with consideration of ER 413, however, we address the trial court’s exercise of its
discretion.
The trial court justified its limitation on voir dire based on ER 413’s limits on the
admissibility of evidence of a party’s or witness’s immigration status. The fact that the
defendants could not point to any evidence of immigration status admissible under ER
413 was a relevant consideration, but depending on the case, it would not be the only
consideration. The trial court erred in not recognizing that it was required to more
broadly consider any real possibility that racial or ethnic prejudice might influence the
jury.
Alex and Eduardo reasonably contended that even in a trial conducted in
conformity with ER 413, jurors would infer that they were undocumented. Since the
evidence rules would not protect them from a risk of juror bias, they deemed voir dire
and their ability to exercise peremptory challenges as their best protection. Another,
similarly-situated defendant might decide against highlighting the issue in voir dire. But
Alex’s and Eduardro’s position was a rational one, and when a defendant faces a
foreseeable risk that admissible evidence will suggest that they are undocumented, a trial
court should respect the defendant’s concern.
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No. 37343-6-III
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Careful thought should be given to how such voir dire will be conducted, however,
and here, Alex and Eduardo’s request fell short of what a trial court is reasonably entitled
to expect. Even given the opportunity to refine and support their request overnight, they
never provided the court with proposed questioning other than to suggest asking jurors
their attitudes about former President Trump’s border wall. Questioning of that sort
would have politicized voir dire, presenting its own problems for the fairness of the
trial.13 E.g., State v. Loughbom, 196 Wn.2d 64, 69–70, 470 P.3d 499 (2020) (“Justice can
be secured only when a conviction is based on specific evidence in an individual case;”
“We do not convict to make an example of the accused, we do not convict by appeal to a
popular cause”). The questions should be framed in narrow terms, avoiding politics. In
Rosales-Lopez, for example, in which a defendant of Mexican descent was prosecuted for
his alleged participation in a plan by which three Mexican residents were illegally
brought into the United States, questioning untied to partisan politics was permitted. 451
U.S. at 185-86.14
13 Politicizing voir dire by discussing border security was argued to be reversible
error in State v. Zamora, No. 37019-4-III, slip op. at 32-34 (Wash. Ct. App. June 8, 2021)
(unpublished), available at https:///www.courts.wa.gov/opinions/pdf/370194_unp.pdf,
review granted in part on this issue, 198 Wn.2d 1017 (2021).
14 Questions posed in Rosales-Lopez, which was tried in 1979, were, “Do any of
you have any feelings about the alien problem at all?” and “Do any of you have any
particular feelings one way or the other about aliens or could you sit as a fair and
impartial juror if you are called upon to do so?” 451 U.S. at 186.
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No. 37343-6-III
State v. Martinez
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A trial court has considerable discretion to direct voir dire “with reasonable
expedition.” Frederiksen, 40 Wn. App. at 753. The trial court allowed the defendants to
question prospective jurors about prejudice against persons of Hispanic descent or
ethnicity. Here, not having been presented with any carefully crafted questions, the trial
court could reasonably perceive the request for permission to question jurors about
former President Trump’s border wall with Mexico as “a vague, speculative inquiry to
see if [counsel] could unearth something prejudicial.” Id. at 755.
Clearly no violation of Alex’s constitutional right to an impartial jury was
demonstrated. Nor does Alex assign error to or demonstrate a prejudicial abuse of
discretion by the trial court.
III. THE COURT DID NOT ABUSE ITS DISCRETION IN RULING ON THE STATE’S
“CONSCIOUSNESS OF GUILT” MOTION IN LIMINE
Alex’s next assignment of error challenges a ruling made in the course of
addressing a State motion in limine seeking permission to offer evidence of what it
characterized as the defendants’ flight and Alex’s use of an “alias,” as reflecting
consciousness of guilt. CP at 473-75.
The State’s proposed evidence of use of an alias was that Alejandro began using
the names Alex Ocampo and Alex Ocampo Martinez after learning from Detective Cantu
that the results of the detective’s investigation would be forwarded to the prosecutor for
possible prosecution.
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No. 37343-6-III
State v. Martinez
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In responding to the State’s motion, Alex’s lawyer made it clear that Alex would
himself present evidence that he used the names Alex Ocampo and Alex Ocampo
Martinez, just as he had in the prior trials. He took the position that these were his name.
Accordingly, the admissibility of evidence of Alex’s use of the names was never
disputed.
In what amounted to a countermotion in limine, Alex argued that the State was
laboring under a misunderstanding of Hispanic naming conventions in attaching any
significance to Alex’s use of the names. He argued that this was culturally insensitive, if
not racist, and the State should be precluded from arguing that Alex began using the
names after 1998 to evade apprehension.
The State responded that it was not being disrespectful of Alex’s cultural heritage
but it was a fact that by using different iterations of his name, Alex had avoided coming
to the attention of law enforcement for many years.
The court ruled, “Both sides have an opportunity to argue their positions to the
jury.” RP (Trial) at 316. It is this ruling that is being challenged by Alex.
Most of the consciousness of guilt cases on which Alex relies are inapposite
because the defendants in those cases were arguing for the exclusion of evidence, they
were not arguing that the evidence was admissible but an inference was foreclosed. See
State v. Freeburg, 105 Wn. App. 492, 499, 20 P.3d 984 (2001) (defendant objected to
evidence that he was carrying a handgun at the time of his arrest); State v. McDaniel,
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No. 37343-6-III
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155 Wn. App. 829, 838, 855, 230 P.3d 245 (2010) (defendant objected to evidence that
he attempted to elude when police, seeking to arrest him on warrants, tried to pull over
the car in which he was a passenger and did not cooperate after the stop); State v. Smith,
55 Wn.2d 482, 484, 348 P.2d 417 (1960) (defendant objected to the fact that evidence of
her unproved aliases was inadvertently provided to the jury).
State v. Cartwright, 76 Wn.2d 259, 263, 456 P.2d 340 (1969), is also cited by
Alex; it is different and frankly unhelpful to him. In that case, several witnesses testified
to conduct by Cartwright, but referred to him as Martin, the name by which they knew
him. Cartwright did not challenge the fact that the witnesses were allowed to testify and
refer to him by the name Martin, but did challenge the trial court’s refusal to give a jury
instruction that he had the right to use a different name without incurring an inference of
criminality. Id. at 263-64. The Supreme Court held that it was not error to refuse to give
the requested instruction.
Alex cites two cases for the proposition that it is improper to infer guilt or criminal
activity from racist misconceptions: State v. Monday, 171 Wn.2d 667, 678-79, 257 P.3d
551 (2011), and State v. Barber, 118 Wn.2d 335, 346-47, 823 P.2d 1068 (1992). But he
does not point to any racist misconception that was advanced by the State. Although the
State used the word “alias” in its motion in limine, it never used that word to refer to
Alex’s use of his paternal surname when the jury was present. Alex does not identify
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No. 37343-6-III
State v. Martinez
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anywhere in the record where the State questioned, let alone denigrated, Hispanic naming
conventions.
In fact, it was through Detective Cantu that Alex’s lawyer presented evidence of
Hispanic naming conventions. In response to Alex’s lawyer’s questions, Detective Cantu
testified that “typically in my culture, you take the father’s last name.” RP (Trial) at 836.
Detective Cantu agreed with Alex’s lawyer that sometimes a Hispanic person’s surnames
get inverted through no fault of their own, with the detective adding that “I think we here
in the U.S. are the ones that do that because perhaps we don’t understand how it’s being
utilized.” RP (Trial) at 836.
The State was able to demonstrate that all of the documents Alex pointed to as
identifying him as Alex Ocampo or Alex Ocampo Martinez were created after 1998.15
Detective Cantu testified that the name Benton County used in investigating was
Alejandro S. Martinez, and Alex’s use of the names Alex Ocampo and Alex Ocampo
Martinez made it more difficult to locate him.
Alex does not demonstrate that the trial court abused its discretion in allowing the
State to argue that jurors could infer consciousness of guilt from name changes that
foreseeably added difficulty to Alex’s apprehension.
15 Alex offered his Mexican passport, birth certificate, driver’s licenses
(Connecticut and Washington), and marriage license.
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No. 37343-6-III
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IV. ALEX DEMONSTRATES THAT RESENTENCING IS REQUIRED
Finally, Alex points out that several sentencing errors were made because the
parties and the court overlooked the need to apply the Sentencing Reform Act of 1981
(SRA), chapter 9.94A RCW, as in effect in 1995, when the crime occurred. Most serious
is a failure to take into consideration the earlier and more lenient seriousness level and
associated sentencing range for the crime.
RCW 9.94A.345 commands, “Any sentence imposed under this chapter shall be
determined in accordance with the law in effect when the current offense was
committed.” State v. Jenks, 197 Wn.2d 708, 715, 487 P.3d 482 (2021). The plain
language is unambiguous. Id. RCW 9.94A.345 applies to all sentences imposed under
“this chapter,” meaning the SRA. Id. Application of prior law is also required by the
saving clause provided by RCW 10.01.040.16 In increasing the seriousness level of first
degree rape of a child in 1997, the legislature expressed no intent that the change should
apply retroactively. LAWS OF 1997, ch. 340, §§ 1-4. RCW 10.01.040 applies to
16 RCW 10.01.040 provides:
Whenever any criminal or penal statute shall be amended or repealed, all
offenses committed or penalties or forfeitures incurred while it was in force
shall be punished or enforced as if it were in force, notwithstanding such
amendment or repeal, unless a contrary intention is expressly declared in
the amendatory or repealing act, and every such amendatory or repealing
statute shall be so construed as to save all criminal and penal proceedings,
and proceedings to recover forfeitures, pending at the time of its enactment,
unless a contrary intention is expressly declared therein.
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No. 37343-6-III
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substantive changes in the law, not procedural ones, and changes to criminal punishments
are substantive. Jenks, 197 Wn.2d at 721.
Alex was convicted of committing first degree rape of a child in violation of
former RCW 9A.44.073 (1988) on or about August 1, 1995 to October 30, 1995. In
1995, a conviction of first degree rape of a child carried a seriousness level of XI.
Former RCW 9.94A.320 (1995) (presently codified at RCW 9.94A.515). He had no prior
criminal history. Under the sentencing grid applicable in 1995, the standard range
sentence for an offender score of zero was 78 to 102 months. Former RCW 9.94A.310
(1995) (presently codified at RCW 9.94A.510). The State concedes that Alex was
sentenced based on an assumed sentencing range of 93 to 123 months, that the 120-
month sentence imposed by the trial court exceeds the high end of his correct sentencing
range, and that resentencing is required.
Alex argues a remand is required to correct other errors in his judgment as well,
including the imposition of legal financial obligations that were not authorized in 1995.
The State concedes some but not all of these alleged additional errors. Since a full
resentencing will be required to apply the correct standard range, we decline to address
other corrections that might be required. The parties can present their positions on proper
judgment terms to the sentencing court.
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No. 37343-6-III
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We affirm the convictions and remand for resentencing.
Siddoway, C.J.
WE CONCUR:
_____________________________
Fearing, J.
_____________________________
Pennell, J.
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