### FILED SEPTEMBER5, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. JESUS DUARTEVELA, Appellant. ) ) ) ) ) ) ) ) ) No. 33299-3-111

PUBLISHED OPINION

LAWRENCE-BERREY, A.CJ.

- Jesus Duarte Vela1 appeals his conviction for second degree murder. DuarteVelaasserted self-defense attrial. Thetrial court permittedDuarteVelato testify he was fearful ofthe victim, butwouldnot allow Duarte Velato explain why he feared the victim orthe severity ofthe injury he feared. Thejury rejectedDuarte Vela's self-defense claim and convictedhim ofsecond degree murder. On appeal, Duarte Vela argues thetrial court's evidentiary rulings were erroneous andviolatedhis right underthe SixthAmendmentto the United States Constitutionto present a defense. We agree and, therefore, reverse his conviction for second degree

1Because ofthe number ofsimilar first and last names, werefertothe appellant as "DuarteVela," and his family members by their first names.No. 33299-3-III State v. Duarte Vela
murder and remand for retrial.

A. FACTS FACTS AND PROCEDURE

OnFebruary 20, 2014, Duarte Vela shot and killed Antonio Menchaca in Okanogan County. The question at trial was why Duarte Vela shot and killed Menchaca. Menchaca was once married to BlancaDuarte, Duarte Vela's sister. The former couple hadtwo children, Jesus and a younger sister. Menchacaleft Okanogan in 2007. His whereabouts during the sevenyears betweenthen andthe shooting were not clearly established: At some point after 2007 he hadbeen incarcerated, in May 2012 border patrol agents returned him to Mexico and, in February 2014, hetravelled from Mexico to his sister's home in Fresno, California. OnFebruary 18, 2014, Menchacatraveled from his sister's home to Okanogan, in partto see his children. Menchaca arrived at Blanca's apartment inthe morning hours of February 20. Jesus, then 17 years old, saw his dadhugging his younger sister around 7:00
a.m. that morning. Jesus was afraid and called Duarte Vela, his uncle. He explainedto Duarte Velathathis dad was at the apartment and asked Duarte Velato pickhim up after school that day. Duarte Vela's wife, Billie Jo Wilson, was home whenDuarte Vela received the call and learned from Duarte Velathat Menchacawas back in town.
2No. 33299-3-III State v. Duarte Vela
Duarte Vela decided to go to his sister's apartmentto make sure she and her family
were safe. He knew that Menchacahadthreatened Blanca inthe past. Duarte Vela was fearful ofMenchaca and concerned that Menchacaposed a threatto Duarte Vela's family. For these reasons, he took his gun with him. When Duarte Vela arrived at his sister's apartment, Menchacawas the onlyperson there. Duarte Vela asked whyhe was at the apartment and told him thatBlancadid not want to see him. Duarte Velatold him to stay away from Duarte Vela's family. Menchaca assured himthathe would return to Fresno. Duarte Vela felt relieved and went to work. That afternoon, Billie Jo, together with her two younger children, drove to the turnout at the head ofher shared driveway to pick up her oldest daughter who was arriving by school bus. A sport utility vehicle (SUV) pulled into the turnoutjustafter Billie Jo parked. The SUV driver and passengerboth looked directly atBillie Jo. She thought the passengerwas Menchaca. As Duarte Vela arrived at the turnout, the SUV left. Billie Jo told her husbandthere were two people in the SUV, she thoughtthe passengerwas Menchaca, and she was frightened. She knew that Menchacahad caused problems with the family years earlier. Duarte Velawas frightened for his children and drove after the SUV.
3No. 33299-3-III State v. Duarte Vela
Duarte Vela signaled for the SUV driver to pull over, and he did. Duarte Vela pulled alongside the SUV. Duarte Velarecognized the driver as Luis Martinez, a distant relative. He did not see anyone else in the SUV. Duarte Vela said his wife reported she
saw an SUV with two people in it and thought that one ofthe people was Antonio Menchaca. Duarte Vela explained he was concerned because he did not know what Menchaca's plans were and said he did not want Menchacato cause any problems for his family. Martinez assured Duarte Vela, "'It's only by [sic] myself.'" 2 Report of Proceedings (RP) (Jan. 28, 2015) at 438. He did not mention thatMenchacahad hidden himselfin the back seat as they had left the turnout. Duarte Vela returned to his wife. She was still frightened. Soon after, they both
saw Martinez drive by with Menchaca in the front passenger seat. Duarte Velarealized he had been lied to, Menchacawas in the SUV a few minutes earlier, and Menchaca was not returning to Fresno as he had earlierpromised. Duarte Vela, even more concernedthatMenchacaposed a threatto his family, followed the SUV. Martinez saw Duarte Vela andpulled his SUV to the side ofthe road and parked it. Duarte Vela stopped his truck in front ofit. Duarte Vela and the two men exited their vehicles. Duarte Vela still had his gun hidden in his pocket. The way the two
men walked toward Duarte Vela caused him to become nervous. Duarte Vela asked why
4No. 33299-3-III State v. Duarte Vela they were earlierparked by his family. Menchaca said something about being owed money by aperson who lived near the turnout, but Duarte Vela did notbelieve him. Menchaca's tone ofvoice soundedthreatening to Duarte Vela. At about this time, Duarte Velabegan to draw his gun and Menchaca's hand went inside his pocketto reach for something. Duarte Vela fired two or three shots. One shot struck Menchaca in one arm, went through his torso, and lodged in his other arm. Either during orjustbefore the shots, Menchaca displayed a paper in his hand, not a weapon. An injured Menchacaran into a nearby orchard where he soon died. Martinez, and also Duarte Vela orhis wife, called 911. Both callers said Duarte Vela shot Menchaca. Two sheriffs deputies went to Duarte Vela's house and found him outside standing on the porch with a telephone in his hand. Duarte Vela was advised of his rights and agreed to answer questions. Duarte Velarelated the events ofthat day, explained he was both angry and fearful when he confronted Menchacathat afternoon, and admitted, "'I didn't do the right thing probably."' 3 RP (Jan. 29, 2015) at 513. The State charged Duarte Vela with various firearm offenses and second degree murder. The trial occurred in January 2015. Priortojury selection, the State moved in limine to exclude evidence ofMenchaca's prior bad acts. Duarte Vela responded thathe



### 5No. 33299-3-III 

### State v. Duarte Vela sought to admit certain prior bad acts ofMenchaca known to him to establish the reasonableness ofhis fear ofMenchaca. B. CONTESTED EVIDENTIARY RULINGS 

### 1. Menchaca 'sprison threatmade aroundspringof 2012 Duarte Velaproffered the testimony ofhis brother, Alphonso, who would testify that he had a telephone conversation while Menchaca was in prison two orthree years earlier during which Menchacathreatened to return to Okanogan and kill Duarte Vela's entire family. Alphonso also would testify that he told Duarte Vela ofthis threat. Duarte Vela argued that the prison threat was admissible to show his state of mind-reasonable fear ofMenchaca-which was an element ofhis self-defense case. The State argued that the threat was too remote, not relevant to self-defense, and not admissible under any hearsay exception. The trial court eventuallyrefused to allow Duarte Vela and his brotherto testify about Menchaca's prison threat, mostly because the threat was too remote in time. Thetrial court explained: Well, I'm concerned about the remoteness and the uncertainty ofthe timeline. The range two to three years seems to me to be pretty broad. I would like it ifwe couldpin that down. The other concern I have is that these-ifit was two to three years ago and assuming-Well, the problem is we don'tknow, number one, ifthe victim was in prison at the time. I assume he was. I don'treally have any 6No. 33299-3-III State v. Duarte Vela

reason to doubtthat. Butwhat 

### I don'tknow is whenhe got out. Didhe get out within a week or two ofthatphone call or did he get out a week ortwo priorto coming to the State ofWashington? Andthe reason I thinkthat's important is because ifhe got out within a shorttime ofmaking the phone call but he never came to Washington, then it seems to me it's-there's a relevancy issue. There's a remoteness issue. Onthe other hand, ifhe got out withinjust a week ortwo or a month, some shortperiod oftime, then indeed it may be highly relevant and it is notremote. So I think what I have to do is to hear more. And, [defense counsel], I'm going to advise you to call Alfonso Duarte as a witness. Butunderstand, I'll be listening very closely for
... foundational questions
...to establish the time frame for
... whenthis phone call happened and ifit can be established as to whenthe victim got out ofprison so thatthe Court is able to rule onthe issue ofremoteness. RP (Jan. 27, 2015) at 12-13. After further argument from the State, the court reiterated, "Ifhewas released two orthree years ago, then indeed this is too remote." RP (Jan. 27, 2015) at 14. Later at trial, the State brought forth a report from the borderpatrol that it had returned Menchaca to Mexico in May 2012. This showedthat Menchacahad been released from prisonbefore that time, which would have been at least two and one-half years before the January 2015 trial. Presumablybecause ofthe trial court's comments that "two orthree years ago [was] too remote," Duarte Vela did not call Alphonso to testify. 2. Menchaca 's abduction of MaricruzDuarte in 2007

7

### No. 33299-3-111 State v. Duarte Vela·
Duarte Vela also proffered the testimony ofhis younger sister, Maricruz Duarte, who would testify that Menchacahad abducted her in 2007 when she wasjust 15 years old, and that Duarte Vela knew about this. The State argued it had evidence Maricruz and Duarte Vela had retracted portions ofthe abduction accusation and that the testimony was not relevant to Duarte Vela's state ofmind. The trial court excluded the evidence on the basis that the testimony was irrelevant and inadmissible. 

### 3. Menchaca 's domestic violence againstBlanca foryears until they separated five orsixyears before trial Duarte Vela also proffered the testimony ofBlancawho would testify that Menchaca had repeatedly battered her throughout their marriage, including after they left Okanogan in 2007 to go to Fresno, and that she had told Duarte Vela about this. She would have testified that the domestic violence occurred throughout their marriage and ended five or six years before trial, presumably because they separated at that time. Duarte Vela also soughtto offerthe testimony ofhis wife, who witnessed some of the domestic violence when the couple lived in Okanagan. The trial court excluded both testimonies as too remote in time. 4. Miscellaneous evidence excludedthroughout trial In addition to excluding the above offered testimonies, the trial court excluded Duarte Vela from testifying: (1) what he had been told by his family members about 8No. 33299-3-III State v. Duarte Vela
Menchaca's threat to kill his family and Menchaca's domestic violence against Blanca, (2) why he feared Menchaca being around his family, (3) why he believed he needed to
arm himselfwhen he went to his sister's apartment to confrontMenchaca, (4) that his wife told him the SUV driver and Menchaca gave her a threatening look when the SUV first parked in or near the pullout, (5) why he followed the SUVthe first time, (6) why he believed there were two people in the carwhen he followed the SUV the first time, (7) Martinez's statement to him that he was alone in the SUV, (8) whathe felt when he
saw Martinez later drive by with Menchaca in the passenger seat, (9) whyhe had an elevated fear as he went after the SUV for the secondtime, (10) his wife being upset when he returned and explained that Menchaca was not in the SUV, (11) his beliefthat something was wrong when Martinez and Menchaca both got out ofthe car and walked toward him, (12) whathe feared Menchaca and Martinez might do as they walked toward him, and (13) the degree ofbodily harm he fearedjustbefore he shotMenchaca, as Menchaca became upset and reached into his pocket. C. "NO DUTY TO RETREAT" INSTRUCTION AND JURY VERDICT Toward the end oftrial, Duarte Vela requested a "no duty to retreat" instruction. In denying the instruction, the trial court explained: I am not going to allow yourproposed
... "[no] duty to retreat" instruction. And the reason that I'mnot allowing that is because Mr. Duarte testified 9No. 33299-3-III State v. Duarte Vela
that at some pointhe did retreat, that he did backup. And so as I read that instruction and I read the case law and the comments on that instruction, it seems to me that it is not applicable, and I'm not goingto allow it. 4 RP (Jan. 30, 2015) at 747. Defense counsel did not take formal exceptionto the trial court's refusal. The trial court instructed thejury, the parties gave their closing arguments, and the jury deliberated. Thejuryreturned a verdict ofguilty on all counts. Duarte Vela appealed. ISSUES 1. Didthe trial courtviolate the Sixth Amendmentto the United States Constitution when it refused to let Duarte Velatestify whyhe feared Menchaca, when it refused to allow Duarte Vela's witnesses to testify whatthey had told Duarte Vela about Menchaca's threat and past violence, andwhen it refused to allow Duarte Velato testify about the degree ofbodily harm he fearedjustbefore he shot Menchaca? 2. Didthe trial court err in refusing Duarte Vela's "no duty to retreat" instruction? ANALYSIS A. SIXTH AMENDMENT RIGHT TO PRESENT A DEFENSE 1. Standard of review
10No. 33299-3-111 State v. Duarte Vela
We review a claim ofa denial ofSixth Amendment rights de nova. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010). Since Duarte Vela argues that his Sixth Amendment right to present a defense has been violated, wereview his claim de nova. 2. Contours of the right The right to present testimony in one's defense is guaranteed by both the United States and the Washington Constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Hudlow, 99 Wn.2d 1, 14,659P.2d 514 (1983). InJones, our Supreme Court wrote: "Theright ofan 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. 2d297 (1973). A defendant's right to an opportunityto be heard in his defense, including the rights to examine witnesses against him and to offertestimony, is basic in our system of jurisprudence. Id. These rights are not absolute, ofcourse. Evidence that a defendant seeks to introduce "must be ofat least minimal relevance." [ State v. Darden, 145 Wn.2d 612,622, 41 P.3d 1189 (2002)]. Defendants have a right topresent only relevant evidence, with no constitutional right to present irrelevant evidence. State v. Gregory, 158 Wn.2d 759, 786 n.6, 147 P.3d 1201 (2006). Jones, 168 Wn.2d at 720. TheJones court continued: "[l]frelevant, the burden is on the State to showthe evidence is so prejudicial as to disrupt the fairness ofthe fact-finding process at trial." Darden, 145 Wn.2d at 622. The State's interest in excludingprejudicial evidence must also "bebalanced against the defendant's need for the information sought," and relevant information can be withheld only "ifthe 11No. 33299-3-III State v. Duarte Vela
State's interest outweighs the defendant's need." Id. We must remember that "the integrity ofthe truthfinding process and [a] defendant's right to a fair trial" are important considerations. State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983). We have therefore noted that for evidence ofhigh probative value "it appears no state interest can be compelling enough to preclude its introduction consistent with the Sixth Amendment and Const. art. 1, §22." Id. at 16
.... Id. (alterations in original). In concluding its discussion ofthe Sixth Amendment, theJones court wrote: [TJhe clear implication [is J that evidence of highprobative value couldnot be restrictedregardless of how compelling the State's interestmay be 

### if doingso woulddeprive the defendant[} of the ability to testify to [the defendant's} versions of the incident
.... Id. at 721 (emphasis added). 3. Theparties'arguments aboutwhetherDuarte Vela's Sixth Amendmentright was violated As previously noted, Duarte Vela argues the trial court's evidentiary rulings violated his right to present a defense. He principally argues the trial court committed reversible error when it excluded evidence relating to: (1) Menchaca's prison threat, (2) Menchaca's years ofdomestic abuse against Blanca, (3) Menchaca's abduction of Maricruz, (4) why he feared Menchaca, and (5) the type ofbodily harm he fearedjust before he shot Menchaca.

12No. 33299-3-III State v. Duarte Vela
The State responds that the above evidence was inadmissible and irrelevant, and the Sixth Amendment does notpermitthe introduction ofinadmissible and irrelevant evidence. The State argues that the trial court's exclusion ofthe above evidence, in addition to the otherpreviously listed miscellaneous evidence, wasproperbecause the evidence was either (a) hearsay, (b) untrustworthy, (c) too remote in time, (d) improper character evidence, or (e) speculative. We disagree. (a) The excludedevidence was nothearsay because the evidence was notoffered for its truth, but to establishDuarte Vela's state of mind "Hearsay" is "a statement, otherthan one made by the declarant while testifying at the trial orhearing, offered in evidence to prove the truth ofthe matter asserted." ER 80I ( c). Whether an out-of-court statement is hearsay depends onthepurpose for which the statement is offered. State v. Hamilton, 58 Wn. App. 229, 231, 792 P.2d 176 (1990). In considering a claim ofself-defense, thejurymusttake into account all the facts and circumstances known to the defendant. State v. Allery, IOI Wn.2d 591, 594-95, 682 P.2d 312 (1984); State v. Wanrow, 88 Wn.2d 221,234,559 P.2d 548 (1977). Because the "'vital question is the reasonableness ofthe defendant's apprehension ofdanger,'" the jury must stand "'as nearly as practicable in the shoes of[the] defendant, and from this
13No. 33299-3-III State v. Duarte Vela point ofview determine the character ofthe act.'" Wanrow, 88 Wn.2d at 235 (quoting State v. Ellis, 30 Wash. 369,373, 70 P. 963 (1902)). Evidence ofa victim'spropensity toward violence that is known by the defendant is relevant to a claim ofself-defense "'because such testimony tends to show the state ofmind ofthe defendant
... and to indicate whether he, at that time, had reason to fear bodilyharm.'" State v. Cloud, 7 Wn. App. 211,218,498 P.2d 907 (1972) (quoting State v. Adamo, 120 Wash. 268,269,207 P. 7 (1922)). Thus, such evidence is admissible to show the defendant's reason for fear and the basis for acting in self-defense. State v. Walker, 13 Wn. App. 545, 549, 536 P.2d 657 (1975). Here, Duarte Vela sought to introduce Menchaca's threat to kill Duarte Vela's family and Menchaca's past domestic violence not to prove they were true, but for the very relevantpurpose ofshowing the reasonableness ofhis fear ofMenchaca. The evidence, therefore, was not hearsay. To the extent the trial court excluded this and several miscellaneous statements offered by Duarte Vela to showhis state ofmind, the trial court erred. The reasonableness ofDuarte Vela's fear ofMenchaca is one oftwo components ofhis self-defense claim, the other component being the degree ofbodily harm he feared justbefore he shot Menchaca. Menchaca'spastthreat to kill Duarte Vela's family was
14No. 33299-3-III State v. Duarte Vela
central to Duarte Vela's ability to explain the reasonableness ofhis fear. Unless the evidence was inadmissible underthe State's other arguments, the trial court's exclusion ofthis evidence "deprive[d] [Duarte Vela] ofthe ability to testifyto [his] versions ofthe incident." Jones, 168 Wn.2d at 721. (b) Probative evidence, even if suspect, shouldbe admittedand testedby cross-examination The State cites ER403 for the general rule that a trial court has discretionto preventajury from considering a victim's propensitytoward violence ifits probative value is substantially outweighed by the danger ofunfairprejudice or misleading thejury. But the ER403 balancing ofprobative value versus unfairprejudice is weighed differently when the defense seeks to admit evidence that is central to its defense. The evidence ofMenchaca's threat to kill Duarte Vela's family was highlyprobative ofhis defense, and the Sixth Amendmentright to present a defense thus requires admitting such highlyprobative evidence. Jones, 168 Wn.2d at 720-21. Wehavepreviouslyheld that ER403 cannot be used to exclude "crucial evidence relevant to the central contention ofa valid defense." State v. Young, 48 Wn. App. 406,413, 739 P.2d 1170 (1987). The State makes the point that weak or false evidence is notprobative. But ifthe evidence is weak or false, cross-examination will reveal this, and any sting causedby the admission offalse evidence will not only be removed, but will invite prejudice to the 15No. 33299-3-III State v. Duarte Vela
defendant who introduced such evidence. Forthese reasons, the trial court should admit probative evidence, even ifsuspect, and allow it to be tested by cross-examination. In this manner, thejurywill retain its role as the trier offact, and itwill determine whether the evidence is weak or false. In a related argument, the State argues that state ofmind evidence is admissible only ifthere is (1) some degree ofnecessity to use the out-of-court statement, and (2) there is circumstantial probability that the statement is trustworthy. For this proposition, the State cites State v. Parr, 93 Wn.2d 95, 606 P.2d 263 (1980). Parr is not
on point. In Parr, the State sought to admit out-of-court statements ofthe deceased victim to show the victim was afraid ofthe defendant. Id. at 98. TheParr court sought to balance the need for this evidence with the prejudice ofthe defense being unable to rebut the statement. Id. at 99. The Parr court ruled, in a homicide case where the victim's state of mind is relevant, the State may offer evidence ofthe victim's fear ofthe defendant if there is circumstantial probability that the statement is trustworthy. Id. at 98-99. Here, we are not concerned with the State admitting evidence. Rather, we are concerned with the defendant's right to present a defense under the SixthAmendment.

16No. 33299-3-111 State v. Duarte Vela
The propertest for admitting or excluding evidence in that context is set forth inJones, as quoted above. The State, citing ER 803(a)(3), argues that Duarte Vela could not testify about his
ownpast state ofmind because that rule permits statements describing the declarant's then-existing state ofmind. The State's argument misses the point. ER 803 concerns outof-court statements. ER 803(a)(3) excepts from hearsay an out-of-court statement made by a declarant concerningthe declarant's then-existing mental, emotional, orphysical condition. In general, Duarte Vela soughtto testify only about his ownpastemotion, not
a declarant's. ER 803(a)(3) therefore does not apply. Perhaps once ortwice, Duarte Vela soughtto testify that his wife told him she was nervous or frightened. Those statements
are declarations that qualify as admissiblehearsay underthe noted exception. (c) Remoteness i. Menchaca 'sprison threat In arguing that Menchaca's prison threat was too remote in time, the State relies on Adamo, 120 Wash. 268. In that case, Adamo killed Joseph Gracia in August 1921. Id. at 269. Implied is Adamo's assertion that he shot Gracia in self-defense because hereasonably feared Gracia. Id. Adamo sought to establish the reasonableness ofhis fear by introducing
17No. 33299-3-III State v. Duarte Vela

statements oftwo witnesses. Graciahad separately threatened violence against each witness and made a threatening gesture as ifhe had a gun. Id. at 269-70. The trial court prohibited both witnesses from testifying. Id. at 270. TheAdamo court held the trial court did not err with respect to the first witness because the event occurred five years before the shooting and was, thus, too remote. Id. at 269-70. TheAdamo court also held the trial court did not err with respect to the second witness because the event, which occurred three years before the shooting, was unknown to Adamo when he shot Gracia. Id. at 270. We find Adamo not controlling for three reasons. First, inAdamo, the trial court excluded the victim'spast violent behavior known tothe defendantbecausethat behavior occurredfive years before the killing. Here, the trial court excluded Menchaca'sprison threat known by Duarte Vela that occurred only two years before the shooting. Second, Menchacamay have been delayed in accomplishing his threat by being in prison and then being deported back to Mexico. The evidence indicates Menchaca did not reenter the United States and travel backto Washington State until the day before Duarte Vela killed him. The fact that Duarte Vela had not seen Menchaca since he threatened to kill Duarte Vela's family could account for why Duarte Vela felt threatened

18No. 33299-3-III State v. Duarte Vela
when Menchaca, unexpectedly, and for the first time, appeared around his family two years after the threat. Third,Adamo did not analyze the evidentiary issue in light ofthe defendant's Sixth Amendment right to present a defense. As noted earlier, Jones and authorities cited therein, have altered a court's calculus for admitting evidenceprobative ofthe defendant's version ofevents, even evidence of"minimalrelevance." Jones, 168 Wn.2d at 720-21. Menchaca's prison threat to kill Duarte Vela and his family, made two years before the shooting, was more than minimally relevant, and in fact was the most important evidence to establish Duarte Vela's self-defense claim. 

### It is the role ofthejury, not the trialjudge, to weigh the reasonableness ofDuarte Vela's fear, and to do so by considering 

### "all the facts and circumstances known to the defendant ' [so as] to stand as nearly as practicable in the shoes of[the] defendant.'" Wanrow, 88 Wn.2d at 234-35 (quoting Ellis, 30 Wash. at 373). For example, was Duarte Vela's fear reasonable two years after the prison threat, what did Duarte Vela believe motivated Menchaca'sthreat so it might be a lasting rather than a transitory threat, and what did Duarte Velaknow about Menchaca that increased or decreased the significance ofthe threat. These questions are all factual and, except in extreme cases, cannot be answered as a matter oflaw. When it comes to ensuring a defendant's Sixth Amendment
19No. 33299-3-III 

### State v. Duarte Vela right to present a defense, it is bestto admit relevant evidence and trust the State's crossexamination to ferret out falsities. 

### ii. Menchaca 's history of domestic violence Standing alone, Menchaca's history ofdomestic violence against Blancawas irrelevant. Simply because aperson commits domestic violence against his spouse does not make it more likely that he would, several years later, use a gun to kill a sibling ofthat spouse. However, one may not considerMenchaca's history ofdomestic violence against Blanca in isolation. 

### Wanrow, 88 Wn.2d at 234-35. Menchaca's extensive history of domestic violence against Blanca could have caused Duarte Vela to attach more credibility to Menchaca'sprison threat and for a longertime. Ifso, the trial court should exercise its discretion and admit thathistory. We are unable to determine whether Menchaca's history ofdomestic violence has any relationship to Menchaca'sprison threat. Forthis reason, we do notprovide a dispositive answer. 

### iii. Menchaca 's abduction of Maricruz Similarto our above analysis, Menchaca's abduction ofMaricruz, standing alone, is irrelevant. But because we are unable to determine whetherthis evidence has any relationship to Duarte Vela'sperception ofMenchaca's prison threat, we do not provide a dispositive answer. 

### 20No. 33299-3-III State v. Duarte Vela (d) The evidence sought to be admittedwasnotcharacter evidence In arguing that the trial courtproperly excluded Duarte Vela's evidence about Menchaca as improper character evidence, the State cites State v. Hutchinson, 135 Wn.2d 863,959 P.2d 1061 (1998). Hutchinson is not on point. In 1987, two deputies arrested Hutchinson for driving underthe influence. Id. at 867. In theirpat down for weapons, they failed to find a gun hidden on Hutchinson's person. Id. Soon after they arrived at the garage attached to the sheriffs office, the deputies deposited their guns in a lockbox. Id. Hutchinson then shot and killed both deputies. Id. at 868. Hutchinson stole the police car, escaped, but was soon arrested. Id. AfterMiranda2 warnings, Hutchinson claimed he acted in self-defense because the deputies had assaulted him. Id. At trial, Hutchinson soughtto admit evidence ofa 1980 performance evaluation accusing one ofthe deputies ofbeing aggressive and physical with intoxicated arrestees. Id. at 870. In addition, Hutchinson sought to admit evidence ofthe reputation ofthe local sheriffs office and specific acts ofviolence or intimidation by one ofthe deputies. Id. The trial court allowed evidence only ofthe general reputation ofthe deputies "'for apertinent trait ofcharacterrelevanthereto.'" Id. The Hutchinson court affirmed, and held:

2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 21No. 33299-3-III State v. Duarte Vela
The remaining witnesses would have testified about specific acts allegedly committed by [one deputy], which the Defendant characterized as violent. The trial court correctly excluded these witnesses' testimony because evidence ofa charactertrait-here, [the deputy's] allegedly violent disposition-mustbe in the form ofreputation evidence, not evidence of specific acts. ER404(a)(2); ER405(a). Specific acts may be used to prove character only where the pertinent charactertrait is an essential element ofa claim or defense. ER405(b). Specific act character evidence relating to the victim's alleged propensity for violence is not an essential element ofselfdefense. Id. at 886-87. Hutchinson involves ER404(a)(2) and ER405, which concerns what evidence is admissible to prove the character ofthe victim. There, Hutchinson did not claim he knew ofthe deputies' past violent acts. Forthis reason, he needed to rely on character evidence to prove that the deputies acted in conformance with their alleged character. Here, Duarte Vela was not attempting to prove Menchaca's character. Rather, Duarte Vela was attempting to establishthat he reasonably feared Menchacabecause of what he believed about Menchaca at the time he shot him. It is well established that a victim's specific acts ofviolence, if known by the defendant, are admissible when the defendant asserts self-defense. See, e.g., Walker, 13 Wn. App. at 549-50; Cloud, 7 Wn. App. at 218. (e) The evidence was notspeculative

22No. 33299-3-III State v. Duarte Vela
The State defends several ofthe trial court's evidentiary exclusions on the basis that the evidence offered was speculative. The one complained ofbyDuarte Vela was his attempt to testify about the degree ofbodily harm he fearedjustbefore he shotMenchaca. Deadly force may be used ifone reasonably fears great bodily harm or death. State
v. Walden, 131 Wn.2d 469,474,932 P.2d 1237 (1997); RCW 9A.16.050. Ifaperson remembers being fearful that the victim was going to cause him greatbodily harm or death, it is not speculative to testify to that fact. Moreover, the degree ofharm one actually feared is relevant to the degree ofharm one reasonably feared, which is a component ofDuarte Vela's self-defense claim. Forthis reason, Duarte Vela's excluded testimony about the degree ofharm he feared was highly probative, not speculative, and therefore admissible. The trial court erred when it excluded this highly probative evidence. Jones, 168 Wn.2d at 720. 4. The trial court's exclusion of admissible evidence violatedDuarte Vela's SixthAmendmentright topresenta defense Whether the exclusion oftestimony violated the defendant's Sixth Amendment right to present a defense depends on whetherthe omitted evidence evaluated in the context ofthe entire record, creates a reasonable doubt that did not otherwise exist. UnitedStates v. Blackwell, 459 F.3d 739, 753 (6th Cir. 2006).

23No. 33299-3-111 State v. Duarte Vela Here, the trial courtprecluded Duarte Vela from testifying whyhe feared Menchaca. 

### It also precluded Duarte Vela's witnesses from testifying that theytold Duarte Vela about Menchaca's violent acts and threat. Thetrial court further precluded Duarte Vela from testifying that as Menchacabegan drawing something from his pocket, he feared Menchacawould cause him great bodilyharm ordeath. These evidentiary rulings precluded Duarte Vela from presenting a legal defense to the killing thathe admitted to. The omitted evidence creates a reasonable doubtthat did not otherwise exist. Forthis reason, the trial court's evidentiary rulings violated Duarte Vela's Sixth Amendmentright to present a defense. 

### B. THETRIAL COURT DID NOT ERR WHEN IT REFUSED TO GIVE DUARTE VELA'S "NO DUTY TO RETREAT" INSTRUCTION Duarte Vela contends the trial court erred when itrefused to givehis requested jury instruction on no duty to retreat. He contends the trial court erredbecause it failed to analyze whether he was in full retreat. Where "ajurymay conclude that flight is a reasonably effective alternative to the
use offorce in self-defense, the no duty to retreat instruction shouldbe given." State v. Williams, 81 Wn. App. 738, 744, 916 P.2d445 (1996). Evenwhen a defendanttestifies that he or she is backing up, the trial court should determine whether the retreat is a fullfledged retreat or instead the ebb-and-flow or circling ofa street fight. Id. at 743. 24No. 33299-3-III State v. Duarte Vela
Duarte Vela's testimony was that he stepped out ofhis truck. While he was behind his truck, Menchaca and Martinez approached him from two angles, as ifto flank him. Duarte Vela simply testified that when pulling outhis gun, "I stepped back a little bit." 3 RP (Jan. 29, 2015) at 629. The trial court reasoned in denying the motion, "the reason that I'm not allowing that is because Mr. Duarte testified that at somepointhe did retreat, that he did back up." 4 RP (Jan. 30, 2015) at 747. We may affirm the trial court on any basis supported by the record. Amyv. Kmart ofWash. LLC, 153 Wn. App. 846,868,223 P.3d 1247 (2009). The State did not argue that Duarte Velahad a duty to retreat. This is because the facts would not support such a theory. Duarte Vela's theory was that Menchaca, at close range, was angry and in the process ofdrawing a gun, so he shot Menchaca in self-defense. Because the facts would not support retreat as an option to someone pulling a gun at close range and because the State did not argue that Duarte Vela could have retreated, the trial court did not err in refusing the instruction.

25No. 33299-3-III State v. Duarte Vela
CONCLUSION Although we deny Duarte Vela's argument ofinstructional error, we conclude the trial court's evidentiary rulings denied Duarte Velahis Sixth Amendment right to present
a defense.3 We therefore reverse and remand for a new trial consistent with this opinion.

I CONCUR: 

## j
~~tA) ', ~' Siddoway, J.

# ~

3 Duarte Vela also filed a statement ofadditional grounds for review (SAG). His SAG generally asks us to consider all the facts, including the excluded evidence. We considerhis argument subsumed by his attorney's Sixth Amendment argument, which we have addressed. We therefore do not separately address the issues raised in Duarte Vela's SAG. 

### 26No. 33299-3-111 KORSMO, J. (dissenting) - A trialjudge does not lose his gatekeeper function on evidentiary issues merely because a criminal defendant asserts a constitutional right to presentthe evidence. We still review thejudge's evidentiary rulings for abuse of discretion within the defense theory ofthe reason why the evidence oughtto be admitted. Here, the defendant testified to his fear ofthe victim and why he was afraid ofhim; the trialjudge did not abuse his authority in deciding that "enough was enough" and limiting
some ofthe corroborating evidence. Nonetheless, the majority reverses the trialjudge because ofhis failure to distinguish Washington Supreme Courtprecedent as the majority does. The conviction should be affirmed. The main problem for the defense is that this was a pretty weak case ofselfdefense. Jesus Duarte Vela shothis former brother-in-law, a man whom he had not spoken to in the seven years since the victim departed from town, without warning after tracking him down for the third time that day and forcing the carhe was in to stop. There
was no reason to believe the victim was armed, so Mr. DuarteVela's fear that his victim
was reaching for a nonexistent weapon understandably was rejected bythejury. The excluded evidence wentto the issue ofwhy the defendant allegedly was afraid ofhis victim, a topic that was addressed through the defendant's own testimony and one thatNo. 33299-3-111 State v. Duarte Vela (dissent)
the prosecutor did not challenge throughout a lengthy cross-examination. No evidence
was offered that Mr. Duarte Velahad reason to believe the victim was reaching for a gun at the time ofthe shooting. Ifthe defense had evidence thatthe victim typically was armed or had threatenedto use a firearm in the past, they did not offer it. That corroboration was lacking. Whether ornot the victim had abused the defendant's sister eight years earlier in California did not enlightenthejury on the critical issue in the case. Accordingly, the trial court did not abuse its discretion in excluding that evidence. The majority undertakes a very nice analysis oftwo Washington Supreme Court decisions, butthen attempts to apply them to the facts ofthis case as ifit were acting as the trialjudgerather than as the reviewing court. Noticeably lacking in the analysis is an indication that the trial court hadto apply either case in the same manner. 1 Oldest is State v. Adamo, 120 Wash. 268, 207 P. 7 (1922). There our court affirmed a trial court ruling that excluded, on remoteness grounds, a threat made by the victim to the defendant five years earlier. Here, the trialjudge excluded evidence ofan alleged threat made by the victim from prison at least two to three years earlier for the

1This analytic error began early in ourreviewprocess. Priorto oral argument, this court sent a letterto the parties directing themto be prepared to discuss various noted reasons why State v. Adamo, 120 Wash. 268, 207 P. 7 (1922), could be distinguished from this case and asking ifit was an abuse ofdiscretion for the trial courtto not distinguishAdamo. We did not ask the parties to address the morepertinent question of whetherthe trial court was requiredto distinguish a case that it had merely used as supporting, ratherthan controlling, authority. 2No. 33299-3-111 State v. Duarte Vela (dissent)

same reason, citing toAdamo. Nothing in this record indicates thatthe trialjudge believed he hadto followAdamo orthoughtthe case compelled exclusion ofthe evidence. Instead, the veteran trialjudge determined that the evidence was too remote and excluded it. That was a tenable ground for excluding the evidence. Inthe absence of compelling authority requiring the trialjudgeto admit the evidence, we shouldbe affirming since there was no abuse ofdiscretion. The majority suggests thatAdamo and other cases involving discretionary evidence rulings have been eclipsed byState v. Jones, 168 Wn.2d 713, 230 P.3d 576 (2010). The short answer is "no" sinceJones did not change the controlling law in the least. There our court reversed a conviction because the defendant had not been able to present his version ofthe events. Id. at 724. The entire subject matter, a consent defense to the rape allegation, had been excluded. Thatwas notthe case here, nor did defense counsel ever make such a claim to the trialjudge. 

### Mr. Duarte Velawas not ableto present all ofthe supporting evidence he desiredto offer, buthe was able to presenthis defense. Jones simply does not stand for the proposition thatthe defense is entitled to put in all relevant evidence it possesses in support ofthe defense. Illustrative is a subsequent case authored by Justice Owens, the author oftheJones opinion. State v. Perez-Valdez, 172 Wn.2d 808,265 P.3d 853 (2011). There the defense to allegations ofrape by two ofthe defendant's adoptive daughters "was centered on a theory that the girls were lying." Id. at 811. The defense sought to showthatthe girls 3No. 33299-3-111 State v. Duarte Vela (dissent)

were willing to take "extreme actions" to be removed from homes, "potentially including lying about rape." Id. The defense was allowed to offer evidence about house rules that the girls did not like, butthe trialjudge excluded evidence that the girls had committed
arson to get moved out ofa foster home. Id. The Supreme Court affirmed, noting that while the trialjudge could have admitted the evidence underthe rules, the court did not abuse its discretion in excluding the evidence. Id. at 816-17. The trial court was in the
same positionhere. The trialjudge could have, but was not required to, allow the corroborating evidence. There is a fine line between admissible evidence and evidence that mustbe admitted. The constitutional right to present a defense means that the defense theory must be allowed when there is admissible evidence to support it. Jones, 168 Wn.2d 713. That constitutional right does not mean that anyandevery bitof evidence offered by the defense in support ofits theory is required to be admitted. Perez-Valdez, 172 Wn.2d 808. Trialjudges still retain discretion underER401, ER403, and all ofthe other evidentiary rules to considerthe necessity ofthe evidence in light ofthe case record and the proffered theory ofadmissibility. Id. TheRules ofEvidence exist for a reason, and both sides are entitled to a fair trial. We count on trialjudges to apply the rules and afford them great discretion in doing so. The evidence excluded here, to the extent it even existed, was deemed too remote to the actual issues in the trial. That call was for the trialjudge, not this court. 4

### No. 33299-3-111 State v. Duarte Vela (dissent) Here, the defense provided sufficient evidence to raise its self-defense theory and supportedthat theory with the defendant's testimony. It was not allowed to offer everything it desired, but it had enough to make its case. That is all that the constitution requires. There are cases where the admission oftoo little corroborating evidence might effectively foreclose the defense, butthis was not one ofthose instances. The trial court found the evidence too remote to be admitted. Since that was a tenable basis for ruling, we should be affirming the trial court. I therefore dissent.

5