IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

SANTIAGO ORTUNO-PEREZ,

Appellant.

DIVISION ONE

No. 72849-1-1

PUBLISHED OPINION

FILED: November 28, 2016

Dwyer, J. —Following a jury trial, Santiago Ortuno-Perez was convicted

of murder in the second degree, committed while armed with a firearm. OrtunoPerez's planned defense was that another person who was armed atthe

scene_Austin Agnish—committed the charged offense. Prior to trial, OrtunoPerez sought permission from the trial court to identify Agnish to the jury asthe

killer, to cross-examine the State's witnesses for bias in their testimony, and to

introduce additional evidence indicating thata person other than Ortuno-Perez

committed the murder. The trial court excluded the evidence and later clarified

that Ortuno-Perez was precluded from arguing that anyone else atthe murder

scene committed the crime, notwithstanding that the evidence proffered by

Ortuno-Perez tended to logically connect Agnish to the killing and

notwithstanding that, asthe trial evidence made clear, the victim was slain at
No. 72849-1/2

close range by someone at the scene. The trial court erred by so ruling.

The trial court's "other suspect" rulings were not harmless. The rulings

prevented Ortuno-Perez from offering evidence at trial tending to show that

Agnish was the true killer and from advancing the defense theory that the State's

eyewitnesses presented biased, contradictory, and untruthful testimony.

Furthermore, the rulings effectively reduced Ortuno-Perez's trial defense to

shallow cross-examinations of the State's witnesses. Without the ability to draw

meaningful conclusions from the evidence actually admitted at trial and assert

that someone other than him fired the fatal shot, Ortuno-Perez's general denial

defense, in the face of undisputed evidence that the victim was shot by someone

standing nearby, effectively amounted to either a nonsensical claim that the

shooting did not happen or a meek suggestion that the State somehowfailed to

prove its case. Unsurprisingly, this defense was unsuccessful. As the trial

played out, the trial court's "other suspect" rulings deprived Ortuno-Perez of his

right to present a defense. Accordingly, we reverse and remand for a new trial.

I

In the early morning hours of October 12, 2013, Jesus Castro was shot in

the head while standing outside of a house in Renton. He died several days

later.

The single shot was fired at close range from a .22 caliberfirearm. At the

time the shot was fired, anywhere between 5 to 12 people were standing in close

proximity to Castro. In that group were 2 individuals particularly pertinent here,

Santiago Ortuno-Perez and Austin Agnish—each ofwhom was armed with a

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handgun at the time.

On the same day that Castro was shot, Ortuno-Perez was identified as a

suspect and subsequently arrested outside of a house in Kent. While conducting

a search of Ortuno-Perez's jacket after his arrest, the police found a .22 caliber

bullet in the left outside breast pocket. The bullet, although of the same caliber

as the bullet that killed Castro, was not of the same style and could have been

from a different manufacturer. The weapon that was used to murder Castro was

never found.

In a search of the house outside of which Ortuno-Perez was arrested, the

police seized clothing similar to that which Ortuno-Perez was described as

wearing at the time of the shooting. This clothing was tested for traces of blood

but none was found.

In the days that followed, Ortuno-Perez was identified as the shooter by

several witnesses who were present at the scene, including Agnish, Zachary

Parks, and Dechas Blue.

Ortuno-Perez was subsequently charged with one count of murder in the

first degree, committed while armed with a firearm.

Prior to trial, the State indicated that it would rely on the testimony of

Agnish, Parks, Blue, and another witness, Joey Perdoza, to present evidence

adverse to Ortuno-Perez. These witnesses were either acquaintances or close

friends of one another. The State further intended to call another eyewitness,

Castro's girlfriend, Erika Lazcano—with whom Castro had a child—to testify

against Ortuno-Perez.

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No. 72849-1/4

Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence

that another person, not him, killed Castro. In particular, his counsel sought to

identify Austin Agnish as the shooter, to cross-examine the State's witnesses for

potential bias in their testimony, and to present additional evidence indicating that

a person other than Ortuno-Perez was the shooter. The trial court denied OrtunoPerez's request because Ortuno-Perez had not demonstrated that Agnish had

taken steps to commit the crime.

Four days later, Ortuno-Perez's counsel filed a detailed offer of proof

regarding the "other suspect" evidence that the defense would have introduced

but for the trial court's adverse ruling. At a hearing that same day, OrtunoPerez's counsel attempted to clarify the scope of the trial court's evidentiary

ruling, asking whether it included questions on cross-examination seeking to

reveal witnesses' biases and additional evidence implying the existence of a

shooter who was not Ortuno-Perez. The trial court indicated that such questions

and other evidence were indeed excluded, stating that,

[THE COURT]: . . . [OJther suspect [evidence], really, is about

pointing the finger to a specific other person or persons. And that's

what the Court has indicated you may not do in this case.

[DEFENSE COUNSEL]: So even saying - Iwill drop it after this -

saying anyone else at that scene could have committed this crime,

is that pointing the finger at somebody?

[THE COURT]: Basically yes.

At trial, the State argued that Ortuno-Perez killed Castro. The State's

presentation of its case made clear that one of the individuals standing near

Castro fired the fatal shot. In particular, the State offered a medical expert's

testimony that, at the time ofthe gunshot, the barrel ofthe murderweapon was

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No. 72849-1/5

between two inches and two feet from Castro's head.

Agnish, Parks, Blue, and Perdoza testified adversely to Ortuno-Perez.

Agnish, Parks, and Perdoza attested to being reluctant to testify at trial, claiming

that they had received death threats for testifying in the case. Lazcano also

testified against Ortuno-Perez, identifying him in court as the shooter,

notwithstanding her prior statements to the police immediately after the incident

in which she was unable to identify who shot Castro.

On the 10th day of testimony, after the State presented its last witness,

Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had

been denied bythe trial court's "othersuspect" rulings. Specifically, OrtunoPerez argued that, in addition to being unableto present any evidence that

tended to connect Agnish to Castro's murder, the rulings prevented him from

being able to effectively confront the State's witnesses based on their testimony

at trial. The trial court denied the motion. Immediately thereafter, the State and

Ortuno-Perez rested their cases. Ortuno-Perez did not testify.

The jury convicted Ortuno-Perez of murderin the second degree,

committed while armed with a firearm. He was sentenced to 280 months of

confinement.

Ortuno-Perez now appeals.

II

A

Over the course of nearly a century and an intervening United States

Supreme Court decision, Washington's "other suspect" evidence rule—applicable

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No. 72849-1/6

to proffered evidence that a specific person other than the defendant committed

the charged crime—has developed from a broad common law rule to a specific

and focused application of well established principles of materiality and probative

value.

In State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932), our Supreme Court

acknowledged the common law rule. The issue in Downs was whether the trial

court improperly excluded evidence that a specific person other than Downs or

his codefendant committed the burglary at issue. The defendants sought to

present evidence that "Madison Jimmy," a well known safe burglar, was in town

on the night in question and planned to argue to the jury that he, not the

defendants, stole from the safe. Downs, 168 Wash, at 666. Upon the State's

objection, the trial court excluded the evidence. Downs, 168 Wash, at 666.

Our Supreme Court found no error in the trial court's ruling. Noting thatthe

defendants had failed to adduce evidence pointing to "Madison Jimmy" as the

burglar, the court cited to the "general rule" of other jurisdictions, requiring that

"[b]efore such testimony can be received, there must be such proof of connection

with the crime, such a train of facts or circumstances as tend clearly to point out

someone besides the accused as the guilty party." Downs, 168 Wash, at 667

(citing State v. Caviness, 40 Idaho 500, 235 P. 890 (1925)). The court concluded

that "[t]he fact thatthe so-called 'Madison Jimmy' was present in Seattle on the

night of the burglary and may have had the opportunity to commit it, does not

amount to even a justifiable suspicion that he did so." Downs, 168 Wash, at 667-

68. The proffered evidence, the court observed, "would not create a reasonable

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No. 72849-1/7

inference as to the innocence of appellants." Downs, 168 Wash, at 668.

Nearly 70 years later, the United States Supreme Court examined whether

a recent modification to South Carolina's common law "other suspect" evidence

rule deprived a defendant of his right to present a defense. Holmes v. South

Carolina. 547 U.S. 319, 327, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006).1 The

modified South Carolina rule excluded more evidence than did the common law

rule, permitting a trial court to exclude a defendant's "other suspect" evidence

when there was sufficiently strong evidence of the defendant's guilt.

Under this rule, the trial judge does not focus on the probative value

or the potential adverse effects of admitting the defense evidence

of third-party guilt. Instead, the critical inquiry concerns the

strength ofthe prosecution's case: If the prosecution's case is

strong enough, the evidence ofthird-party guilt is excluded even if

that evidence, if viewed independently, would have great probative

value and even if it would not pose an undue risk of harassment,

prejudice, or confusion of the issues.

Holmes. 547 U.S. at 329.

The Supreme Court noted the manner in which the common law "other

suspect" rule was consistent with constitutional mandates.

While the Constitution thus prohibits the exclusion of

defense evidence under rules that serve no legitimate purpose or

that are disproportionate to the ends that they are asserted to

promote, well-established rules of evidence permit trial judges to

exclude evidence if its probative value is outweighed by certain

other factors such as unfair prejudice, confusion of the issues, or

potential to mislead the jury. See, e.g., Fed. Rule Evid. 403;

Uniform Rule of Evid. 45 (1953); ALI, Model Code of Evidence Rule

303 (1942); 3 J. Wigmore, Evidence §§ 1863, 1904 (1904). Plainly

referring to rules ofthis type, we have stated that the Constitution

1South Carolina's prior "widely accepted" common law rule wasthe same rule discussed

in Downs and followed in subsequent Washington cases. Holmes, 547 U.S. at 327 n.* (citing

State v Thomas. 150Wn.2d 821, 856-58, 83 P.3d 970 (2004)); see Downs, 168Wash, at 667.

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No. 72849-1/8

permits judges "to exclude evidence that is 'repetitive . . . , only

marginally relevant' or poses an undue risk of 'harassment,

prejudice, [or] confusion of the issues.'" Cranef v. Kentucky], 476

U.S.[ 683,] 689-690[, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)]

(quoting Delaware v. Van Arsdall. 475 U.S. 673, 679[, 106 S. Ct.

1431, 89 L. Ed. 2d 674] (1986); ellipsis and brackets in original).

See also Montana v. Eqelhoff, 518 U.S. 37, 42[, 116 S. Ct. 2013,

135 L. Ed. 2d 361] (1996) (plurality opinion) (terming such rules

"familiar and unquestionably constitutional").

A specific application of this principle is found in rules

regulating the admission of evidence profferedby criminal

defendants to show that someone else committed the crime with

which they are charged. See, e.g., 41 C.J.S., Homicide § 216, pp.

56-58 (1991) ("Evidence tending to show the commission by

another person of the crime charged may be introduced by accused

when it is inconsistent with, and raises a reasonable doubt of, his

own guilt; but frequently matters offered in evidence for this

purpose are so remote and lack such connection with the crime that

they are excluded"); 40AAm. Jur. 2d, Homicide § 286, pp. 136-138

(1999) ("[T]he accused may introduce any legal evidence tending to

prove that another person may have committed the crime with

which the defendant is charged .... [Such evidence] may be

excluded where it does not sufficiently connect the other person to

the crime, as, for example, where the evidence is speculative or

remote, or does not tend to prove or disprove a material fact in

issue at the defendant's trial" (footnotes omitted)).

Holmes, 547 U.S. at 326-27 (emphasis added).

The Supreme Court held that the South Carolina rule was

unconstitutionally arbitrary because it assumed that the prosecution's evidence

should be credited rather than focusing on whether the proffered evidence, if

credited, might tend to support a reasonable doubt as to the defendant's guilt

without being repetitive, harassing, or confusing. Thus, the Courtruled, the

application at trial ofthe South Carolina rule violated Holmes' "right to have '"a

meaningful opportunity to present a complete defense."'" Holmes, 547 U.S. at

8
No. 72849-1/9

331 (quoting Crane, 476 U.S. at 690) (quoting California v. Trombetta, 467 U.S.

479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)).

Our Supreme Court recently explained that, since Downs and in light of

Holmes, Washington has developed a more "restrained interpretation" of its

"other suspect" evidence test. State v. Franklin. 180 Wn.2d 371, 381, 325 P.3d

159 (2014). At issue therein was whether Washington's "other suspect" case law

barred Franklin from presenting circumstantial evidence pointing to another

suspect who had the requisite motive, ability, opportunity, and character to have

been the perpetrator. Franklin. 180 Wn.2d at 379-81. The trial court had

interpreted Downs and subsequent cases as requiring—in order to admit the

proffered evidence—specific facts showing that the other suspect actually

committed the crime. Franklin. 180 Wn.2d at 379-81. The trial court excluded

the evidence. Franklin. 180 Wn.2d at 379.

Our Supreme Court reversed the trial court's decision, explaining that it

had "neveradopted a per se rule against admitting circumstantial evidence of

another person's motive, ability, or opportunity. Instead, our cases hold that if

there is an adequate nexus between the alleged other suspect and the crime,

such evidence should be admitted." Franklin. 180 Wn.2d at 373.

As in Holmes, our Supreme Court explained that "other suspect" case law

simply evidencesspecific applications ofwell established evidentiary principles.

Referencing its "othersuspect" jurisprudence as a limitation on collateral

evidence, the Franklin court continued:
No. 72849-1/10

In effect, this limitation on collateral evidence was similar to

the requirement that evidence must have sufficient "probative

value" to be relevant and admissible under ER 403. Evidence

establishing nothing more than suspicion that another person might

have committed the crime was inadmissible because its probative

value was greatly outweighed by its burden on the judicial system.

Other suspect evidence that establishes only such suspicion is

inadmissible.

In contrast, we held in State v. Maupin that eyewitness

testimony that a kidnapping victim was seen after the kidnapping

with a person other than the defendant was both relevant and

sufficiently probative to pass the Downs test. 128 Wn.2d 918, 928,

913 P.2d 808 (1996). Such evidence links the other suspect to the

specific crime charged, either as the true perpetrator or as an

accomplice or associate of the defendant. Evidence of this sort

differs from evidence of motive, ability, opportunity, or character in

that the proffered evidence alone is sufficient under the

circumstances to establish the necessary connection. However,

neither Maupin nor the earlier cases stand for the proposition that

motive, ability, opportunity, and/or character evidence together can

never establish such a connection. The Downs test in essence has

not changed: some combination of facts or circumstances must

point to a nonspeculative link between the other suspect and the

charged crime.

The trial court was thus incorrect to suggest that direct

evidence rather than circumstantial evidence is required under our

cases. The standard for relevance of other suspect evidence is

whether there is evidence "'tending to connect'" someone other

than the defendant with the crime. Downs, 168 Wash, at 667

(quoting 16 C.J. Criminal Law § 1085, at 560 (1918)), quotedin

Maupin. 128 Wn.2d at 925. Further, other jurisdictions have

pointed out that this inquiry, properly conducted, "focuse[s] upon

whether the evidence offered tends to create a reasonable doubt as

to the defendant's guilt, not whether it establishes the guilt of the

third party beyond a reasonable doubt." Smithart v. State, 988 P.2d

583, 588 & n.21 (Alaska 1999).

180 Wn.2d at 380-81.

Thus, the threshold analysis for "other suspect" evidence involves a

straightforward, butfocused, relevance inquiry, reviewing the evidence's

materiality and probative value for "whether the evidence has a logical

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No. 72849-1/11

connection to the crime." Franklin, 180 Wn.2d at 381-82 (citing Holmes. 547

U.S. at 330).

B

Trial court decisions on the admission of evidence are reviewed for abuse

of discretion. State v. Perez-Valdez. 172 Wn.2d 808, 814, 265 P.3d 853 (2011).

"Such abuse occurs when, considering the purposes of the trial court's discretion,

it is exercised on untenable grounds orfor untenable reasons." State v. Clark, 78

Wn. App. 471, 477, 898 P.2d 854 (1995).

The Sixth Amendment of the United States Constitution and article I,

section 22 of the Washington Constitution guarantee a criminal defendant a

meaningful opportunity to present a defense.2 State v. Jones, 168 Wn.2d 713,

720, 230 P.3d 576 (2010). This right, however, is not absolute. It may, "in

appropriate cases, bow to accommodate other legitimate interests in the criminal

trial process," Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L.

Ed. 2d 297 (1973), including the exclusion of evidence considered irrelevant or

otherwise inadmissible. State v. Strizheus. 163 Wn. App. 820, 830, 262 P.3d

100 (2011); accord Jones, 168 Wn.2d at 720 ("Defendants have a right to

present only relevant evidence, with no constitutional right to present irrelevant

evidence."); State v. Aauirre. 168 Wn.2d 350, 363, 229 P.3d 669 (2010) ("[T]he

scope of that right does not extend to the introduction of otherwise inadmissible

2"The Constitution guarantees a fair trial through the Due Process Clauses, but it

defines the basicelements ofa fair trial largely through the several provisions ofthe Sixth

Amendment."' Crane. 476 U.S. at 690 (quoting Strickland v. Washington. 466 U.S. 668, 684-85,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

-11 -
No. 72849-1/12

evidence.").

As with all evidence, the proponent bears the burden of establishing the

admissibility of "other suspect" evidence. State v. Starbuck. 189 Wn. App. 740,

752, 355 P.3d 1167 (2015). review denied, 185Wn.2d 1008 (2016). Because

the premise underlying the introduction of "other suspect" evidence is to show

that someone other than the defendant committed the charged crime, the

standard for admission is whether the proffered evidence tends to indicate a

reasonable doubt as to the defendant's guilt. Franklin. 180 Wn.2d at 381.

Evidence is relevant when it is both material—the fact to be proved "'is of

consequence in the context ofthe other facts and the applicable substantive

|aw"'_and probative—the evidence has a "tendency to prove or disprove a fact."

State v. Sargent, 40 Wn. App. 340, 348 n.3, 698 P.2d 598 (1985) (quoting 5 K.

Tegland, Washington Practice: Evidence § 82, at 168 (2d ed.1982)).

C

Ortuno-Perez asserts that, by excluding his proffered "other suspect"

evidence pointing to Agnish as the actual killer, the trial court abused its

discretion in its pretrial evidentiary rulings because its rulings were based on an

incorrect application ofWashington's "other suspect" case authority. OrtunoPerez further contends that the "other suspect" evidence he proffered tended to

support a reasonable doubt as to his guilt. We agree.

1

Prior to trial, Ortuno-Perez's counsel sought permission to present

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No. 72849-1/13

evidence to the jury that Agnish, not Ortuno-Perez, killed Castro.3 In his briefing,

Ortuno-Perez's counsel indicated that it planned to present evidence that Agnish

(1) was using prescription drugs at the time that Castro was shot, potentially

altering his perception of the shooting and his memory thereof, (2) was armed

with a handgun and in close proximity to Castro at the time of the shooting, (3)

lied about having access to guns other than the one he admitted carrying at the

time of the shooting, and (4) was a member of a gang and had expressed a

belief that Castro belonged to a rival gang.

The trial court denied Ortuno-Perez's request based on its review of

Washington's "other suspect" case law.

These cases talk about the need for a nexus, connection, and the

need to have admissible evidence to establish a foundation to

conclude that someone else was the shooter and not the defendant

in this case. In this case, based on all of the facts that I'm aware of

that have been presented to the Court, as well as the information in

the briefing, it's not sufficient that others were merely present.

What is required and what the case law talks about are steps

taken w

Immediately thereafter, Ortuno-Perez's counsel engaged in a colloquy

with the trial court to clarify the scope of its ruling. Defense counsel inquired into

whether the ruling prevented him from eliciting testimony on cross-examination

regarding each witnesses' motive to lie, including asking Agnish why he lied

under oath regarding his possession of more guns than the amount he told the

3Although Ortuno-Perez's request focused on evidence pointing to Agnish as the true

killer, Ortuno-Perez sought permission to introduce evidencethat two other eyewitnesses—Parks

and Perdoza—were also standing within a few feet of Castrowhen he was shot and thus had the

opportunity to have been the shooter.

4The trial court, in explaining which cases it had reviewed, did not indicate that ithad

reviewed Holmes, 547 U.S. 319, or Franklin, 180 Wn.2d 371.

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No. 72849-1/14

police he possessed. The trial court indicated that eliciting such testimony on

cross-examination was indeed precluded by its "other suspect" ruling and that

evidence tending to prove that Agnish possessed multiple firearms would also be

excluded because, according to the trial court, it was not relevant.

Four days after the trial court's "other suspect" evidence ruling, and still

prior to trial, defense counsel filed a sworn offer of proof regarding the evidence

that itwould have presented pointing to Agnish as the actual killer:5

OFFER OF PROOF

But for the court's pre-trial ruling excluding "other suspect"

evidence, the defense would have sought to introduce the following

evidence:

-Austin Agnish was within several feet of Mr. Castro when Mr.

Castro was shot.

-Mr. Agnish was armed with a handgun at the time Mr. Castro was

shot.

-Police asked Mr. Agnish to bring in his weapon so that police could

check if it had recently been fired.

-Mr. Agnish brought in a .40 caliber handgun for police to examine.

Police determined that the gun had not recently been fired.

-During a defense deposition, Mr. Agnish told defense counsel that

this was the only handgun he had ever owned or possessed.

-Mr. Agnish made several postings on his Facebook account

showing different handguns than the .40 caliber gun that he brought

5 Ortuno-Perez's counsel attested that:

Based upon the court's pre-trial rulings, the defense has been precluded from

asserting an "other suspect" defense. The following is evidence that the defense

would have sought to admit at trial based upon an "other suspect" defense. The

defense is not making a strategic decision to not introduce this evidence, but

rather is not introducing this evidence solely based upon the court's pre-trial

rulings excluding this evidence.

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No. 72849-1/15

in to [the] police.

-In one of these postings, which was posted prior to Mr. Castro's

shooting, Mr. Agnish was attempting to sell a handgun and claimed

in the posting that the gun was his, and that he had legally

purchased it.

-In the same posting, Mr. Agnish referred to two other guns that he

had named "Selena" and "Klarissa".

-Mr. Agnish was previously initiated into a gang and Mr. Agnish

admitted that his gang was affiliated with the color blue.

-In 2011, Mr. Agnish posted a picture on his Facebook account of

blue gang graffiti that he had written on a desk. He expressed

resentment that someone had crossed out his blue gang graffiti and

replaced it with red gang graffiti.

-Mr. Agnish prominently displayed the color blue in pictures posted

to his Facebook account, including multiple handgun pictures

positioned across blue backgrounds.

-Mr. Agnish stated at his deposition that the Norteno gang was

associated with the color red.

-In September 2013, roughly one month before Mr. Castro's

shooting, Mr. Agnish posted on his Facebook account that he had

acted out against Norteno gang members by throwing 5 dozen

eggs at Norteno gang members. Mr. Agnish wrote "get those

Nortenos outta here cuh."

-Mr. Agnish stated in this same posting, "had to punk em without

causing too much trouble in broad daylight."

-Mr. Agnish admitted under oath that on the night of Mr. Castro's

shooting, something made him believe that Mr. Castro was a

Norteno gang member.

-Dechas Blue stated during a defense interview that Mr. Agnish told

him, "I feel like I might not live for two more years, you know,

because, you know, now I got these Norteno's looking for me,

they're looking for you, they're looking for Zach and Joey." The

defense would have argued that Mr. Agnish's fear of Nortenos only

makes sense if Mr. Agnish was involved in the shooting of Mr.

Castro.

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No. 72849-1/16

-Ms. Erika Lazcano's first description of the shooter that she gave to

police after the shooting was that the shooter was "wearing a black

hoody, looked like cotton jeans, possible Mexican, around 20 years

of age, 57", 5'8" and skinny[.]" Mr. Parks described Mr. Agnish to

police as a "21 to 22 year old Hispanic" and "57", 170, .. . black

sweatshirt/hoody and jeans."

-Ms. Lazcano told police that the person who shot Mr. Castro stated

"Oh, where are you from?" Evidence would show that Mr. Castro

and Mr. Ortuno-Perez knew each other, but that Mr. Castro and Mr.

Agnish did not.

-No forensic evidence was produced tying Mr. Ortuno-Perez to this

crime, nor excluding Mr. Agnish from being the shooter.

-Joey Pedroza [sic] downplayed the extent of his relationship with

Mr. Agnish. When asked about this incident, Mr. Pedroza [sic]

stated a guy named "Brian" was involved and never used Mr.

Agnish's name. Facebook postings show a closer relationship

between Mr. Agnish and Mr. Pedroza [sic] than Mr. Pedroza [sic]

has admitted. The defense would have cross-examined Mr. Agnish

and Mr. Pedroza [sic] on this issue to argue that Mr. Pedroza [sic]

had bias and motive to lie to police, specifically to cover for his

friend Mr. Agnish.

-The defense would have cross-examined Mr. Agnish about the

foregoing issues in an effort to show bias and motive on the part of

Mr. Agnish.

At a hearing on the same day that the offer of proof6 was filed, Ortuno6When the motion before the trial court is one to exclude evidence, an offer of proof by

the proponent is required by rule.

Error may not be predicated upon a ruling which . .. excludes evidence unless a

substantial right of the party is affected, and

(2) Offer of Proof. In case the ruling is one excluding evidence, the

substance of the evidence was made known to the court by offer or was apparent

from the context within which questions were asked.

ER 103(a).

Such an offer serves three purposes.

[I]t informs the court of the legal theory under which the offered evidence is

admissible; it informs the judge of the specific nature of the offered evidence so

that the court can assess its admissibility; and it creates a record adequate for

review.

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No. 72849-1/17

Perez's counsel again sought clarification from the trial court regarding the scope

of its "other suspect" ruling. Specifically, Ortuno-Perez's counsel asked whether

he could present evidence alluding to the notion that Lazcano's description of the

shooter matched that of another person at the scene (without identifying that

person by name) or, even, whether he was permitted to introduce evidence

generally suggesting that anyone else at the scene of the crime, other than

Ortuno-Perez, could have murdered Castro. Defense counsel emphasized that,

without being able to present evidence that implicitly or explicitly supported the

notion that someone else at the scene could have shot Castro, his defense of

Ortuno-Perez would amount to stating, "Well, the State didn't prove their case."

The trial court again adhered to its ruling, stating that Washington's "other

suspect" case law

precludes defense counsel from pointing the finger to other people.

Specifically, it does not preclude counsel from arguing general

denial, does not preclude counsel from saying you can't find

beyond a reasonable doubt that there is any evidence that would

implicate your client, and it doesn't preclude counsel from pointing

out some of the inconsistencies in identification, or any of the other

State v. Ray, 116 Wn.2d531, 538, 806 P.2d 1220(1991). An offer of proof is unnecessary only

when "the substance of the excluded evidence is apparent from the record." Ray, 116 Wn.2d at

539.

When we review a trial court decision to exclude evidence, we evaluate the court's

analysis of the proof offered in lightof general evidentiary admissibility principles. Thus, we

ordinarily assume that the trial court is making its admissibility evaluation in response to onlythe

ground stated, ER 103(a), that matters discussed by counsel are within the contemplation of the

judge, State v. Johnson, 48 Wn. App. 531, 537, 740 P.2d 337 (1987), that the judge "considered

all pertinent arguments made by counsel," Johnson, 48 Wn. App. at 538, and that the judge ruled

in relation to the circumstances of the case as it then existed. Johnson, 48 Wn. App. at 537.

During appellate oral argument, the State asserted that some of the evidence contained

in Ortuno-Perez's written offer of proof was inadmissible for reasons other than the "other

suspect" analysis. We are not in a position to determine if this is true or not true. Nothing in the

trial record indicates that such an argument was advanced to the trial judge. More importantly, it

is clear that the excluded evidence was excluded solely based on the State's "other suspect"

objection to its admissibility.

-17-
No. 72849-1/18

information that counsel has identified in one form or another the

witnesses may testify as to. So again, it is - other suspect, really,

is about pointing the finger to a specific other person or persons.

And that's what the Court has indicated you may not do in this

case.

[Defense Counsel]: So even saying - I will drop it after this -

saying anyone else at that scene could have committed this crime,

is that pointing the finger at somebody?

[The Court]: Basically yes.

2

The trial court, in its pretrial rulings, twice incorrectly applied Washington's

"other suspect" case law. First, the trial court excluded evidence pointing to

Agnish as the actual killer because the proffered evidence did not demonstrate

"steps taken" by Agnish to commit the crime. However, our case law has never

held that "other suspect" evidence must be excluded when a defendant cannot

prove that the identified perpetrator had taken steps to commit the crime.

Rather, as discussed above, the threshold analysis for "other suspect" evidence

involves a straightforward, but focused, relevance inquiry, reviewing the

evidence's materiality and probative value for "whether the evidence has a logical

connection to the crime." Franklin, 180 Wn.2d at 381-82 (citing Holmes. 547

U.S. at 330).

In addition, in response to a request for clarification by Ortuno-Perez's

counsel on the scope of the trial court's "other suspect" rulings, the court

indicated that its rulings precluded Ortuno-Perez from "pointing the finger at

somebody"—in particular, from arguing or postulating that anyone else at the

scene of the crime could have committed the crime. This ruling, too, was

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No. 72849-1/19

erroneous. Where, as here, the evidence is clear that a crime occurred (the fact

that Castro was shot to death was undisputed), a defense of general denial is, of

logical necessity, a defense that "someone else did it." This is not the same as

an "other suspect" defense—which seeks to put the blame on a particular "other

suspect." Here, it was clear that Castro was dead and that he was killed by

someone at the scene. By refusing to allow Ortuno-Perez to argue from the

evidence that he had been misidentified as the killer (logically meaning that

someone else at the scene was the killer), the trial court converted the general

denial defense to an argument that either Castro was not murdered (an illogical

argument) or that the State did not prove that Ortuno-Perez was the shooter

(illogical absent the context that someone else present may have instead been

the shooter). The trial court's "other suspect" rulings were untenable.

3

The evidence proffered by Ortuno-Perez relating to Agnish's potential

culpability was of a type that tended to logically connect Agnish to Castro's

murder. If credited bythe jury, it would establish Agnish's motive (a gang clash),

his opportunity (he was present at the murder scene and in close proximity to

Castro at the instant of the shooting), and his means (he was armed with a

handgun). Thus, the evidence proffered was plainly relevant to the question of

the identity of Castro's murderer and was of a type that, if credited by the jury,

would support a reasonable doubt as to Ortuno-Perez's guilt.

Accordingly, the trial court abused its discretion by improperly excluding

the proffered evidence.

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No. 72849-1/20

The damage to Ortuno-Perez's defense was not limited to merely the

inability to ask the jury to acquit based on evidence that Agnish may have been

the killer—"other suspect" evidence raising a reasonable doubt. As the trial

played out, Ortuno-Perez was also unfairly prejudiced in two major respects: his

ability to confront the witnesses against him was compromised by the rulings

preventing him from exploring the potential biases of witnesses who may have

been covering for Agnish out of either affinity or fear; and his ability to argue in

closing argument that logical inferences from the evidence actually admitted

during trial supported a reasonable doubt as to his guilt was compromised by

rulings precluding him from suggesting to the jury that anyone other than OrtunoPerez himself had shot Castro.

A

At trial, the State argued that Ortuno-Perez killed Castro. The State's

presentation of its case made clear that one of the several individuals standing

near Castro fired the fatal shot. To that effect, the State offered a medical

expert's testimony that, at the time of the gunshot, the barrel of the murder

weapon was between two inches and two feet from Castro's head.

The State called several witnesses who had been at or near the site of the

shooting to testify against Ortuno-Perez, including Blue,7 Agnish, Perdoza,

7The State called Blue to testify on the first day of trial. Blue testified that he was an

acquaintance of both Agnish and Parks but, because he was insidethe house at the time, he did

notsee the shooting. However, Blue testified that, upon exiting the house, he saw Ortuno-Perez

standing over Castro's body "looking . . . crazy."

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No. 72849-1/21

Parks, and Lazcano.

Agnish began his testimony by discussing his relationship with Blue,

Perdoza, Parks, and Ortuno-Perez. Agnish testified that he considered Blue "a

brother," that he was "really good friends" with Perdoza, that he had not known

Parks before he met him on the night of the shooting, and that he was a friend of

Ortuno-Perez.

Agnish next testified that, prior to his arrival at the house where the

shooting occurred, he was spending time with Perdoza, Blue, Parks, and OrtunoPerez. Agnish stated that, later that night, he drove himself, Perdoza, and Blue

in his car to the fateful house and that Ortuno-Perez had driven himself and

Parks there. Agnish testified that when he arrived, he stayed outside of the

house with several other people, including Ortuno-Perez and Perdoza.

Agnish testified that, while standing outside, he saw a car containing

Castro,8 Lazcano,9 and their daughter pull up to the house. Agnish testified that

when Castro got out ofthe car, he saw Castro and Ortuno-Perez shake hands

and hug. Agnish estimated that he was "[p]robably four orfive feet" from where

Ortuno-Perez and Castro were standing. Agnish further testified that he heard

On cross-examination, defense counsel inquired into Blue's relationship with Agnish, who

Blue referred to as "Sav", and established that Blue had never met Perdoza or Ortuno-Perez

before the night ofthe shooting. Defense counsel further elicited testimony from Blue indicating

that he did notsee Ortuno-Perez with a gun in his hand when he saw him after the shooting and

that, in comparing the statements that he made tothe police onthe night ofthe shooting with his

trial testimony, Blue had been inconsistent in describing what transpired after the shooting.

8Throughout his testimony, Agnish referred toCastro by the name "Tank."

9During his testimony, Agnish referred toLazcano as "the broad" or"the bitch carrying

the baby."

-21 -
No. 72849-1/22

Castro greet Ortuno-Perez by asking, "What's up, Playboy[10]?" Agnish averred

that Ortuno-Perez did not respond to Castro's greeting. Agnish then testified to

observing a series of escalating confrontations between Ortuno-Perez and

Castro. According to Agnish, he then saw "the two arguing; I'm backing up. I

just hear a bang; the dude's on the ground." Agnish claimed that he did not

"know who shot, witnessed it, you know, et cetera." Agnish testified that, at that

time, there were three or four people outside and he was standing four or five

feet from Castro.

Agnish further testified that, in the immediate aftermath of the shooting,

"The broads coming out. They screamed, and were screaming at me, 'Don't

shoot.'" Agnish also indicated that he was afraid to testify because he had

received death threats both for talking to the police about the murder and for

being a potential witness at Ortuno-Perez's trial.

On cross-examination, Ortuno-Perez's counsel highlighted inconsistencies

between Agnish's initial statements to the police and his trial testimony regarding

his recollection of the events on the night of the shooting, including his conduct

prior to arriving at the house where Castro was shot and the exact words OrtunoPerez and Castro exchanged in the claimed confrontation between them.

Defense counsel further inquired into how itwas that Agnish was a good friend of

Ortuno-Perez when, according to his testimony in a prior deposition, he had only

met Ortuno-Perez once before. Ortuno-Perez's attorney also attempted to

discredit Agnish's recollection of the events surrounding the shooting by pointing

10 Throughout his testimony, Agnish referred to Ortuno-Perez as "Playboy" or Santiago.

-22-
No. 72849-1/23

out that Agnish had stated that he was high on oxycodone at the time, a drug

which has a side effect of memory loss. Defense counsel also elicited more

specific testimony from Agnish regarding the women who were screaming at him

immediately after the shooting. Specifically, Agnish admitted that, immediately

after Castro was shot, Castro's girlfriend, Lazcano, screamed at him, "Please

don't shoot, don't shoot."

Perdoza was the State's next witness. Perdoza also began his testimony

by discussing his relationship with Blue, Agnish, Parks, and Ortuno-Perez. He

testified that he was not familiar with Blue, Parks, or Ortuno-Perez, but that he

had been a friend of Agnish for three years.

Perdoza testified that, at the time of the incident, he and Agnish were

standing outside ofthe house. Perdoza testified to seeing an argument between

two men who were speaking Spanish. Perdoza then stated that, as he turned

away, he "heard a loud pop noise," which startled him and caused him to run to

Agnish's car. Perdoza testified that, thereafter, he quickly looked back to where

the shooting happened and saw one person who was "[j]ust standing there."

Perdoza also indicated that he was reluctant to testify because he had been

receiving death threatsfor being a potential witness at Ortuno-Perez's trial.

On cross-examination, Ortuno-Perez's counsel pointed out

inconsistencies between Perdoza's statements to the police and his trial

testimony, including how much and what types of alcohol he had consumed.

Defense counselfurther inquired into contradictory statements made by Perdoza

regarding the length oftime that he had known Agnish.

-23-
No. 72849-1/24

The State then called Erika Lazcano. Lazcano testified that, at the time of

the incident, she was getting her daughter out of the car (from the rear passenger

side). She heard someone conversing with Castro in English. Lazcano testified

that the person she saw talking to Castro was wearing a black beanie and a

hoody.

Lazcano testified that she then "heard the gunshot." Lazcano stated that,

at the time of the shot, she was holding her daughter in her arms and was

walking toward Castro. From this vantage point, Lazcano was able to see that

"Jesus went to the ground, he hit the floor, he got shot." Lazcano then

approached Castro as he was laying on the driveway. Lazcano recalled that, as

she did this, "everybody ran and got in their car." At this point, Lazcano stated,

she "was scared at the same time because I didn't know if he was going to shoot

me and my daughter because Ididn't move my car." At the end of her direct

examination, Lazcano identified Ortuno-Perez as the man she saw shoot Castro.

On cross-examination, Ortuno-Perez's counsel highlighted disparities

between Lazcano's testimony and statements she made in a 911 call and to the

police shortly after the shooting. These variances included where she had

parked her car on the night ofthe shooting, her description ofthe shooter, and

her actions immediately after the shooting. Defense counsel also pressed

Lazcano on her trial testimony in which she indicated—for the first time at trial—

24
No. 72849-1/25

that the information that she gave to the 911 operator and to the police after the

shooting was inaccurate.11

The State next called Zachary Parks. Parks testified that he did not

recognize Perdoza by name, that he was a friend of Blue's, and that he

recognized Agnish's and Ortuno-Perez's names. Parks next testified that, at the

time of the incident, he was standing on the porch of the house smoking a

cigarette. From this vantage point, he saw a man get out of a car and converse

with Ortuno-Perez. Parks recalled that he was about 8 to 10 feet from where the

man and Ortuno-Perez were standing. Parks testified that the man's greeting to

Ortuno-Perez "was just, like, what's up, you know, 'What's up, Playboy,' you

know, that's about it." Parks testified that he did not understand the remainder of

the conversation because it was in Spanish, but that he observed an escalating

confrontation between Ortuno-Perez and the man. Parks then testified that he

was smoking a cigarette and not directly looking at the two men when he heard a

boom and looked over. Parks testified that, when he looked over, he saw

Ortuno-Perez with a gun in his hand, "[a]t the point of him pulling it back from the

dude's head."

On cross-examination, Ortuno-Perez's counsel confronted Parks with

contradictions between his initialstatements to the police and his trial testimony.

These contradictions related to the description of the guns that he claimed

11 Did Lazcano really shout at Agnish notto shoot her because she had notmoved her

car? Or did she shout at Agnish not to shoot her because she had just seen Agnish (who

matched the first description she gaveto the police ofthe shooter) shootCastro? Because ofthe

trial court's rulings, defensecounsel was barred from asking these questions, pressing these

points, or arguing these inferences to the jury.

-25-
No. 72849-1/26

Ortuno-Perez showed him prior to arriving at the house where the shooting

occurred and whether he moved Castro's body after he was shot.

The State called its last witness on the 10th day of testimony. Immediately

thereafter, Ortuno-Perez moved for a mistrial based on the trial court's "other

suspect" rulings and the resulting testimony that was elicited at trial. OrtunoPerez argued that he was deprived of his right to present a defense and his right

to confront witnesses because the trial court excluded evidence pointing to

Agnish as the actual killer and the trial court precluded Ortuno-Perez from

effectively cross-examining any of the witnesses about whether they had a

motive to lie about who shot Castro.

The trial court denied Ortuno-Perez's motion. The defense rested without

calling witnesses.

B

The trial court's rulings unfairly inhibited Ortuno-Perez's ability to confront

the witnesses against him. This manifested itselfin several different ways.

First, the trial court prohibited Ortuno-Perez from confronting Lazcano

with—and informing the jury of—the fact that her first description of the shooter

was a match for Agnish. Instead, cross-examination (and argument) on this point

was limited solely to noting that Lazcano'sinitial description did notmatch

Ortuno-Perez.

As noted previously, immediately after Castro was shot, Lazcano went up

to his body. She then looked at Agnish and shouted, "Don't shootme." But

defense counsel was not allowed to question her as to why she shouted this at a

-26-
No. 72849-1/27

person who matched her initial description of her boyfriend's killer. (Nor, during

closing argument, was defense counsel allowed to argue the logical inference

that she shouted this because she had just seen Agnish murder Castro.)

Instead, when Lazcano told the jury that she shouted this because she was

afraid that Agnish was mad at her for not yet moving her car, defense counsel

was required to merely accept the answer and move on.

In addition, Agnish, Perdoza, and Parks testified that they had been

threatened as a result of their cooperation with the prosecution. The jury was left

with the inference that Ortuno-Perez was the source of the threats. Due to the

prior rulings, defense counsel was unable to explore whether the threats were

the result of gang connections—or emanated from gang members—not

promoted by Ortuno-Perez.

Finally, the primary State's witnesses were all acquainted. If Agnish was,

indeed, the killer, they all had a reason to cover for him. And, if he was the killer,

Lazcano had a reason to fear him. But due to prior rulings, defense counsel was

unable to pursue these avenues of inquiry on cross-examination.

In these ways, the pretrial rulings excluding the proffered "other suspect"

evidence were made even more damaging to Ortuno-Perez as the trial played

out.

C

The Sixth Amendment right to counsel encompasses the delivery of

closing argument. Herring v. New York. 422 U.S. 853, 858, 95 S. Ct. 2250, 45 L.

Ed. 2d 593 (1975). Our Supreme Court "has recognized the particular

-27-
No. 72849-1/28

importance of closing argument to the effective exercise of this right." State v.

Frost. 160 Wn.2d 765, 773, 161 P.3d 361 (2007) (citing State v. PerezCervantes. 141 Wn.2d 468, 474, 6 P.3d 1160 (2000)). "Where a trial court goes

too far in limiting the scope of closing argument, a defendant's constitutional

rights may be implicated." Frost. 160 Wn.2d at 772.

The court cannot compel counsel to reason logically or draw only

those inferences from the given facts which the court believes to be

logical. The rule is well stated in Sears v. Seattle Consol. St. Rv.. 6

Wash. 227, 233, 33 P. 389 (1893):

It is the duty of the court, in all cases, to restrict the

argument of counsel to the facts in evidence, and not

to permit the opposite party to be prejudiced by any

statement of facts not a part of the evidence. But

counsel must be allowed some latitude in the

discussion of their causes before the jury, and ifthey

are not permitted to draw inferences or conclusions

from the particular facts in evidence it would be

impossible for them to make an argument at all. The

mere recital of facts already before the jury is not an

argument. There must be some reason offered for

the purpose of convincing the mind, some inference

drawn from facts established or claimed to exist, in

order to constitute an argument.

See also, 1 J. Wigmore, Evidence § 30 (3d ed. 1940).

City of Seattle v. Arensmever. 6 Wn. App. 116, 121,491 P.2d 1305(1971).

Closing argument "is the defendant's 'last clear chance to persuade the

trier of fact that there may be reasonable doubt of the defendant's guilt.'" PerezCervantes. 141 Wn.2d at 474 (quoting Herring, 422 U.S. at 862).

The very premise of our adversary system of criminal justice

is that partisan advocacy on both sides of a case will best promote

the ultimate objective that the guilty be convicted and the innocent

go free. In a criminal trial, which isin the end basically a factfinding

process, no aspect ofsuch advocacy could be more important than

-28-
No. 72849-1/29

the opportunity finally to marshal the evidence for each side before

submission of the case to judgment.

Herring. 422 U.S. at 862.

Allowing attorneys to argue inferences from the evidence is a rudimentary

aspect of this right. State v. Ciskie. 110 Wn.2d 263, 283, 751 P.2d 1165 (1988).

"[C]ounsel must be afforded 'the utmost freedom in the argument of the case'

and 'some latitude in the discussion of their causes before the jury.'" PerezCervantes, 141 Wn.2d at 474 (quoting Sears, 6 Wash, at 232-33).

A ruling on "other suspect" evidence is a ruling that determines whether

evidence may be admitted at trial. Here, however, the trial court extended the

reach of its "other suspect" rulings, instructing defense counsel that it could not,

in closing argument, say anything that "pointed to" anyone other than OrtunoPerez as the killer. By so ruling, the trial court prohibited defense counsel from

arguing the effect of inferences that could reasonably be drawn from the

evidence that was actually admitted at trial. This ruling further unfairly prejudiced

Ortuno-Perez's right to present a defense.

For instance, Lazcano's initial description of the killer was testified to in

front ofthe jury. The jury also personally observed Agnish in court. But while

Ortuno-Perez was allowed to argue to the jurythat the initial description did not

describe him, he was not allowed to argue to the jury that the initial description

did describe Agnish.

Similarly, while the jury heard testimony regarding Lazcano shouting at

Agnish not to shoot her, Ortuno-Perez wasforbidden to argue the connection

-29-
No. 72849-1/30

between this exclamation and her first description of the killer—a man resembling

Agnish.

The trial court's restrictions on the defendant's closing argument went well

beyond its pretrial evidentiary "other suspect" rulings. In practice, it prevented

the defense from presenting any logical closing argument to the jury: in the face

of clear evidence that 1) Castro was shot to death and 2) the shot was fired at

close range, Ortuno-Perez was prevented from arguing that one of the other

people standing in close proximity to Castro must have fired the shot. This left

him with two pathetic choices—arguing vacuously that the prosecution "hadn't

proved its case" against him or arguing that Castro was not shot at all. With the

latter a complete impossibility, he was left with merely the former. This was a

denial defense, to be sure, but not the strongest, most logical denial defense

afforded by the evidence adduced at trial, coupled with reasonable inferences

therefrom.

In this way, too, Ortuno-Perez was denied his right to present a complete

defense.

IV

The trial court's erroneous rulings were not harmless. An error of

constitutional magnitude is harmless only if the State can prove beyond a

reasonable doubt that the jury would have reached the same result in the

absence of the error. Chapman v. California, 386 U.S. 18, 21-24, 87 S. Ct. 824,

17 L. Ed. 2d 705 (1967) (an error of constitutional magnitude cannot be deemed

-30
No. 72849-1/31

harmless unless it is "harmless beyond a reasonable doubt"); accord Maupin,

128 Wn.2d at 928-29.

We are not so persuaded. The trial court errors discussed above may well

have altered the jury's view of the evidence.

V

Because of the manner in which we resolve this appeal, we need not

address any of the other errors claimed by defense counsel to have occurred or

raised by Ortuno-Perez in his statement of additional grounds. Our restraint in

this regard should be viewed as neither an affirmance nor a rejection of the trial

court rulings at issue. The parties are free to fully litigate them should they arise

on remand.

Similarly, our resolution of the "other suspect" issue with regard to Agnish

does not foreclose, on remand, the possibility that other, or additional, evidence

may be unearthed pointing to yet another possible perpetrator. If so, that issue

may be fully and fairly litigated on remand.

VI

The proffered "other suspect" evidence was such that it could have

caused a reasonable jurorto doubt whether Ortuno-Perez was guilty as charged.

Thus, the trial court erred by excluding it. This error was compounded by the trial

court's subsequent restrictions on cross-examination and closing argument. A

new trial is required.

31 -
No. 72849-1/32

Reversed and remanded.

We concur:

'aA^^

Jw*%L *-/] YZCJtriors ±.

-32