State Of Washington, V. Cristian A. Magana-arevalo
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Opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84259-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CRISTIAN MAGAÑA-AREVALO,
Appellant.
CHUNG, J. — Cristian Magaña Arevalo was convicted of one count of
murder in the first degree with a firearm enhancement. He received a sentence of
320 months for the murder and 60 months for the firearm enhancement. On
appeal, Magaña Arevalo challenges the admission of his statements to police
obtained without Miranda 1 warnings, claiming they were made pursuant to a
custodial interrogation and were not voluntary. He also challenges the use of Zoom
videoconferencing to conduct voir dire and the court’s denial of an exceptional
downward sentence because he was 21 years old at the time of the murder.
Further, in his statement of additional grounds for review (SAG), Magaña Arevalo
raises claims of prosecutorial misconduct, ineffective assistance of counsel,
improper admission of hearsay evidence, and insufficiency of the evidence.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 84259-5-I/2
As for Magaña Arevalo’s statements to police, we hold that at the time they
were made, a reasonable person in his position would believe they were in custody
to a degree associated with formal arrest. However, the statements he made to
detectives were voluntary and admissible for the purpose of impeachment. Further,
any error in admitting the statements as substantive evidence was harmless, as
the untainted evidence was overwhelming and establishes beyond a reasonable
doubt that the outcome would have been the same without the admission of
Magaña Arevalo’s statements. Moreover, none of Magaña Arevalo’s other
challenges to his judgment and sentence require reversal.
We affirm Magaña Arevalo’s conviction and sentence.
FACTS
Around 6:30 p.m. on November 30, 2018, residents of an apartment
complex in Renton, Washington, heard gunshots and rushed outside to see what
had happened. There, they found Jason Hobbs, who had been shot multiple times
and subsequently died at the scene. A neighbor’s surveillance camera recorded
the incident. The video shows a dark sports utility vehicle (SUV) with shiny tire rims
driving through the parking lot at 6:29 p.m. Hobbs followed the vehicle in his car.
Shortly after, Hobbs, who was wearing a light-colored hooded jacket or sweatshirt
and dark vest, and another man in a two-toned jacket and dark pants appear on
the video and are involved in a physical confrontation. Hobbs retreats. The man in
the two-toned jacket then shoots him at close range, and Hobbs falls. The man
2 No. 84259-5-I/3
starts to walk away but returns and shoots Hobbs several more times before
running away.
Officers from the Renton Police Department (RPD) responded to the scene
and began investigating. During the investigation, Cristian Magaña Arevalo arose
as a person of interest. The State subsequently charged Magaña Arevalo with one
count of murder in the first degree with a firearm enhancement.
A jury convicted Magaña Arevalo as charged. Because he was 21 years old
at the time of the murder, Magaña Arevalo requested the court impose an
exceptional downward sentence based on his youth as a mitigating factor. The trial
court declined Magaña Arevalo’s request and imposed the high end of the
standard range, 320 months of incarceration, as well as 60 months for the firearm
enhancement to be served consecutive to the base sentence.
Magaña Arevalo appeals.
DISCUSSION
Magaña Arevalo challenges admission of his statements to police obtained
without Miranda warnings, the trial court’s use of Zoom 2 to conduct virtual voir dire,
and the court’s denial of an exceptional downward sentence. In his statement of
additional grounds for review (SAG), Magaña Arevalo also raises other issues
including prosecutorial misconduct, ineffective assistance of counsel, admission of
hearsay evidence, and sufficiency of the evidence.
2 Zoom is a cloud-based videoconferencing software platform.
3 No. 84259-5-I/4
I. Admission of Magaña Arevalo’s Statements to Police
Magaña Arevalo made statements to the police during two separate
interviews on December 1 and during another interview on December 3. On
appeal, Magaña Arevalo challenges the first two statements as made during
custodial interrogation without Miranda warnings and as not voluntary. He does
not argue that the December 3 statement was inadmissible on those grounds, but
that it was inadmissible as fruit of the poisonous tree based on the December 1
interviews.
Early in the morning on December 1, 2018, RPD executed a search warrant
for Magaña Arevalo’s girlfriend’s apartment, where he was known to reside, as well
as for his vehicle and a DNA buccal swab. Because Magaña Arevalo was a
suspect in a violent homicide, a special weapons and tactics (SWAT) team
assisted with serving the search warrant.
By 6 a.m., at least 25 police officers, including the SWAT team, amassed
outside of the apartment where 21-year-old Magaña Arevalo, his pregnant
girlfriend, and their young son slept. 3 The family awoke to a megaphone calling
Magaña Arevalo to come out and warning that the police would come into the
residence if he did not comply. When he went outside, Magaña Arevalo saw what
3 Detective Edwards testified that a SWAT team is generally 20 to 30 officers, depending
on who arrives on scene. He acknowledged that at least 10 members of the SWAT team would have been onsite for execution of the search warrants. Edwards also explained that 16 or 17 officers were on scene prior to the SWAT team.
4 No. 84259-5-I/5
he called “the SWAT truck” 4 and “a bunch” of police officers with weapons. An
armed uniformed officer used zip-ties to secure Magaña Arevalo’s hands behind
his back. His girlfriend and son were taken a short distance away in the parking
lot. Magaña Arevalo stood next to the SWAT truck for a few minutes before being
placed in the back of a police car. Still cuffed behind his back, Magaña Arevalo
spent a few minutes sitting in the police car before an officer said they were taking
him to the nearby QFC (Quality Food Center) parking lot to speak with detectives.
Magaña Arevalo’s family remained in the parking lot near the apartment
while the uniformed officer drove him to the police staging area in the QFC parking
lot about two blocks from the apartment. When he arrived in the QFC parking lot,
Magaña Arevalo saw approximately five police cars, two or three police vans, and
five law enforcement officers.
RPD Detective Christopher Edwards met Magaña Arevalo as he was
removed from the patrol car in the QFC parking lot. Edwards immediately removed
the zip-ties from Magaña Arevalo’s hands. Magaña Arevalo asked about his family
and if he could speak with them but was not allowed to see them per RPD
procedure.
Edwards inquired whether Magaña Arevalo would be willing to speak with
him, and Magaña Arevalo agreed. Edwards gave Magaña Arevalo the choice of
remaining in the QFC parking lot or going to the police station, where they would
4 Edwards identified the vehicle as a “BearCat” and described it as an armored vehicle
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84259-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CRISTIAN MAGAÑA-AREVALO,
Appellant.
CHUNG, J. — Cristian Magaña Arevalo was convicted of one count of
murder in the first degree with a firearm enhancement. He received a sentence of
320 months for the murder and 60 months for the firearm enhancement. On
appeal, Magaña Arevalo challenges the admission of his statements to police
obtained without Miranda 1 warnings, claiming they were made pursuant to a
custodial interrogation and were not voluntary. He also challenges the use of Zoom
videoconferencing to conduct voir dire and the court’s denial of an exceptional
downward sentence because he was 21 years old at the time of the murder.
Further, in his statement of additional grounds for review (SAG), Magaña Arevalo
raises claims of prosecutorial misconduct, ineffective assistance of counsel,
improper admission of hearsay evidence, and insufficiency of the evidence.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). No. 84259-5-I/2
As for Magaña Arevalo’s statements to police, we hold that at the time they
were made, a reasonable person in his position would believe they were in custody
to a degree associated with formal arrest. However, the statements he made to
detectives were voluntary and admissible for the purpose of impeachment. Further,
any error in admitting the statements as substantive evidence was harmless, as
the untainted evidence was overwhelming and establishes beyond a reasonable
doubt that the outcome would have been the same without the admission of
Magaña Arevalo’s statements. Moreover, none of Magaña Arevalo’s other
challenges to his judgment and sentence require reversal.
We affirm Magaña Arevalo’s conviction and sentence.
FACTS
Around 6:30 p.m. on November 30, 2018, residents of an apartment
complex in Renton, Washington, heard gunshots and rushed outside to see what
had happened. There, they found Jason Hobbs, who had been shot multiple times
and subsequently died at the scene. A neighbor’s surveillance camera recorded
the incident. The video shows a dark sports utility vehicle (SUV) with shiny tire rims
driving through the parking lot at 6:29 p.m. Hobbs followed the vehicle in his car.
Shortly after, Hobbs, who was wearing a light-colored hooded jacket or sweatshirt
and dark vest, and another man in a two-toned jacket and dark pants appear on
the video and are involved in a physical confrontation. Hobbs retreats. The man in
the two-toned jacket then shoots him at close range, and Hobbs falls. The man
2 No. 84259-5-I/3
starts to walk away but returns and shoots Hobbs several more times before
running away.
Officers from the Renton Police Department (RPD) responded to the scene
and began investigating. During the investigation, Cristian Magaña Arevalo arose
as a person of interest. The State subsequently charged Magaña Arevalo with one
count of murder in the first degree with a firearm enhancement.
A jury convicted Magaña Arevalo as charged. Because he was 21 years old
at the time of the murder, Magaña Arevalo requested the court impose an
exceptional downward sentence based on his youth as a mitigating factor. The trial
court declined Magaña Arevalo’s request and imposed the high end of the
standard range, 320 months of incarceration, as well as 60 months for the firearm
enhancement to be served consecutive to the base sentence.
Magaña Arevalo appeals.
DISCUSSION
Magaña Arevalo challenges admission of his statements to police obtained
without Miranda warnings, the trial court’s use of Zoom 2 to conduct virtual voir dire,
and the court’s denial of an exceptional downward sentence. In his statement of
additional grounds for review (SAG), Magaña Arevalo also raises other issues
including prosecutorial misconduct, ineffective assistance of counsel, admission of
hearsay evidence, and sufficiency of the evidence.
2 Zoom is a cloud-based videoconferencing software platform.
3 No. 84259-5-I/4
I. Admission of Magaña Arevalo’s Statements to Police
Magaña Arevalo made statements to the police during two separate
interviews on December 1 and during another interview on December 3. On
appeal, Magaña Arevalo challenges the first two statements as made during
custodial interrogation without Miranda warnings and as not voluntary. He does
not argue that the December 3 statement was inadmissible on those grounds, but
that it was inadmissible as fruit of the poisonous tree based on the December 1
interviews.
Early in the morning on December 1, 2018, RPD executed a search warrant
for Magaña Arevalo’s girlfriend’s apartment, where he was known to reside, as well
as for his vehicle and a DNA buccal swab. Because Magaña Arevalo was a
suspect in a violent homicide, a special weapons and tactics (SWAT) team
assisted with serving the search warrant.
By 6 a.m., at least 25 police officers, including the SWAT team, amassed
outside of the apartment where 21-year-old Magaña Arevalo, his pregnant
girlfriend, and their young son slept. 3 The family awoke to a megaphone calling
Magaña Arevalo to come out and warning that the police would come into the
residence if he did not comply. When he went outside, Magaña Arevalo saw what
3 Detective Edwards testified that a SWAT team is generally 20 to 30 officers, depending
on who arrives on scene. He acknowledged that at least 10 members of the SWAT team would have been onsite for execution of the search warrants. Edwards also explained that 16 or 17 officers were on scene prior to the SWAT team.
4 No. 84259-5-I/5
he called “the SWAT truck” 4 and “a bunch” of police officers with weapons. An
armed uniformed officer used zip-ties to secure Magaña Arevalo’s hands behind
his back. His girlfriend and son were taken a short distance away in the parking
lot. Magaña Arevalo stood next to the SWAT truck for a few minutes before being
placed in the back of a police car. Still cuffed behind his back, Magaña Arevalo
spent a few minutes sitting in the police car before an officer said they were taking
him to the nearby QFC (Quality Food Center) parking lot to speak with detectives.
Magaña Arevalo’s family remained in the parking lot near the apartment
while the uniformed officer drove him to the police staging area in the QFC parking
lot about two blocks from the apartment. When he arrived in the QFC parking lot,
Magaña Arevalo saw approximately five police cars, two or three police vans, and
five law enforcement officers.
RPD Detective Christopher Edwards met Magaña Arevalo as he was
removed from the patrol car in the QFC parking lot. Edwards immediately removed
the zip-ties from Magaña Arevalo’s hands. Magaña Arevalo asked about his family
and if he could speak with them but was not allowed to see them per RPD
procedure.
Edwards inquired whether Magaña Arevalo would be willing to speak with
him, and Magaña Arevalo agreed. Edwards gave Magaña Arevalo the choice of
remaining in the QFC parking lot or going to the police station, where they would
4 Edwards identified the vehicle as a “BearCat” and described it as an armored vehicle
that looks “like a full-sized armored car for a bank” and “olive drab or black but it’s emblazoned with Police and lights.”
5 No. 84259-5-I/6
have privacy, warmth, a bathroom, and other amenities. Magaña Arevalo opted to
stay on location to be near his family.
At 6:47 a.m., Edwards began the interview. He conducted the interview in
his work truck due to the “extremely cold” weather, with himself and Magaña
Arevalo in the back seat and RPD Detective Jason Renggli in the driver’s seat.
The truck was unmarked and did not have a police divider or cage. Edwards did
not make a point of locking the truck doors or telling Magaña Arevalo the doors
were locked. Both detectives were armed but did not display their weapons. There
were armed officers “loitering in the parking lot and around the other cars,” but
none of them were guarding the exterior of the truck or standing outside the truck’s
door.
Neither Edwards nor Renggli advised Magaña Arevalo of his Miranda rights.
Magaña Arevalo expressed willingness to talk and consented to the conversation
being recorded. Edwards told Magaña Arevalo, “[Y]ou’re not under arrest. We just
wanted to talk to you about an incident that we’re gonna explain to you. You can
leave anytime.” Edwards then inquired, “[Y]ou have any idea why we’re here or
why we would be here?” Magaña Arevalo responded that he had seen on
Facebook that someone had been shot. Magaña Arevalo explained that his friends
who knew the victim asked if he knew what happened, but Magaña Arevalo told
them he had been with his family all day. Magaña Arevalo told Edwards that he
had looked at the RPD website and learned that “some dude” named Jason had
6 No. 84259-5-I/7
been shot. Magaña Arevalo admitted that he had known the victim “for a long time,”
but did not associate “with those people” because he had his family.
Edwards asked what Magaña Arevalo had done that day. Magaña Arevalo
replied that he and his girlfriend had taken their son out to eat and to the Nike outlet
store to buy shoes. His girlfriend drove them in her white Acura. Edwards inquired
whether Magaña Arevalo owned a car. Magaña Arevalo said he owned a Honda.
When pressed about whether he owned any other cars, Magaña Arevalo explained
that he owned a 2002 blue Chevrolet Tahoe but he “d[idn’t] really drive the truck
too much.” At that time, the truck was in the apartment complex.
After discussing vehicles, Edwards returned to the topic of when Magaña
Arevalo had first heard about the incident. Magaña Arevalo responded that his
friend had called while he was out with his family and asked if Magaña Arevalo
knew what happened. Magaña Arevalo told Edwards, “I don’t even talk to my
brother, ‘cause they said that they brought up my brother and stuff. I don’t even
talk to my brother like that. I don’t be around my brother like that.” Magaña Arevalo
explained that he did not like associating “with people like that” because he had a
pregnant girlfriend and child. Magaña Arevalo had last seen his brother, Jose, two
days before.
Edwards asked Magaña Arevalo for his phone number. Magaña Arevalo
responded that he did not have a phone number, he used his girlfriend’s phone.
Magaña Arevalo explained that he had recently lost his phone and was going to
7 No. 84259-5-I/8
have to get another. Magaña Arevalo provided Edwards with his girlfriend’s phone
number and the phone number for his missing cell phone.
Edwards paused the questions to confirm to Magaña Arevalo that Hobbs
had been killed. Magaña Arevalo said, “I didn’t, myself, want to be involved in
that—all that situation. ‘Cause I know that there’s—it’s—it’s about, um, a few
people that shot at my uncle’s house, before.” Magaña Arevalo noted, “That’s the
reason why I stay away from everybody, you know what I mean?”
The questions circled back to Magaña Arevalo’s truck, with Edwards
inquiring whether the truck had moved or been loaned out to anybody. According
to Magaña Arevalo, the truck had not moved, he had not loaned it, and his girlfriend
had the keys. Magaña Arevalo said he sometimes lends the truck to friends but he
did not think anybody had touched it recently. Magaña Arevalo explained, “[I]t
actually doesn’t start, because it has a bad battery right now.” In response to
Edwards’s questions, Magaña Arevalo agreed that the wheels of truck are “kinda
shiny.”
Edwards then informed Magaña Arevalo that the police had video of a truck
similar to his. Magaña Arevalo responded that he had his girlfriend’s truck, a blue
Ford that was at her mom’s house. “I-I- we have, like, multiple trucks and stuff, you
know what I mean?” Edwards continued, stating that they had video of a very
serious crime that led to the belief that Magaña Arevalo’s vehicle was involved.
Edwards told Magaña Arevalo, “what we’re tryin’ to do is open a door for you to—
8 No. 84259-5-I/9
to talk to us about it and give us some information.” Magaña Arevalo said, “I’m
good with that, you know?”
Magaña Arevalo and Edwards again discussed his truck—who had access
to it and when it had been driven. Jose’s name came up again in the context of the
truck, but Magaña Arevalo said he had not seen or talked to Jose for a few days.
Magaña Arevalo mentioned the shooting at his uncle’s house again, saying he
messaged Jose to make sure his mom was okay. Magaña Arevalo said he and
Jose have “issues,” he did not want Jose coming to his house, he did not know
how to get a hold of Jose, and he did not know any of Jose’s friends.
Edwards also returned to questions about how Magaña Arevalo knew
Hobbs. Magaña Arevalo explained, “I’ve known him, um, because his—his, uh
cousin, (Tyrell) is the—one of the people that were involved with the shooting of –
at my house and stuff.” Magaña Arevalo elaborated that he had learned Hobbs’s
name when “a[n] officer actually brought him up, too, when I was talkin’ to them
about the shooting at my house. ’Cause they shot—when my baby mama was
outside the house.” Edwards finished the interrogation by taking a buccal swab for
DNA testing pursuant to a search warrant and asking Magaña Arevalo if there was
anything he thought the detectives needed to know. Magaña Arevalo said no, and
the interview concluded after 21 minutes.
Shortly after the initial interview, the detectives wanted to clarify information
gathered by other investigators and conducted a second interview with Magaña
Arevalo in the truck in the QFC parking lot. Again, the detectives did not inform
9 No. 84259-5-I/10
Magaña Arevalo of his Miranda rights. Detective Edwards asked Magaña Arevalo
about a recent encounter at a Subway restaurant between Magaña Arevalo and
Hobbs. Magaña Arevalo said Hobbs was with another man, Elijah Chambers, and
both Hobbs and Chambers “were being cool with me. I told them . . . ‘I don’t have
no problem with you guys. I’m on my—I’m always with my family. You guys see
I’m always with my family.’ ” Magaña Arevalo explained he does not shoot at
people’s families, he does not like guns or own guns. Initially, Magaña Arevalo told
Edwards that Hobbs said he keeps his “gun tucked,” and only uses it when he
needs it. Magaña Arevalo also stated that Hobbs denied participating in the
shooting at Magaña Arevalo’s uncle’s house. After a few more questions from the
detectives, Magaña Arevalo said that Hobbs was “kind of threatening my life or
something. He was like threatening me and stuff.” Magaña Arevalo elaborated,
“Like he was threatening me saying that he has his gun tucked and I was just like,
‘Okay. Good for you.’ ” This interview lasted four minutes. Edwards took Magaña
Arevalo back to the apartment after the execution of the search warrant was
completed.
Edwards had additional follow-up questions, so he arranged a meeting at
Magaña Arevalo’s apartment a few days later, on December 3. Edwards and
another detective were invited into the apartment and sat on the couch in the living
room. Magaña Arevalo’s girlfriend and uncle were present. Magaña Arevalo
agreed to speak with detectives, and the conversation was recorded. The
10 No. 84259-5-I/11
detectives did not inform Magaña Arevalo about his Miranda rights prior to the third
interview.
During the third interview, Edwards asked additional questions about the
parties involved in the shooting at Magaña Arevalo’s uncle’s house. Magaña
Arevalo told Edwards, “[S]upposedly Jason Hobbs was like laughing about it
saying that he was involved, saying that he was one of the shooters that shot at
my house and all that, and that he was just like bragging.” Magaña Arevalo further
stated, “[T]hey’re mentioning my house and them shooting up my house and
obviously they had something to do with it.” Magaña Arevalo also explained that
the shooting was related to Jose. Magaña Arevalo said he was not involved and
had no problems with Hobbs. In fact, Magaña Arevalo said he told Hobbs, “I had
no problems with him. I told him that I don’t have no problems.”
Edwards and Magaña Arevalo discussed Jose and the possible source of
the “beef” between Jose and Hobbs. Magaña Arevalo asserted that he had heard
that people were assuming Jose was responsible for the shooting. Edwards said
the police were looking for Jose and wanted to talk with him, and Magaña Arevalo
said he had not had contact with Jose but had been asking around to find him.
Edwards raised the issue of Magaña Arevalo’s cell phone, and Magaña
Arevalo reiterated that he had lost his phone. Edwards also questioned Magaña
Arevalo further about his claim that he did not own any guns. Magaña Arevalo
confirmed that neither he nor his girlfriend owned a gun. At that point, Edwards
showed Magaña Arevalo a photograph of a Heckler & Koch (HK) gun case the
11 No. 84259-5-I/12
police found in the apartment while executing the search warrant. Magaña Arevalo
explained that he had found the gun case in his Honda after the vehicle had been
stolen. When his vehicle was recovered, “they just left a bunch of stuff in my trunk
of my car and stuff.” Edwards asked if Magaña Arevalo kept any other items found
in his recovered vehicle, but Magaña Arevalo said he held on only to the gun case
to possibly store his BB guns.
Edwards revealed that police had located an HK gun magazine at the crime
scene. He asked Magaña Arevalo if his DNA was going to be on that magazine. In
response, Magaña Arevalo explained, “[W]hen I found the gun case there was
actually a magazine in there but I got rid of that magazine. I sold it to someone
else. I didn’t sell it. I just gave it away to someone.” Magaña Arevalo said that he
had given the magazine to a friend of Jose’s over eight months prior and Jose had
also touched the gun magazine as part of that transaction.
Edwards asked several additional questions about the gun magazine. He
also asked Magaña Arevalo about his Chevrolet Tahoe and when it had been
driven and who might have had access to the vehicle. The recorded interview
concluded after 31 minutes.
At a CrR 3.5 hearing to determine the admissibility of Magaña Arevalo’s
three statements to the police, the trial court heard testimony from Edwards and
Magaña Arevalo. The court concluded the three statements (two from December
1, one from December 3) were admissible because each was voluntary, did not
result from custodial interrogation, and Miranda warnings were not required prior
12 No. 84259-5-I/13
to any of the statements. Subsequently, at trial, the State played portions of
Magaña Arevalo’s recorded statements for the jury during its case in chief, 5 and
Magaña Arevalo was questioned about the statements both on direct and cross-
examination. The State also used excerpts of the statements during its closing
argument.
A. Custodial Interrogation
Magaña Arevalo claims the trial court’s failure to exclude his statements
obtained without Miranda warnings violated his constitutional protections against
self-incrimination. The federal and Washington State constitutions guarantee the
right against self-incrimination. U.S. CONST. amends. V, VI, XIV; W ASH. CONST. art.
I, § 9. Miranda warnings were developed to protect the right against self-
incrimination “while in the coercive environment of police custody.” State v.
Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). To ensure this protection,
Miranda warnings must be given before custodial interrogation of a criminal
suspect by an agent of the state. Heritage, 152 Wn.2d at 214.
The Washington Supreme Court has described the reasons for these
protections as follows:
The Court [in Miranda] explained that in-custody interrogations largely take place in an incommunicado police-dominated atmosphere where there is potential for physical brutality and psychological ploys aimed at inducing suspects to confess. Id. at 445-48, 86 S. Ct. 1602. Even in the absence of explicit coercion, when the government significantly curtails an individual's freedom of action, the individual may be effectively compelled to speak
5 Portions of those interviews were redacted pursuant to Magaña Arevalo’s motion in
limine under ER 701.
13 No. 84259-5-I/14
when, in a freer setting, they would exercise their right to remain silent. Id. at 455-56, 86 S. Ct. 1602.
State v. Escalante, 195 Wn.2d 526, 532, 461 P.3d 1183 (2020). Thus, without a
Miranda warning, incriminating statements made during custodial interrogation
may not be used as evidence against the person in a criminal trial. 6 Escalante, 195
Wn.2d at 532.
In the context of Miranda, “custodial” refers to “whether a defendant’s
movement was restricted at the time of questioning.” State v. Lorenz, 152 Wn.2d
22, 36, 93 P.3d 133 (2004). The objective measure of custody is whether a
reasonable person would believe they are in custody “to a degree associated with
formal arrest.” Id. at 36-37. The court considers the totality of the circumstances
including the “nature of the surroundings, the extent of police control over the
surroundings, the degree of physical restraint placed on the suspect, and the
duration and character of the questioning.” Escalante, 195 Wn.2d at 534. 7
We review factual findings after a CrR 3.5 hearing for whether they are
supported by substantial evidence in the record. State v. Broadaway, 133 Wn.2d
6 As an exception to this rule, “[a] defendant’s statements are admissible as
impeachment evidence, even when such statements are obtained in violation of Miranda safeguards, so long as the statements are voluntarily made.” State v. Borsheim, 140 Wn. App. 357, 371, 165 P.3d 417 (2007); see also Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 723, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975); Escalante, 195 Wn.2d at 532 n.3. 7 We note that our Supreme Court has held that a person’s race and ethnicity are
relevant to determining whether a person has been seized. State v. Sum, 199 Wn.2d 627, 643, 511 P.3d 92 (2022). The court clarified the seizure inquiry, stating that when determining an objective observer’s view of “the totality of circumstances,” “an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against BIPOC in Washington.” Id. at 653. While the seizure inquiry is different from the custodial interrogation inquiry, they both involve similar assessments of the totality of circumstances.
14 No. 84259-5-I/15
118, 131, 942 P.2d 363 (1997). “Substantial evidence exists where there is a
sufficient quantity of evidence in the record to persuade a fair-minded, rational
person of the truth of the finding.” State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313
(1994). We then determine whether the supported findings and unchallenged
findings support the court’s conclusions of law. State v. Coleman, 6 Wn. App. 2d
507, 516, 431 P.3d 514 (2018). Thus, an appellate court reviews de novo a trial
court’s conclusion that a suspect was not in custody. Lorenz, 152 Wn.2d at 36.
In its order after the CrR 3.5 hearing, the court distinguished “Findings as
to Undisputed Facts,” “Disputed Facts,” and “Findings/Conclusions as to Disputed
Facts.” The court identified as “disputed” only three facts: Magaña Arevalo’s
allegations that the SWAT team threatened to use deadly force if he did not come
out of his residence; that the weather “was not very cold”; and that he felt
“pressured” to speak to Edwards and Renggli.
To the extent Magaña Arevalo challenges findings regarding credibility, we
do not address them, as we defer to the fact finder on issues of conflicting
testimony and witness credibility. See, e.g., State v. Truong, 168 Wn. App. 529,
534, 277 P.3d 74 (2012). This includes the court’s finding that Magaña Arevalo’s
testimony about the disputed facts “was not credible and those allegations are not
true.” 8
8 Magaña Arevalo also challenged the finding that “the testimony of Det. Edwards was
credible.”
15 No. 84259-5-I/16
As to the other findings that Magaña Arevalo challenges, they were
supported by substantial evidence. The finding that “there were no armed officers
immediately outside the truck doors,” is supported by Magaña Arevalo’s own
testimony that he did not remember seeing officers outside of the car, as well as
Edwards’s testimony that there was not anyone standing outside the truck door or
assigned to guard the truck. The finding that the officers’ interaction was “cordial
and not coercive or aggressive” is supported by Magaña Arevalo’s testimony that
his conversation with Edwards was “casual” and his own demeanor was “pretty
free and open,” as well as the audio recordings of the interview, in which both
Edwards’s and Magaña Arevalo’s voices are calm and not raised.
Further, the findings that the officers did not do anything to threaten,
intimidate or coerce Magaña Arevalo to talk and that he was free to leave and not
placed under arrest were supported by substantial evidence. In the recordings,
Edwards tells Magaña Arevalo, “You’re not under arrest,” and “You can leave at
any time,” and Edwards testified to the same at the hearing. Magaña Arevalo also
agreed that neither detective made any threats, had their weapons in sight, or
offered anything in exchange for his statement. Both Edwards and Magaña
Arevalo testified that Magaña Arevalo was not arrested on December 1.
Magaña Arevalo also challenges the court’s conclusions that his statements
were not custodial. He argues that his statements were custodial because “after
being jolted awake and forced out of his home early in the morning by a police
officer on a loudspeaker, confronted by an overwhelming armed police presence
16 No. 84259-5-I/17
outside his apartment, restrained in zip-ties and forcibly driven to the staging area
in a patrol car,” any reasonable person in his position would not have felt free to
leave or decline Edwards’s request to speak with him. Indeed, when the police
executed the warrant, at least 25 officers, including a SWAT team, gathered early
in the morning outside Magaña Arevalo’s apartment. They used a megaphone to
awaken him and instruct him to come out, or else the police would come into the
residence. Magaña Arevalo came out of his residence to face massed officers with
weapons and what he called “the SWAT truck,” an armored vehicle emblazoned
with “Police and lights.” An armed uniformed officer used zip-ties to secure his
hands behind his back while his girlfriend and son were escorted away from him.
After waiting next to the SWAT truck for a few minutes, Magaña Arevalo, still in
restraints, was placed in the back of a police car. After a few more minutes, he was
driven by a uniformed officer to a nearby QFC parking lot, where he was told
detectives were waiting to speak with him. At the QFC parking lot, he saw
approximately five police cars, two or three police vans, and five law enforcement
officers.
At this point, a reasonable person in Magaña Arevalo’s position, as a young
man of color being sought by and surrounded by a large law enforcement
presence, physically restrained by zip-ties, would find the situation overwhelming
and intimidating, would feel his movement was restricted, and would believe he
was in custody to a degree associated with formal arrest. Given the show of force
17 No. 84259-5-I/18
and the circumstances leading up to the interrogation, the prudent course of action
would have been to give a Miranda warning prior to any questioning.
The State contends, however, that no Miranda warning was necessary
because once Magaña Arevalo arrived at the QFC lot, Edwards immediately
removed the zip-ties, told Magaña Arevalo he was not under arrest and asked if
he was willing to speak with him, and Magaña Arevalo agreed. Edwards gave
Magaña Arevalo the choice of remaining in the QFC parking lot or going to the
police station. At Magaña Arevalo’s choice, they stayed at the parking lot. Magaña
Arevalo agreed to the conversation being recorded.
The State also argues that the presence of multiple officers did not
necessarily convert the investigative detention into custody requiring Miranda
warnings. Even if a person is seized within the meaning of the Fourth Amendment,
they are not necessarily in custody for Miranda purposes. Escalante, 195 Wn.2d
at 533 (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed.
2d 317 (1984)). See also State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345
(2004) (“Washington courts agree that a routine Terry[9] stop is not custodial for
the purposes of Miranda.”). The State points to State v. Marcum, in which the police
had a reasonable suspicion that the defendant possessed cannabis based on
information from an informant. 149 Wn. App. 894, 901-03, 205 P.3d 969 (2009).
The police stopped Marcum for the purpose of investigating whether he was
engaged in dealing drugs. Id. at 910. The fact that there were numerous police
9 Terry v. Ohio, 392 U.S. 1, 5, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
18 No. 84259-5-I/19
vehicles surrounding him in a parking lot did not convert the detention into a
custodial arrest. Id. at 909-10. The court reasoned that while Marcum was not free
to leave, in an investigatory detention, the officer may ask questions “to confirm or
dispel the officer’s suspicions without rendering the suspect ‘in custody’ for the
purposes of Miranda,” and that is what occurred. Id. (quoting Heritage, 152 Wn.2d
at 218).
But even if a seizure is lawful under the Fourth Amendment, the Miranda
custody inquiry is different; we must examine the totality of the circumstances to
determine whether a reasonable person in that position would feel restrained to
the degree associated with formal arrest. Escalante, 195 Wn.2d at 536. For
example, in Escalante, the defendant was interrogated at a border crossing
between Canada and Washington State. Id. at 529-30. The court noted that border
searches and seizures are a longstanding exception to the warrant requirement
under the Fourth Amendment. Id. at 535. After answering questions at the primary
inspection area, Escalante was routed to a secondary inspection area, which the
court stated “would cause a reasonable person to feel subject to an increased level
of suspicion.” Id. at 540. Then, at the secondary inspection area, he was separated
from his belongings, his documents were confiscated, and he was subjected to a
pat-down search and detained for five hours in a locked lobby that was not
accessible to the public or other travelers. Id. Agents controlled entry to and exit
from the lobby, and Escalante was not allowed to leave, use the bathroom, or
access water. Id. Further, he was detained for five hours. Id. For the inquiry of
19 No. 84259-5-I/20
whether a person is in custody, relevant circumstances include “the extent of police
control over the surroundings.” Escalante, 195 Wn.2d at 534. This makes sense,
as the “concern of Miranda” was an “incommunicado police-dominated
environment,” id. at 541, and whether the individual was “in an environment that
‘present[s] a serious danger of coercion.” Id. at 536 (quoting Howes v. Fields, 565
U.S. 499, 508-09, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012)).
As discussed above, here, there is no question that the initial encounter
when the police arrived at Magaña Arevalo’s home created a “police-dominated
environment.” Unlike in Marcum, where the police placed Marcum in investigatory
detention and posed questions accordingly, here, the police were executing a
search warrant. The court’s findings in this case included that the law enforcement
staging area at the QFC lot was public and had customers present in and around
the store, but then later, after Magaña Arevalo was brought there, that there were
“several LE officers/units around the staging area who had been involved in the
service of the warrant.” Magaña also recalled seeing five police cars, two or three
police vans, and five law enforcement officers in the same parking lot. After he was
awakened at 6:00 a.m. and restrained in zip-ties, not until approximately 6:44 a.m.
did Edwards remove the zip-ties. The weather was “very cold” and, after he agreed
to speak with officers, Magaña Arevalo’s options were to stay in the truck or to go
to the police station.
This was not an investigatory detention like in Marcum, in which the police
stopped Marcum because they had a reasonable suspicion he possessed
20 No. 84259-5-I/21
cannabis and asked him questions “to confirm or dispel the officer’s suspicions.”
149 Wn. App. at 910. Rather, Magaña Arevalo was in the QFC parking lot after
being restrained for nearly 45 minutes and transported from his home in a patrol
car. Though his wrist restraints were removed, the truck’s doors were not locked
and Edwards and Renggli did not display their weapons, Magaña Arevalo had
been physically in an environment controlled by the police for over 45 minutes.
After he entered the truck, he was effectively no longer in public view, and there
were still multiple officers and law enforcement vehicles in the parking lot. He
remained separated from his family. Though Magaña Arevalo himself testified the
conversation was “casual,” the defendant’s subjective view is not determinative of
the view of an objective reasonable person. Considering the totality of
circumstances, a reasonable person in Magaña Arevalo’s position would feel their
freedom was nevertheless curtailed to the degree associated with formal arrest.
Even if Magaña Arevalo’s statements on December 1 were made during a
custodial interrogation, the State argues that to the extent they were voluntary,
they are admissible under the impeachment exception even if they were obtained
in violation of Miranda safeguards. Therefore, we must examine whether Magaña
Arevalo’s December 1 statements were voluntary. 10 However, the State used
Magaña’s statements not only for impeachment purposes, but also as substantive
10 We need not address whether the December 3 statements were voluntary, as Magaña
Arevalo does not contest them on that basis; rather, he argues that they were inadmissible as fruit of the poisonous tree.
21 No. 84259-5-I/22
evidence of motive, 11 so to the extent his statements were also used as
substantive evidence, we must determine whether this constituted harmless error.
B. Voluntariness
Admission of an involuntary confession at trial violates both article I, section
9 of the Washington State Constitution and the Fifth Amendment to the United
States Constitution. State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008). To
determine whether a statement was coerced by an express or implied promise or
the exertion of improper influence, the trial court must consider the totality of the
circumstances surrounding the interrogation. Id. at 101. Coercive police activity is
necessary to find that a statement was not voluntary. Id. “[B]oth the conduct of law
enforcement officers in exerting pressure on the defendant to confess and the
defendant’s ability to resist the pressure are important.” Id.
The trial court’s findings of fact after the CrR 3.5 hearing included the finding
that Magaña Arevalo “spoke to the LE [law enforcement] officers voluntarily and
did not manifest or verbalize any hesitation or unwillingness to talk to them.”
Further, the court found that “[t]he detectives’ interaction with Magaña-Arevalo was
cordial and not coercive or aggressive,” and the detectives did not threaten,
intimidate, coerce, or incentivize Magaña Arevalo to talk or give a statement. The
11 During oral argument, the State acknowledged that Magaña Arevalo’s statements were
not admitted solely for impeachment purposes. Wash. Court of Appeals oral argument, State v. Magaña Arevalo, No.84259-5-I (Nov. 7, 2023) at 14 min., 25 sec., to 14 min, 30 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1- court-of-appeals-2023111127/?eventID=2023111127.
22 No. 84259-5-I/23
court further found that “Magaña-Arevalo was not pressured or coerced to speak
to Detectives Edwards and Renggli.”
Here, the trial court’s findings as to whether Magaña Arevalo’s statements
were made voluntarily are supported by substantial evidence presented at the CrR
3.5 hearing. Magaña Arevalo testified that he and Edwards had a “casual
conversation,” with the detective “casually questioning” him and making it clear
that “he was just trying to get to the bottom of what had occurred with respect to
Mr. Hobbs’s homicide.” The in-car video of Edwards’s first contact with Magaña
Arevalo and audio recording of the interviews demonstrate calm and non-
aggressive verbal exchanges. Edwards immediately removed Magaña Arevalo’s
restraints, offered Magaña Arevalo the choice of speaking at the station or the
truck, and honored his preference to remain at the staging area. Magaña Arevalo
acknowledged that the conversation was “pretty free and open” and he was willing
to talk to the detectives. He also testified that the detectives did not make threats
against him or offer him anything in exchange for his statement.
These findings of fact support the court’s conclusion that Detectives
Edwards and Renggli did not engage in coercive police activity. In addition, the
initial show of force at the apartment was undoubtedly intimidating, but Magaña
Arevalo acknowledged that the police presence in the QFC parking lot was
significantly less than outside the apartment. And the trial court expressly found
that Magaña Arevalo’s statements that he felt “pressured” to speak to the
Detectives were not credible. An appellate court does not disturb a trial court’s
23 No. 84259-5-I/24
credibility determination. State v. Radcliffe, 139 Wn. App. 214, 220, 159 P.3d 486
(2007). As a result, the trial court’s findings of fact as to the character of the
questioning support the conclusion that Magaña Arevalo’s statements were
voluntary.
C. Harmless Error
Magaña Arevalo argues that the erroneous admission of custodial
statements requires reversal. “To find an error affecting a constitutional right
harmless, we must find that the error was harmless beyond a reasonable doubt;
we must look only at the untainted evidence and find it is overwhelming enough to
necessarily lead to a guilty verdict.” State v. France, 121 Wn. App. 394, 400-01,
88 P.3d 1003 (2004). See also In re Pers. Restraint of Cross, 180 Wn.2d 664, 688,
327 P.3d 660 (2014) (“Constitutional errors are harmless if the untainted evidence
is so overwhelming that it leads to the same outcome.”), abrogated on other
grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). The court must
consider the entire record for a harmless error determination. State v. Romero-
Ochoa, 193 Wn.2d 341, 364, 440 P.3d 994 (2019).
1. Use of Statements for Impeachment
As discussed above, because Magaña Arevalo’s statements were
voluntary, they were admissible for impeachment purposes even if they were made
in custody without Miranda warnings. The State used Magaña Arevalo’s December
statements to impeach his testimony and to point out inconsistencies in his
statements with other evidence during closing argument.
24 No. 84259-5-I/25
For instance, Magaña Arevalo testified at trial that on the morning of
December 1, when he was awakened by the police, he did not notice anything
unusual about where his Chevrolet Tahoe was parked. He later testified he did not
know if people had used his truck. On cross-examination, he acknowledged that
on December 3, he told Edwards, “I think it’s obviously someone that knows me
took my car,” and, “I feel like this is all trying to be a setup on me.” He further
testified that when he told the detective about his car being stolen, he was talking
about his Honda, not the Chevrolet Tahoe. But he then admitted that the context
of the December 3 statement was a conversation about the Chevrolet Tahoe and
his suspected involvement in the homicide.
Further, the State highlighted the inconsistency between Magaña Arevalo’s
description of his whereabouts on the evening of the homicide in his December 1
statement and other evidence. The video from the Nike store showed that Magaña
Arevalo and his family left the store at around 5:30 p.m. on November 30. At
closing, the State argued, “[I]f you believe Mr. Magaña, back on December 1st,
2018, he says that they got home around 7:00 or 8:00 p.m. after leaving the
Factoria Mall.” The State then played this excerpt from the December 1 interview:
DETECTIVE EDWARDS: And so what time did you get back to your house?
MR. MAGAÑA AREVALO: I was out until like 7:00 or 8:00 is when I got home with my –
DETECTIVE EDWARDS: With the family.
MR. MAGAÑA AREVALO: Yeah.
25 No. 84259-5-I/26
Also, on cross-examination, the State referenced the December 1 and
December 3 interviews to elicit Magaña Arevalo’s admission that he had lied about
whether he had a phone on the evening of November 30:
Q. Okay. So you had a phone on November 30, 2018, right?
A. Yeah, I did.
Q. Okay. And that’s completely contrary to what you told Detective Edwards about the fact you lost your phone and didn’t have one, right?
A. Yeah.
Q. Okay. So you were not being truthful with Detective Edwards.
A. I didn’t want them to have my phone.
Q. So you lied to him because you didn’t want him to have your phone.
Q. And in fact we know from the evidence in this case that you were actually using a cell phone on November 30, 2018, right?
Q. Okay. And you recall that the jury’s seen the surveillance video from the Nike store, right?
Q. And in that phone -- excuse me -- in that video, as soon as you walk in you’re on your phone, right?
A. Yes.
Q. Okay. And you’re talking on your phone for quite a while as you and Julissa are inside the store shopping, correct?
26 No. 84259-5-I/27
Q. Okay. And were you using your phone at any point in Subway?
A. I don’t remember. I don’t think so.
Q. Okay. And you didn’t lie to Detective Edwards about not having a phone around the time of the murder just once, right?
A. Well, he asked me about it once.
Q. Well, he also asked you about it on December 3rd when he came back to the house, right?
Q. Right. And so same question and you gave him the same answer, right?
Q. And you lie to Detective Edwards again.
A. I didn’t want them to have my phone or my number. It was, you know, police officers. Who would want a police officer to have their phone, you know?
Q. Okay. So you lied.
A. I guess I did.
Q. Okay. You lied twice.
A. I remember lying once. I don’t remember lying a second time.
Q. Well, you just told us, sir, that you told Detective Edwards on December 1st you lost your phone, you didn’t have one. Then he followed up with you on December 3rd and you told him the same thing, didn’t you?
Q. Okay. So those were two separate lies.
27 No. 84259-5-I/28
Q. On two separate days.
A: Yeah. . . .
In closing, the State pointed out this admission and played excerpts from the
December 1 and December 3 statements:
[STATE]: And this is a still image from state’s 53 [the Nike store video] that we see on screen here. And as you can see that’s the defendant there in the gray and black jacket with Julissa and his son Julian. And you can see the defendant is clearly on his cell phone while shopping; the same phone that he denied having later on December 1st. And you’ll recall that he actually said, as you’re about to hear in this next clip, that he didn't have a phone at all at that time.
(Exhibit played in open court.)
DETECTIVE EDWARDS: Could I get your phone number?
MR. MAGAÑA AREVALO: I actually don’t have a phone number right now.
DETECTIVE EDWARDS: Do you have a phone?
MR. MAGAÑA AREVALO: No, I use my girlfriend’s phone. Her phone is (425) [xxx-xxxx].
DETECTIVE EDWARDS: [xxx-xxxx].
DETECTIVE EDWARDS: So you don’t have an actual phone?
MR. MAGAÑA AREVALO: I recently lost my phone and I can’t find it so I’m going -- I have to go get another one. ....
DETECTIVE EDWARDS: And you said -- you told us on Saturday morning that you don’t have a phone, right?
28 No. 84259-5-I/29
MR. MAGAÑA AREVALO: Yeah, I don’t have a phone. I actually lost it and stuff, and I couldn’t find it for like three days.
DETECTIVE EDWARDS: Yeah, when did you lose it?
MR. MAGAÑA AREVALO: I lost it like maybe on Thursday, or like Wednesday.
DETECTIVE EDWARDS: Okay.
(End of audio from exhibit.)
[STATE]: Now by this point you’ve heard the defendant testify in court and admit unequivocally that he lied to police about not having a phone on the day of the murder. He told you he lied not once but twice, right; once in the December 1st interview when the topic came up and again in the December 3rd interview when he was questioned about the same thing. Same lie two different times.
The State also used the December 1 statement to impeach Magaña Arevalo
regarding whether he contacted his brother after being asked by Hobbs at Subway
to do so. Magaña Arevalo testified that he “[could]n’t remember if I did try to get
ahold of him, but – I don’t know if I did or not.” On cross-examination, the State
asked about his December 1 statement when he said he did not talk with his
brother:
[STATE]: And your answer was, “No, I didn’t. I didn’t talk to him at all.” Right?
[MAGAÑA AREVALO]: Yeah, I don’t remember talking to him.
[STATE]: Okay. But in fact you did talk to him, right?
[MAGAÑA AREVALO]: I’m not sure.
[STATE]: Okay. Well let’s take a look at some of the Facebook exhibits in this case.
29 No. 84259-5-I/30
The State then showed Magaña Arevalo an exchange of messages on
Facebook with Megan Bradshaw from the evening of November 30 around 8 or 9
p.m. 12 On cross-examination, Magaña Arevalo admitted that he had spoken with
Jose on the day that Hobbs was killed and that what he had told detectives on
December 1 was not true. 13
12 These messages had been authenticated by a representative for Meta/Facebook, who
had testified and read the exchange into the record:
The second message author Megan Bradshaw. Body reads, “Cristian, I know you met up Baby J.”[ ] I think that’s supposed to say earlier but it’s spelled E-S-R-L-I- E-R. .... First message on page 833. Author is Megan Bradshaw. Body is, “What happened to him, [expletive]?” Second message. Author, Allen TGM.[ ] Body, “WTF, no, I didn’t. I’ve been with my family all day today.” Third message. Author, Megan Bradshaw. Body, “So what’s up?” Fourth message. Author, Allen TGM. Body, “F no I was with my girl and my son all day. Those foos saw me for a sec but then I left to Bellevue.” Fifth message. Author, Allen TGM. Body reads, “I don’t have time to be meeting people.” .... Author Allen TGM. Body reads, “You know I got a family and I don’t be doing no stupid,” expletive. .... Next message. Author, Megan Bradshaw. Body, “Talk to Jose.” Next message. Author, Allen TGM. Body, “You talk to him. I’m not a part of this” expletive. Next message. Author, Allen TGM. Body, “I haven’t even met up with Jose today either. I just told him I saw Baby J and I even squashed the beef with him.”
“Baby J” was a nickname by which Hobbs was known. “Allen TGM” was one of Magaña Arevalo’s Facebook names. 13 The State’s exchange with Magaña Arevalo was as follows:
Q. Okay. So based on what you told Ms. Bradshaw in that Facebook conversation, you did in fact speak with Jose on the day that Jason was killed, right?
Q. Okay. And so what you told the detectives about not having any contact with your brother that day, that was not true.
30 No. 84259-5-I/31
Then, during its closing argument, the State played two excerpts from the
December 1 interview in which Magaña Arevalo claimed not to have contacted
Jose after meeting with Hobbs at the Subway:
DETECTIVE EDWARDS: And did you talk to Jose after that?
MR. MAGAÑA AREVALO: No, I didn’t really -- I didn’t talk to him.
DETECTIVE EDWARDS: No, you started to say, “No, I didn’t really.”
MR. MAGAÑA AREVALO: No, I didn’t. I didn’t talk to him at all. ....
DETECTIVE RENGGLI: Just to clarify, so right now it’s Saturday morning.
MR. MAGAÑA AREVALO: Yeah, yeah.
DETECTIVE RENGGLI: Okay. So we’re talking Friday. Did you talk to or see Jose on Friday?
MR. MAGAÑA AREVALO: No, I didn’t.
The State argued that these inconsistencies showed Magaña Arevalo had not
been truthful in the interviews:
A. Yeah, I talked to him maybe once that day and that was because Jason and Elijah wanted me to contact him to let him know they were trying to look for him.
Q. Well, that's not what you told the detectives, is it?
A. No, it’s not.
Q. And so in fact what you represented to the detectives was not true.
A. Yes, I guess it was.
Q. Yes, it was true, or yes, it was not true?
A. It wasn’t true.
31 No. 84259-5-I/32
[STATE]: And in both clips you can hear Mr. Magaña say categorically that he did not have any contact with Jose on the day of the murder. And that simply isn’t true based on what he’s telling Ms. Bradshaw in these Facebook messages on the evening of November 30, about three hours after the murder. It’s not even true based on what Mr. Magaña admitted this morning which is that he did in fact have contact with his brother Jose that evening. Mr. Magaña evidently thought, based on the evidence, that the meeting with Mr. Hobbs was important enough to mention to Jose. The same brother that he’s been trying to convince you through his statements to police and his testimony in court that he wanted nothing to do with.
The State also used the December 3 statements to point out inconsistencies
in Magaña Arevalo’s explanation of his handling of the gun magazine, on which
his DNA was found. Magaña Arevalo testified that the day after he retrieved his
recovered stolen car, he met with people at a park, and told them the people who
taken his car had left items in it, including a gun box. He also testified that
a person named Chistoso opened the gun box, saw a gun magazine, and
asked if he could have it. Magaña Arevalo explained that his brother
grabbed the gun box and said he was going to take the magazine and sell
it to Chistoso, and that Magaña Arevalo let him take it and Jose said he
would give him $20 for it later. The State cross-examined Magaña Arevalo
about his December 3 statements, noting that he had stated variously that
he had given away the gun magazine, that he sold it to someone named
Chistoso for $20, that Jose sold it to Chistoso, and that Jose had touched
the gun magazine.
In closing argument, the State played excerpts from the December 3
interview, noting the interview was the first time Magaña Arevalo mentioned
32 No. 84259-5-I/33
finding a gun magazine after his stolen vehicle was recovered earlier that year,
after Edwards told him, “You know that DNA can be compared to the HK USP
magazine that I found at the crime scene, right?” Magaña Arevalo then said when
he found the gun case there was a magazine in there also, but he “sold it to -- I
gave it to some dude named Chistoso.” The State then continued to highlight the
inconsistent stories about who gave the gun magazine to Chistoso, playing another
excerpt from the December 3 interview.
The State’s use of the December 1 and 3 statements as discussed above
was not error because the purpose was to impeach Magaña Arevalo.
2. Use of Statements as Substantive Evidence
In addition to these efforts to impeach Magaña Arevalo, the December
statements were also used as substantive evidence regarding a critical factual
dispute: whether Magaña Arevalo had any motive to kill Hobbs. According to
Magaña Arevalo, Hobbs’s dispute was with his brother Jose, not him.
On direct, Magaña Arevalo testified that he encountered Elijah Chambers
and Hobbs outside the Subway in the parking lot. He said that Hobbs was asking
“where [Magaña Arevalo’s] brother was at” and if he could get a hold of him
because he wanted to talk to him. Magaña Arevalo further testified, “I told him that
I would try because I don’t really talk to my brother like that . . . .” He described the
conversation as “cordial” and noted once they were done, “I shook his hand.”
Asked whether “[a]t any point did you ever feel intimidated or threatened by Mr.
Hobbs or Mr. Chambers on that occasion,” he answered, “No.” However, he
33 No. 84259-5-I/34
acknowledged that in the December 1 interview, he told detectives he felt
intimidated by Hobbs because at one point, Hobbs mentioned “that he keeps his
gun tucked in his car.”
The State cross-examined Magaña Arevalo about inconsistent statements
regarding whether he had a “beef” with Hobbs:
Q. . . . . And you were saying earlier, in fact you’ve repeated throughout your testimony, that you didn’t have any sort of animosity with Jason, you didn’t have a beef with him, right?
A. I didn’t.
Q. Okay. But nonetheless in this conversation with Ms. Bradshaw in that message at the top there, you’re telling her that you had relayed to Jose that you had squashed the beef with him, right, meaning the beef with Baby J?
A. It wasn’t my beef. It was Jose’s beef with him. So I was trying to let him know that I -- I was trying to settle whatever they had going on. It was not involving me. That’s what I meant by that.
At closing, the State used Magaña Arevalo’s interview statements to
argue that Magaña Arevalo “offered either incomplete or inconsistent
descriptions to police about the encounter at Subway,” as well as that there
was “an abundance” of evidence that he harbored “a fair degree of
animosity towards Mr. Hobbs.” The State used excerpts from the December
interviews to support this argument, playing an excerpt from the December
1 interview 14:
14 To further establish that Magaña Arevalo had a direct dispute with Hobbs, the State
also played an excerpt from the December 3 interview:
MR. MAGAÑA AREVALO: I have friends that -- that spoke to me about the whole incident. And supposedly Jason Hobbs was like laughing about it saying that he
34 No. 84259-5-I/35
DETECTIVE RENGGLI: So this Jason guy –
MR. MAGAÑA AREVALO: Uh-huh.
DETECTIVE RENGGLI: -- you’ve known him?
MR. MAGAÑA AREVALO: Well, yeah, I’ve known him because it’s -- his cousin Terrell is one of the people that were involved with the shooting at my house and stuff.
DETECTIVE RENGGLI: Oh, okay.
MR. MAGAÑA AREVALO: And that’s how I found out. I know the name. And officer actually brought him up, too, when I was talking to them about the shooting at my house. Because they shot when my baby mama was outside of the house –
DETECTIVE EDWARDS: Yeah.
MR. MAGAÑA AREVALO: -- they shot at my baby mama. They shot at my kid. He was inside the car. And I was -- at the moment I was helping someone with a job and stuff. And she calls me telling me about the shooting and stuff –
MR. MAGAÑA AREVALO: -- so I went over there and then they had already names. They had like a bunch of names about different people and stuff.
The State noted that in the initial December 1 statement, knowing Hobbs
had been murdered and that he was being questioned in connection with his death,
was involved, saying that he was one of the shooters that shot at my house and all that, and that he was just like bragging –
DETECTIVE EDWARDS: Jason said that?
MR. MAGAÑA AREVALO: Yeah, he was like bragging about that he was -- that he was one of the main ones and all that.
35 No. 84259-5-I/36
Magaña Arevalo “conveniently neglected to mention that he met Mr. Hobbs on the
day of the killing.” The State then played an excerpt from the second December 1
interview, highlighting that he described the meeting as a cordial, regular
conversation:
MR. MAGAÑA AREVALO: They parked there to -- they called me over to their car and I talked to them for a second. And as soon –
DETECTIVE EDWARDS: Just cordial like?
MR. MAGAÑA AREVALO: Yeah, just cordial.
DETECTIVE EDWARDS: No problem.
MR. MAGAÑA AREVALO: Just like, you know, just regular conversation and stuff. And then right after that I just hopped in my car. I left. And I seen that they were just going to get some food and stuff. And that’s it. That's all that happened.
DETECTIVE EDWARDS: Any mention about any riffs or any problem between the two of you?
MR. MAGAÑA AREVALO: No, there was no mentions about nothing like that.
The State then played an excerpt from the same recording where Magaña Arevalo
made a contrary suggestion that Hobbs was threatening his life:
DETECTIVE EDWARDS: Well, how was Jason being to you?
MR. MAGAÑA AREVALO: He looked like he was like, I don’t know, like mad at me or something. Like he was just like trying to threaten my life or something. He was like threatening me and stuff like –
DETECTIVE EDWARDS: Yeah -- go ahead.
MR. MAGAÑA AREVALO: Yeah, he was threatening me saying he has his gun tucked. And I was just like, “Okay, good for you.” You know what I mean? And I was like, “You see I’m with my family right now. I don’t -- I don’t do none of that street stuff. I’m always
36 No. 84259-5-I/37
with my family. My girl’s pregnant. My son is – he’s getting old. You know, what I mean? I don’t have time to be out and about with people. You know what I mean?”
The State argued that the latter statement, that he was intimidated or fearful, was
“clearly calculated” to “make him look like a potential victim rather than an
aggressor.”
3. Untainted Evidence
Because the custodial statements were used for a substantive purpose, to
establish Magaña Arevalo’s motive, we must look to whether untainted evidence
would lead to the same conclusion as to whether Magaña Arevalo had a “beef”
with Hobbs. There were multiple sources other than the December statements for
such evidence. Hobbs’s girlfriend, Amani Gipson, testified that Hobbs called her
on the afternoon of November 30 and told her that he had run into Magaña Arevalo
at Subway. He also told her that they planned to “meet up” and that the purpose
of the meeting was “to get the fight over and done with, so that they wanted to
fight.”
Similarly, Egan-McCoy described how Hobbs was at his house on
November 30 and told him that he intended to meet up with both Jose and Cristian.
Hobbs told Egan-McCoy that “he was trying to settle a beef that he was tired of
running from because he was about to have a baby and he didn’t want to deal with
it.” Egan-McCoy further testified that Hobbs told him the location of the planned
meet up was at Chambers’s apartment, and that no guns were supposed to be
involved. Egan-McCoy followed Hobbs there and parked nearby and could hear
37 No. 84259-5-I/38
Chambers and Hobbs talking, as he asked Hobbs to leave the phone on
speaker phone. He waited a long time and then hung up and called Hobbs
back, because he thought the amount of time that had gone by was
“suspicious.” Hobbs mentioned he would call one of the brothers, and
Hobbs and Egan-McCoy planned to meet back at Egan-McCoy’s apartment
complex five minutes away.
The State also entered into evidence a series of Facebook messages
between Magaña Arevalo and Megan Bradshaw, from the evening of
November 30, after the homicide, in which she said she knew he had met
up with Hobbs and asked what happened. He messaged her that, “I haven’t
even met up with Jose today either. I just told him I saw Baby J and I even
squashed the beef with him.”
Thus, even without the December statements, there were multiple sources
of evidence of a “beef” between Magaña Arevalo and Hobbs. In addition to that
evidence on the issue of motive, there was also overwhelming untainted evidence
to necessarily lead to a guilty verdict.
As noted above, Magaña Arevalo testified that Hobbs had been involved in
a shooting at his uncle’s house while Magaña Arevalo’s girlfriend and child were
present. Video from Subway shows Hobbs, Chambers, and Magaña Arevalo met
the afternoon of November 30. The jury heard evidence that Magaña Arevalo and
his brother Jose had a “beef” with Hobbs and they all planned to meet at
Chambers’s apartment to settle the conflict. Egan-McCoy also testified that
38 No. 84259-5-I/39
Chambers had coordinated a meeting to settle the dispute, Chambers’s cell phone
records show numerous calls between himself and Hobbs, Magaña Arevalo, and
Jose. The shooting took place right outside of Chambers’s apartment.
The gun used in the shooting was never recovered. An HK gun magazine
found at the scene had DNA on it consistent with that taken from Magaña Arevalo
pursuant to the search warrant. During the search of Magaña Arevalo’s and his
girlfriend’s apartment, police located an empty HK gun case in a closet. Magaña
Arevalo claimed he had found the gun case in his Honda after the vehicle had been
stolen and recovered. However, the police officer who recovered the Honda
testified that he had searched the vehicle upon its recovery and had not seen the
gun case.
Surveillance footage from Subway and the Nike store showed Magaña
Arevalo wearing a two-toned jacket like the one worn by the shooter in the video
of the shooting. 15 Eyewitnesses gave various descriptions of the two men involved
in the altercation with Hobbs, as well as the shooter. While two witnesses testified
that the shooter was African American, one witness testified the two men were
“Hispanic-looking.”
Evidence of the distances between Magaña Arevalo’s apartment and the
scene, the drive times between the locations, and his phone location data
established a timeline that showed Magaña Arevalo could have been present at
15 Magaña Arevalo testified that his mother had given him and Jose the same two-toned
jackets in different colors for Christmas the year before. Cristian’s jacket was black and gray, while Jose’s was “darker color, green or blue.”
39 No. 84259-5-I/40
Chambers’s apartment complex at the time the homicide occurred. Multiple
witnesses saw an SUV, specifically a Chevrolet Tahoe, in the area when Hobbs
was killed. One witness testified that the SUV was blue. Surveillance video from
the apartment complex captured a Chevrolet Tahoe with shiny rims at the time of
the altercation. The video and witness description of the car were consistent with
Magaña Arevalo’s vehicle that had aftermarket rims and two white stickers on the
rear bumper.
The untainted evidence—that is, without Magaña Arevalo’s statements that
were used as substantive evidence—was overwhelming and establishes beyond
a reasonable doubt that the outcome would have been the same without Magaña
Arevalo’s statements. Thus, even if Magaña Arevalo’s custodial statements made
without Miranda warnings were erroneously admitted and used as substantive
evidence, any error was harmless.
II. Zoom Voir Dire
Magaña Arevalo contends for the first time on appeal that his jury trial rights
were violated by the trial court’s decision to conduct remote voir dire by Zoom. A
party generally waives its right to appeal without a timely objection at trial. State v.
Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). However, a party may raise
a “manifest error affecting a constitutional right” for the first time on appeal. RAP
2.5(a)(3).
“For a claim of error to qualify as a claim of manifest error affecting a
constitutional right, the defendant must identify the constitutional error and show
40 No. 84259-5-I/41
that it actually affected his or her rights at trial.” State v. Lamar, 180 Wn.2d 576,
583, 327 P.3d 46 (2014). We do not assume the alleged error is of constitutional
magnitude, but “look to the asserted claim and assess whether, if correct, it
implicates a constitutional interest.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d
756 (2009). Additionally, the defendant must show the claimed error has “practical
and identifiable consequences.” Lamar, 180 Wn.2d at 583.
Magaña Arevalo claims Zoom voir dire violated his “right to in-person jury
selection under article I, section 21 of the Washington Constitution.” Article I,
section 21 states, “[t]he right of trial by jury shall remain inviolate.” The purpose of
this article “was to preserve inviolate the right to a trial by jury as it existed at the
time of the adoption of the constitution.” State v. Smith, 150 Wn.2d 135, 150-51,
75 P.3d 934 (2003). According to Magaña Arevalo, this right includes the right to
in-person jury selection.
However, this court has recently held that article I, section 21 “governs
under what circumstances a litigant is afforded the right to a jury trial” rather than
the selection of a jury. State v. Booth, 24 Wn. App. 2d 586, 604, 521 P.3d 196
(2022), review denied, 1 Wn.3d 1006, 526 P.3d 849 (2023). 16 As a result, Magaña
Arevalo’s claim that conducting voir dire via Zoom violated article I, section 21, fails
16 In an unpublished opinion, this court recently rejected a challenge to Zoom voir dire
under article I, section 21, relying on Booth. See State v. Morris, No. 83157-7-I, slip op. at 26 (Wash. Ct. App. Jan. 22, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/831577.pdf (citing Booth, 24 Wn. App. 2d at 604-05). While Morris is not binding on us, we find its reasoning persuasive and may properly cite and discuss it as “necessary for a reasoned decision.” GR 14.1(c).
41 No. 84259-5-I/42
to establish an error of constitutional magnitude as required for review under RAP
2.5(a)(3). 17 We decline to consider his unpreserved claim.
III. Request for Exceptional Sentence
Magaña Arevalo requested an exceptional downward sentence of 180
months on the count of murder in the first degree, below the standard range of 240
to 320 months in prison, based on the mitigating factor of his youth; he was 21
years old at the time of the offense. The State requested a high-end sentence of
320 months and argued that the offense carried a mandatory minimum of 240
months pursuant to RCW 9.94A.540(1)(a), so the court did not have discretion to
impose a mitigated sentence. The trial court declined Magaña Arevalo’s request
and sentenced him to the top of the standard range for murder in the first degree,
320 months.
Under the Sentencing Reform Act (SRA), a sentence within the standard
range is not appealable. RCW 9.94A.585(1). “However, this prohibition does not
bar a party’s right to challenge the underlying legal conclusions and determinations
by which a court comes to apply a particular sentencing provision.” State v.
Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003). On appeal, Magaña Arevalo
17 To the extent Magaña Arevalo challenges the use of Zoom voir dire as “unfairly and
unduly” restricting his ability to select a jury on other grounds, he also does not establish a manifest error affecting a constitutional right. While he contends that “[t]he error is plain from the record on review,” this oversimplifies his required showing. The fact that the court used Zoom, and the process of remote voir dire, may be obvious in the record, but Magaña Arevalo does not point to an error of constitutional dimension with a practical and identifiable consequence resulting from Zoom voir dire. Magaña Arevalo has failed to carry his burden to demonstrate a manifest error effecting a constitutional right in order for this court to reach an otherwise unpreserved error under RAP 2.5.
42 No. 84259-5-I/43
argues the trial court erroneously concluded it did not have discretion to depart
below the mandatory sentence and refused the mitigated sentence based on
youthfulness. Indeed, a trial court errs “when it operates under the ‘mistaken belief
that it did not have the discretion to impose a mitigated exceptional sentence for
which [a defendant] may have been eligible.’ ” State v. McFarland, 189 Wn.2d 47,
56, 399 P.3d 1106 (2017) (quoting In re Pers. Restraint of Mulholland, 161 Wn.2d
322, 333, 166 P.3d 677 (2007)).
Here, however, the record shows that the trial court considered Magaña
Arevalo’s youthfulness when sentencing, as it stated, “I’ve considered all the
factors that are appropriate under Washington statutes and case law, including Mr.
Magaña’s age, youthfulness, maturity.” While the trial court stated, “[t]he downward
exception argued for by the defense is not currently available”—which suggests
that it misunderstood its discretion—the court continued, “but, even if it were
available, I would not impose the downward exception requested by the defense.”
Thus, the trial court explicitly stated that it had considered Magaña Arevalo’s age,
youthfulness, and maturity, yet it still denied the mitigated sentence. “[A] trial court
that has considered the facts and has concluded that there is no basis for an
exceptional sentence has exercised its discretion.” State v. Garcia-Martinez, 88
Wn. App. 322, 330, 944 P.2d 1104 (1997). Moreover, in sentencing Magaña
Arevalo to the top of the standard range, the trial court demonstrated no inclination
to exercise its discretion to impose even a lesser sentence within the standard
range, much less an exceptional downward sentence. See In re Pers. Restraint of
43 No. 84259-5-I/44
Meippen, 193 Wn.2d 310, 317, 440 P.3d 978 (2019). We reject Magaña Arevalo’s
claim that the court erred by sentencing him to a standard range sentence.
IV. Statement of Additional Grounds
Magaña Arevalo submitted a statement of additional grounds for review
alleging prosecutorial misconduct, ineffective assistance of counsel, improper
admission of hearsay evidence, and insufficient evidence. 18
A. Prosecutorial Misconduct
Magaña Arevalo contends the prosecutor committed misconduct by
misrepresenting evidence in trial, specifically by arguing that his cellphone was
never recovered. According to Magaña Arevalo, this statement portrayed him “as
someone that withheld and got rid of evidence.”
When considering a claim of prosecutorial misconduct, we determine
whether the defendant was prejudiced under one of two standards of review. State
v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). If the defendant made a
timely objection at trial, he must demonstrate that any improper conduct by the
State “resulted in prejudice that had a substantial likelihood of affecting the jury’s
verdict.” State v. Allen, 182 Wn.2d 364, 375, 341 P.3d 268 (2015). But if a
defendant does not object at trial, “the defendant is deemed to have waived any
error, unless the prosecutor’s misconduct was so flagrant and ill intentioned that
18 Magaña Arevalo identifies an evidentiary matter as one basis for his claim of ineffective
assistance of counsel, but as he fails to provide any argument or authority on that purported error, we need not analyze it.
44 No. 84259-5-I/45
an instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at
760-61.
Because Magaña Arevalo did not object at trial, we review the prosecutor’s
comment under the heightened standard, so Magaña Arevalo must show that (1)
no curative instruction could have eliminated the prejudicial effect and (2) there
was a substantial likelihood the misconduct resulted in prejudice that affected the
jury verdict. Emery, 174 Wn.2d at 761. “Reviewing courts should focus less on
whether the prosecutor’s misconduct was flagrant or ill intentioned and more on
whether the resulting prejudice could have been cured.” Id. at 762. Prejudice is
incurable when the jury’s impartiality has been so undermined that a fair trial is no
longer possible. Id. We consider the allegedly improper statements within the
context of the entire case. State v.Thorgerson¸172 Wn.2d 438, 443, 258 P.3d 43
(2011); see also State v. Pierce, 169 Wn. App. 533, 552, 280 P.3d 1158 (2012)
(we review statements “in the context of the entire argument, the issues in the
case, the evidence addressed in the argument, and the instructions to the jury”).
Magaña Arevalo cites to a specific statement made by the prosecutor as
improper: “[T]he phone that Mr. Magaña-Arevalo, the phone the [S]tate believes
he was using during the relevant time period and during the commission of the
offense [ ] was never recovered by police.” However, this statement was made
outside the presence of the jury. Therefore, no curative instruction was necessary,
and Magaña Arevalo cannot establish a substantial likelihood of prejudice that
affected the jury verdict, as the jury never heard this statement by the prosecutor.
45 No. 84259-5-I/46
Moreover, at trial, there was evidence that the police did not recover
Magaña Arevalo’s phone. “[T]he State has wide latitude to argue inferences from
the evidence.” Pierce, 169 Wn. App. at 553. Edwards testified that T-Mobile
records showed Magaña Arevalo’s phone number as related to a specific phone,
a Samsung J3 Prime. While the RPD recovered three different cell phones during
the search of the apartment pursuant to the warrant, none of those included a
Samsung J3 Prime. 19 As a result, Edwards concluded the police did not recover a
phone associated with Magaña Arevalo’s phone number.
Magaña Arevalo does not identify any comment by the State in the
presence of the jury to which he objected or that was so flagrant and ill intentioned
that an instruction could not have cured the resulting prejudice. Therefore, Magaña
Arevalo’s claim of prosecutorial misconduct fails.
B. Ineffective Assistance of Counsel
Magaña Arevalo also alleges ineffective assistance of counsel because his
lawyers “failed to inform the jury that the photo of me was not picked in the photo
lineup that was shown to the eyewitnesses for identification purposes.” The Sixth
Amendment of the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. State v.
Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To prevail on a claim of
19 The jury also heard evidence that Magaña Arevalo owned a Samsung phone when he
first acquired the phone number but subsequently lost the phone and purchased an iPhone as a replacement. Further, Magaña Arevalo testified that the iPhone was seized pursuant to a search warrant, but no evidence from that phone was presented at trial.
46 No. 84259-5-I/47
ineffective assistance of trial counsel, a defendant must prove both deficient
performance and prejudice. State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776
(2015). Establishing deficient performance requires a showing that counsel’s
representation fell below an objective standard of reasonableness based on all the
circumstances. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Of the three eyewitnesses who provided physical descriptions of the
suspects, two described the suspects as African American. The third witness
testified that the two suspects were “Hispanic-looking” and was shown two photo
montages. The witness identified the first suspect in one of the photo montages.
For the second suspect, he “identified two photos in there that resembled the
second suspect, but no photo directly that resembled one person.” The witness
testified that the two faces combined would have built a good picture of the second
suspect. None of this eyewitness’s testimony indicated that he chose Magaña
Arevalo from either photo montage. In fact, during closing arguments, the State
acknowledged that this witness was unable to pick Magaña Arevalo out of a photo
montage.
Contrary to Magaña Arevalo’s contention that his counsel did not inform the
jury that the eyewitnesses did not pick his photo, defense counsel highlighted this
fact for the jury during closing argument. Defense counsel also reminded the jury
that the other two eyewitnesses described the shooter as African American.
Defense counsel’s performance did not fall below an objective standard of
47 No. 84259-5-I/48
reasonableness and was not deficient. Magaña Arevalo cannot establish a claim
for ineffective assistance of counsel on this basis.
C. Hearsay Statements
Magaña Arevalo claims that testimony by Hobbs’s girlfriend, Amani Gipson,
and his friend Phillip Egan-McCoy was inadmissible hearsay.
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. ER 801. Generally, hearsay evidence is not admissible unless subject to
an exception under rule or statute. ER 802. We review whether or not a statement
was hearsay de novo. State v. Hudlow, 182 Wn. App. 266, 281, 331 P.3d 90
(2014). We review whether an exception to the hearsay rule applies for abuse of
discretion. State v. Carte, 27 Wn. App. 2d 861, 877, 534 P.3d 378 (2023).
1. Amani Gipson’s Testimony
Rather than specify the statements from Gipson’s testimony that he
challenges, Magaña Arevalo contends that all of her statements were inconsistent
and hearsay. In particular, he claims that Gipson made inconsistent statements to
police and his lawyers prior to trial. Magaña Arevalo’s challenge to Gipson’s
testimony appears to be concerned with this inconsistency, rather than whether it
is hearsay under ER 801.
At trial, Gipson testified that Hobbs called her from Subway and explained
that he had run into Magaña Arevalo and they planned to meet up later to fight. On
cross-examination, Magaña Arevalo’s attorney raised the issue of prior statements
Gipson made to the police in which she said Chambers told her about the meeting
48 No. 84259-5-I/49
at Subway. During an interview with defense attorneys, Gipson said she could not
remember whether Hobbs had mentioned Magaña Arevalo, but she was certain
he had mentioned Jose. Magaña Arevalo’s own attorneys introduced Gipson’s
prior statements as impeachment evidence and purposefully highlighted the
inconsistency to undermine Gipson’s testimony. Because evidence was
introduced as impeachment rather than for the truth of the matter asserted, it was
not hearsay. The court did not abuse its discretion in allowing this evidence.
2. Phillip Egan-McCoy’s Testimony
Magaña Arevalo argues that Egan-McCoy’s testimony included
inadmissible hearsay when he said, “he was on the phone listening to the victim
and an unknown individual talk about meeting with two brothers. He wasn’t sure
who the two brothers were.”
Prior to Egan-McCoy’s testimony, the parties discussed the admissibility of
his statements as to what he heard on the open phone line. The court determined
that proposed testimony from Egan-McCoy that he heard someone say the
brothers were five to 10 minutes out was inadmissible hearsay. But the parties
agreed to the admission of the statement “Hobbs told him that he was leaving and
to meet at Egan-McCoy’s house.” Magaña Arevalo does not object to this ruling.
Egan-McCoy testified that he had Hobbs “leave his phone on speaker
phone in his pocket” so Egan-McCoy “could hear what was going on.” According
to Egan-McCoy, after a substantial time had elapsed, he became suspicious and
called Hobbs to tell him to leave the designated meeting location. Hobbs then said
49 No. 84259-5-I/50
he had called one of the brothers, but Egan-McCoy was not sure whether Hobbs
meant Magaña Arevalo or Jose. This exchange occurred during the State’s cross-
examination of Egan-McCoy:
Q. At any point did you hear Mr. Hobbs mention the brothers on the phone? A. Yeah, he called him. Q. Okay. And what do you mean by he called him? A. When I called him, he -- because I called him and was like too much time’s gone by so he called them to see where they were. And it was just – seemed suspicious to me so I told him to get out of there and meet me at my house. And that was what we were supposed to do after that. Q. And when you say he called him, who are you referring to? Jason called who exactly? A. I’m not sure which one it was but either Cristian or Jose.
The State tried to elicit whether Chambers ever mentioned the brothers
were coming, but Magaña Arevalo objected on hearsay grounds and the trial court
sustained the objection. This was the extent of Egan-McCoy’s testimony on this
issue. The court excluded Egan-McCoy’s hearsay statements and did not abuse
its discretion in admitting Egan-McCoy’s nonhearsay testimony.
D. Sufficiency of the Evidence
“Evidence is sufficient to support a conviction if, after viewing the evidence
in the light most favorable to the State, it allows any rational trier of fact to find all
of the elements of the crime charged beyond a reasonable doubt.” State v.
DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). A challenge to the sufficiency
of the evidence admits the truth of the State’s evidence and all reasonable
inferences therefrom. Id. To convict on the charge of murder in the first degree the
State was required to prove beyond a reasonable doubt that Magaña Arevalo
50 No. 84259-5-I/51
acted with premeditated intent to cause Hobbs’s death and Hobbs died as a result
of Magaña Arevalo’s acts. See RCW 9A.32.030(1)(a); State v. Hummel, 196 Wn.
App. 329, 354, 383 P.3d 592 (2016.)
Magaña Arevalo contends the State failed to provide sufficient evidence
because the case consisted of circumstantial evidence and “[t]here was a lot of
inconsistency and ambiguous evidence in the case.” Magaña Arevalo’s SAG then
points out conflicting eyewitness testimony presented to the jury.
“An essential function of the fact finder is to discount theories which it
determines unreasonable because the finder of fact is the sole and exclusive judge
of the evidence, the weight to be given thereto, and the credibility of witnesses.”
State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999). Here, the jury
assessed the eyewitness and other evidence as directed by the trial court’s
instructions. Direct and circumstantial evidence are equally reliable in determining
sufficiency of the evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470
(2010). As discussed above in the harmless error analysis, the State presented
overwhelming evidence from which the jury could conclude beyond a reasonable
doubt that Magaña Arevalo committed the crime as charged. Likewise, viewed in
the light most favorable to the State, based on the evidence presented at trial, any
rational trier of fact would find all the elements of the crime charged proved beyond
a reasonable doubt.
51 No. 84259-5-I/52
CONCLUSION
Magaña Arevalo’s statements to police were made without Miranda
warnings and were made during a custodial interrogation. However, because they
were voluntary they were admissible as impeachment evidence. While the State
also used the statements as evidence of motive, the same motive was introduced
and argued with independently admissible evidence. Moreover, admission of
Magaña Arevalo’s statements was harmless in light of the overwhelming untainted
evidence. Magaña Arevalo’s challenge to voir dire conducted by Zoom
videoconferencing does not raise an issue of constitutional magnitude in order to
warrant review under RAP 2.5. The trial court properly exercised its discretion and
considered Magaña Arevalo’s youth as a mitigating factor for sentencing and did
not err by imposing a standard range sentence. Finally, Magaña Arevalo’s
statement of additional grounds fails to raise any issues requiring reversal.
Affirmed.
_____________________________
WE CONCUR:
____________________________ _____________________________
Related
Cite This Page — Counsel Stack
State Of Washington, V. Cristian A. Magana-arevalo, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-washington-v-cristian-a-magana-arevalo-washctapp-2024.