FILED JUNE 28, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 37344-4-III Respondent, ) ) v. ) ) EDUARDO S. MARTINEZ, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. — Twenty-three years after then-nearly-15-year-old Eduardo S.
Martinez is alleged to have raped his two young stepbrothers, and 20 years after the
youngsters’ allegations came to light and were charged as crimes, Eduardo1 was located
across the country. He waived extradition, returned to Benton County, and in a fourth
trial—following three mistrials—was convicted of the charges. He assigns error to what
he contends were (1) a violation of his constitutional right to a speedy trial, (2) the trial
1 To avoid confusion given the number of parties and witnesses with the common paternal or maternal surnames, we refer to the members of those families by their first names. We intend no disrespect. No. 37344-4-III State v. Martinez
court’s abuse of discretion in granting a motion for joinder of his prosecution with that of
his brother, (3) its abuse of discretion in declaring the third trial a mistrial, and (4) its
abuse of discretion in denying his motion for a new trial.
No constitutional speedy trial challenge was raised in the trial court, so the State
had no reason to fully develop its explanation for the delay in bringing Eduardo to trial.
In addition, disputes over responsibility for the delay will need to be resolved. Eduardo
must raise that challenge through a collateral attack.
We reject Eduardo’s remaining challenges. In a contemporaneous appeal, the
panel grants relief to Eduardo’s brother Alejandro for errors made at sentencing due to
changes in law from the time of the 1995 crimes. In the interest of sentencing
consistency, we grant the same relief to Eduardo. We affirm his convictions but remand
for resentencing.
FACTS AND PROCEDURAL BACKGROUND
In 1993, Urbina Martinez Miranda met and married Santiago P.V.2 in Mexico.
Urbina had children from prior relationships, including the defendant, Eduardo S.
Martinez and his older brother Alejandro Ocampo Martinez. Santiago brought three
children of his own into the marriage who we will refer to pseudonymously as Emiliano,
2 To protect the privacy of Santiago’s sons we substitute pseudonyms for first names and initials for surnames. See Gen. Orders of Division III, In re Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012).
2 No. 37344-4-III State v. Martinez
Julian, and Rodrigo. Soon after the marriage, the couple, Eduardo, and Santiago’s sons
immigrated to the United States and settled in Prosser. Alejandro was already living in
the United States, having moved to Grandview in 1991.
For about a year, the family lived in a single wide trailer in a mobile home park on
Highway 22. In the summer of 1995, Santiago purchased a recreational type trailer and
located it in a trailer park behind the Burger King in Prosser (hereafter the “Prosser trailer
park”). Members of the family other than Alejandro lived in the trailer. Alejandro
continued to live in Grandview but occasionally stayed at the Prosser trailer.
That year, Urbina and Santiago separated several times. They eventually
divorced. During one of the separations, Santiago moved with his three children to
Grandview and the children enrolled at Whitstran Elementary. The two families never
saw or heard from each other again.
Three years later allegations of sexual abuse to Julian and Emiliano came to light
when a parent of a Whitstran student brought to the school’s attention an explicit drawing
that had circulated on the school bus. It bore Julian’s name. Most prominent in the
drawing was a depiction of a man having anal sex with a woman. The principal of
Whitstran Elementary, Sarah Juzeler, met with fourth-grader Julian to discuss the
drawing bearing his name.
Julian initially denied creating the drawing, but before long admitted authorship
and disclosed he had been sexually abused three years earlier by his stepbrother Eduardo.
3 No. 37344-4-III State v. Martinez
Principal Juzeler determined from school records that Julian and his brother Emiliano, a
fifth-grader at the school, had lived in the Prosser trailer park in the fall of 1995. As a
mandatory reporter, Principal Juzeler notified Child Protective Services (CPS) of what
she had been told.
The allegation was referred to the Benton County Sheriff’s Office and Detective
Lee Cantu undertook the investigation in late September 1998. He and Mary Santoy, a
sexual assault counselor, conducted interviews of Julian and Emiliano at Whitstran
Elementary.
According to Detective Cantu, Julian told him that Eduardo had sexually abused
him. He told the detective he believed Eduardo and Urbina still lived at the Prosser
trailer park. The detective then spoke with Emiliano, who told the detective that both
Eduardo and Alejandro had sexually abused him. Like Julian, Emiliano believed
Eduardo and Urbina were still living at the Prosser trailer park.
Detective Cantu contacted the boys’ father, Santiago, who disclaimed any
knowledge of the abuse, which was never reported to him by either Emiliano or Julian.
According to Detective Cantu, Santiago also told him that Eduardo was living at the
Prosser trailer park, and told him he believed Alejandro was in New York.
On October 12, Detective Cantu went to the Prosser trailer park in hopes of
finding Eduardo and Alejandro. He went to the manager’s mobile home and knocked on
the door, but no one answered. A handwritten sign in the window identified “Alejandro
4 No. 37344-4-III State v. Martinez
Martinez” as the manager, and provided a telephone number, which the detective called.
The individual who answered spoke English and identified himself as Alejandro
Martinez. The detective told Alejandro that his name had been provided in connection
with a case the nature of which he did not identify, and he would like to speak with him.
Alejandro said he was at work and would not get off until 5 p.m., but he provided the
name of the produce warehouse where he was working and Detective Cantu drove there
to meet with him.
On arriving, the detective contacted the warehouse manager and asked if he had an
employee by the name of Alejandro Martinez. The manager said no, but they did have an
employee named Ricardo Martinez. The detective met with this employee who verbally
identified himself as Alejandro Martinez but provided no identification. According to the
detective, Alejandro said he was fluent in English and preferred to communicate with the
detective in English. He waived his Miranda3 rights. An advice of rights form that was
later offered as evidence includes Alejandro’s name, a date of birth, address, and phone
number, handwritten by Detective Cantu. According to Detective Cantu, Alejandro
affirmed that he still lived at the Prosser trailer park with Eduardo and his mother.
Detective Cantu asserts that, at the inception of the interview, he told Alejandro he
was investigating an “incident” involving Emiliano and Julian that occurred in the fall of
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5 No. 37344-4-III State v. Martinez
1995 but did not specifically describe it as sexual abuse. Report of Proceedings (RP)
(Trial)4 at 630. Alejandro told the detective he remembered the incident but “it was very
hard for him to talk about.” RP (Trial) at 639. Alejandro then gave a written statement to
the detective in Spanish, which translated to: “Me, Alejandro, did that with [Emiliano]
one time,” with no identification of what “that” was. RP (Trial) at 643.
Detective Cantu told Alejandro he would be charged with rape of a child in the
first degree. He did not immediately book Alejandro due to overcrowding issues at the
jail, however. According to the detective’s notes of the interview, he spoke with
Alejandro for a little over 40 minutes.
Three days later, the detective tried to contact Alejandro and Eduardo at the
Prosser trailer park but found no one. Alejandro also did not answer calls to the phone
number Detective Cantu had reached him at before. Detective Cantu forwarded
information to the prosecutor that resulted in charges being filed. An information filed
on November 2, 1998, charged Alejandro S. Martinez with one count of rape of a child
(Emiliano) in the first degree under former RCW 9A.44.073 (1988). An information
filed on December 14, 1998, charged Eduardo S. Martinez with two counts of rape of a
child in the first degree under former RCW 9A.44.073 (1988), one addressed to the
alleged rape of Emiliano and the other addressed to the alleged rape of Julian. A motion
4 “RP (Trial)” refers to the three consecutively-paginated volumes reported by Cheryl Pelletier that include the final trial taking place in September and October 2019.
6 No. 37344-4-III State v. Martinez
asking the juvenile court to decline jurisdiction of the charges against Eduardo was filed
at the same time. Warrants were issued in 1998 for both brothers’ arrest.
Detective Cantu would later testify at trial that the warrants issued “were placed in
the system. The national system as well as the local [system],” but that he took no other
steps to locate Alejandro or Eduardo. RP (Trial) at 650. He explained, “We had no, no
location or . . . approximate location where they might have gone to . . . . Although New
York state is not a large state, it’s heavily populated [and] New York City’s a heavily
populated city. So we had no, no where [sic] to start.” RP (Trial) at 650. The record
does not reveal that any action was taken on the charges for over two decades.
In the years that passed, Eduardo and Alejandro moved to Connecticut, worked,
married, purchased homes, and started families. It appears that during this time frame,
Alejandro consistently went by “Alex,” not Alejandro, and often used his paternal
surname Ocampo, with or without his maternal surname Martinez. (We refer to him
hereafter as Alex, except when we describe the testimony of witnesses who referred to
him as Alejandro.)
In November 2018, Eduardo was driving on a Connecticut highway when
someone rear-ended him. The police responded to the accident and a check of Eduardo’s
identification documentation that he provided at their request turned up an outstanding
arrest warrant for a Connecticut driving under the influence (DUI) charge from October
7 No. 37344-4-III State v. Martinez
1997. According to Eduardo, he had failed to resolve that old charge because he had
caused an accident at the time, and he became concerned that he might be jailed or even
deported.
It was in connection with the continued prosecution of the old DUI charge that
Connecticut police became aware of the outstanding Washington warrant and associated
charges. The State obtained fugitive from justice warrants for Alex and Eduardo, who
turned out to be living next to each other in a duplex in Bridgeport. Both were arrested a
few weeks later.
Eduardo waived extradition and Detective Cantu traveled to Connecticut to
transport him to Washington. He was arraigned on his charges on March 25, 2019.
Alex returned to Washington to surrender himself. He was arraigned on May 1,
2019. At arraignment, Alex’s lawyer told the court that the State’s charges were against
Alejandro S. Martinez, which was incorrect, and that his client’s name was Alex Ocampo
Martinez. He also told the court that the State’s birthdate for his client was also incorrect.
The prosecutor responded that the State’s position was that Alejandro had adopted a
different name and date of birth after becoming aware of the molestation investigation
and charges. The State has never changed its identifying information for Alejandro.
8 No. 37344-4-III State v. Martinez
Eduardo’s first trial on the charges began on May 13, 2019, shortly after Alex was
arraigned. It ended in a mistrial on Eduardo’s motion after Detective Cantu, called as a
rebuttal witness, mentioned that Eduardo had invoked his right to counsel.5
On May 31, the State filed a motion to join its cases against Alex and Eduardo and
consolidate them for trial. The motion was granted and a second trial, this time against
both brothers, began on June 24. The second trial ended in a mistrial after the jurors
informed the court they were deadlocked with no hope of reaching a verdict.
A third trial began on August 26. It ended in a mistrial on Alex’s motion, after
counsel for Eduardo was perceived by the trial court to have breached an in limine order.
In response to the State’s motion in limine that “all parties . . . be prohibited from
mentioning at trial that the defendant has no prior criminal convictions or suggesting that
he is a ‘law abiding citizen,’” Clerk’s Papers (CP) at 395, the trial court had ruled:
5 The prosecutor questioned Detective Cantu about a couple of incriminating statements Eduardo allegedly volunteered on the drive to LaGuardia Airport. She was wrapping up when she asked the following question and received the following response: Q. And the other information that he provided to you, was that in response to a specific question or was that small talk that he made during the course of the trip? A. There was no questions asked of him. He had invoked his right to an attorney at the courthouse when I first met him. RP (Trial 1) at 225. “RP (Trial 1)” refers to the single volume reported by Renee L. Munoz that includes the proceedings taking place in May 2019, including the aborted first trial. Defense counsel’s objection was sustained and the mistrial granted. Id.
9 No. 37344-4-III State v. Martinez
Case law says that lack of criminal history or, essentially, what’s reverse 404(b) is not admissible in the first instance. It’s excluded. If counsel believes that there is evidence that’s come in that changes what would otherwise be the default rule, that will need to be addressed outside of the jury in the first instance. So granted at this time. Counsel can raise the issue if they believe that the situation has changed.
RP (Trial 3)6 at 81.
Most concerning to the trial court were Eduardo’s lawyer’s statements during his
opening statement that after Eduardo returned to Connecticut in 1998, “years go by. And
there’s no indication that Eduardo did anything but work, obey the law, play with his
kids, raise a family, give credits as best he could to his community,” and that the police
“don’t find Eduardo being picked up on kidnapping children or having child pornography
or anything of the sort. They find Eduardo for one reason: Somebody else rear-ended
him.” RP (Trial 3) at 584-85 (emphasis added). Alex’s lawyer expressed concern that
unlike the case with Eduardo, jurors would not be told that Alex had been law-abiding for
the prior 20 years. The court granted the request for a mistrial, explaining, “There’s no
instruction that I can give that can assure me that [Alex] will receive a fair trial going
forward.” RP (Trial 3) at 625.
6 RP (Trial 3) refers to the two consecutively-paginated volumes reported by Katie DeVoir that include the third trial taking place in August 2019. They also include the January 2020 hearing on Eduardo’s motion for a new trial.
10 No. 37344-4-III State v. Martinez
The fourth trial began on September 30. Called as witnesses by the State were a
Norwalk, Connecticut, police officer who located and arrested the brothers at Benton
County’s request; Detective Cantu and Detective Scott Monds, who traveled to
Connecticut with Detective Cantu to transport Eduardo back to Washington; Julian and
Emiliano’s father, Santiago; Principal Juzeler; Emiliano; Julian; and the sex abuse
counselor who participated in interviews in 1995.7 Detective Cantu, Principal Juzeler and
the sex abuse counselor testified consistent with the facts set forth above.
Detective Cantu also testified that after he and Detective Monds picked up
Eduardo at a Norwalk courthouse, they drove to LaGuardia Airport, and during the drive,
Eduardo told the detectives he had moved to Connecticut but returned to Prosser
following the 1997 DUI charge. Detective Cantu testified Eduardo told Detective Monds
and him that he left Prosser again to return to Connecticut when he learned authorities
needed to speak with him about the charges at issue in this case.
Detective Monds agreed when questioned that Eduardo admitted to fleeing
Washington and returning to Connecticut when he learned of Detective Cantu’s
investigation. He also testified that Eduardo had stated during the drive that “he had
made some mistakes when he was younger and he was paying the consequences for them
now.” RP (Trial) at 920.
7 Urbina had died a couple of years before the trial.
11 No. 37344-4-III State v. Martinez
Santiago testified that Alejandro had lived with the family at the Highway 22
mobile home park for a time and also lived with the family off and on when they moved
to the Prosser trailer park. He testified that when Detective Cantu contacted him about
Julian’s and Emiliano’s allegations, he knew Urbina and her sons had moved to a
different state and had been told they were in New York, which he mentioned to the
detective. Asked by Alex’s lawyer if he recalled that Urbina had a nephew “in the area”
who was named Alejandro Martinez, Santiago said he did, but he did not know where he
lived or who he had worked for. RP (Trial) at 893-94.
Emiliano testified to being born in March 1988, making him 31 years old at the
time of trial. He testified that he recalled the abuse by Alejandro and Emiliano happening
during the first quarter of his second-grade year. Alejandro was the first to abuse him by
putting his penis in Emiliano’s mouth; then he inserted his penis in Emiliano’s anus
“repeatedly.” RP (Trial) at 1042. He testified that this occurred in the bedroom, and both
of his younger brothers were present in the trailer. He testified that Eduardo had not been
present during this incident.
Emiliano testified that Eduardo later assaulted him as well, calling him into that
room again, where he “proceeded to pull my pants down and insert his penis in my anus.”
RP (Trial) at 1044. Emiliano testified he was raped by Eduardo on more than one
occasion, often in the bedroom. The rapes always occurred in the family’s trailer.
12 No. 37344-4-III State v. Martinez
Asked if he was able to fight back, he said he could not because Alejandro and
Eduardo were older, bigger and stronger. In the fall of 1995, when this is alleged to
have occurred, Alejandro would have been 16 years old and Eduardo would have been
nearly 15.
Emiliano testified that he knew his younger brother Julian had also been raped,
“[b]ecause it happened to me” and “I could just hear him screaming, begging for him to
stop.” RP (Trial) at 1045. He testified that he also saw Julian being raped once, in the
trailer’s bathroom. Emiliano testified that he never talked to Julian or anyone else about
the abuse, because he was scared and “they threatened us.” RP (Trial) at 1046.
Julian testified to being born in 1989, making him 30 years old at the time of trial.
He testified that he was assaulted by Eduardo, who took him in the back room of the
trailer and put his penis in Julian’s anus. He remembered pain, that he was crying, and
that it was against his will. He also recalls that it happened on a few occasions. Emiliano
was present in the trailer when it happened. Julian testified he knew it happened to
Emiliano, too, because Emiliano was taken to the back room and Julian could hear him
crying. Julian did not fight back because Eduardo was older than him and he was scared.
It happened in the first quarter of his first-grade year, so he would have been 6 years old
at the time. Julian testified that Alejandro never molested him.
Alex and Eduardo testified in their own defense. Alex testified that others have
referred to him as Alejandro, but he, personally, has always gone by Alex. Asked about
13 No. 37344-4-III State v. Martinez
his birthdate, he testified that he was born on March 21, 1978, which is not the date of
birth attributed to him by the State. He testified that he came to the United States in 1991
and lived with a family acquaintance in Grandview. He occasionally stayed with his
mother in the Prosser trailer park once she returned to the United States.
Alex testified that in November 1995, he left Washington with plans to go to
Chicago, but ended up going to Connecticut. He testified that he moved to Mexico in
1998, stayed for about a year, and then returned to Connecticut where he continued to
live until the charges in this case brought him back to Washington. He described his
work history, which ultimately led to his owning and operating an auto repair shop with
Eduardo. He testified that he had married in 2015 and that he and his wife reside on the
main floor of a duplex in Bridgeport, with Eduardo and his family residing upstairs.
Alex testified that the first he ever heard of the charges against him in Washington
was in March 2019, when police came to his home looking for him and Eduardo. He
denied meeting Detective Cantu at any time prior to 2019. He testified that his cousin
Alejandro Martinez was a couple of years older than him and he believed he had lived in
Prosser in 1995. He denied ever molesting Emiliano.
In cross-examination, the State questioned Alex about a school record from
Prosser High School that identified student “Alejandro S. Martinez.” RP (Trial) at 1304.
The record listed Alejandro’s parent or guardian as Urbina Martinez, identified him as
living at the Highway 22 mobile home park address, and it reflected the date of birth that
14 No. 37344-4-III State v. Martinez
Detective Cantu had obtained from the “Alejandro Martinez” he interviewed in 1998.
Alex testified that, while he could not say that such a record “would have been incorrect,
it wasn’t me.” RP (Trial) at 1303.
Eduardo testified after Alex. In his direct examination, Eduardo confirmed that
he, his mother, Santiago and Santiago’s sons originally lived in a mobile home on
Highway 22 and then lived in the trailer at the Prosser trailer park between the summer of
1994 and the fall of 1995. He described Alex as not having lived with the family, but
occasionally staying a few nights here and there.
According to Eduardo, he first left Washington in February 1996. He had dropped
out of school, and Alex had driven from Connecticut to pick him up. In October 1997, he
received the DUI in Connecticut and, fearful of problems the DUI could cause, he
returned to Washington in February 1998 and lived with his mother. He testified that he
remained in Washington for only four months.
Eduardo denied having any knowledge of the investigation or pending case against
him in Washington until sometime after his November 2018 auto accident. It was during
the revived proceedings on his 1997 DUI that he learned about it from Connecticut law
enforcement. He denied ever telling Detectives Cantu and Monds that he fled
Washington when he learned the police were looking for him; he testified that he only
told them about fleeing Connecticut for Washington after being charged with the DUI.
He also testified that the only mistake and regrets he mentioned to Detectives Cantu and
15 No. 37344-4-III State v. Martinez
Monds during the drive to the airport had to do with not taking care of the DUI back in
1997 and 1998. He denied ever having sex with Julian or Emiliano.
In questioning by Alex’s lawyer, Eduardo testified that he believed his cousin
Alejandro Martinez was older than Alex, but could not say for sure. He did not know
where he had worked, other than that he was “basically working in the field.” RP (Trial)
at 1328.
The jury found the brothers guilty as charged. At sentencing, Alex asked (against
the advice of counsel) to be sentenced to the same amount of time as Eduardo. Based on
a seriousness level of XII, the court imposed a 120-month sentence with a mandatory 24-
month community custody for both defendants. Eduardo appeals.
ANALYSIS
Eduardo makes four assignments of error. He assigns error to (1) a violation of his
constitutional right to a speedy trial, (2) the trial court’s granting the State’s motion for
joinder, (3) a violation of his right to be free of double jeopardy when the trial court
declared the third trial a mistrial, and (4) the denial of his motion for a new trial. We
address the alleged errors in turn.
I. BECAUSE NO SPEEDY TRIAL CHALLENGE WAS RAISED IN THE TRIAL COURT, THE RECORD IS INSUFFICIENT FOR REVIEW
The Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington State Constitution both protect a criminal defendant’s right to a speedy
16 No. 37344-4-III State v. Martinez
trial. The analysis of the rights they provide is substantially the same. State v. Ollivier,
178 Wn.2d 813, 826, 312 P.3d 1 (2013). The right to a speedy trial attaches when a
charge is filed or an arrest is made, whichever occurs first. State v. Lee, 188 Wn.2d 473,
498, 396 P.3d 316 (2017); State v. Shemesh, 187 Wn. App. 136, 144, 347 P.3d 1096
(2015). If a defendant’s constitutional right to a speedy trial is violated, the remedy is
dismissal of the charges with prejudice. State v. Iniguez, 167 Wn.2d 273, 282, 217 P.3d
768 (2009).
We use the balancing test set out by the United States Supreme Court in Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), to determine whether a
constitutional violation has occurred. Ollivier, 178 Wn.2d at 827. That test recognizes
the relevance of four separate inquiries: whether delay before trial was uncommonly
long; whether the government or the criminal defendant is more to blame for that delay;
whether, in due course, the defendant asserted the right to a speedy trial; and whether the
defendant suffered prejudice as the delay’s result. Doggett v. United States, 505 U.S.
647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) (citing Barker, 407 U.S. at 530).
The first of the inquiries is actually a double inquiry: initially, to trigger a speedy
trial analysis, an accused must allege that the interval between accusation and trial “has
crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay.” Id. at
651-52. “[B]y definition, [the defendant] cannot complain that the government has
denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary
17 No. 37344-4-III State v. Martinez
promptness.” Id. at 652. A finding of presumptively prejudicial delay does not mean that
the right to a speedy trial has been violated but rather that the delay is sufficient to trigger
the four-factor Barker analysis. Ollivier, 178 Wn.2d at 828.
A. Presumptive prejudice and the length of delay weigh in favor of Eduardo’s speedy trial challenge
There is no specific time period that triggers the presumption of prejudice and it is
often a “fact-specific inquiry dependent on the circumstances of each case.” Iniguez, 167
Wn.2d at 291. Not so here. The charges against Eduardo were filed on December 14,
1998, and he was not brought to trial for over 20 years. This delay exceeds many other
cases where the length of the delay was found presumptively prejudicial. See, e.g.,
Doggett, 505 U.S. at 652 (over 8-year delay); Ollivier, 178 Wn.2d at 827-28 (23-month
delay). The State agrees the delay here is “certainly” presumptively prejudicial. Br. of
Resp’t at 13.
The first Barker factor, the length of the delay, examines “the extent to which the
delay stretches beyond the bare minimum needed to trigger” the full four-factor inquiry.
Doggett, 505 U.S. at 652. A longer delay spurs a closer examination into the
circumstances surrounding the delay. Iniguez, 167 Wn.2d at 293. Here, too, the State
concedes that the extraordinary length of the delay weighs in favor of Eduardo’s speedy
trial challenge.
18 No. 37344-4-III State v. Martinez
B. The remaining factors cannot be examined or weighed without the presentation of evidence and fact-finding
The factors of reasons for delay, assertion of the speedy trial right, and prejudice
turn on evidence and argument that was never presented and advanced in the trial court,
given that no motion to dismiss on speedy trial grounds was ever made by Eduardo.
The government has the burden of explaining its delay in bringing a defendant to
trial. United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999). The government has
“‘some obligation’” to pursue a defendant in order to bring him to trial. United States v.
Mendoza, 530 F.3d 758, 762-63 (9th Cir. 2008) (quoting United States v. Sandoval, 990
F.2d 481, 485 (9th Cir. 1993)). The effort need only be reasonable, not heroic.
Sandoval, 990 F.2d at 485; United States v. Machado, 886 F.3d 1070, 1080 (11th Cir.
2018) (the government is not required to exhaust all conceivable avenues). “[I]f the
defendant is not attempting to avoid detection and the government makes no serious
effort to find him, the government is considered negligent in its pursuit.” Mendoza,
530 F.3d at 763.
By contrast, where the government’s failure to locate the defendant results from
the defendant’s flight from justice or deliberate disappearance, the delay is properly
attributed to the defendant. See United States v. Bagster, 915 F.2d 607, 611 (10th Cir.
1990). And when a defendant knows of his indictment long before his arrest but fails to
19 No. 37344-4-III State v. Martinez
take action to obtain a speedy trial, the third factor—assertion of the speedy trial right—
weighs heavily against him. See Doggett, 505 U.S. at 653.
When there is conflicting evidence whether the government sought a defendant
with diligence and whether a defendant was aware of the charges against him for years,
factual determinations must be made in the trial court, to which we defer. Id. at 652-53.
We cannot say that those disputed facts were determined by the jury’s guilty verdicts.
While the parties offered evidence on both scores, it is possible the jury found the rapes
were committed because they believed Emiliano and Julian. The jury could have found
guilt and yet not believed the State’s evidence that Alejandro and Eduardo had been
aware of Detective Cantu’s investigation since 1998.
Because no speedy trial dismissal motion was made, the State had no reason to
present all the evidence it may have to explain its delay in bringing Eduardo to trial. The
trial court has not had the opportunity to decide the disputed factual issues on which the
remaining three Barker factors and their balancing may depend.
If the facts necessary to adjudicate a claimed error are not in the record on appeal,
no actual prejudice can be shown and an error, even if of a constitutional character, is not
manifest. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). It cannot be
reviewed on direct appeal. Id .at 334; RAP 2.5(a). The proper mechanism for raising
claims of error that rest on facts outside the record is a personal restraint petition. State v.
20 No. 37344-4-III State v. Martinez
Robinson, 171 Wn.2d 292, 315, 253 P.3d 84 (2011) (Madsen, C.J., dissenting) (citing
McFarland, 127 Wn.2d at 338).
II. EDUARDO DOES NOT DEMONSTRATE AN ABUSE OF DISCRETION IN ORDERING JOINDER
Eduardo challenges the trial court’s order permitting joinder of the State’s cases
against him and Alex. He does so on a basis he agreed at oral argument is “considerably
different” from the more typical challenge to joinder being made by Alex in his appeal.
Wash. Court of Appeals oral argument, State v. Martinez, No. 37344-4-III (Dec. 6, 2021)
at 58 sec. to 1 min., 5 sec. Rather than argue that he was prejudiced by the admission of
evidence that would not have been admitted had he been tried alone, Eduardo argues that
the State is to blame for the first mistrial and by permitting joinder thereafter, the trial
court is “allowing the government to undermine Eduardo’s Fifth Amendment privilege
against self-incrimination.” Br. of Appellant at 23-24.
It was Eduardo who moved for declaration of the first mistrial. As he concedes,
the trial judge made clear in granting Eduardo’s mistrial motion that he did not believe
Detective Cantu had intended to sabotage the trial.8 Eduardo never asked that the charges
against him be dismissed with prejudice following the first mistrial on the basis that the
prosecutor goaded Eduardo into moving for a mistrial, which is a narrow exception to the
8 In announcing its decision, the trial judge addressed the detective, and stated, “Detective Cantu, I don’t think for a moment that you talked about his invoking his rights on purpose or with any bad intent or poor motive. I want you to know that.” RP (Trial 1) at 241.
21 No. 37344-4-III State v. Martinez
rule that double jeopardy generally does not bar retrial after a defendant moves for a
mistrial. State v. Thompson, 19 Wn. App. 2d 727, 740-41, 498 P.3d 40 (2021); United
States v. Dinitz, 424 U.S. 600, 611, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976).
Eduardo implicitly contends that the consolidated trial against the brothers
strengthened the State’s case or made the case against him harder to defend, because he
argues it allowed the prosecutor to “better position her case,” “completely change[d] the
dynamics of his defense,” and punished him after the fact for invoking his right to
counsel. But his briefing of this assigned error makes no effort to identify any particular
respect in which he was prejudiced. See Br. of Appellant at 22-24. It is not the role of
this court to read the trial transcript and figure out for ourselves whether he was
prejudiced in some way.
The “unfairness” Eduardo needed to focus on in hopes of persuading us that it was
an abuse of discretion to order joinder is unfairness occurring as a result of the
consolidated trial, not the asserted unfairness that in the first trial Detective Cantu should
never have mentioned Eduardo’s request for counsel, but did. Since no unfairness
occurring as a result of the consolidated trial is identified, no abuse of discretion is
shown.
22 No. 37344-4-III State v. Martinez
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING A MANIFEST NECESSITY TO DECLARE A MISTRIAL IN THE THIRD TRIAL
Eduardo objected when the trial court declared a mistrial in his third trial. He
argues on appeal that the trial court improperly goaded Alejandro’s lawyer into
requesting the mistrial, there was no “manifest necessity,” and the fourth trial therefore
constituted double jeopardy.
By way of further background, Eduardo had resisted the State’s motion prohibiting
evidence or argument that he had no prior criminal convictions or suggesting that he was
a law-abiding citizen. His lawyer argued, “I think it’s relevant,” “they can’t point to one
person who’s ever accused him of behaving inappropriately,” and “He’s never been
charged with a crime.” RP (Trial 3) at 80-81. The State’s motion had accurately
described the limits on character evidence imposed by the evidence rules, however. The
trial court clearly granted the motion and imposed the exclusion.
The trial court reasonably viewed its ruling as violated when Eduardo’s lawyer
told jurors in opening statement that “there’s no indication that Eduardo did anything but
. . . obey the law,” and that police had not picked up Eduardo for “kidnapping children or
having child pornography or anything of the sort.” RP (Trial 3) at 584-85. After all of
the opening statements were concluded and outside the presence of the jury, the trial
court asked the court reporter to read back parts of the opening statement that it believed
contravened its ruling. It informed the parties that he was excusing the jury for the day
23 No. 37344-4-III State v. Martinez
and would address the perceived violation the next morning, inviting them to submit
briefing and any remedy they believed was appropriate.
The State responded with argument that the statements had been “in direct
violation of the Court’s order” and proposed an instruction to jurors that the lawyers’
statements were not evidence and must be disregarded if not supported by the evidence.
CP at 373.
Alex’s lawyer did not take a position on the violation but recognized that the
statements likely prejudiced his client, observing that jurors would wonder, “Why didn’t
Alex have a [sic] good character evidence? Therefore he must be guilty!” CP at 399. He
moved for severance and a new trial.9
Eduardo’s lawyer responded that he had not intended to violate the order and
apologized if he did, but said he thought he was only prohibited from stating that Eduardo
“has no criminal record.” CP at 415. He argued that evidence rules cannot prohibit a
lawyer from “humaniz[ing] the defendant” and “portraying [him] as good and decent.”
CP at 415.
The trial court heard argument the following morning. It explained its concern
that “when one counsel indicates that their client was law-abiding, there is a negative
inference when counsel following the Court’s instruction doesn’t make the same
9 He later withdrew his motion for severance.
24 No. 37344-4-III State v. Martinez
assertion.” RP (Trial 3) at 615. Alex’s lawyer agreed that was his concern in requesting
a mistrial. After hearing from all the parties, the trial court stated that the State’s
proposed instruction could not assure him that Alex would receive a fair trial, and it
would grant the mistrial motion.
Double jeopardy rights protect a defendant from “a second prosecution for the
same offense after conviction or acquittal, and from multiple punishments for the same
offense” after jeopardy attaches. State v. Jones, 97 Wn.2d 159, 162, 641 P.2d 708
(1982). Jeopardy attaches once a jury is empaneled and sworn. State v. Sheets,
128 Wn. App. 149, 155, 115 P.3d 1004 (2005). Retrial is not automatically barred when
a proceeding is terminated upon declaration of a mistrial. Arizona v. Washington, 434
U.S. 497, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). When a mistrial is granted
without the defendant’s consent and after jeopardy has attached, a retrial is barred by
double jeopardy unless the mistrial was justified by a “‘manifest necessity.’” Sheets,
128 Wn. App. at 151-52 (quoting State v. Graham, 91 Wn. App. 663, 667, 960 P.2d 457
(1998)); State v. Melton, 97 Wn. App. 327, 331, 983 P.2d 699 (1999) (quoting Graham,
91 Wn. App. at 667); State v. Wright, 165 Wn.2d 783, 793, 203 P.3d 1027 (2009)
(quoting Graham, 91 Wn. App. at 667).
Appellate courts give great deference to the trial court’s decision to declare a
mistrial. State v. Strine, 176 Wn.2d 742, 753, 293 P.3d 1177 (2013). Our concern is that
the trial court exercise “‘sound discretion.’” Id. (quoting United States v. Perez, 22 U.S.
25 No. 37344-4-III State v. Martinez
(9 Wheat.) 579, 580, 6 L. Ed. 165 (1824)). “Manifest necessity” in this context is not
interpreted literally; it is present when there is a high degree of necessity. Id. (citing
Renico v. Lett, 559 U.S. 766, 774, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010). Three
procedural factors are important:
(1) whether the court act[ed] precipitately [or] gave both defense counsel and the prosecutor full opportunity to explain their positions; (2) whether it accorded careful consideration to [the defendant’s] interest in having the trial concluded in a single proceeding; and (3) whether it considered alternatives to declaring a mistrial.
State v. Robinson, 146 Wn. App. 471, 479-80, 191 P.3d 906 (2008) (alterations in
original) (internal quotation marks omitted) (quoting Melton, 97 Wn. App. at 332).
Each of the procedural concerns is satisfied here. The trial court did not act
precipitately. It stated its belief that statements had been made in contravention of its
ruling but before taking action, identified the statements clearly and recessed, giving the
parties an opportunity to consider the record and respond with any suggestions as to
what, if anything, should be done. It then heard argument from all of the parties and
considered the two suggestions made: a curative instruction or a mistrial. The court’s
action was deliberate and measured.
Eduardo argues on appeal that “[t]he harm caused to [Alex] could have been easily
cured,” Br. of Appellant at 26, but notably, Eduardo was the only party who had no
suggestion for how the court should address counsel’s violation (nor does he offer one on
26 No. 37344-4-III State v. Martinez
appeal). See CP at 412-15; RP (Trial 3) at 621-24. Rather, his lawyer told the court,
“[W]hatever you decide, I’m okay with.” RP (Trial 3) at 624.
The trial court did not err in finding a manifest necessity to declare a mistrial.
IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING EDUARDO’S MOTION FOR A NEW TRIAL
Finally, Eduardo argues that the trial court erred in denying his motion for a new
trial. His motion raised two grounds: first, that his “right to a fair trial before an impartial
jury was destroyed by the hostile relationship between [Alejandro’s lawyer, Kevin] Holt,
and [Laurel] Holland[, the prosecutor]”; and second, that his “right to zealous
representation was seve[rely] limited when the court warned his counsel that he, counsel
for defendant, would face sanctions, removal from the case, and reporting to the bar for
disciplinary action if he attempted to play to the jur[y’s] emotions and/or failed to act
within the orders of the court.” CP at 490 (capitalization omitted).10
The court warning that was a basis for the new trial motion was delivered after
Eduardo’s questioning of Detective Cantu was cut off by an objection that the parties
were invited to brief overnight. Eduardo’s lawyer had asked if the detective was “trained
as to the type of people who commit these crimes against children,” and the detective
answered, “I don’t know if there is a specific type of people that commit those crimes.
10 Eduardo’s appellate brief also criticizes the trial court’s rulings sustaining objections to questions about pedophilia and immigration, but those rulings were not a basis for the new trial motion and have not separately been assigned as error. We will not address them. See RAP 10.3(a)(4) (requiring separate concise statements for each error).
27 No. 37344-4-III State v. Martinez
It’s people commit crimes against children.” RP (Trial) at 749. Counsel then asked,
“So—have you ever heard of the term pedophile?” which drew an objection from the
State. Id. The objection was sustained, the jury was excused, and whether pedophilia
was relevant was briefly discussed. When Eduardo’s lawyer insisted it was relevant, the
trial court recessed for the evening and invited the parties to return in the morning with
any legal authority for or against its relevance to the case. RP (Trial) at 752.
After lengthy argument about its relevance the next morning, the trial court ruled
that it had sustained the objection, did not believe Eduardo had established a good faith
basis for its question to the detective, and “in any case, the court has made a ruling in that
regard and I expect counsel to abide by that ruling.” RP (Trial) at 769.
It then delivered the admonition that became a basis for Eduardo’s new trial
motion:
There are some other issues the court, I guess, out of an abundance of caution, believes it needs to address with the parties. Any questioning designed to elicit an emotional or prejudicial response from the jury, I think it’s to show sympathetic or prejudicial response from the jury, I think it’s clear in the law that that is not appropriate. I would expect counsel to refrain from any such type of questioning designed solely to elicit some type of sympathy or prejudice from the jury. In regards to, again, character, just so the only basis for admitting character evidence would be, again, if it’s a pertinent trait to the crime charged and it’s done by way of a reputation in a general community. I expect counsel to—for all parties—to refrain from any such questioning or attempts to present that type of evidence other than in the parameters established by the court.
28 No. 37344-4-III State v. Martinez
Again, any violation of the order the court would consider whether sanctions are appropriate up to and including removal from the case and whether referral to appropriate bar associations is appropriate under the circumstances.
RP (Trial) at 769-70. When Alex’s lawyer expressed his perception that the trial court’s
comments were in response to “the State’s many, many, many condescending remarks
toward us” and could chill the defense, the trial court responded:
It’s not my intention to chill your presentation. If you feel, certainly, that you have a legitimate basis regarding one of these issues the court addressed, certainly we can address that outside the presence of the jury before you go forward with the questioning and the court may in fact at that point agree with you, based on how the evidence comes out. But I would like that to be done outside the presence of the jury.
RP (Trial) at 771, 774-75.
The State argued in response to Eduardo’s new trial motion that he failed to point
to any evidence of the jurors being exposed to hostilities, and jurors were ordinarily not
present when disagreements were aired. It disagreed with Eduardo’s characterization of
the court’s admonition, which it contended was reasonable and directed to all counsel.
After hearing oral argument of Eduardo’s new trial motion, the trial court denied it
with the following explanation:
I did not see anything during the course of this trial which suggested to me that there was any substantial chilling of [Eduardo’s lawyer’s] performance in this matter that would warrant a finding of ineffective assistance of counsel that prevented a fair trial. I have not been referred to any specific instances where that was the case; so I don’t think the defense has met the burden of establishing that the Court’s rulings were such that it chilled
29 No. 37344-4-III State v. Martinez
defense’s presentation to the point where there were ineffective assistance of counsel and the inability to achieve a fair trial. With regard to the second issue, regarding the exchanges between [defense counsel] and [the prosecution] and whether or not those rose to a level where it prevented Mr. Eduardo Martinez from having a fair trial in this matter, there were some fairly substantial discussions and somewhat heated discussions, I recall, from counsel; but it’s also my recollection that those were done primarily outside the presence of the jury. And this court tried to make sure that, when those were raised, that we did in fact remove the jury and we had those discussions outside the presence of the jury. I think there was very minimal heated argument, if any at all, between counsel in front of the jury that would suggest that, because of the relationship and behavior of either defense counsel or the prosecution, that Mr. Martinez was precluded from having a fair trial.
RP (Trial 3) at 652-53.
CrR 7.5(a)(5) provides that a trial court may grant a new trial if a defendant was
prevented from having a fair trial as the result of an irregularity in the proceedings or an
order of court or abuse of discretion. A trial judge’s decision on a motion for a new trial
is reviewed for abuse of discretion. State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008
(1967). “In a criminal proceeding, a new trial is necessitated only when the defendant
‘has been so prejudiced that nothing short of a new trial can ensure that the defendant will
be treated fairly.’” State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997)
(quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). “Something more
than a possibility of prejudice must be shown.” State v. Lemieux, 75 Wn.2d 89, 91, 448
P.2d 943 (1968).
30 No. 37344-4-III State v. Martinez
In light of the State’s argument that Eduardo failed to support his argument by
pointing to anything in the record, and the trial court’s ruling that the record did not
support Eduardo’s arguments, it is essential that Eduardo show us there is support in the
record for his contentions. It is fatal to this assignment of error that he does not. A
party’s brief must include “argument in support of the issues presented for review,
together with citations to legal authority and references to relevant parts of the record.”
RAP 10.3(a)(6). Each factual statement in the appellant’s statement of the case must also
refer to the record. RAP 10.3(a)(5). “Passing treatment of an issue or lack of reasoned
argument is insufficient to merit judicial consideration.” Brownfield v. City of Yakima,
178 Wn. App. 850, 876, 316 P.3d 520 (2014). And we do not “consider conclusory
arguments that are unsupported by citation to authority.” In re Pers. Restraint of Sickels,
14 Wn. App. 2d 51, 58 n.2, 469 P.3d 322 (2020).
Clearly, the judge who presided at the trial is in the best position to assess whether
the defense counsel/prosecution interactions and admonition about questioning witnesses
had an effect on jurors or on the defense lawyers’ performance. If a party expects an
appellate court to second-guess the trial judge on an issue like this, the party needs to
point to evidence in the trial record that demonstrates the trial judge was wrong. To
repeat what was said earlier, it is not the role of this court to read the trial transcript and
figure out for ourselves if Eduardo was prejudiced in some way.
31 No. 37344-4-III State v. Martinez
The convictions are affirmed, but we remand for resentencing in accordance with
the seriousness levels and sentencing ranges in effect at the time of the crimes. See State
v. Martinez, No. 373436, slip op. at 33-35.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________ Siddoway, C.J.
WE CONCUR:
_____________________________ Fearing, J.
_____________________________ Pennell, J.