State Of Washington, V. Eson Puleuea Herr

• Court: Court of Appeals of Washington
• Decided: January 13, 2025
• Docket: 84898-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 84898-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ESON PULEUEA HERR,

Appellant,

and

LATECIA LEE FORTUNE,

Defendant.

BIRK, J. — Eson Herr appeals his convictions of first degree murder and first

degree unlawful possession. He argues that the trial court erred by excluding

photographs of guns found on a mobile phone that did not belong to Herr. Herr

also argues that remand is required to strike the $500 victim penalty assessment

(VPA). We remand to the trial court to strike the VPA from Herr’s judgment and

sentence as a ministerial matter. Otherwise, we affirm.

I

In July 2019, the State charged Herr with one count of first degree murder

and one count of first degree unlawful possession of a firearm. The charges arose

from the shooting death of Zula Werede.

The jury deadlocked at Herr’s first trial. At Herr’s second trial, Werede’s

friend, Biniam Araya, testified that on July 5, 2019, he and Werede drove in No. 84898-4-I/2

Werede’s car to Valley Ridge Park in Sea Tac to play soccer. After Werede

parked, he and Araya changed into their soccer clothes and were walking toward

the field when Werede indicated he had forgotten something, turned around, and

walked back toward his car. Araya testified that a car then came in from an

“unknown area,” and he heard someone say, “Hey, what’s up,” followed by the

sound of gunshots. Araya hid between two cars but was able to see a black sedan

speeding away. Araya testified that he saw the shooter, who was driving the black

sedan, and that he had “light-skin, white skin,” and was wearing a flat-billed

baseball hat.

After the black sedan left, Araya went to Werede, who was on the ground

unconscious. Araya asked a nearby witness to call 911, and police arrived after

about five minutes. Werede was declared dead at the scene. Araya later picked

Herr out of a line-up, indicating that he was between 60 and 75 percent sure that

Herr was the shooter.

Katy Cunningham, who was at the park with her two children, heard the gun

shots and saw what she described as a dark blue Dodge Charger with chrome

wheels, tinted windows, and “a spotlight on the side mirror” drive away. Another

witness described seeing a four-door, black Charger with chrome wheels, tinted

windows, and the driver’s side window down, “peeling off” as if it was “in a hurry to

get out of there.” Yet another witness similarly described the vehicle as a newer

model black Charger with tinted windows and chrome rims.

Footage of a car matching these descriptions was later found on videos that

detectives retrieved from nearby cameras. A detective determined that the

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suspect vehicle was a 2006 to 2010 Dodge Charger with certain distinctive

features: tinted windows, a black grille, six-spoke wheels, a missing door protection

strip on the rear driver’s side door, and chrome-colored side mirrors. The detective

issued a bulletin asking police departments regionally to be on the lookout for such

a vehicle.

On July 6, 2019, Corporal Charlie Hinckle of the Federal Way Police

Department saw a Charger matching the bulletin at a house on Ninth Avenue

South in Federal Way. Hinckle radioed other officers then parked his car nearby

and walked to a position where he could get a closer look. He saw two women

standing in the driveway near the Charger, which he confirmed had chrome side

mirrors as described in the bulletin. Hinckle watched as the two women retrieved

a car cover and covered the Charger. He later testified that the women seemed

nervous and, after having a short discussion, “ended up taking the car cover back

off [and] putting it in the trunk of the Charger.” One of the women then got into the

driver’s seat and drove away. Officers stopped the Charger at a 7-Eleven and

ordered the driver, who was later identified as Travis Grantham, out of the car.

Grantham complied, and she told a detective that the Charger was associated with

someone with the moniker “$crill” and showed the detective a picture of $crill on

her phone. An officer queried that moniker in a database, which indicated that it

was associated with Herr.

Meanwhile, officers continued to surveil the Ninth Avenue house, where

Hinckle had first observed the Charger. A witness would later testify that Herr lived

at the house with his girlfriend, Latecia Fortune, Fortune’s friends, Kelsey and Kyle

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DelDuca, and the DelDucas’ mother, Stephani Hewlett. When officers later

searched the bedroom that Herr and Fortune shared, they found a picture of Herr

with the Charger; they also found Herr and Fortune’s fingerprints on the inside and

outside of the Charger, which Hewlett testified was driven by Herr. Additionally,

officers found a flat-brimmed ball cap in the Charger.

Hewlett’s brother, Jordon Hewlett, lived across the street from the Ninth

Avenue house.1 Jordon testified that at some point in the early morning hours of

July 7, Fortune called and asked him to go to the house and “grab some of their

things,” “[s]ome bags that were packed,” from Herr and Fortune’s bedroom. He

testified that he could hear Herr’s voice in the background. Jordon was with his

friend, Mark Christie, and he testified that after the call with Fortune, Christie drove

him to the Ninth Avenue house in Christie’s girlfriend’s Kia. Once there, Christie

stayed in the car while Jordon went inside the house, retrieved Fortune and Herr’s

bags, and brought them to the car. Christie put the bags in the Kia, and the two

men drove off.

Officers followed, stopped the Kia, interviewed Christie and Jordon, and

eventually seized Jordon’s phone and searched it pursuant to a warrant. The

search revealed multiple text messages with a contact identified as “$crill.” It also

revealed what the prosecutor later described as “small thumbnail photographs of

what appear to be two different guns.” At trial, Herr’s counsel indicated that he

intended to introduce the photographs from Jordon’s phone, arguing that they

1 For clarity, we will refer to Jordon Hewlett as “Jordon.” We intend no disrespect.

4 No. 84898-4-I/5

showed “what could possibly be a 40 caliber . . . that the State’s detectives could

not rule out as a 40 caliber” and “[t]his could potentially be the murder weapon.”

The State moved to exclude the photographs. The trial court excluded the

photographs as irrelevant, explaining, “I don’t see how it’s anything more than

speculative at best,” and “based on the information I have right now, I do not see

how those photographs that were found on [Jordon’s] phone and that were created

and stored there at an unknown time and that are not of any firearm known to be

relevant to this case, I just don’t see how that’s relevant.”

The gun used to kill Werede was never found. However, police recovered

four, 40-caliber shell casings from the scene of the shooting. Matthew Olmstead,

the lead detective investigating Werede’s shooting, testified that all four casings

appeared to have been fired from the same gun. Olmstead swabbed the casings

for DNA and sent the swab to the Washington State Patrol crime laboratory. A

witness from the crime lab testified that she obtained a partial DNA profile from the

swabs that was consistent with DNA originating from two individuals. She also

testified that she compared the profile with a reference sample from Herr, and it

was 98 billion times more likely that the DNA mixture on the casings originated

from Herr and an unknown contributor than from two unrelated individuals

randomly selected from the U.S. population.

The jury found Herr guilty as charged. He appeals.

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II

Herr argues that the trial court erred and deprived him of his constitutional

right to present a defense by excluding the gun photographs found on Jordon’s

phone. We disagree.

A

A defendant has a right under the state and federal constitutions to present

a defense. U.S. CONST. amends. VI, XIV; WASH. CONST. art. I, § 22. “This right is

not absolute” and “may, ‘in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process,’ ” including the exclusion of

irrelevant or otherwise inadmissible evidence. State v. Caril, 23 Wn. App. 2d 416,

426, 515 P.3d 1036 (2022) (internal quotation marks omitted) (quoting State v.

Giles, 196 Wn. App. 745, 756-57, 385 P.3d 204 (2016)), review denied, 200 Wn.2d

1025, 522 P.3d 50 (2023), cert. denied, 144 S. Ct. 125, 217 L. Ed. 2d 39 (2023).

“In analyzing whether a trial court’s evidentiary decision violated a

defendant’s . . . right to present a defense, we first review the court’s evidentiary

ruling for an abuse of discretion.” Id. A trial court abuses its discretion if its

decision is manifestly unreasonable or based on untenable grounds or untenable

reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). “If we

conclude that the evidentiary ruling was not an abuse of discretion, we then

consider de novo whether the exclusion of evidence violated the defendant’s

constitutional right to present a defense.” Caril, 23 Wn. App. 2d at 427.

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B

“Evidence which is not relevant is not admissible.” ER 402. Evidence is

relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence.” ER 401. “The proponent of the evidence

bears the burden of establishing its relevance and materiality.” State v. Bass, 18

Wn. App. 2d 760, 799, 491 P.3d 988 (2021).

The gun photographs do not make any fact of consequence to the

determination of Herr’s guilt more or less probable than it would be without the

photographs. When asked to explain why the photographs were relevant, Herr’s

counsel responded that although Herr was not mounting an other suspect defense,

“in [his] pleading not guilty [he is] clearly saying somebody else was the shooter in

this case.” And “[i]f this is a 40 caliber in these pictures on [Jordon’s] phone,

Jordon . . . had access to Mr. Herr’s car,” so “this is part of that.”

But the jury would need to speculate to link the photos to the case in any

manner. Nothing in the record indicates the caliber of the guns depicted (much

less that they were 40 caliber), whether they actually existed, when or where they

were photographed, or how the photographs came to be on Jordon’s phone. To

the contrary, the State represented, and Herr did not dispute, that neither the date

of the photographs nor the caliber of the guns depicted could be determined from

the images.

Furthermore, when asked whether there was evidence that Jordon had

access to Herr’s car, defense counsel responded that Jordon “lived across the

7 No. 84898-4-I/8

street from . . . Herr for three months and up until that day.” Herr also points out

that Jordon testified at Herr’s first trial that he was able to access the Ninth Avenue

house “without any problem” and without the need to contact anyone. But the jury

would need to speculate to find, from the mere fact that Jordon lived across the

street and was able to access the house, that Jordon also had access to Herr’s

car.

In short, any connection between Jordon, the guns in the photographs, and

Werede’s murder is entirely speculative. Because speculative evidence is

irrelevant, State v. Wasuge, 32 Wn. App. 2d 226, 231, 555 P.3d 910 (2024), the

trial court did not abuse its discretion by excluding photographs of the gun. Cf.

State v. Wade, 186 Wn. App. 749, 767, 346 P.3d 838 (2015) (trial court did not err

by excluding evidence that murder victim’s ex-boyfriend “was a ‘bad actor with a

violent history involving [the victim]’” where “the facts and circumstances d[id] not

show a nonspeculative link” between the ex-boyfriend and the murder). Because

“[d]efendants have a right to present only relevant evidence, with no constitutional

right to present irrelevant evidence,” State v. Jones, 168 Wn.2d 713, 720, 230 P.3d

576 (2010), the trial court’s ruling did not deprive Herr of his right to present a

defense.

III

Herr next contends that we should remand to the trial court to strike the

$500 VPA from his judgment and sentence pursuant to recent statutory

amendments that prohibit courts from imposing the VPA on indigent defendants.

See LAWS OF 2023, ch. 449, § 1 (amending RCW 7.68.035); State v. Ellis, 27 Wn.

8 No. 84898-4-I/9

App. 2d 1, 16, 530 P.3d 1048 (2023) (amendments to RCW 7.68.035 apply to

cases on direct appeal). The State does not dispute that Herr is indigent, and it

does not object to a remand to strike the VPA. Accordingly, we remand to the trial

court to strike the $500 VPA from Herr’s judgment and sentence as a ministerial

matter. Otherwise, we affirm.

WE CONCUR: