541 P.3d 1007
Wash. Ct. App.2024Background
- Janette Rojas (a confidential informant) helped police with controlled buys; after one buy led to Charley Lozano’s conviction, Rojas and her boyfriend Jon Cano were shot dead on August 8, 2015; no eyewitnesses.
- Jose Quintero, an 18th Street Gang member, was later charged with two counts of first‑degree murder and one firearms count; while jailed months earlier he wrote violent rap lyrics referencing “snitches” and bail amounts.
- Two jailhouse cellmates (Birzavit Carmona Hernandez and Diego Bante Rivera) testified Quintero confessed to the Walnut Street shootings and gave them the rap lyrics; a third potential witness (Jose Lozano) refused to testify, repeatedly invoking the Fifth, and was held in contempt in front of the jury.
- The trial court admitted redacted portions of Quintero’s rap lyrics and compelled Jose Lozano to answer (despite federal prosecution concerns); the jury convicted Quintero and he received a lengthy sentence.
- On collateral review (timely PRP), Quintero argued sufficiency/premeditation, admission of rap lyrics and the judge’s handling of Lozano (fair trial/Fifth Amendment), ineffective assistance issues, cumulative error, and a youth‑mitigation claim; the court held the lyric admission and forcing Lozano to invoke the Fifth were erroneous but nonconstitutional and denied relief.
Issues
| Issue | Plaintiff's Argument (Quintero) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Sufficiency of evidence / premeditation | Evidence was insufficient to prove Quintero and an accomplice acted with premeditated intent | State argued circumstantial and confession evidence (cellmates, weapons, stealth, number of shots) supported premeditation | Court: Evidence was sufficient to support two first‑degree murder convictions (premeditation could be inferred) |
| Admissibility of rap lyrics (due process/ER 403, ER 404(b)) | Lyrics were fictional/braggadocio, cumulative of undisputed gang/motive evidence, highly prejudicial and should have been excluded | State argued lyrics showed gang association, motive, and contained veiled admissions; trial court redacted lyrics | Court: Admission was abuse of discretion (lyrics lacked a strong factual nexus and were unduly prejudicial) but error was nonconstitutional |
| Forcing Jose Lozano to testify / Fifth Amendment & contempt | Forcing Lozano to invoke the Fifth before the jury and holding him in contempt allowed the State to exploit silence and prejudiced Quintero | State relied on Ruiz — a conceded rule that a post‑conviction witness generally lacks a Fifth privilege; argued witness could be called | Court: Trial court abused its discretion — Lozano had reasonable fear of federal prosecution (privilege valid) and erred by compelling invocation in front of jury; but error treated as nonconstitutional |
| Cumulative error and standard for nonconstitutional error | Cumulative effect of lyric admission and Lozano rulings deprived Quintero of a fair trial and warrants relief | State: cumulative‑error argument untimely / even considered, the errors were not outcome‑determinative | Court: Considered cumulative error (timely) but adopted habeas‑style standard for nonconstitutional errors and held errors did not have substantial and injurious effect given strength of State’s case; PRP denied |
| Ineffective assistance (trial & appellate) | Trial counsel failed to investigate/call alibi and ballistics expert, failed to request lesser included instructions or object to inconsistent verdicts; appellate counsel omitted winning arguments | State: counsel’s choices were reasonable trial/appellate strategy and Quintero can’t show prejudice | Court: Declined relief — counsel’s choices were within reasonable strategy and prejudice not established |
| Youth mitigation / cruel & unusual challenge | Sentence (de facto life) violated Eighth Amendment/Miller and similar Washington precedents because Quintero was 21 at the time | State: 21‑year‑olds are not juveniles for Miller protections; court considered youth; no relief required | Court: No relief — Washington precedent forecloses extending Miller to 21‑year‑olds; sentencing claim fails |
Key Cases Cited
- In re Pers. Restraint of Finstad, 177 Wn.2d 501 (Wash. 2013) (PRP standard for collateral relief)
- In re Pers. Restraint of Swagerty, 186 Wn.2d 801 (Wash. 2016) (prejudice and miscarriage of justice standards on collateral review)
- Ruiz v. State, 176 Wn. App. 623 (Wash. Ct. App. 2013) (discussing availability of Fifth Amendment privilege after state conviction)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- Pirtle v. State, 127 Wn.2d 628 (Wash. 1995) (premeditation factors: motive, weapon procurement, stealth, method)
- Skinner v. State, 95 A.3d 236 (N.J. 2014) (rap lyrics/fictional writings inadmissible absent strong nexus to charged offense)
- Hannah v. State, 23 A.3d 192 (Md. 2011) (rap lyrics prejudicial where non‑autobiographical)
- Wood v. Ercole, 644 F.3d 83 (2d Cir. 2011) (habeas discussion of when erroneously admitted evidence warrants relief)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless‑error standard in habeas corpus: substantial and injurious effect)
- Goins v. State, 151 Wn.2d 728 (Wash. 2004) (inconsistent verdicts do not require reversal if sufficient evidence supports convictions)