State v. Guajardo

STATE OF WASHINGTON, Respondent, v. ALVARO GUAJARDO, Appellant.

No. 36967-6-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

June 17, 2021

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Alvaro Guajardo appeals his conviction and sentence for first degree felony murder. We affirm his conviction but remand for resentencing and for the trial court to vacate the jury's guilty verdict for first degree kidnapping. The trial court is directed to resentence Guajardo by excluding a California conviction it previously included and by excluding two prior Washington convictions for possession of a controlled substance, the latter in accordance with State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).

FACTS

Bret Snow has been missing since late 2015. Snow's mother last spoke with him on Thanksgiving Day in 2015. Snow and his mother talked every few weeks. Snow's sister last saw him in mid-November 2015. She saw or talked to Snow several times per week. Snow did not have a job, he used drugs, and lived in random places. In the months before his disappearance, Snow spent a lot of time at a property on North Starr Road in Newman Lake, Washington.

North Starr Road drug conglomerate

Russell Joyce owned a house and a shop on North Starr Road. Joyce lived in an apartment above the shop and rented out the remaining living spaces. Cheryl Sutton and Ken Stone lived in the house. Guajardo stayed in a makeshift bedroom on the ground floor of the shop. Guajardo, Sutton, and Stone all had keys to the shop.

Sutton, Stone, and Guajardo sold methamphetamine and heroin. Sutton oversaw the drug business, while Stone and Guajardo were the "enforcers." Report of Proceedings (RP)¹ at 400, 570. Enforcement in the drug community involves intimidation and beatings. Snow sold drugs for Sutton, as did Colby Vodder.

Snow and Joyce were friends. Snow sold drugs to Joyce, which Joyce believed came from Sutton. Sometime in 2015, Snow allegedly stole Sutton's van. He stayed away from North Starr Road until Joyce convinced him to come back and face Sutton and Stone.

Snow's disappearance

On December 2, 2015, Snow's friend Karen Nelson gave him a ride to the North Starr Road property. Snow went to Joyce's apartment. According to Joyce, Sutton and Stone came running up the stairs and angrily burst in. Sutton held a steel bar in her hand and told Snow to get on the ground. Stone tied Snow up with a telephone cord. They called Guajardo up to the apartment. He punched Snow a couple times before the trio took him downstairs into the shop. Joyce called and texted Snow later but never heard from him again.

Snow sent a text message to Nelson at 4:25 a.m. on December 3. To send that message, Snow's phone accessed cell towers closest to the North Starr Road property. Nelson called and texted Snow back the next morning, but Snow's phone was off. No calls or text messages were received on Snow's phone after that morning.

Days later, Joyce heard noises downstairs in the shop. He said, "[I]t sounded like somebody was drilling through my wall from the shop side," and an hour or two later, he heard "what sounded like a chain being pulled through something metal." RP at 410-11. Joyce knocked on the door to the shop, and Guajardo answered, "just wait, just wait." RP at 411. Through the closed door, Vodder said he had poached a deer. Neither Guajardo nor Vodder allowed Joyce into the shop.

Sometime afterward, Joyce and Guajardo took a ride in Vodder's truck. Eventually, Guajardo stopped on the side of the road near open fields. Guajardo pulled his gun, pointed it at Joyce's face, and asked, "'Do we have to worry about you?'" RP at 414. Joyce said, "'Nope.'" RP at 414. Guajardo then fired his gun out the window before driving with Joyce back to the North Starr Road property.

On December 11, 2015, Guajardo was arrested and brought to Spokane County Jail.² He placed a phone call from jail to Sutton and Stone. Guajardo instructed Sutton to "Get rid of that shit." Ex. 68.

Sometime afterward, Sutton asked her friend, Derek Lyle, to bring her to a hotel in Airway Heights. Sutton told Lyle to "run in and grab a bucket behind the counter and bring it back out." RP at 635. Lyle heard liquid sloshing in the bucket. When they got back to North Starr Road, Sutton "did whatever she did with the bucket." RP at 636.

On December 15, 2015, Stone, Sutton, and Joyce were evicted from the North Starr Road property due to foreclosure. They gave the mattress that had been in Guajardo's bedroom to their friend, Nicole Price. Price moved the mattress to a storage facility in Post Falls, Idaho. Bret Snow's mother and sister filed a missing person report with the Spokane County Sheriff's Department. Detective Lyle Johnston obtained Snow's fingerprints, photograph, DNA,³ dental records, and phone records. He sent multiple flyers to the media and forwarded Snow's information to national databases. Detective Johnston was never contacted after posting Snow's missing person information.

Law enforcement's investigation

Detective Johnston first searched the North Starr Road property on January 15, 2016. The property had been vacated by Joyce, Stone, and Sutton and a new owner was remodeling the residence for sale. The shop had new plywood on the walls and the carpeting and flooring had been torn up. Detective Johnston did not find anything of evidentiary value.

Detective Johnston obtained phone records for Snow, Sutton, Stone, and Vodder. In the two months leading up to Snow's disappearance, there were 96 calls and 416 text messages between Sutton and Snow. Sutton never contacted Snow after December 3. Detective Johnston was unable to locate phone records for Guajardo during this period because he had multiple potential phones but none appeared to be "actually his." RP at458. Detective Johnston also searched Snow's social media and learned that "Mr. Snow had some personal items out in the community." RP at 462. He contacted the recipients of the items and recovered them. Snow had left his electronic benefits transfer card and driver's license with a friend prior to Thanksgiving, and Detective Johnston recovered them in Montana.

Detective Johnston returned to North Starr Road on February 6, 2016, with a forensic specialist. They took numerous photos but still did not find anything of evidentiary value.

On June 3, 2016, Detective Johnston, several forensic specialists, and a cadaver dog searched the North Starr Road property. The cadaver dog indicated there were human remains behind a metal shelf in the shop. The detective moved the shelving, which had been installed by the new owner, and saw water stains on the wall. There was no water source around and no other wall had stains, which indicated the stains were likely from cleanup of a crime scene.

The forensics team performed several tests to determine whether blood had been present where the dog alerted. One test indicated there may have been blood, while another came out negative. Two dots of blood were identified: one near the base of a utility sink and another on top of the water heater. Along another wall, the tests indicateda streak of blood along with a visible patch of hair embedded into a crevice of the cement. In that area, there was heavily coagulated blood and a brown tint that appeared to be human tissue.

The detectives then tested for chemical cleaning agents. They found torn pieces of plastic and staples, indicating there had been a barrier that had been removed. There was no evidence of blood underneath.

Detective Johnston arrested Vodder in December 2016 for Snow's murder. He later arrested Sutton, Guajardo, and Stone. He was unable to recover any weapons from the scene. He did, however, find the SIM⁴ card from Snow's cell phone in Sutton's belongings after her arrest. Snow's sister later found Snow's dog at Sutton's mother's house.

Christopher Schoonover

Christopher Schoonover met Snow at North Starr Road. They both sold drugs for Sutton. On January 12, 2017, Detective Johnston interviewed Schoonover, who said he knew nothing about Snow's disappearance.

On May 25, 2018, Schoonover contacted Detective Johnston from jail in Idaho. He was in custody on possession charges and made a deal with the State to reduce hissentence in exchange for testifying against Sutton, Stone, Vodder, and Guajardo at their separate trials. He provided Detective Johnston with the following information: Sutton's and Stone's "demeanor" changed drastically at the end of 2015. RP at 572. In December 2015, Schoonover ignored a phone call from Sutton. Sutton then called with Vodder's phone and asked Schoonover to "do something," which he refused to do. RP at 573. After that call, Schoonover was concerned for Snow's safety.

Schoonover also said he talked to Guajardo in December 2015. Guajardo allegedly told Schoonover:

[Snow] had been struck in the head by Ms. Sutton with a lawn mower blade and that he had been taken in the back to the bedroom and finished and then taken back into the front area of the garage and cut into pieces and put into buckets and was taken to a pig farm.

RP at 574. Guajardo said that Snow had tried to rob Sutton and Stone earlier, and Stone wanted to "finish him off." RP at 575. Guajardo admitted that he and Vodder assisted. Guajardo told Schoonover that Snow was put on his bedroom mattress, covered with a tarp, shot, stabbed, and then cut into several pieces.

Trial court proceedings

On June 22, 2017, the State charged Guajardo with first degree felony murder (predicated on first or second degree kidnapping), second degree felony murder (predicated on first or second degree kidnapping), and conspiracy to commit first degreekidnapping. After discovery and various pretrial motions, the court set trial to commence November 26, 2018.

Motion to dismiss or suppress evidence

On November 8, 2018, police learned that Price had Guajardo's mattress, which might have been used during Snow's killing. On November 13, Detective Johnston located the mattress...