State v. Ramirez

STATE OF NEBRASKA, APPELLEE, v. ANTHONY J. RAMIREZ, APPELLANT.

No. A-11-717

NEBRASKA COURT OF APPEALS

Filed July 17, 2012

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Platte County: ROBERT R. STEINKE, Judge. Affirmed.

James C. Stecker for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

MOORE and PIRTLE, Judges, and CHEUVRONT, District Judge, Retired.

MOORE, Judge.

INTRODUCTION

Anthony J. Ramirez appeals his conviction and sentence for use of a deadly weapon to commit a felony, unlawful discharge of a firearm at an occupied motor vehicle, possession of a stolen firearm, and possession of a short rifle. Because we find no merit to Ramirez' assignments of error, we affirm.

BACKGROUND

Ramirez was initially charged with seven offenses in the Platte County District Court: (1) aiding and abetting first degree assault, (2) use of a deadly weapon to commit a felony, (3) unlawful discharge of a firearm at an occupied building, (4) unlawful discharge of a firearm from a vehicle, (5) possession of a stolen firearm, (6) possession of a short rifle, and (7) conspiracy to commit stalking. Ramirez filed a plea in abatement and a motion to transfer to juvenile court. After a joint hearing on the plea and motion, the court dismissed the charge of aiding and abetting first degree assault, but it denied the motion to transfer. A jury trial took place on the remaining charges.

The evidence developed at trial showed that several members of the "18th Street" gang lived or were often present at a "gang house" in Columbus, Nebraska, which house belonged to Ramirez' sister and her husband. The rival gang in Columbus is the "Surenos 13 Escondidos" (Escos). Ismael Ruiz has been a member of the 18th Street gang for 6 years. After work on October 5, 2010, Ruiz went to the "gang house," where he was living at the time. Shortly after Ruiz arrived, Ramirez and a fellow gang member, Ben Gonzalez, arrived and were talking about a stabbing. Ruiz observed blood on Gonzalez' clothing, his shoes, and a knife. Ruiz learned that Gonzalez had been in a fight with an Escos member, which fight led to the stabbing. Ruiz learned that Ramirez fought Juan Trujillo, who is another member of the Escos. Trujillo confirmed that he and Ramirez were in a fistfight on October 5. On October 15, there was another altercation between the two gangs when an Escos member shot at two 18th Street gang members.

On October 30, 2010, there was a party at the "gang house" for Halloween. Later in the evening, Ruiz took Ramirez, Gonzalez, and Claudia Perez to a gas station to buy cigarettes in Ruiz' red pickup. Ramirez sat in the front passenger seat while Perez and Gonzalez were in the back seat. As they were driving, Gonzalez saw a vehicle that he thought belonged to an Escos. Ruiz drove back around to check it out and recognized Trujillo, whom Ramirez had fought a few weeks earlier. When they passed through the alley, Trujillo threw beer bottles at Ruiz' pickup, so Ruiz circled around for a second time. Gonzalez handed a gun to Ramirez, who stuck the gun out of the passenger window and shot toward a truck in the alley. Ruiz described the gun as a rifle with a cut or sawed-off barrel. There were socks covering the areas on the gun that were touched to prevent fingerprints. Ruiz testified that the gun belonged to two other gang members, but Gonzalez brought the gun into Ruiz' pickup. Ruiz observed a blue pickup follow them as he drove away. Ramirez leaned out of the window with the gun, but Ruiz could not tell if he took a shot at the blue pickup because the gun jammed. Gonzalez took the gun from Ramirez and tried to unjam it. As they were driving away, Ramirez threw the gun out of the window into an alley.

Juan Hernandez, Trujillo's brother-in-law, lived in a house near the shooting. On that night, Hernandez was in the house when he heard a loud vehicle drive by and then take off. Someone then came in the house and said shots had been fired, so Hernandez went outside. Hernandez observed a red pickup drive through the alley behind his house approximately 15 feet away. Trujillo also observed a gun being fired from the passenger side of the red pickup by a person wearing a white shirt. Hernandez heard a shot as he was getting into his vehicle and then followed the red pickup to get its license plate.

As Hernandez followed the red pickup, he observed a man lean out of the passenger side window. Hernandez described the man as being bald, wearing a white shirt, and holding a gun with a white bandanna wrapped around it. Hernandez testified that it looked like a short gun. He heard another shot, so he drove back to his house. Police arrived at the residence shortly thereafter.

Officer Corey Sylvester of the Columbus Police Department was on duty the evening of October 30, 2010, and the morning of October 31. At approximately 3 a.m., Sylvester heard reports of a driveby shooting. While he was on his way to the scene, he saw Ruiz' pickup, which had reportedly been observed in the area. Sylvester observed the pickup violate a traffic signal, and then he followed it through several streets and alleys. When Sylvester caught up to Ruiz'pickup, he activated his patrol car's lights and initiated a traffic stop. Ramirez was observed sitting in the passenger seat and was wearing a white T-shirt and had his head shaved.

After placing the red pickup's occupants in custody, Sylvester retraced his route to search the area and located a rifle in an alley. The rifle had a bullet jammed in the barrel. Sylvester also went with a Columbus Police Department investigator to speak with Hernandez. Hernandez guided the officers through the route on which he followed the red pickup. Sylvester searched the area and located a .22-caliber shell casing in the street. No other shell casings or bullet impacts were located by Hernandez' house.

At the police station, the investigator examined the rifle and cleared the round that was jammed in the chamber. The rifle and spent .22-caliber shell casing were also examined by a firearm and toolmark examiner for the Nebraska State Patrol Criminalistics Laboratory. She determined that the shell casing had been fired from the same gun that she examined in the laboratory.

There was evidence presented that the .22-caliber rifle had been stolen from a home in a September 2010 burglary. The homeowner identified the rifle that was recovered in this case as his, but he noted that the stock and barrel were cut off. The homeowner had the owner's manual with the rifle's serial number, which matched that found on the rifle that was recovered in this case and entered into evidence.

During the State's questioning of another Columbus Police Department investigator, Jeremy Zywiec, concerning his investigation in this case, the following exchange was had on the record: "Q. And based on that information, what did you do next? A. After speaking with [Ruiz], I attempted to speak with . . . Ramirez and . . . Gonzalez, both, and they were both uncooperative." Ramirez' attorney promptly objected and moved to have the answer stricken. Outside the presence of the jury, Ramirez' attorney also requested a mistrial based upon Zywiec's testimony. Ramirez' motion for mistrial was argued, and the issue was taken under advisement by the court. When the jury returned, the court stated that the objection posed by Ramirez was sustained and that the last response of the witness was stricken from the record and should be disregarded.

At the end of the State's evidence, Ramirez moved to dismiss all the charges against him. The district court overruled the motion with respect to counts II, IV, V, and VI. The court sustained the motion as to count VII, conspiracy to commit stalking with a weapon, because of the State's failure to offer sufficient evidence as to certain material elements of that particular charge. With regard to count III, unlawful discharge of a firearm at an occupied building, the court took the motion to dismiss under advisement and ultimately dismissed that charge as well. At that time, the court also overruled Ramirez' motion for mistrial based upon Zywiec's testimony.

As part of Ramirez' presentation of evidence, Perez testified that at the time of the events in question, she was living at the "gang house" during the week and some weekends. Perez testified that early in the morning on October 31, 2010, she was riding in Ruiz' pickup with Ruiz, Ramirez, and Gonzalez. Perez was dressed in a Halloween costume, with a painted face and wearing black clothing. After going to the gas station, they continued to drive around, listening to music. Perez never saw a firearm in the vehicle or at the house.

Perez later took the stand for a second time, wanting to change her testimony. Perez admitted that her first story was not the truth and that she lied because she was scared. This time, Perez testified that she was involved in a driveby shooting on the morning in question and that she shot the gun. Perez testified that she had stolen the gun by herself from a residence in Columbus and had put the gun in Ruiz' truck. Perez testified that she shot at a vehicle in the alley, because she thought it might belong to an Escos that she fought with earlier in the night at a bar. Perez testified that she was intoxicated and that it was possible she shot the gun again later. When they drove down another alley, Perez threw the gun out of the window.

Ramirez recalled Zywiec, who testified that he requested the State Patrol to do latent fingerprint and DNA testing on the firearm, magazine, and shell casing. There were no fingerprints or DNA detected on the items tested that conclusively belonged to Ramirez. There was no gun residue testing done on any of the occupants of Ruiz' pickup, because the officers did not...