Zaldivar-Medina v. State

JOSE ZALDIVAR-MEDINA v. STATE OF MARYLAND

No. 371

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 3, 2021

Circuit Court for Montgomery County

Case No. 131258C

UNREPORTED

Nazarian, Gould, Wright, Alexander (Senior Judge, Specially Assigned), JJ.

Opinion by Nazarian, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Jose Zaldivar-Medina was convicted by a jury in the Circuit Court for Montgomery County of two counts of first-degree assault, two counts of conspiracy to commit first-degree assault, malicious destruction of property, conspiracy to commit malicious destruction of property, and participation in a criminal gang. After a postconviction proceeding, he was permitted to file this belated appeal. He argues that the trial court gave the jury legally erroneous jury instructions on accomplice liability and that the evidence was insufficient to support his convictions for first-degree assault and conspiracy. We affirm.

I. BACKGROUND

On April 7, 2016, Eric Madariaga-Chavez and his brother, Miguel, got into Eric's blue Nissan Altima and went to the Lakeforest Mall in Montgomery County.¹ Each wore clothing that contained the color red. After they went inside the mall to exchange a cell phone, they returned to their car to find all four tires slashed.

Eric looked around and saw five or six people coming towards them from the Cider Mill area near the mall. These individuals were saying "MS-13" and making hand signs as they approached.² Because he believed that the hand signs indicated that these people intended to kill him, Eric told Miguel to run for his life. They were chased towards the mall entrance where they encountered Jordi Sanchez Rodriguez, a person they knew fromplaying soccer in the area.³ Mr. Rodriguez was armed with a knife and told Eric that his "time had arrived." Upon hearing that, Eric ran into the mall, followed by Miguel. He testified that Mr. Rodriguez stabbed Miguel during the pursuit.

Eric called 911 during the chase and the jury listened to the recording. During the 911 call, Eric described his attackers and indicated that he thought they were waiting for him near his car. He also told the dispatcher that he thought they all had knives, although he saw only two. He indicated as well that his brother had been cut. A video from the parking lot was admitted into evidence, and Eric identified himself, his brother, and Mr. Rodriguez in that video.⁴

Miguel corroborated his brother's account of the incident. He confirmed that they ran towards the mall after they saw the group chasing them, and that he recognized Mr. Rodriguez near the entrance. He also saw Mr. Rodriguez pull a knife on Eric, and after Eric escaped into the mall, Mr. Rodriguez came after him. According to Miguel, Mr. Rodriguez started "insulting" him and was making motions as if he was going to kill him. Mr. Rodriguez told Miguel that he was in MS-13 and that "this is the gang, son of a bitch," then stabbed him in the "rear end." Miguel sustained what one of the testifyingofficers described as a "superficial cut" to the left buttock.

Mr. Rodriguez testified for the State at trial. He stated that he knew Mr. Zaldivar-Medina and identified him for the record. Mr. Rodriguez acknowledged that he was incarcerated at the time of this trial for first-degree assault on Miguel. Mr. Rodriguez confirmed that he was at the Lakeforest Mall on the day in question and that he was photographed outside in the parking lot along with other individuals, including Mr. Zaldivar-Medina.

Mr. Rodriguez also confirmed that Mr. Zaldivar-Medina was with him, along with three other people, when the fight broke out in the parking lot. Mr. Zaldivar-Medina ordered Mr. Rodriguez to show up to the mall. He testified that Mr. Zaldivar-Medina told him that "we were going to do something to someone." Mr. Rodriguez did as he was told out of "fear."

Mr. Rodriguez testified that he met Mr. Zaldivar-Medina near the entrance to the mall, where he told him to "go stab a person," referring to Miguel. Mr. Rodriguez explained that Mr. Zaldivar-Medina told him to stab the victim because "[s]upposedly they were gang members" of a rival gang known as "Black 18." Mr. Rodriguez admitted that he was the one who slashed the tires of the Chavez brothers' vehicle.

Mr. Rodriguez then confirmed that when the brothers came out and saw that their tires had been slashed, he and his companions chased them. Mr. Rodriguez admitted that he stabbed one of the brothers during the pursuit. He later clarified that "I didn't stab him. I just scratch him over the clothes." Afterwards, Mr. Rodriguez met Mr. Zaldivar-Medina and told him that he stabbed one of the brothers, to which Mr. Zaldivar-Medina replied"that's good."

Mr. Rodriguez testified that Mr. Zaldivar-Medina told him that he was in MS-13, and specifically the Coronado clique. Mr. Zaldivar-Medina told him that he was ranked a "homeboy" in the gang. Mr. Rodriguez agreed that he did "favors" for the gang members.

On cross-examination, Mr. Rodriguez admitted that he was in a separate section of the mall parking lot during the incident and that he was the only one who chased the victims. He testified that Mr. Zaldivar-Medina did not tell him to slash the tires of the Chavez brothers' vehicle. On redirect examination, Mr. Rodriguez maintained that he was afraid of Mr. Zaldivar-Medina "[b]ecause he's the boss of our gang or something."

Detective Hugo Salazar testified that he spoke to Mr. Zaldivar-Medina on June 8, 2016, after he was arrested. A redacted recording of that interview was admitted into evidence, as was a redacted transcript translated from Spanish to English.⁵ During the trial, an interpreter, Marta Sophia Goldstein, read the entirety of the redacted interview, as transcribed in the trial transcript.⁶ During that interview, Mr. Zaldivar-Medina agreed that he was a "homeboy" in MS-13. When asked who did the stabbing, he said that "[i]t was Jordi. He's the one who stabbed" and that it was "[j]ust to impress (unintelligible)."Mr. Zaldivar-Medina confirmed he was there along with several other gang members from both MS-13 and its rival, 18^th Street. Mr. Zaldivar-Medina stated that "Jordi," meaning Mr. Rodriguez, slashed the tires on the blue vehicle and that he was present when that happened. As recounted to the jury by the translator, Mr. Zaldivar-Medina described the encounter to the officers in detail:

Just like they know who we are, we know who they are. Okay. You watched them. That's what I mean. And the Peruvian was one of the ones who was there that day? No. He wasn't there that day. How do you know who they were? That he runs with them? Well yeah. He hangs with them. Well, yeah. They have a friend who has three sixes on his head. The three sixes means 18. They have it fixed who has it like that with three sixes tattooed to his head.

So what like we saw him there and after -- after we slashed the tires on his car it happened. We were walking. Jordi had a knife. And Jordi ran all the way that way. And we were coming this way and we were just coming practically just to look. And you ran what? Following them? Following them, you know. And they escaped? They ran from all of you? Yeah. When they saw us coming they don't know me. They don't know me. I don't know them either. The one they know is Insoportable. [sic] Or Psycho. But to tell you the only one I know is Montana.

You know. Tony Montana. The one is who 35. 18 tattoos. Uh-huh. I do know him personally but he wasn't there. No. He wasn't there. So then when they saw us they took off running but I think Jordi stabbed of them you know. Okay. He followed him and threw him on the ground. You know. So that's what happened.

Mr. Zaldivar-Medina told the questioner that although he did not have a knife, he wanted to "scare him." When asked if they "ambushed him," Mr. Zaldivar-Medina replied affirmatively. He confirmed that he knew the victims had been inside the mall, but maintained that "Jordi was the one who did everything." He also agreed that "Jordi plannedall this to go up in the Coronado clique."

The questioner then asked Mr. Zaldivar-Medina if he ordered this assault to see if Jordi would "pass the test" to see if they could trust him, and he replied "I didn't want to do anything." He stated "[s]o well, if you want let's go. Let's go. Look. I told him until I see they are beating you up I'm not going to get involved because there are four of you. They are not two, three, four at the max. You don't need my help. But because I'm the homeboy. They're supposed to take care of me. Not me them." Mr. Zaldivar-Medina continued:

The thing is I just told them what they could do but I didn't tell them -- I didn't tell them to go do it. I told them how to do things. Okay. So what did you explain to them? I told them look. What you can do here is look for the car. And when you look for the car slash the tires so they won't run in the car. Uh-huh.

And then well [sic] fight it out then. Okay. Now don't do it you jerk if they have a piece or a gun in the car you're not going not get them that way.

Mr. Zaldivar-Medina agreed that his companions asked him what they should do, whether they should just "screw with his car," and he replied, "I said to them if you want. I said to them well then you know what they have to do and I had to do -- let them do it and I left." He apparently regretted giving this order, stating, "primarily in the place they did it was my mistake to tell them to do it. Because it's a mall. It's cameras. It's everything." He expressed further regret:

That was stupid. So well, what's done is done and like what I'm telling you the one who was all hype to do that was Jordi. You know. And do you think -- you think for what? He didn't go up. Because he didn't go up. Okay. He

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