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declining to address the State’s cross appeal where defendant’s conviction was affirmed
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No. 37172-7-III
10-19-2021
STATE of Washington, Respondent, v. Kevin Eugene KELLY, Appellant.
Gregory Charles Link, Richard Wayne Lechich, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant. Larry D. Steinmetz, Brett Ballock Pearce, Gretchen Eileen Verhoef, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent
Gregory Charles Link, Richard Wayne Lechich, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Larry D. Steinmetz, Brett Ballock Pearce, Gretchen Eileen Verhoef, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent
OPINION PUBLISHED IN PART
Fearing, J.
¶ 1 Kevin Kelly (Kelly) appeals from his conviction for violating a no contact order when directing another person to text his wife, Julie Kelly (Julie). Kelly assigns error to evidentiary rulings, the failure to deliver a jury unanimity instruction, and alleged prosecutorial misconduct during jury summation. We find no error and affirm Kelly's conviction.
FACTS
¶ 2 We take the facts primarily from trial testimony. On April 16, 2019, during defendant Kevin Kelly's appearance for a separate charge, the trial court entered a domestic violence no contact order prohibiting Kelly from contacting, directly, indirectly, or through others, his wife, Julie Kelly. This prosecution arises from the alleged violation of the order. After the trial court entered the no contact order, the State of Washington confined Kelly in the Spokane County Jail. Alexander Maravilla stayed in the same cell as Kelly.
¶ 3 While Kevin Kelly was jailed, Julie Kelly received multiple telephone calls from the Spokane County Jail. Julie either did not answer the call, or, when she did answer, the caller disconnected immediately. Although Julie knew other people confined in the Spokane County Jail, she assumed that Kelly sought to contact her, as she did not expect anyone else from the jail to call her. Neither party explains why someone initiated the call when he or she disconnected immediately.
¶ 4 At 8:32 a.m. on May 14, 2019, Julie Webster received a telephone call from her son, Alexander Maravilla. Their call lasted fifteen minutes. The Spokane County Jail recorded the telephone conversation between Maravilla and Webster. On the recording, Maravilla states:
"My cellie wants to know if you'd do him a favor. Text this number and see if his old lady will put ten bucks on his books or whatever and say that he loves her. ... I don't know her name, you just say hi pumpkin, love and miss you, can you put ten bucks on my books."
Report of Proceedings (RP) at 10. During the call, Webster sent a text message to Julie Kelly, which read, " ‘Hi, Pumpkin. I love and miss you. Is there any way you can put $10 on my books?’ " RP at 218. Webster did not recognize Julie Kelly's phone number, nor did she know Kevin or Julie Kelly. Webster, as heard on the jail recording, affirmed to her son, Maravilla, that she sent the text message to Julie Kelly.
¶ 5 Julie Kelly believed that Kevin Kelly prompted the text message received from the unknown texter, because "he's the only one that calls me ‘Punky’ and I don't know anybody else in the jail that would say I love you and I miss you." RP at 172. Julie Kelly did not respond to Julie Webster's text message. Julie Kelly understood that the phrase " ‘putting money on the books’ " referred to depositing money in an inmate's account for the purpose of purchasing goods while incarcerated. RP at 171.
¶ 6 After receiving Julie Webster's text message on May 14, 2019, Julie Kelly contacted a victim advocate. On May 16, 2019, Officer Kaitlyn Anderson interviewed Julie Kelly in her home. Officer Anderson contacted Officer Alisha Nguyen, of the Spokane Police Department, to investigate the phone calls and text message that Julie received.
¶ 7 Officer Alisha Nguyen reviewed Spokane County Jail telephone records to identify the inmates who called Julie Kelly. At trial, Officer Nguyen explained that the jail assigns each inmate a unique pin number used to make phone calls from jail. Officer Nguyen discovered that Julie received ten telephone calls from the jail. None of the calls originated from Kevin Kelly's pin number. Rather, three inmates’ pin numbers had been used to contact Julie: Brendan Dalla, Anton Santrone, and Kelly's cellmate, Alexander Maravilla. All three of these inmates were on the same cellblock as Kelly.
PROCEDURE
¶ 8 The State of Washington charged Kevin Kelly with one count of felony violation of a no contact order. The State alleged that Kelly, with knowledge that an order prohibited contact, contacted Julie Kelly on May 14, 2019. The State also alleged that Kelly had been convicted at least twice before of violating no contact orders. Kelly stipulated that he garnered at least two earlier convictions for violating court orders.
¶ 9 Before trial, the State, pursuant to ER 801(d)(2)(v), sought to introduce statements uttered by Alexander Maravilla to his mother, Julie Webster, during the May 14, 2019 telephone call. The State argued that Maravilla spoke in a role as a coconspirator in furtherance of a conspiracy with Kevin Kelly. Alternatively, the State sought to introduce the directions of Maravilla to his mother for a nonhearsay purpose, its effect on the listener, Webster. The State never sought to play the recorded telephone conversation for the jury.
¶ 10 During argument on pretrial motions, the trial court commented that the State needed to establish by a preponderance of the evidence that Alexander Maravilla knew that a no contact order prohibited Kevin Kelly from contacting his wife in order to show a conspiracy between the cellmates. The court found that the State had not satisfied its burden and, therefore, ruled that the coconspirator exception did not apply.
¶ 11 Immediately after the trial court's ruling denying admission of the contents of the May 14 telephone call, the State moved for a trial continuance, so that it could subpoena Alexander Maravilla and transport him from custody to testify. Kevin Kelly, through counsel, objected to a continuance because trial had been postponed before at the request of the State. Kelly further argued that the State should have planned in advance for the possibility that the trial court would deny admission of the telephone conversation. The trial court denied the motion for a trial continuance. The court commented that the State had made a strategic decision not to earlier subpoena Maravilla and that a continuance would prejudice Kelly.
¶ 12 During the pretrial motion hearing, the State also informed the trial court that it intended to ask Julie Webster, during trial testimony, why she sent the text message to Julie Kelly. The State remarked that Webster would answer that Alexander Maravilla asked her to send the message. The State argued that such testimony would not be offered for the truth of the out-of-court statement by Maravilla, but to show the statement's effect on Webster. Over Kevin Kelly's objection, the trial court ruled the statement of Maravilla to his mother, during the May 14 telephone conversation, was admissible as nonhearsay.
¶ 13 In his opening statement, Kevin Kelly, through counsel, asserted that Julie Kelly used her allegation that he violated the no-contact order to improve her position in the couple's upcoming divorce proceeding. Kelly highlighted that, shortly after the State charged him with a crime, his wife Julie filed for divorce.
¶ 14 At trial, the State called Julie Webster to testify. During direct examination, the following exchange occurred:
Q How did you get that number [Julie Kelly's]?
A My son was given it by somebody in the jail.
MR. [JOSEPH] KUHLMAN [defense counsel]: Objection, Your Honor.
THE COURT: Sustained.
MR. KUHLMAN: Move to strike and request the jury to disregard.
THE COURT: I will instruct the jury to disregard that last comment.
Q (By Ms. [Hannah] Stearns [the State's attorney]) Ms. Webster, did your son provide that phone number to you?
A Yes.
RP at 158. Julie Webster testified at trial that Maravilla asked her to send Julie Kelly the text message. Webster did not repeat any of the other content from the May 14 phone conversation with her son other than her son giving her the cell number to text. The trial court excluded testimony that someone in the jail had given Maravilla the cell phone number. Therefore, Webster did not testify that Kevin Kelly told her son to direct her to send the text message.
¶ 15 During cross-examination of Julie Webster, Kevin Kelly's counsel asked about Alexander Maravilla's jail sentence. The State objected to the question on relevancy grounds. The trial court overruled the objection. Webster then testified that Maravilla was serving five years, not for murder, but for another crime. Defense counsel probed further:
So what about the other charge that he was looking at, that big murder charge? What is he serving
RP at 161. The trial court then sustained the State's previous relevancy objection. Counsel later asked Julie Webster, "Is this the effort of your son to work out a better deal for himself?" RP at 161. After Webster responded in the negative, the trial court sustained the State's objection to the question.
¶ 16 During defense counsel's cross-examination of Julie Kelly, counsel asked whether she contacted law enforcement after receiving the text message from Julie Webster. The following colloquy occurred:
A I called Jennifer (sic), my prosecuting attorney advocate.
Q Okay. So then—so you called the prosecutors and not even the police?
A I called my advocate, that's what she's there for.
Q So you're not worried. There's nothing threatening in this message but—
A It's from Kevin and Kevin's incarcerated and Kevin had just choked me out .
MR. KUHLMAN: Excuse me, Your Honor, strike for nonrespensive [sic].
THE COURT: Overruled.
Q (By Mr. Kuhlman) There is nothing in this message—he's in custody?
A Right.
RP at 175-76 (emphasis added).
¶ 17 Thereafter, defense counsel inquired about Kevin and Julie Kelly's pending divorce proceeding: "And does a violation order charge help a divorce in your favor?" RP at 177. The trial court sustained the State's objection to this question.
¶ 18 On the State's redirect examination of Julie Kelly, the following exchange occurred regarding her upcoming divorce proceeding:
Q So why did you file for divorce?
MR. KUHLMAN [defense counsel] Objection, Your Honor. This is unduly prejudicial and a relevance issue.
THE COURT: Overruled. I'll allow recross as well.
MR. KUHLMAN: Thank you.
Q (By Ms. Stearns [prosecuting attorney]) Why did you file for divorce, Ms. Kelly?
A Because Mr. Kelly is a drug addict .
RP at 179 (emphasis added). Defense counsel objected to Julie Kelly's answer and moved the trial court to strike the answer. The trial court sustained Kevin Kelly's objection and excused the jury.
¶ 19 Outside of the jury's presence, Kevin Kelly, through counsel, requested a curative instruction and a direction that Julie Kelly be prohibited from further testifying "along these lines." RP at 180. The State mentioned that it had previously objected to any testimony concerning a divorce, but the trial court overruled its objection. The State's attorney continued:
Once Mr. Kuhlman [defense counsel] brought it up I think it's appropriate the State respond. The door has been opened. The reason why she filed for divorce is appropriate since Mr. Kuhlman has insinuated that she filed for divorce in retaliation to make this case better. If he's going to make those insinuations on the record, in opening statement and in his cross of Ms. Kelly, it is extremely appropriate that the State be able to respond and Ms. Kelly be able to respond.
RP at 180.
¶ 20 The trial court agreed with the State that Kevin Kelly had opened the door as to Julie Kelly's motives for seeking a divorce. Nevertheless, the court found Julie's reference to drugs to be highly prejudicial under ER 404(b). The trial court resustained Kelly's objection to Julie's comments about unlawful drugs and agreed to issue a curative instruction. The State clarified that it did not expect Julie to mention any drug use and assured the court that Julie's answer to the question of her reason for the divorce would relate to the couple's relationship being unhealthy. When the jury returned, the trial court struck Julie's statement about Kelly being a drug addict. Kelly elected not to further cross-examine Julie.
¶ 21 Officer Kaitlyn Anderson testified to Julie Kelly's demeanor when the officer interviewed her on May 16, 2019. Officer Anderson avowed that Julie "was upset from the start, she was crying. It was hard for her to talk and tell me why I was there." RP at 188.
¶ 22 During cross-examination by defense counsel, Officer Kaitlyn Anderson mentioned that she had not reviewed her body camera before testifying at trial. The following exchange then occurred:
Q And when you get there, when you show up two days later can you again describe the demeanor of Ms. Kelly?
A I believe she was crying, she seemed upset, she didn't—it was hard for her to get into really what was going on.
....
Q ... She's putting on this big emotional display for you when you go to take a statement from her?
A Correct.
RP at 193.
¶ 23 During a recess, Officer Kaitlyn Anderson reviewed her body camera footage of her interview with Julie Kelly. After recess, she testified as follows:
Q ... So upon reviewing the body cam, what would be the correct representation of the demeanor of Ms. Kelly?
A Very down, choked up.
Q Was she calm?
A I would say calm, a little jumbled in her thoughts.
Q She wasn't crying, was she?
A I remember watery-eyed.
Q But she wasn't crying.
A (No response.)
Q Was she sobbing?
A Not sobbing.
Q Was she screaming?
A No.
Q Was she distraught?
A No .
Q So any inference that we're trying to give the jury that she was, in fact, distraught
or having some grand emotional response, that would be untrue .
A Okay, correct .
RP at 210-11 (emphasis added).
¶ 24 During Officer Alisha Nguyen's testimony, defense counsel cross-examined her regarding her experience with domestic violence orders being used as leverage in family law matters:
Q ... Now, also, since you have so much experience with these, you've seen domestic violence orders can be used as leverage in family law hearings before?
MS. STEARNS [the State's attorney] Objection, Your Honor, no relevance.
THE COURT: Sustained.
Q (By Mr. Kuhlman) Have you ever seen a pretrial no-contact order used in an offensive manner instead of a defensive matter [sic]?
A I don't know what peoples’ outlook at it is if there's a no-contact order violation or not.
Q So you've had no interest, you have never followed through, you have never worked with prosecutors to see if someone inappropriate is using an order?
A It would be speculation on our part. I don't know if that's actually the case.
Q So you just arrest them and you're done?
A Well, no, we follow through with the case.
Q So you follow through. Have you ever seen that?
A Some people might be going through a divorce or something. I can't prove that.
Q I am not asking you to prove it, Officer. I'm asking have you seen it?
MS. STEARNS: Your Honor, I'll object. It calls for speculation.
THE COURT: Sustained.
RP at 220-21.
¶ 25 During the trial court's jury instruction conference, Kevin Kelly voluntarily withdrew all of his proposed jury instructions except for an instruction about Kelly's right not to testify and a missing witness instruction based on Alexander Maravilla's absence from trial. In response, the State argued that Kelly failed to satisfy all of the elements required for a missing witness instruction. The State contended that the State did not control Maravilla, that Kelly could have subpoenaed Maravilla, and that the State did not intentionally fail to call Maravilla to the stand.
¶ 26 The trial court decided to deliver a missing witness instruction. The court concluded that the State controlled Alexander Maravilla and that Maravilla was a critical witness.
¶ 27 In its closing argument, the State referred to Julie Webster's testimony:
That text message, the one we've been talking about this whole trial, was sent from Ms. Webster's phone to Ms. Kelly's phone. Ms. Webster sent that message at the direction of her son, Alexander Maravilla. While Ms. Webster was on the phone with her son on May 14th, 2019, she sent the message to Julie Kelly. While Ms. Webster was on the phone with her son, Mr. Maravilla, he was cellmates with Kevin Kelly.
You heard from Ms. Webster that the phone number, Ms. Kelly's phone number, came to her from her son. She didn't know that number; she never met Ms. Kelly. Mr. Kelly's cellmate gave his mother Ms. Kelly's phone number .
On that day of May 14th, 2019, Mr. Kelly and Mr. Maravilla were cellmates on 5 West, Cell 16. They were cellmates the day the violation of no-contact order occurred.
RP at 292 (emphasis added). Kevin Kelly did not object to this portion of the State's argument.
¶ 28 During closing argument, the State discussed the ten phone calls that Julie Kelly received from the Spokane County jail:
Prior to that and during that period, Ms. Kelly received ten phone calls from the jail, all of which were from 5 West, all of which were from the pin numbers from persons residing on the same floor as Mr. Kelly. Those calls included calls from Mr. Maravilla's pin number as well as Mr. Dalla
and Mr. Santrone. Ms. Kelly testified that she did not know those people.
Officer Nguyen testified about her role in the domestic violence unit with the Spokane Police Department, that this tactic, using other peoples’ pin numbers to hide your identity is very common in domestic violence cases. That an inmate will use somebody else's pin number so that their name is not associated with the phone call that violates the no-contact order.
She further testified that one of the persons whose pin number was used, Mr. Dalla, is known to law enforcement for doing this very thing. He's given his pin number out previously for the same reason.
RP at 292-93.
¶ 29 The State analyzed for the jury the elements of the charged crime. The State's attorney commented: "Here Ms. Kelly received a text message that she knows is from her husband, Kevin Kelly." RP at 298. The State then highlighted the ten phone calls Kelly allegedly made to try to contact Julie. State's counsel added: "when he couldn't get through to her by phone, he resorted to a text message." RP at 299.
¶ 30 During closing, the State examined Alexander Maravilla's and Julie Kelly's motivations:
What do we not have as evidence? We do not have a motive from Mr. Maravilla. There is no motivation in evidence or for why he would or would not be here. That's not evidence, you cannot consider it.
We also don't have a motive for Ms. Kelly. There's no motive for her to lie, to make up accusations, to come in here and testify falsely. There's no evidence. That cannot be considered.
RP at 321.
¶ 31 The State reviewed, for the jury, Officer Kaitlyn Anderson's testimony regarding Julie Kelly's demeanor when she reported the text message from Julie Webster:
And she [Officer Anderson] testified initially that she [Julie Kelly] was upset and distraught, and after watching her body camera she testified again that Ms. Kelly was upset and distraught .
MR. KUHLMAN: Objection, Your Honor. Mischaracterization of evidence.
THE COURT: Overruled.
MS. STEARNS: The officer clearly said she had watery eyes, she was upset, she was anxious, she was crying. Upset and distraught . There's no change in demeanor, there's no grand elaborate plan to frame Mr. Kelly.
RP at 325 (emphasis added).
¶ 32 The trial court instructed the jury that, to convict Kevin Kelly, the State needed to prove beyond a reasonable doubt that "on or about May 14, 2019," with knowledge of the existence of a no-contact order, Kelly violated the order. Clerk's Papers (CP) at 41. The jury found Kevin Kelly guilty of felony violation of a no-contact order against a member of his family or household.
LAW AND ANALYSIS
¶ 33 On appeal, Kevin Kelly assigns six trial errors. First, the trial court erred when admitting Alexander Maravilla's out-of-court statement to his mother to show its effect on the listener when the State primarily used the statement to prove that Maravilla directed his mother to contact Julie Kelly. Second, the trial court interfered in Kelly's constitutional right to present a defense by prohibiting him from questioning Julie Webster, Julie Kelly, and Alisha Nguyen about the motive behind his accusers’ allegations and precluding questions that would undermine the accusers’ credibility. Third, the trial court thereby also interfered in Kelly's right to effectively argue, during closing, the lack of credibility of his accusers, which interference also violated Kelly's right to present a defense. Fourth, the trial court erred by refusing to strike Julie Kelly's irrelevant, prejudicial, and nonresponsive answer regarding Kelly's alleged domestic violence. Fifth, the prosecuting attorney committed misconduct during closing argument by arguing facts not in evidence and vouching for the credibility of Julie. Sixth the trial court erred when failing to deliver a jury unanimity instruction.
¶ 34 The State cross-appeals. The State assigns error to the trial court's refusal to permit the playing of the jail recording of the conversation between Alexander Maravilla and Julie Webster. The State claims the coconspirator rule authorized the playing. Since we affirm the conviction of Kevin Kelly, we do not address the cross-appeal.
Alexander Maravilla's Directions to his Mother
¶ 35 Issue 1: Whether testimony from Julie Webster that her son directed her to contact Julie Kelly constituted inadmissible hearsay?
¶ 36 Answer 1: No.
¶ 37 Kevin Kelly argues that the trial court erroneously admitted testimony from Julie Webster that her son, Alexander Maravilla, told her by phone to text Julie Kelly. Kelly does not object to the State's closing argument, during which the prosecutor argued that Kelly asked Alexander Maravilla to direct Maravilla's mother to text Julie. The State responds that it introduced Maravilla's statement as evidence to explain why Julie Webster sent the text message to Julie Kelly, a nonhearsay purpose. Kelly asserts that, while the State professed to introduce the statement to show the effect on Webster, the listener, the State offered the statement to prove the truth of the matter asserted—that Maravilla directed his mother to text Julie Kelly.
¶ 38 We decide this issue on a related, but distinct, basis than argued by the State. The Court of Appeals may uphold the trial court on a proper basis even though the trial court did not rely on that particular theory. State v. Heiner , 29 Wash. App. 193, 198, 627 P.2d 983 (1981). Because the challenged remarks of Alexander Maravilla to his mother were in the nature of a request, the comment was not hearsay. Thus, we need not assess the State's reason for introducing the testimony.
¶ 39 This court reviews whether a statement is hearsay de novo. State v. Edwards , 131 Wash. App. 611, 614, 128 P.3d 631 (2006). Hearsay is generally inadmissible, except as permitted by evidence rules, other court rules, or by statute. ER 802.
"Hearsay" is a statement , other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
ER 801(c) (emphasis added). In turn,
[A] "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
ER 801(a). Under the hearsay rule, a "statement" is "a declaration of matters of fact." Eagle v. Unemployment Compensation Board of Review , 659 A.2d 60, 62 (Pa. Commw. Ct. 1995).
¶ 40 Pursuant to ER 801(a), a nonassertive statement does not constitute hearsay. State v. Modest , 88 Wash. App. 239, 249, 944 P.2d 417 (1997) ; State v. Collins , 76 Wash. App. 496, 498-99, 886 P.2d 243 (1995). For example, an inquiry is not hearsay because the questioner is not asserting a fact or a belief. State v. Collins , 76 Wash. App. 496, 498-99, 886 P.2d 243 (1995). In State v. Collins , a prosecution for possession of cocaine with the intent to deliver, this court affirmed the admission of a police officer's testimony that he answered the phone at the defendant's apartment and callers asked for the defendant by name. The truth of the name of the defendant was irrelevant, only that callers mentioned his name.
¶ 41 When we speak of proving the truth of the matter asserted we can only be speaking of a factual assertion, not an order or a command, not a question or a request. Eagle v. Unemployment Compensation Board of Review , 659 A.2d 60, 62 (Pa. Commw. Ct. 1995). The hearsay rule does not forbid the introduction of evidence that a request has been made when the making of the request is significant irrespective of the truth or falsity of its content. Taylor v. Centennial Bowl, Inc. , 65 Cal. 2d 114, 125, 416 P.2d 793, 52 Cal. Rptr. 561 (1966).
¶ 42 In a handicap discrimination case, the employee's spouse's request for an accommodation did not constitute hearsay. Adams v. Crestwood Medical Center , 504 F. Supp. 3d 1263 (N.D. Ala. 2020). In an unemployment compensation case, directions by the work manager to the employee also did not constitute hearsay. Eagle v. Unemployment Compensation Board of Review , 659 A.2d 60, 62 (Pa. Commw. Ct. 1995). In Taylor v. Centennial Bowl, Inc. , 65 Cal. 2nd 114, 125, 52 Cal.Rptr. 561, 416 P.2d 793 (1966), a victim's request for police assistance was ruled as admissible. Finally, in Texas Employment Insurance Association v. Fish , 266 S.W.2d 435 (Tex. Civ. App. 1954), a worker compensation claim, the court held admissible, as not hearsay, the employee's testimony that his supervisor told him to quit his job.
¶ 43 Alexander Maravilla's direction to his mother to contact Julie Kelly was assertive in the nature of being bossy or forward. But, the direction was not assertive in the sense of declaring a fact or belief. The truthfulness of Alexander Maravilla's request was irrelevant. The request was relevant to the prosecution simply by the fact that Maravilla uttered the entreaty.
¶ 44 A majority of this panel has determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports. Therefore, it is ordered that the remainder of this opinion, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Lawrence-Berrey, J.
Staab, J.