State Of Washington, V. Kevion Maurice Alexander ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80476-6-I
Respondent, DIVISION ONE
v.
KEVION MAURICE ALEXANDER, UNPUBLISHED OPINION
Appellant.
CHUN, J. — A jury found Kevion Alexander guilty of first degree murder
and two counts of witness tampering. Alexander appeals, claiming
(1) prosecutorial misconduct, (2) evidentiary error about an adoptive admission,
(3) violation of CrR 2.3(d), (4) erroneous admission of historical cell cite location
information, and (5) denial of his right to present a defense. For the reasons
discussed below, we affirm.
I. BACKGROUND
Alexander and Mykalla James dated. During their relationship, James met
Andre Aber-Williams through Snapchat. James and Aber-Williams talked over
the phone for a few months. In January 2017, Aber-Williams agreed to meet in
person to discuss potential employment opportunities for James.
According to James’s testimony: Aber-Williams met her outside her
apartment building sometime after 8 p.m. and they sat and had a conversation.
At one point, Aber-Williams drove to Kent and she accompanied him in his dark
green Tahoe. They returned to her apartment complex and again sat outside
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80476-6-I/2
talking until Aber-Williams decided to leave. As Aber-Williams got into his Tahoe,
Alexander appeared and shot him from behind. Alexander got into the Tahoe, on
top of Aber-Williams’s body, drove away, and returned without his body.
Alexander then instructed James to follow him in her car, a white Buick, and left
the complex driving the Tahoe. She followed as instructed and Alexander drove
the Tahoe to his friend Wesley Dade’s house.
Various security camera footage shows a white Buick following a dark
green Tahoe through town and getting into the turn lane for Dade’s street.
The next day, around 2 a.m., a security guard at James’s apartment
complex discovered Aber-Williams’s lifeless body on the ground. The body was
missing jewelry, and one of the pant pockets was turned inside out. The guard
called the police.
That night, firefighters discovered the Tahoe on fire and abandoned about
a third of a mile from Dade’s house. They quickly extinguished the fire and
damage to the car was minimal. They found blood inside the car. Law
enforcement theorized that someone shot Aber-Williams from the back seat. The
Tahoe was missing a stereo system and amplifier.
A week after the death, law enforcement discovered that Dade pawned an
amplifier of the same brand as the one that was likely in the Tahoe. Alexander
accompanied Dade during the transaction. Law enforcement arrested
Alexander, James, Dade, and Dade’s then-girlfriend, Antoinette Brown.
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During her initial interview, James claimed that on the night in question
Aber-Williams had driven off to run an errand and never returned. But as
evidence against her mounted, she implicated Alexander. The State charged
James with rendering criminal assistance and she entered into a use-immunity
agreement to testify against Alexander. The State charged Alexander with first
degree murder and two counts of witness tampering.
At trial, Alexander presented a defense theory that James, desperate for
money, shot Aber-Williams. A jury found Alexander guilty as charged. He
appeals.
II. ANALYSIS
A. Prosecutorial Misconduct
Alexander says that the prosecutor committed misconduct in several
ways. The State responds that its comments were proper and that Alexander
waived most of his arguments. We conclude that reversal is unwarranted on this
ground.
We review allegations of prosecutorial misconduct for abuse of discretion.
State v. Koeller, 15 Wn. App. 2d 245, 260, 477 P.3d 61 (2020), review
denied, 197 Wn.2d 1008 (2021). “A trial court abuses it discretion when its
decision is manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” State v. Ramirez, 7 Wn. App. 2d 277, 286, 432 P.3d
454, review denied, 193 Wn.2d 1025 (2019).
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A prosecutor must ensure that they do not violate a defendant’s right to a
constitutionally fair trial. State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551(2011). To establish misconduct, the defendant bears the burden of first showing
that the prosecutor’s comments were improper. State v. Boyd, 1 Wn. App. 2d
501, 517–18, 408 P.3d 362 (2017); State v. Emery, 174 Wn.2d 741, 759, 278
P.3d 653 (2012).
Once a defendant establishes that a prosecutor’s statements are
improper, we determine whether the defendant was prejudiced under
one of two standards of review. If the defendant objected at trial, the
defendant must show that the prosecutor’s misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury’s
verdict. If the defendant did not object at trial, the defendant is
deemed to have waived any error, unless the prosecutor’s
misconduct was so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice.
Emery, 174 Wn.2d at 760–61 (citation omitted). “Under this heightened
standard, the defendant must show that (1) ‘no curative instruction would have
obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in
prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Id. at
761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011). If
defense counsel fails to object to allegedly improper comments made by a
prosecutor, it “strongly suggests” that the comments “did not appear critically
prejudicial to [the defendant] in the context of the trial.” State v. McKenzie, 157
Wn.2d 44, 53 n.2, 134 P.3d 221 (2006) (emphasis omitted) (quoting State v.
Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)).
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1. Comments about James
Alexander says that, during the State’s direct and redirect examinations of
James, the prosecutor committed misconduct by improperly vouching for her
credibility. He contends that by referencing the use-immunity agreement, the
prosecutor suggested that James was telling the truth. He also says that, during
closing argument, the prosecutor referenced facts not in evidence by noting that
James would face her own jury. The State responds that Alexander waived
these arguments and that its comments were not improper. We conclude that no
ground for reversal exists here.
“Improper vouching generally occurs (1) if the prosecutor expresses his or
her personal belief as to the veracity of the witness or (2) if the prosecutor
indicates that evidence not presented at trial supports the witness’s testimony.”
State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010).
a. Use immunity agreement
During its direct examination of James, the State asked whether she had
been charged with a crime related to the case, and she responded that she had
been charged with rendering criminal assistance. The State then asked whether
she had entered into any agreement with the State and she responded that she
had. She explained her understanding of the agreement: “If I testify that it
won’t—I will have immunity for my case; so whatever I say won’t get rolled over
to my case.” The State then clarified that she had use immunity, which
precluded the State from using her testimony in this case against her in her own
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case; she confirmed this was correct. The State did not inquire on direct
examination about a requirement in the agreement that James tell the truth.
Alexander did not object to any of these questions.
During cross-examination of James, defense counsel raised the use-
immunity agreement multiple times and asked her about how she benefitted from
it. The defense then asked her whether the agreement required her to be
honest, to which she responded “yes.” In questioning her credibility, the defense
mentioned the requirement for truthfulness several more times. The defense
then offered the written agreement into evidence, including the portion requiring
James to “answer all questions about her involvement in these crimes, and the
involvement of any accomplices, completely and truthfully.” The defense also
questioned her about a call between her and Alexander in which she suggested
that if he got out of jail, she would go to jail instead.
On redirect, the State asked James about the call with Alexander and why
she thought she would go to jail if he got out. She responded, “Basically, if I
come up here and either recant my statement or try to tell another statement,
then it would it seem like I was lying the whole time, and I would go to jail versus
he would get out because he didn’t do nothing.” Alexander did not object.
In Ish, our Supreme Court held that a prosecutor committed misconduct
during its direct examination of a witness by referencing a requirement in an
immunity agreement that the witness testify truthfully. 170 Wn.2d at 199 (“where
the credibility of the witness had not previously been attacked, referencing
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No. 80476-6-I/7
Otterson’s out-of-court promise to testify truthfully was irrelevant and had the
potential to prejudice the defendant by placing the prestige of the State behind
Otterson’s testimony”). The court noted that “[e]vidence that a witness has
promised to give ‘truthful testimony’ in exchange for reduced charges may
indicate to a jury that the prosecution has some independent means of ensuring
that the witness complies with the terms of the agreement.” Id. at 198. The court
noted that this is particularly indicative of improper vouching if it occurs during the
prosecutor’s direct examination of a witness. Id. The court said, “A defendant
may, however, impeach a witness on cross-examination by referencing any
agreements or promises made by the State in exchange for the witness’s
testimony.” Id. at 198–99. If this occurs, it opens the door for the prosecutor to
comment on the agreement to testify truthfully on rebuttal. Id. at 199. Despite
the misconduct, the court concluded that any error was harmless, partially
because the defense opened the door on cross-examination and the prosecutor
did not “dwell” on the issue. Id. at 200–01.
Unlike in Ish, during direct examination, the State did not reference the
truthfulness requirement of the use-immunity agreement. During direct
examination, the State did not ask James whether she had to testify truthfully as
part of the immunity agreement and James did not mention the requirement on
her own. Thus, the State did not suggest to the jury that the State had some way
to ensure that James was telling the truth. Alexander was the one to raise the
truthfulness requirement during cross-examination by asking her about it multiple
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times and introducing the agreement itself into evidence.1 Alexander says that
on redirect, by questioning James about the call, the State essentially asked her
what she was worried about happening if she did not testify truthfully. Even if the
State’s questioning could properly be interpreted this way, it was not improper
vouching because Alexander had opened the door for the State to ask about
James’s agreement to testify truthfully.
b. Charges against James
Before closing arguments, Alexander moved in limine to preclude the
prosecutor from committing misconduct in various ways including vouching for
witnesses. The trial court, noting that the language was “boilerplate,” granted the
motion.
During closing argument, defense counsel highlighted the immunity
agreement and urged the jury not to allow James to “get away” with killing Aber-
Williams. During rebuttal, the State said:
Now, it is perfectly understandable that you, as jurors, would want to
see her sitting at this table with the Defendant. That’s a reasonable
desire. She played a significant role in this case. But her criminal
liability and her precise role is not the question for you. This is not
Mykalla James’s trial. That will be up to some different set of jurors.
And I’m asking you not to let your very reasonable desire to
see everybody involved in this held accountable, to prevent you from
1
The State says that because Alexander was the one to raise the truthfulness
requirement and offer the use immunity agreement into evidence, the invited error
doctrine bars him from arguing this issue on appeal. See Shavlik v. Dawson Place, 11
Wn. App. 2d 250, 270, 452 P.3d 1241, review denied, 195 Wn.2d 1019, (2020) (the
invited error doctrine prevents a party from affirmatively and voluntarily setting up an
error that induces an action by the trial court and then challenging that action on appeal).
We decline to address the applicability of the invited error doctrine because the
comments were not improper.
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No. 80476-6-I/9
finding that the State has proven beyond a reasonable doubt that the
Defendant is actually the shooter here. Her time will come; she will
have a different trial. This is about the Defendant’s role in this trial,
in this case, and he was the shooter.
Alexander did not object.
Alexander contends that the State’s comments improperly vouched for
James’s credibility by referencing facts outside the record—specifically that
James would face a different jury. The State responds that its comments were
fair and proper responses to Alexander’s defense argument that the State was
letting James “off scot free.” See State v. Gauthier, 189 Wn. App. 30, 38–39,
354 P.3d 900 (2015) (noting that prosecutors may make a “fair response” to
arguments by defense counsel). The comments were questionable at best. But
Alexander does not show that they were so flagrant and ill-intentioned that a
curative instruction could not address any prejudice. See Emery, 174 Wn.2d at760–61;2 see also McKenzie, 157 Wn.2d at 53 n.2 (If defense counsel fails to
object, it “strongly suggests” that the comments “did not appear critically
prejudicial to [the defendant] in the context of the trial.” (emphasis omitted)
(quoting Swan, 114 Wn.2d at 661)). The trial court could have reminded the jury
that the State’s comments were not evidence or instructed it to disregard the
State’s comments. And “[b]ecause we presume that juries will ordinarily follow
the court’s instructions, such an instruction would have substantially alleviated
2
Alexander suggests that his motion in limine preserved an objection to all the
comments discussed above. But the purpose of the objection requirement is to ensure
that the trial court has an opportunity to correct an improper comment and prevent any
error or misconduct from continuing. Emery, 174 Wn.2d at 761–62. The motion in
limine, which was not a specific, contemporaneous objection, does not serve that
purpose. And Alexander cites no law supporting this approach to preservation.
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No. 80476-6-I/10
any prejudice caused by the remark.” State v. Klok, 99 Wn. App. 81, 85, 992
P.2d 1039 (2000).
2. Aber-Williams’s family’s agony
Alexander says the prosecutor improperly appealed to the passions and
prejudices of the jury by referencing the victim’s family’s agony. The State
disagrees and says he waived the issue. We conclude that this issue does not
warrant reversal.
“‘Mere appeals to the jury’s passion or prejudice are improper.’” State v.
Pierce, 169 Wn. App. 533, 552–53, 280 P.3d 1158 (2012) (quoting State v.
Gregory, 158 Wn.2d 759, 808, 147 P.3d 1201 (2006), overruled by State v. W.R.,
Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014)).
During closing argument the State said:
You will, no doubt, during your deliberations spend a lot of
time trying to figure out exactly what happened within those 15
minutes. And you may go round and round on that issue as many
times as the Federal Way Police Department did. You will likely
never agonize over it as much as Mr. Aber-Williams’ family has.
(Emphasis added.) Alexander did not object.
This comment appears to be an appeal to the jury’s sympathy. However,
it was not so flagrant and ill-intentioned that a curative instruction could not
address any resultant prejudice.3 See Emery, 174 Wn.2d at 760–61.
3
Cf. State v. Zellmer, No. 59228-9-I, slip op. at 32 (Wash. Ct. App. May 28,
2013) (unpublished) http://www.courts.wa.gov/opinions/pdf/592289.pdf (finding no
prejudice where the prosecutor referenced the “broken hearts” of the parents of the
murdered child and the defense objected to the comment); see GR 14.1(c) (“Washington
appellate courts should not, unless necessary for a reasoned decision, cite or discuss
unpublished opinions in their opinions.”).
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No. 80476-6-I/11
3. GPS ankle monitor
Alexander says that the prosecutor committed misconduct by pointing out
Dade’s GPS ankle monitor during direct examination of this witness and during
closing argument. He contends that this affected his right to a fair trial because it
interfered with the jury’s ability to make a fair assessment of credibility. The
State says that Dade’s resistance to testifying was relevant to his credibility and
that Alexander waived the argument. We agree with the State.
Dade was reluctant to testify at Alexander’s trial. Indeed, the trial court
issued an out-of-state material witness warrant and law enforcement arrested
him in Houston. A Texas court ordered him to appear for trial and placed a GPS
ankle monitor on him. During his testimony, he contradicted earlier statements
he had made to the police. The State asked him if he was wearing a GPS ankle
monitor as a result of the Texas court’s order to appear for this trial and Dade
responded that he was. Alexander did not object to the question. And during
closing, the State discussed Dade’s close relationship with Alexander and noted
that Dade was a reluctant witness; in doing so, the State commented that he was
wearing an ankle monitor. Alexander did not object.
Alexander relies on State v. Jackson, to argue that pointing out Dade’s
GPS ankle monitor was misconduct. 195 Wn.2d 841, 852, 467 P.3d 97 (2020)
(holding that an individualized inquiry is necessary before shackling a defendant
at pretrial proceedings). But Jackson does not apply; it concerns a defendant’s
constitutional right to appear free of restraints. Id. As the State notes, whether
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No. 80476-6-I/12
Dade was reluctant to testify is relevant to his credibility. That law enforcement
had to track and arrest Dade to obtain his testimony is pertinent. Nor does
Alexander establish that the prosecutor’s comments were so flagrant and ill-
intentioned that a curative instruction could not have addressed any prejudice.
See Emery, 174 Wn.2d at 760–61.
4. Vouching for Brown
Alexander says that the prosecutor improperly vouched for Brown by
saying she had no motive to lie. The State responds that Brown’s credibility was
a fair inference from evidence on the record. We agree with the State.
“Improper vouching generally occurs (1) if the prosecutor expresses his or
her personal belief as to the veracity of the witness or (2) if the prosecutor
indicates that evidence not presented at trial supports the witness’s testimony.”
Ish, 170 Wn.2d at 196.
Brown testified that she conversed with Dade and Alexander shortly after
the shooting during which conversation Dade and Alexander revealed to her that
Alexander had shot Aber-Williams. She testified that she and Dade had broken
up about two years before her testimony. She also said that she had been close
to Alexander but did not have a relationship with James.
During closing argument the State said:
Now, Antoinette Brown has no dog in this fight. She and
Wesley Dade aren’t together anymore. They haven’t been together
for a long time. They broke up in April or May of 2017. It wasn’t a
particularly bad break-up, or a particularly good break-up. They don’t
really keep in contact, and she hasn’t talked to him since probably
Thanksgiving.
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No. 80476-6-I/13
She said that she and Mykalla James were not friends, she
said that the Defendant was like family to her, he was like an uncle
to her boys, and she was close to him. There’s absolutely no reason,
two and a half years later, that Antoinette Brown would come in here
and say something that would implicate the Defendant unless it were
true.
Alexander objected and the court overruled his objection.
The comment was a reasonable inference based evidence in the record
about Brown’s relationships with Dade, Alexander, and James. See State v.
Robinson, 189 Wn. App. 877, 893–94, 359 P.3d 874 (2015) (holding that the
prosecutor did not improperly vouch for a witness when the prosecutor said that
the witness had “no reason to lie” because it was a proper inference from
evidence on the record). Thus, the prosecutor’s comment was not improper.
See State v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 (2010) (“a prosecutor
has wide latitude in closing argument to draw reasonable inferences from the
evidence and may freely comment on witness credibility based on the evidence”).
5. Burden of proof
Alexander says that the prosecutor impermissibly sought to lower its
burden of proof by suggesting that the government need not thoroughly
investigate a crime. The State disagrees and says Alexander waived his
argument. We agree with the State.
“Arguments by the prosecution that shift or misstate the State’s burden to
prove the defendant’s guilt beyond a reasonable doubt constitute misconduct.”
State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014).
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Throughout the trial, defense counsel emphasized that no one sent swabs
from Aber-Williams’s Tahoe to the lab for testing. The crime lab explained that
this was partly because of limited resources at the lab. During closing argument
the prosecutor said:
In a perfect world, every single item would be swabbed for
touch DNA, blood DNA, breath DNA, fingerprints; they would be
immediately sent to the Crime Lab; they would be tested the next
day; they would be able to tell everybody’s actual DNA, when the
DNA was deposited there, under what circumstances it was
deposited, and give you a glimpse of exactly the crime as it
happened.
In reality, that is not at all the way that any of that works. Now,
to be sure, DNA and other forensics have made a lot of gains in the
last decade. They do amazing things. They solve crimes every day.
But not every case rises and falls on forensic evidence, every case
is different, and nowhere in your entire packet of jury instructions
does it tell you that there has to be DNA or fingerprint evidence for
you to be convinced of somebody’s guilt beyond a reasonable doubt.
(Emphasis added.) Alexander did not object.
Alexander contends that these comments diminished the government’s
obligation to prove the elements of the crime beyond a reasonable doubt. But
recognition of an ideal investigatory approach and real-world constraints does not
amount to reduction of the burden of proof. In fact, the prosecutor reiterated the
correct standard a few moments after her comment about a “perfect world.” Nor
does Alexander establish that the prosecutor’s comments were so flagrant and
ill-intentioned that a curative instruction could not have addressed any prejudice.
See Emery, 174 Wn.2d at 760–61.
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No. 80476-6-I/15
6. Cumulative error
Alexander says that the cumulative error doctrine requires reversal
because this case relied heavily on the credibility of multiple witnesses who the
prosecutor either improperly denigrated or bolstered. “The cumulative error
doctrine applies where a combination of trial errors denies the accused a fair trial
even where any one of the errors, taken individually, may not justify reversal.” In
re Det. of Coe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012). “The doctrine does not
apply where the errors are few and have little or no effect on the outcome of the
trial.” State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). As discussed
above, there were only two problematic comments: those about James facing her
own jury and Aber-Williams’s family’s agony. And as discussed above, neither
was so flagrant and ill-intentioned that a curative instruction could not have cured
any prejudice. Even when considering both together, our conclusion remains the
same.
B. Adoptive Admission
Alexander says the trial court erred by admitting as an adoptive admission
Brown’s testimony about Dade telling her, in Alexander’s presence, that
Alexander shot Aber-Williams. Alexander contends that insufficient foundational
facts supported the admission, and that it was prejudicial. We conclude that the
trial court acted within its discretion by admitting Brown’s testimony.
We “review a trial court’s decision on the admission of evidence for abuse
of discretion.” State v. Hill, 6 Wn. App. 2d 629, 640, 431 P.3d 1044 (2018). A
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No. 80476-6-I/16
trial court abuses its discretion if the decision is manifestly unreasonable or
based on untenable grounds or reasons. Id.Hearsay—an out-of-court statement offered to prove the truth of the
matter asserted—is inadmissible. ER 801(c); ER 802. But an adoptive
admission is not hearsay, and thus may be admissible. ER 801(d)(2)(ii). A
statement is an adoptive admission if it is offered against a party and is “‘a
statement of which the party has manifested an adoption or belief in its truth.’”
Hill, 6 Wn. App. 2d at 640 (quoting ER 801(d)(2)(ii)). Adoptive admissions are
considered a statement made by the person they are being offered against, even
though a third party spoke them. Id.A party can adopt a statement by words, gestures, or even by silence. Id.at 640–41. “Silence constitutes an adoptive admission only if (1) the party-
opponent heard the accusatory statement or incriminating statement, (2) the
party-opponent was able to respond, and (3) the circumstances were such that it
is reasonable to conclude the party-opponent ‘would have responded had there
been no intention to acquiesce.’” Id. at 641 (quoting State v. Neslund, 50 Wn.
App. 531, 551, 749 P.2d 725 (1988)). To admit a statement as an adoptive
admission, a “trial court must make a preliminary determination that ‘there are
sufficient foundational facts from which the jury reasonably could conclude that
the defendant actually heard, understood, and acquiesced in the statement.’” Id.(quoting Neslund, 50 Wn. App. at 551). Once the trial court makes the threshold
determination that sufficient foundational facts exist, it is for the jury to decide
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No. 80476-6-I/17
“‘whether in the light of all the surrounding facts, the defendant actually heard,
understood, and acquiesced in the statement.’” Id. (quoting Neslund, 50 Wn.
App. at 551). Whether a statement is an adoptive admission “is ‘a matter of
conditional relevance.’” Id. (quoting Neslund, 50 Wn. App. at 551–52).
The day of Brown’s testimony, she revealed to the State that on the night
of the shooting Dade told her that Alexander had shot Aber-Williams. She had
not mentioned this during interviews with law enforcement or the defense. Based
on this revelation, the defense requested a voir dire of Brown, which the trial
court allowed. During voir dire, Brown revealed that a few days after the
shooting, in her kitchen, Alexander and Dade had a conversation with her during
which they told her that Alexander had shot Aber-Williams. She did not
remember the specific dialogue of the conversation; she remembered only the
“nature” of it, which was that Alexander had murdered Aber-Williams. She said
that the conversation was between all three of them, and that Dade did “most of
the talking.” The State asked what Alexander had said generally; she responded
“[i]n general, he said that he had murdered Dre and drove his car into our
garage.” When defense counsel asked who said what, she said, “It was mostly
[Dade] doing the talking and [Alexander] kind of just agreeing. And—I don’t know
the word I’m looking for. I mean, what he was saying was true. He wasn’t
denying it.” The trial court determined that Brown’s testimony about the
conversation in her kitchen was admissible as an adoptive admission because
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No. 80476-6-I/18
sufficient foundational facts existed for a jury to reasonably conclude that the
defendant heard, could respond to, and acquiesced to the statement.
Brown then testified before the jury about the conversation. She said that
she, Dade, and Alexander had a conversation in her kitchen during which “they
revealed to [her] that [Alexander] had shot [Aber-Williams] in the head.” She said
that Alexander “was talking, but [Dade] was doing most of the talking.
[Alexander] more so was just agreeing and wasn’t denying,” and that Alexander
was “[k]ind of just nodding his head.” The State asked her what Dade said that
Alexander was “agreeing with and not denying” and Brown responded “that
[Alexander] was the one who shot [Aber-Williams] in the head.” She noted that
Alexander was present for the entire conversation and made no indication that he
was unable to understand what Dade was saying. She explained that she did
not remember the dialogue or who said what but she did remember the “nature of
the conversation.” After this testimony, defense counsel moved to strike it and
the trial court reserved ruling on the issue.
During his testimony, Dade denied having this conversation. Based in
part on Dade’s repudiation, Alexander again moved to strike Brown’s comments.
The trial court denied the motion and noted that Dade’s denial of the
conversation was for the jury to weigh in determining whether the inculpatory
statement was an adoptive admission.
This court held in Hill, that accusatory text messages from the alleged
victim were inadmissible as adoptive admissions when the defendant deflected in
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No. 80476-6-I/19
response. 6 Wn. App. 2d at 645–46. The alleged victim texted the defendant
accusing him of abusing her. Id. at 642–43. He did not respond to the
accusations and changed the subject. Id. This court determined that the trial
court abused its discretion concluding that there were sufficient foundational facts
to admit the texts. Id. at 645–46. In doing so, the court noted that text
messaging is a “unique form of communication” that is often “truncated” and
“informal,” making it hard to assess the foundational facts. Id. at 645 (quoting
State v. Hinton, 179 Wn.2d 862, 873, 319 P.3d 9 (2014)).
By contrast, in Neslund, this court held that comments made by the
defendant’s brother in her presence were properly admitted as adoptive
admissions. 50 Wn. App. at 553. A brother of the defendant testified that he
heard his other brother discussing how he and the defendant had murdered the
defendant’s husband and disposed of the body. Id. at 537. The testifying brother
said that the defendant never denied any of the statements and participated in
the conversation. Id. at 553. But he was unable to remember when the
conversation occurred, specify exactly who said what, and say who else was
present. Id. at 552. He also acknowledged that he was intoxicated and in a
different room. Id. at 552–53. This court held that the trial court acted within its
discretion in determining sufficient foundational facts supported admission. Id. at
553. The court noted that “any weaknesses” in the witness’s testimony “went to
the weight, not the admissibility, of his testimony on this issue.” Id.
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No. 80476-6-I/20
Alexander analogizes to Hill, but it is distinguishable. There, the court
noted the unique nature of text messages, and here the conversation was in
person. And based on Brown’s testimony, Alexander actively participated in the
conversation and seemingly did not deflect accusations. In this way, this case
more resembles Neslund, in which the defendant was present and did not deny
any statements about her involvement in a murder.
Alexander highlights that Brown does not remember specifics of the
conversation and that Dade denied that such a conversation occurred. But as
the trial court noted, these remain matters for the jury to consider in terms of
credibility when deciding whether Alexander heard the statements, could
respond, and acquiesced to them. See Neslund, 50 Wn. App. at 553 (“any
weaknesses” in the witness’s testimony “went to the weight, not the admissibility”
of it).
The trial court acted within its discretion in determining that sufficient
foundational facts existed to admit the testimony. During her testimony, Brown
said Alexander was present for the whole conversation, he was an active
participant, he “[k]ind of” nodded, and he did not deny Dade’s statements, thus
showing that Alexander heard the statements, could respond, and acquiesced.4
See State v. McCaughey, 14 Wn. App. 326, 328, 541 P.2d 998 (1975) (holding
that the defendant nodding his head sufficed to establish acquiescence for the
4
What Brown said during voir dire and what she said during her testimony before
the jury about the conversation was largely the same. And Alexander did not object
below on the ground that her comments differed, nor does he appeal on that ground.
20
No. 80476-6-I/21
purpose of adoptive admissions). Also, that Brown said that Dade did “most” of
the talking shows that Alexander did some as well.
C. CrR 2.3(d) Inventory Requirement
Alexander says that the trial court erred by admitting the contents of his
cell phone at trial because law enforcement did not comply with CrR 2.3(d) when
they extracted data off the phone. The State says that even if CrR 2.3(d) applies
to this situation, Alexander failed to show prejudice. We agree with the State.
We review a trial court’s “findings of fact in ruling on a motion to suppress
under the substantial evidence standard and review conclusions of law de novo.”
State v. Linder, 190 Wn. App. 638, 643, 360 P.3d 906 (2015).
CrR 2.3(d) provides that when a law enforcement officer is taking
inventory of a person’s property, “[t]he inventory shall be made in the presence of
the person from whose possession or premises the property is taken, or in the
presence of at least one person other than the officer.” When an officer does not
adhere to this requirement, often the only remedy is suppression. Linder, 190
Wn. App. at 651. But if the violation of CrR 2.3(d) is not prejudicial, then
suppression is not required. Id. If substantial evidence supports a finding that
the inventory was accurate or if a violation can be remedied after the fact, no
prejudice exists. Id.
Law enforcement obtained a warrant to search Alexander’s cell phone.
An officer used software to copy data off of Alexander’s cell phone with no one
else present. His phone contained a picture of Aber-Williams’s driver’s license.
21
No. 80476-6-I/22
Alexander moved to suppress his cell phone data, claiming a CrR 2.3(d)
violation. During an evidentiary hearing, the officer who copied the data
explained that he used software to copy it, that doing so did not alter or delete
any data on the phone itself, and that the process was capable of repetition. He
noted that he had never experienced or heard of a situation in which someone
complained of missing data or a damaged phone after he copied their data and
he saw no indication of compromised data in this case. The trial court expressed
skepticism on whether CrR 2.3(d) applies to this situation, noting that copying
data off a cell phone may not constitute an inventory. But the court assumed for
purposes of its ruling that CrR 2.3(d) applies and denied Alexander’s motion to
suppress. The court found that the data on Alexander’s phone remained
unaltered and able to be copied again and concluded that Alexander was not
prejudiced.
The court did not err in finding that one could copy the unaltered data on
Alexander’s phone again and concluding that he was not prejudiced. See Linder,
190 Wn. App. at 651 (noting that if a violation of the rule can be remedied, the
defendant is not prejudiced). Alexander contends that data is lost “all the time” in
the digital era, but he does not contend that such loss occurred here. Nor is
there any indication that his data was compromised or that such losses are
common in this context. The trial court did not err in denying Alexander’s motion
to suppress.
22
No. 80476-6-I/23
D. Frye5
Alexander says the trial court erred by denying his motion to suppress
historical cell site location information because the underlying scientific theory is
not generally accepted by the scientific community. The State responds that we
should follow Division Three’s approach in State v. Ramirez and conclude that
historical cell site location information is generally accepted and was admissible
in this case. 5 Wn. App. 2d 118, 136, 425 P.3d 534 (2018). We agree with the
State.
Washington courts apply the Frye standard to determine the admissibility
of novel scientific evidence. Id. at 136. The standard provides that “‘evidence
deriving from a scientific theory or principle is admissible only if that theory or
principle has achieved general acceptance in the relevant scientific community.’”
State v. Baity, 140 Wn.2d 1, 10, 991 P.2d 1151 (2000) (quoting State v. Martin,
101 Wn.2d 713, 719, 684 P.2d 651 (1984)). “Evidence not involving ‘new
methods of proof or new scientific principles’ is not subject to examination under
Frye.” Ramirez, 5 Wn. App. 2d at 136 (quoting Baity, 140 Wn.2d at 10). “Only if
a party presents new evidence seriously questioning continued general
acceptance of use of the product rule will a Frye hearing be required.” State v.
Copeland, 130 Wn.2d 244, 298, 922 P.2d 1304 (1996).
We review a trial court’s Frye determination de novo. Ramirez, 5 Wn.
App. at 136.
5
Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
23
No. 80476-6-I/24
Alexander moved to suppress historical cell site location information and
FBI Agent Banks’s expert testimony. The trial court denied the motion,
determining that the evidence did not rely on a novel scientific approach requiring
a Frye hearing.
At trial, Agent Banks testified as to the following: Historical cell site
analysis involves taking records maintained by cell phone providers and
compiling them to get a general idea of the location of a cell phone when it made
or received a call. Phones scan the cellular network for a dominant signal. Each
tower has multiple sectors that are directional and typically cover a 120-degree
wedge emanating out from it. Knowing the location of a cell tower and the
specific sector that a phone was connected to during a call allows one to
approximate a general location for the phone. But it is impossible to determine a
precise location from the data. Cell site location information suggested that
Alexander’s phones’ general geographic locations tracked the State’s theory of
the case—that Alexander shot Aber-Williams, drove his car to Dade’s house, and
disposed of it nearby.
Division Three of this court held in Ramirez that historical cell site location
information is widely accepted and admissible under Frye. 5 Wn. App. 2d at
136–37. The court cited a law review article and several cases from various
jurisdictions holding similarly. Id. at 136. The court noted that while controversy
exists about whether a cell site analyst can pinpoint the precise location of a cell
phone, Agent Banks—the same expert who testified in Alexander’s trial—“was
24
No. 80476-6-I/25
careful to explain that her testimony provided information only of the approximate
area” of the target cell phone. Id. at 137.
The use of historical cell site information here is not new and novel; it is
generally accepted by the scientific community. See id. at 136–37. The
evidence here is very similar to that in Ramirez—Agent Banks was again careful
to specify that the analysis could produce only general geographic locations, not
precise locations.
Alexander urges us to disregard Ramirez because the court cited only law
review articles and case law rather than scientific sources in reaching its holding.
But courts may look to various sources when deciding whether a scientific theory
or method is generally accepted. See State v. Cauthron, 120 Wn.2d 879, 888,
846 P.2d 502 (1993) (examining “the record, available literature of law reviews
and other journals, and the cases of other jurisdictions,” in making its Frye
determination). And the cases the court cited in Ramirez contain their own Frye
analyses in which the courts reviewed the scientific acceptance of historical cell
site location information. See e.g., United States v. Hill, 818 F.3d 289, 298 (7th
Cir. 2016) (noting that the “technique has been subjected to publication and peer
criticism, if not peer review” (citing Matthew Tart et al., Historical Cell Site
Analysis—Overview of Principles and Survey Methodologies, 8 DIGITAL
INVESTIGATION 185–86 (2012); Aaron Blank, 18 RICH. J.L. & TECH.3, at 3–5
(2011); Herbert B. Dixon Jr., Scientific Fact or Junk Science? Tracking A Cell
Phone Without GPS, 53 JUDGES’ J., Winter 2014, 37 (2014)).
25
No. 80476-6-I/26
We follow the Ramirez approach and conclude that the trial court did not
err by denying Alexander’s motion to suppress.6
E. Missing Evidence Instructions
Alexander says that the trial court denied his right to present a defense by
not giving the jury missing evidence instructions. He contends that such
instructions were appropriate because of law enforcement’s failure to test the
Tahoe for touch DNA.7 And he claims that without missing evidence instructions,
his closing argument lacked legal support. The State responds that the crime lab
and law enforcement sufficiently explained law enforcement’s actions and thus
missing evidence instructions were unwarranted. We conclude that the trial court
acted within its discretion by not giving such instructions to the jury.
When a trial court refuses to give a jury instruction based on a factual
determination, we review for abuse of discretion. State v. Derri, 17 Wn. App. 2d
376, 404, 486 P.3d 901 (2021). A trial court abuses its discretion when its
decision is “‘manifestly unreasonable or based upon untenable grounds or
reasons.’” State v. Houser, 196 Wn. App. 486, 491, 386 P.3d 1113 (2016)
(quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). We review
de novo a claim of denial of Sixth Amendment rights. State v. Jones, 168 Wn.2d
713, 719, 230 P.3d 576 (2010). We may affirm a trial court’s decision on “any
6
Because the science is generally accepted, the trial court likewise did not err in
not holding a Frye hearing. Nor did Alexander appear to have wanted one during trial.
7
Touch DNA is DNA left behind through touch, rather than through samples such
as blood, saliva, or hair.
26
No. 80476-6-I/27
ground the record supports.” State v. Smith, 165 Wn. App. 296, 308, 266 P.3d
250 (2011), aff’d on other grounds, 177 Wn.2d 533, 303 P.3d 1047 (2013).
“The missing evidence instruction is a permissive inference instruction that
informs the jury that ‘where evidence which would properly be part of a case is
within the control of the party whose interest it would naturally be to produce it,
and, . . . [they] fail[] to do so,— the jury may draw an inference that it would be
unfavorable to [them].’” Derri, 17 Wn. App. 2 at 404 (first alteration in original)
(quoting State v. Blair, 117 Wn.2d 479, 485–86, 816 P.2d 718 (1991)). “A
defendant is entitled to a jury instruction supporting [their] theory of the case if
there is substantial evidence in the record supporting [their] theory.” State v.
Powell, 150 Wn. App. 139, 154, 206 P.3d 703 (2009). But a missing evidence
instruction is “not warranted when the evidence is unimportant, merely
cumulative, or when its absence is satisfactorily explained.” Derri, 17 Wn. App. 2at 404. The instruction “‘should be used sparingly.’” Houser, 196 Wn. App. at
492 (quoting 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 5.20 note on use at 177).
Though law enforcement took some swabs for touch DNA from the Tahoe,
they did not send those swabs in to the crime lab for testing. Law enforcement
then searched the interior of the Tahoe for a spent cartridge from the murder
weapon, contaminating the interior and preventing further DNA sampling. Based
on the lack of touch DNA testing and evidence, Alexander requested two missing
27
No. 80476-6-I/28
evidence jury instructions.8 The trial court treated the instructions like spoliation
instructions, noted that there was no evidence of misconduct, and determined
that the reasonable doubt instruction would allow Alexander to argue his defense
theory. Throughout trial, Alexander focused on the lack of touch DNA evidence
and questioned law enforcement about it.
8
The first proposed instruction stated,
If evidence that should have been preserved by the government
was not, you may be able to infer that the evidence would have been
unfavorable to the government in the case. You may draw this inference
only if you find that:
(1) The evidence is within the control of, or peculiarly available to,
that party;
(2) The issue for which the evidence could have been introduced is
an issue of fundamental importance, rather than one that is trivial or
insignificant;
(3) As a matter of reasonable probability, it appears naturally in the
interest of the government to preserve the evidence;
(4) There is no satisfactory explanation of why the government did
not preserve the evidence; and
(5) The inference is reasonable in light of all the circumstances.
The second proposed instruction stated,
If evidence that should have been tested by the Washington State
Patrol Lab was not, you may be able to infer that the evidence would have
been unfavorable to the government in this case. You may draw this
inference only if you find that:
(1) The evidence is within the control of, or peculiarly available to,
that party;
(2) The issue for which the evidence could have been introduced is
an issue of fundamental importance, rather than one that is trivial or
insignificant;
(3) As a matter of reasonable probability, it appears naturally in the
interest of the government to preserve the evidence;
(4) there is no satisfactory explanation of why the government did
not preserve the evidence; and
(5) the inference is reasonable in light of all the circumstances.
28
No. 80476-6-I/29
A forensic scientist from the crime lab testified that the lab has limited
resources and cannot test every sample taken from a crime scene, and thus it
must prioritize certain samples and tests. Officer Vanderveer testified that the
police department works with the lab to decide which samples to prioritize and,
based on their goal of quickly identifying a suspect, they decided to search for
fingerprints because doing so would be faster and less resource intensive.
Vanderveer explained that searching for fingerprints can compromise DNA
evidence and vice versa, so officers often make a choice between the two. A
DNA scientist noted that the presence of fingerprints or touch DNA would not
inform them of when a certain person was inside the car. During closing
argument, Alexander highlighted the lack of touch DNA evidence placing him in
the Tahoe and law enforcement’s failure to obtain touch DNA evidence. Law
enforcement and the crime lab satisfactorily explained the lack of touch DNA
evidence. See Derri, 17 Wn. App. 2 at 404 (holding that a missing evidence
instruction is “not warranted when [evidence’s] . . . absence is satisfactorily
explained.”).
Also, the touch DNA evidence Alexander contends might have been found
would be unimportant and cumulative. See id. (holding that missing evidence
instruction is “not warranted when the evidence is unimportant or merely
cumulative”). Alexander contends that the touch DNA evidence could have
shown that he was never inside the Tahoe, where law enforcement theorized the
shooting took place. But the lack of Alexander’s touch DNA inside the car does
29
No. 80476-6-I/30
not necessarily establish that he was never in the car. The evidence shows that
some parts of the interior had been wiped down. Alexander also says that touch
DNA could have placed James inside the car. But she admitted at trial that she
had ridden in the car. Perhaps touch DNA evidence could have shown that
James was in the back seat, where the police thought the shooter had been, but
the officers sufficiently explained why they did not send in the samples. The trial
court acted within its discretion in refusing to give the missing evidence
instructions, particularly given that such instructions should be used sparingly.
Alexander says the refusal to give his requested instructions deprived him
of his Sixth Amendment right to present a defense. We disagree.
The Sixth Amendment9 guarantees a defendant’s right to present their
defense. Jones, 168 Wn.2d at 720. Typically, a trial court’s action does not deny
a defendant that right unless it inhibits the defendant’s “entire defense.” See
State v. Arndt, 194 Wn.2d 784, 814, 453 P.3d 696 (2019) (determining that the
trial court did not violate the right to present a defense when the defendant was
still able to advance her defense theory); Jones, 168 Wn.2d at 721 (determining
that the trial court violated the right to present a defense when it prohibited the
defendant’s “entire defense”).
The trial court did not prevent Alexander from advancing the defense
theory that the missing touch DNA evidence created reasonable doubt thus
requiring an acquittal. Alexander focused on the touch DNA evidence throughout
9
U.S. CONST. amend. VI
30
No. 80476-6-I/31
trial and his closing argument. The trial court did not violate his Sixth
Amendment right to present a defense.
We affirm.
WE CONCUR:
31