State Of Washington, V. Abel Linares-montejo

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON,
No. 81144-4-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ANNA VALERIYA KASPAROVA,
Defendant,
ABEL LINARES-MONTEJO,
Appellant.
APPELWICK, J. — Linares appeals his conviction for first degree murder. He
argues that he received ineffective assistance of counsel when his counsel failed
to renew a motion to sever his trial or properly object to alleged prosecutorial
misconduct. He also argues that the trial court erred by instructing the jury against
jury nullification and by admitting a gruesome autopsy photo. He argues that he
was denied a fair trial because the trial court declined to cover a memorial to a
popular former prosecutor in the courthouse. Last, he argues the trial court failed
to recognize its discretion to impose an exceptional sentence on a firearm
enhancement due to Linares’s youth. We affirm.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81144-4-I/2
FACTS
On December 5, 2019, a jury found Abel Linares-Montejo and Anna
Kasparova guilty of the murder of Edixon Velasquez.
Kasparova and Velasquez had been romantically involved. Velasquez
ended the relationship. Kasparova and Linares1 began dating in the spring or
summer of 2017.
Kasparova and Linares planned to rob Velasquez. Kasparova set up a
meeting with Velasquez by indicating she wanted to have sex with him. Velasquez
then invited Kasparova to his house in West Seattle.
On the evening of September 19, 2017, Kasparova, Linares, and others
went to the house. The plan was for Kasparova to lure Velasquez out of the house
by asking him to parallel park her car. Accordingly, Kasparova drove her car to
Velazquez’s house and asked him to come out and park it for her. When
Velasquez came out, she exited the car, went across the street, and stood behind
another car. At that moment, Linares approached the car from behind and
attempted to rob Velasquez at gunpoint. The two fought over the gun. During the
struggle, two shots went off. One shot struck Velazquez in his thigh and the other
in his chest. The shot to his chest severed a major blood vessel near the heart
before lodging in his spine. Velasquez died at the scene.
Linares ran away. Kasparova walked past Velasquez, got into her car and
drove off. Police apprehended her at her home that night.
1Linares-Montejo refers to himself as “Linares” in his briefing to this court.
We follow suit.
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No. 81144-4-I/3
Linares made his way to Auburn before calling Elias Guttierez for a ride. At
the time, Guttierez was with three others, Juan Rodriguez, Jesus Perez Arellano,
and Alondra Servin. The group picked up Linares, who told Perez and Guttierez
that he had killed someone during a robbery attempt in West Seattle earlier in the
evening. The next day, Linares told Servin the same thing.
Over the next few days, Linares exchanged phone calls with a close friend,
Jhosselyne Caseres, who had heard of Kasparova’s arrest. During the first call,
Caseres asked Linares what was going on. Linares responded that he “couldn’t
lie” because Caseres “know[s him] too well.” Both started crying, and Caseres told
Linares he should turn himself in. Linares responded that he did not want to talk
about the situation on the phone, but that Kasparova had “[his] back” and was
“down for [him].”
During the second call, Linares told Caseres that he had intended to rob
Velasquez, who had tried to grab his gun from him. Caseres again suggested that
he should turn himself in. Linares became angry and said that Caseres did not
know what she was talking about.
Caseres later called the Seattle Police Department tip line about the murder.
Caseres agreed to allow the police to record another call with Linares. During that
call, Linares said that he was “duckin’,” which Caseres took to mean that he was
“hiding out.” She then implied that Linares had killed Velasquez because he was
jealous of his previous relationship with Kasparova, which Linares denied. Linares
then said he had heard derogatory facts about Velasquez. He said that “not
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No. 81144-4-I/4
everybody . . . is fucking innocent” and “everything happens for a reason . . . I’m
not trying to defend mysel- I’m not trying to defend anything. . . . God won’t let
nothing happen if it . . . wasn’t supposed to happen.”
Following this recorded call, police decided they had enough evidence to
arrest Linares. Detectives took him into custody the next day, on October 4, 2017.
Police charged Linares and Kasparova with first degree murder. Their
cases were joined for a single trial. Linares twice moved to sever the cases. The
first motion sought severance on the belief that the State would introduce
statements by Kasparova against him. The trial court denied the motion. The
second motion, characterized as a renewal of the first, sought severance based
on what Linares anticipated to be his and Kasparova’s antagonistic defenses. The
trial court denied the motion but indicated that Linares could bring the motion again
at the close of the State’s case. Linares did not bring the motion again.
Also before trial, Linares moved to have a memorial to a prominent former
prosecutor in the courthouse covered during his trial. The memorial includes
quotations attributed to the prosecutor, including “‘Our Job is Not to Win Cases,
but to Seek Justice.’” Linares argued the quotation was “pro-prosecutorial
advertising” that violated his due process rights. The trial court denied the motion.
The case proceeded to voir dire, where the court had the following
exchanges with potential jurors,
The court will instruct you on the law of the case. Is there
anyone that cannot assure the parties and the Court that you will
follow these instructions regardless of what you believe the law ought
to be or is?
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No. 81144-4-I/5
[jurors raise hands]
....
THE COURT: Thank you . . . number 40.
JUROR NUMBER 40: I’m simply aware of the fact that a juror can
choose to deal with their bias.
THE COURT: Jury nullification is not allowed in Washington.
JUROR NUMBER 40: Oh, okay.
Defense did not object. Sometime later, the following discussion occurred:
Q. Juror number 98, I wanted to follow up on something you said. I
think it was during Mr. Shaw’s rounds. I don’t know if you need a
microphone. I think you probably do.
A. I’m kind of loud.
Q. Okay. You had indicated that — I think you said it’s hard to stay
neutral?
A. Yes.
Q. It’s based on — you work at the federal public defenders. Is that
right?
A. Uh-huh.
Q. What do you mean by that, that it’s hard to stay neutral?
A. Well, kind of like I favor more the defender side, so — and taking
into consideration the case and that — please don’t take me
wrong . . .
....
. . . They take into consideration that they are kids and they have,
like, [their] entire life in front of them, that they haven’t had too much
experience, and so it would be hard for me to make — to make a
decision not in favor of defendants.
BY MR. YIP:
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No. 81144-4-I/6
Q. It might be a hard decision for a lot of folks, but the question really
for you is, can you be fair? Do I have a fair shot with you as a juror
in this case? Will you follow the law the judge gives you?
A. Well, but the — as you know, they’re always not straight. There’s
always you can see what is — you can interpret law in different ways.
THE COURT: Ma’am, I need to explain something to you just
so we’re all understanding.
The federal law is different than the state law in terms of how
it is analyzed and what the options are. So the law that I give you
would be the state law, and that’s what you would have to follow. So
I just want to clarify that for you. Okay?
Defense did not object.
At trial, the State introduced, inter alia, security video of the shooting and
testimony from Servin, Perez, and Caseres that Linares confessed to the murder
to them in the aftermath of the shooting. It also introduced, over defense objection,
an autopsy photo of Velasquez’s empty chest cavity, showing the bullet that had
become lodged in his spine.
The State also introduced a Facebook message conversation between
Kasparova and a friend. Defense objected to the introduction of portions of the
conversation. The conversation includes a discussion of “‘[m]oney team green”—
a group or individual that Kasparova says robbed Linares. Kasparova expresses
a desire to find money team green, asks her friend to make contact by asking if
they have “fire,” and asking her friend to post on her story “who has fire.” Linares
was concerned that the word “fire” could refer to prior bad acts or guns. The trial
court allowed the conversation to be admitted, but redacted references to “fire.”
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No. 81144-4-I/7
During closing, the prosecutor referenced the redacted portion of the
conversation:
Also, I didn’t bring [this] up in my original closing, but you’ll have
those Facebook messages with you, is during the same string, just
prior, just prior to Edixon messaging Kasparova and saying hey, I
heard you got fired, Kasparova’s having a discussion with [Habibti]
Maryooma about this team money green. Do you remember that and
what is she saying?
She said: Hey, you guys know this — you know this money team
green? Hit em’ up. Ask them if they have fire.
Linares successfully objected and the court struck the comment. Also in
closing, the prosecutor made an argument about the how the law and the verdict
would “make sense,”
The law isn’t some mystic thing. All right? It’s supposed to
represent us as a society, our shared beliefs, our shared
understanding, our shared morals. The law is a codification of that.
And that’s what you have before you in the form of those jury
instructions.
At first blush, they might seem complicated, wordy, maybe
sometimes confusing. But if you take the time to read it and think
about it, you’ll see that it makes sense. That’s because the law is
rooted in our shared common intellectual sense, and it’s rooted in
our shared common moral sense.
Our shared common intellectual sense and our shared common
moral sense. What that means is if you apply the law to the evidence
in this case and if you follow the law, you’ll reach the correct verdict.
And doing so will make good common sense.
Linares did not object to the argument or request a curative instruction.
The jury found Linares guilty as charged. It also found that Linares was
armed with a firearm when he committed the crime.
At sentencing, Linares, who was 19 at the time of the murder, requested an
exceptional sentence downward on account of his relative youth. He asked the
court not to impose the firearm enhancement. The trial court imposed a low end
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No. 81144-4-I/8
standard range sentence. The court imposed the firearm enhancement as well,
indicating that it did not have discretion to waive or reduce that part of his sentence.
Linares appeals.
DISCUSSION
Linares assigns multiple errors. He argues his counsel was ineffective for
failing to renew his motion to sever his and Kasparova’s trials. Next, he argues
the trial court erred when it instructed potential jurors that jury nullification is not
allowed in Washington. He argues the trial court erred in denying his motion to
cover the memorial in the courthouse, which he claims contained pro-prosecution
advertising. He argues that the trial court erred in allowing an unnecessary
autopsy photo of the victim. He also argues the prosecutor committed misconduct
by referring to redacted portions of evidence and arguing in closing about how the
law and verdict would make sense. And, he argues his counsel was ineffective for
failing to move for a mistrial for the misconduct. He argues that cumulative error
deprived him of a fair trial. Last, he argues the trial court failed to recognize its
discretion to waive or reduce the firearm enhancement to his sentence.
I. Motion to Sever
Linares argues his counsel was deficient for failing to renew his motion to
sever his and Kasparova’s trials. Prior to trial, Linares sought severance based on
what he anticipated would be his and Kasparova’s antagonistic defenses. The trial
court denied the motion but indicated that Linares could bring the motion again at
the close of the State’s case, depending on what evidence the State chose to
8
No. 81144-4-I/9
introduce. Counsel did not bring the motion again. Linares now argues that
decision was ineffective assistance of counsel.
In order to show ineffective assistance of counsel, Linares must show (1)
that his counsel’s performance fell below an objective standard of reasonableness,
and (2) he was prejudiced by the performance. State v. Estes, 188 Wn.2d 450,
457, 395 P.3d 1045 (2017). Prejudice exists if there is a reasonable probability
that, but for counsel’s deficient performance, the outcome of the proceedings
would have been different. Id. In the context of a motion to sever, this means
Linares must show that a competent attorney would have moved for severance,
and there was a reasonable probability not just that the motion would have been
granted, but also that he would have been acquitted at a separate trial. See State
v. Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012).
Linares cannot meet that burden here. Even assuming, based on the trial
court’s invitation to renew the motion, that the trial court would have granted a
motion for severance, we see no reason to believe that Linares would have been
acquitted at a separate trial. Linares argues that he was prejudiced because both
Kasparova and the State implicated him in the murder. And, he points to what he
perceives as weaknesses in the evidence. But, the jury convicted Linares based
on the evidence that was presented. Most notably, this evidence included
Linares’s confessions to three different people in the aftermath of the shooting and
his own incriminating statements on a call recorded by the police. Linares does
not argue that any of this evidence would not have been introduced at a separate
9
No. 81144-4-I/10
trial. There is no reasonable probability that a jury, presented with the same
evidence of Linares’s guilt, would not deliver the same result.
Linares’s ineffective assistance of counsel claim based on the motion to
sever fails.
II. Jury Nullification
Linares argues the trial court erred in instructing potential jurors that jury
nullification is not allowed in Washington. He did not object to the trial court’s
comments below. He asks us to review the error under RAP 2.5(a)(3) as a
manifest error affecting a constitutional right.
Jury nullification occurs when a jury acquits a defendant, even though
members of the jury believe the defendant to be guilty of the charges. State v.
Nicholas, 185 Wn. App. 298, 301, 341 P.3d 1013 (2014). It is a juror’s knowing
and deliberate rejection of the evidence or refusal to apply the law because the
result dictated by the law is contrary to the juror’s sense of justice, morality, or
fairness. Id. While we accept that jury nullification occurs, we have never
promoted the practice. Id. at 307.
There is no constitutional right to jury nullification. Id. at 303. Linares
nevertheless argues that a manifest error affecting a constitutional right exists here
because the court’s comments affected his right to have the jury decide his guilt or
innocence. He does not explain the effect other than to say that the trial court’s
comment “denied Linares an opportunity for acquittal available to every other
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No. 81144-4-I/11
criminal defendant in Washington.” In other words, the effect was to deprive
Linares or his “right” to jury nullification. But, no such right exists.
Because Linares does not articulate a manifest error that affects a
constitutional right, he is not entitled to raise the issue for the first time on appeal.
RAP 2.5(a)(3).
III. Motion to Cover Memorial
Linares argues the trial court erred in denying his motion to cover a
memorial to a former prosecutor located in the courthouse where his case was
tried. He specifically objects to a quotation on the memorial that reads, “Our Job
is Not to Win Cases, but to Seek Justice.” He argues the memorial is “pro-
prosecutorial advertising.” He argues the jury’s potential exposure to the memorial
affected his right to a fair trial and constituted exposure to extrinsic evidence.
We review the trial court’s determination that particular circumstances do
not violate a defendant’s due process rights for abuse of discretion. State v. Lord,
161 Wn.2d 276, 283, 165 P.3d 1251 (2007). A trial court abuses its discretion
when its decision is manifestly unreasonable or exercised on untenable grounds
or for untenable reasons. Id. at 283-84.
Here, the trial court considered Linares’s argument that the memorial
constituted pro-prosecutorial advertising. But, it concluded that the language on
the memorial “could cut both directions,” because jurors could interpret the
statement as saying the prosecution does not want to secure a guilty verdict if such
a verdict would be unjust. That interpretation is not manifestly unreasonable and
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No. 81144-4-I/12
not an abuse of the trial court’s discretion. Even if jurors were to interpret the
quotation to mean that prosecutors believe a guilty verdict would be the just result,
prosecutors are not prohibited from making that argument in closing. See State v.
Fuller, 169 Wn. App. 797, 822-83, 282 P.2d 126 (2012).
Nor should the memorial be considered “extrinsic evidence” that
necessitates a new trial. “Relevant evidence” is that which makes a fact of
consequence any more or less probable. ER 401. The memorial here is not
relevant to any consequential fact in this case. The quotation, attributed to a former
prosecutor, is relevant only to that prosecutor’s opinion on the nature of
prosecution. It has no bearing on the facts of this case and is not necessarily
relevant to the opinion of the prosecutors who made the decision to bring it.
We agree with the trial court that the memorial does not constitute pro-
prosecutorial advertising and is not extrinsic evidence in this case.
IV. Autopsy Photo
Linares claims the trial court erred in admitting, over Linares’s objection, an
autopsy photograph of the inside of Velasquez’s ribcage showing where a bullet
had lodged in his spine. He argues the photograph was gruesome and duplicative
of other photos admitted into evidence, such that its probative value was
outweighed by the danger of unfair prejudice.
A trial court may exclude relevant evidence if its probative value is
substantially outweighed by the risk of unfair prejudice. ER 403. Autopsy
photographs have probative value where they are used to illustrate or explain the
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No. 81144-4-I/13
testimony of the pathologist who performed the autopsy. State v. Whitaker, 6 Wn.
App. 2d 1, 36, 429 P.3d 512 (2018), aff’d, 195 Wn.2d 333, 459 P.3d 1074 (2020).
It is reasonable to conclude that a jury would better understand the doctor’s
testimony with photographs rather than diagrams. Id. at 37. We review a trial
court’s decision to admit autopsy photographs for an abuse of discretion. Id. at 36.
We will uphold the trial court’s decision unless it is clear from the record that the
primary reason to admit the photograph was to inflame the jury’s passion. Id.
Nothing in the record indicates that inflaming the jury’s passion was the
primary purpose here. Rather, the purpose was to assist the testimony of the
pathologist regarding the path of the bullet recovered from Velasquez’s spine.
Linares instead argues that the path of the bullet could just as easily be shown
from a photograph of an x-ray of the bullet’s location. But, the State is not
precluded from utilizing photographic evidence because less inflammatory
evidence is available. See id. at 37 (admitted photographs rather than diagrams);
State v. Stackhouse, 90 Wn. App. 344, 356, 957 P.2d 218 (1998) (admitted taped
confession in addition to detectives’ testimony).
The trial court did not abuse its discretion in admitting the autopsy
photograph.
V. Prosecutorial Misconduct
Linares alleges two instances of prosecutorial misconduct during the State’s
closing arguments. The first instance involves the prosecutor revealing redacted
portions of a Facebook message conversation to the jury. Defense successfully
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No. 81144-4-I/14
objected and the trial court struck the comment. Linares nevertheless argues that
the misconduct denied him a fair trial and that his counsel was ineffective for failing
to request a mistrial. The second instance involves the prosecutor describing the
law as being rooted, inter alia, in “‘our shared moral sense,’” and encouraging
jurors to reach a verdict that makes “‘good common sense.’” Linares did not object
to the argument below, a decision that he now argues his counsel was ineffective.
And, he argues the misconduct was so flagrant and ill-intentioned that it warrants
a new trial.
A. Reference to Redacted Evidence
At trial, the State introduced a Facebook conversation between Kasparova
and a friend of hers named Maryooma. In it, she discussed “money team green,”
a group or individual whom she claims robbed Linares. She asked Maryooma to
post on money team green’s story and reach out to money team green on
Snapchat to see if they have “fire” in an apparent attempt to make contact with
them. Defense successfully objected to the inclusion of these messages. But, the
prosecutor referred to those messages in closing argument. Linares again
successfully objected and the trial court struck the comment.
We agree with Linares that it was misconduct for the prosecutor to refer to
the excluded evidence during closing. The question is whether that misconduct
necessitates a new trial. Prosecutorial misconduct requires a new trial if there is
a substantial likelihood that the misconduct affected the jury’s verdict. State v.
Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996).
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No. 81144-4-I/15
The prosecutor’s comment did not affect the jury’s verdict here. The jury
was instructed to “disregard any remark, statement, or argument that is not
supported by the evidence.” The prosecutor’s comment that Kasparova asked her
friend about “fire” in the Facebook conversation was not supported by the evidence
because that portion was redacted. Linares argues that “some arguments cannot
be cured with an instruction.” He argues that jurors would be able to figure out that
the statements referred to by the prosecutor was the redacted portion of the
conversation they received.
The jury is presumed to have followed the court’s instructions. State v.
Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990). We presume the jury
properly disregarded the comment. Linares points to nothing in the record that
persuades us the presumption is inapplicable to the facts here. Nor does he
demonstrate that the jury did not disregard the comment as instructed.
To succeed on this ineffective assistance claim, Linares must show a
reasonable probability that the trial court would have granted his motion. Estes,
188 Wn.2d at 458 (ineffective assistance claim succeeds if there is a substantial
likelihood that the outcome of the proceedings would have been different). The
trial court will grant a mistrial only where the defendant has been so prejudiced
that nothing short of a new trial can ensure a fair trial. State v. Russell, 125 Wn.2d
24, 85, 882 P.2d 747 (1994). That level of prejudice does not exist here. Counsel
was not ineffective for failing to move for a mistrial because the motion would have
been denied.
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No. 81144-4-I/16
B. Good Moral Sense
Linares also argues the prosecutor committed misconduct by making the
following argument:
The law isn’t some mystic thing. All right? It’s supposed to
represent us as a society, our shared beliefs, our shared
understanding, our shared morals. The law is a codification of that.
And that’s what you have before you in the form of those jury
instructions.
At first blush, they might seem complicated, wordy, maybe
sometimes confusing. But if you take the time to read it and think
about it, you’ll see that it makes sense. That’s because the law is
rooted in our shared common intellectual sense, and it’s rooted in
our shared common moral sense.
Our shared common intellectual sense and our shared common
moral sense. What that means is if you apply the law to the evidence
in this case and if you follow the law, you’ll reach the correct verdict.
And doing so will make good common sense.
He argues this, combined with other references encouraging the jury to use its
“common sense,” encouraged the jury to convict based on reasons other than the
evidence. We disagree. Jurors are expected to use their common sense when
reaching a verdict. State v. Balisok, 123 Wn.2d 114, 119, 866 P.2d 631 (1994). It
is not misconduct to encourage them to do so. Aside from the references to
“common sense,” we are left with the unremarkable statement that the law is based
in part on our “common moral sense.” That statement did not encourage the jurors
to convict based on reasons other than the evidence. We find no misconduct in
the prosecutor’s statements. A new trial was not warranted, and it was not
ineffective assistance of counsel not to object because any objection would have
been overruled.
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No. 81144-4-I/17
VI. Sentencing
Linares was 19 years old at the time he committed the crime. He argues
that the trial court erred in not recognizing that it had discretion to impose an
exceptional sentence downward for his firearm enhancement sentence on account
of his youth.
In State v. Brown, our Supreme Court held that deadly weapons
enhancements are mandatory. 139 Wn.2d 20, 29, 983 P.2d 608 (1999). The
Supreme Court overruled Brown as it relates to juvenile offenders in Houston-
Sconiers. State v. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409 (2017); see
also State v. Mandefero, 14 Wn. App. 2d 825, 831-32, 473 P.3d 1239 (2020). But,
Brown remains good law as it relates to defendants who, like Linares, were not
juveniles at the time they committed their crimes. Id.Linares argues this rule must be reexamined in light of In re Pers. Restraint
of Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021). There, our Supreme Court
ruled that sentencing courts must consider the mitigating qualities of youth before
imposing a mandatory life without parole sentence on defendants younger than
21. Id. at 329. This case does not address mandatory life without parole. And,
Monschke does not address firearm enhancements or overrule Brown.
Trial courts do not have discretion to impose an exceptional sentence
downward for a firearm enhancement when the offender is not a juvenile at the
time they commit the crime. Mandefero, 14 Wn. App. 2d at 828. The trial court
did not abuse its discretion by recognizing that fact.
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No. 81144-4-I/18
VII. Conclusion
The trial court did not err and Linares did not receive ineffective assistance
of counsel. While the prosecutor committed misconduct by referring to facts not in
evidence, this error did not substantially affect the jury’s verdict. The prosecutor
committed no other misconduct.2
We affirm.
WE CONCUR:
2 Because we find that only one error occurred, Linares’s claim of
cumulative error also fails. The cumulative error doctrine applies when multiple
errors deprive the defendant of a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684
P.2d 668 (1984). It is inapplicable here.
18