State v. Alexander
| Decision Date | 02 August 2021 |
| Docket Number | 80476-6-I |
| Court | Court of Appeals of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. KEVION MAURICE ALEXANDER, Appellant. |
UNPUBLISHED OPINION
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.
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 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.
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.
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).
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)).
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).
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 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 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...
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