State v. Bell
| Docket Number | 83378-2-I |
| Decision Date | 07 August 2023 |
| Parties | STATE OF WASHINGTON, Respondent, v. WARREN EUGENE BELL, JR., Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Warren Eugene Bell, Jr. was convicted of felony murder in the second degree by a jury after he assaulted 71-year-old Joseph Alexander, resulting in Alexander's death. Bell argued self-defense at trial. Bell now presents several issues on appeal: whether voir dire conducted by videoconference technology was proper; whether the charging document was deficient; whether the jury instruction defining "participant" was a directed verdict and judicial comment on the evidence; whether the court improperly gave a first aggressor instruction; and whether the trial court improperly sustained a prosecutor's objection during closing argument. Bell also requests resentencing claiming that the trial court calculated Bell's offender score based on two convictions that constituted the same criminal conduct; a prior conviction of a crime that has been found to be unconstitutional, and an offender score of 12.5. Bell also submitted a statement of additional grounds, including whether his attorney was
Citations and pincites are based on the Westlaw online version of the cited material ineffective for agreeing to a stipulation instead of recalling a witness for rebuttal testimony.
Bell waived any claim based on convictions that constituted same criminal conduct. And though trial courts are required to round down offender scores, because the error did not change Bell's standard range, we need not remand for correction. Because Bell does not establish a basis for relief on his remaining claims, we affirm.
On August 21, 2020, Warren Eugene Bell, Jr., then 42 years old was staying with his wife's mother, Brenda Steinmeyer and her 71-year-old partner, Joe Alexander, at their home in Burien, as he commonly did. Brenda's brother, Donnie Steinmeyer, also lived at the home. Bell asked to borrow his mother-in-law's phone so he could call his wife. Bell took the phone to the front yard to make the call. Sometime later, Brenda[1] asked Alexander to get the phone back from Bell.
Donnie who was watching TV upstairs, heard Bell and Alexander yelling at each other. Donnie went downstairs to investigate and Bell met him on the staircase. Alexander was somewhere near the bottom of the staircase as well. Bell was yelling and then punched Donnie. Bell turned back to go down the stairs as Alexander asked what Bell was doing. Bell exited the front door and walked into the front yard. Alexander followed him outside and asked Bell to return Brenda's phone. Bell then "slammed" the phone on the ground outside. Donnie stayed at the front door to the house, where he had a view of the entire front yard.
The two men continued into the front yard, where Donnie saw Bell hit Alexander, "knock[ing] him down" to the ground. Once Alexander was on the ground, Bell stood over him and continued to punch him "hard" with a "closed hand fist." Donnie estimates that Bell hit Alexander "about 10 times." Brenda came to the front door as Bell was already hitting Alexander. Donnie handed her his phone and instructed her to call 911. Donnie yelled out to Bell that Donnie would call the police and Bell stopped hitting Alexander. Bell then fled the scene, running down the street. Donnie never saw Alexander touch or strike Bell during the entire altercation. Donnie only saw Alexander "fall to the ground" after Bell knocked him down and kept punching.
During the altercation, one neighbor heard Bell and Alexander yelling for about a minute and then sounds of someone getting punched or hit and a thud. Other neighbors, including Timothy Gouran, saw Bell and Alexander yelling in the front yard, which caused concern. By the time neighbors responded, Bell was running up the street and a "seriously" injured Alexander was on the ground and not moving. None of the neighbors were in a position to actually see the physical contact between Bell and Alexander.
While a neighbor administered CPR, Alexander "did not look good," with significant swelling around his jaw, which looked like it had "shifted," blood, and his eyes rolled back in his head. Alexander's breathing was "gasping," "gurgled," and erratic. Alexander's dentures were found in the yard near the location of the assault.
Medics arrived and found Alexander unconscious and unresponsive. They determined Alexander was in critical condition and transported him to Harborview Medical Center, where they routinely take "serious" traumas. Alexander remained unconscious in the hospital until he died on September 1, 2020. An autopsy determined that Alexander died as the result of blunt force injuries to the head. Alexander had significant contusions and abrasions on his face and head as well as multiple areas of hemorrhaging in his brain and surrounding tissue at the time of his death.
Shortly after the incident, Bell called his wife who had arrived on scene. She handed the phone to a detective who told Bell he would like to hear his side of the story. Bell responded with an expletive laden tirade, stating "Fuck you, bitch . . . I will kill you bitches . . . You're gonna have to kill me before I go to jail" before hanging up. Sergeant Pavlovich attempted to call Bell back, but Bell hung up several times. Bell was eventually taken into custody when he was found a week later. The State amended the charge of assault in the first degree against Bell to felony murder in the second degree after Alexander died
Trial was held in July and August of 2021. Bell testified at trial claiming self-defense. According to Bell, he "popped" Donnie upstairs after Donnie smirked about something in the news. As he exited the front door, Alexander asked Bell to return Brenda's phone so Bell "tossed" it back to him. The phone slipped out of his hand and fell, causing the battery to fall out. Alexander followed him outside and asked "goddamn it, Warren, why the fuck you do that for?" Bell said he turned to respond and Alexander was "up on [him]" and punched Bell in the face. Bell responded by hitting Alexander in the face. Alexander then "ducked his head and rushed" Bell. They both fell to the ground and Bell attempted to push Alexander off. Bell claims that Alexander was pulling on his arm, keeping him on the ground, and kicked Bell in the head at the same time. Bell "jabbed [Alexander] in the face again." Bell says Alexander continued to hold onto his arm until Bell hit him in the jaw again and was able to extract himself. Bell said at that point Alexander "wasn't doing very much" and Bell "took off." Additional facts are discussed in the relevant sections below.
The jury convicted Bell of felony murder in the second degree. Bell was subsequently sentenced to 397 months' confinement and 36 months' community custody supervision.
Bell appeals.
Bell argues that King County Superior Court was not authorized to hold voir dire remotely under the statutes and court rules governing jury selection.
Trial courts have discretion in determining how best to conduct voir dire. State v. Davis, 141 Wn.2d 798, 825, 10 P.3d 977 (2000). A trial court's decisions about how to conduct voir dire are subject to an abuse of discretion standard. Id. at 826. "Discretion is abused when the trial court's decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). This court has recently upheld King County Superior Court's authority to hold voir dire remotely at a time when the Washington Supreme Court issued relevant emergency rules in response to the COVID-19 pandemic. State v. Wade, No. 82910-6-I, slip op. at 14 (Wash.Ct.App. July 17, 2023), www.courts.wa.gov/opinions/pdf/829106.pdf. We follow our holding in Wade and reject Bell's claim that the trial court conducted voir dire via videoconferencing technology without authority.
Bell next argues that the use of remote videoconference technology for voir dire violated his right to a jury selected from a fair cross section of the community. Bell argues that by holding voir dire remotely, the court required potential jurors to have internet access and video technology, which unconstitutionally prevented low-income jurors from participating.
Superior courts are required to compile a "jury source list" from a list of all registered voters, licensed drivers, and identicard holders in the county. RCW 2.36.055. From that the superior court compiles a "master jury list," which is the "list of prospective jurors from which jurors summoned to serve will be randomly selected." RCW 2.36.055; RCW 2.36.010(12). The statute requires those selected for jury service to be "selected at random from a fair cross section of the population of the area served by the court." RCW 2.36.080(1).
The Sixth Amendment and article I, sections 21 and 22 of the Washington Constitution both guarantee a defendant's right to a jury trial. U.S. Const. amend. VI. This right includes "the right to have a jury drawn from a fair cross-section of the community." State v. Meza 22 Wn.App. 2d. 514, 533, 512 P.3d 608 (citing Taylor v. Louisiana, 419 U.S. 522, 530-31, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)), review denied, 200 Wn.2d 1021, 520 P.3d 978 (2022). The purpose of this requirement is that the jury cannot serve its function "'to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and . . . professional or perhaps overconditioned or biased response of a judge'" if "'distinctive groups are excluded from the pool.'" In re Pers. Restraint of...
To continue reading
Request your trial