State v. Kasparova
| Decision Date | 15 November 2021 |
| Docket Number | 81109-6-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ANNA VALERIYA KASPAROVA, Appellant, ABEL LINARES-MONTEJO, Defendant. |
STATE OF WASHINGTON, Respondent,
v.
ANNA VALERIYA KASPAROVA, Appellant,
ABEL LINARES-MONTEJO, Defendant.
No. 81109-6-I
Court of Appeals of Washington, Division 1
November 15, 2021
UNPUBLISHED OPINION
ANDRUS, A.C.J.
Anna Kasparova appeals her conviction for first degree murder after a jury found that she and her codefendant, Abel Linares-Montejo, [1]fatally shot Edixon Velasquez while attempting to rob him. She raises seven challenges to her conviction and sentence. We reject each and affirm.
FACTS
Anna Kasparova and Edixon Velasquez met in early 2017 and began a brief, sporadic romantic relationship. The relationship eventually ended and Kasparova began dating Linares later that year.
On September 17, 2017, Velasquez reached out to Kasparova via Instagram and mentioned that he had heard she had been fired from her barista job. Kasparova told him that she had quit and then asked if she could see him. Kasparova continued to make flirtatious advances, asking Velasquez if she could come over to his house, but he declined because he had to work early the following morning. The next day, Velasquez and Kasparova made plans to see each other on September 19.
While Kasparova was talking with Velazquez, she was also privately messaging the Facebook account of her friend, Habibti Maryooma. Kasparova asked about Velasquez[2] and then told Maryooma that she wanted to "catch him cause he be asking about me st [sic] work." Kasparova said she wanted to "get him." Maryooma responded it would be "so easy." Kasparova then said "I told him I wanna [f---] him (which I don't) obviously lol and have him boped lol." Maryooma and Kasparova agreed that Velasquez was an "easy target."
On September 19, Velasquez sent a message to Kasparova with his home address and Kasparova indicated she would arrive around 6 p.m. Shortly after 6 p.m. that evening, Velasquez sat down for dinner with his two roommates. Velasquez's roommates saw Kasparova's black Acura drive by the house.
Kasparova texted Velasquez, asking him to come outside because she could not find his house. Velasquez did not want to come outside because it was raining and he asked her to come inside instead. Kasparova repeatedly told
Velasquez that she needed help parking her car. Velasquez finally acquiesced and went outside to help Kasparova parallel park her car.
As Velasquez was getting into Kasparova's car, she walked away and stood behind a car parked on the other side of the street. At the same time, a hooded man approached Kasparova's car from behind, opened the driver side door and pulled Velasquez out. During a brief struggle, Velasquez was shot twice, once in the thigh and once in the chest. As the shooter ran away, Kasparova walked past him and Velasquez, who was lying on the ground in the middle of the street, got into her car, and drove away.
Several eyewitnesses, including Christopher Odell, who lived directly across from Velasquez, witnessed and testified to these events. This incident was also captured on Odell's home security camera.
Police arrested Kasparova that night. During an interview with police, Kasparova admitted that she was there with Velasquez, but denied knowing who the shooter was. She also admitted that she left without trying to help Velasquez or calling 911.
Shortly after the shooting, Linares called Elias Guttierez for a ride. At the time, Guttierez was with Juan Rodriguez, Jesus Perez Arellano, and Alondra Servin. Perez testified that when they picked Linares up, he pulled Perez and Guttierez aside and told them that he had killed someone during an attempted robbery in West Seattle earlier that evening. According to Perez, Linares told them he went to "pull a lick"[3] with Kasparova and others. Linares told Perez "that the
whole plan was that Anna was supposed to get the dude to come outside, parallel park the car, and as soon as he parallel parked the car, that's when Linares came up, opened the door, and they fought." Linares admitted that two shots were fired when he and Velasquez struggled for the gun, after which he ran away.
The next day, Linares also told Servin that he had shot someone, that it was supposed to be a robbery, and that he had been with "a girl" whom he did not identify by name. Like Perez, Servin testified that Linares told her that the shooting was "supposed to be a set up." Linares told Servin, as he had told Perez, that the girl he was with messaged Velasquez to park her car before going to hide and, when Velasquez tried to take the gun, Linares shot him twice.
Over the next few days, Linares exchanged phone calls with his close friend, Jhosselyne Caseres. Caseres had heard of Kasparova's arrest and, knowing of Linares' relationship with Kasparova, suspected Linares was involved. During the first call, Caseres asked Linares what was going on, to which 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 told her 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 recounted the details of the crime. According to Caseres, Linares told her that he had intended to rob Velasquez, who had tried to grab his gun. Caseres again suggested that he should turn himself in.
Caseres later called the Seattle Police Department tip line about the murder. She met with police and agreed to allow them 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." Linares then described Velasquez as a "creep" and said "I'm not tryin' to defend myse- I'm not trying to defend anything" but felt that "God won't let nothing happen if it . . . wasn't supposed to happen." Police arrested Linares at Perez's home on October 4, 2017.
The State charged both Kasparova and Linares with first degree murder with a firearm enhancement. Prior to trial, Kasparova moved to sever her case from Linares's pursuant to CrR 4.4(c)(2), arguing that Linares's statements to Perez, Servin, and Caseres were not admissible against her. The trial court ruled that Linares's statements to Caseres during the call recorded by law enforcement were testimonial and were not admissible against Kasparova. It granted Kasparova's motion to sever "unless the prosecuting attorney elects not to offer Linares' statements to Ca[s]eras made on October 3, 2017, in its case in chief; or deletes all references to Kasparova from these statements pursuant to CrR 4.4(c)(1)(i)(ii)." But it held that Linares's unrecorded statements to Caseres, as well as his statements to Perez and Servin, were not testimonial and were admissible as statements against Linares's penal interest.
The State elected to delete the references to Kasparova from Caseres's recorded call with Linares. The State proposed a number of redactions but Kasparova argued that there were several additional statements that needed to be removed. The trial court parsed through each statement and made individual rulings of admissibility.
Following their joint trial, the jury found both defendants guilty of first degree felony murder while armed with a firearm. Kasparova was sentenced to 240 months incarceration for the underlying charge, plus a 60 month firearm enhancement. She appeals.[4]
ANALYSIS
On appeal, Kasparova raises seven issues. We address each in turn.
1. Severance
Kasparova first argues the trial court was required to sever her case from Linares's trial because his statements to Perez, Servin, and Caseres were inadmissible against her and violated her rights under the confrontation clause.
The confrontation clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This protection has special significance when one codefendant has made statements to the police that implicate another defendant. State v. Wilcoxon, 185 Wn.App. 534, 540, 341 P.3d 1019 (2015) (citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). Because of this, CrR 4.4(c)(1) provides that
A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him is inadmissible against him shall be granted unless:
(i) the prosecuting attorney elects not to offer the statement in the case in chief; or
(ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.
But if the codefendant's out-of-court statements are admissible against the moving defendant, severance is not required. State v. Dent, 123 Wn.2d 467, 483, 869 P.2d 392 (1994).
Kasparova contends the trial court erred in concluding that Linares's statements to Perez and Servin were admissible as statements against Linares's penal interest. ER 804(b)(3) provides that hearsay statements against the declarant's penal interest are admissible when the declarant is unavailable. A statement against penal interest is admissible when three requirements are met: (1) the declarant is unavailable to testify, (2) the declarant's statement must tend to subject him or her to criminal liability, and (3) the statement must be corroborated by circumstances indicating its trustworthiness. State v. Valladares, 99 Wn.2d 663, 668, 664 P.2d 508 (1983). Courts should assess a statement's reliability using a nine-factor reliability test. State v. Roberts, 142 Wn.2d 471, 497-98, 14 P.3d 713 (2000). The trial court's ruling on the admissibility of testimony under ER 804(b)(3) is reviewed for abuse of discretion. State v. Anderson, 112 Wn.App. 828, 834, 51 P.3d 179 (2002).
As a defendant with the privilege against self-incrimination,...
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