State v. Kelly

• Decision Date: 19 October 2021
• Docket Number: No. 37172-7-III,37172-7-III
• Citation: 496 P.3d 1222
• Parties: STATE of Washington, Respondent, v. Kevin Eugene KELLY, Appellant.
• Court: Washington Court of Appeals

496 P.3d 1222

STATE of Washington, Respondent,

v.Kevin Eugene KELLY, Appellant.

No. 37172-7-III

Court of Appeals of Washington, Division 3.

FILED October 19, 2021

Gregory Charles Link, Richard Wayne Lechich, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Larry D. Steinmetz, Brett Ballock Pearce, Gretchen Eileen Verhoef, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent

OPINION PUBLISHED IN PART

Fearing, J.

¶ 1Kevin Kelly(Kelly) appeals from his conviction for violating a no contact order when directing another person to text his wife, Julie Kelly(Julie).Kelly assigns error to evidentiary rulings, the failure to deliver a jury unanimity instruction, and alleged prosecutorial misconduct during jury summation.We find no error and affirm Kelly's conviction.

FACTS

¶ 2We take the facts primarily from trial testimony.On April 16, 2019, during defendantKevin Kelly's appearance for a separate charge, the trial court entered a domestic violence no contact order prohibiting Kelly from contacting, directly, indirectly, or through others, his wife, Julie Kelly.This prosecution arises from the alleged violation of the order.After the trial court entered the no contact order, the State of Washington confined Kelly in the Spokane County Jail.Alexander Maravilla stayed in the same cell as Kelly.

¶ 3 While Kevin Kelly was jailed, Julie Kelly received multiple telephone calls from the Spokane County Jail.Julie either did not answer the call, or, when she did answer, the caller disconnected immediately.Although Julie knew other people confined in the Spokane County Jail, she assumed that Kelly sought to contact her, as she did not expect anyone else from the jail to call her.Neither party explains why someone initiated the call when he or she disconnected immediately.

¶ 4 At 8:32 a.m. on May 14, 2019, Julie Webster received a telephone call from her son, Alexander Maravilla.Their call lasted fifteen minutes.The Spokane County Jail recorded the telephone conversation between Maravilla and Webster.On the recording, Maravilla states:

"My cellie wants to know if you'd do him a favor.Text this number and see if his old lady will put ten bucks on his books or whatever and say that he loves her. ...I don't know her name, you just say hi pumpkin, love and miss you, can you put ten bucks on my books."

Report of Proceedings (RP)at 10.During the call, Webster sent a text message to Julie Kelly, which read, " ‘Hi, Pumpkin.I love and miss you.Is there any way you can put $10 on my books?’ "RPat 218.Webster did not recognize Julie Kelly's phone number, nor did she know Kevin or Julie Kelly.Webster, as heard on the jail recording, affirmed to her son, Maravilla, that she sent the text message to Julie Kelly.

¶ 5Julie Kelly believed that Kevin Kelly prompted the text message received from the unknown texter, because "he's the only one that calls me ‘Punky’ and I don't know anybody else in the jail that would say I love you and I miss you."RPat 172.Julie Kelly did not respond to Julie Webster's text message.Julie Kelly understood that the phrase " ‘putting money on the books’ " referred to depositing money in an inmate's account for the purpose of purchasing goods while incarcerated.RPat 171.

¶ 6 After receiving Julie Webster's text message on May 14, 2019, Julie Kelly contacted a victim advocate.On May 16, 2019, Officer Kaitlyn Anderson interviewed Julie Kelly in her home.Officer Anderson contacted Officer Alisha Nguyen, of the Spokane Police Department, to investigate the phone calls and text message that Julie received.

¶ 7 Officer Alisha Nguyen reviewed Spokane County Jail telephone records to identify the inmates who called Julie Kelly.At trial, Officer Nguyen explained that the jail assigns each inmate a unique pin number used to make phone calls from jail.Officer Nguyen discovered that Julie received ten telephone calls from the jail.None of the calls originated from Kevin Kelly's pin number.Rather, three inmates’ pin numbers had been used to contact Julie: Brendan Dalla, Anton Santrone, and Kelly's cellmate, Alexander Maravilla.All three of these inmates were on the same cellblock as Kelly.

PROCEDURE

¶ 8 The State of Washington charged Kevin Kelly with one count of felony violation of a no contact order.The State alleged that Kelly, with knowledge that an order prohibited contact, contacted Julie Kelly on May 14, 2019.The State also alleged that Kelly had been convicted at least twice before of violating no contact orders.Kelly stipulated that he garnered at least two earlier convictions for violating court orders.

¶ 9 Before trial, the State, pursuant to ER801(d)(2)(v), sought to introduce statements uttered by Alexander Maravilla to his mother, Julie Webster, during the May 14, 2019 telephone call.The State argued that Maravilla spoke in a role as a coconspirator in furtherance of a conspiracy with Kevin Kelly.Alternatively, the State sought to introduce the directions of Maravilla to his mother for a nonhearsay purpose, its effect on the listener, Webster.The State never sought to play the recorded telephone conversation for the jury.

¶ 10 During argument on pretrial motions, the trial court commented that the State needed to establish by a preponderance of the evidence that Alexander Maravilla knew that a no contact order prohibited Kevin Kelly from contacting his wife in order to show a conspiracy between the cellmates.The court found that the State had not satisfied its burden and, therefore, ruled that the coconspirator exception did not apply.

¶ 11 Immediately after the trial court's ruling denying admission of the contents of the May 14 telephone call, the State moved for a trial continuance, so that it could subpoena Alexander Maravilla and transport him from custody to testify.Kevin Kelly, through counsel, objected to a continuance because trial had been postponed before at the request of the State.Kelly further argued that the State should have planned in advance for the possibility that the trial court would deny admission of the telephone conversation.The trial court denied the motion for a trial continuance.The court commented that the State had made a strategic decision not to earlier subpoena Maravilla and that a continuance would prejudice Kelly.

¶ 12 During the pretrial motion hearing, the State also informed the trial court that it intended to ask Julie Webster, during trial testimony, why she sent the text message to Julie Kelly.The State remarked that Webster would answer that Alexander Maravilla asked her to send the message.The State argued that such testimony would not be offered for the truth of the out-of-court statement by Maravilla, but to show the statement's effect on Webster.Over Kevin Kelly's objection, the trial court ruled the statement of Maravilla to his mother, during the May 14 telephone conversation, was admissible as nonhearsay.

¶ 13 In his opening statement, Kevin Kelly, through counsel, asserted that Julie Kelly used her allegation that he violated the no-contact order to improve her position in the couple's upcoming divorce proceeding.Kelly highlighted that, shortly after the State charged him with a crime, his wife Julie filed for divorce.

¶ 14 At trial, the State called Julie Webster to testify.During direct examination, the following exchange occurred:

Q How did you get that number [Julie Kelly's]?

A My son was given it by somebody in the jail.

MR. [JOSEPH] KUHLMAN [defense counsel]: Objection, Your Honor.

THE COURT: Sustained.

MR. KUHLMAN: Move to strike and request the jury to disregard.

THE COURT: I will instruct the jury to disregard that last comment.

Q (By Ms. [Hannah] Stearns [the State's attorney]) Ms. Webster, did your son provide that phone number to you?

A Yes.

RPat 158.Julie Webster testified at trial that Maravilla asked her to send Julie Kelly the text message.Webster did not repeat any of the other content from the May 14 phone conversation with her son other than her son giving her the cell number to text.The trial court excluded testimony that someone in the jail had given Maravilla the cell phone number.Therefore, Webster did not testify that Kevin Kelly told her son to direct her to send the text message.

¶ 15 During cross-examination of Julie Webster, Kevin Kelly's counsel asked about Alexander Maravilla's jail sentence.The State objected to the question on relevancy grounds.The trial court overruled the objection.Webster then testified that Maravilla was serving five years, not for murder, but for another crime.Defense counsel probed further:

So what about the other charge that he was looking at, that big murder charge?What is he serving—

RPat 161.The trial court then sustained the State's previous relevancy objection.Counsel later asked Julie Webster, "Is this the effort of your son to work out a better deal for himself?"RPat 161.After Webster responded in the negative, the trial court sustained the State's objection to the question.

¶ 16 During defense counsel's cross-examination of Julie Kelly, counsel asked whether she contacted law enforcement after receiving the text message from Julie Webster.The following colloquy occurred:

A I called Jennifer (sic), my prosecuting attorney advocate.

Q Okay.So then—so you called the prosecutors and not even the police?

A I called my advocate, that's what she's there for.

Q So you're not worried.There's nothing threatening in this message but—

A It's from Kevin and Kevin's incarcerated and Kevin had just choked me out .

MR. KUHLMAN: Excuse me, Your Honor, strike for nonrespensive [sic].

THE COURT: Overruled.

Q (By Mr. Kuhlman) There is nothing in this message—he's in custody?

A Right.

RPat 175-76(emphasis added).

¶ 17 Thereafter, defense counsel inquired about Kevin and Julie Kelly's pending divorce proceeding: "And does a violation order charge help a divorce in your favor?"RPat...