State v. Lewis

• Docket Number: 83594-7-I
• Decision Date: 26 December 2023
• Parties: STATE OF WASHINGTON, Respondent, v. KEVIN LAURENCE LEWIS, Appellant.
• Court: Washington Court of Appeals

1

STATE OF WASHINGTON, Respondent, v. KEVIN LAURENCE LEWIS, Appellant.

No. 83594-7-I

Court of Appeals of Washington, Division 1

December 26, 2023

UNPUBLISHED OPINION

Birk J.

Kevin Lewis appeals his conviction for aggravated first degree murder. The State's theory was that Lewis hired his cousin Jerradon Phelps to kill his wife Amanda Canales, and that Phelps, together with his girlfriend Alexis Hale mistakenly killed Canales's sister Alisha Canales-McGuire. Lewis argues the trial court erred in making certain evidentiary rulings, denying his motion to suppress statements he contends were admitted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), denying his motion to suppress evidence obtained through search warrants he contends violated the Fourth Amendment to the United States Constitution, failing to give a limiting instruction concerning certain evidence under ER 404(b), refusing his proposed lesser included offense instruction on first degree manslaughter, and denying his motion to dismiss for governmental misconduct under CrR 8.3(b). Lewis further asserts cumulative error, ineffective assistance of counsel, and error in a lifetime no- contact order prohibiting contact with his children. We affirm Lewis's conviction and remand for the trial court to consider the impact of the no-contact order on Lewis's fundamental right to parent.

I

The State presented the following evidence at trial.

Lewis and Canales were married in 2009, and subsequently had three children together. Canales moved out of Lewis's home in February 2017 and moved into a duplex in Everett. Canales's new residence was about a 10 minute drive from Lewis's home. In June 2017, Lewis called Canales and tried to convince her to come back. Canales testified that during the phone call, she declined to go back, which made Lewis angry:

[Canales] And then he said, "Come back or else."

[The State] And when he said, "Come back or else," what did you say?

[Canales] I said, "Or else what?" And then he said "Or else

I'm going to take you to court and get custody of the kids and alimony and child support. And if I don't get it, I'm going to kill you."

[The State] And what did you say when he said that?

[Canales] And I said, "What?" And he said "You heard me.

I'm going to fucking kill you."

Concerned Lewis could be serious, Canales reported the call to the police. On June 20, 2017, Lewis appeared unannounced at Canales's house, very early in the morning. Canales called the police.

Canales obtained a protection order that included the couple's three children. The order was served on Lewis on June 29 2017. The order was reissued three times. Lewis later appeared at Canales's residence again, yelling at a friend of Canales's who was installing surveillance cameras at Canales's home. On July 25, 2017, Abigail Ruggles, the family's live in nanny, reported after having gone to Lewis's home to retrieve some of her belongings that Lewis asked her to "[t]ell that bitch [Canales] that none of the stuff in the house was hers." During this period, Lewis had contact with his children though supervised visitations. The family used A Kat's Eye Supervised Visitation Services.

On July 28, 2017, Lewis filed a petition for dissolution and requested child support, spousal support, and custody of the children. On August 23, 2017, the family court entered temporary orders in which it denied Lewis's requests and ordered Lewis to pay Canales child support. The family court ordered that the children live with Canales.

Kathleen Westvold-Naekel worked as a supervised visitation provider for A Kat's Eye Supervised Visitation Services. Westvold-Naekel first supervised visits for the family on August 30, 2017. Per visitation protocol, Canales would drop off the children down the street from Lewis's home, out of the line of sight from the home. Canales testified Lewis "had to stay inside the home during this time period of the drop-off and pickup."

On September 19, 2017, Canales was out of town on a business trip. Canales's sister, Canales-McGuire, helped Ruggles take care of the children while Canales was gone. That evening, Ruggles and Canales-McGuire dropped the children off at Lewis's for a supervised visitation. The visit was scheduled for 6:15 to 8:15 p.m. Westvold-Naekel was the visitation supervisor. Westvold-Naekel testified that during the visit, Lewis's behavior was different than it had been on August 30. During the September 19 visit, "there was very little interaction. [Lewis] was present physically. The verbal communication between him and the children was for the most part lacking, nonexistent." Westvold-Naekel felt "[v]ery uncomfortable" during the visit and had "a gut feeling there was something" different about the visit. Westvold-Naekel observed Lewis on his phone consistently throughout the evening. She could

hear a vibration constantly throughout the night. And he would be responding. He would be texting or replying to whatever it was that was on his phone. I did not see. The phone took precedence that visit. That was the-that seemed to be the sole focus of that visit for [Lewis].

Westvold-Naekel documented the visit ending at 8:13 p.m.

After picking up the children, Ruggles and Canales-McGuire drove back to Canales' home and got the children ready for bed. Lewis's and Canales's daughters slept in a bedroom upstairs. Their son slept on a couch in the living room, down the hall from the front door. Ruggles went to bed around midnight. Ruggles testified she woke up to "some loud pops and a crash" on the morning of September 20. Ruggles went downstairs and came around the corner of the banister and saw Canales-McGuire's body on the floor and a stream of blood. After turning on the lights, Ruggles ran upstairs to get her cell phone to call 911. Ruggles's 911 call was received at 1:55 a.m. After "[l]ess than 10 minutes," the police arrived on scene.

Based on evidence at the crime scene, law enforcement concluded Canales-McGuire was shot when the door was partially open, and the shooter fired at least seven shots, which originated from the exterior of the residence and came into the interior. Four recovered bullets were consistent with a nine millimeter Luger. The seven fired cartridge cases were identified as having been fired from the same firearm. The evidence at the scene was consistent with someone firing shots, then moving towards the door of the house and firing again inside the door.

The medical examiner, Daniel Selove MD, identified the cause of death as multiple gunshot wounds to the head and trunk. Canales-McGuire was struck by five shots. Two of the wounds showed gunpowder stippling injury. Dr. Selove testified he could not determine the sequence of the five shots, but opined the last two gunshot wounds to the head with stippling were likely the last two injuries inflicted. The State asked Dr. Selove whether the gunshot wounds could have been inflicted in a particular sequence:

[The State] Dr. Selove, with regards to both your findings and your observations both at the scene and during autopsy, hypothetically if a person that committed the murder said that they fired from outside the residence and then moved towards the front door, shooting with the gun either just beyond the threshold of the doorway or having stepped into the doorway to fire the final shots, would that be consistent or inconsistent with your findings based on your training and experience as a medical examiner?

[Dr. Selove] That description of the scenario is consistent with my findings.

[The State] Can you tell us why?

[Dr. Selove] Because not only would firing inside the doorway account for the two casings in the foyer near the body but also for two closer-distance range-of-fire gunshots that I observed on the head.

Dr. Selove further testified that before the shots to the head and with only the three shots to the chest, if those three shots occurred first, Canales-McGuire could still make deliberate conscious movement.

Snohomish County Sheriff's Office Detectives Eric Fagan and Brad Walvatne were assigned to contact Lewis to see if he had information about the shooting. They sought to contact Lewis because they learned he was Canales's "ex," he was the father of the children in the house, and there had been previous incidents involving Canales and Lewis. They contacted Lewis at 5:05 a.m. Lewis answered the door wearing a white tank top.

Near Lewis's home, detectives located two neighboring houses with exterior cameras. One camera showed that at 1:10 a.m. that morning, a light colored vehicle approached Lewis's house, and at 1:12 a.m. a person exited Lewis's residence and got in the vehicle, and it left. The person appeared to be wearing a light-colored top. At that time, the residents of Lewis's household included Lewis, his mother, his sister, and a renter, Alexander Dorell. At 1:34 a.m. the same vehicle returned, and at 1:37 a.m. a person exited the car and entered Lewis's residence, and the vehicle left again. The camera from the other neighboring house showed that the car appeared to be missing the front passenger hubcap.

Law enforcement received a tip from Jillian Lee. Lee told detectives that a person she knew as "Angie," later identified as Alexis Hale, told her at a party that she had been hired to kill someone. Hale implicated Phelps, a mutual friend of Lee's, saying he had an "uncle" who had offered to pay them.

Public Facebook information revealed that Phelps and Lewis were cousins. Cell phone records showed that on September 19-20 2017, Phelps's cell phone traveled from "his residence across the mountains to within about 6/10ths of a mile of the scene of the murder and at the time of the murder, and...