State v. Powell

8 Wn.App.2d 1058

STATE OF WASHINGTON, Respondent, v. ADAM EDWIN POWELL, Appellant.

No. 31487-1-III

Court of Appeals of Washington, Division 3

April 30, 2019

UNPUBLISHED OPINION

FEARING, J.

Adam Powell assigns constitutional infirmity to his trial on the theory that the trial court violated his public trial rights when engaging in unrecorded sidebar conferences during jury selection. He also contends insufficient evidence supports his conviction for second degree murder and an aggravated domestic violence exceptional sentence. We disagree with all assignments of error and confirm Powell's conviction and sentence.

FACTS

This prosecution of Adam Powell for murder arises from the death of Sabrina Flores from a gunshot wound on October 23, 2010 while inside Powell's Tieton home. The two were romantically involved. Since Powell challenges, in part, the sufficiency of the evidence, we draw facts from lengthy trial testimony.

During trial, Adam Powell testified on his own behalf. According to Powell, he and Sabrina Flores met in March 2010 and started a dating relationship within a month. In July 2010, Flores began residing with Powell in one side of a duplex at 905 Tieton Avenue, Tieton. Powell described the relationship with Flores as volatile.

During trial, the State presented testimony of alleged abuse of Adam Powell, preceding Sabrina Flores' death, inflicted on Flores in order for the State to prove an aggravated domestic violence sentencing factor. Brenda McCoy testified that, on September 12, 2010, she observed a young lady sobbing as she walked on the street in front of McCoy's residence. A car then struck the woman from the rear. The young woman flew five feet off the street. McCoy ran from her house and helped the victim from the pavement. McCoy implored the woman to enter McCoy's house. The victim declined, and the offending car returned minutes later. The driver ordered the victim into the car. McCoy called law enforcement. During trial, McCoy identified Powell as the driver of the car, but only because he sat in the courtroom and she knew he was the defendant.

On September 12, 2010, Yakima Police Officer Juan Ceja responded to 905 Tieton Avenue, Adam Powell's residence, to investigate a report of domestic violence. Officer Ceja heard a female screaming inside the residence, and he immediately entered the home. Officer Ceja saw a female sitting on the couch with ripped pants and fresh scrapes on her knees. Ceja escorted Powell from the residence, and Powell informed the officer that he and the woman were driving in Naches when she jumped from the car. The woman got in front of the car and he "tapped her" with the vehicle. Report of Proceedings (RP) at 851-52.

Griselda Vaca and Ernesto Amonzo, wife and husband, resided in the other side of the duplex in which Adam Powell and Sabrina Flores lived. At trial, Vaca testified that she sometimes heard "mumbling" coming from the other side of the duplex walls and a loud male using the "F" word. RP at 920-21. She also often heard the male talking and the female sobbing in the living room. Vaca was not home at the time of the October 23 shooting. Ernesto Amonzo, at trial averred that he heard yelling and crying on an average three times weekly in Powell's side of the duplex.

Adam Powell testified that, earlier on October 23, 2010, he went shooting with his .40 caliber hi-point handgun. When he arrived home, Sabrina Flores told him she was preparing for a shower and would later return a computer to her father. Powell answered a cell phone ring. Flores' father was the caller, and Powell handed the phone to Flores. After ending the call, Flores showered, and Powell walked to the post office two blocks away. According to Powell, when he returned home, Flores accused him of spying on her. He sat on the couch, removed his firearm from his pants, and placed the gun on the coffee table. Powell intended to walk upstairs to change his pants, but became distracted by a pile of Flores' belongings in the kitchen. He noticed his pants on top of the pile, and, as he retrieved them, he found a methamphetamine pipe. An argument ensued, and both Powell and Flores screamed at each other. Powell exclaimed: "since your stuff is packed, you can go live with your father because I'm done with this." RP at 1425.

According to Adam Powell's trial testimony, he threw the pipe away and proceeded up the stairs to change his pants. When Powell returned downstairs, he saw Sabrina Flores, in the living room, with his handgun to her forehead. He yelled at her to stop. When she told him to leave, Powell lunged at her in an attempt to remove the gun. Flores and Powell fought over the firearm, fell to the floor, and Flores shot herself. Powell did not explain whether Flores shot herself accidently or on purpose. Powell rolled Flores over and checked her breathing. She did not breathe and lacked a pulse. Powell moved the firearm from her, but he did not try to put the gun in her hand.

Duplex neighbor Ernesto Amonzo was home at the time of the shooting. Amonzo testified that he heard Powell yelling and a female crying for one half hour before hearing a gunshot. He overheard Powell shout: "[S]hut the fuck up. Fuck you fuckin' bitch, stupid." RP at 895. After hearing a gunshot, Amonzo listened and heard Powell talking and pacing from one side to the other in his duplex.

After the shooting, Adam Powell first called a friend and then his grandmother. He later called 911 and reported that Sabrina Flores committed suicide. During trial, Powell admitted that he lied when reporting the shooting as a suicide because he feared law enforcement would blame him for murder, when he did not shoot Flores. Apparently, he considered the story he told at trial consistent with an accidental shooting, rather than suicide. Powell testified that he never intended the gun to discharge and never wished the death of Flores.

Officer Juan Ceja of the Tieton Police Department responded to Adam Powell's emergency call of a suicide at Powell's residence. As Officer Ceja entered the dwelling, he saw Adam Powell kneeling on the ground while speaking on the phone with a 911 operator. Sabrina Flores lay on her back on the living room floor with left hand over her face and left foot crossed over the right foot. Blood puddled to the right side of her head. After ending the call, Powell sobbed hysterically and sweated. Powell told Officer Ceja that Flores shot herself.

Officer Juan Ceja escorted Adam Powell from the residence and into the backseat of his patrol car because the .40 caliber hi-point firearm rested next to Sabrina Flores' body. Officer Ceja returned to the residence to process the scene. He photographed the scene and secured the firearm. The officer did not reposition Flores' body and did not see anyone else move her.

Officer Juan Ceja found the positioning of Sabrina Flores' body on the floor suspicious. Officer Ceja concluded that someone had likely rolled over the body after the death. The blood stains on the firearm also raised Ceja's suspicions.

Detective Brian Jackson of the Yakima County Sheriff's Office traveled to Adam Powell's Tieton residence to investigate the death of Sabrina Flores. Detective Jackson spotted a bullet hole on the right side of Sabrina Flores' head. Jackson also observed that blood drained from a wound on the left side of Flores' face and across her nose. Gravity would not have permitted the blood to move across the nose if Flores had always lay on her back. Jackson also concluded that someone had rolled Flores' body because feet cross if the body is limp and moved in that manner. Jackson also noticed blood on Flores' left palm, but not on her right hand.

Sergeant Jeff Gillespie arrived at the Tieton home and approached Adam Powell as the latter sat unrestrained in the patrol vehicle. Sergeant Gillespie read Powell his Miranda rights and briefly interviewed Powell. Powell told Gillespie that Sabrina Flores held the handgun to the side of her head, and as he ambled toward her, she fired the gun and fell to the floor. After viewing the crime scene, Sergeant Gillespie spoke again with Powell and asked him with which hand Flores shot herself. After a long pause, Powell replied that the gun was in Flores' left hand and in direct contact with the side of her head.

Detectives from the Yakima County Sheriff's Office interviewed Adam Powell at 10:30 p.m. on October 23, 2010. At the conclusion of the interview, law enforcement arrested Powell on an unrelated felony warrant and transported him to the Yakima County jail. Authorities later announced to Powell that he was also under arrest for the murder of Sabrina Flores.

Dr Gina Fino, a forensic pathologist, conducted an autopsy on Sabrina Flores. Dr. Fino found evidence of a gunshot wound to the head and a gunshot wound to the right arm. The body contained an entrance wound to the left side of the head and an entrance wound to the right anterior upper arm. The entrance wound on the head was located behind the left ear with an exit wound on the right side of the face near the right eyebrow. Dr. Fino testified at trial that she found soot on soft tissue, evidence that someone held the gun muzzle close to the entrance wound. Fino noticed no skin splitting or stippling near the wound, such that she opined that fabric came between the muzzle and scalp. Dr. Fino also found an oval defect in the jacket worn by Flores.

Based on the blood pattern, Dr. Gina Fino concluded that Sabrina Flores did not stand and fall on her back when shot. Dr. Fino opined that, based on the evidence, Flores could not have held the gun in her left hand. Fino found the gunshot wound to be inconsistent with a self-inflicted shot.

On cross-examination during trial, Dr. Gina...