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State v. Stockmyer

August 9, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
DONALD EARL STOCKMYER, APPELLANT.



Superior Court of Pierce County. Superior Court Docket No. 93-1-03526-0. Date Filed In Superior Court: July 21, 1994. Superior Court Judge Signing: Thomas Swayze.

Written By: Turner, J., Concurred In By: Morgan, J., Bridgewater, J.

The opinion of the court was delivered by: Turner

TURNER, J. -- Donald E. Stockmyer appeals his jury conviction of first degree manslaughter and second degree assault with a deadly weapon, arguing that the trial court erred by: admitting evidence that the decedent was a retired Washington State Trooper; excluding a videotaped re-enactment of the crime produced by defense counsel; and failing to issue a unanimity instruction to the jury. We affirm.

FACTS

In September 1993, Kathy Johnson was living on Albert Gratzer's land in her travel trailer. On the morning of September 18, 1993, Gratzer's dog was attacked and mortally wounded. Gratzer was upset, and, believing that Kathy Johnson's dogs were responsible, asked her to take her trailer and leave his property. The incident generated harsh words between Kathy Johnson and several of Gratzer's friends, including next door neighbors George and Jane Benson.

Ms. Johnson began making preparations to leave, but explained to Gratzer's daughter, Alberta Heagle, that she couldn't do so without a vehicle equipped for towing. Apparently to obtain such a vehicle, she drove to the home of a friend, Donald Stockmyer, which was about 45 minutes away. She told him about the morning's events, and that she was being asked to move.

Stockmyer drove her back to Gratzer's, went to Gratzer's front door, and, believing the Bensons to be inside, angrily demanded to speak to "the bitch . . . that mouthed off at [Kathy Johnson]." He stood on the porch, swore at Gratzer's family and friends, and demanded an apology for Ms. Johnson. He became increasingly confrontational and profane. He refused to leave. When Alberta Heagle threatened to call police, Stockmyer told her to go ahead: "Call the police." Her husband, Carl Heagle, then grabbed Stockmyer's arm, saying "I am the police." Stockmyer retorted: "I don't care who you are. I told you to keep your hands off of me."

George Benson stepped out onto the porch, and Stockmyer backed off the porch and into the yard. A scuffle ensued between Benson and Stockmyer, and the two fell to the ground. *fn1 Carl Heagle intervened and tried to pull Stockmyer off Benson. Stockmyer removed a .44 magnum Derringer from his pocket, struck Benson in the head with it, and then shot Heagle in the throat. Next, he either pointed the gun at Benson and threatened him directly, or waved it in the air and made generalized threats toward everyone. *fn2

Everyone except Kathy Johnson and Carl Heagle (who lay dying) fled and sought shelter. Thereafter, Stockmyer turned the weapon over to Kathy Johnson and waited at the scene until police arrived. The gun still contained one live round.

On May 3, 1994, a Pierce County jury convicted Stockmyer of first degree manslaughter in the shooting of Carl Heagle, and second degree assault with a deadly weapon for the assault on George Benson. Stockmyer now appeals.

ANALYSIS

Admission of Evidence that Decedent was a Retired Washington State Trooper

By motion in limine, Stockmyer asked that the State "be precluded from referring to the deceased, Carl Heagle, as a former Washington State Patrolman or other like reference." He argued that such references were irrelevant and "would inflame the jury to obtain their sympathies that an individual with law enforcement died." The trial court denied Stockmyer's motion.

On appeal, Stockmyer argues generally that references to the victim's occupation were irrelevant or unduly prejudicial, and contrary to ER 401 ("relevant evidence") and ER 403 (exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time). The State contends that evidence of Heagle's background and training as a police officer and ...


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