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In re Faircloth

Court of Appeals of Washington, Division 2

October 8, 2013

Personal Restraint Petition of Marvin Sides FAIRCLOTH, Petitioner.

Page 48

[Copyrighted Material Omitted]

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Lise Ellner, Attorney at Law, Vashon, WA, for Petitioner.

Timothy J. Higgs, Mason Co. Pros. Atty. Office, Shelton, WA, for Respondent.

WORSWICK, C.J.

[177 Wn.App. 163] ¶ 1 Marvin Sides Faircloth killed his father, Frank Faircloth, and was convicted of first degree murder in 1996.[1] We affirmed his conviction in 1998 and dismissed his first personal restraint petition (PRP) in 2005. Marvin then filed this PRP, alleging that his recently recovered memories are newly discovered evidence entitling him to a new trial. Because Marvin's recovered memories would not probably change the result of his trial, they are not newly discovered evidence. We deny Marvin's petition because it is time barred.

FACTS

¶ 2 Marvin lived with Frank, his adopted father, and two other foster children, Keith Murphy and Bryce West. On February 26, 1995, Frank caught Marvin and Murphy " huffing" paint and told them that they would have to move out of the house the next day. Frank left the room, went downstairs, and fell asleep. Shortly after Frank left their room, Marvin and Murphy decided to kill him. Murphy grabbed a Jack Daniels bottle, Marvin grabbed a spear-type object, and the two headed downstairs to Frank's bedroom.

¶ 3 Over a 25-minute period of time, Frank fought for his life by running from room to room while Murphy and Marvin disconnected the telephone and attacked him with knives, the whiskey bottle, a hammer, a long pole with a spike on the end, and a table leg. Over an extended period [177 Wn.App. 164] of time, West heard banging and crashing coming from downstairs, and he heard Frank repeatedly screaming for him to call the police. During the attack, Marvin stopped, went up to West's room, and smoked a cigarette. Marvin threatened to kill West if West left his room. After Marvin left West's room, West heard more banging and crashing, and Frank continued screaming. Finally, the screaming stopped and Marvin made West come downstairs to help clean up the mess. While West was cleaning up, Marvin and Murphy took Frank's body out to the woods, knocked out the teeth, and burned the body. After Marvin and Murphy left the house, West went down the street and called the police.

¶ 4 The State charged Marvin with first degree murder. Before trial, he clearly represented to the court that he was pursuing a diminished capacity defense and that he was not pursuing self-defense based on battered child syndrome because self-defense was not supported by the facts. At trial, Marvin's expert testified that Marvin had a long history of being the victim of abuse that resulted in posttraumatic stress disorder, which prevented him from being able to premeditate

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the murder. There was no evidence of any abuse by Frank introduced at trial.

¶ 5 The jury convicted Marvin of first degree murder, and the trial court imposed an exceptional sentence. We affirmed Marvin's conviction and denied his previous PRP. Marvin filed this PRP alleging that he recently recovered memories of Frank's abuse ...


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