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State v. DeVore

Court of Appeals of Washington, Division 3

March 8, 2018


          FEARING, C.J.

         Appellant Matthew DeVore pled guilty to second degree murder and a sentencing aggravator that the killing caused a destructive and foreseeable impact on persons other than the victim. The trial court, in findings of fact, found the killing to cause a noticeable impact on others, particularly on Brenda Losey, the girlfriend of the victim decedent. Despite pleading guilty to these facts, DeVore, on appeal, argues that the aggravator cannot form the basis for an exceptional sentence under his circumstances, that the aggravator is unconstitutionally vague, and that his exceptional sentence is excessive. We disagree and affirm his sentence.


         This prosecution arises from the killing of Thomas Christian by Matthew DeVore in the presence of Brenda Losey. Losey was the estranged wife of DeVore and the girlfriend of Christian.

         On November 24, 2014, Thomas Christian and Brenda Losey sat together holding hands in a Kennewick plasma donation center lobby, while waiting to donate blood. The two high school sweethearts had recently rekindled a romantic relationship. Matthew DeVore, the separated husband of Losey, entered the lobby, ambled toward Christian, removed a knife from his clothes, and stabbed Christian deep in the stomach.

         Matthew Devore claims he entered the center to donate blood and without any intent to see or attack Thomas Christian. Devore asserts that his seeing Christian with his wife inflamed his anger and he removed a knife he always carried because of being homeless.

         Matthew DeVore's quick attack disabled Thomas Christian from reacting. Brenda Losey frantically attempted to protect Christian from the stabbing by stepping in front of Christian and shoving DeVore. DeVore pushed Losey and Losey, while risking her own life, attempted again to shield Christian from another stab. DeVore ran from the building. At least two other people in the lobby witnessed the stabbing.

         As Thomas Christian bled to death in a blood center, Losey sought to stem the bleeding. She called to Christian: "Don't-you can't leave me. Don't you dare leave me." Report of Proceedings (RP) (Sept. 9, 2016) at 34. Coincidentally the plasma center video recorded the stabbing and death of Thomas Christian.


         On November 26, 2014, the State of Washington charged Matthew DeVore with second degree murder in that DeVore, with intent to kill Thomas Christian, but without premeditation, stabbed and killed Christian. The information also charged DeVore, pursuant to RCW 9.94A.535(3)(r), with committing the murder under the aggravating circumstances of causing a destructive and foreseeable impact on persons other than Christian.

         This prosecution carries a long procedural history that we relate because of some relevance to our decision. On December 4, 2014, the trial court held an arraignment for Matthew DeVore. Before the arraignment, DeVore signed a plea of guilty. The plea statement declared, in part:

On the date charged in Benton County, Washington, I saw Thomas Christian, the man that was living with and dating my wife, at a business in Kennewick. I went to the business early in an attempt to avoid seeing Mr. Christian. When I unexpectedly saw Mr. Christian, I became overcome with emotion and stabbed Mr. Christian once. As a result of my stabbing Mr. Christian, Mr. Christian died. . . .

         Clerk's Papers (CP) at 12. At the beginning of the arraignment, defense counsel stated that DeVore wished to enter a guilty plea, and counsel handed to the court Devore's statement on plea of guilty. The State then moved to file an amended information charging DeVore with first degree murder with an aggravating circumstance of impact on others. Second degree murder is a Class A felony that may carry a life imprisonment sentence. RCW 9A.32.050; RCW 9A.20.021(a). One convicted of murder in the first degree must be sentenced to life imprisonment. RCW 9A.32.040. The State and DeVore disputed whether DeVore had entered a valid guilty plea and whether the State could amend the information. The trial court continued the arraignment so the parties could brief the countering arguments.

         On December 22, 2014, the trial court convened and announced that the State may not amend its information if amending the information prejudiced Matthew DeVore's substantial rights. The trial court found that postponing the arraignment to obtain legal authority on the question of whether the State could amend the information prejudiced DeVore's substantial right to plead guilty at the time of arraignment. The trial court denied the State's motion to amend the information and granted DeVore an opportunity to plead guilty to second degree murder. The trial court conducted a plea colloquy to determine whether DeVore's plea was knowing, intelligent, and voluntary. The court asked DeVore to supplement, in his own words, the factual basis for the plea. DeVore described the killing:

[Mr. DeVore]: Yes, sir. I never, I never intended to-for what happened happen. I was under a lot of duress for some number of months and I tried to avoid Mr. Christianson [sic].
And on the day that-on the 24th, when I went there [the plasma donation center], I was trying to get there early to avoid him. And I did not intend to meet him in any way, but rather to avoid him.
And I was under a lot of, a lot of emotional duress, missing my children. And unfortunately I tried to confront him to talk to him about it. And, and I don't know what happened, sir, but-just our conversation was an ongoing conversation between us that always seemed to go wrong.
And I just-at that moment, I-something came over me. It was like getting hit by a lightning bolt.
And after it happened, I didn't even really recognize what had happened until later. I was in shock, I think, for an entire week. . . .
. . . .
. . . And that moment when I was standing there, I tried to talk to him and tell him-I was basically trying to tell him that I wanted to see my kids, but unfortunately it came out wrong and I was angry.
And when we started talking, and I felt like he was treating me like a dog and told-just bushed [sic] me off and kind of motioned a kick at me and-I don't believe for any intent but other than just to belittle me. And that was kind of an ongoing thing. And I just, I snapped and I drew my, I drew a knife and, and I stabbed him. I attempted to kill him.
THE COURT: Pardon me?
[Mr. DeVore]: In a-an attempt to kill him. That is not true.
THE COURT: Anything else you'd like to say, sir-
[Mr. DeVore]: No, sir.

RP (Dec. 22, 2014) at 23-24.

         During the December 22 hearing and after Matthew DeVore's statement to the trial court, the State renewed its objection to the acceptance of the guilty plea. The State argued that DeVore's comments failed to present sufficient facts to support a charge of second degree murder, since, after stating otherwise, he denied any intent to kill. The State argued that the court possessed discretion in the interests of justice to reject DeVore's plea.

         During the December 22, 2014 hearing, the trial court found that Matthew DeVore pled guilty knowingly, intelligently, and voluntarily, and also declared that DeVore stated an adequate factual basis for his plea to second degree murder. The court, however, questioned whether the entry of DeVore's plea served the interests of justice. Defense counsel and the ...

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