In the Matter of the Personal Restraint of MERLE WILLIAM HARVEY, Petitioner.
Harvey seeks relief from personal restraint resulting from
his 2010 convictions for first degree murder, second degree
murder, and two counts of unlawful possession of a firearm.
He claimed self-defense at trial and contends he received
ineffective assistance of appellate counsel when his lawyer
on direct appeal failed to assign error to the trial
court's refusal to instruct jurors that he had no duty to
petition fails for either of two reasons. First, there was
insufficient evidence that Mr. Harvey had a right to be in
the private parking lot of an apartment complex where he shot
the two victims.
he persuaded the trial court not to give a first aggressor
instruction that the State requested and that, while not
necessary, was supported by the evidence. The trial court
accepted his contention that both sides would be able to
argue their theories to the jury without a first aggressor
instruction. By placing his strategic priority on avoiding a
jury determination whether he was the first aggressor, Mr.
Harvey waived his right to an instruction that would not
apply if he was the first aggressor. The petition is
appeal, and the present petition
September 2009, Merle Harvey shot and killed Jack Lamere and
Jacob Potter. The State charged him with two counts of first
degree murder and two counts of unlawful possession of a
firearm. Mr. Harvey admitted that he shot the men, but
claimed he did so in self-defense. The jury found him guilty
of the first degree murder of Mr. Lamere, the second degree
murder of Mr. Potter, and both charges of unlawfully
possessing a firearm. On appeal, this court
affirmed. After Mr. Harvey successfully petitioned
the Supreme Court to permit supplementation of the record,
the matter was remanded, briefed and argued further, and Mr.
Harvey's convictions were again affirmed.
timely personal restraint petition, Mr. Harvey now argues
that his appellate counsel was ineffective for failing to
assign error to the trial court's refusal to give a
"no duty to retreat" instruction requested by his
trial evidence, jury instruction proposals, and
undisputed that what precipitated the killing of Mr. Lamere
and Mr. Potter was Mr. Harvey's effort on a fall evening
in 2009 to reclaim a Chevrolet Blazer from Mr. Lamere in the
parking lot of the apartment complex where Mr. Lamere's
girlfriend lived. Several months earlier, Mr. Harvey and Mr.
Lamere exchanged vehicles, with Mr. Harvey obtaining a
Cadillac from Mr. Lamere and Mr. Lamere obtaining Mr.
Harvey's Blazer. Mr. Harvey's version of the exchange
was that he had only agreed with Mr. Lamere to test drive
each other's vehicles but that Mr. Lamere took off with
the Blazer and refused to return it, leaving Mr. Harvey with
a Cadillac with mechanical problems that he did not want.
evening Mr. Lamere and Mr. Potter were shot, Mr. Harvey and
his girlfriend, Diane Richardson, drove around in Mr.
Harvey's flatbed pickup truck looking for the Blazer. At
around 9:00 p.m., the pair found Mr. Lamere and the Blazer in
the parking lot of the apartment complex where Mr.
Lamere's girlfriend was a tenant. Ms. Richardson, who was
driving the flatbed truck, pulled into the lot.
two eyewitnesses to the shooting that followed testified at
trial: Mr. Harvey and Lori Averill, a tenant at the apartment
complex who was sitting outside near where the shooting
occurred. Hiram Michel, also a tenant, testified to events he
saw before the shooting and after he emerged from his
apartment later and heard shots being fired. A Spokane police
detective, Chet Gilmore, testified to what Mr. Harvey told
him several weeks following the shooting, after Mr. Harvey
had been located and agreed to make a statement.
in the light most favorable to Mr. Harvey, the evidence
showed the following:
■ Mr. Harvey never traded vehicles with Mr. Lamere but
was only the victim of Mr. Lamere tricking him into test
driving each other's cars, only to drive off with Mr.
■ Mr. Harvey wanted his Blazer back, so when he and Ms.
Richardson came across Mr. Lamere in the parking lot of the
apartment complex where Mr. Lamere's girlfriend lived,
they decided to approach him about obtaining the return of
■ The only reason Mr. Harvey had two rifles in his
flatbed truck on the day he came across Mr. Lamere was
because he had gone target shooting that afternoon;
■ After speaking with Mr. Lamere and learning of his
insistence that the Cadillac be delivered, Ms. Richardson
left and borrowed a phone to arrange for someone to deliver
it, reporting to Mr. Lamere on her return that it was on its
way as requested;
■ While Ms. Richardson was gone, Mr. Harvey (who
remained seated in the flatbed truck) saw Mr. Lamere and Mr.
Potter (who was in the parking lot with Mr. Lamere when Mr.
Harvey and Ms. Richardson arrived) whispering in what he
believed to be a menacing way;
■ Mr. Harvey knew that Mr. Lamere was a violent and
dangerous person, so the conduct of Mr. Lamere and Mr. Potter
made him fearful;
■ Mr. Harvey assembled and loaded one of his rifles for
the protection of himself and Ms. Richardson;
■ Mr. Harvey saw Mr. Potter rummaging for something in
the back seat of his truck and believed he grabbed a gun and
put it in his waistband;
■ After Ms. Richardson returned from making a phone
call, she resumed her position in the driver's seat of
the flatbed truck and she, not Mr. Harvey, pulled it forward
to block Mr. Lamere from leaving in the Blazer;
■ Mr. Lamere was slamming doors and yelling angrily
while Mr. Harvey attempted to explain that someone was
bringing the Cadillac; and
■ Mr. Harvey did not begin firing on Mr. Lamere and Mr.
Potter until he saw them and a third man moving toward his
truck, reaching for guns in their waistbands, causing him to
fear for his and Ms. Richardson's lives.
in the light most favorable to the State, the evidence showed
■ Mr. Harvey had Mr. Lamere's Cadillac and Mr.
Lamere had Mr. Harvey's Blazer for a couple of months
before the shooting, during which Mr. Harvey had sometimes
acknowledged to trial witnesses that the two men had made a
trade. But witnesses were also aware that Mr. Harvey was
unhappy about the trade and had pressed Mr. Lamere to return
■ Mr. Harvey was very angry on the day of the murders
about Mr. Lamere's refusal to return the Blazer and left
an angry and profane voicemail message for a friend of ...