Richmond appeals his conviction and sentence for second
degree murder. We affirm the conviction but remand for
resentencing so that the trial court may assess whether an
out-of-state conviction should be included in Mr.
Richmond's offender score.
Higginbotham went to Joseph Richmond's property with two
other individuals, Veronica Dresp and Lonnie Zackuse. Ms.
Dresp was Mr. Richmond's estranged girlfriend. Ms. Dresp
had asked Mr. Higginbotham and Ms. Zackuse to accompany her
to Mr. Richmond's property so that she could remove some
of her belongings.
the trio arrived at Mr. Richmond's home, Ms. Dresp
knocked on the door. Although there was no answer, Ms. Dresp
could see Mr. Richmond inside. Ms. Dresp felt angry. She
wanted to retrieve her belongings. Ms. Dresp advised Mr.
Richmond that if he did not open the door, she would kick it
down. She also told him she would break into the shed. To
that end, she retrieved a crow bar from Mr.
Higginbotham's van.As Ms. Dresp followed through on her
promise to break into the shed, a police officer arrived at
the scene in response to a call from Mr. Richmond.
officer talked to Ms. Dresp and Mr. Richmond. It appears this
helped mitigate the situation. With the officer's input,
it was agreed Ms. Dresp would return the following day to
retrieve her belongings from inside the residence. It was
also agreed Ms. Dresp could immediately remove some
belongings from a car parked on the property. With a plan for
the removal of Ms. Dresp's property in place, the officer
left, believing she had resolved the situation to the best of
the officer was gone, Ms. Dresp began removing items from the
car with the help of Mr. Higginbotham and Ms. Zuckuse. Mr.
Higginbotham's presence appeared to upset Mr. Richmond.
Mr. Richmond began yelling and an oral argument ensued
between the two men. Although he was much smaller than Mr.
Richmond, Mr. Higginbotham stated he was not afraid of Mr.
Richmond. He said he was at the property only to help Ms.
Dresp retrieve her belongings. Mr. Higginbotham was carrying
a flashlight in his hand at this point in time. According to
Ms. Dresp and Ms. Zackuse, Mr. Higginbotham appeared more
frustrated than angry.
Higginbotham started walking toward Mr. Richmond as the two
men argued. However, Ms. Dresp urged Mr. Higginbotham away.
Mr. Higginbotham and Mr. Richmond exchanged additional words
and then Mr. Richmond went inside his house.
Richmond's return to the house was a relief. It appeared
the hostility had come to an end. Unfortunately, this turned
out not to be true. Instead, Mr. Richmond ran out of his
house, armed with a two-by-four piece of lumber that was
nearly four feet in length. Mr. Richmond and Mr. Higginbotham
then started exchanging more words. Mr. Richmond warned Mr.
Higginbotham not to come any closer to him. When Mr.
Higginbotham took a step forward, Mr. Richmond struck Mr.
Higginbotham with the two-by-four. According to Ms. Dresp and
Ms. Zackuse, Mr. Richmond held the two-by-four like a
baseball bat and swung it at Mr. Higginbotham's head.
After he was hit, Mr. Higginbotham spun around and fell face
first on the ground.
Dresp went to Mr. Higginbotham's aide and Ms. Zackuse
called 911. Meanwhile, Mr. Richmond ran out of the back of
his house and drove away in a truck. As he left, Mr. Richmond
threatened to shoot everyone if they did not leave the
emergency personnel arrived at the scene, it was determined
Mr. Higginbotham had suffered "severe head trauma."
3 Report of Proceedings (RP) (Feb. 4, 2016) at 513. Mr.
Higginbotham was unconscious and eventually transported to
Harborview Medical Center in Seattle. He died shortly
thereafter. Examiners found no evidence of any weapons on Mr.
Higginbotham's body or in his clothing. An autopsy
concluded Mr. Higginbotham's death was caused by a blunt
force injury to his head.
Richmond lodged a self-defense theory against the State's
murder charges. In support of this theory, Mr. Richmond
sought to introduce testimony from several experts. One of
the experts was David Predmore. Mr. Predmore was proffered to
testify about the general effects of methamphetamine
consumption on human behavior. According to the defense, this
testimony was relevant because high levels of methamphetamine
had been found in Mr. Higginbotham's system at the time
of his death. Although Mr. Richmond had not been aware of Mr.
Higginbotham's methamphetamine consumption at the time of
the assault, the defense theorized that Mr. Predmore's
testimony was relevant to corroborate Mr. Richmond's
claim that Mr. Higginbotham was behaving aggressively the
night of the attack. The trial court excluded Mr.
Predmore's testimony as speculative and irrelevant.
proposed defense expert was Dr. Robert Stanulis. Defense
counsel advised that Dr. Stanulis would testify to the
"flight or fight" response as it pertained to Mr.
Richmond's behavior the night of the attack. Clerk's
Papers (CP) at 168. Although defense counsel furnished a
curriculum vitae for Dr. Stanulis, no expert report or
summary of opinion was ever produced. None exists in the
record on appeal. The trial court excluded Dr. Stanulis's
testimony on the basis of an inadequate discovery disclosure.
trial, Mr. Richmond took the stand and testified in his
defense. Mr. Richmond told the jury he was in fear for his
life on the night of the attack. He felt ganged up on by Ms.
Dresp and her companions. He repeatedly told the trio they
needed to leave. Mr. Richmond said that while he was trying
to get Ms. Dresp and her companions to leave, Mr.
Higginbotham approached him in a "fast manner, "
armed with a flashlight. 5 RP (Feb. 9, 2016) at 993. Mr.
Richmond then saw his dog try to sneak outside the door of
his home. Mr. Richmond moved to shut the door and then
returned to his position in front of Mr. Higginbotham.
Another argument ensued. During this argument, Mr. Richmond
claimed Mr. Higginbotham approached him with what appeared to
be a knife. Mr. Richmond felt scared. He picked up a
two-by-four and used it to strike down Mr. Higginbotham.
After Mr. Higginbotham fell, Mr. Richmond stated he panicked.
He ran inside his house, grabbed his dog, and left the
property in a truck.
on the testimony, the trial court provided the jury a full
panoply of self-defense pattern instructions. Not only did
the court provide WPIC 16.02, 16.07, and 16.08 (regarding
justifiable homicide and no duty to retreat) as requested by
Mr. Richmond, it also provided WPIC 16.04, as requested by
the State, which explains the restrictions on lawful use of
self-defense by an initial aggressor.
summation, the prosecutor argued the initial aggressor
instruction. The prosecutor asked the jury to focus on what
happened when Mr. Richmond returned from his house after the
initial verbal confrontation with Mr. Higginbotham. The
prosecutor described Mr. Richmond's retreat inside the
house as "a moment of peace." 6 RP (Feb. 9, 2016)
at 1125. The prosecutor asked the jury to focus on this
moment and consider whether Mr. Richmond's subsequent
actions were reasonable. The prosecutor argued it was not
reasonable for Mr. Richmond to come out of his house with the
two-by-four given that the situation appeared to have calmed
down. "Who's the aggressor?" the prosecutor
asked. Id. at 1126. "The defendant is the
aggressor. He doesn't get-You don't even get to the
question of self-defense." Id. In her final
statements to the jury, the prosecutor argued Mr. Richmond
stirred the "whole thing up" and took "it to a
next level by coming out of his house, armed with a board,
screaming at them. He doesn't get to claim
self-defense." Id. at 1165.
convicted Mr. Richmond of second degree murder.
sentencing, the State introduced a proposed judgment and
sentence that contemplated an offender score of five based,
in part, on a 2004 Idaho conviction. The court engaged
counsel in a brief colloquy regarding the nature of the Idaho
conviction. The discussion focused on whether the conviction
qualified as a violent offense. Defense counsel said the
offense was a nonviolent felony and likely would not even
qualify as a crime in Washington. The prosecutor and defense
counsel agreed the Idaho offense should be included in Mr.
Richmond's offender score as a nonviolent offense. Mr.
Richmond concurred with this assessment.
conclusion of the sentencing hearing, the court imposed a
standard range sentence. Mr. Richmond appeals.
right to present a defense-exclusion of expert
Richmond argues the trial court violated his constitutional
right to present a defense by excluding expert testimony. We
disagree. The trial court never prevented Mr. Richmond from
testifying or proffering a self-defense case to the jury.
Instead, the court excluded expert testimony proffered by Mr.
Richmond because it failed to meet the criteria for
admissibility under the rules of evidence. This determination
was well within the trial court's discretion. See
State v. Asaeli, 150 Wn.App. 543, 573, 208 P.3d 1136
(2009) (evidentiary rulings reviewed for abuse of
Rule 702 governs the admissibility of expert testimony. Under
this rule, a witness may provide expert opinion testimony to
the jury if (1) the witness is qualified as an expert, and
(2) the witness's testimony would help the trier of fact.
State v. Thomas, 123 Wn.App. 771, 778, 98 P.3d 1258
(2004). "Expert testimony is helpful if it concerns
matters beyond the common knowledge of the average layperson
and does not mislead the jury." Id. A proposed
expert's testimony is not helpful or relevant if it is
based on speculation. State v. Lewis, 141 Wn.App.
367, 388-89, 166 P.3d 786 (2007); State v. Mee Hui
Kim, 134 Wn.App. 27, 41-43, 139 P.3d 354 (2006).
trial court properly excluded Mr. Predmore's proposed
testimony regarding the effects of methamphetamine because it
was not shown to be potentially helpful to the jury. Mr.
Predmore had never met or examined Mr. Higginbotham. He had
no basis to assess how Mr. Higginbotham's body may have
processed methamphetamine. According to Mr. Predmore's
proposed testimony, methamphetamine can have a wide range of
effects. Increased aggression is only one possibility. It is
therefore nothing but speculation to connect Mr.
Higginbotham's methamphetamine use with Mr.
Richmond's claim of victim aggression. The evidence was
properly excluded, consistent with long- standing case law.
Lewis, 141 Wn.App. at 389 (expert testimony
regarding potential effects of methamphetamine too
speculative to help jury decide whether the defendant acted
somewhat similar analysis holds true for Dr. Stanulis. The
defense failed to proffer the substance of Dr. Stanulis's
testimony to opposing counsel and the court in a timely
manner, despite numerous continuances. Although some sort of
proffer was eventually made to the trial court on the morning
of jury selection, the substance of this proffer is not in
the appellate record. Without the ability to review the
substance of the proffer and how it might have related to Mr.
Richmond's conduct the night of the attack, we are in no
position to analyze whether Dr. Stanulis's testimony was
admissible or whether Mr. Richmond was prejudiced by the
trial court's decision to exclude the testimony as a
aggressor jury instruction
Richmond argues the trial court improperly issued a first
aggressor instruction, thereby vitiating his ability to argue
self-defense. We disagree.
aggressor instruction may be issued in circumstances where
"(1) the jury can reasonably determine from the evidence
that the defendant provoked the fight, (2) the evidence
conflicts as to whether the defendant's conduct provoked
the fight, or (3) the evidence shows that the defendant made
the first move by drawing a weapon." State v.
Anderson, 144 Wn.App. 85, 89, 180 P.3d 885 (2008). The
State is invariably the party to propose a first aggressor
instruction. As such, the State has the burden of
establishing the instruction's applicability. To meet
this obligation, the State must point to some evidence,
beyond the defendant's mere words, indicating the
defendant intentionally provoked the confrontation between
himself and the victim. State v. Riley, 137 Wn.2d
904, 910-11, 976 P.2d 624 (1999); State v. Stark,
158 Wn.App. 952, 960, 244 P.3d 433 (2010); Anderson,
144 Wn.App. at 89.
emphasized in the prosecutor's summation, the analysis of
whether Mr. Richmond qualified as a first aggressor must
focus on what happened after the "moment of peace,
" when Mr. Richmond returned from inside his home. 6 RP
(Feb. 9, 2016) at 1125; see State v. Wingate, 155
Wn.2d 817, 823, 122 P.3d 908 (2005). There is a conflict in
the parties' proffered evidence as to what happened at
this point. According to the State's witnesses, Mr.
Richmond armed himself with a two-by-four and ran outside his
home. But according to Mr. Richmond, he merely stood on his
porch and reached for the two-by-four after Mr. Higginbotham
came at him with what appeared to be a knife. The conflicting
evidence justified a first aggressor instruction under the