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State v. Richmond

Court of Appeals of Washington, Division 3

May 1, 2018


          PENNELL, A.C.J.

         Joseph 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.


         Offense conduct

         Dennis 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.[1]

         When 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.[2]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.

         The 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 her ability.[3]

         Once 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.

         Mr. 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.

         Mr. 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.

         Ms. 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 property.

         When 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.

         Legal proceedings

         Mr. 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.

         Another 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.

         At 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.[4] 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.

         Based 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.[5]

         During 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.

         A jury convicted Mr. Richmond of second degree murder.

         At 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.

         At the conclusion of the sentencing hearing, the court imposed a standard range sentence. Mr. Richmond appeals.


         Constitutional right to present a defense-exclusion of expert testimony

         Mr. 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 discretion).

         Evidence 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).

         The 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 in self-defense).[6]

         A 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 discovery violation.

         First aggressor jury instruction

         Mr. Richmond argues the trial court improperly issued a first aggressor instruction, thereby vitiating his ability to argue self-defense. We disagree.

         A first 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.[7]

         As 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 second ...

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