State Of Washington, Resp. v. Dennis Richard Watters, Jr., App. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ] No. 71304-3-1
C=3
Respondent, ] DIVISION ONE
V- ] UNPUBLISHED OPINION 1
CO
DENNIS RICHARD WAITERS, JR., j X*
up
Appellant. FILED: June 8, 2015 CO
Appelwick, J. —Watters appeals his conviction for first degree murder by extreme
indifference. He argues that the trial court erred in failing to instruct the jury on the lesser
included offense of first degree manslaughter. In the alternative, he argues he received
ineffective assistance of counsel at trial because his attorney failed to request the
instruction. Watters does not establish that he was entitled to a lesser included
instruction. His statement of additional grounds lacks merit. We affirm Watters'
conviction. However, we remand to the trial court to vacate a separate sentencing order
conditionally vacating Watters's conviction for first degree manslaughter.
FACTS
On July 14, 2012, Ethan Mathers and Ryan Mumm consumed heroin and Xanax
and drove to a local Safeway parking lot, a popular hangout, in Mathers's red BMW sedan.
At the Safeway, Zachary Smoots offered to sell Mathers and Mumm some marijuana.
Mathers took the marijuana without paying for it, and he and Mumm drove away.
Mathers and Mumm drove to Blue Stilly Park in Arlington where they smoked the
marijuana. Smoots and several friends, including Brittany Glass and Bo Schemenauer,
drove around looking for Mathers and Mumm. Smoots caught up with Mathers and
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Mumm after they left the park, and the two groups got out of their cars and fought for a
short period. The window of Mathers' car broke during the fight and Mathers cut his hand
while throwing the pieces at Smoots' car. According to Mathers, Brittany1 kicked a dent
in his car and threatened him with a metal pipe, so Mathers kicked her. Mathers and
Mumm got back into Mathers's car and drove away.
Mathers was upset about his hand and his car, and he and Mumm discussed
meeting up with Smoots again to "get somewhat of a fair fight." Mathers called Smoots
and the two groups agreed to meet back at the park later that day.
Mathers and Mumm drove to the home where Mumm was temporarily staying with
friends, where they used more heroin and gathered weapons, including a croquet mallet
and a black metal bar. Mumm also took a Springfield Armory XD9 9mm handgun from
the home. Mathers and Mumm recruited three other friends who accompanied them to
the park in a separate car.
Brittany called her father, James Glass, and told him she had been assaulted by
Mathers. James planned to go to the park and beat up Mathers and Mumm for assaulting
Brittany. However, James admitted he was armed with a .357 Taurus revolver that he
planned to shoot at a bonfire later that evening. James also called a friend, Dennis
Watters, whom he knew had a concealed weapons permit and always carried a gun.
Watters, James, Brittany, Smoots, Schemenauer, and several other friends and
family members of the group met up at a Tesoro gas station near the park and waited.
1 Several witnesses in this case share a last name with other witnesses. For the
purposes of clarity we refer to those witnesses by their first name.
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When the group saw Mathers' BMW enter the park, they followed it. The record reflects
that approximately 18 people in at least eight separate cars were at the park for the
purpose of the fight.
Mathers testified that he grew impatient waiting for Smoots and had turned around
to prepare to leave when the group entered the park. Mumm got out of the passenger
seat, fired a warning shot into the air, and got back into the car. As Mumm got into the
car, a gold Honda Accord driven by Schemenauer's father Ron "gunned it" into the park
and slammed into the front of his BMW. At the same time, Watters pulled up in his Ford
Ranger truck so that its passenger side was level with the passenger side of the BMW.
Mathers testified that the area that the three vehicles occupied was approximately 30 or
40 feet wide and would have accommodated only two or possibly three vehicles passing
at a time. Mathers backed up and "squeezed" between the Honda and the Ranger in
order to exit the park. As Mumm leaned forward to put the gun down underneath the
seat, Watters pointed a gun directly at the BMW's open passenger side window and fired
"two or three times." Mumm was hit in the temple. Mathers drove out of the park and
towards an AM/PM gas station. Watters followed Mathers and shot at the BMW as
Mathers turned into the AM/PM parking lot.
Watters did not testify. However, Watters gave a recorded statement to law
enforcement which was admitted at trial. Watters stated that he owned a 9mm Llama
handgun and that he brought it to the park at James's request. When Watters entered
the park, the BMW headed towards him until the two cars were "bumper to bumper."
Mumm, still inside the car, pulled out a gun and pointed it directly at Watters. Watters
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stated that Mumm fired the gun out of the window and a round hit his side mirror. Mathers
backed the BMW up and the BMW passed Watters' truck "rolling by really slow." At that
point, Watters stated:
I grabbed my weapon out, I loaded it, and as they drove by I shot three
rounds I believe into his vehicle. I thought I was still hearing shots so I
backed up and I turned around and I got on them and stuff and everything.
And Jim was in front of me and I was upset that they shot my truck and that
they were trying to shoot at me and stuff and everything. And I was trying
to get around them so I could stop them. And I don't know what Iwas going
to do but I tried to stop them. Anyways, they wouldn't stop, so I got on them
and stuff and I think I rammed the car. And I rammed it into the AM/PM.
And I drove off.
Watters reiterated that he fired three shots into the passenger side of the BMW "as quick
as I could pull the trigger." When a detective asked, "Where did you think the bullets were
going?" Watters responded, "To the passenger." Watters claimed, "I thought I got
[Mumm] in the shoulder" and that he had "seen fragments of a body part flying" but did
not realize that Mumm had been fatally shot until later. Watters also admitted that he
might have shot his own side mirror. He denied shooting at the BMW as it turned into the
AM/PM parking lot.
Mumm died as a result of a gunshot wound to the head. A firearms expert from
the Washington State Patrol Crime Lab testified that the bullet in Mumm's skull and a
bullet recovered from the tire of the BMW came from Watters's gun.
The State charged Watters with first degree murder by extreme indifference (Count
I) or, in the alternative, second degree intentional murder (Count II) for the shooting of
Mumm in the park. The State also charged Watters with first degree assault of Mathers
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(Count III) and first degree assault of Mumm (Count IV) for shooting at the BMW as it
entered the AM/PM. The State sought a firearm enhancement on each count.
At trial, Watters sought and received an instruction on justifiable homicide as to
Counts I and II. The State and Watters also agreed that the trial court would give lesser
included instructions on first degree manslaughter and second degree manslaughter for
Count II. Watters did not request, and the trial court did not give, any lesser included
instructions for Count I.
The jury convicted Watters as charged on counts I, III and IV and of the lesser
included offense of first degree manslaughter on count II. The jury also returned special
verdicts that Watters was armed with a firearm on all four counts. The trial court entered
a separate order dismissing count II "without prejudice and subject to reinstatement. . .
should the Murder in the First Degree conviction be overturned." The trial court sentenced
Watters to consecutive standard range sentences totaling 520 months as well as 180
months for the firearm enhancements.
DECISION
Watters argues that the trial court erred when it failed to instruct the jury on the
lesser included offense of first degree manslaughter on Count I. However, the record is
clear that Watters did not request a lesser included instruction on Count I.2 A trial court
2Watters relies on a discussion between the trial court and the prosecutor following
the State's motion to amend the information to charge the alternative offenses of first and
second degree murder as separate counts, count I and count II:
THE COURT: In terms of the jury being confused, it appears to me
the jury is highly likely to be more confused if it's charged in the alternative
than if they're charged separately.
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is not obligated to give a lesser included instruction sua sponte. State v. Hoffman. 116
Wash. 2d 51, 111-12, 804 P.2d 577 (1991). To do so would constitute "an unjustified
intrusion into the defense prerogative to determine strategy." State v. Grier. 171 Wn.2d
17,45, 246 P.3d 1260(2011).
In the alternative, Watters contends, trial counsel was ineffective for failing to
request a lesser included instruction. To establish ineffective assistance of counsel, a
defendant must show both that counsel's performance was deficient and the performance
prejudiced the defendant's case.3 Strickland v. Washington. 466 U.S. 668, 694, 104 S.
The jury instructions will be far more complex, frankly, in the
alternative than they will be if it's charged separately.
Is manslaughter even a possibility as it relates to Count I as a lesser
included?
[PROSECUTOR]: I don't believe so.
THE COURT: But it is as it relates to Count II, isn't it?
[PROSECUTOR]: Yes, I think it is.
THE COURT: At least legally it is. Whether factually it is or not, I
don't know. But I don't believe, correct me if you think I'm wrong, but I don't
believe that as a legal matter, a lesser included offense of manslaughter is
even available for count one, reckless indifference to human life - or not
reckless indifference, but extreme indifference to human life. Whereas it is
in count two.
Watters argues that in concluding that a lesser included instruction would not have been
available on Count I, the trial court was relying on State v. Pettus. 89 Wash. App. 688, 951
P.2d 284 (1998) and State v. Pastrana. 94 Wash. App. 463, 972 P.2d 557 (1999). As our
Supreme Court has recently clarified, the analyses in Pettus and Pastrana are no longer
valid. State v. Henderson. 182 Wash. 2d 734, 743-44, 344 P.3d 1207 (2015). But, Watters
did not request a lesser included instruction, and we decline to speculate as to whether
the trial court would have refused to give such an instruction if requested.
3 In support of his claim that he was prejudiced by defense counsel's failure to
request a lesser included instruction, Watters relies on Keeble v. United States. 412 U.S.
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Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is shown if counsel's conduct
fell below an objective standard of reasonableness. State v. Stenson. 132 Wash. 2d 668,
705-06, 940 P.2d 1239 (1997). To satisfy the prejudice prong, a defendant must show a
"reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." State v. McFarland. 127 Wash. 2d 322, 334-35, 899
P.2d 1251 (1995). "Where the claim of ineffective assistance is based upon counsel's
failure to request a particular jury instruction, the defendant must show he was entitled to
the instruction, counsel's performance was deficient in failing to request it, and the failure
to request the instruction caused prejudice." State v. Thompson. 169 Wash. App. 436, 495,
290 P.3d 996 (2012). There is a strong presumption that counsel provided effective
assistance. State v. Tilton. 149 Wash. 2d 775, 784, 72 P.3d 735 (2003).
Whether a defendant is entitled to a lesser included instruction is analyzed under
the two-pronged test outlined in State v. Workman. 90 Wash. 2d 443, 447-48, 584 P.2d 382
(1978). First, each of the elements of the lesser offense must be a necessary element of
the charged offense (the "legal prong"). State v. Berlin. 133 Wash. 2d 541, 545-46, 947 P.2d
700 (1997). Second, the evidence must raise an inference that only the lesser offense
was committed to the exclusion of the charged offense (the "factual prong"). State v.
205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973), in which the Supreme Court held
that "[w]here one of the elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor
of conviction." However, Keeble "is inapposite in the context of ineffective assistance of
counsel." Grier. 171 Wash. 2d at 41. This is because "'[i]n making the determination as to
whether the specified errors resulted in the required prejudice, a court should presume,
absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge
or jury acted according to law.'" ]d. (alteration in original) (quoting Strickland. 466 U.S. at
694).
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Fernandez-Medina. 141 Wash. 2d 448, 455, 6 P.3d 1150 (2000). When analyzing the
factual prong, we view the evidence in the light most favorable to the partywho requested
the instruction at trial. Id. at 455-56. However, "the evidence must affirmatively establish
the defendant's theory of the case—it is not enough that the jury might disbelieve the
evidence pointing to guilt." Id. at 456.
A person is guilty of first degree murder by extreme indifference if he or she,
"[u]nder circumstances manifesting an extreme indifference to human life . .. engages in
conduct which creates a grave risk of death to any person, and thereby causes the death
of a person." RCW 9A.32.030(1 )(b). A person is guilty of first degree manslaughter when
he or she "recklessly causes the death of another person." RCW 9A.32.060(1)(a). A
person "acts recklessly when he or she knows of and disregards a substantial risk that a
wrongful act may occur and his or her disregard of such substantial risk is a gross
deviation from conduct that a reasonable person would exercise in the same situation."
RCW 9A.08.010(1)(c). In the context of manslaughter, the "wrongful act" is homicide.
State v. Gamble. 154 Wash. 2d 457, 467, 114 P.3d 646 (2005). "Although the boundary is
not exact . . . RCW 9A.32.030(1 )(b) [requires] an aggravated or extreme form of
recklessness which sets the crime apart from first degree manslaughter." State v.
Dunbar. 117 Wash. 2d 587, 594, 817 P.2d 1360(1991).
Here, parties concede that the legal prong is met, because the elements of first
degree manslaughter are necessary elements of first degree murder by extreme
indifference. Thus, the only issue is whether the factual prong was met. In other words,
Watters must demonstrate that a rational juror could find that his conduct constituted a
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knowing disregard of a substantial risk that a homicide could occur, but did not constitute
an "extreme indifference" that created a "grave risk" of death. RCW 9A.32.030(1 )(b).
Watters does not make this showing. The testimony, even in the light most
favorable to Watters, showed that Watters fired three shots from a 9mm handgun directly
into the passenger window of the BMW, striking and killing Mumm. The passenger
window of Watters' truck was lined up with the passenger window of the BMW, and the
two vehicles were so close that Mathers had to drive slowly and "squeeze" by. The
likelihood that one of the shots would kill one of the occupants of the BMW was extremely
high. This was more than mere reckless conduct. Because Watters does not
demonstrate that he would have been entitled to a lesser included instruction, he fails to
demonstrate that defense counsel's failure to request one was deficient performance.
Watters's reliance on State v. Henderson. 182 Wash. 2d 734, 344 P.3d 1207 (2015)
is misplaced. In Henderson, the defendant fired shots from the sidewalk towards a house
where a party was being held, killing an individual hired to act as security for the party
who was standing near the front of the house. Id. at 739. Police found two bullet holes
in the side of the house and others in the sides of cars in the street, but none inside the
house, where the majority of the partygoers were, id. Our Supreme Court concluded
that, viewing the evidence in the light most favorable to the defendant, a jury could have
rationally concluded that he acted with disregard for a substantial risk of homicide rather
than an extreme indifference that caused a grave risk of death because he shot from a
substantial distance into a relatively unpopulated area and appeared to be erratically firing
his gun rather than aiming to kill. Id. at 746.
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Henderson is distinguishable. Here, there is no evidence that Watters was firing
indiscriminately. On the contrary, it is uncontroverted that Watters was aiming at the
BMW in order to "stop them." Moreover, Watters shot from extremely close range, not a
substantial distance like the defendant in Henderson.
Watters further claims the trial court violated double jeopardy when it entered the
separate order conditionally vacating Count II. "Double jeopardy prohibits courts from
explicitly holding vacated lesser convictions alive for reinstatement should the more
serious conviction for the same criminal conduct fail on appeal." State v. Turner. 169
Wash. 2d 448, 465, 238 P.3d 461 (2010). The State concedes this was error. We remand
to the trial court with instructions to vacate the order.
Watters raises numerous issues in his statement of additional grounds, none of
which establish a basis for review.
Watters claims the trial court erred in permitting Mumm's mother to testify and to
observe voir dire before testifying. Mumm's mother testified only to the dates of Mumm's
birth and death and identified him from a photograph. Given the limited nature of the
testimony, Watters does not demonstrate any prejudice.
Watters contends that he was prejudiced when Mathers used the term "murdered"
and "executed" and when other witnesses referred to Mathers and Mumm as "kids."
Because Watters did not object below and has not established a manifest error affecting
a constitutional right, he has waived these claims. RAP 2.5(a).
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Watters challenges the credibility of several witnesses. However, credibility
determinations are the sole province of the jury and not subject to review. State v.
Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990).
Watters claims that members of the jury were passing through the courtroom at
the time he was being handcuffed and this compromised his presumption of innocence.
However, there is no evidence in the record that any jurors saw Watters in handcuffs.
Moreover, "[a] jury's brief or inadvertent glimpse of a defendant in restraints inside or
outside the courtroom does not necessarily constitute reversible error. Such
circumstances are not inherently or presumptively prejudicial and do not rise to the level
of a due process violation absent a showing of actual prejudice." In re Pers. Restraint of
Davis. 152 Wash. 2d 647, 697-98, 101 P.3d 1 (2004). Watters does not demonstrate
prejudice.
Watters argues that defense counsel was ineffective for failing to object to various
statements as hearsay or speculation and failing to adequately highlight another
statement during closing argument. Because statements identified by Watters were of
extremely limited relevance, Watters fails to demonstrate deficient performance or
resulting prejudice.
Watters claims that a letter written by his father for the purposes of sentencing was
disregarded by the trial court. But, the judge stated on the record he had read the letter
and Watters' father spoke on Watters' behalf at the sentencing hearing.
Finally, Watters claims that he was denied his constitutional right to counsel at the
time of his arrest and that the State improperly edited the statement he made to law
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enforcement. These claims appear to rely on facts outside the record and cannot be
considered on direct appeal. McFarland. 127 Wash. 2d at 337-38.
We affirm Watters' conviction. We remand for the vacation of the order
conditionally vacating Count II.
WE CONCUR:
S'e^e,
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