In re Harvey

• Decision Date: 12 April 2018
• Docket Number: No. 34808-3-III,34808-3-III
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the Personal Restraint of Merle William HARVEY, Petitioner.

415 P.3d 253

In the MATTER OF the Personal Restraint of Merle William HARVEY, Petitioner.

No. 34808-3-III

Court of Appeals of Washington, Division 3.

FILED APRIL 12, 2018

David Bruce Koch, Nielsen Broman & Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Petitioner.

Lawrence Henry Haskell, Brian Clayton O'Brien, Spokane County Prosecutors, 1100 W Mallon Ave., Spokane, WA, 99260-0270, for Respondent.

PUBLISHED OPINION

Siddoway, J.

¶ 1 Merle 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 retreat.

¶ 2 His 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.

¶ 3 Second, 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 dismissed.

PROCEDURAL HISTORY

Convictions, appeal, and the present petition

¶ 4 In late 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.¹ 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.²

¶ 5 In a 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 lawyer.

Relevant trial evidence, jury instruction proposals, and objections

¶ 6 It was 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.

¶ 7 On the 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.

¶ 8 Only 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.

¶ 9 Viewed 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. Harvey's Blazer;

¦ 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 Blazer;

¦ 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;³

¦ 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.

¶ 10 Viewed in the light most favorable to the State, the evidence showed the following:

¦ 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 the Blazer;

¦ 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 Mr. Lamere's that was played to jurors;

¦ Mr. Harvey knew that Mr. Lamere was violent and had seen him act violently with little provocation;

¦ Mr. Harvey, who had previously been convicted of a serious offense and could not legally possess a firearm, took two rifles with him when he went looking for Mr. Lamere and the Blazer;

¦ One of the rifles was already loaded when Mr. Harvey and Ms. Richardson arrived at the parking lot and Mr. Harvey assembled and loaded the other while Ms. Richardson was off making a phone call to arrange for delivery of the Cadillac;

¦ When Ms. Richardson returned and told Mr. Lamere the Cadillac was coming, Mr. Lamere told her and Mr. Harvey that they had a done deal and he wanted them to "get out of [ ]here." Report of Proceedings (RP) at 349;

¦ When Mr. Lamere then got into the Blazer, Mr. Harvey told Ms. Richardson to pull the flatbed truck forward and "pin Mr. Lamere in so he couldn't drive

that Blazer out of there," RP at 850, which she did;

¦ After blocking Mr. Lamere from leaving in the Blazer, Mr. Harvey then stepped out of the truck angrily, said, "[G]et that f***ing truck," or he was "taking the f***ing truck ... right now," and said he "was done with [Mr. Lamere] ripping people off." RP at 351–52, 355. He then reached into his truck, retrieved his gun, and shot Mr. Lamere and then Mr. Potter; and

¦ Mr. Lamere was carrying a gun in his waistband but had not drawn his gun or pointed it at Mr. Harvey or Ms. Richardson, and Mr. Potter, who had been looking for a tool in his truck when the shooting started, proved to be carrying a pistol-grip flashlight, not a gun, when he was shot.

¶ 11 The State did not contest Mr. Harvey's right to having the jury instructed on self-defense, but proposed that jurors also be given a first aggressor instruction.

¶ 12 The record is clear that in arguing how the jury should be instructed, Mr. Harvey's priority was to avoid the giving of a first aggressor instruction. At the outset of trial, he filed a brief opposing the giving of the instruction, arguing that first aggressor instructions "are not favored by Washington Courts." Clerk's Papers (CP) at 181. He quoted this court's 1985 decision in State v. Arthur , 42 Wash. App. 120, 125 n.1, 708 P.2d 1230, which stated, "[F]ew situations come to mind where the necessity for [a first] aggressor instruction is warranted. The theories of the case can be sufficiently argued and understood by the jury without such instruction." Id.

¶ 13 Argument over the giving of the first aggressor instruction was protracted. Over 40 pages of the verbatim report of proceedings reflect the court's consideration of Mr. Harvey's objections to the first aggressor instruction. The trial court first heard argument over the giving of the instruction on the afternoon before the case was submitted to the jurors. The court observed, "Sometimes it's kind of hard to know where to go on these cases where you've got the aggression coming from both sides." RP at...