State v. Avington
| Decision Date | 27 September 2022 |
| Docket Number | 55222-1-II |
| Citation | 517 P.3d 527 |
| Parties | STATE of Washington, Respondent, v. Dominique James AVINGTON, Appellant. |
| Court | Washington Court of Appeals |
Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave., Ne # 552, Seattle, WA, 98105-4183, for Appellant.
Teresa Jeanne Chen, Attorney at Law, 930 Tacoma Ave., S. Rm. 946, Tacoma, WA, 98402-2102, for Respondent.
PART-PUBLISHED OPINION
¶ 1 Dominique J. Avington appeals his convictions for one count of first degree murder and three counts of first degree assault. Avington argues that the trial court erred in refusing to give a jury instruction on first degree manslaughter as a lesser included offense of first degree murder. Avington also argues that he received ineffective assistance of counsel when his defense counsel failed to renew his motion to sever. And Avington filed a Statement of Additional Grounds (SAG)1 raising numerous issues.
¶ 2 In the published portion of this opinion, we address Avington's claim that the trial court erred in refusing to give an instruction on first degree manslaughter, which requires a finding of recklessness, as a lesser included offense of first degree murder, which requires a finding of extreme indifference. We hold that in light of the video evidence showing Avington standing square and shooting straight towards the direction of the bar entrance, where the victim and others were gathered, and Avington's stipulation that a photo admitted into evidence shows him standing square and firing multiple rounds from a semi-automatic handgun straight towards the direction of the bar entrance where the victims and others were gathered, no reasonable jury would have been able to rationally find that Avington was acting recklessly as required for first degree manslaughter rather than with extreme indifference as required for first degree murder.
Thus, the trial court did not err in failing to give the lesser included jury instruction on first degree manslaughter. We address and reject Avington's ineffective assistance of counsel and SAG claims in the unpublished portion of the opinion. Accordingly, we affirm.
¶ 3 On October 20, 2018, Natosha Jackson was bartending at a club in Lakewood, Washington. The club had been abnormally busy and some of Jackson's friends were having a birthday party in the VIP section of the club. Early in the morning on October 21, Jackson got into an argument with some men at the bar. Tired and frustrated, Jackson walked away from the bar. Jackson asked her friend, Perry Walls, to watch out for her because she was being disrespected by a group at the bar. Jackson then went outside and saw her boyfriend, Terrence King, and his friend, Denzel McIntyre, who had come to pick her up. Jackson told King she wanted to go home and went back into the club.
¶ 4 Inside the club, Walls confronted the group of men that Jackson had identified as being disrespectful to her. This group included Avington, Darry Smalley, and Kenneth Davis. Some of Walls’ friends from the party followed Walls over to the group. After a short verbal confrontation, punches were thrown, and both groups were involved in a short fight. The fight was pushed toward the door and people began leaving the club. Walls was still upset about the fight and followed the group outside.
¶ 5 Outside the club, King recognized Walls and moved toward him. McIntyre followed King. Moments later, 30 shots were fired toward the club. King, Walls, McIntyre, and many other patrons of the club tried to rush back inside. King was struck by two bullets, one of which was a fatal shot to the upper back, and died inside the club. Walls was shot in the foot. McIntyre was shot in the buttocks. Pearl Hendricks, a woman inside the club, was shot four times, twice in the back. Hendricks was left permanently paralyzed from the chest down.
¶ 6 The State charged Avington with one count of first degree murder for King's death. The State also charged Avington with three counts of first degree assault for the injuries to Walls, McIntyre, and Hendricks. Avington was charged as both a principal and accomplice. Later, the State amended the information to include an alternative count of second degree murder for King's death. The State also alleged for each charge the aggravating circumstance of committing an act with a destructive and foreseeable impact on persons other than the victim. Smalley and Davis were also charged, and they were set to be tried jointly with Avington.
¶ 7 All three defendants moved to exclude any gang evidence. During the motion hearing, the State offered to withdraw the gang evidence if the defendants would stipulate to their identities as the shooters and rely on self-defense. The defendants agreed to the State's suggestion, and the State agreed to sanitize any reference to gang related evidence. The parties entered a comprehensive written stipulation identifying the defendants, as well as several other people, in various surveillance videos used as trial evidence. The stipulation included several "still photographs taken from surveillance video" that the defendants stipulated were photographs of Smalley and Avington firing multiple rounds from semi-automatic handguns. Clerk's Papers (CP) at 67.
¶ 8 The trial court admitted the stipulation into evidence. Jackson, Walls, and McIntyre testified to the background facts above. Jackson explained that she told Walls, "I need you to watch my back tonight," because people were being disrespectful. 9 Verbatim Report of Proceedings (VRP) at 1381. Walls asked her who he should watch out for and she indicated the group by the bar.
¶ 9 Walls explained that after Jackson told him she was being disrespected, he went over to the bar and "made a general announcement" asking who was being disrespectful. 11 VRP at 1725. Nobody responded to the announcement. A few minutes later, the group was "getting riled up" and looked to be "squaring off" to fight. 11 VRP at 1727. Walls began pulling up his pants, preparing for a fight, and then got blindsided by a punch. Walls explained that the fight moved outside the club as people were pushed out the door. Walls went outside and continued arguing with the guys outside. While Walls was arguing, he heard shots fired, ran inside, and fell. Inside the club, Walls realized he had been shot in the foot. Walls testified that he never had a firearm in his possession.
¶ 10 Detective Jeff Martin of the Lakewood Police Department was assigned as the lead detective to investigate the shooting at the club. Based on forensic examination of fired shell casings at the scene, Detective Martin determined there were three shooters firing from three areas. In total, forensics collected 30 shell casings from outside the club. Through his investigation, Detective Martin also identified Avington, Smalley, and Davis as part of a group that had been together at a different club before going to the club in Lakewood.
¶ 11 Avington and Smalley testified in their own defense. They both testified that they were friends. Avington explained that he had known Smalley for years. Although neither of them intended to meet the night of the shooting, they ended up at the same club earlier in the night. Then the entire group went to the club in Lakewood.
¶ 12 Smalley testified that while they were at the club, Walls started yelling at and threatening Smalley's group. Smalley recognized that the confrontation was turning into an argument and people in both groups were getting ready to fight. Smalley was trying to stay out of the fight. One of Walls’ friends threw a punch that did not hit anyone and the fight erupted. During the fight, Smalley was grabbed and thrown to the ground. The man who slammed Smalley to the ground ran out the door. Smalley believed the man went to get a gun and tried to get out of the club. Smalley ran out into the parking lot to his car and grabbed his gun from the passenger door. As Smalley headed back toward the club, he saw Avington in an aggressive confrontation with Walls. Although the confrontation appeared aggressive, Smalley could not hear any words being spoken. Smalley also saw two other men behind Walls that Smalley believed were involved in the confrontation.
15 VRP at 2375. Avington also started shooting at the same time, but Smalley claimed that there was no communication between them before the shooting began.
¶ 14 Smalley admitted that he believed he shot King, although he was not sure who shot Hendricks because there were three people shooting. Smalley also admitted that he was shooting at Walls. Smalley testified that he fired 16 or 17 time at Walls, King, and McIntyre.
¶ 15 Avington testified that he had never been to the club before, but he assumed it was a biker bar. Avington had a firearm with him and brought it inside the club.
¶ 16 Avington first noticed Walls yelling and being belligerent while he was at the bar. At first, Avington was not sure who Walls was directing his comments to, but then it became apparent to Avington that Walls was addressing his group. The confrontation began to escalate and people began pushing. Avington testified that a punch was thrown and then he ended up involved in the fight. Avington attempted to leave the club and walk away from the situation, but the argument continued outside.
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