State v. Boisselle, 77767-0-I
| Decision Date | 16 April 2018 |
| Docket Number | No. 77767-0-I,77767-0-I |
| Citation | 415 P.3d 621 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Michael Clifford BOISSELLE, Appellant. |
Dana M. Nelson, Nielsen Broman & Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842 for Appellant.
Mark Von Wahlde, Pierce County Prosecuting Attorney Office, 5501 6th Ave., Tacoma, WA, 98406-2603, Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402 for Respondent.
PUBLISHED OPINION
¶ 1 Michael Boisselle was charged and convicted of second degree murder and unlawful possession of a firearm. On appeal, Boisselle contends that the trial court erred by denying his motion to suppress and by refusing to instruct the jury concerning justifiable homicide in resistance of a felony. Boisselle also contends that the prosecutor committed flagrant misconduct during rebuttal closing argument, thus depriving him of a fair trial. Finding no error, we affirm.
¶ 2 In July 2014, Michael Boisselle encountered Brandon Zomalt, an old acquaintance. Zomalt told Boisselle that he was homeless, had nowhere to sleep, and that he needed assistance obtaining a food handler's permit in order to secure a job. Boisselle offered to let Zomalt stay with him in his duplex unit.
¶ 3 With Boisselle's assistance, Zomalt received his food handler's permit and began working at a nearby restaurant. However, Zomalt was fired after one week for fighting at work. Zomalt was addicted to alcohol and methamphetamine. He also had a history of violence. Several people, including Zomalt's mother and two of his former girlfriends, had been granted protection orders against him.
After losing his job, Zomalt drank throughout the day. Boisselle did not feel safe around Zomalt and avoided him when possible.
¶ 4 Boisselle asked Zomalt to move out in the beginning of August. Zomalt apologized for his behavior and asked for another chance. Boisselle agreed to let Zomalt stay, but Zomalt's behavior thereafter worsened. Boisselle believed that Zomalt was following him when he left the duplex. One night, Boisselle woke up to discover Zomalt beside the bed, staring at him. When Boisselle asked Zomalt what he was doing, Zomalt stated that he wanted to ask Boisselle something but changed his mind.
¶ 5 One morning, after Boisselle and Zomalt began to argue, Boisselle left the duplex to go to a nearby store. Zomalt followed Boisselle to the store, yelling at him the entire way. Boisselle tried to avoid Zomalt when he returned home. Boisselle went to his bedroom on the second floor of the duplex while Zomalt sat on the couch downstairs, consuming alcohol. Later that night, still in his bedroom, Boisselle told Zomalt that he could not stay at the duplex any longer. Zomalt refused to leave. Boisselle threatened to call the police. Zomalt again refused to leave, prompting Boisselle to grab his jacket and walk downstairs.1 Before he could leave, Zomalt pulled out a gun and pointed it at Boisselle. Boisselle went back upstairs to his bedroom.
¶ 6 Boisselle could look over the living room from the upstairs railing. Later, from that vantage point, he saw Zomalt sitting on the couch with the gun placed on the arm of the couch. Boisselle went downstairs and into the kitchen, where he pretended to get something to drink. Upon leaving the kitchen, Boisselle grabbed the gun from the arm of the couch.
¶ 7 At trial, Boisselle testified about what happened next:
¶ 8 On September 1, 2014, South Sound 911 dispatch received an anonymous telephone call from an individual who reported that "somebody by the name of Mike" stated that he shot someone at 13008 Military Road East, No. B (the duplex). Shortly thereafter, the Puyallup Police Department anonymous tip line received a telephone call from an individual who reported that "Mike" had "shot someone" and "possibly killed him, and it was in self-defense." Deputies Ryan Olivarez and Fredrick Wiggins were dispatched to the scene, arriving at 6:50 p.m. Sergeant Christopher Adamson arrived shortly thereafter, at approximately 7:13 p.m. Sergeant Erik Clarkson arrived at the scene at 7:17 p.m.
¶ 9 Olivarez and Wiggins knocked on the door of the duplex but received no response. There was, however, a dog inside that was barking aggressively.2 The deputies walked around the outside of the duplex and attempted to look inside, but all of the windows were closed and covered with blinds. There was a light on in the upstairs western bedroom. The deputies smelled a foul odor coming from the house and the garage. Olivarez thought that "something about it just seemed off" and was concerned with "trying to figure out if someone need[ed] help." Olivarez and Wiggins then contacted the neighbors in order to gather more information. Two neighbors informed the deputies that they had not seen anyone coming or going from the duplex for about "four or five days."
¶ 10 Adamson listened to the anonymous telephone call made to the Puyallup tip line. Because the anonymous caller provided few details, Adamson was worried "about whether someone was dead or dying in the house." When he arrived, Adamson searched for evidence to substantiate the anonymous telephone calls. Adamson smelled a faint odor coming from the garage that he believed was decaying flesh. Adamson spoke with a neighbor, who told him that a sex offender named Boisselle lived in the duplex. Adamson confirmed that information through the sex offender registry. However, several entries in the computer aided dispatch log indicated that Boisselle did not live at the duplex anymore and that his current location was unknown.
¶ 11 Adamson directed Olivarez to identify and contact the owner of the duplex. Olivarez contacted the owner and learned that he had rented the duplex to a woman who had stopped paying rent. The owner believed that there was a man named Michael living in the duplex who may be the son of the woman, but the owner had been unable to get Michael to pay rent. As a result, the owner was forced to file for bankruptcy and no longer owned the house. Based on the owner's statements, Adamson did not believe that the owner could give valid consent for the police to enter the duplex.
¶ 12 Wiggins checked the license plates of the two vehicles parked in the driveway of the duplex through the Department of Licensing and learned that Lola Patterson was the registered owner of both vehicles. Wiggins drove to Patterson's last known address and spoke with her personally. Wiggins learned that Patterson was Michael's3 mother and that Patterson had not seen or heard from Michael in about three days. Adamson believed that this information "just adds to the concern that we have somebody that is potentially down in the apartment or the duplex" because he could not "account for Mike, or whoever the victim is."
¶ 13 Upon arriving at the duplex, Clarkson also noticed a "really bad odor" that "might be rotting garbage, or something like that" coming from the garage. Clarkson walked around the duplex and attempted to look inside, but the windows were covered. The dog inside the duplex followed Clarkson around, barking and growling. When Clarkson reached the sliding door at the back of the duplex, the dog aggressively charged at the sliding door and pushed the blinds out of the way. Clarkson looked through the sliding door and could see overturned furniture, which he interpreted as "signs of [a] struggle" and an indication that "something bad could have happened in there." Clarkson and Adamson agreed to contact animal control in case entry into the duplex was necessary. Adamson believed that he had an obligation to force entry into the duplex to determine whether someone was dead or dying and for the abandoned dog's safety.4
¶ 14 Clarkson noticed a man standing across the street who seemed interested in the activities of the police. Clarkson went to talk to the man, who identified himself as Christopher Williamson. Williamson stated that he was a friend of Zomalt and that Zomalt had been staying in the duplex with Michael. Williamson had not seen or heard from Zomalt for several weeks. Clarkson ended his conversation with Williamson at around 7:50 p.m., roughly one hour after the first deputy arrived at the duplex.5
¶ 15 Following his conversation with Williamson, Clarkson received a call from Auburn Police Detective Faini. Faini told Clarkson that Auburn police were investigating a possible missing person and homicide case and that it may be related to Clarkson's welfare check. Faini told Clarkson that the Auburn investigation concerned a roadside carpet burning incident and that he would be interested to know if there was any torn up carpet in the duplex. Faini told Clarkson that the possible victim's name was Zomalt.
¶ 16 Clarkson then contacted Adamson. Clarkson told Adamson that Zomalt was associated by DNA evidence with a roadside burning incident in Auburn. Adamson told Clarkson that he was able to look through the sliding door and see that carpet had been ripped up from the floor.
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State v. Boisselle, 95858-1
...I, section 7 of the Washington Constitution or the Fourth Amendment to the United States Constitution. State v. Boisselle , 3 Wash. App. 2d 266, 276-77, 415 P.3d 621 (2018). The Court of Appeals affirmed Boisselle’s convictions, holding that the officers’ search was permissible because they......
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State v. Thornton
... ... 74 Wn.2d 102, 113, 443 P.2d 536 (1968). A ... prosecutor may challenge the credibility of the ... defendant's testimony. See State v. Boisselle ... 3 ... Wn. App.2d 266, 293-94, 415 P.3d 621 (2018) (no misconduct to ... challenge credibility of defendant's testimony that he ... shot victim ... ...
- State v. Irby
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State v. Thornton
...536 (1968). A prosecutor may challenge the credibility of the defendant's testimony. See State v. Boisselle, 3 Wn. App.2d 266, 293-94, 415 P.3d 621 (2018) (no misconduct to challenge credibility of defendant's testimony that he shot victim in self-defense). "It is not misconduct for a prose......