State v. Bolar, 46711-5-I.
| Decision Date | 18 August 2003 |
| Docket Number | No. 46711-5-I.,46711-5-I. |
| Citation | 78 P.3d 1012,118 Wash.App. 490 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Matthew Franzino BOLAR, Appellant. |
Gregory C. Link, Washington Appellate Project, Seattle, WA, for Appellant.
Lee Davis Yates, Sr. Deputy Pros. Atty., Pros. Atty. Office, Seattle, WA, for Respondent.
PUBLISHED IN PART
Mathew Bolar was charged with and tried for murder in the first degree (premeditated intent) and in the alternative with first degree felony murder based on the predicate crime of first degree burglary. He was only convicted of first degree felony murder however, which he now appeals, arguing, inter alia, that the State's use of a faulty accomplice liability jury instruction necessitates a new trial and that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. But by finding Bolar guilty of felony murder, the jury necessarily found, in accord with the overwhelming evidence, that he was a participant in the predicate felony of burglary in the first degree. Although Bolar has abandoned the position on appeal, at trial he contended, and correctly so insofar as his own conduct was concerned, that an accomplice liability instruction was unnecessary because the evidence was so clear that he acted as a principal. Accordingly, the erroneous accomplice instruction was harmless beyond a reasonable doubt.
Although a claim of self-defense is not available to one who commits first degree felony murder based on the predicate felony of burglary in the first degree, this case was tried to the jury as if the defense were available, and the State disproved self-defense beyond a reasonable doubt.
We reject Bolar's contention that the trial court erred in denying his intermittent requests to represent himself. In the unpublished portion of this opinion, we also reject his claims that his CrR 3.3 right to a speedy trial was violated, that the trial court made various evidentiary errors, and that he was deprived of a fair trial by reason of ineffective assistance of counsel and prosecutorial misconduct. Accordingly, we affirm Bolar's conviction for felony murder in the first degree.
Matthew Bolar lived with Kristine Zemek for about six months. Kristine was a crack addict, and she and Bolar often drove around and sold drugs together. After Bolar was arrested and placed in jail for four months for probation violations, Kristine began a relationship with Rodney Hill, who she met while dating Bolar. In need of money to buy drugs, she and Hill broke into Bolar's storage locker and stole some items that they then sold. Despite these thefts, Kristine resumed living with Bolar after he was released from jail.
One night shortly before the murder of Hill, Kristine, Bolar, Hill, Kristine's sister Marie, and Marie's husband got together to socialize at Kristine's stepfather's house. After Hill left for the night, Kristine and Bolar got into an argument about Kristine's relationship with Hill. At one point during the argument, Bolar hit Kristine over the head with his gun. When Marie attempted to intervene, Bolar threatened her with the gun. Soon after that, Kristine left Bolar and began living with Hill. When she left, she took $800 and drugs that belonged to Bolar, as well as his car. Kristine later had Hill return Bolar's car.
For most of the next week, Kristine and Hill hid from Bolar by staying at various motels. Bolar kept finding them, however, and Kristine would have to call the police in order to be escorted away safely. Bolar contacted a number of people in his efforts to locate Kristine and Hill. He asked Dorsha Riggs to give a message to Kristine that he was going to break her neck and kill Hill. Riggs had previously heard Hill and Bolar make similar threats toward each other, behind each other's backs. Bolar also went to the residence of Suzanne Dennard, looking for Kristine and Hill, and offered her money and drugs in exchange for helping him find them.
About three days before the murder, Bolar went looking for Kristine and Hill at a motel where Robert Jones, a close friend of Hill's, was staying. Kristine and Hill were also staying in the motel, in a different room, but happened to be in Jones' room visiting when Bolar showed up. Hill and Kristine quickly hid in the bathroom, and Hill crawled out the bathroom window. Bolar told Jones that Kristine had stolen some cocaine from him and that he wanted it back. Bolar returned to Jones' motel room about 20 times, at all hours of the day and night and with different people, in further attempts to locate Kristine and Hill. On each of these occasions, Bolar offered Jones cocaine as a reward for information as to their whereabouts.
On March 8, 1999, two days before the shooting, Hill and Kristine called the police and expressed their fear of Bolar. Taped statements were made at that time. Kristine also obtained a restraining order against Bolar, which was dated March 9, 1999.
On March 10, 1999, at about 8 p.m., Suzanne Dennard saw Bolar again, this time at a mutual friend's house. Bolar was there with a very large guy named Luke Kristoff, the co-defendant at Bolar's subsequent trial. Bolar said that he was going to find Kristine and Hill and that he had a good idea where they were.
That night, Kristine and Hill were staying at the residence of John Cahill in Federal Way, where they believed that Bolar would not be able to find them. Cahill and his girlfriend, Bonita Wells, were also there. The four were socializing and getting high on cocaine. Sometime before 9 p.m., Kristine and Hill went to sleep in a bedroom of Cahill's home.
At around 9 p.m., Cahill and Bonita prepared to leave to take Bonita home. After locking the front door, they started toward Cahill's truck. Just before they got to the truck, a car pulled in and Kristoff got out. Kristoff said that he was there to see Hill. Cahill replied that Hill was not there. Bolar then emerged from the car and joined Kristoff. Kristoff and Bolar said that they were not leaving until they saw Hill. Kristoff said that they could do it the easy way, or wait for Hill to come out of the "burning window." Bolar stated that he was a "gangster," and in a "Godfather-like" gesture, kissed Cahill on the neck. Cahill continued trying to convince Bolar and Kristoff that Hill and Kristine were not there, but after it became apparent that the two men were not going to take no for an answer, Cahill told Bolar he could come in if he stayed in the kitchen, and that he would get Hill so that they could talk. Cahill then unlocked the back door and he, Bolar, and Bonita walked into the kitchen.
After telling Bolar to stay by a chair in the kitchen, Cahill walked to the bedroom where Hill and Kristine were sleeping. As Cahill approached the bedroom door, Bolar pulled out a gun, pushed past Cahill, and crashed through the bedroom door with the gun drawn. Cahill briefly but unsuccessfully tried to control Bolar's arm. Kristoff then appeared in the bedroom and, after exchanging punches with Hill, knocked Hill down as he tried to get up from the bed. While Kristoff held Hill down and Kristine watched in horror, Bolar pointed the gun close to Hill's back and shot him, without any exchange of words.
Cahill, who by then was fleeing the house, heard the shot. Outside, he found a distraught Bonita standing near his truck. Kristoff came running out of the house, looked at Cahill and yelled, "Go!" Bolar came out of the house and got into the passenger seat of the vehicle in which he and Kristoff had arrived. Kristoff took the driver's seat and the two sped off. Kristine called 911.
Cahill and Bonita also drove from the scene, but soon returned. Cahill found Kristine crying and screaming hysterically. When he entered the house, he found Hill on the bedroom floor with a bullet hole in his back. He tried to take Hill's pulse but was not sure he could feel it. Kristine told him that Bolar had shot Hill in the back, and that he had pointed the gun at her and pulled the trigger, but the weapon did not fire.
The police soon arrived. After Kristine told Officers Douglas Laird and Thomas Robinson that her boyfriend had been shot in the bedroom by her ex-boyfriend, Officer Laird entered the house and found Hill lying on the floor with a small bullet hole in the middle of his back. Officer Laird found no weapons, bullets, or casings in the immediate area of the body.
Dr. Dan Straathof, a King County Medical Examiner, examined Hill at the scene of the crime and later performed the autopsy. He noted scrapes and bruises on the backs of Hill's hands, as well as contusions on his upper chest and arm, which were consistent with having thrown and received punches. He noted that the bullet wound was surrounded by soot and powder stripling, which is indicative of a fairly close-range shot. Further examination unearthed a bullet which had entered the middle of Hill's back, passed through his spinal cord, damaged the two major blood vessels in his abdomen, passed through several loops of bowel, and then lodged under the skin of his abdomen. Hill likely suffered immediate paralysis and a quick death.
The day after the murder, a passerby found a .357 revolver at the corner of Steel Lake Park and 312th, in Federal Way. The passerby wrapped the gun in a towel, took it home, and called police. The gun had two hollow-point bullets and casings inside. One of the cartridges had been struck twice by the firing pin, indicating that it had been struck once, come around again and been struck again — consistent with Kristine's statement that Bolar had pointed the gun at her and pulled the trigger, but the weapon did not fire.
Firearms examiner Mathew Nodel compared the slug recovered during the autopsy with the recovered .357 revolver and concluded that the slug that killed Hill had been fired from that weapon....
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