State v. Burton

Decision Date09 November 2017
Docket NumberNo. 34230-1-III,34230-1-III
CourtCourt of Appeals of Washington
PartiesSTATE OF WASHINGTON, Respondent, v. CRAIG SCOTT BURTON, Appellant.
UNPUBLISHED OPINION

FEARING, C.J.Craig Burton wished to die. Because of his father's background in law enforcement and his own background in the military, Burton sought to commit suicide by cop. He successfully provoked police officers into shooting him, but not into killing him. Burton appeals on numerous grounds his convictions for assault on the officers. Because of the tragic circumstances that led to his suicide attempt, he also pleads that this court direct the trial court to reduce his lengthy sentence. Like the trial court, we empathize with Burton, but our empathy will ring hollow to him. We provide Burton no relief from his convictions and only limited relief to his sentence.

FACTS

The trial court convicted Craig Burton of three counts of second degree assault after a bench trial. We purloin the facts from the trial court's thirty-five pages of findings of fact and conclusions of law.

We start with some background of appellant Craig Burton. Burton's father served in the Air Force and as a police officer, sheriff, and corrections officer. Craig Burton learned police work from his father. He later joined the United States Army. Burton served on active duty for four years and two years in the National Guard. He received extensive weapons and de-escalation of hostility training.

Craig Burton suffers from attention deficit hyperactivity disorder (ADHD). To combat ADHD during military service, Burton took Adderall XR. The medication successfully managed the disorder's symptoms. When the Air Force honorably discharged Burton, it advanced him a ninety-day supply of Adderall.

After leaving the military, Craig Burton obtained employment as an intermediate care technician with the Spokane Veteran's Affairs (VA) hospital. Burton married Tiffany Shuskey, and the couple bore children. In January 2015 when the marriage soured, Burton cohabitated with girlfriend Rebecca "Becca" Libby. Clerk's Papers (CP) at 117.

The Spokane VA hospital treated Craig Burton for ADHD. After one VA physician lowered Burton's dosage for Adderall, Burton's ADHD symptoms returned,and he requested an increase in the dosage. In February 2015, a VA physician declined to increase the Adderall prescription and instead prescribed Paxil, the trade name for Paroxetine. In March 2015, suicidal thoughts commenced to haunt Burton. When Burton told his physician about his suicidal ideation, the doctor counseled him to await the medication's effect. In late April 2015, Burton attempted suicide by overdosing on prescription medications. Becca Libby rushed Burton to a hospital emergency room.

After Craig Burton advised the VA hospital of his suicide attempt, a VA physician doubled Craig Burton's Paxil prescription. Burton's suicidal deliberations continued nonetheless.

The events leading to Craig Burton's prosecution for assault of police officers occurred on May 6, 2015. On that day, Burton felt overwhelmed by life's circumstances. His wife Tiffany Shuskey would soon finalize their divorce. Burton questioned his ability to afford child support, and he feared he may lose his home and vehicle. His relationship with girlfriend Becca Libby deteriorated.

As a result of desultory texts from Craig Burton during the early morning of May 6, Becca Libby visited Burton's residence and attempted to cheer him. Burton acted cold and withdrawn. Libby and Burton later went to their respective workplaces. During the workday, Burton and Libby exchanged text messages that increased Libby's alarm for Burton's welfare. After work, Libby sought advice, from her mother Karen Christopher, about quieting Burton. Libby and Christopher chose to visit Burton at his North AshStreet, Spokane, home.

Ash Street functions as a major north-south arterial street in Spokane. Craig Burton's residence fronted the arterial, and his property included a back alley with a detached garage. The alley held an area for parking. An eight-foot high white vinyl privacy fence surrounded Burton's backyard.

At 8:00 p.m., on May 6, Karen Christopher and Becca Libby arrived at Craig Burton's Ash Street home. Christopher parked her car behind Burton's Suburban in the alley parking area. Christopher and Libby entered Burton's backyard and saw him sitting on his back porch. A beer rested on the steps next to Burton.

Becca Libby went inside Craig Burton's residence while Karen Christopher conversed with Burton in the backyard. Christopher found Burton quiet, and he appeared to have been sobbing. Christopher did not consider him intoxicated. Burton continuously muttered, "'Life is not fair,'" while referencing his divorce and the possible loss of his children, house, and truck. CP at 117. Burton repeatedly asked Christopher to "'call the police.'" CP at 118. When Burton reached for a beer, Christopher noticed a handgun. She did not deem Burton as a threat to her, but she worried that Burton was suicidal. Christopher asked him to hand her the gun. Burton refused.

Unbeknownst to others, Craig Burton schemed to commit suicide by cop. He believed that, if he engendered certain circumstances, experienced and skilled law enforcement officers would shoot and kill him. Burton had earlier loaded the gun thatrested on the back porch.

Karen Christopher entered the residence and told her daughter that Craig Burton possessed a gun. Christopher called 911 and reported Burton's behavior to a dispatch operator. Dispatch advised Christopher to leave the residence. Christopher complied, but Becca Libby remained in Burton's house. Becca Libby judged Burton as intoxicated and suicidal. Libby fleetingly exited to the porch, grabbed a clip of bullets, and hid the bullets in a purse.

At 10:00 p.m. on May 6, 2015, Spokane Police Officers Christopher Benesch, Sean Wheeler, and Adam Potter respectively answered dispatch's summons to Craig Burton's Ash Street residence to investigate an intoxicated, suicidal male with a gun. The three officers assembled in the alley behind and north of Burton's residence. Officer Potter carried a Colt AR 15 semi-automatic rifle and a ballistic shield. Officer Wheeler bore a beanbag gun, and Officer Benesch held a ballistic shield in one hand and his duty weapon in the other. Darkness, except for a lone spotlight, abounded in the alleyway. The officers formulated a plan to instigate a conversation with Craig Burton.

Spokane Officers Blaine Kakuda, Troy Teigen, John Arredondo, Joseph Matt, Yeshua Matthew, Jake Jensen, Nicholas Spolski, and Lieutenant Dean Sprague also arrived near the Ash Street residence and assembled in the alley to the south of Burton's home. Jensen wore a body camera that filmed the coming drama. The State would charge Craig Burton with assaulting Officers Christopher Benesch and Adam Potter, whostood north of the alley, and Officer Jake Jensen, who stood south of the alley. Therefore, these three officers' fears loom important.

Craig Burton heard sirens, but saw no law enforcement officers in front of his home. He had expected that police would first knock on his door. He went to his backyard gate and noticed police in the alley north of his parked Suburban.

While still inside his gated backyard, Craig Burton fired three rounds from his pistol into neighborhood trees. Burton aimed into the trees so he would not hit an officer or a neighbor. He also did not want police to shoot neighbors or his dog, who rested inside his home.

Craig Burton assumed his shots would prompt law enforcement officers to retreat. All eleven assembled officers heard the pistol shots, but none could see Burton in the dark behind his backyard fence. Officer Christopher Benesch saw, over the fence, Burton's pistol and a muzzle flash. Officers Adam Potter, Sean Wheeler, Blaine Kakuda, and Joseph Matt believed Burton shot at them and feared for their and other officers' safety.

Some mustered law enforcement officers heard Craig Burton repeatedly yell: "'do it,'" "'just do it,'" or "'come do it.'" CP at 122, 124, 127-29. Burton fired more shots into the air to empty his magazine. He never intended to physically harm police officers and shot every round away from the officers. Burton judged that he frightened none of the officers. Officer Jake Jensen heard a total of eleven shots and feared being shot.Jensen knew the shots originated from Burton's backyard, but could not identify the location of the shooter.

Craig Burton next dropped the ammunition magazine and engaged his gun's safety. Officers Potter, Wheeler, Benesch, and Matt heard, based on their training, a sound that resembled the reloading of a gun rather than engaging of a safety.

Craig Burton opened the backyard gate and, with his pistol pointed to the ground, stepped into the alley. He never aimed his weapon at law enforcement officers. He assumed officers would command him to drop his weapon, and, if he disobeyed, one or more would shoot him.

One of the officers standing in the south barked for Craig Burton to "'show me your hands, drop the gun, drop the gun.'" CP at 129. When Burton defied the command, the officer shot Burton once in the abdomen. Officer Christopher Benesch hurried to assist Burton, and an ambulance later transported Burton to the hospital. At the hospital, Officer Dale Wells spoke with Burton. Burton told Officer Wells that he wished police officers had killed him and he was glad he injured no one.

After the transport of Craig Burton to the hospital, investigating Spokane Police Department Detectives Michael Drapeau and James Dresback reviewed Craig Burton's residence property. The officers found multiple bullet casings in the backyard of and alley behind Burton's residence. They did not locate any bullet holes or strikes. Although many of Burton's neighbors heard the gunfire, none found damage to theirproperty. At trial, Detective Drapeau testified that, from the position...

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