State v. Grier

• Decision Date: 02 June 2009
• Docket Number: No. 36350-0-II.,36350-0-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kristina Ranae GRIER, Appellant.

208 P.3d 1221

150 Wn. App. 619

STATE of Washington, Respondent, v. Kristina Ranae GRIER, Appellant.

No. 36350-0-II.

Court of Appeals of Washington, Division 2.

June 2, 2009.

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.

HUNT, J.

¶ 1 Kristina Ranae Grier appeals her jury conviction and sentence for second degree murder.¹ In her Statement of Additional Grounds (SAG),² Grier argues that her trial counsel was ineffective in failing to explain and to request jury instructions on lesser included manslaughter offenses. At our request, the parties submitted supplemental briefs on this issue. Holding that defense counsel's failure to request lesser included offense instructions constituted ineffective assistance under the unusual circumstances of this case, we reverse and remand for a new trial.

FACTS

I. Substantive Facts

¶ 2 On the evening of February 21, 2006, several people were at Kristina R. Grier's house, including Gregory Owen, Michelle Starr (Owen's girlfriend), Owen and Starr's five-year-old daughter, Nathan Grier (Grier's 17-year-old son),³ and Cynthia Michaels (Nathan's 17-year-old girlfriend).⁴ Owen had recently been released from jail after having served a sentence for assaulting Starr and for violating a domestic violence restraining order that prohibited him from having any contact with her. While in jail, Owen had communicated with Starr through Nathan and Grier because he could not call Starr directly. Grier had several guns, two of which she apparently kept in her purse.⁵ She also had a Winchester shotgun and a .22 old-fashioned rifle.

¶ 3 According to Michaels, at some point during the day, Nathan initiated a conversation with Grier about whether she could shoot a person. Grier was waving around one of her guns, pointed it at Nathan, and said that "she could shoot him if she wanted to." According to Michaels, this "was not really a threat." Nathan replied, "Go ahead and do it"; but Grier "put the gun away."

¶ 4 Starr took Grier to the store to purchase liquor. Starr asked Grier not to bring her guns, but Grier brought them anyway. According to Starr, Grier said she thought there were people living in her attic. Grier also told Starr that "[Grier's] boyfriend had sent somebody to rape her and that she had to confront the man with a 9 millimeter and that's how she ended up with the two guns."

¶ 5 After Starr and Grier returned from the liquor store, Owen and Michaels went to Fred Meyer to purchase pills to prevent hangovers. While Owen and Michaels were gone, Grier became upset because some cheese was missing. She yelled at Nathan about the cheese and then returned to her room "kind of crying loudly." According to Nathan, when Grier "drinks a lot, she gets emotional sometimes." When Owen returned, he went to Grier's bedroom to try to calm her down.

¶ 6 A few minutes later, Nathan also went back to Grier's bedroom. Grier showed Owen two nine millimeter guns, one black and one silver-and-black. Nathan asked Grier for money that she owed him from his Social Security check. Grier asked Nathan about the location of an ammunition clip for one of her guns, which clip Nathan had earlier misplaced.⁶ Nathan remembered where the clip was and returned it to Grier, who then gave him the money she owed him. According to Nathan, Grier put both guns in her purse while they were all in the bedroom.

¶ 7 Grier, Owen, and Nathan left the bedroom and returned to the kitchen or dining room, where everyone sat around a table and drank alcohol. Grier began saying things that upset Nathan, such as that he "was not a good son, just kind of bringing up bad stuff [Nathan does]." Nathan told Grier to "shut up." According to Nathan, Owen slapped him in the mouth "kind of hard, you know. It's not like a friend slap when you are messing around."⁷

¶ 8 At some point, Starr left for her parents' house to borrow bedding so that she and Owen could spend the night at Grier's house. While Starr was gone, Grier began flirting with Owen. After Starr returned, Grier continued to flirt with Owen, which upset Starr. Starr suggested that they take the guns away from Grier. According to Nathan, Owen grabbed Grier's purse, put it under the table, and began removing things from the purse and "putting a couple of things in his pocket."

¶ 9 Later, Nathan took Grier to her room and put her to bed because she was "really drunk." After Grier was in her room, Owen began taking the bullets out of Grier's ammunition clips, asked which clip went with which gun, and said that he liked the silver-and-black gun. Nathan told Owen he could not take the gun because Grier would think Nathan had taken it and she would be mad at him.⁸ According to Nathan, when Nathan tried to prevent Owen from taking the gun, Owen became angry.⁹ Nathan told Owen he would have to leave because if Grier woke up and found her guns were gone, she would be angry.

¶ 10 Owen took Grier's gun out to his car along with some of the bedding that Starr had brought in earlier.¹⁰ On the way to the car, Owen fired the gun at a neighbor's house. Grier heard the shot and began yelling from the bedroom, saying things like, "Do you mother-fuckers have my gun? He stole my gun." Nathan and Owen apparently persuaded her that the sound she had heard was something else.

¶ 11 Later, Owen and Starr fought about sex, during which Owen slapped Starr. At some point during this fight, Owen demanded from Nathan a phone number for a man that Owen thought had had sex with Starr while Owen was in jail. When Nathan said he did not have the phone number, Owen punched Nathan in the mouth, splitting Nathan's lip, which later required stitches, and causing Nathan to become "real dizzy." Michaels helped Nathan sit down in a chair.

¶ 12 Grier reemerged from her bedroom with her purse and demanded to know where her guns were; she had put them in her purse and they were missing. According to Nathan, "She [Grier] seen me and him and he [Owen] was yelling at me, and I was bleeding everywhere. I had it all over my clothes." Grier told Owen to get off her son, and Owen pushed her. Nathan was not sure "if [Owen] slapped [Grier], you know, but he kept putting his hands on her and pushing her real hard."

¶ 13 Starr and Michaels took Starr's daughter and the rest of the bedding out to the car. Owen stole a portable DVD player from Nathan and put that in the car, too. Starr and Owen sat in the car talking for a while.

¶ 14 According to Nathan, the thought of Owen's taking Grier's guns frightened her. Grier asked Nathan if her shotgun was still in his closet or if Owen had taken that, too. Nathan replied that the shotgun was still in his closet. Grier removed the shotgun from the closet, looked to make sure it was not empty, and went outside. Nathan hid in one of the bedrooms, called 911, and "told them to get here because everyone has got guns." He whispered because Owen "hate[d] cop callers."

¶ 15 Apparently, when Grier came outside, Starr and Owen got out of the car. Grier cocked the shotgun, pointed it at Owen and Starr, and began yelling at them. Owen grabbed the barrel of the shotgun and struggled to take it away from Grier. Starr "got behind [Grier] and started choking her to the ground." Owen took the shotgun from Grier, but Grier "still had ahold of [Starr's] hair and wouldn't let go of [Starr]. So [Starr] had to hit [Grier's] head on the concrete for a couple of times to get [Grier] to let go of [her]." Owen put Grier's shotgun in his car. Hearing "a lot of yelling," Nathan went outside. Grier told Nathan that Owen and Starr had "beaten her up" and taken her guns. Nathan and Grier went back inside the house; Grier went back toward the bedroom.

¶ 16 Owen followed them inside Grier's house,¹¹ uninvited, yelling at Nathan and advancing toward him. According to Nathan, Grier came back into the living room, and said, "Get away from my son" and "get out of my house." At this point, Owen grabbed Grier. According to Nathan:

I didn't see a gun.

He [Owen] put his hands on her [Grier], pushed her again. And then she kind of grabbed on to him so she wouldn't fall, like pulling on him and, I think, checking his pockets, you know, trying to get her gun back. And he kept pushing her, you know, and then she tried to push him back and then he tried to push her away. And he was yelling at her a bunch of shit, like — I don't know. He was yelling.

. . . .

She was in front of me, and they were just yelling, and I was just kind of waiting for the cops, you know. And then I just heard a bang, and I looked up, and it looked like to me he [Owen] was, like, going back. And I didn't know.

At first I thought he [Owen] had the gun, you know, and was shooting it. And then I was . . . real scared, kind of in shock. And then she [Grier] was kind of trying to grab, you know, like his hands so he wouldn't do nothing, kind of like just grab on him, stop him if he was going to start shooting up everybody or something you know, get out of—

I totally thought he [Owen] had the gun. That's what I told the cops because I was really scared.

RP (Vol. 2) at 165-66. Nathan believed that Grier was trying to protect him from Owen.

¶ 17 Michaels was in the house when Owen and Grier were struggling and Owen was shot, but she (Michaels) was not looking in their direction when the shooting happened. Michaels also saw Grier "pull on" Owen after the shot, but she (Michaels) did not see Grier with a gun. After the shot, Nathan ran out of the house and went to a neighbor's house to call the police again. Owen grabbed his chest, got up, and ran out of the house. Starr went after him.¹² Grier chased Starr to Starr's car, where the two of them had some sort of physical altercation.

¶ 18 Michaels intervened to help Starr, which resulted in a scuffle between Grier and Michaels. Grier said to Michaels "that she would[¹³] kill [her (Michaels)] and [she (Mic...