State v. Houfmuse, 34394-4-III
| Decision Date | 05 September 2017 |
| Docket Number | No. 34394-4-III,34394-4-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TYREE Q. HOUFMUSE, Appellant. |
FEARING, C.J. — Appellant Tyree Houfmuse shot and wounded his attacker, Anthony Asselin. A jury acquitted him on the charge of first degree assault, but convicted him on the charge of felon in unlawful possession of a firearm. On appeal, Houfmuse contends he suffered ineffective assistance of counsel because his trial counsel did not raise the defense of necessity in response to the unlawful possession charge. We conclude that, based on evidence presented at trial, Houfmuse was entitled to a jury instruction on the necessity defense and his trial counsel committed professional error by failing to assert the defense. Therefore, we reverse the conviction and remand for a new trial.
This prosecution arises from the shooting of Anthony Asselin by appellant Tyree Houfmuse. Houfmuse's past criminal record included an earlier felony conviction. Therefore, the State charged Houfmuse with both assault and unlawful possession of a firearm. Our factual outline arises from trial testimony.
The facts begin with the relationship between Anthony Asselin and Aquarius Gibbs, who later befriended appellant Tyree Houfmuse. Asselin and Gibbs met at the beginning of 2011. Gibbs gave birth to the couple's daughter on May 1, 2012. After the child's birth, Asselin and Gibbs intermittently cohabitated until the end of 2012. The relationship conclusively ended at the end of 2013. Near the end of the duo's relationship, Asselin physically abused Gibbs. Asselin stands six feet, four inches, and weighs approximately two hundred and eighty pounds.
In September 2014, Tyrell Houfmuse began wooing Aquarius Gibbs. At some unknown time, Houfmuse and Gibbs resided together in a Pasco abode. Houfmuse also knew Anthony Asselin, primarily through Asselin's younger brother. Asselin treated Houfmuse cordially until Houfmuse dated Gibbs.
Shortly after Tyree Houfmuse and Aquarius Gibbs commenced courting, Anthony Asselin warned Houfmuse to "[s]top hanging out with my 'F'ing baby momma, and stay away from my kids." Report of Proceedings (RP) at 347. The "baby momma" is Aquarius Gibbs. We are unaware of Asselin fathering more than one child. Asselin's intimidation rapidly escalated to death threats. On one occasion, Asselin cautioned Houfmuse: "If I run into you with my baby momma, it's a rap." RP at 351. "It's a rap" means "you're dead." RP at 351.
During the fall of 2014, Anthony Asselin menaced Tyree Houfmuse and Aquarius Gibbs on a daily basis. Houfmuse perceived the threats seriously. He knew of Asselin's explosive temper and reputation for violence. Houfmuse avoided Asselin and stayed inside his home. Houfmuse did not notify the police of the intimidation because Houfmuse knew Asselin did not fear the police. Houfmuse worried that Asselin would retaliate against him for contacting the police.
During the week before Thanksgiving 2014, Anthony Asselin and some compatriots assaulted Tyrell Houfmuse's brother, Rodrell Houfmuse, in Hermiston, Oregon, twenty-five miles south of Kennewick. Asselin and two other men visited the house of Rodrell's friend Joseph, looking for Rodrell's cousin, Little Tony. Rodrell informed the trio of Little Tony's absence, but Asselin and companions, with pistols in hand, forced their way into the house. After confirming Rodrell's comment, the three men commanded Rodrell to step outside. Rodrell acquiesced. Once all four went outside, the troika asked Rodrell about his relationship with one of the men's ex-girlfriends. Asselin and his associates then punched Rodrell, who sustained a swollen jaw, busted lip, and bumps to his head. Later that night, Rodrell informed his brother Tyree Houfmuse about the pummeling. Houfmuse suspected that Asselin assaulted his brother because Houfmuse courted Aquarius Gibbs.
After the assault on Rodrell Houfmuse, Tyrell Houfmuse and Aquarius Gibbs discussed needing protection. During trial testimony, Houfmuse averred that he nevermentioned a gun during the discussion. On cross-examination, however, Houfmuse conceded that, when he conferred with Gibbs about protection, he contemplated any needed protection, including the police and a gun. Because of an earlier felony, Houfmuse could not legally possess a gun. Aquarius Gibbs first testified at trial that the couple discussed protection, but neither mentioned the use of a gun. She later conceded, however, of the two speaking about a gun. Gibbs admitted to seeing a gun wrapped in a towel on a dresser at the residence she shared with Houfmuse. According to Gibbs, the gun could have belonged to someone other than Houfmuse because other men were present in the home when she viewed the gun.
On the evening preceding Thanksgiving 2014, Tyrell Houfmuse, Aquarius Gibbs, and Cheryle Dixon patronized the Village Tavern in Kennewick. The State charged Houfmuse with shooting Anthony Asselin at the tavern. We relate the differing witness accounts of the shooting, including the accounts of tavern patrons Felicia Richardson and Ariel Mitchell.
According to Tyrell Houfmuse, he visited the Village Tavern for a drink because he knew Anthony Asselin did not frequent the bar. The tavern attracted an older crowd, and African-Americans did not patronize the establishment. Asselin is African-American. Houfmuse ordered a shot of tequila at the bar. Fifteen minutes later and as he procured his alcohol, Houfmuse noticed African-Americans, including a friend of Asselin, entering the Village Tavern. Houfmuse walked outside to smoke a cigarette. Ashe smoked his cigarette, two or three carloads of African-Americans drove into the tavern's parking lot. Asselin exited one of the vehicles. Houfmuse rushed into the bar and told Aquarius Gibbs they needed to leave because of Asselin's presence. Before they departed the Village Tavern, Asselin entered with his friends behind him. Asselin yelled to Houfmuse: "[w]hat did I tell you I was going to do if I catch you with my baby momma?" RP at 369.
Tyree Houfmuse testified at trial that he attempted to calm Anthony Asselin. A frightened Houfmuse left the bar, only to have Asselin follow him. Asselin, with his hands in a fighting stance, advanced toward Houfmuse. Houfmuse tried to enter his car, but Asselin's friends surrounded Houfmuse and blocked access to the vehicle. Asselin uttered more loud threats. Asselin proclaimed: "I told you anybody that get[s] involved, they were going to get it." RP at 378. Asselin retrieved a gun from his clothing and a struggle ensued. Houfmuse had been unaware that Asselin possessed a gun. A panicked Houfmuse grabbed Asselin's arm in order to wrest the gun from Asselin. During the struggle, Asselin pulled the trigger and shot several rounds that struck the pavement. Houfmuse extracted the gun and retreated. Asselin, while swinging his fists, pursued Houfmuse. Because of Asselin's size, Houfmuse was terrified. As Houfmuse ran from Asselin, he shot the gun two or three times behind him without looking back. Houfmuse did not know whether a bullet struck Asselin. Houfmuse dropped the gun on the ground before he entered the car and fled.
Aquarius Gibbs testified during trial that Anthony Asselin entered the Village Tavern and yelled at Tyree Houfmuse and her about Asselin's daughter. Houfmuse and Asselin went outside. While Gibbs stood near the tavern door, she heard gunshots, but did not see any shooting. Houfmuse called to Gibbs: "come." RP at 181. Gibbs entered the car and rode with Houfmuse away from the tavern.
During the trial, Felicia Richardson testified that she stood in the parking lot near her vehicle and saw Tyree Houfmuse and Anthony Asselin talking. She anticipated a fight. As Asselin walked away, Houfmuse shot Asselin in the back.
Another Village Tavern patron, Ariel Mitchell, testified that she saw Tyree Houfmuse remove a gun from his coat and shoot Asselin seven times. Mitchell was a friend of Anthony Asselin, and Asselin was related to a former boyfriend of Mitchell.
Village Tavern security tapes show Tyrell Houfmuse entered the drinking establishment at 11:10 p.m. Anthony Asselin entered the bar twelve seconds later and approached Houfmuse. Less than one minute later, Houfmuse exited the bar, followed immediately by Asselin and a group of men.
After the shooting, City of Kennewick Police Department Corporal Todd Dronen recovered six shell casings at the scene. Dronen noticed three divots on the parking lot pavement that could have been caused by bullets.
Anthony Asselin suffered three gunshot wounds, one to his chest with no exit wound, one to his abdomen with an exit wound, and a superficial wound to his leftelbow. The two bullets to the torso entered Asselin's front side. Asselin now suffers complete paralysis from the fourth thoracic vertebrae down.
After the shooting, Tyrell Houfmuse and Aquarius Gibbs traveled to Hermiston. The Kennewick Police Department issued an arrest warrant for Houfmuse. Oregon law enforcement eventually found Houfmuse in a Hermiston apartment and transported him to the Umatilla County jail for extradition.
While in the Oregon jail, Houfmuse called R'Kiesha Smith. Houfmuse knew not that the jail recorded the call. During the call, Houfmuse repeatedly rambled about how Anthony Asselin and his friends assaulted Houfmuse's brother. According to Houfmuse, he would not permit anyone to harm his brother. He commented that he can fight Asselin and his associates. Houfmuse complained of continuous death threats from Asselin and noted the need for protection. He stated that the security video from the Village Tavern will show that Asselin pursued him.
The State of Washington charged Tyrell Houfmuse with assault in the first degree and unlawful possession of a firearm in the second degree based on the earlier felony conviction. Tyree Houfmuse asserted self-defense to the charge of...
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