State v. Hull

• Decision Date: 18 December 2014
• Docket Number: 31078-7-III
• Court: Court of Appeals of Washington
• Parties: STATE OF WASHINGTON, Respondent, v. CLAY MARTIN HULL, Appellant.

STATE OF WASHINGTON, Respondent,
v.
CLAY MARTIN HULL, Appellant.

No. 31078-7-III

Court of Appeals of Washington, Division 3

December 18, 2014

UNPUBLISHED OPINION

Order filed Date February 12, 2015

ORDER DENYING APPELLANT'S MOTION FOR RECONSIDERATION AND AMENDING OPINION

THE COURT has considered appellant's motion for reconsideration of this court's decision of December 18, 2014, and having reviewed the records and files herein, is of the opinion that the motion should be denied and further, that the opinion should be amended for clarity.

NOW, THEREFORE, IT IS HEREBY ORDERED that appellant's motion for reconsideration is denied and the opinion shall be amended as follows:

On page 28, line 4, a new footnote 8 shall be inserted after "shooting charge, " to read as follows:

8 In a motion for reconsideration, Mr. Hull challenges the court's distinction between his two convictions for purposes of determining whether he was entitled to have the jury instructed on self-defense, arguing that there was some evidence that the shots he fired in the direction of Mr Moody's home were the first shots fired

His argument ignores the fact that the charge of drive-by shooting was not limited to the shots fired at the Moody home but included the entire series of shots fired, consistent with RCW 9A.36.045. See amended information at CP 6 instructions at CP 72 and 77; and closing argument at RP 1023-25

PANEL: Siddoway, Brown, Korsmo

SIDDOWAY, C.J.

Clay Martin Hull appeals his convictions of drive-by shooting and animal cruelty in the first degree. He challenges the trial court's refusal to instruct the jury on self-defense, the sufficiency of the evidence to sustain both means of committing first degree animal cruelty on which the jury was instructed, and the trial court's failure to recognize mitigating factors that he argues could support an exceptional sentence.

Several decisions of our Supreme Court hold that the common law right to use force in defense of property, subject to its common law limitations, is a constitutional right. Because the constitutional underpinning of those decisions necessarily supports a constitutional right to personal self-defense, Mr. Hull was entitled to have the jury instructed on his right to self-defense to the extent that there was evidence to support it. As to the animal cruelty count, but not the drive-by shooting count, there was such evidence. We find no other error or abuse of discretion by the trial court.

We reverse Mr. Hull's conviction of animal cruelty, remand for a new trial on that count, and otherwise affirm.

FACTS AND PROCEDURAL BACKGROUND

It is undisputed that Clay Hull fired at least seven shots from a semiautomatic pistol on a residential street in Yakima on a night in December 2010 and that his shots struck Dobie, a female Doberman Pinscher. As a result of his actions that evening, Mr, Hull was charged with drive-by shooting, first degree animal cruelty while armed with a firearm, and tampering with a witness. The principal dispute at his criminal trial was whether he was attacked by Dobie and fired the shots in reasonable self-defense.

At trial, Mr. Hull's version of events-supported by two of his friends, who claimed to have been following his car that evening-was that he was driving home from a concert with his girl friend, Laura Peterman, when he urgently needed to urinate and stopped his truck on a residential street. Mr. Hull testified that he suffers from a bladder condition that requires that he relieve himself immediately. When he stepped outside his truck, Mr. Hull claims to have seen a man briefly come outside a nearby house and look around before going back in. Not wanting to be seen, Mr. Hull got back into the truck and drove a little further down the street, stopping again where it was darker.

Mr. Hull testified that at the second stop, and as soon as he unzipped his pants, he was confronted by two barking dogs. According to him, a Doberman Pinscher showed its teeth, jumped on him, and came at him again when he tried to push it back. Mr. Hull has a concealed weapon permit and was carrying a semiautomatic pistol. He fired several shots at the dog in "rapid succession." Report of Proceedings (RP) at 936. When the dog turned and ran, he fired "one or two more." RP at 906.

Dobie was found, shot, inside the fenced yard of Ulysis and Minerva Perez. According to Mr. Hull, she must have jumped over the fence into the yard after he shot at her. Mr. Hull claims that the second dog barked and ran at him a few seconds later, and he fired multiple shots at that dog to scare it off.

Ms. Peterman was not nearly as supportive of Mr. Hull's version of events as were the two friends who claimed to have followed the couple in their car. She testified that she and Mr. Hull left the concert early because Mr. Hull had been kicked out. According to her, he was intoxicated and seemed frustrated. She claims that she and Mr. Hull left the concert alone and she never saw anyone following them.

As Mr. Hull was driving Ms. Peterman home, he apparently forgot that he was supposed to drop her off at her sister's house and drove toward her mother's home instead. When Ms. Peterman reminded him she was not staying with her mother, Mr. Hull stopped his truck on Adams Street, near her mother's home, telling her he "had to pee." RP at 578. Ms. Peterman agreed with Mr. Hull's testimony that when he first got out of the truck someone came out of a home on the corner and Mr. Hull got back into the truck and drove further down the street before stopping again.

Before Mr. Hull stopped the truck the second time, Ms. Peterman testified that a German Shepherd that was often loose in that neighborhood ran toward the truck. She claims that she cautioned Mr. Hull about stopping at the second location because of the dog, but he stopped anyway and stepped behind the truck. A few seconds later, she heard gunshots. She never saw any other dogs and feared that Mr. Hull had shot the German Shepherd. She testified that when he got back into the vehicle, Mr. Hull told her he was "going to clean up the neighborhood that his son was going to be forced to grow up in"- an apparent reference to Ms. Peterman's near full term (36 week) pregnancy with Mr. Hull's son. RP at 580.

According to Ms. Peterman, Mr. Hull then drove erratically en route to her sister's house, missing turns and nearly getting in several accidents. When he dropped her off, she told him he needed to go home, to which he responded, "[W]e'll see about that, because your ex might be next." RP at 581. She construed the comment as referring to her ex-husband, with whom her two young children were staying that night.

Concerned about Mr. Hull's intoxication, actions, and statements, Ms. Peterman called 911 upon arriving at her sister's home. Her 911 call was played to the jury. Ms. Peterman provided Mr. Hull's license plate number, reported his drunk driving, his statements, and her concern that he might have shot a dog. She asked that her report be treated as an "anonymous" one. RP at 593.

Police officers were dispatched to Mr. Hull's home, but he was not there. They told his younger brother that they wanted to speak with him. When Mr. Hull returned home and learned that police were looking for him, he contacted dispatch and offered to come into the station and provide a statement, which he later did. Between arriving home and traveling to the station, he contacted Ms. Peterman. According to him, it was to tell her to tell the truth. According to her, it was to ask her to tell police that a dog attacked him. She told him she did not see him get attacked by any dog. When Mr. Hull provided a statement to Yakima police later that evening, he told them that he had been alone when attacked by dogs and there were no witnesses.

Other witnesses at trial included residents of the homes on Adams Street: Shawn Moody, Minerva Perez, and Ulysis Perez. Based on testimony tied to photographs, Mr. Hull's first stop had been near Mr. Moody's home, while his second stop was near the fenced yard within which the extended Perez family had two homes.

Mr. Moody, the owner of the German Shepherd, testified that he looked outside on the night of the shooting when he heard his dog barking. He saw a man standing behind a pickup truck, urinating, and noticed a woman sitting in the passenger seat. He testified that he left his window and began watching the man on the video monitor for his surveillance camera, which faces the street. The surveillance camera was not in a recording mode at the time.

From the video, Mr. Moody saw the man take off, drive a little further, stop, and get out again. According to Mr. Moody, the man walked aggressively back toward his house, prompting Mr. Moody to step out on his back porch. As he did, he claims the man, who was in the middle of the road, "open[ed] fire on my house." RP at 419. Mr. Moody testified that in response he "hit the ground, " not knowing what the shooter was going to do. RP at 420. Once Mr. Hull stopped shooting in the direction of his home, Mr. Moody testified, "[h]e turned around, walked towards the truck and shot my neighbor's dog and then got in his truck and then took off." RP at 421. Mr. Moody never saw Dobie charge the shooter and testified that she had been in the fenced-in yard. Mr. Moody also testified that aside from Mr. Hull's truck, he never saw any other vehicles. Mr. Moody testified that he and his brother later found evidence that a bullet had grazed his house underneath his window, and found a bullet hole in the back of his truck.

The testimony of Minerva and Ulysis Perez established that the Perezes' yard is enclosed by a chain link fence that varies from four to six feet tall between the front and back, and surrounds both houses. Mr. Perez testified that he has two Dobermans; on the night of the shooting,...