State v. Hutchinson

• Decision Date: 14 April 1997
• Docket Number: No. 24484-1-I,24484-1-I
• Citation: 85 Wn.App. 726,938 P.2d 336
• Parties: The STATE of Washington, Respondent, v. Darrin Rand HUTCHINSON, Sr., Appellant.
• Court: Washington Court of Appeals

Page 726

85 Wn.App. 726

938 P.2d 336

The STATE of Washington, Respondent, v. Darrin Rand HUTCHINSON, Sr., Appellant.

No. 24484-1-I.

Court of Appeals of Washington Division 1.

April 14, 1997.

Reconsideration Denied July 14, 1997.

Kathryn Lund Ross, Paul Wasson, Spokane, for Appellant

William H. Hawkins, Coupeville, Gregory Canova and Todd Bowers, Seattle, for Respondent.

WEBSTER, Judge.

By his own admission, Darrin Hutchinson killed two Island County Deputy Sheriffs in the county jail. He contended at trial that he shot the deputies in self-defense. Nevertheless, the jury convicted him of aggravated first degree murder. Washington's Supreme

                Court, in State v. LeFaber, recently determined that the self-defense jury instruction given to Hutchinson's jury was erroneous. 1  That instruction did not require the jury to consider whether Hutchinson reasonably believed himself to be in imminent danger of great personal injury;  it instead allowed the jury to reject self-defense upon finding that he was not in actual imminent harm.  Because the erroneous instruction has constitutional ramifications, the law presumes that the error prejudiced Hutchinson.  We must determine whether the jury could have decided that he reasonably believed himself to be in imminent harm of death or great personal injury, yet convicted him due to the court's legal misstatement.  Because Hutchinson introduced factual and expert testimony supporting his reasonable belief, the prosecution has not rebutted the presumed prejudice.  Hence, the error was not harmless and we reverse Hutchinson's convictions
                

FACTS

Hutchinson's six-week trial included many witnesses whose testimony we will not discuss. Instead, we relate only the facts needed to understand the assigned errors that we address in this opinion.

Robert Whalen, a retired Seattle police officer, was driving towards the Clinton ferry terminal on November 14, 1987, between 4:00 and 5:00 a.m., when he was passed by an erratically driven, speeding blue Pinto. When arriving at the terminal, Whalen saw the Pinto nearly hit the ferry toll booth. Whalen told the toll booth operator he suspected that the Pinto's driver was under the influence of alcohol. The toll booth operator's co-worker called the police.

Island County Deputy Sheriffs William Heffernan and John Saxerud responded, arresting Darrin Hutchinson for driving while intoxicated. Deputy Saxerud patted Hutchinson down and put him in the patrol car's back seat. Saxerud did not detect a thin, .32 caliber Bersa handgun that At the jail, the officers escorted Hutchinson to the breathalyzer room, removing their service weapons and placing them in a lock box prior to entering. Dispatcher Iverson monitored the procedure on a remote television with sound capacity; he heard no one talking. Five minutes later, around 6:10 a.m., Deputy Saxerud called him on the phone, requesting a driver's license check on Hutchinson. Deputy Saxerud's tone was casual, matter-of-fact. Iverson heard Deputy Heffernan in a loud (but not raised) voice tell Hutchinson not to speak unless spoken to. Noticing that the breathalyzer procedure was proceeding smoothly, Iverson attended to routine duties.

Hutchinson had inside the waistband of his pants. Deputies Heffernan and Saxerud took Hutchinson to the Island County jail complex to administer a breathalyzer. On the way, Hutchinson mused over the officer's failure to detect his weapon.

Soon thereafter, Hutchinson pulled out his gun, shot Deputy Saxerud once in the head at close range, and Deputy Heffernan twice from a distance of at least 24 inches. He fished through Deputy Saxerud's pockets for car keys, stole a patrol car, smashed it through the garage door, and raced to his brother's house. Hutchinson later ditched the car down a steep ravine. Island County Sheriff's deputies arrested Hutchinson at his parents' home.

Chief Panzero and Deputy Ridley interrogated Hutchinson for two and a quarter hours soon after his arrest. While Hutchinson admitted killing the deputies, he said that they verbally and physically abused him, including slamming his head into a plexiglas window. But at another point, he acknowledged catching them "totally off guard." When a doctor examined Hutchinson on the morning of the murders, he found only one minor injury, an abrasion and bruising in the thumb area. And Hutchinson attributed that injury to getting his hand stuck while ditching the patrol car.

The State charged Hutchinson with two counts of aggravated first degree murder. The prosecution's theory The jury, after deliberating for two days, convicted Hutchinson on both counts of aggravated first degree murder.

was that the deputies were routinely filling out paperwork when Hutchinson, seated on a bench in the room's corner, pulled his gun and shot them. By contrast, the defense contended that Hutchinson shot the deputies while standing, after they slammed him up against the plexiglas window in the door. Because the deputies' and Hutchinson's positioning was highly probative, each side presented expert forensic testimony. One bullet had ricocheted off the breathalyzer room ceiling, and both experts relied upon its trajectory in forming their opinions. Yet they disagreed as to the bullet's angle before it struck the ceiling. And from their respective computations, each expert testified that Hutchinson's location was consistent with their side's case theory.

DISCUSSION

I. SELF-DEFENSE JURY INSTRUCTION

Hutchinson contends that the trial court improperly instructed the jury regarding self-defense. The court's instruction allowed the jury to require evidence of imminent danger, rather than a reasonable belief in imminent danger:

Homicide is justifiable when committed in the lawful defense of the slayer when the slayer reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished. [Instr. No. 24.]

Our Supreme Court recently ruled that this instruction is erroneous. ² It misstates the law because the jury will not necessarily apply the words "reasonably believes" to both of the instruction's subsequent clauses.

Because it misstates the law, the instruction is presumed to have prejudiced Hutchinson. ³ This presumption imposes a burden of proof on the state: it must prove beyond a reasonable doubt that the error was trivial or merely academic, and in no way affected the case's final outcome. ⁴ Put another way, if the jury could have accepted Hutchinson's version of events but found him guilty because of the court's legal misstatement, the error is prejudicial. ⁵ Here, the jury instruction failed to include reasonable belief in the "imminent danger of great personal injury" formulation. Therefore, we focus on evidence demonstrating Hutchinson's reasonable belief in imminent danger of great personal injury or death. Then, we determine whether the jury could have believed that evidence, but still convicted him based on the court's misstatement of the law.

The defense developed factual evidence from which the jury could have inferred that Hutchinson reasonably believed himself to be in imminent danger. When Hutchinson went to his brother's house after the killings, he told him that a deputy had grabbed his wrist, put it behind his back and twisted his arm. And he feared for his life when they slammed his face against a window. He told his brother that one deputy said, "We should just take him out," while the other one said, "We should just kill the little bastard." During his confession, Hutchinson described physical abuse by Deputy Heffernan.

The defense bolstered its theory with testimony from Dr. John Thornton, a forensic science professor. A jury could find Thornton particularly credible because he has The defense also culled supporting evidence from Dr. Howard, a prosecution expert witness. Dr. Howard admitted that the deputies' bodies' positioning and a looping blood pattern was consistent with Deputy Saxerud grabbing Hutchinson's arm while Deputy Heffernan lunged at him. The jury could infer that Hutchinson fired the shots in response to the deputies' approach. Finally, smudges on the breathalyzer window were consistent with facial or forehead skin of a person Hutchinson's height being pressed against the window.

special expertise in bullet ricochet, and [938 P.2d 340] because he has testified in other cases for both the prosecution and the defense. After examining all written materials relating to physical evidence, Thornton attempted to replicate the shooting conditions. In his opinion, Hutchinson was standing near the door when he fired three shots. Thornton also opined that the prosecution expert's interpretation based on the bullet trajectory was not possible because Hutchinson's seated height was too low for the bullet to ricochet off the ceiling.

We agree with the dissent that strong evidence supports the prosecution's case theory. But we disagree with the dissent's analysis of Hutchinson's defense. Its analysis blurs the imminence of harm with the requirement that the type of harm be death or great personal injury. Given the evidence and the instructions, this jury could have decided that the deputies attacked Hutchinson, but he was nevertheless not actually in imminent harm of great personal injury or death. If so, they could have ignored the issue of his belief in that type of harm. In other words, they could have believed Hutchinson's version, but convicted him based on the court's legal misstatement. Given the conflict in the evidence surrounding Hutchinson's belief, the guilty verdict could be attributable to the error. Because the prosecution has not rebutted the presumed prejudice, the error was not harmless.

II. MENTAL HEALTH EXAMINATION

The next assigned error concerns the mental health examination. We will rule on this and one other assigned error to assist the trial court and the parties on re-trial.

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