State v. Richards

• Decision Date: 30 January 2014
• Docket Number: No. 29075-1-III,29075-1-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DAVID EUGENE RICHARDS, Appellant.

STATE OF WASHINGTON, Respondent, v. DAVID EUGENE RICHARDS, Appellant.

No. 29075-1-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

Filed: January 30, 2014

UNPUBLISHED OPINION

SIDDOWAY, A.C.J. — David Richards appeals his conviction of second degree felony murder and first degree manslaughter. He makes six assignments of error and argues, alternatively, that cumulative error denied him a fair trial. He alleges additional errors in a pro se statement of additional grounds.

We find no reversible or cumulative error and affirm.

FACTS AND PROCEDURAL BACKGROUND

Michelle Kitterman was found murdered on March 1, 2009, on the side of a road, about 14 miles from her home in Tonasket. At the time she was killed, she was 11 weeks pregnant with the child of Daniel Pavek. Investigation would lead the Okanogan County prosecuting attorney to charge four individuals with what the State concluded was a murder for hire: it charged Lacey Hirst, Pavek's wife, who knew her husband washaving an affair with Kitterman and wanted her killed; Tansy Mathis, a drug dealer, whom Hirst knew and enlisted to arrange for the murder; David Richards, also a drag dealer and a customer of Mathis, whom Mathis enlisted; and Brent Phillips, whom Richards enlisted. Phillips eventually pleaded guilty to first degree premeditated murder and other crimes and testified against Richards and Mathis at trial.

Phillips testified that at the time of the murder, he was living with Richards in Spokane. Richards was providing him with housing and methamphetamine in exchange for Phillips serving as Richards's "tax man." Report of Proceedings (RP) at 793. He testified that as Richards's "tax man," he would "[use] force or scare tactics to get the money that's owed to him." Id.

Phillips was introduced to the crime being planned against Kitterman on the day before she was murdered, when Richards told Phillips that he needed someone to travel with him and Mathis "to go pick up dope, and that there was a snitch that might need to be taxed," meaning a police informant who needed to be intimidated. RP at 797. When the time came to leave for Okanogan County, though, Richards was asleep (or, as Phillips later testified, was "faking a sleep," RP at 804), so only Phillips accompanied Mathis, who was driving a rental car Hirst had made available for the crime. A friend of Richards's would testify that Richards told her he learned that the plan, in which he was supposed to participate, was to intimidate a woman pregnant with a married man's childwith the objective of aborting the baby, and for that reason he decided to stay in Spokane instead.

Before Mathis and Phillips left Spokane, Mathis told Phillips that they would receive $1,000 to beat up the snitch and an additional $500 if anyone else got in the way. With that understanding, they drove to Kitterman's home. Before entering, Mathis told Phillips that there could be more money involved—$10,000 plus $5,000 for anybody additional in the way—if things did not go right and someone had to be killed. After the two were invited in by Kitterman, Phillips offered her methamphetamine, the three smoked it together, and Mathis then suggested that they all go to a nearby casino. Kitterman eventually agreed and they all left in the rental car.

As the three neared the casino, Mathis pulled over because Kitterman wanted to smoke more methamphetamine and Mathis said she could not do it in the car. Once Kitterman was out of the car, Mathis told Phillips that Kitterman was the snitch. Phillips took this as his cue to assault Kitterman. Mathis soon joined him in the assault. She had retrieved an ice pick-like weapon from the car; it was variously described by witnesses as an ice pick, a leather punch, or a three-sided file, and it belonged to Richards. Phillips later testified that it was Richards's favorite weapon. As Phillips choked Kitterman, who was on the ground, Mathis began stabbing her in the stomach. When Mathis told Phillips to "finish it," he stabbed Kitterman several times in the back. RP at 826. Phillips threwKitterman to the side of the road and he and Mathis left. After abandoning Kitterman, Mathis and Phillips cleaned the rental car.

Before returning to Spokane, Mathis handed Phillips an envelope containing $500 to give to Richards. Phillips told her Richards would prefer methamphetamine, so Mathis took the money back and gave Phillips drugs to give to Richards.

Upon Phillips's return to Spokane, Richards asked about payment from Mathis and indicated awareness that something "had happened." Phillips testified:

A He kept asking me what happened. And I wouldn't tell him what happened. And then I ended—he asked me again, he's, "Oh, come on, what happened." And I told him, I said, "Well, the shit happened, man; know what I mean?"

And he said, "Well, when you get ready to tell me, you know, I'm here to listen." That's what he said.

Q At some point did he ask you for payment?

A He asked me if I had anything for him, from Tansy. And I said,—I said "Yeah," and I handed him the dope. And he looked at it and he said, "This is all?" And I said, "Yeah."

RP at 842. Phillips testified that Richards was upset upon seeing the amount of methamphetamine provided and, after that, was "trying to get a hold of Ms. Mathis." RP at 843.

Detectives investigating the murder identified Mathis and Phillips as suspects and received information that following the murder they returned to Spokane, to a particular residential address. It turned out to be Richards's residence. Spokane detectives assisting with the Okanogan investigation went to the address, where Richards answeredthe door and identified himself when asked. When detectives did an NCIC/WASIC¹ check on his name, they learned that there was an outstanding warrant for his arrest for failure to pay fines; they relied on the warrant to handcuff him and transport him to the Spokane police department, where they asked him what he knew about the Kitterman murder. The detectives told him that if he was forthcoming they would release him and let him take care of the fines and warrant on his own. Because they considered him only a witness at that point, not a suspect, the detectives did not read Richards his Miranda² rights.

Richards was initially reticent, telling the detectives after being detained for a couple of hours that he "didn't want to be a snitch." RP at 278. The detectives then ended the interview and escorted Richards to the jail to book him on the outstanding warrant. As they approached the jail, Richards stated, "'Okay, I'll talk. Hollywood told me he did it.'" RP at 279. "Hollywood" was a name used by Phillips. The detectives took Richards back to the interview room and read him his Miranda rights. At points during the advisement process, Richards told officers he did not want to "give up his rights," and "thought he was being blackmailed into talking," but he nonetheless signed a rights card, was read his rights a second time, and gave a statement denying involvementin the murder. RP at 281. He told detectives that Phillips had admitted having stabbed Kitterman several times. The detectives released Richards as promised.

Phillips was later arrested and interviewed, and claimed that Richards stabbed Kitterman. Based on Phillips's statement, the State eventually charged Richards, as a principal or accomplice, with aggravated murder or alternatively felony murder, first degree manslaughter (unborn quick child), and first degree kidnapping. He was charged with deadly weapon enhancements on all counts. By the time of trial, Phillips had recanted his accusation that Richards stabbed Kitterman. He testified that Richards had not gone to Tonasket with him and Mathis.

Mathis and Richards were tried together and each testified. Mathis blamed the murder on Phillips. She agreed that Richards did not travel to Tonasket and was not present when Kitterman was murdered. Richards testified that on the day before Kitterman's murder, Mathis had merely asked him to take a road trip with her to pick up and deliver drugs. He claimed he never went because he fell asleep. He testified that he learned Mathis left for the road trip without him but did not know that Phillips had gone with her until Phillips returned to Spokane. He also testified that his ice pick had gone missing the day before Kitterman's murder and he had no idea that it was in Mathis's possession.

The State argued that Richards was an accomplice to the murder. The jury was instructed that a person who is an accomplice in the commission of a crime "is guilty ofthat crime whether present at the scene or not." RP at 2038 (Instruction 7). Based on the evidence at trial, the court instructed the jury not only on the charged crimes, but also on lesser included crimes of second degree murder and second degree felony murder.

The jury found Richards guilty of second degree felony murder and first degree manslaughter. It returned special verdicts that he had been armed with a deadly weapon at the time of the crimes. The parties' appeals were originally consolidated but were later severed.

ANALYSIS

Richards assigns error on appeal to the trial court's (1) failure to sever his case from the prosecution of Mathis, (2) denial of his motion to suppress,³ (3) admitting out-of-court statements made by an alleged coconspirator as exceptions to the hearsay rule, (4) admitting evidence of Richards's drug use and dealing, and (5) erroneously instructing jurors that they must be unanimous to answer "no" to the deadly weapon special verdict forms.⁴

The last assignment of error is readily addressed. Richards raised it before the Washington Supreme Court decided State v. Guzman Nunez, 174 Wn.2d 707, 285 P.3d21 (2012), in which it overruled two prior decisions⁵ and found that the pattern jury instruction used below correctly stated the law. There was no error.

We address the remaining assignments of error in turn.

I. Refusal to Sever/Speedy Trial

Richards first...