State v. Roussel

• Decision Date: 19 July 2016
• Docket Number: 46657-1-II,480671-II
• Parties: STATE OF WASHINGTON, Respondent, v. LAWRENCE ROLAND ROUSSEL, Appellant. In the Matter of the Personal Restraint Petition of LAWRENCE ROLAND ROUSSEL, Petitioner.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent,
v.
LAWRENCE ROLAND ROUSSEL, Appellant.

In the Matter of the Personal Restraint Petition of LAWRENCE ROLAND ROUSSEL, Petitioner.

Nos. 46657-1-II, 480671-II

Court of Appeals of Washington, Division 2

July 19, 2016

UNPUBLISHED OPINION

WORSWICK, J.

A jury returned verdicts finding Lawrence Roussel guilty of second degree assault of Gary Fadden and fourth degree assault of Laura Fadden. Roussel appeals his convictions and sentence, asserting that (1) the trial court erred by failing to instruct the jury on fourth degree assault as an inferior degree offense to his second degree assault charge, (2) the trial court violated his confrontation right and right to present a defense by excluding certain evidence from trial, (3) the trial court erred by failing to exclude evidence that he contends violated the "Privacy Act, "^[1] (4) the prosecutor committed misconduct at trial and during closing argument by commenting on his pre-arrest silence and by misstating the State's burden of proof, (5) his counsel was ineffective for failing to object to evidence in violation of the Privacy Act and by failing to object to the prosecutor's misconduct at closing, and (6) the sentencing court erred by imposing legal financial obligations (LFOs) without making an individualized inquiry into his ability to pay the LFOs.

In his statement of additional grounds (SAG) for review, Roussel asserts that (1) the prosecution withheld evidence from the defense, and (2) there was improper collusion between the State and his defense counsel. Roussel has also filed a personal restraint petition that we have consolidated with his direct appeal. In his petition, Roussel asserts that (1) the prosecution violated the discovery rules by withholding evidence from the defense and (2) the prosecutor committed misconduct by knowingly presenting perjured testimony and by making false or misleading statements during closing argument. Finally, Roussel, in a supplemental brief seeks waiver of appellate costs. We affirm Roussel's convictions but remand for resentencing for the trial court to make an individualized inquiry into Roussel's ability to pay discretionary LFOs consistent with this opinion. We deny his petition. We also exercise our discretion to waive appellate costs.

FACTS

On May 27, 2014, Lawrence Roussel and his wife, Rebecca, were in the process of moving into a trailer home that Rebecca's parents, Laura and Gary Fadden, had purchased for the couple.^[2] Roussel and Rebecca began arguing in a motor vehicle while Roussel was driving, and Rebecca told him to pull over. Rebecca exited the vehicle, and Roussel drove away. After walking for about 45 minutes, Rebecca called Laura to request a ride home. Laura picked Rebecca up and drove her to the trailer home. When they arrived, Roussel was sleeping. Laura and the Roussels dispute what happened next.

According to Laura, Roussel was drunk. Rebecca woke Roussel and the couple began arguing. During the argument, Roussel twice threw Rebecca across the trailer. Laura asked Roussel to give her back the money she had given the couple for moving expenses, and Roussel threw money and his wedding ring at her. Roussel prepared to the leave the trailer, but Rebecca begged him not to go and the couple reconciled. Laura then left the trailer, taking Rebecca's cell phone and keys with her.

The Roussels dispute Laura's account of what transpired at the trailer. According to Rebecca, she woke Roussel and started "bitching at him." Report of Proceedings (RP) at 199. Rebecca admitted that Roussel had consumed three or four beers and that his eyes were bloodshot. Rebecca denied that Roussel had thrown her across the trailer.

According to Roussel, Laura started screaming at him while Rebecca was waking him up. Roussel stated that, apart from Laura screaming at him, there were no arguments between any of them at the trailer. Roussel admitted that he had consumed two or three beers. He denied throwing Rebecca inside the trailer.

Sometime after Laura left the trailer, the Roussels drove to Laura and Gary's home to retrieve Rebecca's cell phone and keys. Again, what happened next was in dispute.

According to Laura, Rebecca came into her house and was belligerent as she demanded the return of her keys and cell phone. After Rebecca retrieved her phone and keys, Gary told her to leave the property. Rebecca continued to yell as she left the house, and Laura followed Rebecca to try to calm her down. Rebecca entered the driver's seat of her car while Laura spoke to her. From the car's passenger seat, Roussel stated that he was "going to choke Gary out, " and he exited the car. RP at 64. Laura got in front of Roussel, and Roussel picked her up and threw her to the ground. The back of Laura's head hit the ground and started bleeding. Laura then saw Gary come out of the house and grab his walking stick. When Laura stood up, she saw that Roussel was on top of Gary and was trying to "choke him out" with the walking stick. Gary was pushing up on the walking stick, which Laura saw was across his chest area, and was yelling at Laura to call 911. When Laura went in the house and grabbed a phone, Rebecca and Roussel quickly left the property in Rebecca's car. Gary then called 911, but Laura convinced him to hang up before speaking with the 911 operator.

According to Gary, he approached Roussel with the walking stick to protect Laura. Gary stated that he suddenly found himself on the ground with Roussel on top of him holding the walking stick across his throat. Gary gasped for breath as he tried to keep the walking stick off of his throat. Gary feared he would be choked to death, but then Roussel relaxed and stood up.

The Roussels dispute Laura and Gary's account of what transpired outside the Faddens' home. According to Rebecca, she stood outside the back door while Laura handed over her phone and keys, and then Gary suddenly grabbed a stick and started hitting Rebecca with it. Gary did not say anything to Rebecca but had a "crazy look in his eyes" while hitting her with the stick approximately 20 times "all over [her] body." RP at 205-206, 208. Rebecca stated that she tried to call 911 but Gary knocked her phone out of her hand, and the phone broke. Roussel got out of the car and tried to take the stick from Gary. Gary hit Roussel's back and chest with the stick. Roussel eventually got the stick from Gary and "threw it as far as he could." RP at 211. Rebecca did not see Roussel hit Gary with the stick and did not see Roussel do anything to Laura. After Roussel got the stick from Gary and threw it, the Roussels got in their car and left the property.

According to Roussel, Gary was striking Rebecca with the walking stick but backed away when he came to aid her. As Roussel leaned over to help Rebecca, he felt Gary hit him with the stick on his back and chest. Roussel stated that he then faced Gary who fell backwards onto his back. Gary then hit Roussel with the stick, whereupon Roussel wrestled the stick from Gary and threw it into the yard to defuse the situation. Roussel denied throwing Laura on the ground. Roussel also denied threatening to kill Gary, kneeling on him, or choking him with the stick. Roussel stated that, after disarming Gary, he and Rebecca quickly left the Faddens' property because he knew Gary owned a pistol and other weapons.

Cowlitz County Sheriffs Sergeant Corey Huffine went to the Faddens' property in response to the hung-up 911 call. Huffine took Gary's and Laura's statements and photographed their injuries. Laura had abrasions on the back of her head that were bleeding and an abrasion below her kneecap. Gary had redness in his neck and chest area. After speaking with the Faddens, Huffine attempted to contact the Roussels. After going to the trailer and seeing that no one was there, Huffine called Rebecca's cell phone but was unable to reach Rebecca or Roussel. When Huffine called again the next day, Roussel answered. Roussel told Huffine that he had already reported the incident and had been seen by a doctor in Portland. Huffine asked for a copy of his statement and for medical records, and Roussel said he would email "it" to him. RP at 155. When Huffine told Roussel that his statement had to be made on an official form, Roussel said he would fill it out at the Clark County courthouse and forward it to him. However, Roussel did not provide Huffine with his medical records or a written statement. Huffine also spoke with Rebecca, who said that she would contact him at ten o'clock the next day. However, Rebecca did not contact Huffine.

On May 29, police arrested Roussel and Rebecca. After their arrest, the Roussels told Deputy Brady Spaulding that Gary had assaulted them with his walking stick. Spaulding told the Roussels that they could provide written statements at the jail, and he photographed their injuries. Neither of the Roussels' statements mentioned Laura's injuries or how she had sustained those injuries. The State charged Roussel with one count of second degree assault for his alleged conduct against Gary and one count of fourth degree assault for his alleged conduct against Laura.

Before trial, the State sought to exclude evidence that Rebecca had threatened to accuse Gary of molesting her. The State told the trial court that after the alleged assault incidents, Rebecca sent several texts and voice messages to Laura stating that Rebecca would accuse Gary of molesting her if the Faddens did not immediately sign over the title to the trailer and drop the charges against them. As a result of the texts and voice messages, Rebecca pleaded guilty to attempted first degree theft and attempted second degree extortion. The State argued that evidence of the accusations was not relevant to Roussel's charges and that the evidence was extremely prejudicial.

In response, defense counsel stated that Rebecca had accused Gary of...