State v. Shores, No. 38682-8-II (Wash. App. 3/2/2010)
| Decision Date | 02 March 2010 |
| Docket Number | No. 38682-8-II.,38682-8-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. STEPHEN LEE SHORES, Appellant. |
Appeal from Lewis County Superior Court, Docket No: 08-1-00662-4, Judgment or order under review, Date filed: 12/15/2008, Judge signing: Honorable Richard Lynn Brosey.
Counsel for Appellant(s), Jodi R. Backlund, Backlund & Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Manek R. Mistry, Backlund & Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Counsel for Respondent(s), Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, 345 W Main St Fl 2, Chehalis, WA, 98532-4802.
UNPUBLISHED OPINION
A jury entered verdicts finding Stephen Lee Shores guilty of four counts of fourth degree assault, two counts of third degree assault, and one count of second degree assault. The jury also entered a special verdict finding that Shores committed the second degree assault while armed with a deadly weapon. Shores appeals his conviction and sentence, arguing that the trial court erred (1) by failing to give a self-defense jury instruction, (2) by failing to give a unanimity jury instruction, (3) by erroneously instructing the jury on the definition of a deadly weapon for purposes of the sentencing enhancement, (4) by miscalculating his offender score at sentencing, and (5) by failing to inquire about his conflicts with his defense attorney. We affirm Shores's convictions but, because the trial court failed to properly instruct the jury on the definition of a deadly weapon for purposes of the special verdict and the error was not harmless, we remand for resentencing within the standard range.
In October of 2008, Shores lived with his then girl friend, Lorina Canell-Parker, at Parker's home in Glenoma, Washington. The couple had been dating on and off for approximately four years.
On October 4, 2008, Parker approached Shores in the couple's garage and asked him if he was on drugs. Shores became angry and struck her across the back with a crowbar. That same evening, Shores struck Parker on her leg with a fireplace poker and shoved her head into a corner hutch with glass doors, causing the glass to break.
On October 6, 2008, Parker and Shores had an argument in the couple's home. Parker left the house to retrieve groceries from Shores's car when Shores came out of the house, told her to get out of the car, and said he was leaving. After Parker told him to"hold on a second," Shores slapped her across the face causing her glasses to fall off. 2 Report of Proceedings (RP) at 42. While Parker was looking for her glasses in his car, Shores went back in the house, grabbed her other pair of glasses, and threw them on the roof. Shores then took a hose and sprayed Parker with water. Shores admitted that he knew Parker had a fear of having water in her face because of a traumatic incident she had experienced as a baby. Shores went back in the house, grabbed a chainsaw, and returned to the car. Shores started the chainsaw inside the car and hit Parker on the side of her body with the chainsaw's gas tank and with his fist.
Parker and Shores went back inside the house, and Shores threatened to burn down the house with or without Parker in it. Shores drove away from the house while Parker was in the shower; her glasses and cell phone were still in his car.
Parker called the police on October 7, 2008, and officers arrested Shores that same day. Police officers located the chainsaw at the location where they arrested Shores. The State charged Shores with one count of second degree assault — domestic violence, two counts of third degree assault — domestic violence, four counts of fourth degree assault — domestic violence, second degree theft, harassment — domestic violence, and second degree malicious mischief.1
On October 23, 2008, the trial court held a hearing to address the status of Shores's defense counsel. At the hearing, Shores's defense counsel, Dan Havirco, told the trial court that he had requested the hearing because Shores previously indicated he wanted to fire him but that they had since resolved their issues. Havirco informed the trial court that Shores was frustrated because he had wanted Havirco to arrange for him to take a polygraph test, believing that the test would "very quickly exonerate him." RP (Oct. 23, 2008) at 3. Havirco told the trial court that Shores decided to keep him as his defense counsel after he explained to him that a polygraph test would not exonerate him unless the State would agree to dismiss based on the test's results, which the State refused. Havirco informed the trial court that, upon resolving his issues with Shores, he proposed striking the hearing but the court administrator wanted it to remain on that day.
A jury trial began on December 3, 2008. On the second day of trial, before opening statements and outside the presence of the jury, Shores expressed frustration with his defense counsel:
[Shores]: Hold on. Hold on.
THE COURT: Mr. Shores. Mr. Shores.
[Shores]: Yes.
THE COURT: Do you have questions before we get started?
[Shores]: I have a lot of questions, sir, and I have a lot of evidence that ain't here and this guy won't get it for me.
[Shores]: I'm tired of the minutes. I need the stuff.
THE COURT: Mr. Shores, talk to your attorney.
(Discussion held off record.)
THE COURT: Mr. Shores, Mr. Shores, you need to stop.
[Shores]: I know, but I'm upset.
THE COURT: Mr. Shores, you need to stop. You need to understand that everything you're saying, you're saying this stuff out loud, everybody can hear it, everything that you say can be used against you. Do you understand that?
[Shores]: It's against me. Where is my evidence? It is against me. That's right. You already got that point made clear. That's why I'm in jail. Now, where is the evidence?
THE COURT: That's what the trial is going to be about.
[Shores]: No. I want the evidence here in court.
. . . .
THE COURT: The trial is going to proceed. The State will present the evidence that it has. Stop and listen to me. This is not your time to talk. This is your time to be quiet.
[Shores]: Really?
THE COURT: Yes. Really. Do you understand that? Be quiet.
[Shores]: I have no rights.
THE COURT: No. You have a lot of rights. I'm telling —
[Shores]: Where is the evidence?
THE COURT: I'm telling you that you need to exercise your rights. One of those is your right to remain silent.
[Shores]: Great.
THE COURT: Because if you don't exercise that right, the things that you say can be used against you. Do you understand that?
[Shores]: Perfectly.
. . . .
THE COURT: That's how this is going to go. And I'm not going to have any more of these —
[Shores]: Hold on.
THE COURT: — outbursts in front of the jury when they come in.
[Shores]: Hold on.
[Shores]: No. I asked people to have this lady arrested. She's not arrested. I'm the one arrested here, not both of us. This is a two-sided street here and only one side's being seen. I want my evidence because this lady's going to jail when we're done.
[Shores]: Yeah.
THE COURT: Do you understand that?
[Shores]: I don't understand why.
THE COURT: That's a decision —
[Shores]: (Unintelligible.)
THE COURT. Listen to me.
[Shores]: I've been listening.
THE COURT: No, you have not been listening.
[Shores]: Nobody's listening to me. It's me that they're not listening to.
THE COURT: Be quiet.
[Shores]: Oh. Okay. Again, once again, be quiet.
THE COURT: Yes, I want you to be quiet now.
[Shores]: Okay.
. . . .
[Shores]: I told three officers of the law to arrest that lady for what she did to me. Did any of them do it?
THE COURT: And do you understand this?
[Shores]: What?
THE COURT: That's not your call.
[Shores]: I can't tell somebody to arrest the lady?
THE COURT: Correct, you can't.
[Shores]: I can't?
THE COURT: Correct, you can't.
[Shores]: My rights aren't worth a shit, huh?
THE COURT: That's enough.
[Shores]: Thank you.
THE COURT: Okay. Are you through?
[Shores]: You got that down, my rights ain't worth nothing?
[Shores]: That's the problem, I'm not participating because my stuff is not here.
[Shores]: Oh.
THE COURT: — and trial is going to proceed. You need to talk through your attorney at this point. Do you understand that?
[Shores]: Sure, I understand.
THE COURT: All right.
[Shores]: I told him to get the shit and he ain't got it. That's what I do understand. Okay. Let's do it.
At trial, the State played a taped statement Shores made to Lewis County Sheriff's Deputy Michael Gallagher. When Gallagher asked Shores how the glass hutch was broken, Shores responded,
I — I — I — she said, "I'm missing my keys," and I thought she threw her keys at it, you know. And — but one broke and then the other one broke...
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