State v. Stambaugh
| Decision Date | 25 July 2007 |
| Docket Number | 34900-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LOWELL W. STAMBAUGH, Appellant. |
UNPUBLISHED OPINION
Lowell W. Stambaugh appeals his conviction for first degree animal cruelty. He argues that (1) the trial court improperly instructed the jury, and (2) the prosecutor committed misconduct. In his Statement of Additional Grounds[1] (SAG), Stambaugh argues that (3) he received an unfair trial, (4) the trial venue was improper (5) the trial court erred in excluding Robert Keen's testimony and Ross Glenn Stambaugh's opinion testimony (6) there was insufficient evidence to convict him of animal cruelty, (7) the trial court should have suppressed the statements Stambaugh made to the police, and (8) the trial court erred in issuing a no contact order as part of Stambaugh's sentence. We affirm.
Stambaugh owns property with at least two homes on it, one of which he rented to Melanie and Lori Church for four years. The Churches' home is approximately 70 yards from Stambaugh's home. Stambaugh and the Churches both owned animals: The Churches owned a cat named Smokey, which was black in color with silver whiskers around its face. Stambaugh also owns cats.
Before leaving for Alaska in the summer of 2005, Stambaugh noticed that one of his cats had been mauled. Because the Churches' cat, Smokey, had been on Stambaugh's property, he thought Smokey had attacked his cat. He did not think his cat would survive, but he did not have time to care for it before leaving.
After Stambaugh returned from Alaska, his female cat gave birth to kittens, and Stambaugh observed Smokey running out of his garage every time he opened the door. He feared that Smokey would attack or kill his kittens, who were often in the recesses of the garage.
On October 29, Stambaugh opened his garage door and observed Smokey run out of the garage, slow down, and retreat under a tree limb about 40 yards away. Stambaugh thought Smokey was "getting cocky" so he went back to his bedroom retrieved a shotgun, pumped a round into the chamber, and went onto the porch. Stambaugh pumped the gun in the house so he would not startle the cat. Outside, Stambaugh fired the shotgun, which was filled with "bird shot," and hit Smokey. To Stambaugh's surprise, Smokey did not die instantaneously.
The Churches were in their driveway when they heard the shot. They looked for Smokey, and Melanie phoned the police. The Churches found Smokey approximately 30 minutes after he was shot and immediately took him to the veterinary hospital, but Smokey died on the way.
Neither Stambaugh nor the Churches were at home when Pacific County Sheriff's Office Deputies Rick Goodwin and Ruder arrived at the scene. When Stambaugh returned home, Goodwin approached him on his porch and asked what had happened between him and his tenants that day. Stambaugh replied that he had shot a feral cat, noting that feral cats enter his garage to eat his cat's food and that he previously shot coyotes and raccoons on his property. Goodwin asked Stambaugh what he had used to shoot the cat; Stambaugh answered that he shot the cat with a 12-gauge shot gun, loaded with birdshot.
Stambaugh continued talking, stating that it was his property, he would do with it what he wished, and he would shoot anything or any animal he deemed destructive or feral. Goodwin read Stambaugh his Miranda[2] rights, which Stambaugh waived. Stambaugh then showed the officers where Smokey had been hiding and where he had been standing when he shot Smokey.
The State charged Stambaugh with first degree animal cruelty and third degree malicious mischief for shooting Smokey.
The trial court held a Criminal Rule (CrR) 3.5[3] hearing to determine whether the statements Stambaugh made to Deputy Goodwin were admissible. Goodwin testified that his initial intent in approaching Stambaugh was to ascertain his version of the incident, not to arrest him.
After some discussion, Goodwin read Stambaugh his Miranda rights, which Stambaugh waived. Goodwin could not remember exactly when he read Stambaugh his rights, nor was it noted in Goodwin's report, but Goodwin was 100 percent sure that he read Stambaugh his Miranda rights at some point. Goodwin testified that he was 90 percent sure he had read Stambaugh his rights before asking what he had used to shoot the cat. Goodwin was 100 percent positive that he had read Stambaugh his rights (1) before asking him where he shot the cat, and (2) at least by the time he had asked Stambaugh what he had used to shoot the cat.
The trial court found that Goodwin had asked Stambaugh questions, both before and after he read him his Miranda warnings, and Stambaugh was not in custody during this questioning. The trial court ruled, therefore, that Miranda warnings were not required before this questioning and the State could introduce into evidence all of Stambaugh's statements to Goodwin.
The State filed a motion to exclude Stambaugh's defense witnesses from testifying. The State argued that Stambaugh's witness list was incomplete because it did not contain pertinent contact information, and the description of the witnesses' testimony did not relate to the cat-shooting incident on October 29. Stambaugh filed an amended witness list. The State eventually contacted all witnesses by phone and interviewed them the day of the trial.
The trial court then heard arguments on the State's motion to exclude the testimony of all defense witnesses. In particular, the State argued that the trial court should exclude Robert Keen's testimony because he had not been at the scene on October 29, he did not see any cats with injuries, and he could not positively identify Smokey as the cat that was causing Stambaugh problems. Stambaugh conceded that Keen could not positively identify Smokey as the problem cat. Nonetheless, Stambaugh asserted that Keen would testify that at the time he was living with Stambaugh, there was only one cat matching Smokey's description that was causing problems with Stambaugh's cats.
The trial court allowed Lawton Paddock and Ross Stambaugh to testify, but not Keen.
Dr. Dannell Davis, a veterinarian at the Columbia Veterinary Hospital, testified that "Smokey died of severe, severe traumatic wounds due to a gunshot wound." Report of Proceedings (RP) at 187.
The Churches testified that (1) Stambaugh had been introduced to Smokey on numerous occasions; (2) Stambaugh knew the cat he shot was Smokey; (3) Smokey was a sweet cat, who got along well with their and Stambaugh's other animals; and (4) Smokey had been indoors when they went to bed that night. Lori Church also testified that Stambaugh had never complained to them about Smokey.
Melanie Church testified that (1) she was in her driveway when she heard a shot; and (2) when she asked Stambaugh why he had shot Smokey, he replied, RP at 151.
Stambaugh disputed the Churches' version of the facts. Stambaugh testified he was positive that the cat he shot was the black cat that had been causing problems; but he thought it was a feral cat because the Churches told him their cats were indoors at night. Stambaugh further testified that, after he shot the cat, (1) Melanie Church asked him why he did not just shoo the cat away; (2) when he told her this was ineffectual, she responded that she was going to call the Sheriff's Department; (3) Stambaugh then told Melanie Church, "[I]f you must, you must but I can't prevent you."; and (4) he then left the residence because he "didn't want to have a long conversation with an irate woman." RP at 278.
On cross examination, the State asked Stambaugh whether the Churches were lying.
RP at 291-94. Defense counsel objected that the question was argumentative. Before the trial court could rule, Stambaugh testified, RP at 294. The court overruled the objection and allowed Stambaugh's answer.
The defense presented two other witnesses, Paddock and Stambaugh's father, Ross Stambaugh. Paddock testified that (1) he had stayed at Stambaugh's house many times, (2) he was frequently awakened by cats fighting, (3) he would go outside to break up the fights, (4) the cat causing the problems was dark in color, and (5) he frequently would chase off this dark colored cat, but it would come back.
Ross Stambaugh testified that (1) his son's policy on animals was that if they were a nuisance, they would have to go; and (2) Ross Stambaugh saw Smokey on his son's property, frequently engaging in cat fights. The trial court did not allow Ross Stambaugh to testify that, in his opinion, Smokey was a tom cat and that he stalked his son's cats.
VI. Jury Instructions
The parties disagreed on the applicable law and the jury...
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