State of Washington v. Kenneth Jay Moore

• Court: Court of Appeals of Washington
• Decided: August 26, 2021
• Docket: 37989-2
• Status: Unpublished

Opinion

FILED AUGUST 26, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) No. 37989-2-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KENNETH JAY MOORE, ) ) Appellant. )

PENNELL, C.J. — Kenneth Jay Moore killed his mother and assaulted an

investigating officer. He was convicted of first degree murder and second degree

assault. We affirm Mr. Moore’s convictions, but reverse his sentence and remand

for resentencing.

FACTS

Leisa Holt was Kenneth Moore’s mother. She began dating Jeff Hesterley in 2016.

Ms. Holt and Mr. Hesterley celebrated Valentine’s Day 2017 by spending the night of

February 13 at a hotel. After enjoying lunch together on February 14, the couple amicably

parted ways. That was their last contact. No. 37989-2-III State v. Moore

On February 17, Mr. Hesterley grew worried. He had not heard from Ms. Holt,

despite several calls and text messages. Ms. Holt also had not shown up at work.

Mr. Hesterley went to Ms. Holt’s home to investigate. Receiving no answer to his knocks

at the door, Mr. Hesterley let himself inside using a key given to him by Ms. Holt.

Upon entering the home, Mr. Hesterley was confronted by Kenneth Moore.

Although Mr. Moore lived with his mother, Mr. Hesterley had yet to meet Mr. Moore.

It was Mr. Hesterly’s understanding that Mr. Moore had some level of disability and

relied on his mother for care. Mr. Hesterly observed Mr. Moore was covered in scratches.

Mr. Moore ordered Mr. Hesterley out of the house and slammed the door in his face.

Mr. Hesterley called the police to request a welfare check.

Multiple officers responded to the scene. They entered the home and saw Kenneth

Moore standing against a hallway wall. Mr. Moore appeared to be trying to hide himself,

preparing for an ambush. Mr. Moore was holding a metallic object that appeared to be a

rifle. One of the officers observed the barrel of the rifle pointed at his head. 1 The officers

left the home in order to avoid a confrontation.

The officers summoned a SWAT (special weapons and tactics) team for assistance.

The team successfully ordered Mr. Moore out of the home, thereby giving officers an

1 This interaction formed the basis of Mr. Moore’s second degree assault charge.

2 No. 37989-2-III State v. Moore

opportunity to go inside for a search. In the home’s kitchen, officers discovered trash bags

containing severed human legs. A search of the bathroom revealed Leisa Holt’s partially

dismembered body, which was lying in a shower with a carving board underneath and

various cutting instruments nearby.

In Mr. Moore’s bedroom, officers found a disassembled rifle. The rifle was in

three pieces—the wood stock, the barrel, and the magazine tube. After seizing the rifle

pieces, a detective determined the rifle was missing screws necessary to perform a firearm

function check. Police later found various screws in Mr. Moore’s bedroom.

The three rifle pieces were sent to the Washington State Patrol Crime Laboratory

for an operability analysis. Without the missing screws, it was impossible to reattach the

stock of the firearm to the receiver and barrel. A firearms analyst reassembled the rifle

using screws from a different rifle of the same model, and subsequently fired the rifle

three times. According to the analyst, the rifle could also be fired without the stock

attached. In addition, the screws recovered from Mr. Moore’s bedroom were determined

to fit the rifle.

PROCEDURE

The State charged Kenneth Moore with one count of first degree murder and

one count of second degree assault with a deadly weapon. The murder charge included

3 No. 37989-2-III State v. Moore

a sentencing aggravator for egregious lack of remorse. The assault charge included an

aggravator for assault on a law enforcement officer. Mr. Moore received court-appointed

counsel and was referred for a competency evaluation at Western State Hospital.

Prior to his competency evaluation, Mr. Moore began presenting communication

difficulties. At one point, Mr. Moore indicated he had lost his hearing due to an assault

at the jail. The trial court initially tried accommodating Mr. Moore by providing

headphones. When that did not work, the court ordered Mr. Moore be provided real-time

transcripts of his court hearings. Mr. Moore communicated with his attorney through the

use of written notes.

Western State Hospital completed Mr. Moore’s competency evaluation in

November 2017. The evaluation did not uncover any mental disease or defect. The

evaluation report also noted Mr. Moore appeared capable of speaking and hearing.

Mr. Moore’s case was then scheduled for a competency determination.

Mr. Moore’s defense counsel disagreed with the competency evaluation’s findings.

Counsel complained Mr. Moore was unable to communicate, thereby hindering counsel’s

ability to prepare a defense. At one point in during the subsequent competency

proceedings, Mr. Moore wrote a note to the court, asking for a new attorney. Counsel

joined this request, claiming he could not effectively represent an incompetent person.

4 No. 37989-2-III State v. Moore

In April 2018, the court decided Mr. Moore was competent and declined to appoint a new

attorney. The court explained counsel was duty-bound to represent his client, regardless

of any disagreement with the court’s competency decision. The court offered to appoint a

second chair attorney, who could help ensure Mr. Moore was able to review information

provided by the transcriptionist. Mr. Moore did not act on this offer.

Approximately five months after the competency determination, Mr. Moore’s

attorney filed a written motion to withdraw. The motion was accompanied by a

declaration of counsel. In the declaration, counsel explained Mr. Moore remained largely

uncommunicative. Mr. Moore often refused to meet with defense counsel, although there

had been a productive meeting about two weeks prior to the filing of the motion.

According to defense counsel, Mr. Moore’s claimed deafness negatively impacted

counsel’s ability to provide effective representation. Defense counsel continued to opine

that Mr. Moore was not competent to assist in his defense and stand trial.

The court held a hearing on defense counsel’s motion. During the hearing, Mr.

Moore passed a note to the court reading, “New lawyer please.” 1 Report of Proceeding

(RP) (Sep. 7, 2018) at 92. Appointed counsel explained he had limited ability to help

Mr. Moore because of Mr. Moore’s communication problems. The State pointed out that

the problems presented by Mr. Moore were not specific to existing counsel; thus,

5 No. 37989-2-III State v. Moore

replacing defense counsel would not solve the problems raised by Mr. Moore’s

communication difficulties. The court did not remove Mr. Moore’s existing attorney, but

now appointed a second chair attorney to provide assistance.

An omnibus hearing was held a few weeks later. At the hearing, defense counsel

told the court Mr. Moore had not been in communication with anyone about the case,

including an appointed investigator, psychologist, and mitigation expert. Defense counsel

continued to assert Mr. Moore was not competent. Counsel asked for a continuance,

which was granted. Mr. Moore objected to the continuance via a written note. He again

asked for a new attorney. The court denied this request. The case was ultimately set for

trial commencing June 3, 2019.

Four days before the start of trial, the parties appeared for a readiness hearing.

Mr. Moore wrote a note to the court again asking for a new attorney. The court engaged

Mr. Moore in a colloquy. Mr. Moore indicated he wanted a new lawyer for a “bunch of

reasons,” including his belief that his attorney was engaged in “lies.” 2 RP (May 30,

2019) at 320-21. The trial court declined to appoint new counsel.

At the outset of trial on June 3, defense counsel renewed his motion to withdraw.

The court denied the motion. During the court’s opening statements to the jury venire,

Mr. Moore held up a handwritten sign for the potential jurors which read, in all capital

6 No. 37989-2-III State v. Moore

letters, “I asked to represent myself.” 2 RP (Jun. 3, 2019) at 337-38. After excusing the

jury, the court denied the request to change attorneys or to allow Mr. Moore to represent

himself. Defense counsel then moved for a mistrial, which the court also denied.

Trial was peppered with conflicts between Mr. Moore and his attorney. A jury

ultimately convicted Mr. Moore as charged, including the egregious lack of remorse

sentencing aggravator.

Mr. Moore’s first degree murder conviction carried a standard range sentence of

261 to 347 months. The range for second degree assault was 12 to 14 months, plus a 36-

month firearm enhancement. The court imposed an exceptional sentence totaling 410

months in prison. In addition to an egregious lack of remorse, the court found the first

degree murder charge involved an aggravating circumstance of exceptional cruelty. The

court relied on both factors to impose the exceptional sentence on the murder charge. 2

Mr. Moore appeals his judgment and sentence. A Division Three panel considered

Mr. Moore’s appeal without oral argument after receiving an administrative transfer of

this case from Division Two.

2 The range for the assault charge was enhanced based on the jury’s finding a sentence aggravator for assault on a law enforcement officer. This aggravator is not at issue on appeal.

7 No. 37989-2-III State v. Moore

ANALYSIS

Sufficiency of the evidence—firearm

Mr. Moore challenges the sufficiency of the State’s evidence in support of his

second degree assault conviction. Specifically, Mr. Moore claims the evidence was

insufficient to support a finding that his offense involved a deadly weapon. He argues the

device at issue was nothing more than an inoperable rifle barrel. According to Mr. Moore,

this does not meet the definition of a deadly weapon.

We review Mr. Moore’s sufficiency challenge de novo. State v. Berg, 181 Wn.2d

857, 867, 337 P.3d 310 (2014). The question is whether, construing the evidence in the

light most favorable to the State, any rational fact finder could have found the elements

of the crime charged beyond a reasonable doubt. State v. Marohl, 170 Wn.2d 691, 698,

246 P.3d 177 (2010).

As charged in this case, the crime of second degree assault requires proof of a

deadly weapon. RCW 9A.36.021(1)(c). A firearm constitutes a deadly weapon.

RCW 9A.04.110(6). A firearm is defined as “a weapon or device from which a projectile

or projectiles may be fired by an explosive such as gunpowder.” Former RCW

9.41.010(9) (2013). Our case law requires a firearm to “be capable of being fired.” State

v. Tasker, 193 Wn. App. 575, 594, 373 P.3d 310 (2016). “Evidence that a device appears

8 No. 37989-2-III State v. Moore

to be a real gun and is being wielded in committing a crime is sufficient circumstantial

evidence that it is a firearm.” Id. 3

The evidence here was sufficient to prove Mr. Moore committed assault while

armed with an operable firearm. The officers who encountered Mr. Moore all testified

they saw Mr. Moore holding a rifle or the barrel of a rifle. No one claimed Mr. Moore

possessed only the barrel of a rifle. The manner in which Mr. Moore held the device

indicated he was on the attack with a real, operable weapon. Although law enforcement

subsequently found a disassembled rifle, this does not mean the rifle was disassembled at

the time of the assault. At least one hour passed between the assault and Mr. Moore’s

forced exit from the home. This afforded plenty of time for dismemberment. In addition,

the uncontested trial testimony was that the pieces of the rifle were capable of discharging

ammunition even in a partially disassembled state. The jury could easily infer that the

3 Our case law holds that a device can meet the definition of a firearm so long as it is “capable of being fired, either instantly or with reasonable effort and within a reasonable time.” Id. Mr. Moore claims this definition only applies to firearm possession offenses. When it comes to actively using a firearm to perpetrate second degree assault, Mr. Moore argues the firearm must be operable immediately, at the time of the offense. We need not decide whether Mr. Moore is correct about the proper scope of the firearm definition. As explained in the body of this opinion, the evidence in this case meets Mr. Moore’s proffered definition of a firearm.

9 No. 37989-2-III State v. Moore

device possessed by Mr. Moore at the time of his initial contact with law enforcement met

the definition of a functioning firearm.

Request for real-time transcriptionist for jail meetings

Mr. Moore contends the trial court impaired his right to communicate with his

attorney by refusing a real-time transcriptionist to help defense counsel communicate with

him during jail meetings. We disagree. Although defense counsel and Mr. Moore had

communication problems, Mr. Moore fails to explain how a transcriptionist would have

improved things. Unlike a court hearing with multiple participants, a jail meeting is a one-

on-one encounter. It is not apparent why a transcriptionist would be more effective in

facilitating one-on-one communication than the parties’ use of a laptop, tablet, or

notepad. If Mr. Moore has evidence showing that a transcriptionist could have made a

difference, he can bring this factual information to the court’s attention through a

personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251

(1995). His claim is not amenable to review on direct appeal.

Denial of motion to withdraw as counsel

Mr. Moore argues the trial court violated his rights under the Sixth Amendment

to the United States Constitution by denying various requests for withdrawal or

substitution of counsel. We review the trial court’s assessment of these requests for abuse

10 No. 37989-2-III State v. Moore

of discretion. State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991); State v. Hegge,

53 Wn. App. 345, 350-51, 766 P.2d 1127 (1989).

The Sixth Amendment confers the right to appointed counsel. But there is no right

to choose a specific attorney as appointed counsel. Nor is a defendant empowered to

receive a change in appointed counsel by refusing to cooperate. State v. Schaller, 143 Wn.

App. 258, 271, 177 P.3d 1139 (2007). Nevertheless, effective assistance of counsel

requires a defendant be provided a fair opportunity for a meaningful attorney-client

relationship. “[A] complete breakdown of communication which may lead to an unjust

verdict is considered a good and sufficient reason for withdrawal” or substitution of

counsel. Hegge, 53 Wn. App. at 351.

Appellate courts look at three issues in determining whether a trial court abused

its discretion in refusing a request for substitute counsel: “(1) the extent of the conflict,

(2) the adequacy of the inquiry, and (3) the timeliness of the motion.” In re Pers.

Restraint of Stenson, 142 Wn.2d 710, 723-24, 16 P.3d 1 (2001).

Here, our review is largely driven by the first factor. The primary issue raised by

the requests for withdrawal or substitution was defense counsel’s disagreement with the

trial court’s competency determination. Counsel repeatedly told the court that he wanted

to withdraw because he could not ethically represent an incompetent person. The trial

11 No. 37989-2-III State v. Moore

court correctly recognized this was not an appropriate reason for terminating

representation. The remedy for an erroneous competency determination is appellate

review. It does not provide a basis for withdrawing from representation.

Mr. Moore’s independent requests for new counsel did not provide the court with

additional reasons for appointing a new attorney. The record indicates Mr. Moore’s

communication problems were not specific to his attorney. He refused to meet with

various professionals appointed to help him at trial, including a psychologist, an

investigator, and a mitigation expert. He also rebuffed communication efforts made by his

second chair attorney. The record fails to show there was a conflict between Mr. Moore

and his attorney that could have been resolved by the appointment of new counsel.

With respect to the second factor, the trial court afforded Mr. Moore and his

attorney numerous opportunities to explain the need for new counsel. At each instance,

appointed counsel emphasized his disagreement with the court’s competency decision.

The court was never supplied information suggesting that a change of counsel could have

made a difference in attorney-client communications. We therefore defer to the trial

court’s assessment.

With respect to timeliness, Mr. Moore’s most adamant requests for new counsel

were not made until the eve of trial. This was not timely. We defer to the trial court’s

12 No. 37989-2-III State v. Moore

assessment that Mr. Moore’s belated requests for a new attorney did not warrant court

action.

Sentence aggravators

Mr. Moore challenges the two aggravators used to enhance his sentence on the

first degree murder conviction. He claims there was insufficient evidence to support an

aggravator for egregious lack of remorse. He also points out the aggravator for deliberate

cruelty was procedurally flawed. The State concedes both errors. We accept these

concessions.

Because a sentence aggravator enhances a defendant’s sentence beyond the

statutory standard range, it must be supported by pretrial notice and then proven to a jury

beyond a reasonable doubt. RCW 9.94A.537(1), (3)-(4). The facts necessary for a

sentence aggravator must be supported by sufficient evidence. The sufficiency analysis

asks “whether any rational trier of fact could have found the presence of the aggravating

circumstances beyond a reasonable doubt.” State v. Zigan, 166 Wn. App. 597, 601-02,

270 P.3d 625 (2012).

Here, the State did not present evidence supporting the aggravator of egregious

lack of remorse. Although the facts of the case are both sad and gruesome, this goes only

to the heinousness of the crime, not Mr. Moore’s mindset after the offense. Mr. Moore’s

13 No. 37989-2-III State v. Moore

general denial of guilt is not sufficient to establish lack of remorse. Because there was

no evidence of lack of remorse after commission of the crime, Mr. Moore is entitled to

resentencing.

While Mr. Moore’s case certainly seemed to involve deliberate cruelty, this

sentence aggravator was never the subject of pretrial notice, nor was it specifically proven

to the jury at trial. As a result of these procedural flaws, imposition of an exceptional

sentence based on deliberate cruelty was unwarranted. Resentencing is required. State v.

Van Buren, 136 Wn. App. 577, 580, 150 P.3d 597 (2007).

Assistance of counsel

Mr. Moore contends his right to effective assistance of counsel was violated by his

attorneys’ failure to investigate mitigating circumstances regarding sentencing. The

current record fails to substantiate this claim. Regardless, Mr. Moore’s claim is mooted

by our order granting resentencing.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

In a statement of additional grounds for review, Mr. Moore asks to be stripped

of his United States citizenship and sent into exile in Mexico with a backpack full of

survival equipment. To the extent we have power to do so, we deny this request.

14 No. 37989-2-III State v. Moore

CONCLUSION

Mr. Moore’s conviction is affirmed. The sentence is reversed and this matter is

remanded for resentencing.

A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Pennell, C.J.

WE CONCUR:

______________________________ Lawrence-Berrey, J.

______________________________ Staab, J.