IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 87682-1-I STATE OF WASHINGTON, DIVISION ONE Respondent, UNPUBLISHED OPINION v.
THOMAS A. SHOTWELL,
Appellant.
DÍAZ, J. — A jury convicted Thomas Shotwell of murder in the second
degree, while armed with a firearm. Shotwell argues that his trial counsel rendered
constitutionally ineffective assistance by failing to investigate and present evidence
to support a defense of diminished capacity. Shotwell also challenges the trial
court’s admission of evidence of a firearm not used in the crime and the denial of
a motion to credit his sentence with presentence time served out of custody,
subject to electronic home monitoring (EHM). Separately, Shotwell raises
additional claims of error in a Statement of Additional Grounds for Review (SAG).
Because Shotwell fails to establish ineffective assistance of trial counsel or other No. 87682-1-I/2
reversible error, we affirm his judgment and sentence.
I. BACKGROUND
According to the undisputed facts established by the testimony at trial,
Shotwell’s1 twin brother, Raymond, was playing video games while simultaneously
communicating with a friend over the internet on the evening of June 16, 2021. At
8:30 p.m., Raymond abruptly disconnected from the game and did not respond to
his friend’s later attempt to contact him.
Shotwell later discussed his spotty recollection of the incident with forensic
psychiatrist, Dr. Richard Adler. Shotwell said he came home on the evening in
question to find Raymond using the internet and disconnected it, although
Raymond instructed him not to. Shotwell later smoked marijuana. Shotwell
remembered feeling paranoid and afraid that Raymond was going to kill him.
Shotwell retrieved a firearm, shot his brother, and could not remember anything
after that.
About five hours after the internet was disconnected, Shotwell called 911.
Shotwell provided his name and address, and reported that he shot and killed his
brother. In a second call, Shotwell provided the same information and asked the
dispatcher to “send police down there.” Shotwell reported that he was no longer
at the residence but left the firearm “on the counter.”
When law enforcement responded to the address, they found Raymond’s
body on the floor underneath a pile of boxes, having sustained apparent gunshot
1 We refer to Shotwell’s brother by his first name for clarity and intend no disrespect
by doing so. 2 No. 87682-1-I/3
wounds. Police officers also found a loaded firearm on a counter, a handwritten
document labeled “Will” that purported to bequeath an “AR” firearm, among other
items of personal property, and “range style” hearing protection in the area where
the shooting took place. A later autopsy indicated that five or six bullets struck
Raymond in various places, including his neck and head.
Several hours after the 911 calls, police officers located Shotwell in a truck
registered to his mother several miles from the residence. He was unresponsive.
Police officers removed Shotwell from the vehicle, found that his insulin pump had
been removed, and transported him to the hospital.2 Because Shotwell was in a
“borderline comatose” state with an extremely low blood sugar level, he was
admitted to the hospital and the treating physician diagnosed him with an insulin
overdose. Police found an AR-15 firearm in the backseat of the truck, which was
“within arm’s reach” of the driver’s seat, and was “loaded and ready for fire.”3
The State charged Shotwell with murder in the first degree. A six-day trial
took place in October 2023. Shotwell asserted that he was not guilty by reason of
insanity (NGRI) at the time of the offense, and supported the claim with the
evaluation of Dr. Adler. The parties presented the testimony of 13 witnesses,
including Dr. Adler and Dr. Haley Gummelt, a psychologist who also evaluated
Shotwell and testified on rebuttal on behalf of the State.
2 According to Shotwell’s mother, Shotwell was diagnosed as a “Type 1 diabetic”
at 10 months old. 3 Shotwell’s mother testified that she placed the AR-15 firearm in the truck, where
she routinely kept it, but did not typically drive around with loaded weapons and agreed that she “would not have placed it in the vehicle with a round in the chamber.” 3 No. 87682-1-I/4
Dr. Adler testified at trial that Shotwell suffered from a neurocognitive
disorder due to brain damage related to hypoglycemic encephalopathy, a
complication resulting from low glucose, and cannabis-induced psychosis. Dr.
Adler concluded, to a reasonable degree of medical certainty, that at the time of
the offense, Shotwell’s impairment rendered him unable to understand the
wrongfulness of his actions. Dr. Gummelt disagreed. She diagnosed Shotwell
with “major depressive disorder single episode,” but concluded that Shotwell was
sane at the time of the crime, finding no evidence of a mental condition that
impaired Shotwell’s ability to perceive the nature of his acts or right from wrong.
The jury rejected Shotwell’s insanity defense, found him guilty of the lesser-
included charge of murder in the second degree, and determined that he was
armed with a firearm at the time of the crime. 4 The court imposed a sentence of
183 months of total confinement, the bottom of the standard range. The court
denied Shotwell’s request to credit his sentence with nearly two years’ presentence
time spent on EHM.
Shotwell appeals.
II. ANALYSIS
A. Ineffective Assistance of Counsel-Diminished Capacity
Shotwell contends the attorneys who represented him at trial rendered
ineffective assistance of counsel by failing to “properly investigate and perfect” the
defense of diminished capacity.
4 The trial court denied Shotwell’s motion for acquittal by reason of insanity after
the presentation of the evidence. 4 No. 87682-1-I/5
To prevail on a claim of ineffective assistance of counsel, Shotwell must
establish that defense counsel’s representation was deficient, in that it fell below
an objective standard of reasonableness, and the deficient performance was
prejudicial. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009);
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Legitimate trial strategy cannot serve as the basis for a claim of ineffective
assistance of counsel. State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999).
We presume that counsel’s performance was not deficient. State v. Lord, 117
Wn.2d 829, 883, 822 P.2d 177 (1991). Prejudice results when there is a
reasonable probability that, but for counsel’s errors, the result of the trial would
have been different. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
If either part of the test is not satisfied, the inquiry ends. Lord, 117 Wn.2d at 883-
84. A claim of ineffective assistance of counsel presents a mixed question of fact
and law, which we review de novo. In re Pers. Restraint of Fleming, 142 Wn.2d
853, 865, 16 P.3d 610 (2001).
Shotwell’s counsel initially indicated that, based on consultation with Dr.
Adler, who was in the process of evaluating Shotwell and preparing a report, he
would likely rely on defenses of both NGRI and diminished capacity. But
ultimately, Dr. Adler’s 49-page report addressed only NGRI. As to diminished
capacity, the report noted that Dr. Adler “in the future, may elect” to address the
relevance of diminished capacity. A few months before trial, Shotwell identified
NGRI as his sole defense.
At trial, the State made a formal motion to exclude all evidence of
5 No. 87682-1-I/6
diminished capacity, pointing out that because Dr. Adler’s report did not address
it, the State had no opportunity to obtain a responsive expert opinion. The defense
opposed the motion, arguing that, since diminished capacity is not technically an
affirmative defense and simply a basis to argue that the State failed to prove intent,
the State was not entitled to notice and expert opinion testimony was not
necessary. The trial court granted the State’s motion, indicating that the court
would not instruct the jury on diminished capacity and the defense expert should
not testify about diminished capacity.
A defendant may raise the defense of diminished capacity to argue that he
or she lacked the ability to form a specific intent due to a mental disorder not
amounting to insanity. State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860 (1973).
Shotwell points out that, contrary to his counsel’s assertion at trial, in order to raise
diminished capacity, a defendant must produce expert testimony in support of the
defense. State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). Given this
requirement and counsel’s earlier representation that Shotwell would pursue a
diminished capacity defense, Shotwell claims that it was “incumbent” on counsel
to obtain a supplemental evaluation.
But Shotwell must show deficient performance and prejudice based only on
the record of the proceedings below. State v. McFarland, 127 Wn.2d 322, 335,
899 P.2d 1251 (1995). Shotwell claims that “persuasive evidence” in the record
demonstrates that his counsel failed to obtain a supplemental evaluation because
his counsel misunderstood the law, specifically, the requirements of a diminished
capacity defense. The record does not establish that his counsel’s performance
6 No. 87682-1-I/7
was deficient in that way, for two reasons.
First, his counsel’s argument reasonably may be construed as simply
asserting that expert testimony is not necessary to challenge proof of intent, which
is a legal claim Shotwell does not challenge as ineffective.
Second, it does not necessarily follow from whatever argument he made to
the trial court that the reason his counsel did not obtain a supplemental evaluation
was because of a legal determination described on the eve of trial. His counsel
may have done so for legitimate trial strategy reasons instead, well ahead of trial.
Aho, 137 Wn.2d 745-46. The record is clear that defense counsel had consulted
with Dr. Adler about a diminished capacity defense as it is explicitly referenced in
Dr. Adler’s report. And, on this record, it is reasonable to presume as we must,
Lord, 117 Wn.2d at 883, that his counsel and Dr. Adler further explored the defense
and concluded it was in Shotwell’s best interest for Dr. Adler to opine only on NGRI,
and not diminished capacity, whether because of the relative strength of the
diminished capacity defense or to focus the jury’s attention on Dr. Adler’s
presentation of the NGRI defense. Shotwell points to nothing in the record that
would permit us to conclude otherwise, as is his burden. McFarland, 127 Wn.2d
at 335.
Relatedly, Shotwell’s claim of prejudice rests on the unsupported
assumption that a supplemental evaluation addressing diminished capacity would
have been favorable to him. Such bald assumptions do not establish the
reasonable probability the result would have been different, as Shotwell must
establish. Thomas, 109 Wn.2d at 226.
7 No. 87682-1-I/8
Moreover, the claim is based on a further assumption that the outcome
would have been different if the jury had been presented with additional evidence.
But, again, since additional evidence the jury could have theoretically considered
is not in the record, there is no way for this court to evaluate its potential effect.
Still, here, as in State v. Cienfuegos, “both the prosecutor and defense
counsel argued extensively about [the defendant’s] ability to have knowledge or
form the requisite intent” and the jury had before it instructions from which it “could
have taken into account [his] impairment.” 144 Wn.2d 222, 230, 25 P.3d 1011
(2001). Thus, “even without [a diminished capacity instruction,] defense counsel
was able to argue his theory of the case,” even if the lawyers and their experts did
not utter the legal term “diminished capacity” during trial. Id.
On this record, Shotwell cannot establish deficient performance or
prejudice.
B. Firearm Evidence
Shotwell next argues that the trial court abused its discretion when it denied
his motion to exclude evidence of the AR-15 in his possession after the shooting.
This court reviews “decisions to admit evidence using an abuse of discretion
standard.” State v. Quaale, 182 Wn.2d 191, 196, 340 P.3d 213 (2014). The
proponent of evidence has the burden of establishing that the evidence is relevant.
State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986). “Relevant evidence”
is “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” ER 401. Under ER 403, “[a]lthough
8 No. 87682-1-I/9
relevant, evidence may [still] be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
Shotwell claims the evidence that he possessed a firearm not used in the
crime was unduly prejudicial and cumulative of other evidence that he exhibited
“objective driven behavior.” Shotwell further maintains that, since the trial court
excluded evidence of diminished capacity, his ability to form the required intent
was not in dispute.
In order to prove the crime of conviction, the State was required to prove
that Shotwell acted intentionally with “the objective or purpose to accomplish”
Raymond’s death. See RCW 9A.32.050(1)(a) (second degree murder requires
that a person “inten[ds] to cause the death of another person but without
premeditation, he or she causes the death of such person”); RCW 9A.08.010(1)(a)
(criminal intent is defined as “act[ing] with the objective or purpose to accomplish
a result”). Shotwell did not stipulate to any element of the crime. As a general
matter, the prosecution is “entitled to prove its case by evidence of its own choice
in order to present its case with full evidentiary force.” State v. Taylor, 193 Wn.2d
691, 698, 444 P.3d 1194 (2019).
The entire focus of the case was Shotwell’s state of mind, and whether he
was able to “perceive the nature and quality of the acts” he was charged with
committing and appreciate “right from wrong” with respect to those acts. As the
State argued, evidence that Shotwell loaded the AR-15 and had the weapon within
9 No. 87682-1-I/10
his reach as he left the scene of the crime supported its position that Shotwell
acted with intent when he shot Raymond, understood the nature of his actions,
and appreciated the gravity and wrongfulness of his conduct. The evidence also
supported the inference that, after the shooting, Shotwell devised and followed a
plan to end his life in response to his actions. In short, the evidence was logically
relevant to issues the State was required to prove and to the rebuttal of Shotwell’s
defense.
As to the potential prejudicial impact, Shotwell claimed that the “status” of
the weapon as an “assault rifle” could engender “controversy and emotion.”
However, the State did not focus on or discuss the type of firearm and did not
argue or suggest that Shotwell posed an “imminent threat to law enforcement,” as
he claims. In order to minimize any potential prejudice, the court expressly limited
the presentation of the evidence, ruling that the State would not be allowed to
display the firearm in court. The trial court did not abuse its discretion in concluding
that the prejudicial impact did not outweigh the probative value of the firearm
evidence.
C. Credit for Time Served on EHM
Shotwell next challenges the trial court’s denial of his request for credit for
time served out of custody, subject to EHM. His argument involves questions of
law that we review de novo. State v. Swiger, 159 Wn.2d 224, 227, 149 P.3d 372
(2006).
A provision of the Sentencing Reform Act of 1981 (SRA), RCW
9.94A.505(7)(a) specifically addresses credit for time served on EHM before
10 No. 87682-1-I/11
sentencing. Under RCW 9.94A.505(7)(a), the “sentencing court shall not give the
offender credit for any time the offender was required to comply with an electric
home monitoring program prior to sentencing if the offender was convicted of …
[a] violent offense.” (Emphasis added)
Shotwell does not dispute that he was convicted of a violent offense and
was “required to comply with an [EHM] program.”5 Instead, Shotwell contends
that, in precluding credit for presentence time on EHM release, RCW
9.94A.505(7)(a) is unconstitutional.
Shotwell’s argument is entirely based on cases that predate the 2015
enactment of the applicable statute, RCW 9.94A.505(7). 6 See, e.g., State v.
Speaks, 119 Wn.2d 204, 208-09, 829 P.2d 1096 (1992) (holding that EHM
constitutes confinement under the SRA); State v. Anderson, 132 Wn.2d 203, 213,
937 P.2d 581 (1997) (holding that equal protection clause requires defendants
under posttrial EHM receive credit for time served in the same manner as
defendants on pretrial EHM); Swiger, 159 Wn.2d at 231 (holding “until and unless
the legislature acts otherwise,” defendants are entitled to credit for time served on
home detention pending appeal). More importantly, Shotwell fails to address the
decision of Division Two of this court, rejecting an equal protection challenge to
RCW 9.94A.505(7), the same claim Shotwell asserts here. 7 State v. Min Sik Kim,
5 Murder in the second degree is a serious violent offense and a subcategory of a
violent offense. RCW 9.94A.030(46)(a)(iii). 6 LAWS OF 2015, ch. 287 § 10. 7 Shotwell also mentions due process on appeal, but did not raise a due process
claim below, provides no specific argument related to due process on appeal, and his passing treatment is insufficient to warrant judicial consideration. State v. Min Sik Kim, 7 Wn. App. 2d 839, 842 n.1, 436 P.3d 425 (2019). 11 No. 87682-1-I/12
7 Wn. App. 2d 839, 848, 436 P.3d 425 (2019), review denied, 193 Wn.2d 1037
(2019). Specifically, the court concluded the legislature had a rational basis to
distinguish between felons convicted of violent crimes and those convicted of other
crimes, and between individuals released on EHM and those released from
custody but not subject to EHM. Kim, 7 Wn. App. 2d at 847-48. The reasoning in
Kim is persuasive and, contrary to Shotwell’s assertion in reply, the court’s analysis
was based solely on the statutory language, not on the severity of the non-EHM
conditions of confinement. The trial court did not err in denying Shotwell’s motion
for presentence time served on EHM.
D. Statement of Additional Grounds for Relief (SAG)
In his pro se SAG, Shotwell raises additional claims of ineffective assistance
of counsel. First, Shotwell asserts that trial counsel performed deficiently by failing
to present “[s]upporting evidence” that he suffered from side effects of one of his
prescribed medications, Singulair, 8 and evidence of possible effects of this
medication when used in combination with cannabis.
Shotwell identifies no evidence in the record to show that counsel ignored
exculpatory evidence about medication side effects or combined effects with
cannabis. On direct appeal, we may not consider any claims that rely on evidence
outside of the appellate record. See McFarland, 127 Wn.2d at 338 n.5 (“[A]
personal restraint petition is the appropriate means of having the reviewing court
consider matters outside the record.”).
8 Singulair is the brand name for Montelukast, a medication used to treat symptoms
of asthma and allergies. 12 No. 87682-1-I/13
Second, Shotwell claims trial counsel was constitutionally deficient because
he misstated two facts in closing argument, and the State later highlighted those
mistakes on rebuttal. But neither misstatement involved critical or disputed facts.
Counsel described the firearm used in the crime as an “automatic,” rather than a
semi-automatic, in the context of arguing that firing multiple rounds did not
necessarily allow time to premeditate. And counsel referred to Shotwell’s “PhD” in
engineering, rather than his master’s degree, in anticipation of the State’s
argument that Shotwell’s qualification demonstrated a level of functioning that was
inconsistent with a serious mental condition.
The jury instructions and each attorney individually informed the jury that
counsel’s statements were not evidence and directed the jury to rely solely on the
evidence, not counsel’s representations. And since the jury acquitted Shotwell of
the more serious charge of murder in the first degree, it is unclear how he was
prejudiced by the reference to an automatic weapon. Likewise, Shotwell fails to
demonstrate a likelihood that confusion about the type of advanced degree he
obtained made a difference to the outcome.
Third, Shotwell claims counsel performed deficiently by not objecting when
the State argued in closing that he removed his insulin pump partly to avoid alerting
his mother to his high insulin level and when the prosecutor stated that, “Tom said
he had a PhD.” But when and whether to object is “a classic example of trial
tactics,” and Washington courts presume strategic reasons for the absence of
objection. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989); State v.
Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007). A failure to object during
13 No. 87682-1-I/14
closing arguments generally does “not constitute deficient performance because
lawyers ‘do not commonly object during closing argument absent egregious
misstatements.’” In re Pers. Restraint of Cross, 180 Wn.2d 664, 721, 327 P.3d
660 (2014) (internal quotation marks omitted) (quoting In re Pers. Restraint of
Davis, 152 Wn.2d 647, 717, 101 P.3d 1 (2004)).
Shotwell’s mother clarified in later remarks that a different device, not the
insulin pump itself, transmitted information about insulin levels. Nevertheless, the
trial testimony supported the inference argued by the State that Shotwell removed
the insulin pump to facilitate an intentional medication overdose and to avoid
detection. And although the prosecutor misspoke when he attributed the
statement about a PhD to Shotwell (instead of defense counsel), the context of the
argument was that the jury should ignore the attorneys’ factual assertions that did
not align with the testimony. Because there was nothing egregious or especially
prejudicial in the identified remarks, the failure to object was not ineffective
assistance. For the same reasons, the remarks did not amount to misconduct.
Finally, as Shotwell does not demonstrate error, let alone multiple errors,
there was no cumulative error. See State v. Hodges, 118 Wn. App. 668, 673-74,
77 P.3d 375 (2003) (the cumulative error doctrine applies only when combined trial
court errors may deny a defendant a fair trial). And since the record does not
include a restitution order or otherwise indicate that the court imposed restitution,
we do not address Shotwell’s challenge to the amount of the State’s restitution
request.
14 No. 87682-1-I/15
III. CONCLUSION
Affirmed.
WE CONCUR: