State v. Hunter

216 P.3d 421, 152 Wash. App. 30
Court of Appeals of Washington·Decided July 14, 2009·No. No. 37110-3-II·Published·Cited by 18 cases

Opinion

Van Deren, C.J.

¶1 Kenneth Miles Hunter appeals his second degree murder conviction in the death of Ethel Jean Sergeant. He claims that the trial court erred in admitting evidence of a trigger pull device and requiring the jurors to use the device to demonstrate the alleged pull necessary to fire Hunter’s gun. He also argues that the trial court erred in refusing to give Hunter’s proposed jury instructions on the two lesser included offenses of first and second degree manslaughter. We reverse and remand for further proceedings.

FACTS

¶2 On January 17, 2000, Hunter placed a telephone call to 911 from the Tacoma apartment he shared with Sergeant, stating that he was suicidal. Six city of Tacoma police officers responded to the apartment and tried to make contact with the occupants but no one responded. The officers then obtained a key from the apartment manager and opened the apartment door. Officer Michael Field called [34]*34into the apartment and Hunter answered, “I’ve got a gun in my mouth. I’m in the bathroom, and I have a gun in my mouth.” V Report of Proceedings (RP) at 113. Hunter stated, “I killed my girlfriend,” and “ ‘It was an accident.’ ” V RP at 115. Field asked Hunter to throw his gun where they could see it and Hunter complied. Hunter then crawled out into the hallway where the officers could see him and the officers entered the apartment.

¶3 The officers took Hunter into custody and searched the apartment. Hunter stated, “ ‘My baby’s in the bathtub’ ” and told the officers that Sergeant had been shot “a day or two ago.” V RP at 137. The officers found Sergeant’s body in the bathtub. She had been shot in the head and had been dead for at least 24 hours.

¶4 On March 2, 2007, the State charged Hunter with second degree murder.1 It also alleged that Hunter was armed with a firearm at the time of the murder and that the murder was a domestic violence offense.

Trigger Pull Device

¶5 At trial, the State called Matthew Noedel, a former employee of the Washington State Patrol Crime Laboratory, who had created a trigger pull measuring device that he claimed demonstrated the feel of pulling the trigger on Hunter’s gun. Hunter objected to the use of the trigger pull by the jury. The trial court allowed the State to make an offer of proof outside the presence of the jury to determine whether the device was sufficiently similar to the actual firearm used to kill Sergeant.

¶6 Noedel testified that he designed the device so that jurors could “understand what pressures and trigger pulls feel like” without requiring that the jurors handle actual [35]*35firearms. He stated that the device “uses the actual types of weights that are used on the firearm, itself, to demonstrate - - this is how we measure pressure in the laboratory environment.” VII RP at 363. The trigger pull is made with a pulley system, which “has a limited effect on adding resistance to the system.” The trigger pull has a “ring rather than an actual trigger, because it’s easier to engineer that way” and it has added weight due to “other apparatus” necessary to the function of the trigger pull. VII RP at 362-64.

¶7 Noedel stated that “the friction is negligible” and that “[t]he only thing absent in this device [is that] in an actual firearm, you have a physical release of the hammer or of the firing pin mechanism, and that physical release, that snap of the firing pin going forward, doesn’t occur here.” VII RP at 365. Noedel demonstrated that the actual firearm used to kill Sergeant took seven and one half pounds of pressure to fire. He did this by hanging a seven pound weight from the trigger and then a one half pound weight, with the trigger snapping only after adding the half pound weight.

¶8 On cross-examination, Noedel admitted that the best representation would be to use the actual gun. The ring on the trigger pull is narrower than the actual trigger, which affects the perceived pressure. Hunter asked Noedel to measure the distance from the trigger to the web of his hand on both devices; the distance on the trigger pull was one inch longer than on the actual gun. Noedel admitted that “the distance from the web of your hand to the trigger or the device affects perceived trigger pull.” VII RP at 378. The actual size of a person’s hand also affects the perceived trigger pull.

¶9 The prosecutor asked Noedel if controlling a juror’s speed while pulling the trigger pull device would allow the jurors to “feel the pressure of the weight and the amount of force it takes to engage it rather than if you just squeeze” and Noedel answered affirmatively, stating:

To feel seven and a half pounds, I think the best way to use this device would be to just lift the weight a short distance and feel [36]*36what that pressure looks like. Once you’ve lifted the weight, if you continue to pull it, now you are just working the weight, which is more work than what would discharge this firearm.

VII RP at 381-82.

¶10 The trial court tried the trigger pull at seven and one half pounds, at five pounds, and at two pounds. It also pulled the trigger on the actual firearm for comparison. The trial court then stated:

[T]he ultimate question is, is it helpful to the jury . . . without being unduly prejudicial in some fashion. I think the legal test that has been described for generic demonstrations like this is, is the demonstration substantially similar to whatever it is that it’s seeking to demonstrate or be compared to.
The narrow question is, what’s it like to experience seven and a half pounds of trigger pull? . . . [T]he demonstration is a pretty good representation of [that narrow question].

VII RP at 393. In determining that the trigger pull was not unduly prejudicial, the trial court stated:

[I]t comes down to [whether] something [is] better than nothing. . . .
. . . [I]t comes down to this kind of choice: If we don’t do the demonstration, we are left to have the jury interpret this by words alone. If we do the demonstration, we have words and some experience with regard to what it’s like to pull seven and a half pounds.

VII RP at 393-94. The trial court determined that Noedel would “indicate to the jurors how it will be most beneficial to feel the pull, by pulling slowly and not pulling too far” before they tried using the trigger pull. VII RP at 397.

¶11 In the presence of the jury, Noedel testified that “the amount of pressure or the amount of weight it took to cause this gun to discharge was seven and a half pounds.” VII RP [37]*37at 446. Noedel described the trigger pull device and how it simulates the pulling of the trigger on the actual gun. He explained that the jurors should “pull slowly and pull just . . . until the weight moves.” VII RP at 448. The prosecutor then asked the court to allow the jurors to “step down to the trigger-pull device and engage that, suggesting to them that they are not to ask questions or to speak, but just to step down, do it once, and then return to their seats.” VII RP at 449. The trial court instructed the jurors to participate, calling one row of jurors at a time. See VII RP at 449-50.

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State v. Hunter, 216 P.3d 421, 152 Wash. App. 30 (Wash. Ct. App. 2009).

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