State v. Harper

STATE OF WASHINGTON, Respondent, v. JOSEPH TERRY HARPER, Appellant.

No. 37153-1-III

Court of Appeals of Washington, Division 3

August 12, 2021

UNPUBLISHED OPINION

SIDDOWAY, J.

Joseph Harper received a life without parole sentence under the Persistent Offender Accountability Act (POAA)^[1] after being convicted below of first degree assault, among other crimes. We stayed the appeal pending the Washington Supreme Court's decision on whether legislation enacted in 2019 that removed second degree robbery from the list of "most serious offenses" meant that Mr. Harper's prior conviction of that crime could not be relied on to support his POAA sentence.

We lifted the stay after the Supreme Court ruled that the 2019 legislation cannot be relied on by offenders like Mr. Harper. (At about the same time, the legislature afforded him a statutory remedy.) We address his remaining assignments of error and, finding no error or abuse of discretion, affirm.

FACTS AND PROCEDURAL BACKGROUND

Late one evening in early November 2017, Joseph Harper went on a destructive spree fueled by methamphetamine and, the State would later argue, by the breakup of his marriage. It was presaged four to five hours earlier, when he drove erratically, screaming and yelling, through the parking lot of an apartment complex where his estranged wife, Chelsea Harper, was living. She and her roommate told him to leave and he apparently complied.

Chelsea Harper later drove to the Dairy Queen, where she worked, and parked her 1993 Chevrolet Camaro in the back of its parking lot.

At around 10:00 p.m., Spokane Police Officer Jeremy McVay was on patrol when he saw Mr. Harper on the median of the road fronting the Dairy Queen, trying to flag him down. He stopped and spoke to Mr. Harper, who was sweating heavily and spoke fast and frantically. In a convoluted narrative, Mr. Harper expressed concern about the safety of his wife, who was working inside. Mr. Harper's behavior suggested to the officer that he was under the influence of a stimulant-either cocaine or methamphetamine.

After speaking with Mr. Harper for about 10 minutes, Officer McVay went into the Dairy Queen to check on Ms. Harper. Officer David Betts, who had been dispatched to assist Officer McVay stayed with Mr. Harper. Officer Betts agreed that Mr. Harper appeared to be high on methamphetamine, and was told by Mr Harper that he had ingested some. Officer McVay spoke with Chelsea Harper, who was finishing up her work shift. He returned to Mr. Harper to assure him that Ms. Harper was not in any danger. Mr. Harper left.

Mr Harper soon returned, entered the Dairy Queen, and told one of Ms. Harper's coworkers that he needed to speak to her. Ms. Harper saw that he was in the lobby and walked to the back of the building. Her night manager told Ms. Harper that he would take care of it and told Mr. Harper to leave.

The restaurant closed at 10:00 p.m., and as Ms. Harper was doing dishes and washing her grill, she heard coworkers questioning what some guy was doing in his car out front. It turned out to be Mr. Harper. He knew that Ms. Harper's Camaro's damaged ignition could be started without a key and that she was unable to lock the car, and he had located it in the parking lot. When Ms. Harper walked up front to see what was going on, she saw that it was her car, "do[ing] donuts in the parking lot and peel[ing] around very fast." Report of Proceedings (Feb. 1, 2019) (RP) at 463. When the car stopped, Mr. Harper got out, approached the building, and pounded on the windows, yelling at Ms. Harper to come out and talk to him.

When Ms. Harper remained inside, Mr. Harper got back in her car and left. Different witnesses observed later events from different vantage points, and their accounts are not entirely consistent. They are in agreement that Mr. Harper drove the Camaro back and forth, through the Dairy Queen parking lot and the parking lot of J&K Gas located across the street driving it into several vehicles.

Kelly Krebs had the misfortune of driving up to J&K Gas at one point when Mr. Harper suddenly backed out of the Dairy Queen parking lot, and Mr. Krebs had to brake hard to avoid a collision. He honked, and as he drove around the Camaro looked at Mr. Harper and raised his arms. He then pulled up to a gas pump at J&K and went inside to prepay for his gas. When he emerged, he saw Mr. Harper parked in the lot, yelling at a bicyclist for no apparent reason. When Mr. Harper saw Mr. Krebs, he put the Camaro in reverse and begin backing toward Mr. Krebs's car, alternately revving the engine and hitting the brakes. Mr. Krebs yelled, "[W]hat are you doing, don't hit my car!," but Mr. Harper moved the Camaro to within a couple of feet of the front of Mr. Krebs's car and then backed into it. RP at 555. At that point, Mr. Krebs pulled a stun gun from his car and sparked it at Mr. Harper. Mr. Harper drove off.

As Mr. Krebs fueled his car, he heard crashing sounds from the Dairy Queen across the street. He saw Mr. Harper strike two cars in Dairy Queen lot with the Camaro. Leaving his car behind, Mr. Krebs walked to the Dairy Queen lot, video recording what was happening with his cell phone. When Mr. Krebs reached the Dairy Queen lot, Mr. Harper accelerated directly toward him three times and each time Mr. Krebs got out of the way. Mr. Harper then drove back to the J&K lot and sideswiped Mr. Krebs's less agile car with the Camaro.

Either before or after sideswiping Mr. Krebs's car, Mr. Harper, while in the Dairy Queen parking lot, crashed the Camaro into the restaurant's entry. Ms. Harper was standing in the lobby, about 10 feet from the front doors; she was afraid her husband was going to speed up and actually enter the building. The restaurant manager, Tiffany Glick was also watching; according to her, it was only because Mr. Harper struck a garbage can that he did not break through the double doors.

Police received multiple calls during the melee. According to Ms. Glick, they arrived after Mr. Harper had done a couple of "loops" on the street at high speed and had come to a stop on the median. RP at 509-10. Ms. Glick saw Mr. Harper put his hands out the driver's door window after police arrived. But when an officer grabbed his arm, Mr. Harper accelerated away.

The officer Ms. Glick saw approach the Camaro was Sergeant Kevin Vaughn, who arrived at the scene at around 10:30 p.m. Officer Jerry Anderson was riding with him. Both officers stepped out of their car and the sergeant approached the driver's door, told Mr. Harper to keep his hands visible, and grabbed his left hand. While holding Mr. Harper's hand, Sergeant Vaughn opened the car door, but Mr. Harper used his free hand to reach for the gear shift or steering wheel and sped away. Sergeant Vaughn and Officer Anderson rushed back to their car and followed Officer David Betts, who had also responded to the scene and was already in pursuit of the Camaro.

Officer Betts pursued Mr. Harper through residential neighborhoods. Mr. Harper was driving upwards of 75 miles per hour in areas with speed limits of 25 to 30 miles per hour and was ignoring stop signs and red lights. Officer Betts, who was required to slow down at intersections, fell a few blocks behind, and following a short chase, found the Camaro crashed and abandoned in a residential front yard. A perimeter was established and a K-9 unit was called in.

Officers eventually saw Mr. Harper walking and gave chase. While chasing him, they noticed he was injured: his shirt was torn and his back was covered in blood. Mr. Harper ignored orders to stop and was captured when he slipped and fell in the snow. He was handcuffed, a cervical collar was placed on his neck, and he was taken to the hospital.

At the hospital, Mr. Harper was agitated, addressed an attending officer with homophobic slurs, and made vulgar sexual remarks to hospital staff. He said numerous times that he did not believe they were real medical staff and accused them of trying to hurt him.

When medical staff arrived to take Mr. Harper from a trauma room to get a CT^[2]scan, the two officers present accompanied them to where the scan would be performed. An emergency room technician, James Pluid, helped transport Mr. Harper and was present to help move him to a table. Mr. Pluid was holding down Mr. Harper's uncuffed hand when Mr. Harper suddenly pulled his hand free and lunged, grabbing Mr. Pluid by the throat. Mr. Pluid and the officers pushed him down and officers detained him again in handcuffs. Mr. Harper had to be medicated before the CT scan could be performed.

Mr. Harper was charged with first degree assault, for his assault of Kelly Krebs; theft of a motor vehicle; attempt to elude a police vehicle; and third degree assault, for his assault of James Pluid.

Defense counsel moved for a competency evaluation, which was ordered, and Mr. Harper was found incompetent to stand trial as a result of an "unspecified psychotic disorder, most likely methamphetamine induced." Clerk's Papers (CP) at 14. Competency restoration was ordered. After approximately six weeks, the court received a report from the state hospital that Mr. Harper was no longer exhibiting a methamphetamine-induced psychotic disorder and was competent to stand trial.

Six months later, defense counsel moved for a second competency evaluation, concerned that Mr. Harper was decompensating significantly. The motion was granted, but this time, an evaluation by Eastern State Hospital psychologist C. O'Donnell concluded that while Mr. Harper had a history of methamphetamine-induced psychosis, "he is not mentally ill" and had "exaggerate[d] both psychiatric symptoms and memory impairment." CP at 51. This time, Mr. Harper was found competent to stand trial.

In early 2019,...