State v. Pointer

1

STATE OF WASHINGTON, Respondent, v. ANDREW HOUSTON POINTER, III, Appellant.

No. 57268-1-II

Court of Appeals of Washington, Division 2

April 23, 2024

UNPUBLISHED OPINION

Che J.

Pointer appeals his conviction for first degree murder. At trial Pointer contended he was acting in self-defense, which would make the homicide justifiable. The trial court gave jury instructions on self-defense, first aggressor, no duty to retreat, and the definition of necessary. Pointer challenges the instructions on first aggressor and the definition of necessary, the sufficiency of the evidence to prove premeditated intent, and whether the State disproved Pointer's self-defense theory. Pointer raises additional challenges in a statement of additional grounds (SAG).

We hold (1) there was sufficient evidence to show that Pointer acted with premeditated intent, (2) there was sufficient evidence to disprove self-defense, (3) assuming without deciding the trial court erred by giving the jury instruction defining necessary, the error was harmless, and (4) Pointer did not receive ineffective assistance of counsel. Because Pointer does not meet his burden under RAP 2.5 to warrant review of unpreserved issues, we decline to reach (1) whether the first aggressor instruction was supported by sufficient evidence and (2) whether the trial court should have sua sponte given instructions that words alone could not make the defendant the first aggressor and one for "revived" self-defense.^[1]

Thus we affirm.

FACTS

The State charged Andrew Pointer with first degree murder of Lawrence Jeffries, attempted first degree murder of Cassie Houston-Collazo, attempted first degree murder of Jeffries first degree unlawful possession of a firearm, and first degree manslaughter of Jeffries.

I. Background

In August 2019, Houston-Collazo lived in a townhouse with her son and her daughter, AJ. Pointer sometimes stayed at Houston-Collazo's house. Pointer and Houston-Collazo had an on-again, off-again relationship. Jeffries, AJ's dad, did not live with Houston-Collazo but maintained a close relationship with Houston-Collazo.

Pointer and Jeffries disliked each other; Houston-Collazo once said, Jeffries "hated" Pointer. 9 Rep. of Proc. (RP) at 1029. Pointer was afraid of Jeffries because Jeffries was "way bigger" than Pointer. 11 RP at 1302. Pointer and Houston-Collazo argued over Houston-Collazo's continued contact with Jeffries. Pointer was suspicious that Houston-Collazo was still romantically involved with Jeffries.

On the evening of August 3, during an argument, Houston-Collazo told Pointer that he needed to leave the townhouse, but he did not. Houston-Collazo then asked Pointer to take her to the store and he agreed. Jeffries arrived just as Houston-Collazo and Pointer got into their car to leave. Houston-Collazo got out of the car and told Pointer to lock the door to avoid a conflict with Jeffries. Houston-Collazo talked briefly with Jeffries, then Houston-Collazo and Pointer left to pick up Pointer's son.

During the drive, they argued about Houston-Collazo being involved with Jeffries. When they arrived, Houston-Collazo ran away from Pointer and called Jeffries to pick her up. Eventually, Pointer found Houston-Collazo on a sidewalk and Jeffries arrived shortly thereafter with Erik White. Jeffries and Pointer got into a physical fight with Jeffries repeatedly punching Pointer.^[2] Jeffries told Pointer, "Leave [Houston-Collazo] alone. I'm tired of my kids seeing their mom hurt." 9 RP at 972.

Pointer's teenage son approached the fight and Jeffries punched him. During the fight, AJ, who was on the phone with Houston-Collazo, heard Pointer say, "oh, you want to hit me in front of my son?" 4 RP at 238 Houston-Collazo and White were able to break up the fight.

Houston-Collazo left with White and Jeffries to pick up Derick Crump.^[3] After the fight, Pointer and his son went to his son's house and then to Pointer's sister's house where Pointer cleaned off the blood on his face and changed into all black clothes.

When Pointer arrived at Houston-Collazo's home, AJ let him in and he began packing.^[4]AJ's friend, MJ, was also there. According to MJ, Pointer did not appear to be carrying a firearm.

AJ called her mom to let her know Pointer was there. Pointer grabbed AJ's phone and told Houston-Collazo that he was leaving.^[5] Pointer had a weird tone when Pointer said to Houston-Collazo "come home, baby and make sure you bring your baby daddy. I just want to talk" and "nothing bad is going to happen. Just bring [Jeffries]." 4 RP at 242, 8 VRP at 891. As Pointer was leaving, he told AJ that he might not see her "for a while." 4 VRP at 244. After leaving, Pointer realized he did not have his wallet with him and needed to return to retrieve it.

Houston-Collazo and Jeffries arrived at the front door of the townhouse and talked with AJ and MJ. According to MJ, Jeffries did not appear to be carrying a gun. White and Crump remained in the car initially. Someone yelled, "he's in the back." 4 RP at 248.

II. The Shooting

At trial, the witnesses testified to the facts discussed above but witnesses testified to differing accounts of the shooting.

In Houston-Collazo's account, she walked to the back alley^[6] and watched Pointer exit his parked car from the driver's side. Jeffries was a little behind Houston-Collazo. Houston-Collazo saw a gun in Pointer's hand and she ran between some cars and ducked, but she saw Jeffries continue walking towards Pointer. Houston-Collazo saw the muzzle flash from Pointer's gun, and she heard one gunshot followed by more. She saw Pointer shoot two to three times. Houston-Collazo watched Pointer get in his car.

In MJ's account, MJ was looking towards the alley while holding back AJ during the shooting. MJ saw Pointer shoot Jeffries and Jeffries fall over. MJ heard a couple shots together, a pause, and then another shot or two. MJ saw Pointer put the gun in his waist area and get in his car.

Two neighbors heard gunshots and then witnessed Pointer reverse his car over Jeffries. Pointer then ran over Jeffries again to exit the alley.

The lead detective testified that the closest he could place Jeffries to Pointer was as follows: "Pointer near the open driver's side, . . . and Mr. Jeffries near the rear passenger side." 10 RP at 1202.

A forensic scientist expected to find gunshot residue on the target if someone fired the gun at a target within seven feet in laboratory conditions. The forensic scientist clarified that there would be some variance from that estimate at the scene.

Jeffries's t-shirt did not have gunshot residue on it. But the forensic scientist did not opine as to how far the gun was from the t-shirt when it was fired, noting that there could have been rough handling of the shirt or an intervening object.

In White's account, he was alone in his car in front of the house when he saw Jeffries approach Pointer, "a little tussle [occurred] and then I heard a gunshot." 8 RP at 792. "There was like a little movement and [Jeffries] moved [Houston-Collazo] out of the way. And I saw a little movement, and I hear[d] gunshots." 8 RP at 792.

More specifically, White saw Jeffries approach Pointer and hit him. White then saw a muzzle flash from Pointer's car and then he saw a couple flashes coming from the alleyway. According to White, Jeffries never carried guns. White believed that Pointer shot Jeffries and Crump then shot at Pointer.^[7]

In Pointer's account, after he left Houston-Collazo's house, he came back to get his wallet that he had left in the kitchen. He parked in the back alley because it was closer to the kitchen. Seeing his son's toys on the ground, Pointer loaded the toys by leaning into the rear-driver-side seat. As he leaned into the seat, Pointer saw someone wearing a hoodie approach with something in his hand.

Pointer stepped out of the car and Jeffries "was right there." 11 RP at 1270. Pointer backed up when he saw Jeffries. Jeffries grabbed Pointer, pinned him against the car, and started "swinging" a gun in his hand to pistol-whip^[8] Pointer. 11 RP at 1273. Immediately after Jeffries struck Pointer on his head, the "shooting starts, and I start ducking." 11 RP at 1273. Pointer sought cover near the back of his car when he noticed a gun on the ground and picked it up. Pointer heard glass breaking and he fired the gun. Pointer claimed, "I didn't aim at nobody. I wasn't trying to shoot nobody." 11 RP at 1275. Pointer then jumped in his car and drove away amid more gunfire; he did not recall striking anyone with his car. Later, Pointer tossed the gun out of the car window.

III. Jury Instructions

As part of the self defense instructions, the State asked the trial court to give a first aggressor instruction and Pointer objected. Pointer did not elaborate on the legal basis for his objection.

The trial court gave jury instructions on self-defense, actual danger is not necessary, no duty to retreat, and the following first aggressor instruction:

No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon kill another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.

Clerk's Papers (CP) at 25. The no duty to retreat instruction stated,

It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat.

CP at 229. The actual danger not...