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MI:R 28 ZOB

IN THE COURT OF APPEALS STATE OF WASHINGTON
DIVISION III

STATE OF WASHINGTON,  )  
)  No.  29980-5-111  
Respondent,  )  
)  
v.  )  
)  ORDER GRANTING  
CHRISTOPHER MARTIN OWENS,  )  MOTION FOR  
)  RECONSIDERATION  
Appellant.  )  AND AMENDING OPINION  
)  
)  

THE COURT has considered appellants' motion for reconsideration, and is ofthe opinion the motion should be granted. Therefore, IT IS ORDERED the motion for reconsideration ofthis court's decision of February 14, 2013, is granted. IT IS ALSO ORDERED the court's opinion ofFebruary 14,2013, is amended as follows: On page 6, add the following new paragraph after the heading "A. Ocycontin Evidence": In Mr. Owens' interview with Detective Darnell, Mr. Owens repeatedly told the detective about Mr. Tyler's oxycontin use. Mr. Owens believed that Mr. Tyler continued to use oxycontin because Ms. Brown had found some oxycontin pills in Mr. Tyler's things. He explained that he was afraid of Mr. Tyler because oxycontin made him more ill-tempered and Mr. Owens' oxycontin-addicted
cousin threatened to kill his grandparents. He also said that he believed that oxycontin "destroys the soul." Exhibit 66 at 6.
On page 6, delete the last two sentences of the second paragraph which state:
Mr. Owens argues, here on appeal, that he repeatedly told Detective Darnell about Mr. Tyler's oxycontin abuse. Br. of Appellant at 18. It may be in Exhibits 65 and 66, which is apparently a recording of the interview, but that exhibit is not part of the record on appeal and so we do not know.
On page 14, delete the entire first paragraph and insert the following paragraph in its place:
Mr. Owens relies on Wanrow to argue that the court here severely restricted what perceptions Mr. Owens was allowed to share with the jury. He argues that courts frequently allow a defendant's perception of the decedent's intoxication into evidence. And so the court should have allowed similar testimony about oxycontin. He also argues that any prejudice from this error is manifest because his first trial included evidence of oxycontin use and resulted in a hung jury. He continues that the evidence, if admitted, would have shown that he feared Mr. Tyler because Mr. Tyler became more ill-tempered when on oxycontin, Mr. Owens' oxycontin-addicted cousin threatened to kill his grandparents, and Mr. Owens believed that oxycontin makes the user soulless.
DATED: March 28, 2013
FOR THE COURT:
rlVIN idKORSMO Chief Judge
2

FILED
FEB 14,2013
in the Office of the Clerk of Court
W A State Court of Appeals, Division iii

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

STATE OF WASHINGTON,  )  No.  29980-5-III  
)  
Respondent,  )  
)  
v.  )  
)  UNPUBLISHED OPINION  
CHRISTOPHER MARTIN OWENS,  )  
)  
Appellant.  )  

SWEENEY, J. -Christopher Owens shot and killed Richard Tyler with a gun that had two barrels, a .410 shotgun barrel and a .22 rifle barreL He first used the shotgun barrel to shoot Mr. Tyler in the face and, after Mr. Tyler fell, he used the .22 barrel to shoot Mr. Tyler in the back of the head. Mr. Owens presented evidence and argued that he killed Mr. Tyler to defend himself and his mother from harm, and specifically, to defend his mother from a threatened sexual assault. He presented evidence that Mr. Tyler was a cruel bully who treated his mother badly and said things that Mr. Owens and his mother interpreted as an immediate threat to inflict injury, including sexual assault. A jury listened to four days of testimony, the court's instructions, and argument of counsel. It rejected Mr. Owens defense of self-defense and found him guilty of first degree murder. We conclude that the jury was properly instructed, the court did not abuse its discretion in its various rulings on evidence, and there was no misconduct on the part of the State that would require reversal. We, therefore, affirm the conviction.
FACTS
Richard Tyler and Christopher Owens' mother, Kellie Brown, had been in a romantic relationship since 2001. They began living together in Ms. Brown's home in late 2002. Mr. Tyler had always been a bully, but his behavior escalated in 2008-he pushed Ms. Brown down a flight of stairs. The couple broke up later that year.
In December 2008, they had an argument over the phone and Ms. Brown got a domestic violence protection order. Mr. Tyler had been out of town for months, but Ms. Brown knew that he would fly back on December 23. Ms. Brown delivered Mr. Tyler's dog to Mr. Tyler's relatives and made arrangements to transfer Mr. Tyler's property to them. Ms. Brown and Mr. Owens packed Mr. Tyler's possessions into his panel truck, which was at Ms. Brown's house. Ms. Brown talked to police about serving Mr. Tyler with the protection order when he arrived at the airport. She also asked Mr. Owens to be at her house on December 23 for protection.
No. 29980-5-II1
State v. Owens
On December 23,2008, Ms. Brown and Mr. Tyler spoke on the phone. Among other things, he said that he was coming to get "what's his." II Report of Proceedings , (RP) at 674. Ms. Brown told him that she had a protection order and that he was unwelcome at her house. Later, Mr. Tyler's father and sister picked up Mr. Tyler at the airport. They went to the Department of Licensing so Mr. Tyler could renew his license tabs, but he did not have his vehicle registration. So, they drove Mr. Tyler to Ms. Brown's house to get the vehicle registration.
Mr. Tyler entered Ms. Brown's garage through an overhead door. He then entered the house through a door between the garage and the basement. Ms. Brown dialed 911 and reported that Mr. Tyler was breaking into her house. As Mr. Tyler walked up the stairs leading to a landing in this split level house, Mr. Owens shot him in the face using the .410 shotgun barrel of a gun equipped with two barrels. After Mr. Tyler fell, Mr. Owens then shot him again in the back of the head, this time using the .22 rifle barrel. At some point, Ms. Brown yelled to Mr. Owens, "don't shoot him." II RP at 630. Police arrived shortly after and saw Mr. Tyler's dead body lying face down on the stairs connecting the basement and foyer. Mr. Owens admitted that he shot Mr. Tyler.
1 I Report of Proceedings is the report of proceedings for the 2009 trial. II Report of Proceedings is the report of proceedings for the 2011 trial.
No. 29980-5-II1
State v. Owens
Detective Darin Darnell interviewed Mr. Owens later that day. Mr. Owens said
that Mr. Tyler came to the house and began shaking the front door. He then heard noise
from the garage door, which he believed his mother had jammed shut somehow. Mr.
Owens walked halfway down the stairs between the main floor living room and the foyer.
He warned Mr. Tyler not to come up the stairs and that he had a gun. Mr. Owens did not
know whether Mr. Tyler heard the warning or saw the gun. Mr. Tyler did not respond
and continued up the stairs between the basement and the foyer. Mr. Owens then shot
him from his perch on the upper stairs. Mr. Owens had never seen Mr. Tyler hurt his
mother. He told police he did not know whether Mr. Tyler would have assaulted Ms.
Brown and that he did not know what Mr. Tyler would do. He felt threatened because
Mr. Tyler had been told there was a restraining order but came into the house and did not
stop. Mr. Owens also told the police that you do not pull a gun on someone unless you
are going to use it.
The State charged Mr. Owens with first degree murder or, in the alternative,

second degree murder. The case was tried in 2009 and Mr. Owens argued that he acted
. in self-defense. The 2009 trial resulted in a hung jury. The case was again tried in 2011
and Mr. Owens again presented evidence and argued that he acted to defend himself and

his mother.
1. SELF-DEFENSE EVIDENCE
Mr. Owens testified that he saw changes in Mr. Tyler around 2008. Mr. Tyler became unpredictable and would "blow up." II RP at 665. Mr. Owens testified that he never saw Mr. Tyler assault Ms. Brown, but he did witness Mr. Tyler bully and intimidate her. He also believed that Mr. Tyler had pushed Ms. Brown down the front steps of her home. And he was generally fearful that Mr. Tyler might sexually assault Ms. Brown. When Mr. Tyler got into Ms. Brown's house on December 23, Mr. Owens was afraid for himself and his mother.
There were also statements in Mr. Owens' interview with Detective Darnell that tended to support Mr. Owens' theory of self-defense. Mr. Owens explained that he brought his gun to Ms. Brown's house because he did not want to get into a "physical fight" with Mr. Tyler. II RP at 418. He said that Mr. Tyler is "big" and is six inches taller than him. II RP at 418, 423. He repeatedly indicated that he did not want Mr. Tyler to beat up him or his mother.
Ms. Brown also testified on Mr. Owens' behalf. She testified generallv that she
~ ~
feared Mr. Tyler, Mr. Tyler had threatened her in front of Mr. Owens, Mr. Tyler assaulted her in February 2008, and that he threatened to sexually assault her in December 2008.
A. Oxycontin Evidence
1. At First Trial
At the first trial, the State moved in limine to prevent any testimony about Mr. Tyler's use of oxycontin. The State argued that the evidence was irrelevant because there was no evidence to show that oxycontin tended to make Mr. Tyler, or any other user of oxycontin, violent.
Defense counsel argued that Mr. Tyler had been a bully throughout his relationship with Ms. Brown, but he began using oxycontin and it further "sour[ ed] his disposition." I RP at 44. Counsel also said that Mr. Owens was afraid because Mr. Owens had a cousin who had threatened to kill his grandparents while on oxycontin. Mr. Owens also believed that Mr. Tyler continued to use oxycontin because Ms. Brown told Mr. Owens that she found some oxycontin pills in Mr. Tyler's things. Mr. Owens argues, here on appeal, that he repeatedly told Dete~tive Darnell about Mr. Tyler's oxycontin abuse. Br. of Appellant at 18. It may be in Exhibits 65 and 66, which is apparently a recording of the interview, but that exhibit is not part of the record on appeal and so we do not know.
No. 29980~5~III
State v. Owens
The court concluded that the evidence of oxycontin use was relevant, but "ifs too . speculative and too prejudicial at this time and not probative enough" and it granted the State's motion in limine. I RP at 168.
The State then played a recording of Detective Darnell's interview of Mr. Owens.
The State spliced the recording to exclude Mr. Owens' statements about oxycontin. The
recording indicated that Mr. Owens brought a gun to his mother's house because Mr.
Tyler was big and Mr. Owens wanted to protect his mother.
After the State played the recording, defense counsel asked the court to reconsider
its ruling excluding the oxycontin evidence. Counsel argued that the way the State
spliced the recording was misleading. Rather than the recording indicating that Mr.
Owens was afraid of Mr. Tyler because he was big and used oxycontin, which Mr.
Owens asserts is what he told Detective Darnell, the spliced recording gave the
impression that the only reason he feared Mr. Tyler was Mr. Tyler's size. I RP at 272.
The court granted the motion for reconsideration and allowed evidence of the oxycontin
use. I RP at 277.
2. At Second Trial
In the second trial, the court ruled that it would exclude evidence that Mr. Tyler
used oxycontin. Mr. Owens again moved for reconsideration and argued that the

evidence was relevant to the reasonableness of Mr. Owens' actions. Specifically, counsel wanted the jury to know that:

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