Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                  FILED

                                                              MAR 29, 2012

                                                        In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29513-3-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
MERLE WILLIAM HARVEY,                           )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  This appeal follows convictions for first degree murder, second 

degree murder, and two counts of unlawful possession of a firearm.  The appellant

assigns error to police witnesses' use of the word "victim" to refer to the two men the 

appellant shot and killed.  We conclude that this was not a comment on the appellant's 

guilt or his defense -- self-defense.  The appellant also assigns error to the court's decision 

to admit evidence of his flight, and the theft of cars to further that flight.  We conclude 

that the evidence was appropriately admitted.  We therefore affirm the convictions.

                                            FACTS

       Merle Harvey shot and killed Jack Lamere and Jacob Potter.  The State charged  

No. 29513-3-III
State v. Harvey

Mr. Harvey with two counts of first degree murder and two counts of unlawful possession 

of a firearm.  Mr. Harvey admitted that he shot the men, but claimed he did so in self-

defense.  Witnesses for the State and for the defense offered different versions of the 

shooting.  

       Diana Richardson drove Mr. Harvey away from the scene of the shooting.  Mr. 

Harvey abandoned the getaway truck in Spokane.  Mr. Harvey and Ms. Richardson

traveled to Idaho in one stolen car and then traveled to the Tri-Cities in another stolen 

car.  They were on their way to Oregon when they caught the attention of the Kennewick 

police.  Ms. Richardson drove so as to elude the Kennewick police; Mr. Harvey was in 

the passenger seat.  Police tracked the couple down and arrested Mr. Harvey two weeks 

after the shooting. 

       At trial, the State introduced evidence of Mr. Harvey's flight.  A jury found Mr. 

Harvey guilty of first degree murder for Mr. Lamere's death and second degree murder 

for Mr. Potter's death, as well as two counts of unlawful possession of a firearm. 

                                        DISCUSSION

       Mr. Harvey appeals and argues that the evidence of his flight was not sufficiently 

probative to outweigh the potential prejudice.  Mr. Harvey also argues that use of the 

term "victim(s)" by some of the State's witnesses amounted to improper opinion 

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No. 29513-3-III
State v. Harvey

testimony on Mr. Harvey's guilt.  

Word "Victim" not a Comment on Guilt

       Mr. Harvey contends that police witnesses' reference to the people he shot and 

killed as "victims" amounted to a comment on the evidence particularly since his defense 

was self-defense.  We review the court's decisions to admit or exclude evidence for abuse 

of discretion.  State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).  We 

ultimately conclude that referring to the two men who died from gunshot wounds as 

victims did not amount to an opinion of guilt for a few reasons.  

       First, the use of victim here was not framed as opinion testimony.  Opinion 

testimony is "'[t]estimony based on one's belief or idea rather than on direct knowledge 

of facts at issue.'"  Id. at 760 (quoting Black's Law Dictionary 1486 (7th ed. 1999). The 

questions that prompted the use of victim were: 

       ?      "[A]fter you arrived on scene, what was the next step you took, sir?"  
              Report of Proceedings (RP) at 322.

       ?      "[W]hat are the standard procedures you follow when you're one of the 
              first to arrive on a crime scene, Corporal?" RP at 323.

       ?      "[W]hat information did you receive when you were called at home?" RP 
              at 732.

       ?      "When you arrived at the scene at 1310 West Boone at you said 2230 
              hours, could you tell us what you saw?" RP at 733.  

       ?      "Who all did you talk to?  Do you remember the officers and/or 

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No. 29513-3-III
State v. Harvey

              detectives?" RP at 831.

These questions do not ask the witness to give an opinion on guilt or anything else.  

Witnesses referred to Mr. Lamere, Mr. Potter, and those who saw the shooting as

"victims," while explaining the actions of police when the investigation began.  

       Second, victim does not necessarily refer to the victim of a crime.  One of the 

definitions of victim is "someone put to death, tortured, or mulcted by another."  

Webster's Third New International Dictionary 2550 (1993).  Other definitions include:

"anyone who suffers either as a result of ruthless design or incidentally or accidentally";

"someone who suffers death, loss, or injury in an undertaking of his own"; "someone 

tricked, duped, or subjected to hardship"; and "a living being sacrificed to some deity or 

in the performance of a religious rite."  Id. The Delaware Supreme Court has concluded 

that the term victim "is a term of art synonymous with 'complaining witness'" for law 

enforcement.  Jackson v. State, 600 A.2d 21, 24-25 (Del. 1991). And that appears to us 

to be the way the term was used here.  The decedents were also referred to variously by 

name and as "subjects." RP at 528.

       Moreover, common use of "victim" suggests that anybody with a gunshot wound 

is a victim.  Here, Mr. Lamere and Mr. Potter were certainly victims of gunshot wounds, 

whether it was Mr. Harvey's or their own fault that they received the wounds.  We 

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No. 29513-3-III
State v. Harvey

conclude then that referring to the men who died from gunshot wounds as victims does 

not amount to opinion testimony. 

       Further the testimony "must relate to the defendant" to be an opinion on a 

defendant's guilt.  State v. Wilber, 55 Wn. App. 294, 298, 777 P.2d 36 (1989).  For 

example, a police officer talking about how a police dog tracked a defendant's "guilt 

scent" was inadmissible opinion testimony.  State v. Carlin, 40 Wn. App. 698, 703, 700

P.2d 323 (1985).  And we have also held that an ambulance driver's testimony that a 

defendant was "calm and cool" when hearing about his wife's death was inadmissible 

opinion testimony on guilt.  State v. Haga, 8 Wn. App. 481, 490, 507 P.2d 159 (1973). 

And in State v. Black, for example, a rape counselor's testimony that the alleged victim 

suffered from "'rape trauma syndrome,'" was held inadmissible, not only because the 
evidence did not pass the Frye1 test, but also because such testimony would "'invade the 

jury's province of fact-finding and add confusion rather than clarity.'" 109 Wn.2d 336,

350, 745 P.2d 12 (1987) (quoting State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982)).   

The testimony at issue here did not relate to the defendant. 

       Ultimately, we do not know and cannot know what effect, if any, the reference by 

police or first responders to the deceased as "victims" had.  We are asked to conclude that 

use of the term victim expressed an opinion of guilt.  But it may also simply be, as the 

       1 Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (1923).  

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No. 29513-3-III
State v. Harvey

State suggests, a shorthand reference to the recipient of a bullet.  Again, the officers also 

referred to the decedents as subjects or used their proper names.  We cannot conclude 

that the jury would infer the officers' opinion of guilt from the use of that term and 

therefore that the defendant was prejudiced by the use of that term.  It is more accurately 

described as a term of art.  Jackson, 600 A.2d at 24-25. The jury must be given credit for 

following the instructions here on the presumption of innocence, self-defense, and the 

absence of a first aggressor instruction.  We will not conclude that the use of the term 

"victim" was calculated to express an opinion of Mr. Harvey's guilt.  

Evidence of Flight

       Mr. Harvey contends that the court abused its discretion by refusing to suppress 

evidence of his flight. He argues that the court failed to consider the relevance and 

whether the probative value substantially outweighed the prejudice.  

       We review a trial court's decision to admit evidence for abuse of discretion.  State 

v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007) (citing State v. DeVincentis, 150 

Wn.2d 11, 17, 74 P.3d 119 (2003); State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 

(2002)).  

       Evidence is relevant if it has "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 

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No. 29513-3-III
State v. Harvey

it would be without the evidence." ER 401.  Evidence that Mr. Harvey left the scene as 

Ms. Richardson's passenger, was involved in eluding the police, and stole two cars makes 

his unlawful killing of Mr. Lamere and Mr. Potter more probable than it would be 

without the evidence.  See ER 401; State v. Price, 126 Wn. App. 617, 645, 109 P.3d 27 

(2005) (concluding that evidence defendant traveled out of state and shaved off his hair 

relevant to his consciousness of guilt over murder).  

       Evidence of "other crimes, wrongs, or acts" is admissible so long as they are not 

admitted to show that a defendant's actions conformed with his character. ER 404(b). 

Evidence of a defendant's flight after the commission of a crime is admissible to show "a 

consciousness of guilt or . . . a deliberate effort to evade arrest and prosecution."  Price, 

126 Wn. App. at 645. Of course, this evidence is inadmissible "if its probative value is 

substantially outweighed by the danger of unfair prejudice." ER 403.  To be more 

probative than prejudicial, the inference between flight and consciousness of guilt or 

deliberate effort to evade arrest and prosecution must be "'substantial and real' not 

'speculative, conjectural, or fanciful.' State v. Bruton, 66 Wn.2d 111, 112-13, 401 P.2d 

340 (1965).  The evidence must be sufficient so as to create a reasonable and substantive 

inference that defendant's departure from the scene was an instinctive or impulsive 

reaction to a consciousness of guilt or was a deliberate effort to evade arrest and 

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No. 29513-3-III
State v. Harvey

prosecution."  Price, 126 Wn. App. at 645.  The inference that the flight here was a 

deliberate effort to evade arrest and prosecution is substantial and real.  

       Mr. Harvey posits a different and more nuanced analytical approach to evaluate 

the probative value of the evidence here.  He wants us to ask whether the inference 

between flight and deliberate effort to evade arrest and prosecution is substantial and real, 

but by looking at "'the degree of confidence with which four inferences can be drawn.'"  

See State v. McDaniel, 155 Wn. App. 829, 854, 230 P.3d 245 (quoting State v. Freeburg, 

105 Wn. App. 492, 498, 20 P.3d 984 (2001)), review denied, 169 Wn.2d 1027 (2010).  

Those four inferences are:  "(1) from the defendant's behavior to flight; (2) from flight to 

consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt

concerning the crime charged; and (4) from consciousness of guilt concerning the crime 

charged to actual guilt of the crime charged."  Freeburg, 105 Wn. App. at 498 (citing 

United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).  But deliberate efforts to 

evade arrest are also probative of guilt.  See Bruton, 66 Wn.2d at 112-13.

       Mr. Harvey complains that the probative value of flight from the scene of this 

shooting was not enough to balance its prejudice since someone other than him drove the 

getaway car. Br. of Appellant at 10-11. Evidence of a person other than the defendant 

driving a getaway car may not be probative of the defendant's guilt.  McDaniel, 155 Wn. 

                                               8 

No. 29513-3-III
State v. Harvey

App. at 855.  But here the flight began, not while the girl friend was already driving, but 

while Mr. Harvey was still outside the truck.  Ms. Richardson was sitting in the passenger 

seat when Mr. Harvey shot Mr. Lamere and Mr. Potter.  Mr. Lamere was standing outside 

the truck as he fired.  The truck then took off quickly.  Here, there is a substantial and 

real inference that Mr. Harvey deliberately evaded arrest by jumping into a truck driven 

by his girl friend and then leaving the scene, minutes if not seconds, after he shot two 

people.  See Price, 126 Wn. App. at 645.  The court did not abuse its discretion in 

admitting this evidence.

       Stealing two cars and using them to go to a different state and a different city is 

similarly admissible.  Evidence that a murder suspect traveled out of state and changed 

his appearance has been held admissible because the evidence supports a reasonable 

inference that the defendant was deliberating avoiding prosecution.  Id. at 642.  The

evidence here also creates a reasonable and substantial inference that Mr. Harvey 

deliberately evaded arrest and prosecution.  Mr. Harvey changed cars and traveled out of 

state in the days and weeks following the shooting.  This is probative of guilt.  See id. at 

645.  Mr. Harvey testified that he was just scared.  RP at 1081.  And that may be.  But 

what inferences should be drawn from his leaving the scene and evading police were for 

the jury not us.  See State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).  The 

                                               9 

No. 29513-3-III
State v. Harvey

trial court did not abuse its discretion when it admitted evidence that Mr. Harvey traveled 

out of state in two stolen cars.  

Statement of Additional Grounds (SAG)

       SAG 1.  Mr. Harvey argues that the trial court failed to instruct the jury that the 

State must prove an absence of self-defense beyond a reasonable doubt.  He is mistaken. 

The court did instruct the jury that the State must prove "absence of [self-]defense beyond 

a reasonable doubt." CP at 293. 

       SAG 2. Mr. Harvey argues that the trial court incorrectly instructed the jury that it 

must unanimously answer "no" to find that Mr. Harvey was not armed with a firearm 

when killing Mr. Lamere and Mr. Potter.  The court instructed the jury: "If you 

unanimously agree that the answer to the question is "no" or if after full and fair 

consideration of the evidence you are not in agreement as to the answer, you must fill in 

the blank with the answer "no." This instruction clearly tells the jury that it must answer 

"no" if it cannot come to a unanimous decision.

       SAG 3. Mr. Harvey argues that the trial court failed to dismiss one of two 

unlawful possession of firearm charges in violation of double jeopardy principles.  RCW 

9.41.040(7) provides that "[e]ach firearm unlawfully possessed under this section shall be 

a separate offense." The evidence at trial showed that Mr. Harvey possessed a .22 caliber 

                                               10 

No. 29513-3-III
State v. Harvey

firearm and a .30-06 caliber firearm.  There is no double jeopardy here because each 

unlawful possession of a firearm charge corresponded to possession of a different 

firearm.

       SAG 4. Mr. Harvey argues that CrR 6.15, his right to be present at trial, and his 

right to a public trial were violated when the trial court answered two inquiries from the 

jury outside the presence of counsel and Mr. Harvey, and presumably in chambers.  One 

inquiry asked, "According to the testimonies of L. Averill and M. Harvey did Jack 

Lemere have his gun on his person when Merle Harvey put together the .22?" CP at 252.  

The other inquiry asked, "More detailed definition between premeditation and intent?"  

CP at 253. The trial court answered, "Please reread your instructions and continue to 

deliberate" to both.  RP at 252-53.  

       The trial court did violate CrR 6.15 by failing to notify the parties of the questions.  

However, any error was harmless because the court's instruction "was neutral, simply 

referring the jury back to the previous instructions."  State v. Langdon, 42 Wn. App. 715, 

717-18, 713 P.2d 120 (1986).  

       Mr. Harvey had a right to be present at all "critical stages" of trial.  A critical stage 

is one where the defendant's presence has a reasonably substantial relationship to 

fulfilling his opportunity to defend himself.  In re Pers. Restraint of Benn, 134 Wn.2d 

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No. 29513-3-III
State v. Harvey

868, 920, 952 P.2d 116 (1998).  Hearings involving purely legal issues are not critical 

stages of trial, so Mr. Harvey was not entitled to be present when the court answered the 

jury's first question.  See In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 

835, clarified, 123 Wn.2d 737, 870 P.2d 964 (1994).  The trial court would have invaded 

the jury's province as fact finder by telling it whether Mr. Lamere was armed when Mr. 

Harvey assembled the .22 caliber weapon.  The trial court had no choice but to answer 

the second question as it did.  Mr. Harvey's presence did not have a reasonably 

substantial relationship to his defense of the charges.  His right to be present at trial was 

not violated.  

       The right to a public trial applies to adversary proceedings including the 

disposition of evidentiary issues.  However, the right does not apply to the resolution of 

"'purely ministerial or legal issues that do not require the resolution of disputed facts.'"  

State v. Sublett, 156 Wn. App. 160, 181, 231 P.3d 231 (quoting State v. Sadler, 147 Wn. 

App. 97, 114, 193 P.3d 1108 (2008)), review granted, 170 Wn.2d 1016 (2010).  Again, 

one jury question was purely legal in nature.  And, by referring the jury to its own 

instructions when the court was presented with a factual question it could not answer, the 

trial court resolved a ministerial issue.  Mr. Harvey's right to a public trial was not 

violated.

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No. 29513-3-III
State v. Harvey

       SAG 5 and 13.  Mr. Harvey contends that he was not present for hearings on 

May 10, 2010 and September 10, 2010 and that this violated his right to be present at 

trial.  However, a transcript from the May 10 hearing and any order signed that day is not 

in the record.  Also, the record is unclear as to whether Mr. Harvey was present at the 

September 10 hearing.  Mr. Harvey suggests that he was not present at the pretrial hearing 

because the court told defense counsel that court could be recessed so that defense 

counsel could speak with him regarding a stipulation.  While that could indicate Mr. 

Harvey was not present, it could also indicate that the court merely wanted to 

accommodate Mr. Harvey so that his counsel could advise him in private, rather than in 

an open courtroom.  The record is insufficient to support Mr. Harvey's arguments. 

       SAG 6 and 8. Mr. Harvey argues that the amended information did not provide 

him with sufficient notice because it did not inform him that he could be convicted of 

second degree murder with a firearm enhancement as an alternative to first degree murder 

with a firearm enhancement.  RCW 10.61.003 provides that a person may be convicted of 

offenses of a lesser degree of the crime charged in the information.  This statute provided 

Mr. Harvey with sufficient notice.  State v. Garcia, 146 Wn. App. 821, 829-30, 193 P.3d 

181 (2008).  

       SAG 7. Mr. Harvey argues that the trial court's ruling that spectators had to leave 

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No. 29513-3-III
State v. Harvey

the courtroom to accommodate a large jury pool violated his right to a public trial.  An 

order that spectators may not view voir dire due to a courtroom's space and the size of the 

jury pool can be reversible error.  See In re Pers. Restraint of Orange, 152 Wn.2d 795, 

100 P.3d 291 (2004); State v. Njonge, 161 Wn. App. 568, 578-79, 255 P.3d 753 (2011).  

But there is no such ruling in this record.  

       SAG 9. Mr. Harvey argues that charging two counts of murder with firearm 

enhancements and two counts of unlawful possession of a firearm placed him in jeopardy 

twice for the same conduct.  It did not.  These charges seek to punish different conduct.  

The murder charges punished killing another using a firearm.  The unlawful possession of 

a firearm charges punished unlawful possession of a firearm.  A person who murders with 

a firearm did not necessarily possess that firearm unlawfully.  Charging Mr. Harvey with 

both crimes did not violate double jeopardy. 

       SAG 10 and 11. Mr. Harvey claims that his trial counsel was ineffective.  He 

claims that defense counsel failed to investigate whether Mr. Harvey knowingly gave up 

his right to possess a firearm in a prior case and that counsel failed to timely give the 

State its expert witness list.  To successfully claim ineffective assistance of counsel, Mr. 

Harvey must show that "(1) defense counsel's representation was deficient, i.e., it fell 

below an objective standard of reasonableness based on consideration of all the 

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No. 29513-3-III
State v. Harvey

circumstances; and (2) defense counsel's deficient representation prejudiced the 

defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional 

errors, the result of the proceeding would have been different."  State v. McFarland, 127 

Wn.2d 322, 334-35, 899 P.2d 1251 (1995).  

       The record does not show whether counsel actually did fail to investigate anything.  

And a claim of ineffective assistance of counsel that relies on facts outside the record 

must be raised in a personal restraint petition, not in a direct appeal.  Id. at 335.  

Moreover, the stipulation here avoided the need to disclose to the jury that Mr. Harvey 

had been convicted of first degree assault with a firearm.  So using the stipulation was 

reasonable regardless of any failure to investigate.  

       Failing to provide the State with a witness list is no doubt not good practice but 

here there is no showing of how Mr. Harvey was prejudiced.  That is, there is no showing 

of how his trial could or would have been resolved differently had counsel provided the 

list promptly. 

       SAG 12. Mr. Harvey argues that continuing his trial date from June 7 to 

September 9, 2010, violated his right to a speedy trial.  Mr. Harvey asserted his speedy 

trial right on April 16, 2010 and objected to any continuance beyond June 9, 2010.  On 

May 7, 2010, the State moved for a continuance because its lead detective, forensic 

                                               15 

No. 29513-3-III
State v. Harvey

witness, and the prosecutor had prescheduled vacations in June.  The prosecutor also had 

an out-of-county training scheduled.  CP at 5-6. The court's order on this motion is not 

in the record.  However, the unavailability of counsel and witnesses is generally good 

cause for a continuance and and such continuances do not violate speedy trial rights.  See 

State v. Brown, 40 Wn. App. 91, 94-95, 697 P.2d 583 (1985); State v. Day, 51 Wn. App. 

544, 548-50, 754 P.2d 1021 (1988).  

       SAG 14. Finally, Mr. Harvey argues that his right to procedural due process was

violated and his appellate counsel was ineffective because counsel failed to provide him 

with certain court records.  He presumes that this violates his right to receive trial records 

to prepare a statement of additional grounds.  As an indigent person, Mr. Harvey is 

entitled to (1) a "record of sufficient completeness" for effective appellate review of his 

claims and (2) "'as adequate and effective an appellate review as that given appellants 

with funds.'"  State v. Thomas, 70 Wn. App. 296, 298-99, 852 P.2d 1130 (1993) (quoting 

Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962); 

Draper v. Washington, 372 U.S. 487, 496, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963)).  A 

record of sufficient completeness does not necessarily mean the entire trial record.  See 

Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971).  

Here, Mr. Harvey received trial records through his counsel and was allowed to file a 

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No. 29513-3-III
State v. Harvey

statement of additional grounds.  His procedural due process right was not then violated.

       Regarding ineffective assistance of counsel, appellate counsel is not required to 

order a transcript of voir dire.  RAP 9.2(b).  But again the conduct complained of is 

outside the record.  

       We affirm the convictions.

       A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to 

RCW 2.06.040.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________                    _______________________________
Kulik, C.J.                                         Korsmo, J.

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