State Of Washington v. Brent Luyster ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
December 17, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51288-2-II
Respondent, UNPUBLISHED OPINION
v.
BRENT LUYSTER,
Appellant.
GLASGOW, J. — Brent Luyster shot four people, three of them fatally. Luyster and the
victims, as well as some family members, had gathered at the home of Joseph Lamar to wish
Luyster well because they believed he might be taken into custody soon. Two men and two women
were shot. One of the women survived, and she identified Luyster as the shooter, both that night
and at trial.
The jury returned verdicts finding Luyster guilty of three counts of aggravated first degree
murder, one count of attempted first degree murder, first degree unlawful possession of a firearm,
and second degree unlawful possession of a firearm. Luyster appeals contending that the trial
court violated his right to counsel by denying his motion to substitute counsel. He also argues that
No. 51288-2-II
the trial court erred by failing to suppress evidence seized pursuant to a search warrant that Luyster
asserts lacked probable cause. Luyster also appeals his sentence, contending that certain legal
financial obligations must be stricken from his judgment and sentence in light of recent statutory
amendments. Luyster raises various arguments for reversal of his convictions in a statement of
additional grounds for review.
We affirm Luyster’s convictions but remand solely for the trial court to strike the
challenged legal financial obligations from his judgment and sentence.
FACTS
Brent Luyster lived with his mother, Susan Dvorak, and his brother, Michael Luyster, in
Michael’s house in Woodland, Washington.1 Luyster moved into the house in July 2016 with his
girlfriend, Andrea Sibley, and their toddler son. Luyster also has other children from prior
relationships, including another son who was around 12 years old at the time. Sibley’s father,
Paul,2 helped the couple move some of their possessions to a storage unit located just down the
street from the Woodland house.
During this time, Luyster had a pending criminal charge in Cowlitz County for allegedly
assaulting a former girlfriend. Luyster was out of jail on bail provided by his friends Zachary
Thompson and Joseph Lamar. On July 15, 2016, Luyster’s attorney told him that his Cowlitz
County charge was going to be picked up by the federal government. Luyster was upset about this
and told his friends and family that he believed the federal charge would result in his imminent
arrest.
1
For clarity, we refer to Michael Luyster by his first name.
2
For clarity, we refer to Paul Sibley by his first name.
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No. 51288-2-II
Early that afternoon, Sibley drove Luyster’s two sons in her gold Ford Explorer to a house
in Vancouver where Luyster and several of his friends and family were having a get together.
Thompson and his girlfriend, Brienne Leigh, were among the guests. At some point during the
get together, Lamar called Thompson and said that he wanted to see Luyster “before he goes
away.” Verbatim Report of Proceedings (VRP) at 532. Thompson then drove Leigh and Luyster
to Lamar’s home in Woodland. On the way to Lamar’s home, Luyster asked for Thompson’s gun
and commented: “You guys know I would never hurt you, right[?]” VRP at 537. Lamar and his
girlfriend, Janell Knight, were at the house when they arrived. The group drank and socialized.
Sibley left the Vancouver get together at around nine that evening and drove to Lamar’s
home with the children to pick up Luyster. Leigh and Knight took the 12 year old into the house
to make him some food, while Sibley waited in her vehicle with the toddler. Luyster, Thompson,
and Lamar remained outside the house and talked.
About 10 minutes later, Leigh heard two gunshots and went to tell the men to knock it off.
As Leigh walked toward the door, Luyster came inside and shot her in the face. Sibley was sitting
in the driver’s seat of her vehicle with the toddler still in the back seat when she heard several
gunshots and felt her driver’s side window shatter all over her. Shortly thereafter, Luyster and his
12-year-old son got into the car, and Luyster told Sibley to “[g]et out of here. Go.” VRP at 1642.
Luyster’s son appeared scared and was shaking. Sibley drove to Michael’s house.
Leigh survived the gunshot to her face and woke up in a puddle of her blood, severely
injured. Leigh saw that Knight had been shot and was dead on the couch. Leigh unsuccessfully
looked for her phone to call 911 before driving to a nearby gas station.
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No. 51288-2-II
Paula Langer, a registered nurse and former paramedic, was at the gas station when Leigh
arrived. Langer provided Leigh with medical care while they waited for police and an ambulance
to arrive. Leigh had difficulty communicating due to the nature of her injuries. But when police
arrived, Leigh was able to convey that the shooting took place at Lamar’s residence. Leigh was
later transported to a hospital for emergency treatment. While hospitalized, police asked Leigh if
she knew who had shot her; Leigh wrote down Luyster’s name and that he was “in some big trouble
with the feds.” VRP at 1162-64.
Officers went to Lamar’s house at around 11:00 p.m. that evening and saw Lamar’s and
Thompson’s deceased bodies in the driveway, as well as Knight’s deceased body on a couch in
the house. Thompson had a gunshot wound on the left side of his neck, Lamar had a gunshot
wound on the left side of his head, and Knight had gunshot wounds on her right cheek and on the
right side of her neck.
Meanwhile, after Luyster, Sibley, and the children arrived at Michael’s house, Dvorak
called Michael and asked him to come pick up the 12 year old. At around 11:30 p.m. that evening,
Luyster, Sibley, and the toddler left the house and drove in Sibley’s Explorer to another relative’s
home in Ocean Park. While at the Ocean Park home, Luyster saw a news report on the television
stating that police were searching for him as a suspect in the murders of Thompson, Lamar, and
Knight.
Luyster and Sibley left with the toddler in Sibley’s Explorer early that morning. Early that
afternoon, they stopped at Abernathy Creek, walked down a slope to a creek, and laid down a
blanket.
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No. 51288-2-II
A maintenance worker in the area saw Sibley’s Explorer and called 911. Several law
enforcement officers responded to the 911 call and arrested Luyster without incident. After his
arrest, police executed a warrant to search Sibley’s storage unit located near Michael’s home.
Inside the storage unit, police found an empty case for a Kimber Raptor II pistol, part of an
instruction manual for a Kimber firearm, and tools used to clean and maintain firearms.
On July 27, 2016, the State charged Luyster by amended information with three counts of
aggravated first degree murder, attempted first degree murder, first degree unlawful possession of
a firearm, and second degree unlawful possession of a firearm. Because the State was seeking the
death penalty, the trial court appointed two attorneys to represent Luyster, Joel Yoseph and Edward
Dunkerly.
At a March 6, 2017 hearing, the State informed the trial court that it was no longer seeking
the death penalty. Defense counsel filed a motion for the continued appointment of co-counsel,
which the trial court denied. When the trial court asked which defense attorney would be staying
on to represent Luyster, Yoseph and Dunkerly both said that they would be seeking to withdraw.
The trial court granted Yoseph’s and Dunkerly’s withdrawal motions and appointed Jeff Barrar as
Luyster’s defense counsel.
At a March 8 hearing, Luyster requested that the trial court reconsider its decision allowing
Yoseph and Dunkerly to withdraw and appointing Barrar as counsel. Luyster said that Yoseph
and Dunkerly had been working on his case for eight months and that he had confidence in their
representation. Luyster also said that he believed Barrar had a conflict. The following day, Barrar
requested to withdraw from representation based on his inability to communicate with Luyster.
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No. 51288-2-II
The trial court granted Barrar’s withdrawal motion and appointed Charles Buckley as Luyster’s
defense counsel.
A few months later, Buckley filed a motion for the appointment of co-counsel. The trial
court granted the motion and appointed Steven Rucker as co-counsel.
On June 27, Luyster wrote a letter to the trial court that again asked it to reappoint Yoseph
and Dunkerly as his defense counsel or, in the alternative, appoint new defense counsel. Luyster’s
letter said that he was having trouble effectively communicating with Buckley, that Buckley
refused to request that Dunkerly be appointed as co-counsel because of a personal conflict between
the attorneys, and that he believed Rucker could not adequately prepare for trial.
The trial court addressed Luyster’s letter at a hearing. Buckley disagreed with Luyster’s
assertion that there was a complete breakdown in communication. Buckley said that he was
communicating with Luyster on a weekly basis, they were able to work through certain
disagreements, and the defense was on course to be fully prepared for the October trial date. The
trial court denied Luyster’s request to reappoint Yoseph and Dunkerly, noting that both attorneys
had cases set for the fall and would not be available to represent him. The trial court also denied
Luyster’s request to appoint new counsel, noting that it did not have an adequate basis to do so.
On August 29, Luyster filed a pro se motion to discharge his defense counsel and reappoint
Yoseph and Dunkerly. Luyster’s pro se motion again alleged a communication breakdown and
largely repeated the complaints contained in his June 27 letter. The motion further alleged that
Buckley had appeared angry at him after bringing his concerns to the trial court in the June 27
letter. Luyster’s motion also alleged that Rucker had admonished him for sending the June 27
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No. 51288-2-II
letter, that Rucker violated the rules of professional conduct by telling him the details of another
defendant’s case, and that Rucker fired a defense investigator for no apparent reason.
At the hearing addressing Luyster’s motion, Rucker said that he was vigorously preparing
for trial and that he believed he could continue representing Luyster. Rucker told the trial court
that the office of indigent defense made the decision to discharge one of the two investigators
assigned to assist Luyster’s defense because it was not a good use of resources. Buckley told the
trial court that he did not believe there was a communication issue with Luyster but that he could
not speak to Luyster’s apparent lack of trust in his defense team. The trial court denied Luyster’s
motion but encouraged defense counsel to provide Luyster with information more rapidly.
Before trial, Luyster moved to suppress evidence seized from his storage unit. Luyster
argued that the affidavit in support of the search warrant lacked probable cause because it did not
contain sufficient information to establish the reliability of two people who had provided
supporting information: Paul and the owner of the storage business, whose name was not revealed.
The search warrant affidavit stated that Sibley told police that she and Luyster moved into
Michael’s house a couple of weeks before the incident. The affidavit also stated that Paul told a
police detective that he had helped Sibley and Luyster move into Michael’s home, he helped the
couple move some of their belongings into a storage unit across the road from Michael’s home,
and the storage unit was in Sibley’s name. Paul provided a specific description of the location of
Sibley’s storage unit, and a police detective confirmed with the unnamed owner of the storage
business that Sibley began renting storage unit number 36 approximately two weeks before. The
affidavit concluded it was likely that Luyster and Sibley had accessed the storage unit when
preparing to flee the area based on the storage unit’s proximity to their residence and the amount
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No. 51288-2-II
of items found in Sibley’s vehicle when police recovered it. The trial court denied Luyster’s
suppression motion.
The matter proceeded to trial, at which witnesses testified consistent with the facts stated
above. The jury returned verdicts finding Luyster guilty of three counts of first degree murder,
one count of attempted first degree murder, first degree unlawful possession of a firearm, and
second degree unlawful possession of a firearm.
At sentencing, the trial court found Luyster was indigent and did not have a likely ability
to pay financial obligations. The trial court imposed legal financial obligations that included a
$200 criminal filing fee, a $250 jury demand fee, and a $100 DNA collection fee. Luyster appeals
from his convictions and resulting sentence.
ANALYSIS
I. RIGHT TO COUNSEL
Luyster first contends that the trial court violated his right to counsel by denying his
motions to substitute his appointed defense attorneys. Because the trial court acted within its
discretion when denying Luyster’s motions, we disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution provide criminal defendants with the right to counsel. The constitutional
right to counsel does not, however, provide indigent defendants with the right to choose a particular
advocate. State v. Varga, 151 Wash. 2d 179, 200, 86 P.3d 139 (2004).
A defendant must show good cause to justify replacing their appointed defense counsel.
Id. A conflict of interest, an irreconcilable conflict, or a complete breakdown in communication
between the defendant and defense counsel constitutes good cause, for example. Id. In general,
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No. 51288-2-II
“a defendant’s loss of confidence or trust in his counsel is not sufficient reason to appoint new
counsel.” Id.
We review a trial court’s refusal to appoint new counsel for an abuse of discretion. State
v. Lindsey, 177 Wash. App. 233, 248, 311 P.3d 61 (2013). A trial court abuses its discretion when
its decision is manifestly unreasonable or based on untenable grounds. Id. at 249. When reviewing
a trial court’s refusal to appoint new counsel, we consider the timeliness of the motion, the
adequacy of the trial court’s inquiry, and the extent of the conflict. Id. Upon consideration of
these factors, we conclude that the trial court did not abuse its discretion when denying Luyster’s
motions to substitute counsel.
In this case, the only issues in dispute involve the adequacy of the trial court’s inquiry and
the extent of the conflict between Luyster and his defense attorneys.
A. Adequacy of the Inquiry
When a trial court is informed of a conflict between a defendant and counsel, it is obligated
to thoroughly inquire about the factual basis of the defendant’s dissatisfaction with counsel. State
v. Thompson, 169 Wash. App. 436, 461, 290 P.3d 996 (2012). The trial court must make a
“meaningful” inquiry that includes a “full airing” of the defendant’s concerns. State v. Cross, 156
Wash. 2d 580, 610, 132 P.3d 80 (2006), abrogated on other grounds by State v. Gregory, 192 Wash. 2d
1, 427 P.3d 621 (2018).
Here, the trial court reviewed Luyster’s substitution motions and provided Luyster an
opportunity to fully air his concerns at two separate hearings. The trial court also asked defense
counsel to respond to Luyster’s concerns. This was an adequate inquiry. Although Luyster
appears to contend that the trial court should have asked questions regarding an alleged personal
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No. 51288-2-II
conflict between a member of his defense team and a member of his previous defense team, he
cites no case law supporting his contention. Nor does he establish how the alleged personal
conflict would have any impact on his then-current defense counsel’s ability to adequately
represent Luyster at trial. Accordingly, an inquiry into the alleged personal conflict would not
reveal good cause to substitute counsel and was irrelevant to the trial court’s determination of
whether substitution was warranted.
B. Extent of the Conflict
To warrant substitution of counsel, a defendant must show that the alleged conflict with
counsel would prevent the presentation of an adequate defense. State v. Stenson, 132 Wash. 2d 668,
734, 940 P.2d 1239 (1997). Luyster contends that a complete breakdown in communication
warranted substitution of counsel. The record does not support this contention.
When asked about Luyster’s assertion of a communication breakdown at the first hearing,
defense counsel disagreed with Luyster’s assessment, explaining that they were communicating
with him on a weekly basis. At the second hearing, counsel again said that they did not perceive
any issues with communication, stating that Luyster’s issues appeared to be with his lack of trust.
The trial court advised counsel to promptly provide Luyster with witness interview transcripts in
an attempt to resolve Luyster’s perception of a communication breakdown. Although Luyster
perceived that there was a communication issue with his defense attorneys, the record shows that
defense counsel were meeting regularly with him to prepare his defense. He has thus failed to
show a complete breakdown in communications preventing the presentation of an adequate
defense and warranting the substitution of counsel. Stenson, 132 Wash. 2d at 734.
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No. 51288-2-II
Subsequent proceedings further demonstrate that there was not a complete communication
breakdown between Luyster and his defense counsel. When Luyster expressed frustration with
being shackled during meetings with his attorneys, his defense counsel moved to allow him to be
unshackled and signed liability waivers to achieve this aim. Luyster did not further allege any
communication issues following the trial court’s denial of his second substitution motion.
Having considered the relevant factors, we hold that the trial court acted within its
discretion when it denied Luyster’s motions to substitute counsel.
II. SUPPRESSION MOTION
Next, Luyster contends that the trial court erred when it denied his motion to suppress
evidence seized from the storage unit because, he argues, the affidavit in support of the search
warrant lacked probable cause. Specifically, Luyster asserts that the affidavit failed to establish
the reliability of Paul and the unnamed owner of the storage business. We disagree.
We review de novo a trial court’s legal conclusion regarding whether an affidavit supported
probable cause to issue a search warrant. State v. Neth, 165 Wash. 2d 177, 182, 196 P.3d 658 (2008).
But our de novo review gives great deference to the issuing judge’s assessment of probable cause
and resolves any doubts in favor of the search warrant’s validity. State v. Chenoweth, 160 Wash. 2d
454, 477, 158 P.3d 595 (2007).
A search warrant may be issued only if the supporting affidavit shows probable cause.
State v. Thein, 138 Wash. 2d 133, 140, 977 P.2d 582 (1999). “To establish probable cause, the
affidavit must set forth sufficient facts to convince a reasonable person of the probability the
defendant is engaged in criminal activity and that evidence of criminal activity can be found at the
place to be searched.” State v. Lyons, 174 Wash. 2d 354, 359, 275 P.3d 314 (2012).
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When determining whether probable cause existed to issue a search warrant where
information was supplied by an informant, we apply the Aguilar-Spinelli3 two-pronged test. State
v. Atchley, 142 Wash. App. 147, 161, 173 P.3d 323 (2007). This test examines the (1) “‘veracity’”
or credibility of the informant and (2) the informant’s “‘basis of knowledge.’” Id. (quoting State
v. Jackson, 102 Wash. 2d 432, 435, 688 P.2d 136 (1984)). The veracity and basis of knowledge
prongs are independent and both must be established in the affidavit in Washington. Jackson, 102
Wash. 2d at 437. But if one prong is not established, independent police investigation that
corroborates the tip can form the basis for probable cause. State v. Vickers, 148 Wash. 2d 91, 112,
59 P.3d 58 (2002); Jackson, 102 Wash. 2d at 438.
A. Paul Sibley
The search warrant affidavit sufficiently established Paul’s basis of knowledge. The basis
of knowledge prong is satisfied where the person who provided the information to police had
firsthand information about the facts asserted. State v. Tarter, 111 Wash. App. 336, 340, 44 P.3d
899 (2002); see also Jackson, 102 Wash. 2d at 437. Here, Paul told a police detective that he
personally helped Sibley and Luyster move some of their belongings to a storage unit that was
rented in Sibley’s name and that the storage unit was located close to Michael’s residence where
Sibley and Luyster were residing. Paul also described the specific location of the storage unit.
Because Paul provided firsthand information about facts that he had personally witnessed, the basis
of knowledge prong is satisfied.
3
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States,
393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by Illinois v. Gates, 462 U.S. 213,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but adhered to by Jackson, 102 Wash. 2d 432.
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No. 51288-2-II
The search warrant affidavit established Paul’s veracity. Where, as here, an informant is
identified by name, the State’s burden to establish the informant’s veracity is relaxed. Tarter, 111
Wash. App. at 340. Here, Paul was a named citizen informant, and he provided firsthand details
establishing that he had recently helped Sibley and Luyster move some of their belongings to a
storage unit rented in Sibley’s name. His daughter and the owner of the storage facility both
corroborated the information he provided. Accordingly, the search warrant affidavit contained
sufficient information to conclude that Paul was reliable.
B. Owner of Storage Business
The search warrant affidavit established the unnamed storage business owner’s veracity.
Where a citizen informant is known to police but unnamed in the affidavit, “the affidavit must
contain [sufficient] ‘background facts to support a reasonable inference that the information is
credible and without motive to falsify.’” Atchley, 142 Wash. App. at 162 (quoting State v. Cole, 128
Wash. 2d 262, 287-88, 906 P.2d 925 (1995)).
Although the search warrant affidavit provided sparse background information regarding
this unnamed citizen informant, it was sufficient to establish that the informant was credible and
without a motive to falsify. The owner of the storage business merely corroborated Paul’s
information regarding the rental status and location of the storage unit at issue. Luyster fails to
identify any motive to falsify information about the rental of the storage unit to police. Moreover,
Paul corroborated the information provided.
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No. 51288-2-II
The search warrant affidavit also established a basis of knowledge. The owner of the
storage business would reasonably be expected to have firsthand knowledge of the names of
customers renting storage units and the location of those units. And, even if the affidavit was
insufficient to establish the business owner’s basis of knowledge, this prong is established through
the corroborating information that Paul supplied. Jackson, 102 Wash. 2d at 438. Accordingly,
Luyster cannot demonstrate that the search warrant affidavit failed to establish the reliability of
the citizen informants. Because this is the only argument Luyster raises to challenge the search
warrant affidavit’s sufficiency, his challenge to the warrant fails.
III. LEGAL FINANCIAL OBLIGATIONS
Next, Luyster challenges the imposition of the criminal filing fee, jury demand fee, and
DNA collection fee in his judgment and sentence. The State concedes that each of these fees was
improperly imposed in light of recent statutory amendments. We accept the State’s concession
and remand to strike the criminal filing fee, jury demand fee, and DNA collection fee.
In 2018, the legislature amended former RCW 36.18.020(2)(h) and former RCW 10.46.190
to prohibit trial courts from imposing the criminal filing fee and jury demand fee on defendants
who are indigent as defined in RCW 10.101.010(3)(a) through (c). LAWS OF 2018, ch. 269, §§ 9,
17. The legislature also amended former RCW 43.43.7541 to authorize the imposition of a DNA
collection fee only if the State has not “previously collected the offender’s DNA as a result of a
prior conviction.” LAWS OF 2018, ch. 269, § 18. Our Supreme Court has held that the 2018
amendments to the legal financial obligation statutes apply to cases pending on direct review and
not final when the amendments were enacted. State v. Ramirez, 191 Wash. 2d 732, 747, 426 P.3d
714 (2018).
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No. 51288-2-II
The 2018 amendments apply here because this case was not final when the amendments
took effect. Ramirez, 191 Wash. 2d at 747. The State concedes that the trial court found Luyster to
be indigent and that it has previously collected his DNA. Accordingly, we remand to the trial court
to strike the criminal filing fee, jury demand fee, and DNA collection fee in light of the new law.
IV. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
A. Speedy Trial
Luyster first argues in his statement of additional grounds that the trial court violated his
constitutional speedy trial right when the State decided not to pursue the death penalty, and as a
result, the trial court concluded that he was not entitled to two defense attorneys. He also
challenges the trial court’s order allowing his original defense attorneys to withdraw from his case.
Although a defendant raising issues in a statement of additional grounds is not required to
reference the record or cite to legal authorities, they must “inform the court of the nature and
occurrence of alleged errors,” and this court “is not obligated to search the record in support of
claims made in a defendant’s statement of additional grounds for review.” RAP 10.10(c). Here,
Luyster does not present any argument regarding the propriety of the trial court’s decisions to limit
his appointed counsel to one attorney or to grant his original defense team’s motions to withdraw,
apart from alleging a violation of his constitutional speedy trial right.
B. Ineffective Assistance of Counsel
Next, Luyster raises several claims of ineffective assistance of counsel, all of which rely
on matters outside the appellate record.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee criminal defendants the right to effective assistance of counsel.
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No. 51288-2-II
State v. Grier, 171 Wash. 2d 17, 32, 246 P.3d 1260 (2011). To demonstrate ineffective assistance of
counsel, Luyster must show that his counsel’s performance was deficient and that the deficient
performance resulted in prejudice. Id. at 32-33. Courts engage in a strong presumption that
counsel’s representation was effective. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251
(1995). Trial counsel’s performance is deficient if it falls “below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 667-88, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); see also State v. Linville, 191 Wash. 2d 513, 518, 423 P.3d 842 (2018). There is a “strong
presumption that counsel’s performance was reasonable.” State v. Kyllo, 166 Wash. 2d 856, 862,
215 P.3d 177 (2009). “To demonstrate deficient performance, a ‘defendant must show in the
record the absence of legitimate strategic or tactical reasons supporting the challenged conduct.’”
State v. Emery, 174 Wash. 2d 741, 755, 278 P.3d 653 (2012) (quoting McFarland, 127 Wash. 2d at
336).
We do not consider matters outside the trial record. McFarland, 127 Wash. 2d at 335. If a
defendant wishes to raise issues that require evidence or facts not in the existing trial record, the
appropriate means of doing so is through a personal restraint petition. Id. Luyster argues that his
defense counsel were ineffective for failing to object to forensic scientist Trevor Chowen’s
testimony that DNA detected on spent bullet cartridges found at the crime scene was the result of
contamination. Evaluating whether counsel were deficient in this regard would require
examination of facts outside the record.
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No. 51288-2-II
Luyster’s remaining claims of ineffective assistance of counsel rely on matters outside the
record on appeal and, thus, we do not address them. If Luyster wishes to present these claims, he
must do so in a personal restraint petition.4 McFarland, 127 Wash. 2d at 335.
C. Evidentiary Rulings
Next, Luyster argues that the trial court abused its discretion by permitting a State’s witness
to display a firearm to the jury for illustrative purposes. We disagree.
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
State v. Ashley, 186 Wash. 2d 32, 38-39, 375 P.3d 673 (2016). An abuse of discretion occurs when
the trial court bases its decision on untenable grounds or reasons. State v. Darden, 145 Wash. 2d
612, 619, 41 P.3d 1189 (2002). Under ER 403, “evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.”
Luyster argues that the display of the firearm, which was not alleged to be the firearm used
in the shootings, was unduly prejudicial and confusing to the jury. The State’s witness briefly
displayed a .45 semiautomatic pistol to the jury and explained certain features such as the barrel
and safety features. During the display of the firearm, the State and the witness clarified to the
jury that the firearm was not the same firearm used in the crimes at issue. The display of the
firearm had some probative value because it allowed the jury to view features on a firearm that
was similar to the firearm alleged to have been used in the shootings. And, the danger of unfair
4
Specifically, we do not address Luyster’s claims that his counsel were ineffective for failing to
impeach Deputy Bryce Smith with inconsistencies in his police report, failing to impeach Sibley
with inconsistencies between her testimony and statements she made during a police interview,
failing to interview and call as a witness Detective Kevin Harper, and failing to present the full
text of a document that the State had presented to the jury via overhead projector with “key
portions” covered. Statement of Additional Grounds at 2.
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No. 51288-2-II
prejudice or confusion was low in light of the clear explanation that the firearm displayed was not
the same firearm used in the shootings. Accordingly, we hold that the trial court did not abuse its
discretion by allowing the State’s witness to display the firearm for illustrative purposes.
Luyster also argues that the trial court abused its discretion by admitting evidence of his
pending second degree assault charge and that Thompson and Lamar had posted his bail for that
charge. We disagree.
Before trial, the State moved in limine to admit evidence of Luyster’s pending second
degree assault charge and bail status, arguing that the evidence was admissible in part to establish
his motive in shooting Thompson and Lamar. Defense counsel argued that the evidence was
inadmissible under ER 404(b). The trial court ruled that the evidence was admissible to show
motive and later provided a jury instruction limiting the jury’s consideration of the evidence for
this purpose.
Under ER 404(b), a defendant’s prior misconduct is inadmissible to show the defendant’s
propensity to commit the charged crime. State v. Fisher, 165 Wash. 2d 727, 744, 202 P.3d 937
(2009). But ER 404(b) does not prohibit evidence of the defendant’s prior misconduct for other
purposes, such as demonstrating motive, intent, a common scheme or plan, or lack of mistake or
accident. Fisher, 165 Wash. 2d at 744. ER 404(b) must be read in conjunction with ER 403, which
“requires the trial court to exercise its discretion in excluding relevant evidence that would be
unfairly prejudicial.” Fisher, 165 Wash. 2d at 745.
Before admitting evidence subject to ER 404(b), the trial court must “(1) find by a
preponderance of the evidence the misconduct actually occurred, (2) identify the purpose of
admitting the evidence, (3) determine the relevance of the evidence to prove an element of the
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No. 51288-2-II
crime, and (4) weigh the probative value against the prejudicial effect of the evidence.” Fisher,
165 Wash. 2d at 745. Luyster argues that the evidence was not admitted for a proper purpose, was
irrelevant to his crime, and was unduly prejudicial.
Here, ER 404(b) plainly states that a defendant’s other acts may be admitted to demonstrate
motive. Throughout the trial, the State elicited testimony that Luyster was upset that the federal
government was taking up his second degree assault charge and feared that he would be taken into
custody. The State argued at closing that Luyster’s motivation in killing Thompson and Lamar
may have stemmed from his perception that they could have revoked his bail or that they were
informing on him. Luyster’s motive in killing Thompson and Lamar is relevant to his charges of
aggravated first degree murder because having a motive makes it more likely that he intended to
cause their deaths. ER 401. Evidence establishing Luyster’s motive was highly probative to his
first degree murder charges and was not substantially outweighed by the danger of unfair prejudice
in light of the trial court’s limiting instruction. Accordingly, we hold that the trial court acted
within its discretion when admitting the evidence.
D. Change of Venue Motion
Next, Luyster argues that the trial court abused its discretion by refusing to grant his motion
for change of venue. When determining whether a trial court abused its discretion by granting or
denying a motion for a change in venue due to pretrial publicity, we examine a number of factors.
These factors include, but are not limited to, the care exercised and the difficulty encountered in
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No. 51288-2-II
the selection of the jury, the familiarity of prospective or trial jurors with the publicity and the
resultant effect upon them, and the challenges exercised by the defendant in selecting the jury,
both peremptory and for cause. State v. Jackson, 150 Wash. 2d 251, 269, 76 P.3d 217 (2003). Here,
the appellate record does not contain a transcript of the jury voir dire and, thus, we cannot examine
these necessary factors on the record before us.
E. Witness Misconduct
Finally, Luyster argues that the trial court erred by failing to question Sibley or investigate
an allegation that she was viewing a Twitter news feed during trial that was reporting on the trial
proceedings. We disagree.
Toward the end of trial, defense counsel expressed concerns that Sibley had been following
the trial proceedings as reported on a Twitter news feed and requested that the trial court question
her about whether the news feed affected her testimony. The trial court declined, noting that Sibley
was not under any order to not read press coverage and, instead, was instructed only to not discuss
her testimony with other witnesses. The trial court noted that defense counsel could recall Sibley
as a witness to inquire whether viewing the news coverage affected her testimony, but defense
counsel declined to do so. Because Sibley was not under any order prohibiting her from viewing
press coverage, Luyster’s claim that the trial court erred by failing to investigate the allegation that
she had viewed coverage news feed fails.
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No. 51288-2-II
We affirm Luyster’s convictions but remand solely for the trial court to strike the
challenged legal financial obligations from his judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, J.
We concur:
Melnick, P.J.
Fearing, J.
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