Wednesday, January 15, 2014/lk
OLYMPIA The state Court of Appeals has upheld the first-degree murder conviction of Tansy Fay-Arwen Mathis in the 2009 death of Michelle Kitterman.
In an unpublished opinion issued Thursday, the court rejected Mathis’ argument that instructions given to the jury were flawed.
“These opinions are slip opinions which do not necessarily represent the court’s final decision in the case since they are subject to reconsideration, modification orders, editorial corrections and withdrawal,” the Administrative Office of the Courts said in releasing the opinion. “The official reports advance sheets and bound volumes supersede the slip opinions.”
Mathis, 34, was one of four people convicted in Kitterman’s death.
In her appeal, she alleged errors in two jury instructions, one regarding factors relied on by the state for its charge of aggravated murder and another on how the jury should complete the deadly weapon enhancement special verdict form.
“The court’s instruction on one of the factors alleged to support conviction for aggravated murder was flawed, for the reason argued by Mathis,” Justice Laurel H. Siddoway wrote for the court. Concurring were Justices Stephen M. Brown and Teresa C. Kulik.
But, Siddoway continued, the error was harmless given the jury’s finding of a second factor supporting conviction. The instruction for that finding was correctly given.
“Mathis’s challenge to the instruction on answering the deadly weapon special verdict form fails” in light of the state Supreme Court’s decision in another case, Guzman Nunez, the appeals court said.
“We fully expected to have the conviction affirmed, especially after the state Supreme Court decision in Guzman Nunez was issued,” Okanogan County Prosecuting Attorney Karl Sloan said.
That decision corrected a previous Supreme Court ruling and eliminated one of the two instructional arguments Mathis had raised.
“This had the effect of making (her) second jury instruction argument moot,” Sloan said. “Regardless of the reasoning of the appellate court, the affirmation of Ms. Mathis’ convictions means she will be held fully accountable for her role in the senseless murder of Michelle Kitterman.”
Sloan said he disagrees with some of the court’s analysis concerning the second instructional argument, regarding the mental state of a defendant in commission of murder after an agreement to receive money or anything of value.
Sloan said the appellate record, which includes the complete trial transcript, was clear that Mathis was the person who negotiated the agreement to commit the crime directly with Lacey Kae Hirst-Pavek for payment, and for the rental vehicle that was provided directly to Mathis.
Mathis’ direct involvement in the agreement and her personal receipt of value “was overwhelming.”
In the appellate decision, the court said the instruction erroneously allowed the jury to find her guilty based on co-defendant David E. Richards’ agreement to commit the crime. It disagreed with the state that the final paragraph of the instruction, requiring Mathis to be “a major participant” and that the aggravating factor specifically apply to her actions, saves the instruction from error.
Instead, the court found the state was correct that there was sufficient evidence to implicate Mathis in the associated crime of kidnapping, and that the jury found the murder was committed “in the course of, in furtherance of or in immediate flight” from first-degree kidnapping. Mathis did not challenge that portion of the instructions.
“That answer is sufficient to sustain the trial court’s judgment and sentence for aggravated murder,” the appeals court said.
Kitterman, 25, was found dead March 1, 2009, beside Stalder Road southwest of Tonasket, where she lived. She was 11 weeks pregnant with the child of Daniel Pavek.
Charged were Hirst-Pavek, Daniel Pavek’s wife; Mathis, a drug dealer whom Hirst-Pavek knew and enlisted to arrange the murder; Richards, a drug dealer and customer of Mathis, and Brent L. Phillips, who was enlisted by Richards to help.
Mathis and Phillips drove to Kitterman’s home in a vehicle provided by Hirst-Pavek, gave her methamphetamine, and then set out for the Okanogan Bingo Casino.
Along the way, they stopped so Kitterman could smoke more meth. Once she was out of the vehicle, Mathis told Phillips that Kitterman was a snitch who needed roughing up.
They used a three-sided file belonging to Richards to stab her multiple times in the stomach and back, then left her at the roadside. Then they cleaned up the car.
Phillips eventually pleaded guilty to first-degree murder and first-degree manslaughter for landing the fatal blow to Kitterman. He testified against Mathis and Richards, who were found guilty in April 2010.
Mathis claimed she went to Tonasket only to drop off drugs and talk to Kitterman about leaving Pavek. She claimed Phillips stabbed Kitterman.
She was convicted of first-degree aggravated murder, first-degree manslaughter of an unborn child, first-degree kidnapping and tampering with evidence. Richards was found guilty of second-degree murder and first-degree manslaughter for the death of the fetus.
Hirst-Pavek was found guilty Nov. 16, 2010, of aggravated first-degree murder for Kitterman’s death and manslaughter for the death of her unborn child.
“The jury rejected Mathis’s defense and found her guilty as charged on all counts,” the appeals court said.
Hirst-Pavek and Mathis were sentenced to life in prison without possibility of parole. Phillips was sentenced to 26 years, a reduced time because of his guilty plea and testimony, and Richards was sentenced to 22 years.
Concerning the appeal, Mathis conceded her allegation of one jury instruction error had failed in light of an unrelated Supreme Court case.
The second allegation of error correctly identifies a problem with the instruction, but the appeals court said the error “was harmless” because of other findings by the jury in the case.
Mathis was represented by Susan Marie Gasch of Gasch Law Office in Spokane and Andrea Burkhart of Burkhart and Burkhart of Walla Walla.
Sloan and Deputy Prosecuting Attorney Jennifer R. Richardson represented the state.