A judge had “no authority whatsoever” to take back a Kennewick murder suspect’s guilty plea, allowing prosecutors to move forward with an enhanced charge, a defense lawyer argued Tuesday.
When Judge Cameron Mitchell initially accepted the plea from Matthew H. de Vore, he noted that it was knowingly, intelligently and voluntarily made and there was an adequate factual basis for admitting second-degree murder, Scott Johnson said.
So now de Vore should be set for sentencing instead of fighting the judge’s decision to overturn his own ruling, which enabled prosecutors to amend the charge to first-degree murder, the lawyer said.
Johnson asked the Washington Court of Appeals for an emergency review of the reversal. He said he hopes his request is granted and that a three-judge panel of the appellate court considers the case next.
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But Prosecutor Andy Miller said Mitchell ultimately got it right because it was not “a fully executed guilty plea”, as de Vore didn’t acknowledge intent to kill Thomas R. Christian Sr. on Nov. 24.
Intent is a required element to second-degree murder. Miller believes de Vore’s attempted guilty plea didn’t even rise to the level of manslaughter because his statement of becoming overcome with emotion and stabbing Christian had “no mention of mental state at all.”
A discretionary review should be denied so the prosecutor’s office can proceed to trial with the amended charge against de Vore, he said.
As it stands now, de Vore faces premeditated murder with the aggravating circumstance that Christian’s death had a destructive and foreseeable impact on others.
On Tuesday, Spokane-based appeals court Commissioner Monica Wasson listened via speakerphone to arguments. Each side had 10 minutes to speak, supplementing the briefs they previously filed with the appeals court.
The attorneys gathered in a Benton County courtroom so de Vore — who is in jail on $250,000 bail — could attend the hearing with Johnson.
Wasson said she would issue a written decision to Superior Court and the attorneys. She did not give an indication of when that may be.
In January, Mitchell put the case on hold at Johnson’s request so he could appeal. There is no trial date scheduled.
De Vore, 40, is accused of stabbing Christian once in the chest with an 8-inch kitchen knife as the victim sat in the lobby of Kennewick’s Biomat USA.
Christian immediately died in front of more than a dozen people.
The 45-year-old grandfather had recently moved to the Tri-Cities to reconnect with de Vore’s estranged wife. Christian and Brenda de Vore dated in high school and talked about moving to Tennessee together.
Brenda and Matthew de Vore were in the process of divorcing after an 18-year marriage. They have four children together.
Matthew de Vore tried to plead guilty at his first court hearing after prosecutors charged him with second-degree murder. Miller then objected unless de Vore admitted to the upgraded charge.
That sparked the question: At what time is a plea officially entered?
Prosecutors initially filed based on what information they had from police reports and what charge would sustain a conviction.
Mitchell later decided that once the defense told the court that de Vore wanted to plead guilty, prosecutors could not amend the charge. Miller responded that there would be no justice for the victim’s family because de Vore wasn’t forthcoming with the details of the crime and his intent. Mitchell had not yet said if he would accept the plea when he suddenly fell ill and ended the hearing.
A week later, Mitchell said his ruling was incorrect and that prosecutors could amend the charge to first-degree murder despite de Vore’s attempt. Johnson then argued that his client’s rights would be violated because the earlier admission of guilt tainted a potential jury pool and destroyed de Vore’s right to remain silent.
Johnson told Wasson on Tuesday that this case likely is different than any other case the appellate court has had before. He said a fully executed plea took place, then a week later Mitchell made either an “obvious error” or a “probable error” by deciding on his own to withdraw the plea.
Mitchell had no legal ground to to do that, Johnson argued. He added that the defense shouldn’t be punished because prosecutors “just sat on” the upgraded charge until after de Vore announced his intent to plead guilty.
Miller said he filed the “amended information virtually simultaneous to the proffering of the guilty plea,” and that it was done in a timely and proper manner so there was no prejudice to de Vore.
He also called de Vore’s plea “factually inaccurate” because he wouldn’t admit going into the business after Christian or actually killing him.