State v. Brush, 183 Wash. 2d 550

Defendant Brian Brush shot and killed his ex‑fiancée on Sept. 11, 2009; convicted of first‑degree murder.
At penalty phase, jury found multiple aggravating factors, including that the murder was an “aggravated domestic violence offense” based on an ongoing pattern of psychological abuse over a “prolonged period of time.”
Penalty‑phase evidence consisted primarily of the victim’s daughter’s testimony about a stalking incident (August 2009) and related statements by the victim; the trial court admitted the daughter’s testimony under excited utterance/present sense impression exceptions to hearsay.
The trial court instructed the jury using the WPIC pattern instruction defining “prolonged period of time” as “more than a few weeks.”
Trial judge imposed an exceptional sentence (1,000 months plus enhancement); Court of Appeals affirmed conviction but reversed the exceptional sentence, holding the instruction was an improper judicial comment on the evidence and remanding for resentencing (with option to impanel a jury).
Supreme Court affirms reversal of exceptional sentence (instruction improperly commented on the evidence) and upholds admission of the daughter’s testimony as within hearsay exceptions; remands with instruction that court may, if requested, impanel a jury to consider prolonged pattern evidence.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Brush)	Held
Whether the WPIC instruction defining “prolonged period of time” as “more than a few weeks” was an improper judicial comment on the evidence	Instruction correctly clarifies law and aids the jury in applying statutory language	Instruction resolved a factual question for the jury, commenting on the evidence and relieving the State of its burden	Instruction misstated law and functioned as an improper comment on the evidence; reversal of exceptional sentence affirmed
Whether the trial court abused discretion by admitting the victim’s daughter’s testimony recounting the victim’s statements (hearsay)	Statements were admissible under excited utterance / present sense impression exceptions	Statements were hearsay and inadmissible; prejudiced sentencing	Admission did not abuse discretion; most statements fit hearsay exceptions and any other minor statement was harmless

Blakely v. Washington, 542 U.S. 296 (2004) (jury must find facts that increase statutory maximum sentence)
State v. Barnett, 104 Wn. App. 191 (2001) (two‑week period held not a “prolonged period of time” in that case)
State v. Woods, 143 Wn.2d 561 (2001) (instructions that accurately state law are not impermissible judicial comments on evidence)
State v. Levy, 156 Wn.2d 709 (2006) (instruction referring to specific item as example of element can be improper comment on evidence)
State v. Jacobsen, 78 Wn.2d 491 (1969) (prohibits judicial comments conveying judge’s opinion on evidence)
Haaga v. Saginaw Logging Co., 169 Wash. 547 (1932) (erroneous instruction does not automatically constitute a comment on the evidence if it does not reference facts)