State v. GordonState v. Gordon
- Reporters:
- Before:
- Appelwick
¶ 1 Gordon and Bukovsky appeal their convictions for second degree felony murder. The second degree felony murder statute does not violate equal protection, nor is it ambiguous. Gordon contends the jury was deprived of constitutionally sufficient instructions on the aggravating factors of deliberate cruelty and victim vulnerability. After Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the purpose of instructing the jury on an exceptional sentence, aggravating factors are elements of the crime. Failure to instruct on the specific legal standard defining an aggravating factor is a manifest error affecting a constitutional right. Here, the error was not harmless as to either the deliberate cruelty or the particularly vulnerable victim factors. We reverse the exceptional sentences and remand for further proceedings.
FACTS
¶ 2 Officers Brian Wurts and David Butts of the Lakewood Police Department responded to a call from the Lakewood Garden Apartments on September 5, 2006, at approximately 3:15 a.m. They observed a man, Brian Lewis, severely injured and bloody on the ground, between two vans. Lewis did not appear to be entirely conscious and was rolling from side to side. A large amount of blood was pooling beneath his body.
¶ 3 The paramedic who responded to the scene testified that Lewis‘s eyes were completely swollen shut and his upper lip was split to the bottom of his nose, exposing his upper mandible. Lewis was having problems breathing. In transit to the hospital, Lewis‘s heart rate declined. Lewis went into cardiac arrest about six minutes before the ambulance arrived at the hospital.
¶ 4 The forensic officer dispatched to the crime scene documented the scene and took measurements for a diagram. There were two vans parked side by side in the parking lot, with about four feet between them. There was blood in the area between the vans, including spatter on the wheels.
¶ 5 Four men were involved in the assault on Lewis: Charles Bukovsky, John Gordon, Jesie Puapuaga, and Anthony Knoefler. The altercation began when Gordon punched Shecola Thomas in the eye. Lewis confronted Gordon about hitting Thomas. According to Thomas, the verbal confrontation escalated into physical violence when Gordon hit Lewis in the face. At that point, according to Knoefler, Lewis tried to run out from between the two vans. Lewis hit Knoefler, then Gordon punched Lewis several times, causing Lewis to fall to the ground. Knoefler kicked Lewis in the head as he tried to get up, causing him to fall to the ground again. Gordon and Bukovsky then began punching and kicking Lewis. They landed repeated blows on his chest and stomach. About thirty seconds after Lewis had fallen to the ground, Puapuaga arrived and put Lewis in a chokehold while he was still on the ground. Gordon and Bukovsky repeatedly kicked Lewis while he was in the chokehold.1 Lewis‘s head was near the front tires of the two vans, between which the assault took place. Knoefler saw a car coming and thought it might be the police, prompting him to yell out. The beating stopped.
¶ 6 The forensic pathologist who performed the postmortem examination stated that the cause of Lewis‘s death was multiple traumatic injuries to the body and head. The blunt force trauma to his head caused subgaleal and subarachnoid hemorrhages to the brain. The autopsy also revealed that Lewis had been asphyxiated, which was a significant factor in his death. An expert in blood stain pattern analysis determined that nothing in the blood spatter indicated the source of the blood was from someone who was standing up.
¶ 8 Both Gordon and Bukovsky sought to dismiss the charges, arguing that the felony murder statute,
¶ 9 The State filed an amended information in both cases on July 10, 2007, to allege two aggravating circumstances: victim vulnerability and deliberate cruelty. Counsel for both Bukovsky and Gordon objected to the court‘s decision to give the jury the special verdict question regarding victim vulnerability, on the grounds that it was inapplicable to the facts of the case, but counsel did not object to the special verdict question regarding deliberate cruelty. Nor did counsel propose jury instructions articulating the specific legal meaning of either aggravating factor, or object to the State‘s jury instructions on either aggravating factor.
¶ 10 The jury returned guilty verdicts for both defendants. The jury also returned special verdicts, finding that both the victim vulnerability and deliberate cruelty aggravating circumstances were applicable.
¶ 11 Because of the existence of the aggravating circumstances found by the jury, the State sought imposition of exceptional sentences. Based on an offender score of two, the court sentenced Bukovsky to 244 months on the second degree murder and 144 months for the aggravating factors, for a total of 388 months. Based on an offender score of zero, the court sentenced Gordon to 220 months on the second degree murder and 144 months for the aggravating factors, for a total of 364 months.
¶ 12 The court entered findings of fact and conclusions of law regarding the exceptional sentences. Some of the findings and conclusion contain statements that were not explicitly found by the jury.
¶ 13 Both defendants timely appealed their judgments.
DISCUSSION
I. Equal Protection
¶ 14 Both Gordon and Bukovsky challenge their convictions on the ground that the second degree felony murder statute,
He or she commits or attempts to commit any felony, including assault, ... and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants.
¶ 15
¶ 16 In analyzing equal protection claims, rational basis review applies when a statutory classification does not involve a suspect or semisuspect class and does not threaten a fundamental right. Id. at 673, 921 P.2d 473. When a statutory classification only affects a physical liberty interest, we apply the deferential rational relationship test. State v. Coria, 120 Wash.2d 156, 171, 839 P.2d 890 (1992) (rejecting intermediate
¶ 17 A statute is presumed to be constitutional, and the party challenging it bears the burden to prove that it is unconstitutional beyond a reasonable doubt. State v. Hughes, 154 Wash.2d 118, 132, 110 P.3d 192 (2005), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). We review the constitutionality of a statute de novo. Id.
¶ 18 Both Gordon and Bukovsky argue that
¶ 19 The equal protection argument is controlled by State v. Armstrong, 143 Wash.App. 333, 178 P.3d 1048 (2008), review denied 164 Wash.2d 1035, 197 P.3d 1185 (2008), which presented a similar challenge to the second degree felony murder statute, as well as analogous factual circumstances. In Armstrong, the defendant challenged his conviction for second degree felony murder. Id. at 335, 178 P.3d 1048. The State based the charge on the predicate crime of second degree assault, where Armstrong shot the victim, and the victim died shortly after from the gunshot wounds. Id. at 335-36, 178 P.3d 1048.
¶ 20 The class of persons charged with felony murder, where the predicate felony is assault, is similarly situated to the class of persons charged with intentional murder. Both classes have committed some type of assault that results in death. See id. at 339, 178 P.3d 1048. Because the statutory classification of those who commit felony murder affects a physical liberty interest, rational basis review applies. See id.; see also State v. Coria, 120 Wash.2d at 171, 839 P.2d 890.
¶ 21 In re Personal Restraint of Andress, 147 Wash.2d 602, 616, 56 P.3d 981 (2002) held that the legislature did not intend that assault be a predicate felony in the felony murder scheme. In response, the legislature provided a statement of intent when it amended the second degree felony murder statute in 2003 to specifically include assault. See
¶ 23 Further, the equal protection challenge based on the unavailability of the lesser included offense instruction of manslaughter for those charged with felony murder is a matter courts have already settled. The court held in Gamble that because manslaughter requires proof of a mens rea element vis-à-vis the resulting death, whereas felony murder does not when second degree assault is the predicate felony, manslaughter cannot be a lesser included offense of second degree felony murder. 154 Wash.2d at 466-69, 114 P.3d 646; see also Armstrong, 143 Wash.App. at 341, 178 P.3d 1048.
¶ 24 A rational basis exists for the distinctions the legislature made in the statute, so it does not violate equal protection.
II. Ambiguity
¶ 25 Gordon suggests that, under canons the of statutory construction and the rule of lenity, this court should interpret the second degree felony murder statute to allow assault to serve as the predicate felony only where the assault is not also the act that causes the death.
¶ 26 We construe a statute by first looking at its plain language. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). Statutes should be construed to effect their purpose, and strained, unlikely, or absurd consequences resulting from a literal reading are to be avoided. State v. Leech, 114 Wash.2d 700, 708-09, 790 P.2d 160 (1990). We will not construe a statute to reach an absurd result, because we do not presume that the legislature intended absurd results. State v. Vela, 100 Wash.2d 636, 641, 673 P.2d 185 (1983); Leech, 114 Wash.2d at 708-09, 790 P.2d 160.
¶ 27 Only if a statute is ambiguous may we resort to aids of construction, such as legislative history. State v. Fisher, 139 Wash.App. 578, 583, 161 P.3d 1054 (2007). The court‘s purpose in construing a statute is to ascertain and give effect to the intent and purpose of the legislature. State v. Van Woerden, 93 Wash.App. 110, 116, 967 P.2d 14 (1998). If a statute is ambiguous, we apply the rule of lenity in favor of the accused. State v. Lively, 130 Wash.2d 1, 14, 921 P.2d 1035 (1996); State v. Stratton, 130 Wash.App. 760, 764-65, 124 P.3d 660 (2005).
¶ 28 Gordon urges the court to consider whether the 2003 amendment resolves the central problem the court in Andress noted. There, the court expressed concern that “[t]he `in furtherance of’ language is a strong indication that the legislature does not intend that assault should serve as a predicate felony for second degree felony murder.” Andress, 147 Wash.2d at 611, 56 P.3d 981. The court in Andress focused its analysis on the problem of the res gestae4 dilemma created by circumstances where an assault is both the predicate felony and the act that causes the death:
It is nonsensical to speak of a criminal act—an assault—that results in death as being part of the res gestae of that same criminal act since the conduct constituting the assault and the homicide are the same. Consequently, in the case of assault there will never be a res gestae issue because the assault will always be directly linked to the homicide. Therefore, if assault were encompassed within the unenumerated felonies in [former]
RCW 9A.32.050(1)(b) , the `in furtherance of’ language would be meaningless as to that predicate felony. In short, unlike the cases where arson isthe predicate felony, the assault is not independent of the homicide.
¶ 29 We conclude the statute is not ambiguous. But, even if we assume the statute was ambiguous and look at the legislative history of the statute as Gordon urges, we see that the res gestae issue is no longer problematic. The reasoning in Andress concerning res gestae involved statutory construction principles to derive the legislature‘s intent. The 2003 amendment in response to the holding in Andress and its accompanying statement of intent make it clear the legislature wants assault to be a predicate felony. As a result, we would reach the same conclusion.
III. Jury Instructions on Aggravating Factors
¶ 30 The State requested that the jury consider two aggravating factors in support of exceptional sentences for both defendants —deliberate cruelty to the victim, and particular vulnerability of the victim. Gordon argues the jury instructions on the aggravating factors were constitutionally deficient. Although they articulated the State‘s burden to prove the factors beyond a reasonable doubt,5 they lacked any articulation of the specific elements of each factor. A challenged jury instruction is reviewed de novo, in the context of the instructions as a whole. State v. Brett, 126 Wash.2d 136, 171, 892 P.2d 29 (1995).
¶ 31 Both factors at issue here are listed in
¶ 32 Our Supreme Court has given specific definitions to both of these aggravating factors that are not concomitant with either a statutory definition or a commonsense meaning of the terms. “Deliberate cruelty” is “gratuitous violence or other conduct that inflicts physical, psychological, or emotional pain as an end in itself .... the cruelty must go beyond that normally associated with the commission of the charged offense or inherent in the elements of the offense.” State v. Tili, 148 Wash.2d 350, 369, 60 P.3d 1192 (2003) (citation omitted). “Particular vulnerability” of the victim means both that the defendant knew of the victim‘s particular vulnerability, and that this vulnerability was a substantial factor in the commission of the crime. State v. Suleiman, 158 Wash.2d 280, 291-92, 143 P.3d 795 (2006).
¶ 33 The special verdict form for deliberate cruelty read: “Having found defendant ... guilty of Murder In The Second Degree, did [defendant]‘s conduct during the commission of the offense, manifest deliberate cruelty to Brian Lewis?” The accompanying jury instruction to the special verdict stated that “[f]or purposes of special verdict Question One [deliberate cruelty] the State must prove beyond a reasonable doubt that the defendant‘s conduct during the commission of the offense manifested deliberate cruelty to the victim.”
¶ 34 The special verdict form for particular vulnerability of the victim read, “Having found defendant ... guilty of Murder In The Second Degree, did [defendant] know or should he have known that the victim of the offense was particularly vulnerable or incapable of resistance?” The accompanying jury instruction to the special verdict stated that “[f]or purposes of special verdict Question Two [victim vulnerability] the State must prove beyond a reasonable doubt that the
¶ 35 Neither Gordon nor Bukovsky objected to the court‘s instructions.6 Nor did they propose additional instructions defining either aggravating factor. Because this issue is raised for the first time on appeal, we must first determine whether the claimed error is of constitutional magnitude.
A. Manifest Error Affecting a Constitutional Right
¶ 36 Due process requires a criminal defendant be convicted only when every element of the charged crime is proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To satisfy the constitutional requirement of a fair trial, the jury instructions, when read as a whole, must correctly tell the jury of the applicable law and permit the defendant to present his theory of the case. State v. Mills, 154 Wash.2d 1, 7, 109 P.3d 415 (2005). The “constitution only requires the jury be instructed as to each element of the offense charged, and the failure of the trial court to further define one of those elements is not within the ambit of the constitutional rule.” State v. Fowler, 114 Wash.2d 59, 69-70, 785 P.2d 808 (1990) (citing State v. Scott, 110 Wash.2d 682, 689, 757 P.2d 492 (1988)).
¶ 37 Accordingly, failure to define every element of a charged offense is an error of constitutional magnitude. State v. Johnson, 100 Wash.2d 607, 623, 674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wash.2d 1, 4, 711 P.2d 1000 (1985). If the jury instructions either incorrectly define or are silent on an element of a crime, the State is impermissibly relieved of its burden to prove beyond a reasonable doubt that the defendant committed all the essential elements. State v. Williams, 136 Wash.App. 486, 492-93, 150 P.3d 111 (2007). The relevant inquiry, then, in determining “whether the instructional error was one of constitutional magnitude is whether the instruction omitted an element so as to relieve the State of its burden or merely failed to further define one of those elements.” State v. O‘Hara, 167 Wash.2d 91, ¶ 25, 217 P.3d 756 (2009).
¶ 38 The State alleges the missing instructions were merely definitional, so constitutional error was not present. The State is correct that failure to give a definitional instruction is not constitutional error. See Scott, 110 Wash.2d at 690-91, 757 P.2d 492. For instance, in Scott, one of the defendants argued the trial court‘s failure to submit a definition of “knowledge” to the jury was constitutional error. Id. at 684, 757 P.2d 492. Because the court could not find any authority requiring an instruction to specifically define the words therein, the court held that Brown could not raise the issue of the court‘s failure to define “knowledge” for the first time on appeal. Id. at 691, 757 P.2d 492.
¶ 39 Tili‘s articulation of “deliberate cruelty” suggests that it is a technical legal term that must be defined if requested. 148 Wash.2d at 369, 60 P.3d 1192; State v. Allen, 101 Wash.2d 355, 358, 678 P.2d 798 (1984) (“trial courts must define technical words and expressions used in jury instructions, but need not define words and expressions that are of common understanding.“) Similarly, Suleiman‘s articulation of “particular vulnerability” of the victim suggests that it, too, is a technical legal term that must be defined if requested. 158 Wash.2d at 291-92, 143 P.3d 795; Allen, 101 Wash.2d at 358, 678 P.2d 798. However, failure to define a technical word or expression does not rise to the level of a constitutional error. Fowler, 114 Wash.2d at 69-70, 785 P.2d 808.
[T]he term “sentencing factor” ... describes a circumstance ... that supports a specific sentence within the range authorized by the jury‘s finding that the defendant is guilty of a particular offense. On the other hand, when the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury‘s guilty verdict. Indeed, it fits squarely within the usual definition of an “element” of the offense.
Id. at 494 n. 19, 120 S.Ct. 2348. Echoing Apprendi‘s reasoning, the Court in Ring characterized Arizona‘s enumerated aggravating factors as the “`functional equivalent of an element of a greater offense.‘” 536 U.S at 609, 122 S.Ct. 2428 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348).
¶ 41 After Apprendi and Ring, the alleged error here can be fairly characterized as failing to properly instruct on an element of the aggravated crime.9 We hold that aggravating factors are elements of the crime for purposes of instructing the jury on exceptional sentencing.10 We further hold
¶ 42 A failure to adequately instruct the jury on the elements of an aggravating factor for an exceptional sentence is manifest error affecting a constitutional right that may be argued for the first time on appeal.
¶ 43 While the error is of constitutional magnitude, it must also be manifest. O‘Hara, 217 P.3d at 761. “`Manifest’ in
¶ 44 The error is patently obvious on the record. Gordon has made the required showing of actual prejudice by highlighting the difference between the instructions as given and the proper language that should have been included in the instructions. The practical and identifiable consequences in the trial were, as Gordon explains, that the jury was left to deliberate with a misleading and incomplete statement of the law. He need not show more.
B. Harmless Error
¶ 45 Because the lack of instruction is a manifest error affecting a constitutional right, we examine the effect the error had on defendant‘s trial according to harmless error standard.
¶ 46 We examine each aggravating factor independently, comparing its legal meaning to the instruction the jury actually had, to determine whether, beyond a reasonable doubt, the jury would have reached the same result in the absence of the error.
¶ 47 “Deliberate cruelty” is “gratuitous violence or other conduct that inflicts physical, psychological, or emotional pain as an end in itself .... the cruelty must go beyond that normally associated with the commission of the charged offense or inherent in the elements of the offense.” Tili, 148 Wash.2d at 369, 60 P.3d 1192.11 Gordon asserts that the
¶ 48 A jury is certainly capable of understanding both words in isolation from one another, as they are words of ordinary understanding and are self-explanatory. Brown, 132 Wash.2d at 611-12, 940 P.2d 546. Together, they form a legal term of art, where two concepts essential to its meaning are conspicuously absent from the commonsense meaning of the words themselves.12 Neither the concept of gratuitous violence nor the comparative element (requiring a relative assessment of the crime at hand with other crimes of that sort) is concomitant with the words themselves, either individually or as a compound term.
¶ 49 Without additional definition based on the articulation in Tili, the instruction on deliberate cruelty did not inform the jury of the applicable law. See State v. Edwards, 84 Wash.App. 5, 14, 924 P.2d 397 (1996). See also Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (where the instruction on the aggravating factor supporting imposition of the death penalty, that the murder was “especially heinous, atrocious, or cruel,” was insufficient, because an ordinary person could honestly believe that every intentional taking of human life is especially heinous); Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (holding that the jury instruction was insufficient and reversing, where the instruction stated that the death penalty should be imposed if the murder was “outrageously or wantonly vile, horrible and inhuman,” as almost anyone could characterize any murder as satisfying that standard).
¶ 50 The jury was not required to consider whether the defendants’ conduct was inflicted on Lewis as an end in itself, or whether the cruelty went beyond that normally associated with the commission of the charged offense or inherent in the elements of the offense. Therefore, we find it impossible to conclude, beyond a reasonable doubt, that the jury would have reached the same conclusion with proper instruction.
¶ 51 In Suleiman, the court explained that, in order to justify an exceptional sentence based on victim vulnerability, the jury must find both that the defendant knew of the victim‘s particular vulnerability, and that this vulnerability was a substantial factor in the commission of the crime.13 158 Wash.2d at 291-92, 143 P.3d 795; see also State v. Gore, 143 Wash.2d 288, 317-318, 21 P.3d 262 (2001), overruled on other grounds by State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005).
¶ 52 Gordon asserts that, without an instruction to the jury that the vulnerability and incapability had to be a significant reason for the commission of the crime, the jury‘s findings are fatally flawed. Gordon is again correct. The commonsense meaning of “particular vulnerability” reflects only part of its legal meaning.14 A jury would readily
¶ 53 We likewise find it impossible to conclude, beyond a reasonable doubt, that the jury would have reached the same conclusion had its deliberations been framed by this additional inquiry. The error here was not harmless. We reverse the exceptional sentence.15
IV. Findings and Conclusions Regarding the Exceptional Sentence
¶ 54 Gordon argues that the trial court violated
¶ 55 After Blakely, the trial court retains its discretion to determine whether the jury‘s findings “are substantial and compelling reasons justifying an exceptional sentence.”
¶ 56 The legislature amended our statutes to conform to Blakely. Nevertheless,
V. Sufficiency of the Evidence
¶ 57 Bukovsky asks this court to review the sufficiency of the evidence to support the exceptional sentence. Though he did not challenge on appeal the constitutionality of the jury instructions,16 the jury deliberated
¶ 58 Aware of the inevitability of both a subsequent personal restraint petition by Bukovsky and its success, we invoke
¶ 59 We vacate the exceptional sentences of both defendants and remand for further proceedings.
WE CONCUR: LEACH and GROSSE, JJ.
Notes
However, After Blakely, the trial court retains its discretion to determine whether the jury‘s findings “are substantial and compelling reasons justifying an exceptional sentence,”
In State v. Brown, 132 Wash.2d 529, 612-613, 940 P.2d 546 (1997), the court considered Brown‘s argument that the trial court‘s refusal to define the phrases “in the course of,” “in furtherance of,” or “in immediate flight” violated his due process rights, because they were essential elements of the aggravators. Id. at 611, 940 P.2d 546. The court did not squarely reject Brown‘s characterization of these phrases as elements of the aggravators. See id. at 612, 940 P.2d 546. Rather, it analyzed the situation as a failure to give a definitional instruction, having already concluded that the terms were expressions of common understanding. See id. at 611-612, 940 P.2d 546. There is no need to define words that are commonly understood. And, failure to give a definitional instruction cannot be equated with failure to instruct on an essential element. Id. at 612, 940 P.2d 546; Scott, 110 Wash.2d at 690, 757 P.2d 492.
Courts have also found that victims can become particularly vulnerable or incapable of resistance if a defendant renders the victim unconscious during the course of the crime. In State v. Baird, the court found the victim became particularly vulnerable or incapable of resistance, because the defendant rendered her unconscious during the crime. 83 Wash.App. 477, 487-88, 922 P.2d 157 (1996). Similarly, in State v. Ogden, Ogden hit the victim, who was not particularly vulnerable at the beginning of the attack, rendering the victim unconscious. 102 Wash. App. 357, 367, 7 P.3d 839 (2000). While we note the similarity of the facts here to the facts in Ogden and Baird, we are nevertheless unable to sustain the exceptional sentence absent proper jury instruction as required by Suleiman.