Petition for Writ of Certiorari — Chad Bennett, Petitioner v. Washington
Supreme Court briefJan 29, 2021
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix A Order in the Supreme Court of
Washington
(November 4, 2020). . . . . . . . . . . . App. 1
Appendix B Unpublished Opinion in the Court of
Appeals of the State of Washington
Division Three
(June 25, 2020) . . . . . . . . . . . . . . . App. 3
Appendix C Trial Court Transcript Excerpts
. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 80
Appendix D Findings of Fact, Conclusions of Law
and Order for an Exceptional Sentence
(May 22, 2017) . . . . . . . . . . . . . . App. 84
Appendix E Felony Judgment and Sentence in the
Superior Court of Washington County
of Grant
(May 12, 2017) . . . . . . . . . . . . . . App. 90
Appendix F Relevant Code Sections Involved
. . . . . . . . . . . . . . . . . . . . . . . . . . App. 127
Appendix G Trial Transcript Excerpts. . . . . App. 141
Appendix H Defendant’s Objections to the State’s
P roposed F i ndi ng s of F a ct ,
Conclusions of Law and Order for an
Exceptional Sentence in the Superior
Court of the State of Washington
County of Grant Excerpts
(May 18, 2017) . . . . . . . . . . . . . App. 146
ii
Appendix I Petition for Review in the Supreme
Court of the State of Washington
(July 24, 2020) . . . . . . . . . . . . . App. 155
Appendix J Jury Instructions Excerpts. . . . App. 158
App. 1
APPENDIX A
THE SUPREME COURT OF WASHINGTON
No. 98810-2
Court of Appeals
No. 35297-8-III
[Filed: November 4, 2020]
____________________________________
STATE OF WASHINGTON,
)
)
Respondent,
)
)
v.
)
)
CHAD GERRIT BENNETT,
)
)
Petitioner.
)
____________________________________)
ORDER
Department I of the Court, composed of Chief
Justice Stephens and Justices Johnson, Owens, Gordon
McCloud, and Montoya-Lewis, considered at its
November 3, 2020, Motion Calendar whether review
should be granted pursuant to RAP 13.4(b) and
unanimously agreed that the following order be
entered.
IT IS ORDERED:
App. 2
That the petition for review is denied.
DATED at Olympia, Washington, this 4th day of
November, 2020.
For the Court
/s/_____________________
CHIEF JUSTICE
App. 3
APPENDIX B
[Seal of the Court of Appeals]
IN THE COURT OF APPEALS OF THE STATE
OF WASHINGTON
DIVISION THREE
No. 35297-8-111
[Filed: June 25, 2020]
____________________________________
STATE OF WASHINGTON,
)
)
Respondent,
)
)
v.
)
)
CHAD GERRIT BENNETT,
)
)
Appellant.
)
____________________________________)
UNPUBLISHED OPINION
LAWRENCE-BERREY, J. — Chad Bennett appeals his
2017 conviction and 660-month exceptional sentence
for the second degree intentional murder of his 82-yearold landlord, Lucille Moore. We find no prejudicial
error and affirm.
App. 4
FACTS AND PROCEDURE
Lucille Moore owned and rented out several homes
in her Ephrata neighborhood. In late July 2014, she
rented a house to Chad Bennett, then age 24, and
married with four children. Mr. Bennett was employed
as a farm worker for C & C Farms, owned by the Cobb
family.
On September 7, 2014, Mr. Bennett went to Ms.
Moore’s house to pay his rent. According to Bennett, he
was there three times that day: first at around 12:30
p.m. to pay rent, second to pay the remainder of his
deposit, and third at around 1:00 p.m. to retrieve his
wallet, which he had inadvertently left behind.
On the morning of September 8, 2014, Moore’s
neighbor, Joyce Andersen, found Ms. Moore lying on
the floor with a pillow over her face and her shirt
soaked with blood. Ms. Andersen called police, who saw
a slash across Moore’s throat and confirmed she was
dead. Forensic pathologist Dr. Eric Kiesel later
determined Moore had sustained multiple significant
head injuries, was likely manually strangled, had
received two shallow cuts and a stab wound to her
neck, and was stabbed 17 times in her chest, 11 of
which penetrated her heart.
Detective Todd Hufman was the lead detective. He
set forth details of his investigation in a probable cause
statement. Hufman enlisted the Washington State
Patrol (WSP) Crime Scene Response Team (CSRT) to
help process the scene. CRST’s team leader, forensic
scientist Trevor Allen, worked with Hufman to
prioritize collection of items that could contain
App. 5
deoxyribonucleic acid (DNA) evidence. Among those
items sent for testing were the blood-stained pillow, a
swab of a bloodstain located on a kitchen cabinet door,
and a cigarette butt found on the floor near Moore’s
body.
Ms. Andersen told investigators she had last seen
Moore on Saturday, September 6, around 7:30 p.m.
Moore’s daughter, Wendy Swain, reported last
speaking to her September 6, around 2:30 p.m. Moore’s
pastor confirmed she had attended Sunday church
services on September 7, from 9:00-10:15 a.m. Moore
declined a lunch date with Ms. Andersen that day,
saying she needed to be at her house around 12:30 p.m.
because her tenants from 106 G Street NE (Chad and
Trisha Bennett) were coming over to pay their
delinquent rent.
Detective Hufman contacted Chad Bennett. Bennett
said he went to Moore’s residence on Sunday,
September 7, between noon and 1:00 p.m. and paid his
rent. In later interviews, Bennett told Hufman he had
been to Moore’s house three times after 10:30 a.m. that
day–first to pay rent, second to pay money still owing
on the deposit, and third to retrieve his wallet after
Moore called and told him that he had left it. He also
gave various descriptions of his activities and
whereabouts throughout that day. Bennett agreed to
give a DNA sample. Ultimately, investigators
determined Bennett was the last known person to have
seen Moore alive on September 7.
WSP Crime Laboratory forensic scientist Anna
Wilson reported DNA test findings on November 21,
2014. DNA matching Chad Bennett’s was present on
App. 6
the cigarette butt, with a 1 in 1.1 sextillion probability
of selecting an unrelated individual at random with a
matching profile. The bloodstain swab from the kitchen
cabinet matched Bennett’s Y-STR DNA typing profile.
Neither he nor any of his paternal male relatives could
be excluded as a donor. The profile is not expected to
occur more frequently than 1 in 8,600 males in the
United States population. One area of the pillow
contained a mixture of three male individuals, with the
major contributor matching Bennett’s Y-STR DNA
typing profile. Again, neither he nor any of his paternal
male relatives could be excluded as a donor, and the
profile is not expected to occur more frequently than 1
in 8,600 males in the United States population. A
second area on the top side of the pillow contained two
DNA profiles, one from the victim. The other profile
matched Bennett’s DNA, with an estimated 1 in 50
billion probability of selecting an unrelated individual
at random from the United States population with a
matching profile.
Bennett was arrested on November 25, 2014, and
charged with first degree murder.
On December 16, 2014, the court entered an
omnibus order directing the State to provide the
defense with “[a]ll photographs, police reports, lab
reports, witness statements, audio and video recordings
and State’s witness list . . . by December 29, 2014.”
Clerk’s Papers (CP) at 2245. Trial was originally set for
January 22, 2015, but was continued several times
throughout 2015 and into the first half of 2016.
Meanwhile, on December 2, 2014, Detective
Hufman began receiving recordings of Bennett’s jail
App. 7
calls. A recorded message at the beginning of each call
informed the persons on the line that the call was
subject to recording and monitoring. Hufman
eventually accumulated more than 250 hours of
Bennett’s recorded jail calls over the next 18 months.
Until April 2016, the parties had anticipated the
trial would be held in September of that year. In April,
defense counsel David Bustamante was occupied in an
unrelated homicide trial and, after that trial, would
need ample time to review the State’s evidence in
Bennett’s case. However, four days after the unrelated
trial concluded on April 21, the State learned Bennett
was now demanding an immediate trial. On May 13,
the court set trial for June 8, with a speedy trial
expiration date of July 8. On May 31, the court
continued the trial to July 7, 2016.
On June 1, 2016, Bustamante conducted a pretrial
interview with crime lab forensic scientist, Anna
Wilson. Deputy prosecutor Edward Owens and the
State’s in-house investigator, Dan Dale, were also
present. During the interview, Wilson told Bustamante
that she was just assigned a new request to test
Moore’s blood-soaked shirt. Bustamante responded,
“Oh, good.” CP at 203. The shirt had been collected as
evidence in September 2014, but Wilson believed it was
too blood soaked to likely yield any DNA other than
Moore’s. She thought the massive amount of female
DNA would likely mask any male DNA. Due to the
crime lab’s resource limitations, it chose other items for
testing that it considered more likely to identify the
killer.
App. 8
The new request to test the shirt came from Owens
after he and Dale learned from Wilson in a late May
interview that Bennett was an unusually “heavy
shedder” of his DNA, meaning he left more DNA on
items he touched than most persons would. CP at 281.
Dale, a former trooper with the WSP, asked whether
that would make it more likely Bennett’s DNA could be
recovered from Moore’s blood-saturated shirt.
Considering the high amount of Bennett’s DNA present
on the blood-stained pillow, Wilson concluded there
was a greater chance the shirt would yield useful
evidence than originally believed. She agreed to test
the shirt.
In a June 6, 2016 pretrial hearing, Bustamante told
the Court he approved testing the shirt because he
believed the results might exonerate Bennett, but he
was otherwise concerned about the timing and ability
of his defense DNA expert, Dr. Randell Libby, to review
the results in advance of the July 7 trial. He did not,
however, object to the late testing.
Wilson produced the DNA test results on June 29,
2016. DNA obtained from several areas on the front of
the shirt showed a mixture consistent with three male
individuals, with the partial major Y-STR profile
matching Bennett. Neither he nor any of his paternal
male relatives could be excluded as the donor. In one
area of the shirt, the profile is not expected to occur
more frequently than 1 in 9,400 male individuals in the
United States population. In other areas of the shirt,
including around the puncture holes, the profile is not
expected to occur more frequently than 1 in 75 male
individuals in the United States population. Other
App. 9
potential suspects, including Wendy Swain’s boyfriend
John Rehfield, Ricky Swain, and Guy Austin (Moore’s
former boyfriend) were excluded as contributors of any
DNA on the shirt. There was no male DNA detected on
the neck area of the shirt. The test procedure consumed
the entire DNA sample, as agreed to in advance by the
defense.
Meanwhile, Detective Hufman had been listening to
recordings of Bennett’s jail calls but he was nine
months behind due to time constraints. In late April
2016, he started listening to the recordings of Bennett’s
calls made between December 2, 2014, and January 27,
2015. Sometime after June 6, 2016, he heard for the
first time a late 2014 conversation in which Bennett
cautioned his wife Trisha that they needed to keep
their stories straight. Hufman notified the prosecutor’s
office and, on June 15, delivered a report and a copy of
all of the recordings he had reviewed to that date. All
the while–since December 2014–Hufman did not want
Bennett to know law enforcement was reviewing his
calls, so he unilaterally decided to withhold the
recordings from the prosecution. For this reason,
Bustamante was not apprised of the recordings until
the prosecutor gave him a compact disc (CD) containing
over 200 hours’ worth of calls on June 17, 2016.
On July 1, 2016, Bennett moved to dismiss the
charge for governmental mismanagement under CrR
8.3(b), alleging the State had untimely tested the shirt
it had in its possession since September 2014 and that
it violated the omnibus order by deliberately
withholding over 200 hours of recorded phone calls
until June 2016. Bustamante explained the defense
App. 10
team would be unable to finish listening to all of the
jail call recordings by the trial date, and the defense
DNA expert would need four to five weeks to analyze
the new test results–all of which would necessitate
adjusting trial strategy accordingly. Bennett argued
the State’s mismanagement prejudiced his right to a
fair trial by forcing him into a “Hobson’s choice”
between his speedy trial right and his right to effective
assistance of counsel. CP at 150. As alternatives to
dismissal, Bennett asked the court to suppress all
evidence received after May 31, 2016, or continue the
trial two months.
The State denied any mismanagement, but joined in
the request for a two-month trial continuance to
September 2016, as the parties had earlier
contemplated before Bennett’s immediate trial demand
in late April. The court denied Bennett’s motion to
dismiss or suppress evidence, but granted a two-month
continuance. Additional facts relating to the CrR 8.3(b)
dismissal motion are discussed in the analysis.
The jury trial began in September 2016. The State’s
theory was that Bennett was the last person known to
see Moore alive on September 7, 2014, his DNA was
present on multiple items at the crime scene, he gave
inconsistent statements to police about his activities
and whereabouts on the afternoon of September 7, and
he became enraged at Moore and killed her because she
was about to evict him for nonpayment of rent. The
defense theory, as argued in closing, was that Bennett’s
DNA was on the items in question because he was in
Moore’s house paying rent, not because he killed her.
Because he paid his rent, he had no reason to be angry
App. 11
with her or kill her. He argued the killer could have
been Moore’s daughter or another of Moore’s tenants
who was delinquent on rent. Those persons’ DNA were
not tested. Bennett did not testify. The jury could not
reach a unanimous verdict, and the court declared a
mistrial.
Prior to the second trial, the State asked Bennett
whether he intended to proffer “other suspect”
evidence, and, if so, to identify the other suspects.1 In
response, Bennett identified Moore’s daughter Wendy
Swain and her boyfriend John Rehfield, tenants
Charles and Brandi Larr who struggled to pay rent,
and any of Moore’s other tenants who were delinquent
on rent.
The State moved in limine to exclude the other
suspect evidence on the grounds that Bennett had
failed to proffer any nonspeculative evidence tending to
create a reasonable doubt as to Bennett’s guilt. The
trial Court granted the State’s motion and excluded
Bennett’s other suspect evidence. Additional aspects
related to the court’s ruling are discussed in the
analysis.
The second jury trial began in February 2017. The
State’s theory of the case, again, was that Bennett went
into a rage and killed Moore on September 7 because
he could not pay his overdue rent and she was about to
evict him. The State posited that Bennett returned to
Moore’s house later on September 7 with his wife to
clean up the murder scene.
1
The State had not moved to limit “other suspect” evidence in the
first trial.
App. 12
The State’s evidence detailed the discovery of
Moore’s body on September 8, the ensuing investigation
and determination that Bennett was the last known
person to be in Moore’s house and see her alive. The
evidence also included testimony of Detective Hufman
relating Bennett’s various accounts of his whereabouts
and activities on the afternoon and evening of
September 7, testimony of Dr. Kiesel about Moore’s
multiple injuries, and testimony of Anna Wilson
confirming the DNA test results showing the presence
of DNA, consistent with Bennett’s, on the pillow found
on Moore’s face, on her blood-soaked shirt, on her
kitchen cabinet, and on a cigarette butt found near
Moore’s body. The State also introduced several jail call
recordings between Bennett and his wife Trisha that
the State argued contained inculpatory statements.
The Bennetts later testified that the purported
inculpatory statements were misconstrued by the State
and related to marital issues rather than the murder.
These statements are discussed more fully in the
analysis.
Bennett’s theory of the case, as presented through
his evidence and cross-examination of State’s
witnesses, was that he paid his rent to Moore on
September 7, he fully accounted for his whereabouts
and activities that day, and he was not involved in her
murder. He also explained that the presence of his
DNA on multiple items was due to contamination at
the murder scene or in the crime lab or was due to
direct or secondary transfer onto the tested items
during his multiple interactions with Moore.
App. 13
As evidence that Bennett was about to be evicted,
the State introduced testimony from Moore’s neighbor,
Joyce Andersen, that Moore declined a lunch invitation
for September 7 because “ 106 G” was supposed to come
over at 12:30 p.m. to pay rent. Report of Proceedings
(RP) (Feb. 15, 2017) at 4313. Moore told Andersen, “[I]f
he doesn’t pay me what he’s supposed to pay me, I’m
going to tell him if he can’t afford it, he can go find
someplace he can afford.” RP (Feb. 15, 2017) at 4314.
The State also introduced testimony from Bennett’s
coworker at C & C Farms, Nicholas Cobb, that in early
September 2014, Bennett asked for him for a $700 loan
to pay his rent. Cobb did not loan him the money.
The State also presented evidence that officers and
CSRT members took careful measures at the murder
scene to not touch, disturb, or contaminate evidence or
leave any DNA on items. This included wearing gloves
and shoe covers and changing gloves when handling
each different item. On cross-examination, Trevor
Allen discussed the protocol used for taking, handling,
and packing blood swabs so they do not become
contaminated, as well as DNA collection training to
avoid cross-contamination from coughing and sneezing.
He explained that small aerosolized droplets can
spread out a short distance. Hypothetically, if a person
was standing near the kitchen cabinet and coughed in
that direction, it could account for that person’s DNA
being present in a later-deposited bloodstain.
Forensic scientist Anna Wilson described the crime
lab’s procedures that control against contamination
and ensure accuracy and reliability of test results.
Procedures include wearing a lab coat, mask, and
App. 14
gloves. The lab bench area is cleaned and new gloves
are worn between each item of evidence. Without
changing gloves, DNA could accidentally get
transferred from one item to another. To preserve
evidence, it is repackaged in its original package and
placed in the evidence vault. Wilson discussed the
concept of transfer DNA. For example, DNA could be
transferred by shaking a person’s hand and the second
person touching a table untouched by the first person.
Wilson said the crime lab scientists wear gloves to
prevent DNA transfer/cross-contamination. In this
case, Wilson said she saw no evidence of contamination
either at the crime scene or in the laboratory.
Discussing hypotheticals posed by defense counsel
on cross-examination, Wilson said the transfer concept
by shaking hands could possibly account for Bennett’s
DNA being on the pillow that he said he never touched.
Addressing the bloodstain on the kitchen cabinet,
Wilson said it could not be determined when or how
Bennett’s DNA was deposited–just that it was there.
She said it would be very easy for a person coughing or
sneezing in that area to deposit their DNA on the
object’s surface. She said if Bennett’s DNA was already
present on the cabinet from a prior cough, but later
someone else made a swipe with their hand without
leaving detectable DNA, it would explain why
Bennett’s DNA was in the bloodstain. Similarly, the
scenario could be explained if Bennett’s DNA was
deposited on the cabinet from coughing at an earlier
time, and that third person swiped it with a gloved
hand and, therefore, left no DNA on the blood pattern.
In the case of someone like Bennett, a heavy shedder,
if he were to shake hands with someone like Moore,
App. 15
and then she casually brushed her hand against her
shirt later, this could result in transferring Bennett’s
DNA onto her shirt. Wilson concluded with respect to
Bennett’s “what-if examples” that she cannot say how
his DNA got on the items but could only say “is this
possible or not.” RP (Mar. 2, 2017) at 5833. Wilson also
confirmed that DNA can be detected on an item even
many years after it was deposited, depending on
storage conditions.
Bennett testified on his own behalf. He said in July
2014, when he signed the lease at Moore’s house, he
had a tickle in his throat and went into her kitchen for
a glass of water while coughing five or six times. He
had mentioned this in an interview with Detective
Hufman. He also said he never touched the pillow.
Bennett testified he was at Moore’s house three
times on September 7. He first arrived at around 12:30
p.m. and paid her $525 for rent. He petted her dog
while he was there. He went home and returned a
short time later to pay $400 that he had forgotten to
bring for the remainder owed on his deposit. He paid
everything in cash. He said Moore wrote him receipts
from her carbon copy receipt book and placed the
money in her bank bag. He returned to Moore’s house
a third time, at around 1:00 p.m., to retrieve his wallet,
which he had inadvertently left behind. He said Moore
met him at the front door and handed him his wallet.
He thanked her, and they shook hands. He never
returned to her house or to her alleyway at any time
that day. He denied any involvement in Moore’s
murder and insisted he would have no reason to kill
her. He denied she told him he would have to find a
App. 16
new place to live. Trisha Bennett likewise testified that
neither she nor her husband were ever in the alleyway
near Moore’s house on September 7. She denied
involvement in cleaning up the murder scene.
Bennett also denied asking Nicholas Cobb for a
$700 loan in September to pay his rent. He did concede
he had not repaid $750 that he had borrowed from
Mike Cobb for August move-in costs. Detective Hufman
asked Bennett for the rent receipts, but he was never
able to find them.
Moore’s personal representative, Terry Kinzel, had
earlier testified she inventoried Moore’s belongings
after her death, including her business records. She
knew Moore as a meticulous record keeper. Ms. Kinzel
said there was only $418.59 in the bank bag Moore
used for rent payments. She also said she could not
find Moore’s rent receipt book for 2014, which was the
only missing receipt book, and she did not find a
September 2014 receipt for Bennett.
The jury acquitted Bennett of first degree murder,
but found him guilty of second degree murder. The jury
also found that the State had proved two aggravating
circumstances–deliberate cruelty and particularly
vulnerable victim. The court denied motions by Bennett
to vacate the aggravators for insufficient evidence and
vagueness and to be sentenced within the standard
range of 134 to 234 months. The court imposed a 660month exceptional sentence.
Bennett timely appealed.
App. 17
ANALYSIS
Bennett argues the trial court erred by denying his
CrR 8.3(b) motion to dismiss for governmental
mismanagement, by excluding “other suspect”
evidence, and by imposing an exceptional sentence. He
also argues prosecutorial misconduct during closing
argument deprived him of a fair trial.
A. GOVERNMENTAL MISCONDUCT
Bennett argues the trial court abused its discretion
in denying his motion to dismiss the case for
governmental mismanagement, or, in the alternative,
to suppress evidence, due to the State’s withholding of
the jail call recordings and belated DNA testing of
Moore’s blood-soaked shirt. He contends this
mismanagement prejudiced his right to a fair trial by
forcing him to choose between his rights to a speedy
trial and effective counsel.
1. The governing court rule
CrR 8.3(b) provides:
The court, in the furtherance of justice, after
notice and hearing, may dismiss any criminal
prosecution due to arbitrary action or
governmental misconduct when there has been
prejudice to the rights of the accused which
materially affect the accused’s right to a fair
trial. The court shall set forth its reasons in a
written order.
App. 18
2. Standard of review
We review a court’s ruling under CrR 8.3(b) for
abuse of discretion. State v. Michielli, 132 Wn.2d 229,
239-40, 937 P.2d 587 (1997). “A court abuses its
discretion when an ‘order is manifestly unreasonable or
based on untenable grounds.’” State v. SalgadoMendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017)
(internal quotation marks omitted) (quoting In re Pers.
Restraint of Rhome, 172 Wn.2d 654, 668, 260 P.3d 874
(2011)).
3. Legal standards
To obtain dismissal under CrR 8.3(b), the defendant
must show by a preponderance of the evidence
(1) arbitrary action or governmental misconduct and
(2) actual prejudice affecting the defendant’s right to a
fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d
638 (2003) (quoting Michielli, 132 Wn.2d at 239-40).
Dismissal of charges under CrR 8.3(b) is an
extraordinary remedy saved for egregious cases and is
improper absent material prejudice to the rights of the
accused. State v. Moen, 150 Wn.2d 221, 226, 76 P.3d
721 (2003); Rohrich, 149 Wn.2d at 653. Governmental
misconduct can be something as basic as simple
mismanagement. State v. Barry, 184 Wn. App. 790,
797, 339 P.3d 200 (2014) (citing Michielli, 132 Wn.2d at
239). Violations of the State’s discovery obligations can
support a finding of governmental misconduct. Id. at
796-97; Salgado-Mendoza, 189 Wn.2d at 429.
Meeting the prejudice prong of CrR 8.3(b) “requires
a showing of not merely speculative prejudice but
actual prejudice to the defendant’s right to a fair trial.”
App. 19
Rohrich, 149 Wn.2d at 649. Late disclosure of material
facts can support a finding of actual prejudice.
Salgado-Mendoza, 189 Wn.2d at 432. “In the dismissal
context, a defendant is prejudiced when delayed
disclosure interjects ‘new facts’ shortly before litigation,
forcing him to choose between his right to a speedy
trial and to be represented by an adequately prepared
attorney.” Id.; Michielli, 132 Wn.2d at 240; Barry, 184
Wn. App. at 796-97.
4. Application of legal standards to facts
Jail call recordings
As stated above, Detective Hufman accumulated
some 250 hours of recordings of Bennett’s jail calls, but
due to resource limitations, he was nine months behind
in listening to them. It was not until sometime after
June 6, 2016, when he first heard a late 2014
conversation in which Bennett cautioned his wife they
needed to keep their stories straight. Hufman
immediately notified the prosecutor’s office. On June
15, he delivered a report and a copy of all of the
recordings he had reviewed to date. Hufman admitted
he had, until then, unilaterally decided to withhold the
recordings because he did not want Bennett to know
law enforcement was reviewing his calls. Defense
counsel Bustamante was, thus, not apprised of the
recordings until June 17, 2016, when the prosecutor
turned over a CD containing a recording of all the jail
calls.
In responding to Bennett’s CrR 8.3(b) dismissal
motion, the prosecutor stated that Bennett’s late 2014
call with his wife about keeping their stories straight
App. 20
was the sole recording the State might use at trial and
only in the event Bennett’s wife testified. Bustamante
maintained that the defense team would be unable to
finish listening to 250+ hours of recordings by the trial
date. He told the court it was necessary to listen to all
of the calls for potential exculpatory evidence that
could impact his trial strategy.
The prosecution has a continuing duty to disclose to
the defense any written or recorded statements made
by the defendant. CrR 4.7(a)(1)(ii), (h)(2). Contrary to
what the State suggests, CrR 4.7(a)(1)(ii) does not
condition the prosecutor’s obligation on intent to use
the statements at trial.
Here, as the trial court recognized, there was no
governmental misconduct. Detective Hufman learned
of the “stories straight” recording on June 6 and
immediately notified the prosecutor’s office. CP at 286.
On June 15, he delivered a report and a copy of all of
the recordings to the prosecutor’s office. The prosecutor
promptly disclosed the recordings to Bennett two days
later and identified to the defense the “stories straight”
recording that he intended to use for impeachment
purposes. The government, thus, promptly disclosed
the recording once it learned of it.
To the extent the delay attributable to Detective
Hufman’s time constraints can be considered
mismanagement, it is not of a magnitude to warrant
dismissal or suppression. Moreover, the fact the
recordings and the contents of those conversations were
within Bennett’s own knowledge cannot be a surprise
to him. If Bennett had exculpatory information, he
knew the information and could have informed defense
App. 21
counsel without counsel reviewing all of the recordings.
To the extent defense counsel actually believed all of
the recordings needed to be reviewed, a two-month trial
continuance was an appropriate remedy.
Testing of the blood-soaked shirt
As stated above, Moore’s blood-soaked shirt was
collected by investigators in September 2014, but
forensic expert Wilson believed it was too saturated to
likely yield any DNA other than Moore’s. And due to
resource limitations, the crime lab limited initial
testing to items most likely to identify the murderer. A
deputy prosecutor later asked Wilson to test the shirt
when she disclosed to him in late May 2016 that
Bennett was an unusually heavy shedder of his DNA.
Wilson agreed to test the shirt because Bennett had left
what she considered to be a surprisingly high amount
of DNA on the pillow, and she concluded there was a
greater chance the shirt would yield useful evidence.
Given the unanticipated accelerated proceedings, the
State had not intended to test the shirt if trial had
remained set for June 8, but instructed Wilson to do so
on May 31 , when, on that date, trial was continued to
July 7.
When Wilson told Bustamante during the June 1
interview that the shirt would be tested, he approved.
The State offered to allow a defense expert to observe
the testing, provided it was not Bennett’s disclosed
DNA expert, Dr. Libby, who was barred from the
testing areas in all WSP crime labs. The State gave
Bustamante a list of private DNA experts, but he
declined to use someone other than Dr. Libby.
App. 22
At the June 6 pretrial hearing, Bustamante voiced
concern to the court about his June 1 interview with
Wilson. He criticized the State for not having tested the
shirt sooner and said he would oppose any further
requests for continuances while awaiting the results.
He said the results should be excluded if they are not
produced one week before trial. The prosecutor
explained he had wanted the shirt tested earlier but
the crime lab declined because their policy is to test
only so many pieces in a case.
Bustamante responded:
[A]gain, in principle, I am totally in favor of
testing these items. I believe they may exonerate
my client. However, the timeliness is the only
thing I question. And if the state crime lab says,
no, we’re not going to test it a year and a half
ago and then they suddenly decide to do it a . . .
month before the trial, then that’s government
mismanagement, even though it may not be the
prosecuting attorney’s fault.
RP (June 6, 2016) at 25.
When the June 29 test results showed that
Bennett’s DNA was on the blood-soaked shirt, Bennett
moved for dismissal on grounds the belated testing was
inexcusable governmental mismanagement. During the
July 5 hearing, Bustamante argued that Wilson knew
since late 2014 that Bennett was a “heavy shedder” of
DNA, yet the shirt was not tested until June 2016. He
argued the crime lab’s resource limitations are not a
valid excuse for delay. For the first time, he contended
the testing delay forced him to ask for a continuance to
App. 23
analyze the DNA results and placed him in a Hobson’s
choice between his rights to a speedy trial and effective
assistance of counsel. During the hearing, Bustamante
confirmed he had favored the testing just one month
earlier at the previous hearing. Given the results,
which Bustamante characterized as a “mixed bag” and
“potentially exculpatory” because only minuscule
partial profiles of Bennett’s DNA were present, he said
it would take Dr. Libby four to five weeks to conduct
his testing. RP (July 5, 2016) at 69. Thus, if not granted
the remedy of dismissal or suppression, Bustamante
requested a two-month trial continuance. The court
summarily declined to dismiss the case or suppress
evidence.
The court commented to the prosecutor:
But it sounds to me like you’re agreeing with
Mr. Bustamante, when he says that Mr. Bennett
has been placed in a position where he has to
choose between the effective assistance of
counsel and a speedy trial. And that that delay
is due to the state’s failure to test this shirt a
year and a half ago.
RP (July 5, 2016) at 81. The prosecutor partially agreed
and explained he had fast-tracked the testing in June,
and defense counsel invited the test because he thought
the results would be exculpatory. The court ultimately
granted a two-month trial continuance.
Given Bennett’s unanticipated refusal to continue
the trial date past July 2016, and given Bennett’s
tactical decisions surrounding the testing of the shirt,
we agree with the State that Bennett has no grounds to
App. 24
claim mismanagement. Even though the State had the
blood-soaked shirt since September 2014, Bustamante
had favored testing in June 2016 because he believed
the results would be exculpatory. It is apparent that
Bennett rolled the dice, gambling that the test results
would be exculpatory. Bennett’s failure to object to the
late testing–indeed his agreement to it–renders the
trial court’s decision to grant a two-month continuance
very reasonable. We conclude the trial court did not
abuse its discretion.
B. OTHER SUSPECT EVIDENCE
Bennett argues the trial court violated his
constitutional right to present a defense when it
excluded his “other suspect” evidence. He argues he
should have been allowed to present evidence and
argue that (Moore’s daughter) Wendy Swain, and (her
boyfriend) John Rehfield committed the murder, or
Moore’s tenants Charles and Brandi Larr committed
the murder, or any other tenant who had not paid
Moore rent may have committed the murder. Bennett
contends the trial court misapplied the law by
requiring him to establish that these other suspects
had taken a step indicating an intention to act on their
various motives for committing the crime.
1. Standard of review
We review claims of evidentiary error implicating
constitutional rights for an abuse of discretion. State v.
Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019); State
v. Blair, 3 Wn. App. 2d 343, 351, 415 P.3d 1232 (2018).
We then review claims the evidentiary ruling violated
App. 25
the defendant’s constitutional right to present a
defense de novo. Arndt, 194 Wn.2d at 797.
2. Legal principles for evidentiary ruling
A trial court’s exclusion of “other suspect” evidence
is an application of the general evidentiary rule that
excludes evidence if its probative value is outweighed
by unfair prejudice, confusion of the issues, or potential
to mislead the jury. State v. Franklin, 180 Wn.2d 371,
378, 325 P.3d 159 (2014) (quoting Holmes v. South
Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L.
Ed. 2d 503 (2006)). Before the trial court will admit
“other suspect” evidence, the defendant must present
a combination of facts or circumstances that points to
a nonspeculative link between the other suspect and
the crime. Franklin, 180 Wn.2d at 381. The standard
for the relevance of such evidence is whether it tends to
connect someone other than the defendant with the
charged crime. Id.
The inquiry “‘focuse[s] upon whether the evidence
offered tends to create a reasonable doubt as to the
defendant’s guilt, not whether it establishes the guilt of
the third party beyond a reasonable doubt.’” Id.
(alteration in original) (quoting Smithart v. State, 988
P.2d 583, 588 & n.21 (Alaska 1999)). Additionally, the
probative value of “other suspect” evidence must be
based on whether it has a logical connection to the
crime, not based on the strength of the State’s case. Id.
at 381-82.
App. 26
The Franklin court discussed the rule in Downs2–
that other suspect evidence is admissible only if the
defendant can show “‘a train of facts or circumstances
as tend clearly to point out some one besides the
[accused] as the guilty party.’” Franklin, 180 Wn.2d at
379 (quoting State v. Downs, 168 Wash. 664, 667, 13
P.2d 1 (1932)). The Franklin court affirmed the rule,
but explained “‘[m]ere evidence of motive in another
party, or motive coupled with threats of such other
person, is inadmissible, unless coupled with other
evidence tending to connect such other person with the
actual commission of the crime charged.’” Id.
(alteration in original) (quoting State v. Kwan, 174
Wash. 528, 533, 25 P.2d 104 (1933)). The Franklin
court also noted, “‘[r]emote acts, disconnected and
outside of the crime itself, cannot be separately proved
for such a purpose.’” Id. at 380 (alteration in original)
(quoting Kwan, 174 Wash. at 533).
Franklin, quoting People v. Mendez, 193 Cal. 39, 52,
223 P. 65 (1924), overruled in part on other grounds by
People v. McCaughan, 49 Cal. 2d 409, 317 P.2d 974
(1957), explained that these rules rested on the
necessity that trial of cases be both orderly and
expeditious. Id. Without requiring a sufficient nexus
between the other suspect and the crime, a defendant
“‘might easily . . . produce evidence tending to show
hundreds of other persons had some motive or animus
against the deceased . . . .’” Id. (quoting Mendez, 193
Cal. at 52).
2
State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932).
App. 27
“When the State’s case is entirely circumstantial,
the Downs rule is relaxed to an extent to allow a reply
in kind: the ‘defendant may neutralize or overcome
such evidence by presenting sufficient evidence of the
same character tending to identify some other person
as the perpetrator of the crime.”’ State v. Hilton, 164
Wn. App. 81, 99, 261 P.3d 683 (2011) (quoting State v.
Clark, 78 Wn. App. 471, 479, 898 P.2d 854 (1995)).
3. Legal principles for the constitutional right to
present a defense
Both the Sixth Amendment to the United States
Constitution and article I, section 22 of the Washington
Constitution guarantee a criminal defendant the right
to present a defense. State v. Strizheus, 163 Wn. App.
820, 829-30, 262 P.3d 100 (2011). This right includes
the right to examine witnesses and to offer testimony.
State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010)
(citing Chambers v. Mississippi, 410 U.S. 284, 294, 93
S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). These rights are
not absolute. “Evidence that a defendant seeks to
introduce must be of at least minimal relevance.” Id.
(internal quotation marks omitted). A criminal
defendant does not have a constitutional right to
present irrelevant or inadmissible evidence. Id.; State
v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
“‘[I]f relevant, the burden is on the State to show
the evidence is so prejudicial as to disrupt the fairness
of the fact-finding process at trial.’” Jones, 168 Wn.2d
at 720 (quoting State v. Darden, 145 Wn.2d 612, 622,
41 P.3d 1189 (2002)). The integrity of the truth-finding
process and a defendant’s right to a fair trial are
important considerations. Hudlow, 99 Wn.2d at 14.
App. 28
4. Bennett’s “other suspect” evidence
Bennett points to Detective Hufman’s speculation at
the outset of the investigation that a close family
member committed the crime because there were no
signs of forced entry. Hufman thought it appeared to be
a “rage” killing and staged burglary because valuables
such as cash, credit cards, and a coin collection worth
several thousand dollars were clearly accessible but not
stolen. According to Bennett, Wendy Swain and John
Rehfield had opportunity and ability to commit the
crime because Swain lived within one mile of Moore,
was welcome in her home, and could not verify her
claim she was out “rock picking” on the day of the
murder. RP (Feb. 6, 2017) at 3163. Bennett contended
Swain had motive because she stood to receive a
significant inheritance from her mother and also had
had an argumentative relationship with her. According
to Moore’s sister-in-law, Camilla Hatch, Moore’s
children “were just waiting for her to die.” CP at 64.
In addition, two days after the murder, Swain and
Rehfield went to Moore’s bank and asked how someone
could gain access to a safe deposit box belonging to a
person who had become deceased. Bennett theorized
this was circumstantial evidence that Swain and
Rehfield may not have found a particular item when
they ransacked the house, so they went to the safe
deposit box to look for it. The bank manager, Jeff
Mackey, said Rehfield did most of the talking for the
two of them. He described the interaction as “very
‘[c]old.’” CP at 64. Detective Hufman reported a similar
experience when he gave Swain the keys to Moore’s
house after the crime scene was processed. He
App. 29
recommended they hire a cleaning service but Rehfield
said they would do cleanup themselves. Hufman
testified at his first trial that his contact with Swain
and Rehfield was “very cold and unsettling.” CP at 8.
Rehfield was given a polygraph examination, and the
examiner determined he “‘was not being truthful
during the testing.’” CP at 68. Bennett also proffered
that some of Moore’s other tenants, in particular
Charles and Brandi Larr, may have committed the
crime.
The State’s theory was that Bennett killed Moore
because he could not afford to pay rent and was about
to be evicted, but Bennett pointed out that other
tenants had been further in arrears. The Larrs had
problems with timely rent payments. Wendy Swain
told Detective Hufman early in the investigation that
the Larrs could have had something to do with the
killing because they were about to be given an eviction
notice. Their next door neighbor, Daniel Keyser,
testified at the first trial that a few days prior to the
murder, he heard Moore arguing with Brandi Larr in
the Larrs’ front yard. Keyser heard Moore loudly say,
“‘Do I have to show you the lease?”’ CP at 871. Brandi
Larr testified at the first trial and denied the argument
ever took place. In his “other suspect” proffer, Bennett
contended the denial of the argument was suspicious
and showed consciousness of guilt. Another neighbor,
Anastasia Bunakova, saw a man cross the street from
the general direction of the Larrs’ residence and enter
the back of Moore’s house on the afternoon of
September 7. Bennett contended this supported the
theory that Charles Larr was the killer.
App. 30
5. Hearing on State’s motion to exclude
At the hearing on the State’s motion to exclude
“other suspect” evidence, the court first commented
that Bennett’s offer of proof showed “a strong argument
here about motive and opportunity.” RP (Feb. 16, 2017)
at 3154. The court then stated:
The question is what evidence is it that links
that motive and opportunity to potentially this
crime?” And I think the case that I looked at,
State vs. Starbuck, [189 Wn. App. 740, 752, 355
P.3d 1167 (2015)] says, “The proposed evidence
must also show that the third party took a step
indicating an intention to act on the motive or
opportunity.” And so that’s what I’m searching
for. What is the evidence that shows a step
indicating an intention to act on the motive or
opportunity? I think you’ve laid out motive and
opportunity, potentially, but what is it there
that’s going to show me an intention to act on
either the motive or opportunity?
RP (Feb. 6, 2017) at 3154-55.
Defense counsel Bustamante emphasized the
principle recited in Starbuck that when, as here, the
State’s case is entirely circumstantial, the train of facts
or circumstances rule in Downs is relaxed to allow the
defendant to present evidence of the same character
tending to identify some other person as the
perpetrator of the crime. Bustamante argued other
circumstantial evidence included the fact Moore’s
rental receipt book was missing, thus inferring she
could have been killed by any one of her tenants or that
App. 31
Swain had taken it upon gaining access to Moore’s
house after her death and was attempting to cast
blame on a tenant. He argued other suspects could also
be inferred because there were unidentified footprints
at the scene and the DNA of two other unknown males
besides Bennett’s was also present on the pillow and on
Moore’s shirt. Bustamante conceded the evidence is
circumstantial that someone besides Bennett was there
at the time of the killing, but argued the evidence
should be considered and weighed by a jury because the
State’s case also is circumstantial.
The State responded that there was no evidence
beyond speculation that Swain, Rehfield, or either of
the Larrs were at Moore’s house on the day of the
murder or that they had anything to do with the crime.
Anastasia Bunakova did not pick Rehfield or Larr in a
photomontage, but her daughter Vera Bunakova had
picked Bennett as the person she saw in the alley
behind Moore’s house. Bennett was the only one known
to be present in Moore’s house on the day of the
murder.
In granting the State’s motion, the court reasoned:
[B]asically I’m just relying on the Starbuck case
and the ones that it cites to, and in particular
the line that I quoted, which was, “The proposed
evidence must also show that the third party
took a step indicating an intention to act on the
motive or opportunity.”
As far as I can tell, I’ve not heard anything
that identifies evidence that would show some
type of step taken by any of these other
App. 32
individuals that the defendant has identified as
potentially having committed the crime.
I’ll also note that there’s a case called State v.
Franklin, this is 180 Wn.2d 371, they cite to a
California case, for an interesting quote, this is
from [People v. Mendez, 193 Cal. at 52], and it
says, “It is quite apparent that if evidence of
motive alone upon the part of other persons were
admissible, that in a case involving the killing of
a man who had led an active and aggressive life,
it might easily be possible for the defendants to
produce evidence tending to show that hundreds
of other persons had some motive or animus
against the deceased.”
And I think that’s kind of instructive as to
what we have here, which is we have somebody
obviously who is deceased, and there might be
other people who might have had a motive. And
certainly, you know, the motive can be
identified. But without something that shows
some affirmative step towards actually doing the
crime, it comes down to basically it not being
relevant enough to outweigh the burden or
outweigh the–what’s the rule say, [ER] 403?–
outweigh the danger of potential confusion of the
issues or misleading the jury or potentially
unfair prejudice.
RP (Feb. 6, 2017) at 3170-71 (emphasis added).
6. Application of facts to legal principles
The trial court relied on language in Starbuck that
requires Bennett to show that the other suspect “took
a step indicating an intention to act on the motive” to
App. 33
commit the crime. 189 Wn. App. at 752. Support for
this requirement can be traced back to language in
Downs that “a train of facts or circumstances as tend
clearly to point out someone besides the accused as the
guilty party.”3 Downs, 168 Wash. at 667. We need not
determine whether the “took a step indicating an
intention to act” requirement in Starbuck, Rafay, and
Rehak is consistent with Downs. Rather, we can affirm
the trial court simply by applying the legal principles
outlined above in part B2, principles that Bennett does
not contest.
The State’s evidence against Bennett was both
circumstantial and direct. The State’s circumstantial
evidence included DNA consistent with Bennett’s on
Moore’s blood-soaked shirt, the pillow on her head, a
cigarette butt near Moore’s body, and a blood smear on
a kitchen cabinet. In addition, Bennett was the last
person known to have seen Moore alive.
The State’s direct evidence consisted of a recorded
jail call between Bennett and his wife, in which
Bennett used his cellmate’s callout identification code.
The most inculpatory statement Bennett made was:
Trisha, I’m not going to drag you down in this.
I’m going to say this on the phone so it’s set in
3
Starbuck cites State v. Rafay, 168 Wn. App. 734, 800, 285 P.3d 83
(2012), which cites State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d
651 (1992), which cites and quotes this language in Downs.
App. 34
stone. Okay? You know that I did it, and you
were there with me.
CP at 1307. Although Bennett and his wife testified
they were not talking about the murder, they were
talking about the criminal case both before and after
the quoted statement. Shortly after the statement,
Bennett told his wife:
We hold each other hostage . . . . Because right
now, you can hang me by my neck. And I’m
being serious. Because this account is going to be
canceled tomorrow because my celly gets out
tomorrow . . . . So all this shit will be gone by
tomorrow. You can hang me out to dry in a
matter of seconds . . . . But I can hang you out to
dry in a matter of seconds. We hold each other
hostage. We’re at a Mexican standoff. . . .
CP at 1308. If the jury believed that Bennett’s
statements were a confession, a belief consistent with
the context of the statements, the confession was direct
evidence that Bennett was guilty of murder.
At the hearing to strike “other suspect” evidence,
Bennett failed to present a combination of facts or
circumstances that points to a nonspeculative link
between his proffered other suspects and the crime.
Although Bennett established his other suspects had
motive and opportunity–that is all he established.
First, Bennett failed to link Swain and Rehfield to
the crime with a train of facts or circumstances. For
instance, there was no evidence that either Swain or
Rehfield was seen near Moore’s house after Moore
attended Sunday church, or that either had ever
App. 35
threatened to kill Moore, or either person’s DNA was
found at the murder scene. In fact, Rehfield’s DNA was
excluded as being present on Moore’s shirt. The only
nonmotive evidence Bennett points to is Rehfield’s
question to a bank officer after the murder, about how
Swain might access her mother’s safe deposit box if she
did not have the key. Such a question is not uncommon
or suspicious.
Bennett also failed to link Mr. Larr or other tenants
to the crime with a train of facts or circumstances. It is
true that a man was seen walking into Moore’s house
the afternoon of her murder, but the only man
identified as being near Moore’s house the afternoon of
her murder was Bennett. It also is true that DNA of
three men was found on the pillow and Moore’s bloody
shirt, but the only DNA identified was DNA consistent
with Bennett’s. It also is true that other tenants were
behind in rent, but the only tenant known to have seen
Moore the day she was murdered was Bennett. He was
the last known person to have seen her alive, and DNA
consistent with his was found on multiple crime scene
items. In sum, any tenant could have killed Moore, but
only Bennett was linked to the murder with a train of
facts or circumstances.
Mere evidence of motive in another party, or
motive coupled with threats of such other
person, is inadmissible, unless coupled with
other evidence tending to connect such other
person with the actual commission of the crime
charged.
Kwan, 174 Wash. at 533.
App. 36
We conclude the trial court did not abuse its
discretion by excluding Bennett’s proffered “other
suspect” evidence. The evidence was so speculative and
clearly inadmissible under applicable evidentiary
standards that its admission would have disrupted the
fairness of the fact-finding process. For this reason,
Bennett had no constitutional right to present it. Jones,
168 Wn.2d at 720.
C. PROSECUTORIAL MISCONDUCT
Bennett contends the prosecutor committed
prejudicial misconduct on six separate occasions during
closing argument and rebuttal. The alleged instances
of misconduct are discussed individually below.
Legal principles
To prevail on a claim of prosecutorial misconduct,
the defendant must establish “‘that the prosecutor’s
conduct was both improper and prejudicial in the
context of the entire record and the circumstances at
trial.’” State v. Thorgerson, 172 Wn.2d 438, 442, 258
P.3d 43 (2011) (internal quotation marks omitted)
(quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d
126 (2008)). Only when the conduct is improper does
the reviewing court determine whether the conduct
resulted in prejudice. State v. Emery, 174 Wn.2d 741,
760, 278 P.3d 653 (2012). The State has wide latitude
in drawing and expressing reasonable inferences from
the evidence, including inferences about credibility.
State v. Thompson, 169 Wn. App. 436, 496, 290 P.3d
996 (2012). Misconduct is prejudicial if there is a
substantial likelihood it affected the verdict. Emery,
174 Wn.2d at 760-61.
App. 37
However, a defendant who fails to object to the
State’s improper act at trial waives any error unless
the act was so flagrant and ill intentioned that an
instruction could not have cured the resulting
prejudice. Id.; Thorgerson, 172 Wn.2d at 443. In
making that determination, the courts “focus less on
whether the prosecutor’s misconduct was flagrant or ill
intentioned and more on whether the resulting
prejudice could have been cured.” Emery, 174 Wn.2d at
762.
Arguing facts not in evidence re: Bodziak testimony
This issue arises from Bennett’s request for an
order in limine to preclude the State’s shoeprint expert,
William Bodziak, from testifying to any facts or
conclusions not specifically stated in his report.
Bennett focuses on the following portion of Bodziak’s
report in reference to a single bloody shoeprint at the
crime scene:
In addition, present throughout this entire area
are wipe marks in multiple directions. The
wiping action has physically smeared the blood
in some of those areas, including portions of the
herringbone pattern. The characteristics evident
[in] these images as well as images taken before
enhancement are typical of attempts to clean-up
bloody footwear evidence.
CP at 1373 (emphasis added).
Bennett argued that saying evidence is “typical of
attempts to clean-up footwear evidence” is quite
different from rendering an opinion that someone
actually tried to clean up the scene. He argued Bodziak
App. 38
did not opine that the wipe marks were evidence that
someone cleaned up bloody footwear prints in this case
and it would be unfair to require the defense to respond
to such an opinion without advance notice. The court
commented that it expected Bodziak will say exactly
what he wrote because that is all he opined. The
parties agreed. The court later reiterated its ruling:
So with regard to Bodziak, when he’s asked the
question to the effect, did you see any evidence
of attempts to clean, his answer needs to be in
line with what he states, which is what I saw in
the images taken before enhancement are
typical of attempts to clean up bloody footwear
evidence.
RP (Mar. 3, 2017) at 6037. The prosecutor concurred.
The court confirmed these limitations with Mr. Bodziak
and asked whether he would be able to stick with his
opinion as stated in the report. Bodziak clarified that
it was his opinion that the footprint was cleaned up.
Bennett argued it would be unfair to allow him to
deviate from his report and, if allowed, the defense
would need a recess to hire an expert and move for a
Frye4 hearing.
The Court again reiterated its ruling:
And so there is a slight distinction there.
Certainly, [the prosecutor] can argue this in
closing and say, based on that it appears to have
evidence of a typical attempt to clean up bloody
footwear, that’s certainly an argument you can
4
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
App. 39
make before the jury. But to have the expert
come up and actually express that opinion that
in this case there was, in fact, in his opinion, an
attempt to clean up this particular scene, there
is a slight difference there.
RP (Mar. 6, 2017) at 6069. The prosecutor responded:
Judge, I know we’ve got–but can I ask the court,
what do you make of the sentence before that
where he says, “In addition, present throughout
this entire area”– and he’s referring to this shoe
print–“are wipe marks in multiple directions.
The wiping action has physically smeared the
blood in some of those areas, including portions
of the herringbone pattern.”
That clearly says that he sees some wiping
action through that herringbone. I mean I don’t
know how else you could draw the conclusion
that–
RP (Mar. 6, 2017) at 6069-70. The court clarified:
[H]e can state that entire paragraph. That is his
opinion that he put in this. It’s the step further
that I ruled on Friday that he’s prohibited from
stating, which is that officially in this scene,
there was an attempt to clean up. But he can
certainly state that whole paragraph, if that’s
what he wants to state. And then you can argue
in closing that his opinion, based on what he
says, is, in fact, what you just argued.
RP (Mar. 6, 2017) at 6070.
App. 40
Bodziak testified about the wipe marks visible in
photographs of the shoeprint. In reference to slide
number 8, he said:
You see on the left from maybe running at 10 :00
to 4:00 direction, from left to right, are a series
of streaks. . . . And on the right, right
underneath the orange–the B on the orange
paper are again some other streaks. And at the
bottom part of those there are actually streaks
running down in a different direction. . . . So at
least three different angles of wiping or wipe
marks or streaks in these areas. And in the
center are some remnants of a herringbone
design impression.
RP (Mar. 6, 2017) at 6104. Addressing slide number 9,
Bodziak said:
In addition, present throughout this entire area
are wipe marks in multiple directions. So these
were the streaks, this direction, this direction.
And then over here outside of this close-up over
in this direction. So at least three very obvious
areas where there’s some wipe marks. . . . The
wiping action has physically smeared the blood
in some of those areas, including portions of the
herringbone pattern.
RP (Mar. 6, 2017) at 6108. Bodziak continued:
So this is just showing that the wipe marks are
not just in different directions, but there’s
actually some additional ones in there that are
curved. Then the end of the paragraph of my
report says, “The characteristics evident in these
App. 41
images, as well as images taken before
enhancement, are typical of attempts to clean-up
bloody footwear evidence.”
RP (Mar. 6, 2017) at 6110.
The prosecutor then asked Bodziak to confirm
whether he found evidence of what he thought was
characteristics of a wipe mark in a curved nature.
Bodziak responded, “Yes. If someone’s wiping, it’s not
always straight. . . . There’s both evidence of curvature,
curving streaks and straight streaks in multiple areas.”
RP (Mar. 6, 2017) at 6111.
In closing argument, the prosecutor referred to
Bodziak’s testimony regarding the shoeprint. He stated
Bodziak’s “observation was that there was
clear evidence of clean-up to the impression B, the
blood.” RP (Mar. 21, 2017) at 8202. The prosecutor
contemporaneously showed a PowerPoint purporting to
summarize Bodziak’s testimony, including one slide
stating in bold: “Clear evidence of clean up to
Impression B (Blood).” Ex. 528, slide 32.
Bennett objected and moved for a mistrial on
grounds the argument stated facts not in evidence. The
court overruled the objection and directed the jury to
consider only the evidence it believes was presented.
The prosecutor continued:
And in those photographs, you heard him
testify about the clear swipe marks around and
through the impressions. The swipe marks are
multi-directional, as well. His testimony is this is
a typical characteristic of clean-up. . . . And the
testimony he’s talking about looking at the
App. 42
purple there, you can see the swipe marks
through here and the swipe marks coming along
there that he was talking about, and the swipe
marks up there.
RP (Mar. 21, 2017) at 8203 (emphasis added).
During a recess, Bennett renewed his objection and
motion for mistrial. The prosecutor responded that
following the court’s admonition to the jury regarding
the “clear evidence of clean-up” statement, he “left it
be. And . . . didn’t go back to there.” RP (Mar. 21, 2017)
at 8224. After commenting that Bodziak’s testimony
had included the phrase “[a]ttempt to clean-up,” the
court said it considered the prosecutor’s use of the
phrase “clear evidence of clean-up” to be argument. The
court concluded: “I don’t see that as an issue.” RP (Mar.
21, 2017) at 8225.
In rebuttal closing, the prosecutor again referred to
the shoeprint, without objection from Bennett:
Bill Bodziak talked about . . . a conscious
attempt to clean that area up. Do you remember
the illustration he showed you, showing the
wipes through the foot impression?
RP (Mar. 23, 2017) at 8588-89. The prosecutor showed
another PowerPoint slide stating there was “Evidence
of Clean up per Bodziak.” Ex. 528, slide 81. Again,
there was no objection.
The court instructed the jury, both orally at the end
of closing and in its written instructions, that the
lawyers’ statements are not evidence. The evidence is
the testimony and exhibits and that the jury must
App. 43
disregard any remark, statement, or argument that
was not supported by the evidence or the law in the
instructions provided.
A prosecutor commits reversible misconduct by
urging the jury to consider evidence outside the record.
State v. Pierce, 169 Wn. App. 533, 553, 280 P.3d 1158
(2012); State v. Jones, 144 Wn. App. 284, 293, 183 P.3d
307 (2008) (prosecutors are not permitted to make
prejudicial statements unsupported by the record). It is
the court’s role to sustain proper objections to
prosecutorial misconduct, and the court’s failure to do
so sends a message to the jury that the State’s
argument is legitimate. State v. Allen, 182 Wn.2d 364,
378, 341 P.3d 268 (2015).
The State’s initial “clear evidence of clean-up”
argument, without clarification, did not reflect
Bodziak’s testimony or comport with the trial court’s
ruling in limine. But in continuing his argument
immediately after Bennett’s objection and the court’s
admonition to the jury, the prosecutor walked back any
error by clarifying that Bodziak had testified that
the clear evidence of swipe marks was a typical
characteristic of cleanup. Unfortunately, the
prosecutor’s later argument–that Mr. Bodziak testified
about a conscious attempt to cleanup–again misstated
the evidence.
But these misstatements were not prejudicial
because they did not have a substantial likelihood of
affecting the jury’s verdict. Whether someone tried to
clean up a bloody shoeprint was not critical to
Bennett’s conviction. His conviction was based on
circumstantial evidence that he could not pay rent, his
App. 44
DNA being found on Moore’s blood-soaked shirt, the
pillow on her head, a cigarette butt next to her body,
and on a blood smear on the cabinet. His conviction
was also based on direct evidence of his confession–the
jail call where Bennett used his cellmate’ s callout code.
To the extent the prosecutor’s comments about
Bodziak’s testimony were improper, we conclude they
were not prejudicial.
Arguing facts not in evidence: Vera Bunakova saw
Bennett in the alley
This issue stems from Vera Bunakova’s trial
testimony that late in the afternoon on the day of the
murder, she was picking cucumbers along her alleyway
fence adjacent to Moore’s property when she saw a
“gentleman right around here walking and he was on
a cell phone approaching me.” RP (Mar. 1, 2017) at
5575. Bunakova said the man saw her and turned and
walked away, but not before they looked directly at one
another for two or three seconds. She saw the same
man walking with a female a short while later. Again,
the man turned away from Bunakova. She described
him as taller than 5’10”, not overweight, very young,
and wearing a dark baseball cap, dark T-shirt, and
dark wash, wide-legged jeans. Bunakova further
testified she had identified the man that she saw in the
alley in a photomontage shown to her at the
prosecutor’s office about one year after the murder. At
trial, she answered “correct” when asked whether her
initials next to a particular photograph in a montage
exhibit indicated the person she believed she saw
behind Moore’s house. RP (Mar. 1, 2017) at 5597. The
prosecutor then asked Bunakova: “From your
App. 45
observation today, is that person in the courtroom
today?” Bunakova answered, “Yes.” RP (Mar. 1, 2017)
at 5598. Bunakova then turned and identified Bennett
as both the man she believed she had seen in the alley
and had picked in the photomontage one year earlier.
The defense investigator Ellyn Berg testified she
was the one who presented the photomontage to Vera
Bunakova at the prosecutor’s office. On defense crossexamination, Berg said that when Bunakova picked out
Bennett she said she was a little more than 50 percent
sure it was him in the alley. According to Berg,
Bunakova seemed a lot more certain in her current
trial testimony than she was when shown the
photomontage in September 2015.
In closing, the prosecutor argued Vera Bunakova
“saw the defendant, Chad Bennett, from approximately
15 feet away in the alley on his cell phone. She testified
he looked right at Vera and made eye contact.” RP
(Mar. 21 , 2017) at 8207. Bennett objected on grounds
the prosecutor misstated the testimony and argued
facts not in evidence. He moved for a mistrial or at
least a curative instruction. The court overruled the
objection, stating, “So I will tell you the jury one more
time, you are the sole determiners or the individuals
who will identify what, in fact, the facts were as
presented. And ultimately this is just argument by the
attorneys.” RP (Mar. 21 , 2017) at 8207.
The State has wide latitude in drawing and
expressing reasonable inferences from the evidence,
including inferences about credibility. Thompson, 169
Wn. App. at 496. Identification does not require
knowledge of identity, as Bennett suggests. Vera
App. 46
Bunakova told the jury the man sitting at counsel table
was the man she identified in the photomontage–the
same man she saw twice in the alley and who made eye
contact with her. It was accurate for the prosecutor to
argue that Bunakova saw Bennett in the alley. Her
testimony was a matter of weight and credibility for
the jury to determine.
Bennett’s citation to Allen is inapposite. There, the
court committed prejudicial error in twice overruling
defense objections to the prosecutor’s misstatement of
the legal definition of “knowledge” in closing argument.
Allen, 182 Wn.2d at 378. There is no such error here.
Prosecutor’s emotional appeals during rebuttal
closing
This issue arises from the following statements in
the prosecutor’s rebuttal closing argument:
I also need to say–and I forgot to–because we
get up here and you’ve got a six-week trial, and
you forget about things. But I needed to say to
you that preliminarily, and I should have done
that, to acknowledge Judge Estudillo for
handling this case, six, seven weeks we’ve been
together, some of you may have become friends,
great friends in this process, but Judge Estudillo
handling this case, did an exceptional job. Tom
Bartunek, our court reporter, he and Claudia
Mills keeping track of everything that’s being
said, which is a monumental task and keeping
track, and keeping the lawyers straight with the
exhibits that Claudia goes through is a big job,
and the state wanted to acknowledge them.
App. 47
Along with Garey Clements, your bailiff, who is
taking you in and out of court. And all the jail
staff and the people that are here listening to
this case with great interest.
RP (Mar. 23, 2017) at 8529-30. Bennett did not object.
Bennett’s failure to object to the prosecutor’s
statements is a waiver of any error unless the act was
so flagrant and ill intentioned that an instruction could
not have cured the resulting prejudice. Emery, 174
Wn.2d at 760-61. The prosecutor’s statements
exhibiting courtesy are, at most, a de minimis attempt
to ingratiate himself with the jury. Bennett shows no
apparent prejudice and certainly none that could not
have been cured by an instruction.
The same is true even if Bennett had objected. In
State v. Scherf, 192 Wn.2d 350, 394, 429 P.3d 776
(2018), the prosecutor took advantage of his courtroom
seating position to smile and thank individual jurors
during voir dire. The defense twice objected, and the
court admonished the prosecutor. The Washington
Supreme Court rejected Scherf’s allegation of
prosecutorial misconduct. The court held that Scherf
did not show that the prosecutor’s contact with the
jurors raised the risk of influencing the verdict, any
such conduct was de minimis, and it did not deny
Scherf a fair trial. Id. at 395-96. Bennett likewise
shows no measurable prejudice.
Bennett’s cited case, State v. Walker, 182 Wn.2d
463, 341 P.3d 976 (2015), is not helpful. There, the
prosecutor committed flagrant, pervasive, and
incurable misconduct by using a PowerPoint
App. 48
presentation to confuse and mislead the jury, much like
the State had done in In re Personal Restraint of
Glassman, 175 Wn.2d 696, 286 P.3d 673 (2012).
Walker, 182 Wn.2d at 479. The prosecutor did not
confuse or mislead the jury here.
Prosecutor’s “we know” arguments
This issue arises from the prosecutor’s use of the
phrase “we know” in closing and rebuttal closing
argument. First, in closing argument, the prosecutor
discussed the earlier quoted jail call between Bennett
and his wife. The prosecutor displayed a PowerPoint
slide that said, “What we do know is they are
discussing this case during this call.” Ex. 528, slide 79.
Narrating the slide, the prosecutor argued:
What we do know is they are discussing this
case during this call. Chad states, “You know
that I did it, and you were there with me.” This
is the information they were discussing when
they were talking about holding each other
hostage multiple times.
RP (Mar. 22, 2017) at 8314-15. Bennett did not object.
The next day, in rebuttal closing, the prosecutor
was discussing the evidence of Bennett’s DNA on items
from the crime scene. The prosecutor stated:
The crime scene lab people, they went
through that, they tested everybody they
thought was in the house. That doesn’t mean
anybody else participated. But we know that
App. 49
Chad Bennett was there. We know that he
grabbed the center of that pillow. And the only
reasonable–
RP (Mar. 23, 2017) at 8531. Defense counsel objected to
“that form of argument, what we know” as being the
prosecutor’s opinion. RP (Mar. 23, 2017) at 8531. The
following exchange ensued:
MR. DANO: I apologize, Counsel. I know
counsel did that a few times himself, so–
MR. BUSTAMANTE: It’s easy enough.
MR. DANO: It’s an occupational hazard.
Sorry, folks.
The state’s position, I’ll say that, I’ve got to
keep saying that, the state’s position is that it’s
only–the only plausible explanation for that is
that Chad Bennett grabbed that pillow after he
killed Lucille Moore, and that’s why his DNA is
there.
RP (Mar. 23, 2017) at 8532. The Court did not weigh in
on the matter and the prosecutor resumed his
argument.
By failing to object, Bennett has waived the first
instance of alleged misconduct for using “we know”
along with the PowerPoint slide. The comment was not
so flagrant and ill intentioned that an instruction could
not have cured any resulting prejudice. Emery, 174
Wn.2d at 760-61. The statement is within the wide
latitude afforded the State to argue–contrary to the
Bennett’ testimonies–that they were, in fact, talking
about the murder.
App. 50
With regard to the second instance, Bennett must
show there is a substantial likelihood it affected the
verdict. Id. He does not meet that burden. The
prosecutor’s explanation to the jury that his argument
was the State’s position, based on the evidence,
essentially served as a curative instruction that
required no further discussion or input from the court.
As this court recently explained in State v. RodriguezPerez, 1 Wn. App. 2d 448, 460, 406 P.3d 658 (2017):
There is a difference between the prosecutor’s
personal opinion, as an independent fact, and an
opinion based on or deduced from the evidence.
State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d
221 (2006) (quoting State v. Armstrong, 37
Wash. 51, 54-55, 79 P. 490 (1905)). Misconduct
occurs only when it is clear and unmistakable
that the prosecutor is not arguing an inference
from the evidence but is expressing a personal
opinion. Id. at 54 (quoting State v.
Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d
59 (1983)).
Unlike in Bennett’s cited case of State v. Stith, 71 Wn.
App. 14, 21-22, 856 P.2d 415 (1993), the prosecutor was
not expressing his personal opinion here.
Burden shifting
Bennett argues the prosecutor shifted the burden of
proof by stating that if there was any favorable
evidence, the defense would have presented it. This
issue arises from the following argument by the
prosecutor in rebuttal closing, concerning initial steps
by law enforcement to lock down the crime scene:
App. 51
What did they do? They began processing the
scene. They were meticulous about changing
gloves. Counsel made a substantial–spent a lot
of time with you talking about DNA and crosscontamination and so forth. The state’s position
is if there was any evidence that there was actual
contamination of this crime scene, the defense
would have been talking about it. They talk
about a lot of possibilities, possibly this, possibly
that, possibly this. But there was nothing
pointed out that there was any contamination
introduced into this crime scene where Chad
Bennett’s DNA was planted on the cigarette
butt, on the pillow area–the pillow area. I know
you recall that Anna Wilson talked about that.
RP (Mar. 23, 2017) at 8526-27 (emphasis added).
Bennett did not object. The prosecutor then
summarized the State’s evidence of Bennett’s DNA on
each item and explained why Bennett’s speculative
hypotheses were unlikely.
A defendant has no duty to present evidence; the
State bears the burden of proving each element beyond
a reasonable doubt. State v. Fleming, 83 Wn. App. 209,
215, 921 P.2d 1076 (1996). It is misconduct for the
prosecutor to argue otherwise. Id.
Again, by failing to object, Bennett has waived the
issue unless the comments were so flagrant and ill
intentioned that an instruction could not have cured
any resulting prejudice. Emery, 174 Wn.2d at 760-61.
Allegedly improper arguments should be viewed in the
context of the total argument, the issues in the case,
and evidence addressed in the argument. State v.
App. 52
Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994); see
also Thorgerson, 172 Wn.2d at 442. Here, when viewed
in context, the prosecutor’s comments were an
appropriate response to the defense closing argument.
Bennett’s counsel made extensive closing argument
about various contamination/secondary transfer
hypotheses to explain exculpatory reasons for the
presence of Bennett’s DNA at the crime scene. He
theorized the killer may have been wearing gloves
because no male DNA was found on the victim’s neck;
thus, it is unknown how Bennett’s DNA could have
been deposited on the kitchen cabinet. He asked how
DNA from two unidentified males could have gotten on
Moore’s shirt when she was not known to be a
handshaker or hugger. He emphasized that the highly
trained CSRT professionals were constantly changing
gloves to avoid inadvertent transfer of DNA. He cited
to Trevor Allen’s and Anna Wilson’s testimony giving
hypothetical examples of ways DNA evidence can easily
be contaminated or deposited, both through direct
contact and secondary transfer, which can occur before
investigators arrived, while they were processing the
crime scene, or even at the crime laboratory. He argued
various hypothetical theories of how Bennett’s DNA
could have come into contact with or been transferred
onto the blood smear on kitchen cabinet, pillow, and
Moore’s shirt. He reminded the jury that forensic
expert Wilson had admitted such transfer was “easy”
without the necessary precautions. RP (Mar. 23, 2017)
at 8458. Counsel concluded his closing argument
recounting a hypothetical he had given Wilson, arguing
Wilson’s testimony allowed the jury to consider “if
[Bennett] was a heavy shedder and his hand was very
App. 53
sweaty on a hot summer day when he shook hands
with Lucille Moore, that might have been enough.” RP
(Mar. 23, 2017) at 8468.
The prosecutor’s rebuttal argument did not suggest
Bennett had any duty to present evidence of actual
contamination, but was a proper direct response to
Bennett inviting the jury to speculate about
nonexistent contamination evidence in the State’s case.
Russell, 125 Wn.2d at 86 (pertinent remarks of
prosecutor not grounds for reversal when invited by
defense counsel). The prosecutor merely pointed out
there was no such evidence. This is entirely consistent
with the trial testimony–particularly Wilson’s
testimony that she saw no evidence of DNA
contamination in this case either at the crime scene or
in the crime lab. In this situation, it was not improper
for the prosecutor to argue that in light of Bennett’s
various contamination hypotheses, he would have
demonstrated actual contamination had there been
any.
Bennett’s cited case Fleming is distinguishable.
There, the prosecutor argued lack of reasonable doubt
because there was no evidence the victim had
fabricated the charge or was confused, and, if there had
been such evidence, the defendants would have
presented it. 83 Wn. App. at 214. The court held the
comments were improper burden shifting and also
infringed on the defendants’ election of the right to
remain silent when viewed in conjunction with the
prosecutor’s additional remark that if the defendants
are suggesting reasonable doubt, they would explain
some fundamental evidence in the case. Id. at 214-15.
App. 54
Here, on the other hand, the prosecutor did not shift
the burden when directly responding to Bennett’s
hypotheticals.
Undermining the presumption of innocence and
trivializing the jury’s role
This issue arises from the following argument by
the prosecutor in rebuttal closing:
I did want to say one other thing, as well,
that I forgot to say at the outset. And that is
that the system that we’re involved in, of a jury
trial, you hear the words due process. And this
is an example. This is probably the biggest
example of due process that this office–or that
the state has participated in, where we’ve
afforded the defendant every opportunity to–the
state put on its case, and for the defense to have
an opportunity to put on their response, and to
speak to you.
So there’s been no rush to judgment in this.
This has been ongoing for, as we know, since
September of 2014. The investigation done by
Detective Hufman and his crew, thousands of
man hours have been devoted to this case. So
this wasn’t just a situation where a snap
judgment was made, a decision to arrest the
wrong man, to frame the wrong man was made.
Nothing of that.
RP (Mar. 23, 2017) at 8536. Bennett did not object.
Once again, by failing to object, Bennett has waived
the issue unless the comments were so flagrant and ill
intentioned that an instruction could not have cured
App. 55
any resulting prejudice. Emery, 174 Wn.2d at 760-61.
And again, the prosecutor’s comments must be viewed
in context; they were in response to the defense closing
argument. Russell, 125 Wn.2d at 86.
Bennett’s counsel began his closing argument in the
six-week trial by stating that “90 percent of the state’s
case is based on one of four things . . . .” RP (Mar. 22,
2017) at 8329. The first thing was “statements that
defendant has given at various times to Detective
Hufman that contain relatively minor discrepancies as
to exact sequence of events, exact[ly] what he did that
day, where he went first, second and third, what times
he did what.” RP (Mar. 22, 2017) at 8329. The second
thing was the “state’s basing its case on [jail telephone]
statements of the defendant taken after he was
arrested, which the state is now twisting, taking out of
context and completely trying to make them appear
that the defendant is guilty, contrary to his testimony,
contrary to his own explanations why he said what he
said, and contrary in some instances to common sense.”
RP (Mar. 22, 2017) at 8329. The third thing was
“statements and testimony from unreliable witnesses
who changed their stories from what they originally
told the police at the time the investigation first
started. Or who completely made up things. Completely
fabricated details to suit what they found out later.” RP
(Mar. 22, 2017) at 8330-31. “And finally, the state’s
case is based on speculation, supposition, outlandish
theorizing and jumping to conclusions and inviting you,
ladies and gentlemen, to go along for the ride.” RP
(Mar. 22, 2017) at 8331.
App. 56
As the State contends, it was defense counsel’s
latter statement that invited the alleged inappropriate
rebuttal comments. A comparison to the facts in Stith
illustrates that the prosecutor’s comments–to the
extent any portion was arguably inappropriate–were
not of a magnitude that any prejudice could not be
cured with an instruction.
In Stith, a drug delivery case where the defendant
had previously been convicted of that crime, the
prosecutor commented in closing argument that
defendant “‘was just coming back and he was dealing
again.’” Stith, 71 Wn. App. at 16. The prosecutor went
on to remark in rebuttal:
“And this case, ladies and gentlemen,
wouldn’t be . . . in court here today if there was
any problem about the way Officer[s] Grady and
Rossen acted. Our system has incredible
safeguards that would not allow a case like this
to come to court if somehow the police acted
improperly. So the question of probable cause is
something the judge has already determined
before the case came before you today.”
Id. at 17 (second alteration in original). The defense
objected to both comments and the court gave curative
instructions.
In finding that both comments were flagrantly
improper, the court reasoned:
The first comment indicated to the jury that
the prior crime for which appellant was
convicted was drug related (a fact which had not
previously been entered into evidence) and is
App. 57
also impermissible opinion “testimony” that the
appellant was selling drugs again and thus was
guilty, not only of the previous charge, but also
of the current charge. Moreover, the remark was
made in spite of a direct court order on a motion
in limine to exclude any evidence of prior drug
convictions.
The second comment concerning “incredible
safeguards” and the court’s prior determination
of probable cause not only constituted
“testimony” as to facts not in evidence but also
indicated to the jury that, if there were any
question of the defendant’s guilt, the defendant
would not even be in court. This was tantamount
to arguing that guilt had already been
determined. Clearly, both comments were
flagrantly improper.
Id. at 22. The court applauded the trial court’s efforts
to cure the violations, but held the misconduct was so
egregious as to be incurable. Id. at 22-23. The court
concluded:
[T]hese comments clearly reflect the prosecutor’s
personal assurances to the jury as to the
defendant’s guilt. Taken together these
comments not only implied that the trial was a
useless formality because the real issues had
already been determined but also directly stated
that Stith was out on the streets, dealing again.
Such comments strike at the very heart of a
defendant’s right to a fair trial before an
impartial jury.
Id. at 23.
App. 58
Bennett contends the same is true here. He equates
the prosecutor’s phrase “the biggest example of due
process”5 the State has ever seen with the “our system
has incredible safeguards” comment in Stith. And like
the comments in Stith that the police did not act
improperly and probable cause had already been
determined, the prosecutor here told the jury the police
had worked “thousands of man hours” and did not
“arrest the wrong man.” RP (Mar. 23, 2017) at 8536.
Additionally, Bennett contends, the prosecutor here
perversely used the length of time that had passed
since the crime as evidence that the State had taken
the time to charge the right man–even though a
significant portion of that time was due to the hung
jury in the first trial. In sum, as in Stith, the
prosecutor’s comments struck at the very heart of
Bennett’s right to a fair trial before an impartial jury
and instructions could not have cured the prejudice.
Bennett’s argument fails.
Unlike in Stith, the prosecutor did not violate a
limine ruling to introduce prejudicial facts not in
evidence or imply that Bennett’s guilt had already been
determined by probable cause. The prosecutor’s point
here was that due process was fully satisfied because
the trial provided both sides the full opportunity to
present their positions to the jury and that the lengthy
investigation showed there was no snap judgment
decision to arrest the wrong man. That the State
considered the right man to have been charged after
lengthy investigation was a statement of the obvious,
5
RP (Mar. 23, 2017) at 8536.
App. 59
but without personal assurances by the prosecutor that
Bennett was guilty.
The prosecutor’s comments were a largely
appropriate response to Bennett’s closing argument
that the State was inviting the jury to go along for the
ride in a case “based on speculation, supposition,
outlandish theorizing, and jumping to conclusions.” RP
(Mar. 22, 2017) at 8331. The prosecutor calling this the
“biggest example” of due process the State has seen
was gratuitous hyperbole. But again, unlike in Stith,
the comment here did not suggest that due process was
a safeguard that ensured Bennett’s guilt. He makes no
showing that any impropriety in the prosecutor’s
remarks in response to Bennett’s argument were
egregious and could not have been cured by an
instruction.
Cumulative effect of misconduct
Bennett contends the cumulative effect of the
prosecutor’s improper arguments amounts to reversible
error. But the cumulative error doctrine “does not
apply where the errors are few and have little or no
effect on the outcome of the trial.” State v. Weber, 159
Wn.2d 252, 279, 149 P.3d 646 (2006). Here, we
determined the prosecutor twice misstated Mr.
Bodziak’s testimony, but those misstatements were not
prejudicial. We conclude the cumulative error doctrine
does not apply.
D. EXCEPTIONAL SENTENCE
The jury returned special verdict forms finding that
Bennett manifested deliberate cruelty in the
commission of second degree murder and Moore was a
App. 60
particularly vulnerable victim. The trial court imposed
an exceptional sentence of 660 months.
Bennett challenges his exceptional sentence on
grounds that (1) insufficient evidence supports the
aggravating factors, (2) the aggravating factors are
unconstitutionally vague, and (3) the length of the
sentence is arbitrary and excessive.
1. Sufficiency of the evidence
We review whether the record supports the jury’s
special verdict on the aggravating circumstances under
the clearly erroneous standard. State v. Hale, 146 Wn.
App. 299, 307, 189 P.3d 829 (2008).
A court may depart from the presumptive sentence
range if the offense involves substantial and compelling
reasons. RCW 9.94A.535. “Aggravating circumstances”
that can support a departure from the guidelines
include the defendant’s conduct “manifested deliberate
cruelty to the victim” and the defendant knew or
should have known the victim “was particularly
vulnerable.” RCW 9.94A.535(3)(a), (b).
A jury must find any facts supporting aggravating
circumstances beyond a reasonable doubt and by
special interrogatory. State v. Stubbs, 170 Wn.2d 117,
123, 240 P.3d 143 (2010). We use the same standard of
review for the sufficiency of the evidence of an
aggravating factor as we use for sufficiency of the
evidence for the elements of a crime. State v. Webb, 162
Wn. App. 195, 205-06, 252 P.3d 424 (2011). Specifically,
evidence is sufficient to support the special
interrogatory if, after reviewing the evidence in the
light most favorable to the prosecution, any rational
App. 61
trier of fact could have found the essential elements of
the aggravating factor beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979).
Deliberate cruelty. “Deliberate cruelty consists of
gratuitous violence or other conduct that inflicts
physical, psychological, or emotional pain as an end in
itself.” State v. Tili, 148 Wn.2d 350, 369, 60 P.3d 1192
(2003). To justify an exceptional sentence, the cruelty
must go beyond what is normally associated with the
commission of the charged offense or what is inherent
in the elements of the offense. Id. The trial court’s jury
instruction defined “deliberate cruelty” consistent with
these principles.
Bennett contends the deliberate cruelty finding is
unsupported by sufficient evidence and must be struck
because the State failed to prove gratuitous violence
that inflicted pain as an end in itself or that this
murder was significantly more egregious than the
typical murder. We disagree.
Dr. Eric Kiesel, the forensic pathologist who
performed Moore’s autopsy, gave testimony describing
her injuries and the likely cause of death. He described
a number of “injuries, abrasions, contusions on both
sides of the head, as well as on the nose, cheek and
lips.” RP (Feb. 23, 2017) at 5081. Included were
multiple significant head injuries that resulted in
subarachnoid hemorrhage on both sides of her brain,
indicating it had been severely shaken by blunt force
trauma. Her maxilla was fractured with force that Dr.
Kiesel compared to a boxing injury or car crash. He
believed the head injuries were most likely inflicted by
App. 62
fist or hand. Moore also sustained a sharp, incised
wound on her right hand, which Dr. Kiesel found
consistent with a defensive wound incurred while she
was alive. He also found evidence of blunt force injury
to her neck. Petechial hemorrhages in both eyes
correlated with fractures to the superior horns of the
thyroid cartilage, which Kiesel said strongly suggests
manual strangulation.
Moore also sustained two sharp force injuries to the
throat, which Dr. Kiesel described as incised wounds
caused by a sharp instrument. She received another
two-inch deep stab wound to the right side of her neck.
In addition, she was stabbed 17 times in the chest.
Eleven of those wounds penetrated the heart muscle
itself. Dr. Kiesel opined that the sharp force injuries,
including those to the throat, were most likely inflicted
by a knife with about a one-half inch wide blade.
Dr. Kiesel could not be certain of the order in which
the injuries were inflicted. He did conclude Moore was
on the ground when she received the stab wounds
because her shirt was covered with blood but none was
on her pants, where blood would have dripped had she
been standing. Kiesel said Moore could potentially have
died solely from the blunt force trauma to the head but
there is no way to say with 100 percent certainty. But
she certainly would have died from either the incised
wounds to the neck or stab wounds to the heart had
there been no other injuries. Kiesel believed Moore was
still alive when she received the stab wounds that went
through the fat around the heart and penetrated the
heart itself.
App. 63
Ultimately, while acknowledging the blunt force
injuries were a significant part of the total picture, Dr.
Kiesel concluded the mechanism of death was most
likely loss of blood resulting from the sharp force
wounds to the neck and chest. He said bleeding from
the neck wounds would have caused her to lose
consciousness within 10 to 20 seconds and then it takes
a matter of minutes to die. He also opined the injuries
inflicted on Moore were in excess of what it takes to kill
a person.
Bennett focuses on Dr. Kiesel’s testimony that any
of Moore’s head, neck, or chest injuries could have
caused her death–a fact that the prosecutor
acknowledged in closing argument and the trial court
echoed in its exceptional sentence finding of fact 6.
Bennett then points to Dr. Kiesel’ s testimony that the
stab wounds would have caused the victim to lose
consciousness in 10 to 20 seconds and the prosecutor’s
acknowledgment in closing argument that she was “not
probably alive for a long time.” RP (Mar. 22, 2017) at
8322. He couples this with the testimony of crime scene
specialist, Trevor Allen, who said it appeared the
victim was knocked down and then stabbed and that
the incident appeared to be contained to a very small
location without a prolonged struggle. He said, “It
didn’t seem like there was a long, drawn-out fight.” RP
(Feb. 22, 2017) at 4881.
Bennett uses the above testimony to contrast this
case with State v. Scott, 72 Wn. App. 207, 866 P.2d
1258 (1993), aff’d sub nom. State v. Ritchie, 126 Wn.2d
388, 894 P.2d 1308 (1995), whereas the State contends
Scott is analogous and supports the deliberate cruelty
App. 64
finding. In Scott, the victim was elderly, weak, and had
diminished mental capacities. Scott, 72 Wn. App. at
214. The court explained:
Scott could easily have killed her by
strangulation, which he did, but only after
physically and sexually assaulting her. The
medical examiner found that the manual and
ligature strangulation were separate acts of
violence. The first act of strangulation and/or
any of the blows to the victim’s head were
sufficient evidence upon which to base a finding
of premeditation. All of the other blows to the
head, face, and ribs, which occurred in three
different rooms and resulted in 20 broken bones,
were additional violent acts separate from the
premeditation and the final strangulation.
Id. at 214-15. Scott contended his case was unlike cases
involving deliberate cruelty due to prolonged attacks
and lingering suffering. Id. at 215. The court disagreed:
[T]he record supports a finding of a prolonged
attack by Scott and lingering suffering by the
victim. It took time to break 20 bones, strangle
the victim twice, and sexually assault her. The
evidence that the assaults occurred in three
different rooms also suggests a prolonged attack
and lingering suffering.
Id.
Bennett contends the lack of evidence that Moore
was subject to prolonged attack or lingering suffering
makes his case like State v. Brush, No. 71067-2-I,
2014 WL 1912009 (Wash. Ct. App. May 12, 2014)
App. 65
(unpublished) http://www.Courts.wa.gov/opinions/pdf/
710672.pdf, aff’d in part, rev’d in part by 183 Wn.2d
550, 353 P.3d 213 (2015) and State v. Serrano, 95 Wn.
App. 700, 977 P.2d 47 (1999), where the Courts
reversed deliberate cruelty verdicts in similar
circumstances. In Brush, the defendant shot the victim
Bonney four times in rapid succession. 2014 WL
1912009 at *1. At trial, the medical examiner described
the homicide as one of the two worst he had observed
in terms of being “‘gratuitously violent’” and causing
damage in excess of that necessary to kill someone. Id.
at *2. The jury found deliberate cruelty. Id. In
reversing the aggravator on appeal as unsupported by
the record and therefore clearly erroneous, the Court
reasoned:
[T]the entire incident was over in seconds and
the actual shots occurred in rapid succession.
Although the first nonlethal shot undoubtedly
caused Bonney pain, there is no indication that
Brush deliberately sought to inflict pain as an
end in itself or to prolong Bonney’s suffering in
any way. Indeed, the evidence is to the contrary;
all of the eyewitnesses suggested that he fired
the second lethal shot almost immediately after
the first.
Id. at *6.
In Serrano, the defendant was convicted of second
degree murder for shooting the victim in the back five
times while he was up in the air in an “orchard ape”
(caged platform) thinning apples. The trial court found
the conduct deliberately cruel and imposed an
exceptional sentence, in part on that factor. Serrano, 95
App. 66
Wn. App. at 703, 710-11. In holding the deliberate
cruelty finding was unsupported by the record and
therefore clearly erroneous, this court reasoned:
Some Washington cases have upheld
exceptional sentences on the basis of the number
of wounds inflicted. See, e.g., [State v.] Ross, 71
Wn. App. 556[, 861 P.2d 473 (1993)] (over 100
wounds); State v. Drummer, 54 Wn. App. 751,
775 P.2d 981 (1989) (stabbing 20 times); State v.
Harmon, 50 Wn. App. 755, 750 P.2d 664
(stabbing/slicing 64 times), review denied, 110
Wn.2d 1033 (1988). In each of those cases,
however, the sheer number of wounds
demonstrated a cruelty not usually associated
with the offenses. Mr. Senano shot [the victim]
five times. This fact itself does not suggest he
gratuitously inflicted pain as an end in itself.
Id. at 713.
A majority of this court distinguishes this case from
Brush and Serrano where rapid gun fire suggested a
quick death without any gratuitous infliction of pain.
Here, viewing the evidence in the light most favorable
to the State, the multiple blows to Moore’s head, the
manual strangulation, the knife slash to her neck, and
17 stab wounds to her chest–including 11 of which
pierced her heart–permitted a rational trier of fact to
find beyond a reasonable doubt that Bennett
gratuitously inflicted pain on Moore. The sheer number
and variety of serious injuries inflicted demonstrates a
App. 67
cruelty not usually associated with the offense.6 The
majority concludes, when viewing the evidence in the
light most favorable to the State, a rational trier of fact
could find the State proved this aggravating factor
beyond a reasonable doubt.
Bennett also contends the State was required to
provide the jury with comparative facts of other murder
cases to prove the murder was atypical to other
murders. His assertion is unsupported by any authority
and lacks merit. His cited cases State v. Suleiman, 158
Wn.2d 280, 294 n.5, 143 P.3d 795 (2006) and State v.
Faagata, 147 Wn. App. 236, 249-51, 193 P.3d 1132
(2008), rev’d on other grounds by State v. Turner, 169
Wn.2d 448, 238 P.3d 461 (2010), merely reiterate the
6
This judge believes the evidence is insufficient for a rational trier
of fact to make the required findings beyond a reasonable doubt.
The evidence was consistent with the State’s theory that Bennett
struck Moore multiple times with his fist or an object, attempted
to strangle her, then slashed her throat, and stabbed her
numerous times in the chest and heart. The location of the knife
slash to the throat and the numerous stabs to the chest and heart
indicate Bennett sought to kill Moore quickly once he knocked her
to the ground. A brief violent attack is inconsistent with inflicting
gratuitous fear or pain. The State believed Moore died quickly and
did not even argue the injuries occurred in a manner designed to
inflict pain as an end in itself. From this evidence, a jury would
need to speculate whether the wounds occurred by a brief violent
attack or by a methodical series of acts designed to inflict pain as
an end in itself. Where the State’s evidence requires a jury to
speculate rather than make reasonable inferences, the verdict
must be overturned. State v. Hummel, 196 Wn. App. 329, 357, 383
P.3d 592 (2016). I would reverse the jury’s finding of deliberate
cruelty and remand for resentencing.
App. 68
principle that post-Blakely7 it is the jury’s role to
determine atypicality. The cases do not require the
State to present comparative evidence.
Particularly vulnerable victim. The trial court
instructed the jury that a victim is “particularly
vulnerable” if he or she is more vulnerable to the
commission of the crime than the typical victim of first
or second degree murder, and the victim’s vulnerability
must also be a substantial factor in the commission of
the crime.
Bennett argues the State presented insufficient
evidence that Moore’s vulnerability was a substantial
factor in her murder. He notes that the State’s theory
of the case, as argued in closing, was that Moore
threatened to evict Bennett for being unable to pay
rent and this threat caused Bennett to snap. Bennett
argues the record conclusively shows Moore’s age
played no factor at all in his decision to kill her, let
alone a substantial factor. He likens his case to Serrano
and State v. Barnett, 104 Wn. App. 191, 16 P.3d 74
(2001).
As stated above, the victim in Serrano was in an
orchard ape and could not run or protect himself from
the gunshots. The trial court imposed the exceptional
sentence, in part on a finding of victim vulnerability.
Serrano, 95 Wn. App. at 710-11. This court reversed
because the record did not suggest the victim’s
vulnerability was a substantial factor in the shooting.
Id. at 712. Instead, the apparent motive was that the
7
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004).
App. 69
defendant’s wife had an affair with the victim. Id. at
703 n.1, 710.
In Barnett, the defendant committed multiple
crimes against his ex-girlfriend. 104 Wn. App. at 194.
The court imposed an exceptional sentence in part
based on victim vulnerability because she was 17 years
old and the defendant waited until she was home alone
to initiate the attack. Id. at 202. In reversing the
aggravator as unsupported by the evidence, this court
reasoned the victim was not particularly vulnerable
because she led the defendant on a lengthy chase and
did not suffer because of age, disability, or ill health.
Id. at 204. Further, she was not incapacitated by the
attack and thereby rendered vulnerable. Instead, she
was able to avoid his attempts to stab her and
eventually escaped. Id. In addition, her being home
alone was not the reason the defendant chose her as a
victim. He chose her because of their failed
relationship, not because she presented an easy target
for a random crime. Id. at 205.
We disagree with Bennett’s implied argument that
he could not have snapped and decided to kill Moore
because she was particularly vulnerable. A person who
snaps can decide either to attack the person who made
them angry or to walk away in anger. Viewing the
evidence in the light most favorable to the State, a
rational trier of fact could have found beyond a
reasonable doubt: (1) Moore, a woman in her 80s who
lived alone, was more vulnerable to being murdered
than a typical person, and (2) her vulnerability was a
substantial factor why Bennett murdered her (instead
of walking way in anger).
App. 70
Bennett also contends the State was required to
present the jury with comparison evidence of
vulnerability from other murder cases. His assertion is
unsupported by authority and lacks merit. His cited
cases State v. Vermillion, 66 Wn. App. 332, 832 P.2d 95
(1992) and State v. Bedker, 74 Wn. App. 87, 871 P.2d
673 (1994) contain no such requirement.
2. Vagueness challenge to aggravating factors
Bennett argues the aggravating factors of
“deliberate cruelty” under RCW 9.94A.535(3)(a), and
“particularly vulnerable” under RCW 9.94A.535(3)(b)
are unconstitutionally vague, both facially and as
applied.
The due process clauses of the Fifth and the
Fourteenth Amendments to the United States
Constitution require that statutes afford citizens a fair
warning of prohibited conduct. City of Spokane v.
Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).
The due process vagueness doctrine requires that
criminal statutes (1) be specific enough to give citizens
fair notice of what conduct is proscribed, and
(2) provide ascertainable standards of guilt to protect
against arbitrary arrest and prosecution. Id.; State v.
Baldwin, 150 Wn.2d 448, 458, 78 P.3d 1005 (2003). The
prohibition against vagueness applies both to statutes
defining elements of crimes and to “statutes fixing
sentences.” Johnson v. United States, __ U.S. __, 135 S.
Ct. 2551, 2557, 192 L. Ed. 2d 569 (2015). Statutes that
fix sentences must “specify the range of available
sentences” with sufficient clarity. Beckles v. United
States, __ U.S. __, 137 S. Ct. 886, 892, 197 L. Ed. 2d
145 (2017).
App. 71
In Baldwin, the Washington Supreme Court held:
“[D]ue process considerations that underlie the voidfor-vagueness doctrine have no application in the
context of sentencing guidelines.” Baldwin, 150 Wn.2d
at 459. The court reasoned that sentencing guideline
statutes “do not define conduct nor do they allow for
arbitrary arrest and criminal prosecution.” Id. And,
“[s]entencing guidelines do not inform the public of the
penalties attached to criminal conduct nor do they vary
the statutory maximum and minimum penalties
assigned to illegal conduct by the legislature.” Id. The
court concluded that the guidelines are intended only
to structure discretionary decisions affecting sentences;
they do not specify that a particular sentence must be
imposed. Since the guideline statutes do not require a
certain outcome, they create no constitutionally
protectable liberty interest. Id. at 461.
At the time of Baldwin, the Sentencing Reform Act
of 1981 (SRA), chapter 9.94A RCW, authorized judges
to impose a sentence outside the standard range based
on the judge’s finding that there were “substantial and
compelling reasons justifying an exceptional sentence.”
Former RCW 9.94A.120(2) (2000). The judge was
required only to provide written findings and
conclusions and to base the exceptional sentence on
factors not used in computing a standard range
sentence. Former RCW 9.94A.120(3); State v. Gore, 143
Wn.2d 288, 315, 21 P.3d 262 (2001), overruled by State
v. Hughes, 154 Wn.2d 118, 131, 110 P.3d 192 (2005).
Therefore, the SRA allowed the judge “to impose an
exceptional sentence . . . without the factual
determinations being charged, submitted to a jury, or
App. 72
proved beyond a reasonable doubt.” Gore, 143 Wn.2d at
314.
In Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004), the Court ruled this
sentencing scheme unconstitutional. To comply with
the Sixth Amendment, the Court held that, except for
the fact of a prior conviction, any fact that increases the
penalty for a crime must be admitted by the defendant
or submitted to a jury and proved beyond a reasonable
doubt. A trial court’s sentencing authority must be
limited to the maximum sentence the court could
impose without making any additional findings. Id. at
303-04. Under the SRA, such a sentence would be the
maximum punishment within the standard range
rather than the statutory maximum for the particular
crime. Id. After Blakely, the trial court is allowed to
impose an exceptional sentence based on a finding of
substantial and compelling reasons. RCW 9.94A.535.
But the facts supporting aggravating sentences in RCW
9.94A.535(3) must be proved to a jury, or to the court if
a jury is waived, beyond a reasonable doubt, or by the
defendant’s stipulation. RCW 9.94A.537(3).
In Johnson v. United States, the United States
Supreme Court struck down as unconstitutionally
vague a provision of the Armed Career Criminal Act of
1984 in 18 U.S.C. § 924(e)(1) that required courts to
increase the sentence from a 10-year maximum to a 15year mandatory minimum for defendants convicted of
felon in possession of a firearm with three prior violent
felony convictions. Johnson, 135 S. Ct. at 2555.
Johnson ruled that such “statutes fixing sentences” are
subject to a vagueness challenge. Id. at 2556-57.
App. 73
In Beckles, the United State Supreme Court
addressed a vagueness challenge to advisory federal
sentencing guidelines. Beckles, 137 S. Ct. at 890. The
Court observed that vagueness concerns apply to laws
that define criminal offenses and that “fix the
permissible sentences for criminal offenses.” Id. at 892.
The laws “must specify the range of available
sentences” with sufficient clarity. Id. The Court
distinguished Johnson because unlike the sentencefixing statute at issue there, the guidelines did not fix
the permissible range of sentences that a trial court
must impose. Id. Instead, they “merely guide the
exercise of a Court’s discretion in choosing an
appropriate sentence within the statutory range.” Id.
Therefore, the guidelines were not subject to a
vagueness challenge under the due process clause. Id.
at 895.
Recognizing and applying Beckles, all three
divisions of this court continue to reject due process
vagueness challenges to aggravating factors like
Bennett’s and adhere to Baldwin as controlling law.
State v. DeVore, 2 Wn. App. 2d 651, 413 P.3d 58 (2018)
(Division Three), review denied, 191 Wn.2d 1005
(2018); State v. Brush, 5 Wn. App. 2d 40, 425 P.3d 545
(2018) (Division Two), review denied, 192 Wn.2d 1012
(2019); State v. Lloyd, 3 Wn. App. 2d 1060, 2018 WL
8642839 (Division One), (unpublished) http://www.cou
rts.wa.gov/opinions/pdf/751115.pdf., review denied, 191
Wn.2d 1016 (2018).
In Devore, we stated:
We consider Matthew DeVore’s appeal akin
to Beckles v. United States, not Johnson v.
App. 74
United States. The destructive impact factor
does not increase the permissible sentence of the
offender. The trial court must still sentence the
defendant within the statutory maximum of the
crime, life imprisonment. Therefore, we hold
that challenges to the destructive impact factor
and other aggravating factors under RCW
9.94A.535(3) do not merit review under the void
for vagueness doctrine. We do not then address
any vagaries of the aggravating factor.
DeVore, 2 Wn. App. 2d at 665 (emphasis added).
In Brush, Division Two of this court ruled likewise,
rejecting the same arguments Bennett makes and
citing to DeVore. Brush, 5 Wn. App. 2d at 61-63. In the
unpublished case, Lloyd, Division One also rejected a
void for vagueness challenge to the deliberate cruelty
and particular vulnerability factors, upholding Baldwin
and citing Beckles as reaffirmation that the
aggravating factors merely guide the sentencing court’s
decision to impose an exceptional sentence. Lloyd, 2018
WL 8642839 at *26. In short, the requirements under
Blakely and RCW 9.94A.535 and .537 that a jury must
determine the applicability of certain aggravators does
not change the Baldwin analysis.
Bennett nevertheless contends DeVore and Brush
misapply Beckles. He also contends that in two postBlakely cases, the Washington Supreme Court has
signaled its understanding that Baldwin no longer
applies and aggravators are subject to the prohibition
on vague laws because the cases assumed the
defendants could bring void for vagueness challenges.
State v. Murray, 190 Wn.2d 727, 732 n.1, 416 P.3d 1225
App. 75
(2018); State v. Duncalf, 177 Wn.2d 289, 298, 300 P.3d
352 (2013). But the court in those cases determined
that “even if we assume” or “even assuming” the
vagueness doctrine applies, the defendants’ vagueness
challenges failed; thus, the court in each case found it
unnecessary to address whether Baldwin survived
Blakely. Whatever the Supreme Court’s future intent
on this issue, it is currently resolved in DeVore, Brush,
and Lloyd. The Supreme Court denied review in each
of those cases.
Baldwin remains good law and applies here.
Bennett cannot assert a vagueness challenge to RCW
9.94A.535(3)(a), (b).
Even assuming Bennett can make his vagueness
challenges, he makes no showing that the deliberate
cruelty and victim vulnerability factors are vague as
applied to his conduct.
3. Excessive length of sentence
Bennett contends the 660-month length of his
exceptional sentence for second degree murder was
based on untenable reasons and is arbitrary and
excessive.
We review whether a sentence is clearly excessive
only for an abuse of discretion. Ritchie, 126 Wn.2d at
392. If the record supports the reasons for the
exceptional sentence and justifies an increased
exceptional sentence, we will reverse only if no
reasonable person would have imposed the sentence,
i.e., it is based on untenable grounds or imposed for
untenable reasons. Id. at 392-93; State v. Bluehorse,
159 Wn. App. 410, 434, 248 P.3d 537 (2011). If the trial
App. 76
court does not base its sentence on an improper reason,
such as race or receipt of prison good time credit, this
court will not deem the sentence excessive unless its
length, in light of the record, shocks the conscience.
Ritchie, 126 Wn.2d at 396.
In imposing Mr. Bennett’s 660-month sentence, the
trial court reasoned:
I do believe there are similarities between
the case of State vs. Scott and the present
matter. And I have attempted to draw some
conclusions about how the trial judge reached its
decision in that case, considering the heinous
facts of that case. And what it appears to me
that the trial court did in that case was to first
identify a sentence within the higher end of the
applicable standard range, and then applied a
multiplier of three as a result of the presence of
the aggravating factors. And this court believes
that that is a reasonable guidance or reasonable
instructions [sic] to follow.
So in the present case the standard range is
between 134 and 234 months. And based on my
analysis, again, of the method used in State vs.
Scott, Mr. Bennett, your sentence will be 660
months.
RP (May 12, 2017) at 8761.
In Scott, the defendant was convicted of first degree
murder for raping and killing a 78-year-old woman who
suffered from Alzheimer’s disease and lived alone. 72
Wn. App. at 209-10. The defendant’s standard range
was 240 to 320 months. Based on four aggravating
App. 77
factors–abuse of trust, victim vulnerability, deliberate
cruelty, and multiple injuries inflicted in the
commission of the crime–the trial court imposed an
exceptional sentence of 900 months. Id. at 210. On
appeal, the court affirmed the sentence because it did
not shock the conscience, and, although harsh, was not
so clearly excessive that no reasonable person would
have imposed it. Id. at 221-22.
Bennett’s 660-month sentence is approximately 2.82
times greater than the 234-month top end of his
standard range. Although the sentence is harsh and
quite substantial relative to Bennett’s standard range,
its length does not shock the conscience in light of what
the record shows to be a violent murder of a
particularly vulnerable 82-year-old woman. Contrary
to Bennett’s contention, using Scott for comparison
does not make the court’s sentencing decision here
untenable. The 660-month sentence is not one that no
reasonable person would have imposed.
As the State notes, exceptional sentences of similar
magnitude have been affirmed on appeal. See e.g.,
Ritchie, 126 Wn.2d at 399 (upholding 900-month
exceptional sentence where standard range was 240 to
320 months); State v. Van Buren, 112 Wn. App. 585,
596-601, 49 P.3d 966 (2002) (upholding 600-month
sentence for first degree murder where plea agreement
recommended 292-month standard range sentence);
State v. Burkins, 94 Wn. App. 677, 697, 702, 973 P.2d
15 (1999) (upholding 720-month sentence despite 333month standard maximum); see also State v. Smith, 82
Wn. App. 153, 156, 167, 916 P.2d 960 (1996) (upholding
100-year sentence that was 3.1 times the top end of the
App. 78
standard range for attempted first degree murder,
robbery, rape, and kidnapping).
Finally, Bennett’s assertion of youth as a mitigating
factor to lessen his 660-month sentence is without
merit. He was two weeks shy of his 25th birthday when
he committed the murder. Assuming, at his age, that
he could have argued youth as a mitigating factor
under State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359
(2015), he presented no such evidence or argument at
sentencing. Youth does not “per se automatically
reduce an adult offender’s culpability.” Id. at 689. For
the court to consider it, the “defendant must provide
some evidence that youth in fact impaired his
capacities.” Id. Bennett did not do so. He steadfastly
maintained his innocence all the way through
sentencing. The youth factor was appropriately absent
from the trial court’s sentencing decision.
We conclude the court did not abuse its discretion
by imposing the 660-month exceptional sentence.
Affirmed.
A majority of the panel has determined this opinion
will not be printed in the Washington Appellate
Reports, but it will be filed for public record pursuant
to RCW 2.06.040.
/s/ Lawrence-Berrey, J.
Lawrence-Berrey, J.
App. 79
WE CONCUR:
/s/ Korsmo, A.C.J.
Korsmo, A.C.J.
8
/s/ Melnick, J.
Melnick, J.8
The Honorable Rich Melnick is a Court of Appeals, Division Two,
judge sitting in Division Three under CAR 21(a).
App. 80
APPENDIX C
Trial Court Transcript Excerpts
* * * *
[pp. 8769]
Thank you.
THE COURT: Okay. Does anybody want to put any
further analysis or comments on the record regarding
the case law that was cited? There was the issue about
vagueness. Does either party want to make any further
comments on that?
MR. DANO: No, your Honor.
MR. BUSTAMANTE: No, your Honor.
THE COURT : Okay. So let me just briefly address
that issue and then I’ll give you what I drafted and
then go over my edits that I made.
First of all, the case that was cited, the primary
case was Johnson vs. United States, 135 Supreme
Court 2551, a 2015 case. And in that case, the issue
was whether a particular definition of violent felony as
contained in the Armed Career Criminal Act violated -or survived, rather, the Constitution’s prohibition of
vague criminal laws.
And the holding was, “We hold that imposing an
increased sentence under the residual clause of the
Armed Career Criminal Act violates the Constitution’s
guarantee of due process.”
App. 81
The court noted, in general, that the vagueness
doctrine does apply, not only to statutes defining
elements of crimes, but also to statutes fixing
sentences. And in that case, they were attempting to
apply the what was called the residual clause of the
Armed Career Criminal Act to the facts of that case.
And the court noted -- well, more of the background
facts were that, in general, it is unlawful in that case
for felons to “ship, possess, and receive firearms.” And
that carries with it a punishment of up to ten years of
imprisonment. However, if a particular defendant had
three or more “serious drug offenses” or three or more
offenses involving a “violent felony,” then automatically
the prison term would increase to a minimum of 15
years and a maximum of life.
So, in essence, that enhancement or sentencing
enhancement changed the statutory maximum. It went
from a potential of up to ten years imprisonment to a
minimum of 15 and up to life imprisonment. And in
that case the defendant pled guilty to being a felon in
possession of a firearm, and the state argued that three
prior offenses qualified as a violent offense or violent
offenses, “including one which involved unlawful
possession of a short-barreled shotgun.”
And the court noted that in evaluating the residual
clause, it applied the “categorical approach” for
determining whether an offense qualifies as a violent
felony. And under the categorical approach, a court
must assess whether a crime qualifies as a violent
felony “in terms of how the law defines the offense and
not in terms of how an individual offender might have
committed it on a particular occasion.”
App. 82
And the court noted that in determining whether a
particular offense was a violent felony under the
definition that was included in the residual clause, that
evaluation “ties the judicial assessment of risk to a
judicially imagined ‘ordinary case’ of a crime, not realworld facts or statutory elements.”
And as the court noted, it was one thing to apply
imprecise “serious potential risk” standard to realworld facts; it is quite another to apply it to a “judgeimagined abstraction.” And this was kind of the crux of
its analysis. “By combining indeterminacy about how to
measure the risk posed by a crime with indeterminacy
about how much risk it takes for the crime to qualify as
a violent felony, the residual clause produces more
unpredictability and arbitrariness than the Due
Process Clause tolerates.”
That case, though, is distinguishable from the
present case. First, because there’s no doubt that here
life imprisonment is the statutory maximum regardless
of what the sentencing guidelines may indicate. And
that is not vague, as a defendant is put on notice of the
potential maximum penalty he or she can receive upon
committing the offense of murder in the second degree.
And that basically is the analysis that’s contained in
the State vs. Baldwin case, which is the 2003 State
Supreme Court decision cited to by the state in its
memorandum.
In addition, the aggravators – in general, the
aggravators under our sentencing guidelines and those
that were specifically applied in this case do not
require the application of the modified categorical
App. 83
approach to determine whether they apply in a
particular case.
In other words, a court is not assessing the
aggravators in terms of how the law defines the
aggravator. Rather, the court is assessing in the jury,
in fact, how an individual might have committed the
offense on a particular occasion. And in this case the
particular occasion being the current offense.
In essence, the court is not dealing with a judgeimagined abstraction of what deliberate cruelty or
particularly vulnerable person might be. Rather, the
court and the jury is being to apply a standard to a
real-world set of facts, which in this case are the facts
of this case.
So as a result of that, I don’t find that the challenge
to the aggravators based on the vagueness doctrine
apply, and that’s why I deny that objection.
...
App. 84
APPENDIX D
SUPERIOR COURT OF WASHINGTON
IN AND FOR GRANT COUNTY
NO. 14-1-00778-0
[Filed: May 22, 2017]
____________________________________
STATE OF WASHINGTON,
)
)
Plaintiff,
)
)
vs.
)
)
CHAD GARRETT BENNETT
)
)
Defendant.
)
____________________________________)
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND ORDER FOR AN EXCEPTIONAL SENTENCE
THIS MATTER having come before the Court on
May 12, 2017 for sentencing; the jury having reached
its verdict on March 29, 2017. The defendant being
present together with his attorney, David Bustamante,
Prosecuting Attorney Garth Dano and Deputy
Prosecutor Edward A. Owens representing the State.
The Court, pursuant to RCW 9.94A.535, and having
reviewed the files, records, sentencing memoranda, and
transcript of the sentencing hearing, attached as
Exhibit “A” hereto, and having heard the argument of
App. 85
counsel and the statement of the defendant, and having
further considered Defendant’s objections to the State’s
Proposed Findings of Fact, Conclusions of Law and
Order for Exceptional Sentence filed May 18, 2017, and
being otherwise fully advised in the premises, and now
makes the following:
FINDINGS OF FACT
1.
Lucille Moore was brutally attacked and
murdered on September 7, 2014.
2.
In the attack that took her life, Lucille Moore
suffered strangulation; head injuries; contusions; brain
injury; and a broken upper jaw;
3.
Lucille Moore was stabbed 17 times;
4.
Lucille Moore suffered 11 puncture wounds to
her heart;
5.
Lucille Moore’s throat was slit twice and
stabbed in the neck.
6.
The head injuries, the stab wounds to the
chest, or the injuries to the neck/throat could have
caused the death of Lucille Moore.
7.
At the time of her death, Lucille Moore was
82 years of age and lived alone.
8.
The defendant knew of Lucille Moore’s
advanced age.
9.
At the time Lucille Moore was murdered, the
defendant, Chad Bennett, was 24 years of age.
App. 86
10.
On March 29, 2017, after a trial lasting
several weeks, a jury found the defendant, Chad
Bennett, guilty beyond a reasonable doubt of the crime
of Murder in the Second Degree.
11.
The jury further found, beyond a reasonable
doubt by special interrogatory, that the defendant’s
conduct manifested deliberate cruelty to the victim,
Lucille Moore.
12.
The jury further found, beyond a reasonable
doubt by special interrogatory, that the victim, Lucille
Moore, was particularly vulnerable or incapable of
resistance.
13.
Lucille Moore, was inhumanely attacked and
murdered by the defendant, Chad Bennett.
BASED UPON the foregoing Findings of Facts, the
Court now enters the following:
CONCLUSIONS OF LAW
1.
The Court concludes that substantial
evidence, as outlined in Findings of Fact 2, 3, 4, 5, and
6 above, supports the jury’s conclusion, beyond a
reasonable doubt, that Lucille Moore was subjected to
deliberate cruelty at the hands of the defendant, Chad
Bennett, establishing the statutory aggravating factor
as defined in RCW 9.94A.535(3)(a).
2.
The Court concludes that the facts show that,
in the course of murdering Lucille Moore, the
defendant engaged in gratuitous violence which was
significantly more serious than typical of the crime and
App. 87
imparted physical, psychological, and emotional pain
upon Mrs. Moore as an end itself.
3.
The Court concludes that substantial
evidence, as outlined in Findings of Fact 7, 8, and 9,
supports the jury’s conclusion, beyond a reasonable
doubt, that Lucille Moore was a victim who was
particularly vulnerable or incapable of resistance,
establishing the statutory aggravating factor as defined
in RCW 9.94A.535(3)(b).
4.
The Court concludes that Lucille Moore’s
advanced age alone can be a sufficient basis for the
jury’s conclusion that Mrs. Moore was particularly
vulnerable or incapable of resistance.
5.
The Court concludes that Lucille Moore’s age
made it easier for the defendant to overcome any
resistance and easily overpower Mrs. Moore, are also a
sufficient basis for the jury’s conclusion that Mrs.
Moore was particularly vulnerable or incapable of
resistance.
6.
[Left Blank]
7.
The Court concludes that the jury’s finding
that the defendant’s conduct manifested deliberate
cruelty to the victim and that the defendant knew or
should have known that his victim was particularly
vulnerable or incapable of resistance are amply
supported by facts in the record.
8.
The Court concludes that, considering the
purposes of RCW 9.94A, these aggravating factors
establish substantial and compelling reason justifying
the imposition of an exceptional sentence.
App. 88
9.
The Court further concludes that either of the
aggravating factors standing alone might establish a
substantial and compelling reason justifying the
imposition of an exceptional sentence. However, the
more substantial and compelling reason for the
imposition of an exceptional sentence in this case is the
deliberate cruelty Mrs. Moore suffered at the time of
her death.
10.
The Court concludes that there is no doubt
that the victim, Lucille Moore, suffered a brutal,
violent, and inhumane death, which the jury concluded,
based upon the evidence, that the defendant, Chad
Bennett, committed beyond any reasonable doubt.
11.
The Court concludes that in order to carry out
the purpose and intent of the Sentencing Reform Act,
as defined in RCW 9.94A.010, the appropriate sentence
for the defendant, Chad Bennett, to serve is a term of
confinement in a State Correctional Facility of 660
months (55 years).
ORDER
The Court, having entered the foregoing Findings of
Fact and Conclusions of Law, pursuant to RCW
9.94A.535, NOW THEREFORE, it is Hereby Ordered,
Adjudged, and Decreed; that the defendant, Chad
Gerrit Bennett, be sentenced to a term of confinement
with the Department of Corrections of 660 months (55
years).
DATED this 22nd day of May, 2017.
App. 89
/s/___________________________________
THE HONORABLE DAVID ESTUDILLO
Judge
App. 90
APPENDIX E
Superior Court of Washington
County of Grant
No. 14-1-00778-0
[Filed: May 12, 2017]
____________________________________
State of Washington,
)
Plaintiff,
)
)
vs.
)
)
CHAD GARRIT BENNETT,
)
Defendant.
)
)
SID:WA22073528
)
DOB: 09/23/1989
)
OIN: EPD, 14EP3773
)
PCN: 925989843
)
____________________________________)
JUDGMENT # 17-9-00752-0
Felony Judgment and Sentence -Prison
(FJS)
[X]
[]
[]
Clerk’s Action Required, para 2.1, 4.1, 4.3, 4.8,
5.2, 5.3, 5.5 and 5.7
Defendant Used Motor Vehicle
Juvenile Decline [ ] Mandatory [ ] Discretionary
App. 91
I. Hearing
1.1
The Court conducted a sentencing hearing this
date and present were:
Defendant: CHAD GARRIT BENNETT
Defendant’s Lawyer: David Bustamante
Prosecuting Attorney: Garth Dano
II. Findings
2.1 Current Offenses: The defendant is guilty of the
following offenses, based upon a Jury Verdict on March
29, 2017:
Count Crime
RCW
Class
(w/sub
section)
Date of
Crime
2
Murder in the
S e c o n d
D e g r e e
(Intentional
Murder)
9A.32.05
0(1)(a)
A
09/07/
2014
2
A g g r a v a t e d 9.94A.53
Circumstance- 5(3)(a)
Deliberate
Cruelty
SA
09/07/
2014
2
A g g r a v a t e d 9.94A.53
Circumstance- 5(3)(b)
Particularly
Vulnerable
Victim
SA
09/07/
2014
App. 92
Class: A (Felony-A), B (Felony-B), C (Felony-C), GM
(gross misd), M (misd), SA (Special Allegation)
(If the crime is a drug offense, include the type of drug
in the second column.)
[ ] Additional current offenses are attached in Appendix
2.1a.
The jury returned a special verdict or the court made a
special finding with regard to the following:
GV [ ] For the crime(s) charged in Count _______,
domestic violence was pled and proved. RCW
10.99.020.
[ ] The defendant used a firearm in the commission of
the offense in Count _______. RCW 9.94A.602, 9.94.A.533.
[ ] The defendant used a deadly weapon other than
a firearm in committing the offense in Count _______.
RCW 9.94A.602, 9.94A.533.
[ ] Count _______, Violation of the Uniform
Controlled Substances Act (VUCSA), RCW
69.50.401 and RCW 69.50.435, took place in a school,
school bus, within 1000 feet of the perimeter of a school
grounds or within 1000 feet of a school bus route stop
designated by the school district; or in a public park,
public transit vehicle, or public transit stop shelter; or
in, or within 1000 feet of the perimeter of a civic center
designated as a drug-free zone by a local government
authority, or in a public housing project designated by
a local governing authority as a drug-free zone.
[ ] In count _______ the defendant committed a robbery
of a pharmacy as defined in RCW 18.64.011(21), RCW
9.94A.___.
[ ] The defendant committed a crime involving the
manufacture of methamphetamine, including its salts,
isomers, and salts of isomers, when a juvenile was
App. 93
present in or upon the premises of manufacture
in Count _______. RCW 9.94A.605, RCW 69.50.401,
RCW 69.50.440.
[ ] Count _______ is a criminal street gang-related
felony offense in which the defendant compensated,
threatened, or solicited a minor in order to involve
that minor in the commission of the offense. RCW
9.94A.833.
[ ] Count _______ is the crime of unlawful possession
of a firearm and the defendant was a criminal street
gang member or associate when the defendant
committed the crime. RCW 9.94A.702, 9.94A.___.
[ ] The defendant committed [ ] vehicular homicide
[ ] vehicular assault proximately caused by driving a
vehicle while under the influence of intoxicating liquor
or drug or by operating a vehicle in a reckless manner.
The offense is, therefore, deemed a violent offense.
RCW 9.94A.030.
GY [ ] In Count _______, the defendant had (number of)
_______ passenger(s) under the age of 16 in the
vehicle. RCW 9.94A.834.
[ ] Count _______ involves attempting to elude a
police vehicle and during the commission of the crime
the defendant endangered one or more persons other
than the defendant or the pursuing law enforcement
officer. RCW 9.94A.834.
[ ] In Count _______ the defendant has been convicted
of assaulting a law enforcement officer or other
employee of a law enforcement agency who was
performing his or her official duties at the time of the
assault, as provided under RCW 9A.36.031, and the
defendant intentionally committed the assault with
what appeared to be a firearm. RCW 9.94A.831,
9.94A.533.
App. 94
[ ] Count _______ is a felony in the commission of which
the defendant used a motor vehicle. RCW46.20.285.
[ ] The defendant has a chemical dependency that
has contributed to the offense(s)- RCW 9.94A.607.
[ ] Reasonable grounds exist to believe the defendant is
a mentally ill person as defined in RCW 71.24.025, and
that this condition is likely to have influenced the
offense. RCW 9.94B.080
[ ] In Count _______, assault in the 1st degree (RCW
9A.36.011) or assault of a child in the 1st degree (RCW
9A.36.120), the offender used force or means likely to
result in death or intended to kill the victim and shall
be subject to a mandatory minimum term of 5 years
(RCW 9.94A.540).
[ ] Counts ___________ encompass the same criminal
conduct and count as one crime in determining the
offender score. RCW 9.94A.589.
[ ] Other current convictions listed under
different cause numbers used in calculating the
offender score are (list offense and cause number):
Crime
Cause
Number
Court (county
& state)
DV*
Yes
* DV: Domestic Violence was pied and proved.
[ ] Additional current convictions listed under different
cause numbers used in calculating the offender score
are attached in Appendix 2.1b.
App. 95
2.2 Criminal History (RCW 9.94A.525):
[See Fold-out Exhibit]
[] The defendant has a chemical dependency that has contributed to the offense(s)- RCW
9.94A.607.
[ ] Reasonable grounds exist to believe the defendant is a mentally ill person as defined in RCW
71.24.025, and that this condition is likely to have influenced the offense. RCW 9.94B.080
[] In Count
, assault in the 1st degree (RCW 9A.36.011) or assault of a child in the I st
degree (RCW 9A.36.120), the offender used force or means likely tu result in death or
intended to kill the victim and shall be subject to a mandatory minimum tem1 of 5 years
(RCW 9.94A .540).
t ] Counts
em::ompass the same criminal conduct and cow1t as one crime
in detem1ining the offender score. RCW 9.94A.589.
t ] Other current convictions liskd under different cause numbers used in calculating the
offender score are (list offense and cause number):
Crime
Cause Number
Coult (county & state)
DV"
Yes
* DV: Domestic Violence was pied and proved.
[] Additi onal current convictions listed under different cause numbers used in calculating the
offender score are attached in Appendix 2.1 b.
2 2 C nmma
. . I H",story (RCW 9 94 A 525)
Crime
Date of
Crime
Date of
Sentence
l
l) WLS 3m Degree
07/0511.3
12/10/13
2
DWLS Jrd Degree
12/0/i/l 0
08/09/11
~
D\.VLS 3 RD Degree
0511311 0
J
4
5
G
7
Possess Sti>!cn l'rope11y 3rd
Degree
Theft 3 rct [)egret'..
Harassmcm - Prev Conv Death
Threat (Felony)
Telephone Calls to llii rass
09122/09
T<.: l(!phon<.: Cull~ l o lfara~s
Granl COLmly WA
Type
of
A orJ
Adult,
Juv.
A
Crime
NV
A
NV
07/13/10
3ZOG257 I 5
Grant County WA
XYD59528X
Grant County WA
A
NV
()6105 / 12
r,PC02909D
G 1·ant C0u nty W /\
;\
NV
A
NV
D7ID81D8
08/01/08
D3/01 106
04/11/06
03104104
06/08/04
03/03104
06/08/04
(f t: luny)
8
Sentencing Court
(County & State)
(Fr:, luny)
9
Telephone Calls to l!arnss
03107104
06/08/04
10
l [ur~ssment (5 CTS)
11.106103
02/ l8/D4
ov·
Yes
09-1-00498-9
Grant County WA
El'C0276Ull
Cowlitz County WA
06-8-00092-0
Cl1wlit,: County W;\
0<1-8-0013 7-7
Cowlitz Cuunly WA
04-8-0013 7-7
Cowlit,: County WA
04-8-0013 7-7
.r
l\' V
t/2.
_I
NV
\/2-
.I
l\'V
J
NV
Grant County WA
_I
l\'V
03-8-00632-5
* DV: Domestic Violence was pied and proved.
[] Additional criminal history is attached in Appendix 2_2_
[ ] The defendant committed a cun-ent offense vvhi le on community placement/community
custody (adds one point to score)_ RCW 9_94A525.
Felony Judgment and Sentence (FJS) (Prison)(Nonsex Offender)
(RCW 9.94A.500, .505)(WPF CR 84.0400 (6/2016))
02140
02140
Page 3 of 19
--\'lz..
'lz...
App. 96
[ ] Additional criminal history is attached in Appendix
2.2.
[ ] The defendant committed a current offense while on
community placement/community custody (adds one
point to score). RCW 9.94A.525.
[ ] The prior convictions listed as number(s) _______,
above, or in appendix 2.2, are one offense for purposes
of determining the offender score (RCW 9.94A.525)
[ ] The prior convictions listed as number(s) _______,
above, or in appendix 2.2, are not counted as points but
as enhancements pursuant to RCW 46.61.520.
2.3 Sentencing Data:
Count No.
Offender
Score
Serious
-ness
Level
Standard
Range
(not
including
enhance
ments)
2
1 (1.5 pts)
XIV
134-234
Plus
Enhancements*
Total Standard
Range (including
enhancements)
Maximum
Term
134-234
LIFE
* (F) Firearm, (D) Other deadly weapons, (V) VUCSA
in a protected zone, (RPh) Robbery of a pharmacy, (VH)
Veh. Hom, see RCW 9.94A.533(7), (JP) Juvenile
present, (CSG) criminal street gang involving minor,
(AE) endangerment while attempting to elude, (ALF)
assault law enforcement with firearm, RCW
App. 97
9.94A.533(12), (P16) Passenger(s) under age 16.
[ ] Additional current offense sentencing data is
attached in Appendix 2.3.
For violent offenses, most serious offenses, or armed
offenders, recommended sentencing agreements or
plea agreements are [ ] attached [ ] as follows:
______________________________________________.
2.4 [x] Exceptional Sentence. The court finds
substantial and compelling reasons that justify an
exceptional sentence:
[ ] below the standard range for Count(s) _______
[x] above the standard range for Count(s) 2.
[ ] The defendant and state stipulate that justice is
best served by imposition of the exceptional
sentence above the standard range and the court
finds the exceptional sentence furthers and is
consistent with the interests of justice and the
purposes of the sentencing reform act.
[x] Aggravating factors were [ ] stipulated by the
defendant, [ ] found by the court after the
defendant waived jury trial, [x ] found by jury,
by special interrogatory.
[ ] within the standard range for Count(s) _______, but
served consecutively to Count(s) _______.
Findings of fact and conclusions of law are attached in
Appendix 2.4. [ ] Jury’s special interrogatory is
attached. The Prosecuting Attorney [ ] did [ ] did not
recommend a similar sentence.
2.5 Legal Financial Obligations/Restitution. The
court has considered the total amount owing, the
defendant’s present and future ability to pay legal
financial obligations, including the defendant’s
financial resources and the likelihood that the
App. 98
defendant’s status will change. (RCW 10.01.160). The
court makes the following specific findings:
[ ] The following extraordinary circumstances exist that
make restitution inappropriate (RCW 9.94A.753):
________________________________________________.
[ ] The defendant has the present means to pay costs of
incarceration. RCW 9.94A.760.
2.6 [ ] Felony Firearm Offender Registration. The
defendant committed a felony firearm offense as
defined in RCW 9.41.010, and
[ ] The defendant shall register as a felony firearm
offender. The court considered the following factors in
making this determination:
[ ] the defendant’s criminal history
[ ] whether the defendant has previously been found
not guilty by reason of insanity of any offense in
this state or elsewhere.
[ ] evidence of the defendant’s propensity for
violence that would likely endanger persons.
[ ] other: _________________________________.
[ ] The defendant must register as a felony firearm
offender because the offense was committed in
conjunction with an offense committed against a person
under the age of 18, or a serious violent offense or
offense involving sexual motivation as defined in RCW
9.94A.030. The defendant must register as a felony
firearm offender.
III. Judgment
3.1 The defendant is guilty of the Counts and Charges
listed in Paragraph 2.1 and Appendix 2.1.
App. 99
3.2 [x] The court dismissed:
1 Aggravated
CircumstanceLack of
Remorse
9.94A.535(3)(q)
SA
09/07/
2014
2 Aggravated
CircumstanceLack of
Remorse
9.94A.535(3)(q)
SA
09/07/
2014
IV. Sentence and Order
It is ordered:
4.1 Confinement The court sentences the defendant
to total confinement as follows:
(a) Confinement. RCW 9.94A.589. A term of total
confinement in the custody of the Department of
Corrections (DOC):
660 months on Count 2
[ ] The confinement time on Count(s) _______
contain(s) a mandatory minimum term of _______.
[ ] The confinement time on Count __________
includes _______ months as enhancement for
[ ] firearm [ ] deadly weapon [ ] VUCSA in a
protected zone [ ] manufacture of
methamphetamine with juvenile present [ ]
impaired driving
Actual number of months of total confinement
ordered is: 660.
App. 100
(b) Confinement. RCW 10.95.030 (Aggravated murder
and under age 18.) The court orders the following:
Count 2 minimum term: _______ maximum term:
Life ___________________________________________.
All counts shall be served concurrently, except for the
portion of those counts for which there is an
enhancement as set forth above at Section 2.3, and
except for the following counts which shall be served
consecutively: __________________________________.
This sentence shall run consecutively with the sentence
in the following cause number(s) (see RCW
9.94A.589(3)): __________________________________.
Confinement shall commence immediately unless
otherwise set forth here: ________________________.
(c) Credit for Time Served. The defendant shall
receive credit for eligible time served prior to
sentencing if that confinement was solely under this
cause number. RCW 9.94A.505. The jail shall compute
time served.
(d) [ ] Work Ethic Program. RCW 9.94A.690, RCW
72.09.410. The court finds that the defendant is eligible
and is likely to qualify for work ethic program. The
court recommends that the defendant serve the
sentence at a work ethic program. Upon completion of
work ethic program, the defendant shall be released on
community custody for any remaining time of total
confinement, subject to the conditions in Section 4.2.
Violation of the conditions of community custody may
result in a return to total confinement for the balance
of the defendant’s remaining time of confinement.
App. 101
4.2 Community Custody. (To determine which
offenses are eligible for or required for community
custody see RCW 9.94A.701)
(A) The defendant shall be on community custody for:
Count(s) 2
36 months for Serious Violent
Offenses
Count(s) _______ 18 months for Violent Offenses
Count(s) _______ 12 months (for crimes against a
person, drug offenses, or
offenses involving the unlawful
possession of a firearm by a
street gang member or
associate)
Note: combined term of confinement and community
custody for any particular offense cannot exceed the
statutory maximum. RCW 9.94A.701.
(B) While on community custody, the defendant shall:
(1) report to and be available for contact with the
assigned community corrections officer as directed;
(2) work at DOC-approved education, employment
and/or community restitution (service); (3) notify DOC
of any change in defendant’s address or employment;
(4) not consume controlled substances except pursuant
to lawfully issued prescriptions; (5) not unlawfully
possess controlled substances while on community
custody; (6) nor own, use, or possess firearms or
ammunition; (7) pay supervision fees as determined by
DOC; (8) perform affirmative acts as required by DOC
to confirm compliance with the orders of the court;
(9) obey all municipal, county, state, tribal and federal
laws; and (10) abide by any additional conditions
imposed by DOC under RCW 9.94A.704 and .706. The
defendant’s residence location and living arrangements
App. 102
are subject to the prior approval of DOC while on
community custody.
The court orders that during the period of supervision
the defendant shall:
[ ] not possess or consume alcohol.
[ ] not possess or consume controlled substances,
including marijuana, without a valid prescription.
[ ] have no contact with: ________________________.
[ ] remain [ ] within [ ] outside of a specified
geographical boundary, to wit: ________________________.
[ ] not serve in any paid or volunteer capacity where he
or she has control or supervision or minors under 13
years of age.
[ ] participate in the following crime-related treatment
or counseling services: __________________________.
[ ] undergo an evaluation for treatment for [ ] domestic
violence [ ] substance use disorder
[ ] mental health [ ] anger management, and fully
comply with all recommended treatment. ______
[ ] comply with the following crime-related prohibitions:
_________________________________________________
________________________________________________.
[ ] Other conditions:
__________________________________________________
________________________________________________.
Court Ordered Treatment: If any court orders mental
health or substance use disorder treatment, the
defendant must notify DOC and the defendant must
release treatment information to DOC for the duration
of incarceration and supervision. RCW 9.94A.562.
(C) If the defendant committed the above crime(s) while
under age 18 and is sentenced to more than 20 years of
confinement:
App. 103
(i)
As long as the defendant’s conviction is not
for aggravated first degree murder or certain
sex crimes, and the defendant has not been
convicted of any crime committed after he or
she turned 18 or committed a disqualifying
serious infration as defined by DOC in the 12
months before the petition is filed, the
defendant may petition the Indeterminate
Sentence Review Board (Board) for early
release after the defendant has served 20
years.
(ii)
If the defendant is released early because the
petition was granted or by other action of the
Sentence Review Board, the defendant will
be subject to community custody under the
supervision of the DOC for a period of time
determined by the Board, up to the length of
the court-imposed term, of incarceration. The
defendant will be required to comply with
any conditions imposed by the Board.
(iii)
If I violate the conditions of community
custody, the Board may return me to
confinement for up to the remainder of the
court-imposed term of incarceration.
4.3 Legal Financial Obligations: The defendant
shall pay to the clerk of this court:
JASS CODE
PCV $ 500.00 Victim assessment RCW 7.68.035
PDV $ ___ Domestic Violence (DV) assessment RCW
10.99.080
App. 104
$____ Violation of a DV protection order ($15
mandatory fine) RCW 26.50.100
CRC $200.00 Court costs, including RCW 9.94A.760,
9.94A.505, 10.01.160, 10.46.190
Criminal filing fee $200.00 FRC
Witness costs $_____ WFR
Sheriff service fees $_____ SFR/SFS/SFW/WRF
Jury demand fee $_____ JFR
Extradition costs $_____ EXT
Other $_____
PUB $ ____ Fees for court appointed attorney
RCW 9.94A.760
WFR $ ____ Court appointed defense expert and other
defense costs RCW9.94A.760
FCM/MTH $ ____ Fine RCW 9A.20.021; [ ] VUCSA
chapter 69.50 RCW, [ ] VUCSA additional
fine deferred due to indigency RCW
69.50.430
CDF/LDI/FCD $ ____ Drug enforcement fund of _____
NTF/SAD/SDI
RCW 9.94A.760
$ ____ DUI fines, fees and assessments
CLF $ ____ Crime lab fee [ ] suspended due to indigency
RCW 43.43.690
$ 100.00 DNA collection fee RCW 43.43.7541
FPV $ ____ Specialized
76.48.171
forest
$ ____ Other fines or costs for:
products RCW
App. 105
DEF $ ____ Emergency response costs (Vehicular
Assault, Vehicular Homicide,
Felony DUI only, $2,500 max.)
RCW 38.52.430
$ ____ Restitution to: _______________________
RTN/RJN $ ___ Restitution to: ___________________
$ ____ Restitution to: _______________________
(Name and Address--address may
be withheld and provided
confidentially to Clerk of the
Court’s office.)
$ 800.00 Total
RCW 9.94A.760
[ ] The above total does not include all restitution or
other legal financial obligations, which may be set by
later order of the court. An agreed restitution order
may be entered. RCW 9.94A.753. A restitution hearing:
[ ] shall be set by the prosecutor.
[ ] is scheduled for ____________________ (date).
[ ] The defendant waives any right to be present at any
restitution hearing (sign initials): _______.
[ ] Restitution Schedule attached.
[ ] Restitution ordered above shall be paid jointly and
severally with:
Name of other defendant Cause Number (Victim’s
name) (Amount-$)
RJN _____________________________________________
_____________________________________________
_____________________________________________
App. 106
[ ] The Department of Corrections (DOC) or clerk of the
court shall immediately issue a Notice of Payroll
Deduction. RCW 9.94A.7602, RCW 9.94A.760(8).
[X] All payments shall be made in accordance with the
policies of the clerk of the court and on a schedule
established by DOC or the clerk of the court,
commencing immediately, unless the court specifically
sets forth the rate here: Not less than $ _______ per
month commencing _______________. RCW 9.94A.760.
The defendant shall report to the clerk of the court
___________ or as directed by the clerk of the court to
provide financial and other information as requested.
RCW 9.94A.760(7)(b).
[ ] The court orders the defendant to pay costs of
incarceration at the rate of $ __________ per day,
(actual costs not to exceed $100 per day). (JLR) RCW
9.94A.760.
The financial obligations imposed in this judgment
shall bear interest from the date of the judgment until
payment in full, at the rate applicable to civil
judgments. RCW 10.82.090. An award of costs on
appeal against the defendant may be added to the total
legal financial obligations. RCW 10.73.160.
4.4 DNA Testing. The defendant shall have a
biological sample collected for purposes of DNA
identification analysis and the defendant shall fully
cooperate in the testing. The appropriate agency shall
be responsible for obtaining the sample prior to the
defendant’s release from confinement. This paragraph
does not apply if it is established that the Washington
State Patrol crime laboratory already has a sample
App. 107
from the defendant for a qualifying offense. RCW
43.4J.754.
[ ] HIV Testing. The defendant shall submit to HIV
testing. RCW 70.24.340.
4.5 No Contact:
[ ] The defendant shall not have contact with
_________________________________ (name) including,
but not limited to, personal, verbal, telephonic, written
or contact through a third party until (which does not
exceed the maximum statutory sentence).
[ ] The defendant is excluded or prohibited from
coming within ________________ (distance) of: [ ]
____________________ (name of protected person(s))’s
[ ] home/ residence [ ]work place [ ] school [ ] (other
location(s)) ___________________ , or [ ] other location:
__________________________, until ________________
(which does not exceed the maximum statutory
sentence).
[ ] A separate Domestic Violence No-Contact Order or
Antiharassment No-Contact Order is filed concurrent
with this Judgment and Sentence.
4.6 Other:________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
____________________________________.
4.7 Off-Limits Order. (Known drug trafficker). RCW
10.66.020. The following areas are off limits to the
defendant white under the supervision of the county
jail or Department of Corrections: __________________
_________________________________________________.
App. 108
4.8 Exoneration: The Court hereby exonerates any
bail, bond and/or personal recognizance conditions.
4.9 Sentence and Order as to Misdemeanor/Gross
Misdemeanor Counts
Defendant is sentenced to imprisonment in the Grant
County jail
for a period of _____ days, with _____ days suspended
for _____ years upon the terms and conditions stated
below as to Count _____.
for a period of _____ days, with _____ days suspended
for _____ years upon the terms and conditions stated
below as to Count _____.
for a period of _____ days, with _____ days suspended
for _____ years upon the terms and conditions stated
below as to Count _____.
[ ] the terms(s) in count(s) ________________ is/are
concurrent/consecutive
[ ] with each other [ ] with count(s) sentenced herein
[ ] with Cause No. __________
The defendant shall receive credit, against the sentence
stated above, for early release time, if any, earned by
the defendant pursuant to the policies of the Grant
County jail.
[ ] Partial Confinement Defendant may serve the
sentence, if eligible and approved, in partial
confinement in the following programs, subject to the
following conditions:
_________________________________________________.
App. 109
[ ] work crew [ ] home detention [ ] work release RCW
70.48.210
[ ] Alternative Conversion. __________ days of total
confinement ordered above are hereby converted to
__________ hours of community restitution (8 hours =
1 day, nonviolent offenders only, 30 days maximum) at
a rate of __________ hours per month:
Confinement shall commence [ ] immediately
[ ] on or before _________________________________.
[ ] You are hereby advised that you have been convicted
of one or more of the following crimes committed by one
family household member against another: G Fourth
Degree Assault G Coercion G Stalking G Reckless
Endangerment in the Second Degree G Criminal
Trespass in the First Degree G Violation of a Protection
Order or No-Contact Order
As a result of the conviction marked above:
You may not own, use or possess any firearm
unless your right to do so is restored by a
Superior Court in Washington State, and by a
federal court if required. You must immediately
surrender any concealed pistol license. (The clerk
of the court shall forward a copy of the defendant’s
driver’s license, identicard, or comparable identification
to the Department of Licensing along with the date of
conviction or commitment.) RCW 9.41.040, 9.41.047.
The prohibitions applicable under Federal Law
may be different.
Conditions for Suspension:
[Omitted for Purposes of this Appendix]
App. 110
[ ] Mandatory Conditions of Suspension for any
Jail Time resulting from a DUI Offense:
You have been convicted of driving under the influence
of alcohol and/or actual physical control of a vehicle
while under the influence of alcohol and/or drugs. You
are not to:
(I) drive a motor vehicle without a valid license to drive
and proof of financial responsibility (SR 22);
(ii) drive while having an alcohol concentration of .08 or
more within two (2) hours after driving;
(iii) refuse to submit to a test of his or her breath or
blood to determine alcohol concentration upon request
of a law enforcement officer who has reasonable
grounds to believe the person was driving or was in
actual physical control of a motor vehicle while under
the influence of intoxicating liquor.
Except for ignition interlock driver’s license and device
or alcohol monitoring requirements under RCW
46.61.5055(5), violation of any mandatory condition
requires a minimum penalty of 30 days’ confinement,
which may not be suspended or deferred, and an
additional 30-day license suspension. RCW
46.61.5055(11). Courts are required to report violations
of mandatory conditions requiring confinement or
license suspension to DOL. RCW 46.61.5055.
The Court’s Jurisdiction with regard to the conditions
applicable to DUI Offenses is Five Years.
App. 111
RIGHTS, CONDITIONS, WARNINGS,
ACKNOWLEDGMENT
1. PUNCTUAL APPEARANCES. You must appear in
court at any time directed by the court throughout the
period of time you have been placed on a deferred
sentence or suspended sentence. You must pay all
fines, costs and assessments when due. You must
appear at the date and time assigned by the court or
jail ready to serve your commitment.
2. ADDRESS CHANGES. You must keep the court
advised of all address changes using the address
provided above. If the court orders you to appear at a
hearing regarding your compliance with the deferred
sentence or suspended sentence and you fail to attend
the hearing, your term of supervision is tolled (the time
does not count) until you appear on the record.
3. EMPLOYMENT AND NEW VIOLATIONS. You
must keep the court informed of your employment
status and any new violations of the law.
4. PROOF OF COMPLIANCE. In each instance where
you are requested to file proof of a condition checked on
the Judgment and Sentence, the proof must be in
writing, signed by the person supervising the required
program and written on the agency’s letterhead. The
proof of completion must be filed with the court.
FAILURE TO MEET CONDITIONS. Failure to meet
any of the conditions imposed in the Judgment and
Sentence or any of the conditions listed above, to
appear as scheduled, and/or to pay financial obligations
as scheduled may result in the filing of additional
criminal charges, the issuance of a bench warrant for
App. 112
your immediate arrest, the revocation of your deferred
sentence or suspended sentence, the imposition of
warrant costs, the suspension of your driver’s license
and the referral of your fines to a collection agency. If
the deferred sentence or suspended sentence is revoked
because of failure to meet conditions, you are subject to
the imposition of the maximum sentence and fine as
permitted by law or such portion thereof as the court
deems appropriate. This order shall remain in effect
through the period of the deferred or suspended
sentence until and unless changed by further order of
the court.
V. Notices and Signatures
5.1 Collateral Attack on Judgment. If you wish to
petition or move for collateral attack on this Judgment
and Sentence, including but not limited to any personal
restraint petition, state habeas corpus petition, motion
to vacate judgment, motion to withdraw guilty plea,
motion for new trial or motion to arrest judgment, you
must do so within one year of the final judgment in this
matter, except as provided for in RCW 10.73.100.
RCW 10.73.090.
5.2 Length of Supervision. If you committed your
offense prior to July 1, 2000, you shall remain under
the court’s jurisdiction and the supervision of the
Department of Corrections for a period up to 10 years
from the date of sentence or release from confinement,
whichever is longer, to assure payment of all legal
financial obligations unless the court extends the
criminal judgment an additional 10 years. If you
committed your offense on or after July 1, 2000, the
court shall retain jurisdiction over you, for the purpose
App. 113
of your compliance with payment of the legal financial
obligations, until you have completely satisfied your
obligation, regardless of the statutory maximum for the
crime. RCW 9.94A.760 and RCW 9.94A.505(5). The
clerk of the court has authority to collect unpaid legal
financial obligations at any time while you remain
under the jurisdiction of the court for purposes of your
legal financial obligations. RCW 9.94A.760(4) and RCW
9.94A.753(4).
5.3 Notice of Income-Withholding Action. If the
court has not ordered an immediate notice of payroll
deduction in Section 4.1, you are notified that the
Department of Corrections (DOC) or the clerk of the
court may issue a notice of payroll deduction without
notice to you if you are more than 30 days past due in
monthly payments in an amount equal to or greater
than the amount payable for one month. RCW
9.94A.7602. Other income-withholding action under
RCW 9.94A.760 may be taken without further notice.
RCW 9.94A.7606.
5.4 Community Custody Violation.
(a) If you are subject to a violation hearing and DOC
finds that you committed the violation, you may receive
a sanction of up to 30 days of confinement. RCW
9.94A.633(1).
(b) If you have not completed your maximum term of
total confinement and you are subject to a violation
hearing and DOC finds that you committed the
violation, DOC may return you to a stat
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