State v. Brett
| Decision Date | 04 April 1995 |
| Docket Number | No. 59429-5,59429-5 |
| Citation | 126 Wn.2d 136,892 P.2d 29 |
| Parties | The STATE of Washington, Respondent, v. James Leroy BRETT, Appellant. |
| Court | Washington Supreme Court |
James Leroy Brett was convicted by a jury in Clark County Superior Court of aggravated first degree murder and first degree felony murder. The jury sentenced Brett to death following a sentencing proceeding conducted in accordance with the legislative guidelines set forth in RCW 10.95. Brett appealed directly to this court alleging numerous errors occurred in the pre-trial, guilt, and penalty phases of the trial. After carefully considering Brett's arguments and conducting our statutorily mandated review, we find there is no reversible error and affirm the conviction and death sentence.
James Leroy Brett was living in Longview, Washington, with his girlfriend, Shirley Martin, and her son, Miles, when he originated a "plan" to do "one last big job" to make their life better. 12 Report of Proceedings, at 93. At the
time, Martin was receiving welfare benefits, and Brett was attempting to obtain social security benefits.
According to the plan, Brett and Martin would select an elderly couple's house in a rich neighborhood and restrain the victims until the next day when their bank opened. Brett and Martin would force the victims to withdraw their money and then kill them by injecting a toxic substance into the back of their heads.
To facilitate commission of the plan, Martin and Brett acquired a shotgun and shells, stocking caps, gloves, duct tape, and a duffel bag. Brett also obtained three-to-four 100 cubic centimeter syringes which were larger than the insulin needles Brett ordinarily used for his diabetes.
In the early afternoon of December 3, 1991, Brett and Martin dropped Martin's son, Miles, off at the house of Rhonda Camba, Brett's sister. They said they would be gone overnight and would pick up Miles the next morning. Brett and Martin drove to Vancouver and picked out an upper middle class neighborhood. They waited for nightfall to increase the likelihood the potential victims would be in bed. During that time, they had a drink at a bar, smoked marijuana, ate at a Denny's Restaurant, and purchased some items at a convenience store. Martin testified they smoked a lot that day and characterized themselves as being "baked", a term Martin uses to describe being very high on marijuana.
When it was dark, Brett and Martin drove back to the Mount Vista neighborhood and parked. Each wore gloves and stocking caps that did not cover their faces. Brett felt masks were not needed because there would be no survivors. Brett picked the Milosevich residence at random. Martin rang the doorbell, and Mrs. Milosevich went upstairs to wake her husband. Brett was standing off to the side of the entrance holding a shotgun.
The parties stipulated Brett used a .410 caliber single-barrelled, bolt-action shotgun. Before firing a second shot, the user would have to pull the bolt back to eject the spent
shell, place a new shell in the chamber, close the bolt, and release the safety. Both the barrel and the stock of the shotgun were sawed off.
Martin told Mr. Milosevich she was having car trouble, and when he started to open the door, Brett and Martin forced their way in at gunpoint and ordered the Miloseviches down on the floor. Mr. Milosevich remained standing. The burglar alarm was activated, and before Mrs. Milosevich could comply with Brett's demand to deactivate the system, a signal was sent to ADT Security Systems. ADT attempted to contact the occupants by telephone and, receiving no response, notified police.
Martin testified things were getting "way out of control...." 12 Report of Proceedings, at 115-16. She forced Mrs. Milosevich to stay down with a knife and tried to intimidate and plead with Mr. Milosevich to cooperate. Then, Martin was thrown against the wall by someone, believed to be Brett, and when she got up, she saw Mr. Milosevich make a move toward Brett who fired the shotgun at his chest. While Brett was reloading, Mrs. Milosevich ran out of the house to the next-door neighbor's. When she started to run, Brett pointed the gun at her then turned it back towards Mr. Milosevich. Mr. Milosevich pleaded for his life saying, " 'Oh God, please don't.' " Brett responded by telling Mr. Milosevich " 'You're going to die,'...." 12 Report of Proceedings, at 116. Martin ran out of the house and heard a second gunshot. Mr. Milosevich was shot in the back of the head at close range. Brett and Martin fled the scene without taking anything from the residence.
At approximately 11:14 p.m. on December 3, 1991, a Clark County Deputy Sheriff was dispatched to the Milosevich residence. Upon his arrival, the Deputy found the victim, Kenneth Milosevich dead from two gunshot wounds. There were blood splatters on the floor near the victim, but there were no signs of a struggle, and nothing appeared to be disturbed in the remainder of the residence. The crime scene was contained, photographed, and videotaped by police.
Brett and Martin drove to the house of Brett's mother where he confessed to the killing. Brett also told his sister, Rhonda Camba, that he had "killed somebody." 12 Report of Proceedings, at 19. Brett said he did not go there to kill anyone, he just intended to rob them.
Later that day, Brett put items used in the crime in a duffel bag and threw it in the river. The police recovered the duffel bag from a slough in Longview. The duffel contained gloves, a black stocking cap, a short-sleeved shirt, two pairs of jeans, two heavy leather coats, and a yellow casing for a syringe needle. The shotgun was never recovered.
Shirley Martin was charged with and pleaded guilty to premeditated murder in the first degree, burglary in the first degree, assault in the second degree, and attempted robbery in the first degree.
On December 10, 1991, Brett was charged with aggravated murder in the first degree of Kenneth George Milosevich which charge alleged the murder was committed in the course of, in furtherance of, or in immediate flight from robbery in the first or second degree and burglary in the first or second degree. The court entered a plea of not guilty on Brett's behalf on January 13, 1992. On January 22, 1992, the State filed a notice of intent to seek the death penalty.
Thereafter, on March 27, 1992, the State filed an amended information charging Brett with aggravated murder in the first degree adding the aggravating factors of concealment and kidnapping in the first degree (count 1). Count 2 alleged felony murder in the first degree based on robbery or attempted robbery in the first or second degree. Counts 3 through 5 alleged crimes naming Kenneth Milosevich's wife, Patricia. Count 6 alleged burglary in the first degree. The court stayed counts 3 through 6 pending resolution of count 1.
On April 16, 1992, at Brett's arraignment, the State moved to file a second amended information merging counts 1 and 2. Brett objected and attempted to plead guilty to count 2 (felony murder). The court refused the guilty plea and granted
the State's motion. The court entered a plea of not guilty on Brett's behalf. A second notice of intent to seek the death penalty was filed with the second amended information.
Brett moved for a bill of particulars on the aggravating factors of robbery, kidnapping, and concealment and moved to dismiss the aggravators of robbery and kidnapping. The court denied both pre-trial motions.
During voir dire, the defense challenged 12 jurors for cause who expressed support for the death penalty. The trial court denied the challenges, and the defense was forced to use its peremptory challenges. As a result, 2 jurors challenged for cause sat on the jury, Deborah J. Monohan and Mark J. Bowyer. The prosecution used its peremptory challenges to exclude 5 jurors who expressed doubts about the death penalty.
At the close of the State's case, the trial court denied the defense motions to dismiss the concealment, kidnapping, and robbery aggravating factors for lack of evidence. The motions were renewed at the close of the defense case and were again denied.
The jury found Brett guilty of first degree felony murder and aggravated first degree murder with four aggravating factors: first degree burglary, first degree robbery, first degree kidnapping, and concealment of the perpetrator's identity.
The penalty phase commenced on June 15, 1992, and lasted 3 1/2 days. The State opened the penalty phase by submitting certified copies of Brett's juvenile adjudications and criminal convictions. During rebuttal, the State also introduced the results of "a performance I.Q." test administered to Brett in Shelton by the Department of Corrections in March 1989 wherein he scored in the 52nd percentile. Brett was also given a basic education test which ranked him at a 9th grade education level.
The defense introduced testimony from family members, school teachers and administrators, and juvenile detention facility counselors and staff which detailed Brett's family
and school history. The testimony showed that Brett grew up in a poor, unstable household with little, if any, parental support or guidance in which alcohol was abused by the adults and shared with the children at very young ages.
Brett's mother, Sherry Brett, is an admitted alcoholic and testified that while she was pregnant with James she abused alcohol and smoked 1 1/2-to-2 packs of cigarettes every day. Brett was the youngest child and was illegitimate. He was diagnosed with diabetes when he was 8 years old.
Sherry Brett had numerous boyfriends and three marriages. While married to Robert Spurgeon, the couple...
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