State v. Brown

• Decision Date: 09 September 1999
• Docket Number: No. 67024-2.,67024-2.
• Citation: 983 P.2d 608,139 Wash.2d 20
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Natalie BROWN, Respondent.

983 P.2d 608

139 Wash.2d 20

STATE of Washington, Petitioner, v. Natalie BROWN, Respondent.

No. 67024-2.

Supreme Court of Washington, En Banc.

Argued January 27, 1998.

Decided September 9, 1999.

Norm Maleng, King County Prosecutor, Lee D. Yates, Deputy, Seattle, for Petitioner.

Allen, Hansen, & Maybrown, Richard A. Hansen, Seattle, for Respondent.

IRELAND, J.

This case involves a determination of (1) whether the trial judge abused his discretion in concluding the jurors did not engage in misconduct by using a trial exhibit to reenact the crime charged, and (2) whether a sentencing court can impose an exceptional sentence downward below the time specified under RCW 9.94A.310(4) for a deadly weapon enhancement. We conclude the trial judge did not abuse his discretion by refusing to grant a new trial when the jurors used a trial exhibit to reenact the crime charged. We further conclude that the "Hard Time for Armed Crime" initiative, codified in RCW 9.94A.310(4), deprives a sentencing court of discretion to impose an exceptional sentence downward below the time specified for a mandatory deadly weapon enhancement. We remand to the superior court for re-sentencing consistent with this decision.

FACTS

On March 27, 1996, the Defendant, Natalie Brown, went to Titan Cox's home, believing Cox had sent an angry message to her friend's pager. Among a group of people gathered at Cox's home for a barbecue, Brown confronted Cox and asked if they were still friends. Cox apparently walked away, lit a cigarette and, when Brown pursued him, blew cigarette smoke in her face. Brown claimed she became confused and feared for her safety because Cox was "a big guy," who "always carried [knives]." Brown testified Cox "had that annoyed look, and then I saw him roll his shoulder back like he was about to throw a punch." Report of Proceedings (RP) at 414. Brown said that as Cox punched her in the shoulder, she reached into her coat pocket, quickly grasped and opened a folding knife, and then cut Cox across the nose in self-defense. Cox denied hitting Brown or being aggressive. He testified that Brown suddenly grabbed him without provocation and cut his face, which has resulted in permanent scarring.

At trial, Cox used his coat to demonstrate how Brown attacked him. During cross-examination, Brown's attorney and Cox reenacted the assault. When Brown took the witness stand, she also demonstrated how the assault had occurred. While the coat Brown wore on the night of the incident was not offered into evidence, Cox testified his coat was the same type of trench coat worn by Brown. Brown's testimony also described her trench coat as "matching." RP, Vol. II, at 400.

On November 19, 1996, the jury convicted Brown of second degree assault with a deadly weapon. Before sentencing, Brown moved for a new trial. Basing her motion on a juror's affidavit, Brown argued the jurors conducted an improper experiment by wearing Cox's coat, a trial exhibit, to test the difficulty of pulling Brown's knife out of the coat pocket and opening it as Brown had testified.¹ The trial court reviewed the parties' written submissions and denied Brown's motion. It reasoned that no new extrinsic evidence was introduced during the jury's deliberations.

The presumptive standard sentence range for Brown's assault conviction was three to nine months. The sentencing court added a 12-month deadly weapon enhancement pursuant to RCW 9.94A.310(4)(b), to arrive at a total standard range of 15 to 21 months. The sentencing court, granting the jury's unanimous request for leniency, imposed an exceptional sentence downward of seven months.

The State appeals the trial court's imposition of an exceptional sentence below the applicable 12-month deadly weapons enhancement. In her response, Brown cross-appeals the trial court's denial of her motion for a new trial based on jury misconduct.

ANALYSIS

A. Jury Misconduct

A trial court's refusal to grant a new trial is reviewed for abuse of discretion. State v. Balisok, 123 Wash.2d 114, 117, 866 P.2d 631 (1994).

The State argues Brown failed to make a sufficient record to review this issue on appeal because the juror's affidavit was never submitted to the trial court. It also argues the jury's reenactment was proper because no new evidence was created or introduced. While the juror's affidavit is missing from the record, it appears the defense produced it for the trial court. This is evidenced by the State's silence when defense counsel said to the trial judge, "The affidavit for Mr. Newell was presented to the court. I trust the court's received that." RP at Defense Mot. and Sentencing, Vol. II, at 2. In order to consider the merits of her argument, Brown's version of the events are accepted.

A new trial may be warranted when a jury considers information other than the evidence admitted at trial. See Balisok, 123 Wash.2d at 118,

866 P.2d 631. While a jury may use exhibits admitted in evidence to critically examine a defendant's version of the events under a claim of self-defense, it may not rely on novel or extrinsic evidence, which is not subject to objection, cross examination, explanation, or rebuttal. Balisok, 123 Wash.2d at 118-19,

866 P.2d 631.

In this case, the coat and knife used by the jury to reenact Brown's story were admitted as trial exhibits. Although the coat belonged to Cox, the evidence established Brown wore a similar coat. At trial, Brown's attorney and Cox reenacted the assault by using Cox's coat to demonstrate how Brown assaulted him. When Brown took the witness stand, she also used Cox's coat to demonstrate the assault.

Brown has failed to establish misconduct. She concedes that if her coat had been introduced into evidence, the jury could have used it to conduct the experiment. Although Cox's coat may have been larger than Brown's, jurors are presumed to use their common sense and reasoning powers to compensate for this variable. See Balisok, 123 Wash.2d at 119,

866 P.2d 631 (jury's simulation of self-defense claim was not misconduct merely because the juror simulating the defendant's actions did not match the defendant's proportions). The jurors' reenactment was simply a critical examination of Brown's self-defense theory with evidence already admitted at trial. The trial judge did not abuse his discretion by denying Brown's motion for a new trial. Accordingly, Brown's conviction is affirmed.

B. The Exceptional Sentence Below the Mandatory Deadly Weapon Enhancement

"Interpretation of a statute is a question of law reviewed by an appellate court de novo." In re Post Sentencing Review of Charles, 135 Wash.2d 239, 245, 955 P.2d 798 (1998).

Prior to Sentencing Reform Act of 1981(SRA) amendments in 1995, a sentencing court's discretion for a felony conviction was primarily governed by RCW 9.94A.120. This statute requires a sentencing court to impose a sentence within the offense's sentencing range. RCW 9.94A.120(1). However, "[a] court may impose a sentence outside the standard sentence range for that offense if it finds ... there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). While various offenses are excluded from exceptional sentence eligibility, second degree assault, a class B felony and the offense at issue in this case, is not among those excluded offenses. RCW 9.94A.120(4).

In 1995, the Legislature enacted, without amendment, Initiative 159, entitled "Hard Time for Armed Crime." Laws of 1995, ch. 129; In re Charles, 135 Wash.2d at 246, 955 P.2d 798 (citing State v. Broadaway, 133 Wash.2d 118, 124, 942 P.2d 363 (1997)). Initiative 159 "split the previous deadly weapon enhancement into separate enhancements for firearms and for other deadly weapons, and broadened their application to all felonies except those in which using a firearm is an element of the offense." Washington Sentencing Guidelines Comm'n, Adult Sentencing Guidelines Manual cmt. at II-67 (1997). Although Initiative 159 did not amend RCW 9.94A.120, its purpose was to "increase sentences for armed crime." In re Charles, 135 Wash.2d at 246, 955 P.2d 798 (citing Broadaway, 133 Wash.2d at 128, 942 P.2d 363). This new law thus increases the sentence enhancement for an offender found to have been armed with a firearm or deadly weapon during the commission of the offense. In re Charles, 135 Wash.2d at 246, 955 P.2d 798. The SRA provides that a presumptive sentence range is based on a defendant's offender score and the seriousness level of the offense. RCW 9.94A.310(1). When a jury makes a special finding that a felony offender was armed with a deadly weapon, certain "additional times shall be added to the presumptive sentence[.]" RCW 9.94A.310(4). See In re Charles, 135 Wash.2d at 253-54, 955 P.2d 798

. Initiative 159's amendments to the SRA provide that 12 months shall be added to the presumptive sentence for felony crimes if the offender was armed with a deadly weapon and the felony was defined under any law as a class B felony. RCW 9.94A.310(4). Former RCW 9.94A.310(4)(e)² also provided:

Notwithstanding any other provision of law, any and all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall not run concurrently with any other sentencing provisions.

(Emphasis added.)

The State, relying on the absolute language of RCW 9.94A.310(4)(e), argues Brown's 12-month deadly weapon enhancement is a mandatory minimum punishment from which the sentencing court has no discretion to deviate. Brown responds that enhancements are added to and become part of the presumptive sentence range, from which the court has discretion to depart for compelling reasons under RCW 9.94A.120(2). Thus, Brown suggests that once the total range is calculated, given sufficient justification, the court can deviate from the sentencing range without limitation. Brown relies on In re Charles to support this proposition.

In re Charles consolidated two criminal cas...