State v. Flett
| Decision Date | 11 January 2000 |
| Docket Number | No. 16612-1-III.,16612-1-III. |
| Citation | 992 P.2d 1028,98 Wash.App. 799 |
| Parties | STATE of Washington, Respondent and Cross-Appellant, v. Gary Arlan FLETT, Jr., Appellant. |
| Court | Washington Court of Appeals |
Kenneth K. Watts, Spokane, for Appellant.
Kevin M. Korsmo, Deputy Pros. Atty., Spokane, for Respondent.
Gary A. Flett, Jr. was found guilty of four counts of first degree assault while armed with a firearm. The 17 assignments of error by Mr. Flett and five additional assignments of error by the State are grouped for discussion under the topics: A. Misspelled Name; B. Master Jury List; C. Evidence Sufficiency; D. Exceptional Sentence; and E. Additional Pro Se Contentions. We decide the trial court erred solely by ordering the firearm enhancements to run concurrently under RCW 9.94A.310(3). Further, we clarify that under the circumstances presented the base sentence may not be reduced below the requirements of RCW 9.94A.120(4). We reject all other claims of error. Accordingly, we affirm but remand for resentencing.
In September 1995, Timothy P. Darby was driving slowly out of a parking lot near a Spokane bar around closing time. Accompanying him were John A. Carter, David "DJ" Wilson, and Kevin Cady. They encountered Mr. Flett, who Mr. Darby recognized, near the car Mr. Flett had just parked. Mr. Flett later testified he came by because he thought he had observed some trouble at the lot between the Darby group and some of Mr. Flett's friends. As Mr. Darby slowed to stop, Mr. Flett shot into the Darby car at close range, wounding all four occupants. Mr. Flett testified that one of Mr. Darby's passengers pointed a gun at him. Mr. Flett said he instinctively raised his own gun and fired in self-defense, accidentally hitting the others. Mr. Flett stated, "I was scared for my life." The wounded men denied any gun was inside their car; no gun was found. Mr. Darby testified he approached with his window rolled partly down to greet Mr. Flett, an old acquaintance, then sped away as shots were fired.
Mr. Flett was charged with four counts of first degree assault with a deadly weapon. The information refers to Mr. Flett as "Jr." However, at his arraignment and trial he identified himself as "Sr." Mr. Flett never objected to his being referred to as "Jr." Jury questions later reflected some concern about the different name in their instructions compared to Mr. Flett's testimony. Mr. Flett's public defender was changed about four months before trial due to a conflict of interest.
Verdicts indicated guilty on all four counts while armed with a firearm. The sentencing was delayed because Mr. Flett's attorney, over Mr. Flett's objection, requested and was granted a continuance due to trial conflicts. Mr. Flett was sentenced to 459 months based upon four consecutive base standard range sentences totaling 399 months, together with a consecutive 60-month firearm enhancement running concurrently with the other firearm enhancements as an exceptional sentence pursuant to RCW 9.94A.400. Mr. Flett unsuccessfully argued on reconsideration that the base sentences should be decreased and the firearm enhancements should run consecutively to the base sentences to result in the same 459-month sentence. Mr. Flett appealed over a wide front, including the sentence. The State cross-appealed the exceptional sentence.
The issue is whether Mr. Flett's judgment and sentence should be reversed because the information and instructions referred to him as "Gary Flett, Jr." instead of "Gary Flett, Sr." Mr. Flett contends a defendant's name is an essential element of the information and therefore must be correct. We disagree.
First, the State correctly argues this issue is not of constitutional magnitude. Challenges to the sufficiency of the information are of constitutional magnitude if they concern the essential elements of the crime charged. State v. Moavenzadeh, 135 Wash.2d 359, 362, 956 P.2d 1097 (1998). Common sense and practicality guide us when construing the language of an information. Id. at 362, 956 P.2d 1097. Mr. Flett cites no authority for his proposition that the spelling of his name is an essential element to be proved.
Second, confusion as to how a name is spelled is immaterial where part of the name is sufficiently clear and the defendant is identified to the jury as the person charged. See State v. Passila, 117 Wash. 295, 296, 201 P. 295 (1921). Here, Mr. Flett's first and last names were spelled correctly. Moreover, his identity is not in issue and he shows no prejudice. Further, he testified before the jury admitting his presence but merely claimed self-defense.
Mr. Flett assigns error to the jury panel because LR 47 conflicts with GR 18 and statutes providing for a merged list of prospective jurors. Mr. Flett contends, for the first time on appeal, that LR 47 produces a master list based solely on voter registration contrary to the requirements of GR 18 and RCW 2.36.055. Even though, Mr. Flett, a Native-American, argues a master list based on voter registration discriminates against him because few Native-Americans register to vote, his brief focuses solely on the procedure used to compile the master jury list.
An issue involving compliance with a procedural rule rather than a constitutional issue may not be raised for the first time on appeal. State v. Gentry, 125 Wash.2d 570, 616, 888 P.2d 1105 (1995). However, even assuming Mr. Flett's argument concerns an error of constitutional magnitude under RAP 2.5(a)(3), we conclude no error is demonstrated. LR 47 partly states: "The master jury list shall be selected ... from an unrestricted random sample from the names of all registered voters filed with the county auditor...." In 1993 our Legislature added licensed drivers and identicard holders to persons on the master list. RCW 2.36.055. Further, GR 18 specifies that the master list is to be compiled from all three sources.
When a local rule conflicts with a statute, the statute controls. Harbor Enters., Inc. v. Gudjonsson, 116 Wash.2d 283, 293, 803 P.2d 798 (1991). The record provided by Mr. Flett is devoid of evidence that the master list was improperly selected. Mr. Flett's argumentative assertion otherwise is insufficient. We limit our review to matters in the record. State v. Crane, 116 Wash.2d 315, 335, 804 P.2d 10 (1991). Even if the issue is of constitutional magnitude, RAP 2.5(a) does not mandate appellate review of a newly raised argument "where the facts necessary for its adjudication are not in the record and therefore where the error is not `manifest'." State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993). Moreover, for us to consider matters outside the record, a personal restraint petition under RAP 16.3 is required. State v. Norman, 61 Wash.App. 16, 27-28, 808 P.2d 1159 (1991).
The issue framed by Mr. Flett is whether there was sufficient evidence to support the jury's rejection of his self-defense argument. We believe the correct issue is whether the evidence is sufficient to support the verdict. State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980).
Mr. Flett, suggesting reasonable inferences from evidence he presented, argues he merely shot into the car after he thought he saw a gun being pulled on him by one of the passengers. The trial judge gave a self-defense instruction. The jury rejected self-defense. A jury may reject or discard suggested alternative reasonable inferences based upon the evidence and circumstances of a case. State v. Bencivenga, 137 Wash.2d 703, 708, 974 P.2d 832 (1999). The verdict indicates the jury rejected or discarded Mr. Flett's suggested alternative reasonable inferences. Nevertheless, the State's evidence was sufficient to overcome Mr. Flett's defense beyond a reasonable doubt. The State provided testimony from four men inside the car contradicting Mr. Flett. We will not disturb the jury's fact-finding functions. State v. Mewes, 84 Wash.App. 620, 622, 929 P.2d 505 (1997).
The issue is whether under RCW 9.94A.310(3)(e) the trial court erred by ordering the four firearm enhancements to be served concurrently. Mr. Flett contends the trial court on reconsideration should have adopted his request to reduce the base sentence rather than ordering concurrent firearm enhancements. In its cross-appeal, the State similarly contends the sentencing court lacked the authority to order concurrent sentences for the firearm enhancements. The State further contends the trial court lacked reasons for an exceptional sentence.
Recent cases are significant to the outcome. Just prior to argument our Supreme Court decided In re the Matter of Charles, 135 Wash.2d 239, 955 P.2d 798 (1998). The Charles court discusses RCW 9.94A.310(3)(e) in the context of RCW 9.94A.400. When Mr. Flett was charged, former RCW 9.94A.310(3)(e) (1996) partly provided "all firearm enhancements ... are mandatory... and shall not run concurrently with any other sentencing provisions."1 Next is State v. Brown, 139 Wash.2d 20, 983 P.2d 608 (1999), a case analyzing Charles in the context of facts similar to here, except that a single offense was charged. We stayed our decision pending the decision in Brown, then allowed time for additional briefing.
Under Charles, the court addressed an ambiguity in sentencing when multiple concurrent sentences with sentencing enhancements were involved. Here, the trial court ordered four consecutive sentences for the first degree assaults because they are serious violent offenses required to be consecutively sentenced. RCW 9.94A.030(31)(a); RCW 9.94A.400(1)(b). A sentencing enhancement is added to the base sentence to reach a single presumptive sentence for a particular offense; it is not itself a separate sentence. Charles, 135 Wash.2d at 253-54, 955 P.2d 798. The ambiguity in Charles does not arise here. Consecutive sentencing is mandatory.
...
To continue reading
Request your trial
-
State v. Miller
...that the superior court did not err in determining that Mulholland effected a significant change, pointing to State v. Flett, 98 Wash.App. 799, 806, 992 P.2d 1028 (2000), an opinion of this court contrary to the relevant holding of the Mulholland court. ¶ 10 Turning to Miller's initial argu......
-
State v. Nava (In re Pers. Restraint Petition Nava)
...it is not itself a separate sentence.’ ” State v. DeRyke, 110 Wash.App. 815, 822, 41 P.3d 1225 (2002) (quoting State v. Flett, 98 Wash.App. 799, 806, 992 P.2d 1028 (2000)), aff'd,149 Wash.2d 906, 73 P.3d 1000 (2003); In re Post Sentencing Review of Gutierrez, 146 Wash.App. 151, 155, 188 P.3......
-
State v. Franks, 43678-3-I.
...prejudice is presumed. This court has held that the correct spelling of a defendant's name is not a necessary element. State v. Flett, 98 Wash.App. 799, 803, 992 P.2d 1028, review denied, 141 Wash.2d 1002, 10 P.3d 404 (2000). In Flett, the information charged Gary Flett, Jr. with first-degr......
-
State v. Price
...arise when all four sentences are imposed consecutively by the "serious violent offense" mandate of 9.94A.400(1)(b). State v. Flett, 98 Wash.App. 799, 806, 992 P.2d 1028, review denied, 141 Wash.2d 1002, 10 P.3d 404 (2000). Because we have held that all four counts of attempted murder arose......