State v. Flett
| Decision Date | 26 July 2016 |
| Docket Number | No. 32811-2-III,32811-2-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JASON D. FLETT, Appellant. |
IT IS ORDERED, the motion for reconsideration of this court's decision of July 26, 2016, is hereby denied.
IT IS FURTHER ORDERED the opinion filed July 26, 2016, is amended as follows:
The portion of the first full paragraph on page 15 that reads:
The State informed the court it intended to elicit such testimony, and argued it was admissible to establish Mr. Feltt's motive, an exception to ER 404(b). Defense counsel did not object, and rather merely requested that the witness refrain from saying "'back to prison.'" RP at 93. Mr. Flett cannot argue for the first time on appeal that the testimony was inadmissible. RAP 2.5(a).
shall be amended as follows:
The State informed the court it intended to elicit such testimony, and argued it was admissible to establish Mr. Flett's motive, an exception to ER 404(b). Defense counsel did not object,2 and rather merely requested that the witness refrain from saying "'back to prison.'" RP at 93. Mr. Flett cannot argue for the first time on appeal that the testimony was inadmissible. RAP 2.5(a).
2 In a motion for reconsideration, Mr. Flett argues that he filed his own motion in limine, broad enough to encompass Skylar Jones's testimony, thereby preserving the issue for appeal. But at the time for argument of the parties' motions in limine, Mr. Flett's lawyer advanced only the narrow objection to references to Mr. Flett being sent "back" to prison, to which the State agreed. Mr. Flett thereby waived any broader objection; he did not lose his objection. The issue was not preserved.
Mr. Flett also argues that the Mike Jones's testimony about a second girl missing was admitted in error. But the trial court sustained defense counsel's objection to the testimony and instructed the jury to disregard the comment. RP at 266-67. There was no error.
PANEL: Judges Siddoway, Lawrence-Berrey, Pennell
FOR THE COURT:
/s/_________
SIDDOWAY, J. — A jury found Jason Flett guilty of first degree murder and returned a special verdict finding he committed the crime with deliberate cruelty. Relying on the aggravating factor of deliberate cruelty, the court sentenced Mr. Flett to an exceptional sentence. On appeal, Mr. Flett argues the State presented insufficient evidence to support a finding of deliberate cruelty. Mr. Flett additionally challenges the trial court's imposition of legal financial obligations (LFOs) and raises a number of challenges to the DNA1 collection fee. Finding no error, we affirm.
On December 10, 2013, the State charged Jason Flett with the premeditated first degree murder of Ramona Childress. The amended information alleged the commissionof the offense manifested deliberate cruelty to the victim—an aggravating factor. The case went to trial in August of 2014.
Testimony at trial showed that on October 29, 2012, Mr. Flett drove Ms. Childress and Isha Al-Harbi (his then-girlfriend) to a remote residence in Elk, Washington. The residence, which was on a 90-acre lot, belonged to the family of Mr. Flett's half-brother, Skylar Jones.
Upon reaching the driveway to the residence, Mr. Flett parked the car, got out, walked to the passenger side of the vehicle, opened the passenger door, and dragged Ms. Childress out of the car by her hair. He then hit Ms. Childress multiple times with a closed fist. Ms. Childress screamed and begged him to stop.
Mr. Flett choked Ms. Childress for five to eight minutes and Ms. Childress "put up a fight." Report of Proceedings (RP) at 158. After choking her, Mr. Flett pulled out a knife and stabbed Ms. Childress multiple times in the neck.
At this point in the attack, Mr. Flett left Ms. Childress on the ground and walked the distance of the driveway—about a quarter mile—to the Jones's home. Mr. Flett was gone for about five minutes. During that time, Ms. Al-Harbi remained at the car with Ms. Childress on the ground outside. She remembers Ms. Childress gasping for air and gurgling blood during this time.
When Mr. Flett arrived at the residence, he asked for help and instructed Mr. Jones to get shovels. Together, Mr. Flett and Mr. Jones walked back down the driveway to where Ms. Childress's body was located.
Upon Mr. Flett's return to the car and Ms. Childress's body, Ms. Al-Harbi informed him that Ms. Childress was still breathing. In response, Mr. Flett hit Ms. Childress repeatedly in the face with the shovel—it sounded like "metal . . . hitting a rock." RP at 128.
Mr. Flett then dug a shallow hole in the woods near the driveway. Together, Mr. Flett and Mr. Jones dragged Ms. Childress's body to the shallow grave and buried her.
Nearly a year later, in the fall of 2013, an anonymous tip led investigators to the Jones's residence and Ms. Childress's body was discovered.
A medical examiner confirmed the body was Ms. Childress, that she had suffered cranial, facial, and neck trauma, that she sustained at least eight stab wounds to the neck, and that her facial bones were fractured into hundreds of small pieces. The degree of facial fracturing suggested that Ms. Childress likely suffered brain damage. The medical examiner concluded the cause of death was homicidal violence.
The State presented testimony that Mr. Flett killed Ms. Childress because she had information that would put him in jail.
During the jury instruction conference, defense counsel objected to the jury being instructed on deliberate cruelty, arguing that the State presented insufficient evidence tosupport such an instruction. The court concluded the State presented sufficient evidence for the matter to go to the jury.
The jury found Mr. Flett guilty of first degree murder with a deadly weapon. Additionally, the jury determined Mr. Flett committed the crime with deliberate cruelty.
At sentencing, the court found that the facts justified an exceptional sentence. The court also imposed $800 in mandatory LFOs, including a $100 DNA collection fee.
Mr. Flett timely appeals.
Mr. Flett argues the trial court erred in instructing the jury on deliberate cruelty because the State did not present evidence that he acted gratuitously. Mr. Flett also challenges the imposition of mandatory LFOs and raises a number of constitutional arguments challenging the validity of the DNA collection fee. Each argument is addressed in turn.
Mr. Flett contends the State did not present sufficient evidence to permit a rational trier of fact to find the existence of the aggravator, and because of the insufficient evidence, the court erred in instructing the jury on deliberate cruelty.
A party is entitled to have the jury instructed on its theory of the case if there is sufficient evidence to support that theory. State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997). "On the other hand, it is prejudicial error to submit an issue to the jurywhen there is not substantial evidence concerning it." State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986). Substantial evidence means evidence in the record of a sufficient quantity to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
When determining whether the evidence was sufficient to warrant an instruction, the appellate court must view the evidence in the light most favorable to the party that requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). "Mere possibility, suspicion, speculation, conjecture, or even a scintilla of evidence, is not substantial evidence." State v. Taplin, 9 Wn. App. 545, 557, 513 P.2d 549 (1973).
"'Deliberate cruelty' requires a showing 'of gratuitous violence or other conduct that inflicts physical, psychological, or emotional pain as an end in itself.'" State v. Gordon, 172 Wn.2d 671, 680, 260 P.3d 884 (2011) (quoting State v. Tili, 148 Wn.2d 350, 369, 60 P.3d 1192 (2003)). The cruelty must be "'of a kind not usually associated with the commission of the offense in question.'" State v. Copeland, 130 Wn.2d 244, 296, 922 P.2d 1304 (1996) (quoting State v. Crane, 116 Wn.2d 315, 334, 804 P.2d 10 (1991), overruled on other grounds by In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002)). This is not to say that the additional criminal activity that is not an element of the charged crime must occur in order to find the existence of the aggravator.
The existence of deliberate cruelty, as with other aggravating factors, must be found beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
In Gordon, the court determined sufficient evidence existed to support a finding of deliberate cruelty when evidence showed that the defendants, who were convicted of second degree murder, "savag[ely] beat" the victim prior to the victim's death. 172 Wn.2d at 681. There, a verbal confrontation between the victim and the defendants escalated to a point where the victim was on the ground with multiple defendants around him. Id. at 674, 681. The victim was no longer a threat to the defendants. Nonetheless, the defendants placed him in a chokehold, continued...
To continue reading
Request your trial