State v. Gilmer
| Decision Date | 10 August 1999 |
| Docket Number | 17605-3-III,Nos. 16666-0-II,s. 16666-0-II |
| Citation | 96 Wn.App. 875,981 P.2d 902 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. George Leonard GILMER, Appellant. |
Suzanne L. Elliott, Seattle, for Appellant.
Bruce Hanify, Deputy Prosecuting Atty., Yakima, for Respondent.
RCW 13.04.030(1)(e)(iv)(A) 1 confers exclusive jurisdiction in adult court over any 16- or 17-year-old who commits a "serious violent offense." Pursuant to this provision, 17-year-old George Gilmer was charged in superior court with a serious violent offense, second degree felony murder, based on the predicate crimes of first degree reckless endangerment and second degree malicious mischief. Mr. Gilmer was subsequently convicted as charged and sentenced to 212 months incarceration. On appeal, Mr. Gilmer challenges the jurisdiction of the trial court. He contends this matter should have been remanded to juvenile court because neither of the predicate crimes constitutes a "serious violent offense" under the statutory scheme. Alternatively, Mr. Gilmer asserts the trial court erred in: (1) misstating the
law of felony murder when instructing the jury; (2) failing to give an instruction requiring the jury to find that the victim's death was a foreseeable consequence of the predicate felonies; (3) failing to instruct the jury that the crime of manslaughter is a lesser included offense of felony murder by reckless endangerment; and (4) refusing to instruct the jury on the inferior degree offense of second degree manslaughter for felony murder by reckless endangerment or malicious mischief. In addition, Mr. Gilmer contends his conviction violates the Sentencing Reform Act of 1981(SRA) and various rights granted under both the state and the federal constitutions. Mr. Gilmer's conviction and sentence are affirmed.
On September 25, 1996, George Gilmer, then age 17, was charged in Yakima County Superior Court with second degree murder pursuant to RCW 9A.32.050(1)(b). The information alleged that Mr. Gilmer caused the death of another in the "course of and furtherance of" the crime of "Second Degree Malicious Mischief and/or First Degree Reckless Endangerment."
There is little dispute over the facts of this case. On the night of September 20, 1996, Mr. Gilmer, David Diaz, Jim Burkett, Holly Sorenson, and Jennifer Fife were out together driving around rural Yakima County. Mr. Diaz was driving a Ford Bronco, Mr. Gilmer was sitting next to Mr. Diaz, and Ms. Sorenson was in the passenger seat next to the window. Mr. Burkett and Ms. Fife were in the back seat.
After leaving a party, the five teenagers decided to build a fire and drove to a greenhouse at the end of Freimuth Road to take some wood. While driving down West Huntzinger Road to get to the greenhouse, the Bronco passed a white car parked along the side of the road. Although someone in the Bronco suggested throwing rocks at the windows of the white car or shooting out its windows, they did not stop but proceeded past the white car and continued on to the greenhouse. At the greenhouse, Mr. Diaz, Mr. Gilmore, and Mr. Burkett loaded firewood into the back of the Bronco.
On the return trip, as they approached the white car, Mr. Gilmer asked Mr. Burkett to hand him a Remington 1100 shotgun located in the back of the Bronco. Mr. Burkett turned around in his seat and got the gun out of the back. Ms. Fife had to lean over toward the window so that the gun could be handed up to the front seat. Mr. Gilmer asked Ms. Fife to give him a shotgun shell, but she refused. Mr. Gilmer then reached in the back seat and found a shotgun shell himself, or was given one by Mr. Burkett. Mr. Diaz, or perhaps Mr. Diaz and Mr. Gilmer, loaded the shotgun shell into the gun. As the Bronco pulled up next to the white car, Mr. Gilmer stuck the barrel of the gun out the window of the passenger side of the Bronco, pointed the gun at the white car, and pulled the trigger. The Bronco drove off. At that time, the occupants of the Bronco were not sure whether the white car had been hit.
Although Mr. Gilmer and the other occupants in the Bronco believed that the white car was empty, this was not true. There were two people in the car. Zachary Kellar, age 17, was sitting in the front seat of the white car next to his friend, Jaymee Logston. Tragically, Mr. Kellar was killed when the shot from the gun fired by Mr. Gilmer struck Mr. Kellar in the face.
Mr. Gilmer was charged by information with second degree murder by commission of a felony. The use of a deadly weapon during the crime was added to the allegation. Prior to trial, Mr. Gilmer moved to dismiss the charges in superior court and asked that the matter be remanded to juvenile court. This request was denied and the matter proceeded to trial. A jury found Mr. Gilmer guilty of second degree murder and added the deadly weapons enhancement. The parties agreed that the standard range for Mr. Gilmer's crime, including the firearm enhancement, was 183 to 224 months in prison. Mr. Gilmer requested a sentence below the standard range arguing that he did not know the car was occupied when he fired the gun and that he lacked any intent to cause personal injury. The court imposed a sentence of 17 years and 8 months, a total of 212 months,
based on the age of the victim on the night of his death. Mr. Gilmer appeals, challenging the jurisdiction of the trial court and the operation of the Washington felony murder rule.
Did the trial court err in refusing to remand the charge against Mr. Gilmer to juvenile court?
The second degree felony murder charge brought against Mr. Gilmer was filed in superior court rather than juvenile court pursuant to RCW 13.04.030(1)(e)(iv)(A), the automatic decline provision. RCW 13.04.030(1)(e)(iv) confers exclusive jurisdiction in adult court over 16- or 17-year-olds who commit specific violent offenses. The grant of jurisdiction under RCW 13.04.030(1)(e)(iv) is automatic and is conferred without a hearing in juvenile court on the declination of juvenile court jurisdiction. Exclusive jurisdiction in adult court is triggered under RCW 13.04.030(1)(e)(iv) in two ways. Subsection A, applicable here, grants exclusive jurisdiction in adult court whenever a 16- or 17-year-old is charged with a "serious violent offense." Subsection B confers exclusive jurisdiction in adult court when a 16- or 17-year-old is charged with a "violent offense" and has a defined criminal history. The term "serious violent offense" includes second degree murder. RCW 9.94A.030(31)(a). Significantly, RCW 13.04.030(1)(e)(iv) has survived scrutiny under the Washington Constitution, article II, section 19, and the Eighth, Fourteenth and Fifth Amendments of the federal constitution. In re Boot, 130 Wash.2d 553, 575, 925 P.2d 964 (1996).
Mr. Gilmer's argument is one of statutory construction. Mr. Gilmer concedes that second degree murder is a serious violent offense for purposes of conferring jurisdiction under RCW 13.04.030(1)(e)(iv)(A). However, according to Mr. Gilmer, juveniles can only commit "offenses", RCW 13.40.020(19), 2 and cannot be charged with felony murder in adult court without a decline hearing. He asserts he could not be charged with second degree felony murder in adult court because as a juvenile, he could not commit the underlying felony, and neither of the two predicate crimes constitutes a serious violent offense standing alone. Under his view, a 16- or 17-year-old is not subject to jurisdiction in adult criminal court based on a charge of felony murder unless a determination has been made at a decline hearing that the predicate crime constitutes a "serious violent offense" as defined in RCW 9.94A.030(31)(a). Mr. Gilmer asserts this matter must be remanded to juvenile court for a decline hearing to evaluate the nature of the underlying offenses.
"In construing a statute, the court's paramount duty is to ascertain and give expression to the intent of the Legislature." Service Employees Int'l Union, Local 6 v. Superintendent of Pub. Instruction, 104 Wash.2d 344, 348, 705 P.2d 776 (1985). A court may not engage in statutory construction if the statutory language is unambiguous. State v. Bolar, 129 Wash.2d 361, 366, 917 P.2d 125 (1996). Where the statutory language is plain and unambiguous, its meaning must be derived from the wording of the statute itself. Human Rights Comm'n v. Cheney Sch. Dist. No. 30, 97 Wash.2d 118, 121, 641 P.2d 163 (1982).
Mr. Gilmer's argument misunderstands the purpose and operation of RCW 13.04.030(1)(e)(iv). In adopting the automatic decline provision, the Legislature expressed an intent to "increase the punishment for youthful offenders for the most serious violent crimes by statutorily expanding the jurisdiction of the adult criminal court over 16- and 17-year-olds who commit such crimes without a hearing in juvenile court under RCW 13.40.110." Boot, 130 Wash.2d at 563, 925 P.2d 964. Unquestionably, the purpose of RCW 13.04.030(1)(e)(iv) is to ensure that 16- and 17-year-olds who commit serious violent crimes will be tried and punished as adults.
RCW 13.04.030(1)(e)(iv) is triggered whenever the conduct of a particular 16- or 17-year-old meets the requirements of subsection A or B. Under subsection A, the Legislature has determined that a 16- or 17-year-old who commits a "serious violent offense" is subject to the jurisdiction of adult court. In effect, the term "serious violent offense" was adopted by the Legislature as a benchmark to be applied to determine whether the conduct in question was serious enough to cause jurisdiction to vest in adult criminal court rather than juvenile court. It follows then that the conduct in question must be evaluated solely against this benchmark rather than the context of the juvenile court system.
Mr. Gilmer's argument rests on his belief that he cannot be convicted of felony murder in adult court because he could not be...
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