State v. Gordon

• Decision Date: 14 December 2009
• Docket Number: No. 63815-7-I.,63815-7-I.
• Citation: 223 P.3d 519,153 Wn. App. 516
• Parties: STATE of Washington, Respondent, v. John Caldwell GORDON, Appellant. State of Washington, Respondent, v. Charles Andrew Bukovsky, Appellant.
• Court: Washington Court of Appeals

223 P.3d 519

153 Wn. App. 516

STATE of Washington, Respondent, v. John Caldwell GORDON, Appellant.

State of Washington, Respondent, v. Charles Andrew Bukovsky, Appellant.

No. 63815-7-I.

Court of Appeals of Washington, Division 1.

December 14, 2009.;

Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant, John Caldwell Gordon.

Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, for Appellant, Charles Andrew Bukovsky.

Kathleen Proctor, Pierce County Prosecuting Attorney Office, Tacoma, WA, for Respondent.

APPELWICK, J.

¶ 1 Gordon and Bukovsky appeal their convictions for second degree felony murder. The second degree felony murder statute does not violate equal protection, nor is it ambiguous. Gordon contends the jury was deprived of constitutionally sufficient instructions on the aggravating factors of deliberate cruelty and victim vulnerability. After Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the purpose of instructing the jury on an exceptional sentence, aggravating factors are elements of the crime. Failure to instruct on the specific legal standard defining an aggravating factor is a manifest error affecting a constitutional right. Here, the error was not harmless as to either the deliberate cruelty or the particularly vulnerable victim factors. We reverse the exceptional sentences and remand for further proceedings.

FACTS

¶ 2 Officers Brian Wurts and David Butts of the Lakewood Police Department responded to a call from the Lakewood Garden Apartments on September 5, 2006, at approximately 3:15 a.m. They observed a man, Brian Lewis, severely injured and bloody on the ground, between two vans. Lewis did not appear to be entirely conscious and was rolling from side to side. A large amount of blood was pooling beneath his body.

¶ 3 The paramedic who responded to the scene testified that Lewis's eyes were completely swollen shut and his upper lip was split to the bottom of his nose, exposing his upper mandible. Lewis was having problems breathing. In transit to the hospital, Lewis's heart rate declined. Lewis went into cardiac arrest about six minutes before the ambulance arrived at the hospital.

¶ 4 The forensic officer dispatched to the crime scene documented the scene and took measurements for a diagram. There were two vans parked side by side in the parking lot, with about four feet between them. There was blood in the area between the vans, including spatter on the wheels.

¶ 5 Four men were involved in the assault on Lewis: Charles Bukovsky, John Gordon, Jesie Puapuaga, and Anthony Knoefler. The altercation began when Gordon punched Shecola Thomas in the eye. Lewis confronted Gordon about hitting Thomas. According to Thomas, the verbal confrontation escalated into physical violence when Gordon hit Lewis in the face. At that point, according to Knoefler, Lewis tried to run out from between the two vans. Lewis hit Knoefler, then Gordon punched Lewis several times, causing Lewis to fall to the ground. Knoefler kicked Lewis in the head as he tried to get up, causing him to fall to the ground again. Gordon and Bukovsky then began punching and kicking Lewis. They landed repeated blows on his chest and stomach. About thirty seconds after Lewis had fallen to the ground, Puapuaga arrived and put Lewis in a chokehold while he was still on the ground. Gordon and Bukovsky repeatedly kicked Lewis while he was in the chokehold.¹ Lewis's head was near the front tires of the two vans, between which the assault took place. Knoefler saw a car coming and thought it might be the police, prompting him to yell out. The beating stopped.

¶ 6 The forensic pathologist who performed the postmortem examination stated that the cause of Lewis's death was multiple traumatic injuries to the body and head. The blunt force trauma to his head caused subgaleal and subarachnoid hemorrhages to the brain. The autopsy also revealed that Lewis had been asphyxiated, which was a significant factor in his death. An expert in blood stain pattern analysis determined that nothing in the blood spatter indicated the source of the blood was from someone who was standing up.

¶ 7 On September 7, 2006, the Pierce County Prosecutor's Office filed an information charging Gordon with one count of murder in the second degree for the assault of Brian Lewis, which caused Lewis's death. The information indicated that other codefendants, Bukovsky, Puapuaga and Knoefler, were also involved in the crime.² On the same day, Bukovsky was charged with one count of murder in the second degree for the same events.

¶ 8 Both Gordon and Bukovsky sought to dismiss the charges, arguing that the felony murder statute, RCW 9A.32.050(1)(b), violated equal protection when the predicate felony was assault. The court denied the motion.

¶ 9 The State filed an amended information in both cases on July 10, 2007, to allege two aggravating circumstances: victim vulnerability and deliberate cruelty. Counsel for both Bukovsky and Gordon objected to the court's decision to give the jury the special verdict question regarding victim vulnerability, on the grounds that it was inapplicable to the facts of the case, but counsel did not object to the special verdict question regarding deliberate cruelty. Nor did counsel propose jury instructions articulating the specific legal meaning of either aggravating factor, or object to the State's jury instructions on either aggravating factor.

¶ 10 The jury returned guilty verdicts for both defendants. The jury also returned special verdicts, finding that both the victim vulnerability and deliberate cruelty aggravating circumstances were applicable.

¶ 11 Because of the existence of the aggravating circumstances found by the jury, the State sought imposition of exceptional sentences. Based on an offender score of two, the court sentenced Bukovsky to 244 months on the second degree murder and 144 months for the aggravating factors, for a total of 388 months. Based on an offender score of zero, the court sentenced Gordon to 220 months on the second degree murder and 144 months for the aggravating factors, for a total of 364 months.

¶ 12 The court entered findings of fact and conclusions of law regarding the exceptional sentences. Some of the findings and conclusion contain statements that were not explicitly found by the jury.

¶ 13 Both defendants timely appealed their judgments.

DISCUSSION

I. Equal Protection

¶ 14 Both Gordon and Bukovsky challenge their convictions on the ground that the second degree felony murder statute, RCW 9A.32.050(1)(b), violates equal protection. The second degree felony murder statute states that a person is guilty of murder in the second degree when:

He or she commits or attempts to commit any felony, including assault, ... and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants.

RCW 9A.32.050(1)(b).

¶ 15 Article I, section 12 of the Washington Constitution and the Fourteenth Amendment to the United States Constitution guarantee that similarly situated persons must receive like treatment under the law. State v. Manussier, 129 Wash.2d 652, 672, 921 P.2d 473 (1996). Our supreme court has consistently construed the federal and state equal protection clauses identically and considers claims arising under them to be one issue. Id.

¶ 16 In analyzing equal protection claims, rational basis review applies when a statutory classification does not involve a suspect or semisuspect class and does not threaten a fundamental right. Id. at 673, 921 P.2d 473. When a statutory classification only affects a physical liberty interest, we apply the deferential rational relationship test. State v. Coria, 120 Wash.2d 156, 171, 839 P.2d 890 (1992) (rejecting intermediate scrutiny when physical liberty interest is involved, but no semisuspect class is affected). Under rational basis review, the challenged law must reflect a legitimate state objective, and the law must not be wholly irrelevant to achieving that objective. Manussier, 129 Wash.2d at 673, 921 P.2d 473. Rational basis requires only that the means employed by the statute be rationally related to a legitimate state goal, not that the means of the challenged statute be the best way of achieving that goal. Id.

¶ 17 A statute is presumed to be constitutional, and the party challenging it bears the burden to prove that it is unconstitutional beyond a reasonable doubt. State v. Hughes, 154 Wash.2d 118, 132, 110 P.3d 192 (2005), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). We review the constitutionality of a statute de novo. Id.

¶ 18 Both Gordon and Bukovsky argue that RCW 9A.32.050(1)(b) is unconstitutional as applied,³ because it impermissibly creates two groups of second degree murder defendants. Specifically, they argue that those defendants charged with second degree felony murder, who by definition do not intend to kill (RCW 9A.32.050(1)(b)), are treated more harshly than those defendants charged with second degree murder, who by definition intend to kill (RCW 9A.32.050(1)(a)). A defendant charged with second degree felony murder does not have the right to the lesser included offense instructions of manslaughter, whereas a defendant charged with second degree murder does have the right to the lesser included offense instruction of manslaughter. State v. Gamble, 154 Wash.2d 457, 466-69, 114 P.3d 646 (2005). Both appellants also highlight the amount of discretion this statutory scheme vests in the prosecutor.

¶ 19 The equal protection argument is controlled by State v. Armstrong, 143 Wash.App. 333, 178 P.3d 1048 (2008), review denied 164 Wash.2d 1035, 197 P.3d 1185 (2008), which presented a similar challenge to the second degree felony...