State v. Gordon

• Decision Date: 15 September 2011
• Docket Number: No. 84240–0.,84240–0.
• Parties: STATE of Washington, Petitioner,v.John Caldwell GORDON, Respondent.State of Washington, Petitioner,v.Charles Andrew Bukovsky, Respondent.
• Court: Washington Supreme Court

172 Wash.2d 671

260 P.3d 884

STATE of Washington, Petitioner,

v.John Caldwell GORDON, Respondent.State of Washington, Petitioner,

v.Charles Andrew Bukovsky, Respondent.

No. 84240–0.

Supreme Court of Washington, En Banc.

Argued May 10, 2011.Decided Sept. 15, 2011.

Kathleen Proctor, Pierce County Prosecutor's Office, Tacoma, WA, for Petitioner.Eric J. Nielsen, David Bruce Koch, Nielsen Broman & Koch PLLC, Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Respondent.STEPHENS, J.

[172 Wash.2d 674] ¶ 1 John Gordon and Charles Bukovsky were each charged with second-degree murder in the beating death of Brian Lewis. The State also sought two aggravating sentencing factors: deliberate cruelty and particular vulnerability of the victim. The jury was instructed to determine whether the aggravators were present, but the instructions did not define “deliberate cruelty” or “particular vulnerability.” The defendants did not object to the instructions on that basis. The jury found the defendants guilty and also found the aggravators applied. The trial court imposed exceptional sentences. We must decide whether the failure to provide detailed instructions defining the meaning of “deliberate cruelty” or “particular vulnerability” is a manifest error of constitutional magnitude that may be addressed for the first time on appeal. We hold that it is not and therefore reverse the Court of Appeals.

Facts and Procedural History

¶ 2 In the early morning hours of September 5, 2006, Brian Lewis intervened in a fight between Gordon and a woman. A verbal confrontation between Lewis and Gordon escalated when Gordon hit Lewis in the face. As Lewis tried to run, he struck one of Gordon's friends, Anthony Knoefler. Gordon then punched Lewis several times, causing him to fall to the ground. Knoefler kicked Lewis in the head. Gordon and Bukovsky began punching and kicking Lewis while he was on the ground. A fourth man, Jesie Puapuaga, arrived and put Lewis in a chokehold while Gordon and Bukovsky continued kicking Lewis. The men dispersed when Knoefler saw a car coming and yelled that it might be police. Witnesses to the beating called law enforcement, and an ambulance arrived. While in the ambulance, Lewis suffered cardiac arrest and died about six minutes before the ambulance reached the hospital.

¶ 3 On September 7, 2006, Gordon and Bukovsky were each charged with one count of murder in the second degree.¹ On July 10, 2007, the State amended their respective informations to allege two aggravating circumstances: deliberate cruelty and particular vulnerability of the victim.

¶ 4 At trial, the State offered the following jury instruction with regard to the deliberate cruelty aggravator:

For purposes of special verdict Question One the State must prove beyond a reasonable doubt that the defendant's conduct during the commission of the offense manifested deliberate cruelty to the victim.

Br. of Resp't, App. B (Jury Instruction 32). As to particular vulnerability the offered jury instruction read:

For purposes of special verdict Question Two the State must prove beyond a reasonable doubt that the defendant knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance.

Id. (Jury Instruction 33). The defendants objected to the particular vulnerability instruction as being inapplicable to the case but did not object to the language of the jury instructions, nor did they propose alternative instructions.

¶ 5 The jury found the defendants guilty of murder in the second degree, and found the presence of the aggravating circumstances. Given the aggravating circumstances, the State sought and the court imposed an exceptional sentence. The defendants appealed through separate counsel and filed separate briefing, though the Court of Appeals decided their cases together. The Court of Appeals concluded that the failure to instruct on the legal elements of “deliberate cruelty” and “particular vulnerability” constituted an error of constitutional magnitude that could be raised for the first time on appeal and that the error was not harmless. State v. Gordon, 153 Wash.App. 516, 521, 223 P.3d 519 (2009). Accordingly, it vacated the defendants' exceptional sentences.

¶ 6 The State sought review, which we granted. State v. Gordon, 169 Wash.2d 1011, 236 P.3d 896 (2010).

Analysis

¶ 7 Generally, an appellate court may refuse to entertain a claim of error not raised before the trial court. RAP 2.5(a). An exception exists for a claim of manifest error affecting a constitutional right. Id. In order to benefit from this exception, “the appellant must ‘identify a constitutional error and show how the alleged error actually affected the [appellant]'s rights at trial.’ ” State v. O'Hara, 167 Wash.2d 91, 98, 217 P.3d 756 (2009) (alternation in original) (quoting State v. Kirkman, 159 Wash.2d 918, 926–27, 155 P.3d 125 (2007)). A constitutional error is manifest if the appellant can show actual prejudice, i.e., there must be a “ ‘plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.’ ” Id. at 99, 217 P.3d 756 (alteration in original) (quoting Kirkman, 159 Wash.2d at 935, 155 P.3d 125). If an error of constitutional magnitude is manifest, it may nevertheless be harmless. Id. The burden of showing an error is harmless remains with the prosecution. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (establishing State's burden to show harmless error beyond a reasonable doubt).²

Constitutional Magnitude

¶ 8 For the purposes of RAP 2.5(a), a manifest error must be of constitutional magnitude. Here we are concerned with instructional error. Jury instructions must “properly inform the jury of the applicable law, not mislead the jury, and permit each party to argue its theory of the case.” State v. Bennett, 161 Wash.2d 303, 307, 165 P.3d 1241 (2007). The failure to instruct a jury on every element of a charged crime is an error of constitutional magnitude. State v. Aumick, 126 Wash.2d 422, 429, 894 P.2d 1325 (1995); State v. Scott, 110 Wash.2d 682, 689, 757 P.2d 492 (1988) (quoting State v. Ng, 110 Wash.2d 32, 44, 750 P.2d 632 (1988)). However, “[a]s long as the instructions properly inform the jury of the elements of the charged crime, any error in further defining terms used in the elements is not of constitutional magnitude.” State v. Stearns, 119 Wash.2d 247, 250, 830 P.2d 355 (1992). “Even an error in defining technical terms does not rise to the level of constitutional error.” Id. (emphasis added).

¶ 9 The question of whether instructions that do not elaborate on the meaning of “deliberate cruelty” or “particular vulnerability” constitute an error of constitutional magnitude turns on whether the lacking explanation is akin to an element or, instead, the explanation merely defines terms within an element. The defendants argue that “[i]nstructions indicating the necessary elements of proof for these aggravating circumstances serve the same critical role as ‘to convict’ instructions for substantive crimes.” Suppl. Br. of Resp't Bukovsky at 10. Hence, the defendants argue, “[t]he Court of Appeals properly distinguished the failure to include an element of the State's proof in the jury instructions from the situation where all elements are included in the instructions, but the trial court fails to further define those elements.” Id. at 6.³ The former situation is an error of constitutional magnitude.

¶ 10 In contrast, the State criticizes the Court of Appeals for “conclud[ing] that if an aggravating circumstance is the equivalent of ‘an element,’ then failure to further define terms contained within the aggravating circumstance is an issue of constitutional magnitude.” Suppl. Br. of Pet'r at 9.

¶ 11 The State is correct. The Court of Appeals reasoning follows Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), believing that “the alleged error here can be fairly characterized as failing to properly instruct on an element of the aggravated crime.” Gordon, 153 Wash.App. at 534, 223 P.3d 519. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Ring affirmed this sentiment two years later, holding that “facts which are necessary to impose a greater sentence are ‘ “the functional equivalent of an element of a greater offense.” ’ ” State v. Mills, 154 Wash.2d 1, 9, 109 P.3d 415 (2005) (quoting Ring, 536 U.S. at 609, 122 S.Ct. 2428) (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348). We have followed suit, holding that aggravating factors must be proved to the jury just as the elements of the underlying offense must be proved to the jury. See State v. Powell, 167 Wash.2d 672, 684, 223 P.3d 493 (2009); Id. at 689, 223 P.3d 493 (Stephens, J., concurring) (“Any facts justifying a sentence above an offense's standard range are functionally equivalent to elements of the crime.”); Id. at 691, 223 P.3d 493 (Owens, J., dissenting) (“Aggravating Circumstance Are Essential Elements of a Crime”).

[172 Wash.2d 679] ¶ 12 But this case does not involve a Powell error, and the State is correct that Apprendi and Ring have little bearing on the question here. Powell concerned the proper procedure for resentencing to correct an error under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and also the question of whether aggravating sentencing factors must be included in an information. Powell, 167 Wash.2d at 677–78, 681, 223 P.3d 493. Likewise, Apprendi and Ring required that a jury, not a judge, determine whether the defendant's actions...