State v. Moen, 49474-4-II
| Decision Date | 31 July 2018 |
| Docket Number | No. 49474-4-II,49474-4-II |
| Citation | 422 P.3d 930 |
| Parties | STATE of Washington, Respondent, v. Cleon Orville MOEN, Appellant. |
| Court | Washington Court of Appeals |
Elizabeth Rania Rampersad, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.
Eric H. Bentson, Cowlitz County Prosecutor's Office, 312 SW 1st Ave., Rm. 105, Hall of Justice, Kelso, WA, 98626-1799, for Respondent.
PUBLISHED OPINION
Worswick, J.¶ 1 Cleon Orville Moen appeals his conviction for aggravated first degree murder and his sentence to mandatory life imprisonment without the possibility of parole. Moen argues that the trial court abused its discretion by denying his midtrial motion to excuse a juror and that his sentence under RCW 10.95.030(1) violates the constitutional prohibition against cruel punishment. Moen raises several additional issues in his Statement of Additional Grounds (SAG) for Review. We affirm Moen’s conviction and sentence.
FACTS
¶ 2 In 2014, Moen was charged with fourth degree assault against his wife, Michelle.1 Michelle testified at the trial. The trial resulted in a hung jury. Immediately after the trial, Moen attempted to commit suicide by shooting himself in the head with a shotgun in the courthouse parking lot. Moen sustained a number of injuries as a result of the gunshot.
¶ 3 Soon after, Moen filed for divorce and moved out of the residence he shared with Michelle. Later, Michelle filed a motion to hold Moen in contempt for failing to make required property and maintenance payments. After Moen was served with notice of Michelle’s motion, he hid in a trailer located on Michelle’s property. Moen waited for Michelle to leave the home and broke into the residence. When Michelle returned, Moen struck her in the head with an axe. A struggle ensued, and Moen strangled Michelle to death with an electrical cord.
¶ 4 After strangling Michelle, Moen attempted to commit suicide by asphyxiating himself. The police apprehended Moen, and the State charged him with aggravated first degree murder.2 Moen was 73 years old.
¶ 5 At trial, witnesses testified to the above facts. During a break on the first day of trial, juror 4 notified the bailiff that Moen’s family had contacted her to establish long-term care for Moen after his gunshot injuries. Juror 4 was the executive director of an assisted living facility. The trial court questioned juror 4:
. I didn’t realize that until it was mentioned this morning that there was a gunshot wound. And the family did come in shortly after that looking for placement. I only met family. We did not take him. We didn’t feel that that was the right care for him.
....
3 Verbatim Report of Proceedings (VRP) at 317-19. Juror 4 also stated that she was able to decide the case based on the facts and evidence.
¶ 6 Moen moved to excuse juror 4, arguing that she could not be impartial because she had met Moen’s family members and because she would convict Moen to prove her impartiality. The trial court denied Moen’s motion. The trial court determined that juror 4 did not demonstrate bias or prejudice because she stated that she would be able to keep an open mind throughout trial. The trial court also noted that juror 4 had limited contact with Moen’s family and could not recall anything of substance.
¶ 7 Moen asserted a diminished capacity defense at trial. Moen’s expert witness, Robert Stanulis, diagnosed Moen with frontal temporal dementia
and testified that Moen’s symptoms were more consistent with dementia than a personality disorder. Stanulis also stated that those with dementia suffer from memory problems, personality changes, and disordered thinking. The State’s expert witness, Ray Hendrickson, diagnosed Moen with adjustment disorder and a history of major depressive disorder.
¶ 8 The jury found Moen guilty of aggravated first degree murder.
¶ 9 At sentencing, Moen requested that the trial court impose an exceptional downward sentence because his dementia diagnosis was a mitigating circumstance. Moen argued that although RCW 10.95.030(1) prescribes a mandatory life sentence without the possibility of parole, a life imprisonment sentence constituted cruel punishment under the federal and state constitutions because Moen had been diagnosed with dementia.
¶ 10 The trial court denied Moen’s request, determining that a sentence of life imprisonment was not cruel punishment and that any consideration of mitigating circumstances was barred by RCW 10.95.030(1). The trial court subsequently sentenced Moen to mandatory life imprisonment without the possibility of parole under RCW 10.95.030(1). Moen appeals.
ANALYSIS
¶ 11 Moen argues that the trial court abused its discretion by denying his midtrial motion to excuse juror 4 and that his sentence under RCW 10.95.030(1) violates the constitutional prohibition against cruel punishment. We disagree.
¶ 12 Moen argues that the trial court abused its discretion in denying his midtrial motion to excuse juror 4 because the juror failed to disclose that she met with members of Moen’s family to discuss long-term care.3 We disagree.
¶ 13 We review a trial court’s decision about whether to excuse a juror for an abuse of discretion. State v. Depaz , 165 Wash.2d 842, 852, 204 P.3d 217 (2009). The trial court is best able to observe the juror’s demeanor and, based on that observation, interpret and evaluate the juror’s answers to determine the juror’s impartiality. State v. Davis , 175 Wash.2d 287, 312, 290 P.3d 43 (2012). A trial court abuses its discretion when its decision is based on untenable grounds or reasons. Depaz , 165 Wash.2d at 852, 204 P.3d 217.
¶ 14 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a defendant the right to a criminal trial by an impartial jury. State v. Yates , 161 Wash.2d 714, 742, 168 P.3d 359 (2007). A trial court is required to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness by reason of bias or prejudice. RCW 2.36.110. "The question for the judge is whether the challenged juror can set aside preconceived ideas and try the case fairly and impartially." Hough v. Stockbridge , 152 Wash. App. 328, 341, 216 P.3d 1077 (2009).
¶ 15 Moen relies on State v. Cho , 108 Wash. App. 315, 30 P.3d 496 (2001), to support his argument that juror 4 failed to disclose material information and exhibited bias. However, Cho is distinguishable. In Cho , a juror did not disclose that he was a retired police officer during voir dire. 108 Wash. App. at 319, 30 P.3d 496. The juror’s answers during voir dire "raise[d] a troubling inference of deliberate concealment." 108 Wash. App. at 327, 30 P.3d 496. The Cho court determined that it could presume the juror’s bias because he deliberately construed his answers during voir dire to conceal that he had been employed as a police officer. 108 Wash. App. at 328, 30 P.3d 496.
¶ 16 Here, there is no inference that juror 4 deliberately concealed any facts. During voir dire, the jury was not offered any information regarding Moen’s attempted suicide. In addition, juror 4 informed the bailiff of the potential conflict soon after hearing trial testimony regarding Moen’s attempted suicide and resulting injuries.
¶ 17 The trial court examined juror 4 about any potential bias, and juror 4 unequivocally stated that she would decide the case fairly, based on the facts and evidence presented. Juror 4 did not demonstrate bias or prejudice. Accordingly, the trial court’s decision not to excuse juror 4 was based on tenable grounds, and the court did not abuse its discretion.
¶ 18 Moen argues that RCW 10.95.030(1), which requires that a defendant convicted of aggravated first degree murder be sentenced to mandatory life imprisonment without the possibility of parole, is unconstitutional because the statute violates article I, section 14’s prohibition against cruel punishment. Specifically, Moen argues that the cruel punishment clause of both the federal and state constitutions categorically bars those with dementia from being sentenced under RCW 10.95.030(1).4 We disagree. Sentencing a defendant with dementia to mandatory life imprisonment without the possibility of parole under RCW 10.95.030(1) is not categorically barred by article I, section 14’s prohibition against cruel punishment.
¶ 19 The constitutionality of a statute is a question of law that we review de novo. State v. Abrams , 163 Wash.2d 277, 282, 178 P.3d 1021 (2008). We presume that a statute is constitutional. 163 Wash.2d at 282, 178 P.3d 1021. The party challenging the statute...
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