State v. Scott

• Decision Date: 27 December 1993
• Docket Number: Nos. 27017-6-,28921-7-I,s. 27017-6-
• Parties: STATE of Washington, Respondent, v. Jai-Mar Eli SCOTT, Appellant. Division 1
• Court: Washington Court of Appeals

Page 207

72 Wn.App. 207

866 P.2d 1258

STATE of Washington, Respondent, v. Jai-Mar Eli SCOTT, Appellant.

Nos. 27017-6-I, 28921-7-I.

Court of Appeals of Washington,

Division 1.

Dec. 27, 1993.

Irene Tanabe, Seattle, for appellant

Norm Maleng, King County Prosecutor, Jonathan Love, Seattle, for respondent.

KENNEDY, Judge.

Appellant Jai-Mar Eli Scott appeals his exceptional sentence for first degree murder, contending that (1) the court's findings of fact and conclusions of law in support of the sentence are erroneous, (2) the court's findings are legally insufficient to support an exceptional sentence, and (3) the sentence is clearly excessive. We affirm.

FACTS

1. Procedural Facts

Scott was charged by second amended information with murder in the first degree, in violation of RCW 9A.32.030(1)(a) and (c). Scott was tried by a jury on August 16 through 28, 1990. The jury found him guilty of premeditated murder pursuant to RCW 9A.32.030(1)(a) and felony/murder pursuant Scott's offender score was 0. His standard sentencing range was 240 to 320 months. The court imposed an exceptional sentence of 900 months.

                to RCW 9A.32.030(1)(c).   The jury returned a special interrogatory finding that the murder was committed in the course of, in furtherance of, or in immediate flight from robbery in the first degree and attempted rape in the first degree
                

The court entered written findings of fact and conclusions of law setting forth the reasons for its departure from the standard sentencing range, specifically (1) abuse of trust, (2) the victim's particular vulnerability, (3) deliberate cruelty, and (4) multiple injuries inflicted in the commission of the crime.

Scott filed an appeal of the judgment and sentence on October 4, 1990, cause 27017-6, and an appeal of the court's order of restitution on July 8, 1991, cause 28921-7. The two appeals were consolidated under cause 27017-6 on September 6, 1991. Scott presents no arguments concerning his appeal of the restitution order. ¹

2. Substantive Facts

On September 27, 1989, Agnes Jackson, age 78, was murdered in her home located at 8312 Wolcott Avenue South in Seattle. Ms. Jackson, who suffered from Alzheimer's Disease, lived alone.

Police investigation revealed that the murderer did not use force to gain entry into the house. There were signs of violence, including bloodstains and displaced items in Ms. Jackson's living room and in both bedrooms of the home.

Ms. Jackson's body was found by neighbors in the back bedroom. Her face was badly beaten and a telephone cord was bound tightly around her neck. The victim was naked from the waist down and her blouse and sweater were pulled Detective Lima theorized that the murderer used matches as a source of light during the attack. Numerous matchbooks and burnt matches were found throughout the residence. The contents of Ms. Jackson's wallet were strewn about on the living room couch. Her checkbook, which was found on her bed, had been opened.

                up to the base of her breasts.   Stray hairs and two burnt matches were collected from Ms. Jackson's abdomen
                

Latent fingerprints were lifted from different locations within the home. One bloody fingerprint was located in the back bedroom/storage area where the victim was located. This print was found on a wall approximately 5 1/2 feet from the floor. Next to this print was a bloody afghan, which had been placed over the window. The afghan normally was kept on the living room couch.

An autopsy by the King County Medical Examiner's Office attributed Ms. Jackson's death to ligature and manual strangulation. Ms. Jackson suffered six fractures to her neck, including a fracture through the neck bone to the back of the cervical spinal column. The autopsy also revealed the following head injuries: three fractures to the right eye and cheekbone, a subdural hemorrhage, a fracture to the base of her skull, and two gaping lacerations to the top of her head. An internal examination disclosed eight rib fractures. The autopsy also revealed a faint contusion on the mons pubis. Dr. Fitterer testified that all of the injuries looked as though they had occurred prior to the victim's death.

The police concluded that the victim's own cane and a broken and bloody glass candy jar lid were used as weapons in the attack.

Scott had lived next door to Ms. Jackson for 2 years. His mother, Elizabeth White, took care of Ms. Jackson for $100 a week. Because of this arrangement, Scott often did chores for Ms. Jackson and had access to the inside of her home.

On September 28, 1989, the police matched one of the latent fingerprints lifted from the victim's home to Scott's Pubic hairs which were removed from the victim's body and clothing contained the same microscopic characteristics as Scott's hairs. Blood comparison tests confirmed that the blood on Scott's socks and shirt was consistent with the victim's blood and not Scott's. Police also found numerous burnt matches throughout Scott's bedroom and the same brand of matchbook that was found in the victim's home. Finally, a bloody shoe print photographed at the scene was consistent with the size, tread pattern, and wear pattern of tennis shoes belonging to Scott.

                fingerprint.   Police executed a search warrant of Scott's home and seized two bloody socks, a T-shirt with bloodstains and tennis shoes.   Scott's fingerprints were also matched to prints found in various parts of the victim's home
                

DISCUSSION

I. Justification for the Exceptional Sentence

Scott contends that the record does not support an exceptional sentence. We disagree.

RCW 9.94A.120, Sentences, provides that:

When a person is convicted of a felony, the court shall impose punishment as provided in this section.

....

(2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. ² Appellate review of an exceptional sentence involves a 3-step process:

(1) are the trial court's reasons supported by the record, (2) do the stated reasons justify an exceptional sentence as a matter of law, and (3) did the trial court abuse its discretion by imposing a sentence that is "clearly excessive" or "clearly too lenient"?

State v. Grewe, 117 Wash.2d 211, 214, 813 P.2d 1238 (1991); see also State v. Allert, 117 Wash.2d 156, 163, 815 P.2d 752 (1991); State v. Dunaway, 109 Wash.2d 207, 218, 743 P.2d 1237 (1987), 749 P.2d 160 (1988).

The trial court's findings regarding the presence of aggravating factors, being a factual determination, must be upheld unless clearly erroneous. Grewe, 117 Wash.2d at 218, 813 P.2d 1238 (citing State v. Nordby, 106 Wash.2d 514, 517-18, 723 P.2d 1117 (1986)). See also State v. Spisak, 66 Wash.App. 813, 820, 834 P.2d 57 (1992). "We will reverse the trial court's findings only if no substantial evidence supports its conclusion." Grewe, 117 Wash.2d at 218, 813 P.2d 1238 (citing Burba v. Vancouver, 113 Wash.2d 800, 807, 783 P.2d 1056 (1989)).

In contrast, the review of the legal adequacy of the aggravating factors to justify a departure from the standard range is a question of law. Dunaway, 109 Wash.2d at 218, 743 P.2d 1237; State v. Post, 118 Wash.2d 596, 614, 826 P.2d 172, 837 P.2d 599 (1992); Spisak, 66 Wash.App. at 820-21, 834 P.2d 57. An aggravating factor is legally adequate to justify a sentence outside of the standard range as long as the aggravating factor was not necessarily considered by the Legislature in establishing the standard range, and as long as the asserted aggravating factor is "sufficiently substantial and compelling to distinguish the crime in question from others in the same category." (Citations omitted.) Grewe, 117 Wash.2d at 216, 813 P.2d 1238. See also Nordby, 106 Wash.2d at 518, 723 P.2d 1117; State v. McAlpin, 108 Wash.2d 458, 463, 740 P.2d 824 (1987).

Deliberate Cruelty

Scott contends that the record does not support a finding that he exhibited deliberate cruelty. He also asserts that serious bodily injury is inherent in murder and the depravity of this crime does not go beyond that generally associated with premeditated murder. We disagree with Scott's factual and legal conclusions.

RCW 9.94A.390(2)(a) permits an exceptional sentence where "[t]he defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim." Deliberate cruelty consists of gratuitous violence or other conduct which inflicts physical, psychological, or emotional pain as an end in itself. State v. Strauss, 54 Wash.App. 408, 418, 773 P.2d 898 (1989), appeal after remand, 119 Wash.2d 401, 832 P.2d 78 (1992); State v. Kidd, 57 Wash.App. 95, 106, 786 P.2d 847, review denied, 115 Wash.2d 1010, 797 P.2d 511 (1990). The extreme conduct must be significantly more serious or egregious than typical in order to support an exceptional sentence. State v. Holyoak, 49 Wash.App. 691, 696, 745 P.2d 515 (1987), review denied, 110 Wash.2d 1007 (1988).

Scott's conduct went well beyond what was necessary to establish premeditated or felony murder in the first degree. The victim was elderly, weak, and had diminished mental faculties. Scott could easily have killed her by strangulation, which he did, but only after physically and sexually assaulting her. The medical examiner found that the manual and ligature strangulation were separate acts of violence. The first act of strangulation and/or any of the blows to the victim's head were sufficient evidence upon which to base a finding of premeditation. All of the other blows to the head, face, and ribs, which occurred in three different rooms and resulted in 20 broken bones, were additional violent acts separate from the premeditation and the final strangulation.

Scott contends that the cases finding deliberate cruelty involved prolonged attacks or lingering suffering. See State v. Harmon, 50 Wash.App. 755, 757-59, 750 P.2d 664, review...