State v. Smith, No. 33878-5-II (Wash. App. 5/1/2007), 33878-5-II.
| Decision Date | 01 May 2007 |
| Docket Number | No. 33878-5-II.,33878-5-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TYRAN SMITH, Appellant. |
Appeal from Pierce County Superior Court. Docket No: 04-1-03910-1. Judgment or order under review. Date filed: 09/23/2005. Judge signing: Honorable Stephanie A. Arend.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St Box 135, Seattle, WA, 98115-6655,
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171,
Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171,
Tyran Smith appeals his convictions of (1) homicide by abuse of his two-year-old daughter Tyshell and (2) second degree felony murder for (a) criminally mistreating her, and (b) assaulting her. He challenges his exceptional sentence, arguing that the trial court lacked authority to ask the jury to find aggravating sentencing facts because he committed his crimes after Blakely1 but before the legislative amendment allowing such jury findings. Smith also argues that the trial court violated his right to due process when it denied his challenge for cause to a racially biased juror and forced him to use a peremptory challenge to remove the juror. In addition, Smith claims that the prosecutor committed prejudicial misconduct during closing argument. In a statement of additional grounds for review, Smith argues that the trial court should not have admitted a videotape depicting Tyshell shortly before her death and that the State failed to prove either conviction. Finding no reversible error, we affirm.
While her father's girlfriend was feeding her, two-year-old Tyshell made a gurgling sound, slumped forward, and stopped breathing. Tyran Smith, Tyshell's father, tried to revive her while Christina Tierce, Smith's girlfriend, called the paramedics. The paramedics transported Tyshell to the hospital where she was pronounced dead. Tyshell had been living with her father and Tierce for about one month before her death.
Hospital staff observed that Tyshell was visibly emaciated with multiple injuries. She had several contusions and extensive bruising, including a belt mark across her face. Some of Tyshell's injuries were at least a few days old. The autopsy also revealed internal bleeding under Tyshell's skull in four places, each representing an area of blunt force impact equal to a fall from five to seven stories. The medical examiner who performed the autopsy estimated that advanced dehydration, head injuries, and the contusions caused Tyshell's death.
Smith and Tierce told the investigating detectives that they had been camping during the week leading up to Tyshell's death and that a babysitter had taken care of Tyshell. They explained that when they returned from camping, they noticed that something was wrong with Tyshell. After further investigation, detectives became skeptical of the camping-babysitter story and arrested Smith and Tierce.
The State charged Smith with homicide by abuse, alleging as aggravating factors that he committed the crime with deliberate cruelty, to a particularly vulnerable victim and, in doing so, abused his obligation of trust toward Tyshell. The State later added a second degree felony murder charge based on predicate felonies of second degree assault and criminal mistreatment; the State alleged the same aggravating factors it had alleged in the homicide by abuse charge. Smith pleaded not guilty, claiming he was not at home for most of the week leading up to Tyshell's death and that Tierce must have abused Tyshell while he was away. Tierce pleaded guilty to second degree felony murder.
At trial, the State showed the jury a video recording of Tyshell taped during the week leading up to her death. In the video, Tyshell had trouble holding her head up, was unresponsive, and appeared dazed. When she attempted to lie down, Tierce, who was filming, warns her that if she does, Smith is going to come in the room and hit her with a belt. L.C.,2 who lived with Smith and Tierce, testified that before living with Smith, Tyshell was a happy girl who liked to dance. L.C. told the jury that although both Smith and Tierce spanked Tyshell, Smith disciplined Tyshell the most, using both his hands and a belt. In the week leading up to Tyshell's death, a neighbor heard a man and woman in the Smith residence fighting over a child not eating her food. Another neighbor testified that a child in the Smith home was crying and "horribl[y] screaming" for three to five hours. 7 Report of Proceedings (RP) at 824-26. She also heard a male voice saying, "That's what you get." 7 RP at 825.
Tierce testified that Smith stopped performing CPR on Tyshell to dictate the babysitter story to her while she called 911. Tierce also said that Smith hit Tyshell in the legs with his belt over her clothes when she refused to eat. Tyshell responded by crying and yelling, "Daddy, stop."
9 RP at 1166. Tierce said she was afraid of Smith and that he "[o]bviously did something" to Tyshell. 9 RP at 1196.
Smith's witnesses supported his claim that he spent a lot of time with friends during the week leading up to Tyshell's death, and often did not get home until late. Smith said that the only bruises he had seen on Tyshell's body before his arrest were two bruises on her head she received from falling in the driveway. But on cross-examination, Smith admitted that, on the night she died, he told detectives where to find bruises on Tyshell's body. He said he only hit Tyshell on the legs with the belt one time and lightly disciplined her on two other occasions.
The jury convicted Smith of homicide by abuse and second degree murder, finding that he committed both underlying felonies; the jury also found that the State proved all aggravating factors beyond a reasonable doubt. The trial court imposed a 600-month exceptional sentence for Smith's homicide by abuse conviction, explaining that it would have imposed the same exceptional sentence for any single aggravating factor. To meet double jeopardy principles, the court did not sentence Smith on the second degree murder conviction.
Smith argues that the trial court erred in imposing an exceptional sentence based on the jury's findings that Smith committed the crime with deliberate cruelty against a particularly vulnerable victim and that an abuse of trust facilitated the crime. He argues that in imposing an exceptional sentence, the trial court violated his Sixth Amendment rights under Blakely, exceeded its statutory authority, violated the doctrine of separation of powers, violated due process, and violated his right to equal protection.
Smith conceded at oral argument that our Supreme Court's decision in State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007), disposes of his due process, equal protection, Fifth Amendment, and Sixth Amendment arguments.
Smith argues that the trial court exceeded its statutory authority in submitting the aggravating factors to the jury and in relying on that process to impose Smith's exceptional sentence. He argues, correctly, that in Blakely, the United States Supreme Court struck down as unconstitutional Washington's scheme of imposing exceptional sentences. Blakely, 542 U.S. at 304-05.
To comply with Blakely, the legislature amended the Sentencing Reform Act (SRA) to "create a new criminal procedure for imposing greater punishment than the standard range" in an effort to "restore the judicial discretion that" the Blakely decision limited. Laws of 2005, ch. 68, § 1. These amendments, which some courts refer to as the "Blakely fix" legislation, became effective on April 15, 2005. See Laws of 2005, ch. 68, § 7. Smith maintains that because the legislature did not amend the SRA's exceptional sentence scheme until April 15, 2005, and because he allegedly committed the crime on July 30, 2004, his case falls under a "`statutory hiatus' during which there was no authority" for a court to impose an exceptional sentence. Br. of Appellant at 17, 21. He argues that to apply the "Blakely fix" "retroactively" to his case runs afoul of the constitutional prohibitions against ex post facto laws. U.S. Const. art. 1, § 9; Wash. Const. art. I, § 23; Br. of Appellant at 16.
But our Supreme Court recently held in Pillatos, 159 Wn.2d at 474, that Laws of 2005, chapter 68 applies to all cases in which trial had not begun before its enactment. Smith's trial began on July 5, 2005. Thus, the "Blakely fix" legislation contained in Laws of 2005, chapter 68, applies to Smith's case.
Moreover, the court held that because Laws of 2005, chapter 68 does not attach new legal consequences to any crime, the enactment is not retrospective. Pillatos, 159 Wn.2d at 476-77.
Accordingly, Smith's argument that applying Laws of 2005, chapter 68 to his case violates prohibitions on ex post facto laws is without merit.
The amendments contained in Laws of 2005, chapter 68, required the State to (1) provide notice that it would seek a sentence above the standard range and (2) prove facts supporting the aggravating circumstance to a jury beyond a reasonable doubt. Laws of 2005, ch. 68, § 4(1), (2). Laws of 2005, chapter 68, section 4(5) authorizes the trial court to impose an exceptional sentence if the jury finds that the State has proved "one or more of the facts alleged . . . in support of an aggravated sentence" and if "the facts found are substantial and compelling reasons justifying an exceptional sentence." An abuse of trust, deliberate cruelty, and a particularly vulnerable victim are three of the "exclusive list of factors" that support an exceptional sentence under Laws of 2005, chapter 68, section 3(3)(a), (b), (n).
Here, the jury found, by special verdict, that the State proved the aggravating factors alleged in the information...
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