State v. Washington, 92,438.

• Decision Date: 09 December 2005
• Docket Number: No. 92,438.,92,438.
• Citation: 123 P.3d 1265
• Parties: STATE of Kansas, Appellee, v. Marcus B. WASHINGTON, Appellant.
• Court: Kansas Supreme Court

Page 1265

123 P.3d 1265

STATE of Kansas, Appellee, v. Marcus B. WASHINGTON, Appellant.

No. 92,438.

Supreme Court of Kansas.

December 9, 2005.

Janine Cox, capital appellate defender, argued the cause and was on the brief for appellant.

Jerome A. Gorman, district attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by DAVIS, J.:

Marcus Washington was convicted of first-degree premeditated murder and criminal possession of a firearm and sentenced to 50 years in prison without the possibility of parole (a hard 50 sentence). On direct appeal, the Kansas Supreme Court affirmed his convictions but remanded for resentencing in State v. Washington, 275 Kan. 644, 68 P.3d 134 (2003). Washington appeals the trial court's imposition of a hard 50 sentence on remand.

Marcus Washington was convicted of first-degree premeditated murder and criminal possession of a firearm based upon the January 16, 2000, shooting death of Stacey Quinn. At the sentencing hearing, the trial court found that two aggravating factors existed: (1) The defendant was previously convicted of a felony in which he inflicted death on another (involuntary manslaughter); and (2) the crime was committed in a heinous, atrocious, and cruel manner. Regarding the second factor, the trial court reasoned that the victim was shot with 11 specific bullets, that the defendant used two separate 10-shot clips, and that the victim "knew early on her fate as she hopped across the street and she watched [the defendant] as he approached from across the street prior to being shot and ultimately meeting her death." The court found that the only mitigating circumstance was that "there is some marginal reason to believe that the defendant was under extreme mental or emotional disturbance."

The court concluded that the aggravating factors substantially outweighed the mitigating factor and sentenced the defendant to 50 years in prison without the possibility of parole (a hard 50 sentence). On direct appeal, the Kansas Supreme Court affirmed his convictions but for reasons relating to other than the aggravating and mitigating factors vacated the sentence and remanded for resentencing in State v. Washington, 275 Kan. 644, 68 P.3d 134 (2003).

At resentencing, the trial court reaffirmed its findings at the original sentencing hearing that two aggravating factors existed. The first aggravating factor was that the defendant had been convicted of killing another individual, and although the defendant was young at the time of this crime and an issue arose about its defensive nature, no question existed that the earlier homicide had taken place. The trial court found the existence of the second aggravating factor, reasoning:

"The other aggravating factor that the court found was that this crime was committed in an especially heinous, atrocious, or cruel manner. And I made some reference to the fact that that is not always a factor found in a homicide involving a firearm. In fact, oftentimes it is not found because of the instantaneous nature of the death at times.

"But I do vividly recall the testimony of the one witness who indicated that she had looked out of the window of her house when she heard the gunshots, heard the noises outside, and saw Ms. Quinn hopping across the street. And my recollection is that the pathologist's testimony was one of the gunshot wounds was to the leg or the foot or the ankle, something of that nature. That would have supported the witness' description of seeing this victim hopping across the street.

"And then Mr. Washington not running across the street, but walking across the street approaching this victim, who I believe was on the porch of a house that she had gone to. And other witnesses had testified that they heard her crying for help as she was lying on that porch. And that the testimony was then that she was shot numerous times. There were in fact, eleven gunshot wounds that she suffered — separate gunshot wounds.

"The significance of that number came from the fact that there were two magazines found at the scene, each of which — or I guess they weren't found at the scene. As I recall, maybe they were found at the time that Mr. Washington was arrested. But I recall that they both carried a maximum of ten shots, which was an indication that given the eleven gunshot wounds the defendant had fired some number of shots, removed one magazine and put another one in and continued to shoot."

The trial court proceeded to find the existence of two additional similar mitigating factors under K.S.A. 21-4637(e) and (f) in addition to the being under the influence of extreme mental or emotional disturbance at the time: (1) The defendant acted under extreme distress or under the substantial domination of another person, and (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The court found all three mitigating factors involved the issue of posttraumatic stress disorder, which the court recalled, the State's expert, Dr. William Logan, had testified did not negate the premeditation and intent necessary for the first-degree murder. The court stated it would be very difficult to find that the defendant was not aware of his actions even if he was suffering from posttraumatic stress disorder, which the defense expert Dr. Gilbert Parks could not debunk.

The court concluded that the aggravating factors outweighed the mitigating factors reasoning that it did not "believe that they in any way explain what happened here or detract from the manner in which it was performed." The trial court imposed a hard 50 sentence on the first-degree premeditated murder conviction to run concurrently to an 18-month sentence for the criminal possession of a firearm conviction. The defendant appeals arguing (1) that the evidence fails to support the trial court's determination that the crime was committed in an especially heinous, atrocious, or cruel manner; and (2) that the hard 50 sentence is unconstitutional.

(1) Especially Heinous, Atrocious, or Cruel Manner

Kansas law provides that if a defendant is convicted of premeditated first-degree murder, the trial court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 50 years without eligibility for parole, i.e., the hard 50 sentence. K.S.A. 2004 Supp. 21-4635(a); K.S.A.2004 Supp. 21-4638. Kansas law also requires the trial court to make that determination after considering evidence of aggravating and mitigating circumstances. K.S.A.2004 Supp. 21-4635(b). If the trial court finds that one or more of the aggravating circumstances enumerated in K.S.A.2004 Supp. 21-4636 exists and that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances, the defendant shall receive the hard 50 sentence. K.S.A.2004 Supp. 21-4635(c).

"When a defendant challenges the sufficiency of evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence." State v. Buehler-May, 279 Kan. 371 Syl. ¶ 12, 110 P.3d 425 (2005).

The defendant challenges the imposition of the hard 50 sentence based upon the trial court's finding that the murder was committed in an especially heinous, atrocious, or cruel manner under K.S.A.2004 Supp. 21-4636(f). The defendant argues the evidence was insufficient to support this aggravating circumstance.

K.S.A.2004 Supp. 21-4636(f) describes the relevant aggravating circumstance as follows:

"(f) The defendant committed the crime in an especially heinous, atrocious or cruel manner. A finding that the victim was aware of such victim's fate or had conscious pain and suffering as a result of the physical trauma that resulted in the victim's death is not necessary to find that the manner in which the defendant killed the victim was especially heinous, atrocious or cruel. In making a determination that the crime was committed in an especially heinous, atrocious or cruel manner, any of the following conduct by the defendant may be considered sufficient:

(1) Prior stalking of or criminal threats to the victim;

(2) preparation or planning, indicating an intention that the killing was meant to be especially heinous, atrocious or cruel;

(3) infliction of mental anguish or physical abuse before the victim's death;

(4) torture of the victim;

(5) continuous acts of violence begun before or continuing after the killing;

(6) desecration of the victim's body in a manner indicating a particular depravity of mind, either during or following the killing; or

(7) any other conduct in the opinion of the court that is especially heinous, atrocious or cruel."

The defendant argues that the evidence in this case does not support a finding that any of the first six factors were present and no exceptional circumstances exist in this case to support the only remaining factor, "any other conduct in the opinion of the court that is especially heinous, atrocious or cruel." See K.S.A.2004 Supp. 21-4636(f)(7). Attacking the trial court's reasoning, he contends none of the witnesses testified to actually seeing the victim being shot or the defendant standing over the victim during the shooting, the autopsy revealed no soot or stippling on the body which would indicate that the shooter was 4 or 5 feet away, and the doctor who performed the autopsy opined that the victim would have bled to death quickly from the gunshot injury to the heart.

The State responds that evidence supported both the third factor ("infliction of mental anguish or physical abuse before the victim's death")...