Opinion
No. 57794-8-I.
February 25, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-13419-2, Julie A. Spector, J., entered February 7, 2006.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Baker, JJ.
William Joice appeals his conviction for first degree attempted murder with a firearm. Joice and the victim, Kevin Jung, were opposing counsel in a civil litigation dispute. Joice shot Jung and admitted he did so intentionally as a desperate strategy to delay the case. The trial court imposed an exceptional sentence after the jury found two aggravating circumstances. Finding no error, we affirm the conviction and sentence.
After working as a prosecuting attorney for 10 years, Joice started his own practice. He agreed to represent a party in litigation in Snohomish County Superior Court involving the sale of a franchise business. Kevin Jung was the opposing counsel. The court repeatedly sanctioned Joice, at Jung's request, for failure to comply with court orders and for late discovery.
On the morning of November 3, 2004, Jung and Joice were scheduled to appear in Everett for a hearing in their case. At 9:15 a.m. Jung was shot in the head outside his Bellevue office as he was preparing to leave for Everett. A witness saw the shooting, wrote down the license plate number for the car the shooter was driving, and called 911. The license plate belonged to a rental car that Joice had rented the day before. The police were able to locate Joice and arrest him 45 minutes after the shooting.
The State initially charged Joice with one count of attempted first degree murder, including a firearm enhancement. The State later amended the charge to allege two aggravating circumstances: that the offense involved a high degree of planning or sophistication and that the victim's injuries exceeded the level of bodily injury necessary to satisfy the elements of the offense.
The trial began in late November 2005. Joice testified at trial. He admitted to shooting Jung intentionally but claimed that he did not intend to kill him. He claimed that he aimed at Jung's shoulder, not his head, and that he intended to harm him just enough so that there would be a delay in the franchise case and he would be able to catch up.
The jury found Joice guilty as charged on December 20, 2005. The jury then heard additional testimony on the aggravating circumstances and returned special verdicts finding the aggravating circumstances present. Joice moved unsuccessfully to arrest judgment on the aggravating circumstances. The court imposed an exceptional sentence of 380 months. The sentence was imposed on February 3, 2006. A week later, Jung died of his injuries.
Joice appeals his conviction and sentence. He requests reversal of his conviction and remand for a new trial, or, in the alternative, reversal of the sentence and remand for imposition of a sentence within the standard range.
MOTION TO SUPPRESS
Several hours after the shooting, a Bellevue detective sought and obtained a search warrant for Joice's residence, law office, and Lexus. The warrant authorized the police to seize handguns and handgun accessories, evidence relating to gun ownership, ammunition, documents relating to Jung, calendars, date books, and cell phones.
During the search of Joice's residence, police found a receipt from Sam's Gun Shop dated October 16, 2004. The receipt indicated that Joice had rented a locker several weeks prior to the shooting. Bellevue police sought and received a search warrant for Joice's locker at Sam's Gun Shop on November 5, 2004.
The warrant authorized police to seize additional firearms, ammunition, silencers and silencer components, and records showing that Joice had used the firing range.
Joice moved to suppress the evidence found at his residence, office, car, and locker. He claimed that the warrants lacked a sufficient nexus between the items sought and the places to be searched, except to the extent that they permitted the police to search Joice's office for documents related to the franchise lawsuit.
The court denied Joice's motion to suppress. He claims that the November 3, 2004 search warrant affidavit did not establish sufficient nexus between the alleged criminal activity and the places searched. Joice assigns error to the court's denial of his motion to suppress.
A magistrate's determination that a warrant should issue is reviewed for abuse of discretion. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). This determination should be given great deference. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). The application for a search warrant is evaluated in a common sense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant. State v. Jackson, 150 Wn.2d 251, 265, 76 P.3d 217 (2003).
A search warrant may be issued by a judge only upon a determination of probable cause. Jackson, 150 Wn.2d at 264. Probable cause exists where the affidavit in support of the warrant sets forth sufficient facts and circumstances to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location. Jackson, 150 Wn.2d at 264. Probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched. State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997). "The magistrate is entitled to make reasonable inferences from the facts and circumstances set out in the affidavit." State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004).
The trial court made written findings of fact and conclusions of law as to the 10-page affidavit for the search warrant. Those findings are undisputed on appeal.
The court found that the affidavit for the November 3 search warrant set forth the following facts:
a) Lepley [witness at Jung's office] had been gazing out the window and saw a red, older American car drive in; he then heard a "pop" and looked back out into the parking lot. Lepley then saw a white male wearing a dark-colored sweatshirt driving a red car in the parking lot.
b) The victim, Kevin Jung, . . . had been in his office . . . just before the shooting and had gone to his car . . . in preparation for driving to the Snohomish County courthouse for a hearing at 1000 hrs. He was going to meet opposing counsel, William Joice, and Joice was going to be fined for not providing material requested through the discovery process.
c) Neil [rental car agent] later told Det. Herst that Joice had rented a car the previous week on Wednesday, 10/27/04 and returned it on Friday 10/29/04. This coincided with another Snohomish County court hearing that Joice had with Jung. That court hearing, originally . . . scheduled for 1000 hrs. on Friday, 10/29/04 was cancelled at the last moment by Jung and reset for 11/03/04 at 1000 hrs.
d) . . . Joice operates a law practice in Mill Creek . . .
e) A search incident to arrest disclosed the following: Joice was carrying on his person a . . . scanner . . . antenna . . . an At-A-Glance Fine Diary with the sticker inside the front cover that reads: Law office of William Joice . . .
f) Joice was checked for a concealed pistol license permit with Washington Department of Licensing and he came back with a current one from Snohomish County with four handguns registered to him . . .
g) No handguns have been recovered as of the writing of this affidavit.
h) I noted that he had an empty cell phone holster attached to his belt.
i) Det. Lt. Bourgette contacted Joice's wife . . . she said that . . . her husband left for work that morning at approximately 0800 hrs in his white Lexus. She described his clothing that morning and it was consistent with the clothing worn by Joice at the time of his arrest.
j) Bellevue Detective . . . later located Joice's vehicle . . . parked in front of Joice's Mill Creek Law Office . . .
Clerk's Papers at 152-53 (Written Findings of Fact and Conclusions of Law on CrR 3.6 Motion to Suppress Physical Evidence).
Based on the facts set forth in the affidavit, the court concluded the police had sufficient information to justify searching his home, office, and car:
g) The defense stipulated that the State established sufficient probable cause to establish a reasonable inference that the defendant was probably involved in criminal activity. This Court . . . draws the same conclusion based on the affidavits at issue. The only issue before this Court at this hearing is whether the November 3, 2004 and November 5, 2004 affidavits stated sufficient probable cause that evidence of the crime of Attempted Murder would be found at the locations searched.
h) The State established through the November 3, 2004, affidavit sufficient information to lead to a reasonable inference that the defendant left his home on November 3, 2004, and drove his white Lexus to his law office in Mill Creek. The defendant then drove the rental car to the scene of the crime. The affidavit stated that at the time of arrest, the defendant was wearing the same clothes that he had left home in several hours earlier. The defendant had a radio scanner and antenna in his possession, but he was not in the possession of a cell phone, a firearm, or a dark sweatshirt described by witness LePley as being worn by the shooter. This Court finds it reasonable to believe that the defendant left the crime scene in Bellevue and returned to either his white Lexus, or his law office, to dispose of evidence prior to returning the rental car to Eight Dollar Car Rental by 10 a.m.
i) This Court finds it reasonable to believe that evidence of the crime of Attempted Murder would be found in the locations where the defendant had been on the morning of November 3, 2004 — namely, the defendant's white Lexus . . ., his Mill Creek law office . . ., and his Mill Creek residence. . . . The State therefore provided sufficient probable cause in the November 3, 2004 affidavit that evidence of the crime of Attempted Murder would be found in any of these locations.
Clerk's Papers at 156-57 (Written Findings of Fact and Conclusions of Law on CrR 3.6 Motion to Suppress Physical Evidence).
Joice contends there was no evidence presented in the affidavit to justify a belief that he had stashed evidence in his home, office, or car or that he returned to these places in the narrow window of time between the shooting at 9:15 a.m. and his arrest at 10 a.m.
Joice cites Thein, 138 Wn.2d 133, 977 P.2d 582 (1999). In Thein, the police, while searching another person's residence, developed a suspicion that Thein was involved in drug dealing. The officers obtained a search warrant for Thein's residence based on their generalized conclusion that drug dealers commonly keep evidence of illegal drug dealing in their homes. The Supreme Court held that general statements regarding the common habits of drug dealers are not, standing alone, sufficient to establish the probable cause necessary to search a suspected drug dealer's home. Thein, 138 Wn.2d at 151.
Here, unlike in Thein, the court was not relying on generalized or conclusory statements. The affidavits were specific about Joice's activities and the incriminating items found during the search incident to his arrest. They showed that Joice had taken many steps in planning the crime. On the morning before the shooting he had been at his home and his office as well as in his car. It was reasonable to infer that evidence related both to the planning and commission of the crime would be found in those locations.
Joice claims that the warrant to search his home, office and car was constitutionally overbroad in that it authorized the police to seize evidence "relating to firearms," a term that he claims is too vague to have any meaningful nexus to the offense alleged. Because he raises this objection for the first time on appeal and does not show how it involves a manifest error affecting a constitutional right, we decline to address it. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
The affidavit for a warrant to search Sam's Gun Shop stated that police had found a receipt from Sam's Gun Shop during the search of Joice's home. The receipt indicated that Joice had rented a locker two weeks prior to the shooting. The Detective submitting the affidavit said "I believe that this is a probable location for as-of-yet unrecovered handguns and handgun accessories and silencer construction materials and is also a likely place for Joice to have test-fired the silencer found in his garage." According to the trial court's undisputed findings of fact, the affidavit set forth the following facts: The police found two homemade silencers. One silencer was found in the trunk of Joice's Lexus and was attached to the weapon that was probably used in the shooting. The other silencer found in Joice's garage had been test-fired. The police also found a bag containing Federal brand Hydra-Shok 147 grain ammunition. The detective reported, based on his training and experience, that when the silencer was attached to the gun, the handgun sights would be useless. The detective concluded that the shooter would need to practice firing the gun with the silencer attached. A few dozen man-size police qualification targets for practice shooting were found in a closet in Joice's home. Based on these findings, the court concluded:
Clerk's Papers at 58 (Signed Affidavit for Search Warrant, November 5, 2004).
j) The State established through the November 5, 2004 affidavit that the defendant had rented a locker from Sam's Gun Shop in October 2004, and that all of the weapons on the defendant's Concealed Pistol License had not yet been recovered.
k) This Court finds that it was reasonable to believe that additional guns, ammunition, and evidence of the crime could be found at Sam's Gun Shop . . . and the November 5, 2004, affidavit cited sufficient probable cause to support that search.
Clerk's Papers at 157 (Written Findings of Fact and Conclusions of Law on CrR 3.6 Motion to Suppress Physical Evidence).
Because the evidence established that Joice had created and test-fired a homemade silencer in preparation for the crime and had rented a locker at the Gun Shop several weeks before the shooting, it was reasonable to infer that other evidence relating to Joice's preparations would be found in his locker at Sam's Gun Shop.
In summary, the trial court did not err when it denied Joice's motion to suppress.
LESSER INCLUDED OFFENSES
Joice assigns error to the trial court's refusal to instruct the jury on first-degree assault or attempted assault as lesser included offenses of attempted first degree murder. He requested these instructions and he claims that the court's ruling prevented him from arguing his defense theory.
We review a trial court's refusal to give a requested jury instruction de novo where, as here, the refusal is based on a ruling of law. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
Generally, a defendant can be tried and convicted only of crimes with which he or she is charged. However, pursuant to a statute that codifies a common law exception to this rule, an accused "may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information." RCW 10.61.006; State v. Berlin, 133 Wn.2d at 544.
A defendant is entitled to have the jury instructed on lesser included offenses when each of the elements of the lesser included offense is a necessary element of the charged offense (legal prong) and evidence in the case supports the inference that only the lesser included crime was committed (factual prong). Berlin, 133 Wn.2d at 545-46; State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). "Stated differently, if it is possible to commit the greater offense without committing the lesser offense, the latter is not an included crime." State v. Harris, 121 Wn.2d 317, 320, 849 P.2d 1216 (1993).
First Degree Assault
Joice contends that first degree assault is a lesser included offense of attempted first degree murder. The State contends that first-degree assault does not satisfy the legal prong of the Workman test. The State is correct. Harris is directly on point.
In Harris, the defendant was charged with attempted first-degree murder on a theory of accomplice liability. A jury convicted Harris of first-degree assault. Harris objected to the instruction that allowed the jury to consider assault as a lesser included offense of attempted first degree murder. The Supreme Court reversed the conviction on the basis that the legal prong of Workman was not satisfied.
For ease of reference the pertinent definitions are set forth in simplified form below:
Attempted murder: (1) intent to cause death (2) substantial step
Assault: (1) intent to inflict great bodily harm (2) assaults another with weapon or force
Defendant is correct. As a matter of fact the evidence supports an instruction on first degree assault in this case; Harris was an accomplice to a shooting by Johnson, his passenger. The factual prong of Workman is therefore satisfied. The legal prerequisite for such an instruction fails, however; the greater offense of attempted murder in the first degree can be committed without necessarily committing an assault. As is evident from the elements listed above, it is possible to commit attempted murder without also committing assault. Because the legal prong of the Workman test is not met, assault is not a lesser included offense of attempted murder. The trial court therefore erred in instructing the jury on assault.
Harris, 121 Wn.2d at 321.
Joice acknowledges Harris, but claims that it is not controlling after Berlin, because the Supreme Court in Berlin emphasized the importance of how the crime was charged and prosecuted. "Only when the lesser included offense analysis is applied to the offenses as charged and prosecuted, rather than to the offenses as they broadly appear in statute, can both the requirements of constitutional notice and the ability to argue a theory of the case be met." Berlin, 133 Wn.2d at 548. Joice contends that the State charged and prosecuted him for attempted murder on the theory that his shooting of Jung was the substantial step that satisfied the elements of attempt. He argues, therefore, that it was not possible for him to commit attempted murder as charged and prosecuted without also committing assault.
Joice distorts the holding of Berlin. Berlin overruled State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), in which the Court held that each of the elements of the lesser offense must be a necessary element not only of the offense as charged, but also an element of each alternative means of committing the offense. Otherwise, the legal prong of Workman would not be satisfied. Berlin returned the law to its previous status, whereby the legal prong is satisfied if each of the elements of the lesser offense is a necessary element of the offense as charged; any uncharged alternative means need not be considered. Nothing in Berlin indicates that the court was adopting a new test. This means that Harris is still controlling. This is confirmed by the Supreme Court's post- Berlin decision in State v. Turner, 143 Wn.2d 715, 23 P.3d 499 (2001).
In Turner, the defendant was charged with attempted first degree murder. A jury convicted Turner on the lesser included offenses of second degree kidnapping and unlawful imprisonment, attempted second degree murder, and third degree assault. Turner appealed his conviction, assigning error to the court's failure to instruct the jury on fourth degree assault as a lesser included offense of attempted first degree murder. The Supreme Court applied the Workman test as articulated in Berlin, and determined that fourth degree assault is not a lesser included offense of attempted first degree murder. Turner, 143 Wn.2d at 729-30.
At issue in this case is whether each of the elements of fourth degree assault is a necessary element of attempted first degree murder. As charged, first degree murder requires "a premeditated intent to cause the death of another." RCW 9A.32.030(1)(a). A person is guilty of criminal attempt if, "with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1). An assaultive act, which is a necessary element of fourth degree assault, is not a necessary element of attempted first degree murder; the greater offense can be committed without committing an assault. This Court has previously held that assault is not a lesser included offense of attempted murder in the first degree. [ Harris, 121 Wn.2d at 321]. Therefore, the trial court properly declined to instruct the jury on fourth degree assault as a lesser included offense.
Turner, 143 Wn.2d at 729-30. In short, analysis of the legal prong remains focused on the statutory elements. It is erroneous to read Workman as permitting an inquiry that goes beyond the statutory elements of the offense as charged. Harris, 121 Wn.2d at 323-25.
Here, the "to convict" instruction read:
To convict the defendant of the crime of Attempted Murder in the First Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about November 3, 2004, the defendant did an act which was a substantial step toward the commission of Murder in the First Degree;
(2) That the act was done with the intent to commit Murder in the First Degree; and
(3) That the acts occurred in the State of Washington.
Clerk's Papers at 119 (Jury Instructions).
The State's theory that shooting was the substantial step taken by Joice was not part of the elements charged or necessary to convict. The trial court was not required by Berlin to take account of how the State proposed to prove attempted murder. The court properly limited its analysis of the legal prong to the statutory elements of that charge. Under Harris and Turner, the court correctly refused to instruct the jury that first-degree assault is a lesser included offense of attempted first degree murder.
Joice contends that holding assault in the first degree to be a lesser included offense of attempted first degree murder is supported by the double jeopardy analysis of In re Orange, 152 Wn.2d 795, 818-19, 100 P.3d 291 (2004). In Orange, the court held that it was a violation of double jeopardy to convict Orange of both first degree attempted murder and first degree assault based on the same shot in the same incident. Joice has not cited any authority indicating that double jeopardy analysis is relevant to deciding whether the legal prong of Workman has been met. Accordingly, we do not address this aspect of his argument.
Attempted First-Degree Assault
Joice also contends the court erred by failing to instruct the jury on attempted first-degree assault as a lesser included offense. As noted by the State, Joice did not propose such an instruction below.
A trial court's failure to give a particular instruction is not error where, as here, the defendant made no request for such an instruction below. State v. Hoffman, 116 Wn.2d 51, 111-12, 804 P.2d 577 (1991).
Joice attempts to elevate the failure to give an instruction on attempted assault to a constitutional level by arguing that the absence of the instruction interfered with his right to present a defense. However, failure to instruct on a lesser included offense is not a manifest error affecting a constitutional right. State v. Scott, 110 Wn.2d 682, 688 n. 5, 757 P.2d 492 (1988). Joice also argues that the court unconstitutionally commented on the evidence because a jury would naturally infer from the omission of instructions on assault that the court did not believe the instructions were warranted. This argument is unsupported and we decline to consider it.
In summary, Joice has shown no error with respect to lesser included offense instructions.
SENTENCING PHASE
The Washington legislature has amended the exceptional sentence procedures contained in the Sentencing Reform Act in order to comply with the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Laws of 2005, ch. 68, § 1, § 4, § 7. At the time of Joice's trial, the Washington Supreme Court had yet to determine these amendments were applicable to pending cases.
Given the uncertainty surrounding the proper procedure to follow in presenting the allegation of aggravating circumstances to the jury, both Joice and the State agreed that the court should bifurcate the trial into a "guilt" phase and an "aggravating factor" phase. Joice agreed to waive any appellate issue regarding the procedure the court used to determine the existence of aggravating circumstances. He did, however, reserve his right to contend on appeal that an exceptional sentence was improper:
Clerk's Papers at 186 (Findings of Fact and Conclusions of Law for Exceptional Sentence, filed March 17, 2006).
I understand that I'm not agreeing and not waiving any appellate issue as to a decision whether the State's seeking an exceptional sentence is proper or not. However, should whatever authority decide it is proper, then I am waiving any appeal that I have as to the procedure not . . . conforming to the statute or not . . . conforming to a procedure set up by the Court.
Report of Proceedings, December 5, 2006 at 35-36
In Jury Instruction No. 2, submitted to the jury during the "aggravating factor" phase of the trial, the court asked the jury to consider the two charged aggravating factors:
Having found the defendant guilty of Attempted Murder in the First Degree, you must now determine whether any of the following aggravating circumstances exist:
1.) The victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense of Attempted Murder in the First Degree; and/or
2.) The offense of Attempted Murder in the First Degree involved a high degree of sophistication or planning.
The State has the burden of proving the existence of an aggravating circumstance beyond a reasonable doubt. In order for you to find that there is an aggravating circumstance in this case, you must unanimously agree that the aggravating circumstance has been proved beyond a reasonable doubt. You should consider each of the aggravating circumstances above separately. If you unanimously agree that a specific aggravating circumstance has been proved beyond a reasonable doubt, you should answer the special verdict "yes" as to that circumstance. If you have a reasonable doubt as to the question, you must answer "no".
Clerk's Papers at 136 (Court's Instructions to the Jury for Finding of Aggravating Factors, Jury Instruction No. 2).
Joice requested two changes to these jury instructions. He requested that Instruction No. 2 be revised to require that the victim's injuries substantially exceed the level of bodily harm required for first-degree murder, rather than attempted first-degree murder. He also asked the court to add language to Instruction No. 2 that would require the jury to find that the level of sophistication or planning went beyond that which was necessary to prove the crime. The court denied both requests.
Report of Proceedings, December 14, 2006 at 158-176.
The jury found that both aggravating circumstances were present.
Clerk's Papers at 107 (Special Verdict Form A); Supp. Clerk's Papers at 211 (Special Verdict Form B).
The trial court then entered a conclusion of law that "each one of these substantial and compelling reasons, standing alone, is sufficient justification for the length of the exceptional sentence hereby imposed." The exceptional sentence of 350 months was equal to a standard sentence for armed premeditated murder — the sentence Joice would have faced if Jung had died earlier from his mortal wound. Due Process and Ex Post Facto Prohibitions Joice contends that application of the " Blakely fix" amendments to the Sentencing Reform Act violated the ex post facto doctrine and due process retroactivity prohibitions. The Supreme Court rejected both of these claims in State v. Pillatos, 159 Wn.2d 459, 465, 471, and 476, 150 P.3d 1130 (2007). The court determined that the " Blakely fix" amendments apply to all sentencing proceedings held since the amendments were signed into law on April 15, 2005, and held that such application does not violate retroactivity or ex post facto prohibitions.
Clerk's Papers at 188 (Findings of Fact and Conclusions of Law for Exceptional Sentence, filed March 17, 2006).
Alternatively, Joice claims that the aggravating circumstance codified in RCW 9.94A.535(3)(y) violates the ex post facto doctrine when applied to his case because it is a substantive change in the law that occurred after the crime was committed. We disagree. This aggravating circumstance as defined by statute is consistent with the legal principle recognized some years ago in State v. Cardenas, 129 Wn.2d 1, 6-7, 914 P.2d 57 (1996). In Cardenas, the trial court imposed an exceptional sentence after finding the victim's injuries were more serious than injuries normally inherent in the crime of vehicular assault. The Supreme Court determined that application of this aggravating factor was not appropriate under the facts because the injuries suffered were no greater than those required by the elements of the crime. Because the legislature simply codified the parameters of this aggravating circumstance as it had been articulated in caselaw, it is not a substantive change in the law and its application to Joice is not an ex post facto violation.
RCW 9.94A.535(3)(y) provides: "The victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense."
Vagueness
Joice argues that the instructions on aggravating circumstances were unconstitutionally vague. He claims that the requirements that the jury find a "high" degree of sophistication or planning and that Jung's injuries "substantially exceeded" those necessary to establish the elements of the offense are so subjective as to render them standardless. Joice did not raise this objection below.
"Objections to the failure of the trial court to give an instruction must clearly apprise the trial judge of the points of law involved. Where the objection and the discussion of it does not do so, points of law or issues involved will not be considered on appeal." State v. Fowler, 114 Wn.2d 59, 69, 785 P.2d 808 (1990) (finding that an objection to the assault instruction proposed by the court cannot be raised for the first time on appeal when the objection below did not involve the potential vagueness or overbreadth of the court's definition of the term "unlawful force"), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 486-87, 816 P.2d 718 (1991); see also State v. Scott, 110 Wn.2d 682, 689, 757 P.2d 492 (1998).
On appeal Joice claims that he did propose a clarifying instruction and that the court could have cured the alleged vagueness by adopting his proposed revisions to the jury instructions. Joice did not say he was proposing revisions in order to cure vagueness. He offered them to limit the evidence the jury could consider when deciding if the aggravating factors were present. As in Fowler, the objections were inadequate to apprise the court of a vagueness issue.
Even if review was not precluded by Joice's failure to propose a clarifying instruction, his argument would fail on the merits. Joice has not shown unconstitutional vagueness in the statutory aggravating factors on which the instructions were based.
A statute is presumed constitutional unless it appears unconstitutional beyond a reasonable doubt. State v. Halstien, 122 Wn.2d 109, 118, 857 P.2d 270 (1990). The party challenging a statute under the void for vagueness doctrine bears the burden of proof. Halstien, 122 Wn.2d at 118. A statute is vague if it either fails to define the offense with sufficient precision that a person of ordinary intelligence can understand it, or it does not provide standards sufficiently specific to prevent arbitrary enforcement. State v. Eckblad, 152 Wn.2d 515, 518, 98 P.3d 1184 (2004). Joice must demonstrate that the aggravating circumstances are unconstitutionally vague as applied to him. City of Spokane v. Douglass, 115 Wn.2d 171, 182, 795 P.2d 693 (1990). The challenged statute is "tested for unconstitutional vagueness by inspecting the actual conduct of the party who challenges the ordinance and not by examining hypothetical situations at the periphery of the ordinance's scope." Douglass, 115 Wn.2d at 182-83. Neither of the statutory factors is unconstitutionally vague when considered in the context of Joice's actions.
The first aggravating factor was that the victim's injuries substantially exceeded the level of bodily harm necessary to satisfy the elements of the offense. As a matter of law, no injury needs to be shown to prove attempted first degree murder. Here, Joice admitted to shooting Jung in the head. At the time of trial, Jung was unable to breathe or eat on his own and he was unresponsive to stimulus. A person of ordinary intelligence would understand that Joice's actions resulted in injuries that substantially exceeded the level of bodily harm necessary to satisfy the elements of attempted first degree murder.
The second aggravating factor was that the offense involved a high degree of sophistication or planning. The evidence showed that Joice started to plan the shooting months before it happened; he purchased materials to make two silencers; he purchased ammunition that he knew would be quieter than most; he purchased a police scanner so he could track the police response to the shooting; he disguised himself; he captured the bullet casings in a plastic bag that he attached to his gun; and he planned the shooting so that he could arrive in court on time so as to secure his alibi. Again, a person of ordinary intelligence would be able to determine that Joice's conduct involved a high degree of sophistication or planning.
Finally, Joice encourages this court to adopt the Eighth Amendment vagueness standards as applied in death penalty cases. Because Joice does not cite any authority holding that a vagueness challenge under the Eighth Amendment applies outside the death penalty context, we decline to address this claim.
Presumption Of Innocence
In the first phase, the court instructed the jury that the State had the burden of proving the existence of each element of the crime beyond a reasonable doubt. The court defined the reasonable doubt standard and instructed the jury that the only evidence it was to consider was from the testimony of witnesses admitted into evidence. The court also instructed the jury on the presumption of innocence:
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
Clerk's Papers at 113 (Court's Instructions to the Jury, Jury Instruction No. 3).
In the second phase, the court instructed the jury that the State had the burden of proving the existence of each aggravating circumstance beyond a reasonable doubt. As before, the court defined the reasonable doubt standard and instructed the jury that the only evidence it was to consider was from the testimony of witnesses admitted into evidence. The court did not give another presumption of innocence instruction.
Joice claims that the trial court erred because it failed to re-instruct the jury on the presumption of innocence at this phase of the trial. Joice did not propose a presumption of innocence instruction for the "aggravating factor" phase of the trial and he did not object to the court's failure to give such an instruction.
Issues ordinarily cannot be raised for the first time on appeal. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). An issue can, however, be raised for the first time on appeal if it involves "manifest error affecting a constitutional right." RAP 2.5(a)(3). Joice did not request a presumption of innocence instruction during the "aggravating factor" phase of the trial, or object to the lack of one. Because he has failed to show that the lack of a presumption of innocence instruction constituted manifest error, we conclude the trial court did not err by failing to give such an instruction.
Aggravating Factor — Excessive Injuries
Joice argues that the trial court erred in imposing an exceptional sentence based on the serious injury Jung suffered because the serious nature of the injuries and the conduct producing them were necessarily contemplated by the legislature in calculating the standard range for attempted first degree murder.
A sentencing court must determine whether, as a matter of law, factually supported aggravating factors justify an exceptional sentence.
The seriousness of a victim's injuries is generally a valid aggravating factor as long as the conduct producing the harm, and the harm produced, were significantly more serious than what is typically involved in the crime. But the seriousness of the victim's injuries does not support an upward sentence if the factor was considered by the legislature in defining the crime itself. For example, the seriousness of the injury will not support an exceptional sentence for vehicular assault, because serious bodily injury is an element of the offense. State v. Cowen, 87 Wn. App. 45, 939 P.2d 1249 (1997). But serious bodily injury does not similarly inhere in the offense of attempted first degree murder:
no known authority indicates that serious bodily injury is an element of first degree attempted homicide or that the Legislature necessarily contemplated such injuries in setting the standard range. Indeed, to commit first degree attempted homicide, the State must prove only that the defendant actually intended to take a life and took a substantial step toward the commission of that act. Thus, attempted first degree homicide includes a wide range of conduct, including no injury at all.
Cowen, 87 Wn. App. at 55-56 (citation omitted). Following Cowen, we conclude the injuries Jung suffered were enough to justify a sentence beyond the standard range for attempted murder.
Joice also claims that the statute defining this factor is ambiguous and therefore, that the rule of lenity requires it to be interpreted in his favor. According to the statute, a sentence above the standard range is supported when the "victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense." RCW 9.94A.535(3)(y). Joice argues that "the offense" should be interpreted as the completed offense of murder rather than the charged offense of attempted murder.
A statute is ambiguous only if it can be reasonably interpreted in more than one way and we do not try to discern an ambiguity by imagining a variety of alternative interpretations. State ex rel. M.M.G. v. Graham, 159 Wn.2d 623, 632, 152 P.3d 1005 (2007). The rule of lenity does not apply when the statute can be reconciled in a way that reflects the legislature's clear intent. State v. Oakley, 117 Wn. App. 730, 734, 72 P.3d 1114 (2003).
Joice's interpretation is not supported by the plain language of the statute or any caselaw. The "offense" in question was attempted murder. At the time of trial, Jung was still alive, so there was no reason for anyone to consider the elements of completed murder.
The legislature expressly stated that it intended "to create a new criminal procedure for imposing greater punishment than the standard range or conditions and to codify existing common law aggravating factors, without expanding or restricting existing statutory or common law aggravating circumstances." Laws of 2005, ch. 68, § 1. Before the 2005 recodification, Washington caselaw applied this same aggravating circumstance to the crime of attempted murder. Cowen, 87 Wn. App. at 55-56. We conclude the trial court did not commit error when it imposed an exceptional sentence based on the jury's finding that Jung's injuries substantially exceeded the level of bodily harm necessary to satisfy the elements of attempted first degree murder.
Aggravating Factor — Sophistication or Planning
The second aggravating factor found by the jury was "the offense involved a high degree of sophistication or planning." RCW 9.94A.535(3)(m). Similar to his argument about the other factor, Joice claims this factor cannot justify the exceptional sentence because the legislature necessarily contemplated a high degree of sophistication or planning when calculating the standard range for attempted first degree murder. Again, he relies on the well-established principle that an exceptional sentence cannot be based on factors that "were necessarily considered by the Legislature . . . and do not distinguish the defendant's behavior from that inherent in all crimes of that type." State v. Ferguson, 142 Wn.2d 631, 647, 16 P.3d 1271 (2001) (trial court's finding of deliberate cruelty is an improper basis for an aggravating circumstance where intent to do bodily harm was an element of the charged offense).
Joice relies on State v. Dunaway, 109 Wn.2d 207, 218, 743 P.2d 1237 (1987). Defendant Green, whose case was consolidated in Dunaway, shot a donut shop employee twice in the course of an armed robbery and then ran out of the store. The trial court justified doubling the standard range sentence on the basis of planning, sophistication, and cruelty. Dunaway, 109 Wn.2d at 210. On appeal, this court held that the defendant's planning did not justify an exceptional sentence because it had already been considered in the premeditation element of attempted first degree murder. The court ruled out sophistication, too, but only because Green's acts did not "evince the elevated degree of sophistication necessary to justify an exceptional sentence." Dunaway, 109 Wn.2d at 219.
Joice's argument suggests that a court could never rely on the aggravating factor of a high degree of sophistication or planning to support an exceptional sentence for an offense that requires proof of premeditation as an element. This proposition would be inconsistent with State v. Wood, 57 Wn. App. 792, 790 P.2d 220 (1990). In Wood, the defendant had plans to kill her husband and she discussed them with several people over the course of a year. Eventually one of the people she discussed her plans with agreed to shoot Wood's husband. After the shooting, Wood called 911 to report that a prowler had killed her husband. Wood was convicted of first degree premeditated murder. The trial court imposed an exceptional sentence after finding that she committed the crime with a high degree of planning or sophistication. Fully cognizant of Dunaway, this court affirmed the exceptional sentence, concluding that the planning the defendant conducted over a long period of time was "qualitatively and quantitatively different from the basic premeditation required for first degree murder." Wood, 57 Wn. App. at 801. Joice does not cite or attempt to distinguish Wood.
Under both Wood and Dunaway, either planning or sophistication can be an aggravating factor for a crime requiring premeditation so long as it is "high degree." Here, the elaborate nature of Joice's planning distinguished his conduct from the premeditation that inheres in attempted first degree murder as it was committed in the course of the donut shop robbery in Dunaway. The purchase of quiet ammunition, the construction of homemade silencers and a radio scanner, the disguise, the rental car ruse, and the effort to create an alibi all indicate a high degree of sophistication and planning. We conclude this factor justified the exceptional sentence.
Joice argues that the speed with which the police were able to identify him as the shooter necessarily means that he did not act with sophistication. We reject this argument. His scheme to avoid detection is properly characterized as highly sophisticated, even though it did not work.
Finally, Joice argues that the court should have revised the jury instruction for planning or sophistication to ensure that the jury narrowed their consideration "to facts other than the facts relied upon in reaching their verdict." Joice did not propose a written limiting instruction in this vein. Joice did verbally ask the court to consider adding language to require planning or sophistication "beyond that necessary to prove the crime or the offense."
Appellant's Brief at 65.
[DEFENDANT]: And your Honor, I did have one proposal to add language, and I think this is just applied in what the aggravator means, and that we could add language that would read, the offense involves a high degree — excuse me, sophistication or planning beyond that necessary to prove the crime or the offense.
COURT: Beyond that necessary to prove.
[DEFENDANT]: The offense. And the reason being, your Honor, is that because premeditation is an element of the crime of both attempted murder I and murder I, and the legislature is clear that this is supposed to be something above and beyond that which is required to complete the crime, and that's why we're talking about exceptional sentence, that there are exceptional reasons to give an exceptional sentence, and that by adding the language, beyond that necessary to prove the crime, it just clarifies for the jury that we're just not talking about oh, we've already decided premeditation.
COURT: I think you hit the problem with Blakely square on, counsel, because you're assuming that the jury knows that aggravators are beyond — or beyond a certain level of your, shall we say, generic offense of whatever it is that's been charged and there's been a conviction found. And I don't know if the legislature intended to ensure that level of understanding of more than, and here you're using the qualifier beyond that. I have concerns because there's nothing in the legislature's intent that a jury would be instructed as to the degree or relative comparative value or quality of the crime in relationship to other crimes of that nature.
Report of Proceedings, December 14, 2006 at 170-71.
After some continued discussion, however, the court decided not to use Joice's proposed language.
[COURT]: So I'm going to leave this and try to mirror what I know is already statutorily approved and legislatively dictated in our post- Blakely era.
Report of Proceedings, December 14, 2006 at 175.
On appeal, Joice returns to this discussion and characterizes it as "the court's adamant refusal to instruct the jurors they could not consider guilt-phase evidence at the aggravating circumstances phase" of the trial. This is an inaccurate characterization of the instruction Joice orally proposed. Further, even if Joice had proposed an instruction preventing the jury from using guilt-phase evidence during the sentencing phase, the trial court would have properly refused to give it. There was no requirement pre- Blakely for exceptional sentences to be supported by different evidence than what was introduced to prove guilt, and there is no such requirement post- Blakely either.
Br. of Appellant at 66 n. 13.
Joice contends that without such an instruction, the jury might have believed "planning or sophistication" was equivalent to premeditation, and since they had already found premeditation, they may have believed no further deliberation was necessary. This argument more closely tracks what Joice argued below when he orally requested that the instruction be modified so that the jury would have to find sophistication or planning "beyond that necessary to prove the crime." There may have been no harm in adding this language but we are not persuaded it was necessary for Joice to argue his theory of the case. As discussed above, the phrase "high degree of sophistication or planning was not vague as applied to Joice. The jury had previously been instructed that premeditation means "thought over beforehand . . . the law requires some time, however long or short, in which a design to kill is deliberately formed." Nothing in this record would lead jurors to believe that "high degree of sophistication or planning" was the same concept as premeditation, even though there was an overlap in the evidence proving both. That the planning was sufficiently distinct from the premeditation required to prove the offense is a legal question we have already addressed.
Instruction No. 11, guilt phase.
The trial court did not err when it imposed an exceptional sentence based on the jury's finding that the offense was committed with a high degree of planning or sophistication.
In summary, the search warrant affidavits established a nexus between the criminal activity and the places to be searched. The trial court did not err when it denied Joice's proposed lesser included offense instructions. And, finally, the trial court properly imposed an exceptional sentence based on the jury's finding that aggravating circumstances were present.
Affirmed.