Appeal from Superior Court of Whatcom County. Docket No: 92-1-00218-6. Date filed: 07/08/93.
Authored by Faye C. Kennedy. Concurring: William W. Baker, Mary K. Becker.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Bruce Mulligan appeals his conviction of one count of first degree murder, contending, inter alia, that the trial court erred in basing the imposition of his exceptional sentence on the impact of the crime on the victim's young children. Although we affirm Mulligan's conviction, we agree that the impact of the murder on the victim's children, who were not present at the time of the crime, was not a legally sufficient basis for the imposition of the exceptional sentence. We thus reverse Mulligan's exceptional sentence and remand for the imposition of a standard range sentence. *fn1
On January 1, 1992, Bruce Mulligan and his wife Kimberly went elk hunting in the woods of rural Whatcom County, where Kimberly died from a single gunshot wound to the chest. During the ensuing 3 months, police actively investigated; on March 6, 1992, the State charged Mulligan with one count of first degree murder. The first trial, presided over by Judge Moynihan, commenced on January 19, 1993, and, after 5 weeks, ended in a mistrial when the jury was unable to reach a verdict. The second trial, presided over by Judge Swedberg, commenced on May 10, 1993; after 8 weeks of trial, Mulligan was found guilty as charged.
The standard range sentence was 240 to 320 months. The State requested an exceptional sentence of 640 months relying, in part, on the aggravating factor of the impact of Kimberly's murder on her two young children. The record reflects that the two children, who were 5 and 9 years of age, respectively, at the time of their mother's death, were separated and placed with new families residing in different towns, after Mulligan was arrested. Kimberly's son resides in a foster home while her daughter lives with relatives. Kimberly had been the children's primary caretaker. The trial Judge agreed that the impact of the crime on Kimberly's children was substantial and compelling. He thus imposed an exceptional sentence of 420 months, concluding:
1. The Defendant's actions have deprived the children of their mother and have had a profound and permanent impact on them.
2. The Defendant's actions have also deprived the children of his company and support as their father.
3. The impact that the killing of Kimberly Mulligan would have on her children was foreseeable to the Defendant before he killed her.
4. The impact on the children is of such a distinctive nature that it is not normally associated with the commission of murder in the first degree.
5. The impact that the Defendant's actions have had on the children is an Aggravating Factor justifying an exceptional sentence under the Sentencing Reform Act of 1981, RCW 9.94A, et. seq. This timely appeal followed.
Mulligan contends that the trial court erred in basing the imposition of the exceptional sentence on the impact of the crime on Kimberly's young children. He argues that the impact on the children does not distinguish this murder from others in the same category, and it is thus not the type of aggravating factor that justifies a sentence outside the standard range.
The Sentencing Reform Act of 1981 (SRA) created presumptive sentencing ranges for most felonies based on the seriousness of the crime and the defendant's criminal history. RCW 9.94A.320-.360; State v. Oxborrow, 106 Wash. 2d 525, 529, 723 P.2d 1123 (1986). A sentencing court may impose an exceptional sentence outside the standard range if it finds "that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). See also State v. Grewe, 117 Wash. 2d 211, 214, 813 P.2d 1238 (1991). RCW 9.94A.390 provides a nonexclusive list of aggravating factors which the court may consider in imposing an exceptional sentence. Upon appeal of an exceptional sentence, a reviewing court must reverse the sentence if it finds:
(a) Either that the reasons supplied by the sentencing Judge are not supported by the record which was before the Judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient. RCW 9.94A.210(4). See also State v. Scott, 72 Wash. App. 207, 213, 866 P.2d 1258 (1993), aff'd, 126 Wash. 2d 388, 894 P.2d 1308 (1995); State v. Ross, 71 Wash. App. 556, 561-62, 861 P.2d 473 (1993), 883 P.2d 329 (1994).
In this case, Mulligan challenges the legal sufficiency of the aggravating factor relied upon by the trial court. An aggravating factor is legally sufficient to justify the imposition of an exceptional sentence as long as the factor was not necessarily considered by the Legislature in establishing the standard range, and as long as the factor is "'sufficiently substantial and compelling to distinguish the crime in question from others in the same category.'" Scott, 72 Wash. App. at 214-15 (quoting Grewe, 117 Wash. 2d at 216). Here, contrary to Mulligan's argument that "there was no specific showing of trauma to either Mulligan child", there is ample evidence in the record of the devastating disruption suffered by the children as a consequence of the murder of their mother. They lost not only the companionship of their mother and father, but of each other, as well. Following Mulligan's arrest, the children, who were 9 and 5 at the time of their mother's death, were separated and placed with new families. Kimberly's son resides in a foster home while her daughter lives with relatives. Even Mulligan's trial counsel candidly admitted that "there definitely was an impact" on the children as a result of Kimberly's death.
We also perceive that the murder of one parent by the other parent may be even more traumatic to a young child than would be the murder of a parent by a stranger or an acquaintance. Psychiatrists have studied children who have lost one parent at the hands of the other, and have made the following observations:
Many of the children had suffered multiple losses; they had lost not only their mother, but their father, other relations, home possessions, school, friends and community. They had to live with their shame at [sic] being the children of a killer, and with their guilt of not being able to prevent the killing.
Traumatized and bereaved, they then have to adjust to life with a new family who may be strangers to them, or if related, not well known.
Relatives themselves might be grief stricken or ashamed of the part their kin played in the death and therefore not fully available to the children to care for them in their need. They may be parted from their brothers and sisters, blamed for the tragedy, and certainly have to cope with the curiosity of their peers as well as the adjustment to [a] new school and neighborhood. Dora Black et al., Where Father Kills Mother: Helping Children Move From Trauma To Grief (1993). Sadly, it is reasonable to infer that the experiences of the Mulligan children mirror many if not most of the psychiatrists' observations.
Despite the devastating impact suffered by the children in this case, to affirm this exceptional sentence would be effectively to create a rule that an exceptional sentence is justified any time one parent of minor children murders the other parent. Such a rule must come from the Legislature, not from the courts. Unfortunately, cases of spousal homicide are not rare; we cannot say as a matter of law that the Legislature did not consider cases of one parent of minor children killing the other parent when setting the standard range for first degree murder. As our Supreme Court has recognized:
Determination of crimes and punishment has traditionally been a legislative prerogative, subject to only very limited review in the courts. A belief on the part of the judiciary that sentencing possibilities are inadequate goes to the wisdom of the Dispositional standards and cannot be enough to overcome the legislatively prescribed range of punishment. State v. Freitag, 127 Wash. 2d 141, 144-45, 896 P.2d 1254 (1995) (quoting State v. Bryan, 93 Wash. 2d 177, 181, 606 P.2d 1228 (1980). See also State v. Manussier, 129 Wash. 2d 652, 667-68, 921 P.2d 473 (1996), cert. denied, 137 L. Ed. 2d 709, 117 S. Ct. 1563 (1997).
Moreover, virtually every murder is devastating to the family of the victim. Many members of such families, adults and minor children alike, may suffer from irrational feelings of guilt at not, somehow, having prevented the murder; such is the human condition a fact presumably considered by the Legislature in setting the standard range for first degree murder.
Impact to third parties, particularly children, does, in some instances, justify an exceptional sentence. See, e.g., State v. Cuevas-Diaz, 61 Wash. App. 902, 905-07, 812 P.2d 883 (1991); State v. Barnes, 58 Wash. App. 465, 475, 794 P.2d 52 (1990), aff'd in part, rev'd in part on other grounds, 117 Wash. 2d 701, 818 P.2d 1088 (1991). But the better reasoned cases allowing for exceptional sentences based on third-party impact take into consideration the fact that the third parties were forced to witness the actual criminal act, e.g., State v. Johnson, 124 Wash. 2d 57, 75-76, 873 P.2d 514 (1994) as well as the increased culpability of the defendant, who knew or should have known of the presence of third parties and the probable extraordinary impact they would suffer, e.g., Cuevas-Diaz, 61 Wash. App. at 905-07; Barnes, 58 Wash. App. at 475.
Mulligan did not force the children to witness the murder of their mother. Although the devastating impact of this crime certainly was foreseeable by Mulligan, the devastating impact of all such crimes was equally foreseeable by the Legislature when it set the standard range for first degree murder. Accordingly, we are constrained to conclude that the sentencing court erred in basing Mulligan's exceptional sentence on the impact of the crime on Kimberly's young children. We thus reverse the exceptional sentence and remand for the imposition of a standard range sentence.
A majority of the panel having determined that the remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports but will be filed for public record in accord with RCW 2.06.040, it is so ordered.
Mulligan next contends that Judge Moynihan erred in declaring the first trial to be a mistrial, resulting in double jeopardy, and that Judge Swedberg erred in admitting evidence of Mulligan's prior bankruptcy and in allowing his second wife to testify as to the reason for their divorce, during the second trial. He also contends that prosecutorial misconduct, as well as cumulative error, resulted in an unfair second trial. Finally, in his pro se supplemental brief, Mulligan contends that Judge Moynihan erred in permitting the jury to separate during jury deliberations for the first trial, and that Judge Swedberg erred in denying Mulligan's motion for a mistrial following the second trial, based upon ineffective assistance of counsel and governmental misconduct. Finding no reversible error, we affirm Mulligan's conviction.
I. Declaration of Mistrial On Friday, February 19, 1993, at the Conclusion of a 5 week trial, the State's first case against Mulligan went to the jury. The State's theory had been that Mulligan premeditated Kimberly's murder because he disliked her, and for financial gain from the $650,000 in insurance policies he took out on her life in the months preceding the killing. The defense theory was that Kimberly died as the result of an unfortunate hunting accident, when the muzzle-loaded, homemade rifle she was carrying accidentally discharged as she tripped over a log. After deliberating for 2-1/2 hours on Friday, and a full day on Saturday, the jury foreman informed the bailiff that the jury was unable to reach a decision. When the foreman confirmed for the court that the jury was evenly divided and had been unable to reach a verdict, Judge Moynihan inquired: "Do you believe at this time that further deliberations would result in a verdict one way or another?" The foreman responded: "We haven't made any progress today." The Judge then stated: "What I would really like to do and what I'm going to ask you to do is go home and come back and try again on Monday morning. If after deliberating Monday you're unable to reach a verdict, then we'll declare a hung jury."
After releasing the jury for the remainder of the weekend, the Judge told counsel that they would have the opportunity to be heard before any final decision regarding a mistrial was made. The Judge agreed with the State's concern that given the length of the trial "just one day [was] not enough."
On Monday, February 22, after morning deliberations, the Judge indicated to counsel that the jury remained deadlocked and that he intended to excuse them. The prosecutor objected, stating:
I know from my position because of the length of trial I would like to see them held until 4:30 today. If we don't have a decision, if they indicate they're at a point of deadlock, then perhaps that would be the time to actually make that declaration. But I believe it should be at least till 4:30 today. Defense counsel joined in the prosecutor's objection, stating: "I would concur at least with that, if not a little [bit] longer, into tomorrow." Expressing preliminary agreement with counsel's objections, the court called the jury back into the courtroom, and again asked whether further deliberations would result in a verdict. The foreman responded: "No. It's the opinion of this group of people that we will not be able to form a unanimous opinion." The court then instructed the jury: "I'm going to have you go back in at least until 4:00 or 4:30 this afternoon. Then come in and we'll ask the question again."
At about 4:30 on Monday afternoon, the Judge called both counsel back into court. The prosecutor stated that he was "not sure if it would be worthwhile at this point to continue any longer." Defense counsel similarly noted that the jury was "obviously . . . deadlocked," but requested that the court nonetheless instruct the jury to continue deliberations without a deadline. The court rejected defense counsel's request, concluding that further deliberations could result in a coerced verdict. After calling the jury back into court, the Judge again inquired whether the foreman felt that further deliberations would result in a verdict. The foreman responded: "No, sir. I do not feel that at all." When a poll revealed that each juror agreed that further deliberations would not result in a verdict, the court declared a mistrial.
Mulligan now contends that the trial court erred in declaring a mistrial. He argues that by its impermissible comments, the court improperly influenced the jury to fail to reach a verdict in violation of CrR 6.15(f)(2). He asserts that his second trial was thus barred by the state and federal double jeopardy clauses.
Both the United States and the Washington State Constitutions protect defendants against double jeopardy. State v. Carson, 128 Wash. 2d 805, 821, 912 P.2d 1016 (1996). In addition to prohibiting a second prosecution for the same offense after conviction or acquittal, these constitutional proscriptions protect the "'valued right [of the defendant] to have his trial completed by a particular tribunal.'" State v. Jones, 97 Wash. 2d 159, 162, 641 P.2d 708 (1982) (quoting Arizona v. Washington, 434 U.S. 497, 503 n.11, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)). Thus, because jeopardy has been held to attach after the jury is impaneled and sworn and the first witness has answered the first question, the double jeopardy clause may preclude a second prosecution when a defendant's trial has been terminated by a mistrial. Jones, 97 Wash. 2d at 162.
Our Supreme Court has cautioned that the prohibition of a second prosecution following a ...