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State v. Moen

Court of Appeals of Washington, Division 2

July 31, 2018

STATE OF WASHINGTON, Respondent,
v.
CLEON ORVILLE MOEN, Appellant.

          Worswick, J.

         Cleon Orville Moen appeals his conviction for aggravated first degree murder and his sentence to mandatory life imprisonment without the possibility of parole. Moen argues that the trial court abused its discretion by denying his midtrial motion to excuse a juror and that his sentence under RCW 10.95.030(1) violates the constitutional prohibition against cruel punishment. Moen raises several additional issues in his Statement of Additional Grounds (SAG) for Review. We affirm Moen's conviction and sentence.

         FACTS

         I. Background

         In 2014, Moen was charged with fourth degree assault against his wife, Michelle.[1]Michelle testified at the trial. The trial resulted in a hung jury. Immediately after the trial, Moen attempted to commit suicide by shooting himself in the head with a shotgun in the courthouse parking lot. Moen sustained a number of injuries as a result of the gunshot.

         Soon after, Moen filed for divorce and moved out of the residence he shared with Michelle. Later, Michelle filed a motion to hold Moen in contempt for failing to make required property and maintenance payments. After Moen was served with notice of Michelle's motion, he hid in a trailer located on Michelle's property. Moen waited for Michelle to leave the home and broke into the residence. When Michelle returned, Moen struck her in the head with an axe. A struggle ensued, and Moen strangled Michelle to death with an electrical cord.

         After strangling Michelle, Moen attempted to commit suicide by asphyxiating himself. The police apprehended Moen, and the State charged him with aggravated first degree murder.[2]Moen was 73 years old.

         II. Trial

         At trial, witnesses testified to the above facts. During a break on the first day of trial, juror 4 notified the bailiff that Moen's family had contacted her to establish long-term care for Moen after his gunshot injuries. Juror 4 was the executive director of an assisted living facility. The trial court questioned juror 4:

THE COURT: Okay. So why don't you tell us what happened or what information you learned . . . .
JUROR: I don't recall if it was the family that first came to us or if we received paperwork from the hospital with medical information about the gunshot wound. I didn't realize that until it was mentioned this morning that there was a gunshot wound. And the family did come in shortly after that looking for placement. I only met family. We did not take him. We didn't feel that that was the right care for him.
THE COURT: Okay. So the family that came in, do you remember who the family members were?
JUROR: I don't, no.
THE COURT: How many people, any idea?
JUROR: I want to say it was one, maybe two.
THE COURT: Maybe two people? And do you have an estimate about the time that you spent with them?
JUROR: Maybe a half-hour, if that.
THE COURT: Okay. And do you recall any information that they may have shared related to why the care needed to be or just any background information?
JUROR: The only thing that I recall is that the family was looking for placement because of the gunshot wound.
THE COURT: . . . [D]id you gain information or learn any information about Mr. Moen, the circumstances of how the gunshot was inflicted or the circumstances surrounding it?
JUROR: Just that it happened outside the courthouse.
[MOEN]: . . . Because it was Mr. Moen's family members, I mean, would you feel now that you'd have to convict him because you'd have to bend ...

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