REPORT OF THE TRIAL JUDGE Aggravated First Degree Murder Case. Superior Court of CLARK County, Washington Cause No

Transcription

1 DATE FILED: 8/20/92 (to be indicated by Clerk of Supreme Court) Questionnaire approved for use pursuant to Laws of 1981, ch. 138, 12. REPORT OF THE TRIAL JUDE Aggravated First Degree Murder Case Superior Court of CLARK County, Washington Cause No State v. JAMES LEROY BRETT INSTRUCTIONS: Please answer each question. If you do not have sufficient information to supply an answer, please so indicate after the specific question. If sufficient space is not allowed on the questionnaire form for answer to the question, use the back of the page, indicating the number of the question which you are answering, or attach additional sheets. If more than one defendant was convicted of aggravated first degree murder in this case, please make out a separate questionnaire for each such defendant. The statute specifies that this report shall, within thirty (30) days after the entry of the judgment and sentence, be submitted to the Clerk of the Supreme Court, to the defendant or his or her attorney, and to the prosecuting attorney. 0125

2 - 2 - (1) Information about the Defendant JAMES LEROY (a) Name: BRETT, Last, First Middle Date of Birth: 10/6/69 Sex: M Marital Status: Never Married F Married Separated Divorced Spouse Deceased Race or ethnic origin of defendant: CAUCASIAN (Specify) (b) Number and ages of defendant's children: NONE (c) Defendant's Father living: Yes No If deceased, date of death: FATHER UNKNOWN Defendant's Mother living: Yes No If deceased, date of death: (d) Number of children born to defendant's parents: FOUR (e) Defendant's education--check highest grade completed: College: Intelligence Level: Low IQ Score: Medium RANE OF SEVERAL Above Average TESTS High Further explanation or comment: DEFENDANT OBTAINED HIS ED IN THE JUVENILE SYSTEM. HE PRIMARILY ATTENDED MAINSTREAM CLASSES WITH SPECIAL EDUCATION IN SOME AREAS.

3 - 3 - (f) Was a psychiatric evaluation performed: Yes No If yes, did the evaluation indicate that the defendant was: able to distinguish right from wrong? (i) Yes No able to perceive the nature and quality (ii) Yes No of his or her act? able to cooperate intelligently in his (iii) or her own defense? Yes No (g) Please describe any character or behavior disorders found or other pertinent psychiatric or psychological information: THERE WAS TESTIMONY THAT MR. BRETT S MOTHER DRANK DURIN HER PRENANCY WITH MR. BRETT. THE SYMPTOMS OF FETAL ALCOHOL SYNDROME AND ATTENTION DEFICIT DISORDER WERE PLACED BEFORE THE JURY AND THE ARUMENT WAS PRESENTED THAT MR. BRETT SUFFERED FROM THESE DISORDERS. (h) Please describe the work record of the defendant: LANDSCAPIN, FOOD SERVICE, ROCERY STORE CLERK. (i) If the defendant has a record of prior convictions, please list: Offense Date Sentence Imposed SEE ATTACHED PAE 4 (j) Length of time defendant has resided in: Washington: LIFE County of conviction: CLARK

4 JAMES LEROY BRETT D.O.B.: Records of Conviction CRIME COUNTY DATE OF INCIDENT DATE OF CONVICTION Burglary in the Second Degree Cowlitz 10/7/81 12/1/81 Extortion in the Second Degree Cowlitz 9/22/82 1/2/82 Theft in the Third Degree Cowlitz 10/21/83 1/6/84 Robbery in the First Degree Cowlitz 4/7/84 5/10/84 Kidnap in the First Degree King 3/17/85 6/20/85 Assault in the Second Degree King 3/17/85 6/20/85 Escape in the First Degree King 3/17/85 6/20/85 Escape in the First Degree Thurston 6/23/86 9/29/86 Attempted Escape in the First Degree Thurston 10/22/86 3/18/87 Escape in the First Degree King 7/26/87 3/16/88 Escape in the First Degree Pierce 12/14/88 3/2/89 Theft in the Third Degree Cowlitz 3/31/90 4/3/90 Simple Assault (Domestic Violence) Cowlitz 4/2/90 4/3/90 Theft in the Third Degree Cowlitz 10/29/90 4/16/91 (Shoplifting) Shoplifting Cowlitz 11/3/90 11/6/90

5 - 5 - (2) Information about the Trial SEE PAE 6 (a) How did the defendant plead to the charge of aggravated first degree murder?: uilty Not uilty Not uilty by reason of insanity (b) Was the defendant represented by counsel?: Yes No (c) Please indicate if there was evidence introduced or instructions given as to any defense(s) to the crime of aggravated first degree murder: Evidence Instruction(s) Excusable Homicide Justifiable Homicide Insanity Duress Entrapment Alibi Intoxication Other specific defenses:

6 IN THE WEEKS PRIOR TO DECEMBER 2, 1991, SHIRLEY MARTIN AND THE DEFENDANT, JAMES LEROY BRETT, PLANNED ON OIN TO A WEALTHY CLARK COUNTY NEIHBORHOOD FOR THE PURPOSE OF COMMITTIN A KIDNAP, ROBBERY, AND MURDER. THEY WERE OIN TO RANDOMLY SELECT VICTIMS BASED ON THEIR SUBJECTIVE BELIEF THAT THESE PEOPLE WERE WEALTHY. ON DECEMBER 3, 1991, THE DEFENDANT AND MARTIN WENT TO N.E. 29TH AVENUE, VANCOUVER, CLARK COUNTY, WASHINTON. NEITHER PERSON KNEW THAT THE ULTIMATE VICTIMS, PATRICIA AND KENNETH MILOSEVICH LIVED AT THIS PARTICULAR RESIDENCE. SHIRLEY MARTIN KNOCKED ON THE DOOR AND AFTER PAT MILOSEVICH CAME TO THE DOOR, MARTIN STATED SHE WAS HAVIN CAR TROUBLE AND NEEDED ASSISTANCE. MRS. MILOSEVICH WENT UPSTAIRS TO ET HER HUSBAND, KEN MILOSEVICH, WHO WAS ASLEEP AT THE TIME. HE CAME DOWNSTAIRS AND OPENED THE DOOR SLIHTLY. THEREAFTER, THE DEFENDANT AND MARTIN FORCED THEIR WAY INTO THE RESIDENCE. SHIRLEY MARTIN WAS ARMED WITH A DEADLY WEAPON, A KNIFE, AND JAMES LEROY BRETT WAS ARMED WITH A.410 CALIBER SINLE-BOLT ACTION SHOTUN WHICH THE DEFENDANT HAD PREVIOUSLY SAWED OFF. UPON AININ ENTRY INTO THE MILOSEVICH RESIDENCE, THE DEFENDANT DEMANDED MONEY FROM MR. MILOSEVICH. THE SHOTUN WAS AIMED AT MR. MILOSEVICH. SHIRLEY MARTIN ALSO HELD A KNIFE TO MRS. MILOSEVICH S NECK. MR. MILOSEVICH STATED TO THE DEFENDANT THAT HE AND HIS WIFE DID NOT HAVE ANY MONEY. DURIN THIS TIME THERE IS DISPUTED TESTIMONY THAT A LOUD AUDIBLE BURLAR ALARM WAS RININ. SAID ALARM, ACCORDIN TO SOME WITNESSES, RENDERED CONVERSATION DIFFICULT, IF NOT IMPOSSIBLE. WHILE DEMANDIN THE MONEY AT UNPOINT, THE DEFENDANT SHOT MR. MILOSEVICH IN THE CHEST WITH THE SHOTUN. THE DEFENDANT THEN ORDERED BOTH VICTIMS TO ET ON THEIR HANDS AND KNEES. MR. MILOSEVICH REFUSED TO COMPLY WITH THE DEFENDANT S ORDER. BOTH THE DEFENDANT AND MARTIN USED PHYSICAL FORCE ON KEN MILOSEVICH IN ORDER TO ET HIM TO COMPLY WITH THEIR DEMANDS. WHILE THEIR ATTENTION WAS ON MR. MILOSEVICH, MRS. MILOSEVICH WAS ABLE TO ESCAPE FROM THE DEFENDANTS, O TO A NEIHBOR S HOUSE, AND CONTACT THE POLICE. MRS. MILOSEVICH, PRIOR TO HER ESCAPE SAW HER HUSBAND SHOT BY THE DEFENDANT. THE DEFENDANT THEN RELOADED THE SHOTUN AND SHOT KEN MILOSEVICH A SECOND TIME IN THE BACK OF THE HEAD AT A VERY CLOSE DISTANCE. SHORTLY THEREAFTER, MARTIN AND THE DEFENDANT FLED THE CRIME SCENE AND RETURNED TO THEIR RESIDENCE IN COWLITZ COUNTY. ONCE THERE, THE DEFENDANT DISPOSED OF THE CLOTHIN HE WAS WEARIN BY DUMPIN IT INTO A SLOUH. THE MURDER WEAPON WAS ALSO DISPOSED OF AND HAS NOT YET BEEN RECOVERED.

7 - 5 - (d) If the defendant was charged with other offenses which were tried in the same trial, list the other offenses below and indicate whether defendant was convicted: Convicted FIRST DEREE FELONY MURDER Yes No Yes No Yes No Yes No (e) What aggravating circumstances, as set forth in Laws of 1981, ch , were alleged against the defendant and which of these circumstances were found to have been applicable?: Aggravating Circumstances Alleged 1. IN THE COURSE OF OR FURTHERANCE OF ROBBERY 1ST DEREE Yes Found Applicable No 2. COMMITTED TO CONCEAL IDENTITY Yes No 3. IN COURSE OF, IN FURTHERANCE OF OR IN IMMEDIATE FLIHT FROM BURLARY 1ST DEREE 4. IN COURSE OF, IN FURTHERANCE OF OR IN IMMEDIATE FLIHT FROM KIDNAP 1ST DEREE Yes Yes No No (f) Please provide the names of each other defendant tried jointly with this defendant, the charges filed against each other defendant, and the disposition of each charge: Name: NONE Offenses Charged Disposition

8 Name: Offenses Charged Disposition (3) Information Concerning the Special Sentencing Proceeding (a) Date of Conviction: 6/11/92 Date special sentencing proceeding commenced: 6/15/92 (b) Was the jury for the special sentencing proceeding composed of the same jurors as the jury that returned the verdict to the charge of aggravated first degree murder? Yes No If the answer to the above question is no, please explain: (c) Was there, in the court's opinion, credible evidence of any mitigating circumstances as provided in Laws of 1981, ch. 138, 7? If yes, please describe: Yes No

9 - 5 - (d) Was there evidence of mitigating circumstances, whether or not of a type listed in Laws of 1981, ch. 138, 7, not described in answer to (3)(c) above? Yes No If yes, please describe: MR. BRETT HAD POOR UPBRININ, MOTHER USED DRUS AND ALCOHOL. MR. BRETT HAD JUVENILE DIABETES WITH NO ADEQUATE FAMILY ASSISTANCE IN TREATIN THE DIABETES. MR. BRETT WAS ALLOWED TO DRINK AND PARTAKE OF DRUS FROM AE EIHT ONWARD. (e) How did the jury answer the question posed in Laws of 1981, ch. 138, 6(4), that is: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency? Yes No (f) What sentence was imposed? DEATH (4) Information about the Victim (a) Was the victim related to the defendant by blood or marriage? Yes No If yes, please describe the relationship: (b) What was the victim's occupation, and was the victim an employer or employee of the defendant? THE VICTIM WAS A BUYER WITH HI-SCHOOL PHARMACY. THE VICTIM HAD NO PRIOR RELATIONSHIP WITH MR. BRETT.

10 (c) Was the victim acquainted with the defendant, and if so, how well? THE VICTIM AND THE DEFENDANT WERE NOT ACQUAINTED. (d) If the victim was a resident of Washington, please state: Length of Washington residency: County of residence: ; 1988-PRESENT CLARK Length of residency in that county: 3 YEARS ( ) (e) Was the victim of the same race or ethnic origin as the defendant? Yes No If no, please state the victim's race or ethnic origin: (f) Was the victim of the same sex as the defendant? Yes No (g) Was the victim held hostage during the crime? Yes No If yes, for how long: (h) Please describe the nature and extent of any physical harm or torture inflicted upon the victim prior to death: THE VICTIM WAS SHOT ONE TIME IN THE UPPER BODY. HIS WIFE WITNESSED THE SHOOTIN. THE VICTIM THEN BEED FOR HIS LIFE AND THE DEFENDANT SHOT HIM AAIN, THIS TIME FROM A DISTANCE OF TWO TO FOUR FEET, THE SHOT WAS TO THE VICTIM S HEAD. WEAPON USED WAS A.410 SAWED OFF SHOTUN.

11 - 5 - (i) What was the age of the victim? 53 YEARS (j) What type of weapon, if any, was used in the crime?.410 CALIBER SAWED-OFF SHOTUN. (5) Information about the Representation of Defendant (If more than one counsel represented the defendant, answer each question separately as to each counsel. Attach separate sheets containing answers for additional counsel.) (a) Name of counsel: LEE DANE AND MICHAEL FOISTER (b) Date on which counsel was secured: 12/6/91 (c) Was counsel retained or appointed? If appointed, please state the reason therefor: APPOINTED (d) How long has counsel practiced law, and what is the nature of counsel's practice? DANE - PREDOMINANTLY CRIMINAL (75%) - 16 YEARS. FOISTER - SUBSTANTIAL CRIMINAL (60%) - 16 YEARS. (e) Did the same counsel serve at both the trial and the special sentencing proceeding, and if not, why not? YES

12 (6) eneral Considerations (a) Was the race or ethnic origin of the defendant, victim, or any witness an apparent factor at trial? Yes No If yes, please explain: (b) What percentage of the population of the county is the same race or ethnic origin as the defendant? Race Ethnic Origin Under 10% 10-25% 25-50% 50-75% 75-90% Over 90% If there appears to be any reason to answer this question with respect to a county other than the county in which the trial was held, please explain:

13 - 5 - (c) How many persons of the defendant's or victim's race or ethnic origin were represented on the jury? Defendant: 100% Victim: 100% Further explanation or comment: (d) Was there any evidence that persons of any particular race or ethnic origin were systematically excluded from the jury? Yes No If yes, please explain: (e) Was the sexual orientation of the defendant, victim, or any witness an apparent factor at trial? Yes No If yes, please explain:

14 (f) Was the jury specifically instructed to exclude race, ethnic origin, or sexual preference as an issue? Yes No (g) Was there extensive publicity in the community concerning this case? THE PUBLICITY PRIOR TO TRIAL WAS NOT EXTENSIVE. Yes No (h) Was the jury instructed to disregard such publicity? JURORS WITH PRIOR KNOWLEDE WERE EXCLUDED. Yes No (i) Was the jury instructed to avoid any influence of passion, prejudice or any other arbitrary factor when considering its verdict or its findings in the special sentencing proceeding? Yes No (j) Please describe the nature of any evidence suggesting the necessity for instructions of the type described in 6(f) through 6(i) above which were given: ALL PROFFERED EVIDENCE WHICH WAS PURELY INFLAMMATORY WAS EXCLUDED.

15 - 5 - (k) eneral comments of the trial judge concerning the appropriateness of the sentence, considering the crime, the defendant, and other relevant factors: MR. BRETT AND HIS ASSOCIATE HAD PLANNED FOR SOME TIME TO BREAK INTO THE HOME OF APPARENTLY WEALTHY PEOPLE AND ROB AND KILL THE OCCUPANTS. THE KILLIN WAS COLD-BLOODED, EXECUTION-LIKE AND WITH TOTAL DISREARD FOR OTHERS. CONSIDERIN THE CIRCUMSTANCES OF THE CRIME, THE JURIES DECISION WAS APPROPRIATE. (7) Information about the Chronology of the Case (a) Date of offense: 12/3/91 (b) Date of arrest: 12/5/91 (c) Date trial began: 5/26/92 (d) Date jury returned verdict: 6/11/92 (e) Date post-trial motions ruled on: 7/14/92 (f) Date special sentencing proceeding began: 6/15/92 (g) Date sentence was imposed: 7/14/92 (h) Date this trial judge's report was completed: 8/17/92 JAMES LADLEY TRIAL JUDE I INVITED INPUT FROM BOTH THE PROSECUTION AND DEFENSE. I DID NOT RECEIVE THEIR INFORMATION UNTIL 8/17/92.