State v. Houston-Sconiers

Melnick, J. ¶ 1 — Zyion Houston-Sconiers and Treson Roberts were jointly prosecuted for a series of robberies and other crimes committed on Halloween when they were both under the age of 18. They appeal their convictions, arguing that the “automatic decline” statute, RCW 13.04.030, which mandated that they be tried as adults and not juveniles, is unconstitutional under recent federal Eighth Amendment 439 jurisprudence. In the published portion of this opinion, we hold that RCW 13.04.030 does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. ¶ 2 In the unpublished portion of this opinion, we address Houston-Sconiers’s and Roberts’s additional arguments, including that (1) the trial court violated their right to confront witnesses against them by admitting an out-of-court statement made by a witness who did not testify at trial; (2) insufficient evidence supported their assault in the second degree convictions and all of their firearm sentence enhancements; (3) prosecutorial misconduct deprived them of a fair trial; and (4) the trial court erred by imposing discretionary legal financial obligations (LFOs) without considering their individual ability to pay. ¶ 3 Additionally, Houston-Sconiers asserts in a personal restraint petition (PRP) that the trial court erred by refusing to grant him an evidentiary hearing on his motion to suppress evidence, by depriving him of his right to be present at every critical stage of the trial, and by denying his proposed missing witness instruction. He also makes additional allegations of prosecutorial misconduct. ¶ 4 We hold that admittance of the challenged out-of-court statement did not violate Houston-Sconiers’s and Roberts’s right to confront witnesses against them because the statement was nontestimonial; sufficient evidence supports their assault convictions and all of their firearm sentence enhancements; prosecutorial misconduct did not deprive them of a fair trial; and, the trial court did not err by imposing discretionary LFOs because it engaged in the required individualized inquiry about Houston-Sconiers’s and Roberts’s ability to pay. Accordingly, we affirm the trial court. We also deny Houston-Sconiers’s PRP. 440 FACTS RCW 13.04.030—“Automatic. Decline” Statute ¶ 5 Houston-Sconiers and Roberts were charged with and ultimately convicted of numerous crimes, including multiple robberies in the first degree. At the time they committed the crimes, Houston-Sconiers and Roberts were 17 and 16 years old respectively; however, they were tried in adult court because of the nature of the offenses with which they were charged. See RCW lS.CH.OSCKlXeXvXC).1 Adult court had exclusive jurisdiction over them. ¶ 6 Houston-Sconiers was convicted of six counts of robbery in the first degree, one count of assault in the second degree, one count of conspiracy to commit robbery in the first degree, and one count of unlawful possession of a firearm. The jury specially found that Houston-Sconiers was armed with a firearm during five of the six robberies, the assault, and the conspiracy. Roberts was convicted of four counts of robbery in the first degree, one count of assault in the second degree, and one count of conspiracy to commit robbery in the first degree. The jury specially found that Roberts was armed with a firearm during those crimes. ¶ 7 The trial court followed the State’s recommendation and sentenced Houston-Sconiers to an exceptional sentence of zero months’ confinement for each count. It imposed the mandatory 372 months’ confinement for the seven firearm sentence enhancements. The trial court also followed the State’s recommendation with respect to Roberts. It sentenced him to an exceptional sentence of zero months’ confinement for each count. It imposed the mandatory 312 months’ confinement for the six firearm sentence enhancements. 441 ANALYSIS ¶ 8 Houston-Sconiers and Roberts argue that the automatic decline statute in combination with statutorily mandated sentencing enhancements violate both the due process clause2 and the Eighth Amendment to the United States Constitution. They specifically argue that juveniles are treated like adults without an individualized inquiry into the nature of the offenses and the maturity of the juveniles. ¶ 9 Houston-Sconiers and Roberts acknowledge that our Supreme Court has previously upheld the automatic decline statute’s constitutionality in In re Boot, 130 Wn.2d 553, 925 P.2d 964 (1996), but they argue that the reasoning on which the court relied has been rejected. They rely primarily on a series of United States Supreme Court cases that address how the Eighth Amendment’s ban on cruel and unusual punishment applies to sentencing juveniles: Roper v. Simmons, 543 U.S. 551, 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); and Miller v. Alabama, _ U.S. _, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). ¶ 10 In Roper, the Court held that the Eighth Amendment prohibits courts from imposing the death penalty for crimes committed while a juvenile. 543 U.S. at 568. Then in Graham, the Court held that the Eighth Amendment prohibits a court from imposing a sentence of life without parole on a juvenile offender for a crime that is not a homicide. 560 U.S. at 82. Two years later, in Miller, 132 S. Ct. at 2460, the Court held that mandatory life-without-parole sentences for juvenile offenders also violates the Eighth Amendment. Miller requires courts to engage in “individualized consideration” of juvenile offenders facing 442 life in prison without the possibility of parole. 132 S. Ct. at 2469-70. According to the Court, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller, 132 S. Ct. at 2469. The Supreme Court recognized three general differences between juveniles and adults. First, juveniles lack maturity and have an underdeveloped sense of responsibility, which leads to “recklessness, impulsivity, and heedless risk-taking.” Miller, 132 S. Ct. at 2464. Second, juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings. Third, the character of a juvenile is not as well formed as that of an adult; a juvenile’s actions are less likely to be evidence of irretrievable depravity. Miller, 132 S. Ct. at 2464. ¶ 11 Houston-Sconiers and Roberts contend that these cases undermine Boot’s Eighth Amendment analysis. In Boot, our Supreme Court held that the automatic decline statute did not violate the Eighth Amendment, or either procedural or substantive due process under the federal constitution. 130 Wn.2d at 568-72. Because the defendants had neither been tried nor sentenced, the court concluded it could not scrutinize the case under the Eighth Amendment’s ban on cruel and unusual punishment. Boot, 130 Wn.2d at 569. The court proceeded to state that the only possible Eighth Amendment issue before it related to the claim that adult court jurisdiction in and of itself constitutes punishment. Boot, 130 Wn.2d at 569. Our Supreme Court noted that although the parties advanced no support for such an assertion, if they did, they would have to contend with the contrary holding of State v. Massey, 60 Wn. App. 131, 803 P.2d 340 (1990). Boot, 130 Wn.2d at 569. In Massey, we rejected an Eighth Amendment challenge to a life imprisonment without parole sentence for a 13 year 443 old. 60 Wn. App. at 145-46. We reasoned that the test for whether a sentence is cruel and unusual under the Eighth Amendment balances the crime committed and the sentence imposed but does not consider the defendant’s age. Massey, 60 Wn. App. at 145. ¶ 12 Eighth Amendment jurisprudence has evolved since Boot and Massey. It is now clear that age may be considered in an Eighth Amendment challenge. Graham, 560 U.S. at 76. Although we recognize the referenced portion of Massey is no longer good law, the remainder of the court’s analysis in Boot is still valid. In other words, a successful Eighth Amendment challenge to the automatic decline statute still requires a defendant to show that this method of asserting adult court jurisdiction, in and of itself, is punishment; however, Houston-Sconiers and Roberts do not make this showing. ¶ 13 Boot also held that application of the automatic decline statute does not violate the substantive due process rights of defendants. 130 Wn.2d at 571-72. Houston-Sconiers and Roberts argue that Roper, Graham, and Miller undercut Boot’s holding that the automatic decline statute does not violate substantive due process. Neither Roper, Graham, nor Miller considered due process arguments; therefore, they do not undermine Boot’s holding on substantive due process.3 444 ¶ 14 Houston-Sconiers and Roberts’s entire argument is that Boot is undermined. Even if Boot’s rationale is undermined to a degree that Boot no longer controls, Houston-Sconiers and Roberts would still need to demonstrate that their sentences violated the Eighth Amendment, either because the sentences were grossly disproportionate to all the circumstances of the particular cases, i.e., the gravity of the offenses is grossly disproportionate to the sentence, or because the sentences fit within a categorical restriction that is based on the nature of the offense or the characteristics of the offender. See Graham, 560 U.S. at 59-60; see also Miller, 132 S. Ct. at 2463. Houston-Sconiers and Roberts never explain how their sentences violate due process or the Eighth Amendment’s prohibition against “cruel and unusual” punishment. U.S. Const, amend. VIII. ¶ 15 We reject Houston-Sconiers and Roberts’s assertion that Roper, Graham, and Miller stand for the proposition that any sentencing statute that automatically treats a juvenile the same as an adult is unconstitutional. Roper, Graham, and Miller do not prohibit adult court from exercising exclusive jurisdiction over older juveniles who commit robbery in the first degree. Nor do they prohibit juveniles from being subject to generally applicable criminal sentencing laws unless they implicate the death penalty, life without the possibility of parole for non-homicide crimes, or mandatory life without the possibility of parole for any juvenile offenders. 445 ¶ 16 In so holding, we are aware that the legislature’s enactment of the automatic decline statute predated much of the research and data relied on by the Supreme Court in Roper, Graham, and Miller. “These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure.” State v. O’Dell, 183 Wn.2d 680, 692, 358 P.3d 359 (2015) (footnotes omitted). We are also aware that many of these factors are not present in this case. Although it may be time for the legislature to take another look at the automatic decline statute, we recognize it is the role of the legislative branch of government to make these types of policy decisions. We join the Illinois Supreme Court in urging our legislature to review our automatic decline statute utilizing current scientific and sociological evidence, which indicates a need for the exercise of judicial discretion in determining the appropriate setting for juvenile cases. That court stated: We do, however, share the concern expressed in both the Supreme Court’s recent case law and the dissent in this case over the absence of any judicial discretion in Illinois’s automatic transfer provision. While modern research has recognized the effect that the unique qualities and characteristics of youth may have on juveniles’ judgment and actions, the automatic transfer provision does not. Indeed, the mandatory nature of that statute denies this reality. Accordingly, we strongly urge the General Assembly to review the automatic transfer provision based on the current scientific and sociological evidence indicating a need for the exercise of judicial discretion in determining the appropriate setting for the proceedings in these juvenile cases. People v. Patterson, 2014 IL 115102, 25 N.E.3d 526, 553, 388 Ill. Dec. 834 (citations omitted), reh’g denied (Jan. 26, 2015), cert. denied, 136 S.Ct. 399 (2015). ¶ 17 Unlike the defendants in Roper, Graham, and Miller, Houston-Sconiers and Roberts were not sentenced to 446 death or life without the possibility of parole. On the contrary, the trial court exercised its discretion and imposed exceptional sentences well below the standard ranges. It sentenced Houston-Sconiers and Roberts to zero months’ confinement for the crimes themselves and imposed confinement for only the mandatory firearm sentence enhancements. ¶ 18 Houston-Sconiers received a sentence of 372 months’ confinement for the mandatory firearm sentence enhancements on six counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, one count of assault in the second degree, and one count of unlawful possession of a firearm. Roberts received a sentence of 312 months’ confinement for the mandatory firearm sentence enhancements on four counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, and one count of assault in the second degree. ¶ 19 The trial court sentenced both Houston-Sconiers and Roberts to confinement well short of the most severe punishments at issue in Roper (death penalty), Graham (life without parole), and Miller (life without parole). Houston-Sconiers and Roberts fail to show that their sentences, which were exceptional sentences below the standard range, constitute cruel and unusual punishment or otherwise violate the Eighth Amendment or due process. ¶ 20 In light of the presumption of constitutionality accorded to our legislature’s enactments, State v. Jorgenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013), we hold that application of RCW 13.04.030(1)(e)(v) along with mandatory sentence enhancements does not violate the Eighth Amendment under the dictates of Roper, Graham, and Miller. We affirm. ¶ 21 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder 447 shall be filed for public record in accordance with RCW 2.06.040, it is so ordered. Johanson, C.J., concurs. Footnotes [1] Under RCW 13.04.030(l)(e)(v)(C), adult court has exclusive jurisdiction over juveniles who are 16 or 17 years old on the date of the alleged offense when they commit certain alleged offenses, including robbery in the first degree. [2] Houston-Sconiers and Roberts make no arguments relying on the state constitution; therefore, we will only consider federal constitutional law. See In re Boot, 130 Wn.2d 553, 570 n.9, 925 P.2d 964 (1996). [3] However, we note that Boot's substantive due process analysis does appear to be based on the outdated understanding that juveniles’ lessened culpability was relevant only in capital cases. The defendant in Boot relied on Thompson v. Oklahoma, 487 U.S. 815, 838, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988), in which the United States Supreme Court held that the Eighth Amendment prohibited the execution of a person who was under 16 years old at the time of his or her offense. Boot, 130 Wn.2d at 571. The Thompson Court also endorsed the proposition that juveniles are less culpable than adults who commit comparable crimes. 487 U.S. at 835. Our Supreme Court concluded that the Thompson reasoning applied only to capital cases and refused to apply it to crimes not calling for the death penalty because the death penalty was thought to be qualitatively different from a sentence of imprisonment, even life imprisonment without parole. Boot, 130 Wn.2d at 572. Since Boot, the United States Supreme Court has incrementally expanded the Thompson rationale to categorically ban the death penalty for crimes committed as a juvenile, life without parole for a non-homicide crime 444 committed as a juvenile, and mandatory life without parole sentences for any juvenile offenders. Miller, 132 S. Ct. at 2460; Graham, 560 U.S. at 76; Roper, 543 U.S. at 568-75. Although the United States Supreme Court has expanded categorical restrictions on certain punishments for juveniles due to evolving standards of decency, the expansions are narrow and focus on the most severe punishments: the death penalty and life without the possibility of parole. Life-without-parole sentences “ ‘share some characteristics with death sentences that are shared by no other sentences.’” Miller, 132 S. Ct. at 2459 (quoting Graham, 560 U.S. at 69). Therefore, Boot's substantive due process analysis is still valid, i.e., the special treatment of juveniles is limited to the express categorical rules espoused by the United States Supreme Court.