State v. Brush: What is a “prolonged period of time”? That’s up to the jury…

In 2004, the United States Supreme Court, in Blakely v. Washington, held that for a judge to sentence a defendant above the standard sentencing range established by the state sentencing guidelines, a jury, not a judge, has to find the facts supporting the aggravating factor.  In response, the legislature established a number of aggravating factors which will effect their sentence. In a new case, State v. Brush, our Supreme Court addressed one of the aggravating factors established by the legislature’s “Blakely fix”–repetitive domestic violence.

Juries may find this aggravating factor if 1) the defendant and victim were members of the same household, and 2) the offense was part of an ongoing pattern of psychological abuse manifested by multiple incidences over a prolonged period of time.

In Brush, a jury found the defendant guilty of first degree murder of his wife along with the aggravating factor of domestic violence. The trial court imposed an exceptional sentence based on this aggravating factor. However, the Supreme Court overturned the exceptional sentence and remanded the case back to the trial court because the trial court used a jury instruction that defined a “prolonged period of time” as “more than a few weeks.”  The Supreme Court held that this was an improper comment on the evidence because it was the jury’s job to resolve factual issues and that they should have been allowed to determine themselves what constituted a “prolonged period of time.”

The error in the jury instruction dates back to a misinterpretation of a previous case, State v. Barnett, which held a few weeks was not a prolonged period of time, but did not hold that more than a few weeks was sufficient to be a prolonged period of time.  In fact, Barnett suggested that a period of a year or more was likely required.