State of Washington v. Gary Brandon Ault

Summary

The Washington Court of Appeals, Division Three, affirmed Gary Brandon Ault’s convictions and sentence for aggravated first degree murder and related felonies. The court held that an aggravator instruction’s omission of language stating that the burglary must have begun before the killing was a clarification issue rather than omission of an essential element, and that the unpreserved claim was waived. The court also rejected Ault’s ineffective assistance claim because he failed to show prejudice.

Holdings

1. The omitted sentence stating that the burglary must have begun before the killing was not an additional element of the aggravating circumstance. It merely clarified the meaning of the instruction's language requiring that the murder occur in the course of, in furtherance of, or in immediate flight from burglary. Because the omission was not constitutional instructional error, Ault's failure to object waived appellate review.
2. Ault failed to establish ineffective assistance of counsel because he did not show a reasonable probability that an objection and a clearer instruction requiring the burglary to begin first would have changed the outcome.

Questions Presented

1. Whether the aggravated first degree murder instruction omitted an essential aggravator element by failing to state that the burglary had to begin before the killing.
2. Whether the failure to object to the aggravator instruction constituted ineffective assistance of counsel.

Disposition

affirmed