PORT ORCHARD - A Kitsap County jury found Daniel J. Mustard guilty of murdering 87-year-old Ruby Andrews, but jurors couldn’t agree on whether the crime was premeditated.
Mustard, 19, sat quietly Tuesday afternoon as Kitsap County Superior Court Judge Leila Mills read the jury’s verdict: That he was guilty of first- and second-degree murder and first-degree robbery in the stabbing death of Andrews on April 5, 2009, at her Puget Drive home.
But since the jury couldn’t agree on whether Mustard was guilty of premeditated murder, he has a chance at being sentenced to less than life in prison. Mustard’s sentencing is scheduled for Feb. 11, 2011.
"We’re very happy with the verdict," Deputy Prosecutor Kevin Kelly said. "We know it was a difficult case for jurors and an emotional case on both sides. But I hope this brings some type of peace and closure to the Andrews family."
Mustard’s attorney, Bryan Hershman, said he was pleased at the premeditated murder verdict.
"On the other hand, the Andrews are still without Ruby, my client is without his parents," he said.
Members of the Andrews and Mustard families wept when Mills read the verdict.
During the seven-week trial, prosecutors argued that Mustard killed Andrews during a "robbery that went haywire." While they acknowledged Mustard suffered from a "mental disease," prosecutors said he had no symptoms of psychosis the day of the murder.
Hershman argued that Mustard was under psychosis due to a "psychotropic cocktail" of drugs doctors had prescribed for him. Less than two weeks before Mustard killed Andrews, staff at Harrison Medical Center had recommended he be committed because he was a danger to himself and others.
"Had the medical field done what it was supposed to do on the 25th of March (2009), this whole tragedy would’ve been avoided," Hershman said.
Late last week, Mills agreed with a prosecution argument that an insanity defense shouldn’t be allowed in the case.
A defense expert, Dr. Mark Whitehill, had testified that Mustard did not have a "moral appreciation" of the crime he was committing. Mills ruled that lacking a "moral appreciation" doesn’t meet the state’s legal definition of insanity, which requires a defendant to lack the ability to understand the "nature and quality" of the act.
Hershman based most of his case on an insanity defense.
"That was a total curveball," said juror Jeff Turnberg, a South Kitsap man who works as a technician for the Federal Aviation Administration.
And if jurors had been allowed to consider insanity?
"We would probably still be deliberating," said juror Kathy Campbell, a teacher who lives in Port Orchard.
Hershman vowed an appeal. He said the state’s legal definition of insanity is ambiguous and hoped the case could serve to clarify it — specifically, the definition of "nature and quality."
"I think that the fact that the Legislature hasn’t defined, and no court defined, ’nature and quality’ — I can’t imagine a better fact pattern for the appellate courts to consider," he said.
Jurors said they deliberated at length on the definition of "premeditation." Three of the 12 jurors were against convicting on the premeditated murder charge.
But the jury found unanimity on three other counts: first-degree felony murder, second-degree murder and first-degree robbery. "Felony" murder occurs when someone is killed while another felony is being committed — in this case, burglary and robbery.
Jurors also returned what are known as special allegations — that he was armed with a deadly weapon and that Andrews was a particularly vulnerable victim — that will allow Mills to go above a standard range prison term.
So Mustard still faces up to a life sentence in February.
Jurors felt nationally known psychiatrist Park Dietz, who has analyzed high-profile defendants including the Unabomber and many serial killers, was "clear and lucid" in his analysis on behalf of prosecutors that Mustard understood the "nature and quality" of the act. They also did not believe the county’s payment of at least $96,000 for his testimony diminished his credibility.
Seven weeks-plus of serving together gave jurors plenty of time to get to know one another. Friendships were made, some jurors said, and e-mail addresses were exchanged.
Charlie Wise, a Poulsbo man who works for Kitsap Regional Library, said he’s been on four juries and his experience this time was "the smartest, most professional," of them.
They carefully weighed the issues, said juror Kelvin Claney, a Bainbridge Island man and juror who is the CEO of a direct marketing company.
"This was not a rollover jury," he said.