No. 17007-1-III

State of Washington, Respondent,
v.
Barry D. Loukaitis, Appellant

Filed November 16, 1999

Appeal from Superior Court of Grant County

SCHULTHEIS, C.J.  

Fourteen-year-old Barry Loukaitis stormed his eighth grade algebra class, killed two students and a teacher, and wounded a third student.  He was convicted in a jury trial of aggravated murder, assault and kidnapping, and he was sentenced to life without parole.  On appeal he challenges the juvenile court's decision to decline jurisdiction and contends he is entitled to reversal due to the prosecutor's conflicts of interest, the admission of his post-arrest statements, and the admission of other prejudicial evidence.  He also assigns error to the trial court's orders amending the information and to his sentence.  We affirm.

Facts

On Friday, February 2, 1996, Frontier Junior High School in Moses Lake started two hours late due to intense cold weather.  All classes were shortened to make up for the delay.  Mr. Loukaitis did not attend morning classes.  Instead, he armed himself with his father's 30/30 lever-action rifle, a .22 revolver and a .25 semiautomatic pistol.  All three guns were loaded.  He strapped to his chest and waist three belts of additional ammunition and packed a speed loader for the revolver.  Over this arsenal he wore a long black trench coat with the inside pocket removed so that he could carry the rifle unseen.  Thus armed, he walked to school.

Outside his fifth period algebra class, Mr. Loukaitis cocked the lever-action rifle.  He then stepped into the room, shot Manuel Vela almost point blank, and then shot Arnold Fritz and Natalie Hintz as they tried to drop to the floor beside their desks.  When the teacher, Leona Caires, exclaimed, "No, no," Mr. Loukaitis turned and shot her in the back as she tried to hide behind her desk.  Mr. Vela and Ms. Caires died almost instantly.  Mr. Fritz, shot through the chest, stood up and walked to the back of the classroom, then lay on the floor and struggled to breathe.  Ms. Hintz, injured in the arm and chest, fell to the floor and began to scream.

Mr. Loukaitis backed into a corner of the room blocked from the windows and door.  The school physical education teacher, Jonathon Lane, heard the gunshots and ran into the classroom.  When he saw Mr. Loukaitis holding the rifle, Mr. Lane dived behind the teacher's desk.  Mr. Loukaitis told him to stand up or he would shoot another student.  Mr. Lane stood up and then asked Mr. Loukaitis if Ms. Hintz could be removed from the room.

Eventually, Mr. Loukaitis allowed Mr. Lane to help Ms. Hintz out the door and later let out a diabetic girl having blood sugar problems.  When a student called out that Mr. Fritz was in bad shape, Mr. Loukaitis said something like, "Just let him die," but then allowed Mr. Lane and two other students to drag Mr. Fritz out of the room.

By this time, the police had been summoned and were attempting to talk with Mr. Loukaitis through the door.  Mr. Loukaitis calmly began to organize the class.  He read off the class roll and told the students one by one to arrange themselves in seats at the back of the room.  He seemed irritated by the police interruptions, yelled that he would start killing people if the officers did not shut up, and threw the telephone to the floor when the police called.  At one point he told the class, "This sure beats the hell out of algebra, doesn't it?"

After the class was organized, Mr. Loukaitis said he needed a hostage because of snipers.  He then pulled out a black plastic bag, fixed it over the end of the rifle muzzle with rubber bands, and told Mr. Lane to put it in his mouth.  Mr. Lane resisted.  With repeated urging, he pretended to comply, grabbed the gun barrel, pinned Mr. Loukaitis against the wall, and yelled for the students to run.

As the students rushed out of the room, the police pushed through them and tackled Mr. Loukaitis.  The officers handcuffed Mr. Loukaitis, removed his guns and ammunition, read him his rights and took him to the station. In a later search of the scene, they discovered earplugs Mr. Loukaitis had worn during the shootings.  After giving a taped interview to the police, Mr. Loukaitis went to his cell, curled up on his bunk, and fell asleep with a blanket over his head.  Mr. Fritz died later that day at the hospital. Ms. Hintz underwent extensive surgery and survived, although she almost lost her arm and remains impaired.

On February 5, 1996, Mr. Loukaitis was charged in the juvenile department of the Grant County Superior Court with 3 counts of first degree aggravated murder.  RCW 10.95.020; RCW 9A.32.030(1)(a).  Defense motions to seal the record were denied and the State moved to decline juvenile court jurisdiction.  After various continuances, the declination hearing was held in September 1996, and juvenile court jurisdiction was declined.  The information filed September 27 in adult court added 1 count of first degree assault to the charges.  On October 31, the State filed an amended information containing 22 counts, including 16 counts of kidnapping and 1 count of attempted murder.  Two more amendments followed, one in August 1997 and another during trial in September 1997.

Trial was held in King County from August 15 to September 24, 1997. The jury found Mr. Loukaitis guilty of 2 counts of first degree aggravated murder (Mr. Vela and Mr. Fritz), 1 count of second degree murder (Ms. Caires), 1 count of first degree assault (Ms. Hintz), 16 counts of first degree kidnapping and 1 count of second degree assault (Mr. Lane).  All counts included a firearm enhancement.  He was sentenced to life imprison ment without parole.  This appeal followed.

Prosecutorial Conflict of Interest

When Mr. Loukaitis was first arrested, his parents contacted attorney Garth Dano and hired him on retainer to represent their son.  In March 1996 Mr. Dano moved the court to appoint him as defense counsel at public expense and requested funds for an associate counsel, expert witnesses and an investigator.  Mr. Dano estimated the costs to defend the case would amount to $100,000.  At the hearing on the indigency motion, Grant County Prosecutor John Knodell explained to the court that the county had awarded a defense contract to The Defenders, a firm headed by Douglas Earl.  The court appointed The Defenders as Mr. Loukaitis's counsel and retained Mr. Dano as co-counsel.

Two days later, Mr. Dano moved to vacate the assignment of the case to The Defenders.  He requested a Wenatchee private attorney to serve as his co-counsel.  At the hearing on the motion, Mr. Knodell argued against appointment of Mr. Dano.  He explained to the court that The Defenders had contracted to defend all criminal cases in Grant County for a set fee.  Any extraordinary expenses beyond the contract limits would be paid by the taxpayers.  Mr. Earl wanted to use his own attorneys and refused to pay Mr. Dano's salary.  Agreeing with Mr. Knodell that the taxpayers should not have to shoulder the expense for Mr. Dano, the court told Mr. Dano he could continue in his "appearance" as second counsel, but did not authorize payment of his fees.

Over the next several months, Mr. Dano continued to move the court to remove The Defenders as counsel and to appoint him, citing the Loukaitises' lack of trust in The Defenders and the high volume of cases already assigned to the contract defenders.  In hearing after hearing, from March to November 1996, Mr. Knodell successfully opposed the motions to remove The Defenders.  Finally, in December 1996, the trial court appointed a King County private attorney - Michael Frost - to defend Mr. Loukaitis, and allowed Mr. Frost to hire an associate counsel.  

In a June 1997 defense motion for expert services, Mr. Knodell opposed appointment of more psychiatric witnesses.  In response, Mr. Frost argued that the prosecutor had a conflict of interest.  Mr. Knodell could obstruct legitimate funds for expert witnesses in his role as legal advisor to the county, noted Mr. Frost.  This role in turn directly conflicted with Mr. Knodell's duty to be an impartial criminal prosecutor.  The trial court authorized additional funds for psychiatric evaluations and investigative services.

The question before this court is whether Mr. Knodell's role as county legal advisor impermissibly conflicted with his role as prosecutor in this case.  Mr. Loukaitis contends Mr. Knodell's efforts to contain defense costs interfered with and sabotaged his right to consistent, effective counsel.

Juvenile criminal defendants are entitled to counsel at public expense when they demonstrate a need.  Former JuCr 9.2(c) (1996); RCW 13.40.140. The Sixth Amendment right to counsel does not, however, grant a defendant the right to choose any particular advocate.  State v. Lopez, 79 Wn. App. 755, 764, 904 P.2d 1179 (1995) (citing Wheat v. United States, 486 U.S. 153, 159 n.3, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988) and State v. DeWeese, 117 Wn.2d 369, 375-76, 816 P.2d 1 (1991)).  Only the trial court has discretion to substitute counsel, after inquiring carefully into the defendant's reasons for dissatisfaction with the appointed attorney. DeWeese, 117 Wn.2d at 376; Lopez, 79 Wn. App. at 764-65.  The role of the prosecutor in this process is to represent the interests of the State, including careful regulation of the costs in all criminal cases.  RCW 36.27.020(3), (7); State v. Hull, 78 Wn.2d 984, 988, 481 P.2d 902 (1971). Further, the prosecutor acts as a legal advisor to the county in matters relating to official business.  RCW 36.27.020(1), (2); Osborn v. Grant County, 130 Wn.2d 615, 625-27, 926 P.2d 911 (1996).  In this latter role, Mr. Knodell helped draft the defense contract with The Defenders and advised the court as to the contract's provisions.

It is not difficult to imagine that these many "hats" of the Grant County Prosecutor might create a conflict of interest, especially in a high profile criminal case that could seriously tax the annual operating funds of both the prosecutor's and the public defender's offices.  A prosecutor is a quasi-judicial officer who must be disqualified from a case if his or her interest in the defendant's case materially limits the ability to prosecute a matter impartially.  State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096 (1969); State v. Ladenburg, 67 Wn. App. 749, 751, 840 P.2d 228 (1992).  

In this case, however, Mr. Knodell's opposition to the appointment of Mr. Dano at public expense does not demonstrate "interest" in Mr. Loukaitis's case that materially conflicted with his ability to prosecute the case impartially.  The trial courts at each stage of the proceedings examined Mr. Loukaitis's dissatisfaction with The Defenders and ultimately appointed outside counsel that provided effective representation at trial.  The decisions to appoint The Defenders and later to appoint Mr. Frost belonged to the court, not to the prosecutor. Accordingly, we find no conflict of interest.

Declination of Juvenile Jurisdiction

Before the juvenile court conducts a hearing on the merits of a criminal case, the prosecutor, the juvenile or the court may file a motion requesting the court to decline jurisdiction and to transfer the juvenile for adult prosecution.1  RCW 13.40.110(1); State v. Oreiro, 73 Wn. App. 868, 871, 871 P.2d 666 (1994).  In matters involving felony charges, the declination hearing must be held within 14 days after the information is filed unless the court for good cause extends the time.  JuCr 8.1(b); Oreiro, 73 Wn. App. at 871.  Mr. Loukaitis's declination hearing was finally held about seven months beyond the date required by JuCr 8.1(b). Review of the proceedings that led up to the hearing indicates the delay was the result of numerous continuances requested by defense counsel and unexplained silence during other periods.

On February 5, 1996, the State filed the information charging Mr. Loukaitis with 3 counts of aggravated first degree murder and moved to decline juvenile court jurisdiction.  On the same date, Mr. Loukaitis moved to continue the declination hearing at least a month.  The court denied the defense motion and set the hearing for February 20, 14 days after the information was filed.  (February 19 was not included in the computation because it was an official court holiday.)  

On February 16, defense counsel filed a motion to have the two county superior court judges and the commissioner recuse themselves.  When one judge refused to recuse himself on February 20, defense counsel filed an affidavit of prejudice.  Another judge then assumed the bench that day and defense counsel renewed his recusal motion.  Defense counsel then requested a continuance so a visiting judge could decide the recusal motion.  The continuance was granted and on February 26 the visiting judge denied the recusal motion.  The declination hearing was reset, without objection, for March 25.

On March 7, 1996, defense counsel moved for a continuance to April 15 or for dismissal of the motion for the declination hearing.  The declination hearing finally began on April 15, but was interrupted after a few days when the trial court granted the defense motion to seal the proceedings.  Cowles Publishing Company and the State sought discretionary review and the Court of Appeals stayed the proceedings on April 19.  On July 2, the Court of Appeals reversed the order sealing the proceedings. State v. Loukaitis, 82 Wn. App. 460, 918 P.2d 535 (1996).  Thereafter, the declination hearing was set, without objection, to continue on August 19. Before that date, the State and Mr. Loukaitis filed a joint motion to disqualify the judge.  On August 8, the trial judge recused himself and the parties were informed the next day that Judge Michael Cooper would conduct the declination hearing.  The parties held a status conference on August 22, Mr. Loukaitis refused to agree with his counsel's request for a third continuance, and the hearing was set for August 26.  Mr. Loukaitis filed a motion to dismiss on August 22, on the grounds that the time to hold a declination hearing had expired.  At court on August 26, however, Mr. Loukaitis changed his mind and asked for a continuance until September 23, 1996.  The hearing was finally completed in late September.

Not all of the transcripts from all of the hearings held February to September 1996 are contained in the record, but those available indicate Mr. Loukaitis's attorneys requested continuance after continuance to pursue dismissal of The Defenders, closure of the declination hearing to the public, and additional time for preparation.  He appears to argue on appeal that the continuances do not meet the requirements of JuCr 8.1(b) because the court failed to use the magic words "for good cause."  He does not, however, claim that the court abused its discretion in granting the continuances, and we find no indication in the record the continuances were granted for anything but good cause.  See State v. Guloy, 104 Wn.2d 412, 428, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Colbert, 17 Wn. App. 658, 664, 564 P.2d 1182 (the trial court has discretion to grant continuances that allow defense counsel time to prepare), review denied, 89 Wn.2d 1010 (1977).

Mr. Loukaitis further contends the record does not support the juvenile court's decision to decline jurisdiction.  RCW 13.40.110(2) allows the juvenile court to transfer a case to adult court upon a finding that declination would be in the best interest of the juvenile or the public. The court's decision is discretionary and we will reverse only for manifest abuse of that discretion.  State v. Stevenson, 55 Wn. App. 725, 735, 780 P.2d 873 (1989), review denied, 113 Wn.2d 1040 (1990).

When making its decision, the juvenile court must address the eight standards set out in Kent v. United States, 383 U.S. 541, 566-67, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966): (1) the seriousness of the charged offense and whether protection of the community requires prosecution in adult court; (2) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against persons or property; (4) the prosecutive merit of the case; (5) whether the defendant had an adult accomplice; (6) the defendant's sophistication and maturity; (7) the defendant's prior record; and (8) the prospects for adequate protection of the public and rehabilitation of the juvenile in the juvenile system.  State v. Furman, 122 Wn.2d 440, 447, 858 P.2d 1092 (1993); State v. Holland, 98 Wn.2d 507, 515, 656 P.2d 1056 (1983).  The court's findings must be supported by a preponderance of the evidence produced at the declination hearing.  State v. Toomey, 38 Wn. App. 831, 834, 690 P.2d 1175 (1984), cert. denied, 471 U.S. 1067 (1985).  Recognizing that the Kent factors are only intended to provide focus and guidance to the juvenile court, we do not require that each factor must support declination.  Furman, 122 Wn.2d at 447.

Here, the juvenile court considered on the record each of the eight Kent factors.  It found that the factors supporting removal of the case to adult court included the facts that aggravated first degree murder and first degree assault are very serious offenses; the crimes were aggressively committed, premeditated and willful; the offenses were against persons; substantial evidence supports the charges; Mr. Loukaitis acted alone; and it is impossible to predict whether Mr. Loukaitis could be rehabilitated within the time available in juvenile detention.  Factors supporting retention of jurisdiction in the juvenile court included only that Mr. Loukaitis, while above average in intelligence, is no more sophisticated and mature than others of his age, and he had no prior criminal history.

Mr. Loukaitis assigns error to the court's findings on factor 8.  He contends his experts proved he would get the best psychiatric treatment in the juvenile system.  Some defense witnesses did testify that Mr. Loukaitis improved dramatically while taking lithium and asserted that the juvenile system provided better treatment.  Other experts, however, testified there was no scientific basis to predict his potential for future violence or rehabilitation.  Given this evidence, we find nothing to indicate the court's decision was clearly untenable or manifestly unreasonable.  Toomey, 38 Wn. App. at 834; see also Stevenson, 55 Wn. App. at 736-37 (the court found that the prospects for the defendant's rehabilitation within the time available in the juvenile system were highly speculative).

Admission of Pretrial Statements

On the day of the incident, after police disarmed and handcuffed Mr. Loukaitis, they led him to a patrol car and read him his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966).  According to one officer, Mr. Loukaitis seemed to listen, smiled and then said, "I know my rights, man."  He was strip-searched at the police station and led to an interview room.  

The interview, conducted by Sergeant Dave Ruffin, began almost immediately and ran for about 25 minutes.  Sergeant Ruffin first asked Mr. Loukaitis basic information about his identity and background.  During this phase of the interview, Mr. Loukaitis asked at one point if his parents had been notified.  The officer replied, "maybe that's something we can do here in a minute."  Sergeant Ruffin then read the Miranda rights, asking after each one if Mr. Loukaitis understood.  Mr. Loukaitis signed a form indicating he understood and waived each right and understood that his statements could be used in either juvenile or adult court.  Just before he signed, Mr. Loukaitis asked if his parents could be in the interview room.  He added, "I at least wanna talk to em."  The officer said, "I'll see if I can get your parents here{.}"  But before they started, Sergeant Ruffin added, they should finish the paperwork - in other words, sign the waiver.

After assuring the officer he was not tricked into making his statement, Mr. Loukaitis began to answer questions about the shootings. About halfway through the interview, Sergeant Ruffin asked Mr. Loukaitis if he wanted to call his parents.  Mr. Loukaitis responded that he might do that later.  The officer then asked if he wanted a lawyer.  Mr. Loukaitis indicated he did not see the point in calling one and said he did not like lawyers much.  Later, when again asked if he wanted to talk to his parents, Mr. Loukaitis replied that he wanted to let them know what was happening, but did not want them there.  According to the declaration of Mr. Dano accompanying his motion to suppress, Mrs. Loukaitis was present at the station and asked the police several times before the interview if she could see her son.

The trial court concluded that Washington law does not require a parent's consent when the juvenile understands and waives his rights.  On the basis of the taped interview, the signed statement of advice of rights and the testimony of officers and Mr. Loukaitis's mother, the court found that Mr. Loukaitis freely and intelligently waived his rights and the court denied the motion to suppress.  The November 1996 CrR 3.5 findings and conclusions in adult court essentially follow those made in juvenile court.

On appeal, Mr. Loukaitis contends he could not have made an intelligent, informed waiver due to his young age, his mental problems and his lack of prior criminal contacts with the police.  At a minimum, he argues, he needed a parent's advice during the interrogation.

In determining the voluntariness of a juvenile's confession, the "totality of the circumstances" test protects the juvenile's Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel.  Furman, 122 Wn.2d at 450-51; Dutil v. State, 93 Wn.2d 84, 87, 606 P.2d 269 (1980).  The totality approach mandates inquiry into all the circumstances surrounding an interrogation, including the juvenile's age, experience, capacity to understand the warnings given and awareness of the consequences of waiving his or her rights.  Furman, 122 Wn.2d at 450; Dutil, 93 Wn.2d at 88.  "If a juvenile understands that he has a right, after he is told that he has that right, and that his statements can be used against him in a court, the constitutional requirement is met." Dutil, 93 Wn.2d at 90.

On the basis of the trial court's unchallenged findings, the constitutional requirement is minimally met here.  Mr. Loukaitis was informed of his Miranda rights and he waived those rights before giving his statement.  He at no point requested an attorney or asserted his right to remain silent.  The interviewing officer asked him more than once if he wanted to stop, to talk to his parents or to talk to an attorney.  His initial request to talk to his parents apparently did not amount to a request for counsel.  Rather than indicating he sought advice or assistance, he simply stated he wanted to talk to them.  As noted in Dutil, a request to talk to a probation counselor does not, in itself, signify that the juvenile wants to confer with counsel, because a probation counselor could not be expected to give the same kind of advice as an attorney.  Dutil, 93 Wn.2d at 87-88.  The court must look at the age and experience of the juvenile to determine whether the request for his or her probation officer or parents amounts to an invocation of the right to remain silent.  Id. at 88.  Although we are disturbed that police refused to allow a 14-year-old's parent to attend his interrogation, Mr. Loukaitis's assurance that he understood his rights, his willingness to answer questions and his decision not to have his parents or an attorney in the interrogation room substantially support the conclusion of the trial court that he gave his statement freely, voluntarily and knowingly.

Admission of Other Evidence

Mr. Loukaitis assigns several errors to the trial court's evidentiary decisions.  He contends first that several items removed from his house - the book Rage, the video movie Natural Born Killers and his own poetry - were constitutionally protected free speech materials and could not be used as the basis for his criminal punishment.  Second, he contends the court erred in allowing a witness to testify that Mr. Loukaitis made threats a year earlier to kill Mr. Vela.  Finally, he argues that three lay witnesses were allowed to give impermissible opinion testimony about his mental state at the time of the shootings.

The trial court's decisions to admit or exclude evidence are given great deference and will not be overturned absent a manifest abuse of discretion.  State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 118 S. Ct. 1193 (1998).  Relevant evidence - that which has a tendency to make more or less probable the existence of any consequential fact - is generally admitted unless its probative value is substantially outweighed by the danger of unfair prejudice.  ER 401, 403; State v. Jones, 93 Wn. App. 166, 174, 968 P.2d 888 (1998) (citing State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987)), review denied, 138 Wn.2d 1003 (1999).  In an insanity defense, the relevant question is whether the mind of the accused was so affected at the time of the crime that he or she could not tell right from wrong.  State v. Kelly, 102 Wn.2d 188, 198, 685 P.2d 564 (1984).  

When a defendant has entered a plea of not guilty by reason of insanity, almost any evidence regarding the acts, conditions and conduct of the accused is relevant, whether it relates to the time of the offense or to a time before or after the offense.  State v. Johnson, 69 Wn.2d 264, 274- 75, 418 P.2d 238 (1966) (citing 1 Wharton, Criminal Evidence sec. 318, at 428 (11th ed. 1935)).  The court is granted wide latitude in the admission of evidence, because if a specific act does not indicate insanity, it may indicate sanity.  Kelly, 102 Wn.2d at 197-98.  With these standards in mind, we examine the evidence admitted in this case.

I.  Materials read, seen or written by the defendant.  

Rage, by Richard Bachman (the nom de plume of Stephen King), is a novel about a high
school boy who takes an algebra class hostage and kills two teachers. Police found a copy of the book in Mr. Loukaitis's closet and witnesses testified he liked to read Stephen King books.  At one point during his siege of the classroom, Mr. Loukaitis said, "This sure beats the hell out of algebra, doesn't it?"  A defense witness noted that the protagonist in Rage made a remarkably similar statement.  The movie Natural Born Killers was one of Mr. Loukaitis's favorites, witnesses testified, because it depicted random acts of violence.  He told one witness it would be fun to go on a killing spree and try to get away with it, like the characters did in the movie.  Only one State's witness testified that he had read some of Mr. Loukaitis's poetry, and he simply described it as "dark" and "scary."

On cross-examination of Dr. Julia Moore, the chief expert witness for the defense, the State asked her to explain the relevance of certain lines in Mr. Loukaitis's poetry.  Earlier, defense counsel had moved in limine to prevent the State from reading or admitting entire poems into the record. He did not object to reading or discussing parts of the poetry, however. The trial court granted the motion and ruled that the State could examine only the content of the poems.  Later, defense counsel objected to the admission of an exhibit offered by the State during the cross-examination of Dr. Moore: a blowup of Mr. Loukaitis's poetry.  Although the court overruled the objection, the exhibit was never actually used.  Neither the book, the movie, nor the poetry was allowed in the jury room.

With the exception of the limited objection to admission of the entire poems, Mr. Loukaitis did not object to the discussion of these materials in the State's direct or cross-examinations of witnesses.2  His failure to object precludes appellate review.  State v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69 (1996).  Further, Dr. Moore discussed the book, the movie, the poetry and a violent music video in her evaluation of Mr. Loukaitis's state of mind.  The defense strategy utilized these materials in establishing the insanity defense and cannot now say they were unfairly prejudicial.  As relevant evidence of Mr. Loukaitis's sanity or insanity, the materials were properly admitted.  Johnson, 69 Wn.2d at 274-75.

II.  Prior threats.  

During direct examination of a State's witness who had been a friend of Mr. Loukaitis, defense counsel objected when the prosecutor asked the friend if Mr. Loukaitis had talked about killing Mr. Vela the year before.  The basis for the objection, which was overruled, was that the evidence was too remote.  As noted, when an insanity defense is raised, all conduct of the defendant - whether before, during or after the crime charged - is potentially relevant to the defendant's state of mind.  Johnson, 69 Wn.2d at 274-75.  Prior threats to kill a victim are particularly relevant as rebuttal to the insanity defense.  Cf. id. (in connection with the insanity defense, the reputation of the defendant as quarrelsome was relevant to rebut the characterization that the defendant was passive).  Whether relevant evidence is too remote to be admitted is a determination left to the discretion of the trial court.  See State v. Gallo, 20 Wn. App. 717, 727, 582 P.2d 558, review denied, 91 Wn.2d 1008 (1978).  

The trial court here sustained an objection to testimony regarding Mr. Loukaitis's seventh grade year (two years prior to the incident), but allowed questions regarding his eighth and ninth grades.  Considering the defense theory that Mr. Loukaitis's mental problems began to manifest themselves during the eighth grade, and the latitude allowed when insanity is at issue, the trial court did not abuse its discretion in admitting evidence of these year-old threats.

III.  Lay opinion testimony.  

Mr. Loukaitis's final challenge to the trial court's evidentiary decisions regards witnesses who described his demeanor on the day of the incident.  A man who worked in Moses Lake testified he saw Mr. Loukaitis walking toward school that day with a "determined" look on his face.  One of the officers who arrested Mr. Loukaitis and accompanied him to the police station described him as "{v}ery sarcastic, calm, cold-blooded."3  Defense counsel objected to both statements as impermissible lay opinions of the defendant's demeanor.

Opinion testimony about a defendant's behavior is admissible if preceded by the proper foundation: the witness's personal observations of the defendant's conduct factually recounted, leading directly and logically to the observation.  State v. Craven, 69 Wn. App. 581, 586, 849 P.2d 681 (citing State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988)), review denied, 122 Wn.2d 1019 (1993).  The man who observed Mr. Loukaitis walking described the defendant's posture, gait and face and concluded he looked determined.  The officer based his opinion on observation of Mr. Loukaitis while he was being handcuffed, transported and booked.  Both opinions were admissible because they were properly based on factual observations by the witnesses.  Craven, 69 Wn. App. at 586; see also Day, 51 Wn. App. at 552 (detectives were allowed to testify that the defendant had shown little emotion when informed of his wife's death and that his reactions seemed inappropriate).

Amendments to the Information

Mr. Loukaitis next contends the three amendments to the information were granted without the proper procedure.  He also claims the later amendments prejudiced his defense.  The trial court may allow an information in a criminal case to be amended at any time before the verdict or the finding if substantial rights of the defendant are not prejudiced. CrR 2.1(d).  We review the grant of a motion to amend the information for abuse of discretion.  State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996).  Absent substantial prejudice to the defense, the trial court does not abuse its discretion by allowing an amendment.  State v. Ford, 125 Wn.2d 919, 928, 891 P.2d 712 (1995).

Mr. Loukaitis did not object to the amendments made in October 1996 and August 1997 and he is barred from challenging those amendments now. State v. Penn, 32 Wn. App. 911, 913, 650 P.2d 1111, review denied, 98 Wn.2d 1012 (1982).  He argues for the first time on appeal that the trial court erred in allowing each amendment without new affidavits of probable cause. We will not consider this issue either.  Id.  Although he objected to the final amendment during trial (before the State rested its case), he fails to establish any prejudice whatsoever to this or any of the amendments. The final amendment simply added the weapons enhancement to each count. Since it was clear from the outset that Mr. Loukaitis had used a rifle during the commission of each charged crime, the weapons enhancement was no surprise.  Further, a defendant who is misled or surprised by an amendment should move for a continuance to prepare the requisite defense.  State v. Collins, 45 Wn. App. 541, 551, 726 P.2d 491 (1986), review denied, 107 Wn.2d 1028 (1987).  No continuance was requested here because, apparently, none was needed.

Sufficiency of the Evidence

On the 2 counts of aggravated murder in the first degree, the jury reached a special verdict determining that the following aggravating factor of RCW 10.95.020 existed: "(10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person."  Mr. Loukaitis contends the evidence was insufficient to support this aggravating factor.

As with all challenges to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements beyond a reasonable doubt.  State v. Guloy, 104 Wn.2d 412, 417, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).  Mr. Loukaitis contends only a few witnesses testified that he had any animosity toward, motive against or premeditated desire to do harm to Ms. Caires or Mr. Fritz.  He argues their deaths were random, freak results of his mental illness, not evidence of a common scheme or plan.

Under the "multiple murders" aggravating factor of RCW 10.95.020(10), the murders can occur in two general ways: (1) the murderer could have planned to kill more than one person in a common scheme or plan; or (2) even without a plan, the murderer could have killed more than one person in a short period of time involving one continuous act.  Guloy, 104 Wn.2d at 419.  Both aspects of this aggravating factor are satisfied here.  First, Mr. Loukaitis reportedly stated on more than one occasion that he would like to go on a killing spree and see if he could get away with it.  The careful preparation for the murders indicates their nexus in a larger criminal design: multiple murders for revenge or excitement.  See State v. Pirtle, 127 Wn.2d 628, 661-62, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).  Second, the multiple murders occurred in a very short period of time and were closely related to each other.  In State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985), the court held it was a single act when the defendant shot his wife's sister and then went up the stairs to kill his wife.  The murders of Mr. Vela and Mr. Fritz occurred within minutes of each other and were committed during the burst of gunfire that followed Mr. Loukaitis's entry into the algebra class.  Under either aspect of RCW 10.95.020(10), the State presented more than sufficient evidence to support the multiple murders aggravating factor.

Sentencing

The trial court sentenced Mr. Loukaitis to life imprisonment without parole for the two aggravated first degree murder counts and the maximum terms for each of the other counts, ranging from 224 months on the second degree murder count (former RCW 9.94A.310, .320 (1996)) to 120 months on the second degree assault count (RCW 9.94A.310, .320).  These terms include five years for the firearm enhancement for each count except the second degree assault, which includes three years for the firearm enhancement. RCW 9.94A.310(3).  Each term was set to run consecutively to the others. Mr. Loukaitis asserts that the two consecutive life sentences constitute cruel and unusual punishment under the Eighth Amendment.  He also argues the trial court erred in imposing the firearm enhancements consecutively to each other.

Pursuant to RCW 9.94A.400(1)(b), when a person is convicted of two or more serious violent offenses arising from separate criminal conduct,4 the sentence range is computed by starting with the offense with the highest seriousness level - one of the aggravated first degree murder counts here. That offense is given an offender score based on the other prior and current offenses that are not serious violent offenses.  The other serious violent offenses are given offender scores of zero.  Each of the serious violent offense sentences must be served consecutively to the others.  RCW 9.94A.400(1)(b).  

Mr. Loukaitis's sentence follows the guidelines for serious violent offenses and other offenses found in RCW 9.94A.400(1).  His argument that consecutive life sentences are cruel and unusual when applied to a juvenile is without support in the law.  The Eighth Amendment prohibition against cruel and unusual punishment does not embody a consideration of the defendant's age, "only a balance between the crime and the sentence imposed."  State v. Massey, 60 Wn. App. 131, 145, 803 P.2d 340 (1990), cert. denied, 499 U.S. 960 (1991), cited with approval in In re Boot, 130 Wn.2d 553, 569-70, 925 P.2d 964 (1996).  As noted in Massey, the juvenile court's consideration of the penalties afforded in juvenile and adult adjudication leads to the decision to decline jurisdiction.  Once juvenile jurisdiction is declined, "there is no cause to create a distinction between a juvenile and an adult who are sentenced to life without parole{.}"  Massey, 60 Wn. App. at 145-46.  The bottom line is that the Eighth Amendment is not violated if a juvenile offender tried as an adult receives an adult sentence.  Boot, 130 Wn.2d at 570.  See also State v. Stevenson, 55 Wn. App. 725, 737-38, 780 P.2d 873 (1989), review denied, 113 Wn.2d 1040 (1990).

The trial court also correctly applied the firearm enhancements.  RCW 9.94A.310(3) provides that firearm enhancements are mandatory periods added to the presumptive sentence for felony crimes.  The statute further directs that the firearm enhancements "shall not run concurrently with any other sentencing provisions."  Former RCW 9.94A.310(3)(e) (1996).  Recently, in In re Post Sentencing Review of Charles, 135 Wn.2d 239, 255, 955 P.2d 798 (1998), the Supreme Court interpreted RCW 9.94A.310(3)(e) to mean that the firearm enhancements must run consecutively with their base sentences, but are not required to run consecutively with each other.  Mr. Loukaitis mistakenly asserts Charles is applicable here.  In Charles's consolidated cases, the trial courts imposed multiple exceptional sentences (each with a firearm enhancement) concurrently, but ran the firearm enhancements consecutively to each other as well as to their base sentences.  Unlike the sentences in Charles, Mr. Loukaitis's enhancements were not set to run consecutively with each other.  By definition, an enhancement is merely a statutorily mandated increase to the sentence range for each offense. Charles, 135 Wn.2d at 253.  The trial court added the firearm enhancements to each base sentence and was mandated by RCW 9.94A.400(1)(b) to run each full sentence for the serious violent offenses consecutively to the other. Because this is not an exceptional sentence, there is no reason to resort to the rules of RCW 9.94A.400(1)(a) regarding exceptional sentences.  See Charles, 135 Wn.2d at 254-55.

Cumulative Error

The final question is whether cumulative error denied Mr. Loukaitis a fair trial.  In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994).  Having found no errors, we answer no.

Affirmed.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

Schultheis, C.J.

WE CONCUR:

Kurtz, J.           Brown, J.

1 A declination hearing is mandatory in cases involving 15- to 17-year-olds charged with specific serious crimes.  RCW 13.40.110(1).

2 In its only other objection to these materials, defense counsel argued there was not a proper foundation for the particular version of Natural Born Killers used by the State.  No one knew whether Mr. Loukaitis had watched an abridged or a full version of the movie.  The objection was overruled, but the jury did not see any version of the movie.

3 Mr. Loukaitis contends "another witness" testified he looked like a robot.  He does not identify that witness and does not cite to the record. We could not find this testimony and therefore do not address it in the analysis.

4 Separate criminal conduct is distinct from "same criminal conduct," defined by statute as two or more crimes with the same criminal intent, committed at the same time and place, involving the same victim.  RCW 9.94A.400(1)(a).

Barry Dale Loukaitis