Verdict in murder trial

Jerry Upson has been sentenced to life without parole for murdering Kenneth Simmons on Oct. 28, 2023.

A jury found Upson guilty of first-degree murder Nov. 8.

At a hearing Dec. 17, Judge Daniel Goodell handed down the mandatory sentence for Upson under the state Persistent Offenders Accountability Act, or “three strikes” law.

The law, passed by a voter initiative in 1994, requires life without parole for those convicted of three serious felonies.

Upson immediately appealed the verdict and sentence.

Upson was seen on surveillance video with a handgun entering and leaving the victim’s home numerous times the day before Simmons’ body was discovered, according to the probable cause document filed by the Mason County Sheriff’s Office.

Simmons’ brother Martin called police Oct. 28 after driving to Simmons’ house on East Mikkelsen Road and found him on the couch “cold to the touch, with an apparent gun shot wound to the head,” the document states.

Simmons was dying of colon cancer, according to his brother, who regularly looked in on him.

Sheriff patrol units did not find a gun or spent shell casings and called detectives out to investigate. Police obtained a search warrant for surveillance cameras at Simmons’ home and observed a man, later identified as Upson, with what police say was the murder weapon.

Prosecutors played the video for jurors at trial.

After the verdict, Upson’s attorney requested a new trial after learning that during deliberations, jurors “zoomed up on the video and they could clearly see Mr. Upson’s hands,” according to the motion.

Angela Avery, Upson’s attorney, said zooming in on the surveillance video “was the subject of extensive argument during trial” when the jury was out of the courtroom and Goodell ruled zoomed in video would not be allowed, the motion states.

“The jury inadvertently committed jury misconduct by viewing evidence explicitly ruled inadmissible by the court,” according to the motion.

Avery also said a juror told her the video was the “main deciding factor” in finding Upson guilty.

Prosecutors said in a court filing opposing the motion that it was filed more than 10 days after the verdict, which is prohibited, and said there was no jury misconduct.

“At the heart of defendant’s motions is his desire for an attorney and investigative services at public expense to contact and interview the jurors that found him guilty in search for a basis to collaterally challenge the judgment against him. In his motions, defendant has referenced a conversation with one or more of the jurors that convicted him, after the verdicts had been rendered and accepted by the Court and after the jury had been discharged. There is no evidence of any external influence or other juror misconduct in the case,” according to the response to the motion.

Goodell denied Upson’s motion for a new trial.

Before sentencing, Avery and co-counsel Rose Boughton filed a motion to find the Persistent Offender Accountability Act unconstitutional.

Upson is considered a persistent offender under the act because he was convicted of two counts of first-degree robbery of a financial institution in Mason County Superior Court in 2003 and first-degree robbery of a financial institution in Grays Harbor Superior Court in 2013.

“There is no evidence that the three strikes laws reduce crime by deterring criminal activity or by incapacitating people who have committed multiple crimes. Studies also show that these laws have no measurable impact on crime rates overall in the jurisdictions where they are enacted. Washington State is no exception,” the motion states.

At Dec. 17’s sentencing hearing, Boughton told the court under the act, most serious offenses include second-degree assault, which Boughton said is a “bar fight.”

She said merely causing a bruise can be considered Assault 2.

There was “no violence or weapons” used by Upson when he committed bank robberies, she said.

Boughton also said Upson was 22 and had a “juvenile brain” when he committed the first bank robbery.

She said brain science has evolved since 2002.

“There is no switch that happens at age 18,” Boughton said.

Broughton said the act was inconsistent.

“The third bar fight or the third murder. They are looking at the same sentence,” she said.

Mason County Prosecutor Michael Dorcy told Goodell the statute is clear and Upson knew he had two prior strikes.

“Mr. Upson is here to be sentenced for what he did now,” he said, and asked Goodell to impose the required sentence of life without parole.

Goodell ruled from the bench that the act is constitutional, and Upson qualifies as a persistent offender, citing case precedence.

Simmons’ daughter, Marcy Bayon, addressed the court via Zoom before sentencing.

She said she knew her dad was on “borrowed time,” due to his cancer diagnosis, but Upson took away her chance to say goodbye.

“I hope my dad’s face is the last thing you see every night,” she told Upson.

“I hope he haunts you,” she said.

Simmons’ daughter Kacey Simmons attended the hearing and also spoke to Upson.

“We know you killed him. Don’t shake your head,” she said to Upson, who was reacting.

Upson spoke to the courtroom after Simmons’ family.

“I didn’t go in and shoot Mr. Simmons,” he said.

“Sure, I may have walked out with a gun,” he added. “I didn’t do it.”

After imposing sentence, Goodell told Upson he hoped he would make positive choices in prison.

“Even in a prison setting, there’s a value to life,” Goodell said.