State Of Wash. v. Turner

• Decision Date: 19 August 2010
• Docket Number: Nos. 81626-3, 82336-7.,s. 81626-3, 82336-7.
• Citation: 238 P.3d 461,169 Wash.2d 448
• Parties: STATE of Washington, Respondent, v. Guy Daniel TURNER, Petitioner. State of Washington, Respondent, v. Faulolua Faagata, Jr., Petitioner.
• Court: Washington Supreme Court

169 Wash.2d 448

238 P.3d 461

STATE of Washington, Respondent,

v.Guy Daniel TURNER, Petitioner.

State of Washington, Respondent,

v.Faulolua Faagata, Jr., Petitioner.

Nos. 81626-3, 82336-7.

Supreme Court of Washington,En Banc.

Argued Jan. 21, 2010.

Decided Aug. 19, 2010.

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, Dino G. Sepe, Attorney at Law, Tacoma, WA, for Petitioners.

Michelle Hyer, Karen Anne Watson, Todd Andrew Campbell, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 Guy Daniel Turner was convicted of first degree robbery and second degree assault arising from a single shoplifting event. In order to avoid a double jeopardy violation, the trial court vacated the assault conviction and sentenced Turner only for the robbery. However, the court also issued a written order stating that the assault conviction was a valid conviction for which Turner could be sentenced if his other conviction was overturned on appeal. Turner objected to the issuance of this order on double jeopardy grounds.

¶ 2 Separately, Faulolua Faagata, Jr., was convicted of first degree murder and second degree felony murder for fatally shooting a stranger. Based on similar double jeopardy arguments, the trial court vacated Faagata's felony murder conviction, but did so conditionally, and sentenced Faagata only for first degree murder. The court also indicated that the felony murder conviction could be reinstated if the other murder conviction failed on appeal; Faagata, like Turner, claimed that this violated double jeopardy. After the Court of Appeals affirmed both decisions, including the conditional provisions, Turner and Faagata petitioned this court for review. We consolidated their petitions and reverse the Court of Appeals in both cases on the grounds that conditional vacations of the sort attempted in Turner and Faagata offend double jeopardy. This result does not dictate, however, that such a conviction vacated on double jeopardy grounds may not be reinstated where the greater offense is reversed on grounds not applying to the lesser. See infra pp. 464-67 and note 7.

Facts and Procedural History

¶ 3 On June 6, 2005, Guy Daniel Turner was convicted of first degree robbery and second degree assault after shoplifting various items from Home Depot and stabbing an in-store security guard who tried to apprehend him. In order to avoid sentencing Turner for two crimes based on the same criminal conduct-and thereby violating double jeopardy-the trial court issued a written order vacating the assault conviction for sentencing purposes but insisting that the assault conviction was “nevertheless a valid conviction” for which Turner could be sentenced if his remaining robbery conviction did not survive appeal. Turner Clerk's Papers (Turner CP) at 17. The court subsequently sentenced Turner only for the robbery.

¶ 4 In a separate case, Faulolua Faagata, Jr., was convicted of both first degree murder and second degree felony murder on April 2, 2007, for fatally shooting a stranger whom he had agreed to drive home from a bar in exchange for cash. However, because of similar double jeopardy concerns, the trial court conditionally dismissed the felony murder conviction and sentenced Faagata only for first degree murder. The court justified its conditional dismissal of the lesser conviction as follows:

Well, I'm going to dismiss Count II [second degree felony murder], but I'm going to do it conditionally. I'm going to follow Womac .... ^{[ 1 ]} We have a jury that entered a conviction, and I don't think that the jury's finding should be a nullity. I think it's entitled to some weight. So I'm going to dismiss it conditionally with the understanding that should Count I [first degree murder] be reversed ... it can be reinstated....

Faagata Report of Proceedings (Faagata RP) (May 24, 2007) at 24. The court went on to sentence Faagata only for first degree murder.

¶ 5 Both Turner and Faagata appealed, arguing, inter alia, that double jeopardy demanded nothing less than the permanent, unconditional vacation of their lesser convictions. ² The Court of Appeals was unconvinced in both cases and affirmed the trial courts. State v. Turner, 144 Wash.App. 279, 182 P.3d 478 (2008); State v. Faagata, 147 Wash.App. 236, 193 P.3d 1132 (2008). The defendants then separately petitioned this court for review, which was granted only on the double jeopardy issue, and we consolidated the cases. State v. Turner, 165 Wash.2d 1002, 198 P.3d 512 (2008); State v. Faagata, 165 Wash.2d 1041, 204 P.3d 215 (2009).

Standard of Review

¶ 6 Double jeopardy claims raise questions of law, which we review de novo. State v. Kelley, 168 Wash.2d 72, 76, 226 P.3d 773 (2010) (citing State v. Hughes, 166 Wash.2d 675, 681, 212 P.3d 558 (2009)).

Analysis

I. Double Jeopardy

¶ 7 Both our federal and state constitutions protect persons from being twice put in jeopardy for the same offense. See U.S. Const. amend. V; Wash. Const. art. I, § 9. We have held that “Washington's double jeopardy clause is coextensive with the federal double jeopardy clause and ‘is given the same interpretation the Supreme Court gives to the Fifth Amendment.’ ” State v. Eggleston, 164 Wash.2d 61, 70, 187 P.3d 233 (2008) (quoting State v. Gocken, 127 Wash.2d 95, 107, 896 P.2d 1267 (1995)). Consequently, both clauses have been interpreted so as to protect against the same triumvirate of constitutional evils: “being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense.” State v. Linton, 156 Wash.2d 777, 783, 132 P.3d 127 (2006) (citing State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). The last of these three protections, the prohibition against imposing multiple punishments for the same criminal conduct, is implicated here.

¶ 8 The term “punishment” encompasses more than just a defendant's sentence for purposes of double jeopardy. See State v. Womac, 160 Wash.2d 643, 656-58, 160 P.3d 40 (2007). Indeed, even a conviction alone, without an accompanying sentence, can constitute “punishment” sufficient to trigger double jeopardy protections. Id. at 657, 160 P.3d 40. As the United States Supreme Court clarified in Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985):

The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction.

(Emphasis omitted.) We similarly have acknowledged “the adverse consequences that could result from multiple convictions alone,” State v. Calle, 125 Wash.2d 769, 774, 888 P.2d 155 (1995), and noted that “ ‘[c]onviction in itself, even without imposition of sentence, carries an unmistakable onus which has a punitive effect ...,’ ” id. (quoting State v. Johnson, 92 Wash.2d 671, 679, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948, 100 S.Ct. 2179, 64 L.Ed.2d 819 (1980)). We must now decide whether these adverse consequences are alleviated by the conditional vacation of the lesser of a defendant's two convictions for the same offense-either conditional vacation by a written order appended to a defendant's judgment and sentence, as in Turner, or by oral judicial stipulation, as in Faagata-or whether permanent vacation of such convictions is required.

II. Federal Law

¶ 9 An abundance of federal law, including opinions issued by the United States Supreme Court, has held that permanent, unconditional vacation is not required. Federal courts have held that double jeopardy does not bar the revival of a lesser conviction previously vacated on double jeopardy grounds when the defendant's greater conviction is overturned on appeal on grounds that only affect the greater offense. ³ It follows that the vacation of the lesser of two convictions based on the same criminal conduct need not be permanent in order to satisfy double jeopardy.

¶ 10 The leading federal case on the issue of double jeopardy and multiple convictions is Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). In Rutledge, a jury found the defendant guilty of conspiracy to distribute a controlled substance and conducting a continuing criminal enterprise (distribution of cocaine); the “in concert” element of the latter was based on the same agreement as the former. Id. at 294-95, 116 S.Ct. 1241. The defendant received concurrent life sentences on the two counts. Id. at 295, 116 S.Ct. 1241. On appeal, the Supreme Court held that the conspiracy offense was a lesser included offense of the criminal enterprise offense; it also held that double jeopardy barred convictions for both offenses and remanded for vacation of one of them. Id. at 300, 307, 116 S.Ct. 1241 (“ ‘[o]ne of [the petitioner's] convictions ... is unauthorized punishment for a separate offense’ and must be vacated.” (quoting Ball, 470 U.S. at 864, 105 S.Ct. 1668)).

¶ 11 The Supreme Court did not pass judgment on whether the vacation could be explicitly conditional like the vacations in today's cases. Instead, the Court noted that the “federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense.” Id. at 306, 116 S.Ct. 1241. The Court found no fault with using the lesser conviction as a “ ‘backup’ conviction” to prevent “a defendant who later successfully challenges his...