State Of Wash. v. Hall

• Court: Washington Supreme Court
• Writing for the Court: CHAMBERS, J
• Citation: State v. Hall, 168 Wash.2d 726, 230 P.3d 1048 (Wash. 2010)
• Decision Date: 22 April 2010
• Docket Number: No. 82558-1.
• Parties: STATE of Washington, Respondent,v.Isiah Thomas HALL, Petitioner.

168 Wash.2d 726

230 P.3d 1048

STATE of Washington, Respondent,v.Isiah Thomas HALL, Petitioner.

No. 82558-1.

Supreme Court of Washington En Banc.

Argued Jan. 26, 2010.

Decided April 22, 2010.

Jonathan Michael Palmer, Attorney at Law, Dana M. Lind, Nielsen Broman & Koch, P.L.L.C., Seattle, WA, for Petitioner.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

CHAMBERS, J.

¶ 1 We are asked to determine the unit of prosecution for the crime of witness tampering when the defendant makes multiple phone calls to a single witness in an attempt to persuade that witness not to testify or to testify falsely in a single proceeding. We conclude that Isiah Thomas Hall's numerous phone calls constituted one unit of attempting to “induce a witness” to not testify or to testify falsely. We reverse the Court of Appeals and remand to the superior court for resentencing.

I

¶ 2 Melissa Salazar briefly dated Hall in November and December 2006. Hall continued to press his attentions on Salazar after she broke off the relationship and after he suspected she was seeing another man. On January 14, 2007, he came to her apartment with a gun. When she stepped into the hall to talk to him, he drew that gun, pushed the barrel against her head, and announced his intent to kill her. He then shoved her down and forced his way into her apartment, where indeed he found another man. Hall then redirected his ire at that other man and chased him out of the house, gun raised. Upon realizing that Salazar was calling the police, Hall fled the scene.

¶ 3 Police contacted Desirae Aquiningoc because Hall had been driving a vehicle registered to her. Aquiningoc told the officers that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother, and that he owned a gun. It appears that his purpose was not to visit his mother but rather to confront Salazar. The detective, assisted by members of a SWAT (special weapons and tactics) team, returned to Hall's home and arrested him. The gun was found in the master bedroom closet. Later, Aquiningoc would testify that Hall told her he had shot at his mother's boyfriend on January 14 and that afterward he had taken the gun to a friend's house for a few days.

¶ 4 Based on what happened at Salazar's apartment, Hall was charged with first degree burglary and second degree assault and held in jail pending trial. While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.¹

¶ 5 Based on phone calls made on March 22, March 30, and April 4, Hall was charged with the four counts of tampering with a witness that are before us today. A jury convicted Hall of three of those counts (as well as first degree burglary, assault in the second degree, and unlawful possession of a firearm) and he was sentenced to a total of 126 months. The trial judge treated each count of witness tampering as a separate unit of prosecution.² His convictions were affirmed by the Court of Appeals, 147 Wash.App. 485, 196 P.3d 151 (2008), and Hall successfully petitioned this court for review of whether his multiple convictions for witness tampering violated double jeopardy, 166 Wash.2d 1005, 208 P.3d 1124 (2009).

II

¶ 6 Only a question of law is before this court. Review is de novo. State v. Freeman, 153 Wash.2d 765, 770, 108 P.3d 753 (2005) (citing State v. Johnston, 100 Wash.App. 126, 137, 996 P.2d 629 (2000)). A defendant may face multiple charges arising from the same conduct, but double jeopardy forbids entering multiple convictions for the same offense. Id. at 770-71, 108 P.3d 753 (citing State v. Michielli, 132 Wash.2d 229, 238-39, 937 P.2d 587 (1997); State v. Vladovic, 99 Wash.2d 413, 422, 662 P.2d 853 (1983)). Whether or not a defendant faces multiple convictions for the same crime turns on the unit of prosecution. State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002) (citing State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998)).

III

¶ 7 We must decide whether witness tampering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely. We recently summarized the general analytical approach to determine the unit of prosecution:

[T]he first step is to analyze the statute in question. Next, we review the statute's history. Finally, we perform a factual analysis as to the unit of prosecution because even where the legislature has expressed its view on the unit of prosecution, the facts in a particular case may reveal more than one “unit of prosecution” is present.

State v. Varnell, 162 Wash.2d 165, 168, 170 P.3d 24 (2007) (citing State v. Bobic, 140 Wash.2d 250, 263-66, 996 P.2d 610 (2000)). “[I]f the legislature fails to define the unit of prosecution or its intent is unclear, under the rule of lenity any ambiguity must be ‘ “resolved against turning a single transaction into multiple offenses.” ’ ” State v. Tvedt, 153 Wash.2d 705, 711, 107 P.3d 728 (2005) (quoting Adel, 136 Wash.2d at 634, 965 P.2d 1072 (quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955))).

¶ 8 The witness tampering statute says in relevant part:

(1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to

believe is about to be called as a witness in any official proceeding ... to:

(a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or

(b) Absent himself or herself from such proceedings.

RCW 9A.72.120(1). A unit of prosecution can be either an act or a course of conduct. Tvedt, 153 Wash.2d at 710, 107 P.3d 728; see also

Ex parte Snow, 120 U.S. 274, 286, 7 S.Ct. 556, 30 L.Ed. 658 (1887).

¶ 9 In Varnell, 162 Wash.2d 165, 170 P.3d 24, we considered the unit of prosecution for solicitation for murder. The defendant solicited an undercover police detective to kill four people and was convicted of four separate counts. This court found that only one solicitation happened:

The language of the solicitation statute focuses on a person's “intent to promote or facilitate” a crime rather than the crime to be committed. The evil the legislature has criminalized is the act of solicitation. The number of victims is secondary to the statutory aim, which centers on the agreement on solicitation of a criminal act. The statute requires only that the solicitation occur; that is, where a person offers to give money or some other thing of value to another to engage that person to commit a crime. The solicitation has occurred regardless of the completion of the criminal act.

Id. at 169, 170 P.3d 24. Hall argues we should take a similar approach here. He argues the evil the legislature has criminalized is the attempt to “induce a witness” not to testify or to testify falsely. The number of attempts to “induce a witness” is secondary to that statutory aim, which centers on interference with “a witness” in “any official proceeding” (or investigation). RCW 9A.72.120(1). The offense is complete as soon as a defendant attempts to induce another not to testify or to testify falsely, whether it takes 30 seconds, 30 minutes, or days. We agree.

¶ 10 By way of comparison, in Tvedt we found multiple units of prosecution did arise from the same course of conduct. There, a defendant was convicted of four counts of robbery for robbing two convenience stores. Both a clerk and a customer were in each store. This court affirmed entry of four counts, noting:

The language of RCW 9A.56.190 shows that the legislature's intent was to define the unit of prosecution in terms of a taking of personal property and in terms of an offense against the person from whom or in whose presence and against whose will the property is forcibly taken. The unit of prosecution need not be defined by only a single characteristic or element of a crime and the legislature has not done so.

Tvedt, 153 Wash.2d at 712, 107 P.3d 728. There, the unit of prosecution was each separate victim from whom or in whose presence property was forcibly taken. This followed from the language of the statute “that ‘[a] person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of force.’ ” Id. at 711, 107 P.3d 728 (alteration in original) (quoting RCW 9A.56.190). “By describing the crime of robbery as it did, the legislature established an offense which is dual in nature-robbery is a property crime and a crime against the person.” Id. Thus, whenever both factors are met, a single unit of prosecution occurs. By contrast, witness tampering only requires an attempt to induce a witness to not testify or to testify falsely. RCW 9A.72.120(1).

¶ 11 A plainer case was presented in the context of stolen “access devices,” such as credit and debit cards. State v. Ose, 156 Wash.2d 140, 146, 124 P.3d 635 (2005). There, the defendant pleaded guilty to 25 counts of second degree possession of stolen property under RCW 9A.56.160(1)(c), which provides that “[a] person is guilty of possessing stolen property in the second degree if.... He or she possesses a stolen access device.” RCW 9A.56.160(1)(c); Ose, 156 Wash.2d at 143, 145, 124 P.3d 635. The defendant appealed based on the unit of prosecution. This court focused in on the legislature's choice of the indefinite article “a” in “a stolen access device” and rejected her challenge. We reasoned “because the word ‘a’ is used only to precede singular nouns except when a plural modifier is interposed, the legislature's use of the word ‘a’ before ‘stolen access device’ unambiguously gives RCW 9A.56.160(1)(c) the plain meaning that possession of each stolen access device is a separate...