State Of Wash. v. Kelley

• Court: Washington Supreme Court
• Writing for the Court: MADSEN, C.J
• Citation: State v. Kelley, 168 Wash.2d 72, 226 P.3d 773 (Wash. 2010)
• Decision Date: 21 January 2010
• Docket Number: No. 82111-9.
• Parties: STATE of Washington, Respondent,v.Dustin Ross KELLEY, Petitioner.

168 Wash.2d 72

226 P.3d 773

STATE of Washington, Respondent,v.Dustin Ross KELLEY, Petitioner.

No. 82111-9.

Supreme Court of Washington En Banc.

Argued Oct. 29, 2009.

Decided Jan. 21, 2010.

Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, for Petitioner.

Kathleen Proctor, Melody M. Crick, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

MADSEN, C.J.

¶ 1 The defendant challenges the Court of Appeals' decision that double jeopardy principles are not violated by imposition of a firearm enhancement where use of a firearm is an element of the underlying offense. We affirm the Court of Appeals.

FACTS

¶ 2 On February 22, 2006, victim Beau Pearson was visiting Klaus Stearns at a trailer in the backyard of Petra Scholl's house in Tacoma. Ms. Scholl is Stearns' mother. Mr. Pearson's girl friend, Valerie Greenfield, accompanied him and was sitting next to him on the bed in the trailer. Also present in the trailer was Kelly Kowalski, another friend of Mr. Stearns. Mr. Stearns, who lived with his mother, had been in and out of the trailer during the day and had stepped out of the trailer to go to the house to talk to his mother.

¶ 3 While Stearns was gone, defendant Dustin Kelley, a friend of Stearns, entered the trailer and started talking to Pearson. Kelley asked Pearson if he had ever been shot before. As Pearson continued to talk to Kelley, Kelley walked toward the door, then turned around and walked back, pulling out two guns. Kelley said, “I smoke you and your bitch, too.” 8 Verbatim Report of Proceedings at 609. Pearson turned to Greenfield, said he was sorry and pushed her out of the way as Kelley began shooting. Kelley shot Pearson at least eight times and, Ms. Greenfield testified, pointed a gun at her. She also testified that she was afraid she was going to be shot. Kelley left the trailer. Mr. Pearson died. Greenfield was not hit.

¶ 4 The State charged Kelley with first degree murder, second degree unlawful possession of a firearm, and second degree assault (“intentional[ ] assault ... with a deadly weapon, to wit: a handgun” while “armed with a firearm, to-wit: .45 caliber handgun and to-wit: 9 millimeter handgun”). Clerk's Papers at 21-22. The State also alleged two firearm enhancements each on the murder and assault charges. On November 21, 2006, the jury convicted Kelley as charged and returned four special firearm enhancements, two pertaining to the assault. On February 9, 2007, the court imposed a standard range sentence and four firearm sentence enhancements.

¶ 5 Kelley appealed. In a partially published opinion the Court of Appeals affirmed, rejecting Kelley's claims that the sentence enhancements on the assault conviction violated double jeopardy principles and that he was provided ineffective assistance of counsel. State v. Kelley, 146 Wash.App. 370, 189 P.3d 853 (2008).

ANALYSIS

¶ 6 Kelley contends that the Court of Appeals erred in holding that a double jeopardy violation does not result from imposition of a firearm enhancement when use of a weapon is an element of the underlying crime. He acknowledges that in prior cases courts have found no double jeopardy violations in such circumstances but contends the double jeopardy analysis has changed as a result of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Ring v. Arizona, 536 U.S. 584, 605, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)-in particular as a result of Blakely. Under this new analysis, he maintains, the firearm sentence enhancements on his assault conviction violate double jeopardy. As the Court of Appeals correctly held, however, these cases do not require a new analysis and no double jeopardy violation occurred here.

¶ 7 Double jeopardy claims are questions of law that are reviewed de novo. State v. Hughes, 166 Wash.2d 675, 681, 212 P.3d 558 (2009). The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” Article I, section 9 of the Washington State Constitution provides that “[n]o person shall ... be twice put in jeopardy for the same offense.” The two clauses provide the same protection. In re Pers. Restraint of Borrero, 161 Wash.2d 532, 536, 167 P.3d 1106 (2007); State v. Weber, 159 Wash.2d 252, 265, 149 P.3d 646 (2006). Among other things, the double jeopardy provisions bar multiple punishments for the same offense. N. Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Borrero, 161 Wash.2d at 536, 167 P.3d 1106.

¶ 8 A legislature can enact statutes imposing, in a single proceeding, cumulative punishments for the same conduct. “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). If the legislature intends to impose multiple punishments, their imposition does not violate the double jeopardy clause. Id. at 368, 103 S.Ct. 673.

¶ 9 If, however, such clear legislative intent is absent, then the Blockburger test applies. Id.; see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under this test, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. If application of the Blockburger test results in a determination that there is only one offense, then imposing two punishments is a double jeopardy violation. The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same conduct under two different statutes; the Blockburger test is a rule of statutory construction applied to discern legislative purpose in the absence of clear indications of contrary legislative intent. Hunter, 459 U.S. at 368, 103 S.Ct. 673.

¶ 10 In short, when a single trial and multiple punishments for the same act or conduct are at issue, the initial and often dispositive question is whether the legislature intended that multiple punishments be imposed. Id.; State v. Kier, 164 Wash.2d 798, 804, 194 P.3d 212 (2008); State v. Calle, 125 Wash.2d 769, 888 P.2d 155 (1995). If there is clear legislative intent to impose multiple punishments for the same act or conduct, this is the end of the inquiry and no double jeopardy violation exists. If such clear intent is absent, then the court applies the Blockburger “same evidence” test to determine whether the crimes are the same in fact and law. Calle, 125 Wash.2d at 777-78, 888 P.2d 155.

¶ 11 The United States Supreme Court and this court have both held that no double jeopardy violation occurs when additional punishment is imposed based upon the defendant's use of a firearm or other deadly weapon during a crime, and this is true when use of the firearm or other weapon is an element of the underlying, or base, offense. See Hunter, 459 U.S. 359, 103 S.Ct. 673; State v. Harris, 102 Wash.2d 148, 158-60, 685 P.2d 584 (1984) overruled on other grounds, State v. Ray, 116 Wash.2d 531, 806 P.2d 1220 (1991); see also, e.g., State v. Caldwell, 47 Wash.App. 317, 734 P.2d 542 (1987). In Hunter, the defendant committed robbery while armed with a firearm. Missouri statutes provided for punishment of the crime of first degree robbery, based upon use of a dangerous and deadly weapon, plus additional punishment for use of a dangerous or deadly weapon during the course of a felony (which constituted the offense of “armed criminal action”). The Court found no double jeopardy violation, stating that where, as in Hunter,

a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Hunter, 459 U.S. at 368-69, 103 S.Ct. 673; see

Harris, 102 Wash.2d at 160, 685 P.2d 584.

¶ 12 The question here is thus whether the legislature's intent is clear that cumulative punishments are intended. We conclude that it is. Indeed, the intent to impose multiple punishments could hardly be clearer. Kelley was convicted of assault under RCW 9A.36.021(1)(c), which provides for guilt of second degree assault when the offender “[a]ssaults another with a deadly weapon.” Sentence enhancements were imposed pursuant to RCW 9.94A.533(3), which mandates imposition of firearm sentence enhancements for felonies if the offender or an accomplice was armed with a firearm during the commission of felony enhancement-eligible crimes, subject to express exceptions. The two sentence enhancements for the assault resulted because Kelley was armed with two guns.

¶ 13 The firearms enhancement provisions at issue were originally enacted as part of Initiative 159, “Hard Time for Armed Crime,” an initiative to the legislature that it enacted in 1995. Laws of 1995, ch. 129, § 2 (RCW 9.94A.310(3)(e), (f), recodified as RCW 9.94A.533(3)). The statute unambiguously states that firearm enhancements are mandatory: “[n]otwithstanding any other provisions of law, all firearm enhancements under this section are mandatory.” RCW 9.94A.533(3)(e). Where exceptions are intended, they are expressly stated: “The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine...