State v. Adel

• Court: Washington Supreme Court
• Writing for the Court: DOLLIVER; DURHAM; TALMADGE
• Citation: State v. Adel, 136 Wn.2d 629, 965 P.2d 1072 (Wash. 1998)
• Decision Date: 15 October 1998
• Docket Number: No. 65565-1
• Parties: The STATE of Washington, Respondent, v. Hussain ADEL, Petitioner.

Page 629

136 Wn.2d 629

965 P.2d 1072

The STATE of Washington, Respondent, v. Hussain ADEL, Petitioner.

No. 65565-1.

Supreme Court of Washington En Banc.

Oct. 15, 1998.

John S. Hutson, Mark W. Muenster, Vancouver, for Petitioner.

Arthur Curtis, Clark County Prosecutor, Kathleen A. Rukliss, Deputy Clark County Prosecutor, Vancouver, for Respondent.

DOLLIVER, Justice.

Hussain Adel claims his two convictions for simple possession of marijuana violate double jeopardy. We agree, and we reverse one conviction.

Hussain Adel was the owner and operator of a convenience store in Clark County. Officers from the Clark-Skamania Drug Task Force contacted Adel in his store for an investigative stop. The officers obtained Adel's consent to search both the store and Adel's car which was parked outside.

In the car's ash tray the officers found three cigarette butts. The butts tested positive for marijuana and weighed 0.1 gram. In the store the officers found marijuana around the cash register counter. The evidence from the store weighed less than 0.2 gram. In total, the marijuana discovered both in the car and in the store amounted to less than 0.3 gram--approximately the weight of three large paper clips.

Adel was charged with two counts of simple possession of marijuana. One charge was based upon the marijuana fragments found in Adel's car, and the other charge was based upon the minuscule amount of marijuana found in the store. The district court found Adel guilty on both charges.

The superior court affirmed Adel's two convictions in a one-page ruling. Adel sought discretionary review by the Court of Appeals, but a court commissioner denied review in a detailed ruling. The Court of Appeals declined to modify the commissioner's ruling. We accepted the case for review to consider the double jeopardy issue.

Adel did not raise the double jeopardy argument at trial, but the constitutional challenge may be raised for the first time on appeal. State v. O'Connor, 87 Wash.App. 119, 123, 940 P.2d 675 (1997) (citing State v. Lopez, 79 Wash.App. 755, 761 n. 2, 904 P.2d 1179 (1995)).

The double jeopardy clause of the Fifth Amendment offers three separate constitutional protections. State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995). The state constitutional rule against double jeopardy, Const. art. I, § 9, offers the same scope of protection as its federal counterpart. Gocken, 127 Wash.2d at 107, 896 P.2d 1267. One aspect of double jeopardy protects a defendant from being punished multiple times for the same offense. Gocken, 127 Wash.2d at 100, 896 P.2d 1267; State v. Calle, 125 Wash.2d 769, 772, 888 P.2d 155 (1995).

If Adel's possession of marijuana in two places constitutes just one criminal act, or one "unit of prosecution," then Adel's two convictions violate double jeopardy by punishing him twice for the same offense. Double jeopardy is implicated whether or not Adel's sentences are served concurrently or consecutively. Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); Calle, 125 Wash.2d at 774-75, 888 P.2d 155. A defendant's having two convictions creates other adverse consequences besides jail time. Adel's is a unique situation where the adverse consequences of having two convictions are far greater than had there been one conviction. As a legal alien, Adel is subject to deportation if convicted of two drug charges. See 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. II 1996).

To determine if a defendant has been punished multiple times for the same offense, this court has traditionally applied the " 'same evidence' " test. Calle, 125 Wash.2d at 777, 888 P.2d 155. Under the same evidence test, double jeopardy is violated if a defendant is convicted of offenses which are the same in law and in fact. Calle, 125 Wash.2d at 777-78, 888 P.2d 155. The same evidence test mirrors the federal "same elements" standard adopted in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Gocken, 127 Wash.2d at 107, 896 P.2d 1267.

A Court of Appeals commissioner dismissed Adel's double jeopardy argument by relying upon the same evidence test and State v. McFadden, 63 Wash.App. 441, 820 P.2d 53 (1991). The commissioner found the two marijuana convictions were not the same in fact, each being based upon separate evidence, so the commissioner held the two convictions withstood the double jeopardy attack. The commissioner's reliance upon the same evidence test in this case is misplaced.

Both the same evidence test and Blockburger 's same elements test are inapplicable to Adel's situation because both tests apply only to a situation where a defendant has multiple convictions for violating several statutory provisions. Blockburger, 284 U.S. at 304, 52 S.Ct. 180 ("The applicable rule is that 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.") (emphasis added). See also Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) ("[T]he Blockburger test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction."), cert. denied, --- U.S. ----, 118 S.Ct. 850, 139 L.Ed.2d 751 (1998); United States v. Woods, 568 F.2d 509, 513 n. 1 (6th Cir.1978). See generally George C. Thomas III, A Unified Theory of Multiple Punishment, 47 U. Pitt. L.Rev. 1, 23-25 & n. 115 (1985) (analyzing and criticizing cases which erroneously applied Blockburger to the unit of prosecution context).

When a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied. As previously mentioned, the same evidence test asks whether the convicted offenses are the same in law and the same in fact. Two convictions for violating the same statute will always be the same in law, but they will never be the same in fact. In charging two violations of the same statute, the prosecutor will always attempt to distinguish the two charges by dividing the evidence supporting each charge into distinct segments. See Michelle A. Leslie, Note, State v. Grayson: Clouding the Already Murky Waters of Unit of Prosecution Analysis in Wisconsin, 1993 Wis. L.Rev. 811, 824 (making this same point to illustrate that the "identical in law and in fact" analysis is not useful in the unit of prosecution context).

The proper inquiry in this case is what "unit of prosecution" has the Legislature intended as the punishable act under the specific criminal statute. See Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955); State v. Mason, 31 Wash.App. 680, 685-87, 644 P.2d 710 (1982). The Legislature has the power, limited by the Eighth Amendment, to define criminal conduct and set out the appropriate punishment for that conduct. Bell, 349 U.S. at 82, 75 S.Ct. 620. The proper question for this case is what act or course of conduct has the Legislature defined as the punishable act for simple possession of a controlled substance? When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime. See Bell, 349 U.S. at 83-84, 75 S.Ct. 620 (double jeopardy violated when defendant convicted on two counts of transporting women across state lines when two women were transported at the same time); In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1887) (double jeopardy violated when defendant convicted on multiple counts of plural cohabitation when the cohabitation was continuous and ongoing). The unit of prosecution issue is unique in this aspect: While the issue is one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent. See Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct. Rev. 81, 113; Note, Twice in Jeopardy, 75 Yale L.J. 262, 313 (1965).

If the Legislature has failed to denote the unit of prosecution in a criminal statute, the United States Supreme Court has declared the ambiguity should be construed in favor of lenity. Bell, 349 U.S. at 84, 75 S.Ct. 620 ("[I]f Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses ...."); see also United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 97 L.Ed. 260 (1952). The United States Supreme Court has been especially vigilant of overzealous prosecutors seeking multiple convictions based upon spurious distinctions between the charges. Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ("The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units."); Snow, 120 U.S. at 282, 7 S.Ct. 556 (if prosecutors were allowed arbitrarily to divide up ongoing criminal conduct into separate time periods to support separate charges, such division could be done ad infinitum, resulting in hundreds of charges).

We now turn to the facts of this case. The first step in the unit of prosecution inquiry is to analyze the criminal statute. The relevant portion of the possession statute states, "any person found guilty of possession of forty grams or less of marihuana shall be guilty of a misdemeanor." RCW 69.50.401(e). Possession has been defined as personal custody or dominion and control. State v. Staley, 123 Wash.2d 794, 798, 872 P.2d 502 (1994). If the State establishes the nature of the substance and the defendant's possession of it, then the elements of unlawful...