State v. Banks

• Decision Date: 03 April 2003
• Docket Number: No. 72354-1.,72354-1.
• Citation: 149 Wash.2d 38,65 P.3d 1198
• Parties: STATE of Washington, Respondent, v. Eric Ladon BANKS, Petitioner.
• Court: Washington Supreme Court

65 P.3d 1198

149 Wash.2d 38

STATE of Washington, Respondent, v. Eric Ladon BANKS, Petitioner.

No. 72354-1.

Supreme Court of Washington, En Banc.

Argued November 12, 2002.

Decided April 3, 2003.

Nielsen, Broman & Assoc., Dana Nelson, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, James Whisman, Shaya Calvo, Deputy County Prosecutors, for Respondent.

IRELAND, J.

Defendant claimed error in his bench trial conviction for unlawful possession of a firearm in the first degree because the judge's findings did not expressly include the element of knowledge as required by a case decided after his conviction. Because the court's unchallenged written findings necessitate an inference of knowledge, we hold any error in the findings harmless beyond a reasonable doubt and affirm the conviction.

FACTS

On June 7, 1999, near a restaurant called The Hook, Line, and Sinker, the restaurant security guard observed Eric L. Banks in a heated discussion with some other customers. He advised the owners to call 911. He saw Banks leave the restaurant, stand next to his car, reach into the pocket of his jacket, and drop what appeared to be a gun on the ground. The security guard did not see whether Banks actually picked up the gun. However, it was not on the ground moments later when the security guard looked again.

The first patrol car arrived on the scene, and the officer testified that she witnessed Banks back the car out of the restaurant parking lot. She alerted other patrol cars by radio, and two cars pursued Banks to a bank nearby. The officers testified that they were able to box Banks in with the rear of his car against the bank. Banks claimed to have simply pulled into the bank parking lot.

Two of the officers testified that while the spotlight of their patrol car was trained on the passenger compartment of the car, they saw Banks reach behind his back and pull a jacket off his seat. He threw it on the passenger's lap. The officer testified that the passenger, looking startled, pushed the jacket back towards Banks. Banks denied these events took place and testified that he did not have the jacket at all. Banks also testified that the car was not his, and that he had not inspected it before driving away from the restaurant.

One officer testified that when they ordered the four occupants out of the car, three of them were wearing jackets. Only Banks was not. One of the officers searched the car and found the jacket with a gun in its pocket. The jacket was not presented as evidence at trial.

Banks testified he told the arresting officer that he knew nothing about a gun. Banks' attorney argued in closing, "The evidence clearly shows that the jacket didn't belong to him. He didn't have a jacket. Nor did he have any knowledge that the jacket have [sic] a gun in there." 2 Verbatim Report of Proceedings (VRP) at 150.

The trial court did not adopt Banks' version of the facts. The court omitted "knowing possession" from its findings of fact and conclusions of law. With regard to possession, the court said in its oral decision,

I know that Mr. Banks testified he didn't have the gun, he didn't have the jacket on, he doesn't know where the jacket is, it wasn't his. However, I think there is sufficient evidence, circumstantial and otherwise, for me to make a decision beyond a reasonable doubt that Mr. Banks, at one time, had a gun in a jacket he had his hands on, and the gun was still in that jacket after everyone was taken out of the car.... And so I will find that Mr. Banks had a firearm in his possession and control.

2 VRP at 155. In its written findings, the trial court found, "Defendant [Banks] bent over and picked up the gun and got into his car, which was parked directly in front of the restaurant." Clerk's Papers at 23. Banks was convicted of reckless driving and unlawful possession of a firearm in the first degree.

On appeal, Banks did not challenge the trial court's findings. Banks argued his conviction should be reversed because following his trial, State v. Anderson, 141 Wash.2d 357, 5 P.3d 1247 (2000), held that "knowing possession" is an element of unlawful possession of a firearm. Knowledge was neither argued by the State nor addressed in the trial court's findings of fact and conclusions of law. The Court of Appeals Division One held that there was sufficient evidence to support a finding of knowing possession, and remanded to the Superior Court for entry of new findings. State v. Banks, noted at 110 Wash. App. 1024, slip op. at 3-4 (2002) (per curiam). This court granted Banks' petition for review.

ANALYSIS

Banks assigns error to the State's failure to argue knowledge as an element. At the time of Banks' trial, Division One had determined that "knowing possession" was not an element of unlawful possession of a firearm. State v. Anderson, 94 Wash.App. 151, 971 P.2d 585 (1999),rev'd,141 Wash.2d at 359, 5 P.3d 1247. During closing arguments, the prosecutor recited the elements as "[1] the defendant had a firearm in his possession or control .... [2] the defendant had previously been convicted of assault in the second degree, which is a serious offense.... [a]nd [3] this possession occurred in the State of Washington." 2 VRP at 138. Although the information charged Banks with knowing possession of a firearm, the prosecutor did not specifically argue knowledge as an element at trial. Subsequently, this court construed the unlawful possession statute to include the knowledge element. Anderson, 141 Wash.2d at 359,5 P.3d 1247.

Banks also assigns error to the trial court's failure to enter findings and conclusions on the knowledge element. The criminal rules for superior court judges require that, following a bench trial, the judge enter findings of fact and conclusions of law. CrR 6.1(d). Findings and conclusions comprise a record that may be reviewed on appeal. State v. Head, 136 Wash.2d 619, 622, 964 P.2d 1187 (1998) (citations omitted). Each element must be addressed separately, setting out the factual basis for each conclusion of law. Id. at 623, 964 P.2d 1187 (citations omitted). In addition, the findings must specifically state that an element has been met. State v. Alvarez, 128 Wash.2d 1, 19, 904 P.2d 754 (1995). In this case, the trial court did not specifically address knowledge in its findings of fact and conclusions of law. It did not meet the requirements of CrR 6.1(d).

We analyze whether these errors are subject to harmless error analysis and, further, whether the errors were harmless in this case.

A. Whether the errors are subject to harmless error analysis

An error is subject to harmless error analysis, unless the error is "so intrinsically harmful as to require automatic reversal (i.e. `affect substantial rights') without regard to [its] effect on the outcome." Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Certain errors defy harmless error analysis because they "`infect the entire trial process' and `necessarily render a trial fundamentally unfair.'" Id. at 8, 119 S.Ct. 1827 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) and Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). Otherwise, most constitutional errors are presumed to be subject to harmless error analysis. Id. (citations omitted). The error in Neder, an omission of an element from the jury instructions, was subject to harmless error analysis because the defendant "was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel ...." Id. at 9, 119 S.Ct. 1827. Recently, we adopted the United States Supreme Court's position that a "jury instruction that omits or misstates an element of a charged crime is subject to harmless error analysis to determine whether the error has not relieved the State of its burden to prove each element of the case." State v. Brown, 147 Wash.2d 330, 344, 58 P.3d 889 (2002) (relying on Neder.)

The errors in this case neither infected the whole trial process nor rendered Banks' trial fundamentally unfair. Banks, like the defendant in Neder, was tried before an impartial judge who was required to determine guilt beyond a reasonable doubt. He had assistance of counsel. Under the reasoning in Neder and Brown, the errors are subject to harmless error analysis.

B. Whether errors in this case were harmless

Banks argues that the State in this case was relieved of the burden of proving every element of the charge because the judge was not asked to consider whether the knowledge element was met beyond a reasonable doubt and did not address knowledge in the findings and conclusions. The errors, Banks contends, were not harmless because Banks was denied a trial in which he could argue a theory of the case based upon the correct elements of the charge. We disagree.

The test to determine whether an error is harmless is "`whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Brown, 147 Wash.2d at 341, 58 P.3d 889 (quoting Neder, 527 U.S. at 15, 119 S.Ct. 1827). Stated another way, "An error is not harmless beyond a reasonable doubt where there is a reasonable probability that the outcome of the trial would have been different had the error not occurred.... A reasonable probability exists when confidence in the outcome of the trial is undermined." State v. Powell, 126 Wash.2d 244, 267, 893 P.2d 615 (1995) (citations omitted).

In Neder, the materiality element in a tax and bank fraud charge was not submitted to the jury, but instead was decided by the court against the defendant. 527 U.S. at 6,119 S.Ct. 1827. An intervening case¹ held that the materiality element must be submitted to the jury. However, when the Supreme Court applied harmless error analysis, it held that because the omitted element was "uncontested and supported by overwhelming evidence," the error was harmless. Id. at 17, 119 S.Ct....